аfter stating the facts. The foregoing statement of the testimony is sufficient to present the point upon which the case turns, namely, the authority of the agent of the defendant to cause the arrest to be made. We are not concerned so much with the manner in which the arrest of the plaintiff was made as we arc with the question whether the defеndant, who was the principal of Atkinson and Meacham, is to be charged with liability for their tortious acts. That their conduct towards the plaintiff was inexcusable, if not criminal, and justly provokes the resentment of every good and law-abiding citizen against them, may be freely admitted. The circumstances under which they pursued this man, without the warrant of the law, evеn to his bed-chamber and at the silent hour of midnight arousing him from his peaceful slumbers, invading the sanctity and privacy of his room, which the law surrounded with its protection as much so as if it had been his home or his castle— subjecting him to such indignities as no self-respecting man could submit to, even under compulsion, without feeling that
*521
be bad been humiliated if not degraded by them; marсhing him through the office of the hotel and down a public street where any and all might see the infamy and disgrace which they had fastened upon him — all these things and more they did which made their offense against him, if the evidence be true, a very serious one, and to him they and all who participated in causing his arrest are responsible before the law, and they must réckon with him if. he sees fit to call them to account. But we must not allow any feeling of indignation at the grievous wrong inflicted upon the plaintiff (which can not be too severely condemned, if, as we must assume, he is an innocent man) to withdraw our attention from those principles of that same law by which the defendant’s rights are guarded. The excesses оf -Atkinson and Meacham do .not establish the defendant’s liability. That can be shown only by proof that the defendant authorized the acts to be done or that, after they were done, it ratified them. An agent’s authority to bind his principal cannot be shown by the agent’s acts or declarations.
Francis v.
Edwards,
A very able and learned discussion of the question in this case will be found in
Allen v. Railroad,
L. R. 6 Q. B., 65, by
Blackburn, J.,
one of the most eminent of the English judges of his time. The case was apparently well argued on both sides. The judges delivered separate opinions. TVe quote so much of the leading opinion by
Justice Blackburn
as will show the full result of the decision: “There is a marked distinction between an act done for the purpose of protecting the property by preventing a felony or of recovering it back and an act done for the purpose of punishing the offender for that which has already been done. There is
no implied authority
in a person having the custody of property to take such steps as he thinks fit to punish a person who he supposes has done something with reference to the property which he has not done. The act of punishing the offender is not anything done with reference to the property; it is done merely for the purpose of vindicating justice. And in this respect
*524
there is no difference between a railway company — which is a corporation — and a private individual; if the law were that the defendants are responsible for the act of their booking-clerk* in giving the plaintiff into custody on an unfounded charge, every shopkeeper in London would be answerable for any act done by.a shopman left in his shop who chose to accuse a person of having attempted to plunder the shop, every merchant would be responsible for a similar act of his clerk, and every gentleman for the act of his butler or coachman.” The case of
Allen v. Railroad
was cited with approval and reviewed at some length in
Carter v. Machine Co.,
The principle we have stated as applicable to the facts in this record and as established by the authorities cited, has met with the approval of this Court in cases closely resembling the one.in hand, and in other cases where it was adopted by analogy. Quoting from Wood on Master and Servant, 546, the Court in Willis v. Railroаd,
In a case where the agent of the defendant company had slandered the plaintiff, the Court stated the principle as follows: “In a vast majority оf the cases, the principle is recognized that in some way the company must authorize or approve the tortious act of its agent, and it would be unreasonable to hold the company liable on a bare presumption, in the absence of allegation or any proof of authority or ratification.”
Redditt v. Manufacturing
Company,
It may then be gathered from the books as a general rule, which is clearly applicable to the facts of this case, that if the servant, instead of doing that which he is employed to do does something else which he is not employed to do at all, the master cannot be said to do it by his servant and therefore is not rеsponsible for what he does. It is not sufficient that the act showed that he did it with the intent to benefit or to serve the master. It must be something done in attempting to do what the master has employed the servant to do. Mitchell v. Crasweller, 76 E. C. L., 246; Limpus v. L. G. O. Co., 32 L. J. (Exch.), 34. Nor does the question of liability depend on the quality of the act but rather upon the other question, whether it has been performed in the linе of duty and within the scope of the authority conferred by the master. The facts of this ease do not bring it within the principle. There is no ground for saying that what was *528 done by tbe agent was in the ordinary course of the business of the company, nor that it was for its benefit, except in so far as it is for the benefit of all the citizens of the State that a criminal should bе prosecuted, convicted and punished. If the agent acted from a sense of the duty which rests on every one to give in charge a person who he thinks has committed a felony, his conduct, while commendable, would in no way be connected with the defendant so as to fasten liability upon it. Edwards v. Railroad, L. R. 5 C. P., 448.
In Croasdale v. Von Boyneburgh, supra, the Court says: “The purpose of a criminal prosecution is to punish the offender for violating the laws of the Commonwealth and not to enforce the payment of money, nor, as in civil proceedings, to restore to the owner the property of which he has been defrauded. The criminal process of the Court should not be invoked for any such purpose. AVhile the appellant, like аny other person, could have instituted the prosecution against Stotsenberg, it was clearly not his duty as managing owner to do so.” The Court in Pressley v. Railroad, supra, states the principle with equal emphasis: “The question is, can such action on his part be held to be within the scope of his agency and in the course of his employment? There may be, and the books recognize some difficulty in determining what acts of an agent or employee are properly within the range and course of his employment; but to say that to put the criminal law in operation against a party on a charge of larceny of the property of the corporation is within the scope of his agency and in the course of his employment is a proposition which in the light of the decided cases cannot be maintained.”
There can be no doubt that the plaintiff has been very ill-used and grievously wronged, as he was most improperly arrested, but, unfortunately, he has sued an innocent party instead of suing those who were the real authors and perpe *529 trators of the wrong done to him. We have assumed of course that they did the wrong to him, as we are required by an imperative rule, upon a motion to nonsuit or a demurrer to evidence, to take as true not only every fact which there is evidence tending to establish, but also to consider all such fair and reasonable inferences of fact as the jury, if trying the cаse, might properly have drawn from the evidence. It may be that those parties, if they had been sued, would have been able to show quite a different state of facts from the one with which we have now to deal, and therefore what we have said must be taken as based entirely upon the hypothesis that the facts are correctly given'in the testimony introduced by the plaintiff.
Since this opinion was written we have examined a case recently decided by the Supreme Court of Pennsylvania, in which we find that Court reached the same conclusion we have in this case upon facts substantially similar, and supported its decision by cogent reasoning and by the citation of many and weighty authorities. Markley v. Snow, 207 Pa., 447, 64 L. R. A., 685.
Finding no error in the ruling of the Court upon the law, the judgment of nonsuit must stand.
No Error.