arm broken by fellow passengers); Flint v. Transportation Co. 34 Conn. 554 (similar case); Nieto v. Clark, 1 Cliff. 145 (assault by steward of a ship on female passenger); Railroad v. Blocker, 27 Md. 277. It is an old and well-settled doctrine of the common law that the possession of the servant is the possession of the master. This has many important consequences, but no one would think of applying it in all cases of agency. In a large proportion of those cases, e. g., those of factors, bailees, etc., the exact contrary is true. The independent possession of the agent is an essential mark of the relation. (Story on Agency, 401 a, and citations there; Wharton on Agency, and cases. 766, Many cases are collected in 18 Am. Dec. 549. A statute validating pledges by an agent in possession will not cover such a pledge by a servant. (Lamb v. Attenborough, 1 Best & Smith, 831; 8 Jur. N. S. 280.) 3. The relation of master and servant has legal effects, whether the work done is lawful or unlawful. The servant does not cease to be one if he commits a wrong in his master's employ. Agency, on the other hand, can exist only for lawful purposes. From its very nature as a contract, it can only be formed for such ends. A contract of agency for the performance of an unlawful act, or the commission of a crime, would be as void as any other such contract. Story himself states this rule, although he goes on directly to speak of the torts of agents and the liabilities of principals therefor. "Although a person may do an unlawful act, it is clear that he cannot delegate authority to another person to do it, for it is against the policy of the law to allow any such authority, and therefore the appointment is utterly void. It imports neither duty nor obligation nor responsibility on either side, although it may involve both in punishment." (Story on Agency, 11. And see ?? 235, 261. But compare the language of § 388 and 451.) But his latest editor, Mr. C. P. Green ough, seems to have perceived the inconsistency of the two positions, and has pointed out in a very modest way the fact that it is service and not agency which makes the master liable. (Note 1 to 2 451.) "In regard to the liability of the principal to third persons for the torts of his agent, there is a distinction to be made between those torts that spring from the subject-matter of the agency, and affect those with whom the agent deals on behalf of his principal through such person's relationship to the subject-matter of the agency, and those torts which arise from the manner in which the agency is transacted, and which affect those who are in other respects strangers to it, or, if they affect those with whom the agent deals, yet affect them as they might be affected were they strangers. In the first class of cases the maxim, qui facit per alium, facit per se, applies. The principal, if liable at all, is liable for his own act performed by his agent. To the second class of cases the maxim has no application. The principal, if liable, is liable not for his own act, but for the act of another. His liability rests on grounds of expediency, and is in derogation of the rule, which, with this exception, is universal, that a person is answerable for his own acts only. In this second class of cases he is not liable, unless another relation, that of master and servant, is superimposed upon the relation of principal and agent. The cases appear to warrant the conclusion that this additional relation does not exist, unless the agent would be legally bound to obey an order of the principal to abstain from the injurious act, or from the injurious mode of performing the act. When this relation exists, the master appears to be liable, provided the *Sed quere as to the need of the servant being legally bound to obey. This would exclude all cases of service without binding contract, etc. The cases hold it sufficient that he be actually in the employment, and under the master's orders. If this is so, the master may be liable even for an act amounting to felony, qua master. (Osborn v. Gillet, Law R. 8 Ex. 88.) servant at the time is acting within the general scope of his employment, and is not obeying the directions of a third person (Murphy v. Caralli, 3 Hurl. & C. 462; Coomes v. Houghton, 102 Mass. 211; Kimball v. Cushman, 103 Mass. 194; McLaughlin v. Pryor, 4 Scott N. R. 655), who has some title to give directions (Garretzen v. Duenckel, 50 Mo. 104), such person not being an intermediate agent of the master (Stone v. Cartwright, 6 Tenn. 411; Brown v. Lent, 20 Vt. 529), and is not wilfully acting for himself instead of for his master. (Mitchell v. Crassweller, 13 Com. B. 237; Storey v. Ashton, Law R. 4 Q. B. 476.)" (23) Any right which the master may have lawfully acquired to perpetual service, etc., page 424. Can a freeman by contract alienate his freedom? If not, why not? Can he let his services to a master for his entire life? The question has been mooted, at least from the time of the glossators, utrum liber homo possit in perpetuum operas suas locare. Irnerius is said to have denied it, as an infringement of the natural right of liberty, arguing from Dig. de cond.et dem. 35, 1, 1. Titio, section 2, which ends "potior est legato libertas: ergo contractu potior." But Azo thinks the contrary, giving as his reason that the contract may be enforced in damages, or the labor of another equally good workman given in place of the locator operæ, provided his own be not demanded specifically. But all the force of this is destroyed at once by saying that all the doctors of Bologna agreed that the performance could be so enforced in person. (Azo, Summa in Cod. 4, 65, p. 613.) Struve (Syntagma J. C., Exerc. 24, par. 4, ad Dig. 19, 2, note y; Tom. I. p. 1667), quotes authors on both sides at some length; the majority of DD. favoring the power, and this is even said by some to be the sententia communis, or weight of authority, though Struve only rests it on the weak ground (of Azo) that the contract can be fulfilled by paying damages, interesse præstando. The English doctrine on the same subject is stated in 1 S. L. C., 443, as settled in favor of the contract, "though in some countries a restraint so extensive has been considered inconsistent with individual liberty, and accordingly forbidden." But the cases cited do not warrant the statement "that the question is long since settled in our law." (1 S. L. C. 443.) In America, the leaning is the other way. (Schouler ɔn Dom. Rel. 2 460, and cases cited.) Clark's Case, 1 Blackf. 122; 12 Am. Dec. 213, holds a contract to serve for twenty years invalid; and also that contracts of service cannot be specifically enforced. Note on latter subject with American cases contra. (Parsons v. Trask, 7 Gray, 473; 66 Am. Dec. 502.) A contract for services indefinite as to their character and place of performance is void. In the opinion Thomas, J., said: Such a contract, it is scarcely necessary to say, is against the policy of our institutions and laws. If such a sale of service could be lawfully made for five years, it might for the same reasons, for ten, and so for the term of one's life. The door would thus be opened for a species of servitude inconsistent with the first and fundamental article of our declaration of rights, which, proprio vigore, not only abolished every vestige of slavery then existing in the commonwealth, but rendered every form of it thereafter legally impossible. That article has always been regarded, not simply as the declaration of an abstract principle, but as having the active force and conclusive authority of law. (24) If any servant, workman, or laborer assaults his master or dame, page 428. The statute here cited might be common law in America. by its date (5 Eliz. c. 4, 1563), but our courts have never regarded it as such (2 Kent Com. 258, and notes), or held that any common-law distinction between master and servant as men of different ranks existed here. A crime committed by either against the other would be of the same nature and degree; the servant's assault upon the master would be judged precisely like the master's assault upon the servant under the same circumstances. The last vestige of a different doctrine disappeared with slavery. The control exercised by the master over the servant is an incident to their temporary relation, not a right of one class of men over another. A may be the master of B in one relation, and servant in another; as when a lawyer conducts an action for his coachman as a client. (25) The master is answerable for the act of his servant nam qui facit per alium facit per se, page 429. The history of this maxim is interesting and instructive to those who believe that a maxim necessarily is the expression of natural law, which must have been known to those who laid the first basis of our law. I have said clsewhere (note 22, p. 720), that it was unknown to Roman law. Coke probably took it from the canonists. Hc quotes it twice in 4 Inst. 109, cited here, and in 1 Inst. 258 a. The latter comes nearer to its form found in c. 72, de R. J. in 6to v. 12, qui facit per alium, perinde est, ac si faciat per se ipsum. It is found also in Barbosa Axiomata Juris no. 92, p. 59, and in many contemporaries. The nearest approach to the language of this maxim I have found anywhere in the glossed C. J. C. is in Dig. 11, 7, 39, de statuliberis. The questions discussed here are as to the performance of conditions of emancipation in case the party to be benefited is dead, and the like. It is asked whether a slave manumitted on condition of rendering service to a stranger can be freed by another's rendering it, and the answer is that he |