his servants for the use of the family, will, primâ facie, be liable for any others so taken in, though in truth not for his use; yet, where the master was in the habit of paying for a given quantity, but the servant clandestinely took in more, it was held, that the master's being in the habit of paying regularly for some of the goods, was sufficient to put the tradesman on his guard, and make it incumbent on him to ascertain, whether, or not, the rest were for the master's use; and, not being so, that he was not liable (u). If a master having bought goods on credit, gives to his servant money to pay the amounts due, and the servant retain or embezzle the money, the master is still liable to his creditors for the amount, and must bear the loss occasioned by his servant's wrongful act (x). But where a tradesman had supplied the defendant's family with bread, of which weekly bills were delivered to his housekeeper (who had charged for the payment of the same in her accouuts), and it appeared that the latter bills had been regularly paid, and receipted, but that the earlier had not, it was held that, in the absence of proof of the money having been given to the housekeeper to pay those bills with, the question of negligence on the part of the baker, in receipting the latter, and leaving the earlier bills unpaid, could not be raised (y). And so, although, generally speaking, a master will be liable for work done upon his property by the unauthorized orders of a servant, because in ordinary cases the master's authority may reasonably be implied, yet, it will be otherwise, if the work be done without either the knowledge or sanction of the master, and the tradesman have never been employed on any former occasion; thus, where a servant having broken his master's chaise, employed a tradesman to repair the same, who had never been employed on any occasion for the master, the latter being entirely ignorant of the circumstance, it was held that the tradesman was bound to deliver up the chaise to the master without being paid for the repairs (z). But (u) Pearce v. Rogers, 8 Esp. 214. 739. (y) Miller v. Hamilton, 5 C. & P. 433. (z) Hiscox v. Greenwood, 4 Esp. 174. where, in an action for work done in shoeing and physicing the defendant's horse, the defence was, that the defendant, by an agreement with his groom allowed him five guineas per annum, for which he was to keep the horses properly shod, and furnish them with proper medicines when necessary, it was held by Lord Kenyon, C. J., that it was no defence to the action, unless the plaintiff knew of this agreement, and expressly trusted the groom that if a servant buys things, which come to his master's use, the master should take care to see them paid for; for a tradesman has nothing to do with any private agreement between the master and servant; and a verdict was accordingly found for the plaintiff (a). Where a coachman went in his master's livery, and hired horses of a horse jobber, and they were accordingly sent, and used in his carriage, in an action against the master for the hire, the evidence was contradictory as to the tradesman's knowledge of a contract between the master and his servant for horsing the carriage, and as to the party to whom the credit was in fact given; and it was held by Littledale, J., that, if the coachman did not represent to the plaintiff the circumstance of the agreement between himself and his master, by the master's sending him forth into the world, wearing his livery, to hire horses, which he (the master) afterwards used, knowing of whom they were hired, and yet not sending to ascertain if his credit had been pledged for them, an implied authority was given, and the master was bound to pay for the hire; that this sort of bargain seemed to be unusual between a gentleman and his coachman, and ought not to prevent the plaintiff from having recourse to the master: a master might be prevented by business, or want of time, from making a bargain himself, and might send his servant; and, provided the business were within the regular department of the servant, the master would be clearly liable but the jury, apparently considering that the plaintiff knew of the agreement with, and gave credit to, the servant, found a verdict for the defendant (b). (a) Precious v. Abel, 1 Esp. 350. (b) Rimmell v. Sampayo, 1 Car. & P. 254. Where a servant was sent to a salesman with a load of hay to be disposed of on account of his employer, and the salesman, having accordingly sold it, ordered the servant to deliver it at the purchaser's, it was held that the salesman did not thereby adopt the servant as his agent, but that the servant still continued to act for the principal, so as to render the latter liable for a mistake in the delivery (c). If a master gives notice to a tradesman that a servant, who formerly had authority to pledge his credit, has left his service, the tradesman cannot charge the master for goods supplied after the notice (d). A mere notice to the servant himself not to pledge his master's credit would not, however, relieve the master from liability, if the tradesman were ignorant of the revocation of authority (e). And the act of a servant, though discharged, may bind the master, if the person giving credit has no knowledge of the discharge (f). The death of the master operates as a revocation of the servant's authority (g). A doubt seems to have been entertained on several occasions, whether a master is not bound to provide his domestic servant with medical attendance and medicine, in case of sickness; from the examination of the various cases, however, it appears he is not bound to do so. In this place, the question is only incidental to another, viz., how far the master is liable to the medical man employed by the servant, as upon an implied contract, for medicine and attendance upon him during his illness? If the master direct the doctor to attend the servant, there can be no doubt of his liability to pay, as even an entire stranger, desiring a surgeon to attend a poor person will be liable to pay him for his trouble (h). In the case of a yearly servant in husbandry, it has been determined that the master is bound to support him during the period of his hiring, notwithstanding his being disabled from labour by sickness (i); and so, of a menial servant, there cannot be a doubt of the master's liability to maintain him in such case, until he might otherwise be lawfully discharged. It has been contended, in support of the liability of the master for medicine, that, under the implied contract on the part of the master, to supply his servant with proper food, the master impliedly contracts to provide medicine, as being the requisite and proper food in case of sickness: but this argument proceeds upon altogether false premises; it assumes that medicine is to the body in illness, what food is, in health, viz., a source of nourishment, but it is not so; neither does it serve as a substitute for it; and, therefore, if the master's implied contract do include the providing of medicine, it must be in addition to food. Where a farmer's servant whilst attending his master's waggon had broken his leg, it was held that the master was not liable to reimburse the parish for medicines supplied to the servant: and Lord Mansfield said, "There "is, in point of law, no action against the master to "compel him to repay the parish for the cure of his "servant; no authority has been cited, but it seems to me that it cannot be; the parish is bound to take "care of accidents" (k). In a case (7), where an action had been brought for medical attendance by the plaintiff upon the defendant's servant, who had broken his arm whilst driving the defendant's team, and who had been hired at the yearly wages of 31. 10s. and his victuals, Le Blanc, J., nonsuited the plaintiff, on the ground that the defendant, not having employed him, nor made any promise of payment, was not liable. On discharging a rule nisi to set aside the nonsuit, the several judges delivered opinions approving of the ruling of Le Blanc, J. Where the master had called in a medical man to attend his servant, and sought to deduct the amount of his charge out of her wages, which it was decided he could not do, Gaselee, J., observed, "I am not pre"pared to say, that a master is bound to provide a (k) Newby v. Wiltshire, 2 Esp. 789. Wing v. Mill, 1 B. & Ald. 104 Lamb v. Bunce, 4 M. & S. 275. (1) Wennall v. Adney, 3 B. & P. 247. "menial servant with medicines; with respect to some "other servants, he clearly is not so: however, though "it is often done by masters for their menial servants, "I do not think I should be authorized in saying, that "they are bound so to do" (m). The following case may at first sight appear to be at variance with the decisions on this subject, but is not so when fully considered. In an action for medical attendance on the defendant and his family, it appeared that the defendant and his wife resided at a distance of about a mile and a half from a house, in which their younger children were living under the charge of Susan Parry, who had acted as wet nurse to two of their youngest children; the defendant's wife was in the habit of going to see the children three or four times a week; but it did not appear when the defendant was at the house; Susan Parry was taken ill in consequence of suckling the youngest of such children, and was attended for this complaint by the plaintiff, who was unknown to the defendant, a Mr. Berry being the surgeon who regularly attended his family; the defendant, hearing of Susan Parry's illness, desired Mr. Berry to see her, and sent her 10s. to pay for medicine, as Mr. Berry was a consulting surgeon; the defendant's wife knew of the plaintiff's attendance on Susan Parry, and did not express any disapprobation of it. Mr. Justice Taunton, before whom the cause was tried, is thus reported to have drawn his conclusion:-"With respect to that part of the [plaintiff's] "bill, which relates to the attendance on Susan Parry, "it appears that her illness arose in the defendant's 66 service, and that the defendant was informed of it, "and that he sent Mr. Berry to see her. This shows "that he considered himself liable to take care of her "in this illness; and it is also shown that his wife "knew, and did not disapprove, of the plaintiff's "attendance; and, I think, it must be taken that the "defendant's wife had the general superintendence of "this house. It therefore appears to me that, for this part of the charge, the defendant is liable.' There (m) Sellen v. Norman, 4 Car. & P. 80. |