Misfeasance. There is a class of contracts which are particularly nearly allied to torts. Such are, gratuitously undertaken duties. Such duties are not contracts in one sense, namely, that being without consideration the contractor is not liable for their nonfeasance, i. e. for omitting to perform them. But on the other hand, if he once commences to perform them, the contract then becomes choate as it were, by virtue of the following rule

RULE 9. The confidence induced by undertaking any service for another, is a sufficient legal consideration to create a duty in its performance (Coggs v. Bernard, 1 Sm. L. Ca. 177, 6th ed.).

Thus in the above case, the defendant gratuitously promised the plaintiff to remove several hogsheads of brandy from one cellar to another, and in doing so one of the casks got staved through his gross negligence. Upon these facts, it was decided that the defendant was liable; for although his contract could not have been enforced against him, yet having once entered upon the performance of it, he thence became liable for all misfeasance.

Bailments. Such is a brief account of the law upon this head:

In some works, injuries to goods whilst in the keeping of carriers and innkeepers are described as

torts; in others as breaches of contract; but however actions in respect of them may be framed, they are in substance ex contractu, being for non-performance of the contract of bailment, and not for a tort independent of contract (Rosc. 539; 2 Bl. Com. 451; Legge v. Tucker, 26 L. J., Ex. 71). I shall therefore not treat of them in this work.

CHAPTER. III.

OF THE LIABILITY OF MASTERS FOR THE TORTS OF THEIR SERVANTS.

General Liability. It is a well-known legal maxim, that qui facit per alium, facit per se, whence the following rule is easily deduced

RULE 10.-A person who puts another in his place, to do a class of acts in his absence, is 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 is done is not done from any caprice of the servant, but in the course of the employment (Bayley v. Manchester, Sheff. & Lincoln. R. Co., L. R., 7 C. P. 415).

(1) Thus if a servant drive his master's carriage over a bystander; or if a gamekeeper employed to kill game, fire at a hare and kill a bystander; or if a workman employed in building, negligently drop a stone from the scaffold, and so hurt a bystander; the person injured may claim reparation from the master; because the master is bound to guarantee the public against all damage arising from the

wrongful or careless acts of himself, or of his servants when acting within the scope of their employment (Bartonshill Coal Co. v. Reid, 3 Macq. H. L. Ca. 266).

Acts done outside the Employment. Subrule 1.-A master is not responsible for the wrongful act of his servant, unless the act was an act done by the servant in the course of his employment.

(1) It was the course of employment of the carman of the defendant, who was a brewer, with the defendant's horse and cart to deliver beer to the customers, and on his return collect empty casks, for each of which he received a penny. The carman having, without the defendant's permission, taken out the horse and cart for a purpose entirely of his own, on his way back collected some empty casks, and while thus returning the plaintiff's cab was injured by the carman's negligent driving. Under these circumstances, it was held that the defendant was not liable, and Lindley, J., said, "The question is, whether under these circumstances, the servant was acting in the course of his employment. In my judgment he was not. It is certain that the servant did not go out in the course of the employment. Does it alter the case, that whilst coming back, he picks up the casks of a customer? I think it does not. He was returning on a purpose of his own, and he did not convert his own private occupation into the employment of his master simply by picking up the casks of a customer. The conclusion, therefore, to which I come is, that the servant was not engaged in his master's business in any sense,

and therefore our judgment must be for the defendant" (Rayner v. Mitchell, 25 W. R. 632).

(2) So, where a master intrusted his servant with his carriage for a given purpose, and the servant drove it for another purpose of his own in a different direction, and in doing so drove over the plaintiff, the master was held not to be responsible, on the ground that the servant was not acting within the scope of his employment; for he had started upon a new and entirely independent journey which had nothing to do with his employment (Storey v. Ashton, L. R., 4 Q. B. 476). But if the servant when going on his master's business had merely taken a somewhat longer road, such a deviation would not be considered as taking him out of his master's employment (Mitchell v. Crassweller, 22 L. J., C. P. 100; and see Whiteley v. Pepper, L. R., 2 Q. B. D. 276).

(3) So, where a servant wantonly, and not in the execution of his master's orders, struck the plaintiff's horses, and so produced an accident, the master was held not to be liable (Croft v. Alison, 4 B. & A. 590).

Wilful act. Sub-rule 2.-A master is responsible for the manner in which his servant does an act for the master's benefit, which act is within the scope of his probable authority, even though such manner was contrary to the master's orders; but a master is not responsible for an act of his servant which is in itself, and not merely in the manner of doing it, illegal.

(1) In Limpus v. London General Omnibus Co. (11 W. R. 149; 7 L. T., N. S. 245), the driver of an omnibus plying between P. and K., whilst plying between those places, wilfully, and contrary to express