orders; but not for mere nonfeasance.

obedience to ground that he acted merely in obedience to his master's orders his master's or for his master's benefit (r). But for mere nonfea-ance or omission of duty, a servant is not liable to answer in a civil action at the suit of third persons, but only to his own master (s), who, in accordance with the maxim already alluded to 'Respondeat superior,' is liable to answer for his servant's neglect" (t). This distinction between misfeasance and nonfeasance was thus stated by Lord Holt, in his celebrated judgment in Lane v. Cotton (u), "It was objected at the bar that they have this remedy against Breese (the servant). I agree if they could prove that he took out the bills they might sue him for it: so they might anybody else on whom they could fix that fact; but for a neglect in him they can have no remedy against him, for they must consider him only as a servant, and then his neglect is only chargeable on his master or principal; for a servant or deputy quatenus such cannot be charged for neglect, but the principal only shall be charged for it; but for a misfeasance an action will lie against a servant or deputy, but not quatenus a deputy or servant, but as a wrongdoer."

Perkins v. Smith,

Upon the principle that a servant is liable for a misfeasance, the defendant was held liable in Perkins v. Smith (x), which

(r) In Pearson v. Graham, 6 A. & E. 902, Lord Denman, C. J., said, "It might be very doubtful whether a servant delivering goods by his master's order could be said to have converted those goods as against the assignees of his master. Coles v. Wright, 4 Taunt. 198, rather seems to show that he could not." The case of Coles v. Wright, however, seems to belong to a different class of cases, ante, p. 229. It was an action for money had and received, and the defendant was held not liable, as he had paid the money over to his master. And in Pearson v. Graham, the defendant, who had received no express orders as to the goods in question, but took upon himself, under a general authority, to sell and deliver them at a time when, as it afterwards turned out, his master had committed an act of bankruptcy, was held liable to an action of trover, at the suit of his master's assignees. Any distinction between the effect of a special and a general authority from the master to the servant, upon the liability of the servant would seem to be opposed to the cases of Perkins v. Smith and Stephens v. Elwall, afterwards

cited in the text; and which cases were not cited in Pearson v. Graham.

(s) Gidley v. Lord Palmerston, 3 Brod. & B. 275, 285.

(t) So the servant of a carrier is not generally responsible for the loss of a parcel to the owner, who should look to the master, Williams v. Cranstoun, 2 Stark. 82; Cavanagh v. Such, 1 Price, 328, as the duty (the breach of which gives the right of action) arises out of a contract with the master. See Marshall v. The York, Newcastle, and Berwick Railway Company, 21 L. J., C. P. 34; S. C. 11 C. B. 655, where it was held that a servant might maintain an action against carriers for loss of his luggage, although his master paid the fare. See also Collett v. North-Western Railway Company, 16 Q. B. 984; Longmeid v. Holloway, 6 Exc. 767; Dalyell v. Tyrer, 28 L. J., Q. B. 52.

(u) 12 Mod. 488.

(x) 1 Wils. 328; see Simonds v. Atkinson, 1 H. & N. 146; and see Michael v. Alestree, 2 Lev. 172, ante, p. 184, where the action (for negligent driving) was brought against both master and

servant.

may be regarded as a leading case upon this subject. In that case the facts were shortly these:-The plaintiff was assignee of a bankrupt, and the defendant servant and riding-clerk to a creditor of the bankrupt; the defendant went to the bankrupt's shop to try and get his master's money and found it shut up, but the bankrupt delivered to the defendant certain goods, for which the defendant gave a receipt in his master's name, and then sold the goods for his master's use; upon which the bankrupt's assignee brought an action of trover against the servant. It was objected that the action was improperly brought against the servant, who acted wholly in this matter for his master, and that the conversion, which is the gist of the action of trover, was found to be to the use of the master. But after two arguments at the bar, the court gave judgment for the plaintiff, Lee, C. J., saying, "The point is whether the defendant is not a tortfeasor, for, if he is so, no authority that he can derive from his master can excuse him from being liable in this action. The act of selling the goods is the conversion, and whether to the use of himself or another, it makes no difference. I am very well satisfied that this servant has done wrong, and that no authority that could be derived from his master, before or after the fact, can excuse him."

The rule thus laid down was again acted on in Stephens v. El- Stephens ▼. wall (y), which was also an action of trover by the assignees of Elwall. a bankrupt for goods which the bankrupt had sold after his bankruptcy to D., to be paid for by bills on H., for whom the goods were bought. H. was in America, and the defendant was his clerk; the goods were delivered to the defendant, who sent them to H. in America. At the trial it was contended, on the authority of Perkins v. Smith, that the defendant was liable, although he merely acted as clerk to H.; the judge, however, thought otherwise, and so directed the jury, who found a verdict for the defendant. But in the following term a new trial was granted, Lord Ellenborough, C. J., saying: "The only question is whether this is a conversion in the clerk, which undoubtedly was so in the master. The clerk acted under an unavoidable ignorance and for his master's benefit when he sent the goods to his master; but nevertheless his acts may amount to a conversion, for a person is guilty of a conversion who intermeddles with any property and disposes of it, and it is no answer that he acted under authority from another who had himself no authority to dispose of it. And the court is governed by the principle of law and not by the hardship of any particular case. For what can be more hard than the common case in trespass where a servant has done some act in assertion of his master's right, that he shall be liable, not only jointly with his master, but, if his master cannot satisfy it, for every penny of the whole damage; and his person also shall be liable for it; and what is still more, that he shall not recover contribution " (z).

(y) 4 M. & S. 259; see Greenway v. Fisher, 1 C. & P. 190.

(z) See, as to this point, Merryweather v. Nixan, 8 T. R. 186;

S. C. 2 Smith's L. C. 297, where
the subsequent cases will be
found collected. See also Fare-
brother v. Ansley, 1 Camp. 343;

Cranch v.
White.

Powell v. Hoyland.

Servant not

Similar principles were again enforced in Cranch v.White (a). That was an action of trover for a bill of exchange which had been entrusted by the plaintiff to one Roberts to get discounted. Roberts owed the defendant's mother, who was a coal merchant, and whose clerk the defendant was, a large sum for coals, and instead of getting the bill discounted, Roberts endorsed it and placed it in the hands of the defendant, who carried it to the credit of Roberts's account with his, the defendant's, mother. The defendant, when apprised of Roberts's fraud, refused to deliver up the bill; but it was held that by so doing he rendered himself liable to the action of trover which was brought against him, although it was contended on his behalf that the action should have been brought against his mother; Tindal, C. J., saying that any justification of the defendant's conduct, as the agent of his mother, fell to the ground on the authority of Perkins v. Smith and Stephens v. Elwall.

And again, in Powell v. Hoyland (b). In that case the defendant, acting on behalf of Y. and Co., obtained from the plaintiff certain bills of exchange under circumstances which did not entitle Y. and Co. to them. These circumstances were unknown to the defendant at the time he obtained the bills from the plaintiff, but he was afterwards, and before he had delivered the bills to Y. and Co., informed of the facts, and told that his employers had no right to the bills. In spite of this information he refused to give the bills to the plaintiff, and delivered them to his employers; and it was held that by so doing he became liable to an action of trover; Lord Wensleydale observing, "there is no doubt that, though the defendant did not receive the bills for himself but as the agent of Y. and Co., he may be liable in an action of trover, if the facts show a conversion by him;" which they were held to do.

Where, however, a servant merely refuses to deliver goods liable with received from his master to any other person, without his master's orders, such refusal has been held not to amount to a conversion by the servant, and he has accordingly been held not liable to an action of trover (c).

out proof of actual conversion by him.

Mires v.
Solebay.

Upon this distinction depends the old case of Mires v. Solebay (d). There the defendant, by command of his master, drove some sheep, which the plaintiff claimed to have purchased, on to his master's land, and then refused to deliver them to the plaintiff: he was held not liable in trover for so doing; "for it being in obedience to his master's command, though he had no title, yet he shall be excused."

Adamson v. Jervis, 4 Bing. 66.
As to whether the court would
interfere to protect the servant,
see Gregory v. Slowman, 1 E. &
B. 360.

(a) 1 Bing. N. C. 414; and
see Davies v. Vernon, 6 Q. B.
443.

(b) 6 Exc. 67.
(c) If he refuse to give up

goods to the rightful owner, and rely on his master's title, he may be liable in trover; aliter, if he merely give a qualified refusal and refer to his master, Lee v. Robinson, 25 L. J., C. P. 249; Lee v. Bayes, 18 C. B. 599, 607.

(d) 2 Mod. 242.

So where (e) the defendant, who was servant to an insurance Alexander v had in his custody in a warehouse, of which he kept company, Southey. the key, certain goods belonging to the plaintiff, saved from a fire at the plaintiff's house, and which had been carried to the warehouse by the servants of the company, and upon the plaintiff demanding the goods, said he could not deliver them without an order from the company, he was held not liable to an action of trover, as the refusal to deliver the goods without an order from his master did not amount to a conversion of the goods. "If,” said Holroyd, J., "we were to hold this refusal to be a conversion, it would go this length, that if a person were to call at a gentleman's house and to ask his servant to deliver goods to him, and the servant were to refuse to do so unless a previous application was made to his master, it would amount to a conversion on the part of the servant. In this case the goods came into the defendant's possession lawfully, and the refusal is only till an order is obtained from the defendant's employers. In Perkins v. Smith the defendant received the goods wrongfully at first, and the conversion was by an actual sale of them. Now it is clear that the authority of the master would not amount to a defence of that which was altogether a tortious act of the servant. The case of Mires v. Solebay is an authority in point."

But a warehouseman (ƒ) who refused to deliver goods out of Wilson v. his warehouse to the rightful owner, without the direction of Anderton. the person from whom he (the warehouseman) received them, was held liable to an action of trover at the suit of the rightful owner, as such refusal was considered to be sufficient evidence of conversion. In that case, however, the defendant was a warehouseman, and it was considered that the defendant had by his conduct identified himself with the person from whom he received the goods; whereas, in Alexander v. Southey, the defendant was merely a servant, and referred the parties to his master (g).

Where a servant of the law refused to give up goods which Verrall v. had been attached by legal process, saying that they were in the Robinson. custody of the law, his doing so was held not to amount to a conversion so as to render him liable to an action at the suit of the owner of the goods (h). There, however, the defendant remained passive, had he taken upon himself to decide, he might perhaps have rendered himself liable (i).

We have already seen that if a servant is guilty of a fraud in transacting his master's business, the master may be liable to an

(e) Alexander v. Southey, 5 B. & Ald. 247; and see Grylls v. Davies, 2 B. & Ad. 514. In Day v. Bream, 2 M. & Rob. 54, a porter who, in the course of his business, delivered parcels containing libellous publications, was held not liable to an action for libel, as he was ignorant of

the contents of the parcel.

(f) Wilson v. Anderton, 1 B. & Ad. 450.

(g) See Catterall v. Kenyon, 3 Q. B. 310.

(h) Verrall v. Robinson, 2 C. M. & R. 495.

(i) Catterall v. Kenyon, 3 Q. B. 310.

As to ser

vant's liability for

fraud in transacting

his master's business.

Public

officers in subordinate

for misfeas

ance.

action at the suit of the party defrauded (i). And it would seem to be the better opinion that the servant also is liable, if he knowingly commit a fraud in his master's business, to answer for it to the party injured, and cannot shelter himself under his master's responsibility, although authorized by his master to commit the fraud; for, as observed by Mr. Justice Story (k), it is an illegal act and contrary to sound morals. It is indeed laid down in Rolle's Abridgement (1), that if the servant of a taverner sell bad wine knowingly, no action lies against him, for he only did it as servant. But that position has been frequently doubted by text-writers (m), and would seem to be contrary to the principle of the cases before referred to, in which the command of the master has been heid no justification of a misfeasance on the part of the servant.

not

We have also, whilst treating of the liability of a master for the tortious acts of his servants, seen that an exception to his capacity per- general liability in such cases is established in the case of public sonally liable officers in a superior capacity who are not in general responsible for the tortious acts of their subordinate officers. It by no means follows, however, that such subordinate officers are not themselves responsible for their own misdeeds. On the contrary, the exemption of their superior officers from liability to answer for their misfeasances, would seem to offer an à fortiori reason for holding them responsible for their own acts, otherwise wrongs committed by them might go altogether unredressed, since, upon public grounds, Government are generally responsible for the misfeasances of their officers (n). Accordingly, in the cases before referred to, of actions against the postmaster-general for the loss of letters, we find it admitted on all hands that the servant, through whose negligence the letters were lost, would have been liable to actions at the suit of the parties injured, and the only question made was, as to the liability of the master. "As to an action on the case lying against the party really offending," said Lord Mansfield (0), "there can be no doubt of it; for whoever does an act by which another person receives an injury, is liable in an action for the injury sustained. If the man who receives a penny to carry the letters to the post-office loses any of them, he is answerable, so is the sorter in the business of his department, so is the postmaster for any fault of his own." Upon this principle, in several cases, the deputy postmaster has been held liable to an

Deputy Postmaster.

(i) Ante, p. 188. See also Bedford v. Bagshaw, 29 L. J. Exc., 59, et cas. ib. cit.

(k) Story on Ag. 310.

(1) 1 Roll. Abr. 95; see Com. Dig. Action upon the case for a Deceit, B.

(m) See Mr. Justice Coleridge's edit. of Blackst. Comm. vol. i. 431, note 11; Story on Ag. 310, note 1; Smith's Merc. Law, 155, note k; Paley on Ag. 399, note.

(n) It has, however, been held that the captain of a man-of-war, who had committed an act of trespass in the public service, which was subsequently ratified by the ministers of state, was not liable to an action at the suit of the party injured, who had his remedy, such as it was, against the Crown only, Buron v. Denman, 2 Exc. 167.

(0) In Whitfield v. Lord Le Despenser, Cowp. 765.