dispose")," it is safe to assume that he considered the case to one of master and servant, and it always is cited as such.35 To conclude this part of the discussion, I repeat from my book on the Common Law 36 that as late as Blackstone agents appear under the general head of servants; that the precedents for the law of agency are cases of master and servant, when the converse is not the case; and that Blackstone's language on this point is express: "There is yet a fourth species of servants, if they may be so called, being rather in a superior, a ministerial, capacity; such as stewards, factors, and bailiffs; whom, however, the law considers as servants pro tempore, with regard to such of their acts as affect their master's or employer's property." 37 Possession is the third branch of the law in which the peculiar doctrines of agency are to be discovered, and to that I now pass. The Roman law held that the possession of a slave was the possession of his master, on the practical ground of the master's power.38 At first it confined possession through others pretty closely to things in custody of persons under the patria potestas of the possessor (including prisoners bona fide held as slaves). Later the right was extended by a constitution of Severus.39 The common law in like manner 34 Mors v. Slew, 3 Keble, 72. 35 Smith, Master and Servant, 3d ed., 266. 36 P. 228 et seq. 38 The Common Law, 228; Gaius, 3, §§ 164-166. C. 7. 32. I. 40 allowed lords to appropriate lands and chattels purchased by their villeins, and after they had manifested their will to do so, the occupation of the villeins was taken to be the right of their lords. As at Rome, the analogies of the familia were extended to free agents. Bracton allows possession through free agents, but the possession must be held in the name of the principal;"1 and from that day to this it always has been the law that the custody of the servant is the possession of the master.42 41 The disappearance of the servant under the persona of his master, of which a trace was discovered in the law of torts, in this instance has remained complete. Servants have no possession of property in their custody as such. The distinction in this regard between servants and all bailees whatsoever * is fundamental, although it often has been lost sight of. Hence a servant can commit larceny "5 and cannot maintain trover. A bailee cannot commit larceny 40 Littleton, 46 45 44 47 177. Cf. Bract. fol. 191 a; Y. B. 22 Ass., pl. 37, fol. 93; Litt., § 172; Co. Lit. 117 a. 41 Bract., fol. 28 b, 42 b, 43, etc.; Fleta, IV., C. 3, § 1, C. 10, § 7, C. II, § I. 42 Wheteley v. Stone, 2 Roll. Abr. 556, pl. 14; s. c. Hobart, 180; Drope v. Theyar, Popham, 178, 179. 43 The Common Law, 227. 44 The Common Law, 174, 211, 221, 243; Hallgarten v. Oldham, 135 Mass. I, 9. 45 Y. B. 13 Ed. IV. 9, 10, pl. 5; 21 H. VII. 14, pl. 21. 46 The Common Law, 227, n. 2. The distinction mentioned above, under torts, between servants in the house and on a journey, led to the servant's being allowed an appeal of robbery, without prejudice to the general principle. Heydon & Smith's Case, 13 Co. Rep. 67, 69; Drope v. Theyar, Popham, 178, 179; Coombs v. Hundred of Bradley, 2 Salk. 613, pl. 2; ib., pl. 1. 47 2 Bish. Crim. Law, § 833, 7th ed. and can maintain trover." In an indictment for larceny against a third person the property cannot be laid in a servant," it may be laid in a bailee.5° A servant cannot assert a lien;51 a bailee, of course, may, even to the exclusion of the owner's right to the possessory actions." 52 Here, then, is another case in which effects have survived their causes. But for survival and the fiction of identity it would be hard to explain why in this case alone the actual custody of one man should be deemed by the law to be the possession of another and not of himself. A word should be added to avoid a misapprehension of which there are signs in the books, and to which I have adverted elsewhere," A man may be a servant for some other purpose, and yet not a servant in his possession. Thus, an auctioneer or a factor is a servant for purposes of sale, but not for purposes of custody. His possession is not that of his principal, but, on the contrary, is adverse to it, and held in his own name, as is shown by his lien. On the other hand, if the fiction of identity is adhered to, there is nothing to hinder a man from constituting another his agent for the sole purpose of maintaining his possession, with the same effect as if the agent were a domestic servant, and in that case the principal would have possession and the agent would not. 48 The Common Law, 174, 243. 50 Kelyng, 39. 49 2 East, P. C. 652, 653. 51 Bristow v. Whitmore, 4 De G. & J. 325, 334. 52 Lord v. Price, L. R. 9 Ex. 54; Owen v. Knight, 4 Bing. N. C. 54 57. 53 The Common Law, 233. Agency is comparatively unimportant in its bearin on possession, for reasons connected with procedure With regard to chattels, because a present right of possession is held enough to maintain the possessory actions, and therefore a bailor, upon a bailment terminable at his will, has the same remedies as a master, although he is not one. With regard to real estate, because the royal remedies, the assizes, were confined to those who had a feudal seisin, and the party who had the seisin could recover as well when his lands were subject to a term of years as when they were in charge of agents or servants.54 Ratification is the only doctrine of which the history remains to be examined. With regard to this I desire to express myself with great caution, as I shall not attempt to analyze exhaustively the Roman sources from which it was derived. I doubt, however, whether the Romans would have gone the length of the modern English law, which seems to have grown to its present extent on English soil. Ulpian said that a previous command to dispossess another would make the act mine, and, although opinion was divided on the subject, he thought that ratification would have the same effect. He agreed with the latitudinarian doctrine of the Sabinians, who compared ratification to a previous command." The Sabinians' "comparison" of ratification to mandate may have been a mere figure of speech to explain the natural conclusion that if one accepts possession 54 Bract., fol. 207 a. Cf. ib., 220. Heusler, Gewere, 126. of a thing which has been acquired for him by wrongful force, he is answerable for the property in the same way as if he had taken it himself. It therefore is hardly worth while to inquire whether the glossators were right in their comment upon this passage, that the taking must have been in the name of the assumed principal, -a condition which is ambiguously mentioned elsewhere in the Digest.50 56 Bracton copied Ulpian," still, so far as I have observed, not going beyond cases of distress 58 and disseisin." The first reported cases known to me are again aşsizes of novel disseisin.60 61 But later decisions went much beyond this point, as may be illustrated by one of them. In trespass de bonis asportatis the defendant justified as bailiff. After charging the inquest Gascoigne said that "if the defendant took the chattels claiming property in himself for a heriot, although the lord afterward agreed to that taking for services due him, still he [the defendant] cannot be called his bailiff for that time. But had he taken them without command, for services due the lord, and had the lord afterwards agreed to his taking, he shall be adjudged as bailiff, although he was nowhere his bailiff before that tak 56 D. 43, 26, 13. (Pomponius). 58 Fol. 158 b, 159 a. 57 Bract., fol. 171 b. 59 Fol. 171. But note that by ratification "suam facit injuriam, et ita tenetur ad utrumque, ad restitutionem, s. [et] ad pœnam." Ibid., b. 60 Y. B. 30 Ed. I. 128 (Horwood) (where, however, the modern doctrine is stated and the Roman maxim is quoted by the judge); 38 Ass., pl. 9, fol. 223; s. c. 38 Ed. III. 18; 12 Ed. IV. 9, pl. 23; Plowden, 8 ad fin, 27, 31. 61 Y. B. 7 H. IV. 34, 35, pl. 1. |