and this must be examined, although the evidence is painfully meagre. The rule would seem to follow very easily from the identification of agent and principal, as I shall show more fully in a moment. It is therefore well to observe at the outset that the power of contracting through others, natural as it seems, started from the family relations, and that it has been expressed in the familiar language of identification.
Generally speaking, by the Roman law contractual rights could not be acquired through free persons who were strangers to the family. But a slave derived a standing to accept a promise to his master ex persona domini.[1] Bracton says that contracts can be accepted for a principal by his agent; but he starts from the domestic relations in language very like that of the Roman jurisconsults. An obligation may be acquired through slaves or free agents in our power, if they take the contract in the name of their master.[2]
It was said under Henry V. that a lease made by the seneschal of a prior should be averred as the lease of the prior,[3] and under James I. it was held that an assumpsit to a servant for his master was properly laid as an assumpsit to the master.[4] West's Symboleography belongs to the beginning of the same reign. It will be remembered that the language which has been quoted from that work applies to contracts as well as to torts. A discussion in the Year Book, 8 Edward IV., fol. 11, is thus abridged in Popham: "My servant makes a contract, or buys goods to my use; I am liable, and it is my act."[5] Baron Parke explains the requirement that a deed executed by an agent should be executed in the name of his principal, in language repeated from Lord Coke: "The attorney is ... put in place of the principal and represents his person."[6] Finally, Chitty, still speaking of contracts, says, like
- ↑ Inst. 3, 17, pr. See Gaius, 3, §§ 164-166.
- ↑ "Videndum etiam est per quas personas acquiratur obligatio, et sciendum quod per procuratores, et per liberos, quos sub potestate nostra habemus, et per nosmetipsos, et filios nostros et per liberos homines servientes nostros." Bract., fol. 100 b. So "Etiam dormienti per servum acquiritur, ut per procuratorem, si nomine domini stipuletur." Bract., fol. 28 b.
- ↑ Y. B. 8 H. V. 4, pl. 17.
- ↑ Seignior & Wolmer's Case, Godbolt, 360 (T. 21 Jac). Cf. Jordan's Case, Y. B. 27 H. VIII. 24, pl. 3.
- ↑ Drope v. Theyar, Popham, 178, 179 (P. 2 Car. I.).
- ↑ Hunter v. Parker, 7 M. & W. 322, 343 (1840); Combes's Case, 9 Rep. 75 a, 76 b, 77 (T. 11 Jac). The fiction of identity between principal and agent was fully stated by
