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*318. The principal or master, then, being answerable for injuries occasioned by the negligence of those whom the law denomic [*262 a ] nates his servants, the only thing necessary is, to determine between which parties such a relationship subsists, and this is not unfrequently a matter of difficulty; for although the general rule is, that that party is liable from whom the act ultimately originates, yet its applicability fails in one casefor, where the person who does the injury (either in person or by his servant) exercises an independent employment, the party employing him is clearly not liable ;(t), as in the instance of a butcher who employs a drover, whose deputy does the mischief by his careless driving, (u) or of a builder, who contracts to make certain alterations in a club-house, iogether with the necessary gas fittings, and who employs a gas-fitter for the latter purpose under a sub-contract, through the negligence of whom, or of whose servants, plaintiff sustains an injury,(x)-in these cases the original contractor is not liable, for, between him and the person who does the injury, the relation of master and servant does not exist.(y)

319. But the general rule holds in the case of domestic servants, or such as are selected by the master, Wand appointed to perform any particular work, although not in his immediate employ or under his [ *262 b ] superintendence : as, for instance, if a man is the owner of a ship, he himself appoints the master, and he desires the master to appoint and select the crew; the crew thus become appointed by the owner, and are his servants for the management and government of the ship; and if any damage happens through their default, it is the same as if it happened through the immediate default of the owner himself.(2) And the same principle prevails in the case of the owner of a farm, who has it in his own hands, but does not personally interfere in the management, and the labourers on which are hired by a bailiff of his own appointment; or in that of the owner of a mine, the working of which is superintended by a steward or manager. In these and similar cases, the under-workmen are the immediate servants of the owner, who is consequently liable for their default in doing acts on account of their employer, and in their capacity of servants ;(a) and the remedy is either against the principal, or against the actual tort-feasors, or against both conjoined, but the intermediate agents are not liable.(6)

(t) Milligan v. Wedge, 12 A. & E. 742, cited and distinguished Martin v. Temperley, 4 Q. B. 309 ;* Burgess v. Gray, 1 C. B. 578.

(u) Milligan v. Wedge, 12 A. & E. 737.*

(2) Rapson v. Cubitt, 9 M. & W. 710, See Wilson v. Peto, 6 Moore, 47; Witte v. Hague, 2 D. & R. 33.

(y) Quarman v. Burnett, 6 M. & W. 509, 510; Burgess v. Gray, 1 C. B. 578; per Parke, B., Rapson v. Cubitt, supra. See the remarks on "Bash v. Steinman, 1 B. & P. 404, and Sly v. Edgley, 6 Esp. 6, in B. & C. 559, 560;b Per Le Blanc, J., Harris v. Baker, 4 M. & S. 29.

(2) Langher v. Pointer, 5 B. & C. 554;o Martin v. Temperley, 4 Q. B. 298. 311, 312,4 distinguishing Lucey v. Ingraham, 6 M. & W. 302, post, 267. See Dunford v. Trattles, 12 M. & W. 529.

(a) Laugher v. Pointer, 5 B. & C. 554;c Randleson v. Murray, 8 A. & E. 109. But the plaintiff will not be entitled to recover if he might “ by ordinary care have avoided the consequences of the defendant's negligence.” Davies v. Mann, 10 M. & W.548, 549; Bridge v. Grand Junction Railway Company, 3 M. & W.246; Holden v. Liverpool New Gas & Coke Company, C. P. East. T. April 16, 1846; ante, s. 298.

(b) 5 B. & C. 558 ;* Stone v. Cartwright, 6 T. R. 411; Bush v. Steinman, 1 Bos. & P. *Eng. Com. Law Reps. 40. "Id. 45. bId. 12. Id. 12. dId. 45. Id. 12. Id. 35.

[*263]

*320. Although, where several persons are concerned in a tres

pass or other tortious act, they are liable jointly or severally at the election of the party suing, yet the several liability arises out of the joint liability, and from the rule of law, that a party injured need not sue all who are guilty of the wrongful act, and two persons cannot be separately liable as principals, unless in cases where they would be jointly liable ;(c) as, in the instance of an attorney and client, who may be treated as joint tespassers for an illegal arrest effected by the attorney(d) or his agent:(e) and where an arrest is made under process, which is afterwards set aside for irregularity, the attorney in the suit is liable in trespass as well as the plaintiff;(8) but it seems that the goaler would not in such a case be liable, if the process issued out of a Court having competent jurisdiction ; for it is his duty to receive a prisoner,(h) as it is that of a pound-keeper to admit a distress, even though illegally taken ;(i) and therefore the party distraining is liable, and not the pound-keeper, unless it can be shewn that the latter transgressed the limits of his duty and assented to the trespass.(k)

*321. If the owner of a carriage hires horses of a stable-keeper [*264]

who provides a driver, through whose negligence an injury is done, the driver must be considered as the servant of the stable-keeper, or jobmaster, and the remedy must be against the latter,(?) unless there be special circumstances shewing an assent either express or implied to the tortious act by the party hiring the horses,(m) or shewing that such party had control over the servant, and was in fact dominus pro tempore.(n) principle applies if the servant and horses are borrowed for the day ;(0) but a person hiring or borrowing a carriage, and providing horses and servants, would be liable ;(P) and it seems that it is a question for the jury whether, under given circumstances, the servants were acting as the servants of the person hiring or of the owner (9)

322. So, where a ship is chartered for a voyage or for a definite period, it is always a question of faet under whose direction and control the vessel is at the time of the occurrence complained of; and this question must

*be solved by ascertaining whose are the crew, and by considering [*265]

whether the reasonable interpretation of the charter-party is, that

The same

404, per Erle, J., 1 C. B. 593, and n. (a). Matthews v. West London Waterworks Com. pany, 3 Camp. 403. See Wilson v. Peto, 6 Moore, 47.

(c) Per Littledale, J., 5 B. & C. 559.5 (d) Barker v. Braham, 3 Wils. 368. (e) Bates v. Pilling, 6 B. & C. 38.h (g) Codrington v. Lloyd, 8 A. & E. 449. See Sedley v. Sutherland, 3 Esp. N. P. C. 202, cited 8 A. & E. 453 ;i overruled, see p. 274. (a).

(h) Brandling v. Kent, i T. R. 60. 62; but see Aaron v. Alexander, 3 Camp. 35.
(i) Badkin v. Powell, Cowp. 476, cited, 1 T. R. 62.
(k) 1 Selw. N. P. 10th ed. 678, 679.

(1) Quarman v. Burnett, 6 M. & W.499.507, affirming the judgments of Abbott, C. J., and Littledale, J., Laugher v. Pointer, 5 B. & C. 547. See per Patteson, J., 8 A. & E. 839 ; Smith v. Lawrence, 2 Man. & Ry. 1 ;Sammell v. Wright, 5 Esp. N. P. C. 263 ; Hart y. Crowley, 12 A. & E. 378.n

(m) M‘Laughlin v. Pryor, 1 Car. & Marsh. 354;o S. C. 11 Law Journ., N. S., C. P. 169; 4 Scott, N, R. 655.

(0) See Hart y. Crowley, 12 A. & E. 378;" Taverner v. Little, 5 Bing. N. C. 678.
cp) Croft y. Alison, 4 B. & Ald. 590;P Scott v. Scott, 2 Stark. N, P. Č. 438.9
(9) Brady v. Giles, 1 Moo. & Rob. 494.

(n) Ib.

& Eng. Com. Law Reps. 12. Id. 13. Id. 35. Id. 12. 'Id. 35. "Id. 17. Id. 40.

"Id. 41. PId. 6. 91d. 3.

the owners meant to keep the control of the vessel in their own hands,(r) or to make the freighter the legal owner pro tempore ;(8) and, perhaps, under a particular state of facts, the charterer may be answerable as well as the owner.(t)

323. In one case, indeed, it was held, (u) that by the charter of an entire ship, which contained terms of letting to bire, (2) the possession was parted with to the charterer, so that the owner could have no lien for the freight upon goods put on board, but subsequent cases(y) have narrowed the generality of this doctrine, and have decided that the question, whether the possession of the ship has or has not been given up to and been taken by the charterers, must depend upon the terms of the instrument taken altogether, or upon the purpose and object of it.(2) *324. Where the injury is committed by the servant wilfully,

(*266] while not employed in the master's service, and while not acting within the scope of his authority, the remedy must be against the servant only.(a) As if a servant, authorized merely to distrain cattle damage feasant, drives cattle from the highway into his master's close and there distrains them ;(6) or if he wantonly, and in order to effect some purpose of his own, strikes the plaintiff's horses, and thereby produces an accident; but if he so struck, though injudiciously, in order to perform his master's orders, and in the pursuance of his employment, the master would be liable.(c) So, if the servant be guilty of negligence, productive of an injury whilst on his master's business, as while driving his master's carriage, although he may at the time be going out of the direct road for some purpose of his own, the master will be answerable ;(d) but no liability attaches to the latter, if the servant without his leave or knowledge take his carriage, and with it commit an injury, because in this case the master has not entrusted the servant with the carriage.(e)

(r) Fenton v. The City of Dublin Steam Packet Company, 8 A. & E. 835;" Fletcher v. Braddick, 2 B. & P., N. R. 182, recognized 5 B & C. 556.§

(8) Newberry v. Colvin, 7 Bing. 190,t reversing the judgment of K. B. in Colvin v. New. berry, 8 B. & C. 166;u Trinity House v. Clark, 4 M. & S. 288.

(1) Per Lord Denman, C. J., and Patteson, J., 8 A. & E. 842, 843."

(u) Hutton v. Bragg, 2 Marsh. 339 ;' judgment in Belcher v. Capper, 11 Law Journ. N. S., C. P. 286.

(2) Judgment in Saville v. Campion, 2 B. & Ald. 512.

(y) Trinity House v. Clark, 2 M. & S. 288; Per Burrough J., Christie v. Lewis, 2 B. & B. 442 ;* Yates v. Railston, 8 Taunt. 293 ;y Tate v. Meek, 8 Taunt. 280;y Saville v. Campion, 2 B. & Ald. 503.

(2) Judgment in Dean v. Hogg, 10 Bing. 350, and in Belcher v. Capper, 11 Law Journ., N. S., C. P. 286.

(a) Lyons v. Martin, 8 A. & E. 512 ;a M.Manus v. Crickett, 1 East, 106; Middleton v: Fowler, 1 Salk. 282; Lamb v. Palk, 9 C. & P. 629. See Attorney-General v. Siddon, 1 Cr. & J. 220; Goodman v. Kennell, 3 C. & P. 167.c

(6) Lyons v. Martin, 8 A. & E. 512.a (c) Croft v. Alison, 4 B. & Ald. 590. 592;d Lamb v. Palk, 9 C. & P. 629 ;b Gregory v. Piper, 9 B. & C. 591 ;e Huzzey v. Field, 2 Cr. M. & R. 432.

(d) Joel v. Morison, 6 C. & P. 501 ; Sleath v. Wilson, 9 C. & P. 607.b

(e) Sleath v. Wilson, 9 C. & P. 607. 612;b Lamb v. Palk, 9 C. & P. 629 ;Goodman, v. Kennell, 3 C. & P. 167;s Joel v. Morison, 6 C. & P. 501.

Eng. Com. Law Reps. 35. $Id. 12. Id. 20. uId. 15. XId. 6. yId. 4.

a Id. 35. bid. 38. cId. 14. dId. 6. cId. 17. Id. 25. &Id. 14.

*325. There are also cases in which, although the relationship of [*267]

master and servant does not really exist, there is yet a primâ facie liability attaching to the apparent principal, which however can be rebutted by the particular facts; thus, a licensed pilot going on board and taking charge of a vessel when required by the owner so to do, under the stat. 6 Geo. 4, c. 125, s. 72, must be considered, when so required and employed, as acting under some of the provisions of that statute, and not as the private servant of the owner, who is, therefore, protected from his primâ facie liability in respect of an injury occasioned by the act of the pilot, whilst so employed by the owner.(8) So, the captain of a man-of-war is not responsible for the default of a lieutenant, whose watch it was, and who had the actual management of the vessel when an injury was committed.(h) Nor was the Postmaster-General held liable for a loss attributable to the misconduct of a clerk appointed by him, on the ground that such clerk was not to be considered as his servant.(i) And where A. entered into a contract with the Postmaster-General to supply and keep in order a mail-coach, and B. was hired to drive the mail by certain persons who had contracted with the Postmaster-General for the purpose of horsing it; it was held that B. could not maintain an action on the case against A. for an injury resulting from

his negligence in supplying a *defective coach, for there was no [*268]

privity between the parties; and in this case the plaintiff would appear to have been without remedy, since an action would not have lain against the Postmaster-General,(k) nor against his immediate employers.(?)

326. We'have stated(m) that servants of the Crown are, from motives of public policy, to be considered in the light of mere agents, and as such are not personally chargeable on contracts entered into by them in their official capacity; and for similar reasons(n) an action ex delicto does not lie against a judge civil(o) or ecclesiastical, (P) acting judicially in a matter within the scope of his jurisdiction.(9) So, the steward of a court baron is a judicial officer, and therefore not liable if process issues, as in regular course it ought, to the bailiffs of the court; but if he so far mixes himself up personally with the party to the cause, as to issue the writ to special bailiffs nominated by his attorney on taking an indemnity, the steward may reasonably be considered as having identified himself with the bailiffs, and as having sanctioned what they may do in executing the process.(r)

(g) Lucey v. Ingram, 6 M. & W.302 ;* M·Intosh v. Slade, 6 B. & C. 657.h (h) Nicholson v. Mouncey, 15 East, 384, and cases there cited.

(i) Lane v. Cotton, 1 Salk. 15; S. C. 15 Mod. 472; Per Lord Ellenborough, C. J., 15 East, 392; Whitfield v. Lord Despencer, Cowp. 754.

(k) Winterbottom v. Wright, 11 Law Journ., N. S., Exch. 415; S. C. 10 M. & W.109.* (1) Priestley v. Fowler, 3 M. & W. 1.* (m) Ante, s. 202. (n) See Johnstone v. Sutton, 1 T. R. 513, 514.

(0) Dicas v. Lord Brougham, 6 C. & P. 249 ;' Tinsley v. Nassau, Mo. & Mal. 52 ; Johnstone v. Sutton, 1 T. Ř. 513; Per Holt, C. J., 1 Lord Raym. 468; Garnet v. Ferrand, 6 B. & C. 611.k

(p) Ackerley v. Parkinson, 3 M. & S. 411. 425; Beaurain v. Scott, 3 Camp. 388. (9) Id. See Wingate v. Waite, 6 M. & W. 739. 746.

(r) Holroyd v. Breare, 2 B. & Ald. 473. See the judgment in Bradley v. Carr, 3 Scott, N. R. 521. 528.

bEng. Com. Law Reps. 13. Id. 25. Id. 13. "Re-printed at $2.50 per vol.

*327. With respect to persons having a limited authority, such as commissioners of bankrupt, the rule is laid down, that if ihey do (*269] any act beyond the limit of their authority, they thereby submit themselves 10 an action of trespass; but if the act done be within the limit of their authority, although it may be done through an erroneous or mistaken judgment, they are not thereby rendered liable to an action :(s) and this seems to be equally true of military and naval commanding officers. (1) And although persons exercising judicial functions, as commissioners of a court of requests, are liable in trespass for an excess of jurisdiction, yet the officer executing the warrant of the court may justify under it, if good in form, though not otherwise ;(u) and it is clear that the party who merely originates a suit by stating his case to a court of justice is not guilty of trespass, though the proceedings should be erroneous or without jurisdiction.(v)

328. So magistrates acting in discharge of their duty are irresponsible, even where the circumstances under which they are called upon to act would not have supported the complaint, provided that such circumstances were not disclosed to them at the time ;(w) and where their authority is given by statute, and they appear to have acted within the

[*270] jurisdiction so given, and to have done all that the particular statute requires them to do in order to originate their jurisdiction, their conviction drawn up in due form and remaining in force is a protection and conclusive evidence -for them, in any action which may be brought against them for the act so done, and neither the magistrates so acting, nor the officer executing the warrant can be treated as trespassers :(x) and the constable or other officer, whether sued jointly with the justice or not, may, after demand of the warrant and compliance therewith, justify under the warrant notwithstanding a defect of jurisdiction in the justice who issued the warrant;(y) but the party can only justify that which he lawfully did under the warrant, and will be liable, if guilty of any excess, although no demand were made of the warrant.(z) And it seems, that, in the case of a justification at common law by a constable under the warrant of a justice of the peace, as in an action of replevin to which the stat. 24 Geo. 2, c. 44, s. 6, does not apply,(a) a plea is bad which does not *shew that the justice had jurisdiction over the subject-matter for which the warrant is granted.(b)

[*271] (s) Per Abbott, C. J., Doswell v. Impey, 1 B. & C. 169, 170,' overruling Miller v. Seare, 2 M. & W.1141.

(t) Johnstone v. Sutton, 1 T. R. 510, affirmed Id. 784, and cases there cited ; Warden v. Bailey, 4 Taunt. 67; Bradley v. Arthur, 4 B. & C. 292.m

(u) Carratt v. Morley, 1 A. & E., N. S. 18 ;" Andrews v. Marris, Id. 3, and cases there cited. See Morris v. Parkinson, i Cr. M. & R. 163.

(0) Judgment, 1 A. & E., N. S. 28.0

(w) Pike v. Carter, 3 Bing. 78;o Lowther v. Earl of Radnor, 8 East, 113. A calendar month's notice of action must be given exclusive of the day of giving the same, and of suing out the writ, 24 Geo. 2, c. 44, s. 1; Young v. Higgon, 6 M. & W. 49. See Rix v. Borton, 12 A. & E. 470.P

(1) Per Abbott, C. J., Basten v. Carew, 5 B. & C. 652, 653;4 S. C. 5 D. & R. 558; Baylis v. Strickland, 1 Scott, N. R. 540 ; Fernley v. Worthington, 1 Scott, N. R. 432 ; Painter v. The Liverpool Gas Company, 3 A. & E. 433 ;' Webb v. Batchelour, Ventr. 273.

(y) Stat. 24 Geo. 2, c. 44, s. 6; Atkins v. Kilby, 11 A. & E. 777. Sce Charleton v. Alway, 11 A. & E. 993.5

(z) Peppercorn v. Hofman, 9 M. & W. 618. 628. (a) Fletcher v. Wilkins, 6 East, 283.

() See the judgment in Morrell v. Martin, 4 Scott, N. R. 300, where the cases are re. viewed. Mitchell v. Foster, 12 A. & E. 472 ;t George v. Chambers, 11 M. & W. 149. Eng. Com. Law Reps. 8. Id. 10. "Id. 41. oId. 11. PId. 40. "Id. 12. "Id. 30.

sid. 39. tId. 40. *Reprinted at $2.50 per vol.

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