In the case of Satterfield v. Western Union Tel. Co., 23 Ill. App. 446, the action was brought against the telegraph company to recover the statutory penalty for trees conceded by the court to have been cut under the directions of the superintendent of the wires of the defendant. There was no evidence to show that the trees were cut under any authority, or directions of the defendant, or had been ratified by it. The court conceded the liability of the principal or master for the torts of the agent done within the scope of his authority, but held that the principle did not apply when the action was brought to recover the statutory penalty. A statute of Massachusetts requires "that whenever persons traveling with any kind of vehicle shall meet each other upon a road or bridge, each of them shall seasonably drive his vehicle to the right of the middle," et cetera. "Every person offending against the provisions [of the act] shall for each offense forfeit a sum not exceeding twenty dollars. . . . and be further liable to any party for all damages sustained by reason of such offense." In the case of Goodhue v. Dix, 2 Gray, 181, the plaintiff sought to hold the principal or master liable, upon the ground that the servant omitted seasonably to drive to the right as provided in the statute. The court held that the employer or owner of the vehicle was not liable under the statute, "if he be in no way implicated in the conduct of the servant," and that the liability was limited to the particular individual who was guilty of its violation. The case recognized the commonlaw liability of the principal or employer for the acts of the agent or servant, but held the rule did not apply under the statute. In the case of Reynolds v. Hanrahan, 100 Mass. 313, the 280 acts were very similar, if not identical, with those stated in Goodhue v. Dix, 2 Gray, 181, but the complaint was framed upon the common-law liability of the master for the acts of the servant, and not upon the statute. The court recognized the principle declared in 2 Gray, but called attention to the fact that in the one case the action was under the statute, and in the case at bar the action was upon the common-law liability of the defendant. In the latter case the defendant was held liable for the acts of the servant, while under the statute the liability was limited to the particular person who violated it. We think it is clear that the authorities make a broad distinction as to the liability of a principal or master, where it is sought to hold him responsible upon a common-law liability for the torts of the agent or servant, and when it is sought to recover from him a statutory penalty. In the former cases, he is liable for the acts done within the scope of his employment. In the latter, the liability is fixed and limited by the statute itself. The distinction is clear, and rests upon sound principles of law. What was said in the case of Postal Tel. Co. v. Brantley, 107 Ala. 683, and Postal Tel. Co. v. Lenoir, 107 Ala. 640, is wholly correct when applied to the common-law action for the recovery of damages. A decision of the question now considered was not before the court in either of those cases, and what was said with reference to the liability of a principal for the statutory penalty was merely dictum. We have been referred to the case of Renfro v. Adams, 62 Ala. 302, where the action was for the recovery of the penalty imposed for a failure to enter satisfaction of a mortgage under section 2223 of the code of 1876. We approve of all that was said and decided in that case. The mortgage was executed to the partnership as a unit, and the action was against the partnership as a unit. The statute imposed the penalty upon "any mortgagee who failed to enter satisfaction after notice by the mortgagor." The duty was imposed upon the partnership as mortgagee. The question was, whether notice to one partner was notice to the partnership. We do not doubt that it was correctly held to be sufficient. Under the one act, mere negligence or failure to act incurs the penalty. In the other, an affirmative act knowingly and willfully done is necessary. 287 This court will not ordinarily reverse a cause because of giving instructions to the jury which are merely misleading or argumentative, though it is better that such charges be refused. But when it is manifest that misleading and argumentative charges given were of such a character as to have probably unduly influenced the jury, and thereby probably defeated a fair verdict, it becomes the duty of the court to reverse and remand the cause. Charges numbered 2, 4, and 7 were objectionable, in singling out and giving undue prominence to the fact of the partnership. Charge 7 was not only an argument throughout, but, under the facts of the case, highly injurious to the defendant. This charge utterly ignored that part of the evidence which showed that Hinton claimed to have cut the rees by vi tue of an agreement of purchase from plaintiff, and so reported to the defendant, and that the offer to pay may have proceeded from the representation or statement of Hinton. Reversed and remanded. IN- INSTRUCTIONS.-CONFLICTING AND MISLEADING Liability of One Partner for the Tortious Acts of the Other. committed in the transaction of the ordinary business of the part- nership, is the tort of all the partners, and each partner, being liable Individually for such a tort, may be sued alone, or with part or all of the other partners. The tort of one partner, where it is con- nected with the business of the firm, and incident to it as the busi- ness is carried on, is considered the joint and several tort of all, and the partner doing the act is considered as the agent of the other partners. Otherwise expressed, each partner is the agent of the firm while engaged in the prosecution of the partnership busi- ness, and the firm is answerable for the torts of each, if committed within the scope of his agency, although the firm is ignorant of his acts, for, as has been justly observed, "by forming the con- nection of partnership, the partners declare themselves to the world satisfied with the good faith and integrity of each other, and im- pliedly undertake to be responsible for what they shall respectively do within the scope of the partnership concerns": Story on Part- nership, sec. 108; Tucker v. Cole, 54 Wis. 539; Liebold v. Green, 69 Ill. App. 527; Dudley v. Love, 60 Mo. App. 420; Schwabacker v. Riddle, 84 Ill. 517; Wiley v. Stewart, 122 Ill. 545; Durant v. Rogers, 87 Ill. 508; Stockton v. Frey, 4 Gill, 406; 45 Am. Dec. 138; Hess v. Lowrey, 122 Ind. 225; 17 Am. St. Rep. 355; Hobbs v. Chicago Packing etc. Co., 98 Ga. 576; 58 Am. St. Rep. 320; Heirn v. Mc- Caughan, 32 Miss. 17; 66 Am. Dec. 588; United States v. Baxter, 46 Fed. Rep. 350; Kuhn v. Weil, 73 Mo. 213; Chambers v. Clearwater, 1 Abb. App. Dec. 341; Mode v. Penland, 93 N. C. 292; Whittaker v. Collins, 34 Minn. 299; 57 Am. Rep. 55; Hyrne v. Erwin, 23 S. C. 226; 55 Am. Rep. 15, and note; Haney Mfg. Co. v. Perkins, 78 Mich. 1, 9; Atlantic Glass Co. v. Paulk, 83 Ala. 404; Lothrop v. Adams, 133 Mass. 471; 43 Am. Rep. 528; McClure v. Hill, 36 Ark. 268; Loomis v. Barker, 69 Ill. 360; Robinson v. Goings, 63 Miss. 500; Pierce v. Wood, 23 N. H. 519; Champion v. Bostwick, 18 Wend. 175; 31 Am. Dec. 376; Hall v. Younts, 87 N. C. 285; Gerhardt v. Swaty, 57 Wis. 24; Fletcher v. Ingram, 46 Wis. 191. Thus, if staves are made from timber cut upon the plaintiff's land, without his authority, and upon the direction of one of two other, and it is appropriated to the use and benefit of the firm, If the wrongful delivery of the goods of a third person, while in the custody of a partnership, is an act done within the scope of the partnership business, it, though made by a single member of the firm, without the knowledge or consent of the other members of the firm, renders all of the copartners or the firm answerable in trover for a conversion of the goods: Hobbs v. Chicago Packing etc. Co., 98 Ga. 576; 58 Am. St. Rep. 320. So, if one partner, in a matter connected with the business of the partnership, does an act to the injury of a third person, which is merely a tort by con- struction or inference of law merely, his copartner is equally an- swerable with him for the consequences of the act: Myers v. Gilbert, 18 Ala. 467. All the members of a firm are presumptively answer- able for a trespass committed by one member thereof in causing a writ of attachment or execution to be levied, in a suit to recover a partnership debt, if the levy, in either case, is wrongful: Kuhn v. Weil, 73 Mo. 213; Gurler v. Wood, 16 N. H. 539; Chambers v. Clearwater, 1 Abb. App. Dec. 341. All the members of a firm of physicians are answerable for the malpractice of any one of them: Whittaker v. Collins, 34 Minn. 299; 57 Am. Rep. 55; Hyrne v. Erwin, 23 S. C. 226; 55 Am. Rep. 15. If, in the course of the part- nership business, a member of the firm injures the business of another by slander, as where the purpose of the words spoken is to aid the firm business by preventing another from making sales of an article which the firm is at the time selling, the part- nership is answerable therefor, just as it might be for any other tort by any other agent: Haney Mfg. Co. v. Perkins, 78 Mich. 1, 9. So, an action for a libel may be maintained against a firm, where the wrong was done by all the partners, or by one in the prosecution of the partnership business: Atlantic Glass Co. v. Paulk, 83 Ala. 404; Lo- throp v. Adams, 133 Mass. 471; 43 Am. Rep. 528. A person may be liable for a trespass upon land, committed by his partner, for the benefit of the partnership, and of which he shares the ben- efit, although he himself never went upon the ground: Gerhardt Acts without the Scope of the Partnership Business.-A tort com- mitted by one partner will not bind the partnership or the other Hence, Jones, 42 N. H. 25; Graham v. Meyer, 4 Blatchf. 129. if a partner commits a tort, not as a partner but as an individual, in respect to a matter entirely foreign to the business of the partnership, the other partners are not answerable for his wrong: Schwabacker v. Riddle, 84 Ill. 517; Durant v. Rogers, 71 Ill. 121; Graham v. Meyer, 4 Blatchf. 129; Heirn v. McCaughan, 32 Miss. 17; 66 Am. Dec. 588; Rosenkrans v. Barker, 115 Ill. 331; 56 Am. Rep. 169; Kirk v. Garrett, 84 Md. 383; Marks v. Hastings, 101 Ala. 165, 175; Grund v. Van Vleck, 69 Ill. 478; Titcomb v. James, 57 Ill. App. 296; Van Voorhis v. Brown, 29 App. Div. (N. Y.) 119; Stokes v. Burney, 3 Tex. Civ. App. 219; Abraham v. Hall, 59 Ala. 386; Gwynn v. Duffield, 66 Iowa, 708; 55 Am. Rep. 286. Thus, a partner is not answerable for the trespass of his copartner In wrongfully taking and carrying away the property of a third person, or other wrongful act, committed by the latter without the former's knowledge or assent, and without the scope of the partnership business, especially when there is no proof that he ratified the same by sharing in the fruits of the wrong: Durant v. Rogers, 71 Ill. 121; but if there is proof which shows, or even tends to show, that the property seized and carried away was appropriated to the benefit of the firm, this would fix the liability of such partner: Durant v. Rogers, 87 Ill. 508. If property is conveyed to a firm composed of two persons, to secure a usurious loan of money made by one of the partners, without the other's knowledge, and the loan is made in a state where such loan and conveyance are void by its laws, the transaction cannot be regarded as within the scope and business of the partnership so as to make the ignorant partner answerable, in tort, for the other's violation of law. To make him liable, it must appear that he authorized or ratified the transaction: Graham v. Meyer, 4 Blatchf. 129. If one partner maliciously prosecutes a person for stealing partnership property, the other members of the firm are not answerable unless they are, in fact, privy to the malicious prosecution: Titcomb v. James, 57 Ill. App. 296, 307, and authorities there cited. One partner is not liable to an action for a malicious prosecution for the arrest of a person by his copartner on a charge of larceny from the firm, unless he advised or participated in the arrest. A mere "knowledge and consent" on his part that the arrest should be made will not render him liable: Gilbert v. Emmons, 42 Ill. 143; 89 Am. Dec. 412. If one member of a firm orders the arrest and imprisonment of a person charged with larceny of the firm's property, another partoer who knew nothing about the matter beforehand, and who did not afterward ratify it, is not answerable in an action for false imprisonment: Kirk v. Garrett, 84 Md. 383. A prosecution for larceny for goods stolen from the firm is not within the scope of a mercantile partnership. Hence, one partner cannot be made answerable for the arrest or prosecution of a person by a copartner, on a charge of stealing partnership property, unless he advises, directs, or participates therein, and even then, it has been held, he is liable only in his individual capacity: Marks v. Hastings, 101 Ala. 165, 175. One partner cannot involve another in a trespass unless in the ordinary |