Page:Harvard Law Review Volume 4.djvu/380

364 Rolle says that "if the servant of an innkeeper sells wine which is corrupt, knowing this, action of deceit lies not against the servant, for he did this only as servant." So as to an attorney maliciously acting in a case where he knew there was no cause of action. "For that what he does is only as servant to another, and in the way of his calling and profession."

Later this was cut down by Lord Holt to this rule that a servant is not liable for a neglect (i.e., a nonfeasance), "for they must consider him only as a servant;" "but for a misfeasance an action will lie against a servant or deputy, but not quatenus a deputy or servant, but as a wrong-doer." That is to say, although it is contrary to theory to allow a servant to be sued for conduct in his capacity as such, he cannot rid himself of his responsibility as a freeman, and may be sued as a free wrong doer. This, of course, is the law to-day. Yet as late as Blackstone's Commentaries it was said that "if a smith's servant lames a horse while he is shoeing him, an action hes against the master, and not against the servant.

I think I now have traced sufficiently the history of agency in torts. The evidence satisfies me that the common law has started from the patria potestas and the frithborh,—whether following or simply helped by the Roman law, it does not matter,—and that it has worked itself out to its limits through the formula of identity. It is true that liability for another as master or principal is not confined to family relations; but I have shown partly, and shall complete the proof later, that the whole doctrine has been worked out in terms of master and servant and on the analogies which those terms suggested. O. W. Holmes, Jr. [To be continued.]