A master is responsible for the tortious acts of his servant, when committed in the execution of his orders. But in order to render him liable for a trespass, committed by the servant, it is necessary to show, that the acts were done while the servant was acting under the authority of the master. Thus, if a servant, employed to drive his master’s carriage, so negligently and unskillfully drive it, as to injure the person or property of another, the master will be liable because in driving the carriage, the servant was acting in the execution of the orders of his master. But if he were to leave his carriage, and seize the horse of another, whose carriage obstructed his passage along the highway, and thereby occasion an injury, his master would not be liable ; because, in that matter, he was not acting in the employment of his master. Lamb v. Palk, 9 C. & P. 629. (38 E. C. L 261.)
So too, if a man send his horse to the shop of a blacksmith, to be shod, and the servant of the latter, so carelessly and unskillfully perform the work as to lame the horse, the master will be liable, whether he had knowledge of the manner in which the work was performed, or not, because the injury was produced while the servant was acting in the employment of the master. But if, while the horse is standing at the door, the servant, without the knowledge of the master, beat the horse, and thereby injure him, the servant alone will be responsible for his acts.
In the present case, the defendant is charged with the commission of trespasses. The evidence showed, that they were not committed by him personally, but by persons in his employment. To render him liable, therefore, it must be shown, I that the commission of the trespasses was in the execution of'j his order, or with his assent and approbation.
But it was conceded, that he never authorized the commission, or had any knowledge of it, unless it might be inferred from the employment of the servants in making coal, and with his teams and carts transporting it to his furnace.
*288But there is nothing in the case necessarily connecting that employment with the trespasses complained of. The wood was to be cut, and the coal made, upon the defendant’s own land ; and it does not appear, that the coal could not have been carried directly to the defendant’s furnace, without crossing the plaintiff’s land. For aught that appears, the trespasses were entirely voluntary on the part of the workmen, and wholly unconnected with their employment by the defendant.
No presumption, therefore, fairly arises from that employment, that the defendant ever authorized or directed his workmen to cross the plaintiff’s land, or commit any other trespasses thereon. Nor can any just inference be drawn against him, by reason of his omission to forbid the acts, when it is shown that he had no knowledge that the workmen had committed, or intended to commit, them,
Had it appeared that they were done for his benefit and with his knowledge, then his assent might be implied from his silence. But when it is shown, that he had no such knowledge, his silence cannot operate against him.
As the jury may have been misled, by the instruction given to them, we think a new trial must be granted.
In this opinion the other Judges concurred, except Church, Ch. J., who, being related to one of the parties, gave no opinion.New trial to be granted.