272. See Lyons V. Martin, 8 a. & e. 512.

(t) Bush V. Steinman, 1 B. <fe P. 404. Matthews v. "West Midd. W. W. Company,

3 Camp. 403. Harris V. Baker, 4 m. & s. 27. "Weyland V. Elkins, supra. See the

great case of Laugher v. Pointer, 5 B. & C. 647, in which thfe Court of K B. was

equally divided, and all the authorities and arguments pro and con fully discussed ;

It was a case in which the defendant hired job-horses and a coachman from a livery

stable keeper to draw his own carriage, and the coachman, who was selected and

paid by the livery stable keeper, drove the carriage against the plaintiff's horse.

Abbott, C. J., and Littledale, J., who held the defendant not to be liable, distin-

guished Bush V. Steinman, on the ground that the tort there happened in the course

of an operation on the defendant's real property, and was therefore in the nature of

a nuisance ; and asked whether the employer of a hackney coachman, or a water

man, or the hirer of post-horses would be liable for injuries done thereby. Bayley

J., and Holroj'd, J., contra, conceded that the employer would in those cases be irre-

sponsible, but distinguished them by founding such irresponsibility on usage and the

public nature of those employments. See Smith v. Lawrence, 2 M. <fe R. 1. Fenton

V. C. of Dublin Steam Packet Co., 8 A. <fe E. 835. Goodman v. Rennel, 1 M. & P. 241.

Brady v. Giles, 1 M. & Rob. 494, where Lord Abinger left the question, " as whose

V. Miami Railroad Co., 20 Ohio. Priestly V. Fowler, 3 Mees. & Welb. 1, and Murray

V. The Souih Carolina Railroad Co., 1 McMullan, 385, were referred to in argument

of the case in Massachusetts, as sanctioning the rule, which was there adopted. The

case being one of recent impression, and some difficulty, the court threw out a

caution against any hasty conclusion as to the application of the rule to cases not

falling directly within the principle. The general doctrine was recognized and ap-

proved by the Supreme Court of Georgia, in Scudder v. "Woodbridge, 1 Kelly's Rep.

195, But it was held not applicable where one servant was a slave,

* In various American cases, the doctrine of Bush v. Steinman, and Randleson v.

Murray, which seem to have been overruled by the later English decisions, has

been followed. Lowell v. Boston and Lowell Railroad Co., 23 Picker. 24. Mayor of

New York v. Baily, 2 Denio, 433. See also Peachy v. Rowland, 16 E. L. & E. Rep.

442.

13

194 Mercantile persons

Riglits of third Persons against Principal.

But though the employer is answerable for the negligence of his

agent while engaged in his service, yet he is not so for his wilful

and malicious trespass: thus, "if a servant driving a carriage, in

order to effect some purpose of his own, wantonly strike the horses

of another person and produce the accident, the master is not liable,

though if, intending to effect his master's orders, he strike, but in-

judiciously, and to extricate himself from a difficulty, that will be

nefflio'ent and careless conduct for which the master will be liable,

being an act done in pursuance of the servant's employment." {uf

servant was the driver acting," to the jury. In Randleson v. Murray, 8 Ad. & Ell.