excise, auditors of the exchequer, &c. who are not liable for any negligence or misconduct of the inferior officers in their several departments.(p) [And the captain of a king's ship of war is not responsible for the damage done to another vessel through the negligence of his lieutenant, although the captain be on board the ship, provided no per

to whom it is directed, but need not show that the money came to the sheriff's hands, ib. And in 3 Wils. 309, it was decided that trespass lay against a sheriff for taking the goods of A. instead of B. by his bailiff. || Locke v. Stearns, 1 Metc. 563. An action lies against a sheriff for the act of his deputy in taking more fees on levying an execution, than are allowed by law; and whether the sheriff recognized the act of his deputy or not, need not be shown. McIntyre v. Trumbull, 7 Johns. Rep. 35. But he is not amenable for the acts of his deputy, unless they are performed in the ordinary course of his official duty, as prescribed by law. Gorham v. Gale, 7 Cow. 739. S. C. 6 Cow. 467, n. (a) A sheriff is responsible for money received by his deputy on erroneous process, it being received colore officii; and he cannot avail himself of the defect in the process. The People v. Dunning, 1 Wend. 16. But a party may, by his own acts, so constitute the deputy his own special agent, as to discharge the sheriff's liability, as by giving the deputy directions to take a course out of the usual line of procedure. Armstrong v. Garrow, 6 Cow. 465. Nor is a sheriff liable to a party, on whose nomination he has appointed a special bailiff, for the acts of such bailiff. Bac. Abr. Sheriff, H. 4. See further as to the liability of a sheriff, post, 396 n. (a).||

(p) Cowp. 766. This distinction in favor of public officers is of very old standing. See Dr. & St. 279; Di. 2, c. 42; and see Stat de Scaccario, 51 H. 3, st. 5, s. 7 & 8; st. 21, ed. 3, c. 21. De proditionibus. And that, though the superior had the appointment of the inferior officers. "The Keeper of the Great Seal, and other persons holding high situations in the state, have authority to appoint to many offices, and also to remove the persons so appointed at their pleasure. But they are not, on that account subject to make compensation for injury occasioned by the neglect or misconduct of the persons so appointed. The mere selection of the officers does not create a liability." Lord Lyndhurst. Viscount Canterbury v. The Attorney General, 1 Phillips, 324.

If a public officer authorize the doing of an act beyond the scope of his authority, or if he be guilty of negligence or malfeasance in the discharge of duties to be performed by himself, he will be held responsible: it is otherwise, in respect to the malconduct or malfeasance of such persons as he is obliged to employ; for the maxim respondeat superior, does not apply to. such cases. Bailey v. The Mayor &c. of New York, 3 Hill, 531. Hall v Smith, 2 Bing. 357.||

sonal misconduct on the occasion be imputable to him.(7)] But this only applies to inferior officers of the department; for if the person, whose misconduct comes in ques*tion, be the private servant or deputy of the prin- [*301] cipal officer, the latter is liable for his acts. Thus, the Chancellor of (q) the Court of Augmentations to King Edward VI., having, by virtue of his office, taken a bond from the purchaser of lead sold by the King's order, and having deposited the bond with his servant, who fraudu. lently delivered it to the obligor, was held by all the judges to be chargeable to the King, because the possession of his servant by his order was his own possession.

The ground of the exemption is, that as the appointment is not with the principal, he ought not in reason to be answerable for the acts; and on this manifest ground of equity, owners and masters of vessels are, by the statute which regulates the pilotage of ships,(8) released from all liability to third parties for the negligence or unskilfulness of pilots duly licensed and qualified.↓

3. If a man employ an agent in the commission of a fraud, he is clearly liable for it himself; as if a goldsmith by his servant put off counterfeit plate,(r) or a taverner corrupted wine; they are *answerable. [*302] And employers are also civilly liable for frauds

(7) [Nicholson v. Mounsey, 15 East, 384.]

(q) Dy. 161; 3 Mod. 323.

(8) +6 Geo. IV. c. 125. There are other clauses in the act taking away the responsibility of the master and owner in particular cases. || Smith v. McIntosh v. Condry, 1 Howard, 28. Bennett v. Moita, 7 Taunt. 258.

Slade, 6 Barn. & Cr. 657. Martin v. Temperley, 4 Ad. & Ell. N. S. 309, 310. But independent of statute, the owner is liable for the acts of the pilot, although licensed, as an ordinary agent. Ante, 295, n. (q).||

(r) Cro. Jac. 473. 1 Str. 653. Roll. Abr. 95. 1. 15. It is adjudged in a very old case, that if a servant sell an unsound horse in a fair, the master is not liable, unless he commanded him to sell to some one in particular; but if, by command or cover of the master he sells to one in particular, an action lies. 9 H. 6. 53. Bridgm. 128.

committed by their servants or agents, without their authority, if done in their employment.(s)

The owner of counterfeit jewels, knowing them to be so, sent an agent abroad with them to be disposed of; but without directions either to represent them as genuine, or to sell them to any one in particular. The agent, however, representing them as good jewels, procured a person to sell them as such, who was imprisoned by the laws of the country for the deceit, for which injury he brought an action against the owner of the jewels, and recovered.(t)

In an action on the case for a deceit in selling silk to the plaintiff, as silk of a particular description, the defendant well knowing that it was of another description, it appeared that there was no actual deceit in the defendant, but that it was in his factor abroad; and the question was, if this deceit should charge the merchant. And Holt, C. J.,

was of opinion, that the merchant was answer[*303] able for the deceit of his factor, though not *criminaliter yet civiliter; for seeing somebody must be a loser by this deceit, it is more reason that he that employs and confides in the deceiver should be a loser than a stranger.(u)

4. The principal is never criminally answerable for the act of his deputy; they must each answer for their own acts, and stan 1 or fall by their own behavior. To affict the superior criminally by the act of his deputy, there

(8) 1 Str. 653. (S. P. per Lord Ellenborough in Crockford v. Winter, 1 Campb. 127.) || Ante, 257, 258, 259. Post. 325. Wilson v. Fuller, 3 Ad. & Ell. N. S. 68. 1009. Jeffrey v. Bigelow, 13 Wend. 518. The Bank of the United States v. Davis, 2 Hill, 452. North River Bank v. Aymar, 3 Hill, 263. Locke v. Stearns, 1 Metc. 560. Sandford v. Handy, 23 Wend. 260.||

(t) Southern v. How, Bridgm. 126, 127. 2 Moll. 330. In the report of this case, Cro. Jac. 468, it is said that the court inclined against the plaintiff; but the judgment finally given is not there mentioned. Ante, p. 152.

(u) Hern v. Nichols, 1 Salk. 289. But see 1 Com. Dig. 240. See The Bank of the United States v. Davis, 2 Hill, 465. North River Bank v. Aymer, 3 Hill, 268. Lobdell v. Baker, 1 Metc. 203.

must be the command of the superior for the act in question.(w)

+ An exception, however, to this general rule seems to have been introduced into the law in cases of libel. On a recent prosecution against the proprietors and editor of a newspaper for a libel, (9) evidence was given on the part of the proprietor, showing that at the time of the publication in question he was in a distant part of the country, nor in any way interfering with the conduct of the paper in which the libel was contained; and it was contended on general principles, that he could not be made criminally responsible for the act of his servant; but Lord Tenterden in summing up said, "I am bound to state the law as I have received it from my predecessors. It is conceded that it has been held in several cases that a pro- [*304] prietor so situated is criminally answerable. It is said, that this is a different principle from that which prevails in all other criminal cases; but this does not appear to me to be so: the rule seems to me to be conformable to principles and to common sense. Surely a person who derives profit from, and who furnishes means for carrying on the concern, and entrusts the conduct of the publication to one whom he selects, and in whom he confides, may be said to cause to be published what actually appears, and ought to be answerable, although you cannot show that he was individually concerned in the particular publication. It would be exceedingly dangerous to hold otherwise, for then an irresponsible person(10) might be put

(w) Per Raymond, C. J. 2 Str. 885; Rex v. Stone, 7 T. R. But the act of a deputy may forfeit the office of the principal, 29 H. 6. 34, cited 1 Salk. 18.

[9) Rex v. Gutch, 1 Moody & M. 433.4

(10) Supposing the report to be correct, it is difficult to understand what his lordship meant by this expression. There can be no person who is not criminally responsible. Every man is capable of being punished. If his lordship meant civilly irresponsible, then the argument had no application, because no one pretends that the proprietor ought not to be answerable CIVILLY; that is to say, in damages to the party injured.↓

forward, and the person really producing the publication, and without whom it could not be published, might remain behind and escape altogether."

Tortious Conversion, or Trespass of Servant or Agent.

1. Any unlawful meddling with, or conversion of property by a servant or agent in the service of his employer, subjects the latter to an action. (a) As if a servant employed in the management of business, purchase goods which have been stolen, the owner may recover the amount from the master, after a demand and refusal.(b) Thus also, where an agent of the East India Company purchased a ship, for the use of the company, of the master, who had no power to sell it on a bill filed against the company a decree was made, that they should account for the ship and cargo, though the purchase were without their privity.(c) So a servant selling the goods of an intestate, and paying over the money to his master, makes the latter liable as executor de son tort.(d)

Upon an action of trover against a master, a pawnbroker, it was held sufficient for the plaintiff to prove that he tendered the money, for which the article was pawned, to the pawnbroker's servant, who said he had lost it.(e)

(a) Say, 41, 42; 1 Str. 505.

(b) 12 Mod. 521.

(c) 1 P. Wms. 396.

(d) 2 T. R. 97.

(e) Per Holt, C. J. 2 Salk. 441. In an action of trover against the defendant, for not delivering some wine deposited with her by way of security, for an advance of money, it was held, that it was not sufficient evidence of a conversion to show, that her son, who acted as her general agent, refused to give it up; and that it was necessary to prove, that such agent acted under a special direction, in order to make the defendant liable. Pothonier v. Dawson, Holt's N. P. Rep. 383.||