torts of his servant,[1] meaning, as I take it, to pay a fine, not damages.
But true examples of the peculiar law of master and servant are to be found before Edward II. The maxim respondeat superior has been applied to the torts of inferior officers from the time of Edward I. to the present day. Thus that chapter of the Statute of Westminster the Second,[2] which regulates distresses by sheriffs or bailiffs, makes the officer disregarding its provisions answerable, and then continues, "si nom habeat ballivus unde reddat reddat superior suus." So a later chapter of the same statute, after subjecting keepers of jails to an action of debt for escapes in certain cases, provides that if the keeper is not able to pay, his superior, who committed the custody of the jail to him, shall be answerable by the same writ.[3] So, again, the eighteenth chapter of the Articuli super Chartas[4] gives a writ of waste to wards, for waste done in their lands in the king's hands by escheators or sub-escheators, "against the escheator for his act, or the sub-escheator for his act (if he have whereof to answer), and if he have not, his master shall answer ('si respoigne son sovereign') by like pain concerning the damages, as is ordained by the statute for them that do waste in wardships." A case of the time of Edward II. interpreting the above statute concerning jailers is given in Fitzherbert's Abridgment,[5] and later similar cases are referred to in Coke's Fourth Institute.[6]
It may be objected that the foregoing cases are all statutory. But the same principle seems to have been applied apart from any statute except that which gave counties the power to elect coroners, to make the county of Kent answerable to the king for a coroner's default, as well as in other instances which will be mentioned later.[7] Moreover, early statutes are as good evidence of prevailing legal conceptions as decisions are.
- ↑ Bract., fol. 158 b, 171 a, b, 172 b. Cf. Ducange, "Emenda."
- ↑ St. 13 Ed. I., St. I, c. 2, § 3.
- ↑ c 11, ad finem. "Et si custos gaole non habeat per quod justicietur vel unde solvat respondeat superior suus qui custodiam hujusmodi gaole sibi commisit per idem breve."
- ↑ St. 28 Ed. I., c. 18.
- ↑ Dette, pl. 172 (M. 11 Ed. II.).
- ↑ 4 Inst. 114; "45 E. 3, 9, 10. Prior datife et removeable suffer eschape, respondeat superior. 14 E. 4. Pur insufficiency del bailie dun libertie respondeat dominus libertatis. Vid. 44 E. 3, 13; 50 E. 3, 5; 14 H. 4, 22; 11 H. 6, 52; 30 H. 6, 32."
- ↑ See the writ of H. 14 Ed. III. ex parte Remem. Regis, rot. 9, in Scacc. in 4 Inst. 114, and less fully in 2 Inst. 175. "Et quia ipse coronator electus erat per comitatum juxta
