Page:Harvard Law Review Volume 5.djvu/36

20 20 HARVARD LAW REVIEW. I now take up pleading. It is settled that an assumpsit 1 to or by a servant for his master may be laid as an assumpsit to or by the master. But these are cases where the master has commanded the act, and, therefore, as I showed in the beginning of this discussion, may be laid on one side. The same thing is true of a trespass commanded by the master. 2 But when we come to conduct which the master has not commanded, but for which he is responsible, the difficulty becomes greater. It is, nevertheless, settled that in actions on the case the negligence of the servant is properly laid as the negligence of the master, 3 and if the analogy of the substantive law is to be followed, and the fiction of identity is to be carried out to its logical results, the same would be true of all pleading. It is so held with regard to fraud. " The same rule of law which imputes to the principal the fraud of the agent and makes him answerable for the consequences justifies the allegation that the principal himself committed the wrong." 4 Some American cases have applied the same view to trespass, 5 and have held that this action could be maintained against a master whose servant had committed a trespass for which he was liable although he had not commanded it. But these decisions, although perfectly reasonable, seem to have been due rather to inadvertence than to logic, in the first instance, and the current of authority is the other way. Baron Parke says, " The maxim ' Qui facit per alium, facit per se' renders the master liable for all the negligent acts of the servant in the course of his employment, but that liability does not make the direct act of the servant the direct act of the master. Trespass will not lie against him ; case will, in effect, for employing a careless servant." 6 Considered as reason- ing, it would be hard to unite more errors in as many words. " Qui facit per alium, facit perse" as an axiom" admitted by common-sense goes no farther than to make a man liable for commanded trespasses, and for them trespass lies. If it be ex- tended beyond that point it simply embodies the fiction, and the 1 Seignior and Wolmer's Case, Godbolt, 360. 2 Gregory v. Piper, 9 B. & C. 591. 8 Brucker v. Fromont, 6 T. R. 659 (1796). 4 Comstock, Ch. J., in Bennett v. Judson, 21 N. Y. 238 (i860) ; ace. Barwick v. Eng- lish Joint Stock Bank, L. R. 2 Ex. 259 (1867). 6 Andrew v. Howard, 36 Vt. 248 (1863) ; May v. Bliss, 22 Vt. 477 (1850). « Sharrod v. London & N. W. Ry. Co., 4 Exch. 580, 585 ( 1849). Cf. Morley v. Gais- ford, 2 H. Bl. 442 (1795).