be said to be through ill-doing (male) on my part, but against my will. Horneby then said that the defendant would be ruined if this action were maintained against him. "Thirning [C. J.], What is that to us? It is better that he should be undone wholly, than that the law should be changed for him.[1] Then they were at issue that the plaintiff's house was not burned by the defendant's fire."
The foregoing case affords some ground for the argument which was vainly pressed in Turberville v. Stampe, that the liability was confined to the house.[2] Such a limit is not unsupported by analogy. By the old law a servant's custody of his master's things was said to be the master's possession within his house, but the servant's on a journey outside of it.[3] So an innkeeper was liable for all goods within the inn, whether he had the custody of them or not.[4] So in the case which has been mentioned above, a master was said to be responsible for the acts of his servants on board ship. It will be noticed also that the responsibility of a house-holder seems to be extended to his guests. From that day to this there have been occasional glimpses of a tendency to regard guests as part of the familia for the purposes of the law.[5] And in view of the fact that by earlier law if a guest was allowed to stop in the house three days, he was called hoghenehine or agenhine, that is, own hine or servant of the host, it may be thought that we have here an echo of the frithborh.[6] But with whatever limits and for whatever occult causes, the responsibility of the head of the house for his servants was clearly recognized, and, it would seem, the identification of the two, notwithstanding a statement by counsel, as clear as ever has been made since, of the objections to the doctrine.
The later cases in the Year Books are of wilful wrongs, as I have said, and I now pass to the subsequent reports. Under Elizabeth a defendant justified taking sheep for toll under a usage to have toll of strangers' sheep driven through the vill by strangers, and if he were denied by such stranger driving them, to distrain them. The defendant alleged that the plaintiff, the owner of the sheep, was a stranger, but did not allege that the driver was. But the court
- ↑ Y. B. 2 H. IV. 18. pl. 6.
- ↑ See also 1 Bl, Comm. 431; Noy's Maxims, c. 44.
- ↑ Y. B. 21 H. VII. 14, pl. 21; The Common Law, 226.
- ↑ Y. B. 42 Ass., pl. 17, fol. 260; 42 Ed. III, 11, pl. 13.
- ↑ Y. B. 13 Ed. IV. 10, pl 5; Southcote v. Stanley, 1 H. & N. 247, 250.
- ↑ Bract., fol. 124 b; LL. Gul. I., c. 48; LL. Edw. Conf., c. 23.
