10 Agency.

(7) Transfer of Service. A master may transfer tempora-

rily tlic service of his servant to another, so as to make the

servant the rei)resentative of the transferee. Thus A. rents

a machine to B. with a man to operate it. If, in the opera-

tion of the macliine, the man is under the control of B., he

becomes B.'s servant as to the operation, though not perhaps

as to the inspection aud repair, of the machine.^ But other-

wise, if the man remains under the control of A., who stands

somewhat in the relation of an independent contractor.*^ The

master cannot transfer the control over a servant without the

lattcr's consent.^ Transfer of service is more fully considered

hereafter.*

В§ 4. Distinction between the law of principal and agent, and

the law^ of master and servant.

Agency ^ divides itself into two main heads, — the law of

principal and agent,^ and the law of master and servant.

The fundamental distinctions between the two are to be

sought, — (1) in the nature of the act authorized, and (2) in

the nature of the obligation resulting from the performance

of the act, and (3) in the nature of the legal test fixing the

constituent's liability for an act in excess of authority.

(1) The primary distinction l)etwecn representation through

an agent, and representation through a servant, lies in the

nature of the act which the rei>rosentative is authorized to

perform. An agent represents his principal in an act intended,

1 Donovan V. Laing, (1893) 1 q. B. 629.

2 Quinn V. Complete Electric Const. Co., 46 Fed. Rep. 506; Huff V.

Ford, 126 Mass. 24.

8 Post, в§ 86.

* Post, В§ 228.

^ It is to be regretted that the word " agency " should be used to cover

the whole field of representation, and that the word " agent " should at the

same time be used as the name of the representative in one branch of it.

H there were another word for agency (e. g. representation), or aimtlicr

word for agent (e. g. deputy), many tedious circumlocutions niiglit be

avoided. It might be better still if the whole field were called the " Law

of Representation," while the branch known as the " Law of Principal

and Agent" were called the "Law of Agency," and that known as the

" Law of Master aud Servant," were called the " Law of Service."

Introduction. 11

or calculated, to result in the creation of a voluntary primary

obligation or undertaking. A servant represents his master I

In the performance of an operative or mechanical act of ser- •

Vice not resulting in the creation of a voluntary primary obli-

gation, but which may result, intentionally or inadvertently, in

the breach of an existing one. An agent makes offers, repre-

sentations, or promises for his principal, addressed to third

persons, upon the strength of which such third persons change

their legal relation or position. A servant performs operative /

acts not intended to induce third persons to change their legal !

relations. An agent has to take account of the mind and will of ;

two persons, namely, of his principal whose mind he represents, '

and of the third person whose mind he seeks to influence. A ,

servant has to take account of the mind and will of one per- i

son, namely, of his master whose existing obligations and

duties he is to perform. An agent may cause damage by