"The PRINCIPAL sible for the consequences of doing it" (a). Moreover, though in some cases "it is laid down that the plaintiff is bound to show that the act of which he complains is done by the authority, express or implied, of the [master], the criterion is not whether the master has given the authority to the servant to do the particular act, but whether the servant does it in the ordinary course of his employment" (c). It is, in fact, to be specially noted that the employer's liability does not depend upon his ordering the particular act; for he may be responsible, even though he forbid it (d); and the cause of this extended liability seems to be, that if an employer were not made responsible for wrongs committed in his service, the injured person would be constantly without remedy (e). AND AGENT. It has been maintained that fraud stands in a different Fraud. position from other torts, and that an employer is not liable to be sued for the fraud of his agent, unless he has authorised the particular fraudulent representation complained of (ƒ). But though this view may be supported by good authority, the better opinion seems to be that "with respect to the question whether a principal is (a) Duncan v. Findlater, 6 Cl. & Fin. 894, per Lord Broom. (b) Quarman v. Burnett, 6 M. & W. 499, per Curiam. (c) Seymour v. Greenwood, 30 L. J. 192, Ex., per Martin, B. (d) Limpus v. London General Omnibus Co., 1 H. & C. 526; 32 L. J. 34, Ex. (Ex. Ch.) (e) Ibid., 32 L. J. 40, Ex. (Ex. Ch.), judgment of Willes, J. (f) See Benjamin, Sale, 350; Cornfoot v. Fowke, 6 M. & W. 358; Udell v. Atherton, 7 H. & N. 172; 30 L. J. 337, Ex.; Western Bank of Scotland v. Addie, L. R. 1 Sc. App. 145. See further as to the liability of a corporation for fraud, Chapter XXVIII. AND AGENT. PRINCIPAL answerable for the act of his agent in the course of his master's business and for his master's benefit, no sensible distinction can be drawn between the case of fraud and the case of any other wrong. The general rule is that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service, and for the master's benefit, though no express command or privity of the master be proved . . . In all [the] cases [in which the master has been held liable], it may be said that the master has not authorised the act. It is true he has not authorised the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to place him in ” (g). One peculiarity in the nature of fraud must, however, be taken into account, which is, that since to constitute fraud there must exist both a statement untrue in itself, and knowledge on the part of the person who makes it of its untruth, or at any rate absence of belief in its truth, it may happen that where a false representation is made by an agent, the agent who makes the untrue statement believes it to be true, whilst the principal who knows it to be false, has, though employing the agent to transact his business, not authorised or intended him to make the particular statement. Under these circumstances, the principal cannot be made liable for the fraud by combining his knowledge with the act of the agent (h). But here there is no real exception to the rule that an employer is liable for torts committed by his servant in the course of his employment. The reason why the principal cannot be sued is that it is "impossible to sustain a charge of fraud when neither principal nor agent has committed any,—the principal because, though he knew the fact, he was not cognisant (g) Barwick v. English Joint Stock Bank, L. R. 2 Ex. 265-267 (Ex. Ch.), per Curiam. (h) Cornfoot v. Fowke, 6 M. & W. 358. AND AGENT. of the misrepresentation being made, nor even directed PRINCIPAL the agent to make it; and the agent, because, though he made a misrepresentation, yet he did not know it to be so at the time when he made it " (i). A master's liability is not diminished by the fact that the servant who commits a tort has been appointed, not by the master directly, but indirectly through the intervention of an agent, e. g., a steward. In order to make P. liable for A.'s acts as his servant, it is necessary to establish, first, that A. was at the time of committing the act complained of, P.'s servant; secondly, that the act was done in the course of A.'s employment as P.'s servant. servant the servant? 1st Question.-Was the servant the defendant's ser- Was the vant? "The law does not recognise a several liability defendant's in two principals who are unconnected. If they are jointly liable, you may sue either, but you cannot have two separately liable" (k). P. and M., that is to say, may be joint employers of A. (1), in which case they may be sued either jointly or separately for torts committed. by A. in their service. But if P. and M. are unconnected, any act done by A. will be considered done in the service either of P. or of M., as the case may be, but the same act will not be considered as done in the service both of P. and of M. It was, for instance, at one time doubted whether the coachman who drives a hired carriage is the servant of the owner of the carriage, or of the hirer, and it was laid down that "he is the servant of one or the other, but not the servant of one and the other. You must bring your action either against the principal, or against the coachman who commits the injury, but you cannot bring it against the owner and [against] the hirer of the carriage" (m). It is now settled (n) that the owner, and not the hirer, of (i) Cornfoot v. Fowke, 6 M. & W. 358, 372, per Alderson, B. (7) Chapter XXVII. (m) Laugher v. Pointer, 5 B. & C. 556, per Littledale, J. G G AND AGENT. PRINCIPAL the carriage, is the master of the coachman, and that therefore the owner, and not the hirer, is liable for damage caused by the coachman's negligent driving (0); assuming, of course, that the coachman is supplied by the person who lets the carriage, for if the hirer supplies the coachman, he is his master, and liable for his negligence. Employer of con liable for contractor's servants; The principle on which the question under consideration must be answered is, it seems, that A. is the servant of the person by whom he can be dismissed, and not of the person who employs and may even pay him, but has no power to dismiss him. This may be the case with servants at hotels. They frequently receive no wages from the innkeeper, but trust entirely to what they receive from the persons who resort to the hotel, yet they are not the less the servants of the innkeeper (p). Contractor's servants not servants of employer.—A pertractor, not son who employs another (commonly called a contractor) to perform any service for him, e.g., build a house, is not the employer of the contractor's workmen or other servants, and is therefore, as a general rule, not liable for torts committed by them. Where, for instance, a company employed a contractor to build a viaduct, and a man was killed, owing to negligence on the part of the contractor's workmen; the company, though it had reserved to itself the power to dismiss incompetent workmen, if the contractor should employ them, was nevertheless held not to be liable (q). So, where a butcher bought a bullock in Smithfield Market, and employed a licensed drover to drive it home, and the drover employed a boy through whose negligence the bullock injured the plaintiff's property, the butcher was held not liable (†). (o) Quarman v. Burnet, 6 M. & W. 499. (p) See Laugher v. Pointer, 5 R. & C. 556, judgment of Littledale, J. (q) Reedie v. London and North-Western Rail. Co., 4 Ex. 244; 20 L. J. 65, Ex. (r) Milligan v. Wedge, 12 A. & E. 737. AND AGENT, A builder, employed to make alterations at a club house, PRINCIPAL including the fixing of certain gas-fittings, made a subcontract with a gas-fitter to do this work. Through the negligence of the gas-fitter, or his servants, the gas exploded and caused damage. It was held that the builder was not liable to be sued for it (s). Commissioners of navigation, who entered into a contract with a person that he should do certain works, were held not responsible for an injury arising from the imperfect performance of part of those works (t). Again, where certain commissioners contracted with a contractor to pave a district, and the contractor contracted with M. to lay down a certain portion of the pavement, and M.'s workmen left some stones at night, so as to constitute a public nuisance; it was held that a person injured in falling over the stones could not sue the contractor, as the injury was not caused by his workmen (u). An employer remains liable in the following cases (x). Case 1.-The employer is liable when he personally unless interferes with the contractor's workmen (y). he interferes; to be done be unlaw. Case 2.-The employer is liable when the act con- unless act tracted to be done is in itself unlawful (z); for, "if the contractor does that which he is ordered to do, it is the ful; act of his employer. In those cases in which nothing was ordered except that which the party giving the order had a right to order, and the contract was to do what was legal. the employer has been [held] properly not liable for what the contractor did negligently, the relation of master and servant not existing. But where an employer employs a contractor to do that (s) Rapson v. Cubitt, 9 M. & W. 710. (1) Allen v. Hayward, 7 Q. B. 960; 15 L. J. 99, Q. B. Smith, Master and Servant, 2nd ed., 200-201. See further, (x) Ellis v. Sheffield Gas Co., 23 L. J. 45, Q. B., judgment of Campbell, C. J. (y) Burgess v. Gray, 5 C. B. 578; 14 L. J. 184, C. P. (2) Peachy v. Rowland, 13 C. B. 182; 22 L. J. 81, C. P.; Ellis v. Sheffield Gas Co., 2 E. & B. 767; 23 L. J. 42, B. |