sustained the plea, saying, "The driving of the servant is the driving of the master; and if he be a foreigner, that sufficeth."[1]
I leave on one side certain cases which often have been cited for the proposition that a master is chargeable for his servant's torts, because they may be explained otherwise and make no mention of it.[2]
The next evidence of the law to which I refer is the passage from West's Symboleography which was given in full at the outset, and which gives the modern doctrine of agency as well as the fiction of identity in their full development. There are two nearly contemporaneous cases in which unsuccessful attempts were made to hold masters liable for wilful wrongs of their servants, in one for a piracy,[3] in the other for a fraud.[4] They are interesting chiefly as showing that the doctrine under discussion was in the air, but that its limits were not definitely fixed. The former sought to carry the rule respondeat superior to the full extent of the early statutes and cases which have been referred to, and cited the Roman law for its application to public affairs. The latter cites Doctor and Student. West also, it will have been noticed, indicates Roman influence.
Omitting one or two cases on the liability of the servant, which will be mentioned shortly, I come once more to a line of authorities touching public officers. I have said that although there was a difference in the degree of responsibility, under-officers always have been said to be servants.
Under Charles II. this difference was recognized, but it was laid down that "the high sheriff and under-sheriff is one officer," and on that ground the sheriff was held chargeable.[5] Lord Holt expressed the same thought: "What is done by the deputy is done by the principal, and it is the act of the principal," or, as it is put in the margin of the report, "Act of deputy may forfeit office of prin-
- ↑ Smith v. Shepherd, Cro. Eliz. 710; M. 41 & 42 Eliz. B. R.
- ↑ The most important is Lord North's case, Dyer, 161 a (T. 4 & 5 Phil. & M.); but there the master was a bailee bound to return at his peril (cf. The Common Law, 175-179). In Dyer, 238 b, pl. 38 (E. 7 Eliz.), a customer of a port was said to be liable to the penalties for a false return, although he made it through the concealment of his deputy. One or both of these cases are cited in Waltham v. Mulgar, Moore, 776; Southern v. How, Popham, 143; Boson v. Sandford, 1 Shower, 101; Lane v. Cotton, 12 Mod. 472, 489, etc.
- ↑ Waltham v. Mulgar, Moore, 776 (P. 3 Jac. I.).
- ↑ Southern v. How, Cro. Jac. 468; s. c. Popham, 143; 2 Roll. Rep, 5, 26; Bridgman 125, where the special verdict is set forth.
- ↑ Cremer v. Humberston, 2 Keble, 352 (H. 19 & 20 Car. II.).
