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cases it is part of the supposition that the property might be got back by the arrest; but in such a case, the time, place, and opportunity of consulting the employer before acting, would be material circumstances to be considered in determining the question of authority.” He added, “ an authority to be exercised only in cases of emergency, and derived from the exigency of the occasion, is evidently a limited one, and before it can arise, a state of facts must exist which shows that such exigency is present, or from which it might be reasonably supposed to be present. If a general authority is proved, it is enough to show, commonly, that the agent was acting in what he did, on behalf of his principal. But in the case of such a limited authority as that referred to, the question whether the emergency existed, or might reasonably have been supposed to exist, arises for decision ; and that question raises issues beyond the mere facts that the agent acted on behalf of and in the supposed interest of the principal. Were it otherwise, the special authority would be equivalent to a general one.”

In some cases the Courts appear to have laid down the rule that, although a master is answerable for the consequences of a lawful act negligently done by his servants, he is not answer. able for the consequences of an unlawful act done wilfully. In Lyons v. Martin (9), a servant who was authorised to merely distrain cattle damage feasant, drove a horse from the highway into the master's close and there impounded it.

In Bolingbroke v. Local Board of Swindon (h), a person to whom the defendants had entrusted complete powers for the management of a sewage farm, wrongfully went upon the plaintiff's farm and did various acts in order to facilitate the How of drainage along a ditch which separated the plaintiff's from the defendants' land. In both these cases, the masters

(g) (1838), 8 A. & E. 512. See also Gordon v. Rolt (1849), 4 Ex. 365 ; 7 D. & L. 87 ; 18 L. J. Ex. 432. (This turned on a point of pleading -the distinction between case and trespass—and it is sometimes understood to determine more than it actually did.) In favour of Lyons v.

Marlin may be cited Waldie v. Duke of Roxburghe (1st March, 1822), 1 S. 367; on appeal (10th February, 1825), 1 W. S. 1, which decided that a person was not liable for a breach of an interdict, which was committed with his knowledge by a servant.

(H) (1874), L. R. 9 C. P. 575.

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were exonerated from responsibility. These decisions or, at all events, certain expressions in the judgments are, it is submitted, not reconcilable with recognized authorities.

In Seymour v. Greenwood (i), and Bayley v. Manchester, Sheffield, and Lincolnshire Ry. Co. (k), the conduct of the defendants' servants in forcibly removing passengers was unlawful. All frauds committed by servants in the course of their business are unlawful. Yet employers are answerable for such conduct. No doubt, in Lyons v. Martin, Lord Denman and Patteson, J., laid stress upon the fact that the conduct of the servant was unlawful in itself. But these dictawhich were questioned by Crompton, J., in Limpus v. General Omnibus Co. (1)—were probably unnecessary for the decision ; the conduct of the servant not being incidental to his duties. The fact that an act is wilful or unlawful may be important in determining whether it is within the scope of employment; but it is submitted that the circumstance does not necessarily absolve the master.

Another test, often suggested, is that, in order to render his master liable, the conduct of the servant must be to his master's benefit. Generally, no doubt, there must be a concurrence of two things in order to make a master liable—the act must be done in the course of his service and for his benefit (m). If a servant were, without the knowledge of his employer, to take his master's carriage and horse and go on business of his own, and damage were thereby to result, an action would not lie against the master. So, too, if a footman were, as he conceived in the interest of his employer, to drive his carriage, the latter would not be answerable for the consequences. But cases are conceivable in which, without any intention on the part of the servant to benefit the master, he would incur liability. A., for example, is employed to warn


(i) (1861), 30 L. J. Ex. 189 and 327 ; 7 H, & N.

() (1873), L. R. 8 C. P. 143.

() (1862), 32 L. J. Ex. 34 ; 1 H. C. 526.

(m) Limpus v. Gencral Omnibus Co., 1 H. & C. at p. 540, referring to Huzzey v. Field, 2 C. M. & R. 432.

persons who go over a crossing near a sharp curve of the approach of a train. He forgets to do so, he falls asleep or gets drunk, and B. is run over; A.'s employers would be, it is conceived, answerable for misconduct certainly not intended to benefit them. It is different when the servant has ceased to act as a servant; when his conduct is no more a necessary or natural consequence of his employment than the act of any stranger; when he is doing that which any stranger might as naturally do; and, in short, when he acts as he does, not because he is a servant but because he is evil disposed.

A master will be liable for a servant's acts if the servant does what he was ordered to do in a roundabout way, or if, in carrying out his master's orders, he does incidentally something on his own behalf.

This class of cases, which approximate to those already named, turns on questions of degree ; and it is difficult to lay down a rule which will not include too much or too little. The last part of the above statement of the law may be too wide. A few illustrations will show the tendency of the decisions. In one instance (12), a cart driven by a servant of the defendant, knocked down and injured the plaintiff in the City of London. It was proved by the defendant that the business of the servants was to go from Burton Crescent Mews to Finchley, and that the spot at which the accident took place was out of the way. In summing up the case to the jury, Baron Parke left the question thus: “If the servants, being on their master's business, took a detour to call upon a friend, the master will be responsible. If you think the servants lent the cart to a person who was driving without the defendant's knowledge, he will not be responsible. Or, if you think that

(n) Joel v. Morison (1834), 6 C. & P. 501.

the young man who was driving took the cart surreptitiously, and was not at the time employed on his master's business, the defendant will not be liable. The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master's implied commands, when driving on his master's business, he will make his master liable ; but if he was going on a frolic of his own, without being at all on his master's business, the master will not be liable.” When a servant, contrary to his master's orders, went out of his way to deliver a parcel of his own, and in returning injured the plaintiff, the master was held liable (o). On the other hand, a master was not made answerable for the negligence of a servant who, having finished his business and returned home, started on a separate journey for a purpose of his own without his master's knowledge (P).

A master is not responsible for the acts of servants which are unconnected with and not incident to their service, and which are not done in the course of their employment.

Every act by a servant, as has already been stated, is not in law that of his master. He may be bent on his own private ends; he may be engaged on his own and not his master's business ; he may be acting wholly outside the scope of his duties ; he may cease to act in any way as a servant. His conduct may not pertain to or be a natural consequence of

(o) Sleath v. Wilson (1839), 9 C. & P. 607. Erskine, J., makes the question turn on whether or not the servant was “intrusted” with the control of the carriage, and his language is virtually repeated by Coleridge, C.J. ; see also note (p), infra.

(P) Mitchell v. Cressweller (1853), 13 C. B. 237 ; 22 L. J. C. P. 100 ;

Storcy v. Ashton (1869), L. R. 4 Q. B. 476 ; 38 L. J. Q. B. 223. In Rayner v. Mitchell (1877), L. R. 2 C. P. D. 357, a carman started, for a purpose wholly unconnected with his master's business, to deliver a coffin at the house of a relative, but, in the course of the journey, picked up two of his master's casks : held that the master was not liable.


his duties or of the confidence reposed in him (9). It would be wholly unjust to throw upon the employer the responsibility for acts done in these circumstances.

The two cases commonly quoted in illustration of this limitation are McManus v. Crickett (?) and Croft v. Alison (8). The evidence in the former case was that a servant of the defendant had wilfully driven a chariot against the plaintiff's chaise; and the Court held that an action of trespass did not lie against the master. In the latter, the facts were that the plaintiff's carriage became entangled with the defendant's through the negligence of the defendant's driver, and that the defendant's driver wantonly struck the plaintiff's horses with his whip, so that they started and injured the plaintiff's carriage. In these circumstances the defendant was held not liable. So, too, when a clerk to a firm of solicitors went contrary to orders into a lavatory intended exclusively for the use of one of the partners and allowed a tap to run, the

(9) In Angell and Ames, on Corporations, S. 388, the rule is thus expressed : “When a servant quits sight of the object for which he is employed, and, without having in view his regular duties, pursucs a course suggested by malice, he no longer acts in pursuance of the authority giren him. The dividing line is the wilfulness of the act; and there is no case where the principal has been made liable for a wil. ful trespass committed by a servant, because commanded and approved by a general agent.” The authors refer to Vanderbilt v. Richmond Turnpike Co., 2 Const. 479. This statement, which is often substantially repeated, is too wide.

(r) (1800), 1 East, 106.

(8) (1821), 4 B. & Ald. 590. The Court drew the following distinction: “If a servant driving a carriage, in order to effect sone purpose of his own, wantonly strike the horses of another person, and produce the accident, the master will not be liable. But if, in order to perform his master's orders, he strikes, but

injudiciously, and in order to extri. cate himself from a difficulty, that will be negligent and careless conduct, for which the master will be liable, being an act done in pursuance of the servant's employment." See also Lamb v. Palk (1840), 9 C. & P. 629. (A van standing at the door of A.'s shop from which goods were being removed. A.'s gig stood behind the van. B.'s coachman got off his box and laid hold of the vanhorse's head. A packing-case fell from the van and broke the shafts of the gig: held by Gurney, B., that B. was not liable, as the coachman was

not at the time acting in the service of B.) With McManus v. Crickett compare Dal. rymple v. McGill (1813), Home, 387. (A master not liable for act of seryant, who, without orders, took a horse of a neighbour, and rode it so hard that the horse was permanently injured.) These cases seem inconsistent with Limpus v. General Omnibus Co., ' and Page v. Defries (1866), 7 B. & S. 137.

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