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With wonderful certainty and with great alacrity the late Jurist could and did brush aside the chaff, to discover the grains of wheat in the midst of the upraised heap where probably there was much more chaff than wheat.

But above all, and over all, and better than all, were his personal endearing qualities. Using in part the words of another, I once said of him, long before he had gone to join the great majority: "His endearing personal qualities and brilliant equipments as a Judge command alike my affection and completely "apture my admiration.”

Some seven years ago (the 14th of October, 1915) the late Chief Justice joined us on the Superior Court Bench. I had then a deep seated admiration for his legal abilities and attainments. There followed a close and ever growing intimacy with him after his appointment; that intimacy increased my admiration, but soon there was added to my admiration for the Jurist a lasting and ever growing affection for the man. I recall the words of Sir Charles Peers Davidson, the then Chief Justice of the Superior Court; he said to me: “Lamothe is a perfect type of the best French Avocat and of the courtly gentle

I repeat here what I said long before his death, and I say it with all the emphasis that words can be found wherewith to express a firm conviction, that in all my intercourse, intimate as it was with him, I never heard him say an unkind thing to a person, nor an unkind thing about a person.

He was quick to perceive the fault, the weakness and the mistake, but he was ever more ready to find the excuse. He was critical, but he was ever kindly critical. I venture to assert, that there is not among the members of the Bar one who will gainsay my statement, that he was a great, and kindly considerate, lovable man; that he Was a diligent, painstaking, impartial and just Judge. Very early in life he must have realized and never

man.'

C.B.R.-POL.1.-5

forgotten the great truth embodied in the words of that old pastoral poet:

Boys flying kites haul in their white-winged birds;
You can't do that way when you're flying words.
Careful with fire,” is good advice we know:
“Careful with words,” is ten times doubly so.
Thoughts unexpressed may sometimes fall back

dead;
But God himself can't kill them once they're said!

SERVANT'S OWN PRIVATE ENDS.

BY D. A. MacRae, Ph.D.; DEAN OF THE FACULTY OF

Law, DALHOUSIE UNIVERSITY. During the last half of the nineteenth century a doctrine appeared and found expression in a number of cases that if a servant was found to have committed a wrongful act “for his own private ends,” this at once relieved the master of liability. Since the decision in Lloyd. v. Grace, Smith & Co. (1912), A. C. 716, the question may be asked how far this doctrine, there abrogated as regards frauds committed by an agent in the course of his employment, still applies to torts other than fraud.

It will be convenient first to refer to the cases in which the doctrine itself was propounded. In Limpus v. London General Omnibus Co. (1862) Blackburn, J., said: “If the jury should come to the conclusion that he did the act, not to further his masters' interest or in the course of his employment, but for private spite, and with the object of injuring his enemy, the defendants were not responsible.” Again in Allen v. London & S. W. Ry. Co. (1870), a case where a clerk had wrongfully procured the arrest of the plaintiff, the same judge left it to the jury to say "whether the clerk acted for his own ends, and out of spite, because he had not succeeded in forcing the French coin on the plaintiff, in which case the defendants would not be liable for his act, or whether he acted in furtherance, as he supposed, of his employers' interest to protect their property.

The same doctrine is at least suggested by the rule as given by Willes, J. in Barwick's Case in the Exchequer Chamber (1867). "The general rule is, that the master is answerable for every such wrong of the servant or agent as is committed in the course

H. & C. p. 543.

L. R. 6 Q. B. 65. 'L. R. 2 Ex. 259.

proved."

of the service and for the master's benefit, though no express command or privity of the master be

But after giving instances of the application of this rule, Willes adds: “In all these cases it may be said, as it was said here, that the master has not authorized the act. It is true, he has not authorized the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of the master to place him in." This seems to imply that it is only the class of acts' and not the particular act complained of that must be ‘for the master's benefit.' Barwick's Case did not, however, decide that the wrongful act must be for the master's benefit. The actual decision does not cover the case of an act done for the servant's private ends and not for the master's benefit, because the wrongful act there charged was in fact for the benefit of the master.

The same is true of the MacKay Case in the Privy Council in 1874. There also the fraud was committed for the benefit of the principal, and it was not necessary to decide what would be the result it the wrongful act had been committed for the agent's private ends. Indeed Sir Montague Smith, who delivered the judgment, says at the end thereof that it is not necessary to decide whether the plaintiffs could have succeeded “if they had proved only they had sustained damage from the fraudulent representation of the agent of the Defendants made within the scope of his authority, without proof of the Defendants having profited thereby.” In this reservation there was, acording to Lord Macnaghten, an implication that the question had not been determined in Barwick's Case.

In Swire v. Francis the facts as given by the stated case were susceptible of two interpretations:

.L. R. 5 P. C. 394.
* 1912 A. C. at p. 734.
• (1887) 3 App. Cas. 106.

.

(1) That the agent had misappropriated his principal's money and then by means of a fraudulent draft had procured from the plaintiffs an amount to cover the sum he had misappropriated; (2) That the agent had misappropriated the proceeds of the draft itself. In the former view of the facts it is possible to say that there would be a 'benefit to the master' in the making up of the defalcation. In the latter view there would be no 'benefit to the master.' The wrongful act would be wholly for the agent's 'private ends.' Dealing with this latter view of the facts Sir Robert Collier, who delivered the judgment holding the principal liable, said: “Even if it be assumed that Shaw (the agent) appropriated only the proceeds of the bill

still it appears to their Lordships that no substantial difference would arise in the legal bearings of the case. The bill was drawn by him in pursuance of a general authority which he had to draw on behalf of Francis & Co. (defendants)

The proceeds of this bill belonged to Francis & Co., and the case comes to this, that 5,800 taels were paid to Francis & Co. by the Plaintiffs without any consideration whatever, and that Shaw fraudulently misappropriated the money." Although there is here no discussion of 'private ends' or 'master's benefit,' the statement that the proceeds of the bill belonged to the principal seems to involve that the principal was to be accountable for the receipt of the money notwithstanding that it was received by the agent for his own private ends.

In Houldsworth v. City of Glasgow Bank? Lord Selborne states that “the decisions in all these cases (Barwick's Case, Mackay's Case, Swire v. Francis and several cases in the House of Lords) proceeded, not on the ground of any imputation of vicarious fraud to the principal, but because (as it was well put by Mr. Justice Willes in Barwick's Case), ' with respect to the question whether a principal is answerable for the act of his agent in the course of his mas

'(1880), App. Cas. at p. 326-7.

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