*6. But they seem to have lost sight of, or not sufficiently to have considered, one peculiarity of this mode of transportation of freight and passengers, that the superior is virtually always present, in the person of any of the employees, within the range of the employment, as much so as is practicable in such cases. And this

than in the supposed cases of his assuming to do a wilful wrong in the direct course of his ordinary employment.

This case certainly cannot stand with the argument of the court, 1 East, 106. And yet it is confirmed by other cases. Joel v. Morrison, 6 C. & P. 501. Any different view of this subject will, it seems to us, in principle, bring us back to the earlier theory of the relation of corporations to their servants; that corporations are not liable for torts, committed by their servants, they having no authority to bind the corporation by unlawful acts.

There is an elaborate case in 20 Maine, 41, State v. Great Works Mill & Manu. Co., taking precisely the old view of the liability of corporations for the acts of their servants, where the act proves unlawful. But most of the later cases hold the company liable for the torts of their agents, done in the course of the agency.

But the company are not liable for injuries to persons or property through the recklessness and want of common care and prudence of such persons, or property, as where a slave lay down to sleep upon the track of a railway, and was run over by a train of cars, it not being possible to discover such slave above twenty feet, on account of the grass upon the track. Felder v. Railw. Co., 2 McMullan, 403.

See also Mitchell v. Crassweller, 13 C. B. 237; s. c. 16 Eng. L. & Eq. 448; Leame v. Bray, 3 East, 593; Claflin v. Wilcox, 18 Vt. 605, where the principles involved in this inquiry are examined. Smith v. Birmingham Gas Co., 1 Ad. & Ell. 526.

In two cases in Vol. 24 Conn., Crocker v. New London, W. & P. Railw., 249, and Thames Steamboat Co. v. Housatonic Railw., 40, the general proposition is maintained, that railway companies are not liable for acts done without the command of the agent, having the superior control in that department of the company's business, at the time, and out of the range of the particular employment of the servant doing the act. This seems to us a sound and just proposition. See also Giles v. Taff Vale Railw., 2 Ell. & Bl. 822; Glover v. London & North W. Railw., 5 Exch. 66.

It is said, in Illinois Central Railw. v. Downey, 18 Ill. 259, that case cannot be maintained against a corporation for injuries wilfully and intentionally committed by its servants, and not occasioned in the course of their employment in the pursuit of their regular business. The judge, in laying down the proposition, seems to found himself upon the form of the action. But if any action will lie against a corporation for the wilful misconduct of its agents, we do not see why it may not be the same ordinarily brought against natural persons for similar injuries. But the proposition laid down in the case is not entirely clear or perspicuous. The act of a servant may be in the direct course of his employment and business, and still be wilful, and that was the very case before the court, if the act was done wilfully.

consideration, in regard to natural persons, is held sufficient, to make the superior always liable for the act of the subordinate, whether done negligently or wilfully.8

*7. And although the cases seem to treat the superior as always absent, in the case of injuries done by railways, it is submitted, that the more just and reasonable rule is, to regard the principal as always present, when the servant acts within the range of his employment.9

8. This distinction is of no importance in regard to the liability of railways, as carriers of freight and passengers, for then the law makes the company liable absolutely in one case and in the other, as far as care and diligence can effect security. Those cases, therefore, which have excused corporations as bailees of goods for hire, when they were purloined by their servants, it would seem are necessarily wrong.10

9. But, as railways are, like other corporations, mere entities of the law, inappreciable to sense, we do not see why this abstraction should not be regarded as always existing and present in the discharge of its functions. It is indeed a mere fiction, whether we regard the company as present or absent. And it seems more just and reasonable, that the fiction should not be resorted to, to excuse just responsibility. It is certain we never require proof of any organic action of the corporation, to constitute railways carriers of freight and passengers. All that is required, to create the liability, is the fact of their assuming such offices. So, too, for the most part, in regard to injuries to strangers and mere torts, it is not expected that proof will be given of any express authority to the servant or employee to do the particular act.11

Railw.,

8 Morse v. The Auburn & Syr. Railw. Co., 10 Barb. 621; Vanegrift v. 2 N. J. 185, 188. See also Burton v. Philadelphia, &c. Railw., 4 Harring. (Del.) 252.

9 Chandler v. Broughton, 1 Crompton & M. 29. In this case it is held, that if the master is present, although passive, he is liable for the wilful act of his servant. M'Laughlin v. Pryor, 1 Car. & M. 354.

Trespass will lie against a 5 Ind. 252.

10 Foster v. The Essex Bank, 17 Mass. 479, 510. railway company. Crawfordsville Railw. v. Wright, 11 Lowell v. Boston & Lowell Railw., 23 Pick. 24. Numerous cases upon the subject of the liability of railways show this practically. Where the company begins to run trains before condemning the land to their use, it is seldom that the act of running them is traceable directly to the corporation, except as the act of the employees. This is always done by design, and never any doubt was entertained that the company are liable, and in trespass, to the land-owner,

*10. What shall amount to a ratification of the acts of its agent by the stockholders of the corporation, so as to give an authority not expressly conferred, or one not intended to have been conferred, or even where the formal act of the corporation was a denial of the authority, has been a good deal discussed, and is not, perhaps, susceptible of a specific definition. The question is discussed and the authorities examined in Cumberland Coal Company v. Sherman.12

11. And it seems to be settled, both in this country and in England, that a corporation may become responsible for the publication of a libel. In the English case,18 a railway company were held responsible for telegraphing along their line, that the plaintiffs, who were bankers, had stopped payment. Lord Campbell said: The allegation of malice "may be proved by showing that the publication of a libel took place by order of the defendants, and was therefore wrongful, although the defendants held no ill will to the plaintiffs, and did not mean to injure them." And the leading American case 1 decides that a railway may be liable for a libel which could not be the case upon the strict analogies referred to in note (6), unless the corporation were regarded as present, and assenting to the act. Hazen v. Boston & Maine Railw., 2 Gray, 574; Eward v. Lawrenceburg & Upper Mis. Railw., 7 Porter (Ind.), 711; Hall v. Pickering, 40 Maine, 548.

The rule laid down upon this subject by Lord Denman, Ch. J., in a case which, although a trial at Nisi Prius, seems to have been examined and acquiesced in by all the judges of K. B., Rex v. Medley, 6 C. & P. 292, certainly exhibits the sagacity and wisdom of its author.

That is the case of an indictment against the directors of a gas company for the act of the company's superintendent and engineer, in conveying the refuse gas into a great public river, whereby the fish are destroyed, and the water rendered unfit for use, &c., thereby creating a public nuisance. No distinction is attempted, or could fairly be made here between the liability of the company and that of the directors.

The court held the directors liable for an act done by their superintendent and engineer, under a general authority to manage the works, though they were personally ignorant of the particular plan adopted, and though such plan was a departure from the original and understood method, which the directors had no reason to suppose was discontinued.

The learned judge uses this significant language, which fully justifies all we contend for: "It seems to me both common sense and law, that if persons, for their own advantage, employ servants to conduct works, they must be answerable for what is done by those servants."

12 30 Barb. 553.

13 Whitefield v. Southeast. Railw. Co., Ellis, Blackb. and Ellis, 115.

14 Philadelphia, Wil. & Balt. Railw. v. Quigley, 21 How. (U. S.) 202.

published and circulated in their reports, wherein they represented the plaintiff as an incompetent * mechanic and builder of bridges, station-houses, and other structures, and wanting in all requisite capacity and skill for such employment. The court held that, in the absence of express malice or bad faith, the report to the stockholders is a privileged communication, but the privilege does not extend to the publication of the report and evidence in a book for distribution among the persons belonging to the corporation and others, and so far as the corporation authorized the publication in the form employed they are responsible in damages.

12. It is well settled, that corporations have no powers except such as are conferred by their charters, or incidentally requisite to carry into effect the purposes of their charters. Hence it was held, that a charter to build a road to the top of a mountain and take tolls thereon, does not warrant the company in purchasing horses and carriages and establishing a stage route. Nor does an additional act for erecting and leasing buildings for the accommodation of the business of the company or others on the road have that effect. And an agent can do no act not within the corporate powers, nor can the corporation ratify any such act.15

13. Where the statute requires the directors of a corporation to certify the fact of the capital stock being paid into the treasury in cash, and this is done, when in fact the payment was made in property of uncertain value, such certificate is false, and the directors responsible for the debts of the company under the statute, imposing that penalty for making a false certificate in that respect.16

14. A gas company, chartered for the purpose of lighting the streets and buildings of a town, is not obliged to supply gas to all persons having buildings on the line of their pipes, upon being tendered reasonable compensation.17

15. In one case 18 it is said the company are responsible for a

15 Downing v. Mount Washington Road Co., 40 N. H. 230.

16 Waters v. Quimby, 3 Dutcher, 198.

17 Paterson Gas Light Co. v. Brady, 3 Dutcher, 245.

18 Goff v. Great Northern Railw. Co., 3 El. & El., 672; s. c. 7 Jur. N. S. 286. But where the station master ordered the owner of a horse into custody till it could be ascertained if his claim that the horse was to be carried free of charge were well founded, it was held that, as there could be no pretence of the company having any claim to make any such arrest, they could not be held liable for what was so manifest

false imprisonment committed by its agents, and no authority under seal is requisite; but there must be evidence justifying the jury in finding that the company's servants who did the act had authority from the company to do so. In this case the plaintiff had been taken into custody by the servants of the company, and by direction of the superintendent of the line, carried before a magistrate, and charged with an attempt to travel in one of the company's carriages without having first paid his fare and procured a ticket. The fact was, he had paid his fare and procured a ticket and mislaid it at home, and, by mistake, taken another ticket accidentally laid in the same place. He explained the transaction to the company's servants, and declined to pay fare again, because he had not the means, but offered to pawn some of the tools of his trade which he had with him. The court held, that, as some one must have authority to act for the company in such emergencies, the superintendent of the line must be regarded as having that authority. The jury gave a verdict for the plaintiff for £50 damages, and the court declined to interfere on the ground that they were excessive. The wonder is that any one should have had any hesitation in regard to the acts of the agents who thus acted in matters representing the company. It should be considered in all cases, that where a servant of any corporation does any act coming fairly within the scope of the business intrusted to him, it must be held binding upon the company.

16. It seems to be considered that railway companies may be responsible where injury to passengers, or others rightfully there, occurs in consequence, for allowing a dangerous animal to remain about their stations after they have sufficient knowledge of its ly a mere tort of the servant. Poulton v. London & S. W. Railw., Law Rep. 2 Q. B. 534. But where the servant of a railway company does an act of force towards another, in the due course of his employment, or under discretionary authority from the company, as in expelling a passenger from their cars for not paying fare, under a mistake of the fact, or with needless violence, the company is responsible, and the action may be against the servant and corporation jointly. Moore v. Fitchburg Railw., 4 Gray, 465. But the president of the company is not liable in such case for merely transmitting the general authority of the corporation to the servant, but would be if he originated the particular order. Hewett v. Swift, et als., 3 Allen, 420. See St. John v. Eastern Railw., 1 Allen, 544. So, too, the company is responsible for any negligence or misconduct of its servants, in the course of their employment, in assisting passengers to alight from the cars. Drew v. Sixth Avenue Railw., 40 N. Y. (3 Keyes) 429.