the plaintiff, at whose instigation he acted; and although the general rule is, that the act of the officer is, in point of law, the act of the sheriff, yet it is not competent to one whose act produces the misconduct of the bailiff to say, that the act of the officer done in breach of his duty to the sheriff, and which he has himself induced, is the act of the sheriff.2

But, notwithstanding the almost universal application of the legal maxim under consideration, there are cases in which, by reason of the express provisions of the statute law, it does not hold; for instance, it has been held that under the stat. 9 Geo. 4, c. 14, s. 1, an acknowledgment signed by an agent of the debtor will not revive a debt barred by the Statute of Limitations. Again, it is laid down

as a general rule, that a bill of discovery in aid of a defence to an action at law, cannot be sustained against a person who is not a party to the record, although charged in the bill to be solely interested in the subject of the action; and this rule will be applied even where the plaintiff *in the original action sues as agent for the party

from whom this discovery is sought, notwithstanding the [*665]

maxim, qui facit per alium facit per se, might at first sight appear applicable."

Before terminating our remarks as to the legal consequences which flow from the relation of principal and agent in transactions founded upon contract, it becomes necessary to consider briefly a kindred principle of law, which limits the operation of the maxim qui facit per alium facit per se, and will, therefore, most properly be noticed in immediate connexion with it: the principle to which we allude is this, that a delegated authority cannot be re-delegated-delegata potestas non potest delegari; or, as it is otherwise expressed, vicarius non habet vicarium-one agent cannot lawfully nominate or appoint another to perform the subject of his agency. Hence, a notice to

1 Cook v. Palmer, 6 B. & C. 39; E. C. L. R. 13; Crowder v. Long, 8 B. & C. 598; E. C. L. R. 15; Tompkinson v. Russell, 9 Price, 287; Bowden v. Waithman, 5 Moore, 183; E. C. L. R. 16; Stuart v. Whittaker, R. & M. 310; Higgins v. M'Adam, 3 Y. & J. 1.

2 Per Bayley, J., 8 B. & C. 603, 604; E. C. L. R. 15.

3 Hyde v. Johnson, 2 Bing., N. C. 776; E. C. L. R. 29. See, also, Toms, app., Cuming, resp., 8 Scott, N. R. 910; Cuming, app., Toms, resp., Id. 827.

4 Queen of Portugal v. Glyn, 7 Cl. & Fin. 466.

52 Inst. 597; Argument, Fector v. Beacon, 5 Bing., N. C. 310; E. C. L. R. 35. 6 Branch, Max., 5th ed. 38.

7 See per Lord Denman, C. J., Cobb v. Becke, 6 Q. B. 936; E. C. L. R. 51; 2 Kent, Com., 4th ed. 633; Combes' case, 9 Rep. 75.

quit, given by an agent of an agent, is not sufficient, without a recognition by the principal. To render such a notice valid, there must be either an authority to give, or a recognition of it.' So, a principal employs a broker from the opinion which he entertains of his personal skill and integrity; and the broker has no right, without notice, to turn his principal over to another, of whom he knows nothing; and, therefore, a broker cannot, without authority from his principal, transfer consignments made to him, in his character of a broker, to

another broker for sale. On the same *principle, where an [*666] act of Parliament for building a bridge required, that, when any notice was to be given by the trustees appointed and acting under it, such notice should be in writing or in print, signed by three or more of the trustees; it was held, that a notice, signed with the names of the clerks to the trustees, but signed, in fact, not by such clerks, but by a clerk employed by them, was insufficient, as being an attempt to substitute for a deputy his deputy. It may, likewise, be well to observe, that delegated jurisdiction, as contradistinguished from proper jurisdiction, is that which is communicated by a judge to some other person, who acts in his name, and is called a deputy; and this jurisdiction is, in law, held to be that of the judge who appoints the substitute, or deputy, and not of the latter party; and in this case the maxim holds, delegatus non potest delegare-the person to whom any office or duty is delegated,—for example, an arbitrator, cannot lawfully devolve the duty on another, unless he be expressly authorized so to do."

A magistrate, as observed by Lord Camden, can have no assistant nor deputy to execute any part of his employment. The right is personal to himself, and a trust that he can no more delegate to another, than a justice of the peace can transfer his commission to his clerk.5

1 Doe d. Rhodes v. Robinson, 3 Bing., N. C. 677, 679; E. C. L. R. 32.

2 Cockran v. Irlam, 2 M. & S. 301, n. (a); E. C. L. R. 28; Solly v. Rathbone, Id. 298; Catlin v. Bell, 4 Camp. 183; Schmaling v. Thomlinson, 6 Taunt. 147; E. C. L. R. 1; Coles v. Trecothick, 9 Ves. 251; Henderson v. Barnwall, 1 Yo. & J. 387. 3 Miles v. Bough, 3 Q. B. 845; E. C. L. R. 43; cited, Argument, Allan, app., Waterhouse, resp., 8 Scott, N. R. 68, 76.

4 See Bell, Dict. and Dig. of Scotch Law, 280, 281, 292; Little v. Newton, 2 Scott, N. R. 509; Reg. v. Jones, 10 Ad. & E. 576; E. C. L. R. 37; Hughes v. Jones, 1 B. & Ad. 388; E. C. L. R. 20; Wilson v. Thorpe, 6 M. & W. 721 ;(*) Argument, 5 Bing., N. C. 310; E. C. L. R. 35; White v. Sharp, 12 M. & W. 712; (*) Rutter v. Chapman, 8 M. & W. 1.(*) The case of the Master's Clerks, 1 Phill. 650; see, also, Reg. v. Perkin, 7 Q. B. 165; E. C. L. R. 53; Smeeton v. Collier, 17 L. J., Exch. 57. 5 Entick v. Carrington, 19 Howell, St. Trials, 1063.

[*667]

Although, however, a deputy cannot, according to the *above rule, transfer his entire powers to another, yet a deputy possessing general powers, may, in many cases, constitute another person his servant or bailiff, for the purpose of doing some particular act; provided, of course, that such act be within the scope. of his own legitimate authority.

For instance, the steward of a manor, with power to make a deputy, made B. his deputy, and B., by writing under his hand and seal, made C. his deputy, to the intent that he might take a surrender of G., of copyhold lands. It was held, that the surrender taken by C. was a good surrender;1 and Lord Holt, insisting upon the distinction above pointed out, compared the case before him to that of an under-sheriff, who has power to make bailiffs and to send process all over the kingdom, and that only by virtue of his deputation.2

The rule as to delegated functions must, moreover, be understood with this necessary qualification, that in the particular case, no power to re-delegate such functions has been given. Such an authority to employ a deputy may, indeed, be either express or implied by the recognised usage of trade; as in the case of an architect or builder, who employs a surveyor to make out the quantities of the building proposed to be erected; in which case the maxim of the civil law applies, in contractus tacitè insunt quæ sunt moris et consuetudinis-terms which are in accordance with and warranted by custom and usage may, in some cases, be tacitly imported into

contracts.

*RESPONDEAT SUPERIOR.
(4 Inst. 114.)

Let the principal answer.

[*668]

The above maxim is, in principle, almost identical with that immediately preceding, but is more usually and appropriately applied with reference to actions ex delicto, than to such as are founded in contract. Where, for instance, an agent commits a tortious act, under the direction or with the assent of his principal, each is liable

1 Parker v. Kett, 1 Ld. Raym. 658.

21 Ld. Raym. 659; Leak v. Howell, Cro. Eliz. 533; Hunt v. Burrel, 5 Johns. R. (U. S.) 137. 3 See 2 Prest. Abs. Tit. 276.

4 Moon v. Guardians of Whitney Union, 3 Bing., N. C. 814, 818; E. C. L. R. 32.

at suit of the party injured: the agent is liable, because the authority of the principal cannot justify his wrongful act; and the person who directs the act to be done is likewise liable, according to the maxim, respondeat superior. "If," observes Sir W. Blackstone, "a servant commit a trespass by the command or encouragement of his master, the master shall be guilty of it, though the servant is not thereby excused, for he is only to obey his master in matters that are honest and lawful."2

In the case, then, of domestic servants, and such as are selected by the master, and appointed to perform any particular work, although not in his immediate employ or under his superintendence,3 the maxim, respondeat superior, is also very often applicable.

[*669] *Upon the principle that, qui facit per alium facit per se,” it was said, in a leading case upon this subject, “the master is responsible for the acts of his servant, and that person is undoubtedly liable who stood in the relation of master to the wrongdoer he who had selected him as his servant, from the knowledge of, or belief in, his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey, and whether such servant has been appointed by the master directly or intermediately, through the intervention of an agent authorized by him to appoint servants for him, can make no difference."

Where, for instance, a man is the owner of a ship, he himself appoints the master, and 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." By a policy of insurance, however, the assured makes no warranty to the

14 Inst. 114; Sands v. Child, 3 Lev. 352; Jones v. Hart, 1 Ld. Raym. 738; Britton v. Cole, 1 Salk. 408; per Littledale, J., Laugher v. Pointer, 5 B. & C. 559; E. C. L. R. 11; Perkins v. Smith, 1 Wils. 328; cited, 1 Bing., N. C. 418; E. C. L. R. 27; Stephens v. Elwall, 4 M. & S. 259; E. C. L. R. 30; Com. Dig., "Trespass," (C. 1.) As to the liability of sheriff and execution creditor, see Jarmain v. Hooper, 7 Scott, N. R. 663. See, also, ante, p. 211.

21 Bla. Com. 429. As to the liability of the master for an injury sustained by the servant in the course of his business, see Priestley v. Fowler, 3 M. & W. 1.(*)

3 Randleson v. Murray, 8 Ad. & E. 109; E. C. L. R. 35; Stone v. Cartwright, 6 T. R. 411; Matthews v. West London Water-works Company, 3 Camp. 403.

4 Quarman v. Burnett, 6 M. & W. 509.(*)

5 Per Littledale, J., 5 B. & C. 554; E. C. L. R. 11; Martin v. Temperley, 4 Q. B. 298; E. C. L. R. 45; Dunford v. Trattles, 12 M. & W. 529.(*)

underwriters that the master and crew shall do their duty during the voyage; and their negligence or misconduct is no defence to an action on the policy, where the loss has been immediately occasioned by the perils insured against; nor can any distinction be made in this respect between the omission by the master and crew to do an act which ought to be done, and the doing an act which ought not to be done, in the course of the navigation. In the case just supposed, however, if the ship be chartered for the particular voyage, or for a definite period, it is always a question of fact, *under [*670] whose direction and control the vessel was at the time of the occurrence complained of; and this question must be solved by ascertaining whose are the crew, and by considering whether the reasonable interpretation of the charter-party is, that the owners meant to keep the control of the vessel in their own hands, or to make the freighter the responsible owner pro tempore;2 and a state of facts might perhaps occur in which the charterer would be answerable as well as the owner.3

Again, where the owner of a carriage hires horses of a stablekeeper, who provides a driver, through whose negligence an injury is done, the driver must be considered as the servant of the stablekeeper or job-master against whom, consequently, the remedy must be taken; unless there be special circumstances showing an assent, either express or implied, to the tortious act of the party hiring the horses, or showing that such party had control over the servant, and was, in fact, dominus pro tempore.*

The maxim respecting delegated authority, which we have already briefly considered with reference to liabilities ex contractu, is also

1 Judgment, Dixon v. Sadler, 5 M. & W. 414.(*)

2 Fenton v. City of Dublin Steam Packet Company, 8 Ad. & E. 835; E. C. L. R. 35; Fletcher v. Braddick, 2 N. R. 182; recognised, 5 B. & C. 556; E. C. L. R. 11; Newberry v. Colvin, 7 Bing. 190; E. C. L. R. 20; reversing the judgment in S. C., 8 B. & C. 166; E. C. L. R. 15; Trinity House v. Clark, 4 M. & S. 288; E. C. L. R. 30.

3 Per Lord Denman, C. J., and Patterson, J., 8 Ad. & E. 842, 843; E. C. L. R. 35. 4 The following cases may be referred to on this subject, which can only be briefly noticed in the text:-M'Lauglin v. Pryor, 4 Scott, N. R. 655; S. C., 1 Car. & M. 354; E. C. L. R. 41; Quarman v. Burnett, 6 M. & W. 499; (*) the judgments of Abbott, C. J., and Littledale, J., in Laughter v. Pointer, 5 B. & C. 547 ; E. C. L. R. 11; Hart v. Crowley, 12 Ad. & E. 378; E. C. L. R. 40; Taverner v. Little, 5 Bing., N. C. 678; E. C. L. R. 35; Croft v. Alison, 4 B. & Ald. 590; E. C. L. R. 6; Smith v. Lawrence, 2 Man. & Ry. 1; E. C. L. R. 17; Sammell v. Wright, 5 Esp., N. P. C. 263; Scott v. Scott, 2 Stark., N. P. C. 438; E. C. L. R. 3; Brady v. Giles, 1 M. & Rob. 494; per Patteson, J., 8 Ad. & E. 839; E. C. L. R. 35.