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ment is in question. It may, however, arise otherwise; being liable to fellow workers who suffer from their negli. gence or recklessness in employing men who have no skill, masters are not less liable to strangers ().

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

If a

(6) Wilson v. Merry (1868), L. R. do his work, or assist him therein, 1 S. & D. 326.

master the master is liable for an injury negligently suffered a volunteer, who resulting from such person's acts was incompetent to engage in his (Wood, 588). No doubt, in Booth work, and some one was thereby in- v. Mister (1835), 7 C. & P. 66, jured, no doubt the master would be Lord Abinger ruled in an action for liable. In Wanstall v. Pooley (1841), injuries by the driver of a cart6 C. & F. 910, n., the Queen's Bench the evidence being that the defenddecided that a corn-factor, whose ant's servant was in the cart, but business was managed in his absence that a person not his servant was by his sister, was liable for the driving-that it was the same as if the negligence of a tipsy servant, whom defendant's servant had driven. But she had sent with corn to a customer. he reserved the point, and it was See also Wheatley v. Patrick (1837), never argued. In Althorf v. Wolfe, 8 3 M. & W. 650. In his Leading Sm. N. Y. 355, the defendant had set Cases, p. 657, Mr. Bigelow observes his servant to shovel snow and ice off that "a servant who merely bires the roof of a house. The servant labourers for the performance of the procured the assistance of A. B. master's work is not in the situation was injured by the fall of the ice ; of a sub-contractor, and cannot be it did not appear whether the held liable for damages caused by ice was thrown by the servant or A. ; the negligence of such labourers.” the defendant held responsible (two He thinks an action would lie against judges dissenting). One of the judges the master; Addison, Torts, 101 based his decision on the ground that (5th ed.); Stone v. Cartwright (1795), the servant was entitled to procure aid. 6 T. R. 411 ; Wilson v. Peto (1821), It is submitted that the point ought 6 Moore, 47. It in fact, to turn on the question whether been broadly laid down that, if a was acting within the scope of his servant employs another person to authority in employing A.


a man

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, 8. 21, was beld to be properly indicted for selling bread which contained so much alum as made it injurious to bealth (<7). 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

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" je).

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(9), decided in 1799, Lord Kenyon ruled that the proprietor of a newspaper was answer

(e) 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.

(9) 3 Esp. 21; also R. v. Gutch (1829), Mood and Mol. 432.


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(1).

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

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(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
L. J. Q. B. 113 ; 39 L. T. 536.


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 "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 be or his servants connived at what was going on. This interpretation was adopted in Redgate v. Haynes (I). Looking to the variety of the decisions collected below, all that can be said is that there is a primâ 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.

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(i) Vullens v. Collins : see note (?). (*) Ditto.

(l) 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. Dicon (1814), 4 Camp. 12; 3 M. & S. 11; see note (d). A.-G. v. Sidon (1830), 1 C. & J. 220 ; 1 Tyr. 41. (Dealer in tobacco convicted of harbouring and concealing tobacco, which was, in fact, concealed by his kervant. Adrocate-Gencral v. Grant (1853), 15 T. 980. (Clerk to distiller sold a cask of whisky to one who had no licence to sell spirits ; xent it to the purchaser with permitobtained 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, (. 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 y. Wynne (1863), 15 C. B. N. S. 3; 32 L. J. M. C. 241. (See Mines Regulation Act, 35 & 36 Vict. c. 76, s. 51 & 52.) Scarle 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.) Coré 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 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, 8. 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. Davics (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


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 carton were doing.) MASTER NOT LIABLE. highway by a servant einployed to -Harrison v. Leaper (1862), 5 L. T. deliver beer, for which orders had N. S. 640. (Owner of a steam thresh- not previously been given at the ing machine not liable when his brewery ; no part of the duty of the servant put it, without his master's servant to sell beer ; no evidence of orders and contrary to the High- servant's knowledge.) Dickenson v. way Act, too near the road.) Copley Fletcher (1873), L. R. 9 C. P. 1; v. Burton (1870), 39 L. J. M. C. 141. 43 L. J. M. C. 25. (See Mines (A. kept a refreshment room, and Regulation Act, 23 & 24 Vict. c. 151, had a notice as to penalties incurred ss. 10 & 22.) Baker v. Carter (1878), for supplying?refreshments to persons L. R. 3 Ex. D. 132. (See Coal Mines not travellers during prohibited Regulation Act, 1872, s. 51.) Under hours; his servant neglected to ques. the Wine and Beer House Acts, 1869 tion certain strangers ; “Gross negli- and 1870 (32 & 33 Vict. c. 27, s. 12, gence or want of precaution in this and 33 & 34 Vict. c. 29, S. 15), matter would be evidence of guilt, masters are liable for acts of serbut there is nothing of the sort here," vants.) See also Hearne v. Garton Willes, J.) Nichols v. Hall (1873), (1859), 28 L. J. M. C. 216 ; R. v. L. R. 8 C. P. 322. (To convict a Bishop (1880), E. R. 5 Q. B. D. person of an offence under order made

259. in virtue of Contagious Diseases (m) (1834), 6 C. & P. 292. See (Animal) Act, knowledge that animal also R. v. Stephen (1866), L. R. 1 is diseased, necessary.) R. v. Hand- Q. B. 702. (Owner of works carried lcy (1864), 9 L. T. N. S. 827. (To on by his agents, indictable for causing sustain conviction under 5 & 6 Vict. nuisance by depositing rubbish in a c. 99, ss. 8 & 13, for employment of public navigable river, though the females in mines, knowledge or defendant had prohibited the workacquiescence must be proved.) R. men from so depositing the rubbish.) v. Gilroys (1866), 4 R. (3rd series)

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