If the liability of a master for the torts of his servant had hitherto been recognized by the courts as the decaying remnant of an obsolete institution, it would not be surprising to find it confined to the cases settled by ancient precedent.But such has not been the fact.It has been extended to new relations by analogy, It exists where the principal does not stand in the relation of paterfamilias to the actual wrong-doer. A man may be held for another where the relation was of such a transitory nature as to exclude the conception of status, as for the negligence of another person's servant momentarily acting for the defendant, or of a neighbor helping him as a volunteer; and, so far as known, no principal has ever escaped on the ground of the dignity of his agent's employment. The courts habitually speak as if the same rules applied to brokers and other agents, as to servants properly so called. Indeed, it has been laid down in terms, that the liability of employers is not confined to the case of servants, although the usual cases are, of course, those of menial servants, and the like, who could not pay a large verdict.
On the other hand, if the peculiar doctrines of agency are anomalous, and form, as I believe, the vanishing point of the servile status, it may well happen that common sense will refuse to carry them out to their furthest applications.Such conflicts between tradition and the instinct of justice we may see upon the question of identifying a principal who knows the truth with an agent who makes a false representation, in order to make out a fraud, as in Cornfoot v.Fowke, or upon that as to the liability of a principal for the frauds of his agent discussed in many English cases. But, so long as the fiction which makes the root of a master's liability is left alive, it is as hopeless to reconcile the differences by logic as to square the circle.
In an article in the American Law Review I referred to an expression of Godefroi with regard to agents; eadem est persona domini et procuratoris. This notion of a fictitious unity of person has been pronounced a darkening of counsel in a recent useful work. But it receives the sanction of Sir Henry Maine, and I believe that it must stand as expressing an important aspect of the law, if, as I have tried to show, there is no adequate and complete explanation of the modern law, except by the survival in practice of rules which lost their true meaning when the objects of them ceased to be slaves.There is no trouble in understanding what is meant by saying that a slave has no legal standing, but is absorbed in the family which his master represents before the law.The meaning seems equally clear when we say that a free servant, in his relations as such, is in many respects likened by the law to a slave (not, of course, to his own detriment as a freeman).The next step is simply that others not servants in a general sense may be treated as if servants in a particular connection.This is the progress of ideas as shown us by history; and this is what is meant by saying that the characteristic feature which justifies agency as a title of the law is the absorption pro hac vice of the agent's legal individuality in that of his principal.
If this were carried out logically, it would follow that an agent constituted to hold possession in his principal's name would not be regarded as having the legal possession, or as entitled to trespass.But, after what has been said, no opinion can be expressed whether the law would go so far, unless it is shown by precedent. The nature of the case will be observed.It is that of an agent constituted for the very point and purpose of possession.A bailee may be an agent for some other purpose.Afree servant may be made a bailee.But the bailee holds in his own as we say, following the Roman idiom, and the servant or agent holding as such does not.
It would hardly be worth while, if space allowed, to search the books on this subject, because of the great confusion of language to be found in them.It has been said, for instance, in this connection, that a carrier is a servant; while nothing can be clearer than that, while goods are in custody, they are in his possession. So where goods remain in the custody of a vendor, appropriation to the contract and acceptance have been confounded with delivery. Our law has adopted the Roman doctrine, that there may be a delivery, that is, a change of possession, by a change in the character in which the vendor holds, but has not always imitated the caution of the civilians with regard to what amounts to such a change. Bailees are constantly spoken of as if they were agents to possess,--a confusion made easier by the fact that they generally are agents for other purposes.Those cases which attribute possession to a transferee of goods in the hands of a middleman, without distinguishing whether the middleman holds in his own name or the buyer's, are generally right in the result, no doubt, but have added to the confusion of thought upon the subject.
German writers are a little apt to value a theory of possession somewhat in proportion to the breadth of the distinction which it draws between juridical possession and actual detention; but, from the point of view taken here, it will be seen that the grounds for denying possession and the possessory remedies to servants and agents holding as such--if, indeed, the latter have not those remedies--are merely historical, and that the general theory can only take account of the denial as an anomaly.It will also be perceived that the ground on which servants and depositaries have been often likened to each other, namely, that they both hold for the benefit of another and not for themselves, is wholly without influence on our law, which has always treated depositaries as having possession; and is not the true explanation of the Roman doctrine, which did not decide either case upon that ground, and which decided each for reasons different from those on which it decided the other.
