The Opinion of the Court' was delivered by
Thе Court properly qualified the first, second, and sixth instructions. The instructions, as demanded, assumed that the relation of master and servant existed between the defendants. The modification confined the instructions to such a state of case.
No error was committed in adding the qualificatiоn to the third instruction. The principal is- liable to third persons for the frauds, fоrts, and negligences of the agent, even though the conduct of the аgent is without his participation or consent, provided the act is dóne in the course of the employment, and is not a wilful departure from it. Story on Agency, § 452 et seq; Bush v. Steinman, 1 Bosanquet & Puller, 404; Wright v. Wilcox,
The seventh instruсtion was clearly wrong. If the act complained of was illegal, thе fact that one of the defendants committed it under the direction оf the other, did not shield him from responsibility, but both were equally liable te the party injured, as well the one who did the act as the one who proсured it to be done.- All concerned in the commission of an unlawful aсt are responsible for the conseqnonces. Admit the principlе asserted by this instruction, and every person charged with the commission оf an act prohibited by law could excuse himself by showing that he actеd in obedience to .the command or under the direction of another. Such a doctrine would be subversive of private rights, and detrimental tо the public interests. f¡
The eighth íhs'trtíctiori was erroneous. It asserts an unqualifiеd right on the part of the defendants to set fire to the prairie on thеir own land. This position is not correct. The 158th sebtion of the Criminal Code prohibits a person from setting, fire to the woods, prairies or other grounds in the inhabited parts of the State between the first of December аnd March, and during the rest of the year, except for the necessаry preservation of his farm or inclosure- from accident by fire,- and thеn only upon giving his neighbors two days’ notice of his intention- to do so. If the defеndants claimed to be within the exception, the instruction should have been based on the hypothesis that such a state of facts appeared in the evidence. The instruction was1 erroneous in another respect. Assuming that the defendants had the right-to-set fire to-the prairie, the instruction would relieve them from all liability for the consequences unless the plaintiff should show that the injury was occasioned by their subsequent nеgligence. The law is otherwise. If the defendants were authorised by the рrovisions of the Statute to set out the fire, they were still bound to use every reasonable precaution to prevent injurious results to others. The plaintiff was only required to prove that the defendants set out the fire that caused the injury. It rested with the defendants to show the excuse and justification if any existed. Burton v. Mc Clellan,
The ninth instruction was properly rеfused. The grass was severed from the freehold, and became personal property 5 and the plaintiff, to recover damages for- its destruction, was not bound to show title to the land on which it was cut.
The judgment of the Circuit Court is' affirmed with costs-
Judgment affirmed,
Notes
Trumbull, J. did not sit in this case.