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![handle is hein.slavery/ssactsengr0908 and id is 1 raw text is: VI CLARK & FINNELLY. STEWART V. STEWART [1838, 1839]
the matter would be decided in the English law, we are bound in such a case as this,
when we are construing a British Act of Parliament, where there is no decision
against us, to yield to the doctrine which would regulate us in our own Courts, in
order to avoid the inconvenience of different rules of law existing in two countries
having the most constant intercourse and living under the same Government and
subject, so far as the highest Court of Appeal is concerned, to the decision of the same
supreme tribunal. There may be decisions or there may be principles opposed to our
taking such a course. That there was no such decision previous to 1820 is admitted,
that all the cases which have been decided have been upon the terms of particular
turnpike trusts is not denied; that. therefore no general rule has been laid down by
the Scotch Courts may be taken as admitted, but it may be that some case has been
decided extending the liability of persons for the acts of their agents beyond the
limit assigned to it by the law of England. But such is not the fact; on the contrary,
it is found that the liability of the principal is more restricted there than here. Such
a case as that of Bushi v. Steinman, which was satisfactorily decided here, if it had
happened in Scotland, would not have been so decided there, for the reason I have
just mentioned. The rule of liability, and its [910] reason, I take to be this: I am
liable for what is done for me and under my orders by the man I employ, for I may
turn him off from that employ when I please: and the reason that I am liable is this,
that by employing him I set the whole thing in motion ;* and what he does, being
done for my benefit and under my direction, I am responsible for the consequences of
doing it.
In the present case, I am of opinion that the Scotch law does not in any manner,
by way of practice, doctrine, or general principle, allow this fund to remain liable.
So that I hold it to be my duty, sitting here, to, set right the course which the Courts
in Scotland have taken. That will be done by reversing the interlocutors in this
case. This case will not then be inconsistent with any decision, but will be consistent
.with the general principles of the Scotch law; and not only so, but consistent at the
same time with the settled law of England. All the interlocutors must be reversed.
The costs of the appeal must of course be given, but I do not think that the Respondent
ought to be saddled with the costs of the Court below.
Interlocutors reversed.
[911] APPEAL
FRom THE COURT OF SESSION.
Mrs. MARIA CAMPBELL STEWART,-Appellant; FERDINAND STEWART
CAMPBELL STEWART, and Others,-Respondents [Feb. 15, 19, 20, 26, and
27, March 1, 1838; June 3, 1839].
[Mews' Dig. iii. 2031; S.C. Macl. and R. 401. See Cooper v. Pkibbs, 1867, L.R. 2 H.L.
149; and notes to Stapilton v. Stapilton, 1 Wh. and T.L.C., 7th Ed. 223.]
The widow, brother, and sister of an American who died in Italy, leaving consider-
able personal estate in the hands of trustees in Scotland, agreed, by advice of
The Court of Queen's Bench, in Wanstall v. Pooley, Mich. Term 1841, acted upon
this principle in a very decided manner. A cornfactor was absent from his shop,
and during his absence his sister managed the business. She wanted to send out
some corn to a customer, and for this purpose she employed a person who occasionally
worked for her brother, and who at the time of such employment was in a state of
inebriety. This man (contrary to the practice of the cornfactor's shop) took out the
corn on a small warehouse truck, which he negligently left in the road, whereby a
person driving along in a chaise was injured. The cornfactor was held liable in an
action at the suit of this person, on the ground that the employment of a tipsy man
was an act of negligence, and that by such employment he set the whole, thing in
motion; and must therefore be answerable for the consequences.-MS.](ViewImageLocal?handle=hein.slavery/ssactsengr0908&div=1&collection=&method=preview&ext=.png&size=3)