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due to any witness. It only acts upon his own certificate, and acknowledgment of his opinion upon the subject. Such a bill of exceptions . . . . only states briefly the facts as they appeared to the judge, and are admitted by him to have been proved, and in consequence of such, his admission, the appellate court founds its decision upon the same facts as governed the court below."

But this case (Bennett v. Hardaway, supra) was soon-to adopt the expressive phrase of Carr, J., in Ewing v. Ewing, 2 Leigh, 340-curtailed of its fair proportions. For, by a line of decisions, beginning with Carrington v. Bennett, 1 Id. 340, decided as early as 1829, it was quickly established, as a qualification of the rule, that if the bill of exceptions contains a certificate of the oral testimony given on the trial, the appellate court would review and reverse the judgment, if, after rejecting all the oral testimony of the excepting party, and giving full force and credit to the evidence of the adverse party, the judgment still appears to be wrong: Rohr v. Davis, 9 Leigh, 30; Pasley v. English, 5 Gratt. 141; Carrington v. Goddin, 13 Id. 587; Gimmi v. Cullen, 20 Id. 439; Read's Case, 22 Id. 924; Danville Bank v. Waddill, 31 Id. 469; Dean's Case, 32 Id. 916; Creekmur v. Creekmur, 75 Va. 432; Taylor's Case, 77 Id. 692. This qualification, while it restricts the operation of the rule laid down in Bennett v. Hardaway, supra, does not contravene the principle of that case. For, as Cabell, J., acutely observes, in Ewing v. Ewing, supra, the appellate court does not decide on the credit of the witnesses; it proceeds on the admission of their credit; "and surely if," as a former and distinguished judge of this court puts it in a lucid article touching this subject, "a judgment against a party, after he has been stripped of all his own oral evidence, and all his adversary's evidence has been accorded full force and credit, still appears to be wrong, that judgment ought to be reversed": Va. L. J., 1885, p. 259.

This court having gone thus far in opening the door for the admission of evidence, in Powell v. Tarry, 77 Va. 263, took another step forward, and in that case held that whenever the inferior court, for any cause, could not or would not certify the facts, that it must, upon the application of the party aggrieved, certify the evidence; thus expressly overruling Grayson's Case, 6 Gratt. 724, upon this particular point, and by necessary implication overruling Brooks v. Calloway, 12 Leigh, 466, and Taliaferro v. Franklin, 1 Gratt. 332, on the same point.

It will be seen from this résumé of the cases that there has been a very gradual but growing disposition on the part of the court to relax the rule established in Bennett v. Hardaway, supra, prohibiting the court from a judgment granting or refusing a new trial when the certificate contained the evidence instead of the facts, wherever it could be done without invading the province of the jury, and referring questions as to the weight of evidence and credit of witnesses to this court, and revising the judg ment of the trying court upon lights and data inferior to those possessed by that court.

The rule contended for will produce neither of these results. It refers no question as to the credit of the witnesses to this court; but assuming that the witnesses who testified for the party prevailing are equally credible with those who testified for the loosing side, leaves it to this court upon the evidence as a whole whether there has been a plain deviation from right and justice, and whether the verdict was against law or contrary to the evidence,-- i. e., without evidence or against evidence. Nor will such a rule be amenable to the objection that it enables the appellate court to revise the judgment of the lower court without having the same lights and data that were possessed by that court. For we must presume, from. the failure of the judge to certify otherwise, that he believed all of the witnesses to be credible, and therefore that he set aside the verdict on the only grounds upon which he could properly set it aside,- that is, because it was without evidence, against the evidence, or against law. Excluding, then, the supposition that he saw something in the manner of testifying of some of the witnesses that impaired their credit, for the reason stated above, that he declined to certify that such. was the case, as he clearly might have done, it seems to us to be obvious that the appellate court has all the means necessary to lead them to a correct conclusion that were possessed by the lower court. It is equally clear that cases of the kind with which we are now dealing do not fall within the reason of the rule which requires the exceptor, where both the jury and the court below are against him, to strip himself of all his oral testimony, and prevail-if prevail he can-upon the evidence of his adversary, and therefore ought not to be bound by that rule. After careful reflection, we perceive no valid objection to our looking to the whole evidence in cases like the present one; and as it seems that that was done in Brown v. Rice, 76 Va. 630, it will be done here.

AX. ST. REP., VOL. III.—6

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It seems, however, to be assumed that if we look to the evidence in this case we must affirm the verdict. To this we do not assent. For whilst great weight is always—and justly attributed to the verdict of a jury in a case where the evidence is conflicting and the credibility of witnesses is involved; and whilst the power of the court to grant a new trial because the verdict is contrary to the evidence should be very cautiously exercised, and never in a doubtful case merely because the court, if on the jury, would have given a different verdict,yet we believe it cannot be successfully controverted that the power exists: Ross v. Overton, 3 Call, 319; 2 Am. Dec. 552; Brugh v. Shanks, 5 Leigh, 649; Green v. Ashby, 6 Id. 150; Patteson v. Ford, 2 Gratt. 23; Hill's Case, 2 Id. 595; Downer & Co. v. Morrison, 2 Id. 240. And that in a proper case that is, where the verdict is clearly contrary to the law and evidence it should be exercised.

In this case we think the verdict was clearly contrary to the law and the evidence. For whatever conflict of testimony there may be about points of evidence not vital to the merits of the case, the evidence incontestibly establishes the following facts: The coachman in charge of the horse and phaeton on the occasion of the accident was a domestic servant, hired and paid by one M. L. Straus, the father-in-law and partner of the defendant Stern. The horse and phaeton were the individual property of Straus, and kept on his premises. The business of the boy or coachman was to attend to the horse and phaeton, and when not so engaged to attend about the house, and in good weather drive Mr. Straus out. That on the occasion of the accident, the driver had been sent by Straus to meet the defendant and convey him from the depot to the store of the firm. And that as soon as the defendant got into the phaeton the driver drove off rapidly down Byrd Street in the direction of the store; and in driving across the railroad track on Eighth Street, the plaintiff was struck by one of the wheels of the vehicle, and knocked down and injured.

Now, upon this state of facts, can it be maintained that the driver was the servant of the defendant?

The liability of a third person to the person injured, for the negligence of another, proceeds upon the maxim, Qui facit per alium, facit per se, and presupposes the existence of the relation of master and servant between such third person and the person actually guilty of the negligent act. It is founded

upon the right which the employer has to select his servants, and to discharge them if not competent or skillful, and to direct and control them while in his employ. The servant is regarded as an instrument set in motion by the master, and if any injury occurs to another through the negligence or unskillfulness of such servant while in the course of his employment, it is deemed reasonable that he who has selected the servant should be answerable for such injury: Turberville v. Stampe, 1 Ld. Raym. 266; Smith v. Lawrence, 2 Man. & R. 1; Rapsen v. Cubitt, 9 Mees. & W. 710; Hobbit v. London and Northwestern R'y Co., 4 Ex. 254; Crockett v. Calvert, 8 Ind. 127. Hence, in cases of this character, when it has once been ascertained in whose employ the servant actually is, it is only necessary to ascertain further that the servant was engaged, at the time the act of negligence was committed, in the performance of some duty enjoined upon him by his master, within the scope of employment, to fasten upon the master a liability for any injury resulting from the negligent act of the servant.

These views have received the approval of the most distinguished judges and text-writers in this country and in England: Story on Agency, 9th ed., secs. 453 et seq.; Wharton on Negligence, 2d ed., secs. 156 et seq.; 1 Parsons on Contracts, 105 et seq.

In the great case of Laugher v. Pointer, 5 Barn. & C. 547, it was held by Lord Tenterden, C. J., and Littledale, Bayley, and Holroyd, JJ., dissenting, that the owner of a carriage, who had hired of a stable-keeper a pair of horses to draw the carriage and a driver to drive them, there being no evidence of any adoption on the part of the owner of the carriage of the driver as his servant, was not liable for an injury done to the horse of a third person through the negligent driving of such coachmen or driver. In that case, Littledale, J., said: "According to the rules of law, every man is answerable for injuries occasioned by his own personal negligence; and he is answerable also for acts done by those whom the law denominates his servants; because such servants represent the master himself, and their acts stand upon the same footing as his own. And in the present case the question is, whether the coachman, by whose negligence the injury was received, is to be considered a servant of the defendant. For the acts of a man's own domestic servants there is no doubt the law makes him responsible; and if the accident had been occasioned by

a coachman who constituted a part of the defendant's own family, there would be no doubt of the defendant's liability; and the reason is, that he is hired by the master either personally or by those who are intrusted by the master with the hiring of servants, and he is therefore selected by the master to do the business required of him."

In Quarman v. Burnett, 6 Mees. & W. 409, the same question arose in the court of exchequer, and the opinions of Lord Tenterden and Littledale, J., were affirmed in a carefully prepared opinion by Baron Parke. In the course of that opinion, he says: "Upon the principle that, Qui facit per alium, facit per se, the master is responsible for the acts of his servants, and that person is undoubtedly liable who stood in the relation of master to the wrong-doer, he who had selected him as his servant, from the knowledge 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."

In view of these well-settled principles, we cannot escape the conclusion that the relation of master and servant did not exist, either in law or in fact, between the defendant and the driver at the time the injury was received by the plaintiff.

It may be true, as observed by Baron Parke in Quarman v. Burnett, supra, that there may be special circumstances which may render the hirer of job-horses and servants, and I apprehend other bailees as well, responsible for the neglect of a servant, though not liable by virtue of the general relation of master and servant. He may become so by his own conduct, as by taking the actual management of the horses, or ordering the servant to drive in a particular manner, which occasions the damage complained of, or to absent himself at one particular moment, and the like. But as none of these or like circumstances appear in the evidence in this case, we need give no opinion as to the legal effect of them.

It is sought, however, to liken this case to the case of McLaughlin v. Pryor, 4 Man. & G. 48. That case went off on the ground that the defendant was a joint trespasser with the post-boys. But none of the circumstances relied on in that case to render the defendant liable exist in this. There the defendant, who, together with a party of friends, had hired a carriage and four post-horses, driven by two postilions in the