allusion to the Roman law, or to the origin of the rule in that law.

(2.) In a note of Story on Agency ($458) there is extracted a bit of a learned essay, showing where and to what extent the maxim was introduced into the Roman law, and that it was confined to cases where the agent was performing the duty contractually assumed by the principal, and that the rule as we apply it was unknown to Roman lawyers.

(3.) No such law in known in Spain. The Moxham (1876), I Pro. Div. 110, and as that is a medieval country, probably there never has been an innovation in the law from the time of Julius Cæsar.

To hold one liable for the neglect or carelessness of another when I did not direct or intend the act, requires a considerable process of reasoning to justify in any case. But to make me liable because a man I have paid to do an act of kindness to an unfortunate, hurts somebody by his carelessness, at first blush seems monstrous, and I think must always seem so to minds not perverted by mere scraps of legal phraseology.

Let us look at some illustrations. If the good Samaritan, after binding up the wounds and pouring in the oil and the wine, and lodging the wounded wayfarer, had been sued by that ungrateful man, because the innkeeper's cook dropped some scalding water on him, we would have had the parallel to the application of respondeat superior by the Common Pleas, and for declining to accept this doctrine the Chief Justice is taken to task by the commentator. In fact, the Court of Common Pleas went much further; it held the Samaritan liable for the act of the innkeeper's cook, not only to the wayfarer, but to casual passers, if the cook was attending to the wants of the wayfarer, and therefore was in the employ of the Samaritan. No Courts have ever carried the doctrine further than those of England, but such nonsense as this, we may depend upon it, they were never guilty of. It is wise to consider common sense before we launch out into the realms of legal reasoning.

To hold me liable for the acts of a man I have hired to act as a nurse for a destitute sick person, to make me liable for the defect of a carriage I hire to carry a sick person home, or

to a hospital, or to give him an airing, is, I think, perfectly absurd. It really confounds the relation; the contract is between the nurse or the driver, and the sick person, not between me and him. That I pay for the service, has nothing to do with the subject. I am not the employer, but the paymaster, and if there is a relation of employer on my part, it is that of voluntary bailee, which requires something like fraud, that is, intentional wrong, to create a liability. For the employment is only in the selection of an agent. What possible distinction is there between such a person, and one who volunteers to pay the tolls, or. the passage money for a poor person? Does he thereby become the carrier or owner of or liable for defects in the bridge?

In the English cases that raised a doubt, together with some reasoning given in other cases, the defendants were engaged in commercial enterprises where the plaintiff paid for the use of the works, and the defendants received the profits. It is very difficult for me at least to see why the fact that the funds were applicable to another purpose, had anything to do with the case, further than as an argument that as the parties acted under a statute, this diversion of the fund created an implication of exemption. If it had been the case of a trustee acting under a settlement, no one would have paused to enquire whether the trust property could be applied to recoup the damages incurred in executing his duties. The Court could not bring themselves to say, that in such things the employer is not liable, and they held that the corporation and not its officers are the proper persons to look to: Mersey Docks Trustees v. Gibbs (1866), L. R. 1 E. and Ir. Appeal. pp. 107, 118, 124, 126,

In these cases, the profits were applicable to the reduction of the charges, and if we can rid ourselves of forms, we will see that the ultimate beneficiaries were a mere trading company for a profit, and the machinery of corporation, or trustees, was no more than a partnership for this purpose.

In the Herriot School (1846), 12 Cl. & F. 507, the notion of making the charity estate responsible for the wrongful act of a manager, would be merely ludicrous, were it not for the hardship on the manager that must result from exempting the

fund, where in all honesty and sincerity, he makes a mistake. But how is it with trustees generally? Did any one ever hear of their defending for a wrong on the ground that the trust estate and not they were liable, or asking to be recouped out of the trust estate for damages they had been compelled to pay for a breach of duty confessedly not in accordance with the trust?

But the particular point is, where the master is manager of a charity, does the person employed by him in that duty, occupy the relation of servant, so that the servant is not, and the master is liable for the carelessness of the servant? The remarks I have made as to the origin of this most artificial of rules, are here very pertinent.

If the natural rule is, as I have endeavored to show that it is, viz. that no one is answerable for the conduct of another, unless he directed it, but each man is liable for his own sins and he only (we have the Hebrew prophet's authority for this rule, in the loftiest conception of moral responsibility), is it unreasonable to make the same exception in our artificial rule known as that of respondeat superior, when the master is a charity or the managers of a charity, and to hold that here the same rule shall apply as is applied, when the employer is a government or a servant of a government or of a municipality when acting for the government and not as a private person.

It should then be borne in mind, that- the owners of a charity are the beneficiaries, the class intended to be benefited. The legal title is a corporation or in trustees, but the trust is known, and to charge the funds with a dereliction of the trustees is not less absurd than it would be to charge an infant's property with the misconduct of a trustee in the marriage settlement under which the infant claimed. The results such as those of the Rhode Island Case, are possible only where the corporation is supposed to be the equitable as well as legal owner of the property. Test that by a dissolution of the corporation and the rule for distributing the assets. This will show who is the legal owner of the property.

Now the first thing that may be observed, is the rule as to public servants. No one doubts, I suppose, the liability of a man for his own acts, and no one would demand that the

public should compensate for injuries inflicted by its servants. We are of course dealing with acts that were not commanded. The remarkable fact is that it was once attempted to make the intermediate agent liable, because his master, being the government, was not liable, at least it so strikes my mind. But I am probably wrong, for such a palpable objection, if it exists, would not have been overlooked by the men who had to deal with Whitefield v. Despenser (1778), 2 Cowp. 754.

Then we come to municipalities, and it cannot be disputed that there is a clear division between omissions of duties imposed on the municipality, and misconduct in performing duties imposed on the servant or person employed by the municipalities. Possibly the true distinction may be between those duties which are public duties, such as police and the like, and those that differ not from duties imposed on private persons, such as repair of roads: Elliott v. The City (1874), 75 Pa. 347, and Freeman v. The City (1879) [Common Pleas, No. 4, of Philadelphia], 7 W. N. C. (Pa.) 45 are illustrations, and in the latter this distinction is noticed. The famous case of Whitefield v. Despenser (1778), 2 Cowp. 754, shows that the distinction between public servants, such as the Post Master General, and the Trustees of a public work, such as Docks, where no one but those using them derive a profit, must rest on something like that I have alluded to, viz. the distinction between ordinary commercial operations, though without profit directly to the undertakers, and those performing a public duty.

All these show that the rule is artificial; it is a creature of the courts. No one would ever waste time to discuss the propriety of the rule in the ordinary run of human affairs. But if the Post Master is not liable for the negligence of his servants, why should a trustee for a charity which is a public duty, quite as much as that of the Post Master?

ment.

What are all these rules made for? The general good only. The contributors and managers of charities are always volunteers. Nothing of private profit enters into the arrangeNatural justice demands no more than that the person causing the injury should answer. To load persons willing to serve the public with this responsibility, is certainly not for the public good. And if the employer is not liable for the

selection and conduct of his servants, it is really absurd to fasten the liability on property they are required to administer, where there is not an instance in which a trustee can lawfully bind his estate except by a power.

If we desire to bring distinctly to the mind the steps that are necessary to fasten upon charitable estates a liability for acts of servants under the rule of respondeat superior, we must first define that rule, to ascertain what sort of superior it is that is liable and when and why.

It is either because the servant is alter ego, or because of the duty to select a proper person to be the servant. And we are met by the well-known exception that if the employer does not retain the power of directing the servant, the rule does not apply, as when we employ a builder to put up a house. That is, the relation of employer and builder does not admit the rule to be applied. This would at once dispose of the Rhode Island case.

The next step is, that the real owners are the beneficiaries, all others are trustees or agents, and the beneficiaries do not select the servant. They have no voice in the matter. How then do the parties administering the charity become entitled to charge the fund for damages caused by their own misconduct? For it is only with misconduct that we are dealing. We are not dealing with conduct that is in performance of the duty of administration.

It is quite clear, I suppose, that no one can charge the property of another without a power is conferred to do so. And it is equally clear that the beneficiaries, the equitable owners, do not give any such power and were not asked to do so.

It is also clear that while all trustees are entitled to be indemnified out of the trust estate, it is only for legitimate expenditure. I doubt if any one ever heard that a trustee was allowed credit for damages recovered for misconduct even when doing anything that was his duty to the estate to do, still less for damages incurred when doing what he ought not to do.

If the trustees of a charity differ in this respect from other trustees and are entitled to apply the funds in their own relief it must arise from an authority implied in the appointment or