is the act of his client," it is simply the familiar fiction concerning servants applied in a new field. On this ground it was held that the client was answerable in trespass, for assault and false imprisonment, where his attorney had caused the party to be arrested on a void writ, wholly irrespective, it would seem, of any actual command or knowledge on the part of the client;[1] and in trespass quare clausum, for an officer's breaking and entering a man's house and taking his goods by command of an attorney's agent without the actual knowledge either of the client or the attorney. The court said that the client was "answerable for the act of his attorney, and that [the attorney] and his agent [were] to be considered as one person."[2]
The only other agent of the higher class that I think it necessary to mention is the factor. I have shown elsewhere that he is always called a servant in the old books.[3] West's language includes factors as well as attorneys. Servant, factor, and attorney are mentioned in one breath and on a common footing in the Year Book, 8 Edward IV., folio 11 b. So Dyer,[4] "if a purveyor, factor, or servant make a contract for his sovereign or master." So in trover for money against the plaintiff's "servant and factor."[5] It is curious that in one of the first attempts to make a man liable for the fraud of another, the fraudulent party was a factor. The case was argued in terms of master and servant.[6] The first authority for holding a master answerable for his servant's fraud is another case of a factor.[7] Nothing is said of master and servant in the short note in Salkeld. But in view of the argument in Southern v. How, just referred to, which must have been before Lord Holt's mind, and the invariable language of the earlier books, including Lord Holt's own when arguing Morse v. Slue ("Factor, who is servant at the master's dispose"),[8] it is safe to assume that he considered the case to be one of master and servant, and it always is cited as such.[9]
- ↑ Parsons v. Loyd, 3 Wils. 341, 345; s.c. 2 W. Bl. 845 (M. 13 G. III. 1772); Barker v. Braham, 2 W. Bl. 866, 868, 869; s. c. 3 Wils. 368.
- ↑ Bates v. Pilling, 6 B. & C. 38 (1826).
- ↑ The Common Law, 228, n. 3, 181. See further generally, 230, and n. 4, 5.
- ↑ Alford v . Eglisfield, Dyer, 230 b, pl. 56.
- ↑ Holiday v. Hicks, Cro. Eliz. 638, 661, 746. See further, Malyne's Lex Merc., Pt. I. c. 16; Molloy, Book 3, c. 8, § 1; Williams v. Millington, 1 H. Bl. 81, 82.
- ↑ Southern v. How, Cro. Jac. 468; s. c. Popham, 143.
- ↑ Hern v. Nichols, 1 Salk. 289.
- ↑ Mors v. Slew, 3 Keble, 72.
- ↑ Smith, Master and Servant, 3d ed., 266.
