frequently applicable where a question arises as to the liability of a master for the tortious act of *his servant. The liability of [*671] the former for the tort of the servant when acting under his implied authority results, as above stated, from the fact, that servants and agents are hired and selected by the master or principal to do the business required of them, and their acts consequently stand on the same footing as his own;' as in the case of coach proprietors, who are answerable for an injury sustained by a passenger through the driver's misconduct. A difficulty, however, often arises in applying this general and fundamental rule to the particular facts of the case, and in determining between what parties the relationship of master and servant actually subsists; for, although that party will usually be liable with whom the act complained of ultimately originates, yet the applicability of this test fails in one case; for where he who does the injury (either in person or by his servant) exercises an independent employment, the party employing him is clearly not liable; as in the instance of a butcher who employs a drover, whose deputy does the mischief by his careless driving; or of a builder who contracts to make certain alterations in a club-house, together with the necessary *gas-fittings, and who employs a [*672] gas-fitter for the latter purpose under a sub-contract, through the negligence of whom, or of whose servants, the plaintiff sustains an injury: in these cases the relation of master and servant does not subsist between the principal and the person who occasions the injury, and the former is, therefore, not liable for the misconduct of

Per Littledale, J., Laugher v. Pointer, 5 B. & C. 553, 554; E. C. L. R. 11.

2 White v. Boulton, Peake, N. P. C. 81; Jackson v. Tollett, 2 Stark., N. P. C. 37; E. C. L. R. 3. See the cases 2 Selw., N. P. 10th ed. 1097. A master is not liable for an accident sustained by a servant in the course of his employment by the breaking down of a van, Priestly v. Fowler, 3 M. & W. 1.(*) See Winterbottom v. Wright, 10 M. & W. 109.(*)

3 As between pilot and owner of ship, see Lucey v. Ingram. 6 M. & W. 302;(*) M'Intosh v. Slade, 6 B. & C. 657; E. C. L. R. 13; The Agricola, 2 Robins. Adm. R. 19; The Fama, Id. 184; captain of ship and inferior officer, Nicholson v. Mouncey, 15 East, 384, and cases there cited; postmaster-general and clerk, Lane v. Cotton, 1 Salk. 17; S. C., 15 Mod. 472; per Lord Ellenborough, C. J., 15 East, 392; Whitfield v. Lord Despencer, Cowp. 754.

4 Per Williams, J., and Coleridge, J., 12 Ad. & E. 742; E. C. L. R. 40.

5 Milligan v. Wedge, 12 Ad. & E. 737; E. C. L. R. 40.

6 Rapson v. Cubitt, 9 M. & W. 710.(*) See Wilson v. Peto, 6 Moore, 47; E. C. L. R. 17; Witte v. Hague, 2 D. & R. 33; E. C. L. R. 16.

the latter,' unless he has adopted or sanctioned the particular act by which the injury in respect whereof compensation is sought has been occasioned, or there be evidence to show that he has interfered with or had control over the work, in the performance of which the damage has been caused.2 On the principle in accordance with which the cases to which we here refer have been decided, it was held in a very recent case, that the owner of real property is not responsible for a nuisance committed thereon by the occupying tenant, unless, indeed, he has been a party to the creation of the nuisance after the demise, or has demised it with the nuisance existing.3

The principle of respondeat superior does not, moreover, apply where an injury is committed by a servant wilfully, while neither employed in the master's service, nor acting within the scope of his authority as if a servant, *authorized merely to distrain [*673] cattle damage-feasant, drives cattle from the highway into his master's close, and there distrains them. Neither does the rule apply where the relation of principal and agent has terminated before the commission of the act complained of. Thus, the sheriff is not liable in trover for a conversion by his bailiff of goods seized under process of attachment issuing out of the county court after the bailiff has had notice of a supersedeas. The ground of the sheriff's liability for the acts of his bailiff is, that he is casting upon another a duty which the law imposes upon him, and, consequently, that he is acting by a servant; but the effect of a supersedeas is to render the writ inoperative from the moment it was delivered to the sheriff, and not the writ only, but the warrant also; and the consequence is, that, though the sheriff was responsible for everything that was done up to the time of the supersedeas, yet that which was done afterwards was

I See the judgment in Quarman v. Burnett, 6 M. & W. 509, 510;(*) per Parke, B., 9 M. & W. 713. (*) See also the remarks on Bush v. Steinman (1 B. & P. 404), and Sly v. Edgley (6 Esp., N. P. C. 6), in 5 B. & C. 559, 560; E. C. L. R. 11; and per Le Blanc, J., Harris v. Baker, 4 M. & S. 29; E. C. L. R. 30.

2 Burgess v. Gray, 1 C. B. 578; E. C. L. R. 50; distinguishing Bush v. Steinman, 1 B. & P. 404.

3 Rich v. Basterfield, 16 L. J., C. P. 273.

4 See Lyons v. Martin, 8 Ad. & E. 512; E. C. L. R. 35; M'Manus v. Crickett, 1 East, 106; Lamb v. Palk, 9 C. & P. 629; E. C. L. R. 38; Sleath v. Wilson, Id. 607; Attorney-General v. Siddon, 1 Cr. & J. 220; Joel v. Morison, 6 C. & P. 501; E. C. L. R. 25; Goodman v. Kennell, 3 C. & P. 167; E. C. L. R. 14; per Lord Kenyon, C. J., 8 T. R. 533; per Ashhurst, J., Fenn v. Harrison, 3 T. R. 760; Gregory v. Piper, 9 B. & C. 591; E. C. L. R. 17; Huzzey v. Field, 2 C., M. & R. 432.(*) 5 Lyons v. Martin, 8 Ad. & E. 512; E. C. L. R. 35.

done in defiance of his authority, and to hold him liable for this would be holding him to be a wrong-doer for the act of his servant after his authority had been determined.1

With respect, also, to public functionaries having authority, as judges civil or ecclesiastical, commissioners of bankrupt, magistrates, or persons acting gratuitously, and intrusted with the conduct of public works, these parties are, in general, protected from the consequences of an illegal and wrongful act done by an officer or other person employed in an inferior ministerial capacity, provided that the principal himself acted in the discharge of his duty, and within the scope of his jurisdiction, and of the authority which has been delegated to him. It has, therefore, been *expressly laid down, [*674] that, if commissioners under an act of Parliament order something to be done which is not within the scope of their authority, or are themselves guilty of negligence in doing that which they are empowered to do, they render themselves liable to an action, but they are not answerable for the acts of those whom they are obliged to employ.2

In an ordinary case, moreover, where such commissioners in execution of their office enter into a contract for the performance of work, it seems clear that the person who contracts to do the work "is not to be considered as a servant, but as a person carrying on an independent business, such as the commissioners were fully justified in employing to perform works which they could not execute for themselves, and who was known to all the world as performing them."3 It is clear, also, that a servant of the Crown, contracting in his official capacity, is not personally liable on the contracts so entered into in such cases, therefore, the rule of respondeat superior does not apply. And the above, as well as other similar exceptions, result from motives of public policy; for no prudent person would accept a public situation at the hazard of exposing himself to a multiplicity of suits by parties thinking themselves aggrieved."

1 Brown v. Copley, 8 Scott, N. R. 350.

2 Judgment, Hall v. Smith, 2 Bing. 159; E. C. L. R. 9; adopted in Duncan v. Findlater, 6 Cl. & Fin. 894, 904, where the leading authorities in the English and Scotch law upon this subject are noticed; Thomson v. Mitchell, 7 Cl. & Fin. 564.

3 Judgment, Allen v. Hayward, 15 L. J., Q. B. 99, 102; S. C., 7 Q. B. 960; E. C. L. R. 53; citing Randleson v. Murray, 8 Ad. & E. 109; E. C. L. R. 35; Quarman v. Burnett, 6 M. & W. 499; (*) Milligan v. Wedge, 12 Ad. & E. 737; E. C. L. R. 40; and Rapson v. Cubitt, 9 M. & W. 710.(*)

4 Per Dallas, C. J., Gidley v. Lord Palmerston, 3 B. & B. 286, 287; E. C. L. R. 7; per Ashhurst, J., Macbeath v. Haldimand, 1 T. R. 181, 182; per Best, C. J., Hall v. Smith, 2 Bing. 159; E. C. L. R. 9.

*Lastly, the rule does not apply in the case of the Crown itself; for, as we have already had occasion to observe, the [*675] sovereign is not liable for personal negligence; and, therefore, the principle, qui facit per alium facit per se—which is applied to render the master answerable for the negligence of his servant, because this has arisen from his own negligence or imprudence in selecting or retaining a careless servant-is not applicable to the sovereign, in whom negligence or misconduct cannot be implied, and for which, if it occurs in fact, the law affords no remedy. Accordingly, in a recent case, to which we have already alluded, it was observed by Lord Lyndhurst, that instances have occurred of damage occasioned by the negligent management of ships of war, in which it has been held, that, where an act is done by one of the crew without the participation of the commander, the latter is not responsible; but that, if the principle contended for in the case then before the Court were correct, the negligence of a seaman in the service of the Crown would, in such a case, render the Crown liable to make good the damage; a proposition which certainly could not be maintained.1

OMNIS RATIHABITIO RETROTRAHITUR ET MANDATO PRIORI [*676]

EQUIPARATUR.

(Co. Litt. 207, a.)

A subsequent ratification has a retrospective effect, and is equivalent to a prior command.

It is a rule of very wide application, and one which we find repeatedly laid down in the Roman law, that ratihabitio mandato comparatur,2 where ratihabitio is defined to be "the act of assenting to what has been done by another in my name. 993 "No maxim," remarks Mr. Justice Story, "is better settled in reason and law than the maxim, omnis ratihabitio retrotrahitur et mandato

1 Viscount Canterbury v. The Attorney-General, 1 Phill. 306; ante, p. 44. It seems almost superfluous to observe, that the above remarks upon the maxim respondeat superior, are in the main applicable in criminal law. On the one hand, a party employing an innocent agent is liable for an offence committed through this medium; on the other, if the agent had a guilty knowledge, he will be responsible as well as his employer. See Bac. Max., reg. 16. As to the responsibility for a libel, see Reg. v. Cooper, 15 L. J., Q. B. 206.

2 D. 46, 3, 12, ¿ 4; D. 50, 17, 60; D. 3, 5, 6, ¿ 9; D. 43, 16, 1, 2 14.

3 Brisson, ad verb, "Ratihabitio."

priori æquiparatur,1 at all events, where it does not prejudice the rights of strangers. And the civil law does not, it is believed, differ from the common law on this subject."2

It is, then, true as a general rule, of which instances have frequently occurred in the preceding pages, and with respect to which we shall merely make a few additional observations in this place,3 that a subsequent assent given to what has been already done has a retrospective effect, and it is equivalent to a previous command. For instance, if the goods of A. are wrongfully taken and sold, the owner *may either bring trover against the wrong-doer, or may [*677] elect to consider him as his agent, may adopt the sale, and maintain an action for the price. In like manner, with respect to a contract entered into by a bankrupt, it is laid down, that the assignees have the option of adopting or rejecting it, according as it is likely to be beneficial or onerous to the estate; and, if adopted, the bankruptcy has no other effect on such a contract than to put the assignee in the place of the bankrupt, neither rescinding the obligations on either party, nor imposing new ones, nor anticipating the period of performance on either side. So, if the agent of a vendor misrepresent the subject-matter of the sale to the vendee, it will be proper for the jury to infer from the vendor's subsequent conduct,as, ex. gr., from his not having repudiated a warranty, when apprised of it,—that he was privy to, or impliedly assented to, the misrepresentation of the agent. Again, the title of an administrator relates back to the time of the death of the intestate, so as to entitle the personal representative to sue for the price of goods sold by one who intended to act as agent for the person, whoever he might happen to be, who legally represented the intestate's estate, the sale having been ratified by the plaintiff after he became administra1 Co. Litt. 207, a; 258, a; Wing. Max. 485. Many instances of the application of this maxim are given in 18 Vin. Abr., p. 156, tit. “ "Ratihabitio."

2 Per Story, J., delivering judgment, Fleckner v. United States Bank, 8 Wheaton, R. (U. S.) 363. As to the ratification of a promise by an infant under stat. 9 Geo. 4, c. 14, s. 5, see Harris v. Wall, 1 Exch. 122; (*) Harrison v. Cotgreave, 16 L. J., C. P. 198; Hartley v. Wharton, 11 Ad. & E. 934; E. C. L. R. 39.

3 The operation of the maxim as to ratihabitio with reference to the law of principal and agent, is considered at length in Story on Agency, pp. 202–219.

4 Ante, p. 653; Smith v. Hodson, 4 T. R. 211; Rodgers v. Maw, 15 M. & W. 448.(*) See Saunderson v. Griffiths, 5 B. & C. 909; E. C. L. R. 11; Underhill v. Wilson, 6 Bing. 697; E. C. L. R. 19; Kynaston v. Crouch, 14 M. & W. 266. (*)

5 See, per Parke, B., Gibson v. Carruthers, 8 M. & W. 331 ;(*) Twemlow v. Askey, 3 M. & W. 495. Wright v. Crookes, 1 Scott, N. R. 685.