64 Notes for (he Mont),. [JAN. 



the delictum so divided, the last was in doubt where to bring his 

 action ! Cocking, the corporal offender, not being worth following. 



The fact was, the plaintiff suffered, and seemed likely to suffer, by 

 having too many strings to his bow. Mr. Kennell was undoubtedly 

 liable for the damage done by his servant while in the performance 

 of his business ; and Mr. Freshfield was equally bound for the conduct 

 of his horse, by whom the damage had been committed. But both 

 could not well be made liable. If Cockings had run over the plaintiff 

 without Mr. Freshfield's horse ; or, if the horse had run over the 

 plaintiff, without having Cockings on his back; or, if Cockings had 

 done the embassy to Furnival's inn for Mr. Freshfield, to whom the 

 horse belonged ; or, if Mr. Kennell, who sent Cockings to Furnival's 

 inn, had been the owner of the horse ; any one of these ways, the 

 case would have been clear : but, between " the two stools," Mr. Good- 

 man (in the court, as in the Lambeth-road) was like to " come to the 

 ground." As the case stood, he did resolve to go against the owner of 

 the servant Mr. Kennell (we suspect rather at a hazard) ; and Mr. 

 Justice Park, probably from a feeling that he had a fair title to recover 

 somewhere summed up in his favour although Cockings stated dis- 

 tinctly that he took the horse of Mr. Freshfield, without any order from 

 * and even without the privity of Mr. Kennell. But the case, in all 

 likelihood, will come before the Court above : and we rather doubt, 

 upon the evidence, whether Mr. Justice Park's law will stand. 



There is no doubt that a man is answerable, in law, for that which his 

 servant though servant only for the time being does by his command. 

 And, still farther, he is answerable for that, which his servant may do 

 in the ordinary and reasonable routine of his (the master's) business, 

 although not by his particular command. And moreover, he is liable 

 for things which his servant does in his name, in fraud upon him, and 

 contrary to his interest, as for the taking up of goods of shops at which 

 he is accustomed to deal, and have credit given by the agency of that 

 servant because here, it is his ordinary course of conduct which leads 

 the tradesman into mistake. But we doubt rather whether this kind of 

 liability can be taken to extend to such an act as the running down public 

 passengers, by riding on the back of other people's horses; because this 

 is an act with which the master has in equity nothing to do and, besides, 

 the precedent is against it. 



For instance, in the case of " Dobson v. Sir Arthur White," where 

 the Overseers of the parish of St. George's, Hanover Square, sued the 

 defendant, a gentleman of fortune, residing at No. 7, Brook-street, because 

 a housemaid who lived at No. 11 four doors off had become chargeable 

 to the parish, in consequence of the immorality of his footman, Sir 

 Pepper Arden, Chief Justice, held " that the Defendant was clearly 

 not liable ; because the act complained of had been committed by the 

 footman, of his own wrong, and not in the reasonable performance of any 

 of his master's business." 2d. B. B. pp. 132. This was a Nisi Prius 

 decision : but it was never disturbed. 



However we will come closer to the case immediately in question. 

 Cockings was sent by Kennell to Furnival's inn : he received no horse 

 to go upon ; and the presumption was, that he would go on foot. Then 

 suppose (as he did not go on foot ), instead of mounting, without leave, upon 

 Mr. Freshfield's horse he had gone to Exeter Change, and mounted clan- 



