The jury, by their verdict for the plaintiffs, have found that the horse was hired of the plaintiffs by Whipple, and was driven immoderately by Rowell with the aid and assistance of Whipple, and thereby killed. The general verdict against both defendants is not qualified, or turned into a special verdict, by the answers of the jury to the inquiries of the judge. The answer that the horse was immoderately driven by Rowell is conclusive of his liability, but does not necessarily show that Whipple might not also be liable under proper instructions and on sufficient evidence.
It is true that a master cannot be held liable jointly with his servant for an injury done by the servant in the master’s absence to a horse hired by the master. Parsons v. Winchell, 5 Cush. 592. But that rule does not apply to the case of a horse hired by one person, intrusted by him to another, and injured by the immoderate driving of the second in the presence and with the assistance of the first. If Whipple hired this horse, and coop* crated in the immoderate driving, either by speaking to Rowel? or to the horse, or by exciting this horse by fast driving of the other, or in any other manner, the plaintiffs’ previous knowledge that this horse was to be driven by Rowell for his own pleasure could not exempt Whipple from liability.
Evidence that the original "barge on the plaintiffs’ books was *31to Rowell by name was prima facie only, and not conclusive, that the contract of hiring was made with Rowell. James v. Spaulding, 4 Gray, 451. Lee v. Wheeler, 11 Gray, 239. Commonwealth v. Jeffries, 7 Allen, 564.
Whether the relation of master and servant, or principal and agent, existed between the defendants was a question of fact for the jury.
The specific instructions asked for were therefore rightly refused. The only instructions reported are those given “ upon the subjects embraced in the prayers.” The instruction that Whipple was liable if he hired both horses, and intrusted one to Rowell to drive, who killed it by immoderate driving, is to be taken as applied to the prayers for instructions, and to the admitted fact that the defendants were driving in company with each other when this horse was killed. No request was made for instructions upon the degree of presence and cooperation requisite to make Whipple liable as aiding and assisting in the immoderate driving by Rowell; and we must presume that this was covered by the instructions as to immoderate driving and other instructions, which, as the bill of exceptions states, were given and not excepted to.
The single exception taken to the admission of evidence relates to the assignments made by both defendants of all their property on the day after the accident. But these assignments made at that time, simultaneously, (Rowell being the attesting witness to Whipple’s assignment,) without any proof of consideration except the recitals in the assignments, were some evidence that the defendants were conscious of liability and endeavored to escape from it, the weight of which was to be determined by the jury. Stratton v. Farwell, Middlesex, 1843.*
Exceptions overruled.
The following note of that case was furnished by Mr. Justice Gray,
Simon P. Stratton vs. Jacob Farwell.
Assumpsit by the indorsee against the indorser of a negotiable promissory note made by Samuel Adams. The defence relied on was that the indorsement was forged. At the trial in the court of common pleas at December term 1842,
*32Allen, J., allowed the plaintiff, against the defendant’s objection, to introduce evidence that the defendant, owning a large estate, on the same day on which Adams was arrested on his complaint for forging his name as indorser on this and like notes, and after the defendant had been sued on one such note, conveyed all his visible property, without valuable consideration, to his daughters and brother. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions, which at October term 1843 were
Overruled hy this court.
E. Buttrick, for the defendant.
E Mellen §• E. R. Hoar, for the plaintiff.