duce such injury. Such an individual will be answerable for the injury, though unwillingly done. Gibbs, C. J. in S. C. But against trustees or commissioners no action will lie for what they have done in the execution of their public duty unless they exceed their authority or abuse it in their mode of acting under it. Harris & wife v. Baker, 4 M. & S. 27; Jones v. Bird &c. 5 Barn. & Ald. 837, 7 Eng. Com. Law Rep. 277; Boulton v. Crowther, 2 Barn. & Cress. 703, 9 Eng. Com. Law Rep. 227; Hall v. Smith &c. 2 Bingh. 156, 9 Eng. Com. Law Rep. 357; Humphreys v. Mears, 1 Man. & Ry. 187, 17 Eng. Com. Law Rep. 236; Callenter v. Marsh, 1 Pick. 434. One of these cases (Hall v. Smith) was an action for negligently leaving open a tunnel in which the plaintiff fell and was injured. It was not disputed that the commissioners were authorized to order, and did order, the tunnel to be made; they left the making it to two persons, of whom one was the surveyor and the other the undertaker of the work. The accident happened from these persons not putting up rails, and not leaving lights, during the night to prevent persons passing along from falling into the tunnel. No negligence being imputed to the commissioners themselves, they were held not responsible.

CHAPTER LXXX.

HOW FAR DEFENDANT IS LIABLE FOR A WRONG DONE BY A SERVANT, AGENT OR CONTRACTOR, OR DONE UPON THE DEFENDANT'S FIXED PROPERTY.

1. Principal not responsible for trespass by agent unless he gave a prior authority or subsequent assent.

Though a trespass be committed by a son or an overseer or servant whilst engaged in the business of the father or principal, yet if it be committed without the knowledge and contrary to the wishes of the father or principal, and never afterwards sanctioned or assented to by him, he cannot be made responsible. Harris v. Nicholas, 5 Munf. 483; Satterlee &c. v. Groat, 1 Wend. 272; Wright v. Wilcox, 19 Id. 343; Fergusons v. Terry, 1 B. Monroe 96. It is said in Bro. Abr. tit. Trespass, pl. 435, "If my servant, contrary to my will, chase my beasts into the soil of another, I shall not be punished;"

and in 2 Roll. Abr. 553, "If my servant, without my notice, put my beasts into another's land, my servant is the trespasser and not I; because by the voluntary putting of the beasts there without my assent, he gains a special property for the time, and so to this purpose they are his beasts." Lord Kenyon, after looking into the correspondent part of Vin. Abr., said, (1 East 107,) as there was not produced any authority contrary to this, he was satisfied with the authority of it; supported as it is by Noy's Maxims, ch. 44, where it is said, "If I command my servant to distress and he ride on the distress, he shall be punished not I;" and by the position of Holt, C. J. in Middleton v. Fowler, Salk. 282, "that no master is chargeable with the acts of his servant but when he acts in the execution of the authority given him." When, says Lord Kenyon, a servant quits sight of the object for which he is employed, and, without having in view his master's orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and according to the doctrine of Lord Holt, his master will not be answerable for such act. 1 East 107. Such was the case of McManus v. Crichett, 1 East 106; the defendant's servant wilfully drove the chariot against the plaintiff's chaise, but the defendant was not himself present nor did he in any manner direct or assent to the servant's act; the court of king's bench held that for the wilful and designed act of the servant an action of trespass would not lie against the master.

With respect to the nature of the assent to a trespass that will make one liable, the doctrine is laid down in Bac. Abr. Trespass G. 1; Com. Dig. Trespass C. 1; Gibson's case, Lane 90; Elder v. Bemis, 2 Metcalf 605. Lord Coke states, that "he that receiveth a trespasser and agreeth to a trespass after it be done is no trespasser unless the trespass was done to his use or for his benefit, and then his agreement subsequent amounteth to a commandment, for in that case omnis ratihabitio retrotrahitur et mandato equiparatur." 4 Inst. 317; Badkin v. Powell &c. Cowp. 476; Wilson v. Barker &c. 4 Barn. & Adol. 614, 24 Eng. Com. Law Rep. 124; Hull v. Pickersgill &c. 1 Brod. & Bingh. 282, 5 Eng. Com. Law Rep. 83. A ratification with knowledge was negatived by the facts in Freeman v. Bosher, 13 Adol. & El. N. S. 788, 66 Eng. Com. Law Rep. The case was governed by the general rule that a principal is not responsible for a trespass by an agent unless he gave a prior authority or subsequent assent. Lewis v. Read &c. 13 M. & W. 834.

2. General rule as to principal's responsibility for his servant's negligence.

There are cases in which the act of the master in employing a servant who was negligent or unskilful has made him liable in an action on the case for the mischief arising from the servant's negligence or unskilfulness. 1 Ld. Raym. 739; Salk. 441; Holt 642; Michael v. Alestree &c. 2 Lev. 172; 1 Bl. Com. 431; Brucher v. Fromont, 6 T. R. 659. It was said by Holt, C. J., that if the defendant's servant kindled the fire in the way of husbandry, and proper for his employment, though he had no express command of his master, yet his master shall be liable to an action for damage done to another by the fire; for it shall be intended that the servant had authority from his master, it being for his master's benefit. Turberville v. Stampe, 1 Ld. Raym. 264. Every man, said Littledale, J., is answerable for injuries occasioned by his own personal negligence, and he is also answerable for acts done by the negligence of those whom the law denominates his servants, because such servants represent the master himself and their acts stand upon the same footing as his own. Laugher v. Pointer, 5 Barn. & Cress. 547, 12 Eug. Com. Law Rep. 312, 13; Harlow v. Hamiston, 6 Cow. 192; Ford v. Monroe, 20 Wend. 210; Coleman &c. v. Frazier, 4 Richardson 151.

In an action for an injury sustained by the defendant's horse and cart being driven against the plaintiff, it appearing that the driver of the cart was guilty of negligence, Parke, B. said, "there is no doubt also that the master if that person was driving the cart on his master's business is responsible. If the servant being on the master's business took a detour to call upon a friend, the master will be responsible. If you think the servant lent the cart to a person who was driving without the defendant's knowledge, he will not be responsible. Or if you think that 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." Joel v. Morison, 6 C. & P. 501, 25 Eng. Com. Law Rep. 511. Where the master directed the servant to take his phaeton and horse to one place, but the servant instead of doing so, went in another di

rection to deliver a parcel of his own and while in that direction drove against an old woman and injured her, an action for this injury was maintained against the master; Erskine, J., remarking that the law was most properly laid down in Joel v. Morison. "It is," he said, "quite clear that if a servant, without his master's knowledge, takes his master's carriage out of the coach house and with it commits an injury, the master is not responsible; and on this ground that the master has not entrusted the servant with the carriage. But whenever the master has entrusted the servant with the carriage, it is no answer that the servant acted improperly in the management of it. If it were, it might be contended that if a master directs his servant to drive slowly, and the servant disobeys his orders and drives fast, and through his negligence occasions an injury, the master will not be liable. But that is not the law the master in such a case will be liable, and the ground is that he has put it in the servant's power to mismanage the carriage by entrusting him with it." Sleath v. Wilson, 9 C. & P. 607, 38 Eng. Com. Law Rep. 249. This case, in the opinion of the supreme court of the United States, states the law distinctly and correctly. In delivering the opinion of the court, Grier, J. observes, that although among the numerous cases on this subject, some may be found (such as the case of Lamb v. Palk, 9 C. & P. 629) in which the court have made some distinctions which are rather subtile and astute, as to when the servant may be said to be acting in the employ of his master; yet we find no case which asserts the doctrine that a master is not liable for the acts of a servant in his employment, when the particular act causing the injury was done in disregard of the general orders or special command of the master. Such a qualification of the maxim of respondeat superior, would, in a measure, nullify it. A large proportion of the accidents on railroads are caused by the negligence of the servants or agents of the company. Nothing but the most stringent enforcement of discipline, and the most exact and perfect obedience to every rule and order emanating from a superior, can insure safety to life and property. The intrusting such a powerful and dangerous engine as a locomotive, to one who will not submit to control, and render implicit obedience to orders, is itself an act of negligence, the "causa causans" of the mischief; while the proximate cause, or the ipsa negligentia which produces it, may truly be said, in most cases, to be the disobedience of orders by the servant so intrusted. If such disobedience could be set up by a railroad company as a defence, when charged with negligence, the remedy of the injured party would in most cases be illusive, discipline

would be relaxed, and the danger to the life and limb of the traveller greatly enhanced. Any relaxation of the stringent policy and principles of the law affecting such cases, would be highly detrimental to the public safety. Phila. & Reading R. Co. v. Derby, 14 How. 487.

No doubt, says Jervis, C. J., a master may be liable for injury done by his servant's negligence, where the servant, being about his master's business, makes a small deviation. But it must be where the deviation occurs in a journey on which the servant has originally started on his master's business; in other words he must be in the employ of the master at the time of committing the grievance. That was considered not the case in Mitchell v. Crassweller, 13 Com. Bench (4 J. Scott) 246, 76 Eng. Com. Law Rep.; where, though it was the duty of the carman on his arrival, with the horse and cart at Welbeck street, immediately to take them to the stable, he, in violation of that duty, and without the sanction or knowledge of his employers, instead of going to the stable, started on a new journey, wholly unconnected with his master's business-as Baron Parke expresses it in Joel v. Morison, on a frolic of his own. "The master," says Maule, J., "is liable even though the servant, in the performance of his duty, is guilty of a deviation, or a failure to perform it in the strictest and most convenient manner. But where the servant instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence of the servant in doing it."

It will be observed that where the principal is responsible for damage arising from the want of skill, or mistake, of the agent in the course of the performance of his employment, the principal is not responsible in trespass but in case; the form of action involves an interest of some importance as the measure of damages in an action on the case would be confined to an indemnity. Patteson, J., 13 Adol. & El. N. S. 788.

3. Liability for servant's negligence is only on his master; not on one who employs the master. Party with whom a contract is made not liable for negligence of contractor or sub-contractor.

The owner of a carriage, having occasion to use it, applied to a jobman who supplied him with a pair of job-horses and a coachman for a day; this coachman by his negligent conduct in driving the carriage injured the plaintiff's horse. Upon