to sell the Ellesmere Port property and to call in the mortgage

money.

The action was tried at Liverpool before Scrutton, J., and a special jury.

The learned judge left certain questions to the jury, which, together with their answers thereto, were as follows:

(1) In receiving the deeds and taking instructions to sell the property and call in the mortgage debt, did Sandles profess to act in his private capacity or as conveyancing manager to Grace, Smith, & Company?-He professed to act as conveyancing manager to Grace, Smith, & Company.

(2) If he professed to act as conveyancing manager to Grace, Smith, & Company, was he in reality acting on his own behalf and for his own benefit?-He acted in reality on his own behalf and for his own benefit.

(3) In receiving the deeds of the property and the mortgage, did he act (a) in the course of his business as conveyancing manager? Yes. (b) For his master's benefit ?—No.

(4) In taking a transfer of the Ellesmere Port property and pledging it, did he act (a) in the course of his services as managing clerk?—No. (b) For his master's benefit?—No.

(5) In taking a transfer of the mortgage to himself, did Sandles act (a) in the course of his business as managing clerk? -No. (b) For his master's benefit?—No.

(6) In calling in the mortgage debt and transferring it, did he act (a) in the course of his master's business?—Yes. (b) For his master's benefit?-No.

The jury added to their findings the following rider: "The jury are of opinion that throughout the whole history of the transaction Mrs. Lloyd believed she was dealing with Messrs. Grace, Smith, & Company."

It was agreed between the parties at the trial that any supplementary findings of fact which it became necessary to decide should be made by the judge. In accordance with this [721] agreement, Scrutton, J., found as facts that it was within the scope of Sandles' employment to advise clients who came to the firm to sell property as to the best legal way to do it and the necessary documents to execute; that the appellant did rely on the representations of Sandles, professing to act on behalf of the

firm, that the documents in question were necessary to facilitate and carry out the sale of the land to her; that she did not know she was signing conveyances to Sandles outside the scope of his authority, and that she was justified in relying on the representations of Sandles without reading and trying to understand the documents tendered to her, but that she knew she was signing something affecting her estate.

On these facts Scrutton, J., gave judgment for the appellant for the return of the deeds of the Ellesmere Port property and for the sum of 450l. in respect of the claim relating to the mortgage. In the opinion of the learned judge, where a servant acted within his apparent authority, but for his own benefit, the master was liable for his acts, whether in contract or tort. As he read the rule of law laid down by Willes, J., in Barwick v. English Joint Stock Bank (1867) L. R. 2 Exch. 259, at p. 265, 36 L. J. Exch. N. S. 147, 16 L. T. N. S. 461, 15 Week. Rep. 877, 12 Eng. Rul. Cas. 298, it did not mean that, in order to make the master liable, it was essential that the servant, though acting in the apparent course of his employment, should act for his master's benefit, and he dissented from the dictum of Lord Davey in Ruben v. Great Fingall Consolidated [1906] A. C. 439, at pp. 445, 446, 75 L. J. Ch. N. S. 843, 95 L. T. N. S. 214, 22 Times L. R. 712, 13 Manson, 248. With regard to the answer of the jury to question 6 (a), he held that there was no evidence to support it, and he accordingly disregarded that answer.

The Court of Appeal (Farwell and Kennedy, L.JJ., Vaughan Williams, L.J., dissenting) reversed this decision and ordered that judgment should be entered for the defendants (the respondents).

Tobin, K.C., and J. A. Johnston, for the appellant. The principal is liable, whether the action be founded on contract or tort, for the act of his agent done within the scope of his authority, and whether the act be careful or negligent, honest or fraudulent.

This is established as regards contracts by Bryant, Powis & [722] Bryant, Ld. v. Quebec Bank [1893] A. C. 170, 62 L.

J. P. C. N. S. 68, 1 Reports, 336, 68 L. T. N. S. 546, 41 Week. Rep. 600, and Hambro v. Burnand [1904] 2 K. B. 10, ante, 480, 73 L. J. K. B. N. S. 669, 52 Week. Rep. 583, 90 L. T. N. S. 803, 20 Times L. R. 398, 9 Com. Cas. 251, and as regards torts by Thompson v. Bell (1854) 10 Exch. 10, 23 L. J. Exch. N. S. 321, 2 C. L. R. 1213, 2 Week. Rep. 559; Swire v. Francis (1877) 3 App. Cas. 106, 47 L. J. P. C. N. S. 18, 37 L. T. N. S. 554, and Trott v. National Discount Co. (1900) 17 Times L. R. 37. Bowstead on Agency, 4th ed., p. 264, art. 80, sums up the appellant's argument. Willes, J., in Barwick v. English Joint Stock Bank (1867) L. R. 2 Exch. 259, at p. 265, 36 L. J. Exch. N. S. 147, 16 L. T. N. S. 461, 15 Week. Rep. 877, 12 Eng. Rul. Cas. 298, does not say that a principal will not be liable for an act done by his agent within the scope of his authority, unless the act is done for the benefit of his principal. The sole question is whether the act is within the scope of the agent's authority. The appellant's deeds having got lawfully into the possession of the solicitors, the fraud of their agent in stealing them is no answer to the action. Further, the documents which the appellant was induced to sign, not knowing what they were, are not her deeds.

Greer, K.C., and Cuthbert Smith, for the respondents. This is a claim for the return of goods bailed and alternatively for false representation. As regards the first claim, where goods are deposited with a person for safe custody, he is not liable if his servant afterwards converts the goods to his own use. Cheshire v. Bailey [1905] 1 K. B. 237, 74 L. J. K. B. N. S. 176, 53 Week. Rep. 322, 92 L. T. N. S. 142, 21 Times L. R. 130; Jobson v. Palmer [1893] 1 Ch. 71, 62 L. J. Ch. N. S. 180, 3 Reports, 173, 67 L. T. N. S. 797, 41 Week. Rep. 264; Giblin v. McMullen (1868) L. R. 2 P. C. 317, 5 Moore, P. C. C. N. S. 434, 38 L. J. P. C. N. S. 25, 21 L. T. N. S. 214, 17 Week. Rep. 445, 3 Eng. Rul. Cas. 613. There is no authority for the proposition that a solicitor receiving the deeds of a client for safe custody is under any greater liability than a banker, who in the last cited case was held to be not responsible. His only duty is that of an ordinary bailee. As regards the second claim, where a tort-whether it be false representation, tres

pass, conversion, or any other wrongful act-is committed by a servant, the master is not responsible if the object in committing the tort is the servant's own benefit, and not the benefit of the master. Barwick v. English Joint Stock Bank, supra; British Mutual Banking Co. v. Charnwood Forest Ry. Co. (1887) 18 Q. B. D. 714, 56 L. J. Q. B. N. S. 449, 57 L. T. N. S. 833, 35 Week. Rep. 590, 52 J. P. 150; Thorne v. Heard [1894] 1 Ch. 599, at p. 615, affirmed [1895] A. C. 495, 64 L. J. Ch. N. S. 652, 11 Reports, 254, 73 L. T. N. S. 291, 44 Week. Rep. 155; Ruben v. Great Fingall Consolidated [1906] A. C. 439, at pp. 445, 446, 75 L. J. Ch. N. S. 843, 95 L. T. N. S. 214, 22 Times L. R. 712, 13 Manson, 248; Sanderson v. Collins [1904] 1 K. B. 628, at p. 632, 73 L. J. K. B. N. S. 358, 52 Week. Rep. 354, 90 L. T. N. S. 243, 20 Times L. R. 249.

[723] [The Earl of Halsbury referred to Limpus v. London General Omnibus Co. (1862) 1 Hurlst. & C. 526, 32 L. J. Exch. N. S. 34, 9 Jur. N. S. 333, 7 L. T. N. S. 641, 11 Week. Rep. 149, 17 Eng. Rul. Cas. 258.]

Where an agent has authority to contract and the contract is made, the motive of the agent in making the contract is immaterial, and the principal is liable, for the reasons stated by Mathew, L.J., in Hambro v. Burnand [1904] 2 K. B. 10, at p. 25, ante, 480, 73 L. J. K. B. N. S. 669, 52 Week. Rep. 583, 90 L. T. N. S. 803, 20 Times L. R. 398, 9 Com. Cas. 251, but that is not so in the case of a tort, and the moment that an agent commits a voluntary wrongful act for his own benefit he ceases to be acting within the scope of his authority.

Further, this was not solicitors' business. The terms proposed by Sandles as to reinvestment were Sandles' business, and the property was to be sold and the mortgage money called in merely to enable Sandles to put the money into his own companies. Up to the point when Sandles gave the receipt for the deeds in the firm's name, he had done nothing to induce the appellant to believe that he was acting on behalf of the respondents. So long as findings 4 and 5 stand, judgment cannot be entered for the appellant

J. A. Johnston in reply. The rule laid down by Willes, J., in Barwick v. English Joint Stock Bank (1867) L. R. 2 Exch. 259, at p. 265, 36 L. J. Exch. N. S. 147, 16 L. T. N. S. 461, 15 Week. Rep. 877, 12 Eng. Rul. Cas. 298, has been misunderstood by Lord Davey in Ruben v. Great Fingall Consolidated [1906] A. C. 439, at p. 445, 76 L. J. Ch. N. S. 843, 98 L. T. N. S. 214, 22 Times L. R. 712, 13 Manson, 248, and his dictum was not necessary for the decision of the case, because the act there was clearly not within the scope of the agent's authority. The same remark applies to the dictum of Bowen, L.J., in British Mutual Banking Co. v. Charnwood Forest Ry. Co. (1887) 18 Q. B. D. 714, at p. 718, 56 L. J. Q. B. N. S. 449, 57 L. T. N. S. 833, 35 Week. Rep. 590, 52 J. P. 150. There is no foundation for the distinction between contract and tort for this purpose. The principle of the liability is agency, and if the act done is within the scope of the agent's authority the nature of the act is immaterial. [He also referred to Rhodes v. Moules [1895] 1 Ch. 236, 64 L. J. Ch. N. S. 122, 12 Reports, 6, 71 L. T. N. S. 599, 43 Week. Rep. 99.

The House took time for consideration.

Earl Loreburn, L.C., moved that the order appealed from be reversed and the judgment of Scrutton, J., [724] restored, and intimated that the reasons for their Lordships' decision would be given at a later date when all the members of the House who were present at the hearing of the argument would be able to attend and express their opinions.

Their Lordships now gave their reasons for this decision.

Earl Loreburn: My Lords, the facts of this case, except in immaterial points, are quite clear and undisputed.

The appellant, Mrs. Lloyd, had bought some property, and thus had come to know of the defendant, a solicitor. She had doubts about having got her money's worth, and went to the defendant's office to inquire. When there she saw one Sandles,

the defendant's managing clerk, and was induced by him to give