256 



LIVERY-STABLE KEEPERS, AGISTERS, ETC. 



the Court of 



Common 



Pleas. 



The General 

 Rule. 



Wliere the 

 Hii'er would 

 not be liable. 



Hirer sitting' 

 outside liable. 



rule iiisi for a nonsuit, and Chief Justice Tindal said, 

 " Undoubtedly the cases in which the Hirer of a glass- 

 coach or a post-chaise has been held not to be responsible 

 for the act of the driver, depend upon grounds wholly 

 different from those on which the liability of the defendant 

 on this occasion is to be sustained. It has always been 

 held that the Hirer of the Carriage, having no power of 

 selection, no foreknowledge of the character of the driver, 

 is not responsible for any negligence or want of skill or 

 experience on his part ; for that it is the duty of the party 

 who lets, to exercise care and caution in the selection of 

 those to whom he entrusts the government and direction of 

 his Plorses and his Carriage. But here the question is, 

 whether the evidence did not show that this defendant so 

 conducted himself as to be liable as a co-trespasser with the 

 postillions whose conduct has given rise to this inquiry." 



" The Greneral Eule is, that all who are present, and who 

 from the circumstances may be presumed to be assenting 

 to the wrongful act, are tresjjassers. In Trespass all are 

 principals. I think there was abundant evidence to jus- 

 tify the Jury in coming to the conclusion they did. In 

 the first place the defendant was present, sitting on the 

 box of the Carriage ; and when he saw that the Carriage 

 was out of the line, he must have known that the post- 

 boys intended to get into it again whenever they found 

 an opportunity, so as to be enabled to pass through the 

 toll-gate." 



" Had the defendant at that time expostulated, I hesi- 

 tate not to say that he would not have been a trespasser, 

 whatever might have ensued ; for no servant can against 

 his master's u-iil make him a trespasser by any wrongful 

 act of his. Had he expressed any, the slightest disap- 

 probation of the course the postboys were evidently pur- 

 suing, he would have escaped all liability ; or if the 

 defendant and his friends had all been inside the Car- 

 riage, so that they could not be supposed to be well 

 aware of what was going on, the plaintiff must have 

 sought his remedy elsewhere." 



"But being, or some of them being, on the outside, 

 and seeing the improper manner in which the postboys 

 were endeavoming to get on, and, though not actually 

 encouraging them in their unlawful course, yet abstain- 

 ing from all interposition to restrain them, this, though 

 not very strong, certainly was some evidence whence the 

 Jury might properly infer that the defendant assented to 



