If this were carried out logically, it would follow that an agent constituted to hold possession in his principal’s name would not be regarded as having the legal possession, or as entitled to trespass.  But, after what has been said, no opinion can be expressed whether the law would go so far, unless it is shown by precedent. 4 The nature of the case [233] will be observed.  It is that of an agent constituted for the very point and purpose of possession.  A bailee may be an agent for some other purpose.  A free servant may be made a bailee.  But the bailee holds in his own as we say, following the Roman idiom, and the servant or agent holding as such does not.

It would hardly be worth while, if space allowed, to search the books on this subject, because of the great confusion of language to be found in them.  It has been said, for instance, in this connection, that a carrier is a servant; 1 while nothing can be clearer than that, while goods are in custody, they are in his possession. 2 So where goods remain in the custody of a vendor, appropriation to the contract and acceptance have been confounded with delivery. 3 Our law has adopted the Roman doctrine, 4 that there may be a delivery, that is, a change of possession, by a change in the character in which the vendor holds, but has not always imitated the caution of the civilians with regard to what amounts to such a change. 5 Bailees are constantly spoken of as if they were agents to possess,—­a confusion made [234] easier by the fact that they generally are agents for other purposes.  Those cases which attribute possession to a transferee of goods in the hands of a middleman, 1 without distinguishing whether the middleman holds in his own name or the buyer’s, are generally right in the result, no doubt, but have added to the confusion of thought upon the subject.

German writers are a little apt to value a theory of possession somewhat in proportion to the breadth of the distinction which it draws between juridical possession and actual detention; but, from the point of view taken here, it will be seen that the grounds for denying possession and the possessory remedies to servants and agents holding as such—­if, indeed, the latter have not those remedies—­are merely historical, and that the general theory can only take account of the denial as an anomaly.  It will also be perceived that the ground on which servants and depositaries have been often likened to each other, namely, that they both hold for the benefit of another and not for themselves, is wholly without influence on our law, which has always treated depositaries as having possession; and is not the true explanation of the Roman doctrine, which did not decide either case upon that ground, and which decided each for reasons different from those on which it decided the other.