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action for any act done by his servant in the course of executing his orders (6). So here, assuming that the defendant sanctioned the act of the postilions in attempting to break the line of carriages, the upsetting of the gig containing the plaintiff was the natural consequence of such attempt, and the defendant is responsible to the plaintiff for the accident which occurred.

The case of Chandler v. Broughton (3 Tyrwh. 220, 1 C. & M. 29), shews that a party may be liable in trespass, although he may have taken no direct part in the act which is complained of. There, the defendant was sitting by the side of his servant, and the latter was driving. That case [53] is in substance the same as the present. In considering the question of liability, the defendant's conduct must not be overlooked. After what passed subsequently to the accident, the defendant cannot say that he did not sanction the post-boys in what they did. When an individual comes forward and gives his card, and screens other parties, the court has a right to infer that what took place was with his sanction, if the facts of the case will bear that construction. The defendant, both from the control he was evidently exercising over the postilions at the time of the accident and from his subsequent conduct, is clearly liable in the present action.

Channell Serjt., in support of the rule. The plaintiff here charges the defendant as an actor in driving the carriage against the gig; and the question raised by the plea of not guilty is, whether he was so. The defendant has also pleaded that there was negligence on the part of the plaintiff, and if that were so the defendant is not liable in trespass (a). It is not disputed that the carriage was hired; that the horses were post-horses, and that the plaintiff was not actually driving, though he was sitting on the box. The case, therefore, falls within the principle of Laugher v. Pointer (5 B. & C. 547; 8 D. & R. 556) and Quarman v. Burnett (6 M. & W. 499). It is true that those actions were in case ; but the main point for consideration is the degree of responsibility which attaches to the hirer of a carriage or horses under circumstances like the present; and as to that, it can make no difference whether the form of the action be trespass or case. The facts in Quarman v. Burnett (6 M. & W. 499) were peculiarly strong to raise the inference that the coachman, by whose negligence the accident hap-[54]-pened, was the servant of the defendants; he was the party regularly employed; he was paid a regular sum for each drive, according to express agreement; he was sometimes taken by the defendants into the country for weeks together, and was then paid a regular sum per week; and he wore a livery of theirs, for which he had been measured ; but he was held not to be their servant so as to render them liable for his negligence. The facts in the present case are not nearly so strong to shew that the postilions were in this defendant's service. In Stables v. Éley (1 C. & P. 614), the defendant had been in partnership with the person who was the actual owner of the cart at the time the accident happened, and he allowed his name still to remain on the cart; and Abbott C. J. ruled that by reason of his then holding himself out to the world as the owner of the cart, and the master of the driver of it, he was responsible for the negligence of such driver. It may be doubted, perhaps, whether that case is quite reconcilable with Quarman v. Burnett; but at any rate it is very distinguishable from the present case; for there was nothing done here which held out to the world that the postilions were the servants of the party in the carriage any more than in any other case of persons hiring post-horses. In Chandler v. Broughton (1 C. & M. 29; 3 Tyrwh. 220), the horse and gig were the defendant's own property, and the driver is expressly stated to have been his servant. That case therefore stands upon a very different footing from the present, and is quite consistent with Quarman v. Burnett.

A trespass may either be wilful in fact, as where a party enters upon the land of another after notice, or wilful in law. In the former case it is easy to ascertain who are co-trespassers, being aiders and abettors of the principal. But in a case where the trespass arises from [55] negligence it is different. What is there here to make the acts of the postilions (which it is admitted must be taken as wilful in point of law, though merely negligent in point of fact), the acts of the defendant? The evidence of the post-boy, who was called, was most material,—that he acted without orders. It is true the defendant was on the box at the time, but that is not sufficient: mere non-interference will not make him responsible.

(b) Vide tamen Reynolds v. Clarke, 1. Stra. 634, Fortescue, 212, 8 Mod. 272, 4 M. & R. 502 (a).

(a) Vide Marriott v Stanley, ante, vol. i. p. 568.

Then as to the declarations used by the defendant at and after the accident, they do not carry the case any further, so as to make him a trespasser, unless they shew that at the time of the accident, he directed, or at least assented to, the act by which the collision occurred: but they cannot have that effect. They amount at most to a willingness on his part to repair the injuries that had been sustained by the plaintiff and his friend. Suppose the plaintiff had been killed by the accident, would this evidence have supported an indictment for manslaughter? In Wilson v. Barker (4 B. & Ad. 614; 1 Nev. & Man. 409) it was held that a person who knowingly receives from another a chattel which the latter has wrongfully seized, and afterwards, on demand, refuses to give it back to the owner, does not thereby become a trespasser, unless the chattel was seized for his use. That is a strong authority to shew that a party cannot be a trespasser by relation.

TINDAL C. J. The leave to move to enter a nonsuit was reserved, for the purpose of examining whether the authorities that were cited at the trial were applicable to the present case, and whether the principles which regulate an action on the case could be applied to an action of trespass.

At the trial, I was desirous that the merits of the case should be inquired into, and I reserved, for the [56] opinion of the court, the question, whether the doctrine laid down in Quarman v. Burnett (6 M. & W. 499), where the principle of exemption was carried to a considerable extent, would apply to the circumstances of this case. It was intended that it should be determined upon the evidence, whether the defendant could properly be considered as a trespasser.

It appears to me, that the cases in which it has been decided that the hirer of a carriage and horses is exempted from responsibility for the acts of the driver-not being his servant-rest upon a very different ground from the present. In those cases, the party hiring had no power of selection as to the person employed in driving : and therefore it was held, that he was not responsible for the want of skill of the driver, who could not be considered as his servant; that the person who was really the master of the driver, was bound to select a proper person to be employed as driver.

But in this case the question is, whether the defendant was a joint trespasser with the postboys, and this question obviously rests upon a very different ground.

The general rule is, that all persons acting together at the time of the commission of a wrongful act, are presumed to assent thereto, and are considered in law as equally trespassers, and are all looked upon as principals. The inquiry is, not whether the act was wilful, but whether it was wrongful, and an immediate injury resulted from it; any inquiry into the intention of the party is quite unnecessary. That was decided in Leame v. Bray (3 East, 593; 5 Esp. N. P. C. 18), which was an action against the defendant, who had driven his carriage against another's, not wilfully, but by accident; and it was held that [57] the proper remedy was trespass; and the distinction laid down was, that where the injury was immediate from an act of force done by the defendant, the remedy was in trespass; but where the injury was only consequential to an act before done by the defendant, then an action on the case lay. Lord Ellenborough in giving judgment says, “The true criterion seems to be, according to what Lord Chief Justice De Grey says in Scott v. Shephard (a), whether the plaintiff received an injury, by force, from the defendant. If the injurious act be the immediate result of the force originally applied by the defendant, and the plaintiff be injured by it, it is the subject of an action of trespass, vi et armis, by all the cases both ancient and modern. It is immaterial, whether the injury be wilful or not.” Grose J., in giving his opinion (3 East, 600), says, “ Looking into all the cases, from the Year-book in the T. 21 H. 7 (c) down to the latest decision on the subject, I find the principle to be, that if the injury be done by the act of the party himself at the time, or he be the

(a) 3 Wils. 403, 411, 2 W. Bla. 892, 899. And see ante vol. ij. 520.

(c) T. 21 H. 7, fo. 28, pl. 5, where Rede C. J. says, “Although the intent of the defendant was good (in carrying the plaintiff's tithes from the defendant's field, where they were secured, to the plaintiff's house); here, the intent cannot be construed ; but it can be in felony ; as, if a man shoots at the butts, and kills a man, it shall not be felony, because he had not the intention to kill; and so of a tiler from a house, who, without knowing it, kills a man with a stone, it is not felony ; but where one shoots at the butts and wounds a man, although it were against his will, he shall be said to be a trespasser, against his intention.”

immediate cause of it, though it happen accidentally or by misfortune, yet he is answerable in trespass." And Lawrence and Le Blanc JJ. express the same opinions. Now in this case there can be no doubt, upon the finding of the jury, that the postboys, by reason of their [58] wrongful act, were trespassers. Then the question is, whether the defendant was jointly a trespasser with them ; whether the part which he took in the proceeding was sufficient to make him equally liable with them; and whether there were circumstances in the case which would justify the jury in coming to that conclusion. It appears that he was riding on the box of the carriage when the accident occurred, and saw what was going on ; that there was a line of carriages, into which the postboys were endeavouring to force themselves; and he must have known the object of the postboys in doing what they did. If he had remonstrated or expostulated with them at the time, I do not think he could have been held liable in this action, even upon the supposition that the postboys were his servants; for no servant can make his master a trespasser against his will ; Morley v. Gaisford (2 H. Bl. 44%), M Manus v. Crickett (1 East, 106). Or if he had been inside the carriage, and had not seen what was going on, and the postboys, of their own will, had done the injury, I do not think the defendant would have been liable. But the fact of his being outside the carriage, with a full view of all that was taking place and not interfering, though I do not say it is strong evidence, is some evidence, to go to the jury that he assented to the act of the postboys. But the case does not stop there ; for his subsequent conduct is to be taken into consideration. There is nothing to shew that he repudiated the act of the postboys; on the contrary, he professed throughout to hold himself responsible ; he told the witness Mason, who was driving the gig in which the plaintiff was seated at the time the accident happened, that if he had succeeded in getting into the line, he should [59] have allowed Mason to return to his former position in the line. All this shews that he had a control over the postboys, and that he assented to their acts.

I think, therefore, that this is a case in which the defendant may be considered as the master, the dominus pro tempore, of the carriage and horses; he being present at the time when the accident happened, and assenting to the act by which it was caused ; and that the present case falls within the principle of Chandler v. Broughton (1 Crompt. & M. 29; 3 Tyrwh. 210), and Gregory v. Piper (9 B. & C. 591 ; 4 Mann. & R. 500). It seems to me on the whole, that the jury justly came to the conclusion that the defendant was a co-trespasser with the post boys; and that the verdict ought not to be disturbed.

COLTMAN J. It seems to be agreed in this case that the court is to be considered in the situation of a jury; and the question for our determination is, whether at the time that the accident happened the defendant assented to the acts of the postilions. This fact depends in a great measure upon Mason's evidence; and I see no reason why credit should not be given to it. (His lordship recapitulated the facts of the case.)

It appears, then, that the defendant throughout said that he would be responsible for the damage. This certainly will not make him liable as a trespasser, unless he were so from the beginning; but I think it is evidence to shew his previous assent to the act that was done by the postilions. He never repudiates their act; he never says it was not his own act; and I think if the case had been left to the jury on the mere question of assent, they would have found in the affirmative.

[60] ERSKINE J. I am of the same opinion. The cases in which it has been decided that case will not lie against the hirer of a carriage and horses for the misconduct of the driver, not being his servant, do not apply here ; for this is an action treating the defendant is a co-trespasser, and is not brought against him as a master for the misconduct of his servant.

The mere fact of the defendant being one of the persons who hired the carriage and horses, would not make him liable in this action ; but it must be shewn that he was assenting to the act from which the injury occurred to the plaintiff. It is not necessary to shew that the defendant contemplated the injury that happened; for if the act of the post-boys in driving into the line was wrongful, and the defendant assented to it, or gave encouragement to its being done, he will be liable in this action. That the act was done wilfully by the postboys there can be no doubt. Now the defendant was on the box at the time, and it is in evidence that one of the post-boys called out to the other, “Go in there,” which was an intimation, clearly given to those on the box, of

what was intended to be done; the defendant, therefore, must have been conscious of what the postboys intended to do. But the evidence does not stop there. After the misfortune, the defendant ne

never suggests that it was the fault of the post-boys ; neither on the spot immediately after the accident, nor afterwards in his interviews with Mason, does he intimate that it was not his own fault. On the contrary, he makes a statement that shews he was aware of what the post-boys intended to do, and that he had a control over them. Under all the circumstances, therefore, I think the defendant is civilly responsible in this form of action; and that the rule must be discharged.

[61] CRESSWELL J. I am also of opinion that this rule must be discharged. Some of the matters in the cause may be considered as finally disposed of by the jury ; namely, that a trespass was committed ; that the plaintiff received an injury therefrom, and not by any fault of his own. The plea, I may observe, is rather of a singular character in this form of action, but it is not material to dwell upon that.

It has been reserved to the court to say whether the defendant is liable in this action, not as a dry question of law, but as a mixed question of law and fact, under all the circumstances of the case. The present case is not, I think, affected by the cases of Laugher v. Pointer and Quarmun v. Burnett, which turned on the liability of a party hiring a carriage or horses for the day, for the conduct of the driver. The great struggle in those cases was, whether the driver was to be considered as the servant of the party charged ; and it was not sought, as here, to make the defendant liable as sharing in the act by which the accident occurred, but as a master for the negligence of his servant. The principle of those cases, therefore, has no bearing on an action of trespass ; in which a party may be liable as a co-trespasser for the immediate act of another, though that other be not his servant. [His sordship stated the facts of the case.] Under all these circumstances, it seems impossible to suppose that the defendant did not know that the postboys were going to break into the line; he had time enough to reflect on what was going on, and he might, if he had thought fit, have stopped the proceeding. This view is confirmed by what the defendant said not only at the time, but afterwards at his chambers, to Mason, that he had intended to let him into the line again. But in order to do so, it is clear he must have first shut him out. All the facts, therefore, tend to [62] shew that he sanctioned the act at the time that it was committed.

Rule discharged.

COBBOLD v. CHILVER. April 26, 1842. [S. C. 4 Scott, N. R. 678; 1 D. N. S. 726 ; 11 L. J. C. P. 173; 6 Jur. 346.] A warrant of attorney authorised judgment to be signed “as of a term :” held, that

judgment signed thereon in vacation was irregular. ---Semble, that such an irregularity would not entitle the defendant to costs. The warrant of attorney authorised judgment to be signed for 5001. Judgment had been signed, but it did not distinctly appear for what amount: Held, that a fi. fa. directing the sheriff to cause to be made " 2691. 9s. 4d., parcel of a certain debt of 5001.,” was irregular, as not following the judgment, and that it was such an irregularity as entitled the defendant to costs.

Sir T. Wilde Serjt., in last Michaelmas term, obtained a rule calling upon the plaintiff to shew cause why the judgment signed in this cause and the execution issued thereon, should not be set aside for irregularity; and why the plaintiff should not refund to the defendant or his attorney the sum of 2691. 9s. 4d. levied under the said execution, with costs; upon the grounds that the judgment was signed in vacation, whereas the warrant of attorney only authorised a judgment “as of a term;" and that the writ of execution did not follow the judgment (a).

The following facts appeared from the affidavits upon which the rule was obtained. The defendant had executed a warrant of attorney, dated the 15th of February 1840, whereby he authorised three attornies by name, or any other attorney of the court of Common Pleas, to appear

for him “

as of last Hilary term, next Easter term, or any (a) There were other points of objection, which were were afterwards abandoned by the defendant.

subsequent term ;” and to suffer judgment to be entered up against him at the suit of the plaintiff for 5001., with a defeasance upon payment of 2501., with interest. On the 8th of September 1841 judgment was [63] signed upon this warrant of attorney (it was not expressly stated for what sum the judgment was signed). On the next day a writ of fieri facias was issued, commanding the sheriff of Suffolk to “ cause to be made as well a certain debt of 2691. 98. 4d. parcel of a certain debt of 5001. which defendant J. C. Cobbold lately, &c. recovered against the said R. Chilver; as also 51. 5s. which, &c. were awarded to the said J. C. Č. for his damages, &c., whereof the said R. C. is convicted as appears to us of record, together with interest upon the said sums of 2691. 98. 4d. and 51. 5s., at the rate of 41. per cent. from the 8th day of September 1841, &c.” The writ was indorsed to “levy 2691. 9s. 4d. with interest as within mentioned, and 61. 6s. besides, &c.” The sheriff had levied under this writ.

Channell Serjt. now shewed cause. Although the judgment was actually signed in vacation, still the authority given by the warranty of attorney to sign judgment “as of a term," has been sufficiently complied with, and the court may consider that it was signed as of some term. By the general rules, H. 4 W. 4, s. 3, all judgments are "to be entered of record of the day of the month and year, whether in term or vacation, when signed, and shall not have relation to any other day (a);" but if this were to be construed strictly such a warrant of attorney as the present would be nearly useless, as judgment could, in reality, only be signed upon it actually during term. It is obvious, however, [64] that it was the intention of the parties that judgment might be signed at any time. As to the

second point, it will be argued that the writ of execution was irregular, having been issued for a different sum than that for which the judgment was signed ; and Webber v. Hutchins (8 M. & W. 319) will be relied upon, where it was decided such a variance constituted an irregularity. But in that case the sum for which the judgment had been signed distinctly appeared. A defendant in order to take advantage of such a technical objection, is bound to make the variance clearly out. In this case, although the affidavits state that the judgment was signed on the 8th of September 1841, the amount for which judgment was signed is not stated. Nor is there any variance on the face of the writ. It directs the sheriff to "cause to be made as well a certain debt of 2691. 9s. 4d., parcel of a certain debt of 5001. which J. C. C. lately recovered against R. C. ;” the word “which” may be taken as referring, not to the clause immediately antecedent, “a certain debt of 5001.,” but to the whole paragraph, "a certain debt of 2691. 98. 4d.,” reading the following words, “parcel of a certain debt of 500l.” as in a parenthesis ; and then the writ would properly follow the judgment as recited. The court will not conclude that the judgment must have been for the whole sum of 5001., because the plaintiff was authorised to sign judgment for that amount. It is clear that the real debt was only for 2501. and interest; and the plaintiff was at liberty to enter up judgment for a less sum than that mentioned in the warrant of attorney, as there may have been a remittitur for part.

Bompas Serjt. in support of the rule. First, the judgment is clearly irregular, as being signed and dated [65] in vacation, the warrant of attorney not authorising such a judgment. The power given by a warrant of attorney must be strictly followed. In Todd v. Gompertz (6 Dowl. P. C. 296) an objection was raised, that the warrant of attorney was, to sign judgment of a term generally, and therefore was not in conformity with R. H. 4 Will. 4, s. 3, though the judgment had been in fact entered up in term time. Patteson J. there says, “The second objection was, that the authority given by the warrant of attorney was to confess a judgment of Hilary term ; and it was contended that such a judgment could not be signed now. It was said that, because it ought to be dated of a particular day, -as judgments could not be signed generally of a term, —such a judgment would be irregular, and therefore the warrant was an authority to sign an irregular judgment. I think the utmost limit to which that objection can be carried is, that it would not authorise a judgment to

(a) The same rule provides “that it shall be competent for the court, or a judge, to order a judginent to be entered nunc pro tunc ;” but it has been decided that this proviso applies only, as formerly, to cases where the judgment is delayed by the act of the court; Lanman v. Lord À udley, 2 M. & W.535; Vaughan v. Wilson, 4 New Ca. 116, 5 Scott, 404, 6 Dowl. P. C. 210 ; Doe d. Taylor v. Crisp, 7 Dowl. P. C. 584 ; see also Blewitt v. Tregonning, 4 A. & E. 1002.

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