Opinion of the Court- Crockett, J.

ments and thus forced to try innumerable side issues more perplexing than the case itself, attended, also, with delay to its business, and with detriment to the public service.

There is nothing in the case of Meagher v. Gagliardo (35 Cal. 602), opposed to the view which we have taken of this case. In that case the agreements were entered, at the time they were made, in the minutes of the Court.

Judgment reversed and a new trial granted.

CROCKETT, J., having been of counsel, did not participate in the decision.

MOSES ELLIS, APPELLANT, «. THE COMMISSIONERS OF THE FUNDED DEBT OF SAN FRANCISCO, et al., RESPONDENTS.

COMMISSIONERS OF THE FUNDED DEBT OF THE CITY OF SAN FRANCISCO.-The Commissioners of the Funded Debt of the City of San Francisco are the exclusive judges of the necessity for the sale or lease of the property of the city held by them in trust, until the trust is finally closed, and their action cannot be interfered with, nor their discretion be controlled by the city, or its assignee, except on the ground of fraud, or a gross abuse of discretion by the Trustees.

APPEAL from the District Court of the Twelfth District, City and County of San Francisco.

The case is stated in the opinion.

E. B. Mastick, for Appellant.
William H. Patterson, of Counsel.

Haight & Temple, for Respondent.

CROCKETT, J., delivered the opinion of the Court:

This is an appeal from an order dissolving a temporary injunction issued to restrain the Commissioners of the Funded Debt of the City and County of San Francisco from exposing to sale a lot in said city and county to which the plaintiff claims to have acquired the title originally held by the city, and the chief ground of equity relied upon is, that

the said Commissioners have in their hands ample funds, exclusive of the value of this lot, with which to discharge all the outstanding indebtedness which is a charge upon the fund, and consequently that a sale of the lot in contest is wholly unnecessary for the purpose of the trust. It is evident the plaintiff has no title to the lot, except subject to the trust. His claim of title is founded on a judgment, execution sale and Sheriff's deed, long subsequent to the creation of the trust, and the title thus acquired cannot impair or interfere with the power of the Trustees over the Trust Fund, of which this lot is a portion. By Section 12 of the Act creating the trust, the Commissioners are authorized, "at such time and place as in their discretion the interest of the city may require, to expose at public sale, or to lease the property to be conveyed, as provided in this section, and they shall apply the proceeds of such sale or lease to the liquidation of the floating debt of said city." (Statutes 1851, page 390.)

The commissioners are the exclusive judges of the necessity for such sale or lease until the trust is finally closed, and their action in this respect cannot be impugned, nor their discretion controlled by the city or its grantee, except on the ground of fraud or a gross abuse of discretion by the Trustees. The assets in the hands of the Trustees for the payment of the trust debt consist largely of stocks, bonds and other securities of fluctuating value, and until the time shall arrive for closing the trust, it will be impossible to ascertain whether or not they are sufficient to extinguish the trust debt. In the meantime the Commissioners have the power, and it is their duty, to provide against contingencies by raising a fund by the sale of property, if necessary, which shall be certainly and reasonably sufficient to pay the debt and accruing expenses.

The other points made by the appellant are not tenable, and require no discussion.

Judgment affirmed.

Argument for Appellant.

JAMES BAKER, RESPONDENT, . A. G. KINSEY, APPELLANT.

MASTER AND SERVANT.-The master is not chargeable with the acts of the servant, unless he acts in the execution of the authority given by the master, and then the act of the servant is the act of the master. IDEM.-An action to recover damages for the bite of a vicious dog belonging to the toll-keeper, cannot be maintained against the owner of a bridge, If it appears that the defendant did not keep or harbor the dog in person, and did not authorize or require him to be kept, and did not need that the dog should be kept, for the conduct or protection of the business in which the owner of the dog was employed, or as his assistant as toll-keeper.

APPEAL from the District Court of the Sixth District, Sacramento County.

The case is stated in the opinion.

Bowie & Catlen, for Appellant.

The judgment is not supported by any evidence what

ever..

To make the matter liable for the negligence of the ser vant, the act of the servant causing the injury must be under the authority given him. (Middleton v. Fowler, 1 Salk. 282.)

When a servant does a thing outside of the business which he is employed to do, he no longer acts under his master's authority, and the master is not liable. (McManus v. Crickett, 1 East. 108; Mitchell v. Cressweller, 13 Com. B. 237; Coleman v. Riches, 16 Com. B. 104; Hay v. The Cohoes Co., 3 Barb. 42; Foster v. Essex Bank, 17 Mass. 479; Campbell v. Phelps, 17 Mass. 244.)

The question seems to be, whether the act be such that he can justify himself to his master. If he may, it shall be deemed in the course of his business as a servant, and the master is liable. (Harlow v. Humiston, 6 Cow. 189.)

A master is liable for the acts of his servant, done in the course of his employment about his master's business, but not for the act of his free servant done outside of his employ ment. (Hilliard on Torts, Vol. II, 427–9.)

Beyond the scope of his employment, he is as much stranger to his master as any third person. (Story on Agency, Section 452; Paley on Agency, 294-298; Smith's Master and Servant, 160, margin.)

Alexander & Armstrong, and O. C. Lewis, for Respondent:

First-When a person keeps or harbors a ferocious dog, knowing him to be so, even though he is not the owner of him, he is liable to any person injured by the animal while on his premises. These principles, and as to what is sufficient notice, are discussed in the following cases: (Loomis v. Terry, 17 Wend. R. 496-501; Wilkinson v. Parrott, 32 Cal. 103.)

Second-Did the appellant keep the dog within the meaning of the law? We think he did. The animal was kept at his toll-house, at the bridge, by his toll-keeper, Dyer, by the permission of his general agent, Eastman. (Boswell v. Laird, 8 Cal. 489; Laugher v. Painter, 5 Barb. & Cres. 576.)

Third-The principle is elementary that notice to an agent is constructive notice to the principal, and this doctrine has its foundation in the principle that a principal must, at his peril, employ careful, faithful, honest and prudent persons as agents, such as will deal fairly with himself and act prudently as to others, and if he fails to employ such agents, he must bear its consequences. Both Eastman and Dyer knew of the vicious character of the dog. (Bierce v. Red Bluff Hotel Co., 31 Cal. 165.)

Fourth-It was the duty of the owner to keep the bridge in good repair, and free from obstructions of every kind. (3 Black. Com. 219; Norris v. Farmers & Teamsters' Co., 6 Cal. 595; Wright v. Wilcox, 19 Wend. 344.)

SANDERSON, J., delivered the opinion of the Court:

This is an action to recover damages for personal injuries sustained from a bite by a vicious dog. The plaintiff was nonsuited as to Eastman, one of the defendants, but recovered as against the others, Kinsey and Dyer. Kinsey moved for a new trial without success, and then brought the case here, and asks a reversal upon the grounds, First- That so far as he is concerned, the verdict is not sustained by the testimony; and, Second-That in respect to him, the charge

of the Court was erroneous. But a separate consideration of these grounds is not deemed necessary.

The testimony shows that the defendant, Dyer, was in the employment of the defendant, Kinsey, and one Whitely, as keeper and collector of tolls, at a bridge near Folsom, which bridge and toll franchise was the joint property of Kinsey and Whitely. That both Kinsey and Whitely were non-residents of Folsom-the former being a resident of San Francisco, and the latter of the State of New Jersey. That the defendant, Eastman, resided at Folsom, and acted as agent of Kinsey and Whitely in employing Dyer as keeper, and in receiving from Dyer the tolls, and transmitting them to Kinsey and Whitely; that Dyer procured the dog, while a pup, through Eastman, at his own suggestion, and kept him at the bridge as a companion, and because he had a fancy for dogs. That the dog was vicious and accustomed to bite mankind, and that he was not securely kept by Dyer, but was suffered at times to go at large, without being guarded or muzzled. That the vicious disposition of the dog was known to Dyer and Eastman. But the testimony fails to show that either Kinsey or Whitely ever heard of the dog, or that they had directed Dyer or Eastman to keep a dog at the bridge, or that they had consented that one should be kept there, or that there was any reason or necessity for keeping a dog at the bridge, so far as any interest of Kinsey or Whitely was concerned.

It thus appearing that Kinsey did not, in fact, keep or harbor the dog in person, and did not, in fact, authorize or require him to be kept, and did not, in fact, need that the dog should be kept for the conduct or protection of the business in which Dyer was employed, or as an assistant to Dyer, it is obvious that there can be no ground or principle of law upon which the verdict can be sustained, unless it be the doctrine of respondeat superior. In view of these facts, unless Dyer acted as the servant of Kinsey in the matter of keeping and harboring the dog, Kinsey cannot be held responsible for the injuries which the plaintiff sustained; for that relation, in the particular act of which complaint is made, is