Page:Harvard Law Review Volume 4.djvu/374

358 An earlier record of the same reign, although it turned on the laws of Oleron, shows that the King's Court would in some cases hold masters more strictly accountable for their servants' torts than is even now the case. A ship-master was held liable in trespass de bonis asportatis for goods wrongfully taken by the mariners, and it was said that he was answerable for all trespasses on board his ship.

A nearly contemporaneous statute is worth mentioning, although it perhaps is to be construed as referring to the fines which have been mentioned above, or to other forfeitures, and not to civil damages. It reads, "That no merchant nor other, of what condition that he be, shall lose or forfeit his goods nor merchandizes for the trespass and forfeiture of his servant, unless he do it by the commandment or procurement of his master, or that he hath offended in the office in which his master hath set him, or in other manner, that the master be holden to answer for the deed of his servant by the law-merchant, as elsewhere is used." The statute limits a previously existing liability, but leaves it open that the master still shall be holden to answer for the deed of his servant in certain cases, including those of the servant's offending in the office in which the master hath set him. It is dealing with merchants, to be sure, but is another evidence that the whole modern law is of ancient extraction.

It must be remembered, however, that the cases in which the modern doctrines could have been applied in the time of the Year Books were exceedingly few. The torts dealt with by the early law were almost invariably wilful. They were either prompted by actual malevolence, or at least were committed with full foresight of the ensuing damage. And as the judges from an early day were familiar with the distinction between acts done by a man on his own behalf and those done in the capacity of servant, it is obvious that they could not have held masters