cannot ; but if the condition were the payment of money, such payment by another would free him. (Javolenus, lib. 4, ex Post Labeonis.) To this the glossator says: Quia ea quæ in faciendo sunt, generaliter per alium non possunt fieri: in dando secus Accursius. Or as it is expressed in the margin: Facta per alium regulariter impleri non possunt. Dandi conditio per alium impleri potest. For other instances, see Daouz, verb. Alium. Azo has nearly the sense of the maxim in other words, where among the "fictions or interpretations of the law," arranged according to the ten predicaments of the logicians, he says, circa actionem interpretantur aliquem agere vel egisse qui per alium agit vel egit; sive erat procurator sive gestor; si postmodum ratum habuit. Summa in Cod. lib. 1, tit. 1, fol. 5, no. 14, citing, ff. de jud. l. licet, or Dig. 5. 1, 56, which says that although the contestatio litis have been taken by one who was not truly a procurator, yet if the party himself afterward ratified the act, the case is properly submitted to judgment. (Ulpian, lib. 30, ad Sabinum.) But the gloss and the note of Bartolus to this passage show that it was understood simply of ratification (ratihabitio). A remark of the glossator that it would not apply if the act were done by a servant or pupil shows how little of the present meaning of the maxim was contained in it. Such a meaning would have been entirely inconsistent with Roman law, which recognized no representation of one freeman by another, either in assuming obligations or committing wrongs. We might expect to find this different in the canon law, which viewed all wrongs as sins, and judged men in all cases by the moral responsibility which they assumed in ever act. If the canonists held every ono responsible for the torts or crimes he led others to commit, it would be natural that they should give that meaning to the maxim. I am not familiar enough with their writings to say that this is never done; but there is a singular lack of examples among those I have examined. I have found none that an English lawyer would quote as illustrations of the principle. But the most striking fact is that in none of them has it the force which has been given to it in English law. It was never employed by any jurist out of England to express the liability of a master for a servant, of a principal for an agent-in fine, to show that one man should be responsible for the acts of another, because he had procured the to be done. The illustrations of its meaning given in Azo, Barbosa, the gloss, etc., and especially those which they quote from the corpus juris, show this clearly. Usually it is employed to explain why one man may take the benefit of an act done by another, when a conditional gift to Titius may avail him if the condition is performed by Seius, etc. Of course it is not stated as a general rule. The cases in which it does not apply are almost as many as where it does. The conclusion of the glossators seems to be that where the condition consists in faciendo-the doing of an act - it is not applicable; but where in dando, in paying a sum of money, it is. (Glo. to D. de statuliberis.) (26) "If a servant by his negligence does any damage to a stranger an action lies against the master, and not against the servant," page 431. There is an inaccuracy in the last clause. The fullest examination of a servant's liability in such cases is in C. M. Smith's Law of Master and Servant, ch. 6. Most of the treatises do not refer to it, as for several reasons the question does not often arise in that form. But it is also questioned in Story on Agency, 310, n. 1; Smith's Mercantile Law, 155, n. k; Paley on Agency, 399, n.; and Hilliard on Torts, ch. 40, ?? 20-22. The general rule in relation to contracts undoubtedly is that a servant does not become responsible for a con tract entered into on behalf of his master. The exceptions to this rule arise chiefly from some misconduct or mistake, and are more properly discussed under the head of principal and agent. (Smith, pp. 194-212.) In tort the general rule is, that all persons concerned are principals, and a servant therefore cannot excuse himself from liability for misfeasance, or wrong to a third person, by his master's orders. (Smith, p. 213.) Blackstone's error seems to have been due to overlooking the fact (which indeed has been overlooked almost to our own day, until clearly brought out in Mr. H. Smith's work on Negligence) that negligence is not a cause of action of itself, but merely a characteristic form of certain breaches of duty. If there is any duty toward the stranger the servant will be liable for his misfeasance. But a distinction must be taken between misfeasance and nonfeasance. In the latter case a servant is liable for his neglect only to his master, not to others; in the former he is liable to others, not as anybody's servant, but as a wrong-doer, who cannot set up orders as an excuse. (Lane v. Cotton, 12 Mod. 488, is the leading case on this. See, also, Gidley v. Lord Palmerston, 3 Ball & B. 275, 285; Williams v. Cranstoun, 2 Stark. 82; Cavanagh v. Such, 1 Price, 328; 2 Hilliard, 456; Henshaw v. Noble, 7 Ohio, 226; Denny v. Manhattan Co. 2 Denio, 115.) On his liability for misfeasance a leading case is Perkins v. Smith, 1 Wils. 328. (See, also, Stephens v. Elwall, 4 Maule & S. 259; Cranch v. White, 1 Bing. N. C. 414; Davies v. Vernon, 6 Q. B. 443; Powell v. Hoyland, 6 Ex. 67.) Where the servant knowingly coinmits a fraud by his master's orders, the better opinion is that he is responsible for the same reason. But if he is ignorantly the tool of another's fraud, there is no cause of action against him. Although the common master is not generally responsible to one servant for injury received from another, yet the servant himself who causes the harm is responsible to his injured fellow-servant. This is not an exception to the above rule; it is a case coming under the general rule of responsibility for torts; the service of either party does not affect their relation to each other, which would be the same if there were no service at all. Hence the distinction between misfeasance and nonfeasance does not apply, except as it would in the case of two independent persons. (Osborne v. Morgan, 130 Mass. 102, 1881; 39 Am. Rep. 437; also in 12 Cent. L. J. 448-450.) One servant placed an iron block and chain in a position where it was liable to fall, and did fall, and injured another servant. Held that he was liable to his fellow; overruling Albro v. Jaqueth, 4 Gray, 99, where an action by the employee of a mill for injury received from the escape of gas through the negligence of the superintendent of the mill was held not to lie against the latter. S. P., 58 Ind. 121; 22 Minn. 185; Hinds v. Overacker, 66 Ind. 547; 32 Am. Rep. 114. The confusion of the subject is chiefly due to the assumption that there must be a single rule or principle governing the master's liability for the servant in all cases. This is an example of the mistaken effort for clearness and simplicity, which usually results in worse confusion and more labor than it saves. At least the following unlike cases may be distinguished: 1. The master directs or employs the servant to do an injury, and it is done. Both are liable as co-trespassers. The relation here is immaterial, except as evidence of an implied command. They are co-tort-feasors, not master and servant. 2. The master is liable for his own negligence, though the wrong is done by his servant. He knowingly employs a careless servant or unfit tools. 3. The master is under some obligation or special duty to plaintiff, and is liable because his servant transgresses or fails; e. g., duty to passengers, broken by misconduct of an employee, or even a fellow-passenger. Here also the relation is not an ultimate fact. 4. The master's liability as master, and the principle of respondeat superior, are applicable to none of the preceding cases, in all of which the master's liability depends on his own wrongful act or omission (cases 1 and 2) or on some duty that he has assumed (case 3). Here he is liable as master for the acts of the servant in the scope and course of the employment without any fault of his own, and even in spite of his best efforts to guard against the injury to a third person. The cause of action against him can be analyzed into none of the elements by which one person usually becomes liable to another, either in contract or in tort. It can only be traced historically as a rule of the common law to the identification of personality between master and servant, which depends on the control exercised by the former, and probably began with the complete enslavement of the latter, as stated by Judge Holmes. (See note 22, ante, page 719.) As cases of the second kind are brought for the wrongful act of the master himself, and do not depend on his character as master, the party injured may recover, though a fellow-servant was the direct cause of the injury. (Stringham v. Stewart, 100 N. Y. 516.) In these cases scienter must be shown. The defect or incompetence must be known to the master, or one that he ought to have known, otherwise there is no personal fault brought home to him. (Covey v. H. & St. J. R. Co. 86 Mo. 635.) Latent defects do not make him liable (Clowers v. Wabash etc. Ry. Co. 21 Mo. App. 513); nor those so obvious that no prudent person would use the tool, etc. (Moline Plow Co. v. Anderson, 19 Mo. App. 417); e. g., when a brakeman is killed in coupling a foreign car of different height. (Kelly v. Abbot, 63 Wis. 307; 53 Am. Rep. 292.) A volunteer who takes part in the servant's work of 1 BLACKST. - 62. |