servant's negligence if they might have been avoided by reasonable care on the part of the person injured.

What constitutes such contributory negligence as will disentitle a plaintiff to recover is a question which does not belong exclusively to the Law of Master and Servant, and it need not be here discussed (t).

APPENDIX A.

It is sometimes said that the present law as to the liability of a master for the torts of his servants is a relic of the time when services were performed, as a rule, by slaves or villeins who were the property of their masters, and for whose acts they were naturally held responsible. This plausible view is not borne out by the authorities. No clear trace of the modern doctrine is to be found in early authorities, such as Bracton. One of the few passages in his treatise bearing on the subject is the following (de Corona, f. 158), where, discussing wrongs committed by servants, he puts this case: But what if the servant of any one, in the absence of his lord, has seized the cattle of any tenant of his lord, and the tenant himself complains concerning the servant that he has seized his cattle unjustly, and detained them against bail and surety, and that servant has called the Court of his lord to warrant, and the Court has warranted to him concerning the service? The servant shall be released and the Court shall answer for his own act. But cannot the Court answer without the lord, when the service touches the lord himself? Yes, so that the judgment be amended. But if the cattle be seized without a judgment of the Court, and have been claimed by the lord himself when he was present, and he himself has refused them on bail and not surety, each shall be liable, as it appears, the one for the seizure and the other for the refusal of release. And although his lord himself has avowed the seizure of his servant, he does not acquit the servant, but he charges himself, and each is liable for the act of the servant, the servant because he seized it, and the lord doubly, because he avows the act of his servant, and because he refuses (the release of the thing seized)." "Likewise let it be, that nothing has been done by the Court, nor by the lord of the Court, but only by the

(t) Lax v. Darlington (1879), L. R. 5 Ex. D. 28; 48 L. J. Q. B. 143; 49 L. J. Ex. 105; Ellis v. London

& South Western Ry. Co. (1857), 2 H. & N. 424; 26 L. J. Ex. 349,

servant, as if the servant without the lord or without the Court, has levied a tax upon the tenants of his lord as villeins who are free, or who say that they are perchance, when they are serfs, and afterwards, when he has of his own authority made a distress, and the cattle upon the complaint of the tenant have been released by the viscount upon bail and surety, and a complaint has been made only respecting the servant without the lord, it is asked whether the servant can or ought to answer without the lord, and to bring the case to judgment without him? In which case, it will have to be inquired from the lord, whether he will avow the act of his servants or not, but if not, then the lord may amend it, but if he has avowed, or not amended it, he makes the injury his own, if there has been any injury." Neither in that passage nor any other, as far as I know, in Bracton, is there anything to show that a master was regarded or liable for the conduct of his villein when acting without orders. Apparently the master was liable for the acts of his villeins when he had ratified them, or what is the same, had availed himself of what was done or refused to release what had been seized by them. I am not aware of any case in the Year Books, or any passage in Plowden's Reports, Rastell, or Fitzherbert, which clearly lays down the doctrine now accepted. No doubt, instances are to be found in which actions were brought (for example, Bealieu v. Finglam, 2 H. IV., fol. 18, pl. 6), against masters for the acts of their servants on a custom of the realm. Thus a person was held answerable for the spread of fire when it was due to his guest or servant: Cowell's Institutes, 207, and actions on the case lay against innkeepers for the loss of goods by their servants. That the law was not understood as it is now will be seen from the following citations from Rolle's Abridg. Action on Case, 95: "If a servant, who is my merchant, sells an unsound horse or other chattel at a fair to a man, no action lies against the master for the deceit, for he did not command the servant to sell this to any one in particular:" 9 Hen. VI., 53.

Other authorities might be cited to show that a master was not supposed to be liable if a servant abused his authority. Thus Popham, C. J., lays it down in Waltham v. Mulgar, Moore, 776 (3 James I.), that "where a master sends his servant to do an unlawful act he shall answer for him if he made a mistake in doing the act. But where he sent him to do a lawful act as here to take the goods of the enemies of the king, and he takes the goods of a friend, the master shall not answer. If a master send his servant to market to buy or sell, and he rob or kill by the way, the master shall not answer, but if he sent him to beat one, and he kill or mistake the person and kill another, the master is a murderer." Dodderidge argued that the master was answerable in all public matters. In this case the question was whether the owner of a vessel with letters of marque to seize Spanish ships was responsible to the subjects of a friendly State whose ship had been wrongfully taken. It does not appear to have been contended, as of course would be done in such circumstances in the present day, that a master as a general rule was liable for the acts of his servants in their employment. The sole contention was that the master was liable in all public matters. As late as the time of Charles II. the modern doctrine was virtually denied in Kingston v. Booth (1683), Skinner, 228, where three justices of the King's Bench laid down the following rule :-"If 1 command my servant to do what is lawful, and he misbehave himself, or do more, I shall not answer for my servant, but my servant for him

self, for that it was his own act; otherwise it was in the power of every servant to subject his master to what actions or penalties he pleased. Thirdly, if I command my servant to do a lawful act, as in this case, to pull down a little wooden house (wherein the plaintiff was and would not come out, and which was carried upon wheels into the house to trick the defendant out of possession) and bid them take care they hurt not the plaintiff; if in this doing my servant wound the plaintiff, in trespass and assault of wounding brought against me, I may plead 'not guilty,' and give this in evidence, for that I was not guilty of the wounding; and the pulling down the house was a lawful act."

The Doctor and Student (published 1518), at p. 237, recognises the distinction between sale to a particular person and sale generally. See also Noy's Maxims (published 1641), where it is said at p. 95, c. 44, "If a servant keeps his master's fire negligently, an action lies against the master; otherwise, if he carry it negligently in the street. If I command my servant to distrain, and he ride on the horse taken for the distress, he shall be punished, not I. If a man command his servant to sell a thing which is defective generally to whom he can sell it, deceit lies not against him; otherwise if he bid him sell it to such a man, it does." The doctrine stated in the text is usually said to have been first laid down in Michael v. Alestree, Lev. (1676), 172, 3 Keb. 650, an action on the case against a master and servant for bringing horses to train in Lincoln's Inn Fields, whereby the plaintiff was injured. Judgment was given for the plaintiff. "It shall be intended the master sent the servant to train the horses there." In the report in Ventris (i. 295), no mention is made of this point or indeed of the action being against the master, and in the report in Keble the master's liability is apparently justified by the fact that he ordered the horses to be brought to an open public place. The modern doctrine was more clearly affirmed by Holt, C. J., in Turberville v. Stamp, Comb. 459, in 1698, decided only a few years after Kingston v. Booth, already mentioned-which was an action against a person for allowing fire to extend beyond his close. Holt, C. J., observed, "Though I am not bound by the act of a stranger in any case, yet if my servant doth anything prejudicial to another, it shall bind me, where it may be presumed that he acts by my authority, being about my business." The same view was taken in Middleton v. Fowler (1699), 1 Salk. 282. (Nisi Prius, coram Holt, C.J.) This was an action on the case against defendants, masters of a stage coach. A trunk was delivered to their coachman; it was lost out of the coachman's possession. It seems that no money was paid to the defendants for carrying the trunk; Holt, C. J., held that an action did not lie, and the plaintiff was nonsuited. He thus laid down the rule: "no master is chargeable with the acts of his servant but when he acts in execution of the authority given by his master, and then the act of the servant is the act of the master." See also Jones v. Hart (1699), 2 Salk. 441; L. Ray. 736 (a pawnbroker's servant took a pawn; the pawner tendered the money to the servant, who said he had lost the goods; held by Holt, C. J., that action for trover lay against the master); Hern v. Nichols, Holt, 46.

For an account of the Roman law as to liabilities of masters, see Die Haftung für Fremde Culpa nach Römische Recht, von Dr. P. F. Von Wyss; Pothier, Oblig. 121; M. Sourdat's Traité de la Responsabilité.

The variety of reasons given for the existence of this liability is very

22

surprising. (1.) The servant is the agent of his employer, and the liability of the latter is but an instance of the doctrine Qui facit per alium facit per se. Alderson, B., in Hutchinson v. The York, Newcastle, and Berwick Ry. Co., 5 Ex. 343; Lord Cranworth in Bartonshill Coal Co. v. Reid, 3 Macq. 266. This reason scarcely accounts for the liability of masters for acts which they have forbidden and in circumstances in which an action would lie in case, but not trespass. (2.) "The reason that I am liable," says Lord Brougham in Duncan v. Findlater, 6 C. & F. 910, "is this, that by employing him (the servant) I set the whole thing in motion, and what he does, being done for my benefit and under my direction, I am responsible for the consequences and doing it "-a reason which does not seem to apply to work not dangerous in itself, and which would justify imposing responsibility upon one who employed a contractor equally with one who employed a servant. See Best, C. J., in Hall v. Smith, 2 Bing. 160. (3.) "There ought to be a remedy against some person capable of paying damages to those injured: " Willes, J., in Limpus v. General Omnibus Co. (4.) "He (the master) is liable for an injury done to a stranger by his servant acting within the scope of the latter's authority, because the stranger has had no hand in the choice: Bramwell, B., in Swainson v. North-Eastern Ry. Co.; a reason which seems to have force only when a master has been guilty of some fault in the choice of his servants. (5.) Holt, C. J., in Hern v. Nichols, 1 Salk. 289, an action for deceit, puts the law on the ground that as somebody must suffer, it is but right the person who employed the deceiver should do so. (6.) "As in strictness every body ought to transact his affairs, and it is by the favour and indulgence of the law that he can delegate the power of acting for him to another, it is highly reasonable that he should answer for such substitute, at least civiliter, and that his acts, being pursuant to the authority given him, should be deemed acts of the master: " Bacon's Abridgment, Master and Servant. (7.) Bentham, in his Principles of Penal Law (vol. i. 383 of Works), puts the master's responsibility upon the following grounds: "The obligation imposed upon the master acts as a punishment, and diminishes the chances of similar misfortunes. He is interested in knowing the character and watching over the conduct of them for whom he is answerable. The law makes him an inspector of police, a domestic magistrate, by rendering him answerable for their imprudence." This seems the ground on which the rule of law can be justified.

APPENDIX B.

The following are the chief cases on the subject:—

LIABILITY.

Goodman v. Kennell (1828), 1 M. & P. 241; 3 C. & P. 167. (Person occasionally employed by defendant as his servant took the horse of another when on defendant's

NO LIABILITY.

McManus v. Crickett (1800), 1 East, 106. (See p. 286.)

Croft v. Alison (1821), 4 B. & Ald. 590. (See p. 286.)

Mackenzie v. McLeod (1834), 10