though his remuneration may not be called wages, but profit or commission (p). In the case of actions of seduction, the common tests of the relationship fail. By a legal fiction, the relation of master and servant is sometimes said to exist between parent and child, when, in any but a very vague sense, the former is not a master, and the latter is not a servant (q). Difficulties frequently arise with respect to the legal position of a servant while he works for another person than his master. This point was considered in the Rex v. Ivinghoe (r), decided in 1717. There it was said, "If I lend my servant to a neighbour for a week, or any longer period, and he go accordingly, and do such work as my neighbour sets him about, yet all this while he is in my service, and may be reasonably said to be doing my business." This principle was applied in Holmes v. Onion (s). The defendant hired a thatcher, S., to thatch for him for six weeks. During that period, without the knowledge of the defendant, S. agreed to thatch ricks for the plaintiff. After the work had been begun, the defendant told the plaintiff that S. was his servant, and that he must be paid. At the plaintiff's request the defendant sent a person to assist S. in thatching. In an action against the defendant for negligence on the part of S., it was held that S. was the servant of the defendant, who was, therefore, responsible for his acts. In all such cases the servant is, to use an expression of Sir William Grant in Chilcot v. Bromley (t), the subject of the contract and not a party to it. The same point was again considered in the leading cases of Laugher v. Pointer (u), and Quarman v. Burnett (x). In the former the owner of a carriage hired for the day a pair of horses and a driver; the horses be (p) See Reg. v. McDonald (1861), L. & C. 85 (defendant paid partly by salary and partly by a percentage on profits; a servant within 7 & 8 Geo. IV., c. 29, s. 47.) See Reg. v. White (1839), 8 C. & P. 742, as to servant paid by gratuities. (q) Chapter XXII. (s) (1857) 2 C. B. N. S. 790. (u) (1826) 5 B. & C. 545. (x) (1840) 6 M. & W. 499. The point had also been considered in longed to a livery-stable keeper in whose employment the driver was. The plaintiff having been injured in consequence of the negligence of the driver, the question arose whether the owner of the carriage was liable. Two judges, Bayley, J., and Holroyd, J., were of opinion that he was liable. Two judges, Abbott, C.J., and Littledale, J., took the opposite view. The point was finally decided in Quarman v. Burnett, the facts of which were these: the owners of a carriage, who were in the habit of hiring horses from the same person for a day or for a drive, always had the same. driver, gave him a fixed gratuity, and provided him with a livery, which he kept in the hirers' hall. While he was hanging up the livery, he left the horses. An accident happened, and the plaintiff was injured. The Court of Exchequer adopted the view of Abbott, C.J., and Littledale, J. In delivering the judgment of the Court, Baron Parke said, "It is undoubtedly true that there may be special circumstances, which may render the hirer of job horses and servants responsible for the neglect of a servant, though not liable by virtue of the general relation of master. 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." Baron Parke proceeded to say: "As to the supposed choice of a particular servant, my brother Maule thought there was some evidence to go to the jury of the horses being under the defendants' care, in respect of their choosing this particular coachman. We feel a difficulty in saying that there was any evidence of choice, for the servant was the only regular coachman of the job-mistress's yard; when he was not at home, the defendants had occasionally been Smith v. Lawrence (1828), 2 M. & R. 1, & Brady v. Giles (1835), 1 M. & Rob. 494. It may be doubted whether the authorities are [consistent as to this point. Compare Laugher v. Pointer with Rourke v. White Moss Co., L. R. 5 C. P.; and Knight v. Fox, 5 Ex. 721. Would not the driver in Quarman v. Burnett have been regarded as the fellow-servant of a footman of the hirer? driven by another man, and it did not appear that at any time since they had their own carriage, the regular coachman was engaged, and they had refused to be driven by another; and the circumstances of their having a livery, for which he was measured, is at once explained by the fact, that he was only the servant of Miss Mortlock (the livery-stable keeper), ever likely to drive them. Without, however, pronouncing any opinion upon a point of so much nicety, and so little defined, as the question, whether there is some evidence to go to a jury, of any fact, it seems to us, that if the defendants had asked for this particular servant, amongst many, and refused to be driven by any other, they would not have been responsible for his acts and neglects. If the driver be the servant of a job-master, we do not think he ceases to be so by reason of the owner of the carriage preferring to be driven by that particular servant, where there is a choice amongst more, any more than a hack post-boy ceases to be the servant of an innkeeper, where a traveller has a particular preference of one over the rest, on account of his sobriety and carefulness. If, indeed, the defendants had insisted upon the horses being driven, not by one of the regular servants, but by a stranger to the job-master, appointed by themselves, it would have made all the difference. Nor do we think that there is any distinction in this case, occasioned by the fact that the coachman went into the house to leave his hat, and might therefore be considered as acting by their directions, and in their service. There is no evidence of any special order, in this case, or of any general order to do so at all times, without leaving any one at the horses' heads. If there had been any evidence of that kind, the defendants might have been well considered as having taken the care of the horses upon themselves in the meantime. Besides these two circumstances, the fact of the coachman wearing the defendants' livery with their consent, whereby they were the means of inducing third persons to believe that he was their servant, was mentioned in the course of the argument as a ground of liability, but cannot affect our decision. If the defendants had told the plaintiff that he might sell goods to their livery servants, and had induced him to contract with the coachman, on the footing of his really being such servant, they would have been liable on such contract: but this representation can only conclude the defendants with respect to those who have altered their condition on the faith of its being true. In the present case, it is matter of evidence only of the man being their servant, which the fact at once answers. We are therefore compelled to decide upon the question left unsettled by the case of Laugher v. Pointer, in which the able judgments on both sides have, as is observed by Mr. Justice Story in his book on Agency, page 406, 'exhausted the whole learning of the subject, and should on that account attentively be studied.' We have considered them fully, and we think the weight of authority and legal principle is in favour of the view taken by Lord Tenterden and Mr. Justice Littledale. The immediate cause of the injury is the personal neglect of the coachman, in leaving the horses, which were at the time in his immediate care. The question of law is, whether anyone but the coachman is liable to the party injured; for the coachman certainly is. Upon the principle that qui facit per alium facit per se, the master is responsible for the acts of his servant; 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 of 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 authorised by him to appoint servants for him, can make no difference. But the liability, by virtue of the principle of relation of master and servant, must cease where the relation itself ceases to exist: and no other person than the master of such servant can be liable, on the simple ground, that the servant is the servant of another, and his act the act of another; consequently, a third person entering into a contract with the master, which does not raise the relation of master and servant at all, is not thereby rendered liable; and to make such person liable, recourse must be had to a different and more extended principle, namely, that a person is liable not only for the acts of his own servant, but for any injury which arises by the act of another person, in carrying into execution that which that other person has contracted to do for his benefit. That, however, is too large a position, as Lord Chief Justice Eyre says, in the case of Bush v. Steinman (1 Bos. & Pull. 404), and cannot be maintained to its full extent without overturning some decisions, and producing consequences which would, as Lord Tenterden observes, shock the common sense of all men :' not merely would the hirer of a postchaise, hackney-coach, or wherry on the Thames, be liable for the acts of the owners of those vehicles, if they had the management of them or their servants, if they were managed by servants, but the purchaser of an article at a shop, which he had ordered the shopman to bring home for him, might be made responsible for an injury committed by the shopman's carelessness, whilst passing along the street. It is true, that there are cases-for instance, that of Bush v. Steinman, Sly v. Edgley (6 Esp. 6), and others, and perhaps amongst them may be classed the recent case of Randleson v. Murray (8 A. & E. 109)— in which the occupiers of land or buildings have been held responsible for acts of others than their servants, done upon, or near, or in respect of their property. But these cases are well distinguished by my Brother Littledale, in his very able judgment in Laugher v. Pointer. The rule of law may be, that where a man is in possession of fixed property, he must take care that his property is so used or managed, that other persons are not injured; and that, whether his property be managed by his own immediate servants, or by contractors with them, or their servants. Such injuries are in the nature of nuisances: but the same principle which applies to the personal occupation of land or houses by a man or his family, does not apply to personal movable chattels, which, in the ordinary conduct of the affairs of life, are intrusted to the care and management of others, who are not the servants of the owners, but who exercise employments on their own account with respect to the care and management of goods for any persons who choose to intrust them with them. It is unnecessary to repeat at length the reasons given by my Brother Littledale for this distinction, which appear to us to be quite satisfactory; and the general proposition above referred to, upon which only can the defendants be liable for the acts of persons who are not their servants, seems to us to be untenable. We are, therefore, of opinion, that the defendants were not liable in this case, and the rule must be made absolute, to enter a verdict for the defendants on the second issue." It has sometimes been alleged that a person cannot be the servant of two masters. "I am of opinion," said Baron Parke, in Rex v. Goodbody (y), "that a man cannot be the servant of several persons at the same time, but is rather in the character of an agent." This opinion, which seemed to be a natural consequence of the older view of the relation, which was in accordance with some dicta, and which was supported by decisions in regard to settlement cases, has not been followed. A. cannot be at once the servant of B. and C., in the sense that he is bound at the same time to obey both. He may, however, be the servant of both in such a sense that he may be prosecuted for embezzlement by B. or C. as a "clerk or servant;" that B. or C. may be liable to strangers for his torts; and that, while the servant of B., he cannot claim damages against C. for the acts of C.'s servants, inasmuch as he is in law their fellow servant. In two classes of cases the Courts have distinctly held that a man may be the servant of two masters. Thus it has been decided that a person who is employed by more than one may be "a clerk or servant" within the 24 & 25 Vict. c. 96, s. 68, and 7 & 8 Geo IV. c. 29, s. 47. In Regina v. Batty (a), a clerk (y) (1838) 8 C. & P. 665. (a) (1842) 2 Mood. C. C. 257; R. v. Leech (1821), 3 Star. 70; and Tite's Case (1861), L. & C. 29, 30 L. J. M. C. 142. See also remarks of Bayley, J., in Laugher v. Pointer (1826), 5 B. & C. 569, and in Hardy v. Ryle (1829), 9 B. & C. 603. |