were as follows:-The plaintiff was the proprietor of a repository for the sale of horses, at Newington, in the county of Surrey. Taylor was his manager there, acting as auctioneer in the sale of horses, collection of moneys, and otherwise in the general conduct of the business. He had a horse and gig, his own property, which were kept for him on the premises of the defendant free of charge, and which he was in the habit of using when going out upon the defendant's business. One Smith had bought a horse at the defendant's repository, which he ought to have paid for at the office upon the premises, but had not done so. On the 10th of November, 1856, Taylor was going in the gig to see his medical attendant at Finsbury Place, and also purposed to call upon Smith for payment of the debt he owed the defendant for the horse; and, whilst on his way to the former place, and before he got to Smith's, he negligently ran against and killed a horse belonging to the plaintiff.

It appeared, that, whilst Taylor was getting ready the horse and gig for the purpose of going on the journey in question, the defendant asked him where he was going, when Taylor told him he was going to get Smith's money.

On the part of the plaintiff it was insisted, that, although the horse and gig were the property of Taylor, yet, as at the time of the accident he was using it in *the defendant's business, and with his knowledge, the defendant was liable. The contrary was contended on the part of the defendant.

*608]

In answer to questions put to them by the learned judge, the jury found, that, on the occasion in question, there was no verbal request by the defendant to Taylor to go with the horse and gig upon the defendant's business; but that Taylor went on the journey upon the business of the defendant, and that the defendant knew it and assented to it.

Upon this finding, the defendant's counsel claimed to have the verdict entered for him upon the second and third issues.

The learned judge, however, ruled that the plaintiff was entitled to the verdict upon all the issues, and the jury assessed the damages at 311.

Atherton, in Hilary Term last, obtained a rule nisi for a new trial, on the ground of misdirection on the part of the learned judge,—first, in not leaving to the jury the question whether the horse and gig driven by William Taylor were used by him on his master's business, at the instance and express request of the defendant,-secondly, in not directing the verdict to be entered for the defendant, on the fact being found, and not disputed, that the horse and gig were the property of William Taylor, not by him made over or bailed to the defendant; or on the ground that the verdict was against the weight of evidence, if it was to be taken that the jury in fact found that the horse and gig

driven by Taylor were used by him on his master's business at the instance and express request of the defendant.

Montagu Chambers, Q. C., and Joyce, now showed cause.-The evidence shows beyond dispute that Taylor was at the time the collision took place acting in the *service and about the business of the defendant; and the fact of the horse and gig belonging to [*609 Taylor can make no difference; the defendant would have been equally liable if they had been the property of a stranger. Taylor had the general management of the defendant's business. A horse had been sold to one Smith, and Taylor was going to him for the purpose of obtaining payment for it. He was also, it is true, going elsewhere, for a purpose of his own: but he met with the accident before he reached Smith's. [WILLIAMS, J.-Was it essential to the master's business that the journey should be made with the horse and gig?] Probably not: but Taylor was in the habit of going about his master's business with the horse and gig. [COCKBURN, C. J.-Suppose the master had said to him, "Go to such a place," without more, would he be liable?] That would depend upon the surrounding circumstances. Here, the evidence was, that Taylor's horse and gig were kept for him free of cost upon the defendant's premises, that he was in the habit of using them when going upon the defendant's business, and that, on the occasion in question, the defendant knew where he was going, and the manner of going. He therefore tacitly assented to his going in that manner. The case of Goodman v. Kennell, 1 M. & P. 241 (E. C. L. R. 17), is very much in point. There, a person occasionally employed by the defendant as his servant, being sent out by him on his business, took the horse of another person, in whose service he also worked, and, in going, rode over the plaintiff. At the trial, it was left to the jury to say whether or not the horse was taken by the servant with the implied consent or authority of the defendant; and, they having found a verdict for the plaintiff, the court refused to interfere. Best, C. J., said: "It has been truly said that a servant's riding the horse of another, without the assent or authority of his master, *can[*610 not render the latter answerable for his acts. But here the question was, whether there was not sufficient evidence to show that Cocking was riding the horse with the defendant's assent, and on his business. It was proved that Cocking was the servant of the defendant; that the horse was in his stable; and that on the day the accident happened, Cocking was going on the defendant's business or employment. The proof of these three facts was sufficient to raise a strong presumption that Cocking was using the horse with the defendant's consent.' Here, the proper question was left to the jury,-did Taylor go in the gig at the request of the defendant, or with his assent? The jury found that it was done with the defendant's knowledge and assent. [CROWDER, J.-The contention was, that, in order to

render the defendant liable, there must be something tantamount to a command by the master. The rule is not quite correct in the use of the word express.] It might almost be said here that there was an express command. [The court called on

Atherton, Q. C., and Barnard, to support the rule. This is an action against the defendant, not for an act or omission imputed to him personally, but for an act done by his servant. That Taylor was at the time of the accident acting in the service of the defendant, and about his business, is admitted. That, however, is not enough to impose upon him this liability. The rule of law is well exemplified by the language of the declaration itself: to render the defendant liable, Taylor must in the very act of driving have been acting as his servant, and not upon his own account. A man may be the servant of another at the time of doing the act which causes the injury, without that other being responsible for the mode of doing the act. The question is, not whether the servant was engaged on his master's *business, but *611] whether he was going in the particular manner,—with the horse and chaise,—as his servant. The mere fact of the master seeing him about to start in the chaise, and making no objection, is not enough. [COCKBURN, C. J.-That is only one circumstance. The facts seem to be these:-Taylor is employed in the general management of the defendant's business. He possesses a horse and gig; and it is mutually agreed, that, in consideration of the use of the horse and gig by Taylor for the purpose of the defendant's business, they shall be kept upon the defendant's premises without charge. Upon the occasion in question, Taylor was going out upon his master's business; the master saw him start upon the journey, and thereby assented to that mode of performing the service. The knowledge of the master was only one circumstance, in addition to the other and more material ones. I think it was a question for the jury, and that there was abundant evidence for them.] There was no evidence of any agreement or arrangement to the effect just stated. There was no bargain that the use of the horse and gig for the purposes of the defendant's business should be an equivalent for the horse's keep. [COCKBURN, C. J.—It was a tacit arrangement. That seems to have been assumed on all hands.] Suppose a master desires his servant to go to a certain place, and the servant of his own accord borrows a friend's horse for the purpose of riding there, and his master meets him by accident on the way, and says nothing,—could it be contended, that, in riding that horse, the man was acting in the service of his master, so as to make him responsible for any misadventure of the servant on the road? [CROWDER, J.-You must not lose sight of the other facts. Taylor was manager at the defendant's establishment; and his horse and gig were kept there without charge, and were used by him from time to

time upon his *master's business.] There was no evidence of [*612 any contract which made it his duty to use the horse and chaise in his master's service. It clearly was a misdirection not to leave it to the jury to say whether the horse and gig were used by Taylor on his master's business, at the instance and request, express or implied, of the defendant. [COCKBURN, C. J.-I think the master would have been liable if Taylor had taken the horse and chaise without his knowledge. I think there was abundant evidence for the jury, independently of that fact.] To justify the verdict, it should have been found as a fact that there was some obligation, some binding contract, on the part of Taylor to find a horse and gig for the service of his

master.

COCKBURN, C. J.-I am clearly of opinion that this rule must be discharged. I concur in the argument urged by the defendant's counsel, to this extent, that, to render the master liable, it is not enough to show that the person driving the vehicle which causes the damage is his servant, but that it must be shown that the servant was driving with his master's authority and upon his business. Now, I think there was abundant evidence here that Taylor was driving, at the time the accident occurred, with the defendant's authority and in the course of business as his servant. Taylor, it appears, was the general manager of the defendant's establishment; and, being so, he, either by express agreement or by some tacit arrangement, was in the habit of using in transacting the defendant's business a horse and gig, his own property, which, in consideration of that arrangement, were kept for him upon the defendant's premises free of charge. Looking at these circumstances, and considering the nature of the business, I think Taylor must be assumed to have had authority to exercise his *discre[*613 tion as to the mode of performing his duty to his master. Adding to this the fact that the master knew that his servant was using the horse and gig on the particular occasion, I think the evidence was ample to show that what was done had the sanction and authority of the master. That question was not at all withdrawn from the jury. The contention on the part of the defendant at the trial was, that he was not responsible for the damage, because the horse and gig were the property of Taylor, and because there was no evidence of any express command from the defendant to Taylor to use the horse and gig upon the occasion in question. I think the former part of the argument is met by the fact that the horse and gig were kept by the defendant free of charge to Taylor, and were ordinarily used by him in the performance of journeys about his master's business, and the latter by the fact that the master was cognisant of the course which his servant was pursuing at the time, and did not dissent. I think the case was properly presented to the jury, and that there is no ground for saying that the verdict was not well warranted by the evidence.

WILLIAMS, J.-I am entirely of the same opinion. I agree with Mr. Atherton, that, in cases of this sort, the real question is, whether the servant while doing the negligent act complained of was acting as the agent of the defendant. That is demonstrated by the consideration that the plaintiff in declaring in such an action has the option of alleging the negligent act to be the act of the servant, or of relying upon the legal effect, and alleging it to be the act of the master. Thus, in Brucker v. Fromont, 6 T. R. 659, it was held that a declaration which charges the defendant with having negligently driven his cart against the plaintiff's horse, is supported by evidence that the defendant's servant *drove the cart. I think there was ample evi*614] dence here that Taylor, at the time of the accident, was acting as the servant and by the authority of the defendant. It was incumbent on the plaintiff, no doubt, to show that Taylor acted as the defendant's agent in the employment of the horse and gig upon the particular occasion. I think there was evidence enough of that for the jury, and that that question was properly left to them. The rule does not complain that it was not so left: the complaint is, that my Brother Crowder misdirected the jury in not leaving to them the question whether the horse and gig driven by Taylor were used by him on his master's business, at the instance and express request of the defendant. Now, it clearly is not necessary in cases of this sort that there should be any express request: the jury may imply a request or assent from the general nature of the servant's duty and employment. There was ample evidence of such implied request or assent here. The only other complaint made of the direction was not relied on by Mr. Atherton in his argument in support of the rule: nor could it have been with any hope of success. Upon neither ground, therefore, can this rule be sustained.

WILLES, J.-I am clearly of the same opinion. The argument urged on the part of the defendant amounts in substance to a denial of the general rule laid down by Lord Holt in Turberville v. Stampe, 1 Lord Raym. 266, (a) that "a master is responsible for all acts done by his servant in the course of his employment, though without particular directions." Was Taylor at the time the accident complained of happened acting in the *course of his employment? It appears *615] that part of the terms of his employment, was, that he should have the benefit of the keep of his horse and the standing of his gig upon his master's premises, in consideration of his using them when going about his master's business; and that he was actually engaged on his master's business, viz. going to collect a debt due to him, at the time. And it further appears that his master knew that he was going, and in what manner he was going. The master is clearly responsible.

(a) Carth. 425, Com. 32, Salk. 13, Skinn. 681, 12 Mod. 151, Holt, 9, Comb. 459, 1 Vin. Abr. 216, pl. 9, 2 Vin. Abr. 400, pl. 15, 15 Vin. Abr. 311, pl. 9.