Page:Harvard Law Review Volume 5.djvu/26

IO HARVARD LAW REVIEW. although it often has been lost sight of. Hence a servant can commit larceny 1 and cannot maintain trover. 2 A bailee cannot commit larceny 3 and can maintain trover. 4 In an indictment for larceny against a third person the property cannot be laid in a servant, 5 it may be laid in a bailee. 6 A servant cannot assert a lien ; 7 a bailee, of course, may, even to the exclusion of the owner's right to the possessory actions. 8 Here, then, is another case in which effects have survived their causes. But for survival and the fiction of identity it would be hard to explain why in this case alone the actual custody of one man should be deemed by the law to be the possession of another and not of himself. A word should be added to avoid a misapprehension of which there are signs in the books, and to which I have adverted elsewhere. 9 A man may be a servant for some other purpose, and yet not a servant in his possession. Thus, an auctioneer or a factor is a servant for purposes of sale, but not for purposes of custody. His possession is not that of his principal, but, on the contrary, is adverse to it, and held in his own name, as is shown by his lien. On the other hand, if the fiction of identity is ad- hered to, there is nothing to hinder a man from constituting another his agent for the sole purpose of maintaining his posses- sion, with the same effect as if the agent were a domestic servant, and in that case the principal would have possession and the agent would not. Agency is comparatively unimportant in its bearing on posses- sion, for reasons connected with procedure. With regard to chattels, because a present right of possession is held enough to maintain the possessory actions, and therefore a bailor, upon a bailment terminable at his will, has the same remedies as a master, although he is not one. With regard to real estate, because the i Y. B. 13 Ed. IV. 9, 10, pi. 5; 21 H. VII. 14, pi. 21. 2 The Common Law, 227, n. 2. The distinction mentioned above, under torts, between servants in the house and on a journey, led to the servant's being allowed an appeal of robbery, without prejudice to the general principle. Heydon & Smith's Case, 13 Co. Rep. 67, 69; Drope v. Theyar, Popham, 178, 179; Combs v. Hundred of Brad- ley, 2 Salk. 613, pi. 2; ib., pi. 1. 3 2 Bish. Crim. Law, § 833, 7th ed. 4 The Common Law, 174, 243. 6 2 East, P. C. 652, 653. 6 Kelyng, 39. 7 Bristow v. Whitmore, 4 De G. & J. 325, 334. 8 Lord v. Price, L. R. 9 Ex/54 ; Owen v. Knight, 4 Bing. N. C. 54, 57. 9 The Common Law, 233.