242 



LIVERY-STABLE KEEPERS, AGISTERS, ETC. 



The general 

 rule. 



"Where the 

 hirer -would 

 not be liable. 



Hirer sitting 

 outside liable. 



care and caution in the selection of those to -whom he 

 entrusts the government and direction of his horses 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 postilHons whose conduct 

 has given rise to this inquiry." 



"The general rule is, that all who are present, and who 

 from the circumstances may be presumed to be assenting to 

 the wrongful act, are trespassers. In trespass all are princi- 

 pals. I think there was abundant evidence to justify 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 postboys 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 hesitate 

 not to say that he would not have been a trespasser, what- 

 ever might have ensued ; for no servant can against his 

 master's loill make him a trespasser by any wrongful act of 

 his. Had he expressed any, the slightest disapprobation 

 of the course the postboys were evidently pursuing, he 

 would have escaped all liability ; or if the defendant 

 and his friends had all been inside the carriage, so that 

 they could not be supposed to be well aware of what was 

 going on, the plaintiff must have sought his remedy else- 

 where." 



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

 seeing the improper manner in which the postboys were 

 endeavouring to get on, and, though not actually encourag- 

 ing them in their unlawful course, yet abstaining 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 that course. But the 

 evidence does not stop there ; for the defendant, some time 

 after the accident, in a conversation with one of the witnesses, 

 said that he intended to have stopped when the carriage had 

 established itself in the line, and allowed the gig to regain 

 its place. Now that remark showed pretty strongly that 

 the defendant was exercising control over the motions of the 

 postboys, and was an assenting party to their act. I there- 

 fore think the defendant, the dominus pro tempore, being 

 present and seeing what was going on, and not interfering to 

 prevent the mischief, must be taken to have been an assent- 

 ing party ; and that this case falls within the principle laid 



