1 6 HARVARD LAW REVIEW. stand upon the same footing as his own." That although the limits of this identification are necessarily more or less vague, yet all the proposed tests go to show that the distinction rests on the remoteness of personal connection between the parties, and that as the connection grows slighter, the likeness to the original case of menials grows less. That a contractor acts' in his own name and on his own behalf, and that although the precise point at which the line is drawn may be somewhat arbitrary, the same is true of all legal distinctions, and that they are none the worse for it, and that wherever the line is drawn it is a necessary one, and required by the very definition of agency. I suppose this is the prevailing opinion. I come next to the limit of liability when the relation of master and servant is admitted to exist. The theory of agency as applied to free servants no doubt requires that if the servant commits a wilful trespass or any other wrong, when employed about his own business, the master should not be liable. No free man is servant all the time. But the cases which exonerate the master could never have been decided as the result of that theory alone. They rather represent the revolt of common-sense from the whole doctrine when its application is pushed far enough to become noticeable. For example, it has been held that it was beyond the scope of a servant's employment to go to the further side of a boundary ditch, upon a neighbor's land, and to cut bushes there for the pur- pose of clearing out the ditch, although the right management of the master's farm required that the ditch should be cleaned, and although the servant only did what he thought necessary to that end, and although the master relied wholly upon his servant's judgment in the entire management of the premises. 1 Mr. Justice Keating said, the powers given to the servant " were no doubt very wide, but I do not see how they could authorize a wrongful act on another person's land or render his employers liable for a wilful act of trespass." It is true that the act could not be authorized in the sense of being made lawful, but the same is true of every wrongful act for which the principal is held. As to the act being wilful, there was no evidence that it was so in any other sense than that in which every trespass might be said to be, i Bolingbroke v. Swindon Local Board, L. R. 9 C. P. 575 (1874). Cf. Lewis v. Read, 13 M. & W. 834 ; Haseler v. Lemoyne, 5 C. B. N. s. 530.
