ing to be relied upon as an established common-law principle.

In some early cases the suggestion is found that the servant is not liable at all, though in general the authorities of that era place his nonliability upon an exaggerated view of the nature of nonfeasance. 28 L.R.A. 433, note. It seems to have been thought that nonfeasance as here used included all acts of omission. The late Chief Justice Carpenter is authority for the statement that as late as fifty or sixty years ago this theory was approved by the full bench of the New Hampshire court, in an unreported decision rendered in a suit brought against an engineer to recover for damages caused by his negligent operation of a railroad train.

This view no longer prevails anywhere, and the rule of the servant's immunity as to acts of nonfeasance is limited to acts which are merely breaches of duty owed to the master, as distinguished from that owed to the complaining party. For the former he is not liable to a stranger to his contract, but for the latter he is. Pittsfield Cottonwear Mfg. Co. v. Pittsfield Shoe Co. 71 N. H. 522, 534, 60 L.R.A. 116, 53 Atl. 807, 13 Am. Neg. Rep. 363.

With the establishment of the rule that the servant is so liable came the question whether he could be sued jointly with the master. The early view in England seems to have been that he could not be, although the cases where the question is discussed are disposed of on other grounds. Michael v. Alestree, 2 Lev. 172, 83 Eng. Reprint, 504; Whitamore v. Waterhouse, 4 Car. & P. 383.

In this country the cases are in direct conflict. In many jurisdictions such suits are permitted. The usual ground upon which the holding is put is that, as the master and servant are both liable for the same act of negligence, they may be joined as defendants. Greenberg v. Whitcomb Lumber Co. 90 Wis. 225, 28 L.R.A. 439, 48 Am. St. Rep. 911, 63 N. W. 93; Whalen v. Pennsyl

vania R. Co. 73 N. J. L. 192, 63 Atl. 993; Mayberry v. Northern P. R. Co. 100 Minn. 79, 12 L.R.A. (N.S.) 675, 110 N. W. 356, 10 Ann. Cas. 754; Wright v. Wilcox, 19 Wend. 343, 32 Am. Dec. 507; Phelps v. Wait, 30 N. Y. 78.

On the other hand, it has been pointed out that the right to recover involves distinct and different questions as to each defendant, and it is accordingly held that a joint suit cannot be maintained. Parsons v. Winchell, 5 Cush. 592, 52 Am. Dec. 745; Mulchey v. Methodist Religious Soc. 125 Mass. 487; Campbell v. Portland Sugar Co. 62 Me. 552, 16 Am. Rep. 503; Bailey v. Bussing, 37 Conn. 349; French v. Central Constr. Co. 76 Ohio St. 509, 12 L.R.A. (N.S.) 669, 81 N. E. 751; Herman Berghoff Brewing Co. v. Przbylski, 82 Ill. App. 361; Warax v. Cincinnati, N. O. & T. P. R. Co. (C. C.) 72 Fed. 637. This rule has been recognized as law in this state (Page v. Parker, 40 N. H. 47, 68), but is no longer followed (Fitzhugh v. Grand Trunk R. Co. 80 N. H. 185, 115 Atl. 803).

The effect of a judgment either for or against the master or the servant in a several suit, when offered in defense of a subsequent suit against the other, has been variously treated. There seems to have been an idea that in some way it ought to be a defense, but the reason is not stated with any considerable distinctness.

In Rhode Island a case arose in which certain parties were sued for damage caused by their encumbering a highway. There was judgment for the defendants; and in a subsequent suit to recover for the same injury from the town it was held that the former judgment was a defense because otherwise the defendants in the first suit, being liable over to the town, might be made to pay after they had obtained a judgment on the merits of the case. Hill v. Bain, 15 R. I. 75, 2 Am. St. Rep. 873, 23 Atl. 44. While this is not a master and servant case, it involves the same principles con

cerning those charged by law with responsibility for the negligence of others. See also Hearn v. Boston & M. R. Co. 67 N. H. 320, 29 Atl. 970. So, in this state, the same idea was adopted as to the relation between a sheriff and his deputy. "The plaintiff might have sued the defendant for the act of Stebbins in taking the oats. But he had the right also to sue Stebbins himself, and this he elected to do. Having litigated the title to the oats with him and failed, he ought to be precluded from trying the same matter in another suit against the defendant, on the ground that the defendant is responsible, and that he had a right of action against him also." King v. Chase, 15 N. H. 9, 19, 41 Am. Dec. 675.

The leading case on the subject is Emery v. Fowler, 39 Me. 326, 63 Am. Dec. 627. It holds that a judgment in favor of the employer is conclusive in a subsequent suit against the servant. While it is possible to distinguish it upon the ground that it involved suits for trespass to real estate, it has generally been treated as authority in cases involving other classes of torts. Freeman, Judgm. § 179; Black, Judgm. § 579. Attempts have been made to sustain these and other decisions upon grounds of privity and estoppel, but they do not satisfy the generally accepted tests. Lamberton v. Dinsmore, 75 N. H. 574, 78 Atl. 620.

The underlying reason which has moved the courts in these matters is nowhere better stated than in Atkinson v. White, 60 Me. 396, 397. "That the question involved in each suit is precisely the same, and to be proved by the same testimony, is beyond a doubt. It is equally clear that the plaintiff is the same, and that he has had his day in court. He has had a full hearing upon the law and fact involved in the very question he now proposes to try again in another suit. He has had every privilege the law allows him, unless he is entitled to another hearing simply because he is now at

tempting to tempting to enforce his claim against another defendant in name, indeed, but the same in interest."

In the present case the plaintiff asks that such a second trial be given him, and states several grounds therefor. His chief reliance is upon the proposition that the master and servant are joint tort-feasors. It is to be observed at the outset that in reality the master is not a tort-feasor at all. He is not a wrongdoer. If he were, he could neither claim contribution from one jointly liable as he was, nor indemnity from one for whose acts he must answer, whereas in the present situation he could do either. Nashua Iron & Steel Co. v. Worcester & N. R. Co. 62 N. H. 159. But the fact that there is no joint liability is not necessarily determinative of the right to bring the present suit. The solution of the question depends rather upon the nature of the liability imposed upon the master.

As before stated, the master has done no wrong, but he is by law charged with a certain responsibility for the act of his servant. The law identifies the master with the servant for this purpose, and makes the servant's act the master's. It was upon this ground that the plaintiff recovered his judgment against the master. He did not recover for any wrongful act of the master, but for the negligence of the servant imputed to the master.

The master not being morally guilty, his liability should extend no farther than is necessary to give the aggrieved party redress for the wrong done by the servant. Technical or inequitable rules said to be applicable to joint tort-feasors, and invoked in behalf of the present plaintiff, are not applicable to the present situation.

Neither should undue hardship and expense be put upon the servant. If he were not permitted to discharge his liability to the plaintiff by the payment of the judgment already recovered against the master for the servant's act, he must be to the expense of defending the pres

ent action against him personally; and if he should prevail therein he would not be discharged, but must thereafter recompense the master for his reasonable expenses and what it might be found he ought to pay on account of the earlier suit, provided that, in the master's suit against the servant, the master were able to obtain a verdict that the servant was a wrongdoer. Hubbard v. Gould, 74 N. H. 25, 28, 64 Atl. 668. And if in the present suit against the servant a judgment were recovered by plaintiff and paid, the servant would still be liable for the reasonable expenses of the former suit against the master. The rule here sought to be invoked would impose upon the servant a greater degree of responsibility than has been put upon any other wrongdoer.

If the plaintiff's claim were sound, precisely the same financial result would follow if the master had notified the servant to defend the earlier suit, and the servant had done so. The plaintiff could still have refused to accept payment of the judgment, and have put the servant to this added expense. Any supposed rule of law which compels a party to try the same question twice, and be bound by the worse of the two results, either directly or indirectly, is entitled to but scant respect.

The plaintiff has had a full and fair trial of his claim for compensation, resulting in a judgment in his favor, which the defendant is ready and willing to pay. Unless there is some positive rule of law which forbids, this ought to be the end of the case. If the rule that in the case of joint wrongdoers the plaintiff may severally pursue one after another to judgment, refusing to accept tendered payment of the earlier judgments (McDonald v. Nugen, 118 Iowa, 513, 96 Am. St. Rep. 407, 92 N. W. 675; Blann v. Crocheron, 20 Ala. 320), is the law of this state, it ought not to be extended. It should not be applied to cases not clearly falling within its scope, nor when its application will

impose an elsewhere unheard-of liability.

Cases where there is some personal fault of the master, of course, stand differently, and the injured party may recover of him on the independent ground of such wrong, while still seeking to hold the servant for his act, for which no claim. is made against the master. But where, as here, the doctrine of identity has been invoked as the foundation for a recovery, and the claimed identity has been established, there plainly ought to be an end of any future proceedings based upon a different and inconsistent situation.

Election of

master-bar to

servant.

The true foundation for the nonliability of the present defendant is not found in the doctrine of estoppel by judgment, nor in that of satisfaction obtained by the plaintiff from some other party. The plaintiff is debarred from maintaining the present suit, because he had and remedies-judghas exercised an ment against election. There was suit against a single wrongful act, and it was the plaintiff's privilege to treat it as that of the actor or as that of the master. It is not at all like the relation of principal and surety, where by agreement one adds to the original and single liability of the principal. It is a case of substitution, and not of addition. The master is charged, not because he has agreed to be a surety for the servant's act, but because the law says the act may be treated as that of the master. "Although in fact guilty of no negligent act, the law makes the town responsible

for the negligent act of A, as it makes the master responsible for the negligence of his servant." Gregg v. Page Belting Co. 69 N. H. 247, 252, 46 Atl. 28.

The plaintiff in the suit against the master must establish a relation of the master to him. He cannot do this by showing the master's presence, for he was absent; nor can it be proved by authority conferred, for none was given. It can only be shown by resorting to the legal fic