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the horses properly shod, and furnish them with proper medicine, when necessary: but this was holden to be no defence, unless the plaintiff knew the agreement, and expressly trusted the groom; that if the servant buysthings that come to his master's use, the master should take care to see them paid for: for the tradesman has nothing to do with any private agreement between the servant and master.(y)
In an action for beer, sold by the plaintiff, a publican, to the defendant, it appeared that the defendant had been in the habit of dealing with the plaintiff, on credit, and had paid him occasionally, when the bill amounted to a certain sum. After paying up all arrears, the defendant told the plaintiff's servant, who brought the beer, that he would run up no more bills with the plaintiff, but would pay for the beer as it came in; and the defence was, that he had paid the money to the servant, but it was determined that notice to the servant was not sufficient. It was a change in the usual mode of dealing, suggested by the defendant himself, and as he had personal dealings with the master in a particular mode, notice to the servant alone, of a change in that mode, would not be sufficient.(z)
Where a man gives his servant money to pay for goods, as he buys them upon a contract or understanding between the tradesman and the master to deal for ready money, if the servant embezzles the money, the master will not be liable: but if the master employs the servant to buy things on credit, he will be liable to whatever extent the servant pledges his credit.(a)
Where the defendant dealt with the plaintiff for the porter used in his family, and was in the habit of paying money for a certain quantity which he allowed for his family; and though the beer for which the action was brought, was delivered at the plaintiff's house, yet it had been carried in, clandestinely, by a maid servant for her own use, and that of the defendant's wife's mother, but it did not appear that the defendant knew of the circumstance; it was said by the Court, to allow such a demand would put it in power of servants, and tradesmen, to ruin the master; that where the master was in the habit of paying ready money for part of the goods furnished, it was sufficient notice to the tradesman, that he considered those only as furnished to his family, to put the tradesman on his guard, and to make it incumbent on him to satisfy himself that the goods were really for the master's family: that where the tradesman suffered the goods to be delivered without informing the master, if in point of fact they did not come to his use, they should hold him not to be liable: that in this case, the porter not having been delivered to the plaintiff's use, there was no pretext to charge him.(b)
Where the trader had no dealings with the master, but with a coachman to whom the master gave money, monthly, for the purpose of buying hay, and oats for his horses, and the tradesman made no application to the master for his demand, until a year after the goods were delivered, it was ruled that the master was not liable, for here was a strong presumption from the delay of calling upon the master that the tradesman trusted the coachman, (c)
Where a master authorises a servant to take up goods on credit, though he advances the money to the servant to pay for them, yet if he does not do it, the master is liable.(d) Where a master forbids a tradesman to deliver any goods except his servant pays for them, and goods are afterwards delivered to the servant on credit, the master shall not be liable if he has
(y 1 Esp. 350. (z) 3 Esp. 85. (aj Peak. Cas. 47. (b) 3 Esp. 214. (c) Esp. N. P. 115. (d) 5 Esp. 76.
paid the servant the money for them, or if they never came to the use of the master.(e)
Where the master has not been in the habit of employing a particular tradesman, it shall not be in the power of a servant, without authoriiy, to employ him, and render the master liable. Where a man has been in the habit of sending a child or servant to a store to buy goods on credit, without written authority, the parent, or master, will be responsible for ail goods so taken up, though they never came to his use: for the trader cannot know but that the child or servant always came pursuant to orders.^)
If a master sends his servant to receive money, and the servant, instead of money, takes a bill, and the master, as soon as he is told thereof, disagrees, he is not bound by this payment; but acquiescence, or any small matter will be proof of the master's consent: and that will make the act of the servant the act of the master: for a subsequent recognition is the same as to give a previous authority to do an act.(g)
The authority of the servant to charge the master will not cease, on his being dismissed from service, till actual or reasonable notice shall have been given of such dismissal: and if he were a long time out of the service of the master, yet, if it be kept so secret that the world cannot take notice of it, his act shall bind the master.
2. Of the liability of masters for the torts committed by their servants.
In consequence of the contract subsisting between the master and servant for his service, the master is liable for all torts done by him in the course of his employment, as well as for negligence, and unskilfulness.(h)
If a man brings a horse to a black-smith to be shod, and the servant pricks it, or if the servant of a surgeon makes the wound worse, action lies against the master.(i) If the servant of a taverner sells wine to another which is corrupted, action on the case lies against the master, though he did not command the servant to sell it to any particular person. If a goldsmith makes plate wherein he mingles dross so that it is not according to the standard, and by his servant sells it, action lies against the master. When the officer of the customs made a deputy who concealed the duties, and the master being ignorant of the concealment, certified the customs of that part of the revenue under oath, he was adjudged to be answerable for the concealment of the servant.(k)
Where the servant of A. with his cart run against another cart, wherein was a pipe of sack, and overturned the cart, and spoiled the sack, it was held that an action lay against A.(l) So when a carter's servant run his cart over a boy, it was held that the boy should have his action against the master for the damage he sustained by such negligence.(m)
Where a servant brought a coach, and two ungovernable horses of his master into Lincoln's Innfields, a place much frequented by people, and there drove them, to make them tractable and fit for a coach, and the horses being unruly, and for want of care run upon the plaintiff and wounded him, in an action brought both against the master and servant, it was held that it well lay, as the master sent the servant to train the horses there.(n)
In an action on the case the declaration stated that the plaintiff was possessed of a certain carriage called a chaise, and a certain horse then and there drawing the same, and the defendant was alsopossessed of a cart, and a certain horse, then and there drawing the same, and then and there by a
certain servant of the defendant, had the care conduct and management of the said horse and cart of the defendant, and of the driving thereof, yet the defendant by his said servant then and there so unskilfully and negligently managed and behaved himself in the premises, and so badly, ignorantly, and negligently drove, managed, guided, and governed said cart and horse, of the defendant, that the said cart for want of good and sufficient care and management thereof and of the said horse, struck and run to and against the said chaise of the plaintiff with great force and violence, and then and there pulled, forced, and dragged the same to a great distance, broke to pieces, destroyed and damaged it, whereby the plaintiff was obliged to lay out a large sum of money to repair il. After verdict for the plaintiff, it was moved in arrest of judgment on the ground that the action ought to have been trespass, and not case, as the injury was direct and not consequential: for it was not necessary that the act done should be unlawful to make it a trespass, as if a man lift up a stick to defend himself, and by accident strike another, there, though the act was lawful, yet trespass lies. But the declaration was held sufficient, and the court said it would be difficult to put a case where the master could be considered as a trespasser for an act of his servant, which was not done at his command.(o)
The plaintiff declared against the defendant for that he on suchaday was driving a horse and cart along the public highway, and that be so carelessly, negligently and imprudently guided, drove, and directed the same, that the cart for want of due care and caution of the defendant, was violently forced, and driven, and run, against the plaintiff's horse then passing, and drawing the plaintiff's chariot along the highway, whereby the shaft of the defendant's cart, was forced into the plaintiff's horse and killed it. The fact was the defendant's servant was driving the cart at the time the accident happened, and the defendant was not present. Upon which it was objected that the action was misconceived, as it ought to have stated, not that the defendant himself had done the act, but that it had been done by the act of the servant, on which the Judge nonsuited the plaintiff: but on motion the court granted a new trial on the authority of precedents, that the fact might be stated either as the act of the master, or as the act of the servant.^)
No action lies against a steward, manager, or agent for the damage done by the negligence of those employed by him in the service of his principal : but in all these cases the action must be brought either against the hand committing the injury, or against the principal for whom the act was done : but the servant who hires labourers for his master is never responsible for their acts (q)
It is clear that masters are answerable for the negligence and unskilfulnessof their servants, and that an action of trespass will lie against them for the tort of a servant done by their command or in their service: But a question having been frequently agitated respecting the liability of masters for a wilful trespass of their servants, the court of King's bench laid down the correct principle in the case of McManus, vs. Cricket.(r) That was an action of trespass, and the declaration stated that the defendant with force and arms drove a certain chariot against a chaise, in which the plaintiff was riding in the highway, by which the plaintiff was thrown from his chaise and greatly hurt. At the trial it appeared in evidence that the servant wilfully drove the chariot against the plaintiff's chaise: but that the defendant was not himself present, and did not in any manner direct or assent to the act of the servant. No person was in the carriage : the act was
done by the servant, either in going for, or after he had set down his master. And the question was, whether for this wilful, designed trespass ot the servant, action would lie against the master. The court determined that it could not, on this ground, that where the servant quits sight of the object for which be was employed, and without having in view his master's orders, pursues that which bis own malice suggests ; he no longer acts in pursuance of the authority given him, and bis master will not be liable for such act: and they relied on the following authorities: Bro. Abr. pi. 435. If my servant, contrary to my will chase my beasts into the soil of another, I shall not be punished. 2. Roll. Abr. 553. If my servant without my notice put my beasts into another's land, my servant is the trespasser and not I: because by the voluntary putting the beasts there, he gained a special prop erty for the time, and so to this purpose they are his beasts. Noy's Maxims Ch. 44. If 1 command my servant to distrain, and he ride on the distress, he. shall be punished not I.
3. Of the liability of servants for their own acts.
Servants are liable for all torts committed by them to the party injured, and in cases where an action will lie against the master, it will also lie against the servant. Servants are liable to masters for any misconduct or injury done by them. As to the liability of an infant apprentice to his master when he arrives to full age for an injury to his property during the apprenticeship, Lord Kenyon expressed an opinion that he was liable— and that an action will lie against an infant apprentice for embezzling money during his apprenticeship in the course of the business in which he was employed.(s) This decision, however is not reconcilable with principle. The master has the command and controul of his apprentice : he may punish bim for misconduct, and may look to his indenture for an indemnity. And to give him the power to bring actions against him, when of full age, for any wrong committed by him during the apprenticeship might involve him in ruin. If he can maintain an action against him when of age, he might during minority : and if a master could do it, a parent could on the same principle. I once knew an action of this description to be brought in the Superior court: but it was decided not to be sustainable.
Having considered persons in their natural capacities, we proceed to consider tbem in their artificial capacity, created by law, which is called a corporation.
A corporation is a union of a number of natural persons for some particular object, invested with definite powers, and capable of perpetual succession. The following appropriate description by Judge Marshall is too elegant to be omitted, and so correct that it cannot be amended.(a) A corporation is an artificial being, invisible, intangible and existing only in contemptation of law. Being the mere creature of law, it possesses on]y those ^ grorjerUes, which the charter of its creation confers upon it, either express- ~~ ly or as incidental to its very existence. These are such as are supposed
(s) 1 Eep. 173. Peak cases 223. (a) 4 Wheaton 636.
k '• / c ij 6 tl - (/,'
best calculated to effect the objects for which it is created. Among the most important are immortality, and if the expression may be allowed, individuality ; properties by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs, and to hold property without the perplexing intricacies, the hazardous and endless necessity of perpetual conveyances for the purpose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of men with these qualities and capacities that corporations are invented and are in use. By these means a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being."
Corporations are aggregate or sole. An aggregate corporation consists of a number of persons. A sole corporation consists of one person only, and is incorporated to perpetuate some particular right. We have none of this description, and our enquiries will be confined to aggregate corporations.
The legislature only has the power to create and establish corporations. They may be created for any proper purpose, and may be endowed with very different powers, but there are certain general powers incident to all corporations, which I shall consider.
1. Every corporation must have a name by which it is known and called, and by which it is to transact business and do all legal acts.(b) Such name is the very being of its constitution and the knot of its combination, without which it could not perform its corporate functions : for it is by this alone that it can be distinguished as having a legal existence.
Where a deed is made to a corporation by a name varying from the true name, the plaintiffs may sue in their true name, and aver in the declaration, that the defendant made the deed to them by the name mentioned in the deed.(c)
2. It must have perpetual succession, for this is the object of its institution. This may be effected by giving the members a power to fill vacancies by election, as is the case of literary institutions. Where the objects of the corporation is the management of money concerns or other property, the rights or shares are transferable to assignees, or will go to the heirs or representatives of a deceased member, and such assignees, heirs or representatives wiH thereby become members of it, as in the case of Banks.
Where corporations are established within certain local limits, as cities and towns, the inhabitants living within such limits constitute the members.
3. It must be capable to sue, and be sued, implead or be impleaded, grant and receive by its corporate name and do all other acts as natural persons may, for this is essential to give it the capacity of acting like an individual. 1 Action on implied assumpsit will lie against a corporation.(d)
4. It must be capable of purchasing, holding and conveying lands as well as things personal.
5. It must have a common seal to evidence its corporate acts. /,'•?• 6&*» ft'
6. It must have the powerof making by-laws, or private statutes, forlhe government of the corporation, for the management of their concerns, and for the regulation of their business. These bye-laws must be pursuant to the power delegated to them by their charter, or act of incorporation, and all acts and proceedings not warranted by it will be void.
Where a general power was given by the charter of a company to the directors to manage the stock, property and affairs of the corporation, it was determined that this did not enable them to apply to the legislature for
(b) 1 BI . Com. 502. (c) 13. John. 38. (d) 14 John. 118.