v.

PRYOR.

1842. the line, when the man on the wheel-horse of the carriage again called out, "Go on, you are all right there." M'LAUGHLIN The postilion on the leader again pushed his horses forward, and the trace of the wheel horse caught the wheel of Mason's gig and pulled it over, and both the plaintiff and Mason fell out. Some one in the carriage called out, "Go on, go on!" but Mason got up, and laying hold of the horses' heads, stopped them; telling the party in the carriage that they should not move on; for he was determined to take the horses back to the Cock at Sutton, until he knew to whom they belonged. Several of the parties then got out of the carriage, and the defendant said to Mason, "If you do that, in what an awkward predicament you will place us -we can neither get to the races nor get home." After some further discussion, he added, "I will settle it with you here now; I will give you money to any amount; tell me what you want, you shall have it." Mason refused to settle the matter then, and at last the defendant gave his card to him, saying that he would be answerable for all that had occurred, if he would allow him to proceed. The carriage then drove on. Some days afterwards Mason called on the defendant at his chambers, and told him he came about the damage done to the chaise. The plaintiff said it should be repaired; he was in duty bound to repair it, and that he would send a man to look at it. He did not do so however, and Mason, having got it repaired, called again upon the defendant with the account, who said he would pay it, and was about to do so, when he added, "I shall not pay it now, for if I pay you this amount, Mr. M'Laughlin will expect me to pay whatever demand he may make upon me; you shall be paid it, but I shall not pay it now; I will settle Mr. M'Laughlin's affair before I settle yours." Some dispute then arose between the parties as to the accident, and the defend

ant said, "If you had quietly gone out of the line it would not have happened; If you had done that, I had intended to have pulled up and let you in again, in the front." He added, that the general way of going to races was to cut out and cut in, and get on in the best way one could. Mason then said to the defendant, “If you will give me up the proprietor of the horses and carriage, I will exonerate you from the repair of the chaise altogether;" but the defendant said he should give up no names,—he had made himself liable for the damage that had occurred. The plaintiff was very seriously injured by the upsetting of the gig, and had become permanently lame.

It was contended on the part of the defendant, on the authority of Laugher v. Pointer (a), and Quarman v. Burnett (b), that, not being the owner of the carriage and horses, he was not liable to the action. The Lord Chief Justice however ruled that those cases did not apply to an action of trespass, but reserved leave to the defendant to move to enter a nonsuit.

Evidence was called, on the part of the defendant, to shew that the defendant had called out to the postboys to let Mason's gig drive on before them; and that the gig had been driven against the horses of the carriage. The post-boy who rode the leaders on the occasion (the other one being absent from the country), stated that they had no orders to break into the line, that "nobody said any thing to them."

The Lord Chief Justice told the jury, that in order to find a verdict for the plaintiff, they must be satisfied that the accident arose from the carriage driving against the gig, and not from the gig driving against the carriage. The jury found a verdict for the plaintiff, damages 600%

(a) 5 B. & C. 547.; 8 D. & R. 556.

(b) 6 M. & W. 499.

1842.

M'LAUGHLIN

บ.

PRYOR.

1842.

Channell Serjt., having in Michaelmas term last, obtained a rule nisi to enter a nonsuit, pursuant to the M'LAUGHLIN leave reserved;

v.

PRYOR.

Talfourd Serjt. now shewed cause. It is submitted that the defendant is responsible for the injury done to the plaintiff. The defendant being on the box of the carriage, and having the opportunity of seeing what was passing, and possessing the power of controlling the postilions, must be held to have sanctioned them in their attempt to break the line of carriages; and if so, such sanction made him a trespasser. In point of fact, the evidence at the trial shewed that the parties on the box were exercising a control over the post-boys, and giving them directions. In Gregory v. Piper (a), a master ordered a servant to lay down rubbish near his neighbour's wall, but so as not to touch it. The servant used ordinary care in executing the orders of his master, but some of the rubbish naturally ran against the wall. It was held that trespass might be maintained against the master, he being liable in that action for any act done by his servant in the course of executing his orders. (b) So here, assuming that the defendant sanctioned the act of the postilions in attempting to break the line of carriages, the upsetting of the gig containing the plaintiff was the natural consequence of such attempt, and the defendant is responsible to the plaintiff for the accident which occurred.

The case of Chandler v. Broughton (c), shews that a party may be liable in trespass, although he may have taken no direct part in the act which is complained of. There, the defendant was sitting by the side of his servant, and the latter was driving. That case

(a) 9 B. & C.591., 4 Mann. & Ryl, 500.

(b) Vide tamen Reynolds v. Clarks, 1 Stra. 634, Fortescue,

212., 8 Mod. 272., 4 M. & R. 502. (a).

(c) 3 Tyrwh. 220., 1 C. & M. 29.

1842.

V.

PRYOR.

is in substance the same as the present. In considering the question of liability, the defendant's conduct must not be overlooked. After what passed subse- M'LAUGHLIN quently to the accident, the defendant cannot say that he did not sanction the post-boys in what they did. When an individual comes forward and gives his card, and screens other parties, the court has a right to infer that what took place was with his sanction, if the facts of the case will bear that construction. The defendant, both from the control he was evidently exercising over the postilions at the time of the accident and from his subsequent conduct, is clearly liable in the present action.

Channell Serjt., in support of the rule. The plaintiff here charges the defendant as an actor in driving the carriage against the gig; and the question raised by the plea of not guilty is, whether he was so. The defendant has also pleaded that there was negligence on the part of the plaintiff, and if that were so the defendant is not liable in trespass. (a) It is not disputed that the carriage was hired; that the horses were post-horses; and that the plaintiff was not actually driving, though he was sitting on the box. The case, therefore, falls within the principle of Laugher v. Pointer (b) and Quarman v. Burnett (c). It is true that those actions were in case ; but the main point for consideration is the degree of responsibility which attaches to the hirer of a carriage or horses under circumstances like the present; and as to that, it can make no difference whether the form of the

action be trespass or case. The facts in Quarman v. Burnett (c) were peculiarly strong to raise the inference that the coachman, by whose negligence the accident hap

(a) Vide Marriott v. Stanley, ante, Vol. I. p. 568.

(b) 5 B. & C. 547.; 8 D.

& R. 556.

(c) 6 M. & W. 499.

v.

PRYOR.

1842. pened, was the servant of the defendants; he was the party regularly employed; he was paid a regular sum M'LAUGHLIN for each drive, according to express agreement; he was sometimes taken by the defendants into the country for weeks together, and was then paid a regular sum per week; and he wore a livery of theirs, for which he had been measured; but he was held not to be their servant so as to render them liable for his negligence. The facts in the present case are not nearly so strong to shew that the postilions were in this defendant's service. In Stables v. Eley (a), the defendant had been in partnership with the person who was the actual owner of the cart at the time the accident happened, and he allowed his name still to remain on the cart; and Abbott C. J. ruled that by reason of his then holding himself out to the world as the owner of the cart, and the master of the driver of it, he was responsible for the negligence of such driver. It may be doubted, perhaps, whether that case is quite reconcilable with Quarman v. Burnett ; but at any rate it is very distinguishable from the present case; for there was nothing done here which held out to the world that the postilions were the servants of the party in the carriage any more than in any other case of persons hiring post-horses. In Chandler v. Broughton (b), the horse and gig were the defendant's own property, and the driver is expressly stated to have been his servant. That case therefore stands upon a very different footing from the present, and is quite consistent with Quarman v. Burnett.

A trespass may either be wilful in fact, as where a party enters upon the land of another after notice, or wilful in law. In the former case it is easy to ascertain who are co-trepassers, being aiders and abettors of the principal. But in a case where the trespass arises from

(a) 1 C. & P. 614. (b) 1 C. &. M. 29.; 3 Tyrwh. 220.