16 Agency.

But in the second class, whore the act of the representative

consists in the breach of liis employer's antecedent obligations

and an infringement of the third party's antecedent rights,

the basis of liability is by no means so clear. Here the third

party is not misled by any representations of the employer

as to the employee's authority. Here the consideration that

where one employs an instrumentality for a merely operative

purpose he ought to be liable, within reasonable limits, for its

defects, must be invoked.^ But what are the limits ? (1) A

negligent performance of the operative act while the sei'vant

Is within the course of the employment, is an incident which

ought fairly to attach to the operation as a whole, and render

the master liable. Upon this modern cases express no doubt.

(2) A wilful damage inflicted upon a third party by the

servant in the performance of the operative act (as an inten-

tional assault or trespass) has given more trouble.^ But the

modern form which the test of liability has taken is that if

the wilful act was done by the servant in furtherance of, and

within the course of the employment or business entrusted to

him, the master is liable.^ It will be noted that there are

two tests here (a) " in the course of the employment" and

(h) " in the furtherance of the employment," or, as it is some-

times stated, " for the master's benefit." While both of these

tests are usually applied, there are some cases w^hich escape

the second, and the master is held liable where the act was

not " in the furtherance of the employment." ^

The basis of liability for a representative's acts may there-

fore be said to be :

principle is clearly put by Lord Cranworth in Pole ?'. Leask, 33 L. J. Ch.

155 (1863).

1 Undoubtedly the earliest cases proceeded on the ground of an ex-

press command (save where as in cases of fire there is a duty to insure

safety), but the law speedily escapes this narrow doctrine, and gradually

moulds itself into the modern doctrine through the intermediate fiction of

an "implied command." See Wigmore, 7 Harv. Law Rev. 383.

2 McManus v. Crickett, 1 East, 107 (1800) ; Wright v. Wilcox, 19

Wend. 343 (1838).

8 Post, В§ 252.

* Post, В§ 254.

INTKODUCTION, 17

(1) Command or ratification where the act is within the

actual authority ; ^

(2) Estoppel to deny authority, where the act is in excess

of actual authority, and consists in the making of a promise

or representation upon which a third party acts ; ^

(3) The course of the employment, where the act is in

excess of authority and consists in negligent harm to a third

person in the performance of an operative act ; ^

(4) The course of the employment and the furtherance of

the employment or husiness, where the act is in excess of

actual authority, and consists in a wilful harm to a third

person.^

В§ 6. Definition of agent and servant.

An agent is a representative vested with authority, real or

ostensible, to create voluntary primary obligations for his

principal, by making contracts with third persons, or by mak-