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![handle is hein.slavery/ssactsengr0576 and id is 1 raw text is: HOLT 236.
ROBSON V. GODFREY
225
[236] May 29, 1816.
ROBSON v. GODFREY AND THOMAS.
(1. Where work is done upon a special contract, and for estimated prices, and there
is a deviation from the original plan by the consent of the parties, the estimate
is not excluded, but is to be the rule of payment, as far as the special contract
mine ; it is nothing which I could foresee or prevent ; it is not the result of character,
or the absence of any proper quality which I ought, acting with ordinary discretion,
to have required in a driver. All the cases under this exception rest upon the same
distinction. The injurious act, for which the master is made responsible, must be
something growing out of the particular service, and be committed quatenus in servitio.
5. To instance a few more cases. In Bro. Abr. tit. Trespass, pl. 435, it is said,
If my servant, without my notice, put my beasts in another's land, my servant is
the trespasser, and not I ; because, by the voluntary putting of the beasts there,
without my assent, he gains a special property for the time, and so, to this purpose,
they are his beasts. The reason here given is an example of the subtilty of our
old law-writers, who preferred a reason, however technical and remote, to one more
obvious and familiar. In Middleton v. Fowler, Salk. 282, Holtj C. J. places the
law upon its proper foundation, when he states it as a general position ;- that no
master is chargeable with the acts of his servant, but when he acts in the execution
of the authority given him. In other words, when a servant quits sight of the
object for which he was employed, and, without reference to his master's business
or orders, commits from his own malice some wilful and independent act, he is no
longer presumed to be acting in pursuance of his general authority as a servant,
and, according to the doctrine of Lord Holt, his master is not responsible for the
act which he does. Thus, in M'Manus v. Cricket, 1 East, 106, the Court of King's
Bench determined, that a master was not liable in trespass, for the wilful act of his
servant, in driving his master's carriage against another; such act being done
without the direction or assent of the master ;-admitting, at the same time, that
the master would be liable for any damage occasioned by the neg-[232]-ligence and
unskilfulness of his servant whilst in his employ.
In the same manner, although the master of a ship is not discharged of his
responsibility for the acts of his crew notwithstanding they are done under the
direction of a pilot, who, by the regulations of a statute, supersedes the master for
the time in the government of the ship ; yet, if one of the ship's crew does a wilful
act of injury to another ship, without any direction from, or privity with, the master,
trespass cannot be maintained against the master, although he was on board at the
time. Boucher v. Noidstrom, 1 Taunt. 56-8 ; and see the cases referred to in the
argument.
So, in a later case, Nicholson v. Mounsey, 15 East 384, it was determined, that
the captain of a sloop of war was not responsible in an action on the case, which is a
material distinction, for damages done by running down another vessel ; the mischief
appearing to have been committed during the watch of the lieutenant, who was
upon deck, and had the actual management of the sloop at the time; and when
the captain was not upon deck, and was not called by his duty to be there. That
case, however, was determined upon this principle, 1. That the defendant and the
lieutenant were equally the servants of a superior, and stationed on board by the
same authority. 2. That the defendant had no power either to appoint or dismiss
his officers and crew.
6. With respect to the description of agents and servants, for whose acts the
master may be responsible, there is a peculiarity in the English law, which embraces
a very wide and extensive relation. In the civil law the liability was narrowed
to the person standing in the relation of a paterfamilias to the wrong-doer. Dig. lib.
ix. tit. 3. Our law extends, not only to cases where the agent is a domestic, but it
throws the responsibility upon the principal, from whom the authority, of which
the injury is a consequence, originally moved. Thus, where a master having em-
ployed his servant to do some act, and the servant out of idleness employed another
to do it, and that person, in carrying into execution the orders which had been given
to the servant, committed an injury to the plaintiff, the master was held responsible.
Reported from Buller, J. by Eyre C. J. in Bush v. Steinman, 1 B. and P. 404.
[233] 7. The general proposition, that a person shall be answerable for an
N. P. 11.-8](ViewImageLocal?handle=hein.slavery/ssactsengr0576&div=1&collection=&method=preview&ext=.png&size=3)