LEGACY.-By a will, specific and pecuniary legacies were given to several legatees by name, and testator gave all the residue of his personal estate to all the before-mentioned pecuniary legatees, with certain exceptions, to be divided between them in proportion to their respective pecuniary legacies. By a codicil, after reciting the death of one of the pecuniary legatees, testator bequeathed the legacy given to her by the will to J. B. Held, that there was an intestacy as to the share of the residue given by the will to the deceased legatee. Wood, V. C. It was true this Court would assume that the testator did not wish to die intestate; but it was constantly obliged to hold that he had done so. The testator had clearly had all the circumstances present to his mind. He had given the L.500 and the L.200, and had said nothing about the residue. He must be taken as knowing that he had given that residue among the legatees personally. The result was, there was an intestacy as to this share of the residue, and the next-of-kin were entitled. With regard to the costs, his Honour referred to Re More's Trusts 10 Hare 171, and directed the costs of all parties to come out of the fund.-(Re Gibson's Trusts, 31 L. J., Ch. 231.)

PERJURY.-On the hearing of an application for an order of affiliation against H., in respect of a full-grown bastard child born in March, the mother, in answer to questions put to her in cross-examination, denied having had carnal connection with G. in the September previous to the birth. G. was called to contradict her; the Justices admitted his evidence, and he wilfully and falsely swore that he had had carnal connection with her at the time specified. It was held by eleven of the judges (Crompton, J., and Martin, B., dissenting), that, although the evidence of G. ought not to have been admitted to contradict the mother on a matter which went only to her credit, still, as it was admitted, it was evidence material to her credit; and, consequently, so far material in the inquiry before the Justices as to be capable of being made the subject of an indictment against G. for perjury. Cockburn, C. J. Here the evidence having been admitted, and having reference to a matter pertinent to the inquiry, The Queen v. Philpotts is a direct and distinct authority that perjury may be assigned upon the answer. I go along entirely with the principle of that case, that if a witness is allowed to give evidence, though it may afterwards turn out that his testimony ought not to have been admitted, perjury may, nevertheless, be assigned upon his answer. It does not lie in the witness' mouth to say that his evidence was immaterial, especially when, if believed, it might most seriously have injured the party against whom it was given.—(R. v. Gibbons, 31 L. J., M. Ca. 98.)

FREIGHT.-On a guarantie that a certain vessel should sail with or before any other vessel then in the berth, under penalty of forfeiting one-half of the freight,' another vessel having sailed first, it was held that one-half of the freight could be recovered as liquidated damages; and also that it was immaterial whether the money intended to be made payable was called by the parties' a penalty' or 'liquidated damages.' Bramwell, B.: The question is, Is this a sum of money recoverable? Is it, as popularly expressed, a penalty or liquidated damages? We think that it is recoverable, and that whether we seek a solution of the question in the statute 8 and 9 Will. III., c. 11, or elsewhere. It is not a sum to secure the performance of several matters. This is the distinction on which the question turns: the names the parties give the money, penalty,' or 'liquidated damages,' are immaterial.-(Sparrow v. Paris, 31 L. J., Ex. 137.)

GAME.—If rabbits be started and killed on the land of another, they are the property of the person on whose land they are killed, and not of the captor. Quære-Whether there would be any difference if the rabbits were started on the land of A. and killed on the land of B. Willes, J. It will be well, when this case is further considered, if it should ever be so, to compare the dictum of Lord Holt, in Sutton v. Moody, with the same passage in the Institutes of Justinian, where it is laid down that wild animals' simul atque ab aliquo capta fuerint jure gentium statim illius esse incipiunt; quod enim ante nullius est, id

naturali ratione occupanti conceditur. Nec interest feras bestias et volueres utrum in suo fundo quisque capiat an in alieno.' (Lib. ii. 1. 12.)—(Blades v. Higgs, 31 L. J., C. P. 151.)

LIBEL.-Though a publication of the report of a trial in a court of justice, in the course of which a libel is read, would be privileged; a publication of the proceedings of a parish vestry, at which a libel is read, is not so privileged. Wilde, B.: Undoubtedly, the report of a trial in a court of justice, in which this document had been read, would not make the publisher thereof liable to an action for libel; and reasonably, for such reports only extend that publicity which is so important a feature in the administration of the law of England, and thus enable to be witnesses of it, not only the few whom the Court can hold, but the thousands who can read the reports. But no court has decided that the reports of what takes place at a meeting of such a body as this vestry, are so privileged. . . . It was further contended that this libel might be justified as matter of public discussion on a subject of public interest. The answer is: this is not discussion or comment, it is a statement of a fact. To charge a man incorrectly with a disgraceful act is very different from commenting on a fact relating to him truly stated. There the writer may, by his opinion, libel himself rather than the subject of his remarks.-(Popham v. Pickburn, 31 L. J., Ex. 133.)

POWER OF APPOINTMENT.-A settlement made in 1794, gave to A. E. a power to appoint the fee by deed or will. By deed, in 1830, she exercised this power of appointment, but reserved to herself power of revocation and new appointment by deed. In 1833, by another deed, she revoked that of 1830, made a new appointment, and repeated the same reservations. She did the like by another deed, in 1835. In 1836 she executed another deed, revoking the uses of 1835, but not making any new appointment, nor making any reservation as to the power of new appointment. In 1848 she made a new appointment by will; and it was held by the House of Lords, affirming the decree of the Lords Justices, and overruling a previous decision of Vice-Chancellor Kindersley, that the original power of 1794 was not exhausted by the deeds of 1830, 1833, 1835, and 1836, but that, under the original power, it was still competent to A. E. to appoint by will. Lord St Leonards: Here the revocation had been well executed; it was not a clumsy revocation of all previous deeds, but a clear single revocation of the last deed: for, in truth, each of the deeds had revoked its immediate predecessor, and, therefore, the simple revocation of the last of them left matters as if no deed had ever been executed. Then came the will. If the power to appoint by will, in the original settlement, remained untouched, what was the position of the testatrix when she had revoked the last appointment? She had just the same power to appoint by deed or will with which she had started in 1794. As regarded intention, that could have no effect here, except as shown by the operation of the deeds.-(Saunders v. Evans, 31 L. J., Ch. 233.)

NEGLIGENCE.The mere happening of an accident is not sufficient evidence of negligence to be left to the jury; but the plaintiff must give some affirmative evidence of negligence on the part of the defendant. Where, therefore, it was shown that the defendant was riding a horse at a walk, when the animal became restive, and, rushing on to the pavement, knocked down and killed the husband of the plaintiff; but the witnesses for the plaintiff also proved that the defendant was doing his best to prevent the accident,-held, that this was no evidence of negligence; that, taking the evidence of the witnesses for the plaintiff altogether, it was clear that the defendant was carried on to the pavement against his will, and that there was therefore nothing to turn the scale of evidence against the defendant, and to show that he was responsible for the consequences of the accident.-(Hammack v. White, 31 L. J., C. P. 129.)

THE

JOURNAL OF JURISPRUDENCE.

REPRESENTATIVE RESPONSIBILITY.

THE general principle of responsibility is, that the duty of repairing the consequences of a wrong is strictly personal to the wrongdoer himself. Culpa has its seat in the mind; therefore, culpa tenet suos auctores. That was a fundamental maxim of the Roman law, from which it has been transplanted into our own; and, so far as delicts are concerned, is incapable of exception.

As regards acts of negligence, however, or quasi delicts, the rule must be obviously subject to some modification. The duty imposed on every person so to conduct his affairs as not to injure another, necessarily includes things done by his agents or servants, as well as by himself; for when a wrong is suffered, it is immaterial to the person injured whether it is done by the principal himself, or through the agency of another. He is free to employ any one he thinks proper; and a prudent man engages only careful, intelligent, and skilful persons. It may be said, indeed, that the fact of their being in his service is a warranty to all the world that they are competent for the duties with which they are entrusted. Qui enim aliquem proponit is clara et aperta voce dicere videtur hunc ego proposui-qui volet cum eo contrahat' (Peckius in leg. 5 D. de exercit. Act.). It is further open to the master to give them only such instructions as may be safely carried out; to hold over them such superintendence, and to take such precautions, as will secure that the mode in which his business is conducted shall be without prejudice to the public. These considerations have led to the recognition of the principle, qui facit per alium facit per se. For a wrong done by a servant in

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the course of his employment, and acting within the scope of his authority, the master is bound to answer; because, in contemplation of law, the wrongful act of the servant is simply the act of the master himself.

There

The principle is entirely the development of modern times, and is not found in the Roman law. A slave being a mere chattel, was not answerable for his own delict,―servus nil deliquit qui domine jubente obtemperavit;-but the wrong was treated as the personal act of the master, for which, accordingly, when it was committed under his orders, he himself was responsible. It is said, for instance, 'si servus sciente domine accidit in solidum dominum obligat; ipse enim videtur dominus accedisse' (L. 2, Pr. D. de Noxal. Act.). By the knowledge of the master we are to understand a wilful sufferance or non-prohibition of the act in question. Scientiam hic pro patientia accipimus;' 'cum prohibere posset non prohibuit.' fore, when it appeared that the master knew of the wrong done, and could have stopped its commission, but failed to do so, he was liable to be sued for the consequences as the direct cause of the injury. In other words, he was treated as art and part. But this has no relation to the representative responsibility of an employer, such as that under consideration. In such circumstances, the party injured by a slave was, by the ancient law of Rome, without redress; and so it was found necessary to invent a new form of process, under which the master was sued servi nomine. This was termed the Actio Noxalis-noxa or noxia signifying the delict of a man in potestate. The person liable to be sued was the actual owner or possessor at the time-noxa caput sequitur. If he chose not to defend the action, he was required to transfer the slave in property to another. If he chose to defend him, and the slave was found guilty, he was condemned cum noxæ deditione. The master's responsibility was thus in no sense a representative liability; for in any case he could judge for himself whether it would be most to his advantage to pay the damage suffered, or to give to the complainer the slave who was thereby made to indemnify his own wrong to the extent to which he was actually worth.

The rule by which we now hold an employer to be answerable for the negligence of his servant or workman, will, in the general case, be found to involve

(1.) That between the wrongdoer and the person sought to be charged, there existed the relation of master and servant.

(2.) That the act complained of was done in the course of the servant's employment, and within the limits of his authority.

A master is a person whose orders a servant is bound to receive and obey; who pays him his wages; and who can dismiss him for misconduct. The rule of law applies not only to domestic servants, such as a butler, coachman, groom, gardener, or house-maid, but to persons charged with the superintendence of any piece of business, such as a shopman or clerk, the keeper of the signals on a railway, or the driver of a locomotive. It is obviously of no moment whether the servant be appointed directly by the master himself, or through the agency of another deputed for the purpose-such as a foreman or manager. The owner of a ship appoints the master, and the master selects his crew. The crew thus become the servants of the owner for the government of the ship; and if any damage happens by their default, it is the same as if it happened through the immediate default of the owner himself. So in the case of a mine, a farm, or a manufactory;-the workmen are hired by the manager; but it is the proprietors who get the benefit of their services, and from them that they receive their wages; therefore the workmen represent the masters, and their acts stand on the same footing as their

own.

In considering the distinguishing marks by which the relation of master and servant may always be recognised, it is necessary to remember that the right of the master to hold the servant subject to his disposition and control arises under a contract of hiring-locatio operarum, the hire of a person's services in a given character for a given period,-not locatio operis faciendi, the engagement of a tradesman to do a particular piece of work for a given sum. The right of the servant to represent his employer in the particular matter for which he is engaged, flows from an implied mandate. The relation is thus dependent primarily on the contract of hiring, but partly also on the contract of mandate. Properly speaking, therefore, the rule applies only to agency of a strictly domestic or administrative kind, such as that of an institor qui tabernæ locove ad emendum vendendumve præponitur (L. 18 D., de Inst. Act.); but on considerations of public expediency, it has been extended to a much wider circle of cases. A client is answerable for the blunder of his law agent; a creditor for the mistake of a messenger, and so on. But, these relations excepted, it will generally be found that to establish responsibility for the act of another requires the concurrence of two con