Page:Harvard Law Review Volume 5.djvu/33

17 AGENCY. 17 and as the judge below directed a verdict for the defendant, there were no presumptions adverse to the plaintiff in the case. More- over, it has been said elsewhere that even a wilful act in furtherance of the master's business might charge him. 1 Mr. Justice Grove attempted to draw the line in another way. He said, " There are some things which may be so naturally ex- pected 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 con- duct was more naturally to be expected for the purpose of accom- plishing what he had to do. 2 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 dis- tinguishable 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 ser- vant was a factor in the first reported decision that the master was liable. 3 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 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 4 Lord Selborne said that 1 Howe v. Newmarch, 12 Allen, 49 (1866). See also cases as to fraud, inf., and cf. Craker v. Chicago & N. V. Ry. Co., 36 Wise. 657, 669 (1875). 2 Cf. Harlow v. Humiston, 6 Cowen, 189 (1826). 8 Hern v. Nichols, 1 Salk. 289.
 * Houldsworth v. City of Glasgow Bank, 5 App. Cas. 317, 326, 327 (1880).