In either case the test is whether the act was done by the agent

or servant in the master's behalf and in the course of the

employment.

The question arises frequently under the statutes giving a

wife an action for a penalty, or for damages sustained, for

the sale of into.Kicating liquors to her husband. By these

statutes, an act which might otherwise be lawful is made

unlawful and is prohibited under penalty. A servant's breach

of a statutory prohibition of this nature, committed while

acting within the scope of his employment, renders the mas-

ter liable in a civil action by the person aggrieved, for the

FOR CRIMES OF SERVANTS. 323

prescribed penalty. Thus, in a Massachusetts case,^ it is said ;

" We sec no reason why the general principle wliich governs

the responsibility of the master for the acts of his servant

should not apply in the case at bar. The action is brought

under a statute which makes that a tort which was not so

before, and provides for the recovery of damages against the

tort-feasor. The tort consists in selling intoxicating liquor

to one who has the habit of using it to excess, after notice of

his habit and a request from his wife not to sell such liquor

to him. The defendant engages in the business of selling

liquor voluntarily. He chooses to intrust the details of the

business to a servant. If he forbids the making of sales to

the intemperate person, and his servant negligently, through

forgetfulness of the instruction given him, or through a fail-

ure to recognize the person, continues to make sales to that

person, there is no reason why the defendant should not be

responsible for the wrongful act. The sale is his sale, made

In the performance of his business, and is an act within the

general scope of the servant's employment."

So also where statutes fix a penalty for the denial of equal

civil rights to all persons, irrespective of color, a servant

acting within the scope of his employment may render the

master liable to the penalty, even though the master directs

the servant to extend equal rights to colored persons.^

В§ 265. Criminal liability generally.

The criminal liability of the principal is not governed by

the same rules as his civil liability. The presumption of

authority which arises from the relation of the parties and

involves the principal in liability, is counter-balanced in the

criminal law by the fundamental notion that every man is to

be presumed innocent until he is proved guilty. From this

presumption the conclusion is natural that a criminal act

committed by the agent should be presumed to be committed

contrary to, and not in obedience to, the directions of the

1 George i'. Gobey, 128 Mass. 289. See also Kreiter r. Nichols, 28

Mich. 496 ; Bodge v. Hughes, 53 N. H. 614.

2 Bryan v. Adler, 97 Wis. 124.

324 LIABILITY OF MASTER

principal. Something more than the mere fact that the

agent was acting within the scope of his emph)}inont must

therefore be sliown in order to make the principal answerable

in a criminal proceeding ; it must ordinarily be shown that

the crime was committed by the principal's direction and

authority, or at least resulted from his negligence. " Crimi-

nal responsibility on the part of the principal for the act of

his agent or servant in the course of his employment, implies

some degree of moral guilt or delinquency, manifested either

by direct participation in or assent to the act, or by want of

proper care and oversight or other negligence in reference to

the business which he has thus intrusted to another."*

The general rule is, therefore, that a master is not liable

criminally for an offence committed by his servant.

To this general rule there seem to be several exceptions

within somewhat ill-defiuud limits, notably in the case of the