ness, and on the commencement of the divorce suit the father struck the name out of the firm and allowed him as a free gift 2001 per annum, and it was out of this gift that the alimony was allowed. The court in Haviland v. Haviland (1863) 3 Swabey & T. 114, 32 L. J. Prob. N. S. 67, considered the case of Malo v. Malo as of very little authority in favor of the right to allow alimony out of voluntary gifts, taking the view that the reason the court in the Malo Case allowed the alimony was because it considered that the alteration of the firm and the alleged free gift were but an attempt to evade the process of the court.

The court in Bonsor v. Bonsor, supra, after reviewing cases which had allowed alimony out of voluntary allowance, said: "It appears to me that if once it be conceded that recourse may be had to incomes of which the recipient has no legal power to enforce the payment, it is impossible to draw any distinction in principle between one or another kind of such incomes. Nor can I see any reason why a wife on separation or divorce from her husband should not in any proper case have a share of any kind of income in the whole of which she would have participated as his wife. Injustice to the husband is prevented by the provisions of the act which allow the maintenance to be reduced or suspended if his means of paying it fail."

And in Nott v. Nott, L. R. [1901] Prob. 241, 70 L. J. Prob. N. S. 94, 65 J. P. 378, 84 L. T. N. S. 573, 17 Times L. R. 525, where it was held that a voluntary allowance to the wife from a relative ought to be taken into account in estimating the wife's income so as to fix the amount the husband should pay, the court stated that it seems to be only common sense that when dealing with actual income total actual income must be taken into account without considering the source from which it is derived.

The only case which seems to have taken the position that alimony should not be allowed out of a voluntary gift is Haviland v. Haviland, supra, which held that a purely voluntary allowance should not be included in the income liable to alimony. It would seem, however, that the decision of this case was governed by the particular facts involved, and that it is really not opposed to the practice of allowing alimony out of a voluntary gift, as the court stated that while it seemed that alimony ought not to be allowed, it did not mean to say that cases might not arise in which alimony might properly be awarded in respect of an annual income to which the husband had no strict legal right.

9 B. R. C.

J. H. B.

It is not now the law that the owner of land is liable for damage caused by any fire there in fact kindled or kept by his servant, whether negligently or not and whether or not in the course of his employment. – Negligence of employee – Liability of employer.

An employee who was entitled to be supplied by his employer with cooked food, and who on one occasion was supplied with uncooked food for his midday meal, with instructions to cook it at a certain place, acted within the scope of his employment in building a fire for the purpose at another place more convenient for him, so as to render his employer liable for damages occasioned by his negligence in permitting it to escape and spread to the land of another.

The principle upon which the responsibility of a master for the wrongful act of his servant rests is that it is more just to make the person who has intrusted his servant with the power of acting in his business responsible for injury occasioned to another in the course of so acting, than that the other and entirely innocent party should be left to bear the loss.

Decision of the Supreme Court of Victoria (Irvine, Ch. J.): Bugge v. Brown [1918] Vict. L. R. 413, 40 A. L. T. 24, reversed.

(March 27, 1919.)

[111] APPEAL from the Supreme Court of Victoria.

An action was brought in the Supreme Court by Albert Bugge against Oswald Richard John Brown in which, by his statement of claim, the plaintiff alleged that the defendant was a farmer at Cope Cope; that on or about 27th December, 1917, at Cope Cope, the defendant by his servant or agent lit a fire upon certain land, or alternatively was guilty of negligence in that he lit a fire in such a place and under such circumstances and condition that the said fire was likely to escape or get out of control and spread, and/or in that he failed to take any proper or suf

ficient steps to prevent the said fire from escaping, getting out of control or spreading; and that the said fire escaped, got out of control, and spread to the plaintiff's farm and occasioned damage amounting to 1,300l. 16s. 3d. The material defense of the defendant was that, if his servant or agent did light a fire or did fail to take such steps as were alleged in the statement of claim, he was not acting within the scope of his authority.

The action was heard by Irvine, Ch. J., who, after hearing the evidence, the nature of which is stated in the judgments hereunder, and having assessed the damage done at 1,0221., found that the lighting of the fire by one Winter, who was a servant of the defendant, was, with regard to the place where and the cir cumstances under which it was lighted, an act of negligence on Winter's part, but that the lighting of the fire was not within the scope of Winter's employment. The learned judge, therefore, gave judgment for the defendant.

From that decision the plaintiff now appealed to the High Court.

Starke and Dethridge, for the appellant. An owner of land who permits another person to light a fire on his land is liable for damage caused by the escape of the fire through the negligence of that other person, and he is not relieved from liability by the fact that that other person has disobeyed his instructions as to the particular place where the fire is to be lighted (Salmond on Torts, 4th ed. p. 250; Black v. Christchurch Finance Co. [1894] A. C. 48, 63 L. J. P. C. N. S. 32, 6 Reports, 394, 70 L. T. N. S. 77, 58 J. P. 332). He is bound to take ample precautions against his instructions being disobeyed, and to prevent [112] damage. The doctrine has been put to this extent, that the mere permission by an owner to go on his land is sufficient to impose upon him liability for damage caused by a fire negligently allowed to escape. It at any rate goes to this extent, that if the owner gives his servant authority to go on his land and light a fire in a certain place and the servant lights it in another place, the owner is liable if the fire escapes through the negligence of the servant. [Counsel referred to Hardaker v. Idle District Council [1896] 1 Q. B. 335, 65 L. J. Q. B. N. S. 363, 74 L. T. N. S. 69, 44 Week. Rep. 323, 60 J. P. 196; Filliter v. Phippard

(1864) 11 Q. B. 347, 116 Eng. Reprint, 506, 17 L. J. Q. B. N. S. 89, 12 Jur. 202.]

[Isaacs, J., referred to Batchelor v. Smith, 5 Vict. L. R. 176, 1 A. L. T. 12.]

The learned Chief Justice was wrong in saying that the act of Winter in lighting the fire was not within the scope of his authority. The lighting of a fire was a necessary act in the course of his employment to enable him to do his work, and was therefore for the benefit of the respondents, and so was within the scope of Winter's employment (Limpus v. London General Omnibus Co. (1862) 1 Hurlst. & C. 526, 158 Eng. Reprint, 993, 32 L. J. Exch. N. S. 34, 9 Jur. N. S. 333, 7 L. T. N. S. 641, 11 Week. Rep. 149, 17 Eng. Rul. Cas. 258).

[Isaacs, J., referred to Lloyd v. Grace, Smith & Co. [1912] A. C. 716, 4 B. R. C. 498, 81 L. J. K. B. N. S. 1140, 107 L. T. N. S. 531, 28 Times L. R. 547, 56 Sol. Jo. 723, Ann. Cas. 1913B, 819.]

The service of Winter involved that he should cook the raw meat which was given to him for his midday meal, and for that purpose that he should light a fire. If the act which causes lamage is incidental to the employment of the servant, that is sufficient to make the employer liable. (See Halsbury's Laws of England, vol. 20, p. 252; Ruddiman & Co. v. Smith (1889) 60 L. T. N. S. 708, 37 Week. Rep. 528, 53 J. P. 518; Charles R. Davdison & Co. v. M'Robb [1918] A. C. 304, at p. 321, 87 L. J. P. C. N. S. 58, 118 L. T. N. S. 451, 34 Times L. R. 213, 62 Sol. Jo. 347, 10 B. W. C. C. 673, 55 Scot. L. R. 185.) On the evidence the direction given to Winter as to lighting the fire at Old Kimbolton was given only for the purpose of convenience, and not for the purpose of preventing damage arising from the escape of fire, and cannot be construed as a limitation on the authority to light a fire.

Schutt and J. R. Macfarlan, for the respondent. The proper rule of law as to liability for damage arising from the escape of fire is that when a fire is lighted on land with the permission of the occupier, and is of such a nature that in the ordinary course of events it will spread over the land, and is therefore a perilous thing, the occupier will be liable if, through negligence, it escapes. That is shown by Black v. Christchurch Finance Co.

[1894] A. C. 48, 63 L. J. P. C. N. S. 32, 6 Reports, 394, 70 L. T. N. S. 77, 58 J. P. 332.

[113] [Isaacs, J., referred to Matthews v. Forgie [1917] N. Z. L. R. 921.]

But a distinction must be drawn between such a fire and a domestic fire, that is, a fire lighted for cooking purposes or for warmth. It is, in Australia, a natural use of fire to light it in the open for cooking purposes (Whinfield v. Lands Purchase and Management Board of Victoria (1914) 18 C. L. R. (Austr.) 606, at pp. 612, 619). Such a fire is not a dangerous thing, and is not within the principle of Rylands v. Fletcher (1686) L. R. 3 H. L. 330, 6 Mor. Min. Rep. 129, 1 Eng. Rul. Cas. 235. Black v. Christchurch Finance Co., supra, is distinguishable on the ground that in that case there was authority from the occupier to do a dangerous act. (See Pollock on Torts, 10th ed. pp. 522, 523.) The lighting of the fire in this case was not within the scope of Winter's employment. In order that the respondent may be held liable it is necessary to show that he authorized the act of Winter, either expressly or impliedly. An authority will not be implied merely from the fact that the act was done during the employment, but the act must have been involved in carrying out his employment (Williams v. Jones (1864) 3 Hurlst. & C. 256, 159 Eng. Reprint, 528, 33 L. J. Exch. N. S. 297, affirmed in (1865) 3 Hurlst. & C. 602, 159 Eng. Reprint, 668, 11 Jur. N. S. 843, 13 L. T. N. S. 300, 13 Week. Rep. 1023). It must have been done as part of his duty; and that is what is meant by saying that it must have been done in the course of his employment. (See Stevens v. Woodward (1881) 6 Q. B. D. 318, 50 L. J. Q. B. N. S. 231, 44 L. T. N. S. 153, 29 Week. Rep. 506, 45 J. P. 603.) The terms "scope of employment" and "scope of authority" mean the same thing (Lloyd v. Grace, Smith & Co. [1912] A. C. at p. 736, 40 B. R. C. 498, 81 L. J. K. B. N. S. 1140, 107 L. T. N. S. 531, 28 Times L. R. 547, 56 Sol, Jo. 723, Ann. Cas. 1913B, 819). The cooking of the meal was no more an act done in the course of his employment than was the act of eating the meal. The only authority in this case to light a fire is to be gathered from the conversation between the respondent and Winter, and it was a special and limited authority to light a fire at Old Kimbolton. The direction as