C. A. 1904 v. BAILEY. Collins M.R. out a servant whom he reasonably supposed to be trustworthy to drive the brougham and watch its contents in the traveller's CHESHIRE absence, and he was not bound to do more. That an ordinary contract of bailment of this class does not involve a warranty that the servant shall not turn thief, and so cease to adhibit reasonable care, where the master has devolved the duty of custody on the servant, is clear from the fact that no class of bailee except common carriers and innkeepers are now at common law deemed responsible for the theft of their servants unless such theft was attributable to the negligence of the master. This immunity rests on the combination of two wellestablished factors-(a) that such bailees are only bound to ordinary care; (b) that quâ masters they are not responsible for acts done by their servants outside the scope of their employment. It is not necessary to refer to the authorities in detail which support these propositions. They will be found collected in Coggs v. Bernard (1) and the notes thereto in Smith's Leading Cases. This being, in my view, the law clearly established as the result of many authorities, it remains to consider whether we are bound in this Court to hold the contrary by reason of the case on which Walton J. acted. I have carefully reconsidered that case, and am quite satisfied that the decision is right, and that it does not support the decision under appeal. The short facts there were that the driver of a commercial brougham, hired under similar circumstances, negligently left the brougham unguarded while the traveller was at lunch, and thus gave opportunity to thieves to steal its contents. The negligence of the servant in that case was clearly committed within the scope of his employment, and was therefore negligence for which the master was responsible just as much as if he had elected to watch himself instead of doing it by his servant and had then neglected it in the same manner. The case is reported only in 86 L. T. 796, and I am there reported to have said, "I think that the defendant was under an obligation to use ordinary care in looking after the carriage in Cohen's ". that is, the traveller's-" absence, and that his servant failed (1) (1703) 2 Ld. Raym. 909; 1 Sm. L. C. 11th ed. p. 173. in that respect." This seems to be substantially accurate. The proposition I was combating was that of the judge below, namely, that it was not in the scope of the driver's duty to protect the goods as the servant of the defendant, so that the latter was not liable for negligence in the performance of any duty owed by him; and I am reported to have said, "It is a reasonable and proper inference to draw from the contract, and the circumstances under which it was made, that the defendant undertook to supply a driver who would take ordinary care of the carriage when Cohen was obliged to leave it." Substitute for "who would" in the above sentence "whose business it should be to," and I think it would be verbally accurate. Again, lower down I say, "The very thing contemplated by the obligation on the defendant to take care of the carriage in Cohen's absence was the guarding against the possibility of a thief taking the jewels." I certainly did not intend to hold in that case that the defendant warranted that due care should be taken, though I did hold that he was responsible if his servant, acting in the scope of his employment, did not take it. I regret that any infelicity of language on my part should have misled Walton J. I think that the appeal must be allowed. STIRLING L.J. I agree. I think the implied obligation on the part of the jobmaster, which was held by this Court to exist in the case of Abraham v. Bullock (1), ought, so far as regards the acts of the jobmaster's servants, to be restricted to acts done by them in the course of their employment. For the existence of such limitation the case of Sanderson v. Collins (2) appears to me to be an authority. The head-note is: "The defendant sent his carriage to be repaired by the plaintiff, who was a coachbuilder. The plaintiff lent a carriage of his own to the defendant for use while the repairs were going on. The coachman of the defendant, without his knowledge, took the plaintiff's carriage out for his own purposes, and, while he was driving the carriage, it was injured through his negligence. In an action to recover the cost of repairing it, held, that, as the coachman at the time when the injury was done to the carriage (1) 86 L. T. 796. (2) [1904] 1 K. B. 628. C. A. 1904 CHESHIRE v. BAILEY. Collins M.R. C. A. 1904 CHESHIRE V. BAILEY. Stirling L.J. was not acting in the course of his employment, the defendant was not liable." There are a few observations of Romer L.J. which seem to me to apply to the present case. He says: "It is admitted that, when the arrangement was made between the plaintiff and the defendant, no special contract was made with regard to the obligations to be undertaken by the defendant. What, then, are the obligations that must be implied? Certainly the insurance of the safe return of the carriage is ́not one of them." That applies, with slight verbal alterations, here also. Then he proceeds: "The case is one of an ordinary bailment for mutual benefit, and the defendant as bailee is under an obligation, now well settled in law, by which he was bound to take reasonable care of the chattel entrusted to him, but was not liable for loss or injury which might happen to it during the bailment unless caused by his negligence or that of his servants acting in the course of their employment." Here also the bailment, though of a slightly different nature, is one by which the defendant was bound to take only reasonable care of the chattels entrusted to him, and, in my opinion, was not liable for loss or injury unless caused by his own negligence or that of his servant acting in the course of his employment. Here there was no evidence of any negligence on the part of the defendant; and, as regards the coachman, it seems to me that he ceased to be acting in the course of his employment when he drove away from the spot where the plaintiff's traveller had left the brougham and proceeded to meet his accomplices for the purpose of committing a criminal act. I think, therefore, the appeal ought to be allowed. MATHEW L.J. read the following judgment:-I see no reason to doubt that in a contract of this kind the jobmaster undertakes with the hirer that the coachman will take care to protect the goods in the brougham from damage or depredation. This was the decision of this Court in Abraham v. Bullock. (1) The object of the present action was to establish that the defendant had guaranteed the honesty of his servant, and was therefore responsible for the theft of which the coachman had been (1) 86 L. T. 796. guilty. But I see no ground for the implication of any such undertaking on the part of the defendant. It was not shewn that the plaintiff had informed the defendant that he insisted upon any such liability on the part of the defendant. If he had done so, there seems little reason to doubt that the defendant would have declined to take upon himself without remuneration the obligation of an insurer. The coachman was not such a person as would, in the ordinary course of business, have been entrusted for safe keeping with money or money's worth to the amount of many hundreds of pounds. The true inference from the facts would seem to be that the plaintiff relied for the protection of his property, not upon any contract with the defendant, but upon the strong arm of the criminal law, and the dread which is felt of being brought within its grasp. The plaintiff had no reason to assume that the coachman, in committing a crime, would be acting within the scope of the authority given him by his master, which must be measured by reference to the ordinary duties of a coachman. In the absence of any evidence of a contract the law applicable to the case would seem to be clear. Any departure by the servant for his own purposes from the discharge of his ordinary duties would relieve his master from responsibility, and, from the time that the coachman drove the brougham to the publichouse with the intention of assisting in the theft of the contents, the master ceased to be liable for any loss or damage that followed. The contract between the plaintiff and the defendant must be regarded as having been made on the footing of this well-known rule of the law of master and servant. The defendant is no more liable than he would have been if the brougham and its contents, without negligence on the part of the coachman, had been carried away by a stranger. The authority relied upon by Walton J. is distinguishable from the present case, and I agree that the appeal must be allowed. Appeal allowed. Solicitors for plaintiff: G. F. Hudson, Matthews & Co. E. L. C. A. 1904 CHESHIRE V. BAILEY. Mathew L.J. C. A. 1904 Nov. 30. [IN THE COURT OF APPEAL.] HYMAS v. OGDEN. County Court-Practice-Judgment for Delivery of Specific Chattel— Warrant of Delivery-Wilful Refusal to deliver — Attachment - County Court Rules, 1903, Order xxv., rr. 57, 69. A county court judge has jurisdiction to order a warrant of attachment of a defendant who, in an action for the recovery of a chattel, wilfully refuses to comply with a judgment for the return of the chattel, and this jurisdiction is not affected by the fact that the bailiff to whom a warrant of delivery was issued directing him to seize the chattel, and if it could not be found to distrain the lands and chattels of the defendant, did not, on failure to find the chattel, distrain under the warrant. APPEAL from a judgment of a Divisional Court affirming an order of the judge of the Mansfield County Court. The action was brought against the defendant in the county court claiming the return of the plaintiff's running dog Floss, alleged to be wrongfully detained by the defendant, or 407. its value, and 107. damages for its detention. At the trial judgment was given for the plaintiff. The judgment was drawn up in the following form (see County Court Rules, 1903, Form 292): "Upon the trial of this action at this Court, holden this day, it is adjudged that the plaintiff do recover against the defendant the following goods and chattels of the plaintiff wrongfully detained by the defendant-that is to say, the plaintiff's running dog Floss, and also costs. And it is ordered that the defendant do return the said dog to the plaintiff within seven days from this date, and that in default of his so doing a warrant of delivery do issue." The dog was not delivered up by the defendant within the seven days, and a warrant of delivery was issued. The warrant of delivery, which was in the ordinary form (see County Court Rules, 1903, Form 293), after reciting the judgment and that the defendant had not returned the dog to the plaintiff, directed the bailiff "forthwith to seize the said goods and chattels so not returned as aforesaid, wheresoever they may be found within the district of this Court, and to deliver the same to the plaintiff. And if |