trial, in an action for slander, upon the ground that there v evidence that Dunn

obtaining advertisements for insertion in country newspapers. D., a can- May 10.

neerning the plaintiff, and the contract he had entered into with B. S., n hearing of the slanders, interviewed B., and other persons to whom D. made similar statements concerning the plaintiff, and explained that D. said more than he had any authority to say, and that he had "bungled he matter." 'The plaintiff sued the defendant company for slander. D. was called as a witness.

Held, that there was no evidence that the uttering of the slanders was ithin the scope of D.'s authority and employment so as to render the

New Sour Wates CountTRY Press Co- OPERATIVE Co. Lrp. w Srewarr.

Decision of the Supreme Court, Stewart v. New South Wales Counti Co-operative Co. Ltd., 10 S.R. (N.S.W.), 747; 27 W.N. (N.S.W.

AppgaL by the defendants from the decision of the Sup Court discharging a rule nisi to enter a nonsuit, or for a ne trial, in an action for slander, upon the ground that there v evidence that Dunn (who uttered the slander) was in the ser of the defendants at the time the slander was uttered, or that | was acting within the scope of any employment, and upon ground of the wrongful admission of evidence of conversati between Dunn and the persons he interviewed, and of conver tions between Shakespeare (the defendant's manager), and ce tain of the plaintiff's witnesses. -

The plaintiff was a printer, and portion of his business sisted in obtaining advertisements for publication in news, circulating in the country. Contracts were made by the plait with his customers specifying the number of papers in wl the advertisements were to appear. The plaintiff then sent advertisements to the country newspapers for publicatio: printed them on a sheet which he then sent to the various ne papers in the country with whom he had an agreement for t) publication, and the sheets were then issued by the newspaj as a supplement to their papers.

The defendant company was engaged, in competition with plaintiff, in obtaining advertisements for insertion in the cow papers. The Country Press Association, with which the deft ant company was associated, controlled some 80 country ni papers, and the Association bound themselves not to ree advertisements from any agents except Gordon & Goteh, and the defendant company. One Shakespeare was secretary the Association and also of the defendant company.

Dunn entered the service of the defendant company as vasser on 25th November 1909, but was discharged on January 1910, before the slander in question was uttered. A he had left this employment he still continued canvassing advertisements on his own account, and was paid a comm by the persons to whom he brought advertisements. At the

eare, and said that, while he was canvassing for the and Settler at Sir John See & Co., Brakespeare, their r, told him that two persons had called, and tried to get firm to advertise in a supplement proposition; that they ad him 40 papers, while they only proposed to charge for 25. asked Shakespeare whether any firm could get 40 supple- its into the country papers. Shakespeare said it was highly 'obable any firm in Sydney could do that on a supplement sal, and it would be interesting to see the contract. Dunn "when I am canvassing along Sussex Street I will try and you one." Dunn then went to a man named Boylson, a ission agent and produce broker in Sussex Street, and ided him a card on which was printed "representing the New ch Wales Country Press Co-operative Company." Boylson said had a contract with the plaintiff for advertising in country spapers, and Dunn then uttered the slander complained of as ws :- - " Stewart & Co, have a bogus list of papers, and cannot hat they say they can do with the supplements. They 'ot give you the number of papers they say they can. Four he papers, the Moss Vale Record, the Robertson Advocate, the gong Bepress, and the Southern Mail are one paper, and y call it different names. The Country Press Co. have an metion against them, and are going to put it in force. You

ve what I say I will pay the cost of your advertising." Dunn yunridge, Boylson's clerk, then went to the plaintifi's office obtained a copy of Boylson's contract. They then went to defendant company's office and saw Shakespeare, and showed the contract. Shakespeare ticked off a number of the papers list at the back of the contract, and said the plaintiff could vertise in these papers, as these papers had a contract with defendant company. Dunn afterwards visited a number of vr persons who had contracts with the plaintiff, and made ww statements regarding the plaintiffs right to advertise. me cases Dunn said he was acting under Shakespeare's ictions. Shakespeare did not know of the statements made by Dunn until he received a letter from the plaintiff's solicitors lith February. He then went to Boylson and told him that

New Soura Wates CounTRY Press Co- OPERATIVE Co. Lrp, v Srewart,

etter break your contract with Stewart & Co. If I cannot _

New Sourn Wates CounTRY Press Co- OPERATIVE Co, Lrp. vw Srewarr,

Dunn had no authority to make the statements he had mi After issue of the writ he also interviewed some of the o persons to whom Dunn had spoken. In these conversations h said that Dunn was perhaps over enthusiastic, and had done

evidence of these conversations was objected to. Dunn was) called as a witness.

At the close of the plaintiff's case a nonsuit was moved for refused, and the jury found a verdict for the plaintiff for £2: The Supreme Court refused to set this verdict aside (1).

Wise K.C., Loxton, K.C., James, and J. A. Ferguson, for appellants. Dunn had no authority to utter slanders on behalf the defendants. He was only authorized to obtain a copy Boylson's contract for Shakespeare. This is at the most a ca of special authority, and it is for the plaintiff to show what tl nature of the employment was, or the limits of the agen authority, in order to prove that it was within the scope of authority to bind the defendants by the slanders he utter This case is not governed by Citizens' Life Assurance Co. Lt Brown (2). In that case the company was held liable for acts of a person holding a high and responsible position in th service. Dunn was not in the defendants' employment, there is no evidence that the defendants placed him in their pla to do acts of the class complained of : Bunk of New South Wal v. Owston (3); Mackay v. Commerial Bank of New Bruns (4); Abrahams v. Deakin (5); Hanson v. Waller (6); Swi Francis (7). 4

It was not within the scope of Shakespeare's authorit) make admissions as to the defendants' liability for past tr actions: Gurth v. Howard (8); Great Western Railway O Willis (9); Bowstead on Agency, 4th ed., p. 151; Barnett South London Tramways Co. (10).

(1) 108.R. (N.S. (6) (1901) 1 K.B., 390. (2) (1904) A.C. (7) 3 App. Cas., 106, at p. 113. (3) 4 App Cas., 270, at p. 288. (8) 8 Bing., 451.

(4) LR. 5 P.C., 394. % (95 18 C.B.N.S., 748. (5) (1891) 1 Q.B., 516. (10) 18 Q.B.D., 815.

GrirFITa OJ. referred to Packet Co. v. Clough (1). H. pis A.

ilcher K.C., Blacket, and Edwards, for the respondent. New sourn

Shia 4 Z a i Wates akespeare received information from Dunn as to a rival firm (Ath

aching on the defendants' sphere of operations, and em- Press Co- VE d Dunn to thoroughly investigate the matter, and find out Ook

1at the rivals were doing. He had authority to appoint Dunn 2

id it necessary to make the alleged statements, the defendants liable. They were uttered by Dunn as Shakespeare's mouth-

furthering the employment upon which he was engaged, that 0 secure advertisements by disparaging rival traders: Bar- ck v. English Joint Stock Bank (2). There need not be an ex- ss command or privity of the employer: Dyer v. Munday (8). is case comes within the principle of liability laid down by Privy Council in Citizens' Life Assurance Oo. Ltd. v. Brown

• The statements made by Shakespeare were admissible against defendants: Kirkstall Brewery Oo. vy. Furness Railway Co.

_ Lowton K.C. in reply, referred to Lucas v. Mason (6).

The following judgments were read : - GrirrirH C.J. This was an action for damages for slander - May 10. ittered by one Dunn, who is alleged by the respondent to have

een, at the date of publication, employed by the appellants under

ich circumstances as to render them responsible for his utter-

nees. The appellants are a joint stock company carrying on the

usiness of advertising agents in connection with country news-

ers, to which they also supply a common supplement. The spondent is a rival advertising agent, trading as McCarron,

U.S., 528, (4) (1904) A. R. 2 LR. 2 Ex., 259, (5) LR. 9 Q.B., 468. (1895) 1 Q.B., 742. (6) LR. 10 Ex, 251.

New Souta Wates Country Press Co- OPERATIVE Co, Lrp. v. Srewarr.

Stewart & Co. The only question for determination is wl the appellants are responsible for Dunn's slanderous statem The learned Judges of the Supreme Court apparently thou; that the case fell within the rule laid down in Citizens' L Assurance Co. v. Brown (1), in which Lord Lindley, deliver the opinion of the Judicial Committee (in 1904), quoted approval the words of Acting Chief Justice Stephen: " Althor the particular act which gives the cause of action may not authorized, still if the act is done in the course of employn which is authorized, then the master is liable for the act of servant." The phrase "in the course of employment" is not from ambiguity, as has become only too manifest since 1904, the sense in which the learned Lord used it was made clear by ot parts of the opinion. He had just before said (2) : - " It is clear the scope of Fitzpatrick's authority and employment was wi and by no means clearly defined. In considering the scope of hi authority and employment their Lordships agree with the Ac Chief Justice in thinking that the jury were entitled to act their own knowledge of Colonial business and habits." TI quoting the words which I have read, and referring to some he added : - " Such being the evidence, their Lordships cann judicially hold that there was no evidence to warrant the jury finding that it was within the scope of Fitzpatrick's authorit and employment to write," &. The real question, then, whether the act complained of was within the scope of authority and employment of the alleged servant or ag The reasons and the limits of the rule are, if I may respect! say so, well expressed by Willes J. in the case of Bayle; ; Manchester, Sheffield, and Lincolnshire Railway Co. (3), qu by Rigby LJ. in Dyer v. Munday (4): - " A person who another in his place to do a class of acts in his absence nece: leaves him to determine, acdording to the circumstances arise, when an act of that class is to be done, and trusts him the manner in which it is done; and consequently he is answerable for the wrong of the person so entrusted either in manner of doing such an act, or in doing such an act unt

(1) (1904) A.C., 423, at p. 428, (3) L.R. 7 C.P., 415, at p. 420. (2) (1904) A.C., 423, at p. 427. (4) (1895) 1 Q.B., 742, at p. 748.

in which it ought not to have been done; provided what was done was done, not from any caprice of the but in the course of the employment." Rigby LJ. : - "The class of acts to be done by the manager the resumption of furniture . . . and it was left to him to ermine when such an act should be done and the manner in it should be done." is apparent, therefore, that the first step in the present case to show what was the scope of the authority and employ- nt of Dunn; and the burden of proof was on the plaintiff. nn was not called as a witness. It was proved that he had n employed by the defendants as a canvasser for advertise- nts under a written engagement from 26th November 1909 to January 1910, when the engagement was terminated on the und of the defendants' dissatisfaction with his efforts. The words complained of were uttered about the end of puary or beginning of February in the course of interviews tween Junn and two persons named Mulholland and Boylson, connection with requests to supply him with copies of adver- tising contracts said to have been made by plaintiff with them respectively. The only direct evidence as to the nature of Dunn's employ- ent. by defendants at that time was given by defendants' manager Shakespeare in the course of the defendants' case. He josed that, on a day between 6th January and 14th February, ann called upon him and told him that another advertising firm re offering advantages to advertisers in a supplement supplied many as 40 country newspapers, to which Shakespeare ied that it was highly improbable that any firm in Sydney could do so, and that it would be interesting to see the contract, that Dunn then said " Well, when I am canvassing Sussex 'St eet, I will try and get you one." If there were no more in e case the plaintiff would plainly have failed to show that the defendants were liable for Dunn's statements. _ He had, however, in his own case endeavoured to show the scope of Dunn's authority and employment. Evidence was given hat on two occasions, one at the end of February and the other

New Sour 'WALES CouNTRY Press Co- OPERATIVE Co. Lr. ».

New Sourn 'Wates CountRY Press Co- OPERATIVE Co. Lrp. vw Srewarr.

the defendants' employment, they had accepted an order for advertisements through his agency. As to this Shakespeare that his company accepted from any persons orders which thi considered satisfactory. This was not questioned. I do think that it can be inferred from these facts that Dunn was the times in question in defendants' employment in any releva sense of the word.

Evidence was also offered of admissions said to have been ma by Shakespeare after the publication. This evidence ws objected to, but I will deal with it on the assumption that it admissible. Mulholland, who was a witness for the plaintiff, that Shakespeare called at his office early in May and asked Dunn had called on him and what he had said. The wit proceeded : - "T told him that Dunn had called at the office an had asked me was I advertising with McCarron, Stewart and hai asked me to show the contract; I asked him who he was and he said it did not matter; I said ' Well I won't discuss the matte with you until you tell me who you are, and who you are repr senting. He then produced his card, which I think is the card produced. I did not show this card to Mr. Shakespeare then, but I told him that Dunn had produced a card and that Di then told me that these people could not carry out their contr: and he asked me for my contract, but I did not have it because had never had it given back to me. Dunn produced a bl contract with Stewart and showed me the list of papers on th back and said that McCarron, Stewart could not advertise it those papers because they had an injunction against them which prevented them from advertising in those country papers. He also pointed out four papers and said they were all one ; he men tioned the Mittagong, Moss Vale, Robertson and another pape

pay them. In fact he said he would guarantee to pay the account for me if they could prove they carried out their con- tract, if they forced me. I told Mr. Shakespeare that, and he said that Mr. Dunn was evidently over enthusiastic and had bungled the matter. He said they were there to protect th interests of honest traders, and that they did the whole of th: country advertising, and they were there to save honest traders

n being taken down. A lot passed between us, but I can't collect anything at the moment. He apologized for the trouble fr. Dunn had put me to, and then he left." 'The words relied on as an admission are " He said that Dunn was evidently over enthusiastic and had bungled the matter." I annot find in these words anything to show that the scope of ann's authority and employment was such as to empower him 0 say anything he thought fit in disparagement of plaintiff, wi le endeavouring to obtain a copy of plaintiff's contract with holland. The utmost that can be inferred from them is. that shakespeare had authorized him to ask for a copy of the contract. Another witness, Caldicott, deposed that at Shakespeare's re- est he had an interview with him towards the end of February, _ when Shakespeare asked him about a conversation which he had d with Dunn, and that he told him substantially what Dunn d said, which he narrated as follows :- - _ Dunn said " We claim that McCarron, Stewart & Co. cannot insert Smith's advertisement in all those papers named on the back of their 'contract' The copy of the contract which he produced to me had certain of the papers marked with a red dot, nd he said ' we claim that they cannot insert that advertisement in those papers marked with the red dot.' On the list I saw that ie Walcha Witness was marked. I immediately picked up the alcha Witness with Smith & Co.'s advertisement in it and I said 'how do you account for this; here is the Walcha. Witness with the advertisement in it' He said 'well of course this list was marked from' memory; it has not been checked.' I said 'that's a very peculiar thing for you to do; you are doing a very serious thing in going about making a statement like that; you ought to verify your references and get your facts in order before : you do a thing like this' He said 'well, of course I am only 4 doing what Mr. Shakespeare told me to do.' "Tcannot say whether I told Mr. Shakespeare that, but I believe _ that I told Shakespeare all that occurred in the office. : "T am not at all clear as to what I told Shakespeare. He asked me what had occurred in my office, and so far as I know I told him everything that occurred in the office. That is all I remember telling him. Vor. xn, 4

New Sours Wates Country Press Co- OPERATIVE Co Lrp. cm Srewarr.

New South Wates CounTRY Press Co- OPERATIVE Co. Lrp. v. Stewart.

" Shakespeare then told me that Dunn had not had the autho 4 of the Country Press Co. to make the statements he had made "I was rather angry because Dunn had gone to my client, Mi Smith, without comiag to me. Mr. Shakespeare knew Smith was my client, and I spoke to him about that. I rememb Shakespeare saying that Dunn was perhaps over enthusi and that he had done more than he had been told to do, or more than he had any authority to say. "Q. Did he say anything about where Dunn was over enth astic. A. Yes, in Sussex Street. He told me he had sent Dun down to Sussex Street as the representative of some of thi papers to make certain statements. He said that certain of th papers on this list were their papers and the proprietors of them were members of the Country Press Company, and he told m he had sent him down there as representing those papers. Country Press Company is the defendant company." Upon this evidence the learned Chief Justice remarks (1): the jury believed that Dunn was sent down to interview pers and protect the interests of newspaper proprietors who wi shareholders in the company, the conclusion would be corr: enough that the man was doing the company's work, assumin; that Shakespeare had authority from the company to so emp! him. I only read that witness's evidence, but putting it side b side with that of other witnesses, it seems to me that there evidence from which the jury could find that Shakespeare s Dunn down to interview these people in Sussex Street on business of the company." I agree that in the case put the conclusion that Dunn doing the company's work would in one sense be correct. I agree that it might be inferred that he was sent to intervi people on the business of the company, using that expression the sense of "some business of the company " as distingui from the "business of the company in general," that b being to make certain statements, of which we know nothii But I fail to find in the evidence anything to show that he more than a special and limited authority, or to adopt the word: Willes J. and Rigby L.J., anything to show that he had autho (1) 10S.R. (N.S.W.), 747, at p. 755.

to do a class of acts and that it was left to him to determine the

manner in which they should be done. The difference between a special and a general authority does not need exposition. I think that the employer of a special agent may fairly be held responsible for all such acts as the latter may reasonably be expected to do in carrying out his mandate. But I do not think that the uttering of promiscuous slander is such an act. There was no other material evidence on the point.

In my opinion there was no evidence upon which the jury could properly find that the uttering of the slanders complained of was within the scope of Dunn's authority and employment, or that they were uttered in the course of his employment in the only relevant sense of that term.

It was contended for the defendants that Shakespeare's state- ments as to his own previous acts alleged to be done on their behalf were not admissible in evidence against them. On this point I accept the rule laid down by the Supreme Court of the United States in Packet Oo. v. Clough (1) "Declarations of an agent are, doubtless, in some cases, admissible against his principal, but only so far as he had authority to make them, and authority to make them is not necessarily to be inferred from power given to do certain acts.

"Tt is true that whatever the agent does in the lawful prosecu- tion of the business intrusted to him is the act of the principal, and the rule is well stated by Mr. Justice Story that 'where the acts of the agent will bind the principal, there his representations, declarations and admissions respecting the subject matter will also bind him, if made at the sume time, and constituting part of the res gestae.' A close attention to this rule, which is of universal acceptance, will solve almost every difficulty. But an act done by an agent cannot be varied, qualified or explained, either by his declarations, which amount to no more than a mere narrative of the past occurrence, or by an isolated conversation held, or an isolated act done at a later period. . . . The reason is that the agent to do the act is not authorized to narrate what he had done or how he had done it, and his declaration is no part of the res gestae."

New SoutH WALES CountTRY Press Co- OPERATIVE Co. Lrp. v. Srewarr.

New Sour Waters CounTRY Press Co- OPERATIVE Co. Lrp. » Stewart.

Whether a conversation between an agent and a third on the subject of a claim made by the third person against principal (evidence of which is probably admissible for s purposes) can be regarded as res gestae within the meant this rule, so that statements made by the agent in the course the conversation as to his own antecedent acts should be hel constitute part of the ves gestae, is a question of some diffi which may depend upon the facts of the particular case, upon which I reserve my opinion.

For, even assuming that the evidence objected to was admissibl as evidence of statements made on defendant's behalf, I th for the reasons which I have given, that Shakespeare's ste ments did not show that it was within the scope of Di authority and employment to utter the slanders complained

In my opinion, therefore, the rule should have been m absolute to enter a nonsuit, and the appeal should be allower

Barton J. It was not disputed on the appeal that Dunn, alleged agent of the defendants (now appellants), had uttere slanders complained of. The appellants deny that Dunn the time an agent of theirs, and if the Court thinks that he then they deny that they are answerable for the slanders, be they say that if he was employed at all it was for a special pose, and the uttering of the slanders was not within the of that employment. By letter from the manager, dated November 1909, Dunn was appointed by the Board of the ap lant company as a canvasser for advertisements, to be inserte' newspapers included in their agency, and his duties began o1 29th of that month. It appears that the directors were "nol impressed with the result" of his efforts, and accordingly manager dismissed him by letter of 5th January 1910. ' letter was put in evidence for the defendant company, but il been elicited in the course of the plaintiff's case that D employment ceased "early in January." If the slanders been published while he held his appointment under the comp: the respondent's case would have been very strong. A per: employed as a canvasser, as Dunn then was, would be expe by his employers to extol their business as a medium for ady

urably with rival concerns such as that of the respondent.

canvassing would necessarily be left by his employers to his judgment, and therefore they would be responsible if in the 'se of doing so he defamed a rival concern and thus exceeded authority, which did not extend to the doing of actionable rongs to others. In Dyer v.. Munday (1), Lord Esher M.R. The liability of the master does not rest merely on the ion of authority, because the authority given is generally lo the master's business rightly; but the law says that if, n course of carrying out his employment, the servant commits e ess beyond the scope of his authority, the master is liable." the case of an excess (an assault) committed by the f a branch of the defendant's business, the sale of fur- yn the hire-purchase system, in the course of resuming m of furniture on which an instalment was in arrear. ' eld that the jury were justified in finding that the excess, 1ough of course not authorized, had been committed in the se of the manager's employment, that is, in the course of within the scope of his authority. As Willes J. said in v. English Joint Stock Bank, in the Exchequer Cham- (2): - " In all these cases it may be said, as it was said here, , the master had not authorized the act. It is true, he has not ed 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 ich the agent has conducted himself in doing the business hich it was the act of his master to place him in." It is upon is principle that the case of Citizens' Life Insurance Co. v. 1 (3) was decided. But the considerations are not quite the , a8 I shall endeavour to show presently, where the authority imited in extent and special as to occasion, and where it does not sanction the performance of a whole class of duties in the execu- of which necessity must arise for the exercise of judgment on part of the person authorized, in the absence of the employer.

895. 1Q.B., 742, at p. 746. (2) LR, 2 Ex., 259, at p. 266. (8) (1904) A.C., 423,

, and to endeavour to attract custom by comparing it H.C. oF A.

choice of the terms in which he described similar enterprises New Sourm he view of showing the superiority of that for which he"

WaLes CountTRY Press Co- OPERATIVE Co. Lrp. v Srewarrt.

H.C.or A. In the present case, however, the slanders were uttered | 1911. the dismissal of the person who spoke them from his employ: y Sore a8 canvasser for the company. Some weeks after that e

eee, namely, on the 17th February and the 18th March respectiy Prrss Co- Dunn brought to the appellants' manager two advertisements

ae insertion in the newspapers controlled by the appellants. He ha Srewanr, 1Ot in the interval been employed by them as a canvasser, nor he been authorized to seek the advertisements in question, but I had brought them "as a free lance," as other people who advertisements are wont to do, and it appears that a percen is ordinarily paid to anyone who brings in such an order. I< not think the mere acceptance of these orders can be argued have involved the company in any responsibility for the sland supposing them to have been published in the act of obtaining orders. But, on the evidence for the respondent, the slanders t¢ place before even these orders were obtained by Dunn, and it not to be concluded, from the mere fact of his afterwards brit them to the appellant company, that between his dismissal a

that time he was in any sense their agent or servant. If the c rested there, clearly the respondent would have failed for want proof of authority. He was therefore bound to show that at the time of the slanders Dunn was in the employment of the ay lants either generally, or for the transaction of some cla matters, or of some particular matter, and that the slanders within the scope of the authority expressly given or proj inferred from the nature of the employment and its cours almost a truism to say that the difficulty of showing that p ticular excesses are within the scope of authority increases proportion as the authority proved is more restricted. 'There was no direct evidence to show that Dunn was in sense employed by the appellants at the time of the slande for clearly his own representations to third persons were not dence of such a fact. But the case for the respondent rested this regard on the admissions said to have been made by appellants' manager and secretary, Mr. Shakespeare. In resp: of these, two questions arose: First, whether they were sible, and secondly, whether, if admissible, they were evidence

were rightly admitted, because, in my opinion, their admis- n did not make the respondent's case sufficient to go to the -y, since, even after their inclusion, his case was one upon which jury could not reasonably find in his favour. In that view, it ows that the question of admissibility is immaterial, as the msuit asked for at the trial ought to have been granted, not- nding the conversations. The question of admissibility is ly arguable, and I do not pronounce an opinion upon it for reason given.

suming them to have been evidence, I think the conversa- contained some admissions by Shakespeare of an authority to Dunn, and existing at the time of the slanders, to do ing for the appellant company. I do not include the con- on with Johnson "in the second or third week of Feb-

d as to the first week in March. As a matter of fact Dunn mployed on a salary and commission as canvasser for the , of which Johnson was the advertising manager, at the time ooth these colloquies. But there is something more material e evidence of Caldicott, who testifies that towards the end

espeare. But it is clear that Dunn had made statements to witness which were equivalent to some of the slanders com- ined of. Caldicott says that Shakespeare, on hearing of them, aid that Dunn "had not had the authority of the company to make the statements he had made" ; that he " was perhaps over shusiastic, and that he had done more than he had been told to r "said more than he had any authority to say"; that "he sent Dunn down into Sussex Street as the representative of ome of these papers to make certain statements " ; that " certain f the papers on this list " (meaning a list appended to the form

employment, and of an authority sufficient in its scope to import H. C. or A.

Ido not deem it necessary to decide whether these conversa- New Sourx

WALES CounTRY Press Co- OPERATIVE Co, Lrp, vw Srewarr.

New Sours Wates CountTRY Press Co- OPERATIVE Co. Lap. v Srewarr.

of contract used by the respondent) " were their papers, and proprietors of them were members of the Country Press Co.' that he had sent Dunn down there as representing "certs papers whose proprietors were the members of the Co Press Co." is While the jury might well conclude from this evidence that Shakespeare's admission Dunn had been sent by him ton certain statements, yet it also appears that.his authority limited to the duty of making the statements, the natur which is not shown by the respondent. The remaining conversation, that with Mulholland, took I early in May, after action brought, when Shakespeare was ac panied by his company's solicitor. In response to inquivie Shakespeare, Mulholland related a slander upon the respond firm, uttered by Dunn to him, and which has already detailed. He also stated that Dunn, before uttering the sla had asked him (Mulholland) to show him an advertising con that he had with the respondent. On this narrative Shake: said that "Mr. Dunn was evidently over enthusiastic and bungled the matter"; that they, the company, "were the protect the interests of honest traders, that they did the whol the country advertising, that they were there to save traders from being taken down." Before leaving, Shake apologized for the trouble to which Dunn had put the witne Here again is evidence of some authority given to Dunn. | precise nature is left to inference, and it may be inferred | Dunn had acted within it in asking Mulholland to show hii witness's contract with the respondent. It cannot howeve inferred,sany more than in the case of Caldicott, that he ha authority to "do a class of acts" in the doing of which he necessarily "left to determine, according to the circumsta that arise, when an act of that class is to be done" (See Willes J. in Bayley v. Manchester, Sheffield, and Lincolnsi Railway Co. (1). There is no evidence that Dunn was sent Caldicott with any authority to do more than to make ¢ statements, of which the respondent does not prove the natur or that he was sent to Mulholland to do more than endeavour

cure a sight - or perhaps a copy - of an advertising contract. n these circumstances, can the slanders be deemed to be within scope of the authority given to Dunn in either instance ? it be said that the slanders were "in the course of carrying ut his employment," as Lord Esher puts it ? "Among the many decisions on the question of the responsibility of principals, since Barwick's and Bayley's Cases, the case of jucus v. Mason (1) may usefully be referred to. The reasoning rds, I think, a discrimen for the present question. The plain- "was present in the gallery of a hall where there was a meeting ivened by members of an association. The defendant acted as irman. Some disturbance occurred in the gallery near the intiff, but he did not join in it. The defendant said : - * I shall obliged to bring those men to the front who are making the arbance. Bring those men to the front." Thereupon a man a white ribbon on his arm (apparently a steward authorized ssist in keeping order) together with two policemen, seized plaintiff and dragged him to the front, and he was injured. e was no evidence that the defendant had given any instruc- as to keeping order to the plaintiff's assailants before the It. The plaintiff was nonsuited, and the Court of Exchequer camwell, Cleasby and Pollock BB.) refused to set the nonsuit They held that the evidence did not show that the defend- s order meant " Determine who are the disturbers, and when ave done so, bring forward those whom you so determine to he disturbers." 'The evidence did not appear to them to show authority to bring forward any persons other than the actual urbers. After stating the law in terms equivalent to those used Willes J. in Bayley's and Barwick's Cuses, they said (2) : - 'is rule holds especially where the master is absent, and the to be performed vicariously is general in character, as in the £ conductors of public vehicles, railway servants, and the "Jn the present case there was no relation of aster and servant, or of principal and general agent, or agent such cases as might occur in the absence of the principal, but particular direction as to a particular matter, and this, in our idgment, not only prevents the decisions referred to binding (1) LB, 10 Ex., 251. * (2) LR. 10 Ex., 251, at p. 253.

'New Sovt! Wates CounTRY Press Ce. OPERATIVE Co, Lip, o Srewarr.

1 in common with the present case, that the cardinal feature

us as authorities, but makes them inapplicable in princi Although in that case the principal was present, yet it has

"the particular direction as to a particular matter,' and the of the judgment shows that feature as the ratio decidendi. judgment proceeds : - "In the case of master and servant, character and duties attaching to the employment are known defined beforehand, the servant who is to perform them is selee accordingly. In the present case no such relationship existed the first instance, nor did it arise during the transaction. . . There is no such pre-existing relationship as exists in the of master and servant, and there is, we think, no ground

terms." That is precisely such an authority as I conceiyi have existed in the case of Dunn. The Court concluded expressing the opinion that there was not any evidence should have been submitted to the jury of a general or impl authority going beyond the limit of that which was created the express words used, or of any authority, to the pe ordered to bring the disturbers forward, to exercise a discre as to who were disturbers.

Holding, then, that an authority existed, but that it expressly limited to the performance of a single act and not class of acts,and that it did not import or imply such a disere as would necessarily attend a general or extensive authority, Court held that the principal was not responsible as for an which merely exceeded the limits of the discretion given. withstanding that in Lucas v. Mason (1) the principal present when the act complained of was done, I am of opini that that fact does not hinder the application of the reasonin; the Court to the present case.

I think, therefore, that the slanders of Dunn were not within the scope and in the course of any employment proy upon the respondent's case.

It remains to consider whether there is anything in the evidence given for the defence to make the respondent's cas good, so that a nonsuit could not now be ordered.

'ter carefully considering the evidence of Shakespeare, who the only witness for the defence on the sole material ques- n, I am unable to point to any part of it which proves or tends prove amore general authority than that which is to be col- lected from the evidence for the respondent. Indeed I doubt whether the authority to which Shakespeare deposes is not imited to the mere matter of obtaining a copy of the contract h, according to Dunn, was being offered by another firm. If, , as I think, the respondent failed to prove his case, it seems ar that it was not reinforced by any part of the appellant mpany's defence.

m of opinion, therefore, that the appeal should be allowed,

O'Connor J. The appellant company and the respondent were rtisement agents in the same line of business, and there was usly keen competition between them. The defamatory ments charged in the declaration were made to two of the pondent's customers, and they were made, not by the manager by any servant of the appellant company, but by a person ned Dunn whom the manager, Shakespeare, had employed to y out a particular duty. The grounds of appeal involved in stance two questions. First, whether Dunn had authority to d the appellant company in making the statements complained f. Secondly, whether certain conversations were admissible in idence - conversations which took place between Shakespeare nd other persons after the uttering of the defamatory words, in the course of which it was claimed that Shakespeare had ade admissions material in determining the scope of Dunn's authority. I shall deal with the latter ground first as it in- volves the whole question of Shakespeare's authority to bind the company.

_ The general principles of law to be applied, in determining when a principal is liable for a wrong committed by his agent while aged in the principal's business, are well stated in Lord Justice indley's judgment in Citizens' Life Assurance Co. v. Brown and the cases therein cited by him. He adopts as correct the (1) (1904) A.C., 423, at p. 428.

New Sourn Waters CounTRY Press Co- OPERATIVE Co, Lrp. 2. SrEwart-

New Sours Wates Country Press Co- OPERATIVE Co. Lrp, v Srewarr,

following statement of Mr. Acting Chief Justice Stephen in Court below : -

may not be authorized, still if the act is done in the course employment which is authorized, then the master is liable for act of his servant." To ascertain whether a thing is done or said "in the course an employment which is authorized" must depend primar upon the scope of the employment, in other words, upon what principal has employed the agent to do. Having ascertained what the agent is employed to do, it may be taken that he | authority to do and say everything which may reasonably deemed necessary for effectively carrying out the duty on wh he is employed. Moreover within these limits it will generall be taken that he has been allowed by his principal a diser as to the manner in which he will discharge his duties. ' In Barwick v. English Joint Stock Bank (1), cited by 3 Justice Lindley in the judgment to which I have referred, _ Justice Willes illustrates that position. After giving instances cases in which principals have been held liable for wrongs coi mitted by agents in the course of their employment he sa; "Tn all these cases it may be said, as it was said here, that master has not authorized the act. It is true, he has r authorized the particular act, but he has put the agent in place to do that class of acts, and he must be answerable for { manner in which the agent has conducted himself in doing business which it was the act of the master to place him in." _ The determination of what the principal has appointed tl agent to do, in other words, the scope of the agent's authori rests in most cases upon inferences to be drawn from the relev circumstances, and the jury in drawing inferences are entitled act on their knowledge of business and of business methods. this connection I may refer to the distinction between the prool required in determining what is the scope of a general agen authority, and that required in determining what is the author' of aspecial agent. The distinction is founded in the differ state of facts from which in each case the inference of authori (1) LR. 2 Bx., 259, at p, 266.

to be drawn. It is explained in Bank of New South Wales v. H. ©. or A.

ston (1), and was properly neice' on by Mr. Lowton, in con- es

New Sovura WaLEs CounTRY Press Co- OPERATIVE Co. Lrp. v SrEwarr.

their own from Sint the manager may deem unfair tia ne SUE

authority must be implied in discharging this part of his duty o exercise his discretion as to what methods of criticism and

defence he will adopt. = is : He may, for instance, comment on the rival company's conduct,

nd, if in doing so he makes false and defamatory statements, the "company will be liable. That was the kind of liability which in Citizens' Life Asswrance Oo. v. Brown (2) the Privy Council id that the company in that case had incurred. There can be no doubt therefore that if Shakespeare had interviewed the spondent's customers, and had himself made the libellous state- ments which Dunn is charged with making, the company would we been liable for what he said. It follows that, when the _ respondent afterwards complained to the company of Dunn's defamatory statements, it was within the ordinary scope of Shakespeare's employment to inquire from the respondent's cus- fomers to whom Dunn had made the statements, or from any

• other persons who could throw light on the matter, what it was _ that Dunn had said, and generally to ascertain the merits of the

• complaint and to safeguard the company's interests in the matter. a jury might very well find it to be within the scope of the manager's business at those interviews to explain Dunn's real position and the limitations of his authority. There can be no doubt therefore that those conversations were properly admitted in evidence.

A question was vaised as to whether statements alleged to have been made by Shakespeare, in the course of those conversa- tions, admitting authority in Dunn to discuss the subject matter +, Q) a-App, Cas., 270. f (2) (1904)/A.C., 423.

New Sourn Wates CounTRY Press Co- OPERATIVE Co. Lrp. w Srewarr,

of the alleged slanders, could be used as admissions agai the company. I think it unnecessary to determine the poi because after a careful examination of the evidence I am unable to see anything in those conversations which could afford a j reasonable ground for finding that Shakespeare had expressly or by implication made any such admission. Expressions app to have been used by him from which it might be fairly infe that he had expected Dunn to make some statement on the sul ject of the contract to the person from whom he was to obtain it, but there is nothing in the expressions to justify the furtl inference of an admission that he had authorized Dunn to men- tion the matters which were the subject of the alleged sland While therefore I agree that the conversations were rightly admitted, I am of opinion that they afford no evidence whatever that Shakespeare had expressly or impliedly authorized Dunn to bind the company in making the defamatory statements com: plained of.

Turning now to the other ground of appeal, it becomes nec sary to inquire whether there was any evidence from which the jury could reasonably infer that Dunn in making the defamatory statements acted as the company's agent. It must, I think, be E conceded that Shakespeare might if he had thought fit have employed Dunn to make any statements which he himself could - make. But in that case it would be necessary to prove th authority expressly, or give evidence from which special authority to make the statement might be reasonably inferred. The only - evidence on the point is that Shakespeare employed Dunn to 3 obtain for his information, from one or more of the respondent's - customers, one of the contracts which 'the respondent had entered - into. The respondent was bound to prove that it was within the scope of that employment that Dunn should make statements to those customers as to the respondent's methods in obtaining and carrying out such contracts. I am unable to see how anyone | could reasonably suppose that the obtaining of those documents necessitated any statement with reference to the respondent's methods of business. Even if full effect is given to Mr. Blacket's argument that Dunn must be taken to have had authority to mal such statements as would make his request for a loan of the

documents appear reasonable, such an authority could not reasonably be interpreted as authorizing him to make statements as to the respondent's power to enter into certain advertising contracts, or his power or intention to fulfil them when made. 'The argument however most relied on by respondent's counsel was that Dunn was employed as a canvasser for advertisements to obtain the documents, and that it was within the scope of such employment to make the statements complained of. It may be, no doubt, that criticism of competing advertiser's business methods is an ordinary part of a canvasser's business, and that if Dunn had been employed to get the document in the course of a canvass, authority to make statements about the respondent's business methods might fairly be inferred, and if at the time he was sent on this duty Dunn was in the company's employ as a canvasser, there might be something in the contention that he was sent in that capacity. But that was not thecase. His services had been dispensed with by the company some time before, and the only evidence of his having acted subsequently as a canvasser for the company was their acceptance of two advertisement contracts, which he obtained after the speaking of the defamatory words. The uncontradicted evidence as to the course of advertising business was that advertising agents do offer and accept adver- tisements brought to them by independent canvassers, paying commission to the canvasser when the advertisement is accepted, but that the advertising agent may please himself as to accept- ing or declining the advertisement when it is brought to him under these circumstances. It would be indeed a serious liability immeasurable in extent if the acceptance by an advertising agent of advertisements, brought to him under such circumstances, were taken to import an authorization of every statement the can- vasser might have made in the course of his canvass as to the merits of rival advertising agents. For these reasons it seems to me that the fact that Shakespeare chose as his agent in the dis- charge of the special duty of obtaining the document in question an independent. canvasser from whom the company sometimes accepted advertisements is a circumstance from which no infer- ence can be drawn in support of the authority in Dunn which the respondent alleged, and of which he was bound to give

New Sour WaLEs CounTRY Press Co- OPERATIVE Co. Lrp. v SrewarrT.

1911. Stripped of the many immaterial considerations upon New Sours it was attempted to found the proof of Dunn's auth

Ge, the only, fact upon which it really can be put is his emy

Press Co- ment by Shakespeare in the special duty of obtaining "to Lun. Session of some of the respondent's contracts from cert gral et the respondent's customers. No attempt was made to

express authority conferred on Dunn to make statements reference to the subject matter of the alleged slanders, and reasons I have given I have come to the conclusion that it be impossible for a jury legally to draw the inference tl was within the scope of Dunn's special employment to 1 those statements. It follows that, in my opinion, the pla ought to have been nonsuited, and that the Supreme Court:

H.C. or A. ON APPEAL FROM THE SUPREME COURT OF 191i. VICTORIA.

» Insolvency - Settlement by woman who afterwards becomes insolvent - Regi Sept. 20, 25. of settlement - Insolvency Act 1897 (Vict.) (No. 1513), sec. 100.

oOo Sec. 100 of the Insolvency Act 1897 (Vict.} provides that '' Every settle

O'Connor JJ. of property on or for the wife or children or both wife and children of