for, although that party will usually be liable from 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 (s); as in the instance of a butcher who employs a drover, whose deputy does the mischief by his careless driving (t); or of a builder who contracts to make certain alterations in a club-house, together with the necessary gas-fittings, and who employs a gas-fitter for the latter purpose under a sub-contract, through the negligence of whom, or of whose servants, the plaintiff sustains an injury (u): 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 the latter (x). The general rules, however, qui facit per alium facit per se and respondeat superior, apply in the case 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 (y). Where, for instance, a man is the owner of a ship, he him 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. (8) Per Williams, J., and Coleridge, J., 12 A. & E. 742. (t) Milligan v. Wedge, 12 A. & E. 737. (u) Rapson v. Cubitt, 9 M. & W. 710; S. C., Car. & M. 64. See Wilson v. Peto, 6 Moore, 47; Witte v. Hague, 2 D. & R. 33. (x) See the judgment in Quarman (y) Randleson v. Murray, 8 A. & 403. self 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 (2). By a policy of insurance, however, the assured makes no warranty to the 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 (a). 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 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 (b); and a state of facts might perhaps occur in which the charterer would be answerable as well as the owner (c). In the ordinary case, however, where the owner of a carriage hires horses of a (z) Per Littledale, J., 5 B. & C. 554. (a) Judgment, Dixon v. Sadler, 5 M. & W. 414. (b) Fenton v. City of Dublin Steampacket Company, 8 A. & E. 835; Fletcher v. Braddick, 2 N. R. 182, recognised, 5 B. & C. 556 ; Newberry v. Colvin, 7 Bing. 190, reversing the judgment in S. C., 8 B. & C. 166; Trinity House v. Clark, 4 M. & S. 288. (c) Per Lord Denman, C. J., and Patteson, J., 8 A. & E. 842, 843. stable-keeper, who provides a driver, through whose negligence an injury is done, the driver must be considered as the servant of the stable-keeper or job-master, against whom, consequently, the remedy must be taken; unless there be special circumstances shewing an assent, either express or implied, to the tortious act by the party hiring the horses, or shewing that such party had control over the servant, and was, in fact, dominus pro tempore (d). rule. The principle of respondeat superior does not, however, Exceptions to 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 (e): as if a servant, authorised merely to distrain cattle damage-feasant, drives cattle from the highway into his master's close, and there distrains them (f). With respect, also, to public functionaries having authority, as judges civil or ecclesiastical, commissioners of bankrupt, magistrates, or persons acting gratuitously, and entrusted 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 (d) 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; Quarman v. Burnett, 6 M. & W. 499; the judgments of Abbott, C. J., and Littledale, J., in Laugher v. Pointer, 5 B. & C. 547; Hart v. Crowley, 12 A. & E. 378; Taverner v. Little, 5 B. N. C. 678; Croft v. Alison, 4 B. & Ald. 590; Smith v. Lawrence, 2 Man. & Ry. 1; Sammell v. Wright, 5 Esp. N. P. C. 263; Scott v. Scott, 2 Stark. N. P. C. 438; Brady v. Giles, 1 M. & Rob. 494; per Patteson, J., 8 A. (e) See Lyons v. Martin, 8 A. & (f) Lyons v. Martin, 8 A. & E. 512. within the scope of his jurisdiction, and of the authority which has been delegated to him. Nor is a servant of the Crown, contracting in his official capacity, personally liable on the contracts so entered into: in such cases, therefore, the rule of respondeat superior does not apply. And these, 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 (g). Neither does the rule apply in the case of the Crown itself; for, as we have already had occasion to observe, the 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. A petition of right will not, therefore, lie against the Crown for damage occasioned in the previous reign by a fire which happened through the negligent conduct of certain workmen employed under the immediate direction of the Commissioners of Woods and Forests; nor does it seem that such a petition would lie against the sovereign in whose reign the injury was actually sustained (h). It was observed by the Lord Chancellor Lyndhurst, in the case now referred to, 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 (g) Per Dallas, C. J., Gidley v. Lord Palmerston, 3 B. & B. 286, 287; per Ashhurst, J., Macbeath v. Haldimand, 1 T. R. 181, 182; per Best, C. J., Hall v. Smith, 2 Bing. 159. (h) Viscount Canterbury v. Reg., 7 Jurist, 224; ante, p. 23. 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 (i). VIGILANTIBUS, NON DORMIENTIBUS, JURA SUBVENIUNT. (2 Inst. 690). The laws assist those who are vigilant, not those who sleep over their rights (k). this rule. We have already, under the maxim caveat emptor (1), con- Instances of sidered cases illustrative of the proposition that courts of justice require and expect that each party to a contract or bargain shall exercise a due degree of vigilance and caution; we shall, therefore, in the following remarks, confine our attention to the important subject of the limitation of actions, which will serve to exemplify that general policy of the law, in pursuance of which "the using of legal diligence is always favoured, and shall never turn to the disadvantage of the creditor" (m). It may, however, be desirable, in the first place, to give a few instances of this principle, which is one well known (n) and of very extensive applicability. Thus, at common law, executions had priority over all debts which were not specific liens: and, (i) 7 Jurist, 227. It seems almost superfluous to observe, that the maxim, qui facit per alium facit per se, is 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. (*) See Wing. Max., p. 672; Hobart, R. 347, cited, ante, p. 27. (7) Ante, p. 354. See, also, the maxim prior tempore, potior jure, ante, p. 329. (m) Per Heath, J., Cox v. Morgan, 2 B. & P. 412. (n) In 2 B. & P. 412, Heath, J., observes, that this is one of the maxims which we learn on our earliest attendance in Westminster Hall. |