21. Various instances of torts by Servants; W. C. 1. Torts by deceit or fraud of the Servant.

The master is, in general, liable in an action ex contractu, but not in an action of tort, for any fraud or deceit practised by his servant or agent touching his business, although he knew not of it, nor was in any wise actually privy thereto; for as somebody must be a loser by it, it is fitting that it should be he who had the selection of the agent, and who reposed the confidence. Thus, a purchaser who has suffered by the deceit or fraud of the agent of the vendor, may upon that ground cancel the contract of purchase, supposing that he can put the vendor in statu quo, or if the purchase has not been consummated, he may resist an action to enforce it, the principal being allowed to retain no benefit which he has obtained through the fraud of his agent. But if, instead of seeking to set aside the contract, the purchaser prefers to bring an action for damages, it must be instituted against the agent only, and cannot be maintained against the innocent principal. Where, however, the principal knowingly accepts the benefit of the agent's act, he is always liable therefor, as if he had previously authorized it. (1 Pars. Cont. 62-'3; Hern v. Nicholas, 1 Salk. 289; Grammar v. Nixon, 1 Str. 653; Crump v. U. S. Mining Co 7 Grat. 353; Harvey's Adm'r v. Steptoe's Adm'r, 17 Grat. 303; Udell v. Atherton, 7 Hurlst. & N. 172; Benj. Sales, 347, & seq.) 2k.. Torts effected by the Servant or Agent otherwise than by fraud or deceit; W. C.

1. Injuries arising from the Servant's Ignorance, Unskilfulness, or Neglect.

The master is always answerable for the damages sustained by third persons, in consequence of the ignorance, unskilfulness or neglect of his servant, in the course of his employment, and although the act or default were without the master's knowledge, or even in despite of his express orders. (1 Bl. Com. 431, and n (26); Bac. Abr. Mast'r & S. (k); 1 Pars. Cont. 87, n (aa); Phil. & R. R' R'd Co. v. Derby, 14 How. 486.)

But it is sometimes an embarrassing question, who is the master-that is, who has the control of the servant at the time when the tort occurs? The servant cannot be at once in the employment and under the control of different and unconnected parties, in the same particular, but he may be in some re

spects the servant of one person, and at the same time, in other respects, the servant of another. Thus, where the owner of a carriage hired horses for a day of a stable-keeper, who also provided a driver, and by the negligence of the driver, an injury was done to a third person, it was held that the stable-keeper was the driver's master, and therefore answerable, and not the owner of the carriage. (Laugher v. Pointer, 5 B. & Cr. (12 E. C. L.) 547; Quarman v. Burnett & al, 6 M. & W. 508.) 21. Injuries arising from the wilful and malicious conduct of Servants.

The master is not in general answerable for the wilful and malicious torts of his servants, even though perpetrated whilst they are engaged about his business, because such torts cannot fairly be said to be committed in his service, nor has he that power of control with respect to such conduct, which, as we have seen, is the ground of his liability in all cases. (1 Pars. Cont. 87, and n (aa); McManus v. Crickett, 1 East. 106; Croft & al v. Alison, 4 B. & Ald (6 E. C. L.) 590; Lyons v. Martin, 8 Ad. & El. (35 E. C. L.) 512; Harris v. Nicholas, 5 Munf. 483.)

To the general proposition that a principal is not liable for the wilful and malicious torts of his servant or agent, but two exceptions are now recalled, namely, in the case of carriers, and of innkeepers; who, as we have seen, are from considerations of public policy, liable for all losses of and injuries to chattels committed to their charge in those capacities respectively, howsoever the loss or injury may have happened, unless it arose directly from an act of God, of a public enemy, or of the owner of the goods; and in the instance of the innkeeper, with two or three exceptions besides; and therefore are answerable even for wilful trespasses done to the chattels by their servants. (1 Pars. Cont. 87, n (aa); Stor. Bailments, § 470, 507, 510.)

31. Torts arising to a Servant, from neglect, unskil fulness, or ignorance of a fellow-servant.

A servant cannot subject the master for injuries occasioned by the neglect, unskilfulness, or ignorance of a fellow-servant employed about the same work, provided the sufferer be actually engaged in the master's service, and transacting his business,

at the precise time when the injury is inflicted; and provided also, the master has used due precaution in employing competent persons to serve him. (Priestly v. Fowler, 3 M. & W. 1; Hutchinson v. R'lway Co., 5 Excheq. 351; Wigmore v. Jay, Id. 351; 1 Am. L. C. 620; Union Pac. R. R. Co. v. Fort, 17 Wal. 557; Packet Co. v. McCue, Id. 513.).

If the master is supposed to be liable in such a case, in consequence of his having retained incompetent servants in his employment, the declaration should be a special one founded on that negligence. (Wigmore v. Jay 5 Excheq. 358, n.)

This doctrine, which seems not to have the unreserved approval of the Supreme Court of the United States, proceeds on the theory that the servant, in entering the employment of the principal, is presumed to take upon himself the risks incident to the undertaking, among which are to be counted the negligence of fellow-servants in the same employment, and that considerations of public policy require the enforcement of the rule. (Hutchinson v. R'lway Co. 5 Excheq. 351-2; Union Pac. R. R. Co. v. Fort, 17 Wal. 557.) 2h. Liability of Servants for Torts committed by them in the course of their employment; W. C. 1'. Liability of Servants to Strangers.

Where the servant, whilst in his master's employment, commits a tort against a stranger, he is himself personally answerable therefor, as the master also is, unless the tort be wilful or malicious, in which case the master is excused, as we have seen, because, constructively, the servant (as to the act complained of) was not in his service, nor subject to his control. (Bac. Abr. Master & S (L); Hutchinson v. R'lway Co., 5 Excheq. 350.)

It is said that the servant is not answerable to strangers for injuries resulting from his fraud or deceit in his master's behalf, or from ignorance, unskilfulness, or neglect in the course of his employment, for all which, according to this doctrine, the master alone is responsible. (Bac. Abr. Master & S., (C L.); 1 Bl. Com. 431, n (24).) This may be true enough where the servant, if charged at all, must be charged upon the ground of contract; for there is in such cases no contract with the servant, either express or implied. But where the servant may be sued as for a tort, it would seem that he must

be personally liable in all the cases named, because, although the stranger may treat the act of the servant as the act of the master, the servant himself, whose default is the cause of the wrong, cannot pretend to do so, and he must, therefore, stand chargeable with whatever injury has resulted therefrom. (Hutchinson v. R'lway Co., 5 Excheq. 350.)

21. Liability of Servants to the Master.

The servant is not only liable to the master for all injuries proceeding directly from his mal-feasance and non-feasance, but also for all losses which the master may sustain by recoveries had from him on account of the default of the servant towards others; e. g. by his false and fraudulent conduct, or by his ignorance, neglect, or unskilfulness. (Bac. Abr. Master & S. (M), 1.)

3. Doctrine touching the Servant or Agent dealing for his own benefit with the subject of the Agency.

It is in no case admissible for an agent or servant to deal for his own benefit with the subject of the agency. Such dealing would afford so many opportunities to deceive and defraud the master or principal, and would offer such temptations to the servant or agent, that, upon considerations of policy, it is inhibited altogether, and such transactions, however fair they may in fact be, are pronounced constructively fraudulent, and therefore voidable at the instance of the principal. Hence, an agent to sell property cannot buy it for himself, nor can an agent to buy, purchase what belongs to himself. If this rule be violated, the transaction, at the instance of the principal, will be annulled, unless, with a full knowledge of all the circumstances, he has subsequently ratified it; whilst it is binding upon the agent, if the principal chooses to enforce it. Nor do third persons who acquire an interest in the transaction, from the agent, with notice, or with the means of knowledge, of the agent's violation of duty, stand in a better situation than the agent himself. The principal has the option, as to them also, of invalidating the transaction. It should be observed, however, that when the principal elects to annul what the agent has done, he must re-pay him whatever sums of money he has disbursed on account of the business. (1 Pars. Cont. 75-6; Fox v. Mackreth, 1 Wh. & Tud. L. C. 125 to 169; Morris & al v. Terrell, 2 Rand. 6; Moseley's Adm'rs v. Buck & al, 3 Munf. 232; Buckles v. Lafferty's Legatees, 2 Rob. 292; Segar v. Edwards & ux, 11 Leigh, 213; Bailey's Adm'r v. Robinson, 1 Grat.

4, 9; Wellford v. Chancellor, 5 Grat. 39; Stainback v. Bank of Va., 11 Grat. 269; Same v. Read & Co., 11 Do. 281; Hunter v. Lawrence's Adm'r, 11 Grat. 111; Howery v. Helms, 20. Grat. 7.)

This rule does not apply to mere formal trustees, who have no active functions to perform, but are simply passive, such as trustees to preserve contingent remainders. (1 Wh. & Tud. L. C. 151; Parks v. White, 11 Ves. 209, 226); nor does it preclude an agent or trustee from purchasing the subject of the trust or agency at public auction, with the consent of the beneficiary, if he is competent to consent, or by permission of a court of equity. This permission the court is seldom reluctant to concede, taking due precautions against abuse, and grants it of course where the fiduciary's bidding (in consequence of his individual private interest being concerned in obtaining the highest price), would promote the great object of securing the most advantageous sale. (1 Wh. & Tud. L. C. 167; Davoux v. Fanning, 2 Johns. Ch. 252, 261, 262; Dehon v. Rarey, 2 Saund. 61.) 5. Doctrine touching the termination of the Relation of Master and Servant.

The authority of the servant is terminated, (1), By express revocation; (2), By the servant's death, or that of the master; (3), By a change in the condition of the master; (4), By the completion of the business, or by the lapse of the time prescribed for its duration; and (5), By the occurrence of war between the countries to which the principal and the agent respectively belong;

W. C.

1. Termination of Servant's authority by express Revoca

tion.

All mere authorities are in their nature revocable, and cannot be made otherwise by the most express declarations to the contrary. In order to be irrevocable, the authority must be coupled with an interest in the subject to which the agency relates, or must be given by way of contract for a valuable consideration; as, for example, where the authority constitutes a part of a security for money, &c. Hence, after advances made by a factor, the authority given him to sell the goods of the principal consigned to him, with a view to secure those advances, is not revocable. (2 Kent's Com. 644; 1 Pars. Cont. 58 & seq. & n (h); Metcalfe v. Clough, 2 Man. & Ry. (17 E. C. L.) 178; Smart v. Sandars, 5 Man. Gr. & Scott. (57 E. C. L.) 918; Hunt v. Rousmanier, 8 Wheat. 201; Brown v. McGrau, 14 Pet. 494; Field v. Farrington & al, 10 Wal. 149.)