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defendants were held not to be liable for the damage done to the premises of the plaintiff (t). The same conclusion was arrived at in William v. Jones (u), the facts of which were these : defendant's servant, a carpenter, was employed in making a signboard in plaintiff's shed. The carpenter, in lighting his pipe, negligently set fire to the shed. The master was not liable.

In Allen v. The London and South-Western Ry. Co. (b), a ticket clerk in the service of the defendants, erroneously suspecting that a person had attempted to rob the till, gave him into custody after the attempt. In an action for false imprisonment against the company, the plaintiff failed on the ground that the clerk had no authority to take steps to punish an offender. “ There is a marked distinction," said Blackburn, J., “between an act done for the purpose of protecting the property by preventing a felony or of recovering it back, and an act done for the purpose of punishing the offender for that which has already been done. There is no implied authority in a person having the custody of property to take such steps as he thinks fit to punish a person who he supposes has done something with reference to the property which he has not done. The act of punishing the offender is not anything done with reference to the property, it is done merely for the purpose of vindicating justice. . . . 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.' So in Edwards v. London and North-Western Ry. Co. (c), it

. was decided by the Court of Common Pleas that a foreman porter had not from his position implied authority to give into custody a person reasonably suspected of stealing the company's property, though the porter happened to be in charge of the station at the time. The facts of Walker v.

(0) Stevens v. Il'oodward (1881), L. R. 6 Q. B. D. 318.

(u) (1864-65), 3 H. & C. 602 ; 33 L. J. Ex. 297.

(b) (1870), R. Q. B. 65 ; 40 L. J. Q. B. 55 ; 19 W. R. 127.

(c) (1870), L. R. 5 C, P. 445.

South-Western Ry. Co.(d) show the fineness of the distinctions upon which the Courts proceed. It was decided that the defendants were not answerable for the act of their servant, a constable, in giving the plaintiff into custody on a charge of assaulting the defendants' servants after a struggle was over and when the plaintiff was walking quietly away. On the other hand, the Court thought it might be within the scope of the authority of a servant, who was a constable, to give into custody while a struggle was going on and before it was over, a person who, it was said, refused to quit the company's premises, or had assaulted the company's servants. In Moore v. Metropolitan Ry. Co. (e), the company were held liable for the act of an inspector of one of their stations who gave plaintiff into custody on a charge of fraud, on the ground that the defendants were empowered under sec. 104 of their Act to arrest persons committing frauds under sec. 103, and that it might be presumed, in the absence of evidence to the contrary, that the inspector as representative of the defendants had authority to arrest. All these cases are applications—though not very obvious or perhaps consistent-of the principle stated by Blackburn, J., in Allen v. London and South-Western Ry. Co. (f), that “there is

(d) (1870), L. R. 5 C. P. 640.

(C) (1872), L. R. 8 Q. B. 36 ; 42 L. J. Q. B. 23; 27 L. T. N. S. 579. See also Goti v. Great Northern Ry. Co. (1861), L, R. 2 Q. B. 584 ; Van den Eynde v. Ulster Ry. Co. (1871), 5 Ir. C. 328.

(f) Page 69. Many decisions state that the test is whether the servant has “authority.” This term is the source of much confusion. It means either (1) express authority given by a principal to an agent ; (2) conduct which would leave persons to believe an agreement was authorized by his principal; and (3) in regard to torts, conduct which is inci. dental to and somehow connected with the duties of the agent or servant. A newspaper proprietor is at Common Law liable, as bas been stated, for libels published by

the negligence of a servant, even if the servant has been expressly told not to publish the particular libellous matter. A banker is liable for a fraud of a cashier, which is committed in some matter connected with his duties, even though the fraud be contrary to the wishes of the banker. It is only by straining language that we can say in such cases that a person had implied authority to do that which he was expressly forbidden to do. See Bank of New South Wales v. Ouston, L. R. 5 Ap. 4. It is, in fact, basing the master's and employer's liability on a legal fiction, to make it turn on a question of anthority. The term has, no doubt, produced misconceptions. A whole class of dicta, now doubtful or overruled, may be traced to its use. A somewhat similar

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."


A master will be liable for the tortious acts of his servant when assuming to act for him if the master adopts or ratifies them.

The principle is thus stated in Wilson v. Tummon (g): “An act done for another by a person not assuming to act for himself but for such other person, though without any precedent authority whatever, becomes the act of the principal, if subsequently ratified by him, whether it be for bis detriment or advantage, and whether it be founded on a tort or a contract, to the same extent and with all the consequences which follow from the same act if done by his previous authority.”

The act must be done for and on behalf of the master (h). What is evidence of ratification is a question of fact. In order that ratification be proved, there must be a knowledge of the fact to be ratified and an intention to ratify.

Masters are liable for the frauds or other torts of their servants to the extent to which they are benefited thereby.

This is affirmed in many cases, and it is necessary to refer

question arose in trials for embezzlements by servants under 39 Geo. III. 6. 85. It was necessary to show that the servant had, “ by virtue of such employment,” received or taken into possession the chattel which he was charged with misappropriating. See as to decisions under this section, Pex v. Mellish (1805), P. & R. 80 ;

Rex v. Smith (1823), R. & R. 516 ;
Rex v. Beechey (1817), R. & R. 319.

(g) (1843), 6 Scott, N. R. p. 904. See Eastern Counties Ry. Co. v. Broom (1851), 6 Ex. 314; Roe v. Birkenhcad (1851), 21 L. J. Ex. 90 ; 7 Ex. 36.

(h) Wilson v. Barker (1833), 4 B. & Ad. 616.

here only to Lord Selborne's judgment in Houldsworth v. City of Glasgow Bank (i); and Lord Cranworth’s judg. ment in Addie v. The Western Bank of Scotland (k).

Companies are not liable for the acts of their servants if the acts are not such as the companies could be entitled to do.

Under this head fall several decisions, of which the most important is Poulton v. London and South-Western Ry. Co. (1). A station master demanded payment for carriage of a horse, arrested the plaintiff, who refused to pay, and kept him in custody for a time. The plaintiff brought an action for false imprisonment. The company had no power under their Act to arrest a person for non-payment of carriage of a horse, and the Court held that the action would not lie, on the ground, as stated by Blackburn, J., "that an act was done by the station master completely out of the scope of his authority, which there can be no possible ground for supposing the railway company authorised him to do, and a thing which could never be right on the part of the

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company to do."

Public officers under Government are not responsible for torts committed by their servants.

Thus in the well-known case of Lane v. Cotton (m), the Postmaster-General, it was held, incurred no responsibility for the loss of letters in the office by reason of the negligence of a servant; and in Whitfield v. Lord. Le

(i) L. R. 5 Ap. 317.

(k) L. R. 1 H. of L. (Sc.) 154 ; Mackay v. Commercial Bank of No Brunswick (1874), L. R. 5 P. C. 394.

(l) (1867), L. R. 2 Q. B. 534 and 540.

(in) 1 Lord Raym. 646 ; 12 Mod. 473.

Despenser (n), decided in 1778, it was held that case did not lie against the Postinaster-General for a bank note which was stolen by one of the sorters out of a letter put into the Post Office. The principles upon which a master or employer is held answerable for the acts of servants do not apply to the Crown. “If the master or employer is answerable upon the principle that qui facit per alium facit per se, this would not apply to the sovereign, who cannot be required to answer for his own personal acts. If it be said that the master is answerable for the negligence of his servant, because it may be considered to have arisen from his own misconduct or negligence in selecting or retaining a careless servant, that principle cannot apply to the sovereign, to whom negligence or misconduct cannot be imputed, and for which, if they occur in fact, the law affords no remedy” (o).

Sometimes the Legislature has expressly relieved Government officials from liability for the acts of their subordinates. See as to this, O'Grady v. Cardwell, in which the defendant, Secretary of State for War, was held not personally liable in an action for breach of contract entered into by him on behalf of the War Department (P).

This exemption does not extend, as was held in Sutton v. Clarke () and Hall v. Smith (r), and other cases, to trustees and other bodies which perform statutory duties, and the profits of which are appropriated to public purposes (8).

A master is not liable for injuries caused by his

(n) Cowper, 754 ; Nicholson v. Mounsey, 15 East, 384; see Story on Agency, 319.

(o) Canterbury v. Attorney-General (1843), 1 Phill. 306. (Petition of right against the Crown by the Speaker of House of Commons for loss of furniture, plate, pictures, by a fire alleged to have been caused by the negligence of servants of the

Commissioners of Woods and Forests.)
As to the liability of a sheriff for the
acts of a bailiff, see Wood y. Finnis
(1852), 7 Ex. 363.

(P) (1873), 21 W. R. 340.
(9) (1815), 1 Marsh. 429.
() (1824), 2 Bing. 156.

(s) Mersey Dock Trustees v. Gibbs (1866), L. R. 1 H. of L. 93 ; 35 L. J. Ex. 225.

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