Page:Harvard Law Review Volume 4.djvu/370

354 servant at common law. This has been supposed in England to have been manufactured out of the whole cloth, and introduced by the decision in Michael v. Alestree in the reign of Charles II. In view of the historical antecedents it would be very extraordinary if such a notion were correct. I venture to think that it is mistaken, and that the principle has gradually grown to its present form from beginnings of the earliest date. I also doubt whether Michael v. Alestree is an example for the principle in question. It rather seems to me a case in which the damage complained of was the natural consequence of the very acts commanded by the master, and which, therefore, as I have said above, needs no special or peculiar doctrine to account for it. It was an action on the case against master and servant; "for that the Defendants in Lincoln's-Inn Fields, a Place where People are always going to and fro about their Business, brought a Coach with two ungovernable Horses, & eux improvide incaute & absque debita consideratione ineptitudinis loci there drove them to make them tractable and fit them for a Coach; and the Horses, because of their Ferocity, being not to be managed, ran upon the Plaintiff, and ** wounded him: The master was absent," but both defendants were found guilty. "It was moved in Arrest of Judgment, That no Sciens is here laid of the Horses being unruly, nor any Negligence alledged, but e contra. That the Horses were ungovernable: Yet judgment was given for the Plaintiff, for it is alledged that it was improvide & absque debita consideratione ineptitudinis loci; and it shall be intended the Master Sent the servant to train the Horses there." In other words, although there was no negligence averred in the mode of driving the horses at the instant of the accident, but, e contra, that the horses were ungovernable, which was the scope of the defendant's objection, there was negligence in driving ungovernable horses for the purpose of breaking them in a public place, and that was averred, and was averred to have been done negligently. Furthermore, it was averred to have been done negligently by the defendant, which was a sufficient allegation on its face, and would be supported by proof that the defendant, knowing the character of the horses, ordered his servant to break them in a public resort. Indeed, the very character of the command (to break horses) imports sufficient knowledge;