238 BUTCHER EMi'LOYING DllOVEE. 



the case of Quannan v. Burncit, and other cases : one of which is that 

 of a general drover, who was held, in Milliijan v. Wedge, not to be a 

 servant so as to make the owner of the cattle responsible for his negli- 

 gence. After the full consideration which this subject has undergone, 

 we doubt whether the case of Rex v. Bernard Mac Namee (above 

 referred to) would now be decided in the same way. 



In MiUignn v. Wedge, defendant was a butcher, and had bought a 

 bullock in Smithfield-market, which is within the city of London. By 

 the bye-laws of the city, no person not licensed can drive cattle for hire 

 from Sniithfield, though the owner may drive them himself. The 

 defendant employed a licensed drover to drive the bullock to the defen- 

 dant's slaughter-house, which is without the city, and the drover 

 employed a boy to drive it there, with four other bullocks, which were 

 not defendant's, but were bound in the same direction. The five were 

 passing the plaintiff's show-room, which is without the city in Port- 

 land-road, when the defendant's bnllock did the mischief complained of. 

 Williams J. thought, on the evidence, the boy was not the defendant's 

 servant ; and the jury having found neglect, a verdict was given for 

 defendant on the first plea (that at the time, &c., the said person driving 

 the bullock "was not employed by him, the said defendant, as his 

 servant in that behalf, in manner," (tc), and for plaintiff" on the second 

 (Not guilty). Leave was reserved to move to enter a verdict for the 

 plaintiff" on the first plea, but the rule was discharged. The Court 

 considered they were bound by the decision in Qiiarman v. Burnett, 

 where the opinions of Abbott C.J. and Litfledale J. in Laugher v. 

 Pointer were acceded to by the Court of Exchequer. The party sued 

 here had not done the act complained of, but had employed another, u'ho 

 was recognized by the law as exercising a distinct calling. The butcher 

 was not bound to drive the beast to the slaughter-house himself. He 

 employed a drover, Avho employed a servant ; and hence the drover, and 

 not the owner, was liable. It did not even appear that the defendant 

 attended the drover or his servant ; and the mischief was done in the 

 course, not of the butcher's business, but the drover's. Coleridge J. 

 said: "The true test is to ascertain the relation between the party 

 charged, and the party actually doing the injury. Unless the relation 

 of master and servant exist between them, the act of the one creates no 

 liability in the other. Apply that here. I make no distinction between 

 the licensed drover and the boy: suppose the drover to have committed 

 the injury himself. Tlie thing done is the driving. The owner makes a 

 contract with the drover that he shall drive the beast, and leaves it under 

 his charge ; and then the drover does the act. The relation, therefore, 

 of master and servant does not exist between them " (12 A. & E. 737). 



