pretend that the employer could exercise control in any practical sense, then the fiction is at an end. An evidence of the want of any more profound or logical reason might be sought in the different circumstances that have been laid hold of as tests, the objections that might be found to each, and in the fact that doubtful cases are now left to the jury."

On the other hand, it might be said that the master is made answerable for the consequences of the negligent acts "of those whom the law denominates his servants, because," in the language of that judg

71 Among the facts upon which stress has been laid are the following: 1. Choice. Kelly v. Mayor of New York, 11 N. Y. 432, 436. See Walcott v. Swampscott, 1 Allen, 101, 103. But although it is true that the employer has not generally the choice of the contractor's servants, he has the choice of the contractor, yet he is no more liable for the contractor's negligence than for that of his servant. 2. Control. Sadler v. Henlock, 4 El. & Bl. 570, 578 (1855). Yet there was control in the leading case of Quarman v. Burnett, 6 M. & W. 499 (1840), where the employee was held not to be the defendant's servant. Cf. Steel v. Lester, 3 C. P. D. 121 (1877). 3. A round sum paid. But this was true in Sadler v. Henlock, sup., where the employee was held to be a servant. 4. Power to discharge. Burke v. Norwich & W. R.R., 34 Conn. 474 (1867). See Lane v. Cotton, 12 Mod. 472, 488, 489. But apart from the fact that this can only be important as to persons removed two stages from the alleged master, and not to determine whether a person directly employed by him is a servant or contractor, the power to discharge a contractor's servants may be given to the contractee without making him their master. Reedie v. London & Northwestern Ry. Co., 4 Exch. 244, 258. Robinson v. Webb, II Bush (Ky.), 464–5. Notoriously distinct calling. Milligan v. Wedge, 12 Ad. & E. 737 (1840); Linton v. Smith, 8 Gray (Mass.), 47. This is a practical distinction, based on common-sense, not directly on a logical working out of the theory of agency. Moreover, it is only a partial test. It does not apply to all the cases.

In doubtful cases the matter seems to be left to the jury, that everready sword for the cutting of Gordian knots, as difficult questions of law generally are.

own.

ment which settled the distinction under consideration," "such servants represent the master himself, and their acts stand upon the same footing as his That although the limits of this identification are necessarily more or less vague, yet all the proposed tests go to show that the distinction rests on the remoteness of personal connection between the parties, and that as the connection grows slighter, the likeness to the original case of menials grows less. That a contractor acts in his own name and on his own behalf, and that although the precise point at which the line is drawn may be somewhat arbitrary, the same is true of all legal distinctions, and that they are none the worse for it, and that wherever the line is drawn it is a necessary one, and required by the very definition of agency. I suppose this is the prevailing opinion.

I come next to the limit of liability when the relation of master and servant is admitted to exist. The theory of agency as applied to free servants no doubt requires that if the servant commits a wilful trespass or any other wrong, when employed about his own business, the master should not be liable. No free man is servant all the time. But the cases which exonerate the master could never have been decided as the result of that theory alone. They rather represent the revolt of common-sense from the whole doctrine when its application is pushed far enough to become noticeable.

72 Littledale, J., in Laugher v. Pointer, 5 B. & C. 547, 553 (T. 7 G. IV. 1826).

For example, it has been held that it was beyond the scope of a servant's employment to go to the further side of a boundary ditch, upon a neighbor's land, and to cut bushes there for the purpose of clearing out the ditch, although the right management of the master's farm required that the ditch should be cleaned, and although the servant only did what he thought necessary to that end, and although the master relied wholly upon his servant's judgment in the entire management of the premises."

Mr. Justice Keating said, the powers given to the servant "were no doubt very wide, but I do not see how they could authorize a wrongful act on another person's land or render his employers liable for a wilful act of trespass." It is true that the act could not be authorized in the sense of being made lawful, but the same is true of every wrongful act for which the principal is held. As to the act being wilful, there was no evidence that it was so in any other sense than that which every trespass might be said to be, and as the judge below directed a verdict for the defendant, there were no presumptions adverse to the plaintiff in the case. Moreover, it has been said elsewhere that even a wilful act in furtherance of the master's business might charge him."

Mr. Justice Grove attempted to draw the line in another way. He said, "There are some things which

73 Bolingbroke v. Swindon Local Board, L. R. 9 C. P. 575 (1874). Cf. Lewis v. Read, 13 M. & W. 834; Haseler v. Lemoyne, 5 C. B. N. S. 530. 74 Howe v. Newmarch, 12 Allen, 49 (1866). See also cases as to fraud, inf., and cf. Craker v. Chicago & N. W. Ry. Co., 36 Wisc. 657, 669 (1875).

may be so naturally expected to occur from the wrongful or negligent conduct of persons engaged in carrying out an authority given, that they may be fairly said to be within the scope of the employment." But the theory of agency would require the same liability for both those things which might and those which might not be so naturally expected, and this is only revolt from the theory. Moreover, it may be doubted whether a case could be found where the servant's conduct was more naturally to be expected for the purpose of accomplishing what he had to do."

The truth is, as pretty clearly appears from the opinions of the judges, that they felt the difficulty of giving a rational explanation of the doctrine sought to be applied, and were not inclined to extend it. The line between right and wrong corresponded with the neighbor's boundary line, and therefore was more easily distinguishable than where it depends on the difference between care and negligence, and it was just so much easier to hold that the scope of the servant's employment was limited to lawful acts.

I now pass to fraud. It first must be understood that, whatever the law may be, it is the same in the case of agents, stricto sensu, as of other servants. As has been mentioned, the fraudulent servant was a factor in the first reported decision that the master was liable. Now if the defrauded party not merely has a right to repudiate a contract fraudulently obtained, or in general to charge a defendant to the

75 Cf. Harlow v. Humiston, 6 Cowen, 189 (1826).

76 Hern v. Nichols, 1 Salk. 289.

extent that he has derived a benefit from another's fraud, but may hold him answerable in solidum for the damage caused by the fraudulent acts of his servant in the course of the latter's employment, the ground can only be the fiction that the act of the servant is the act of the master.

It is true that in the House of Lords " Lord Selborne said that the English cases "proceeded, not on the ground of any imputation of vicarious fraud to the principal, but because (as it was well put by Mr. Justice Willes in Barwick's case") "with respect to the question whether a principal is answerable for the act of his agent in the course of his master's business, no sensible distinction can be drawn between the case of fraud and the case of any other wrong." But this only puts off the evil day. Why is the principal answerable in the case of any other wrong? It is, as has been seen, because, in the language of Mr. Justice Littledale, the "servants represent the master himself, and their acts stand upon the same footing as his own." 79 Indeed Mr. Justice Willes, in the very judgment cited by Lord Selborne, refers to Mr. Justice Littledale's judgment for the general principle. So Lord Denman, in Fuller v. Wilson, "We think the principal and his agent

80

77 Houldsworth v. City of Glasgow Bank, 5 App. Cas. 317, 326, 327 (1880).

78 L. R. 2 Ex. 259.

79 Laugher v. Pointer, 5 B. & C. 547, 553. See Williams v. Jones, 3 H. & C. 602, 609.

80 3 Q. B. 58, 67; s. c. reversed on another ground, but admitting this principle, ib. 77 and 1009, 1010 (1842).