N IN NOTES OF CASES. while the support continued, but not after it ceased. In Cross v. Cross, 63 N. H. 444, the court refused to Cole v. Cole, Supreme Court of Illinois, May interfere, upon the ground of subsequent adultery, 12, 1892, it was held that the adultery of the but put its ruling upon the express ground that it wife after decree granting her a divorce and award- did not appear but that the alimony had been aling her alimony is not cause for altering the decree lowed by way of restitution of property to the wife. as to the alimony, where it is not shown whether Cases may be found and others will arise in practice, the alimony was granted the wife merely for her where it may be highly unjust and inequitable that support, or on account of property which the hus- the husband should continue to support the wife. band derived from her, and it appears that the It is within the power of the court to compel the husband, at the time he petitions for such alter- payment of alimony out of the future earnings of the ation, has only paid a small part of the alimony due husband, whether the labor be manual or mental up to that time. The court said: "There is a (Foote v. Foote, 22 Ill. 425), and it might be, under marked difference in respect of the property rights these circumstances, unconscionable to compel the of the wife under our law and at common law. The husband by his daily labor to support his divorced wife is liable under our statute, if she have separate wife in idleness and prostitution. Not only reasons property, in common with the husband, for neces- of justice, but authority, would seem to justify the saries furnished the family. The husband and wife court in such a case, in the exercise of its general are placed upon an equal footing in respect to the chancery powers, to modify or revoke its former interest each may have in the estate and property order. But there is no such case made by this of the other, and the husband and wife may con- petition. The courts will not interfere to alter or tract with each other, and she with strangers, as if modify allowances of alimony, except in cases she were sole. In case of divorce, the courts look where equity calls clearly for the interposition. at the standing of the parties, the conduct of each, For aught that appears in this petition, the entire from whence the estate is derived, and, having due property of the petitioner may have come from the regard to the living of each, will make such allow-wife, or been the result of their joint earnings and ance to the wife as is reasonable and just. There is neither reason nor authority for holding, that where the allowance has been thus made, either has the right to complain of the subsequent conduct of the other. The wife may owe, as contended, a duty to society, of which the husband is a member, to lead an exemplary life; but her allowance has been fixed upon the state of facts existing at the time of the rendition of the decree, by the determination of what was then just and equitable, in view of the property rights of each. And the same is undoubtedly true where the property has been accumulated by the joint efforts and economy of the husband and wife, and the allowance has been made to her upon the basis of a reasonable and equitable division of the estate. It may be true that the husband in such cases has been the apparently efficient means of its accumulation, yet if she has performed her duties as his wife faithfully, giving him her life, her care, strength and prudent management, it can no more be said that the estate is the result of his labor than it is of her labor. Conceding the general duty she owes society, what right does it give the husband to property justly hers, if she violates that duty? The husband owes a like duty to lead a moral and virtuous life. If he fails to perform it, could it be contended that it would give her a right of additional property, or that there should be an increase in her allowance in consequence? Manifestly not. In Forrest v. Forrest, 3 Bosw. 661, it is held that after the divorce the wife owes no duty to the husband, and subsequent adultery is no cause for making a change in the allowance of alimony. In Holt v. Holt, L. R., 1 Prob. & Div. 610, it was held that support by a paramour with whom the wife was living was an answer to an application by the wife for alimony accumulations, and the court in making the allowance may have been making simple restitution, either for property brought to the husband or for assistance in its accumulation. In either view, the allowance should not be taken away, though her conduct be flagrant. Moreover, the rule is well settled that upon applications of this kind it is incumbent upon the husband to show that the circumstances justifying the reduction were not produced by his fault or misconduct. The allowance was here made commencing June 1, 1885. Two years and four months and over had elapsed before this application was made, yet, out of the $1,200 due under the decree, but $200 had been paid, leaving a thousand dollars and over unpaid by the petitioner, in violation of the decree of the court. It is not alleged or shown that the wife had other means of support, nor does it appear that she had the means or ability to compel the petitioner to comply with the decree. Sufficient has not been set forth to show, if it be true that this woman has led a vicious life, which is denied, that it is not the result of want and penury which the petitioner might, but refused, to relieve. He does not come into court with clean hands, and will not be permitted to ask relief from a decree of which he is in contempt. Before he should be permitted to be heard, he should be required to comply with the order of the court up to the time of his application." In Miner v. Brown, Court of Appeals of New York, May 24, 1892, it was held that under 4 Revised Statutes (8th ed.), page 2461, section 2, requiring courts in construing instruments creating an estate in lands, to give effect to the intent of the parties, a will giving testator's son and the son's wife "the use " of a farm on which they reside, for * * * in fact, not at all, unless she should survive him. It is evident the testator intended to make her, as well as her husband, the object of his immediate bounty, and that the scheme of his will, in this respect, will be thwarted if her right of possession is postponed until after his death. The habendum clause of the gift is still more explicit. It declares that the estate granted shall be held for their use, benefit and support during their natural lives,' which cannot have its full significance unless it is construed to be a common holding for the prescribed purposes. It was the wife's benefit and the wife's support which the testator had also in view; not simply that of her husband. No particular form of words is necessary to make them tenants in common. It is sufficient if expressions are used which cannot be operative, unless the wife is admitted to an equal present enjoyment of the estate with her husband, and which indicate an intention that her possession shall not be subservient to his exclusive control. The motive of the testator in making this disposition of his property is, perhaps, not important. If it were, the record discloses one in the existence of the plaintiff's judgment against the husband, which would be a continual menace to the rights of the wife, if her possession was absorbed in that of her husband during his lifetime. It appears from the recitals in the will that the testator had, for some time before his death, been providing a home for the son's family upon this farm, the ownership and control of which, for obvious reasons, were withheld from the son. He doubtless desired to continue this provision after his death, and to secure to the wife, in common with the husband, the benefit to be derived from its occupation and which, to the extent of her interest in it at least, would be secure from seizure by his creditors. If this judgment stands, an important provision of the will is annulled, and the present means of support, which it was designated to confer upon the wife, will be transferred to the plaintiff. Clearly the testator did not contemplate any such result. We think he has expressed a contrary intent in language so plain it cannot be misunderstood; and that the defendant Ella Brown is entitled to the possession and use of a moiety of this farm during her lifetime; and that she cannot be deprived of this right by any act or default of her husband." "their use, benefit and support during their natural make the husband and wife tenants in common of the estate devised to them. Both the granting and the habendum clauses of the devise are inconsistent with any other conclusion. It is the use' of the farm which is granted to husband and wife alike, without restriction or limitation. To convert this grant into an estate of tenancy by the entirety is to declare that the wife shall not have the use of the property during the lifetime of the husband, and, AGENT'S TORTS AFFECTING THIRD PARTY N no department of law has there been a greater confusion of legal ideas, and a less scientific application of legal principles, than in that which embraces the responsibility of an innocent principal for a wrong suffered at the hands of his agent by a third person, where that wrong has no reference to contract. The germinal notion limited the liability by the extent of the specific authority conferred, and although this was modified before Blackstone's day, yet for a full century afterward it is found constantly recurring, in one shape or another, and impeding the growth of those more useful doctrines which in the end were bound to pre 1 vail. Its influence may be traced in decisions—a few even of comparatively recent date-which deny liability for such acts of the agent as are disobedient, willful, unlawful or fraudulent, and such as the principal himself was not authorized to do. In each of these the dominant idea is that the master is not responsible because he did not authorize the act. Release from the consequences of so unworkable a doctrine was found through the employmeut of a legal fiction. Adopting the principle that the basis of liability is the authority given the agent, this authority has been, wherever necessary, implied, and in certain cases equitable estoppel has been resorted to in order to preclude a denial of an authority which did not in fact exist. All this was in pursuance of public policy. To determine the question of liability, the test now usually applied is, was the act within the scope of emiployment and done with the intention of furthering the principal's interest in the course of the business? This test appears to require three conditions to be fulfilled: The act must be within the scope of the agent's employment; it must be done with the intention of benefiting the principal; it must be done in the course of the business. These conditions are given in the order not ouly of their intrinsic importance, but of their general acceptance in American and English law. Notwithstanding the warning expressed by Jessel, M. R., in Smith v. Keal, L. R., 9 Q. B. Div. 351, that the doctrine of respondeat superior has already been carried probably too far, the tendency of later authorities in this country at least to take a broader and more generous view of scope of authority is so marked that it is questionable if the narrow construction maintained in such cases as Lyon v. Martin, 8 Add. & C. 552; Isaacs v. Third Avenue, 47 N. Y. 122, and Mali v. Lord, 39 id. 381, would now be approved. It is said in Redding v. South Carolina, 16 Am. Rep. 687, decided in 1871: "The course of employment is not to be restricted to the prescribed duties set apart for the performance of the servant; whatever may be incident to the employment must necessarily belong to it." Similar words are found in the able dissenting opinion in Haack v. Fearing, 35 How. Pr. 459, and in nearly all the later cases. Mali v. Lord has been often followed, but it is buttressed on the principle that the act in question was one which the employer himself had no authority to perform, which is no longer material, and the withdrawal of this support weakens the case as an authority without calling in aid the useful principle first enunciated in Wallach v. Ridley, 24 Abb. N. C. 172. In regard to the narrow construction of scope of employment in the Isaacs Case, it is only necessary to point to the opinion of the same court in Drew v. Railway, 3 Keyes, 429. The case has been overruled on other grounds. Yet even in very recent decisions the limit of scope of employment is sometimes narrowly drawn, as in Snyder v. Hannibal, 60 Mo. 413, where a railway company is held not liable for an injury to a child invited upon a car by an employee, and the similar case of Stringer v. Missouri, 96 Mo. 299, decided in the same State in 1888; Flower v. Railroad, 69 Penu. St. 210. Ou the other hand against these are many decisions in which trivial circumstances are laid hold of to bring the act within the scope. Among the most recent cases a valuable one is Commonwealth v. Brockton, 3 New Eng. Rep. 707; see also Abrahams v. Deakin (1891), 1 Q. B. Div. 520; following Allen v. London, L. R., 6 Q. B. 65. While no extended discussion of the authorities bearing upon scope can here be indulged in, a few words may be permitted upon the driving cases, which constitute a branch of the subject in need of a wholesome and thorough revision. In Brady v. Giles, 1 Mood. & Rob. 495, Lord Abinger came to the conclusion that, in view of the contradictory state of the authorities, it was impossible to lay down any rule of law as the inviolable test of liability in this class of cases. Before Story v. Ashton, 38 L. J. (Q. B.) 223, the most reasonable doctrine to be picked out from them would appear to make the liability of the master depend upon whether he had or had not intrusted the servant with his vehicle and horses for the occasion upon which the tort was committed. Sleath v. Wilson, 9 Carr. &. P. 607. The intrusting serves to establish in the first place that the servant is acting in the course of his employment. To hold the principal liable it would appear not unfair that he should have an opportunity of exercising a discretion in giving his orders as to route, direction, time and other particulars. But we hold if the servant take out his master's carriage, without leave, "on a frolic of his own" (Parke, B., in Joel v. Morrison, 6 C. & P. 501) "and drive it about solely for his own purposes and not at all for his master's business, the master will not be answerable." The reason given is that the master has put it into the servant's power to mismanage the carriage by intrusting him with it in the one case, but not in the other. Sleath v. Wilson, 4 Mood. & Rob. 181. This case was disapproved by Cockburn, C. J., Mellor and Lush, JJ., in Story v. Ashton. In Rayner v. Mitchell, L. R., 2 C. P. D. 357, decided in 1877, Lord Coleridge again approved of the principle of intrusting. The facts were that a brewer's carman was employed to deliver ale and return the empties. He took the horse and car to deliver a child's coffin to oblige a friend. After performing this favor he drove back, collecting empties on the way, and ran over the plaintiff; held, that he was not acting within the scope of his employment and his master was hence not liable. The American cases seem to follow in the same line. Sleath v. Wilson was approved in Philadelphia v. Derby, 14 How.486. Joel v. Morrison and Mitchell v. Crasweller have been approved in numerous cases in the United States. Sheridan v. Charlick, 4 Daly, 338; Stone v. Hills, 45 Coun. 44. Cavanagh v. Dinsmore (1868), 12 Hun, 465, follows Rayner v. Mitchell upon almost identical facts. Such decisions can never be declared entirely satisfactory. A layınan would probably say, as was unsuccessfully argued in Mitchell v. Crasweller, 13 C. B. 237, that a driver of a vehicle is hired to drive it, his master selects him with this in view, his duty is as much to know when and where to drive it as how to drive it. It is small comfort to a person run over by a reckless coachman to learn that the driver was, in the words of Joel v. Morrison, "on a frolic of his own," and that a master who chooses to employ and retain in charge of his horses a coachman given to frolics, is not liable save where he has intrusted. Similarly the whole doctrine of extra viam, or deviation, which has been deemed of the highest importance, will hardly bear examination as any thing more than the application of an extremely artificial and arbitrary rule, and it is probable that it will not always be treated with that deference it has heretofore received. Already, in the course of numerous decisions, it has been whittled away to very slender proportions. Some approach to an abrogation of the old doctrine would seem to be foreshadowed in Limpus v. London, 6 H. & C. 76, where Williams, J., says: "If a master employs a servant to drive and manage a carriage, the master is responsible for any misconduct of the servant in driving and managing it which must be considered as having resulted from the performance of the duty intrusted to him, especially if he was acting for his master's benefit, and not for any purpose of his own." To the same effect is the wholesome judgment of Williams, J.. in McClung v. Dearborne, 134 Penn. St. 404, which indeed but approves the doctrine long ago laid down by Judge Reeve. In Mulvehill v. Bates, 31 Minn. 364, a distiction appears to be noticed where the wagon is intrusted generally to the driver to be used entirely at his discretion, and the same point is made in Venables v. Smith, L. R., 2 Q. B. Div. 279. It is in the class of driving cases that we may most clearly trace the result of what appears a false application of legal principles. The constant straining to limit the liability of the master can arise from nothing but a perception of the apparent negation of natural justice in holding an innocent person to responsibility for an act against which no amount of care or foresight on his part would completely avail. Yet it will be recognized upon reflection that any such consideration is foreign to the case. The true basis of this class of decisions is not the personal default of the master, but public policy pure and simple. This policy dictates the liability, and is evidenced by direct statutes more or less limited in many jurisdictions, as in England by the 6 and 7 Victoria, chapter 86, holding the owner of a cab responsible for the negligence of the driver, even though the relationship between them is not that of master and servant, but rather one of mere bailment, and the somewhat similar statutes in New York and elsewhere. Let us now briefly consider how far the intention with which the agent performs the act affects the liability of the principal. Willfulness furuishes a subject which still deserves more extended notice than recent text-books accord it. Its genesis is peculiar. It was declared by the King's Beuch nearly a century ago that for acts of the servant which are willful and malicious the master is not responsible. 1 East, 106. Contributing not a little to the confusion to which this dictum has given rise, have been the different meanings attached, in the earlier cases, to the word " willful," a term of which the precise signification was never very clearly defined. The truth would seem to be that time has stained the word with a sinister import it did not originally possess. It was probably first employed to indicate a simple voluntary act of commission, as opposed to an involuntary act or an omission, which latter would constitute its corelative negligent. Evil intent would in this view be indicated by wantonness, and in larger degree by malice, using that word in its ordinary rather than its legal sense. See French v. Creswell, 13 Ore. 424. But these distinctions, if indeed warranted by sufficient authority, have not been preserved, and the term has been generally applied to unauthorized acts done wholly or partly to gratify the agent's spleen, or under the influence of passion, whether within the scope of employment or not. When legal ideas upon the subject of willfulness changed, and it became necessary to distinguish cases it would have been perhaps more frauk to overrule, a willful act so called became one not done in the course of duty nor with the intention of benefiting the principal. In the innumerable decisions following McManus v. Crickett, the principal is held not liable for the tortious act of the agent willfully or maliciously done, unless previous specific authority or subsequent ratification can be shown. The history of the case, remarkable by reason of the curious misapprehension which it suffered as to the extent and effect of what was there held, need not be here referred to. It may be in its proper construction that trespass is not the true form of action where the servant's act is willful and the master is not personally present at its commission, or as limited to acts beyond the scope of authority, that the decision is approved in Chicago v. Flexman, 103 Ill. 546. It is sadly in need of any kind words that may be said of it, for after being followed as an authority for years in New York, Pennsylvania, Massachusetts and elsewhere, it has been rejected in almost every jurisdiction. As early as 1816 Judge Reeve protested: "The decision in 1 East, 106, is I apprehend in opposition to all former received opinions on this subject." Dom. Rel. 358. This was judicially combatted in Wright v. Wilcox, 19 Wend. 343, which case was followed in Frazer v. Freeman, 43 N. Y. 567. The earlier criticism has stood the test of time. McManus v. Crickett was overruled in England thirty years ago by Seymour v. Greenwood, 7 H. & N. 355. Some years subsequent to this it was held in Indiana that the construction commonly put upon the case, however erroneous, had been too long accepted to be now disregarded (Evansville v. Baum, 26 Ind. 70), and this construction, though disapproved in term, was applied on Circuit in Pennsylvania as late even as 1890. McClung v. Dearborne, 134 Penn. St. 396. See also Jackson v. St. Louis, 3 West. 236. It should be added that Evansville v. Baum has been disapproved in subsequent decisions in the same State. Indianapo lis v. Anthony (1873), 43 Ind. 183. The later cases therefore lay down that a principal is as responsible for his agent's willful acts and infirmities of temper, if within the scope, as for his negligence. Indeed the willfulness of the act, from being once a ground of defense to an innocent principal, would seem to be now sometimes regarded as in itself a ground of liability. This arises from recognition of the importance of the duty which an employer owes the public to select and retain in his service none but competent agents. “The principle proceeds upon the ground that the injury by reason of the willful act is to be attributed to the negligence and want of care of the master in the selection of an improper servant for a particular charge." Redding v. South Carolina, 16 Am. Rep. 687. But it is with reference to its bearing upon the question of intention generally that this consensus of authority upon the subject of willfulness is of special importance. A willful act, as that term has always been understood, is one not done with the intention of benefiting the employer, and the effect of repudiating McManus v. Crickett is worthy of some consideration. No aid can be got from the railroad cases which are commonly found referred to under the head of willfulness, as in these cases the responsibility is grounded upon the duty of safe conduct which the common carrier of passengers owes to those who employ him (Pendleton v. Kinsley, 3 Cliff. 416), and the question of intention does not enter. Turning to the direct adjudications, intention still appears of importance. That the act, in order to fix the master with responsibility, must be not alone within the scope of the servant's duties, bnt must also be done with the intention of furthering the master's interests, is supported by numerous decisions in this State. It is specifically laid down in Illinois. Arosmith v. Temple, 11 Ill. App. 50. It is also clearly settled in England. Barwick v. English Bank, L. R., 2 Exch. 259; Allen v. London, L. R., 6 C. P. D. 65. In Limpus v. Omnibus Co., 6 H. & C. 76, the test is given, "the question is not what was the nature of the act itself, but whether the servant intended to act in his master's interest," and the more recent cases appear to keep in line with these decisions. The most important of them is British v. Charwood, L. R, 18 Q. B. Div. 714, decided in 1887, in which the secretary of the defendant corporation made a fraudulent misrepresen tation as to the validity of certain debenture stock, for the sole purpose of assisting a friend; it was held that the principal was not bound where the agent was not intending to act for his benefit. It is undeniable that the point is dealt with as of greater or less importance in nearly every leading case. Garretzen v. Duenckel, 50 Mo. 104; Ochsenbein v. Shapley, 85 N. Y. 214; Birming ham v. Hubbard, 85 Ala. 180; Levi v. Brooks, 121 Mass. 501; Lynch v. Metropolitan, 90 N. Y. 77. It is specially insisted on in Cosgrove v. Ogden, 45 N. Y. 245. The fact however that the agent was combining his own business with that of his principal will not defeat liability. Rahn v. Man. Co., 26 Fed. Rep. 912; Comuck v. Digby, Ir. Rep., 9 C. L. 557. In some cases the intention is considered to throw light upon the scope of employment. But mere intention will not bring within the scope of authority an act otherwise clearly beyond it; the apparent dictum to the contrary in Lynch v. Metropolitan cannot, it is believed, be regarded. The agent's duty or authority is not extended by his understanding of either. Cleveland v. Koch, 37 Ill. App. 595; Maier v. Randolph, 33 Kaus. 340. On the other hand, Redfield (Rwys. 1-545) argued that intention should not be considered as of any importance as a factor, and other authorities disapprove of permitting the mental condition of the servant to influence the determination of the master's liability. Thomp. Neg. 87; Wood M. & S., § 303. In the case of Indianapolis v. Anthony, 43 Ind. 183, will be found an expression of the opinion of the Supreme Court of Indiana in these words: "If the act is done within the general scope of employment, and is wrongful, the master is liable, although the act was unnecessary to the performance of the master's service, and was not intended for that purpose. The liability does not depend upon the necessity of the act, nor the intent with which it was doue, but upon whether the act was wrongful and within the general scope of the employment of the agent." It may be noted however that this holding was not necessary for the decision of the case, which was against a passenger carrier, motive in such cases being, as before remarked, immaterial. Chicago v. Barrett, 16 Ill. App. 18; Dwinelle v. Central, 120 N. Y. 126. See also Springfield v. Green, 25 Ill. App. 118, and Pittsburg v. Kirk, 1 N. E. Rep. 849. If an opinion may be ventured in the face of conflicting decisions, it would seem that those cases in which intention is weighed as a factor merely in determining scope, present the most reasonable and acceptable doctrine, as in Courtney v. Baker, 60 N. Y. 1. Scope of employment would of itself furnish an all-sufficient test. The act is either within or without the scope; if without, it is well established that no intent to benefit the master will render the latter liable, and a contrary intent is equally immaterial. If within the scope intention to benefit may safely and naturally be presumed. To hold intention of governing importance, and to permit this presumption to be displaced by the servant's testimony (often the only evidence upon intention) would result in leaving the main issue largely dependent upon the servant's friendliness or hostility toward his employer. Whether the requirement that the act shall be done in the course of the employment has arisen from the looseness with which the terms course of employment" and "* scope of employment" have been interchanged in the reported cases, it is now impossible to determine. The obsolete jugglery of abandoning the employment-of a servant being held not a servant at the instant of committing a willful act-is perhaps responsible for introducing this refinement. It is not easy to comprehend how an act done within the true scope of the employment can be other than done in the course of the employment. Yet it is most usual to find both requirements insisted on, as in Morier v. St. Paul, 31 Minn. 351, where it is said: "The universal test is, was there authority, express or implied, for doing the act; i. e., was it one done in the course and within the scope of the servant's employment." The same opinion proceeds: "In determining whether a particular act is done in the course of the servant's employment, it is proper first to inquire whether the servant was at the time engaged in serving his master. If the act be done while the servant is at liberty from the service and pursuing his own ends exclusively, the master is not responsible." So in Keith v. Lynch, 19 Ill. App. 575, it is said "the tortious act must be done not only while the servant is engaged about the master's business, but it must pertain to the particular duties of that employment." To the same effect is Farber v. Railway, 32 Mo. App. 378. So also in the Rounds Case: "The servant must be at the time acting for the master and within the scope of the business intrusted to him," and in Cohen v. Railway: "It is sufficient to show that the servant was at the time engaged in doing his master's business, and was acting within the general scope of the authority." 66 In the valuable note appended to the report of Mallach v. Ridley, 24 Abb. N. C. 172, it is said: "The only question now is between acts so related to the employment that it is just to hold the employer liable, and acts so disconnected from it that the employee alone should be liable." This serves well to indicate how wide is and always must be that debatable border land lying on either side of the limits of scope of authority. In the same note it is also suggested that a distinction may be made between "scope of employment" and course of employment." It must be conceded, as has been already stated, that at present the phrases occur in most of these decisions without any obvious attempt at such a distinction, and are not infrequently employed as though they were interchangeable. Thompson (Carr. 343) uses course of employment" in reference to acts of servants and employees who have no authority to contract for a principal, and "scope of authority" in reference to the acts of officers and agents. Shearman and Redfield (Neg., § 146) speak of the master's liability for a servant's acts or omissions in the course of employment while yet outside his line of duty, while Wharton gives examples of the different use of course, scope and range. Neg., § 162. act. re There remain for brief notice a few principles under which liability is held to attach to a master upon grounds peculiar to each. The old doctrine of Hern v. Nichols, 1 Salk. 289, to the effect that where one of two innocent parties must needs be a loser through the deceit of another, he who employs and first puts trust in the deceiver is the one to suffer, is one of these. Another is that a master is responsible on the ground of negligence for not straining a servant from committing a wrongful "I am responsible for my servant," says Pollock, "because he is about my affairs, and I am bound to see that my affairs are conducted with a due regard for the safety of others." Wharton (Neg., § 157) dismisses "the questionable doctrine of constructive guarantee" for the servant, and asserts the position that he who puts in operation an agency which he controls, while he receives the emoluments, is responsible for the injuries which he incidentally inflicts, thus regarding servants as machinery, for whose defects within the scope of employment responsibility cannot be escaped. So too in cases of misrepresentation inducing contracts, the agent's act is the act of the principal (Sharf v. Mayor, 40 Barb. 256), and in the leading case of English v. Barwick, Bramwell, L. J., holds that the principal impliedly contracts that his agents will not be guilty of fraud. Weir v. Bell, 3 Exch. D. 238. The fact that in general servants are unable to respond pecuniarily in damages, has long been held one ground upon which to base respondeat superior. The rule whereby a principal is held to the strictest accountability for his selection of agents to be placed in control of dangerous instruments is still another. Thus in Toledo v. Harmon, 47 Ill. 298, a railroad company is held liable to a stranger for a runaway caused by the malicious act of its engine driver in discharging |