APP.]

[SMITH, L.J. referred to The Metropolitan Saloon Omnibus Company v. Hawkins (4 H. & N. 146).] Finlay, Q.C. and George Elliott for the respondents.-Day, J. thought that the "claims paid register," showing the claims made and how they were dealt with, could not but be relevant to the issue in the case, and that it would enable the court to determine whether the excuses given by the defendants were bona fide or not. The learned judge intimated that he could not rely on the affidavit of Mr. Clegg as to what was relevant to the defendants' case, and he thought that the book in question would show what the plaintiffs' habit with regard to claims was, which is all important when the defendants are charging them with habitually delaying payments on frivolous excuses. [SMITH, L.J.-Has the defendant, in an action for libel, any right to say that he is entitled to go to the books of the plaintiff for the purpose of making out his case?] No doubt there are cases which lay down that that cannot be done where a person has published a libel and justified it in general terms. But that class of case is different from the present, because the defendants here have delivered particulars of thirty instances in which they say that claims were frivolously resisted, and they further say that that was the plaintiffs' habitual practice. We submit that Day, J. was amply justified in making the order that he did, having regard to the evasion the plaintiffs have had recourse to. In several of his earlier affidavits Mr. Clegg suppressed all mention of the "claims paid register"; in fact its existence had to be drawn from him. Having regard to the nature of the charge, this could not have been accidental, and Day, J. was entitled not to take Mr. Clegg's word that the book in question had no reference to the matters in the action. In such a case as this the defendants are entitled to inspection of every entry in the plaintiffs' books which have reference to the matters in the action, and are not confined to the instances specified in the particulars. In the case of a company like the plaintiffs, it is impossible for the defendants to obtain from outside sources the whole of the case on which they desire to rely as proof of the plaintiffs' habitual practice.

Montague Lush in reply.-If it were possible for the defendants to obtain the discovery that they ask for, a party might deliver insufficient particulars and then come to the court for an order calling upon his opponent to produce documents which otherwise he would not be entitled to see. [LINDLEY, L.J.-It seems to me that the plaintiffs have not sufficiently claimed protection. The common practice when inspection is given is to seal up the entries which are not relevant to the matters in question; but the plaintiff's have not done that.] I submit that protection is sufficiently claimed, and that the defendants are debarred from further inspection :

Budden v. Wilkinson, 69 L. T. Rep. 427; (1893)
2 Q. B. 432;
Attorney-General v. Emerson and Sutton, 48 L. T.
Rep. 18; 10 Q. B. Div. 191:

Bewicke v. Graham, 44 L. T. Rep. 371; 7 Q. B.
Div. 400;

Compagnie Financière et Commerciale du Pacifique
v. Peruvian Guano Company, 48 L. T. Rep. 22;
11 Q. B. Div. 55, 62.

Are the defendants, after libelling the plaintiffs,

to be allowed to search through the plaintiffs' books for the purpose of bolstering up their (the defendants') case? [LINDLEY, L.J.-All this arises from your clients not having made a proper affidavit in the first instance.] The thirty instances on which the defendants rely do not show that for which they are put forward. The plaintiffs are prepared to produce the "claims paid register" to the learned judge who tries the case, but they will not, unless they are obliged, consent to letting the defendants see the thousands of entries relating to their business.

LINDLEY, L.J.-The case which is before us is not free from difficulty by any means. It raises two questions; one is a question of form, and one is a question of substance, and both of them are important. The plaintiffs have brought an action for libel, and the defendants have justified it, and what they have justified amongst other things is the statement in the libel, which I read from the particulars, that "the plaintiff company habitually refuse to pay just and legal claims upon policies of insurance issued by the plaintiff company," and so on. Supposing that after that the defendants had merely sworn an ordinary affidavit of documents and of discovery, I should have thought that the principle of the cases of The Metropolitan Saloon Omnibus Company v. Hawkins (ubi sup.), and Zierenberg v. Labouchere (ubi sup.!, would protect the plaintiffs from having their books thrown open to the discovery of their opponents. Such a case would be what we know and term as a "fishing application," and would be discouraged, and ought to be stopped and would be stopped. These thirty particulars are delivered; they are delivered before there is any affidavit of documents. What is the effect of these particulars? I take it that the effect of these particulars is this, that the issues to be tried are limited by these particulars in the first instance. I do not mean to say that leave cannot be obtained to add to the particulars-of course we know it can-but the moment these particulars are delivered, and until some further order is obtained for the delivery of further particulars. the effect of delivering the particulars is to cut down the matters in question in the action to the particulars. I do not doubt that that is the effect of it. I do not doubt from my experience as a common law judge (and my brother Smith agrees) that the effect of delivering particulars is to narrow the issues. What then is the defendants' right? The defendants' right is to have discovery of all matters relating to the question in issue as cut down by the particulars. I do not think that in a libel action they are entitled to get anything more. Now, have they had discovery of all those matters which are relevant as cut down? Upon that there is no controversy, and it appears to me, therefore, that in substance the plaintiffs are right, and that the discovery made has been sufficient. I think it would be a very bad precedent to suggest that a person can simply by libelling another obtain access to all his books and see whether he can justify what he has said or not. I think it would be very lamentable if we should extend the doctrine and say that, when a person has libelled another and he has justified and has given particulars, he is then entitled to more than discovery of that which relates to those particulars. I think in principle that is right. In substance, therefore, I think that this

cannot be supported, and that the master was right. Appeal allowed.

Solicitor for the appellants, L. Kirkman, agent for T. H. Roberts, Burnley.

Solicitors for the respondents, M. Webb and Sons.

March 6 and 7.

(Before Lord ESHER, M.R, LOPES and
RIGBY, L.JJ.)

DYER . MUNDAY. (a)

APPLICATION FOR A NEW TRIAL.

Master and servant-Liability of master for assault by servant-Conviction of servant for assaultOffences against the Person Act 1861 (24 & 25 Vict. c. 100), s. 45.

A master is liable for a wrongful assault committed by his servant in the course of, and in furtherance of, his employment; and an action will lie against the master though the servant has been convicted and fined for the assault. THIS was an application by the defendant Munday for judgment or for a new trial on appeal from the verdict and judgment at the trial before Lawrance, J. and a jury.

This action was brought against Munday and Price to recover damages for trespass and assault. The defendant Munday carried on business as a dealer in furniture, and the defendant Price was the manager of one of his shops.

It was a regular part of the business to sell furniture upon the hire-purchase system. Price had sold a bedstead upon the hire-purchase system to one Stiles. Stiles was then a lodger residing in the house of the plaintiff. Stiles ceased to lodge in the plaintiff's house, but left the bedstead there. He was in arrear with the payment of his instalments under the hire-purchase agreement, and he asked Price to take back the bedstead.

Price and another man, named Simson, went together to the plaintiff's house to take possession of, and remove the bedstead. The plaintiff objected upon the ground that Stiles had left it as a security for arrears of rent. While Price and Simson were engaged in getting possession of the bedstead, Simson assaulted the plaintiff. For this assault he was convicted and fined, and paid the fine.

All the above facts took place without the knowledge of Munday.

The action was tried before Lawrance, J. and a jury, when a verdict was found for the plaintiff for 401. damages.

The defendant Munday applied to the Court of Appeal for judgment or for a new trial.

The Offences against the Person Act 1861 (24 & 25 Vict. c. 100) provides:

Sect. 44. If the justices, upon the hearing of any such case of assault or battery upon the merits, where the complaint was preferred by or on the behalf of the party aggrieved, under either of the last two preceding sections, shall deem the offence not to be proved, or shall find the assault or battery to have been justified, or so trifling as not to merit any punishment, and shall accordingly dismiss the complaint, they shall forthwith make out a certificate under their hands stating the fact of (a) Reported by J. H. WILLIAMS, Esq., Barrister-at-Law.

[CT. OF APP.

such dismissal, and shall deliver such certificate to the party against whom the complaint was preferred.

Sect. 45. If any person against whom any such complaint as in either of the last three preceding sections mentioned, shall have been preferred by or on the behalf of the party aggrieved, shall have obtained such certificate, or, having been convicted, shall have paid the whole amount adjudged to be paid, or shall have suffered the imprisonment or imprisonment with hard labour awarded, in every such case he shall be released from all further or other proceedings, civil or criminal, for the same cause.

Montague Lush for the appellant.-It is submitted that the effect of 24 & 25 Vict. c. 100, s. 45, is to release the master of a servant from any liability in respect of which the servant has been released by the section. A master made liable for a tort committed by his servant has a remedy against the servant. In one event he has been deprived by this statute of his remedy. If the servant is released by the statute, much more also should the master be released, since he is only derivatively a wrong doer by a technical rule of law which it is hard to explain. The liability of a master for a tort committed by his servant is an exception to the general rule as to contribution between tort feasors: see note to Merryweather v. Nixan (2 Sm. L. C. 9th edit., p. 569). The statute should not be construed so as to take away the master's right. If an aggrieved person elects to proceed criminally against the servant rather than civilly against the master, he must take the consequences. It has been held that, the right of a husband to sue for damages to himself by reason of an assault on his wife, for which the defendant had been convicted and fined, was taken away by this section:

Masper v. Brown, 34 L. T. Rep. 254; 1 C. P. Div. 97.

[Lord ESHER, M.R.- That seems rather an illogical case. Lopes, L.J. referred to Holden v. King (35 L. T. Rep. 479; 46 L. J. 75, C. L.).] The master is not liable, because such an act as this is not within the scope of the servant's authority. The servant here committed a criminal act, and it is not within the scope of a servant's authority to commit a crime. A master is not liable for the crime of his servant:

Richards v. West Middlesex Waterworks Company.
15 Q. B. Div. 660 ;

Limpus v. London General Omnibus Company,
7 L. T. Rep. 641; 1 H. & C. 526;
Poulton v. London and South-Western Railway Com-
pany, 17 L. T. Rep. 11; L. Rep. 2 Q. B. 534:
Bayley v. Manchester, Sheffield, and Lincolnshire
Railway Company, 28 L. T. Rep. 366; L. Rep.
8 C. P. 148:

Edwards v. London and North-Western Railway
Company, 22 L. T. Rep. 656; L. Rep. 5 C. P. 44.
[LOPES, L.J. referred to Lyons v. Martin (8 A. &
E. 512).]

M. Shearman for the respondents.-A master is liable for the acts of his servant done in the course of his employment, though contrary to his express orders:

Limpus v. London General Omnibus Company (supra).

He is liable for the fraudulent acts of his servant:
Barwick v. English Joint Stock Bank, 16 L. T.
Rep. 461 L. Rep. 2 Ex. 259;

Houldsworth v. City of Glasgow Bank, 42 L. T.
Rep. 194; 5 App. Cas. 317.

And that he is liable for assaults committed by his servants in the course of their employment appears from many of the cases against railway companies, and in Greenwood v. Seymour (4 L. T. Rep. 835; 7 H. & N. 359). In the present case the act of the servant was done in the course of his employment and for the purpose of securing his master's property.

Montague Lush, in reply, cited

Attorney-General v. Riddle, 2 C. & J. 493.

Lord ESHER, M.R.-In this case the action was brought to recover damages for assault and trespass. The learned judge left the case to the jury. Now this application is made upon the ground that there was nothing to leave to the jury, and that the plaintiff ought to have been nonsuited. The question before us is, not whether a right direction was given to the jury, but whether there was any evidence upon which the judge might properly leave the case to the jury with a proper direction. The question, therefore, is this, whether the judge could properly have left this case to the jury with a direction in the words of the rule laid down in Limpus v. General Omnibus Company (ubi sup.). The question is whether it was part of the business of Price and of his employment by his master, if any of the instalments were not paid, to get the goods back from the person to whom they had been hired? It was a very material part of this business to get back goods whenever instalments were not paid. The jury, therefore, might properly come to the conclusion that it was a part of the business, which was left to the management of Price, to get back the goods if instalments were not paid. He went to this house for that very purpose, and the jury might properly find that it was part of his employment. He went to the house in order to get the bedstead and take it back for his master. There was a struggle, and the plaintiff was injured. He was doing that which he was employed to do, and he did it in a brutal manner. Under these circumstances could the judge properly ask the jury whether he was employed to get back the bedstead, and whether he did what he did in the course of that employment. Now in Limpus v. London_ General Omnibus Company (ubi sup.) Willes, J. states the proper question to be "whether the servant was acting at the time in the course of his master's service, and for his master's benefit; if so, his act was that of his master, although no express command or privity of his master was proved." It seems to me that this case is within those very words, and that those words would be a proper direction to the jury in this case, and that there was evidence to support such a direction. It has been contended that, if the excess of the servant is a criminal act, that would take the case out of the general rule. But in Seymour v. Greenwood (ubi sup.) and in Bayley v. Manchester, Sheffield, and Lincolnshire Railway Company (ubi sup.) there were assaults, which were criminal acts, and the courts did not take the ground that the general rule was not applicable if the excess of the servant was a criminal act. I do not say that, if a criminal act is done by the servant in the course of his employment, it may not be such that the jury may say that it was not done in course of, or in furtherance of his employment, but was of such a character that it was done only

[CT. OF APP.

to satisfy his own brutal temper. The fact that what was done was a criminal offence may be material for the consideration of the jury, but the mere fact that it was a criminal offence does not take the case out of the general rule. The question is not whether the act was within the authority of the servant. The authority of the servant is to do what he is told, and to do it properly. But the law says that if a man, who is employed to do a thing properly, in the course of his employment exceeds his authority, then the master is liable. The law has always been so laid. down. I think, therefore, that there was evidence to leave to the jury upon which they might find. for the plaintiff, and that the judge was not bound to non-suit the plaintiff. With reference to the argument upon the statute-24 & 25 Vict. c. 100, s. 45-all we have to do is to construe the Act itself. The statute itself does whatever is done. In my opinion the Act does not effect anything in respect of a person other than the person convicted or acquitted. This appeal, therefore, fails, and must be dismissed.

LOPES, L.J.-I am of the same opinion. As to the statute I agree with what the Master of the Rolls has said. Looking at its provisions it is clear that it applies only to the person convicted or acquitted. The object of the Act was to remedy the evil of criminal proceedings being first taken, and of a civil action being then brought to recover damages for the same assault. The exoneration given by the statute clearly applies only to the person who has been proceeded against criminally. As to the other point, I confess that for some time I was in doubt, but that doubt has been removed. The assault took place under these circumstances. Price was the general manager of the defendant, and he had authority to let out furniture on the hire-purchase system, and to retake the furniture if instalments became in arrear. In the present case he seems to have acted for the purpose of getting back a bed for his master. While doing so there was a struggle, and the plaintiff was assaulted. These being the facts, it is contended that there was no evidence upon which to leave to the jury the question whether Price was acting within the scope of his employment. It is perfectly clear that the question whether acts are, in fact, within the scope of the employment of a servant is one for the jury, but that the question whether the particular acts can be within the scope of the employment is for the judge. Now it is said that the judge ought to have nonsuited the plaintiff in the present case. I think that the jury might properly come to the conclusion that Price, being the general manager of the defendant, had authority to get possession of the bed, and that in the interests of his master, and in furtherance of his employment, he committed the assault. Now the law is, that all acts of a servant done in the course of his employment, and in furtherance of the employment, and in the master's interests, are within the scope of the servant's employment, and that the master is liable for such acts, although they may be contrary to his express orders, and amount to a criminal offence. The cases of Seymour v. Greenwood (ubi sup.) and Bayley v. Manchester, Sheffield, and Lincolnshire Railway Company (ubi sup.). are contrary to the contention of the defendant. It was, in my opinion, open to the jury to find that the act was, in fact, done within the scope of

the servant's employment. If, however, the act was done from private malice, or outside the course of the employment, then the master is not liable. I agree that the appeal must be dismissed.

RIGBY, L.J.-I am of the same opinion upon both points. The statute 24 & 25 Vict. c. 100, s. 45, alters the common law by providing that when a person has been convicted for an assault and has paid or suffered the penalty no further proceeding, civil or criminal, can be brought against him for the same cause. It has been argued that, by the conviction, the servant was released, and that at common law, by the release of one tort-feasor, any right of action against another for the same tort is put an end to, and that, therefore, the statute not only releases the one who has been convicted, but has the same operation as a release by the parties. There is nothing of that kind to be found in the Act itself, and we ought not so to construe it. Then as to the other question. In the reported cases different expressions have been used, which have led to some confusion. In some of the cases the expression scope of his authority" is used. I think, however, that those words in those cases mean exactly the same thing as course of his employment." An act may be done by a servant in the course of his employment, though it may be quite outside of any authority which has been given to him. In the present case the servant did wrong in using violence. The law has been clearly laid down by Willes, J. in Bayley v. Manchester, Sheffield, and Lincolnshire Railway Company (ubi sup.), where he says: " A person who puts another in his place to do a class of acts in his absence, necessarily leaves him to determine, according to the circumstances that arise, when an act of that class is to be done, and trusts him for the manner in which it is done: and consequently he is held answerable for the wrong of the person so intrusted, either in the manner of doing such an act or in doing such an act under circumstances in which it ought not to have been done; provided that what was done was done, not from any caprice of the servant, but in the course of the employment." Now, in the present case the class of acts which this person was appointed to do included the resumption of the possession of furniture if instalments were not paid. The act complained of was done by the servant while engaged in doing such acts. If. in the course of doing those acts, the servant acted in accordance with, or against, his orders is immaterial. The master is responsible for what the servant does. There was here a case proper to be left to the jury, and this appeal fails. Appeal dismissed.

Solicitor for the appellant. O. H. Swann. Solicitors for the respondents, Shearman and Rayner.

Friday, March 15.

[CT. OF APP.

(Before Lord ESHER, M.R., LOPES and
RIGBY, L.JJ.)

Re Low; Ex parte GIBSON. (a)

APPEAL IN BANKRUPTCY.

Bankruptcy Bankruptcy notice - IrregularityImmaterial defect-Validity - Joint judgment debtors Bankruptcy notice issued against one only-Bankruptcy Act 1883 (46 & 47 Vict. c. 52), s. 4, sub-sect. 1 (g), s. 143.

A defect or irregularity in a bankruptcy notice, which cannot perplex or embarrass the debtor, does not make it invalid. Therefore, where a judgment for 50001. had been obtained against the debtor and three others in an action against the debtor and five others, and the bankruptcy notice described the judgment as having been obtained against the debtor and the five others, the bankruptcy notice was held not to be invalid. A bankruptcy notice can be issued against one alone of several joint judgment debtors.

THIS was an appeal by the petitioning creditor, Gibson, from the refusal of the registrar to make a receiving order against the debtor.

The petitioning creditor had brought an action in the Chancery Division against the debtor, J. C. Low, and five other defendants, claiming a sum of 5000l. from the debtor and three of the other defendants jointly, and certain other relief against the two remaining defendants.

On the 24th June 1894 the petitioning creditor obtained a final judgment for 50001. against the debtor, and three of the defendants in that action, jointly.

In Nov. 1894 the petitioning creditor issued a bankruptcy notice against the debtor, and served it upon him, in respect of the above judgment for 50007., stating the date and amount of the judg ment, and that it had been obtained in the Chancery Division, but describing it as a judg ment against the debtor and the five other defendants.

Upon non-compliance by the debtor with the terms of that bankruptcy notice the petitioning creditor presented a petition in bankruptcy against the debtor.

The Bankruptcy Act 1883 (46 & 47 Vict. c. 52) provides:

Sect. 4, sub-sect. 1. A debtor commits an act of bankruptcy in each of the following cases: (g) If a creditor has obtained a final judgment against him for any amount, and, execution thereon not having been stayed, has served on him a bankruptcy notice under this Act, requiring him to pay the judgment debt in accordance with the terms of the judgment, or to secure or compound for it to the satisfaction of the creditor or the court, and he does not within seven days after service of the notice . . . either comply with the requirements of the notice, or satisfy the court that he has a counter-claim, set-off, or cross-demand which equals or exceeds the amount of the judgment debt, and which he could not set up in the action in which the judgment was obtained.

Sect. 143, sub-sect. 1. No proceeding in bankruptcy shall be invalidated by any formal defect or by any irregularity, unless the court, before which an objection is made to the proceeding, is of opinion that substantial injustice has been caused by the defect or irregularity, and that the injustice cannot be remedied by an order of the court.

(a) Reported by J. H. WILLIAMS, Esq.,

Barrister-at-Law.