ment is in question. It may, however, arise otherwise; being liable to fellow workers who suffer from their negligence or recklessness in employing men who have no skill, masters are not less liable to strangers (b). A master is liable for the acts of his servant done in execution of his express orders. This liability is criminal as well as civil. The act which the master has ordered is for all purposes his. In an early case Mr. Justice Foster thus explained the criminal responsibility of a master, who orders his servant to do that which is unlawful. "A. biddeth his servant hire somebody, no matter whom, to murder B., and furnisheth him with money for that purpose; the servant procureth C., a person whom A. never saw nor heard of, to do it; is not A., who is manifestly the first mover or contriver of the murder, an accessory before the (b) Wilson v. Merry (1868), L. R. 1 S. & D. 326. If a master negligently suffered a volunteer, who was incompetent to engage in his work, and some one was thereby injured, no doubt the master would be liable. In Wanstall v. Pooley (1841), 6 C. & F. 910, n., the Queen's Bench decided that a corn-factor, whose business was managed in his absence by his sister, was liable for the negligence of a tipsy servant, whom she had sent with corn to a customer. See also Wheatley v. Patrick (1837), 3 M. & W. 650. In his Leading Cases, p. 657, Mr. Bigelow observes that " a servant who merely hires labourers for the performance of the master's work is not in the situation of a sub-contractor, and cannot be held liable for damages caused by the negligence of such labourers." He thinks an action would lie against the master; Addison, Torts, 101 (5th ed.); Stone v. Cartwright (1795), 6 T. R. 411; Wilson v. Peto (1821), 6 Moore, C. P. 47. It has, in fact, been broadly laid down that, if a servant employs another person to do his work, or assist him therein, the master is liable for an injury resulting from such person's acts (Wood, 588). No doubt, in Booth v. Mister (1835), 7 C. & P. 66, Lord Abinger ruled in an action for injuries by the driver of a cartthe evidence being that the defendant's servant was in the cart, but that a person not his servant was driving that it was the same as if the defendant's servant had driven. But he reserved the point, and it was never argued. In Althorf v. Wolfe, 8 Sm. N. Y. 355, the defendant had set his servant to shovel snow and ice off the roof of a house. The servant procured the assistance of A. B. was injured by the fall of the ice; it did not appear whether the ice was thrown by the servant or A.; the defendant held responsible (two judges dissenting). One of the judges based his decision on the ground that the servant was entitled to procure aid. It is submitted that the point ought to turn on the question whether he was acting within the scope of his authority in employing A. fact?" Answer, "if present, he is a principal, if absent an accessory before the fact" (c). On similar grounds, a baker, who knew that a servant put into bread alum, contrary to the 36th Geo. III. c. 22, s. 3, and the 37th Geo. III., c. 98, s. 21, was held to be properly indicted for selling bread which contained so much alum as made it injurious to health (). If the employer makes use of an agent who is ignorant of the criminal character of an act, the former is liable; if both are aware that the act which they do is illegal, both are liable. The general principle prevails that a man can be made criminally responsible only for an act which he has himself committed or ordered. Whoever actually commits, or takes part in the actual commission of a crime, is a principal in the first degree, whether he is on the spot when the crime is committed or not ;" and "whoever aids or abets the actual commission of a crime, either at the place where it is committed, or elsewhere, is a principal in the second degree in that crime" (e). Some important exceptions have sprung up. Masters may be criminally liable for libels published by their servants acting within the scope of their employment, even though they are no parties to the publication. The proprietor of a newspaper, for example, may be absent at the time of the publication of a libel; he may be totally ignorant of it, and morally innocent; the editor or other servant may have acted negligently; but at Common Law the proprietor was prima facie liable. Thus in R. v. Almon (f) the owner of a book-shop was indicted for the sale of a libellous pamphlet of the nature of which it did not appear that he was aware, and in R. v. Walter (g), decided in 1799, Lord Kenyon ruled that the proprietor of a newspaper was answer (c) Foster, C. C. 125. (d) R. v. Dixon (1814), 3 M. & S. 11; 4 Camp. 12. (e) Stephen's Digest of Criminal Law, pp. 22 & 23. Of course a master might be guilty of manslaughter for the acts of servants; e. g. if a druggist employed an unskilful assistant, and customers were thereby poisoned. (f) (1770), 5 Bur. 2686. (g) 3 Esp. 21; also R. v. Gutch (1829), Mood and Mol. 432. T able criminally for the acts of his servant though he lived in the country and had nothing to do with the conducting of the newspaper. This is, however, subject to sec. 7 of the 6 & 7 Vict. c. 96, which says: "And be it enacted, that whensoever, upon the trial of any indictment or information for the publication of a libel, under the plea of 'not guilty,' evidence shall have been given which shall establish a presumptive case of publication against the defendant by the act of any other person by his authority, it shall be competent to such defendant to prove that such publication was made without his authority, consent, or knowledge, and that the said publication did not arise from want of due care or caution on his part" (h). There is another class of cases, hard to define, in which masters have been made to answer in criminal or quasi criminal proceedings, for acts the knowledge of which was not brought home to them. In interpreting certain statutes, particularly those relating to revenue purposes, Courts have disregarded the presumption that a person is criminally liable for no acts but his own, on the ground that, though penal in their consequences, the proceedings were substantially civil; that it was a master's duty to prevent breaches of the law by his servants; or that the statutes would be rendered inoperative if a master were not punished for their acts. It is too late to question the legality of these decisions, however difficult it may be to reconcile some of them with the principle that mens rea is necessary to constitute a criminal offence. The 35 & 36 Vict. c. 94, s. 16, made it an offence for " any licensed person" to supply any liquor to a constable on duty. It was argued in one case that a licensed victualler ought not to be convicted under this section when liquor was supplied by a servant without his master's knowledge. That was not the view of the Court; it (h) R. v. Holbrook (1877), L. R. 3 Q. B. D. 60; 47 L. J. Q. B. 35; 37 L. T. 530; L. R. 4 Q. B. D. 42; 48 was thought enough that the servant knew (i). In the subsequent case of Bosley v. Davies (k), proceedings were taken under sec. 17 of the same Act against a publican as a "licensed person" who "suffered any gambling," &c. The Court decided that actual knowledge of the offence by the master was not necessary; but that there must be some evidence that he or his servants connived at what was going on. This interpretation was adopted in Redgate v. Haynes (1). (i) Mullens v. Collins: see note (7). (k) Ditto. (1) See below. The following are the chief cases :-MASTER LIABLEA.-G. v. Stranyforth (1721), Bunb. 97. (The Crown lost duties on wine by mistake of clerk of one of five partners; defendants liable.) A.-G. v. Burgers (1726), Bunb. 223 (Pengelly, C.B., ruled that, if several persons were concerned either in partnership or otherwise, the Crown might come against any one of them for the whole penalty, it (non-payment of duty) being in the nature of a tort.) Mitchell v. Torup (1766), Parker, 227. (Tea imported by sailors without knowledge of owners; ship forfeited.) R. v Dixon (1814), 4 Camp. 12; 3 M. & S. 11; see note (d). A.-G. v. Seddon (1830), 1 C. & J. 220; 1 Tyr. 41. (Dealer in tobacco convicted of harbouring and concealing tobacco, which was, in fact, concealed by his servant. Advocate-General v. Grant (1853), 15 T. 980. (Clerk to a distiller sold a cask of whisky to one who had no licence to sell spirits; sent it to the purchaser with permit obtained for another; an offence within 2 Will. IV. c. 16, for which employers liable.) Michell v. Brown (1858), 29 L. J. M. C. 53. (Owner of a vessel convicted under 11th sec. of 54 Geo. 3, e. 159, which makes it an offence to throw out of any vessel in a navigable river ballast, &c., though owner not on board at the time of the offence.) Howells v. Wynne (1863), 15 C. B. N. S. 3; 32 L. J. M. C. 241. (See Mines Regulation Act, 35 & 36 Vict. e. 76, s. 51 & 52.) Searle v. Reynolds (1866), 7 B. & S. 704; 14 L. T. N. S. 518. (Appellant not liable for disobedience of his foreman to order of inspector to disinfect certain premises, Cockburn, C. J.; appellant liable, Mellor, J.) Core v. James (1871), L. R. 7 Q. B. 135. (To convict baker under 6 & 7 Wm. IV. c. 37, s. 8, for putting alum in bread, knowledge necessary; but the knowledge of the servant will suffice to make master liable.) Barnes V. Akroyd (1872), L. R. 7 Q. B. 474; 41 L. J. M. C. 110. (Occupiers of factory liable under 18 & 19 Vict. c. 121, s. 12, and 23 & 24 Vict. c. 77, s. 13, for a nuisance by emission of smoke caused by their servants.) Mullins v. Collins (1874), L. R. 9 Q. B. 292; 43 L. J. M. C. 67; 29 L. T. N. S. 838. (A licensed victualler liable, under 35 & 36 Vict. c. 94, s. 16, sub-s. 2; although he had no knowledge that his servant had supplied drink to a constable on duty.) Bosley v. Davies (1875), L. R. 1 Q. B. D. 84; 45 L. J. M. C. 27; 33 L. T. N. S. 528. (Appellant charged with "suffering" gaming on his licensed premises; case sent back to the justices with an intimation that, though actual knowledge of card-playing on the part of the appellant or his servants need not be shown, some circumstances must be proved from which it could be inferred that they connived at what was going on.) Redgate v. Haynes (1876), L. R. 1 Q. B. D. 89. (Appellant charged under section 17 of the Intoxicating Liquors Licensing Act, 1872, 35 & 36 Vict. c. 94, with "suffering" gaming to be carried on in an hotel justices inferred that the appellant knew that gaming was intended to be carried on, and took : Looking to the variety of the decisions collected below, all that can be said is that there is a prima facie improbability against criminal liability in the absence of mens rea; that the Legislature may, nevertheless, for public reasons, impose penalties on those who do not prevent as well as those who commit certain offences; and that the words of each statute must determine whether a master is chargeable for acts which are unknown to him. Employers have frequently been held criminally answerable for nuisances committed by their servants. Thus in R. v. Medley (m) the directors of a gas company were indicted jointly with their servants, who conducted the works, for turning refuse into a stream. Denman, C. J., directed the jury to find the defendants guilty, though they were ignorant of what had been done. Perhaps some of such decisions were given at a time when the difference between criminal and civil responsibility had not been precisely determined. pains not to know what her guests 656. (Sale of beer from cart on (m) (1834), 6 C. & P. 292. See also R. v. Stephen (1866), L. R. 1 Q. B. 702. (Owner of works carried on by his agents, indictable for causing nuisance by depositing rubbish in a public navigable river, though the defendant had prohibited the workmen from so depositing the rubbish.) |