Perhaps, too, they are justified by the fact that proceedings for nuisances are in substance, though not in form, civil.

Under this class of cases may be ranged those of which Gregory v. Piper (n) is a type. That was a case in which a servant, though careful and skilful, could not carry out the orders of his master without doing the mischief which was complained of. A servant was ordered to lay down a quantity of rubbish near the plaintiff's wall and gates— which could not be done without some of the rubbish touching the wall or gates; the defendant was made answerable for the inevitable or natural consequences of his instructions.

Innkeepers are at Common Law liable to their guests for loss of luggage, &c., caused by the negligence or larceny of their servants (o). But it is an answer to show that the guest has been guilty of gross negligence which has contributed to his loss (p). When a guest at an inn went to bed leaving his door ajar, and some one entered in the night and stole money from the pockets of his trousers which he had left on a chair, it was held that the proper question for a jury, was whether the loss would have occurred " if the guest had used the ordinary care that a prudent man may be reasonably expected to have taken under the circumstances" (q). The 27 & 28 Vict. c. 41, s. 1, limits the liability of an innkeeper to £30, except when the goods or property shall have been lost, stolen, or injured through the wilful act, default, or neglect of the innkeeper or any servant in his employ, or shall have been deposited with the innkeeper expressly for safe custody (?).

At Common Law common carriers are liable not only for the negligence but also for the frauds and larceny of their

(a) (1829), 9 B. & C. 591.

(0) Kent v. Shuckard (1831), 2 B. & Ad. 803.

(p) Calye's Case, 8 Rep. 32 a.; Richmond v. Smith (1828), 8 B. & C. 9.

(g) Cashill v. Wright (1856), 6 E. & B. 891; 2 Jur. N. S. 1072.

(r) Oppenheim v. White Lion Hotel

Co. (1871), L. R. 6 C. P. 515; 40 L. J. C. P. 93; 25 L. T. 93. See Dixon v. Birch (1873), L. R. 8 Ex. 135; 42 L. J. Ex. 135; 28 L. T. 360; 21 W. R. 443. (Salaried manager not innkeeper.) See as to defects in notice, Spice v. Bacon (1877), L. R. 2 Ex. D. 463; 46 L. J. Q. B. 713; 36 L. T. 896; 25 W. R. 840.

servants (s). Though their liability for felony on the part of their servants has been disputed, it follows from the fact of their being insurers. The 11 Geo. IV. & 1 Will. IV. c. 68, s. 8, expressly says, "nothing in this Act shall be deemed to protect any mail contractor, stage coach proprietor, or other common carrier for hire, from liability to answer for loss or injury to any goods or articles whatsoever arising from the felonious acts of any coachman, guard, bookkeeper, porter, or other servant in his or their employ, nor to protect any such coachman, guard, bookkeeper, or other servant, from liability for any loss or injury occasioned by his or their own personal neglect or misconduct (t).”

A master is answerable for the negligence or other tortious conduct of his servant in doing the class of acts which he was ordered or authorised to do.

In dealing with cases of negligence or other misconduct on the part of servants coming within this category, the law has pursued a middle course. It would, on the one hand, be wholly unreasonable to hold a master answerable for acts of his servants, the connection of which with their service was fortuitous, or exceedingly remote. No prudent man would venture to employ another if such were an incident of the contract of hiring and service. On the other hand, the responsibility of masters would be slight, the remedies of injured persons would be worth little, if a master were liable only for acts which he had expressly or by implication ordered. Between these two extremes, a line has been drawn; and probably the exact character of the employer's responsibility cannot be more accurately defined than it is by Willes, J., in words frequently quoted

(s) Brown on Law of Carriers,

p. 58.

(t) As to who are servants, see Machu v. London & South-Western By. Co. (1848), 2 Ex. 415; 12 Jur. 501; 17 L. J. Ex. 271; and Way v. Great Eastern Ry. Co., L. R. 1 Q. B.

D. 692. As to what will be evidence of stealing by servant, see Great Western Ry. Co. v. Rimell (1856), 18 C. B. 575; and McQueen v. Great Western Ry. Co. (1875), L. R. 10 Q. B. 569; 44 L. J. Q. B. 130.

with judicial approval. "He (the employer) has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to place him in " (u). Servants are liable to err and to abuse their position. Masters must take the risk of mistakes; they will not be heard to say, "I told my coachman to drive slowly; I am not answerable if he drove too fast." A groom who was riding his master's horse, and whe was desirous of overtaking his master, spurred it recklessly as he passed a waggon; the horse kicked and struck the waggoner (x); the master was liable for this reckless act. A coal-merchant sends his carman to deliver coals at the house of a customer; the carman allows the coal-hole in the pavement to be open and unguarded; a passer-by, falling into the opening, is hurt; the coal-merchant is responsible (y). A servant negligently leaves a horse and cart in the street; a passer-by strikes the horse; an accident occurs; the master is liable (2). So where a person was induced to continue to supply oats on credit to a customer of a bank on the strength of the representation of the manager, who fraudulently concealed the fact that a certain guarantee must be of no value, the bank was held answerable for his fraud (a).

It matters not what were the instructions given to the servant as to the manner in which he ought to do his duty; it matters not that a servant has abused his authority, exceeded or deviated from his instructions; it will be no defence in proceedings against the master that his servant has done wrongfully that which he was ordered to do properly. Thus it is no answer in an action against a company for infringement of a patent that its servants acted against

(u) Barwick V. English Joint Stock Co. (1867), L. R. 2 Ex. 259; 36 L. J. Ex. 147.

(x) North v. Smith (1861), 4 L. T. N. S. 407; 10 C. B. N. S. 572.

(y) Whiteley v. Pepper (1877), L.

R. 2 Q. B. D. 276.

(z) Illidge v. Goodwin (1831), 5 C. & P. 190.

(a) Barwick V. English Joint Stock Co., see note (u).

the express orders of the directors (b). It is immaterial, except so far as it helps to define the servant's duties, that he received precise instructions or that he was directed to be careful. The maxim respondeat superior would be nullified if an employer could escape liability by merely enjoining care or caution. In short, it is the nature of the employment and not that of the particular instructions which determines the master's liability. Whatever arrangement he makes with his servants, the law will hold that "there is an implied authority to do all those things that are necessary for the protection of the property entrusted to a person, or for fulfilling the duty which a person has to perform " (c). This was strikingly exemplified in the case of Limpus v. General Omnibus Co. (d), to which reference has already been made.

The defendants' drivers had printed instructions “not on any account to race with or obstruct another omnibus, or hinder or annoy the driver or conductor thereof in his business." A driver in the service of the defendants drove his omnibus across the road in front of a rival omnibus and overturned it. "I pulled across him," said the driver, "to keep him from passing me, to serve him as he had served me.' Mr. Justice Wightman thought the defendants not liable, the act being wholly wilful and unjustifiable on the part of the servant, and quite beyond the scope of his employment. But the rest of the Court was of opinion that the act having been done while the servant was acting in the course of his master's service and for his benefit, the master was liable. Speaking of the instructions given to the driver, Mr. Justice Willes observed, "I beg to say, in my opinion those instructions were perfectly immaterial. If they were disregarded, the law casts upon the master the liability for the acts of

(b) Betts v. De Vitre (1868), L. R. 3 Ch. 441; and compare Stevens v. Woodward (1881), L. R. 6 Q. B. D. 318.

(c) Blackburn, J., in Allen v. London & South Western Ry. Co. (1870), L. R. 6 Q. B., p. 69; see

Limpus v. General Omnibus Co. (1862), 32 L. J. Ex. 35; 1 H. & C. 526; Bayley v. Manchester, Sheffield, and Lincoln Ry. Co. (1873), L. R. 8 C. P. 148, 472.

(d) See last note.

his servant in the course of his employment, and the law is not so futile as to allow the master, by giving secret instructions to a servant, to set aside his own liability. I hold it to be perfectly immaterial that the master directed the servant not to do the act which he did. As well might it be said that if a master employing a servant told him that he should never break the law, he might thus absolve himself from all liability for any act of his servant, though in the course of the employment."

It is a consequence of the same principle that a master will be answerable for things done by a servant if they be performed in an emergency, and if they be usually performed by such servants. Thus, in Goff v. Great Northern Railway Company (e), the defendants were found liable in an action for false imprisonment brought by a passenger who had been given into custody by a superintendent of the line, on a charge of travelling without a ticket with intent to avoid payment. The question in each case appears to be, does the servant represent the master? And it will be assumed that the former has the powers which, looking to the ordinary course of business and general usage, naturally belong to one in his position.

Speaking of this class of cases, in The Bank of New South Wales v. Owston (ƒ), Sir Montague Smith says, "the result of the decisions in all these cases is, that the authority to arrest offenders was only implied where the duties which the officer was employed to discharge could not be efficiently performed for the benefit of his employer, unless he had the power to apprehend offenders promptly on the spot; though it was suggested that possibly a like authority might be implied in the supposed cases of a servant in charge of his master's property arresting a man who he had reason to believe was attempting to steal, or had actually stolen it. In the latter of these

(e) (1861) 30 L. J. Q. B. 148; Giles V. Taff Vale Ry. Co. (1852), 2 E. & B. 882; and compare Poulton v. London and South-Western Ry. Co.

(1867), L. R. 2 Q. B. 534.

(f) (1879), L. R. 4 App. 270; 48 L. J. P. C. 25; 40 L. T. N. S. 500.