V KF1345.sW5r""*'"-"""'^ '^'lIlllEimimi?" "'^ '^"' °' agency as a b 3 1924 019 245 558 (SnrtipU ICaiu i>rl|noI iCibraty COMMENTARIES LAW OF AGENCY AS A BRANCH OF COMMERCIAL AND MARITIME JURISPRUDENCE, WITH OCCASIONAL ILLUSTRATIONS FROM THE CIVIL AND FOREIGN LAW. By JOSEPH STORY, ll.d. ONE OF THE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES, AND DASE PROFESSOR OF LAW IN HARVARD UNIVERSITY. " The Maritime Law is not the Law of a particular country." — ^Lorb Mansfield. " If Law be a Science, and really deserve ho sublime a name, it must be founded on principle, and claim an exalted rank in the Empire of Reason." — Sir Wiluam Jones. FIFTH EDITION REVISED, COEEECTED, AND ENLAEGED. BOSTON: LITTLE, BROWN AND COMPANY. 1857. Entered according to Act of Congress, in tlie year 1857, by Wiluam W. Stokt, in the Clerli's Office of tlie District Court of the District of Massachusetts. RIVEKSIDB, CAMBRIDGE: PRINTED BY H. O. HOUGHTOH AND COMPANT. ADVERTISEMENT TO THB FIFTH EDITION. In the preparation of a new edition of these Commentaries, the late English and American cases have been carefully ex- amined and so far as applicable, have been referred to. The law of Respondeat Superior has received special attention, and considerable addition will be found to the chapter on that subject. The new matter, except mere cases, is always in- cluded in brackets, thus [ ]. All the citations, old and new, have been accurately verified by actual examination of the volume and page cited. EDMUND HASTINGS BENNETT. BosTon, March, 1867. Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019245558 TO THE HONOEABLE JOHN DAVIS, LL.D. district judge of the massachusetts district.* Sir, In dedicating this work to you, I perform one of the most pleasant duties of my life, — the duty of paying a public homage to your character, and of inscribing on these pages a memorial of our long and uninterrupted friendship. Nearly twenty-eight years have elapsed, since, upon my advancement to the Bench of the Supreme Court, I had the satisfaction of meeting you as my colleague in the Circuit Court. During the intermediate period, we have passed through many trying scenes of peace and war, of excited controversies between the great political parties of our country, of seasons of severe prohibitions and pressures upon the commercial and other interests of the com- munity, and of changes of public policy, carrying in their train penalties and forfeitures, which made even the ordinary admin- istration of justice assume a stern and' almost a vindictive aspect. The patience, the candor, the urbanity, the sound dis- cretion, and the eminent ability with which you performed all your judicial functions during this period, are known to no one better than to myself ; for I have been the constant witness of them, and have sometimes partaken of them, and have always been instructed by them. In the earlier part of your judicial career, you led the way in exploring the then almost untrod- den paths of Admiralty and Maritime Jurisprudence, and laid VI DEDICATION. the profession under lasting obligations, by unfolding its vari- ous learning and its comprehensive principles. Your judg- ments have stood the test of time, and are destined to be laid up among the Responsa Prudentium for professional instruction in future ages. But I confess myself more desirous, on this occasion, to acknowledge with unaffected gratitude my deep sense of your personal friendship and continued kindness. They have light- ened many heavy labors ; they have cheered many saddened hours ;*and, above all, they have taught me to feel the value of the truth, that the indulgent approbation of the wise and good is among the most enviable of human blessings. Truly may I say to you, in the language of Lslius, as recorded by Cicero : — Sed tamen recordatione nostras amicitiEe sic fruor, ut beate vixisse videor, quia cum Scipione vixerim ; quocum mihi conjuncta cura de re publica et privata fuit ; — et (id, in quo est omnis vis amicitiEe) voluntatum, studiorum, sententiarum, summa consensio. I am, with the highest respect, Your obliged friend, JOSEPH STORY. Cambridge, July 18, 1839. PEEFACE. The present volume is the commencement of a series of Com- mentaries, which, in pursuance of the original scheme of the Dane Professorship, it is my design, if my Ufe and health are prolonged, to publish, upon the different branches of commercial and maritime jurisprudence. The task is trtily formidable, aqd full of difficulties ; and I approach it with a diffidence propor- tionate to the public sense of its importance, and to my own consciousness that its perfect execution wiU require a leisure, and learning, and ability, which are very far beyond my reach. So various are the topics to be discussed, and so numerous the authorities to be consulted, that a whole life might well be spent in collecting and mastering the materials. Even when these should be brought together, the labor of analyzing the princi- ples, and reducing them to a text of a moderate extent, with the practical illustrations necessary to explain and confirm them, might be found sufficient to create some discouragement even in minds accustomed to the close discipline of juridical studies. What I propose to do, therefore, I beg may be treated as an approximation only towards the accomplishment of such a de- sirable object. My efforts will be to present accurate outlines of the leading doctrines of commercial and maritime law. But it must be left to more gifted minds to enjoy the enviable dis- tinction of having embodied in a durable form the entire details of this vast science. Vlll PEBFACB. Although it is my intention to consult the works of foreign jurists and civilians, and to introduce into the text illustrations from the Roman law, and the maritime jurisprudence of Con- tinental Europe, so far as my own imperfect studies wiU enable me to do so ; yet I shall mainly rely upon the elementary trea- tises and judicial decisions of England and America, as furnish- ing the most solid and useful expositions of aU the doctrines which are to be maintained in these Commentaries. It would betray a narrow subjection to mere prejudice, or a wanton dis- regard of some of the best sources of instruction, to pass by with neglect the glorious labors of the Roman jurists, or the masterly treatises of such men as Pothier, and Emerigon, and Valin, which have furnished so much to improve and adorn our own law. Sir William Jones has with great felicity said : " What is good sense in one age must be good sense, all circumstances remaining, in another ; and pure, unsophisticated reason is the same in Italy and in England, in the mind of a Papiuian and of a Blackstone." Still, however, it will scarcely be denied, that the judgments of the Courts of Common Law, upon the great topics of Commercial and Maritime Jurisprudence, since the elevation of Lord Mansfield to the Bench, place them in advance of aU others for practical wisdom, profound reasoning, acute discrimination, and comprehensive equity. In dismissing the present work, and asking for it the indul- gent consideration of the Profession, I desire to make a single explanatory remark. As the work is mainly designed for the elementary instruction of students, (although, I trust, it may be found useful to lawyers of a more advanced standing,) the same train of observations will be found occasionally repeated in dif- ferent connections. This has been done in order to avoid the embarrassment of perpetual references to other parts of- the work, which students could scarcely be presumed to keep con- stantly before their minds ; as well as to fprnish them with qual- ifications, and limitations, and illustrations of principles, which PREFACE. IX might not otherwise be obvious, or fully appreciated, when pre- sented in a disconnected form. The admonition of our ancient master, Littleton, should never be forgotten, that by the argu- ments and reasons in the law a man sooner shall come to the certainty and knowledge of the law. " Lex plus laudatur, quando ratione probatur." Camekidge, near Boston, July 18, 1839. CONTENTS. Index to Cases cited xiii CHAPTER I. Sections Agency in general ........ 1-4 CHAPTER II. Who are capable of becoming Principals and Agents . . 5-22 CHAPTER III. Different kinds of Agents 23-37 CHAPTER IV. Joint Principals and Joint Agents 38-44 CHAPTER V. Appointment of Agents 45-56 t CHAPTER VI. Nature and Extent of Authority 57-143 CHAPTER VII. Duties and Obligations of Agents in executing Authority 144-217 a CHAPTER VIII. Liabilities of Agents to their Principals . . . 'iiVl h-'iZii XU CONTENTS. CHAPTER IX. Sections Defences of Agents against Principals .... 235-260 CHAPTER X. Liabilities of Agents to third Persons, on Contracts . 261-301 CHAPTER XL Liabilities of Public Agents on Contracts . . . 302-307 a CHAPTER XIL Liability of Agents for Torts 308-322 CHAPTER XIII. Rights of Agents in regard to their Principals . . . 323-350 CHAPTER XIV. Right of Lien- of Agents 351-390 CHAPTER XV. Rights of Agents in regard to third Persons . . . . 391-416 CHAPTER XVI. Rights of Principals against third Persons .... 417-440 CHAPTER XVII. Rights of third Persons against Principals .... 441-461 CHAPTER XVIII. Dissolution, or Determination, of Agency .... 462-500 Index p. 639 INDEX TO CASES CITED. The References are to the Sections. A. Section Aatey v. Trevilion 179 Abbey v. Chase 264 o Abbe V. Rood 255 Acker V. Campbell 312 Adams v. Adanfs ■ 167 V. Lindsell 493 V. Oakes 394 Adamson v. Jarvis 308, 312, 313, 339 Addison v. Gandassequi 2G7, 288, 289, 290, 291, 400, 423, 446, 448 Agace, ex parte 1 24, 125 Agricola (The Ship) 454 a, 456, 456 a Akin u. Bedford 135,155 Alexander v. Alexander 166, 167 V. Bank of Rutland 154 V. Barker 270 V. Gibson 59, 73, 135 V. Mackenzie 119 V. Southey 310 Alexander (The Ship) 119 a Alford V. Egglefield 269 Allaire v. Ouland 339 Alley V. Hotson 488 AUen V. Ayres 160, 161 V. Coit 269, 446 a V. Hayward 454 c V. McKeen • 300, 301 V. Ogden 73, 126 V. Suydam 189 American Fur Co. v. Gibson 134 V. U.States 134 American Ins. Co. v. Coster 118 V. Oakley 64 Amiable Nancy (The Ship) 220, ^21 Amory v. Hamilton 255, 256 V. Merryweather 346 Amos V. Temperley 263,_ 274, 395 Ancher v. Bank of England ' 435 Section Anderson v. Clark 361 V. Coonley 17, 18, 19, 58, 59, 133 V. Highland Turn- pike Company 152 V. Sanderson 138 V. Sannderson 138 Andrews v. Estes 147, 148,160, 364 a V. Kneeland 18, 59, 72, 73, 102, 109, 126, 133 Anonymous 6, 50, 56, 104, 149, 153 V. Harrison 470, 473 V. Hopkins 6, 8 V. JoUand 204, 207 Appleton V. Binks 148, 155, 273, 275, 278 Arbouin v. Anderson 228 Arfridson v. Ladd 147 Armistead, ex /ia?'^i3 228,229,254 Armstrongs. Gilchrist 239, 255 V. Toler 195, 330, 344, 346, 347 Armory v. Merryweather 346 Arlington v. Hinds 395 Arrott V. Brown 208, 21 7 c, 220 Arthur v. Barton 1 1 9 a, 1 2 2 Aspinwall v. Bartlett 296, 298 Astor V. Wells 140 Atkyns v. Amber 107, 161, 397, 402,, 404, 407' V. Batten 3-94 Attorney-General v. Berryman 13. V. Case 456 a V. Corpora- tion of Leicester 217 r V. Life and Fire Insurance Company 53 V. Siddon 452, 45a AGENCY. XIV INDEX TO CASES CITED. Atty !/■. Parisli Atwood V. Munnings Aubert v. Maize Avery v. Halsey B. Section 450 21,22,66,67,68, 72 235, 346 339 Bacon v. Dubary 148 Baikie v. Chandless 24 Bailey v. Adams 362 V. Mayor, &c. of New York 320, 321 Bainbridge v. Downie 302, 306, 412 Baker j;.Freeman 49 V. Whiting 210, 211 Baldwin D. Cole 312,437 Ball u. Dnnstorville 51 Ballou V. Talbot 154, 251, 264, 264 a, 275 Baity V. Cogswell 169 Bamford v. Shuttleworth 300 BanfiU V. Leigh 393 Bank of Buffalo v. Kortright 127 of Columbia v. Patterson's Adm'rs 53, 149, 253 of England v. Moffat 53 of Hamburg v. Johnson 69 of N. America v. Hooper 154 of The Metropolis v. Jones 115 V. The New England Bank 380 V. Guttchlick 52 of United States v. Bank of Georgia 115,300 V. Bank of Washington 300,301 w. Binney 126 V. Dandridgo 52, 53 U.Dunn 115 V. Davis 134,139, 139 a, 140, 140 a, 140 b of Utica V. Smith 247 Banks v. Eastin 394 Banorgee v. Hovy 49,450 Barber v. Britton 452 V. Gingell 56 Barber Surgeons of London v. Pelson 53 Barcley, ea; joarte 247 Baring v. Corrie 28, 33, 34, 56, 109, 164, 227, 390,404,420,429 V. Lyman 37 Barker u. Greenwood 98,181,413 Section Barker v. Marine Ins. Co. 211 V. Mechanics' Fire Ins. Co. 154, 276 V. Taylor 208 Barlow v. Leckie 248 Barnard u. Wheeler 127,263 Barnes v. Foley 305, 306, 307 Barnett u. Lambert • 58 Barrett v. Warren 312 Bartholomew v. Leach 211 Bartlett v. Pentland. 98, 103, 109 Barton v. Hughes 414 V. Winter 225 Bartram v. Farebrother 440 Basford v. Whistler 107 Bastable v. Poole 270 Bateman u. Bateman 67 V: Phillips 160 a Bates V. Bank of the State of Alabama 52 V. Best 49 V. Pilling 455 Batty V. Carswell 165, 169 V. Duxbury 454 c Bauerman v. Xladenius 138 Bayley v. Mayor of N. York 320 Beach v. Vandewater 72 Beale v. McKiernan 28, 210, 211 Beals V. Allen 73, 126 Beard v. Kirk 470 Beaufort, Duke of, v. Neeld 127 Beaumont v. Boultbee 192, 332, 336 Beckwith v. Sibley 385 Bedford v. Jacobs '266 Beebo v. Roberts 160 a, 266, 270, 392, 396 Belchier v. Parsons Belden v. Campbell Belknap v. Davis V. Reinhart Bell, ex parte Bell V. Bruin V. Cunningham V. Gilson V. Kymer V. Palmer Bend v. Hoyt V. Swartwout Benedict v. Smith Bennett, ex parte • V. Davis V. Moira Benny v. Rhodes Bensley v, Bignold Bentley v. Columbia Ins. Co. 96 119 a 58 302, 306 846 154 217 c, 220, 221, 248, 258 161 274 189 300, 301, 304, 305 307 250 210, 211 6 456 a 113 235, 346 INDEX TO CASES CITED. XV Sficiion Berkeley t'. Hardy 49, 149, 274 a u. Watling 119,140 Bernard v. Torrance 302 Berthoud v. Gordon 190 Bertram v. Godfrey 75 Betham v. Benson 137, 138 Betts V. Gibbins 339 Bevans v. Waters 354 Beverley v. Lincoln Gas Light and Coke Co. 53, 55 BexwfcU V. Christie 195, 236 Bickerton v. Burrell396, 398, 406, 446 Bigelow V. Walker 186 Biprgs V. Lawrence 138 Billon V. Hyde 250, 259 Bingham i>. Cabot 138 Binneyjj. Crineley 394, 395 Bird V. Boulter 27 Bird's Syndic v. Dix's Estate 204 Blackburn v. Scholes 93, 98, 430 Blackett v. Koyal Exchequer Ins. Co. 74 Blades v. Free 265 a, 488 Blake v. Ferris 454 a, 454 c V. Nicholson 355 Blandv f. Allen 113 BloodV Goodrich 49, 161, 242, 252, 395, 42-2 Blore V. Sutton 13, 146, 249 Blot K. Boiceau 74, 192 Bloxam, ex parte 380 Bogart V. De Bussy 148, 274 a Bolland V. Bygrave 228, 380 Boll en V. Hyde 259 Bolton V. Buller 228, 380 V. Hillersden 56 Bonbon us, ea; parte 124 Bothlingk I'. Inglis 440 Boyd V. McLean 230 V. Vanderkerap 140 Boor V. Vandall 343 Booth V. Hodgson 235 V. Mister 453 Bootle V. Blundell 67 Bosanquet v. Dudman 228, 370, 380 Boson V. Sanford 116 Bottsford V. Barr 50 Boucher v. Lawson 121, 343 V. Noidstorm 318, 319, 321, 454 Bouchbut V. Goldsmid 225 Boujifield V. Creswell 103, 109 Bowuher V. Noidstrom 456 Bowen V. Morris 53, 154, 264, 270, 275, 278, 302, 303, 395 Bower V. Jones 326 Bowerbank v. Morris 470 Section Boynton v. Turner 239 Boyson v. Coles 113, 224, 225, 227, 367 Brace v. Duchess of Marlborough 352 Bracken t). Meller 140,141 Bradford v. Bush 59, 102, 498 V. Eastburn 308 Bradlee v. Boston Glass Manufac- tory 147, 154, 268, 270 Bradley v. Richardson 215 Bramah v. Koberts 380 Branby v. Coxwell 317 a Bredin v. Dubarry 258 Bree u. Holbeck 134 Breedlove v. Warnack 239 Brennan v. Currint 362 a Brewster v. Hobert 13 V. Saul 420 Bridge v. Austin 188 u. Niagara Ins. Co. 418 Brigham v. Marean 394 V. Peters 60, 136 Brinley v. Mann • 149, 164 a Bristow V. Porter 465 Broad v. Thomas 329 Brockway v. Allen 154, 266, 277, 278 Bromley v. Coxwell 14, 34, 201, 202 V. Holland 477 Brookshire v. Brookshire 49, 50, 463 Bronson v. Woolsey 302 Broughton v. Manchester Water Works Co. 52 Brown v. Austm 302 V. Boorman 32 a V. Croft 334 V. Duncan 346 u. Frantum 126 V. Heathcote 361 U.Lent 313,454 V. Maxwell 453 e V. Mi'Gran 74 V. Purriance 456 V. Rundlett 306 ' V. Sputhouse 205 V. Trantum 126 «;. Turner 346 Bruce v. Hunter 338 Brucker v. Fromoht 453, 456 Bruissard v. De Cloets 183 Bryan v. Lewis 238 V. Wilson 393 V. Nix 361 Bryant v. Moore 19, 102, 126, 253 Bryce V. Brooks 34 Buchannon v. Upshaw 239, 244 Buckmaster v. Harrop 27 Buffum V. Chadwioke 394 Buller V. Harrison 301, 302 XVI INDEX TO CASES CITED. Bulmer, ex parte Bunker v. Miles Burgess v. Gray Burls V. Smith Burn V. Brown Burnes v, Pennel Burney v. Plumley Burnham v. Williams Buron v. Denman Burrell v. Jones 74 Burrill v. Phillips Burrough v. Skinner Bursey v. Donaldson Burt V. Palmer Bush V. Steinman 311 453 a, Byers v. Fowler Byrne v. Doughty V. Schwing Byarr v. Doores Section 235 9 454 c 285, 287, 289 360 126 393, 394, 395 147 246 155, 269, 278, 280, 393 186, 198, 342, 376, 383 206 456 a 138 , 313, 322, 452, 454, 454 c, 460 135 253 110 264 a Cady V. Sheppard 49, 61, 125, 242, 251 Caffrey !). Darby 96,200,208,217, 218, 219 Cairnes v. Bleecker ' 243, 258 Caldwell v. Harrison 42 Callandar v. Marsh 320 V. Oelricks 331 Calton V. Bragg 338 Cameron «. Reynolds 308 Campbell v. Baker 154, 261 V. Hassell 98, 103, 109 V. Hall , 301 V. Hillman 264 V. Leach " 167 V. Pennsylvania Life Ins. Co. 211 V. Proctor 368 W.Walker 210,211 Campnari v. Woodburn 488 Canaan v. Bryce 235, 346 Cane v. Allen 210, 211, 212 Canonge v. Louisiana State Bank 208 Capel V. Thornton 102, 108 Capp V. Topham 336, 339 Carey v. Webster 301, 451 Carpenteri;. American Ins. Co. 134, 139 Carr v. Hinchliff 420, 430 Carruthers v. Sidebottom 456 a Carstairs v. Bates 228 Cartwright v. Hately 203, 217 Cass V. Kuddle 155 Cassiday i;. M'Kenzie 488 148, Section Castling v. Aubert 379 Catlin V. Bell 13, 14, 34, 146, 193, 195, •201 Cayhill v. Fitzherbert Chamberlain v. Harrod Champion v. Plummer Chapman v. Darby V. De Tastet V. Morton V. Walton Charnley v. Winstanley Charter v. Trevellyan Chase v. Westmore 354, , 355, Chedworth v. Edwards 155 211 28 378 826 141 183 481 9 356, 362, 362 a 203, 205, 229, 332, 333 431, 434 103 183 55 453 a 200 336 280 Cheever v. Smith Chesapeake Ins. Co. v. Stark Cheviot V. Brooks Chidsey v. Porter Chilcot V. Bromley Child V. Corp V. Morley Childs V. Monins Church V. Imperial Gas Light and Coke Co. 53 V. Marine Ins. Co. 210, 211 V. Mansfield 456 City Council v. Duncan 490 City of London Gas Light and Coke Co. V. NichoUs 53 Clark V. Corporation of Wash- ington 52, 308 U.Courtney 147,148,149,160, 151, 152, 160,488 V. Guardians of Cuckfield Union 55 V. Highgate Archway Company 52 V. Merchants' Bank 228 V. Moody 332 V. Pigot 394 V. Shee 435, 437, 438, 439 V. Van Northwick 60 Clark's Executors v. Van Eeimisdyk 161,162,250,253 V. Wilson 160 Lessees v. Courtney 58 Clarke v. Tipping 179, 186, 204, 209, 333 Clay V. Oakley 264 a Cleaves v. Stockwell 201 Cleaveland v. Steward 276 Clement v. Leverett 227 Clemson u. Davidson 361,367 Cleveland, &c.. Kail Co. v. Keary 463 g Clifford V. Burton 133 INDEX TO CASES CITED. XVll Section Clinan v. Cooke 50 Coope V. Eyrie 38 Coates V. Lewes 164, 420, 430 Cobb V. Beeke 201 Cochran u. Irlam 13,14,29,34,113, 201, 217 a, 367, 389 V. Newton 21 Cock V. Taylor 274, 298 Cocke V. Campbell 59 V. The Comm. Ins. Co. 36 Coddington v. Bay 228 Codwise V. Hacker 243, 253 Coggs V. Bernard 182, 188, 453 Cohen V. Paget ■ 326 Coleman v. Lambert 274 V. Riches 59, 119, 451 Coles V. Bell 247, 440 u. Trecothick 14,50,108, 146, 249 Collins V. Butts 160 a, 251, 269 V. Martin 288 Colthay V. Fennell 160 o Columbian Ins. Co. u. Lawrence 111 Colvin V. Holbrook ' 263 Comber v. Anderson 191, 200 Commercial Bank v. Cunningham 140 a Commercial Bank of Buffalo v. Kortright 127 Commercial Bank of Erie v. Nor- ton 13, 14, 137 Commercial Bank v. French 160 a, 161, 394, 395, 396 Commercial Bank of New Orleans V. Martin 201 Commons v, Marshall 167 Conard v. Atlantic Ins. Co. 229 Conn V. Penn 239, 253 Consequa v. Fanning 342 Con well u. Voorhees 319 a Cooch «. Goodman 276 Cook V. Parham 453 e Cooker v. Childe 395 Cooley V. Norton 137 Coombe's ease 6, 12, 13, 49, 146, 147, 148, 150, 151, 152,488 Coon V. The Utica R. R. 453 e, 453 g Cooper's case 6 Cooper V. Gooderick 53 V. Rankin 49 Coore V. Callaway 247, 440 Copeland v. Merchants' Ins. Co. 42, 148, 210, 211, 239, 243, 259, 474 V. New England Mar. Ins. Co. 453 e V. Stein 349, 377 Copes V. Matthews 302, 306 6* Section Copper Mining Co. (The) v. Fox 55 Corbin v. Adams 135 Copping V. Craig 397, 399, 403, 404, 407 V. Walker 390, 397, 403, 404, 405, 407 Corlies v. Gumming 38, 385, 429, 431 V. Widdefield 179, 204 a, 342 Cornfopt V. Fowke 139 Corning v. Southland 250, 266 V. Strong , 63 a Cornforth v. Rivett 362 Cornwall v. Wilson 111, 143, 198, 244, 250, 259 Courcier v. Ritter 74, 255, 256, 258 Couturier v. Hastie 215 Coventry t>. Barton 339 Cowell V. Simpson 356, 361, 362 Cowen V. Simpson 140 Cox V. Midland Counties Railway Co. 69 V. Prentice 300 Coxe V. Harden 394 Craig V. Radford 149 Crane v. Bedwell " 255 Cranstoun v. Philadelphia Ins. Co.' 379 Crauford v. Hunter 111 Crawshaw v. Homfray 362 Crawford v. Louis. State Bank 208 Creager v. Link 465 Crockford v. Winter 453 Croft V. Alison 456 Crooker v. Appleton 253 Crosse V. Gardiner 308 Crousillat v. Ball 36 Cud V. Rutter 238 Cull V. Backhouse 201, 386 Cullen V. Duke of Queensbury 285 Gumming v. Roebuck 28 Cummins v. Cassilly 49 Cunningham ii. Soules 264 a, 279 Curling v. Robinson 40, 444 Currier v. Lowell 454 c Curtis V. Barclay 335, 364 Cushman v. Loker 254 Cuthbertson v. Parsons 454 a D. D'Abridgecourt v. Ashley 148 D'Aquila v. Lambert 350 D'Arcy v. Lisle 339 Dale V. Hall 218 V. Sollett 350 Dalton V. Irving 329 Dalzell V. Mair 435 XVlll INDEX TO CASES CITED. Section Damon v. Inhabitants of Granby 42, 49, 97, 102, 149,278 DanfoTth v. Schohar. and Duane Turnpike Co. 52, 53 Daniel u. Adams 27, 131 Daniels v. Burnham 147, 160 a ex parte 235 Dartnall v. Howard 183 Daubigny v. Duval 78, 113, 360, 367 Davidson v. Stanley 101 Davis V. Bowsher 228, 262, 372, 380 V. Garrett 200, 218, 219 V. Lane 481 Davoue v. Panning 211 Dawes v. Jackson 302, 306 Dawson v. Atty 134, 135 V. Lawley 85, 102 Day V. Crawford 110 1'. Edwards 456 Dean v. Branthwaite 453 a Dean &c., of Kochester v. Pierce 53 De Bouchout v. Goldsmid 68, 72, 78 Deeze, ex parte 354 De Forest v. Fulton Ins. Co. ■ 33, 111, 190 De ]?orrest v. Wright 454 c De Gallion v. L'Aigle 268, 290 De la Chaumette v. Bank of England 394, 405, 414 De Grave v. Mayor, &c. of Manmouth 53 Delaney v. Stoddard 218, 222 Delafield v. Illinois 60 Delauney v. Strickland 288, 289 Delaware Ins. Co. v. Delaunie 335, 338 De Mautort v. Sanders 270 Deming v. Bullitt 151, 153 Denew v. Daverell 183, 331, 333 Denison v. Seymour 313, 314, 315, 817 V. Tyson 77 Dennan v. Bloomer 58 Denning v. Smith 133 Den V. Wright 239 Denny v. Manhattan Co. 308 Denton v. East Anglian Rail. Co. 53 V. Rodie 275 Descadillas v. Harris 116 Despatch Line of Packets v. Bellamy Manuf. Co. 13, 42, 154, 242, 259 De Tastet v. Crousillat 74, 190, 218, 222 De Valingin's Adm'r v. Duffey 430 De Vignier v. Swanson 161 Devinney v. Reynolds 153 ©evall V. Burbridgo 208 Diana (The) Dick V. Page Dickinson v. Lilwall V. Watson Diggle V. London Railway Dillage v. Dillage Dinwiddie v. Bailey Diplock V. Blackburn Dixon V. Bromfield ' 'v. Ewart V. Hamond V. Rankin Dodge V. D'Wqlf V. Perkins Section 456 a 498 28 456 53 140 350 207 9,211 482, 486 217 453 <7 74 204 y. Tileston 217 c, 331, 333, 348 Dodsley v. Varley 368 Doe d. Lyster v. Goldwin 246 V. Marten 452 V. Summersett ■ 246 Mann v. Walters 246, 440 Thomas v. Roberts 6 Doe V. Bingham 49 V. Robinson 134 V. Thompson 394 Doubleday v. Muskett, 285, 286 Dougal I!. Kemble 274 Douglass V. Moody 118 Dowding v. Goodwin 376 Downman v. Jones 154, 264, 264 a Dowsu. Greene 55 Drake v. Marry att 138 Dr. Bethune's case 406 Drew V. Bird 274 Drinkwater v. Goodwin 112, 364, 367, 368, 376,407,409 Drummond v. Wood 85, 141 Dubois V. Delaware & Hudson Canal Co. 154, 160, 161, 162, 263, 275, 277, 278,422,450 Ducarrey v. Gill 68 Duchess of Cleveland v. Dashwood 98 Duclos V. Ryland . 78 Duke of Norfolk v. Worthy 406, 435 Duncan v. Pindlater 321, 454, 459 Dundee (The Ship) 453 V. Lambert 274, 393, 395 V. Munroe 314, 319, 319 a Dunstan v. Imperial Gas Light Co. 53 Dupont V. Mount Pleasant Ferry Co. 160 o Durnford v. Patterson 208 Dusar v. Perit 193, 237 Dusenbury v. Ellis 155, 264, 264 a Dutton V. Poole 895 Duval U.Craig _ 155,273 Dwinelle v. Henriquez 302 INDEX TO CASES CITED. XIX Dyer v. Burnham V. Pearson Seciioa 147 93, 104 E. Eagle Bank v. Smith 95 Earl V. Rowcroft 36 Earle v. Hall 454 c Eastern Railroad v. Benedict 395 East India Co. v. Glover 53 V. Henchman 211, 214 V. Hensley 109, 131, 133, 264 East London Water Works Co. u. Bailey 52,53 Eaton U.Bell 155,156,157,269, 283 Edgar v. Fowler 235 Edmiston v. Wright 336 Edmond v. Caldwell 160 a Edwards v. Grand Junction Canal Co. 53 V. Hodding 300, 301 Eioke V. Meyer 326 Ekins !'. Macklish 60, 63, 74 Eland V. Carr 362 Eliza Cornish (The) 118 Elliott V. Swartwout 301, 307, 435 V. Walker 339 Ellis V. Sheffield Gas Co. 454 b V. Turner 443, 452 Else V. Gatward 478 Elwell V. Shaw 146, 147, 148, 149 Emerson v. Blonden 7 V. Heelis 27 V. The Providence Hat Man. Co. 13, 77, 154 Emery v. Fell 53 Enloe V. Hall _ " 302 Episcopal Charity Soc. v. Epis- copal Church in Dedham 254 Erick V. Johnson 255, 256 Esdaile v. La Nauze 62 Essex Turnpike Corporation V. Collins 52 Evans v. Ellis ' 212 u. Martell, or Marlett 274,395 j;. Potter 113,198 V. Root 110 V. Wells 154 Everett v. Collins 431 Faikney v. Reynous 235, 346, 347 Fairbrother v. Simmons 9, 27, 31 Fairfield v. Adams 160 a, 269, 393, 394 Section Fairlie v. Hastings 134, 135, 136, 137 Farebrother v. Ansley 308, 309, 312, 339 FarnSer t. Davis 296, 297, 298, 299 V. Robinson 465 V. Russell 235, 347 Farmers' Bank v. Troy City Bank 154 Farmers' Loan and Trust Co. V. Walworth 250 Farren v. O swell 191 Farwell v. The Boston & Wor- cester Railroad Corporation 308, 453 e, 453 g Favenc v. Bennett 98, 429, 430 Feeter v. Heath 264, 264 a Felker v. Emerson 7 Fenemore v. The United States 259 Fenn v. Harrison 19, 59, 73, 97, 126, 131, 132,. 133, 253, 279 Ferguson v. Carrington 250, 259, 390 Fetter v. Field 148 Fillis V. Brutton 139 Findley I'. Breedlove 174,250 Finney v. Bedford Com. Ins. Co. 161 Fisher v. Ellis 160 a, 269, 393, 394, 399 V. Willard 239 Fishmonger's Co. v. Robertson 58 Fisk V. Offit 60 Fitchett V. Adams 245, 255 Fitzherbert y. Mather 127, 134, 140 Fitzherbert's case 1 1 Fitzpatrick v. School Commis-- sioners 253 Fitzsimmons v. Joslin 126, 256 Fleckner v. Bank of U. States 52, 53, 114 _ Fletcher v. Gillespie 422, 450 ' V. Harcott 308, 339 V. Walker 205, 208 Flint V. Clinton 52 V. Clinton Co. & Trust. 149 Flower v. Adam 454, 455 Fogg V. Virgin 276 Folger V. Chase 114 Fomin v. Oswell 222 Foot V. Wiswall 308, 316, 317 Forrestier v. Bordman 60, 85, 110, 141, 200, 201, 208, 237, 253, 255 Forster v. Fuller 280 Fortitude (The Ship) 116, 122 Foster v. Essex Bank 115, 308, 368 V. Hoyt 365, 379 t. Preston _ 201,217 a Fowle v. Common Council of Alexandria 308 V. Stevenson 255 XX INDEX TO CASES CITED. Section Fowler v. Bledsoe 58 V. Shearer 148, 149 Fox V. Drake 278, 302, 304, 305, •306 V. Frith 161, 152 Foxcroft V. Devonshire 37 7 Foxwist V. Tremaine 6 Frankfort Bank v. Johnson 114, 115 Franklin Bank v. Steward 115 Franklin v. Ezell 59 V. Lamond 27 Freeman u. Boy nton 247 V. Loder 28 V. East India Co. 117 French u. Backhouse 35,111 V. Otis 305, 306 V. Price ' 44 V. Reed 190 Frieze v. Wray 350 Frixione v. Tagliaferro 339 Frontin v. Small 148, 149, 274 a Frothiijgham v. Everton 74 V. Haley 244 Frye v. Lockwood 300, 301, 307 Fuller V. Bennett 140 V. Hooper 160 a, 269 V. Voght 455 V. Wilson 134 Fulton Bank of N. York v. N. York and Sharon Canal Co. 140, 140 a, 140 b Furnivall «.- Coombes 286 a G. Gage V. Allison 489 Gainsford u. Dutillet 361,367 Gall V. Comber 33, 215 V. Tappan 488 V. Wells 28 Gait V. Galiaway 488 Gardner w. Bailey 64 V. Gardner 51 V. Laohlan 161 V. McCutchan 123 a, 334 a V. Norman 6 Garland Inhabitants of, v. Rey- nolds 160 a, 269, 393, 394, 395 Garnham v. Bennett 29 7 Garrett v. Handley 160 a, 272 Garth V. Howard 138 Gaussen v. Morton 477 General Int. Insur. Co. v. Ruggles 118, 119, 121 George v. Claggett 390, 404, 419, 444 Gerard o. Baker 98 Gerbier v. Emery 60 Section Ghent v. Adams 302 Gibson v. Colt 59, 73, 131 V. Winter 420, 430 Gidley v. Lord Palmerston 305 Gilbey v. Copley 395 Giles V. Perkins 228, 380 Gill V. Brown 306 Gillis V. Bailey 13, 14 Gillett u. Peppercorne 210 Gilley V. Logan 200 Gilman v. Brown 352, 362 Gilmore v. Pope 2G9, 395, 396 Gilshannon v. Stony Brook R. R. 453^ Giralomo (The Ship) 456 a Girard v. Taggard 27, 401, 403 Gladstone u. Birley 352, 354, 355, 356 Gleason v. Dodd 488 Glynn v. Baker 225 Godfrey v. Furzo 229 V. Saunders: 44, 232 Godin V. London Assur. Co. 376 Gonzales v. Sladen 290 Goodale v. Wheeler 58 Goodbaylie's Case 263 Goodenow v. Tyler 60 Goodland v. Blewith 103 a, 451 Goodlow V. City of Cincinnati 308 Goodrtian v. Harvey 228 Goodson V. Brooks 58, 99, 109 Goodtitle v. Woodward 24'5, 246 Goom V. Aflalo 28, 30 Gordon v. Bnlkley 48, 49 Goslin V. Birnie 217 Goswell V. Dunkley 14, 201, 202, 217 a Gould V. Norfolk Lead Co. 77 Goupy V. Harden 157, 269, 279 Gov. & Co. of Plate Manufac- turers V. Meredith 320 Grafton Bank u. Flanders 264 a Graham v. Ackroy d 112 V. Dyster 113 V. Mussen 270 V. Schmidt 134 V. Stamper 263 Gram v. Seton 49, 242 Grammar v. Nixon 310, 453 Grant v. Fletcher 28 V. Norway 119, 451 . V. Vaughan . 228 Gratitudine (The Ship) 116, 118, 141, 164, 237 Graves v. Key 90, 91 Gray v. Murray 14 V. Portland Bank 308 Greely I). Bartlett 60,110,342 Gregory u. Parker 138 INDEX TO CASES CITED. XXI Green v. Farmer 350, 352, V. Goddard V. Miller V. Ropke V. Winter Griffith V. Infjledew Grindley v. Barker Grojan v. Wade Grove v. Dubois Guernsey v. Burns Guerreiro v. Peile Gunn V. Cantine Gnnnis v. Exhart Guthrie v. Armstrong 78. Section 354, 355, 371 339 42 268 211 394, 395 42 418,420 33, 336 394 , 113, 127 269, 391 107, 137 42 H. Hagedorn v. Oliverson 242, 248,418 Hafle V. Smith 111, 274, 361 Hain€S v. Busk 330 Halbertly u. Ward 451 Hall V. Bainbridge 148, 149, 151, 160, 161, 276, 278,422,450 V. Huntoon 263 V. Mayor, &e. of Swansea 52, 53 V. Smith 111, 308, 320, 321 • V. Sprigg 231 Hallett V. Barsfield 361 Hallowell & Augusta Bank v. Hamlin 140 a Hammarskald v. Bull 306 Hammond v. Barclay 352, 376, 377 ti. Holiday 329 Hammon v. Cottle 202, 208 Hamond v. Holiday 329, 331, 333 Hampton «. Matthews 78,92 V. Speckenagle 264 a, 265 Hanford v. McNair 49, 242, 252, 394, 422 Hannay v. Stewart 136, 137 Hanson v. Koberdeau 267 Hapgood V. Batcheller 342 Hard man v. Wilcock 217 Hargreaves u. Kothwell 140 Harlow v. Humiston 453 Harman u. Anderson 217 Harper v. Charlesworth 53 V. Hampton 147, 148 V. Little 264 a, 488 Harris v. Baker 321, 454 c V. Nicholas 4-56 V. Mobry • 452 Harrison v. Jackson 49, 1 25 Hart V. Ten Eyek 332 Hartley v. Hitchcock 370, 371 Hartshorn v. Wright 239 Hartop, ex parte Plarvey v. French V. Turner Hasleman v. Young Hastelow v. Jackson Hastings v. Lovering Hatch V. Burr Hawes v. Martin V. Watson Section 261,263, 267 269 208, 217 c 125 235 155, 266 277 335 217 Hawtayne v. Bourne 21, 22, 69, 87, 119 a Hay V. Cohoes Co. 308, 310 V. Goldsmidt 21, 62 Hay ford v. Andrews 49 Hayes v. The Western K. Corp. 453 e, i53 g Hays V. Lynn 78, 99, 160 a, 270 Hazard v. Treadwell 56, 470 Heald v. Kenworthy 446, 449 Heane v. Rogers 90, 91 Heard v. Lodge . 44 Hearsay v. Pruyn 299, 300 Heflfernan v. Addams 147 Helyear v. Hawke 58, 59, 73, 102, 132, 133, 135, 137 Henback v. Mollman 157, 269 Henderson v. Barnwell 13, 27, 28, 29, . 30, 31,109, 146, 249 V. The Australian Eoyal Mail St. Nav. Co. 55 Henu V. Conisby 98 Hern v. Nichols 310, 452, 453 o Hervey V. Liddard 361 Heyman v. Neale 28 Hey ward, ex parte 253 Heywood v. Waring 361 V. Watson 380 Hlbblewhite v. McMorine 49, 51, 238, 242 Hicks V. Hankin 28, 59, 73, 129 V. Whitmore 160 a, 420 Hiern v. Mill 140, 141 Higgins V. Livingston 283, 284 V. Senior 28, 50, 147, 155, 160 a, 161, 162, 266, 268, 269, 270, 392, 395, 446 Hill V. Packard • 339 Hilliard v. Richardson 454 Hills V. Bannister 154, 276, 278, 280 V. Featherstonhaugh 331 V. Ross 313 Hinckley v. Arey 28, 31 Hinde v. Whitehouse 27, 28 Hinds V. Stone 395 Hipp V. The State 317, 318 xxu INDEX TO CASES CITED. Section Hisoox V. Greenwood 360 Hoare v. Dawes 38 Hodgson w. Anderson 465,466,477 11. Dexter 302,303 Hogg V. Snaith 63, 76 , Holbrook v. Wight 33, 34, 1 1 1, 21 7, 274, 374 Holderness v. CoUinson 354, 384 HolU. Griffin 217 Holland v. Hall • 344 Holland's Assignees v. Humble's Assignees 352, 361 Hollis II. Caridge 383 HoUyi). Huggeibrd 372 Holman i: Johnson 1 95, 344 Holt V. Ely_ 398 Homershani v. Wolverhampton Water Works Co. 65 Hood V. Tahnestotk 140 Hopkins v. Lacouture 160 a, 162, 163, 269, 270, 271, 292 V. Mehaffey 154, 155, 269, 264 u, 273, 277, 278, 394 V. Mollincaux 7, 244 Hornblower v. Proud 228 Horner i'. III. Central R. K. 453 e Hoinier v. Beebe " 200 Horn V. Ivy 53 Horsley v. Bell 239, 282 V. Rush 49 Horsfall w. Fauntleroy 243,291 Horton v. Towns 253 Hoskina v. Slayton 285, 299 Houglitaling V. ISIarvin 488 Houghton V. Mathews 60, 289, 290, 354, 365, 368, 369, 376, 398, 401, 407 Horqiiebie v. Gerard 229 Housaitonic, &c. Bank v. Martin 140 a Houston V. Robertson 488 Hovey v. Blakeman 329 V. Blanohard 140 Hovil V. Pabk 250, 259, 390 V. Wardell 379 Howard v. Baillie 21, 58, 64, 97, 101, 165 y. Braithwaite 107,126,127, 137 V. Tucker 336 Howell V. Ransom 212 Hubbard v. Elmer 67, 68, 134, 137 Hubberty v. Waid 119 Huber v. Zimmerman 68 Hudson V. Granger 376, 393, 395, 401, 407, 408, 486 V. Rovett ■ 49 Hughes V. Boyer 453, 453 a, 454, 455 Section Huguenin v. Baseley 210 Humble v. Hunter 406 Humphrey v. Pratt 339 Hunt V. Haskell 373- V. Rousmaniere's Adm'r. 1 50, 164, 477,481, 488,489 Hunter v. Jameson 59 V. Miller 153 V. Parker 49, 233, 242 V. Prinseps 259, 438 V. The Hudson Riv. Iron Co. 451 Huntington v. Knox 160 a, 161, 410 Hurlbert v. Pacific Ins. Co. 390, 444 Hurst V. Holding 333, 334 Hussey u. Allen 116,297 V. Christie 294, 297, 299 Hutchins v. Brackett 319 a Hutchinson v. Stevens 24 V. York, Newcastle, & Berwick Railway 453 e, i5S g Hutson V. Cantril 488 !). Revett 49 Hutton V. Bragg 362 a Hyde v. Wolfi' 160 ff, 1 62, 266,' 270, 288, 291, 292, 294, 296 lllidge V. Goodwin 453 Illinois (State of) v. Delafield 78 Ilsley V. Merriam 419 Ingersoll v. Van Bokkelin 161 hgWs ex parte 228 Ingram v. Ingram 13 Inliab. of First Parish in Sutton V. Cole 42 Inhab. of Garland v. Reynolds J.60 a Irish V. Barber 269 V. Webster 269, 302; 395, 396 Ives V. Davenport 60 Iveson V. Conington 156, 268,- 269, 279, 393 J. Jackson v. Baker 1 79, 204 a V. Clarke 225, 229, 231, 239, 360, 365 V. Cummins 362 Jacobs V. Latour 367 V. Pollard 339 James v. McCready 60 u. Bixby 116,119,161,266, 294, 296, 297, 299 James ex parte 210 211 Jannon v. Green 28 INDEX TO CASES CITED. xiiii Section Jaques v. Todd 431 Jarvis v. Rogers 356, 360, 362, 365, 367, 376, 382 Jeffrey V. Bigelo-w 133,217 c Jefts V. York 264 a, 278 Jenkins v. Kemishe 167 Jennings v. Griffith 444 Jewett V. Alton 42 Johns V. Simonds 119 a Johnson v. Barber 452 V. Catlin 394, 395 V. Cunningham 14 V. Jones 19, 131, 258, 256 V. McGruder 58 u. Ogilby 261,263,264 u. O'Hara 179,204 a V. Eoberts 27 V. Small 453 V. Usborne 112 V. Weed 431 D. Wingate -87,118 Jolly V. Blanchard 372 Jones V. Bird 320, 321 V. Downman 264 ». Edney 137 V. Farley 78, 99 V. Hart 451, 453 V. La Tombe 302 V. Littledale 27, 160 a, 266, 267, 269, 270, 298, 446 u. Pearl 370 V. Warner 87 Jordan v. James 34 V. Norton 126 Joseph V. Knox 394, 397, 414 Josephs V. Pebrer 330, 344 Jourdaine v. Lefevre 228, 380 Judith (The Vrow) 36 Judson V. Etheridge 362 V. Sturges 85 K. 137 63, 154 Kain v. Old Kean v. Davis Keane v. Boycott 6 Keegan v. The AVestern Railway Corp. 453 h Keen v. Sprague 266 Kelly V. Munson 242, 259 V. Smith 113 Kemble v. Atkins 28 Kemp V- Pryor 143 Kemys v. Proctor 27 Kendall (Postmaster-General) V. United States 305 Kcndray v. Hodgson 275, 278 Kendrick v. Delafield Kennedy v. Gouveia Section 36 154, 155, 158, 273, 278 Kennaway v. Treleavan 53 Kenworthy v. Bate ■ 6 7 Kerns v. Piper 87, 92, 442 Kervis v. Piper 456 Kidson v. Dilworth 157, 159 Kieran 17. Sanders 217 Kilgour V. Finlyson 21, 69 Kimball v. Tucker 450 Kinder u. Shaw 78 King (The) v. Beeston , 42 King V. Boston & Worcester E. E. 453 e; 45B h V. Longnor 51 V. Thorn 280 Kingston v. Kincaid 198, 255 Kinlock v. Craig 361, 377 Kirk V. Hyatt 63 a Kirkman v. Shawcross , 352 Kirkpatrick v. Stainer 268, 269, 400 Kirmitz v. Surrey 31 Kirton v. Braithwaite 103 a Knapp II. Alvord 374, 477, 489 a Knight V. Fox 454, 454 c V. Lord Plymouth 202 Knipe v. Jesson 343 Knox V. Hack 6 Kortright v. Buffalo Bank 53 Kruger v. Wilcox 367, 376 Krumbhaar u. Ludeling 261 Kupfer V. Inhab. of So. Parish in Augusta 42 Kymer v. Suwercropp 266, 446, 448, 449 L. Lacey, ex parte 210, 211 La Farge v. Kneeland 189, 261 V. Eipley 261 Lagow V. Patterson 63 a Lambert u. Knott 285 Lamprell v. Billericay Union 55 Lanchester v. Tricker ■ 283, 285 Lane u. Cotton 201,308,310,311, 314, 319, 452 V. Dighton 229, 230 Lang V. Smyth 228 Langhorne v. Alnutt 137 Langley v. Warner 300, 301 Langton v. Hughes 235, 346 Lanyon v. Blanchard 360, 389, 390 Lathrop v. Blake 58 Laugher v. Pointer 452, 453 a, 453 b, 453 c, 454, 454 c, 455 XXIV INDEX TO CASES CITED. Laussatt v. Lippinoott Lawler i;. Keaquick Lawrence v. McArter V. Tucker Laying v. Stewart Lazarus v. Shearer Leach V. Blad Leadbitter v. Farrow Leader v. Moxon Leave v. Prentice Lee V. Munroe V. Tinges Leed's Bank Leeds v. Marine Ins. Section 14, 60, 78, 113, 227 85, 141, 183 6 140 264 154, 264 a 276 153, 155, 156, 157, 269 320, 321 183 133, 134, 307 78 228 Co. 396, 397, 398, 404 Lees V. Nuttall 211 LeFevre v. Lloyd 155, 156, 157, 269 Legal V. Miller 50 Legg V. Evans 361 Leggett V. Simmons 452 LeGuen v. Gouverneur 189, 235 Lempriere v. Pasley 360, 361, 377, 378 Lench v. Lench 229, 230, 242 Le Neve v. Le Neve 140 Lennard v. Robinson 269 Le Roy v. Beard 58 Lent V. Padelford ■ 244 Leonard v. Huntington 297 Lepard v. Vernon 477, 488 Lesher v. Wabash Nav. Co. 454 c Leslie v. Pounds 454, 455 V. Wilson 161 Leverick v. Meigs 183, 186, 200, 204, 215,401,420 Levy u. Bank of U. States ' 115 V. Yates 347 Lewis V. Nicholson 264 a Lickbarrow v. Mason 119, 352 Lime Rock Bank v. Plimpton 390, 404, 444 Lincoln v. Battelle 388, 431 Lindus v. Brad well 147, 154, 160 o, 270 Linsley v. Lovely 452 Liotard v. Graves 141, 338 Lipscombe v. Kitsill ' 102 Lissett V. Reeve 270 Little V. Obrien 394 Littledale v. Lonsdale ,454, 454 c, 455 Littlejohn v. Ramsay 200 Little Rock, Mayor and Aldermen of, V. State Bank 165 Lobdell V. Baker 131, 133, 134, 137 Locke V. Alexander 264 a V. Stearns 127, 452 Lockwood V. Abdy . 201 Lombard v. Winslow London Gas Light and Coke Co. V. NichoUs London and Birmingham Railway Section 68 53 Co. V. Winter Long V. Colburn 46, 52, 53 154, 253, 264, 264 a 67 73 74, 253 201 V. Long Longworth v. Conwell Loraine v. Cartwright Lord North's case Louisiana State Bank v. Senecal 140 a, 140 fr Lovelace's (Lord) case 51 Low V. Perkins 42 Lowell V. Boston and Lowell R. B.. 454, 454 c Lowther v. Kelly 395 V. Lowther 210-, 511 Lucas y. Barrett 251 V. Dorrien 360, 361, 381 V. Groning 74, 75, 199, 215, 269 Lucena v. Crawford 33, 111, 161, 190, 242 Lucey v. Ingram 456, 456 a Ludlow (Mayor, &c. of) v. Charlton 52, 53 Lupton V. White 205, 295, 332, 333' Lutz V. Linthicum- 148, 150 Lyman v. Sherwood 154 Lynch v. Postlethwaite 146, 147 Lynn v. Burgoyne 13 M. Maans v. Henderson Mabar v. Massias Maobeath i'. Haldimand 278 Maodonnell v. Harding Mackinley v. McGregor Maclean v. Douglass ■V. Dun 244, Madeira v. Townsley Madden v. Kempster Maddock v. Kempster Magee v. Atkinson Mahoney v. Kekule Mainwaring v. Brandon Mair v. Glennie Mallough V. Barber Manella i>. Barry Mann v. Chandler V. Forrester V. Shiffner 113, 360, 365, 379, 389 157, 378 75, 83, 199, , 302, 303, 306 208, 302 7 6 418, 440, 445 182, 183 360 360 269, 270 268 a 201,202 361 191, 200, 218 81, 192 154, 275, 276 379, 390, 429 360, 367, 376, 388, 389 INDEX TO CASES CITED. XXV Section Marcadier v. Chesap. Insur. Co. 116 Marchington v. Vernon 395 Many v. Beekman Iron Co. 154 Marder v. Lee 485 Mare v. Charles 159 Marfield v. Douglas 34, 74, 192, 477 Maria (The Ship) 456, 456 a Mark v. Bowers 14, 15, 113 Marlett v. Martel 274 Marquand v. Webb 297, 299 Marr v. Plummer 244 Marsh v. Pedder 431, 432, 433, 449 Martin v. Blithman 308 V. Flowers 148 V. Temperley 453 b, 453 c, 454 a, 456, 456 a Martini v. Coles 78, 111, 113, 164, 227, 367 Martyn v. Hinde 395 Marzetti v. Williams 217 c, 222 Massey v. Banner 96, 200, 208, 302 V. Davis 9, 192, 207, 213, 214 V. Scott 153 Masters v. Abraham 137 Mathes, ex parte 346 Matson v. Booth 49 Matthews v. Haydon 98, 451 Mauri v. Heffernan 261, 266 May V. Bliss 455 Maydew u. Forrester 191 Mayhew v. Eames 140 d V. Prince 156, 264 a, 269 Mayor, &c. of Little v. State "Bank 53 of London v. Goree 53 of Ludlow V. Charl- ton 52, 53 of Stafford v. Till 53 of Thetford's case 53 Max V. Koberts 218 McComb V. Wright • 27 McCombie v. Davis 113, 312, 360, 366, 367, 389,437 McConnell v. Thomas 394 McCulloch V. McKee 99 V. The Eagle Insur. Co. 493 McDaniel v. Emanuel 453 e McGillivray v. Simpson 362 McHenry v. Kidgely 394 Mcintosh V. Slade 456 a Mclver v. Humble 444 McKenzie v. Scott 215 McKinnell v. Robinson 235, 346 McKinstry v. Pearsall , 60 McLaughlin v. Prior 453 a McManus v. Crickett 453, 454, 456 McMillan v. Eastman 314, 319 a AGENCY. c Section McMillan v. The Saratoga, &c. Wash. E. Co. 453 h McNaughten v. Partridge 49, 148, 149, 153, 242, 252 Mead v. Hammond 451 Mears v. Morrison 147, 148, 153 Mechanics' Bank of Alexandria V. Bank of Columbia 63,77,114,154,270 V. Merchants' Bank 183 Medina v. Stoughton 308 Medway Cotton Manuf Co. v. , Adams 395, 396 Meech v. Smith 264, 264 a, 338 Merchants' Bank v. Central Bank 59 V. Marine Bank 115 Meriel v. Wymandsold 285 Merrick v. Barnard 217 a Merrick's Estate 490 Merryweather v. Nixon 308, 339 Metcalf w. Clough 477 .Meyer v. Barker 154, 158, 161, 261, 263, 273 V. Nios 362 Michael v. Alestree 454 c, 456 Middlebury v. Case 395 Middleton v. Fowler 454, 456 Miles V. O'Hara 157, 158, 159 Milldam Foundery v. Hovey 149 Miller v. Aris 300, 301 V. Edmonstone 63 a V. Ford 302 V. Livingston 326 V. Kace 228 Milligan V. Wedge 201, 308, 452, 453 a, 453 6, 453 c, 454, 454 a, 454 e, 456 a Mills V. Hunt 27, 165, 266, 269, 270 Minard v. Mead 147, 160 a, 274 b Minett v. Forestter 481 Minor v. Mechanics' Bank of Alexandria 114 Miranda v. City Bank of New Orleans 208 Mires v. Solebay 300 Mitchell V. Crass weller 456 V. Cockburne 346 V. Fades 488 V. St. Andrew's Bay Land Co. 49 Moffat V. Parsons 103 a Moir V. Hopkins 455 Monte Allegre (The Ship) 107, 109 Montillat v. Bank of U. States 208 Moody V. Webster 379 Moor V. Wilson 264 a XXVI INDEX TO CASES CITED. Section Moore v. Clementson 227, 270 V. Hussey 242 V. Morgue 96, 191 Moorsom v. Kymar 160, 274 Morgan v. Cader 266 V. Lewis 332 V. Stell 470, 474 Morley v. Gaisford 453 Morell V. Frith 199 Morris v. Cleasby 83, 93, 112, 161, 215, 403, 407, 411, 413, 429, 430, 444 *v. Summerl 111, 190, 218 Morse v. Royall 210 V. Slue 308, 309, 310, 316, 453 Morsell v. Frith 63, 75 Mortlock V. BuUer 50 Mott V. Hicks 53, 154, 159, 269, 276, 302, 306 Mountfort v. Scott 381 Mowatt V. McLellan 300, 301 Muldon V. Whitelock 160 a, 270, 296, 297, 431, 434 Muller V. BoHens 215 Munn V. Commission Ins. Co. 72, 73, 126,131,133 Murray v. East India Co. 62, 53, 62, 63, 67 V. South Car. R. Co. 453 e, 453 g V. Toland 15 Myl,er v. Fitzpatrick 203, 217 a Mynn v. Jolliffe 102, 108 Myrtle v. Beaver 305 N. National Bank v. Norton 140 a, 140 & Exchange Co. v. Drew 126 Neal V. Sheaffield 49 Neilson v. Harford 63 Nelson v. Cowing 59 V. Powell 160 a Nelson (The Ship) 297, 298 Neptune 2d (The Ship) 453, 456 a Nesbit V. Burry • 192 Nesbitt, ex parte 383 Newbold v. Wright 113 Newell V. Hurlbert 250 New England Marine Insur. Co. V. De Wolf 138, 147, 148, 154, 160, 160 a, 264 a Newhall v. Dunlap 155, 269 Newsome v. Thornton 60, 78, 225 New York Central Ins. Co. v. Nat. Prot. Ins. Co. 211 Section New York Life & Trust Co. V. Beebe 134 NichoUs V. Diamond 159 Nichols V. Clent 377 V. House 185 Nicholson v. Knowles 215, 217 V. Mounsey 313, 315, 316, 321, 322, 454 V. Willan 188 Nickson v. Brohan 66, 59 Nind V. Marshall 68 Nixon V. Hyserott 59, 165 V. Palmer 72, 243 Norris v. Cook 255, 258 Northampton Bank v. Parson 114 V. Pepo'on 264 a North River Bank v. Aymar 69, 72, 73, 127, 134, 137, 140 a, 140 h, 165 Norton v. Herron 155, 269, 275, 278 Nowell W.Pratt 113 O. Oakley v. Crenshaw 342 Odiorne v. Maxcy 87, 239, 253 Offley V. Ward 394, 395 Ogden V. Gillingham 482 V. Raymond 302 Ogilvie u. Foljambie 107,137 Ogle V. Atkinson 215, 360 V. Barnes 456 Olive u. Smith 376,379 Oom V. Bruce 398 Osborne v. Bank of U. States 52 V. Kerr 279, 302, 303, 306 Overton v. Freeman 454, 454 6, 454 c Owen V. Barrow 104 V. Gooch 261, 263, 266, 288 V. Van Uster 159 Owenson v. Morse 363, 367 Owings V. Hull 86, 243 Owsley V. Woolhppter 255 Pack V. Mayor of N. Y. 454 o Packard v. Nye 27S Packet (The Ship) 118, 371, 372 Paige V. Stone 77, 266, 267 Paine v. Strand Union 55 Palethorpe v. Furnish 7, 138 Palmer v. Stevens 251, 264 Palmerton v. Huxford 258 Park V. Hammond 183, i91, 200, 218 Parker v. Brancker 74, 274, 371 V. Carter 379 INDEX TO CASES CITED. xxvn Section Parker v. Donaldson 266 V. James 218 u. Kett 17, 147, 148, 149,'l52 V. Smith 482 Parkhurst v. Alexander 210, 211 Parkitt v. Imlay 85 Parks V. Koss 302 Parnther v. Gaitskell 98 ' Parr, ex parte 228 Parrott v. Eyre 284, 287 V. Wells 264 Parsons, ea; joarie 202 V. Thompson 330 V.Webb 78 V. Winchell 454 c Passmore v. Moot 154 Paterson v. Gandasequi 261, 266, 267, 268, 270, 288, 289, 290, 291, 293, 423, 446 V. Tash 78 Payne v. Rogers 454, 455 Peacock v. Rhodes 228 Peachey v. Rowland 454, 454 b, 454 c Pearson v. Skelton 339 Pease, ex parte 228 Peck V. Harriott 68, 98 Peele v. Northcote 33, 215 Peiseh v. Dickson 342, 377, 385 Pemberton, ex parte 383 Penhallow v. Doane 300 Penn. &c. Steam Navig. Co. V. Dandndge 253 V. Hungerfbrd 452 Pentz V. Stanton 147, 154, 155, 160 a, 266, 269,391,431 Percival v. Frampton 380 Perez v. Miranda 141 Perkins v. Smith 308, 309, 311, 312 u. Washington Ins. Co. 73, 264 a Perrotin v. CucuUa 103 Peters v. Ballestier 73, 121, 259 V. Earns worth 59 Peterson v. Ayre 268 Peto V. Hague 135 Petrie v. Hannay ,235, 346, 347 Peyroux v. Howard 362 a Phelps V. Prothero 160 a Phila. Rail. Co. v. Derby 452 Phillips V. Briggs 308 Pickard v. Sears 90, 91 Pickering v. Bush 34. 56, 73, 78, 93, 94, 126, 131, 132, 133, 164, 227, 437, 444 V. Dowson 137 «. Holt _ 116, 161 V. Pickering 7 Pickett V. Pearsons 54, 255 a Section Picks V. Plankin 28 Pierson v. Dunlop 369 Piesch V. Dickenson 366 Pigott V. Thompson 269, 394, 395 Pinnock v. Harrison 362 Pinto V. Santos 203, 217 a Pitman u. Kintner 264 Pitt V. Holden 24 Pitts V. Shubert 255 Planche v. Fletcher 196, 343 Plate Glass Co. v. Meredeth 321 Plomer v. Hockhead 6 Poillon V. Martin 210, 212 Polhill V. Walter 264, 264 a, 265 a Pope V. Barrett 204, 221 Port V. The United States 107 Porter v. Bank of Rutland 140 a V. Nekervis 394 V. Talcott 160 a, 270, 296, 431, 449 Pothonier v. Dawson 371 Pott V. Turner 28 Potts li. Rider 394 Powell V. Duff 49 V. Edmunds 107, 137 V. Nelson 429 V. Trustees of Newburgh 339 Power V. Butcher 191, 432, 435 Pratt u. Putnam 239 Precious v. Abell 446 Prestwick v. Marshall 7 Prevost u. Gratz 206,214 Priestley v. Fowler 308, 453 d, 453 e, 453 g Primm v. Stewart 488 Prince v. Clarke 239, 258 Prindley v. Breedlove 174 Pritchard v. Louisiana State Bank • 208 Protector (The Ship) 456 a Puokett V. The United States 107 Pultney u. Keymer 113 Purves V. Landell 24 Purviance v. Angus 314, 315 Pyle V. Cravens 6 Q- Quarman v. Burnett 201,308, 313, 452, 453, 453 a, 453 b, 453 c, 454 c, 455 Quieroz v. Trueman 113 R. Rabassa v. Orleans Navigation Co. 308 Rabone v. Williams 390, 404, 419 XXVlll INDEX TO CASES CITED. Section Kailton v. Hodgson 270, 291, 446 V. Peele 270 Ralston v. Barclay 190 Kamsayt). Gardner 335,339 Kandall i'. Chesapeake & Del. Canal Co. 134 V. Van Vechten 49, 154, 160, 161,273, 276 Kandleson v. Murray 308, 452, 453, 453 6, 454,454 a, 454 c Eandolph v. Ware 111 Ranger u. Great Western Rail. Co. 126 Ranken v. Deferest 289 Rann v. Hughes 47 Rapson v. Cubitt 201, 308, 313, 452, 453, 453 b, 453 c, 454 a, 454 c Rathbone v. Budlong 261, 302 V. Tucker 291 Raymond v. Crown & Eagle Mills 266 Rayner v. Grote 396, 406, 446 Read v. Rann 329 Reano v. Magee 60, 199 Reed v. Norris 211 V. Rann 329 V. Van Ostrand 40, 49 W.Warner 211 V. White 296, 434 Reedie v. London & North Western Railway Co. 313,453 a, 453 b, 454, 454 a, 454 c Rees V. Warwick 74 Reid V. Van Rensselaer 204 Reignolds v. Davis 485 Renteria v. Ruding 274 Rex V. Almon 452 V. Bank of England 53 V. Bigg 53 V. Goutch 452 W.Lee 199 Reynolds u. Glasgow Academy 149 Rheinhold v. Dertzell " 159 Rice V. Austin 361, 371, 377 V. Chute 305 V. Gove 147, 154, 160 a, 264 a, 272 275 Richu. Coe 294,297, 298, 299,446,' 448 Richardson v. Anderson 58, 103, 109 V. Kimball 311 V. Weston 200 Richmond Manufacturing Co. v. Starks 253, 258, 259 Richmond S. Co. v. Vanderbilt 456 Riddle v. Locks and Canals on Merrimack River 308 Ridgely v. Dobson 285, 287 Ridson v. Dilworth 269 Section Rigs V. Cage 488 Right d. Fisher v. Cuthell 246 Ringo V. Binns 211 Ripley v. Gelston -300, 301, 307 River Clyde Trustees v. Duncan 98, 104 Robbins v. Eennell , 201 Roberts v. Button 154, 280 w. Dixall 67, !/. Fonnereau 139 V. Jackson 326 w. Ogilby 217 !!. Pierson 6 Robertson v. Clarke . 118 V. Livingston 342 V. Pope 154 Robinnett v. The Ship Exeter 1 20 Robinson, ex parte 59 V. McDonnell 361 V. New York Insur. Co. 326 V. Rutter 27, 107, 397 Rochester (Dean, &c. of) i'. Pierce 53 Rodriguez u. Heflfernan 113 Roe V. The Birkenhead &c. Rail. Co. 456 V. Davis 440 V. Dean of Rochester 52 u. Pierce 246 V. Prideaux 167 Rogers v. Coit 269, 446 a V. Kneeland 58, 242, 244, 253,339 Rooth V. Wilson 414 Rosewell v. Prior 454 c Ross V. Houston 140 Rossiter v. Rossiter 65, 72, 73, 126, 131,133, 251, 264 Routh V. Thompson 242, 248, 418 Rowning v. Goodchild 305, 308, 314, 319 a, 319 6 Koyall V. Sprinkle 135 Rucker v. Cammeyer 28 Ruggles V. Gen. Int. Ins. Co. 139 Rundle V. Moore 192 Runquist v. Ditchill 73, 116 Rusby V. Scarlett 56 Rushforth v. Hadfield 354, 382 Russell V. Bangley 98, 103, 109 V. Hankey 96, 202 Ryall V. RoUe 229 Ryan v. Cumberland Val. R. 453 e, 453 ir S. Sadler v. Henlock V. Leigh Sadock V. Burton 454, 454 a, 454 c 401,403 199 INDEX TO CASES CITED. XXIX Section Salem Bank v. Gloucester Eauk 87, 115, 305, 308 Sake V. Field 470, 488 Salter v. Kingly 264 a, 395 Sammel v. Wright 453 a Sanders v. The Guardians of the St. Neofs Union 55 V. Powell 308 Sandford v. Handy 134 Sandilands v. Marsh 125, 126 Sargeajit, ex parte 228 Sargent v. Morris 394, 395, 397 Saunderson v. Bell 362 V. Marr 6 V. Walker 210 Savage w.Birckhead 183,217 c, 308, 348 w. Rix 17,147,154,276 Savignac u. Roome 456 Savings Bank v. Davis 149 Scaife v. Tobin 274, 274 a Scarborough v. Reynolds 99 Suarfe v. Morgan 353, 354, 355, 356, 362 Schack V. Anthony 147, 160,161, 394, 422 Schermerhol'n.u. Loines 296, 431, 434 Schieffelin v. Harvey 308, 314, 315, 316 Schimmelpennick «. Bayard 72, 73, 81, 133 Sehmaling v. Tomlinson 13, 201, 202, 387, 389 Schmalz v. Avery 406 Schroyer v. Lynch 319 a Scott V. Detroit Society 42 V. Franklin 228, 371, 380 b. Irving 98,103,109 V. McGrath 102 1). Surman 60, 202, 229, 231 Scotthorn v. South Staffordshire R. Co. 465 Scrace v. Whittington 279 Scrimshire v. Alderton 407, 429 Sea V. Carpenter 331 Seaman v. Fonnereau 139 Searle v. Scovell 118 Seaber v. Hawks 269 Seidell v. Peckworth 300 Seignor & Walmer's case 59, 132, 418,421 Seller v. Work 191 Seton V. Slade 108, 499, 500 Seymour v. Pychlau 418, 421, 431, 432, 446, 448 w.VanSlyck 314,319 Shack V, Anthony 147, 394, 422 Shank, ea; ^arte 365 Sharland u. Mildon 312 Section Sharp V. Emmet 156, 157,269 I'. Emmett 155 Shaw V. Arden 331 V. Nudd 50 V. Reed 453 V. Sherwood 395 Sheffield v. Watson f 202, 302, 306 Sheldon v. Drummond " 140 V. Dunlap 147, 148 Shelton v. Darling 154, 269, 276 Shepherd u. Percy 210 Sheriff v. Axe 329 Sherman v. Rochester, &c. R. Co. 453 e, 4.53 g Sherwood v. Roys 394 Shields u. Davis 116 Shipley v. Kymer 14, 78, 113, 367 Shipman v. Thompson 488, 489 Shirley v. Wilkinson 139 Short V. Skipwith . 220, 221 V. Spackman 270 Shriver v. Stephens 69 Sif kin V. Wray 350 Sigourney v. Lloyd 228, 435 Simon v. Motivos 27 Simonds v. Heard 269, 276 Simpson v. Lamb 329 V. Huggins 270 ■0. Ijficholg 235 D. Swan 123,183,269 Sims V. Bond 270, 396 V. Britain 270 Skinner v. Dayton 49, 242 V. Gunn 59, 148 Skip V. Eastern Co.'s. Rail. Co. 453 e Small V. Atwood 160,- 160 o, 418, 420 Smart v. Sanders 74, 371, 477 Smith V. Birmingham Gas Co. 52, 63, 308 V. Cologan 96, 194, 243, 249, 250 V. Condry 217 c, 220, 221, 456 a V. East India Co. 73, 74, 104, 126 V. Ferrand 431 V. Hodson 250, 259 V. Lascelles 111, 190, 218 V. Oxenden 343 V. Plummer 356 V. Rice 499 V. White 490 Smout V. nbery 264, 265 a, 488, 495, 498, 499 Smyth V. Anderson 268, 449 V. Craig 477 Snee v. Prescott 161, 350 XXX INt)EX TO CASES CITED. Section Snook V. Davidson 379, 388, 389, 391 Snow V. Perry 133 Snowdon v. Davis 300 Soames v. Spencer 244, 249, 445 Soares I'. Thornton , 116 SoUers, ex parte 228 Solly V. Forbes 58 V. Kathbone 13, 34, 113, 146, 190, 201, 217 a, 367, 389 Solomons u. Bank of England 228,394, 405, 414 V. Da-wes 247, 440 South Carolina Bank v. Case 124 Southerue v. How 310, 339 Southwark Bridge Co. v. Sills 53 Southwick V. Estes 452 Speering v. De Grave 446 Spencer v. Field 147, 148, 149, 160 a, 270, 274 a, 395, 406 Spittle V. Lavender 154, 244, 251, 278 Sprague v. Gillett 58 Spring V. So. Car. Ins. Co. 370, 379 Springer v. Hyde 69 Sproul V. Hemmingway 453 c Spurrier v. Elderton 335 Stackpole v. Arnold 147, 155, 156, 157, 160 a, 266, 268, 269, 270, 272, 276 V. Earle 330 Stafford (Mayor of) v. Till 53 Stainback v. Bank of Virginia 72 V. Kead 9, 59 Stainbank u. Fenning lie Stainer v. Tyson 69, 72, 73, 127, 244 Stanton v. Blossom 247, 248 V. Canip 147, 153, 154 a Staples V. Alder 451 Stark V. Highway Archway Co. 52 State of Illinois v. Delafield 78 Stebbins v. Leowolf 346 Steel V. The Southeastern Rail. Co. 454 h Steers v. Lashley 235, 346 Steiglitz V. Egginton 49 Stephens v. Badcook 203, 217 a, 300 V. Elwall 308, 309, 312 V. Robins 376 Stetson V. Patten 147, 264 a, 274 b, 279 Stevens v. Armstrong 454 c V. Hill 155, 157, 159 V. Mortimer 398, 435 V. Bobbins 374, 376 Stevenson v. Blakelock 203, 383 V. Maxwell 326 Section Stewart v. Aberdein 181, 404, 412, 429, 430 V. Duncan 217 V. Dunlop 139 ■ V. Hall 296, 297, 299, 434 V. Kennett 247, 248 Stewartson v. Watts 134, 135 Stinohfield v. Little 147, 148, 149, 303 Stirling, ex parte 383 Stock V. Harris 305, 314, 319 a Stocking V. Sage 339 Stoddard v. Mcllvain 77 Stone V. Cartwright 308, 312, 313, 454, 454 c, 455 V. Cheshire Rail. Corp. 454 V. Codman 454, 454 c V. Hayes 210 V. Ketland 453 V. Wood 148, 273, 276, 278 Stonehouse v. Gent 119 a Stoughton V. Baker 13 Stracey D. Deey 404,419,420 Strange v. MoCormick 453 h Strawbridge w. Turner 217 c Strong V. Hart 431 Strutt V. Hodgson 259 Sullivan v. Campbell 160 a, 270 V. Greaves 235 Sumner v. WiUiams 264, 273, 280 Sussex, Duke of, (The Ship) 456 a Sutton V. Clarke 321 Ex parte 146,217 a First Parish in, v. Cole 42 V. Tatham 9G Swan V. Nesmith 215 Sweet V. Pym ' 350, 361, 367 Swift V. Hopkins 306 V. Tyson 379, 38O Sykes V. Giles 126 Taber v. Cannon 77, X47 17. Perrot 201, 217 a, 231 a, 429 Taft V. Brewster 148, 276, 278 Taggard v. Loring us Taggart v. Stanberry 59 Taintor v. Prendergast 147, 160 a, 161, 266, 268, 269, 290, 400, 401, 403^ m „ ^ 404, 420, 448 Talbot V. Godbolt 269 Tanner v. Christian 155 269 Tapley v. Martens 431 Tassey v. Church 28O Tate V. Evans jgg V. Hilberts 438 INDEX TO CASES CITED. XXXI Section Taunton & South Boston Turn- pike V. Whiting 160 a, 269, 395, 396 Taylor v. Brewer 325 V. Kymer 420, 437 V. Lendy 235 V. Plumer 215, 229, 231, 242, 259, 435, 436, 437 V. Kobinson 360 !;..SaImon 210, 211 V. 451 Teaadale v. Teasdale 91 Templar v. McLachlan 333 Tenant v. Elliot 235, 347 Terrill v. Flower 253 Texiras v. Evans 49 Thacher v. Dinsmore 280 V. Winslow 394 Thallhimer v. Brinckerhoff 134, 135 Thames (The Ship) 453 Thomas u. Bishop 159,269 Thomas's Ex'r v. Edwards 261 Thompson, ex parte 228 V. Earmer 367 V. Giles 228 V. Havelock 334 K. Perkins 33,112,215, 229, 231 Thomson v. Davenport 160 a, 261, 264, 266, 267, 268, 269, 270, 288, 289, 290, 291, 293, 400, 423, 446, 448, 449 V. Thomson 235 Thorndike v. Godfrey 243 Thome V. Deas 478 Thornton v. Kempster 28 Thorold v. Smith 104, 253 Thwayes v. Dye 67 Tickel V. Short 190, 217 a Tide Water Canal Co. v. Archer 221 Tilson V. Warwick Gas Light Co. 53, 422, 450 Tilton (The Schooner) 164, 211 Tidnall v. Brown 247 Tippetts V. Walker 13, 148, 149, 155, 273, 276, 278, 302 Tobey v. Barber 431 I'. Claflin 287 Tobin V. Crawford 274 Todd V. Emly 289, 442 V. Reid 98, 103, 109 Tomlinson v. CoUett 17, 73, 126 Toulmin v. Steere 140 Towle V. Jackson 243 17. Leavitt 72, 102 Townsend v. Corning 264 a Section Townsend v. Hubbard 148, 149, 154, 264 a, 274 a V. Inglis 430 . V. Susquehanna Turn- pike Co. 308 Tracy v. Swartwout 300, 301, 307 Tradesman's Bank u. Astor 131,165 Trask u. Roberts 154,276 Trelawney v. Thomas 338 Treuttel v. Brandon 228, 435 Triplett v. Neale 300 Trueman v. Loder 28, 160 a, 268, 269, 400, 401 Tuberville v. Stamp 456 Tucker v. Moreland 6 Tuft V. Hobbs 302 Twogood, ex parte 228 Tyler w. Freeman 396 Union Bank v. Beirne 42 United States Bank v. Binney 126 United Ins. Co. v. Scott 38, 118 United States v. Bartlett 435, 463, 466 V. Dugan 394, 412 V. Fillebrown 324, 325 V. Halberstadt 308 V. Jarvis 124, 463, 466,467 V. Kirkpatrick 319 V. McDaniel 325 V. Parmele 160, 161 V. Ripley 235 Unwin V. Woolseley 302, 303 Upham V. Lefavour 385 Upton V. Gray 266, 291 Ure V. Currell 192 Urquhart v. Mclver 78, 113, 367 Usparicha v. Noble 394 V. Valentine v. Piper 58 Vanada v. Hopkins 59 Van Allen v. Vanderpool 60 Van Amringe v. Peabody 113, 225 Van Brunt v. Schenck 312 Vanderbilt v. Richmond Turnpike Co. 317,318 Vandervaldy v. Barry 343 Vanderzee v. Willis 381 Vandyke v. Brown 336 Vanguard (The Ship) 195, 344 Vanhorne v. Frick 50 Van Beimsdyck v. Kane 153 Van Rensselaer v. Morris 138 XXXll INDEX TO CASES CITED. Section Van Staphorst v. Pearce 394 Varden v. Parker 204 Veazie v. Williams 126 Veil V. MitcLell's Adm'rs 231 Vellejo V. Wheeler 116 Vere v. Ashby 124 Vernon v. Hankey 259, 349 Vianna u. Barclay 199, 258 Vicars t). Wilcocks 217 c Vrou (The Judith) 36 VuUiamy v. Noble 228 W. Wakeu. Atty 191 Wakefield Bank (The), ex parte 228 Walch V. Whitoomb 477 Waldo V. Martin 330 Walker v. Birch 362, 365, 378 V. Palmer 9 V. Euss 403 V. Skipwith 17, 73, 126 V. Swartwout 302, 303, 306 Wallace v. Branch Bank of Mobile 69 V. Cook 488 V. Telfair 190, 218 Wallis V. Manhattan Bank 481 V. Woodgate 369 Walter v. Koss 372, 408, 420 Walton V. Hanbury 308 Wanstall v. Pooley 454 Waples y. Hastings 6 Ward V. Evans 253 V. Hobart 456 Waring, ex parte 228 V. Cox 261, 395 V. Favenck 446, 448, 449 «. Mason 269,270 Warner u. McKay 404 V. Mower 149 Warren v. Manuf. Ins. Co. 347 Warwick v. Noakes 96' V. Slade 465 Washington Bank v. Lewis 87 Waters u. Brogden 126 V. Monarch Life and Fire Ins. Co. Ill Watkinson v. Laughton 315, 316 Watson u. King 477,488 Waugh V. Carver 232 Way land's case ' 56 Weaver v. Ward 456 Webb V. Brooke 346 V. Burke 276 Webb et al. u. Drake 322 Webber u. Williams College 77 Webster t!. De Tastet 195,217 c, 222, 235 Ssction Webster v. Seekamp 122 Weeks v. Maillardet 49 Wellman v. Nutting 196 Wells V. Evans 49, 148, 242, 264 a, 450 V. Boss 232 Westwood u. Bell 379,389,390,419 Wetherell v. Jones 347 Weyant v. N. Y. & H. Rail. Co. 453 a Weyland u. Elkins 454 Weymouth v. Boyer 362, 365, 378 Wheeler v. Nevins 49 Wheelock v. Wheelock 394 Whichcote v. Lawrence 211 Whitcomb v. Jacob 229 White u. Bartlett 217 V. Chapman 331, 333 V. Chouteau 112 V. Cuyler 148 V. Gifibrd 481 u. Lady Lincoln '203, 332, 333 V. Proctor 27 V. Skinner 155, 264 a, 273, 276 Whiteheads. Tuckett 17, 18, 73, 104, 126,127,131,227,444 V. Vaughan 370 Whitfield V. Le Despencer 314, 319 Whitlock V. Waltham , 98, 104 Whitney v. Dutch 6 Wigmore v. Jay 453 d, 453 g Wilbraham v. Snow 312 Wild D. Bank of Passamaquoddy 114 Wilkes V. Ellis 27, 28 Wilkins v. Gilmore 452 t.. Wetherell ' 6 Wilkinson v. Leland 240 Wilks V. Back 147, 148, 153 Willard v. Newbury 454 c Willett V. Chambers 44 William v. Cochran 79 Williams W.Barton 113,114 V. Chester Rail. Co. 53 V. Littlefleld 192, 348, 354, 362, 374 V. Millington 27, 107, 116, 386,397,401,414 V. Mitchell 56 V. Nichols . 36 V. Nichols & Terry 117 V. Walker 98, 104 V. Walsby 49 V. Winchester 160 a, 420 V. Woodward 67 Williamson v. Price 456 a Willinks v. Hollinmworth 253, 259, 389 Willis V. Bank of England 140 d V. Glover 139 Wilson u. Anderton 217,440 INDEX TO CASES CITED. XXXUl Wilson u. Bailey t). Balfour V. Coffin V. Creigliton V. Edmonds V. Foster V. Hart V. Heather V. Keymer V. Peverly V. Poulter I'. Rich V. Short V. Tumman V. Wilson V. Zuluetta Wiltshire 17. Sims Winsor, ex parte V. Griggs Winter v. Coit Section 270 353 200 336 488 488 291, 446, 448 356 274 456 242, 250, 259 6 217c 247, 251 a 74,192 268, 400 60, 78, 226 13 266, 267 361 Winterbottom U.Wright 201, 308, 452, 453, 453 b, 454 a, 457 Wiswall V. Brinson Withington v. Herring Witte V. Hague Wolff V. Horncastle 454, 454 c 58, 68, 72, 73, 133 454 111, 141, 161, 239,336 215 126 V. Koppell Wontner v. Sharp Wood V. Auburn & Rochester Rail. 49 V. Dennett 154, 275 V. Goodridge 68 V. Van Dusen 346 Woodes V. Dennett 154, 264,264 a, 274 Section Woodford !>. McLenahan 59 Woodhouse v. Meredith 210 Woodin V. Burford 126 Woodrop Sims (The Ship) 453 Woodstock Bank v. Downer 395 Woodward v. Suydam 217 c, 221, 259, 333 Woolsey v. Tompkins 42 Worrall v. Munn 49 Wostenholm v. Davies 98 Wren v. Kirten 200, 205, 208, 218 Wright V. Dannah 9, 31, 211 V. Snell 382 Wyatt V. Marquis of Hertford 296, 433, 434, 449 Wyburd v. Stanton 330 Wyman v. Gray 154 Wynne v. Thomas 488 r. Yarborough i'. Bank of England 52, 53, 54, 308 Yates V. Bond 107 V. Brown 456 a Yerby v. Grigsby 58, 148 Young V. Cole 96 r. White 390,411,419,420, 444 Z. Zacharie v. Nash Zino V. Verdelle Zoit V. Millauden Zouoh V. Parsons 261 259 371 6 COMMENTAEIES ON AGENCY. COMMENTAEIES ON AGENCY, CHAPTER I. AGENCY IN GENERAL. § 1. In conformity with the original plan, prescribed to me by the Founder of the Dane Professorship, my design in the present Commentaries is to expound the elementary principles belonging to the leading branches of commercial and maritime jurisprudence. And, in the first place, let us proceed to the consideration of the Law of Agency, a subject intimately con- nected with all these branches, and in no small degree neces- sary to a full and exact exposition of the doctrines applicable to them. From this we shall be led, by a very easy and natu- ral transition, to the Law of Partnership. And these being discussed, the path to others will lie open before us, unob- structed by any collateral inquiries, which may embarrass our progress. § 2. It is obvious to remark, that a large proportion of the business of human life must necessarily be carried on by per- sons, not acting in their own right, or from their own intrinsic authority, over the subject-matter, but acting under an author- ity derived from others, who, by the principles of natural and civil law, are exclusively invested with the full and complete original dominion, authority, and right over such subject-mat- AGENCY. 1 2 AGENCV. [CH. I. ter. By the general theory of our municipal jurisprudence, and probably by that of all civilized nations, professing to be governed by a regular system of laws, every person is invested writh a general authority to dispose of his own property, to enter into contracts and engagements, and to perform acts, which respect his personal rights, interests, duties, and obliga- tions, except in cases where some positive or known disability is imposed upon him by the laws of the country, in which he resides, and to which he owes 'allegiance. Every person, not under such a disability, is treated as being sui juris, and capable, not only of acting personally in all such matters by his own proper act, but of accomplishing the same object through the instrumentality of others, to whom he may choose to delegate, either generally, or specially, his own authority for such a purpose.-' In the expanded intercourse of modern soci- ety it is easy to perceive, that the exigencies of trade and com- merce, the urgent press'ure of professional, official and other pursuits, the temporary existence of personal illness or infirm- ity, the necessity of transacting business at the same time in various and remote places, and the importance of securing accuracy, skill, ability and speed in the accomplishment of the great concerns of human life, must require the aid and assist- ance and labors of many persons, in addition to the immediate superintendence of him, whose rights and .interests are to be directly affected by the results.^ Hence the general maxim of our laws, subject only to a few exceptions above hinted at, is, that whatever a man sui juris may dp of himself, he may do by another; and as a correlative of the maxim, that what is done by another is to be deemed done by the party himself. Qui facit per alium, per seipsum facere videtur? 1 Bao. Abr. Authority, A. 2 See 1 Domat, B. 1, tit. 15; Introduction to title Proxy, &c. 215, 216. The Digest pithily puts the point. Usus autem Procuratoris perquam necessarius est, ut qui rebus suis ipsi superesse vel nolunt, vel non possunt, per alios pos- sint, vel agere, vel oonveniri. Dig. Lib. 3, tit. 3, 1. 1, § 2. 3 Co. Litt. 258 a. CH. I.] AGENCY IN GENERAL. 8 § S. In the common language of life, he, who, heing com- petent, and sui Juris, to do any act for his own benefit, or on his own account, employs another person to do it, is called the Principal, Constituent, or Employer; and he, who is thus employed, is called the Agent, Attorney, Proxy, or Delegate of the Principal, Constituent, or Employer.^ The relation, thus created, between the parties, is termed an Agency. The power, thus delegated, is called in law an Authority. And the act, when performed, is often designated as an act of Agency or Procuration ; the latter word being derived from the Roman law, in which Procuratio signifies the same thing as Agency, or the administration of the business of another.^ When the Agency is created by a formal written instrument, especially if it be under seal, it is with us commonly called a Letter of Attorney ; by foreign writers, it is more commonly called a Procuration,^ In the Roman law the Agent was called a Procurator, and. he was thus defined : Procurator est, qui aliena negoUa mandatu Domini administrat ; '^ so that the Dominus (master) of the Civil Law answered exactly to the principal of our law. Indeed, the definition of an agent at the common law seems borrtwed from this very source ; and Lord Chief Baron Comyns has 'well expressed it, when he says, that "An attorney is he, who is appointed to do any thing in the place of another."^ 1 See 1 Domat, B. 1, tit. 15, Introd. ' 2 Brisson. De Verb. Sign. Procuratio ; Code of Louisiana, tit.'15, art. 2954 ; Civil Code of France, art. 1984, 1985 ; Malyne, Lex Merc. 79 ; 1 Bell, Comm. 385, (4th edit.) ; Id. B. 3, pt. 1, ch. 3, p. 476, (5th edit.) 3 Co. Litt. 52 a ; Malyne, Lex Merc. 78, 79. — Thus, for example, Domat defines a procuration in this manner. " La procuration est un acte par lequel celui, qui ne peut vaquer lui mgme Jt ses affaires, donne pourvoir Ji un autre de le faire pour lui, comme s'il etait lui mgme present ; soit qu'il faille simplement g^rer et prendre soin de quelque bien, ou de quelque affaire, on que ce soit pour traiter avec d'autres.'' 1 Domat, B. 1, tit. 15, § 1, art. 1. 4 Dig. Lib. 3, tit. 3, 1. 1 ; Heinecc. ad Pand. Lib. 3, tit. 3, § 415, 423 ; Pothier, Pand. Lib. 3, tit. 3, u. 2. 5 Com, Dig. Attdrney, A. 4 AGENCY. [CH. I. § 4). It may not be without use to remark, that in the Roman law an agency was sometimes called, in a large sense, a Mandatum (mandate); and the principal was denominated Mandator or Mandans, (the employer or mandant,) and the agent Mandatarius, (the employee or mandatary,)^ For, in the primitive sense of the term, Mandatum was not so much a contract, from which there sprung up a civil obligation and action, as a business or negotiation, {negotium,) which was con- fided to the discretion of the mandatary; Mandare est germ' dum quid alicui committere? But, in the more ordinary sense of the word, Mandatum was limited to such an agency, as was authorized and undertaken for another gratuitously, and without reward. For, if a compensation was to be received, it fell under another head, and was a Locatio et Gonductio, a letting and hiring of the services of the agent; and it was then governed by somewhat different obligations and duties.^ Hence it is declared; Mandatum, nisi gratuitum, nullum est, nam originem ex officio et amicitia trahit. Contrarium ergo est officio merces ; interveniente enim pecunid res ad locationem et conducUonem potius respicit^ But this distinction and the consequences thereof have been feilly expounded in the Com- mentaries on Bailments, to which the learned reader is referred for more exact information.^ The Agency, which will be prin- cipally, although not exclusively, treated of in the present 1 See 1 Stair, Inst. B. 1, tit. 12, p. 127, edit, by Brodie; Ersk. Inst. B. 3, tit. 3, 1 31 ; Story on Bailm. § 138. 2 Brisson. Verb. Signif. Mandare; Noodt. in Pand. torn. 2, p. 372 ; Heinecc. ad Pand. Lib. 17, tit. 1, § 230, note ; 1 D,omat, B. 1, tit. 15, Introd. 3 It is in tbe broad sense above stated, that the word " mandate " is used in the present Civil Code of France, as well as in the Civil Code of Louisiana. See Civil Code of France, art. 1984, 1986; Civil Code of Louisiana, art. 2954, 2955, 2960. The modern Scottish mercantile law seems to apply theword mandate in the some broad sense. 1 Bell, Comm. 385, § 408 (4th edit.) ; Id. B. 3, pt. 1, oh. 3, § 3, p. 476, (5th edit.) ; 1 Domat, B. 1, tit. 15, Introd. * Dig. Lib. 17, tit. 1, 1. 1, § 4 ; 1 Domat, B. 1, tit. 15, § 1, art. 9. 5 Story on Bailm. § 137 to 156. CH. I.] AGENCY IN GENERAL. 5 work, is that which arises in the course of commercial affairs; and illustrations will be borrowed from other sources, only when they jnay serve more fully to explain the doctrines appli- cable to the former. ' > ■ AGENCY. [CH. II. CHAPTER II. WHO ARE CAPABLE OF BECOMING PRINCIPALS AND AGENTS. § 5. Let us next proceed to the consideration of the question, Who is capable of becoming a principal, and in regard to what matters; and who is capable of becoming an agent, and in regard to what matters. In general, it may be said, that every person sui juris, is capable of becoming both a principal and an agent, unless there exists some disability or prohibition by the municipal law, which is to regulate his rights and duties. In order, therefore, to arrive at any accurate understanding of this subject, we are to examine the exceptions created by that municipal law ; and where these exceptions cease, the natural presumption is, that in all other cases the general rule prevails. § 6. And first, who are principals, capable of delegaiting authority to others to act in their behalf and for their interest. In general it may be stated, (as has been already intimated,) as a rule of the common law, that, whenever a person has a power, as owner, or in his own right, to do a thing, he may do it by an agent.-' Every person, therefore, of full age, and not other- wise disabled, has a complete capacity for. this purpose. But Infants, Married Women, Idiots, Lunatics, and other persons not sui juris, are either wholly or partially incapable of appoint- ing an agent. Idiots, lunatics, and other persons not sui juris, are wholly incapable ; and infants and married women are in- capable, except under special circumstances.^ Thus, for ex- 1 Coombe'a case, 9 Co. R. 75 b ; Com. Dig. Attorney, C. 1 ; Heineco. ad Pand. P. 1, Lib. 3, tit. 1, § 424. Ante, § 2. 3 The civil law included the like disabilities. Thus, for example, an idiot or lunatic was rendered incapable of contracting, and could not delegate authority CH. II.] AGENTS, WHO MAY BE, 7 ample, an infant may authorize another person to do any act which is for his benefit ; but he cannot authorize him to do an act which is to his prejudice.^ If, therefore, an infant should make a letter of attorney to another, to take livery of lands on a feoffment to him, it will be good ; for it will be intended to be for his benefit.^ But if an infant should make a feofiinent, and execute a letter of attorney to another, to make livery in his name to the feoffee, it will be void ; for such feofihient and livery will be intended to be to his prejudice.^ So in regard to married women, ordinarily, they are incapable of appointing an agent or attorney ; and even in case of a joint suit at law, an appointment of an attorney by a married woman is void; and her husband may make an attorney for both.* But where to another to act for him. Yuriosus nullum negdtium gerere potest, quia non intelligit, quod agit. Inst. Lib. 3, tit. 20, § 8. The same rule applied to an infant, as contradistinguished from a minor of years of discretion. Nam infans, et qui infantise proximus est, non multum a furioso distant ; quia hujusmodi setatis, pupilli nullum habent intellectum. Inst. Lib. 3, tit. 20, § 10. Furiosi vel ejus, cui bonis interdictum sii, nulla voluntas est. Dig. Lib. 50, tit. 17, 1. 40 ; id. 1. 5.— But then again a minor or pupil might sometimes act by an agent, with the consent of his guardian or tutor. Verum, si ipse pupillus praeposuerit, si quidem tutoris auctoritate, obligabitur ; si minus, non. Dig. Lib. 14, tit. 3, 1. 9 ; Inst. Lib. 3, tit. 20, § 9 ; Pothier, Pand. Lib. 3, tit. 3, n. 1 7, 18 ; Pothier on Oblig. n. 49 to 52 ; Dig. Lib. 50, tit. 1 7, 1. 5. Heinec- cius lays down the general rule, and the exceptions, in the following brief terms. (1.) Ut ii demum procuratorem constituant, qui et niandare et res suas libere administrare possunt ; adeoque, (2.) Non furiosi mente capti, infantes, surpi, muti, prodigi. Heinecc. ad Pand. P. 1, Lib. 3, tif. 3, § 424. See Pothier on Oblig. n. 49 to 52, n. 74, 75. 1 Keane v. Boycott, 2 H Black. R. 515 ; Tucker v. Moreland, 10 Peters, R. 58, 69; Whitney v. Dutch, 14 Mass. K. 463 ; 2 Kent, Comm. Lect. 31, p. 283 to 243 (4th edit.) 3 Com. Dig. Enfant, B. 1 ; 1 Roll. Abr. 730, 1. 10 ; Zouch v. Parsons, 3 Burr. R. 1808; Coombe's case, 9 Co. R. 76 b; 2 Kent, Comm. Lect. 31, p. 233 to 344 (4th edit.) 3 Com. Dig. En/ant, C. 2; Perkins, Grant, 13; Zouch v. Parsons, 3 Burr. 1804 ; Coombe's case, 9 Co. R. 75, 76 ; Lawrence v. McArter, 10 Ohio R. 37 ; Pyle V. Cravens, 4 Littell, 18 ; Doe d. Thomas v. Roberts, 16 M. and W. 778 ; Bennett v. Davis, 6 Cowen, 393 ; Waples v. Hastings, 3 Harrington, 403 ; Knox V. Hack, 10 Harris, 337. 4 Saunderson v. Marr, 1 H. Bl. 75 ; Roberts v. Peirson, 2 Wils. R. 3 ; Fox- 2 8 AGENCY. [CH. II. a married woman is capable of doing an act, or of transferrmg property or rights with the assent of her husband, there, per- haps, she may, with the assent of her husband, appoint an agent or attorney to do the same.^ So with regard to her separate property, she may, perhaps, be entitled to dispose of it, or to in- cumber it, through an agent or attorney ; because in relation to such separate property she is generally treated as a feme sole I say, perhaps.; for it may admit of question ; and there do not seem to be any satisfactory authorities directly on the point.' § 7. Secondly, who are capable of becoming agents. And here it may be stated, that there are few persons who are ex- cluded from acting as agents, or from exercising an authority delegated to them by others. Therefore, it is by no means necessary for a person to be sui juris, or capable of acting in his or her own right, in order to qualify himself or herself to act for others. Thus, for example, monks, infants, femes covert, persons attainted, outlawed, or excommunicated, villeins, and aliens may be agents for others.* For the execution of a naked wiste V. Tremaitie, 2 Saund. R. 212, 213 ; Bacon, Abr. Baron §• Feme, I. ; Wil- kins V. Wetherell, 3 Bos. & Pull. 220 ; Maclean v. Douglas, 3 Bos. & Pull. 128 ; Viner, Abr. ^«orn«2/, C. pi 5, 7 ; Co. Litt. 42 b; liarg. note 4; Co. Litt. 112 a, Harg. note 6. ' Sed qumre. 2 See 2 Story on Equity Jurisp. § 1391 to 1402. 3 See Clancy on Husband & Wife, 166 to 169; Id. ch. 5, p. 282 to 294 ; Roper on Husb. & Wife,_ch. 16, p. 97 to 100; Id. 107, 108, 126; Id. ch. 19, p. 184, 185, 193, 194.— It is laid down in Com. Dig. Baron Sp Feme, G. 3, that, if there be a demise for years ^y husband and wife of the lands of the wife, with a letter of attorney, signed by both, to deliver the lease upon the land, it is a good demise of both during the coverture though the wife cannot make an attorney. And for this is cited v. Hopkins, Cro. Car. 165 ; and Cooper's Case, 2 Leon. R. 200 ; and Anon. 2 Bulst. R. 13 ; which are directly in point. But Gardner v. Norman, Cro. Jac. 617 ; Wilson v. Rich, Yelv. R. 1 ; S. C. 1 Brownl. R. 134; Plomer v. Hockhead, 2 Brownl. R. 248, are to the contrary. Adams, in his work on Ejectment, {p. 179 [174,] third edition,) lays down the rule according to these latter cases. See also Runnington on Ejectment, 148. 4 Thomson on Bills, p. 220 (2d edit.), 1836 ; Co. Litt. 52 a; Bac. Abr. Author- ity, B. ; Com. Dig. Attorney, C. 4 ; Id. Baron §• Feme, P. 3. Aliens are enu- merated by Lord Coke (as in the text) as capable of being agents for others. By this Lord Coke probably had in view alien friends, who, although they have CH. II.] AGENTS, WHO MAY BE. 9 authority can be attended with no manner of prejudice to per- sons under such incapacities or disabilities, or to any other per- son, who by law may claim any interest under such incapacitated or disabled persons after their death.^ Nay, a feme covert may be an attorney of another to make livery to her husband upon a feoffment ; and a husband may make such livery to his wife ; although they are generally deemed but one person in law.^ She may also act as the agent or attorney of her own husband, and as such, with his consent, bind him by her contract or other act ; ^ or she may act as the agent of another in a contract with her own husband.* There are, indeed, some exceptions to the general rule above stated ; for an idiot, lunatic, or other per^n otherwise non compos mentis, cannot do any act, as an agent or attorney, binding upon the principal ; for they have not any legal discretion or understanding to bestow upon the affairs of others, any more than upon their own.^ And even in case of a feme covert, although in general she is competent to act as an agent of a third person ; yet it is by no means clear, that she can do so against ^he express dissent of her husband, as such agency may involve duties and services inconsistent with those which appertain to her peculiar relations to her husband and family. § 8. Distinctions, not unlike these, existed in the civil law ; for by that law a minor, a feme covert, a servant, a slave, a kinsman, or an alien, might be appointed as an agent. And not a capacity to hold real estate for themselves, may act as attorneys for others in letting or selling real estate. 1 Bacon, Abr. Authority, B. 2 Emerson v. Blonden, 1 Esp. Kep. 142 ; Prestwick v. Marshall, 7 Bing. R. 565 ; Palethorp v. Furnish, 2 Esp. R. 51 1 , note ; Hopkins v, Mollineux, 4 Wend. R. 465. 3 Bacon, Abr. Authority, B.; Co. Litt. 112, and Harg. note 6 ; Pothier on Oblig. n. 74,82; Pickering v. Pickering, 6 N. H. R. 124; MacKinley w. Mc- Gregor, 3 Wharton, 369; Felker v. Emerson, 16 Verm. 653; Story on Bail- ments, § 162. * Co. Litt. 58 a ; Com. Dig. Attorney, C. 4 ; Id. Baron §■ Feme, D. 5 Thomson on Bills, p. 220, (2d edit.), 1886. 10 AGENCY. [CH. II. especially does this seem to have been applicable to the common course of transactions in the ordinary business of a store or shop, where the person, who superintended it, was ordinarily called Institor. Institor appellatus est ex eo, quod negotio gerendo instet, nee multum facit; tahernw sit prwpositus, an cuilibet alii negotiationi} Parvi autem refert, quis sit institor; masculus, an fcemina ; liber, an servus ; proprius, vel alien- us : — Item, quisquis prceposuit ; nam, et si mulier prceposuit, competit institoria, (actio,) exemplo exercitorice actionis ; et, si mulier sit prceposita, tenehitur etiam ipsa. Sed et, si filia familids sit, vel ancilla prceposita, competit institoria actio. Pupillus autem institor ohligat eum, qui eum prceposuit, in- stitoria actione ; quoniam sibi imputa/re debet, qui eum prce- posuit. Nam plerique pueros puellasque tabernis prcBponunt? § 9- But although all persons sui juris, are in general (as we have seen) capable of becoming agents ; yet we are to understand, that they cannot at the same time take upon them- selves incompatible duties and characters ; or become agents 1 Dig. Lib. 14, tit. 3,1.3; Id. 1. 5, Introd. and § 1 to 4 ; Pothier on Oblig. by Evans, n. 74 to 82, n. 447 to 456 ; 1 Bell, Com. 385, (4th edit.) ; Id. p. 478 to 481, (oth edit.) ; 1 Domat, B. 1, tit. 16, § 3, art. 1, 4, 5 ; Pothier, Pand. Lib. 14, tit. 3, n.l, 3,4, 5,6,17, 18 ; Id. Lib. 14, tit. l,u. 11, 12 ; 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 19. — In another passage the definition of Institor is somewhat differ- ently given. Institor est, qui tabernae, locove, ad emendum vendendumne, prse- pontur, quique sine loco ad eundem actum prteponitur. Dig. Lib. 14, tit. 3, 1. 18. Mr. Bell, in his Commentaries on the Laws of Scotland, Vol. 1, p. 385, (4th edit.) Id. p. 479, 480, (5th edit.,) says, that the charge given to a clerk to manage a store or shop is called Institorial power. See also 1 Stair, Ipst. by Brodie, B. 1 tit. 11, § 12, 18, 19 ; Ersk. Inst. B. 3, tit. 3, § 46. 2 Dig. Lib. 14, tit. 3, 1. 7, § 1, 2, Id. 1. 8 ; 1 Domat, B. 1, tit. 16, art. 4 ; Pothier, Pand. Lib. 3, tit. 3, n. 1 7.— Heiueccius may be thought to have drawn a somewhat broader inference ; and to have insisted, that persons, generally dis- abled to act in their own affairs, were disabled to act as agents for others. Ex eodem inferimus, (says he,) natura inhabiles ad negotia aliorum gerenda, pro- curatores esse non posse ; veluti furiosos, mente captos, infantes, surdos et mutos, minoris annis septemdecim. Heinecc. ad Pand. Lib. 3, tit. 3, § 425. But he, most probably, referred to such mental incapacity, as deprived them of a suit- able discretion to perform the duties of an agent. See Pothier Pand. Lib. 3, tit. 3, n. 19, 20 ; 1 Domat, B. 1, tit. 16, art. 4. CH. II.] AGENTS, WHO MAY BE. II in a transaction, where they have an adverse interest or em- ployment.^ Thus, a person cannot act as agent in buying for another goods belonging to himself ; and at a sale made for his principal, he cannot become the buyer .^ Neither can he, when holding a fiduciary relation, such as trustee, guardian, attorney, or agent, contract with the same general binding force with his principal, as in ordinary cases, where such a relation does not exist.^ And a memorandum, made and signed by a seller, at the request of the purchaser, will not bind the latter, as a memorandum within the Statute of Frauds, on account of this incompatibility of character.* [So the agent of an insurance company, however broad his authority, cannot receive an appli- cation from himself, and insure his own property so as to bind the company.®] § 10. The civil law. recognized in the fullest manner the same doctrine. Tutor rem pupilli emere non potest. Idemque porrigendum est ad similia, id est, ad curatores, procuratores, et qui negotia aliena gerunt.^ The reason is laid down in another passage ; that there is a natural incompatibility between the interest of the buyer and that of the seller. Quemadmodum in emendo et vendendo naturaliter .concessum est, quod pluris sit, minoris emere; quod*minoris sit, pluris vendere ; et ita invicem se circumscribereP Or, as it is elsewhere said ; In pretio emptionis et venditionis naturaliter licere contrahentibus 1 Paley on Agency, by Lloyd (3d edit.) ch. 1, Pt. 1, § 7, art. 5, p. 33 ; Id. art. 6, p. 37, and note (4) ; 1 Story on Equity Jurisp. § 315, 316 ; post, § 10, 210, 211. See Stainback v. Read, 11 Gratt. 281. 2 Paley on Agency, by Lloyd, 33 to 38; Massey v. Davies, 2 Ves. jr. 317; Charter v. Treyellyan, 11 Clark & Finn. 714 ; Bunker v. Miles, 30 Maine, 431 ; Walker v. Palmer, 24 Ala. 358 ; post, § 210, 211, 213. 3 1 Story on Equity, § 308 to 328, and cases cited in Paley on Agency, by. Lloyd (3d edit.) p. 33 to 37 ; 1 Livermore on Agency, 416 to 433 (edit. 1818.) * Wright V. Dannah, 2 Camp. K. 203 ; Dixon v. Bromfield, 2 Chitty, R. 205 ; Fairbrother v. Simmons, 5 Barn. & Aid. 333. 5 Bentley v. Columbia Ins. Co. 19 Barbour, 595. 6 Dig. Lib. 18, tit. 1, 1. 34, § 7. Post, § 213. 7Dig. Lib. 19, tit. 2, 1. 22, § 3. Post, § 210. ' 12 AGENCY. [CH. II. se circmivenire} Cujacius has expounded the bearing of this doctrine on various occasions ; and more especially, where he says ; Nee enim unquam aliquis quidquam vendibit sibi, sed alii. Denique idem homo emptoris ' et venditoris officio fungi non potest. Cum vero idem non esset constitutum de curatore, quia, rem adolescentis vel furiosi, vel prodigi, curatorem emere non posse. Nee de Procuratore negotiorum constituto ex man- dato, vel immiscente se negotiis sine mandato, non posse hunc quoque etiam quidquam emere de rebus domini, ad quem negotia pertinent.^ § 11. In the next place, as to the subject-matter of an agency. Although, in general, what a person sui juris may do himself, he may delegate authority to another to do for him ; yet there are exceptions to the doctrine. Thus although a per- son 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 ap- pointment is utterly void. It imports neither duty, nor obliga- tion, nor responsibility, on either side ; although it may involve both in punishment ; Consentientes et agentes pari pcena plec- tentur? And this is clearly the dictate of natural justice ; and as such is recognized in the civil law. Rei turpis nullum man- datum est.^ Illud, quoque, mandatum non est obligatorium, 1 Dig. Lib. 4, tit. 4, 1. 16, § 4. Post, § 210, 213. 2 Cujacii Opera, Tom. 6, p. 90, ad Lib. 15, Dig. Salvii Julian! (edit. Neap. 1758); H.Tom.4,p. 963, C. Comm. in Lib. 3, Resp. Papin. ; Id; Tom. 1, p. 968, C. ad tit. de minor. 25 annis ; Dig. Lib. 4, tit. 4. See also Dig. Lib. 26, tit. 8, 1. 5, § 2.— Mr. Livermore has cited another passage, 1 Liverm. on Agency, 417, note (edit. 1818,) from Cujacius ; as contained in Cujac. ad. Dig. Lib. 4, 4, 16, 4 ; Cujac. Opera, Tom. 1, p. 998, (edit. 1755.) It is : Emptor emit quam minimo potest, venditor vendit quam maximo potest. I do not find the passage in the place cited. But in Cujac. Comm. in Lib. 3, Respons. Papin. Cujac. Opera, Tom. 4, p. 963, (edit. 1758,) ad § Cum. Inter. [Dig. Lib. 46, tit. 1, 1. 51, § 4,] is the following passage : " Hsac scilicet est natura contractus emptionis et vendi- tionis, ut vendat unus quanto pluris, emat alter quanto minol-is possit." Post, § 210 and note. 3 Fitzherbert's Case^S Co. R. 80. 4 Dig. Lib. 1 7, tit. 1, 1. 6, § 3. Post, § 20. CH. II,] DELEGATION OF AGENCY. IS quad contra bonos mores est ; veluti, si Titius de furto, aut de damno faciendo, aut de injuria faciendd mandat tihi ; licet enim pcenam istius facti nomine prcestiteris, non tamen ullam hales adversus Titium actionem} § 12. But there are other exceptions of a diflPerent character, and. standing upon different principles. They arise from this, that the act to be done is of a personal nature, and incapable of being delegated ; or that it is a personal trust or confidence, and therefore by implication prohibited from being delegat'e'd. Examples of both sorts are to be found in the common law. Thus, a person cannot do homage or fealty by attorney ; for it is deemed inseparably annexed to the man doing it, as a per- sonal service.^ Sp, although, by the ancient common law, a lord might beat his villein for cause or without cause; yet he could not delegate his authority to another to beat his villein without cause.3 § 13. For a like reason, one, who has a bare power or authority from another to do an act, must execute it himself, and cannot delegate his authority to another; for this being a trust or confidence reposed in him personally, it cannot be as- signed to a stranger, whose ability and integrity might not be known to the principal, or who, if known, might not be selected by him for such a purpose.* Therefore, if a man has a power ' Inst. Lib. 3, tit. 27, § 7. — Mr. Livermore's remarks on this subject are worthy of the attention of the learned reader. 1 Liverm. on Agency, § 2, p. 14 to 23, (edit. 1818.) 2 Coombe's case, 9 Co. R. 76 a ; Com. Dig. Attorney, C. 3. 3 Coombe's case, 9 Co. R. 76 a; Com. Dig. Attorney, C. 3. — On the same ac- count, where an act is required by statute to be done by the party, if it can be fairly inferred from the nature of the act, that it was intended to be pei'Sonally done, it cannot be done by an attorney. Thus, for example, where a feme covert is authorized by the laws of a State to convey her right in any real estate by deed, duly acknowledged by her. upon a privy examination of a magistrate, it may be presumed, that she cannqt acknowledge the same by an attorney. * Bacon, Abr. Authority, D; Ersk. Inst. B. 3, tit. 3, § 34; 1 Liverm. on Agency, § 5, p. 54 to 66 (edit. 1818) ; Com. Dig. Attorney, C. 3; 2 Kent, Com. Lect. 41, (4th edit.) 633 ; Coombe's case, 9 Co. R. 75 b ; Blore v. Sutton, 3 AGENCY. ' 2 I4f AGENCY. [CH. ir, given to him by the owner to sell an estate, or to make leases for him, he cannot act by an attorney or agent ; for it is a per- sonal trust. So, if, by a will, an executor has a power given to him to sell property;^ or a person is vested with a power of appointment or distribution of property among certain per- sons, according to his discretion ; in each case the power must be executed by him personally, and cannot be delegated to another.^ So, a factor cannot ordinarily delegate his employ- ment, as such, to another, so as to raise a privity between such third person and his principal, or to confer on him, as to the principal, his own rights, duties, or obligations.^ The same rule applies to a broker ; for he cannot delegate his authority to another to sign a contract in behalf of hisi^principal, without the assent of the latter.* [So where the directors of a corpora- tion had power to execute a lease of certain premises, it was held they could not authorize a third person to execute a lease which should bind the corporation.® So, where by a statute, a corpora- tion was authorized to lay assessments on its members, it was considered that this power could not be delegated to the Meriv. R. 237, 246 ; Schmaling v. Thomlinson, 6 Taunt. R. 147 ; Solej ». Rath- bone, 2 M. & Selw. 298; Cockran v. Irlam, 2 M. & Selw. 301, 303, note; 1 Bell. Com. B. 3, Pt. 1, ch. 4, § 4, p. 388, (4th edit.) ; Id. p. 482, (.5th edit.) ; Emerson v. Providence Hat Manuf. Co. 12 Mass. R. 241, 242; Tippets r. Walker, 4 Mass. R, 597 ; Commercial Bank of Lake Erie v. Norton, 1 Hill, R. 501 ; Lynn v. Burgoyne, 13 B. Monroe, 400. 1 Com. Dig. Attorney, C. 3 ; Coombe's case, 9 Co. R. 75 ; 1 Roll. Abr. Author- ity, E. 1. 30 ; Bacon, Abr. Authority, D. 2 1 Roll Abr. Authority, C. 1. 15 ; Ingram v. Ingram, 2 Atk. 88 ; Att.-Gen. v. Berryman, qited 2 Ves. 643. 3 Catlin V. Bell, 4 Camp. R. 183; Soley v. Rathbone, 2 M. & Selw. 298; Cockran v. Irlam, 2 M. & Selw. 301, n ; Schmaling v. Thomlinson, 6 Taunt. R. 146; l*Bell, Comm. 388, § 412, (4th edit.) ; Id. p. 482, (5th edit.) See also Post, § 108, 110. 4 Henderson v. Barnwell, 1 Y. & Jerv. 387 ; 1 Bell, Com. 388, § 412, (4th edit.); Id. p. 482, (5th edit.); Post, § 109. 5 Gillis I). Bailey, 1 Foster, 149. See also Despatch Line v. Bellamy Man. Co. 12 N. H. R. 226; Stoughton v. Baker, 4 Mass. 522 ; Emerson v. Providence Hat Co. 12 Mass. 237; Brewster v. Hobart, 15 Pick. 302, Wilde, J. Blore u, Sutton, 3 Merivale, 237. CH. II.] DELEGATION OF AGENCY, 15 directors.^] The reason is plain ; for in each of these cases, there is an exclusive personal trust and confidence reposed in the particular party. And hence is derjved the maxim of the com- mon law; Delegata potesiMS non potest delegari? And the like rule prevailed, to some extent, in the civil law ; Procura- torem alium procuratorem facere non posse? It seems also to he the general rule of the Scottish law.* § 14. In general, therefore, when it is intended, that an agent shall have a power to delegate his authority, it should be given to him by express terms of substitution.* But there are cases, in which the authority may be implied ; as where it is indis- pensable by the laws, in order to accomplish the end ; or it is the ordinary custom of trade ; or it is understood by the par- ties to be the mode, in which the particular business would or might be done.® Thus, if a person should order his goods to be 1 Winsor, ex parte, 3 Story, K. 411. 2 2 Inst. 597; Branch's Maxims, 38; 2 Kent, Com. Lect. 41, p. 633, (4th edit.) ; Catlin v. Bell, 4 Camp. 183. 3 See Dig. Lib. 49, tit. 1, 1. 4, § 5 ; Lib. 14, tit. 1, 1. 1, § 5 ; Id. Lib. 17, tit. 1, 1.8, §3; Cujacii ' Opera, Tom. 10, p. 797, (edit. Neap. 1758); Heineco. ad Pand. P. 1, Lib. 3, tit. 3, § 419 to 433 ; Ersk. Inst. B. 3, tit. 3, § 34 ; 2 Kent, Com. Lect. 41, p. 633, (4th edit.) ; 1 Domat, B. 1, tit. 16, § 3, art. 3. This seems regularly true in the civil law, in cases of suits ante litem contestatam ; and per- haps there might be the like qualifications annexed to the rule in some other cases. Dig. Lib. 14, tit. 1, 1. 1, § 5 ; Dig. Lib. 17, tit. 1, 1. 8, § 3 ; Pothier, Pand. Lib. 14, tit. 1, n. 1, 2, 3 ; lb. Lib. 17, tit. 1, n. 23 ; 1 Domat, B. 1, tit. 16, § 3, art. 3. Erskine, in his Institutes, (B. 3, tit. 3, § 34,) says, that by the Roman law, a mandatary might have committed the execution of the mandate to any third person ; and for this he cites the Digest, Lib. 17, tit. 1, 1. 8, § 3. The pas- sage seems to prove, that the action, mandati actio, would lie against the second mandatary in cases where the agency was for the administration of private affairs. Did the rule as to substitution, apply to the case of an instifor, or com- mon clerk in a shop ? See the Digest, Lib. 14, 1. 1, § 5 ; 1 Domat, B. 1, tit. 16, § 3, art. 3. * 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 7, p. 129 ; Ersk. Inst. B. 3, tit. 3. §34. 5 See 1 Liverm. on Agency, 54-56, (edit. 1818) ; Commercial Bank of Lake Erie V. Norton, 1 Hill, R. 505. 6 Coles V. Trecothick, 9 Ves. 234, 251, 252; 1 Bell, Com. 387 to 391, § 412^ (4th edit.) ; Id. p. 482, (5th edit.) ; 3 Chitty on Com. and Manuf. 206 ; Shipley V. Kymer, 1 M. & Selw. 484; Cockran v. Irlam, 2|Jd. & Selw. 301, 303, note ;. 16 AGENCY. [C«- n. sold by'an agent at public auction ; and the sale could only be made by a licensed auctioneer, the authority to substitute him in the agency, so far as the4gale is concerned, would be implied.^ So where, by the custom of trade, a ship broker, or other agent, is usually employed to procure a freight or charter-pafty for ships, seeking a freight, the master of such a ship, who is authorized to let the ship on freight, will incidentally have the authority to employ a broker, or agent for the owner, for this purpose. And the same principle will apply to a factor, where he is, by the usage of trade, authorized to delegate to another the authority to substitute another person to -dispose of the property.^ [But the by-law of a corporation giving the direc- tors a general superintendence and control over the affairs of a corporation, and to sell their land, does not authorize them to delegate their power to another to lease their lands.^ In short, the true doctrine, which is to be deduced from the decisions, is, (and it is entirely coincident with the dictates of natural jus- tice,) that the authority is exclusively personal, unless, from the express language used, or from the fair presumptions, grow- ing out of the particular transaction, or of the usage of trade, a broader power was intended to be conferred on the agent.* § 15. But although it is regularly true in our law, (for it seems to have been otherwise in the civil law,j that an agent cannot, without such express or implied permission, delegate his authority, so far as the principal is concerned ; yet the sub- Laussatt v. Lippincott, 6 Serg. & K. 386 ; Johnson v. Cunningham, 1 Alaljjima K. 249, N. S. 1 See Laussatt v. Lippincott, 6 Serg. & E. 386. 2 See Cookran v. Irlam, 2 M. & Selw. 301, note, 303 ; Goswell v. Dunkley, 1 Str. 680, 681 ; Bromley v. Coxwell, 2 Bo3. & Pull. 438 ; Gray v. Murray, 3 John. Ch. R. 167, 178; Laussatt v. Lippincott, 6 Serg. & K. 386; Post, § 110. 3 Gillis V. Bailey, 1 Foster, 165. 4 1 Bell, Com. 388, (4th edit.) ; Id. p. 482, (5th edit.) ; Ersk. Inst. B. 3, tit. 3, § 34 ; 2 Kent, Com. Lect. 41, p. 633, (4th edit.) ; Mark v. Bowers, 16 Martin, K. 95; 1 Domat, B. 1, tit. 16, § 3, art. 2, 3; Cockran v. Irlam, 2 M. & Selw. 301, 303, note; Catlin v. Bell, 4 Camp. R. 183, 184; Commercial Bank of Lake Erie v. Norton, 1 Hill,.R^505. CH. II.] DELEGATION OF AGENCY. 17 stituted ageii1;,may still be responsible to the original agent for his acts under the substitirtion, inasmuch as the latter is, in some cases, responsible to the principal for the acts of the sub- agent.^ And this is upon the same enlarged principle, which governs in the civil law; that the act is not to be treated as void between the agent and his substitute, unless, indeed, the principal should interfere and prohibit the substitute from act- ing. Si quis mandaverit alicui gerenda negotia ejus, qui ipse sibi mandaverat, hahehit mandati actionem, quia et ipse tenetur ; tenetur autem quia agere potest.^ § 16. We have thus seen, that, for the most part, where a party is of ability to do an act himself, he may do it by an attorney or agent. But there are cases, in which the act must be done by an agent or attorney, and cannot be done by the principal.^ Thus, for example, an aggregate corporation, being a mere artificial being, cannot act, except through the instru- mentality of an agent or attorney, either specially pointed out by the act of incorporation, or specially authorized by the cor- poration to act in its behalf.* And, therefore, such a corpora- tion cannot levy a fine, or acknowledge a deed, or appear in a suit, except by an attorney or agent.® And the like rule existed in the civil law, for it was one of the privileges of a corpora- tion (^ZTniversitas) by the civil law, to act, by means of an agent or attorney, who was known by the name of actor, or procura- tor, or, more familiarly, by the name of syndic. Quibus autem permissum est corpus habere collegii, societatis, Sgc, et actorem, sive syndicum, per quern, tamquam in republicd, quod com- muniter agi fierique oporteat, agatur, fiat.^ iPost, § 201, 217, 321, 322. 2 Dig. Lib. 17, tit. 1, 1. 8, § 3 ; Ersk. Inst. B. 3, tit. 3, § 34 ; Pothier, Pand. Lib. 17, tit. 1, n. 23 ; ante, § 13, and note. See als^tlurray v. Toland, 3 John. Ch. R. 573; Post, § 217. 3 Post, § 201. < Co. Litt. 66 b. 5 Com. Dig. Attorney, C. 2. 6 Dig. Lib. 4, tit. 4, 1. 1, § 1 ; Id. 1. 6, § 1 ; Pothier, Pand. Lib. 3, tit. 4, n. 8, 9 ; 2 * 18 AGENCY. [CH. II. § 17. Let us, in the next place, proceed to the consideration of the nature and extent of the authority, which may be thus delegated to an agent. It is commonly divided into two sorts; ( 1 .) a special agency ;(2.)a general agency. A special agency properly exists, when there is a delegation of authority to do a single act ; a general agency properly exists where there is a delegation to do all acts connected with a particular trade, busi- ness, or employment,^ Thus, a person, who is authorized by his principal to execute a particular deed, or to sign a particular contract, or to purchase a particular parcel of merchandise, is a special agent. But a person, who is authorized by his principal to execute all deeds, sign all contracts, or purchase all goods required in a particular trade, business, or employment, is a general agent in that trade, business, or employment. , § 18. A person is sometimes, (although perhaps not with entire accuracy,) called a general agent, who is not appointed with powers so general, as those above mentioned ; but who has a general authority in regard to a particular object or thing; as, for example, to buy and sell a particular parcel of goods, or to negotiate a particular note or bill ; his agency not being limited in the buying or selling such goods, or negotiating such note or bill, to any particular mode of doing it.^ So an agent, who is appointed to do a particular thing in a prescribed mode, is often called a special agent, as contradistinguished from a general agent.^ Vicat. Vocabul. Syndicus ; Heinecc. ad Pand. P. l,Lib. 3, tit. 3, §419 ; Id. tit. 4, § 439 ; Pothier on Oblig. n. 49. 1 3 Chitty on Comm. & Manuf. 198, 199 ; Paley on Agency, Lloyd, (8d edit.), 2; Id. 199, 290 ; 2 Kent, Com. Lect. 41, p. 620, 621, (4th edit.) ; Par]^ u. Kett, 1 Salk. K. 96, 97 ; Whitehead v. Tuckett, 15 East, 408 ; Anderson t7. cfon- ley, 21 Wend. K. 279 ; ^mlinson v. Collet, 3 Black£ Ind. E. 436 ; Walker u. Skipwith, Meigs's Tenn,^. 502 ; Savage v. Rix, 9 N. H. R. 263 ; Post, § 126 to 134, especially notes to § 127 and 133. 2 Paley on Agency, by Lloyd, (3d edit.), 2 ; Id. 199 ; Whitehead v. Tuckett, 15 East, R. 408 ; 1 Domat, B. 1, tit. 16, § 3, art. 10 ; Anderson v: Coonley, 21 Wend. R. 279. 3 Andrews v. Kneeland, 6 Cowen, R. 354. CH. II.] GENERAL AND SPECIAL. " 19 § 19. On the other hand, (although this is not the ordinary- commercial sense,) a person is sometimes said to be a special agent, whose authority, although it extends to do acts generally in a particular business or employment, is yet qualified and restrained by limitations, conditions, and instructions of a special nature. In such a case the agent is deemed, as to persons dealing with him in ignorance of such special limitations, con* ditions, and instructions, to be a general agent ; although, as between himself and his principal, he may be deemed a special agent.^ Iixshort, the true distinction, (as generally recognized,) between a general and a special agent, (or, as he is sometimes called, a particular agent,) is this ; a general agency does not import an unqualified authority, but that which is derived from a rnultitude of instances, or in the general course of an em- ployment or business ; whereas a special agency is confined to an individual transaction.^ § 20. The same distinction was well known in the civil law. Thus, it is said. Procurator autcm vel omnium rerum, vel unius rei esse potest.^ And although it seems to have been at one time doubted, whether a procuration was properly created by the mere delegation of authority to do a single act, yet that doubt was deemed to be unfounded ; Sed verius est, eum quo- que procuratorem esse, qui ad unam rem datus sitA And a 1 See Fenn v. Harrison, 3 T. Kep. 757, 760, 762; Whitehead v. Tuokett, 15 East, R. 400, 408 ; 3 Chitty on Comm. & Manu£ 198, 199 ; 2 Kent, Com. Lect. 41, p. 620, 621, (4th |fiit.) ; Anderson v. Coonley, 21 Wend. 279; Bryant v. Moore, 26 Maine K. 84; Johnson v. Jones, 4 Barbour, Sup. Ct. R. (N. Y.) 369. 2 Whitehead v. Tuckett, 15 East, E. 400, 408 ; Paley on Agency, by Lloyd (3d edit.), 199 and note ; Id. 200, 201 ; Andrews v. Kneeland, 6 Cowen, R. 354. 3 Dig. Lib. 3, tit. 3, 1. 1, § 1 ; 1 Domat, B. 1, tit. 15, § 1, art. 7 ; Pothier, Pand. Lib. 3, tit. 3, n. 3 to 8. ^Dig. Lib. 3, tit. 3, 1. 7, § 1 ; 1 Domat, B. 1, tit. 15, § 1, art. 7 ; 1 Stair Inst. by Brodie, B. 1, tit. 12, § 11. — Heineccius says : Et quia non ambigitur, vel omnium negotiorum bonorumque administrationem, vel unius rei, mandare posse ; procuratores etiam in universales et singulares dividuntur. Heinecc. ad Pand. P. 1, Lib. 3, tit. 3, § 417. By universales in this passage, Heineccius means, what we are accustomed to call, general agents ; and by singulares, special agents. 20 AGENCY. [CH. II. procuration might either be limited or unhmited ; conditional or absolute ; restrictive or unqualified ; provided it was not un- lawful; Item, Mandatum et in diem differi, et sub conditione contrahi potest. Rei turpis nullum mandatum est} § 21. At present it is not necessary to say more upon the subject of general agency and special agency, as contradistin- .guished from each other ; inasmuch as it will hereafter occur in other connections.^ But the distinction between them, as to the rights and responsibilities, the duties and the obligations, both of principals and agents, is very important to be carefully observed, as the doctrines applicable to the onf sometimes totally fail in regard to the other .^ It may, perhaps, be well to add, (what, indeed, has been already intimated,) that general agents are to be carefully distinguished from universal agents ; that is, from agents, who may be appointed to do all the acts, which the principal can personally do, and which he may law- fully delegate the power to another to do. Such an universal agency may potentially exist ; but it must be of the very rarest occurrence. And, indeed, it is difficult to conceive of the existence of such an agency practically, inasmuch as it would be to make such an agent the complete master, not merely Dux facti, but Dominus rerum, the complete disposer of all the rights and property of the principal. It is very certain, that the law will not from any general expressions, however broad, infer the existence of any such unusual agency; but it will rather construe them as restrained to the principal business of the party, in respect to which, it is presumed, his intention to delegate the authority was principally directed.* Thus, for example, if a merchant, about to go abroad for temporary pur- 1 Dig. Lib. 17, tit. 1, 1. 1, § 3, 1. 6, § 3,. Lib. 3, tit. 3, 1. 1 ; Id. PotWer, Pand. Lib. 17, tit. 3, n. 3, 19, 20. Note, § 11. 2 Post, § 126 to 134. 3 See Post, § 126 to 134. * See 3 Chitty on Comm. & Manuf. 198-200; Paley on Agency, by Lloyd, 192 to 198; Post, § 62,to 68. CH. II.] GENERAL AND SPECIAL. 21 poses, should delegate to an agent his full and" entire authority to sell any of his personal property, or to buy any property for him, or on his account, or to make any contracts, and also to do any other acts whatsoever, which he could, if personally present; this general language would he construed to apply only to buying or selling, connected with his ordinary business as a merchant; and would not, at least without some more specific designation, be construed to apply to a sale of his house- hold furniture, or his library, or the common utensils, provisions, and other necessaries used in his family. Much less would it be construed to authorize any contracts to be made, which would be of an extraordinary or personal character, such as a contract of marriage, or a marriage settlement, or a sale of such things, as would break up and destroy his business as a merchant in his particular trade.^ § 22, And in relation to general agency, one man may be a general agent for his principal in one business, and another m^y be his general agent in another business; and in such case each agent will be limited in his authority to the particular business within the scope of his peculiar agency. Thus, for example, if a man should be at once a banker and a mer- chant, carrying on each business distinctly, with separate clerks and agents for each branch, an agent in the one would not be deemed to possess any authority to act in the other ; although each would, or might, in a legal sense, be deemed a general agent. 1 See 3 Chitty on Comm. & Manuf. 199, 200 ; Kilgour v. Finlyson, 1 H. Bl. 155 ; Havard v. Baillie, 2 H. Bl. 618 ; Hay v. GoMsmidt, 1 Taunt. R. 349 ; At- wood V. Munnings, 7 B. & Cresw. 278 ; Cochran v. Newton, 5 Denio, R. 49. See, -when an agent has authority to borrow money or not, Hawtwayne v. Bourne, 7 Mees. & Wels. 595, 599. AGENCY, . [CH. III. CHAPTER III. DIFFERENT KINDS OF AGENTS. § 2S. In the next place, as to the different kinds or classes of Agents. It will be found very difficult to enumerate them all in detail ; but it may not be without use to state some of those, which have acquired a distinctive appellation ; as it may serve to give us a more exact view of the nature of the rights, the obligations, and the duties of each. For the want of a due discrimination in this respect, very erroneous inferences are frequently deduced from the reported decisions; which de- cisions, however correct with reference to the class of agents embraced therein, will often be found to mislead, unless taken with the implied and tacit qualifications, applicable to that pecu- liar class of agency. 8 24. First. Attorneys. This class is divisible into two kinds, differing very widely in their rights, duties, obligations, and responsibilities; (1.) Attorneys in law; (2.) Attorneys in fact.^ The former class includes those persons who are ordinarily intrusted with the management of suits and contro- versies in Courts of Law and other judicial tribunals ; answer- ing to the Procuratores ad litem of the Civil Law in many particulars, although not perhaps in all respects clothed with as extensive an authority.^ Among these are Attorneys in Courts 1 Hcinecc. ad Pand. P. 1, Lib. 8, tit. 3, § 416. 23 Black. Comm. 25 ; Co. Litt. 51, 52 a. — In the Civil Law, no person could appoint a Procurator ad Litem, exce'pt lie was the Dominus Litis. The plaintiff himself (Actor) was, before the contestation of the suit, (ante litem contestatam,) the sole Dominus Litis. But his Procurator, after the contestation of the suit, became Dominus Litis ; .and then, but not before, he could delegate his authority to another Procurator. Quod quis sibi debitum exigere tibi mandavit ante litis CH. III.] DIFFERENT KINDS OF. 23 ©f Common Law, Solicitors in Courts of Equity, and Proctors in Courts of Admiralty and in the Ecclesiastical Courts.'^ These are wholly distinguishable from advocates or counsel in the Roman and English Courts, although not generally in the American Courts. In the Roman Courts, the office of an ad- vocale was, and in the English Courts it is, purely honorary and gratuitous ; that is to say, he is not entitled to charge or recover against his client any compensation for his services ; as an attorney, solicitor, or proctor may. But whatever he re- ceives for his services, is deemed to be an honorary donation, — Quiddam honorarium? Indeed, the Roman law, at least under the Emperors, affected to treat it as a degradation oPthe order to serve for hire, or in any other manner than gratuitously and for reputation. Apud TIrlem auiem Romanam etiam honoratis, qui hoc officium putaverint eligendum, eo usque liceat orare, quibus maluerint ; videlicet, ut non ad turpe compendium stipemque deformem hcec arripiatur occasio ; sed laudis per cam augmenta qucerantur. Nam si lucro pecunidque capiantur, veluti aljecti aique degeneres inter vilissimos numerahuntur.^ The theory of the English law was, perhaps, originally the same ; but it has ceased to be known, except as a mere tljeory. As advocates are not in England entitled to recover their fees in a suit at law, they receive them in advance of their services, not indeed as a mere compensation pro opere et labore ; but as a liberal emolument fquiddam honorarium) for the perform- ance of the highest intellectual and moral duties for their clients in courts of justice ; * a trust, which, to the honor of the Bar, it may be said, they discharge with the most fearless and contestationem, tu alii petendum mandaro non potes. Cod. Lib. 2, tit. 13, 1. 8 ; Heineee. ad Pand. P. 1, Lib. 3, tit. 3, § 421-423, 431 ; Potbier Pand. Lib. 3, tit. 3, n. 21. 1 3 Bl. Comm. 25. 2 3 Bl. Comm. 27-29 ; Comm. Dig. Atlorney, B. 18. 3 Cod. Lib. 2, tit. 6, 1. 6, § 5 ; Pothier, Pand. Lib. 3, tit. 1, n. 17. * 3 Bl. Comm. 28 ; 2 Domat, Public Law, B. 2, tit. 6, § 2, art. 5. 24 AGENCY. [CH. III. exalted ability and independence.^ Nor, indeed, can one easily forget the dignified admonition of the Roman law on the true duties of an ' advocate, an admonition which should be present to the thoughts of every person practising in any court of justice. Ante omnia auiem universi Advocati ita prwheant patrocinia jurgantihus, ut non ultra, quam litium poscit utij^tas in licentiam convidandi, et male dicendi temeritatem prorunv- pant. Agant, quod causa desiderat ; temperent se ab injuria. Nemo ex industrid protrahat jurgium? But, as it is not our design in the present work to consider the rights, powers, du- ties, and obligations of persons acting as attorneys, or as ad- vocates, irf courts of justice, this subject will not be further pursued.^ i I cannot but quote here, with great pleasure, the remarks, made upon a very recent occasion by Lord Langdale in Hutchinson v. Stephens, (1 Keen, R. 668.) "With respect to the task, (said he,) which I may be considered to have im- posed upon counsel, I wish to observe, that it arises from the confidence, which long experience induces me to repose in them, and from a sense which I enter- tain of the truly honorable and important services, which they constantly per- form as ministers of justice, acting in aid of the judge, before whom they practice. No counsel supposes himself to be the mere advocate or agent of his client, tp gain a victory, if he can, on a particular occasion. The zeal and the arguments of every counsel, knowing what is due to himself and his honorable profession, are qualified, not only by considerations affecting his own character as a man of honor, experience, and learning, but also by considerations affecting the general interests of justice. It is to these considerations that I apply myself; and I am far from thinking that any counsel, who attends here, will knowingly violate, or silently permit to be violated, any established rule of the Court, to promote the purpose of any client, or refuse to afford me the assistance, which I ask in these cases." 2 Cod. Lib. 2, tit. 6, 1. 6, § 1, 4 ; Pothier, Pand. Lib. 3, tit. 1, n. 20 ; 2 Domat, B. 2,tit. 6, §2, art. 1 to5. 3 See Comm. Dig. Attorney^ B. 1-20. Domat has well remarked, that all these Rules of the Duties of Advocates may be reduced to two maxims : one, never to defend a cause which is unjust ; and the other, not to defend just causes but by the way of justice and truth. And these two maxims are so essential to the duties of advocates, .and so indispensably necessary, that, although they seem to be rather maxims of Religion, they are, however, in proper terms, expressed in the Laws of the Code and the Digest. 2 Domat, by Strahan, B. 2, tit. 6, § 2, sub. fin. p. 620, (edit. 1822.) Patroni autem causarum, &c., juramentum prses- tent, quod omni quidem virtute sua omnique ope, quod verum et justum existima- CH. III.] DIFFERENT KINDS OF. 25 § 25, Secondly. Attorneys in fact. These are so called in contradistinction to Attorneys in law, or Procuratores ad litem, and may include all other agents employed in any business, or to do any act or acts in pais for another.-^ But it is sometimes used to designate persons, who act under a special agency, or verint, clientibus suis inferre procurabunt ; nihil studii rellnquentes, quod sibi possibile est. Non autem credita sibi causa oognita, quod improba sit, vel penitus desperata, et ex mendacibus allegationibus composita, ipsi soientes prudentesque mala consoientia liti patrocinabuntur ; sed et si certamine procedente aliquid tale sit cognitum fuerit, a caus^ recedent, ab hujusmodi communione sese penitus separantes. Such is the oath and such the doctrine prescribed to lawyers in the days of Justinian. Cod. Lib. 3, tit. 1, 1. 14, § 1. How well worthy is the doc- trine for the consideration of Christian lawyers in our day. [The responsibility of Attorneys is discussed in an interesting manner by Lord Campbell, in a case before the House of Lords. " In an action such as this," he says, "by the client against thei professional adviser, to recover damages arising from the misconduct of the professional adviser, I apprehend there is no distinction whatever between the law of Scotland and the law of England. The law must be the same in all countries where law has been considered as a science. The professionetl adviser has never been supposed to guarantee the soundness of his advice. I am sure I should have been sorry, when I had the honor to practise at the Bar of Eng- land, if barristers had been liable to such a responsibility. Though I was tolerably cautious in giving opinions, I have no doubt that I have repeatedly given erroneous opinions, and I think it was Mr. Justice Heath who said that it was a very difficult thing for a gentleman at the Bar to be called upon to give his opinion, because it was calling on him to conjecture what twelve other per- sons would say upon some points that had never before been determined. Well, then, this may happen in all grades of the profession of the law. Against the barrister in England, and the advocate in Scotland, luckily, no action can be maintained. But against the attorney, the professional adviser, or the procura- tor, an action may be maintained. But it is only if he has been guilty of gross negligence, because it would be monstrous to say that he is responsible for even falling into what must be considered a mistake. You can only expect from him that he will be honest and diligent ; and if there is no fault to be found either with his integrity or diligence, that is all for which he is answerable. It would be utterly impossible that you could ever have a class of men who would give a guarantee binding themselves, in giving legal advice and conducting suits at law, to be alwayj in the right." Purves v. LandeU, 12 Clark & Finnelly, R. 91. See also, Baikie v. Chandless, 3 Camp. K. 17; Pitt v. Holden, 4 Burr. R. 2060.] 1 An act, in pais, is literally an act in the country ; but the phrase is tech- nically used to express any act done, which is not a matter of record or done in a court of record. 2 Black. Comm. 294. AGENCY. 3 25 AGENCY. [^'H. in. a special letter of attorney, so that they are appointed in factum, for the deed, or act, required to be done.^ § 26, The most common classes of commercial Agents are Auctioneers, Brokers, Factors, Consignees, Supercargoes, Ships-Husbands, Masters of Ships, and Partners. Of each of these a few words will be said in this place.^ § 27. First. Auctioneers.^ An auctioneer is a person, who is authorized to sell goods or merchandise at public auction «5r sale for a recompense, or (as it is commonly called) a com- mission. In two respects he differs from a mere broker. A broker may (as we shall presently see) buy, as well as sell; * whereas an auctioneer can only sell. So, a broker cannot sell personally at public auction ; for that is the appropriate function of an auctioneer ; but he may sell at private sale, which power an auctioneer (as such) does not possess,^ An auctioneer is primarily deemed to be the agent of the seller of the goods ; but for certain purposes he is also deemed to be the agent of both parties.^ Thus, by knocking down the goods sold to the person who is the highest bidder, and inserting his name in his book or memorandum, as such, he is considered as the agent of both parties; and the memorandum so rpade by him will bind both parties, as being a memorandum sufficiently signed , <■_ 1 See Bacon's Abridg. Attorney. 2 Mr. Bell, in Ms Commentaries on the Laws of Scotland, has remarked, that " In mercantile agency there is a vast variety of forms, in which -the authority of a principal is daily delegated to others. Besides the occasional authority, by procuratory, or procuration, to accept or draw bills of Exchange, the charge given to a clerk to manage a store or shop, which is called Institorial power, the extensive trust given to a shipmaster, called Exeroitatorial power, the powers of factors, agents, and brokers, are all included within the contract." 1 Bell, Comm. 385, (4th edit.) ; Id. p. 476, (5th edit.) 3 As to powers of Auctioneers, see post, § 107, 108. 4 Post, § 28. 5 Wilkes V. Ellis, 2 H. Bl. 555 ; Daniel v. Adams, Ambl. 495. iCuctioneers were sometimes called Brokers in our old law. Spelman, in his Glossary, Auctionarii, defines them thus : Qui publicis subhastationibus prsesunt, Propolse, et quos, Angli, Brokers, dicimus. See also Jacob's Law Diet., Brokers. 6 See Johnson v. Roberts, SO Eng. Law and Eq. K. 234. CH. III.] DIFFERENT KINDS OF. 27 by an agent of both parties within the statute of frauds. Be- fore the knocking down of the goods, he is, indeed, exclusively the agent of the seller; but after the knocking down, he becomes also ' the agent of the purchaser, and the latter is pre- sumed to give him authority to write down his name as pur- chaser.-^ An auctioneer has also a special property in the goods sold by him, and a lien on the same, and the proceeds thereof, for his commissions ; and he may sue the purchaser at the sale in his own name,^ as well as in the name of his principal,^ An auctioneer is also deemed personally a vendor to the purchaser at the sale, unless at the time of the sale he discloses the name of his principal, and the transaction is treated as being exclusively between the principal and the vendee.* An auctioneer can sell only for ready money, unless there be some usage of trade to sell on credit.^ §28. Secondly. Brokers. The true definition of a broker . seems to bej that he is an agent, employed to make bargains and contracts between other persons, in matters of trade, com- merce, or navigation, for a compensation, commonly called brokerage.® Or, to use the brief but expressive language of » 1 Post, § 108. Simon v. Motives, 3 Burr. E. 1921 ; Emmerson v. Heeljs, Sf Taunt. K. 38, 48 ; Kemeys v. Proctor, 1 Jac. & Walk. 350 ; 3 Ves. & B. 57, 58 ; White V. Proctor, 4 Taunt. R. 209, 211 ; M'Comb v. Wright, 4 John. Ch. K. 659 ; Hinde v. Whitehouse, 7 East, E. 558, 569 ; Bird v. Boulter, 4 B. & Adolph. 443 ; Buckmaster v. Harrop, 13 Ves. 472, 473 ; Henderson v. Barnwall, 1 T. & Jerv. 389 ; Fairbrother v. Simmons, 5 Barn. & Aid. 333. In Williams V. Millington, (1 H. Bl. 85,) Mr. Justice Heath said, " Though he (an auctioneer) is an agent to some purposes, he is not so to all. He is an agent for each party in different things ; but not in the same thing. When he prescribes, the rules of bidding, and the terms of the sale, he is the agent for the seller. But when he puts down the name of the buyer, he is agent for him only." 2 Eobinson v. Eutter, 30 Eng. Law and Eq. E. 401. 3 Williams v. Millington, 1 H. Bl. 81, 84, 85 ; 3 Chitty on Comm. and Manuf. 310 ; Girard v. Taggart, 5 Serg. & Eawle, 19, 27. 4 Mills V. Hunt, 20 Wend. 431 ; Franklin v. Lamond, 4 Com. B. E. 637 ; Jones V. Littledale, 6 Ad. & Ell. 486 ; Post, § 160 a, 266, 269, 270. 5 Post, § 108, 2()9. 6 Com. Dig. Merchant, C. Terms de la Ley, Broher. Malyne, Lex. Mercat. 28 AGENCY. [CH, III. an eminent Judge, " A broker is one, who makes a bargain for another, and receives a commission for so doing." ^ Prop- erly speaking, a broker is a mere negotiator between the other parties, and he never acts in his own name, but in the names of those who employ him.^ Where he is employed to buy or to sell goods, he is not intrusted vdth the custody or possession of them, and is not authorized to buy or to sell them in his own name.^ He is strictly, therefore, a middle man, or inter- mediate negotiator between the parties ; and for some purposes (as for the purpose of signing a contract vidthin the statute of frauds) he is treated as the agent of both parties.'' Hence, 143 ; 1 BeU, Comm. 347, 385, 386, (4th edit.) ; Id. p. 477, 478, 481, 483, (5th edit.) ; Wittes v. Ellis, 2 H. Bl. 555 ; Jannen v. Green, 4 Burr. 2103 ; 2 Kent, Comm. Lect. 41, p. 622 ; note (of,) (4th edit.) Cowell, in his Interpreter, gives the etymology of the word from the French word Brooeur, Tritor, a person who breaks into small pieces, as if to say, he is a dealer in small wares. 1 In Pott V. Turner, 6 Bing. R. 702, 706, Lord Ch. Justice Tindal said : " A broker is one who makes a bargain for another, and receives a commission for 60 doing ; as for instance a stock broker. But in common parlance one, who receives payment of freights for the ship-owner and negotiates for cargoes, is a broker." a Baring «. Corrie, 2 B. & Aid. 137, 143, 148, #49. See also Kemble v. Atkins, 7 Taunt. R. 260 ; 2 Kent, Comm. Lect. 41, p. 622, note d, (4th edit) ; 1 Bell, Comm. p. 346, 347, § 379, (4th edit.) ; Id. p. 385, § 409 ; Id. 477, 478, 481, 483, (5th edit.) Domat has given a very full and exact description accord- ing to the sense of our law. " The engagement (says he) of a broker is like to that of a proxy, a factor, and other agent ; but with this difference, that, the broker being employed by persons who have opposite interests to manage, he is, as it were, agent both for the one and the other, to negotiate the commerce and affair, in which he concerns himself. Thus, his engagement is twofold, and con- sists in being faithful to all the parties, in the execution of what every one of them intrusts him with. And his power is not to treat, but to explain the in- tentions of both parties, and to negotiate in such a manner, as to put those, who employ him, in a condition to treat together personally." 1 Domat, B. 1, tit. 17, § 1, art. 1. , , 3 Baring v. Corrie, 2 B. & Aid. 137, 143, 148. As to his powers and duties, see post, § 107, 108. i Rucker v. Cammeyer, 1 Esp. R. 106; Hinde v. Whitehouse, 7 East, R. 658, 569; Kemble v. Atkins, 7 Taunt. 260; Henderson v. Barnwall, 1 Y. & Jerv, 387 ; Beal v. McKiernan, 6 Louis. R. 407 ; post, § 107, 108 ; Hinckley v. Aiev! 27 Maine R. 362. ■/ j> CH. III.] DIFFERENT KINDS OF. 29 when he is employed to buy and sell goods, he is accustomed to give to the buyer a note of the sale, commonly called a sold note, and to the seller a like note, commonly called a bought note, in his own name, as agent of each, and thereby they are respectively bound, if he has not exceeded his authority.-' Hence also it is, that, if a broker sells the goods of his princi- pal in his own name^ (without some special authority so to do,) inasmuch as he exceeds his proper authority, the principal will have the same rights and remedies against the purchaser, as if his name had been disclosed by the broker.® § 29, A broker, being personally confided in, cannot ordi- narily delegate his authority to a sub-agent, or clerk under him, or to any other person. His authority, therefore, to delegate it, if it exists at all, must arise from an express or an implied assent of the principal thereto.^ § 30. Brokers were a class of persons well known in the civil law under the description of Proxenetce. Their functions. 1 Ibid.; Hicks v. Hankin, 4 Esp. E. 114 ; Heyman v. Neale, 2 Camp. K. 337 ; Dickinson v. Lilwal, 1 Stark. E. 128; Gale v. Wells, 1 Carr. & Payne, 388; Gumming v. Eoebuck, 1 Holt's N. P. E. 172; Grant v. Fletcher, 5 Barn. & Cresw. 436 ; Thornton v. Kempster, 5 Taunt. 786 ; 1 Bell, Comm. 347, (4th edit.) ; Id. p. 477, 478, (5th edit.) ; Goom v. Aflalo, 6 B. & Cress. 117. The name of both the buyer and the seller ought to appear upon the sale note given to the parties, though in practice the name of one party is sometimes omitted in the note given to him. Champion v. Plummer, 4 Bos. & Pul. 252 ; Picks v. Hankin, 4 Esp. E. 114, 115. I have given in the text the ordinary designation of the sale notes, as bought and sold notes. There is, hovrever, some confusion in the books in the use of the terms, probably arising from the words of the in- strument itself. Thus, in Baring v. Corrie, (2 B. & Aid. 144,) Lord Ch. Justice Abbott, speaking of the buyers in that case, says, " that they received a sale note, and were not required to sign a bought note." In the same case, Mr. Justice Bayley says, " That the brokers delivered to the plaintiffs (the sellers) a sold note, exactly in the proper form, supposing them to have sold in their character as brokers ; and they delivered to the defendants (the buyers) a bought note, exactly suited to the case of their havitig sold as brokers, without disclosing the name of the seller." See the distinction in Freeman v. Loder, 11 Adolph. & Ellis, 589 ; Higgins v. Senior, 8 Mees. & Welsh. 834, 835. 8 Baring v. Corrie, 2 B. & Aid. 137, 143-146. 3 Henderson «..Barnwall, 1 Y. & Jerv. 387 ; Cochran v. Irlam, 2 M. & S. 301, note ; post, § 108, 80 AGENCY. [CH. III. among the Romans, were not unlike those which are per- formed by them among all modern commercial nations ; for in all these nations, they are a known, if not a necessary, order of agents.^ /Suni (says the Digest) emm hujusmodi hominum, ut tam in magna civitate, officince. Est enim Proxenetarum modus, qui emptionibus, venditionihus, commerciis, eontracUhus Ileitis utiles, non adeo improhalili more se exhibent? They were entitled to charge a brokerage Compensation ; and were not treated as ordinarily incurring any personal liability by their intervention, unless there was some fraud on their part. Proxenetica jure licito petuntur. Si proxeneta intervenit faci- endi nominis, ut multi solent, videamus, an possit quasi man- dator teneri ? Et non puto teneri. Quia hie monstrat magis nomen, quam mandat, tametsi laudet nomen? § 81. It has been already suggested, that a broker is for some purposes treated as the agent of both parties. But pri- marily he is deemed merely the agent of the party by whom he is originally employed ; and he becomes the agent of the other party, only when the bargain or contract is definitively settled, as to its terms, between the principals ; * for, as a mid- dle man, he is not intrusted to fix the terms, but merely to interpret (as it is sometimes phrased) between the principals,^ It would be a fraud in a broker to act for both parties, con- cealing his agency for one from the other, in a case where he was intrusted by both with a discretion, as to buying and sell- ing, and of course where his judgment was relied on. Thus, if A should employ a broker to sell goods for him for the highest price he could get, and his judgment should be con- 1 See 1 Domat, B. 1, tit. 17, Introd. and § 1, art. 1 ; Goom v. Aflalo, 6 Barn. & Cresw. 117 ; Henderson v. Barnwall, 1 Y. & Jerv. 387, 393, 394 ; Beawes, Lex. Mere. Brokers, Vol. 1, p. 464, (6th edit.) 2 Dig. Lib. 50, tit. 14, 1. 3 ; 1 Domat, B. 1, tit. 17, § 1, art. 1. 3 Dig. Lib. 60, tit. 14, 1. 1, 2 ; 1 Domat, B. 1, tit. 17, § 1, art. 2. .^Kirmits V. Surry; Paley on Agency, by Lloyd, 171, note (^p) ; Henderson v\ Barmvall, 1 Y. & J. 387, 393, 399 ; Hinckley v. Arey, 27 Maine K. 362. 5 Dig. Lib. 50, tit. 14, 1. 1, 2 ; 1 Domat, B. 1, tit. 1 7, § 1, art. 1. CH. III.] DIFFERENT KINDS OF. 31 fided in ; and B should at the same time employ the same broker to purchase the like goods at the lowest price, for which they could be obtained ; it is plain, that, if this mutual agency were concealed, it might operate as a complete surprise upon the confidence of both parties, and would thus be a fraud upon them. Indeed, h would be utterly incompatible with the duties of the broker to act for both under such circumstances ; since, for all real purposes, he would be both buyer and seller ; and the law will not tolerate any man in becoming both buyer and seller, where the interests of third persons are concerned.^ § 82. There are various sorts of brokers now employed in commercial affairs, whose transactions form or may form, a distinct ,and independent business. Thus, for example, there are exchange and money brokers, stock brokers, ship brokers, merchandise brokers, and insurance brokers, who are respec- tively employed in buying and selling bills of exchange, or promissory notes, or goods, or stocks, or ships and cargoes ; or in procuring insurance and settling Iqsses, or in procuring freights or charter-parties.^ § 33 a. The character of a broker is also sometimes com- bined in the same person with that of a factor.^ In such cases we should carefully distinguish between his acts in the one character and in the other ; as the same rules do not always precisely apply to each. There is nothing in our law to prevent a broker from becoming also a factor in the same transaction, if he chooses to undertake the mixed character. It is not com- monly the duty of* a broker, unless there are words importing that he is to perform such a duty, to see to the delivery of the goods on the payment of the price. But it may be the duty 1 See Wright v. Dannah, 2 Camp. K. 203 ; Fairbrother v. Simmons, 5 B. & Aid. 333 ; Paley on Agency, by Lloyd, (3d edit.) 10. 2 See Beawes, Lex Merc. Vol. 1, p. 465-467 (6th edit.) ; 1 Bell, Comm. 385, 386, (4th edit.) ; Id. p. 477, 478, 481, 483, (5th edit.) ; 1 Liverm. on Agency, 60 to 77, (edit. 1818) ; Malyne, Lex Merc. 85, 91. * 3 1 Bell, Comm. B. 3, P. 1, ch. 4, art. 409, p. 386, (4th edit.) ; Id. p. 477, 47^, AGENCY. [CH. III. has a special property in them, and a lien on them.^ A broker, on the contrary, usually has no such possession,^management,. control, or disposal of the goods, and consequently has no such special property or lien.^ § 34* «. A factor has not, any more than a broker, a power to delegate his authority to another person, unless it is conferred by the usages of trade, or by the assent of his principal, ex- press or implied. And this also was a rule adopted to some extent, in the civil law, in relation to some classes of agents, such as clerks in warehouses and shops flnstitoresj ; for although the master of a ship was permitted, for the benefit of trade, to substitute another person as master, the same rule did not apply to mere institorial agents.® Quippe res patitur, ut iPost, § 111, 112, 374; Holbrook v. Wight, 24 Wend. R. 169; Bryce v. Brooks, 26 Wend. E. 367; Post, § 384; Jordan v. James, 5 Hamm. Ohio K. 99 ; Marfield v. Douglas, 1 Sandford, Superior Ct. R. 360. 2 Ibid. ; Paley on Agency, by Lloyd, 13 ; 1 Bell, Comm. 385, 386, § '408, 409, 410, (4th edit.) ; Id. p. 477, 478, (5th edit.) When a broker is intrusted with negotiable securities, indorsed in blank, for sale, he becomes rather a factor than a broker ; for he is then intrusted with the disposal and control of them, and may, by his negotiation of them, pass a good title to therii. Indeed, in practical business, the two characters are often confounded, and a broker is often a factor and a merchant, as well as a general agent. Paley on Agency, by Lloyd, 13, and note (a) ; Pickering v. Busk, 15 East, 38, 43 ; ante, § 32, 33, note 4. When a broker becomes possessed of the thing, about which he is employed, he acquires equally with a factor a lien for his commissions ; as, for example, an insurance broker, having possession of a policy. 3 Chitty on Comm. & Manuf. 210, 211, 541 ; Blunt, Commercial Dig. ch. 15, p. 230. Mr. Boll has remarked, that " Sometimes agents or factors act as the ostensible vendors of property be- longing to merchants residents in the same place, having warehouses and places fit for exhibiting the goods for sale. Sometimes they act as factors both for buyer and seller; the sale being perfected, and the delivery transferred, by- delivery of the bills for the price, and an entry in the factor's books to the debit of the one party and the credit of the other. The character of factor and broker is frequently combined; the broker having possession of what he is em- ployed to sell, or being empowered to obtain possession of what he is employed to purchase. Properly speaking, in these oases, he is factor." 1 Bell, Comm. 386, § 409, (4th edit.) ; Id. p. 478, (5th edit.) 3 Ante, 13 ; Catlin v. Ball, 4 Camp. R. 183 ; Bromley v. Coxwell, 2 Bos. & Pull. 438; Cochran v. Irlam, 2 M. & Selw. 301, n; Soley v. Eathbone, 2 M. & Selw. 298 a; Dig. Lib. 14, tit. 1, 1. 1 ; Pothier, Pand. Lib. 14, tit. l,n. 2, CH. III.] ' DIFFERENT KINDS OF. 35 de condition^ quis institoris dispiciat, et sic contrahat. In navis magistro non ita, nam inierdum locus, tempus, non patitur plenius deliberandi consilium} § 85. Fourthly, Ships'-Husbands. A ship's-husband is a common expressive maritime phrase, to denote a peculiar sort of agency, created and delegated by the owner of a ship, in regard to the repairs, equipment, management, and other concerns of the ship.^ A ship's-husband is sometimes appointed merely for the purpose of conducting the ordinary and necessary concerns of the ship on her return to her proper home port; such as making the proper entries at the custom-house ; superintend- ing the landing of the cargo ; procuring the proper surveys of damage; settling the freight; and other incidents connected with the discharge of the cargo, and the termination of the voyage. But, generally, the person, designated as ship's-hus- band, has a much larger authority, and is understood to be the general agent of the owners, in regard to all the affairs of the ship in the home port.^ As such general agent, he is intrusted with authority to direct all proper repairs and equipments, and outfits for the ship ; to hire the officers and crew ; to enter into contracts for the freight or charter of the ship, if that is her usual employment ; and to do all other acts necessary and 3; 1 Domat, B. 1, tit. 16, § -3, art. 3 ; 1 Liverm. on Agency, 56, (edit. 1818.) Domat, after stating the right of the master to delegate his authority, adds, as his interpretation of the text of the Digest ; " But this rule is not to be extended indifferently to' factors and others, set over any commerce or business at land, where the necessity of treating with them is not the same, and where it is easier to, learn, who is the person employed as factor, and how far his power extends." 1 Domat, B. 1, tit. 16, § 3, art. 3, Strahan's translation. In the Civil Law, the word Institor was sometimes used for agent generally. Cuicunque igitur negotio preepositus sit Institor recte appellabitur. Dig. Lib. 14, tit. 3, 1. 5, Prelim.; Ppthier, Band. Lib. 14, tit. 3, n. 5. V Dig. Lib. 14, tit. 1, 1. 1, Prelim. 3 Abbott on Ship. R 1, ch. 3, § 2, p. 69, (edit. 1829) ; 1 Bell, Comm. § 426, 428, p. 410, (4th edit.) ; Id. p. 503, 504, (5th edit.) ; Story on Partnership, §418. 3 See Abbott on Shipp. P. 1, ch. 3, § 2, p. 69, (edit. 1829) ; 1 B^U, Comm. § 426 to 429, p. 410, 411, (4th edit.) ; Id. p. 503, 504, (5th edit.) ~ ' 36 AGENCY. [CH. Ill, proper to despatch her for and on her intended voyage.^ But his authority does not extend to the procuring of any pohcy of insurance on the ship, either in port, or for the voyage, with- out some express or imphed assent of the owner.^ 1 1 Bell, Comm. § 426, 427, 428, p. 410, 411, (4th edit.) ; Id. p. 503, 504, (5th edit.) ; 2 Kent, Comm. Lect. 45, p. 157, (4th edit.) ; 1 Liverm, on Agency, 72, 73, (edit. 1818.) 2 French v. Backhouse, 5 Burr. 2127 ; Paley on Agency, by Lloyd, 23, note (8) ; Id. 108, 109 ; Abbott on Shipp. P. 1, ch. 3, § 2, p. 69 ; Id. § 8, p. 76, 77; Marsh, on Ins. B. 1, ch. 8, § 2 ; Beawes (Lex Mercat. 47, 6th edit.) has the following description of the powers and duties of Ships'-Husbands : " Ships'- Husbands, (says he,) a class of agents so called, whose chief employment in capital seaport towns, particularly in the port of London, is, to purchase the ship's stores for the voyage ; to procure cargoes on freight ; to settle the terms and obtain policies of insurance ; to receive the amount of the freight both at home and abroad ; to pay the captain or master his salary, and disbursements for the ship's use ; and, finally, to make out an account for all these transactions for his employers, the owners of ships, to whom he is, as it were, a steward at land, as the officer bearing that name is, on board, when the ship is at sea." Mr. Bell gives the following description of their duties : " The duties of the Ship's-Husband are ; 1. To see to the proper outfit of the vessel in the repairs adequate to the voyage, and in the tackle and furniture necessary for a sea- worthy ship. 2. To have a proper master, mate, and crew for the ship, so that in this respect it shall be seaworthy. 3. To see to the due furnishing of pro- visions and stores, according to the necessities of the voyage, 4. To see to the regularity of all the clearances from the custom-house, and the regularity of the registry. 5. To settle the contracts, and providg for the payment of the furnish- ings, which are requisite in the performance of those duties. 6. To enter into proper charter-parties, or engage the vessel for general freight, under the usual conditions; and to settle for freight, and adjust averages with the merchant.; and, 7. To preserve the proper certificates, surveys, and documents, in case of future disputes with insurers or freighters, and to keep regular books of the ship." 1 Bell, Comm. 410, § 428, (4th edit.) ; Id. p. 504, (5th edit.) He then adds, « His powers, where not expressly limited, may be described generally as those requisite to the performance of the duties now enumerated. It may be observed, however, 1. That, without special powers, he cannot borrow money generally for the use of the ship; though he may settle the accounts of the creditors for furnishings, or grant bills for them, which will form debts against ' the concern, whether he has funds in his hands or not, with which he might have paid them. 2. That, although he may, in the general case, levy the freight, which is, by the bill of lading, payable on the delivery of the goods, it would seem, that he wiU not have power to take bills for the freight, and give up the possession and lien over the cargo, unless it has been so settled by charter-party, or unless he has special authority to give such indulgence. CH. Ill ,] DIFFERENT KINDS OF. §7 § 36. Fifthly. Masters of Ships. This is a well known class of agents, possessing what some foreign Jurists have called the Exercitorial Power, in relation to the equipment, outfit, repair, management, navigation, and usual employment of the ship, committed to their charge.^ The master of a ship is not, indeed, as the language of these Jurists might at first sight be thought to imply, for all purposes to be deemed Exereitor Navis ; for that description properly applies only to the absolute owner, or to him who is the hirer or employer of the whole ship for the voyage, by a contract with the owner, {Dominus Navis,) or his agent, the master.^ The master of the ship ift our law answers exactly to the description of the Magister Navis of the civil law. Magistrum navis accipere dehemus cui toiius navis cura mandatd est. Magistrum dutem accipimus, non solum, quern Exereitor prceposuit, sed et eum quern Magister.^ And the master of the ship, by our law, as well as by the 3. That, under general authority as ship's-husband, he has no power to insure or to bind the owners for premiums ; this requiring a special authority. 4. That, as the power of the master to enter into contracts of affreightment is super- seded in the port of the owners, so is it by the presence of the ship's-husband, or the knowledge of the contracting parties, that a ship's-husband has been ap- pointed." 1 Bell, Comm. 411, § 429, (4th edit.) ; Id. p. 504, 505, (5th edit.) 1 Abbott on Shipp. P. 2, ch. 1, § 1 ; Id. ch. 2, § 1, 2, 4, 5, p. 90-93, (edit. ■ ♦1829) ; 1 Bell, Comm. 385, § 409 ; Id. p. 505, 506, (5th edit.) 2 Dig. Lib. 14, tit. 1, 1. 1 ; Dig. Lib. 4, 1. 9, § 1, 2 ; 1 Domat, B. 1, tit. 16, § 2, art. 1 to 4 ; Abbott on Shipp. P. 2, ch. 2, § 3, and-note (jr.) (edit. 1829.) Ex- ercitorem autem eum dicimus, ad quern obventiones et reditus omnes perveni- ,unt, sive is-Dominus navis sit, sive a Domino navem per aversionem conduxit, vel ad tempus, vel in perpetuum. Dig. Lib. 14, tit. 1,1. 1, § 15 ; Pothier, Pand. Lib. 14, tit. 1, n. 1. The words, per aversionem conduxit, in this passage, mean a hiring of the whole ship. See Pothier, ubi supra, note (1). In the foreign laws, and espepially in the early maritime Ordinances, the master of the ship is often designated as the Patron of the ship. He is generally so called in the Consolato del Mare. See also 1 Bell, Comm. B. 3, P. 1, ch. 5, § 1, 432, p. 412, (4th edit ) ; Id. p. 505, 506, (5th edit.) ; 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 18, 19 ; post, § 117 to 123, 294, 296, 315. 3 Dig. Lib. 14, tit. 1, 1. 1, § 1, 5 ; Pothier, Pand. Lib. 14, tit. 1, n. 1 ; Abbott on Shipp. P. 2, ch. 2, § 3, note (jr.), p. 91, 92, (edit. 1829) ; 1 Liverm. on Agency, ch. 3, p. 70, 71, (edit. 1818) ; 1 Domat, B. 1, tit. 16, § 3, art. 3 ; 3 Kent, Comm. Lect. 46, p. 160, 161, (4th edit.) AGENCY. 4 S8 AGENCY. [CH. III. Iloman law, possesses this power of appointing anbther person, as master, in his stead, and of delegating his authority, as master, to him, not indeed in all cases, nor in all places ; but in cases of necessity, or sudden emergency in a foreign port, in the absence of the owner or employer or of his authorized agent, whenever it may be necessary and proper for the wel- fare of the ship, and the due accomplishment of the voyage.^ Sometimes the master is also appointed supercargo, or con- signee of the cargo, in which case the rights and duties of the latter character are superadded to his ordinary rights and duties as mister. But his acts as master, are at the same time to be treated as distinct from those, as supercargo, as if the acts, ap- propriate to each character, were confided to diflFerent persons.^ Upon this subject we shall again touch hereafter.^ But the 1 See 1 Domat, B. 1, tit. 16, § 3, art. 3 ; 1 Bell, Comm. (4tli edit.) B. 3, ch. 5, g 1, 433, p. 413, (4th edit.) ; Id. p. 505 to 508, (5tli edit.) ; Pothier, Traitd de Chart. Part. n. 48, 49. The Digest lays down the rule, that the owner or em- ployer is bound by the act of substitution, notwithstanding he has privately prohibited the master from doing the act. Quid tamen, si sic magistrum prse- posuit, ne alium ei licerit prasponere ? An adhuc Juliani Sententiam admitti- mus, videndum est. Pinge, enim et nominatim eum prohibuisse, Ne Titio magistro utaria. Dicendum tanien erit, eo usque producendam utilitatum navi- gantium. Dig. Lib. 14, tit. 1, 1. 1, § 5 ; Pothier, Pand. Lib. 14, tit. 1, n. 3. Pothier on Charter Parties lays down the same rule. See the excellent trans-* lation Mr. by Cushing of Pothier on Marit. Contr. p. 28, n. 49, and the note of the learned Editor, Id. 142, note 17, who cites Kuricke to the same effect. Roccus also asserts the same doctrine. See Ingersoll's Roccus, on Ships and Freight, Note 4, p. 18 ; 1 Domat, B. 1, tit. 16, § 3, art. 3 j 1 Bell, Comm. p. 413, § 434, (4th edit.) ; Id. p. 505 to 508, (8th edit.) We have already seen, (ante, § 34, and note,) that a broad distinction is taken between the right of the master of a ship to delegate his authority, and certain other classes of agents, such as Institores and Factors. 2 Abbott on Shipp. by Story, P. 2, ch. 4, § 1, b, note (1), p. 134, (edit. 1829) ; Kendrick v. Delafield, 2 Caines, R. 67; Earle v. Rowcroft, 8 East, 126, 140; Cook V. Commerc. Ins. Co. 11 John. R. 40; Crousillat v. Ball, 4 Dall. 294; The Vrou Judith, 1 Rob. 150; The St. Nicholas, 1 Wheat. 417 ; 1 Liverm. on Agency, 72, (edit. 1818) ; 1 Bell, Comm. (4th edit.) B. 3, P. 1, ch. 5, § 433, p. 413 ; Id. p. 506, (5th edit.) ; 3 Kent, Comm. Lect. 46, p. 159-164, (4th edit.) ; 1 Domat, B. 1 tit. 16, § 3, art. 3 ; Williams v. Nichols, 13 Wend. R. 58. 3 Post, § 116 to 123, 294 to 300, 497. CH. III.] DIFFERENT KINDS OF. 89 full consideration of the rights, powers, and duties of masters of ships appropriately belongs to the law of shipping and navi- gation. § 37. Sixthly.. Partners. Partners are mutual agents of each other in all things which respect the partnership busi- 'ness. And, accordingly, we find that generally the act of any one, in the name of all, or for the benefit of all, in their com- mon business, is deemed obligatory upon all the partners.!* But, here again, it may be remarked, that the proper con- sideration of this subject belongs to the law of partnership ; and it may, for the present, be passed over, as it will occur in another connection hereafter. However, the rules applicable to it will be found in most, if not in all respects, to be the same, as those which govern in relation to other cases of general agency.^ ' The same rule was applied in the Civil Law. Si plures navem exerceant, cum quolibet eorum in solidum agi potest. Ne in plijres adversaries distringa- tur, qui cum uno contraxerit. Dig. Lib. 14, tit. 1, 1. 1, § 25 ; Id. 1. 2 ; 1 Domat, B. 1, tit. 16, §3, art. 6, 7; Pothier, Pand.'Lib. 14, tit. l,n. 10; Baring i;. Lyman, 1 Story, Rep. 396. 2 See Gow on Partn. ch. 2, § 2, p. 53 to 91, (edit. 1825) ; CoUyer on Partn. B. 2, ch. 2, § 1, p. 104 ; Id. B. 3, ch. 1, § 1 to 5, p. 211 to 240 ; 3 Kent, Comm. Lect. 43, p. 40, (4th edit.) ; Story on Partnershi|), § 101 to 125 ; post, § 124, 125. 40 AGENCY. [CH. IV. CHAPTER IV. JOINT PRINCIPALS AND JOINT AGENTS. § 38. Let us, in the next place, proceed to the consideration of cases, w^ere there are. two or more Principals and two or more Agents. (1^ In regard to cases of two or more princi- pals, it may be generally laid down, that if they have a several and distinct interest, no one of them can ordinarily appoint an agent for all the others, without the assent and concurrence of all of them. Thus, for example, if two persons, by a joint instrument, should consign two parcels of goods to a consignee for sale, the one being the owner of one parcel, and the other the owner of the other parcel ; in such a case, no joint interest, or joint agency, would be created ; but the consignee would become the several factor of each owner ; and of course the owner of one parcel could not give instructions to the con- signee, which would bind both, unless by the express or im- plied consent of the ing bills of exchange, and issuing promissory notes, by companies incorporated for the purposes of trade, with the rights and liabilities consequent thereon. 1 2 Kent, Comm. Lect. 41, p. 613 to 616, (4th edit.); 1 Bell, Comm. B. 3, Pt. 1, ch. 4, § 4, art. 410 ; Id. p. 478 to 481, (5th edit.) ; American Insur. Co. V. Oakley, 9 Paige, R. 496; Pickett v. Pearsons, 17 Vermont, R. 470- Post, § 84 to 288. ' CH. v.] APPOINTMENT, HOW MADE. 63 ^55. Cases of this latter description, arising from the grant of an agency by an unwritten or verbal request, or by implica- These principles were, it is evident, present to the attention of the Court of Common Pleas when the case in question was decided ; and they might reason- ably have held, that a contract with a water company, for the supply of iron pipes, was neither one of so frequent occurrence, or small importance, or so brought within the purpose of incorporation, that the principle of convenience above established, required it to be taken out of the general rule. See also, London and Birmingham Railway Co. v. Winter, 1 Craig & Phillips, E. 5 7. A later case on the subject is that of The Mayor of Ludlow v. Charlton, (6 Mees. & Wels. 815,) where it was held, that a municipal corporation cannot enter into a contract to pay a sum of money out of the corporate funds for the making im- provements in the borough, except under the common seal. On that occasion, Mr. Baron Rolfe, in delivering the opinion of the Court said :^"The rule of Law on this subject, as laid down in all the old authorities, is, that a corporation can only bind itself by deed. See Comyn's Digest, tit. 'Franchise,' (F) 12, 13, and the authorities there referred to. The exceptions pointed out rather con- firm than impeach the rule. A corporation it is said, which has a head, may give a personal command, and do small acts ; as it may retain a servant. It may authorize another to drive away cattle damage feasant, or make a distress, or the like. These are all matters so constantly recurring, or of so small im- portance, xjr so little admitting of delay, that to require in every such case the previous affixing of the seal, would be greatly to obstruct the every day ordinary convenience of the body corporate, without any adequate object. In such matters, the head of the corporation seems, from the earliest time, to have been considered as delegated by the rest of the members to act for them. In modern times, a new class of exceptions has arisen. Corporations have of late been established, sometimes by Koyal .Charter, more frequently by act of Parliament, for the purpose of carrying on trading speculations; and where the nature of their constitution has been such as to render the drawing of bills, or the con- stant making of any particular sort of contracts necessary for the purposes of the corporation, there the Courts have held, that they would imply in those, who are, according to the provisions of the Charter or act of Parliament, carryino- on the corporation concerns, an authority to do those acts, without which the corporation could not subsist. This principle will fully warrant the recent de- cision of the Court of Queen's Bench, in Beverly v. Lincoln Gas Light and Coke Company. The present case, ho'srever, was argued at the bar, as if, by the decision in that last case, the old rule of law was to be considered as ex- ploded, and as if, in all cases of executed contracts, corporations were to be deemed bound in the same manner as individuals. But this would be pressing the decision in question far beyond its legitimate consequences ; and that the Court of Queen's Bench had no such meaning, is plain from the subsequent case of Church v. Imperial Gas Light Company. Lord Denman, in delivering the judgment of the Court in that case, says : [Here the learned Judge quoted 64 AGENCY. [CH. V. tion, are very familiar in all the common business of life, and the common departments of trade. Thus, the appointment, the words of Lord Denman, already cited in this note, beginning with the words : " The general rule of law is, that a corporation contracts under its common seal; as a general rule it is only in that way that a corporation can express its will, or do any act. That general rule, however, has from the earliest traceable periods, been subject to exceptions," &c. &c.] To every word of this we entirely sub- scribe, and, applying the language of Lord Denman to the present case, it is quite clear, that there was nothing to enable the corporation of Ludlow to con- tract with the defendant otherwise than in the ordinary mode, under the cor- porate seal. In contracting without a seal, there was no paramount convenience so great as to amount almost to necessity. To have required a seal, would cer- tainly not have tended to defeat the object for which the corporation was formed, nor was the subject-matter of the contract one either of frequent ordinary oc- currence, or of urgency admitting no delay. Before dismissing this case, we feel ourselves called upon to say, that the rule of law requiring contracts entered into by corporations to be generally entered into under seal, and not by parol, appears to us to be one by no means of a merely technical nature, or which it would be at all safe to relax, except in cases warranted by the principles to which we have already adverted. The seal is required, as authenticating the concurrence of the whole body corporate. If the legislature, in erecting a body corporate, invest any member of it, either expressly or impliedly, with authority to bind the whole body by his mere signature, or otherwise, then, undoubtedly, the adding a seal would be matter purely of form, and not of substance. Every one becoming a member of such a corporation, knows, that he is liable to be bound in his corporate character, by such an act ; and persons dealin gwith the corporation know, that by such an act the body will be bound. But in other cases, the seal is the only authentic evidence of what the corporation has done, or agreed to do. The resolution of a meeting, however numerously attended, is, after all, not the act of the whole body. Every member knows he is bound by what is done under the corporate seal, and by nothing else. It is a great mistake, therefore, to speak of the necessity for a seal, as a relic of ignorant times. It is no such thing ; either a seal, or some substitute for a seal, which l)y law shall be taken as conclusively evidencing the sense of the whole body cor- porate, is a necessity inherent in the very nature of a corporation; and the attempt to get rid of the old doctrine, by treating as valid contracts made with particular members, and which do not come within the exceptions to which we have adverted, might be productive of great inconvenience." In the still more re- cent case of The Fishmonger's Company v. Robertson, 5 Mann. & Grang. R. 131, the whole subject was elaborately discussed, and it was held, that a contract not under seal, which had been executed on the part of the corporation, and for which the defendants had received a full consideration, bound the other party. On that occasion. Lord Chief Justice Tindal said: " Upon the present state of the pleadings, the defendant Robertson has undoubtedly the right to raise any CH. v.] APPOINTMENT, HOW MADE. 65 by which the relation of master and servant is created, and the extent of the authority conferred on the latter, are ordinarily objection to the declaration which could have been made available on a general demurrer thereto ; and it has accordingly been contended, on his behalf, that it may be assumed, from the declaration itself, that the contract, upon which this action is brought, was not sealed on the part of the plaintiffs with the common seal of the corporation ; that, by the general rule of law, the plaintiffs, being a body corporate, cannot bind themselves by an agreement which is not under their common seal ; that, although there are certain admitted and well-known exceptions to this gefieral rule, yet that the present case does not fall within any of such exceptions ; and, lastly, that if the agreement be such that the corpora- tion is not bound thereby, and cannot be sued thereon, so neither can the other party be bound thereby, nor can the corporation sustain an action, as plaintiffs, upon such an agreement. " We concur with some of the positions above laid down on the part of the defendants. From the statement of the contract itself on the face of the dec- laration, and the mode of its execution by a,n agent on 'behalf of the corpora- tion, as there described, we think it may be inferred, that the defendants' coun- sel is entitled to assume, that the common seal of the corporation was never affixed thereto. We agree also, in the general rule of law as above stated, and that the ease now under consideration, does not fall within any of those excep- tions which are so well known as to require no enumeration ; but, whatever may be the consequences, where the agreement is entirely executory on the part of the corporation, yet, if the contract, instead of being executory, is executed on their part, — ^if the persons, who are parties to the contract with the corporation, have received the benefit of the consideration moving from the corporation, — in that case, we think, both upon principle and decided authorities, the other par- ties are bound by the contract, and liable to be sued thereon by the corporation. Even if the contract put in suit by the corporation had been, on their part, executory only, not executed — we feel little doubt but that their suing upon the contract would amount to an admission on record by them that such contract was duly efitered into on their part, sq as to be obligatory on themselves ; and that such admission on the record would estop them from setting up as an ob- jection, in a cross action, that it was not sealed with their common seal ; on the same principle as it was held by Holt, C. J., and the Court, in The Mayor of Thetford's case, ' that, though a corporation cannot do an act in pais without their common seal, yet they may do an act upon record ; and .that is the case of the city of London every year, who make an attorney by warrant of attorney in this Court without either sealing or signing; and the reason is, becausp they are estopped by the' record to say that it is not their act. So, if an action be brought against a corporation for a false return, they are estopped to say it is not their return, for, it is responsio majoris et communitatis upon record.' And, in the present case, the direct allegation by the corporation upon this record, that the agreement was made by Towse on their behalf, would, as we 6* 66 AGENCY. [CH. V. known and ascertained only by implication from the recognition, or conduct, or acquiescence of the master.^ As, where, a clerk think, amount to an estoppel to the corporation from denying the obligatory force of the agreement in a subsequent action against themselves. But it is unneces- sory to determine this point on the present occasion, because, on the face of the declaration, there is, as we apprehend, an averment of the performance by the corporation, of every matter which amounts to a condition precedent on their part ; at least, we so assume in the present stage of the argument, and before considering the pleas of the defendant. The question, therefore, becomes this, whether, in the case of a contract executed before action Tarought, where it ap- pears that the defendants have received the whole benefit of the consideration for which they bargained, it is an answer to an action of assumpsit by the cor- poration, that the corporation itself was not originally bound by such contract, the same not having been made under their common seal. " Upon the general ground of reason and justice, no such answer can be set up. The defendants having had the benefit of the performance by the corpora- tion, of the several stipulations into which they entered, have received the con- sideration for their own promise ; such promise by them is therefore not nudum pactum ; they never can want to sue the corporation upon the contract, in order to enforce the performance of those stipulations which have already been voluntarily performed ; and therefore no sound reason can be suggested why they should justify their refusal to perform the stipulations made by them, on the ground of inability to sue the corporation, which suit they can never want to sustain. It may possibly be the case, that, up to the time of the corporation adopting the contract by performing the stipulations on their part, there was a want of mutuality, from the corporation not being compellable to perform their contract ; and that the defendants might, during that interval, have the power to retract, and insist that their undertaking amounted to a nudum pactum only. But, after the adoption of the contract by the corporation, by performance on their part, upon general principles of reason, the right to set up this defence ap- pears altogether to fail. " Independently, however, of the reasonableness of such constriHrtion, there appears authority in law to support the position. In the case of The Barber Surgeons of London v. Pelson — assumpsit for a forfeiture under a by-law — where the objection was expressly taken, that a promise cannot be made to a. corpora- tion aggregate without deed, the Court held that the action well lay, and that the objection had been overruled in The Mayor, &c., of London v. Goree. Again, in The Mayor, &c., of London v. Hunt, assumpsit was held to be maintainable by a corporation for tolls. In The Mayor, &c., of Stafibrd v. Till, use and occupation was held to be maintainable by a corporation aggregate, though there was no demise under seal, the tenant having-occupied, and paid rent ; and the same point was ruled in the case of The Dean and Chapter of Rochester v. 1 1 Domat, B. 1, tit. 16, § 3, art. 1 & 4. CH. v.] APPOINTMENT, HOW MADE. 67 is employed in a shop or warehouse to sell goods, his authority to make a particular sale, is implied from his ordinary occupa- Pierce. The case of The East India Company v. Glover, carries the law further ; for the action in that case was not upon a promise implied by law on an executed consideration, as, for goods sold, but was assumpsit by a corporation for not accepting and taking away cofiFee within the time mentioned by an agree- ment for sale. The objection, indeed, was not raised ; but we cannot but sup- pose it would have been made, if thought maintainable ; for, when the defendant wanted to show fraud upon the sale, on the execution of the writ of inquiry be- fore Pratt, C. J., he refused to let in the evidence, saying, the defendant had admitted the contract to be as the plaintiflF had declared, by suffering judgment by default, instead of pleading non assumpsit. And, again, the judgment of the Court of Error in Bowen-u. Morris, although not directly an authority upon the point, shows a strong indication of the opinion of Mansfield, C. J., in sup- port of the present action. In that case, the mayor of a corporation had signed a contract to sell landed property.belonging to the corporation 'on behalf of himself and the rest of the burgesses and commonalty,' and the action was brought in the name of the mayor, who lad signed the contract, to recover damages. The Lord Chief Justice, in giving judgment that the action was not maintainable in the name of the mayor, observes, ' that, although the corpora- tion have not constituted the mayor their bailiff or agent by an instrument under seal, so that he was not competent by that contract to bind the corporation, yet as the mayor signed it, perhaps the corporation might have sustained an action on the contract. And the cases referred to on guarantees, (see particularly the judgment in Kennaway v. Treleavan,) and on the Statute of Frauds, where the contract has been signed by the defendant only, and not. by the plaintiff, but allowed to be enforced by action, notwithstanding the objection of a want of mutuality, tend strongly to support the principle on which we consider the present action maintainable. And the earlier case of Cooper v. Gooderick, may be adverted to, as Showing the opinion of the Court lipon the legal consequence of bringing an action by a body corporate In that case, the defendant, as bailiff of Emanuel College, made conusance for rent granted to them in fee by indenture. . The issue was non concessit ; and the jury found that the grantor granted it by the deed, and delivered that deed to a stranger to their use, and they sealed the counterpart of that indenture ; the question was whether a stranger, without letter of attorney from them to receive it, might receive the deed to their use ; and it was held by all the Court that he might, and that the sealing of the counterpart was a sufficient agreement, and as well as if they had made a letter of attorney ; ' and, if they had not sealed the counterpart, but had brought an action upon it, that had made the grant perfect ; ' and judgment was given for the plaintiff. " We therefore think the present action is maintainable by the corporation, unless some sufficient answer appears on the pleas, which we now proceed to consider." [See further on thi^ subject. Mayor of Ludlow v. Charlton, 6 M. & 68 AGENCY. [p^- V- tlon, and the acquiescence of the master. So, where a clerk is usually intrusted to sign notes, or usually does sign notes for W. 823; Church v. Imperial Gas Co. 6 Ad. & Ell. 861 ; Williams v. Chester Railway Co. 5 Eng. Law & Eq. K. 497 ; Diggle u.. London Railway, 5 Exch. K. 442; Denton v. East Anglican Railway Co. 3 C. & K. 17; Clark v. Guardians of Cuckfield Union, 11 Eng. Law & Eq. R. 442; Paine v. Strand Union, 8 Q. B. 326, 810; Lamprell v. Billericay Union, 3 Exch. 283; Homersham v. Wolverhampton Water Works Co. 4 Eng. Law & Eq. R. 426. One of the most recent cases on this subject, decided June 23, 1855, is that of Henderson u. The Australian Royal Mail Steam Nav. Co. 32 Eng. Law & Eq. 167; Wight- man, J., said : " This is an action against the Australian Royal Mail Steam Navi-' gation Company, which is a company constituted expressly for the purpose of carrying on a trade by vessels ; it is incorporated " for the purpose of under- taking the establishment and maintenance of a communication, by means of steam navigation or otherwise, and the carrying of the royal mails, passengers, and cargo, between Great Britain- and Ireland, and the Cape of Good Hope and Australasia," and for that purpose it must maintain and employ many vessels. Can it be doubted that amongst the ordinaiy operations of the company, there would arise a necessity for employing persons to navigate or bring home vessels which met with accidents abroad ? The words of the contract, as set out in the declaration, show an employment directly within the scope of the objects for which the company was incorporated. It is true that there is a conflict of authorities which it is difficult to reconcile. Two or three cases in the Court of Exchequer, Lamprell v. The Billericay Union, 3 Exch. 283, and The Mayor of Ludlow v. Charlton, 6 M. & W. 815, and Arnold v. The Mayor of Poole, 4 Man. & G. 863, in the Court of Common Pleas, appear to militate against the view taken by th?fe Court. But those decisions proceeded upon a principle adapted to municipal corporations, which are created for other objects thsyi trade ; and the Court of Exchequer applied that principle to modern trading companies, which are of an entirely difi'erent character. In early times, there was a great relaxation of the rule, which required that the contracts of corporations should be under seal, and that relaxation has been gradually ex- tended. At first, the relaxation was made only in those cases mentioned by Mr. Lush, where the subject-matter of the contract was of small moment and fre- quent occurrence, which in the case of municipal corporations, might be the only exceptions necessary. But in the later cases, there was a further relaxation, especially in the case of corporations created by charter for trading purposes, and other like corporations. The general result of the cases mentioned in Clark V. The Guardians of the Cuckfield Union, 16 Jur. 686 ; s. c. 11 Eng. Rep. 442, is, that in the case of trading corporations, wherever the contract relates, and is essential to the purpose for which the company was incorporated, it may be enforced, though not under seal. In deciding that case, I reviewed all the cases, and adhere to the opinion which I then expressed, that in such a case as the present, where the contract is essentially necessary to the objects of the CH. v.] APPOINTMENT, HOW MADE. 69 his master, which are afterwards paid, or recognized to be valid, he is presumed to possess a rightful authority to do so in other instances, within the scope of the same business.-^ company, and directly within the scope of their charter, it may be enforced, though made by parol." And Erie, J., added : " I am of opinion that the con- tract is binding on the corporation, though not under seal, on the ground that it is directly within the scope of the company's charter. The authorities are apparently conflicting, but none conflict with the principle laid down by my brother Wightman, in which I concur. In Beverley v. The Lincoln Gas Light and Coke Company, 6 Ad. & El. 829, the supply of gaS was directly incidfent to the purpose for which the company was incorporated. So also in Church v. The Imperial Gas Light and Coke Company, 6 Ad. & El. 846 ; and in Sanders V. The Guardians of the St. Neot's Union, 8 Q. B. 810 ; and in the elaborate judgment of Wightman, J., in Clark v. The Guardians of the Cuckfield Union, 16 Jur. 686 ; s. c. 11 Eng. Hep. 442, it was assumed that the matter -vjas within the scope of the company's charter. The judgment, delivered by Lord Camp- bell, C. J., for this Court, in The Copper Miners Company v. Fox, 16 Q. B. 229 ; s. o. 3 Eng. Kep. 420, enunciated the principle. The principle afiirmed by this series of cases, does not conflict with the two leading cases in the Court of Exchequer, which were cases of municipal corporations. Neither building, which -was the matter in The Mayor of Ludlow v. Charlton, 6 M. & W. 815 ; nor litigation, which was the matter in Arnold v. The Mayor of Poole, 4 Man. & G. 860, were incidental directly to the purposes for which the corporations of those towns were constituted. The other cases to which I adverted, were cor- porations for trading purposes, and it is difficult to reconcile them. In Lamprell V. The Guardians of the Billericay Union, 3 Exch. 283, the action related to the building of a workhouse, with which the defendants were, as a corporation, connected. Diggle v. The London and Blackwall Railway, 5 Exch. 442, is that which to the greatest degree conflicts, unless it can be distinguished, or explained on the ground that it was a unique contract; if it cannot, I do not agree to it; and in this conflict of authorities, I adhere to those which oppose it. The notion that a set of contracts shall have their validity depending on the frequency and insignificancy of the subject-matter, is of such extreme perniciousness, that I do not think that it can be adhered to, and must be considered as applicable only to municipal corporations. It has been so held as to contracts for servants, but I do not think, that it was meant to be said, that the contract was valid if the matter was of small importance, and invalid if the matter was of great impor- tance ; and indeed, in the case of trading companies, which it is allowed may draw and accept bills of exchange not under seal, it is obvious that insignificancy is no element ; neither is the frequency or rarity of the contract an element. The nature of the contract and the subject-matter of it, must be the principle 1 See Smith on Mere. Law, 106, (3d edit.) 1843 ; Dowa v. Greene, 16 Bar- bour, 72 ; Chidsey v. Porter, 9 Harris, (Penn.) K. 390. 70 AGENCY. [CH. V. § 56. And the nature and extent of the authority of the servant or agent, are often wholly deduced from the nature and extent of his usual employment. Hence it is, (as we shall presently more fully see,^) that the master is bound by the acts of the servant, within the scope of the usual business confided to him ; for the master is presumed to authorize and approve the known acts, that are incident to such an employment. Thus, if a master usually intrusts his servant to buy goods upon credit, he will be bound by his acts of this sort even when he has prohibited him specially from buying upon credit ; for the other party trusts to him, on account of the general habit of his employment, and the presumed assent of the master, who has held him out as having a competent authority for this purpose*.^ And it is a general rule, which will be abundantly illustrated in the course of these Commentaries, that where one of two innocent persons must suffer by the misconduct of a whicli governs the question whether it is valid, though not under seal. It would be pernicious to the law of the country, that under the semblance of a contract parties should obtain goods or services, and not be compellable to pay for them. The Court of Exchequer had an opinion that it would be important that the rule should be certain ; but their resort to the rule, that the contract in all cases, with the above-mentioned exceptions, should be under seal, cannot be acted upon."] It is very certain, that no such distinction between contracts made by municipal corporations and other corporations, exists in America ; but the general rule, as laid down in the text, is generally, if not universally established. Indeed, in ■ New England, our municipal corporations rarely, if ever, use any corporate seal ; and all their multifarious business is transacted by the town officers, who are annually chosen by the votes of the inhabitants, and who act, virtute officii; as agents of the town, and in almost all cases, except of the-conveyance of the real estate of the town, act by unsealed instruments and contract, either verbally or by unsealed writings, on behalf of the town. See Angell and Ames on Corporations, oh. 8, p. 162 to 209, (2d edit.) 1 Post, § 84 to 106. 2 1 Liyermore on Agency, p. 37 to 41, (edit. 1818) ; 2 Kent, Comm. Lect. 41, p. 614, 615, 626, 627, (4th edit.) ; Anon. 1 Shower, 9&; Paley on Agency, by Lloyd, Ft. 1, ch. 3, § 2, p. 161 to 175 ; Niokson v. Brohan, 10 Mod. 109-111 ; Pickering v. Busk, 15 East, 38 ; Barber v. Gingell, 3 Esp. Rep. 60; Kusby v, Scarlett, 5 Esp. E. 76, 77. See Wayland's case, 3 Salk. 234 ; Bolton v. Hillers- den, 1 Ld. Kaym. 225 ; Hazard v. Treadwell, 1 Str. E. 506 ; Williams v. Mit- chell, 17 Mass. E. 98, CH. v.] APPOINTMENT, HOW MADE. 71 third person, that party shall suffer, who, by his own acts and conduct, has enabled such third person, by giving him credit, to practice a fraud or imposition upon the other party.-' And this is in perfect coincidence with the rule of the civil law, wherein it is said; Semper, qui non prohihet pro se intervenire, mandare creditur? Qui patitur ab alio mandari, ut sihi credatur, mandare intelligitur? But of this more will be said under the next head. 1 Baring v. Corrie, 2 B. & Aid. 143 ; Paley on Agency, by Lloyd, (3d edit.) p. 201. See Hazard v. Treadwell, 1 Str. K. 506 ; Post, § 264. a Dig. Lib. 50, tit. 17, 1. 60 ; Dig. Lib. 14, tit. 1, 1. 1, § 5 ; Post, § 89 ; 2 Kent, Comm. Lect. 41, p. 614 to 616, (4th edit.) ; Pothier, Pand. Lib. 17, tit. 1, n. 19. 3 Dig. Lib. 17, tit. 1,1. 18; Pothier, Pand. Lib. 17, tit. 1, n. 19; Post, § 89. 72 . AGENCY. [CH. VI. CHAPTER VI. NATURE AND EXTENT OF AUTHORITY. S 57. Let us next consider the nature and extent of the authority conferred on an agent. It may, as we have already seen, be a general authority, or it may be a special authority. It may be express, or it may be implied. In regard both to a general and to a special express authority, it may be conferred by a formal instrument, as by a letter of attorney under seal ; or it may be by a writing of an informal and loose character, such as a letter, or a memorandum, or it may be by parol or oral declarations.' § 58. But whether it is conferrea in the one way, or in the other, it is, unless the contrary manifestly appears to be the intent of the party, always construed to include all the neces- sary and usual means of executing it with effect.^ Thus, for example, if a general authority is given to collect, receive, and pay all the debts due by, or to, the principal, it will occur to every one, who reflects upon the nature of such a trust, that numberless arrangements may be required fully to accomplish the end proposed ; such as settling accounts, adjusting disputed claims, resisting unjust claims, answering or defending suits ; and fhese subordinate powers (or, as they are sometimes called, mediate powers), are, therefore, although not expressly given, understood to be included in, and a part of, or incident to, the 1 Ante, § 46 to 56. 3 Howard v. Baillie, 2 H. Bl. 618 ; 3 Chitty on Comm. and Manuf. 200, 201 ; "Withington v. Herring, 5 Bing. R. 442; 1 Bell, Comm. 387, art. 412, (4th edit.) ; Eogers v. Kneeland, 10 Wend. 218; Peck v. Harriott, 6 Serg. & R. 146 ; Den- man V. Bloomer, 11 HI. 177 ; Barnett v. Lambert, 15 M. & W. 489; Post,§ 97, 101 to 106. CH. VI.] NATURE AND EXTENT OF AUTHORITY. JS primary power.^ So, an authority given to recover and receive a debt, will authorize the attorney to arrest the debtor.^ So, an authority given to a broker to eiFect a policy, will authorize him to adjust a loss under the policy, and adopt all the means neces- sary to procure an adjustment.^ So, an authority to settle losses on a policy, will include a power to refer the matter to arbitra- tion.* So, an authority to sell and convey lands for cash, includes an authority to receive the purchase-money.^ So, an authority to make and enter into contracts for the purchase of grain, has been held to include the power to modify or waive a contract made by the agent in respect to grain.® So, an authority given by vote to the treasurePof a corporation to hire money, not exceeding a fixed sum, and for a term not less than eight or more than twelve naonths " on such terms and conditions as he may think most conducive to the interests of the company," for the purpose of meeting certain drafts of the company, as they shall fall due, has been held to authorize the treasurer to raise money by drafts on one of the directors, payable to his own order, and indorsed by him, and to be charged by the acceptor to the company.^ So, an authority to make contracts foB the sale of lands will authorize the agent [to make a deed,® and] to receive so much of the purchase-money as is to be paid in hand on the sale, as an incident to the power to sell.^ 1 Howard v.- Baillie, 2 H. B. 618-620 ; Com. Dig. Attorney, C. 15, citing Palmer, E. 394 ; Sprague v. Gillett, 9 Metcalf, K. 91 ; Fowler v. Bledoe, 8 Humphreys, E. 509 ; Post, § 101 to 106. '2 Ibid. ; Post, § 103 and note. 3 Richardson v. Anderson^ 1 Camp. R. 43, note ; 1 Emerig. Assur. ch. 6, § 4, p. 141; Post, § 103, 169,191. ■* Goodson V. Brooke, 4 Camp. E. 163. But see contra, Huber v. Zimmerman, 21 Ala. 488. 6 Peck V. Harriot, 6 Serg. & Rawle, 149. 6 Anderson v. Cooiiley, 21 Wend. E. 279. '^ Belknap v. Davis, 1 Appleton, R. 455. s Valentine v. Piper, 22 Pick. 85. 9 Johnson v. McGruder, 15 Miss. 365 ; Yerby v. Grisby, 9 Leigh, Virg. R. 387 ; Goodale v. Wheeler, 11 N. H. E. 424. See Lathrop v. Blake, 3 Foster, 46. AGENCY. - 7 74< AGENCY. ' [CH. VI. [So a power to an agent to sell lands, on such terms in all respects as he might deem most advantageous, and to execute deeds of conveyance necessary for the full and perfect transfer of the title, authorizes the agent to insert in the deed the usual covenants of warranty.-*] 1 Le Koy v. Beard, 8 Howard, 451. Woodbury, J., said : " This power of attorney is given in extenso in the case. It appears from its contents, that Le Koy, after authorizing Starr, (the agent,) to invest certain moneys in lands and real estate in some of the Western States and Territories of the United States, at the discretion of the said Starr, empowered him ' to contract for the sale of, and to sell, either in whole or in part, the lands and real estate so purchased by the said Starr,' and ' on such terms ip all respaiR as the said Starr shall deem most advantageous.' Again, he was authorized to execute ' deeds of con- veyance necessary for the full and perfect transfer of all our respective right, title,' &c. ' as sufficiently in all respects as we ourselves could do personally in the premises,' 'and generally, as the agent and attorney of the said Jacob Le Roy,' to sell ' on such terigs in all respects as he may deem most eligible.' It would be difficult to select language stronger than this to justify the making of covenants without specifying them eo nomine. When this last is done, no question as to the extent of the power can arise, to be settled by any court. But when, as here, this last is not done, the extent of the power is to be settled by the language employed in the whole instrument, (4 Moore, 448,) aided by the situation of the parties and of the property, the usages of the country on such subjects, the acts of the parties' themselves, and any other circumstance having a legal bearing and throwing light on the question. That the language above quoted from the power of attorney is sufficient to cover the execution of such a covenant w:ould seem naturally to be inferred, first, from its leaving the terms of the sale to be in all respects as Starr shall deem most advantageous. ' Terms ' is an expression applicable to the conveyances and covenants to be given, as much as to the amount of, and the time of paying, the consideration'. Eogers u. Kneeland, 10 Wendell, 218. To prevent misconception, this wide discretion is reiterated. The covenants, or security as to the title, would be likely to be among the terms agreed on, as they would influence the trade essentially and in a new and. unsettled country must be the chief reliance of the purchaser. To strengthen this view, the agent was also enabled to execute conveyances to transfer the title ' as sufficiently in all respects as we ourselves could do personally in the premises.' And it is manifest, that inserting certain covenants which would run with the land might transfer the title in some events more perfectly than it would pass without them ; and that, if present ' per- sonally,' he could make such covenants, and would be likely to if requested, unless an intention existed to sell a defective title for a good one, and for the price of a good one. It is hardly to be presumed that any thing so censurable as this was contemplated. Again, his authority to sell, ' on such terms in all CH. VI.] NATURE AND EXTENT OF AUTHORITY, ^5 § 59. Upon the same ground, an agent, who is employed to procure a note or bill to be discounted, may, unlessexpressly respect3 as he may deem most eligible,' might well be meant to extend to a term or condition to make covenants of seisin or warranty, as without such he might not be able to make an eligible sale, and obtain nearly so large a price. Now all these expressions, united in the same instrument, would prima facie, in com- mon acceptation, seem designed to convey full powers to make covenants like these. And although a grant of powers is sometimes to be construed strictly, (Com. Dig. Poiar, B. 1 and c. 6 ; 1 Bl. R. 283,) yet it does not seem fit to fritter it away in a case like this, by very nice and metaphysical distinctions, when the general tenor of the whole instrument is in favor of what was done under the power, and when the grantor has reaped the benefit of it, by receiving a large price that otherwise would probably never have been paid. Kind v. Marshall, 1 Brod. & Bingh. 319; 10 Wendell, 219, 252. This he must refund when the title fails, or be accessory to what seems fraudulent. 1 J. J. Marsh. 292. Another circumstance in support of the intent of the parties to the power of attorney to make it broad enough to cover warranties, is their position or situation as dis- closed in the instrument itself. Solly v. Forbes, 4 Moore, 448. Le Koy resided in New York, and Starr was to act as his attorney in buying and selling lands in the ' "Western States and Territories,' and this very sale was as remote as Mil- waukie, in Wisconsin. For aught which appears, Le Koy, Beard, and Starr, were all strangers there, and the true title to the soil little known to them, and hence they would expect to be required to give warranties when selling, and would be likely to demand them when buying. The usages of this country are believed, also, to be very uniform to insert covenants in deeds. In the case of The Lessee of Clarke v. Courtney, 5 Peters, 349, Justice Story says: ' This is the common course of conveyances ; ' and that in them ' covenants of title are usually inserted.' See also, 6 Hill, 338. Now, if in this power of attorney no expression had been employed beyond giving an authority to sell and convey this land, saying nothing more extensive or more restrictive, there are cases which strongly sustain the doctrine, that, from usage as well as otherwise, a war- ranty by the agent was proper, and would be binding on the principal. It is true, that some of these cases relate to personal estate, and some perhaps should be confined to agents who have been long employed in a particular business, and derive their authority by parol, no less than by usage ; and consequently may not be decisive by analogy td^the present case. 3 D. & E. 757 ; Helyear V. Hawke, 5 Esp. Ca. 72, note; Pickering v. Busk, 15 East, 45; 2 Camp. N. P. 555 ; 6 Hill, 338 ; 4 D. & E. 177. So of some cases which relate to the quality, and not the title, of the property. Andrews 1;. Kneeland, 6 Cowen, 354 ; The Monte AUegre, 9 Wheat. 648 ; 6 Hill, 338. But where a power to sell or con- vey is given in writing, and not aided, as here, by language conferring a- wide discretion ; it still must be construed as intending to confer all the usual means, or sanction the usual manner of performing what is intrusted to the, agent. 10 Wendell, 218 ; Howard v. Baillie, 2 H. Bl. 618 ; Story on Agency, p. 58 ; Daw- 76 AGENCY. [CH. VI. restricted, indorse it in the name of his employer, and bind him by that mdorsement ; for he may well be deemed as incidentally clothed with this authority, as a means to effectuate the discount.^ So an agent, employed to procure a bilFor note to be discounted for his principal, may, if it be necessary or proper to accom- plish the end, indorse the same in his own name, although not indorsed by his principal ; and in such a case he will be en- titled to be indemnified by his employer.^ [But an agent authorized to draw and indorse bills in the name of Ms prin- cipal, has no power to draw or indorse a bill in his own name, or in the joint name of himself and his principal.^] So, a servant, intrusted to sell a horse, is clothed by implication (unless expressly forbidden) to make a warranty on the sale.* son V. Lawly, 5 Esp. Ca. 65 ; Ekins v. Maelish, Ambler, 186 ; Salk. 283 ; Jefirey V. Bigelow, 13 Wendell, 521 ; 6 Cowen, 359. Nor is the power confined merely to ' usual modes and means,' but, whether the agency be special or general, the attorney may use appropriate modes and reasonable modes ; such are con- sidered within the scope of his authority. 6 Hill, 338 ; 2 Pick. 345 ; Bell on Com. L. 410; 2 Kent's Com. 618; Yanada v. Hopkins, 1 J. J. Marsh. 287; Sandford v. Handy, 23 Wendell, 268. We have already shown, that, under all the circumstances, a covenant of warranty here was not only usual, but appro- priate and reasonable." lEenn v. Harrison, 4 T. R. 177; Nickson w. Brohan, 10 Mod. 109; Hicks V. Hankin, 4 Esp. R. 116 ; Paley on Agency, by Lloyd, 209, 210, (3d edit.) ; Merchants' Bank v. Central Bank, 1 Kelly, 418. a Ex parte Robinson, 1 Buck, R. 113; Bayley on Bills, (5th edit.) ch. 2, § 7. 3 Stainback v. Read, 11 Grattan, 281. * Post, § 132. Fenn v. Harrison, 3 T. R. 757 ; Helyear v. Hawke, 5 Esp. R. 72 ; 3 Chitty, Comm. and Manuf. 200, 201 ; Alexander v. Gibson, 2 Camp. R. 555; Paley on Agency, by Lloyd, 209, 210, (3d edit); 1 Bell, Comm. 387, art. 412, (4th edit.) ; Id. p. 477 to 479, (5th edit.) ; Nelson v. Cowing, 6 Hill, 336 ; Hunter v. Jameson, 6 Iredell, 252 ; Woodford v. McClenahan, 4 Gilman, 85 ; Skinner v. Gunn, 9 Porter, 305 ; Braclford v. Bush, 10 Ala. 386 ; Cocke 0. Campbell, 13 Ala. 286 ; Franklin v. Ezell, 1 Sneed, 497. But see Seignor 8e Walmer's case, Godbolt's R. 360 ; Post, § 421, note. Whether a power to sell land includes an authority to convey it with covenants of general warranty, is a point, upon which there are contradictory decisions. In Vanada u. Hopkins, (1 J.' J. Marsh. R. 293,) the Court of Appeals of Kentucky held the affirmative. See also Peters v. Farnsworth, 15 Vermont, 155 ; Taggart v. Stanberry, 2 Mc- Lean, 543 ; Le Roy v. Beard, 8 How. 441. In Nixon v. Hyserott, (5 John. R. 58,) the Supreme Court of New York decided in the negative. The same CH. VI.] NATURE AND EXTENT OF AUTHORITY/ 77 [But this has been said to apply only to a servant of a pro- fessed horse dealer.^] So, an agent or broker, having power to sell goods without any express restriction as to the mode, may sell by sample or with warranty.^ § 60, And not only are the means necessary and proper for the accomplishment of the end included in the- authority, but also all the various means which are justified or allowed by the usages of trade.^ Thus, if an agent is authorized to sell goods, this will be construed to authorize the sale to be made upon credit, as well as for cash, if this course is justified by the usages of trade, and the credit is not beyond the usual period ; for it is presumed, that the principal intends to clothe his agent with the power of resorting to all the customary means to accomplish the sale, unless he expressly restricts him.* In other words, he is presumed to authorize him to sell in the usual manner, and only in the usual manner, in which goods or things of that sort are sold.® Court, in Gibson v. Colt, (7 John. R. 390,) held, that a power to sell does not include a power to warrant the title ; and that a master of a ship, authorized to sell the ship, had no authority to represent, that she was a registered ship. [This last case was overruled in 6 Hill, 336.] 1 See Coleman v. Riches, 29 Eng. Law and Eq. R. 326. 2 Andrews v. Kneeland, 6 Cowen, R. 354. But see Nixon v. Hyserott, 5 John. R. 58 ; Gibson v. Colt, 7 John. R. 390. 3 Ekins V. Macklish, Ambler, R. 184-186 ; Paley on Agency, by Lloyd, (3d edit.) 198, note; 1 Livermore on Agency, 103, 104, (edit. 1818); Post, § 77, 98, 101 to 106. . 4 Anon. 12 Mod. R. 514 ; Scott v. Surman, Willes, R. 407 ; Houghton v. Matthews, 8 Bos; & Pull. 489; Newsome v. Thornton, 6 East, 17; Paley on Agency, by Lloyd, 26, 198, 212-214, (3d edit); 2 Kent, Comm. Lect. 41, p. 622, 623, (4th edit.) ; McKinstry v. Pearsall, 3 John. R. 319 ; "Van Allen v Vanderpool, 6 John. R. 69 ; Goodenow v. Tyler, 7 Mass. R. 36 ; Clark v. Van Northwick, 1 Pick. 343 ; Laussatt v. Lippincott, 6 Serg. & R. R. 386 ; Gerbier V. Emery, 2 Wash. Cir. R.413 ; Post, § 108, 226 ; Greeley v. Bartlett, 1 Greenl. R. 172 ; Forrestier v. Boardman, 1 Story, R. 43. 5 Wiltshire v. Sims, 1 Camp. R. 258 ; James v. McCredie, 1 Bay, 294 ; Dela- field u; Illinois, 26 Wend. 223; Ives v. Davenport, 3 Hill, 374 ; 2 Kent, Comm. Lect. 41, p. 622, 623, (4th edit.) ; 3 Chitty on Comm. and Manuf. 205 ; Laussatt V. Lippincott, 6 Serg. & R. 386 ; Post, § 110; Fisk v. Offit, 15 Martin, R. 655 ; Reano v. Magee, 11 Martin, R. 637. 7* 78 AGENCY. . [CH. VI. § 61. The same doctrine is recognized in the civil law; for by that law agents might do whatsoever is comprehended within their letter of procuration and the intentions of the principal, deducible therefrom, and whatever naturally follows from the authority given to them, or is necessary for the execution of it.-^ And this, especially, was deemed to belong to a Procurator, having what was called a liberal administration. Procurator^ Gui generaliter libera administratio rerum commissa est, potest exigere, aliud pro alio permutare? Thus, an agent, appointed to demand personal property, might institute an action therefor. Ad rem mobilem petendam datus Procurator, ad exhibendam recte aget? Domat has expounded the true doctrine of the civil law in expressive, but at the same time, in exact terms, " If," says he, " the order or power given marks precisely, what is to be done, he, who accepts and executes it, ought to keep close to what is prescribed in it. And if the order or power be indefinite, he may set such bounds to it, or give to it such extent, as may reasonably be presumed to be agreeable to the intention of the person, who makes the order, or bestows the power ; whether it be with regard to the thing itself, which o be done, or the way of doing it."* Igitur comniodissime ilia forma in mandatis servanda est, ut quotiens certum man- datum sit, recedi a forma non debeat ; at quotiens incertwm vel plurium causarum, tunc licet aliis prcestationibus exsoluta sit causa mandati, quam quae ipso mandato inerant, si tameh hoc mandatori expedierit, mandati erit actio? § 62. On the other hand, language, however general in its form, when used in connection with a particular subject-matter, will be presumed (as we have already seen ®) to be used in sub- 1 Domat, B. 1, tit. 15, § 3, art, 10, by Strahan. 2 Dig. Lib. 3, tit. 3, 1. 58; Pothier, Pand. Lib. 3, tit. 3, n. 8. 3 Dig. Lib. 3, tit. 3, 1. 56, 57 ; Pothier, Pand. Lib. 3, tit. 3, n. 29. 4 1 Domat. B. 1, tit. 15, § 3, art. 3, by Strahan. s Dig. Lib. 17, tit. 1, 1. 46 ; Pothier, Pand. Lib. 17, tit. 1, n. 45. 8 Ante, § 21. CH. VI.] NATURE AND EXTENT OF AUTHORITY. 79 ordination to that matter ; and therefore it is to he construed and hmited accordingly. And it will make no difference in the construction, that this general language is found in very formal instruments, such as a letter of attorney. Thus, where a power of attorney authorized an agent " to ask, demand, and receive from the East India Company, or whom it should, or might concern, all money, that might become due to the principal, on any account whatsoever, and to transact all business," -^ and, on non-payment, to use all lawful means for the recovery, and, on payment, to give proper receipts and discharges, with power to appoint substitutes, and giving his (the principal's) full power and authority in the premises, with the usual clause of ratifica- tion ; it was held, that the words " to transact all business," did not authorize the agent to indorse an East India bill, re- ceived under the letter of attorney in the name of the princi- pal, and to procure a discount thereon, on such indorsement; for the words " all business " must be construed to be limited to all business necessary for the receipt of the money. § 63. So, a letter df attorney to receive from the Commis- . sioners of the Navy, or whom it may concern, all salary, wages, &c., and all other money due to the principal, with a general power to receive all demands from all other persons, to appoint substitutes, and to make due acquittances and discharges, has been held not to authorize the agent to negotiate any bills re- c^ved in payment, or to indorse them in his own name, even although there was evidence of a usage among agents of the like sort to negotiate such bills ; for the authority conferred did not include any such power of negotiation ; and parol evi- dence is not admissible to control or enlarge the language of a written instrument.^ 1 Hay V. Goldsmidt, cited 1 Taunt. R. 349, 350 ; Murray v. East India Co. 5 B. & Aid. 204, 210, 211 ; Esdaile v. La Nauze, 1 Y. & Coll. 394. 2 Hogg V. Snaith, 1 Taunt. 347 ; Murray v. East India Company, 5 Barn. & Aid. 204, 210, 211. See Ekins v. Macklish, Ambler, R. 184, 185. It is said by Mr. Lloyd, in his notes to Paley on Agency, (3d edit.) p. 198, that " the con- 80 AGENCY. [gH. VI. § 68 a. So, a letter of attorney empowering an agent to negotiate, compromise, adjust, determine, settle, and arrange all differences and disputes between the principal and all per- sons whatever, and to execute and sign in the name of the principal any release, covenant, or conveyance of any part of the principal's estate, and to give and receive discharges, receipts, &c., has been held not to authorize the agent to confess a judg- ment in the name of the principal.^ [So a letter of attorney authorizing an agent to " collect a debt," does not empower him to give a discharge upon receipt of the debtor's note.^] § 64. So, a letter of attorney given by an executrix, authoriz- ing an agent to receive all sums of money, due to the testator, or to her as executrix, to adjust all accounts and differences, to submit the same to arbitration, to execute assignments, receipts, and releases, to pay all debts due by her as executrix, in due course of law, and generally to do all acts for receiving debts, and discharging the powers given by the letter of attorney, with full power " to do and act touching and concerning all or any of the premises, as effectually to al> intents, constructions, and purposes whatsoever, as she as executrix could," has been . held not to authorize the agent to accept bills of exchange to charge her in her own right for debts of the testator.^ § 65. So, a power of attorney to secure, demand, and sue struction of a written instrument, whether mercantile or otjierwise, is for the court, and not for the jury. The court, however, may, where the constructlb'h is doubtful, receive evidence in aid of its judgment." Lord Hardwicke, in Ekins V. Maclish, Ambler K. "184, 185,) thought that the evidence of the custom among merchants was admissible, to explain a letter, at least, if itt!ould not be well otherwise understood, in courts of equity, even if not admissible in courts of law. See also Mechanics Bank v. Bank of Columbia, 5 Wheat, E. 326 ; Morrell v. Frith, 3 Mees. & Wels. 402 ; Neilson v. Harford, 8 Mees. & Wels. 806, 823 ; Kean v. Davis, Spencer, R. 426. 1 Lagow V. Patterson, 1 Blackford, 252. 2 Corning v. Strong, 1 Carter, 329 ; Kirk v. Hyatt, 2 Carter, 322 ; Ward u. Evans, 2 Ld. Eaym. 928; Sykes v. Giles, 5 Mees. & Wels. 645; Miller i;.Ed- monston, 8 Blackford, 291. 3 Gardner v. Baillie, 6 T. K. 591. But see Howards. Bailie, 2 H. Bl. 623, which seems contra. CH. VI.] NATURE AND EXTENT OF AUTHORITY, 81 for all sums of money then due, or thereafter to become due to the principal in certain countries, and to discharge and com- pound the same, to execute deeds of land then, or thereafter, owned by the principal, in a particular State, " and to accom- plish, at his discretion, a complete adjustment-of all the con- cerns of the principal, in the State of New York, and to do any and every act in his name, which he would do in person," has been held not to authorize the agent to give a promissory note in the name of the principal, upon the ground, that mak- ing an adjustment of his concerns did not include any incidental authority to give the note, for the authority notwithstanding these general words, was to be construed to be limited to the business referred to in the preceding clauses, and not include a general authority to adjust all the other concerns of the principal.^ § 66. So, a letter of attorney, given to certain persons, jointly and severally, to sue for and get in moneys and goods, to take proceedings and bring actions, to enforce payment of moneys due, to defend actions, settle accounts, submit disputes to arbitration, sign receipts for money, accept compositions, " in- dorse, negotiate, and discount, or acquit and discharge bills of exchange, promissory notes, or other negotiable securities, which were or should be payable to the principal, and should need and require his indorsement ; " to sell his ships, execute bills of sale, hire on freight, effect insurances, "buy, sell, barter, exchange, and import all goods, wares, and merchandise ; and to trade and deal in the same, in such manner as should be deemed most for his interest ; and generally to make, do, exe- cute, transact, perform, and accomplish all and singular such further, and other acts, deeds, matters, and things, as should be requisite, expedient, and advisable to be done in and about 1 Eossiter v. Kossiter, 8 Wend. E. 494. This case certainly stands upon very- nice principles of construction ; for giving the note might be the only effectual means of adjusting the principal's concerns if the power was applicable to all the principal's concerns in the State of New York, instead of being limited to the preceding special authorizations. 82 AGENCY. . [CH. VI. the premises, and all other his affairs and concerns, as he might or could do, if personally acting therein ; " has been held not to authorize the agent to accept a bill in the name of the prin- cipal ; especially if drawn in relation to concerns, in which he had a partnership interest only. The language of the instru- ment, although general, was thought rather to import a power to take for the defendant, than to bind him ; and the acts were to be done for the defendant singly. An express power was given to indorse, but none to accept bills ; so that if any in- ference was to be drawn from the omission, it was an inference against, and not in favor of, any intention to confer the latter. Such instruments do not give general powers, speaking at large; but only where they are necessary to carry the purposes of the special powers into effect.^ § 67. For the same reason, a power of attorney by a prin- cipal to another person " for him, and on his behalf, to pay and accept such bill or bills of exchange as should be drawn or charged on him by his agents or correspondents, as occasion should require; and generally to do, negotiate, and transact the affairs and business of him (the principal) during his ab- sence, as fully and effectually as if he were present and acting therein," has been held not to authorize the agent to accept bills drawn upon him upon account of a partnership, in which the principal was a partner ; but only to accept,bills drawn on him upon his individual account. The language of the instrument conferred an authority to accept bills for the principal, and on his behalf. No such power was requisite, as to partnership transactions ; for the other partners might bind the firm by their acceptance ; and therefore, the words of the instrument might well be confined to their obvious meaning, namely, an authority to accept in those cases, where it was right for the principal to accept in his individual capacity.^ 1 Atwood V. Munnings, 7 B. & Cre.sw. 278. 2 Atwood V. Munnings, 7 B. & Cresw. 278, 283, 284. The authority conferred CH. VI.] NATURE AND EXTENT OF AUTHORITY. 83 § 68. Indeed, formal instruments of this sort are ordinarily subjected to a strict interpretation, and the authority is never extended beyond that, which is given in terms, or which is necessary and proper for carrying the authority so given into full effect.^ Thus, a power of attorney to sell, assign, and transfer stock, will not include a power to pledge it for the agent's own debt.^ So, a power of attorney, given by a mill company to their agent to manufacture logs into lumber at their mills, and transport them to market, and sell and dispose thereof for the company's benefit, will not authorize the agent, without the knowledge of the directors of the company, to de- liver over the lumber at the company's mills in payment of securities given by the agent, on behalf of the company, in the course of his agency.® So a power to bargain and sell land will not include ^ authority [to mortgage the same,* nor] to « . by written instruments of Agency of this sort, is to be carefully distinguished from a class of cases closely resembling them, that is, powers of appointment created by deeds, or last wills. In this class of cases, courts of equity have in- dulged themselves in a very liberal interpretation of the words, and have held many executions of such powers valid, which would, perhaps, scarcely be allowed in the construction of letters of attorney. Thus, a power to appoint land has been held to include a power to charge it with a sum of money for the same objects as the appointment. Roberts v. Dixall, 2 Eq. Cas. Abridg. 668 ; Thwaytes v. Dye, 2 Vern. 80. So a power to charge has been held to authorize a sale, and appointing the money to the objects of the charge. Long v. Long, 5 Ves. 445 ; Kenworthy v. Bate, 6 Ves. 793. So a power to raise money out of an estate, has been held to authorize a sale thereof. Bateman v. Bateman, 1 Atk. 421 ; 2 Story Eq. Jurisp. § 1063, 1064. So a power to pay debts out of rents and profits, has been held to authorize a sale or mortgage of the estate. Bootle V. Blundell, 1 Meriv. 198, 232; 2 Story Eq. Jurisp. § 1064, 1064 a. In Williams v. Woodward, 2 Wend. R. 487, it was held that a power of attorney to sell an estate included a power to make a lease for life, which was a lesser estate. And the court greatly relied on cases arising under powers of appointment. It may,>however, deserve consideration, whether the analogy can be safely relied on. See HubSard v. Elmer, 7 Wend. R. 446. 1 Atwbod V. Munnings, 7 B. & Cresw. 278, 283, 284 ; Paley on Agency, by Lloyd, (3d edit.) 192; Ducarrey v. Gill, 1 Mood. &Malk. 450; Withington v. Herring, 5 Bing. R. 442 ; Wood v. Goodridge, 6 Gush. 117. 2 De Bouchout v. Goldsmid, 5 Ves. jr. 211 ; Post, § 78. 3 Lombard v. Winslow, 1 Kerr, (New Bruns.) Rep. 327. 4 Wood y. Goodridge, 6 Gush. 117. 84 AGENCY. [CH. VI. grant a license to the purchaser, previous to a conveyance, to enter and cut timber on the land, although done bond fide with a view to effect the sale.' § 69. In written instruments also of a less formal character, the like rule of interpretation generally prevails ; and they are never interpreted to authorize acts not obviously within the scope of the particular matter, to which they refer. Thus, where, upon the dissolution of a partnership, notice was pub- lished by the partners, that all demands upon the firm would be paid by a particular partner, " who is empowered to receive and discharge all debts due to the said copartnership ; it was held, that this did not authorize the partner, after the dissolu- tion, to indorse a bill of exchange in the name of the firm, al- though drawn by him in that name, and accepted by a debtor to the firm.^ So, the resident agent, of a mining company, who is appointed by the directors To manage the mine, has not in virtue of such an agency, an implied authority from the shareholders to borrow money upon their credit in order to pay the arrearages of wages due to the laborers, however urgent the necessity may be, in order to avoid a distress upon the materials of the mine therefor.^ [So also, the station-master 1 Hubbard & Elmer, 7 "Wend. R. 446. a Kilgour v. Finlyson, 1 li. Bl. 156 ; Paley on Agency, by Lloyd, 192. 3 Hawtayne ;;. Bourne, 7 Mees. & Wels. 595. Mr. Baron Parke, in deliver- ing his opinion on this case, said : " This is an action brought by the plaintiffs, who«arc bankers^ to recover from the defendant, as one of the proprietors of the Trewolvas Mine, (a mine carried on in the ordinary way,') the balance of a sum of £400, advanced by them to the agent appointed by the company of pro- prietors for the management of the mine.- Now, the extent of the authority con- ferred upon the agent by his appointment was this only, — that he should conduct and carry on the affairs of the mine in the usual manner. There is no proof of express authority to borrow money from bankers for that purpose, or that it was necessary in the ordinary course of the undertaking ; and certainly no such authority could be assumed. There are two grounds, on which it is said the de- fendant may be made responsible ; first, on that of a special authority o-iven to the agent to borrow money ; and, secondly, on the assumed principle, that every owner, who appoints an agent for the management of his property, must be taken to have given him authority to borrow money in cases of absolute neces- CH. VI.] NATURE AND EXTENT OF AUTHORITY. 85 and the other servants of a railway company cannot, without express authority, bind the company by contracts for surgical attendance upon injured passengers.^ And an agent who is specially authorized to obtain surgical aid for a passenger in- jured by the upsetting of a stage-coach, is not thereby em- powered to employ a physician to attend to one who acted as coachman without the knowledge of the company, and who was injured by the same accident.^] So, an agent, who is author- ized to draw and indorse notes, and to draw, indorse, and ac- cept bills of exchange, can act under such authority only to the extent of his principal's business, and is not authorized to draw, indorse, or accept them for the accpmmodation of [him- self^ or] mere strangers.* [So a general agent authorized to sity. There certainly was, in the present case, some evidence, from which a jury might have inferred that a power to borrow money, for the purposes of the mine, had been expressly given to the agent ; but that evidence does not appear to have been left to the jury, and therefore the verdict cannot be supported on the first ground. Then, as to the second ground, it appears that the learned Judge told the jury, that they might infer an authority in the agent, not only to conduct the general business of the mine, but also, in cases of necessity, to raise money for that purpose. I am not aware, that any authority is to be found in our law to support this proposition. No such power exists, except in the cases alluded to in the argument, of the master of a ship, and of the acceptor of a bill of exchange for the honor of the drawer. The latter derives its existence from the law of merchants ; and in the former case the law, which generally provides for ordinary events, and not for cases, which are of a rare occurrence, considers) how likely andfrequent are accidents at sea, when it may be necessary, in order to have the vessel repaired, or to provide the means of continuing the voyage, to pledge the credit of her owners ; and therefore it is, that the law invests the master with power to raise money, and, by an instrument of hypothecation, to pledge the ship itself if necessary. If that case be analogous to this, it follows, that the agent had power not only to borrow money, but in the event of security being required, to mortgage the mine itself. The authority of the master of a ship rests upon the peculiar character of his office, and affords no analogy to the case of an ordinary agent. I am therefore of opinion, that the agent of this mine had not the authority contended for." Mr. Baron Alderson used language equally expressive. 1 Cox V. Midland Counties Railway Co. 3 Welsby, Hurlstone, & Gordon, 268. 2 Shriver v. Stephens, 12 Penn. R. 258. 3 Stainback- 1). Bank of Virginia, 11 Grattan, 269. 4 Wallace v. Branch Bank of Mobile, 1 Alabama, K. 565, N. S. ; North River AGENCY. 8 86 AGENCY. [CH. VI, transact all the mercantile business of his principal, has not authority to bind his principal as surety on mercantile paper.-'] § 70. Principles very similar may be traced back to the Roman law ; for in that law, where the authority was express or special, the agent was bound to act within it ; and where it was of a more general nature, still the agent could not bind the principal beyond the manifest scope of the objects to be accomplished by it ; Igitur commodissime ilia forma in man- datis servanda est, ut quotiens cerium mandatum sit, recedi a forma non debeat? Dilig enter fines mandati custodiendi sunt; nam qui excessit, aliud quid facere videtur? Conditio autem prcepositionis servanda est.^ § 71 • The same principles were applied to the interpretation of words, conferring a general authority as to one thing, or as to many things. Thus, where a general authority of simple administration or management of the property of the principal was conferred upon an agent, it was held not to entitle the agent to alienate any property, except that, which was of a perishable nature ; Procurator totorum honorum, cui res ad- ministrandce mandates sunt, res domini neque mobiles vel im- mohiles, neque servus sine speciali domini mandatu alienare potest ,' nisi fructus aut alias res, quce facile corrumpi pos- sunt.^ So, where a person was appointed as an agent to super- intend a farm, he was held to possess no power to sell it, or the things belonging to it ; Procuratorem vel actorem prcedii, si non specialiter distrahendi mandatum accepit, jus rerum Bank v. Aymur, 3 Hill, N. Y. Rep. 2G2 ; Stainer v. Tysen, 3 Hill, N. Y. Eep. 279; Post, § 73. 1 Bank of Hamburg v. Johnson, 3 Rich. 42. 2 Dig. Lib. 17, tit. 1, 1. 46 ; 1 Domat, B. 1, tit. 15, § 1, art. 8. 3 Dig. Lib. 17, tit. 1, 1. 5 ; Pothier, Pand. Lib. 17, tit.1, n. 41 ; 1 Domat, B. 1, tit. 15, § 3, art. 3; Ante, § 43 ; Post, § 87, 88, 174. 4 Dig. Lib. 14, tit. 8, 1. 11, § 5 ; Ante, § 43. 5 Dig. Lib. 3, tit. 3, 1. 63 ; Pothier, Pand. Lib. 3, tit. 3, n. 4 ; 1 Domat, B. 1, tit. 15, § 3, art. 10, 11. CH. VI.] NATURE AND EXTENT OF AUTHORITY. 87 domini vendendi non habere, certum ac manifestum est} So, a general mandate was construed not to authorize a final settle- ment of an agreement by compromise ; Mandato generali non contineri etiam transactionem decidendi causa interposHam? Where, however, a liberal or absolute administration of the affairs of the principal was conferred generally on the agent, a more liberal rule of construction prevailed ; for in such cases he was authorized to collect and to pay debts, and to exchange one thing for another ; Procurator, cut generaliter libera ad- ministratio rerum commissa est, potest exigere ; aliud pro alio permufare. Bed et id quoque ei mandari videtur ut solvat cred- itoribus? The same doctrine is pithily expressed in the Scot- tish Law, by Lord Stair, who says : " Where in general man- dates some things are specially expressed, the generality is not extended to cases of greater importance than those expressed." * § 7^- Wherever an authority purports to be derived from a written instrument, or the agent expressly signs the contract, or other paper, introduced with the words " by procuration ; " as, if he signs " by procuration of A. B. (his principal) C. D. (the agent ") ; in such a case, the other party is bound to take notice, that there is a written instrument of procuration ; and he ought to call for and examine the instrument itself, to see, whether it justifies the act of the agent. For, under such circumstances, it is but a reasonable precaution and exercise of prudence, and he is put upon inquiry.^ And if, from his omission to call for or to examine the instrument, he should encounter a loss from the defective authority of the agent, it is properly attributable to his own fault, since he must know, that he has no other security 1 Cod. Lib. 2, tit. 13, 1. 16 ; Pothier, Pand. Lib. 3, tit. 3, n. 4. 2Dig. Lib. 3, tit. 3, t-60; Pothier, Pand. Lib. 3, tit. 3, n. 5 ; 1 Stair, Inst. B. 1 , tit. 12, § 12, by Brodle ; Ersk. Inst. B. 3, tit. 3, § 39 ; 1 Domat, B. 1, tit. 15, §3, art. 10, 11. 3 Dig. Lib. 3, tit. 3, 1. 58, 59 ; PothUr, Pand. Lib. 3, tit. 3, n. 8; 1 Stair, Inst. B. 1, tit. 12, § 15, by Brodie. 4 Stair, Instit. by Brodie, B. 1, tit. 12, § 15 ; Ersk. Instit. B. 3, tit. 3, § 39. 5 Towle V. Leavitt, 3 Foster, 360. 88 AGENCY. [CH. VI. than his reliance upon the good faith and credit of the agent.^ It has been said by a learned Judge, that the same principle 1 Atwood V. Munnings, 7 B. & Cresw. 278, 283-285 ; Withington v. Herring, 6 Bing. R. 442 ; Sohimmelpennich v. Bayard, 1 Peters, R. 264 ; Nixon v. Pal- mer, 4 Seld. 400 ; Stainer v. Tysen, 3 Hill, R. 279 ; North River Bank v. Aymar, 3 Hill, R. 262; Munn v. Commission Company, 15, John. R. 44 ; Andrews v. Kneeland, 6 Cowen, R. 354 ; Rossiter v. Rossiter, 8 Wend. R. 498, 499 ; Stain- back V. Bank of Virginia, 11 Grattan, 269 ; Beach v. Vandewater, 1 Sandford, Superior Ct. (N. Y.) R. 265. The true bearing and limitations of the doctrine stated in Atwood v. Munnings, 7 Barn. & Cresw. 278, were much discussed in North River Bank v. Aymar, 3 Hill, R. 262, 270, 271, where a letter of attorney authorized the attorney to draw and indorse notes in the name of the principal, and to manage and negotiate any business, &c. ; and the question was, whether persons taking such notes were bound not only to examine the procuration, but also .to ascertain whether the notes were drawn or indorsed in the business, and for the use of the principal or not. The Court held that they were not. Mr. Justice Cowen, upon that occasion, in delivering the opinion of the' Court, said : — " The only adjudged case cited on the argument for the defendants in error, giving color to the idea, that the appointee must look behind the power, is Atwood v. Munnings, 7 Barn. & Cress. 278. The power in that case was extremely limited, being tied up to the acceptance of bills particu- larly described. The words were : ' For me, and on my behalf, to pay and accept such bill or bills, &e., as shall be drawn, &c., on me by my agents or correspondents, as occasion shall require.' The bill there in question was drawn by Burleigh, a partner of the defendant, for the benefit of the joint concern ; and, as the Court held, he was neither a correspondent nor agent within the meaning of the power. There was indeed no need of giving eiFect to the bill by an acceptance under the power ; for Burleigh was authorized to bind the defendant as his partner. The Court held that, as the power described the persons whose names must appear upon the bill, the authority was overstepped if the names were not there. In other words, a power to accept a bill drawn by an agent, did not extend to a bill drawn by one who was not an agent. Here the power contains no such limitation. The case cited accords with one of the most familiar rules for the construction of powers, but it does not apply. If the principal will describe the particular condition on which a bill shall be accepted, however idle, even to the writing of it with a steel, pen, it must be fulfilled. There it was to be drawn by a correspondent or agent ; and not being so drawn, but by one who was a principal, the condition failed. The appointee was ad- monished to see at his peril, that all the prescribed requisites were combined. The principal would not trust the attorney, even to judge of the parties. There was another clause in the power, which, as Bayley, J., inclined to think, also amounted to a condition. The bills werdto be drawn as occasion sliould require. It was not necessary to say, that the plaintiff was bound on this clause to see the occasion did require ; and a majority of the Judges, who spoke to the question, (Holroyd and Littledale, Js.) did not say so. The two reporters did CH. VI.] NATURE AND EXTENT OF AUTHORITY. 89 prevails in the civil law ; for if a person is acting ex mafldaio, those dealing with him must look to his mandate.^ * not entirely agree. In 7 Barn. & Cress, both of the two latter Judges are made to discuss the question : in 1 Mann. & Ryl. Littledale, J., is represented as hav- ing given a naked assent to what Holroyd, J., said ; but in neither does it ap- pear that any but Bayley, J., considered the actual occasion of accepting as a condition. The report of his argument is substantially the same in both, though in Barn. & Cress, he seems to have thought it sufficient to have called for the letter of advice. Littledale, J., in Barn. & Cress, thought the words, as occasion sJiall require, did not vary the question ; and that the power should be read without them. This was conceding the ground taken by counsel, that the attorney had a discretionary power to judge of the occasion. I have looked into some authoritative books on agency to find how this case has been considered by learned writers who had studied the subject. It is introduced into the late edition of Paley on Agency, (p. 192,) by a simple statement of the case, with the opinion of Bayley, J. ; or rather, as illustrating the general remark, that all written powers are to receive a strict interpretation, the authority never being extended beyond that which is given in terms, or is absolutely necessary for carrying the authority into effect. Judge Story mentions the case several times in his work on Agency, (pp. 22, 65 to 67, 69,) but evidently considers it as hold- ing no more than that the appointee is bound to see the proper parties intro- duced. He issevidently of opinion, with Littledale, .1., that the words 'as occasion shall require,' were no more than what the nature of such a power would imply without them, namely, an authority in the agent to govern himself according to the emergencies of business. The necessity mentioned by Mr. Justice Bayley of calling for the letter of advice, was, I think, virtually denied by what Best, Ch. J., and the whole court afterwards held as to letters of in- struction in Withington v. Herring, 5 Bing. 442 ; 3 Moore & Payne, 30, S. C. Such letters are often confidential between the parties, and contain matters not ' fit to be divulged. He said, all that was necessary for the plaintifis to inquire for, was the authority. The case of Atwood v. Munnings was mentioned by Park, J., and he, like Judge Story, understood it, not as imposing the duty to inquire into the state of the principal's affairs, but only as to the character of the drawers. Indeed, there is hardly any rule better settled or of more uni- versal- application, than that the appointee need not inquire as to matters in their own nature private and confidential between the agent and principal. It may be doubted, says Mr. Justice Story, if upon this subject there is any solid distinction between a special authority to do a particular act, and a general authority to do all acts in a particular business. JEach includes the usual and appropriate means to accomplish the end. (Story on Agency, 70.) Is it among those means, that the appointee shall lose his money, because the attorney happens to betray the interests of his principal ? Would not such a rule rather 1 Per Lord Loughborough in De Bouchout v. Goldsmid, 5 Ves. 213* See also Schimmelpennich v. Bayard, 1 Peters, K. 264. 8* 90 AGENCY. [CH. VI. § JS. We are, however, in all such cases, carefully to dis- tinguish between the authority given to the agent, and the private instructions given to him, as to his mode of executing that authority.^ For, although where a written authority is known to exist, or is, by the very nature of the transaction, presupposed, it is the duty of persons dealing with the agent, to make inquiries as to the nature and extent of such authority, and to examine it ; yet no such duty exists to make inquiries, as be a means to make the power utterly unavailable ? No prudent man would advance bis money under such a responsibility. The rule supposes a degree of capacity to look into the affairs and even the private intentions of others, which no human being possesses." Mr. Ch. J. Nelson dissented, and gave the sub- stance of his views as follows : " It is insisted, the bank was not bound to in- quire further than to ascertain that the attorney was empowered to make and indorse notes for his principal. But the same instrument, which conferred this power also contained the special limitation, and it was therefore as material for them to bring the case within that, as within any other part of the authority. The one qualified the other, and both must be regarded in ascertaining the sum of the whole. Mr. Lloyd, in his valuable edition of Paley on Agency, (p. 192, 3d ed.) observes, that all written powers, such as letters of attorney, or letters of instruction, receive a strict interpretation ; the authority never being ex- tended beyond that, which is given in terms, or is absolutely necessary for carrying the authority so given into effect. He refers to Atwood v. Munnings, 7 Barn. & Cress. 278, which, in principle, is decisive in favor of the judgment of the Court below. There, the power was given to the wife of the defendant, ' for him and on his behalf to pay and accept such bill or bills of exchange as should be drawn or charged on him by his agents, &c., and generally to do, negotiate, and transact the affairs and business of him (Munnings) during his absence,' &c. She accepted four bills drawn by one of the partners of Mun- nings, the proceeds of which were applied in payment of partnership debts. Another bill was afterwards drawn in order to raise money to take up the former ones, which was accepted by Munnings' wife and discounted by the plamtiffs. The question was, whether the wife had authority to bind her hus- band by the acceptance. The Court of K. B. held that she had not; that as the bill was accepted by procuration, the party taking it should, in the exercise of a reasonable prudence and caution, have required the production of the power, when he would have seen, that it only gave authority to accept bills for the defendant and on his behalf; that no such power was requisite as to the partnership transactions, for the other partners might have bound him by their acceptance ; and that the words must be confined to their obvious meaning, namely, an authority to accept in those cases where it was right for him to ac- cept m his individual capacity.'' 1 See Johnson v. Jones, 4 Barbour, 369 ; Bryant v. Moore, 26 Maine, 84. CH. VI.] NATURE AND EXTENT OF AUTHORITY. 91 to any private letter of instructions from the principal to the agent ; for such instructions may well be presumed to be of a secret and confidential nature, and not intended to be divulged to third persons.^ In like manner, if the written authority apparently justifies the act, it is no objection that the agent has secretly applied his authority to other purposes than those for which it was given ; as if, having an authority to make notes in the principal's name in managing his business, the agent should make such notes for secret purposes of a different nature, which could not be known to other persons dealing with him.^ Indeed, it may well be doubted, whether, in these respects, there is any solid distinction between the case of a special authority to do a particular act, and a general authority to do all acts in a particular business.^ Each includes the usual and ap- propriate means to accomplish the end. In each case the agent is apparently clothed ^th full authority to use all such usual and appropriate means, unress upon the face of the instrument a more restrictive authority is given, or must be inferred to exist. In each case, therefore, as to third persons innocently dealing with his agent, the principal ought equally to be bound by the acts of the agent, executing such authority by any of those means, although he may have given to the agent separate, pri- vate, and secret instructions of a more limited nature, or the agent may be secretly acting in violation of his duty.^ 1 Withington v. Herring, 5 Bing. E. 442 ; Allen v. Ogden, 1 Wash. Cir. K. 174; Munn v. Commission Company, 15 John. R. 44; Gibson v. Colt, 7 John. K. 393 ; Andrews v. Kneeland, 6 Cowen, R. 354 ; North River Bank v. Aymar, 3 Hill, R. 262, 273; Ante, § 72, note ; Post, § 97, 98, 105, 127, note, 128, note, 129-133. But see Peters v. Ballestier, 3 Pick. 495, and especially what is said by Mr. Justice Putnam, in p. 602, 503 ; Longworth v. Conwell, 2 Blackf. Ind. E. 469 ; Tomlinson v. CoUett, 3 Blackf. Ind. R. 436 ; Walker v. Skipwith, Meigs, Tenn. R. 502. 2 Ibid ; Ante, § 69 ; North River Bank v. Aymar, 3 Hill, N. Y. R. 262, 270, 271 ; Ante, § 72, note. 3 Post, § 133, and note. 1 See Paley on Agency, by Lloyd, p. 2 ; Id. 189, 197, 199, 200 to 260 ; Hel- year v. Hawke, 5 Esp. E. 73 ; Eunquist v. Ditchell, 3 Esp. E. 64 ; Hicks v. 9^ AGENCY. [CH. VI. § 'Yi. There is another consideration, highly important to be borne in mind in the interpretation of written instruments, and Hankin, 4 Esp. R. 114; Fenn v. Harrison, 3 T. R. 757; S. C. 4 T. Rep. 177; Alexander v. Gibson, 2 Camp. R. 555 ; Whiteliead v. Tuckett, 15 East, R. 400. See also Pickering v. Busk, 15 East, R. 38, 43; Stainer v. Tysen, 3 Hill, R. 279; Munn v. Commission Company, 15 John. R. 44 ; Perkins u. Washington Insur. Company, 4 Cowen, R. 659; Andrews v. Kneeland, 6 Cowen, R. 354; Reals V. Allen, 18 John. H. 363 ; North River Bank v. Aymar, 3 Hill, R. 262; Rossiter v. Rossiter, 8 Wend. R. 498, 499 ; Ante, § 72, note; 1 Bell, Comm.B. 3, Pt. 1, ch. 4, § 412 ; Id. p. 478 to 480, (5th edit.) The case, intended to be put in the text, is that of an authority distinct, and not derived, from the in- structions, for if the original authority is restricted and qualified, the restrictions and qualifications constitute a part of the power itself, and govern its extent. Thus, if the owner of a horse should give a written authority to another person, in general terms, to sell the horse ; and this paper should be communicated to the buyer, as proof of the authority to sell ; and the seller should have given separate, private, written, or verbal directions to the agent not to sell, except at a particular price, and the buyer should ignorantly buy at a less price, the question would then arise, whether the sale was_%lid. In such a case, the authority to sell would be unlimited upon the paper, and yet it would be limited by the instructions. In such a case, who ought to sufi'er, the buyer or the seller, by the wrongful act of the agent ? In the case of a general agent, it is agreed, on all sides, that private instructions will not vary the right jof the agent to bind the principal in dealings with third persons, ignorant of those instructions. In what respect does a general auttority to do an act differ from a general author- ity to do all acts relative to a particular business or employment, in regard to this point? See Paley on Agency, by Lloyd, (3d edit.) p. 198 to 211 ; 2 Kent, Comm. Lect. 41, p. 620, 621, 622, (4th edit.) Lord Ellenborough, in Pickering V. Busk, 15 East, 38, 43, said: "It cannot fairly be questioned in this case but that Swallow had an implied authority to sell. Strangers can only look to the acts of the parties, and to the external indicia of property, and not to the pri- vate communications which may pass between a principal and his broker; and if a person authorize another to assume the apparent right of disposing of property in the ordinary course of trade, it must be presumed that the apparent authority is the real authority. I cannot subscribe to the doctrine, that a broker's engagements are necessarily and in all cases limited to his actual author- ity, the reality of which is afterwards to be tried by the fact. It is clear that he may bind his principal within the limits of the authority, with which he has been apparently clothed by the principal in respect of the subject-matter ; and there would be no safety in mercantile transactions if he could not If the principal send his commodity to a place, where it is the ordinary business of the person, to whom it is confided, to sell, it must be intended that the com- modity was sent thither for the purpose of sale. If the owner of a horse send It to a repository for sale, can it be implied that he sent it thither for any other a. VI.] NATURE AND EXTENT OF AUTHORITY. 93 especially of those of a commercial nature, such as letters of instruction, or orders ; and that is, that, if the instrument is not expressed in plain and unequivocal terms, free from ambi- guity ; but the language is fairly susceptible of different inter- pretations, and the agent, in fact, is misled, and adopts and fol- lows one, when the principal intended the other; there, the principal will be bound, and the agent will be exonerated. For, in such a case, the agent has acted in good faith, and within the supposed limits of his authority ; and if one of two in- nocent parties must suffer, he ought to suffer in preference, who has misled the confidence of the other into any unwary act.^ In cases of doubt, the general rule is, that the words are to be construed most strongly against the writer; Veria fortius accipiuntur contra Proferentem? There is no doubt, for ex- ample, that in letters of instructions of a commercial nature, a wish, expressed by the consignor of goods to his agent or factor, may, under particular circumstances, amount to a positive com- mand ; ^ especially where the agent or factor has not any inter- est, and has not made any advances or incurred any liabilities touching the same ; for in the latter cases different considera- tions may arise. But ordinarily the mere expression of wishes will not amount to positive command, unless such is the fair purpose than that of sale ? Or if one sends goods to an auction-room, can it be supposed that he sent them thither merely for safe custody ? Where the com- modity is sent in such a way and to such a place as to exhibit an apparent purpose of sale, the principal -will be bound, and the purchaser safe." Post, § 94. See what is said by Lord Kenyon, in Fenn r. Harrison, 3 T. R. 760 ; and by Bayley, J., in Pickering u. Busk, 15 East, 45, 46 ; Schimmelpennich v. Bayard, 1 Peters, K. 264. See also Whitehead v. Tuckett, 15 East, R. 400 ; Smith u. East India Co. 16 Simons, R. 76. Post, § 126, 127, 130, 131, 133. 1 See Loraine v. Cartwright, 3 Wash. Cir. R. 151 ; Dodge v. D'Wolf, MSS. Cir. Ct. in Mass. 1833; Coucier v. Ritter, 4 Wash. Cir. R. 551 ; 1 Liverm. on Agency, 403, 404, (edit. 1818) ; De Tastet v. Crousillat, 2 Wash. Cir. R. 132;- Post, § 82, 199. 2 Ibid. ; Blackett v. Royal Exc. Ins. Co. 2 Cromp. & Jerv. 244 ; Branch's Maxims, 232. See Burrell v. Jones, 3 B. & Aid. 47. 3 Brown V. M'Gran, 14 Peters, R. 480 ; Marfield v. Douglas, 1 Sandford, Superior Ct. R. (N. Y.) 360 ; Wilson v. Wilson, 26 Penn. St. R. 393. 94. AGENCY. [CH. VI. and reasonable interpretation of the language in the connection in which it stands to the context.^ [Where a principal wrote 1 Ibid. This subject was much considered in Brown v. M'Gran, 14 Peters, R. 480, where the Court said : " Here again the point is open, whether the lan- guage (of a letter) imports, that the defendants construed the wishes of the plaintiff to be simply a strong expression of desire or opinion, or a positive order; and also, whether the words 'noted accordingly' import that the de- fendants took notice thereof, or took notice of and assented to obey, the wishes or order of the plaintiff. The language is susceptible of either interpretation, according to circumstances. If the case had been one of simple consignment, without any interest in the consignee, or any advance or liability incurred on account thereof, the wishes might fairly be presumed to be orders ; and the noting the wishes, accordingly, an assent to follow them. But very different considerations might apply where the consignment should be, as the present is, one clothed with a special interest and a special property, founded upon ad- vances and liabilities. We think, therefore, that this objection is not, under the circumstances of the case, maintainable. It would be quite another question, whether the Court might not, in its discretion, have assumed upon itself the right and duty of construing these letters. There is no novelty in this doctrine. It will be found recognized ia Ekins v. Macklish, Ambler Rep. 184, 185 ; Lucas w. Groning, 7 Taunt. Kep. 164, and Rees v. Warwick, 2 Barn. & Aid. 113, 115. But the main objection to the instruction is of a more broad and comprehensive character. The instruction in effect decides, that, in the case of a general con- signment of goods to a factor for sale, in the exercise of his own discretion, as to the time and manner of sale, the consignor has a right, by subsequent orders, to suspend or postpone the sale at his pleasure ; notwithstanding the factor has, in consideration of such general consignment, already made advances, or in- curred liabilities for the consignor, at his request, trusting to the fund for his due reimbursement. We are of opinion, that this doctrine is not maintainable in point of law. We understand the true doctrine on this subject to be this. Wherever a consignment is made to a factor for sale, the consignor has a right, generally to control the sale thereof, according to his own pleasure, from time to time, if no advances have been made or liabilities incurred on account thereof; and the factor is bound to obey his orders. This arises from the ordinary re- lation of principal and agent. If, however, the factor makes advances, or in- curs liabilities on account of the consignment, by which he acquires a special property therein ; then the factor has a right to sell so much of the consignment as may be necessary to reimburse such advances or meet such liabilities ; unless there is some existing agreement between himself and the consignor, which con- trols or varies this right. Thus, for example, if contemporaneous with the con- signment and advances or liabilities, there are orders given by the consignor, which are assented to by the factor, that the goods shall not be sold until a fixed time, in such a case, the consignment is presumed to be received by the factor subject to such orders ; and he is not at liberty to sell the goods to reimburse his advances or liabilities, until after that time has elapsed. The same rule will CH. VI.] NATURE AND EXTENT OF AUTHORITY. 95 to his factor, giving his views of the probable supply of the article consigned, and stating facts which indicated a short supply, and in conclusion said : " I have thought it best for you to take my pork out of the market for the present, as thirty days will make an important change in the value of the article ; " it was held that the letter constituted instructions to withhold the property from sale until the receipt of further direc- tions.'] § 7'5- In other respects, commercial instruments, such as orders and letters of instruction, are generally construed with great liberality, and free from technical rules, for the satisfactory reason, that they are generally drawn in a loose and inartificial manner, and are designed to subserve the common purposes of apply to orders not to sell below a fixed piice ; unless, indeed, tie consignor shall, after due notice and request, refuse to provide any other means to reim- burse the factor. And in no ease will the factor be at liberty to sell the consignment contrary to the orders of the consignor, although he has made advances, or incurred liabilities thereon ; if the consignor stands ready, and offers to reimburse and discharge such advances and liabilities. On the other hand, where the consignment is made generally without any specific orders as to the time or mode of sale, and the factor makes advances or incurs liabilities on the footing of such consignment, there the legal presumption is, that the factor is intende3 to be clothed with the ordinary rights of factors to sell in the exercise of a sound discretion, at such time and in such mode as the usage of trade and his general duty require ; and to reimburse himself for his advances and liabilities, out of the proceeds of the sale ; and the consignor has no right, by any subsequent orders, given after advances have been made or liabilities incurred by the factor, to suspend or control this right of sale, except- so far as respects the surplus of the consignment, not necessary for the reim- bursement of such advances or liabilities. Of course, this right of the factor to sell to reimburse himself for his advances and liabilities, applies' with stronger force to cases, where the consignor is insolvent, and where, therefore, the con- signment constitutes the only fund for idemnity." [The case of Brown v. M'Grann, and the rights of factors, were much considered by the Superior Court of the city of New York in Marfield v. Douglas, 1 Sandford, Sup. Ct. R. 360. See also Parker v. Brancker, 22 Pick. E. 40 ; Blot v. Boiceau, 1 Sandford, Sup. Ct. K. Ill ; 3 Comst. 78; Frothingham v. Everton, 12 New Hamp. 239. Buta recent English case, after considering Brown v. M'Gran, decides that the factor has no 'right to sell the goods contrary to the order of his principal, though the latter has neglected, on request, to repay the advances ; Smart v. Sandars, 5 Manning, Granger & Scott, R. 895.] 1 Marfield v. Douglas, 1 Sandford Sup. Ct. R. (N. Y.) R. 860 ; 3 Comst. 70. 96 AGENCY. [CH. VI. life and business, and leave much to be gathered from the usages of trade, and the practice of particular employments.'' Still, however, where, upon the whole, the true sense in which the language is used is plain, neither party will be allowed to escape from this sense, by showing that another possible inter- pretation, of a different character, may be given to it, either more broad or more restricted. Thus, for example, where an agent was ordered to sell stock, " should they (the funds) be at eighty-five per cent., or above that price," it was held, that the agent was bound to sell, when the funds reached eighty- five per cent. ; and that he had not a general authority to act for his employer, so that he might defer selling till the funds should reach a higher price than eighty-fi^^ per cent. He not having sold the stock, when it had arrived at that price, was ac- cordingly held accountable for that price.^ What is the true in- terpretation of mercantile phrases in such instructions or orders, is not always a question of law, but may, in many cases, be properly left to a jury to decide, where the phrases admit of different meanings. Thus, for example, it has been left to the jury to say, whether the words in a letter, referring to a bill of exchange enclosed " when duly honored," meant, in connection with the other language, duly accepted, or duly paid.^ § 76. We have already seen, that, where the agency is created and conferred by a written instrument, the nature and extent of the authority must be ascertained from the instrument itself, and cannot be enlarged by parol evidence of the usage of other agents in like cases, or of an intention to confer ad- ditional powers ; for that would be to contradict, or to vary the terms of the written instrument.* In connection with this 1 Post, § 82. 2 Bertram v. Godfray, 1 Knapp, E. 381. 3 Lucas V. Groning, 7 Taunt. 164 ; Mackbeath v. Haldimand, 1 T. Kep. 172 ; Ante, § 63, note, § 74, note ; Morrell v. Frith, 3 Mees. & Welsh. 402. 4 Ante, § 62; Hogg v. Snaith, 1 Taunt. E. 347, 352 ; Paley on Agency, by Lloyd, 179, n. (5), (3d edit.) ; Id. 198, and note ; Murray v. East India Com- pany, 5 Barn. & Aid. 204, 210, 211. / CH. VI.] NATURE AND EXTENT OF AUTHORITY, 97 doctrine, it is often stated, that an implied authority cannot, in general, take place, where there is an express authority , in writing ; -^ for the maxim is, Expressum facit cessare tac" itnm. But we must take care that the doctrine, in each of these instances, is understood with the qualifications and lim-r itations properly helonging to it ; for, otherwise, one may be greatly misled in its just application, as we shall immediately see. § 77- 111 the first place, the usages of a particular trade or business, or of a particular class of agents, are properly ad- missible, not indeed, for the purpose of enlarging the powers of the agents employed therein, but for the purpose of inter- preting those powers which are actually given ; for the means ordinarily used to execute the authority are included in the power, and may be resorted to "by all agents, and especially by commercial agents.^ An ag-ent to sell, (as we have seen, J may, if the usages of trade, or if the particular busi- ness authorize it, sell on credit, not exceeding the usual credit.^ But, without such usage, an authority to sell would be con- strued to be limited to a sale for money. Upon the same ground, an authority to buy goods will, or will not, authorize a purchase on the credit of the principal, and the giving of a negotiable security for the purchase-money, according as there exists, or does not exist, a usage to justify it. [For an authority to purchase for cash does not, of itself, give any authority to buy on credit.* And it is well settled that a special agent, or an agent employed to make purchases for his principal, has no authority, in the absence of any general usage 1 Ibid. 2 Ante, § 60, 73 ; Post, § 96, 180. 3 Ante, § 59; 2 Kent, Comm. Lect. 41, p. fe22, 623, (4th edit.) ; Paley on Agency, by Lloyd, p. 26, (3d. edit.) ; Id. 212, 198, and note; Meobanics Bank V. Bank of Columbia, 5 Wheat. R. 326 ; 1 Bell, Comm. p. 386-388, art. 410, 411, 412, (4th edit.) ; Id. p. 477, 478, 482, (5th edit.) ; 2 Kent, Com. Leot. 41, p. 622, 623, (4th edit.) 4 Stoddard v. McIIwain, 7 Rich. 525. AGENCY. 9 98 AGENCY, [CH. Vr, permitting it, to bind his principal by a negotiable promissory note, or bill of exchange,^ in payment for such ^oods as he was authorized to buy.J § 78. We may further illustrate these principles by a ftw cases. An authority to an agent to sell goods, does not author- ize him to exchange them in barter,^ or to pledge them ; [nor to rescind the sale and adjust a claim for breach of a warranty,^ for, there is no usage of trade to that extent.* An authority to 1 Taber v. Cannon, 8 Met. 458 ; Webber v. Williams College, 23 Pick. 302 ; Savage v. Kix, 9 K. H. R. 263 ; Paige v. Stone, 10 Met. 160; Denison v. Tyson, 17 Verm. 549. In Gould r. Norfolk Lead Co. 9 Cush. R. 343, Shaw, C. J., said : " The instruction of the Court, that the payment of a draft not accepted included its acceptance, and was evidence of an authority to accept drafts upon the company, was, in our opinion, incorrect in point of law. The acceptance of a draft is an executory undertaking to pay it at a future day, and the author- ity to make such an agreement is not incident even to the authority of an agent to purchase and pay for goods. The authority to accept is one' of a very high character, particularly in the case of a trading corporation, to whose business credit, and the use of that credit, is constantly necessary. It has been argued, that such authority may be inferred from the course of trade, and the payment of unaccepted drafts upon the company, on other occasions. But this implica- tion does not follow from such payments ; for, either the agent had funds of the company for the purpose of paying such drafts ; which does not imply that he had authority to pledge their credit ; or he paid them from his own funds, rely- ing on the credit of the company, and their previous undertaking and liability to reimburse him for all' his advances, which implies no authority whatever to bind them to a future payment of money, by an acceptance. I shall not go into an examination of the cases on this subject, but will refer to that of Webber v. Williams CoUege, 23 Pick. 302, where the question was much considered, and many cases were cited. The case of Emerson v. The Providence Hat Manuf. Co. 12 Mass. 237, goes to the point that, constituting one a buying and selling agent of a trading company does not imply authority in him to give the negotiable note of the company." 2 Guerreiro v. Peile, 3 B. & Aid. 616 ; Paley on Agency, by Lloyd, 213. 3 Bradford v. Bush, 10 Ala. 386. 4Paterson v. Tash, 2 Str. 1178; Newsome v. Thornton, 6 East, R. 17; Martini v. Coles, 1 M. & Selw. 140, 146 ; Urquhart v. Mclver, 4 John. R. 103; Laussatt v. Lippincott, 6 Serg. & R. 386 ; Shipley v. Kymer, 1 M. & Solw. 484; Paley on Agency, by Lloyd, (3d edit.), 213 to 222. The doctrine, as to the want of authority of a factor -to pledge the goods of his principal, is now well settled, although it has been greatly doubted at diflFerent times. See Paterson V. Tash, 2 Str. 1178 ; Daubigny v. Duval, 6 T. R. 604 ; Pickering v. Busk, 15 CH. VI.] ^ NATURE AND EXTENT OF AUTHORITY. 99 sell stock does not authorize a sale on credit, as sales of stock are always for ready money.^ An authority to sell and trans- fer stock for the principal does not authorize the agent to trans- fer it by way of security for his own private debt ; for it is not an ordinary exercise of such an authority.^ [An authority to sell at retail does not authorize a clerk to sell by wholesale in payment of a debt due from the principal.'] An authority to adjust and collect an unliquidated demand, does not authorize the agent to pledge the money when received, or a note taken for the amount.* § 79. In the next place, although, in general, the maxim is true, that where an express power is conferred by writing, it cannot be enlarged by parol ^evidence ; ® yet the maxim is applicable only to cases, where the whole authority grows solely out of the writing ; and the parol evidence applies to the same subject-matter at the same point of time, and there- fore, in effect, seeks to contradict, or vary, or control, the effect of the writing. When the parol evidence seeks to establish a subsequent enlargement of the original authority, or to give an authority for another object, or where the express power is en- grafted on an existing agency, affecting it only sub modo, to a limited extent, the maxim loses its force and application,® East 38, 44 ; Martini v. Coles, 1 M. & Selw. 140, 146 ; Duclos v. Ryland, cited 6 Moore, R. 518, n. ; De Bouchout v. Goldsmid, 5 Ves. 211 ; Kinder v. Shaw, 2 Mass. R. 398 ; Urquhart v. Mclver, 4 John. R. 103 ; Ante, § 68. It is, perhaps, somewhat difficult, upon principle, to sustain it, as the factor is always enabled to hold himself out to the world as owner. See also Story on Bailm. § 325, 326, 455; Pickering v. Busk, 15 East, 38, 43, 44; Laussatt v. Lippiucott, 6 Serg. & R. 386 '; Paley on Agency, by Lloyd, (3d ed.), 220, 221, u. (3). Bat of this more will be said hereafter. Post, § 92. 1 Wiltshire V. Sims, 1 Camp. R. 258 ; State of Illinois v. Delafield, 8 Paige, R. 527, 540. 2 De Bouchout v. Goldsmid, 5 Ves. 211. See Parsons v. Webb, 8 Greenl. Rl 38 ; Post, § 92. 3 Hampton v. Matthews, 2 Harris, 105 ; Lee v. Tinges, 7 Md. R. 235. 4 Jones u. Farley, 6 Greenl. R. 226 ; Hays v. Linn, 7 Watts, R. 520 ; Post, § 99. 5 Paley on Agency, by Lloyd, 179, n. ; Id. 198, n. fi See Williams' u. Cochran, 7 Richardson, 45. 100 AGENCY. [CH. VI. § 80. Thus, for example, if an agent should be authorized in writing to purchase certain goods at a fixed price ; there could be no question, that evidence of a subsequent verbal authority to purchase other goods at a different price, or the same goods at a different price, vs^ould be admissible to establish the right of the agent ; for in no just sense would it contra- dict, or vary, or control the legal construction or effect of the original authority of the agent. It would be superinduced upon it, as a distinct and new authority. So, where an agency is of a general nature, and particular written instructions are given, applicable to certain things belonging to that agency, such instructions are understood in no manner to control the general agency, except in those very particulars. Thus, the master of a ship retains, by implication, all the general author- ity belonging to his station, notwithstanding any written instructions for the voyage; for these control his impHed authority only fro tanto, to the extent which they are intended to reach. § 81. In the next place, although there is a written author- ity, under which an agent is transacting business fbr and on the credit of his principal, and therefore persons dealing with him, and knowing that he is acting under such viritten authority, are bound to know the extent of his authority, and to inquire into its limitations ; yet if the principal, by his declarations or conduct to such persons, has authorized the opinion, that he had in fact given more extensive powers to his agent than were conferred, the principal will be bound by the acts of such agent, in their negotiations with such persons, to the extent of the authority which such declarations and conduct have fairly led them to believe to exist.^ So, if an agent is appointed, and receives written orders limiting his authority, but, at the same time; he is referred by those orders to the verbal communica- tions of another general agent of the principal, who declares, Schimmelpennich v. Bayard, 1 Peters, K. 264. CH. VI.] NATURE AND EXTENT OP AUTHORITY. ibi that he has authority to control and vary these written orders, and the agent acts in . ohedience to new orders given by the general agent, he will be fully justified in his deviation from the original orders.^ And parol evidence would certainly be admissible, for the purpose of establishing such declarations and new orders of the general agent.^ § 82. In the next place, it may be laid down as a general rule, that where an express authority is conferred by informal instruments, such as letters of advice, or instructions, or loosely drawn orders, especially where they are general in^ their terms, or confer a general authority, they are construed with more liberality than more formal and deliberate instruments.® This rule is adopted for the convenience of merchants ; and, indeed, seems indispensable to general confidence and security, in the ordinary operations of commerce and navigation and trade.* The JRoman Law inculcated an equally comprehensive doctrine. Ideo per nuncium, quoque vel per epistolam, mandaium suscipi potest.^ Si quis alicui scripserit, ut debitorem suum liberet, seque earn pecuniam, quam is dehuerit, soluturum, mandati actione tenetur.^ Item, sive rogo, sive volo, sive mando, sive alio quocunque verho scripserit, mandati actio est? § 83. Subject to these reasonable qualifications and restric- tions, the doctrine is unquestionably true, that an express written authority cannot be enlarged by parol evidence, or an authority be implied, where there exists an express one. The authority, too, is construed, as to its nature and extent, accord- ing to the force of the terms used, and the objects to be accom- plished. If the authority is special, it is construed to include 1 Manella v. Barry, 3 Cranch, R. 415 ; Ante, § 68, 72, 73. 2 Ibid. 3 Ante, § 74, 75, 180. 4 1 Bell, Comm. B. 3, Ft. 1, ch. 4, § 4, art. 409, 410, p. 386, (4th edit.) ; Ante, § 74, 75. 5 Pothier, Pand. Lib. 17, tit. 1, n. 19 ; Dig. Lib. 17, tit. 1, 1. 1, § 1. 6 Pothier, Pand. Lib. 17, tit. 1, n. 19 ; Dig. Lib. 17, tit. 1, 1. 27, Introd. 7 Pothier, Pand. Lib. 17, tit. 1, n. 19 ; Dig. Lib. 17, tit. 1, 1. 1, § 2. 9 * 102 AGENCY. [CH. VI. only the usual means appropriate to the end. If the authority is general, it is still construed to be limited to the usual means to accomplish the end. Even if a general discretion is vested in the agent, it is not deemed to be unlimited. But it must be exercised in a reasonable manner, and cannot be resorted to in order to justify acts, which the principal could not be pre- sumed to intend ; ^ or which would defeat, and not promote, the apparent end or purpose, for which the power was given. § 84. Hitherto we have principally referred to cases of agency created by written instruments. But by far the most numerous cases of agency arise, not from formal or informal written instruments, but from verbal authorizations, or from implications, from the particular business or employment of the principal or agent, or from the usual dealings between them, or from the general usages of trade and commerce.^ 1 2 Kent, Comm. Lect. 41, p. G17, 618, (4th edit.); Id. 620, 621 ; 1 Domat, B. 1, tit- 15, § 3, art. 3, 10, 11 ; Maokbeath v. Haldimaud, 1 T. R. 172, 182. 2 2 Kent, Coram. Lect. 41, 613-615, (4th edit.) ; 1 Liverm. on Agency, § 3, p. 36, 37, (edit. 1818); Paley on Agency, by Lloyd, (3d edit.) p. 198 ; 1 Bell, Comm.B. 3, Pt. l,ch. 4, § 4, art. 410, (4th edit.) Mr. Bell, in his Commentaries on Commercial Law, (1 Bell, Comm.B. 3, Pt. 1, ch. 4, § 4, art. 410, p. 386, (6th edit); Id. p. 478, (5th edit.); has introduced some very appropriate remarks. "The power of a factor, or agent, or broker," (says he) "is conferred, either, Jirst, in writing ; formally, by power of attorney, or more loosely, in correspond- ence ; or, secondly, by parol agreement ; or, thirdly, by mere employmeijt. If the powers are special, they form the limits of the authority ; if general, they will be more liberally construed, according to the necessities of the occasion, and the material, or ordinary, or reasonable course of the transaction. "(1.) In the management of the affairs of a foreign merchant, especially where there iS occasion to discharge debts and receive money, or to carry on judicial proceedings, a power of attorney is the proper evidence of authority. It empowers the factor to represent the principal, and act as he might have done if present. " (2) But agents, or factors, or brokers, are generally appointed in mercan- tile affairs by letter. So, a confidential clerk is authorized to accept or indorse bills by a letter addressed to him, expressed in the simplest terms, and without either technical words or the solemnities of a formal deed. So, in the course of correspondence, goods are consigned from abroad, with directions to the con- signee to sell them, and either to apply the proceeds in a particular way, or to place them to account ; or, merchants or manufacturers, with an accumulation of CH. VI.] NATURE AND EXTENT OF AUTHORITY. 108 § 85. In all such cases, whether the agency be of a special nature, or of a general nature, it may also be laid down as a universal principle, that it includes, unless the inference is ex- pressly excluded by other circumstances, all the usual modes and means of accomplishing the objects and ends of the agency.^ And even a deviation by the agent from the appropriate course, will not vitiate his act, if it be immaterial or circumstantial only, and does not, in substance, exceed his right and duty.^ Indeed, a literal adherence to the common course of business may sometimes, under peculiar circumstances, defeat the very objects of the agency ; and new and unexpected emergencies and necessities of such a critical nature may arise, as, if one may use the expression, will expand the. authority beyond its ordinary limits, and justify even a deviation from its ordinary limitations and import.^ goods on hand, place them with another, (ex. gr. a general agent or another merchant,) who agrees to manage the sales, and to advance a certain proportion to be reimbursed out of the sales ; or one is desired to buy goods for another, and either intrusted with credit or money for that purpose, or left to make the purchases as he can, on his own or the principal's general credit ; or goods are sent to the warehouse of a general agent, with particular directions as to their disposal, or to be sold at the ordinary rate of the market. . " (3.), In the course of mercantile dealings, goods are placed with general agents, or sent to public warehouses, and the power of disposal intrusted to bro- kers ; and so an agency to this effect is constituted without writing of any kind. Many great merchants, in London and elsewhere, have neither goods nor ware- houses in their possession ; but, intrusting all their goods to brokers and agents, confine their own attention to the great lines of commercial intercourse. " (4.) Mercantile agents have authority frequently conferred on them by mere implication. This generally is grounded on the sanction given by the employer to credit raised by a person acting in his name. Such is the power implied from giving sanction to the acts of a procurator ; as where a clerk accepts or indorses bills for his master, which that master pays as legitimately accepted, or^llows to be as well transferred, as if indorsed by himself." 1 Ante, § 57, 59, 60, 73, 74, 76, 77; 1 Domat, B. 1, tit. 15, § 3, art. 3; M. tit. 16, § 3, art. 1 ; Paley on Agency^ by Lloyd, (3d edit.) 209, 210 ; Dawson v. Lawley, 4 Esp. R. 65, 66. 2 Comm. Dig. Attorney, C. 15; Parker v. Imley, 15 Wend. K. 431 ; Post, 118, 141,201. 3 2 Kent, Comm. Lect. 41, p. 614, (4th edit.) ; Judson v. Sturges, 5 Day, K. 104 AGENCY. [CH. VI. § 86. Whenever the authority given to an agent is to trans- act business for the principal in a foreign country, or in another State, it must, in the absence of all counter proofs, he pre- sumed to include the authority to transact it in the forms, and by the instruments, and according to the laws of the place, where it is to be done.^ And each party, under such circum- stances, is bound to know what such forms and instruments ' are, and what acts are required by those laws. For it would be unreasonable to presume, that the principal authorized the end, and refused the lawful means ; or that he intended to violate the laws, or to mislead his agent in relation to his . 2 powers. § 87. In cases of agency, arising by implication and pre^ sumption from any of the circumstances already alluded to, the nature and extent of the authority conferred upon the agent is to be ascertained and limited in the same manner, and by the same considerations, which govern in the exposition of an ex- press authority conferred in general terms. If the agency arises by implication from numerous acts done by the agent, with the tacit consent or acquiescence of the principal, it is deemed to be limited to acts of the like nature.® If it arises from the general habits of dealing between the particular par ties, it is deemed to be limited to dealings of the same kind, and governed by the same habits. If it arises from the em- ployment of the agent in a particular business, it is, in like manner, deemed to be limited to that particular business.* 556, 560; 3 Chitty on Comm. & Manuf. 218; Post, § 118, 141, 193, 237; Liotard u. Graves, 3 Cain. K. 226; Lawler v. Keaquick, 1 John. Cas. 174; Drummond v. Wood, 2 Caines, K. 310 ; Forrestier v. Bordman, 1 Story, K. 43. 1 Owings V. I-IuU, 9 Peters, R. 607 ; Story on Conflict of Laws, § 260, 262, 286, 318. 2 Owings V. Hull, 9 Peters, K. 607. 3 See Paley on Agency, by Lloyd, 198, 199, 201 to 209 ; 1 Domat, B. 1, tit. 16, § 3, art. 1 ; 2 Kent, Comm. Leot. 41, p. 622, 623, (4th edit.) . 4 1 Domat, B. 1, tit. 16, § 3, art. 1, 2 ; Odiorne v. Maxcy, 13 Mass. R. 178 ; Salem Bank v. Gloucester Bank, 17 Mass. R. 1. CH. VI.] NATURE AND EXTENT OF AUTHORITY. 105 And the authority must be implied from facts, which have "occurred in the course of such employment, and not from mere argument, as to the utility and propriety of the agent's pos- sessing it.' If it arises from an authority to do a. single or par- ticular act, the agency is limited to the appropriate means to accomplish that very act and the required end, and the implied agency stops there.^ In short, an implied agency is never con- strued to extend beyond the obvious purposes for which it is apparently created.^ The intention of the parties, deduced from the nature and circumstances of the particular case, con- stitutes the true ground of every exposition of the extent of the authority ; and when that intention cannot be clearly dis- cerned, the agency ceases to be recognized, or implied. Ohli- gatio mandati consensu contrahentium consistit^ And hence the proper corollary of the Roman law : Diligenter fines man- dati custodiendi sunt ; nam qui excessit, aliud quid facer e videtur.^ § 88. Indeed the Roman law fully recognized the same doctrine, as to the nature and extent of limitations of an im- plied agency. Thus, in the case of a common shopman, or other person clothed with the institorial power ,^ the party could not bind his principal, except within the limits of that power. Non tamen omne, quod cum Institore geritur, oUigat eum, qui prceposuit ; sed ita, si ejus rei gratia, cui propositus fuerit, contractum est, id est, duntaxat ad id, ad quod eum prceposuit? 1 Hawtayne v. Bourne, 7 Mees. & Wels. 595. 2 Ante, § 55, 56, 71, 77, 78, 83, 85 ; 1 Liverm. on Agency, 36 to 40, (edit. 1818) ; Id. 94 ; Patey on Agency, by Lloyd, 161, 162, (3d edit.) ; 3 Chitty on Comm. and Manuf. 196 ; Smith on Mer. Law, p. 110, (3d edit.) 1843. 3 See Johnson v. Wingate, 29 Maine, 404 ; Jones v. Warner, 11 Conn. 41 ; Wjishington Bank v. Lewis, 22 Pick. 24. 4 Dig. Lib. 17, tit. 1, 1. 1 ; 1 Domat, B. 1, tit. 15, § 1, art. 5 ; Id. B. 1, tit. 16, § 3, art. 1, 2 ; ante, § 47. 5 Dig. Lib. 17, tit. 1, 1. 5 ; ante, § 43, 70 ; Kerns v. Piper, 4 Watts, K. 222. 6 See ante, § 8, Dig. Lib. 14, tit. 3, 1. 3, 18. 1 Dig. Lib. 14, tit. 3, 1. 5, § 11. 106 AGENCY. [CH. VI, Proinde, si prceposui ad mercium distractionem, tenebor nomine ejus ex empto actione. Item, si forte ad emendum eum prcepo- suero, tenehor duntaxat ex vendito. Bed rieque, si ad emen- dum, et ille vendiderit, neque, si ad vendendim, et ille emerit, debelit teneri} So, that we here see it laid down jn positive terms, that an agent, employed to buy, has no implied author- ity to sell ; and an agent, employed to sell, has no implied authority to buy. § 89. A few examples, besides those which have been already incidentally introduced, may serve further to illustrate these principles and deductions. And, first, of an authority resulting from the tacit consent or acquiescence of the prin- cipal. Where a man stands by knowingly, and suffers another person to do acts in his own name, without any oppo- sition or objection, he is presumed to have given an authority to do those acts.^ Semper, qui non prohitet pro se inter" venire, mandare creditur? Si passus sim, aliquem pro me fidejuhere, vel alias intervenire, mandati teneor.^ Thus, if a shopman is allowed, with the knowledge and acquiescence of his master, to sell goods which are on sale in the shop, the master is presumed to have given him the requisite authority for that purpose. But such an exercise of the authority to sell will not, per se, justify the shopman in. buying goods for his master ; for (as we have seen) an authority to buy cannot properly be inferred from an authority to sell.^ They are acts distinct in their nature, and not dependent upon, or incidents of each other. But if the shopman has been accustomed to 1 Dig. Lib. 14, tit. 3, 1. 5, § 12 ; ante, § 43, 70, 87 ; 1 Dom'at, B. 1, tit. 16, § 3, art. 2. 2 1 Story on Eq. Jurisp. § 385-392. 3 Dig. Lib. 50, tit. 17, 1. 60 ; Lib. 17, tit. 1, 1. 18 ; ante, § 56 ; 2 Kent, Comm. Lect. 41, (4th edit.) p. 614-616; 1 Bell, Comm. 486, art, 410, (4th edit); Id. p. 478-480, (5th edit.) ; 1 Story on Equity Jurisp. § 385-390. 1 Dig. Lib. 17, tit. 1, 1. 6, § 2 ; Id. 1. 53 ; ante, § 56 ; 1 Liverm. on Agency 37, (edit. 1818.) 5 Ante, § 88 ; Post, § 255, 258. CH. VI.] NATURE AND EXTENT OF AUTHORITY. 107 buy as well as to sell, then the presumption of a full authority equally applies to both.^ 8 90. The case above supposed is that of a general authority to sell, or to buy, arising from the knowledge and acquiescence of the principal. But the same doctrine will govern in the case, where the act is a single one, if the acquiescence of the priticipal, with a full knowledge of the facts, is established.^ Thus, if a person should, in the presence of the principal, sell a parcel of goods of the latter, without objection, as his agent, the tacit consent of the principal to the sale will be presumed, and it will bind him.^ [So, if an agent applies a note belong- ing to his principal to satisfy a debt of the principal, the latter is presumed to have ratified the act, unless he disaffirm it with- in a reasonable time after it comes to his knowledge.*] 8 91» Indeed, the doctrine of Courts of Equity goes further ; for it is clearly established, that if the true owner of property stands by, and knowingly suffers a stranger to sell the same in his own name, as his own property, without objection, the sale will be valid against the true owner.^ For, under such cir- cumstances, his silence and concealment of his title are treated as equivalent to an affirmation, that he has no adverse "title to the property ; and it would be a gross fraud upon the pur- chaser, to allow the' true owner thus to delude him into a pur- chase, and afterwards to defeat the supposed rights acquired under it.® The same rule will apply to the case, where a per- son knowing the fact, that a deed conveys his own interest in 1 See 2 Kent, Comm. Lect. 41, (4th edit.) p. 614-616, 622 ; 1 Liverm. on Agency, p. 36-40, (edit. 1818); Paley on Agency, by Lloyd, 167, 168, (3d edit.) ; Pothier on Oblig. n. 454-456 ; 1 Domat, B. 1, tit. 16, § 3, art. 1-3 ; Dig. Lib. 14, tit. 3, 1. 5, § 11, 12. 2 1 Liverm. on Agency, 38 40, (edit. 1818.) 3Heane_u. Rogers, 9 B. & Cress w. 577, 586; Graves v. Key, 3 Barn. & Adolph. 318, note (a) ; Pickard v. Sears, 6 Adolph. & Ellis, R. 469, 474. * Brigham v. Peters, 1 Gray, 139. 5 1 Story on Eq. Jurisp. § 385 to .395. 6 Ibid. 108 AGENCY. [CH. VI. a particular estate, voluntarily subscribes the same deed, as a witness of the due execution thereof by the person who under- takes to convey it.-* Courts of law, also, as far as they may, in regard to personal property, where no technical formalities are necessary to a transfer, now act upon the same enlightened principles of justice. Thus, where a man, without objection, suffered his own goods to be sold by an officer at public auction, to satisfy an execution against a third person, in whose posses- sion they were at the time, it was held in favor of the purchaser at the sale, that his conduct might well authorize the conclu- sion, that he had assented to the sale, or had ceased to be owner.^ § 92. The same rules apply to cases, where a clerk accepts or indorses bills or notes for his master, which the master after- wards pays, as legitimately accepted or indorsed ; •for his acquiescence, under such circumstances, will be treated as equivalent to an affirmance of the authority of the clerk to do such acts.^ But a clerk, so intrusted to accept or indorse bills or notes, would not thereby possess an authority to purchase, or to sell goods for his principal.* [So, an ordinary clerk in a • Teasdale v. Teasdale, Sel. Cas. in Ch. 59 ; 1 Fonbl. Eq. B. 1, ch. 3, § 4, note (in.) 2 Piokard V. Sears, 6 Adolpli. & Ellis, 469, 474. On this occasion Lord Denman said : " The rule of law is clear, that where one, by his words or eon- duct, wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his previous position, the former is concluded from averring against the latter a different state of things, as existing at the same time ; and the plaintiff, in this case, might have parted with his interest in the property, by verbal gift or sale, without any of those formalities, that throw technical obstacles in the way of legal evidence. And we think his conduct, in standing by and giving a kind of sanction to the pro- ceedings under the execution, was a fact of such a nature, that the opinion of the jury ought, in conformity to Heane v. Rogers, 9 Barn. & Cressw. 586, and Graves v. Key, 3 Barn. & Adolph. 318, note, to have been taken, whether he had not, in point of fact, ceased to be the owner." 3 Ante, § 55, 78, 87 ; Post, § 104 ; Johnson «.' Jones, 4 Barbour, 369. 4 See 1 BeU, Comm. 386, 387, art. 410, .(4th edit.) ; Id. p. 478 to 482, (5th edit.) ; 3 Chitty on Comm. & Manuf. 196, 197 ; ante, § 87. CH. VI.] NATURE AND EXTENT OF AUTHORITY. 109 store, has no authority, as such, to borrow money, or draw bills and notes in the name of his principal.^ So, payments made to an agent will be good or not, according to his pre- sumed authority, arising from the course of his business. If he is usually intrusted to receive payments ^nd give receipts therefor, the principal will be bound. But if his employment has been limited to other acts, he will hot be bound.^ ^ 93- So, if a person should authorize another to assume the apparent ownership, or right of disposing of property, in the ordinary course of trade, it will be presumed that the ap- parent authority is the real authority. For, in such a case, strangers can look only to the acts of the parties, and to the external indicia of property, and ought not to be . aflfected by any mere private communications, which pass between the principal and the agent.^ § 94'. In like manner, an implied authority may be deduced from the nature and circumstances of the particular act done by the principal. If the principal sends his commodity to a place, where it is the ordinary business of the person, to whom it is confided, to sell, it will be intended, that the commodity is sent thither for the purpose of sale. Thus, if the owner of a horse should send it to a repository of sale, it would be im- plied, that he sent it thither for the purpose of sale. So, if the owner should send goods to an auction room, it would be presumed, that he sent them thither for sale. For, in each of these cases, it could not be supposed, that any other purpose could be intended, such as safe custody, or mere deposit. And, therefore, it may be laid down as a general rule, that when a commodity is sent in such a way, and to such a place. 1 Kerns u.Piper, 4 Watts, 222. See also, Hampton v. Matthews, 2 Harris, 105. 2 Paley on Agency, by Lloyd, 274 to 290. 3 Pickering v. Busk, 15 East, K. 38, 43; Dyer v. Pearson, 3 B. & Cresw. 38, 42; Paley on Agency, by Lloyd, 167, 168, 280 to 286, (3d edit.) ; Morris r. Cleasby, 4 M. & Selw. 566 ; Blackburn v. Scholes, 2 Campb. 343 ; 2 Kent, Conun. Lect. 41, p. 620, 621, (4th edit.) AGENCY. 10 110 AGENCY. [CH. VI. as to exhibit an apparent purpose of sale, the principal will be bound, and the purchaser will be safe, although the agent may have acted wrongfully, and against his orders or duty, if the purchaser has no knowledge thereof.^ § 95. In like manner, the tacit consent or acquiescence of the principal may be deduced from the usual habits of dealing between parties.^ Thus, if an agent has been in the habit of dealing for his principal, by buying and selling goods on his account on credit, and full knowledge thereof is brought home to the principal, and no objection is made ; the principal is understood by his silence to assent to such purchases and sales on credit, although the usages of trade, or the general course of the business, would not justify such a mode of purchase or sale on credit. For the parties are at liberty to dispense with such usages of trade or business at their pleasure ; and the habits of dealing between them afford a full and satisfactory exposition of their intention to dispense with the general rule.^ § 96. In like manner, (as we have already seen,)* the known usages of trade and business often become the true ex- ponents of the nature and extent of an implied authority ; for, in all cases, where such usages exist, and an agency is to be exercised touching such matters, the natural presumption, in the absence of all' countervailing proofs, is, that the agency is to be conducted in the manner, and according to the practices, which are allowed and justified by sucli usages.^ Thus, for example, where a stockbroker is authorized to sell, and does 1 Pickering v. Busk, 15 East, R. 38, 43 ; 2 Kent, Comm. Leet. 41, p. 621, (4th edit.) ; ante, § 73, note. 2 Post, § 260. 3 2 Kent, Comm. Lect. 41, p. 614-616, (4th edit.) ; 3 Chitty on Comm. and Manuf. 196; Paley on Agency, by Lloyd, 161, 162, (3d edit.); Id. 198. See Eagle Bank v. Smith, 5 Conn. 71. 4 Ante, § 60, 73, 77. 5 Paley on Agency, by Lloyd, 4, 5, 9, 45, 204, 205, 209, (3d edit.) ; 1 Bell, Comm. 388, art. 412, (4th edit.) ; Id. p. 478 to 482, (5th edit.) ; ante, § 60, 73, 77; post, §110. CH. VI.] NATURE AND EXTENT OF AUTHORITY. Ill sell stock, and it turns out, for want of a proper stamp, to be unmarketable ; and, in such cases, the usage is for the broker to take it back, and repay the purchase-money ; the broker is warranted in so doing ; and if he has, in the meantime, paid over the money to his employer, he may recover it back from him.^ So, a stockbroker, who has made a contract on behalf of his principal, which the latter cannot complete, is authorized to pay the money necessary and proper to make good the diflfer- ence, and to meet the loss paid on account of his principal, when that is in accordance with the rules established at the Exchange, although these rules may not be known to the prin- cipal.^ Indeed, so true is this doctrine, that, under ordinary circumstances, a deviation from such usages will, if a loss should occur therefrom, exclusively fall upon the agent, even though he acted with an anxious desire to promote the inter- ests of his principal thereby.^ And, on the other hand, if the agent conducts his business according to such usages, he will be exonerated from all responsibility, even if it could be shown, that, by a deviation from them, he might have acted more beneficially for his principal.* § 97- lii the next place, as to the incidents, which are im- plied by law from the direct or principal authority. We have already had occasion to state, that every such authority carries with it, or includes in it, as an incident, all the powers, which are necessary, or proper, or usual, as means to effectuate the purposes, for which it was created.^ In this respect, there is 1 Young V. Cole, 3 Bing. N. Cas. 724. 2 Sutton V. Tatham, 10 Adolph. & Ell. 27. 3 Paley on Agency, by Lloyd, 3, 4, 5, 9, 10, 46, 47 ; Russell v. Hankey, 6 T. K. 12 ; Belchier v. Parsons, Ambler, E. 219, 220 ; CaflFrey v. Darby, 6 Ves. 496 ; Massey v. Banner, 1 Ja'c. & Walk. 241, 248, 249 ; 3 Chitty on Coram, and Manuf. 197, 199. * Moore v. Mourgue, Cowp. R. 480 ; Smith v. Cologan, 2 T. R. 188, note (a) ; Russell V. Hankey, 6 T. R. 12 ; Belchier v. Parsons, Ambler, R. 219, 220 ; "War- wick V. Noakea, Peake, R. 68; Paley on Agency, by Lloyd, 9, 10,, 21, (3d edit. ; Id. 45-47; 2 Kent. Comm. Lect. 41, p. 622 to 624, (4th edit.) 5 Ante, § 58-60, 73, 85 to 88. 112 AGENCY. [CH. VI. no distinction, whether the authority given to an agent is gen- eral or special, or whether it is express or implied. In each case it embraces the appropriate means to accomplish the desired end.^ Thus, (as we have seen,) where an agent is employed to procure a negotiable bill or note, belonging to his principal, to be discounted, he may, unless specially restricted, indoi'se it in the name of the principal, and bind him by the indorsement.^ So, an order to send goods to the principal from a foreign country, implies a power to ship them gener- ally, so as to bind both the principal and the goods for the freight.^ § 98. In some cases, the nature and extent of the incidental authority turn upon very nice considerations, either of actual usage, or of implications of law. Thus, an agent, employed to make, or negotiate, or conclude a contract, is not, as of course, to be treated as having an incidental authority to re- ceive payments, which may become due under such contract.* An agent, authorized to take a bond, is not to be deemed, as of course, entitled to receive payment of the money due under that bond.^ But, if he is intrusted with the continued posses- sion of that bond, an implication of such authority may be 1 1 Bell, Comm. 387, art. 412, (4tli edit.) ; Id. p. 478 to 482, (5th edit.) ; ante, § 58 ; Howard v. Baillie, 2 H. Bl. 618 ; Paley on Agency, by Lloyd, 189, (3d edit.) ; 3 Chitty on Comm. and Manuf. 198-200; 1 Domat, B. 1, tit. 15, § 3, art. 10 ; Id. B. 1, tit. 16, § 3, art. 1, 2 ; Damon v. Inbab. of Granby, 2 Pick. 345 ; ante, § 58-60, 73, 85 to 88. a Ante, § 59 ; Fenn v. Harrison, 3 T. K. 757; S. C. 4 T. R. 177 ; 1 Bell, Comm. 387, art. 412, (4th edit.); Id. p. 478 to 482, (5th edit.); Paley on Agency, by Lloyd, 197, 198, (3d edit.) 3 1 Bell, Comm. 387, art. 412, (4th edit.); Id. p. 478 to 482, (5 th edit.) ; Molloy de Jure Marit. B. 3, ch. 8, § 9 ; Paley on Agency, by Lloyd, 241. 4 Paley on Agency, by Lloyd, 274-276 ; 3 Chitty on Comm. and Manuf. 207, 208 ; Whitlock v. Waltham, 1 Salk. 157 ; Peck v. Harriot, 6 Serg. and K. 149 ; Wostenholm D. Davies, 2 Freem. R. 289; Henn v. Conisby, 1 Ch. Caa. 93; Gerard v. Baker, 1 Ch. Cas. 94, note ; Duchess of Cleveland v. Dashwood, 2 Eq. Abridg. 709. WiUiams v. Walker, 2 Sandford, Ch. R. 225. 5 See The River Clyde Trustees v. Duncan, 25 Eng. Law & Eq. R. 19. CH. VI.] NATURE AND EXTENT OF AUTHORITY. 113 deduced from that fact, in connection with the other.' So, an agent, authorized to receive payment, has not an unlimited authority to receive it in any mode which he may choose ; hut he is ordinarily deemed intrusted with the power to receive it in money only.^ So, an agent, intrusted to receive payment of a negotiable or other instrument, is ordinarily deemed entitled to receive it only, when and after, it becomes due, and not be- fore it becomes due.^ But if there be a known usage of trade, or course of business in a particular employment or habit of dealing between the parties, extending the ordinary reach of the authority, that may well be held to give full validity to the act.* § 99. Upon similar grounds, an agent employed to receive payment, is not, unless . some special authority beyond the ordinary reach is given to him, clothed with authority to com- mute the debt for another thing ; or to compound the debt ; or to release it upon a composition ; ^ [or to receive the debtor's note for it,^] or to pledge a note received for the debt, or the money when received ;'' or to submit the debt or demand to. 1 Paley on Agency, by Lloyd, 274-276 ; 3 Chitty on Comm. and Manuf. 207, 208 ; WJiitlock v. Waltham, 1 Salk. 157 ; Peck v. Harriot, 6 Serg. and R. 149 ; Wostenholm v. Davies, 2 Freem. E. 289 ; Henn v. Conisby, 1 Ch. Cas. 93 ; Gerard v. Baker, 1 Ch. Cas. 94, note ; Ducbess of Cleveland-^. Dasbwood, 2 Eq. Abridg. 709 ; Williams v. Walker, 2 Sandford, Ch. R. 225. See also as to negotiable securities, Mathews v. Haydon, 2 Esp. 510. 2 Paley on Agency, by Lloyd, 278-280, 290, 291 ; Smith on Merc. Law, B. 1, ch. 5, § 4, p. 124, 125, (3d edit. 1843) ; Favenc v. Bennet, 11 East, R. 38 ; Blackburn v. Scholes, 2 Camp. 343 ; Todd v. Reid, 4 B. & Aid. 210 ; Russell v. Bangley, 4 B. & Aid. 395 ; Bartlett v. Pentland, 10 B. & Cresw. 760; Scott v. , Irving, 1 B. & Adolph. 605 ; Barker v. Greenwood, 2 Y. & Coll. R. 415 ; post, §181, 215,413,429, 430. 3 See Paley on Agency, by Lloyd, 284, 290 ; Campbell v. Hassell, 1 Stark. R. 233 I Parnther v. Gaitskell, 13 East, 437, per Bayley, J. * Ibid. ; Paley on Agency, by Lloyd, 290, 291 ; 3 Chitty on Comm. and Manuf. 207, 208. 5 Paley on Agency, by Lloyd, 290-292 ; 3 Chitty on Comm. and Manuf. 207-209. 6 McCullock V. McKee, 4 Harris, 289. '' Hays V. Lynn, 7 Watts, R. 524 ; Jones v. Farley, 6 Greenl. R. 226 ; ante, § 78 ; post, § 113, and note. 10* 114. AGENCY. ,[CH. VI. arbitration ; ^ unless, indeed, the particular employment of the agent, or the general usage of business, or the habits of deal- ing between the parties, should raise a presumption the other way. The same principles seem to have been fully recognized and acted on in the civil law.^ § 100. Incidental powers are generally deduced either from the nature and objects of the particular act or agency, or from the particular business, employment, or character of the agent himself. In some cases, the deduction is, in the absence of all contrary proofs, a mere inference of law ; in others it is a mere matter of fact, or an inference of fact ; in others, again, it is a mixed question of law and fact.^ It may not be without use to give a few additional illustrations of these suggestions, al- though a thorough review of all the cases would necessarily occupy a disproportionate space in the present Commentaries. § 101. And, first, as to the incidental powers by inference or intendment of law.* A bailiff of a manor (it is said) may make leases at Avill without any special authority ; although he cannot make leases for years. The reason commonly assigned for this distinction is, that the appropriate business of such a bailiff is only to collect rents, gather fines, look after forfeitures, and to do other acts of a like nature, for the lord. But he hath no estate or interest in the manor itself; and, therefore, he cannot contract for any certain interest thereout ; but he must have a special power for that purpose. But he may make leases at will without any special authority; because being appointed to collect and answer the rents of the manor to his lord, if he could not make leases at will, the lord might sustain great prejudice in case of his own absence, sickness, or 1 Caldwell on Arbitrations, 14, 15, 152, 153 ; Paley on Agency, by Lloyd, 191'; Id. 291 11. (e); Goodson v. Brooke, 4 Camp. K. 163. And see Scarborough u. Reynolds, 12 Ala. 252. 2 1 Domat, B. 1, tit. 15, § 8, art. 11 ; Dig. Lib. 3, tit. 3, 1. 60 ; ante, § 70. 3 3 Chitty on Comm. and Manuf. 198-201 ; ante, 58-60, 83. ' * See Howard v. Bailie, 2 H. Bl. 618. CH. VI.] NATURE AND EXTENT OF AUTHORITY. 115 other incapacity to make leases, when any of the former leases were expired. And such leases at will are for the benefit of the lord, and can be no ways prejudicial to him ; because he may determine his will, when he may think fit.^ But the bailiff of an estate has no implied authority to pledge the credit of his principal by drawing or indorsing bills of exchange, although he is the party, through whose hands all receipts and payments respecting the estate take place.^ § 10,2. Upon a similar ground of incidental authority by operation of law, an authority to buy or sell goods includes the authority to execute the proper vouchers therefor ; an authority " to do the needful," in respect to the fwlfilment of an award, carries the incidental power to prepare a release, if required by the award ; ^ an authority to superintend the building of a meeting-house, to procure an architect, and to borrow money, if necessary, includes an authority to make the necessary con- tracts for the building of the meeting-house ; * an authority to sell a horse includes [it has been thought *] a power to warrant him ; ® a power to sell goods includes a power to warrant them ; '' a power to buy a thing, without any statement at what 1 Bac. Abridg. Leases and Terms for Years, I. 8 ; Paley on Agency, by Lloyd, 189, 190. See Cro. Jac. 177, 178. It may deserve consideration, whether this doctrine is applicable to the modern cases of a lease at will, when construed to be a lease from year to year, or to any leases, except those, which are strictly leases at will. In Kolle's Abridgment, title Bailiffe, 1. 25, it is laid down, that a bailiff of a manor may make a lease of a piscary for years, for which he cites 3 H. 4, 12 b. But although the point arose in that case, it does not seem to have been decided by the Court, for the cause went off upon another issue. See Brook, Abridg. Baillie, pi. 40, 41. 8 Davidson v. Stanley, 2 Mann. & Grang. 721 ; ante, § 58, 59. 3 Dawson v. Lawley, 4 Esp. R. 66 ; ante, § 58-60, 83. 4 Damon v. Inhab. of Granby, 2 Pick. 345. 5 But see Scott v. McGrath, 7 Barbour, 53 ; Upton u. Suffolk County Mills, 12 or 13 Cush. not yet published ; Bryant v. Moore, 26 Maine, 84 ; Lipscomb v. Kitrell, 11 Humph. 256. 6 Ibid.; ante, § 58, 59 ; Bradford v. Bush, 10 Aid. 386 ; Helyear v. Hawke, 5 Esp. R. 73-75; 2 Kent, Comm. Leot, 41, p. 617, 618, 621, (4th edit.) ; 3 Chitty on Comm. and Manuf. -198-201. ' Andrews v. Kneeland, 6 Cowen, R. 354. 116 AGENCV. [CH. VI. price, includes the power to buy at any price ; ^ [and if the agent be not furnished with funds, to buy on credit,^] a power to deliver seisin of lands includes the power to enter upon a lessee of the land, in order to make the livery; ^ a power to sell goods includes a power to receive payment on the sale ; * [but a simple power to sell does not authorize a sale at auction,^] , a power to recover and receive a debt includes the power to sue for the debt, and upon payment to make a proper release or discharge of the debtor.® § 103. Upon grounds nearly similar, it has been held, that an agent to insure, has an incidental authority to abandon the property insured to the underwriters, in the case of a total loss.^ So, an agent to insure has, if the policy remains in his hands, 1 Dig. Lib. 17, tit. 1, 1. 3, § 1. 2 Sprague v. Gillett, 9 Met. 91. 3 1 Liverm. on Agency, 105, lOG, (edit. 1818) ; Co. Litt. 52 b. 4 Capel V. Thornton, 3 Carr. & Payne, 352. Teek v. Harriot, 6 S. & R. 146. But see Mynn v. Joliffe, 1 Mood. & Bob. 326, cited post, § 108, note. 5 Towle V. Leavitt, 3 Foster, 360. 6 Ante, § 58-60 ; 1 Donmt, B. 1, tit. 15, § 3, art. 10; Paley on Agency, by Lloyd, 290, 291 ; Com. Dig. Attorney, C. 15, citing Palmer, R. 394 ; 1 Liverm. on Agency, 105, 106, (edit. 1818.) The civil law (as we have seen) adopted the same doctrine. Ad rem mobilem petendam datus Procurator, ad exhiben- dum recto aget. Dig. Lib. 3, tit. 3, 1. 56. Mr. Chitty (3 Chitty on Comm. and Manuf. 210) has laid it down as a general proposition, that, where an agent has any beneficial interest in the performance of the contract for commissions, &o., he may bring an action on the contract in his own name, though the principal may also sue in the same case. And he illustrates his remark by stating the case of a factor, a broker, an auctioneer, a policy broker, whose name is on the policy, and a ship-master for freight ; in all which cases, he says, the agent may sue in his own name. The case of a broker, unless he is also a factor, or named in the contract, does not justify his position. And it is far from being generally true, that an agent, who has an interest in the contract for his commissrons, may therefore sue. He can sue only, when, in contemplation of law, he as well as his principal, is a party to the contract. Thus, if a factor should seU goods, and take a negotiable note in the name of the principal for the amount of the sales, he could not sue on the note so given' in his own name, notwithstanding his commissions for the sale were included in the note. Ante, § 98 101 • post 391 to 404, 422, 450. ' ' ' f > 1 Chesapeake lusur. Co. v. Stark, 6 Cranch, 268, 272 ; 1 Emerig. Assur. ch. 5, §4, p. 141, 142; ante, §58. CH. VI.3 NATURE AND EXTENT OF AUTHORITY. 117 an incidental authority to receive payment of losses thereon.^ So, an agent, employed to subscribe a policy for the principal, has an implied authority to adjust the loss upon the same policy ; and to receive payment in money ; but not to receive payment in any other manner.^ So, an agent authorized to buy a cargo for his principal, if no other means or funds are provided, has an incidental authority to give notes, or draw and negotiate bills on his principal for the amount,^ § 108 a. In like manner, wherever a payment, if made by or to an agent, would be a good payment, and bind the princi- pal as being within the scope of the employment of the agent, or otherwise authorized by the principal, there a tender of pay- ment by or to an agent will in like manner be deemed a good tender to or by the principal, and bind the parties accordingly.* § 104. In the next place, as to the cases of incidental authority, as a mere inference of fact from the peculiar circum- stances of the case. Thus, if a merchant has been in the habit of allowing particular clerks in his counting-house to sign and indorse notes on his account, this will furnish an inference, that it is incidental to their authority as such clerks, although not otherwise properly pertaining to their duties.^ So, if an agent 1 Bousfield V. Croswell, 2 Camp. R. 545 ; ante, § 58 ; post, § 191. 2 Richardson v. Anderson, 1 Camp. R. 43. n. ; Todd v. Keed, 4 Barn. & Aid. , 21(^ ante, § 58. The case of an insurance broker illustrates the general prin- ciple in a very clear manner. He has acquired, by usage, a known authority to adjust the loss, and receive payment thereof. But his authority to receive pay- ment is, by the same usage, restricted to recovering payment in money ; and he cannot receive it so as to bind his principal in any other manner. Paley on Agency, by Lloyd, 278, 281 to 285 ; Todd v. Reid, 4 Barn. & Aid. 210; Rnssell\ V. Bangley, 4 B. & Aid. 395 ; Bartlett v. Pentland, 10 B. & Cresw. 760 ; Scott \ V. Irving, 1 B. & Adolph. 605 ; Campbell v. Hassell, 1 Stark. R. 233 ; ante, j §58. 3 Perrotin v. CuouUu, 6 Louis. R. 587 ; ante, § 58, 59. 4 Smith on Merc. Law, p. 124, 125, (3d edit.) 1843; Moffat v. Parsons, 5 Taunt. R. 307 ; Goodland v. Blewith, 1 Camp. R. 477 ; Kirton v. Braithwaite, 1 Mees. & Wels. 310 ; post, § 413. 5 Paley on Agency, by Lloyd, 161 to 169, (3d edit.) ; Id. 198, 211 ; Dyer v. Pearson, 3 B. & Cresw. 38, 42 ; Whitehead v. Tuckett, 15 East, 409, 410; Thorold 118 AGENCY. [CH. VI. takes a bond for his principal, and is allowed to retain posses- sion of it, it is presumed, that he possesses an incidental authority to receive the money, which is due on it ; [but this ceases whenever the bond is withdrawn.^] And, generally, the possession of a negotiable instrument is deemed sufficient frim& facie evidence of the title of the possessor to receive payment of it.^ § 105. In the next place, as to cases, where the question of incidental authority is a mixed question of law and fact. This most commonly arises, where the point turns upon the con- sideration, whether the agent is a general or a special agent ; or whether, if a general agent, his special instructions are known to the other party. In each of these cases, the ultimate decision must rest, partly upon principles of law, and partly upon facts, limiting or controlling the application of those principles. Thus, if a person be a general agent, his acts, as such, will bind his principal, although he may have received private instructions narrowing or withdrawing his authority.^ But, if those instructions are kn6wn to the other party, dealing with him, then those instructions become, as to such person, the sole guide and authority, by which to measure the extent of the rights and duties of the agent.* § 106. But, by far the largest portion of incidental powers is deduced from the particular business, employment, or charac- ter of the agents themselves. Whatever acts are usually done u. Smith, 11 Mod. R. 87, 88 ; 3 Chitty on Comm. and Manuf. 199, 200 ; Smith on Merc. Law, p. 124, 125, (3d edit. 1843) ; ante, § 59, 92 ; Smith v. East India Co. 16 Simons, R. 76. 1 Whitlocke V. Waltham, 1 Salt. 157 ; Paley on Agency, by Lloyd, 274, 275. See The River Clyde Trustees v. Duncan, 25 Eng. Law & Eq. R. 19 ; Williams V. Walker, 2 SandforS, Ch. E. 225. 2 Owen u. Barrow, 4 Bos. & Pull. 101; Anon. 12 Mod. 564; Paley on Agency, by Lloyd, 276 ; 3 Chitty on Comm. and Manuf. 207, 208. 3 Ante, § 73 ; post, § 127, 128, 443. 4 See ante, § 73 ; 2 Kent, Comm. Lect. 41, p. 620, 621, (4th edit.) ; 3 Chitty on Comm. and Manuf. 198 to 200 ; Paley on Agency, by Lloyd, 169, 211, (3d edit.) CH. Vr.] NATURE AND EXTENT OF AUTHORITY. 119 by such classes of agents ; whatever rights are usually exercised by them ; and whatever duties are usually attached to them ; all such acts, rights, and duties are deemed to be incidents of the authority confided to them in their particular business, employment, or character.^ These, indeed, are in some cases so well known and so well defined in the common negotiations of commerce, and by the frequent recognitions of courts of justice, as to become matters of legal intendment and inference, and not to be open for inquiry or controversy. In other cases, indeed, they may be fairly open, as matters of fact, to be estab- lished by suitable proofs.^ Thus, for example, the general in- cidental authorities, rights, and duties of auctioneers, of brokers, of factors, of cashiers of banks, of masters of ships, and of partners, are in general so well known and defined, as to be propounded as matters of law, not open to be discussed before a jury. Perhaps it may not be without use, even at the hazard of some repetition, to state some of the incidental powers of these classes of agents, which have been familiarly recognized in courts of justice, as they will, at the same time, suggest, some of the correspondent limitations upon these powers, and show their proper extent and determination. § 107- And, first, as to Auctioneers. We have already had occasion to consider the nature and character of this class of agents, and to refer to the fact, that for some purposes, an auc- tioneer is deemed the agent of both j)arties.^ Thus, he has an incidental authority, virtute officii, to bind both the seller and the purchaser, by his memorandum of the sale and purchase.* He has also an incidental authority to sue the purchaser in his own name, as being in some sort, not merely an agent, but a 1 Pothier on Obligations, by Evans, n. 454-456 ; 1 Domat, B. 1, tit. 16, § 3, art. 1-3. 3 3 Chitty on Comm. and Manuf. 20 ; Paley on Agency, by Lloyd, 281 to 285. 3 Ante, § 27 ; 3 Chitty on Comm. and Manuf. 281. 4 Ante, § 27 ; Williams v. Millington, 1 H. BI. 85 ; 3 Chitty on Comm. and Manuf. 292. 120 AGENCY. [CH. VI. contracting party .■' He has also a right to prescribe the rules of bidding, and the terms of sale.^ And his verbal declara- tions at the sale, at least, where they do not contradict the written particulars of the sale, are admissible against the prin^ cipal, and binding on him, as an incident to his authority to selL^ . 8 108. On the other hand, an auctioneer is deemed the agent of the seller at the sale only ; and, therefore, after the sale is made, he has no incidental authority to deal with the purchaser, as to the terms, upon which, a title is to be made, without some special authority for that purpose.* He cannot delegate his authority to another person ; not even to his own cleric' He cannot sell on credit ; ^ neither can he sell at private sale.^ 1 Ante, § 27; Williams v. Millington, 1 H. Bl. 81, 84, 85; 3 Chitty on Comm. and Manuf. 210 ; Kobinson v. Kutter, 30 Eng. Law & Eq. K. 401 ; Paley on Agency, by Lloyd, 362, (3d edit.) ; Atkyns v. Amber; 2 Esp. K. 493 ; post,,§ 397. 2 Paley on Agency, by Lloyd, 257 ; 1 Liverm. on Agency, 77, (edit. 1818.) 3 See Paley on Agency, by Lloyd, 257, (3d edit.); Gunnis v. Exbart, 1 H. Bl. 289 ; Howard v. Braithwaite, 1 Ves. & B. 209, 210 ; Powell v. Edmunds, 12 East, K. 6 ; Ogilvie v. Eoljambie, 3 Meriv. R. 53. Wbether an auctioneer has, virtute officii, a right to warrant the goods, does not seem to be perfectly clear upon the authorities. In the case of The Monte AUegre, 9 Wheat. K. 645, 647, it was laid down, that sales at auction in the usual mode are never understood to be accompanied by a warranty. And it was added, that auc- tioneers are special agents, and have only authority to sell, and not to warrant, unless specially instructed so to do. The authorities, cited in support of the text, seem to inculcate a more modified doctrine. But in cases of judicial sales by marshals, and other public ofRfiers, they have no authority to warrant. The Monte AUegre, 9 Wheat. K. 644 to 646 ; Port v. The United States, 1 Dev. R. Court of Claims ; Puckett v. United States, Id. ; Yates v. Bond, 2 McCord, 382 ; Bashore v. Whisler, 3 Watts. 490. 4 Seton V. Slade, 7 Ves. 276 ; Paley on Agency, by Lloyd, 208. 5 Ante, § 13, 29 ; Coles v. Treoothick, 9 Ves. 234. 6 3 Chitty on Comm. and Manuf 218, and cases there cited. See ante, § 60.. 7 Ante, § 27. Whether an auctioneer has authority to receive the whole purchase-money on a sale of real estate, or only the deposit, may admit of some question. It was said, in argument by counsel, in Mynn v. Joliffe, 1 Mood. & Rob. 326, that he had only a right to receive the deposit. And it was held by Littledale, J., in the same case generally, that " an agent employed to sell [an estate] has no authority, as such, to receive payment." See, as to sale of per- sonal chattels, Capel v. Thornton, 3 Carr. & Payne, 352, and ante, § 27, 102. CH. VI,] NATURE AND EXTENT OP AUTHORITY. 121 § 109. Secondly, as to Brokers. These, as we have seen, have an incidental authority to sign the contract for, and as the agent, of both parties.^ A broker employed to effect a policy, has an incidental authority to adjust losses upon it ; and, if em- ployed to settle losses, he has authority to refer a disputed loss to arbitration.^ A broker, employed to buy or sell without limitation of price, has the incidental authority to bind his prin- cipal by any price, at which he honestly buys or sells.^ So, a broker, authorized to sell goods without any express restriction as to the mode, may sell the same by sample or with warranty.* Ordinarily, he cannot make the contract in his own name ; but ought to do it in the name of the principal.^ There are excep- tions, however, by the usages of trade, as in cases of policies of insurance, which are usually made in the name of the policy broker, and he may then sue thereon.^ So, he cannot buy of sell on credit, except in cases justified by the usages of trade. '^ So, a broker has ordinarily no authority virtute officii, to re- ceive payment for property sold by him ; and, if payment is made to him by the purchaser, it is at his own risk, unless from other circumstances the authority can be inferred.^ A 1 Ante, § 28 to 32 ; Paley on Agency, by Lloyd, 314, 815, and note. See, as to power of brokers, to bind both parties, Greaves v. Legg, 34 Eng. Law & Eq. R. 489. 3 Ante, § 58 ; KicLardson v. Anderson, 1 Camp. K. 43, note ; Goodson v. Brooks, 4 Camp. K. 163 ; Paley on Agency, by Lloyd, 191, 192, 281 ; 1 Emeri- gon, ch. 5, § 4, p. 141, edit. Boulay Paty. 3 Paley on Agency, by Lloyd, 208, 209 ; East India Co. v. Hensley, 1 Esp. R. 111. 4 Andrews v. Kneeland, 6 Cowen, R. 354 ; The Monte Allegre, 9 Wheat. 643,- "644. s 1 Domat,B. 1, tit. 17, § 1, art. 1 ; ante, § 28 to 32. 6 Paley op Agency, by Lloyd, 362; 3 Chitty on Comm. and Manuf. 210;, Baring v. Corrie, 2 Barn. & Aid. 137 ; post, § 161, 272, 394. 7 Ante, §60; Paley on Agency, by Lloyd, 212; Henderson v. Barnewell,, 1 Y. & Jerv. 387. 8 Paley on Agency, by Lloyd, 279, 280; Baring v. Corrie, 2 B. & Aid. 137 ;. Campbell v. Hassell, 1 Stark. R. 233. Insurance brokers are considered as having, by usage, an authority to adjust losses, and to receive payment of them. Ante, § 58, 103 ; Paley on Agency, by Lloyd, 281 to 285 ; Id. 291 ; Todd v.. AGENCY. 11 1£2 AGENCY. [CH. VI, broker also has no power to delegate his own authority to another person.^ § 110. Thirdly, as to Factors. Factors, as we have seen, may sell in their own name the goods of their principal ; and they may buy goods in the like manner for their principal ; and in each case the principal will be bound by their acts, in the same way and to the same extent, as if his own name were used.^ They have also an incidental authority to sell on credit, where the usage of trade justifies it.^ So, factors, employed to ship goods, as well as to buy goods for their principal, have an incidental authority to bind the latter to the payment of the freight.* And where they have a general authority to buy, or to sell, they are treated as general agents, and their acts bind their principal, even though they have violated their private and secret instructions.^ [Factors, however, like other agents, are bound to obey the directions of their employer, or they are re- sponsible.^] But factors cannot ordinarily delegate their au- thority to other persons.^ § 111. Factors have also a special property in the goods consigned to them ; and for many, if not for most purposes, Reid, 4 B. & Aid. 210; Seott v. Trying, 1 B. & Adolph. 605 ; Bousfield v. Cres- well, 2 Camp. E. 545 ; 1 Liverm. on Agency, ch. 8, § 2, p. 356, (edit. 1818) ; Richardson v. Anderson, 1 Camp. K. 43, note ; 1 Emerigon, cji. 5, § 4. But then, they are restricted to the receiving of money in payment ; and are not at liberty to receive payment in any other manner, unless, indeed, there is a clear usage of trade governing the case. Ante, § 98, 103, and note ; post, §181,413, 430 ; Paley on Agency, 281 to 285 ; Todd v. Reid,-ubi supra ; Russell v. Bangley, Barn. & Aid. 395 ; Bartlett v. Pentland, 10 B. & Cresw. 760. 1 Ante, § 13, 29. 2 Ante, § 34 ; Paley on Agency, by Lloyd, 207. 3 Ante, § 60 ; post, § 209, 226 ; 1 Domat, B. 1, tit. 16, § 3, art. 1, 2 ; Byrne v. Schwing, 6 B. Monroe, 199; Greely i;. Bartlett, 1 Greenl. E. 172 ;i;Forestier v. Bordman, 1 Story, E. 43. * Ante, § 98 ; Paley on Agency, by Lloyd, 241. 5 Paley on Agency, by Lloyd, 206, 207; 3 Chitty on Comm. and Manuf. 198, 199 ; 2 Kent, Comm. Lect. 41, p. 619, 620, (4th edit.) But see Day v. Crawford, 13 Georgia, 508. 6 Evans v. Root, 3 Seld. 186 ; Day v. Crawford, 13 Georgia, 508. 7 Ante, § IS, 14. CH. VI.} NATURE AND EXTENT OP AUTHORITY. 123 (except as between themselves and their principal,) they are treated as the owners of the goods.^ We have seen, that con- signees for sale, such as commission merchants, are truly de- scribed as factors.^ The question has often been discussed, whether factors, or consignees for sale have an implied authority to insure for their principal ; for there cannot be a doubt, that they may insure upon their own account to the extent of their own interest. The general doctrine now established is, that they may insure both for themselves and for their principal.^ But they are not positively bound to insure, unless they have received orders to insure, or promise to insure, or the usage of trade, or the habit of dealing between them and their principals, raises an implied obligation to insure.* They may insure in their own names, or in the name and for the benefit of their principal. If they insure in their own name only, they may, in case of loss, re- cover the whole amount of the value of the property insured from the underwriters, and the surplus beyond their own inter- est, will be a resulting trust for the benefit of their principals.^ Whether, if they are mere naked consignees, to take possession of the goods only, without a power to sell, they have a right to insure for themselves, or for their principal, is perhaps more ' Ante, § 34, 102, note. The question as to the precise time when the property may be said to vest in a factor, who is consignee under liabilities in advance , properly falls under the Law of Shipping, and especially under that branch of it which respects the right of stoppage in transitu. See Abbott on Shipp. p. 3,ch. 9, § 4 to 25 ; Holbrook v. Wight, 24 Wend. K. 169 ; Hall v. Smith, 1 Bos. & Pull. 563. 2 Ante, § 33, 34 ; 3 Chitty on Comm. and Manuf. 204, 205 ; Martini v. Coles, 1 M. & Selw. 140, 147. 3 Waters v. Monarch Life & Fire Ins. Co. 34 Eng. Law & Eq. R. 116 ; or Ellis & Blaokb. 100. *Paley on Agency, by Lloyd, 18-20 ; Id. 107, 108 ; post, § 190 ; Smith v. Laseelles, 2 T. R. 189 ; Craufurd v. Hunter, 8 T. R. 13 ; French v. Backhouse , 5Burr. R. 2727; i Liverm. on Agency, ch. 8, § 1, p. 325, 326, (edit. 1818); Morris v. Summerl, 1 Condy's Marshall on Ins, 301 a, note ; S. C. 2 Wash. ; Ran- dolph V. Ware, 3 Cranch, R. 503 ; Columbian Ins. Co. v. Lawrence, 2 Peters, R. 49. sibid; post, §16, 274,394. 124) AGENCY. [CH. VI. questionable; but the point has not as yet become the subject of direct adjudication.^ § 112. It is to this consideration, that factors are to be treated as special owners of the property consigned to them, that we may refer many of the rights and powers attributed to them. They may sue in their own names for the prices of goods sold by them for their principal ; ^ and they are also liable to be sued for goods bought by them for their prin- cipal ; and of course they have a right in their own names to receive payments, to give receipts for payments, and to discharge the debtors from their official transactions," at least, unless notice is given to the contrary by their principal.* The circumstance, that factors are acting under a del credere com- mission, does not seem to make any diflference as to the validity or extent of their authority.^ § 1 13. On the other hand, factors have no incidenal author- ity to barter the goods of their principal,^ or to pledge such goods for advances made to them on their own account, or for debts due by themselves ; ^ although they may certainly pledge 1 Paley on Agency, by Lloyd, 207, 208 ; Wolfe v. Hornoastle, 1 Bos. & Pull. 823 ; Luoena v. Crawford, 3 Bos. & Pull. 98 ; Lucena v. Crawford, 5 Bos. & Pull. 324, per Lord Eldon ; Cornwall v. "Wilson, 1 Ves. 509 ; De Forest u. Fulton Ins. Co. 1 Hall, E. 84, 106, 107, 134, 135. This whole subject underwent much examination in the case of Lucena v. Crawford, 3 Bos. & Pull. 75 ; S. C. 5 Bos. & PuU. 269. But the most ample and satisfactory discussion of it is to be found in the very elaborate opinions delivered by Mr. Ch. Justice Jones, and Mr. Justice Oakley, in the Superior Court of New York, in De Forest v. The Fulton Ins. Co. 1 Hall, Rep. 84, 100 to 136. 2 See White v. Chouteau, 10 Barb. 202. 3 Drinkwater v. Goodwin, Cowp. R. 254 ; Johnson v. Usborne, 11 Adolph. & Ell. 549 ; post, § 400. 4 Paley on Agency, by Lloyd, 278, 285, 286 ; post, § 401, 401 a. 5 Paley on Agency, by Lloyd, 285, 286 ; Morris v. Cleasby,,4 M. & Selw. 566, 574, 575 ; ante, § 33, Elnd note ; Thompson v. Perkins, 3 Mason, K. 232 ; 2 Kent, Comm. Lect. 41, p. 624, (4th edit.) ; 2 StairJ Instit. by Brodie, 921, 922, note; post, § 215 ; Graham v. Ackroyd, 19 Eng. Law & Eq. R. 659. 6 Ante, § 78 ; Gucrriero v. Peile, 3 B. & Aid. 616 ; 2 Kent, Comm. Lect. 41, p. 625 to 628, (4th edit.) 7 Paley on Agency, by Lloyd, 21-8 to 232 ; post, § 389 ; 3 Chitty on Comm. CH. VI.] NATURE AND EXTENT OF AUTHORITY. 125 them for advances lawfully made on account of their principal, or for advances made to themselves, to the extent of their own & Manuf. 204, 205 ; Rodriguez v. Heffernan, 5 Johns. Ch. E. 429 ; Benny v. Rhodes, 18 Misso. 147 ; Kelly v. Smith, 1 Blatohf. 290 ; 2 Kent, Comm. Lect. 41, p. 625-627, (4th edit.) ; 1 Bell, Comm. B. 3, Pt. 1, ch. 4, art. 412, p. 388 to 394, (4th edit.) ; Id. p. 485 to 488, (5th edit.) ; Boyson v. Coles, 6 M. & Selw. 14 ; Evans v. Potter, 2 Gallison, R. 13, 14 ; Van Amringe v. Peabody, 1 Mason, R. 440. The point, whether a factor has an authoi-ity to pledge the goods of his principal, as has been already stated, (ante, § 78, note,) has undergone a good deal of discussion, and no small degree of doubt has been entertained upon it, until a recent period. The doctrine is now fully established in England, that he cannot pledge, although some of the Judges have lamented the establishment of it. The same doctrine seems now generally established in America. (Rod- riguez V. Heffernan, 6 Johns. Ch. R. 429 ; 2 Kent, Comm. Lect. 41, p. 625, 626, (4th edit.) ; Story on Bailm. § 325, 326.) In Scotland, as Mr. Bell informs us, (1 Bell, Comm. art. 412, p. 388, (4th edit.) ; Id. p. 485 to 488, (5th edit.) the doctrine is directly the other way. The English doctrine is apparently founded upon the rule of the civil law; Nemo plus juris in alium transferre potest, quam ipse haberet. (Dig. Lib. 50, tit. 17, 1. 54.) In the civil law, this rule was directly applied to the case of pledges. Jure pignoris teneri non posse, nisi quEe obligantis in bonis fuerint ; et per alium rem alienam invito dominio pignori obligari non posse, certissimum est. (Cod. Lib. 8, tit. 16, 1. 6.) The same rule has been generally applied in the law of the continental nations of Europe, as for example, in France, Holland^ and Italy, and also in Scotland. Still, it is but a general rule ; and therefore not absolutely superseding other consider- ations, growing out of the character of the parties, and the nature of the par- tioulaE authority conferred upon the party, who is in possession of the property. The question is not, in many cases, whether a party can transfer that to another, which he does not in reality possess and own ; but whether a party, ostensibly clothed with the ownership of property by the real owner, and thus acquiring an apparent authority to dispose of the whole interest, may not dispose of an interest in such property, less than the whole, to another innocent party. If one of two innocent persons must suffer by the wrongful act of a third person, it is certainly most conformable to equity and sound principles, that he should suffer, who has enabled such third person to hold himself out as competent to do the act. The very circumstance, that in England, the Parliament has interfered, and, by an express statute, (6 George, 4, ch. 94,) amendatory of a prior act on the same subject, (4 George, 4, ch. 83,) enabled factors and, others, not owners, to pledge goods for advances made to them, as well as for preexisting debts, demonstrates the inconveniences of the old rule ; and the importance of relax- ing it in commercial transactions. This statute, and the constructions put upon it, are given at large in Paley on Agency, by Lloyd, p. 219 to 233, and Appen- dix, No. 1, p. 403 to 407. An additional statute on the same subject has since been passed. (5th & 6th Victoria, ch. 39.) See Smith on Merc. Law, p. 112 11* 126 AGENCY., [CH. VI. lien on the goods.^ So, factors may pledge the goods of their principal for the payment of the duties and other charges due thereon; and, indeed, for any other charges and purposes, which are allowed or justified by the usages of trade.^ [If a to 122; Id. Appendix, lii. ; Id. ccxvi., (3d edit. 1843.) Mr. Bell, in his Com- mentaries, (1 Bell, Comm. B. 3, Pt. 1, ch. 4, § 4, art. 412, p. 388 to 394, (4tli edit.) ; Id. p. 485 to 488, (Sth edit.) has given his own views in favor of the doctrine, that the factor has a right to pledge, with great clearness ; and has also expounded, in his text and notes, the present state of the law on this point among the continental nations of Europe. See also Paley on Agency, by Lloyd, 220, 221, note (3) ; Dan. & Lloyd's Mercantile Cases, 29, note to Blandy v. Allen; Story on Bailm. § 324, 326, 327 ; Evans v. Potter, 2 Gallison, R. 14 ; 3 Kent, Comm. Lect. 41, p. 625 to 628, (4th edit); Williams v. Barton, 3 Bingh. K. 139 ; Queiroz v. Trueman, 3 B. & Cresw. 342 ; Laussatt v. Lippincott, 6 Serg. & K. 386. 1 Bell, Comm. B. 3, Pt. 1, ch. 4, art. 412, p. 391, 392, (4th edit.) ; Id. p. 385 to 389, (Sth edit.) ; Pultney v. Keymer, 3 Esp. R. 182; Urquhart u. Mclver, 4 John. R. 103 ; McCombie v. Davis, 7 East, R. 5 ; Paley on Agency, by Lloyd, 165, 217, (3d edit.) ; 2 Kent, Comm. Lect. 41, p. 625 to 628, (3d edit.) See Mann v. Shiffner, 2 East, R. 523, 529; Solly v. Rathbone, 2 M. & Selw. 298; Story on Bailm. § 325-327. Some of the American States, and particularly Rhode Island, New York, and Pennsylvania, have in substance, by positive enactments, adopted the statute of 6 Geo. 4, ch. 94, on the subject of factors. 2 Kent, Comm. Lect. 41, p. 628, note (a,) (4th edit.) 2 Evans v. Potter, 2 Gallis. R. 13. See 2 Kent, Comm. Lect. 41, p. 627, 628, (4th edit.) ; Paley on Agency, by Lloyd, p. 217 ; Pultney v. Keymer, 3 Esp. K. 182 ; Laussatt v. Lippincott, 6 Serg. & R. 386. This I conceive to be the true doctrine, notwithstanding the language used in some of the authorities. The case of Pultney v. Keymer, 3 Esp. R. 182, may be deemed overruled by the latter cases, and especially by the cases of Shipley v. Kymer, 1 M. Selw. 484 ; Solly V. Rathbone, 2 M. & Selw. 298 ; Cookran v. Irlam, 2 M, & Selw. 301 ; Martini v. Coles, 1 M. & Selw. 140, and Boyson v. Coles, 6 M. & Selw. 14, as to the point of advances made to an agent on his own account. See also Daubigny V. Duval, 5 T. R. 604 ; Queiroz v. Freeman, 3 B. & Cresw. 342 ; Mark v. Bowers, 16 Martin, R. 95. In Martini v. Coles, 1 M. & Selw. 140, Lord EUenborough and Mr. Justice Le Blanc recognized the right to pledge for advances and charges on account of the principal. The cases of Solly v. Rathbone, 2 M. & Selw. 298, and Cockran v. Irlam, 2 M. & Selw. 301, note, do, it must be ad- mitted, seem to overturn the authority of Pultney jj. Keymer, 3 Esp. R. 182, as to the point of advances and charges made on account of the principal. But in each of those cases, there was this ingredient, that it was not the case of a mere pledge for advances and charges on account of the principal, but a delegation also of authority to the pledgee, as sub-agent or co-agent, to sell the goods, which was held to be tortious ; as an agent could not delegate his authority. Pro tanto, CH. VI.] NATURE AND EXTENT OP AUTHORITY. 1^7 factor pledges goods of his principal without authority, he does not thereby lose his power to sell them ; and a honci fide pur- chaser may maintain an action against the pledgee therefor.-^] § 114i. Fourthly, as to Cashiers of Banks. It may be stated, as a general proposition, that the officers of a bank are held out to the public as having authority to act according to the general usage, practice, and course of business of such in- stitutions, and that their acts, within the scope of such usage, practice, and course of business, bind the bank in favor of third persons, having no knowledge to the contrary.^ The cashier of a bank is usually intrusted with all the funds of the bank, in cash, notes, bills, and other choses in action, to be used from time to time for the ordinary and extraordinary exigencies of the bank. He is accustomed to receive directly, or through the subordinate officers, all moneys and notes of the bank ; to deliver up all discounted notes, and other securities and prop- erty, when payment of the dues, for which they are given, have been made ; and to draw checks from time to time for money, wherever the bank has deposits and pecuniary funds. In short, he is considered as the executive officer, through no doubt, the authority was void. But why should the pledge be held void, as to advances and charges made for the principal ? The ground seems to have been, (whether it be satisfactory or not,) that the sale by the pledgee as co-agent or sub-agent, made the whole proceeding tortious ah initio. That doctrine would not apply to a mere pledge for advances and charges required to be made for the principal, where tl^e original agent still retained his general authority. This whole subject is very accurately and clearly discussed, and the results stated, in Mr. Chancellor Kent's learned Commentaries. 2 Kent, Comm. Lect. 41, p. 625 to 628, (4th edit.) What circumstances will or will not amount to an implied authority to an agent, from whom advances are asked, to make a pledge for such advances, is a matter, upon which the authorities leave much doubt; and especially the cases of Graham v. Dyster, 2 Stark. R. 21, and Quie- roz v: Freeman, 3 B. & Cresw. 342 ; and Lausaatt v. Lippincott, 6 Serg. & R. 386 ; Newbold v. Wright, 4 Rawle, R. 195. 1 Nowell u. Pratt, 5 Gush. 111. 2 Minor v. Mechanics Bank of Alexandria, 1 Peters, R. 46, 70 ; Pleckner v. Bank of U. States, 3 Wheat. R. 360, 361 ; Frankfort Bank v. Johnson, 24 Maine R. 490. 1S8 AGENCY. [CH. VI. whom and by whom the whole moneyed transactions of the bank, in paying or receiving debts, and discharging or trans- ferring securities, are to be conducted. It does not seem, therefore, too much to infer, in the absence of all positive and known restrictions, that he possesses the incidental authority, and, indeed, that it is his duty to apply the negotiable funds, as well as the moneyed capital of the bank, to discharge its debts and obligations.^ Hence, it seems to be a natural conclusion, that, primd facie, the cashier of a bank possesses the incidental authority to indorse the negotiable securities held by the bank, in order to supply the wants, and to promote the interests of the bank ; and any restriction upon such authority must be established by competent proofs, and will not be presumed to exist.^ So, also, he possesses authority to draw checks upon other banks, upon the deposits therein of the funds of his own bank. And whether a particular check is drawn by him in his official, or in his private capacity, does not depend necessarily upon the form or face of the check, but, in case of doubt, the matter is open to explanation by parol evidence.^ § 115. But the cashier of a bank possesses no incidentat au- thority to make any declarations, binding upon the bank, in matters not within the scope of his ordinary duties. Thus, for- example, he has no authority to bind the bank upon a note being offered for discount, by his declaration to a person who is about to become an indorser, that he will incur no risk and no respon- sibility by becoming an indorser upon such discount.* So, if a cashier of a bank should promise to pay a debt, which the cor- poration did not owe, and was not liable to pay, or if he should admit forged bills of the bank to be genuine, the bank would 1 rieckner v. Bank of the United States, 8 Wheat. R. 360, 361. 2 Wild V. Bank of Passamaquoddy, 3 Mason, R. 505. S6e also Folger v. Chase, 18 Pick. 63 ; Spear v. Ladd, 11 Mass. R. 94 ; Northampton Bank v. Pax- son, 11 Mass. R. 288. 3 Mechanics Bank of Alexandria v. Bank of Columbia, 5 Wheat. R. 326, 337. 4 Bank of U. S. v. Dunn, 6 Peters, R. 51 ; Bank of MetropoUs v. Jones, 8 Peters, R. 12. CH. VI.] NATURE AND EXTENT OF AUTHORITY. 129 not be bound by such promise or admission, unless it had au- thorized or adopted the act.-' But, if the cashier of a bank should pay to a bond fide holder a forged check drawn upon the bank, the payment could not be recalled, but would be obliga- tory ; for it is within the duty of the cashier to answer drafts drawn on the bank ; and the bank intrusts him with an implied authority to decide upon the genuineness of the Ijandwriting of the drawer of the check, when presented for payment.^ The same rule will apply to the payment of forged bank bills of a bank, by the cashier, upon presentment by a lona fide holder. The payment cannot be recalled ; for the cashier is bound to know the genuine paper of the bank.^ It may, however, be generally stated, that the cashier of a bank cannot, by his acts, bind the bank, unless in cases within the scope of his authority.* [Tor this reason his declarations as to past transactions, as the payment of a note, have been said not to bind a bank.^] § 116, Fifthly, as to Masters of Ships. The master of a ship has various incidental powers, resulting from his official capacity, which have been long recognized in the maritime law, and are not now open to judicial controversy. Thus, for ex- ample, he has an incidental authority to make all contracts be- longing to the ordinary employment of the ship ; as, for exam- ple, to let the ship on a charter-party, and to take shipments on freight, if such is the usual employment of the ship, but not otherwise ; ^ to hire seamen for the voyage ; to contract for necessary repairs and equipments for the voyage ; and to hy- i Salem Bank v. Gloucester Bank, 17 Mass. R. 1 ; Merchants Bank v. Marine Bank, 3 Gill, R. 97. a Levy V. Bank of U. S. 1 Binn. R. 27 ; Bank of U. States v. Bank of Georgia, 10 Wheat. R. 333. 3 Bank of the U. States v. Bank of Georgia, 10 Wheat. R. 333 ; Salem Bank V. Gloucester Bank, 1 7 Mass. R. 1 , 28. 4 Foster v. Essex Bank, 17 Mass. R. 479. See also 1 Bell, Comm. p. 480, (5th edit.) ; Frankfort Bank v. Johnson, 24 Maine R. 490. 5 Franklin Bank v. Steward, 37 Maine R. 519. 6 Pickering v. Holt, 6 Greenl. R. 160. 130 AGENCY. [CH. VI. pothecate the ship in foreign ports for moneys advanced to sup- ply the necessities of the ship, if they cannot otherwise be sup- plied.^ In these cases, and in others of the like nature, he often 1 Ante, § 36 ; Abbott on Shipp. P. 2, ch. 2, § 2 to 10 ; Id. ch. 3, § 1 to 34, p. 91 to 132, (Amer. edit. 1829) ; Gratitudine, 3Kob. R. 255to 278; 3 Kent, Comm. Leot. 46, p. 158 to 164, (4th edit.) ; Boson v. Sandford, 3 Mod. R. 321 ; S. C. 3 Lev. R. 258 ; 1 ^tower, R. 29, 101 ; Hussey u. Allen, 6 Mass. R. 163 ; James u. Bixby, 11 Mass. R: 34 ; Pickering v. Holt, 6 Greenl. R. 160 ; Runquist v. Ditch- ell, cited in Abbott on Shipp. P. 2, oh. 2, § 8 ; S. C. 3 Esp. R. 64 ; 1 Liverm. on Agency, 35, 36 ; Id. 154 to 196, (edit. 1818) ; 1 Bell, Comm. § 434, p. 413, (4th edit.) ; Id. p. 505, 506, (5th edit.) ; 1 Domat, B. 1, tit. 16, § 3, art. 3. [If the supplies could be obtained on the personal credit of the owner, the master has no right to pledge the ship in addition. Stainbank v. Penning, 6 Eng. Law & Eq. R. 412. Jervis, C. J., said : " It was conceded during the argument that this was not an instrument of hypothecation in the usual form, and it was not con- tended the master had authority to mortgage the ship ; but it was said that an hypothecation may be good without making the repayment of the advances depend upon the arrival of the ship ; and that, if the lender does not choose to take upon himself the risk of the ship's return, and will be content not to demand maritime interest, the master may pledge both the ship and the personal credit of the owner. " The cases of The Tartar and The Nelson, upon which the plaintiffs' counsel relied, do not support the latter part of this proposition, for which they were cited. Where the master professes to hypothecate the ship, and also to pledge the credit of his owners, the Court of Admiralty will reject that part of the in- strument which is directed to the latter object, and proceed in rem against the ship ; but the cases cited do not show that the Court of Admiralty will do this where the instrument is not in other respects in strictness an hypothecation, be- cause in each of those cases the return of the money depended upon the com- pletion of the voyage, and the lender took upon himself the risk of the ship's return. " The case of Samsun v. Bragginton is, however, referred to, and although the report does not explain the grounds of the decision, nor, very clearly disclose the circumstances of the case, yet, as it is cited with approbation in Abbott on Ship- ping, it acquires additional authority from the known accuracy and high reputa- tion of the learned author of that work, and is said to be an authority in point. We have been furnished with a copy of the decree, from which the following ap- pear to be the facts of that case : ' Bragginton and Pitman were part owners of the Dunsloy galley, of which Pitman was master. On her homeward voyage she was disabled and put into Jamaica, where Pitman applied to the plaintiff to advance the necessary funds for her repairs, ' for the use and on account of him- self and Bragginton as owners,' and as a further inducement, engaged with the plaintiff, as additional security for the repayment of the money, to hypothecate the ship. The plaintiff repaired the ship, expended for that purpose £80, and CH. VI.] NATURE AND EXTENT OF AUTHORITY. 131 enters, (as he may well do,) into the contracts in his own name ; at his request, Pitman drew upon Bragginton for that amount, and by way of ad- ditional security, as master of the ship, according to maritime usage in like cases, by deed poll, after taking notice of the damage and advance, did, for securing the payment of the said money, hypothecate to the plaintiff the ship, with the freight and cargo. The ship sailed from Jamaica, was captured and sold. Bragginton and Pitman received the insurance upon her loss, but Brag- ginton refused to accept the bills, and the plaintiff was not paid the amount which he had advanced for the repairs of the ship. Upon this statement, the plaintiff filed his bill against Bragginton and Nichols, the representative of Pit- man, for repayment of the money advanced by him. Bragginton, by his answer, admitted the plaintiff's statement, but submitted that he was not liable to repay what Pitman might have paid for the repairs, because Pitman was indebted to him, and suggested that bottomry interest had been taken for the advance, and that, therefore, according to maritime custom, the lender took the risk of the voyage upon himself. There was no proof of this suggestion, and the master of the rolls decreed that the money advanced by the plaintiff in refitting the ship, ought to be esjablished against Bragginton and Nichols, according to their re- spective interest. It is not very apparent how, upon the bill and answer so framed, the validity of the hypothecation could come directly in question. The plaintiff did not seek to estaMish his claim by that instrument, because it did not profess to charge the owners personally with the debt, and the defendant Brag- ginton, failing to prove that bottomry interest had been taken, could not add to the deed, by implication, a condition that the repayment of the advances should depend upon the return of the ship. The decree seems to have proceeded on the ground that joint owners were liable for money advanced in a foreign coun- try for necessary repairs. Whether the master had properly pledged the ship or not, the ship was lost, and the plaintiff was proceeding upon the present liability of the joint owners. The reporter states that his Honor took time to consider, and afterwards (as he was informed) determined that the ship was well hypothecated, and that the part owners were liable. In Abbott on Shipping, the decree against the part owners is stated positively ; but the learned author adds, cautiously, ' It is said also that the ship was thought (not determined) to be well hypothecated." He does not give the full weight of his unqualified sanction to this proposition ; and, upon examination, we think that this case is not to be con- sidered as an authority conclusive against the more recent decisions to which reference has been made. " The deed now in question only professes to give such an interest as can be enforced in the Admiralty Court. In certain events, A. Gilmour & Co. may seize the vessel and cause her to be sold by process out of the admiralty of Eng- land, or any other court of vice-admiralty possessing jurisdiction ; and further, they are to have all the right, &c., by process of the courts of admiralty or otherwise, which by law are given to the holders of bottomry bonds. The in- terest which they have in the ship is the right of proceeding in the Admiralty Court against the ship ; but if, under similar circumstances, the Admiralty Court 132 AGENCY. [CH. VI. and he may thus become personally liable, as well as his princi- would not act because it has no jurisdiction, A. Gilmour & Co. have not an avail- able interest. Now, the cases show that, under circumstances like the present, the Court of Admiralty would decline to act. In the case of The Atlas, Lord Stowell refused to entertain a suit of bottomry because the advance Tyas payable within thirty days after the arrival of the ship, " or in case of the loss of the ship, then vnthin thirty days next after- the account of such loss should have heen re- ceived in Calcutta or London." Upon appeal, the delegates decided that the bond was void because there was no sea risk to justify the taking of maritime interest, and so it became unnecessary to determine the principal question ; but upon the argument of the question of jurisdiction, HuUock, B., observed that the condition destroyed the whole instrument. The more recent case of The Emancipation is an express authority upon the same point. There, upon the face of the bond, and according to legal inference, the payment of the money advanced did not depend upon the safe arrival of the ship, and for that reason the Court pronounced against the bond. Upon these authorities, it is clear that, if The Hartland had arrived in this country, the plaintiffs could not have pro- ceeded against her in the Admiralty Court ; they had, therefore, no interest in the vessel ; they have lost nothing, and upon this ground the defendant is en- titled to succeed. " But without reference to authority we are of opinion, upon principle, that the master has not by an instrument of this nature authority to pledge the ship. By the Koman law, and still in those nations which have adopted the civil law, every person who had repaired or fitted out a vessel, or had lent money for those purposes, had a claim upon the value of the ship, without a formal instru- ment of hypothecation ; but by the law of England no such right can be ac- quired except by express agreement, and a master can only make such an agree- ment if he act within the scope of his authority. The right to raise money upon bottomry can only be justified by necessity. If the master in a foreign country wants money to repair or victual his vessel, or for other necessaries, he must, in the first instance, endeavor to raise it upon the credit of the owners. If he can do so, he has no authority to hypothecate the vessel ; but if he cannot otherwise obtain the money, then he may hypothecate the ship, not transferring the property in the ship, but giving the creditor a privilege or claim upon it, to be carried into effect by legal process upon the termination of the voyage. As in- cident to this transaction, the lender may, if he think fit, insist upon maritime interest ; but whether he do so or not, the advance is made upon the credit of the ship, not upon the credit of the owners, and the owners are never personally responsible. There is no trace in our books, with the exception of Samsun v. Bragginton, of any case in which a master has been held to have authority to make a valid hypothecation of a ship, unless the payment of the money borrowed has been made to depend upon the arrival of the ship. There is, therefore, nothing 'to show that a master has authority to hypothecate in any other matter. Indeed, if the money be originally advanced upon the credit of the owner, and CH. VI.] NATURE AND EXTENT OF AUTHORITY. 1S3 pal, to fulfil the same ; ^ for he is treated, not as ordinary agent, but as, in some sort, and to some extent, clothed with the char- acter of a special employer or owner of the ship, and repre- senting, not merely the absolute owner, {Dominus navis,) ^ but also the temporary owner, or charterer for the voyage, {Exer- citor Navis)? In short, our law treats him, as having a spe- cial property in the ship, and entitled to the possession of it, and not as having the mere charge of it, as a servant. On this account he may bring an action of trespass for a violation of that possession ; and where the freight has been earned under a contract, to which he is a party, or under a bill of lading, signed by himself, he may bring a suit for the freight, due on the delivery of the goods.* § 117. The civil law seems to have recognized similar rights and incidental authorities. The very definition of the for any cause an hypothecation be made, even before the ship leaves the place where the advances were made, the bond will be void, and cannot be enforced. The Augusta. For these reasons, we are of opinion that the master had no au- thority to make an instrument like that in question, and that by the instrument the lender possesses no interest in the ship. The money advanced for repairs was a mere debt from the owners to the lender, and it being admitted that a mere debt from the owners to the assured for repairs and disbursements could not legally be made the subject of an insurance, it follows that the defendant is entitled to judgijient." 1 Post, § 161, 266 to 268, 294 to 299, 399. 2 Ante, § 36 ; post, § 294 to 297, See Abbott on Sliipp. Pt. 2, ch. 2, § 3, note {g), (Amer. edit. 1829) ; Dig. Lib. 14, tit. 1, 1. 1, § 1, 2, 15 ; 1 Liverm. on Agency, 70, 71 ; 2 Liverm. on Agency, 267 to 269, (edit. 1818). 31 Liverm. on Agency,- 35, 36, (edit. 1818); Id. 70, 71 ; Abbott on Shipp. P. l,ch.l,§ 12, 13, and Story's note (i) to edit. 1829; Id.P. 2,ch. 2, § 2-; Valejo V. Wheeler, Cowp. R. 143 ; Soaresu. Thornton, 7 Taunt. K. 627 ; Marcardier v. Chesapeake Ins. Co. 8 Craneh, 39 ; Taggard v. Loring, 16 Mass. K. 336 ; Des- cadillas v. Harris, 8 Greenl. R. 298 ; The Ship Fortitude, 3 Sumner, R. 228, 237-239; 1 Bell, Comm. p. 414, §434, (4th edit.) ; Id. p. 505, 522, &c., (5th edit.) The Exercitor Navis is (as we have already seen) the actual employer in the particular voyage, whether he be the absolute owner, or only the hirer of the ship for the voyage. Ante, § 36, note ; post, § 294, 295, 315 ; Abbott on Shipp. P. 2, ch. 2, § 3, (Amer. edit. 1829.) 4 Shields v. Davis, 6 Taunt. R. 65, 67 ; 3 Chitty on Comm. and Manuf. 210. See also Williams v. Millington, 1 IL Bl. 81, 84. AGENCY. ' 12 134 AGENCY. [CH. VI. master of the ship in that law indicated the nature and limits of his rights and authority. Magistrum navis accipere dehe- mus, cui totius navis cura mandataest;^ and this applied equally, whether he was appointed hy, and acted under the general owner, or by and under the owner for the voyage. Magistrum aufem accipimus, non solum, quem exerdtor prce- posuit, sed et eum, quem magister? Omnia enim facta magistri debet prcestare, qui eum prceposuit ; alioquin contrahentes decipientur ; et facilius hoc in magistro quam ins'titore admit- tendum propter uUlitatem? Non dutem ex omni causa Prcetor dat in exercitorem actionem ; sed ejus rei nomine, cujus ibi prcepositus fuerit ; id est, si in earn rem proepositus sit; utputa, si ad onus vehendmn locatum sit ; autaliquas res emerit utiles naviganti ; velsi quid reficiendce navis causa contractum velimpensum est ; vel siquid nautce, operarum nomine, petent^ And the authority of the master was also enlarged, according to the ordinary employment of the ship. Magistri autem impo- nuntur locandis navibus, vel ad merces, vel vectoribiis conducen- dis, armamentisve emendis ; sed etiam si mercibus emendis vel vendendis fuerit prcepositus, etiam hoc nomine obligat Exercito- rem.^ In these latter cases, however, the master acts rather as supercargo, or as factor, than in his original character as master.^ § 118. The authority of the master of the ship over the cargo is, under ordinary circumstances, limited to the mere duty of the transportation and preservation of it. But he may, 1 Dig. Lib. 14, tit. 1, 1. 1, ^ 1 ; Pothier, Pand. Lib. 14, tit. 1, n. 1. 2 Dig. Lib. 14, tit. 1,1. 1, § 5 ; Pothier, Pand. Lib. 14, tit. 1, n. 1 ; ante, § 36; Pothier on Obhg. n. 448. 3 Dig. Lib. 14, tit. 1, 1. 1,§ 5 ; Pothier, Pand. Lib. 14, tit. 1, n. 3 ; post, § 128. 4 Dig. Lib. 14, til. 1, 1. 1, § 7 ; Pothier, Pand. Lib. 14, tit. 1, n. 7 ; 4 Domat,B. Itit. 16, § 3, art. 3 ; Abbott on Shipp. Pt. 2, ch. 2, § 3, p. 91, note (<;) (Amer. edit. 1829). 5 Dig. Lib. 14, tit. 1, 1. 1, § 3; Pothier, Pand. Lib. 14, tit. 1, n. 7. 6 1 Liverm. on Agency, 69, 70, 72, (edit. 1818) ; 1 Emerig. Assur. ch. 7, § 5, p. 193 ; ante, § 36 ; Williams v. Perry, 13 Wend. 58 ; Freeman v. East India Co. 5 B. & Aid. 617. CH. VI.] NATURE AND EXTENT OF AUTHORITY. 135 under circumstances of great emergency, acquire a superin- duced authority to dispose oflWt, from the very nature and necessity of the case ; and his acts will then become com- pletely binding and obligatory upon the owners of the cargo, whether they are mere shippers, or are also owners of the ship. It is true, that, in the ordinary course of things, he is treated as a mere stranger to the cargo, beyond the purposes of safe custody and conveyance, as above stated; yet, in such cases of instant, and unforeseen and unprovided for necessity, the char- acter of agent and supercargo is forced upon him, not by the immediate act and appointment of the owner, but by the general policy of the law.^ Thus, for example, in the case of a jettison, becoming necessary in the / course of a voyage, the master has a right to order any goods to be thrown overboard. He may select what articles he may please ; he may determine the quantity^ and he is limited to no proportion. Nay, in cases of extreme necessity, where the lives of the crew cannot other- wise be saved, he may throw the whole cargo overboard.^ So, the master may, in like manner, sacrifice a part of the cargo for the ransom of the ship, or bind the ship and cargo for the ransom.3 So5|,if he is driven into a port of necessity, and the cargo is perishable, the master may sell it, as he may also sell the ship, in a case of urgent* necessity.^ [But the sale of the vessel is not within the general authority of the master.^ So, 1 Ante, § 116, 117 ; post, § 164 ; Ibid. The Gratitudine, 3 Kob. K. 255, 257, 258; Searle v. Scovell, 4 Johns. Ch. R. 222; 1 Emerig. Assur. ch. 12, § 16, p. 429 to 433 ; Douglass v. Moody, 9 Mass. R. 548. In cases of this sort, the master assumes very much the rights and responsibilities of the Negotiorum Gestor of the«eivil law, as to which, see Story on Bailm. § 81-83, 189, 190 ; Pothier, Contrat de Mandat, ch. 2, art. 3, § 1, n. 51 ; Ersk. Inst. B. tit. 3, § 37 ; 2 Kent, Comm. Lect. 41, p. 616, 617, and note (a), (4th edit.) ; Dig. Lib. 3, tit. 5, 1. 2, 3. 2 The Gratitudine, 3 Rob. 255, 257, 258. 3 ibid. 255, 258. 4 The Eliza Cornish, 26 Eng. Law & Eq. R. 579; Robertson w. Clarke, 1 Bing. 445 ; Hunter v. Parker, 7 M. & W. 322. B The Gratitudine, 3 Rob. 255, 259. fi Johnson v. Wingate, 29 Maine, 404. 136 AGENCY. [CH. VI. he may sell a part of the cargo, or he may hypothecate the whole cargo and freight, as well*as the ship, for repairs of the ship, to enable her to perform the voyage.^ In cases, also, of an abandonment by the owner of ship or cargo to the under- writers, for a total loss during the voyage, the master becomes the agent of the underwriters by operation of law, with the same general rights and authorities, as he would have in re- gard to the owner .^ § 119, The restrictions upon the incidental powers of the master are apparent from the precedjag statements. Ordi- narily, indeed, these incidental powers belong to the master only in the absence of the owner or employer of the ship; as, for example, when the ship is in a foreign port, and not in the home port. For, when the owner or employer is present, he is known to possess, and is presumed to exercise his own right of general superintendence over the conduct of the ship and its concerns, unless some presumption of a delegation of authority to the master can be imphed, either from the usage of trade, or the particular employment of the ship, or the conduct and proceedings of the parties.^ Even in the home port, however, , there are many acts, which are so invariably ctofided to the master, as to amount to a positive delegation of authority. Thus, the master is ordinarily intrusted with the authority of shipping the officers and crew;* of superintending the ordi- nary outfits, equipments, repairs, and other preparations of the 1 The Gratitudine, 3 Rob. 255, 260 to 265 ; Abbott on Shipp. P. 2, ch. 3, § 17 to 33, and notes to Amer. edit. 1829; The Packet, 3 Mason, K. 255; United Ins. Co. v. Soott, 1 John. R. 106 ; American Ins. Co. v. Coster, 3 Paige, R. 323 ; 3 Kent, Comm. Lect. 46, p. 171 to 175, (4th edit.) ' 2 Gen. Int. Ins. Co. v. Ruggles, 12 Wheat. 408. 3 Abbott on Shipp. P. 2, ch. 2, § 1 to 10, and notes, ibid. (Amer. edit. 1829); 1 Bell, Comm. p. 412, 413, § 433, 434, (4th edit.) ; Id. p. 506, 509, (5th edit.) ; 1 Liverm. on Agency, 154 to 196, (edit. 1818) ; James v. BixISy, 11 Mass. R. 34, 36, 37. * Blunt's Comm. Dig. 152 ; 1 Emerig. Assur. ch. 7, § 5, p. 193 ; Cleirac, Jugemens d'Oleron, 1 Valin, Comm. Lib. 2, tit. 1, art. 5, p. 384 ; Consolato del Mare, ch. 55, 195. CH. VI.] NATURE AND EXTENT OF AUTHORITY. 137 vessel for the voyage ; of lading and unlading the cargo ; and, in cases of a general ship, of receiving goods on hoard on freight, and of signing hills of lading for the same.i [But he has no authority to sign hills of lading and hind his owners, for goods not actually received on hoard the vessel,^] These 1 1 Bell, Comm. p. 413, 414, § 434, (4tli edit.) ; Id. p. 506, 507, (5th edit.) ; Abbott on Shipp. P. 2, cb. 2, § 1 to 11 ; Id. ch. 3, § 1 to 34, (Amer. edit. 1829,) and notes, ibid.; 3 Kent, Comm. Lect. 46, p. 158 to 176, (4tb edit.) ; 1 Liverm. on Agency, 157, 158, (edit. 1818) ; James v. Bixby, 11 Mass. K. 34, 36, 37. 2 Grant v. Norway, 2 Eng. Law & Eq. K. 337 ; 10 Com. B. Kep. 665. Jervis, C. J., said : " This case was argued before my brothers Cresswell, Williams, and myself: it arises on a special verdict, and presents a question of considerable importance, both to those who take bills of lading on the faith of their representing property which passes by the transfer of them, and to the ship-owner, who is attempted to be bound by all bills of lading that a captain may think proper to sign. The point presented by the several pleas is substantially one and the same, namely, whether the master of a ship, signing a bill of lading for goods which have never been shipped, is to be considered as the agent of the owner in that behalf, so as to make the latter responsible. The authority of the master of a ship is large, and extends to all acts that are usual and necessary for the use and management of the vessel, but it is subject to several well-known limitations. Pie may make contracts for the hire of the ship for carrying, or he may vary .that which the owner has made ; he may take up moneys in foreign ports, and, under certain circumstances, at home, for necessary disbursements for repair, and bind the owners for repayment ; but his authority is limited by the necessity of the case, and he cannot make them responsible for money not actually necessary for those purposes, although he may contend that it is. He may make contracts to carry goods on freight, but cannot bind the owner to carry freight free. So, with regard to goods put on board, he may sign the bill of lading, and acknowledge the nature, quality, and condition of the goods. Constant usage shows that the master has a general authority ; land if a more limited authority is given, the party not informe'd of it is not affected by such limitation. The master is a general agent to perfftrm all things relating to the usual employment of his ship ; and his authority, as such agent, to perform all such things as are necessary in the line of business in which he is employed, cannot be limited by any private orders not known to the party in any way dealing with him. This general proposition is laid down by Mr. Smith in his Mercantile Law, p. 559. Is it, then, usual in the management of a ship carry- ing goods on freight, for the master to give a bill of lading for goods not put on board ? All parties concerned have a right to assume that the agent has author- ity to do all that is necessary ; but the very nature of the bill of lading shows that it ought not to be signed till the goods are on board, for it begins by describ- ing them as ' shipped.' Indeed, it was not contended that such a general author- ity was Usual. In Lickbarrow v. Mason, 2 T. K. 63, Buller, J., says : ' A bill of 12* 1S8 AGENCY. [CH. VI- are such usual incidents of his official character, that notice of a positive prohibition would seem indispensable, in order to aflfect third persons with his want of due authority to do the acts.^ § 119 a. In respect to borrowing, money, and obtaining lading is an acknowledgment by the captain of having received the goods on board his ship : therefore it would be a fraud in the captain to sign such a bill of lading if he had not received goods on board, and the consignee would be en- titled to his action against the captain for the fraud.' It is not contended, in this case, that the captain had any real authority to sign the bill of lading unless the goods had been shipped ; nor can we discover any ground on which a party, taking a bill of lading by indorsement, could be justified in assuming he had authority to sign such bill, whether the goods were put on board or not. Ji, then, from usage and the general practice of shipmasters, it is generally known that the master derives no such authority from his position as master, the case must be considered as if the party taking the bill of lading had notice of the express limitation of authority, and in that case undoubtedly he could not claim to bind the owner by the bill of lading signed, when the goods therein mentioned were not on board. It resembles the case of goods or moneys taken up by the master on the pretence that they were wanted for the ship, when in fact they were not ; or a bill of exchange accepted or indorsed by procuration, when no such agency existed. Alexander v. Mackenzie, 13 Jur. 346 ; 6 C. B. 767, shows that the words ' by procuration ' would give notice to all parties that the agent is acting with a special and limited authority ; and, therefore, the party taking such a bill has to establish by evidence the authority. It is not enough, for that purpose, to show that other bills, similarly accepted and indorsed, have been paid, although such evidence, if the acceptance was general by the agent- in the name of the principal, would be evidence of a general authority to accept in the name of the principal. So, here, the general usage gives' notice to all people, that the authority of the captain to give bills of lading is limited to such goods as have^been put on board ; and the party taking the bill of lading, either originally or by indorsement of the goods, which have never been put on board, is bound to show some particular authority to the master to sign the bill in that form. There is very little to be found in the books on this subject ; it was dis- cussed in the case of Berkley v. Watling, 7 Ad. & El. 29 ; but that case was decided on another point, although Littledale, J., said, in his opinion the bill of lading was not conclusive, under similar circumstances, on the ship- owner. For these reasons, we are of opinion that the issue should be entered for the defendants, and that the defendants are entitled to the judgment of the court." See also Hubbersty v. Ward, 18 Eng. Law & Eq. K. 551 ; 8 Exch. R. 330 ; Coleman v. Eiches, 29 Eng. Law & Eq. R. 323. 1 1 Bell, Comm. p. 414, § 434, (4th edit.) ; Id. p. 506, 507, (5th edit.) ; 1 Liverm. on Agency, 157, 158, (edit. 1818). CH. VI.] NATURE AND EXTENT OF AUTHORITY. 139 supplies for the necessary use of the ship, upon the credit of the owner, the master has an implied authority so to do, not only in a foreign port, but also in the home port, provided the owner is absent, and no communication can be had with him without great delay and prejudice, and the necessity is press- ing.^ But if the means of communication with the owner are reasonably within the reach of the master, and the necessity is not pressing, and no injurious delay or prejudice will arise from waiting, until such communication is had, the authority of the master to borrow money, or to procure supplies upon the credit of the owner, will not be implied. [And in like manner, if the supplies have been procured or the repairs made, the master cannot afterwards borrow money on the owner's credit, to pay for them.^] 1 Johns V. Simons, 2 Adolph. & Ell. New Kep. 425, 430; Arthur v. Barton, 6 Mees. & Wels. 138 ; Stonehouse v. Gent, 2 Adolph. & Ell. New Eep. 431, note ; Hawtayne v. Bourne, 7 Mees. & Wels. R. 595, 599,' 600, by Mr. Baron Parke. See also The Alexander, cited 2 Park on Insur. by Hildyard, Append. 1057, 1061, (8th edit.) 1842. 2 Beldon v. Campbell, 6 Eng. Law & Eq. E. 473. Parke, B. said : " This was a case tried before my brother Piatt, in which the question for the considera- tion of the Court isj whether the owner of a vessel, .who resided at Newport, was liable to. the plaintiff, who was a merchant at Newcastle, for a sum of money which had been borrowed by the master of the defendant's ship at Newcastle, for the purpose of paying a debt contracted for towing the vessel by a steam-tug into port, and also for a sum paid to a master carpenter on a Saturday night, the master carpenter having been employed to do repairs upon the vessel. We are of opinion that, in this case, the rule must be absolute. There is no doubt of the power of the master by law (but some as to what extent it goes) to bind the owner. The master is appointed for the purpose of conducting the naviga- tion of the ship to a favorable termination, and he has, as incident to that em- ployment, a right to bind' his owner as to all things necessary, that is, upon the legal maxim, Quando aliquid mandatur et omne per quod pervenitur ad illud. So, therefore, the master has perfect authority to bind his principal, the owner, as to all repairs that are necessary for the purpose of bringing the ship to the port pf destination ; and he has also the power, as incidental to his employment, to borrow money, but only in a case where ready money is necessary, that is to say, where there are certain payments made in the course of the voyage, and for which ready money is required, and credit is never given. He has the power to borrow money for the purpose of making those payments. An in- 14<0 AGENCY. ., fcH. VI. § 120. The master is also usually intrusted with the dis- charge, as well as the hiring, of the officers and seamen of the stance of this is the payment of the port dues which are required to be paid down in cash, or lights or any dues which are also required to be immediaie payments ; and so also' there was a case referred to in the course of the argu- ment, where a ship, being at the termination of a long voyage, and ordered to proceed on another, money borrowed to pay the wages of seamen who would not go on the second voyage without being paid, was held to be necessary. Kobinson v. Lyall. But these cases of borrowing money do not apply to any case in which the owner of a vessel is near the spot so as to be convenient to be communicated with ; and before the master has any right to make him debtor to a third pei-son, he must consult his owner, to see whether he is willing to be made a debtor to a particular third person, or whether he will refuse to pay the money at all. In this case, it appears to us there are two objections to the plaintiff's recovering either one sum or the other. With respect to the sum of money borrowed for the purpose of paying the steamtug, it appears that the vessel was oif the port of Newcastle, which was its ultimate port' of destination, at the time when the steamtug was necessary in order to tow the vessel into the River Tyne, and the owner of the steamtug did not object to tow the vessel in without any previous payment. If the owner of the steamtug had said, " I will not tow you in unless you will actually pay the money down," then "it would have been competent for the master to have borrowed the money for that pur- pose, in order to pay him. It could not be expected that he-should waij; at the mouth of the harbor, where it would have been impossible for him to have com- municated with the owner living at Newport, a great distance, in order to ascertain whether he should borrow the money or not ; but in this case, the owner of the steamtug did not make any such stipulation, but the vessel was towed into Newcastle, and the money was not paid to the owner of the steam- tug until after several days had elapsed, during which it was perfectly competent for the master to have written to Newport, which was only a day's post, (as it happened,) and to have got the owner's answer, to ascertain from whom he should borrow the money. Instead of that, he goes four or five days afterwards and borrows from the plaintifi" a sum of money for the purpose of paying this debt to the owner of the steamtug— a debt which the owner of the vessel was liable to, because it was within the power of the master to employ the steam vessel for the owner; but we think he had no power, under these circumstances, to borrow money in order to pay a debt for which the owner of the vessel was already responsible by the original contract, and still less that he could borrow that money without consulting the owner, who was living at Newport, and was able to bo communicated with before it was absolutely necessary to pay the money, even supposing the master had made a contract to pay it on a particular day. So that there are two objections to the plaintiff's right to recover that sum. And with regard to the other, which was a sum paid to a master ship- wright, who wanted it to pay his workmen on a Saturday night, we also think it CH. VI.] NATURE AND EXTENT •qP AUTHORITY, 141 ship in the home port ; and in foreign ports he possesses this incidental authority, as a necessary discretion, to be exercised by him, in cases where the law does not prohibit the discharge, for the general welfare of the voyage.^ In a foreign port, also, he possesses the incidental authority, if he should be dis- abled by illness, dr otherwise, to appoint a new master to serve in his stead, whose acts will, under such circumstances, become obligatory upon the owner .^ § 121. The incidental powers of the master are, however, restricted to those, which belong to the usual employment or business of the ship.^ Thus, if the ordinary employment of the ship has been the carrying of cargoes on the sole account of the owner, the master has no implied authority to let the ship to freight, even in a foreign port. So, if the ordinary employment has been to take goods on board on freight, as a general ship, and common carrier, the master will not be pre- sumed to possess authority to let the ship on a charter-party for a special and different business. So, if the ship has been ac- customed to carry passengers only, the master will not be pre- sumed to possess authority to take goods on board on freight. So, if the ship has been accustomed to the coasting trade, or is impossible to say that was a payment of necessity, because the completion or progress of the work on Monday was not a necessity, for the vessel had arrived at her place of destination. It was perfectly competent for the master to have consulted the owner, and to have ascertained whether he would have the repairs gone on with, even supposing it were necessary to have paid the money down in order to accomplish that purpose. We think in neither of these cases are they payments of necessity, or fall within the authority the master has, by the general law, to bind his owner by the contracts that he enters into." 1 Blunt's Coram. Dig. 152 ; 3 Kent, Comm. Lect. 46, p. 183, 184, (4th edit.) ; Abbott on Shipp. P. 2, ch. 4, § 6 and note (2) ; Id. § 15, and note (1) to Amer- ican edit. 1829 ; Kobinett v. Ship Exeter, 2 Kob. 261. 2 1 Bell, Comm. § 434, p. 413, (4th edit.) ; Id. p. 506, 507, (5th edit.) ; Kocc. de Nav. n. 5; Pothier on Marit. Contr. by Cashing, p. 26, n. 48 ; Id. p. 142, note. 3 See Gen'l. Int. Ins. Co. v. Ruggles, 12 Wheat. E. 408 ; Peters v. Ballestier, 3 Pick. E. 495. 14(2 Xgency. [ch. VI. the fisheries, or to river navigation only, the master will not be presumed to possess authority to divert the ship into another trade, or business, or voyage, on the high seas.^ § 1S2. So, the authority of the master, as to repairs of the ship, even in a foreign port, is limited to those, which are necessary repairs.^ But by necessary repairs we are not to understand such repairs only as are indispensable for the safety of the ship, or the due performance of the voyage, but such also as are reasonably fit, and proper for the ship, or for the voyage, under all the circumstances of the case.^ § 123. And this doctrine is conformable, also, to the rules laid down in the civil law. For, it is said in that law, that the nature of the appointment governs in respect to the contracts of the master. If the master is appointed solely to receive freight-money, but not to let the ship to freight, and he should let the ship to freight, the owner will not be bound. On the other hand, if he is appointed to let the ship to freight, but not to receive the freight-money, the owner will not be bound by his receipt of the freight-money. In like manner, if he is ap- pointed to carry passengers, he is not at liberty to carry goods ; and so conversely. And in all such cases, the owner will not be bound by his acts, when he exceeds his authority. So, if the master is appointed to let the ship to carry certain kinds of merchandise, which she is adapted to carry, such, for example, as grain, or hemp, and the master should let the ship to carry marble, or other materials, it will be an excess of authority not binding upon the owner.* Some of these cases may not ap- 1 1 Liverm. on Agency, p. 155, 156, (edit. 1818) ; Boucher v. Lawson, Rep. Temp. Hard. 85, 194 ; Abbott on Shipp. Pt. 2, cb. 2, § 7-10, and note (3), (Amer.edit. 1829) ; 1 Bell, Comm. § 434. p. 413, (4tb edit.) ; Id. p. 506, 507, (5th edit.) ; Pothier on Marit. Contracts, by Gushing, u. 48, p. 26. 2 Ante, § 119, 119 (a). 3 Abbott on Shipp. P. 2, ch. 3, § 3, (Amer. edit. 1829) ; Webster v. Seekamp, 4 Barn. & Aid. 852; Arthur v. Barton, 6 Mees. & "Wels. 138, 143; The Ship Fortitude, 3 Sumner, R. 228. 4 Dig. Lib. 14, tit. 1, 1. 1, § 12 ; Pothier, Pand. Lib. 14, tit. 1, n. 7 ; 1 Liverm. CH., VI.] NATURE AND EXTENT OF AUTHORITY. 143 pear as cogent in our law, as they do in the Roman law ; but they sufficiently illustrate the general principle.^ § 128 a. Hitherto we have principally looked to the powers of masters of ships ; but it may not be amiss here to glance at a general duty arising out of their employment, which in- deed might equally apply to other agents under the like circum- stances. It is, that the master of a ship is bound to employ his whole time and attention in the service of his employer ; and it is even said that a custom, allowing such master to trade upon his private account during the voyage, cannot be main- on Agency, 155, 156, (edit. 1818) ; Abbott on Shipp. Pt. 2, ch. 2, § 3, (Amer. edit. 1829). ^ The exact text of the Eoman law is as follows : Igitur prsEpositio certam legeni dat contrahentibus. Quare, si eum prseposuit navi ad hoc solum, ut vecr turas exigat, non ut locet ; quod fort6 ipse looaverat ; non tenebitur exercitor, si magister locaverit : vel si ad loeandum tantum, non ad exigendum, idem erit dicendum : aut, si ad hoc, ut vectoribus looet, non ut meroibus navem prEestet, vel contra, modum egressus, non obligabit exercitorem. Sed, et si, ut certis mercibus eam locet propositus est, put^ legumini, cannabse ille marmoribus^ Yel alia materia, locavit ; dicendum efit non teneri. Qua3dam enim naves one- rariae, qua3dam (ut ipsi dicunt) kiri^aTriyol (id est, veotorum duo'trices) sunt. Et plerosque mandare scio, ne veotores reoipiant. Et sic, ut certa regione, et certo Mari negotietur; ut ecce, sunt naves, quas Brundudum a Cassiopa, vel a Dyr- raccTiio vectores trajiciunt, ad onera inhabiles. . Item qutedam fluvii capaces, ad mare non suffioientes. D. 14, tit. 1, 1. 1, § 12. I interpret this passage as Mr. Abbott and Mr. Livermore do, as applicable to cases where the extent of the authority of the master is deduced from, the general employment of the ship. 1 Liverm. on Agency, 155, 156, (edit. .1818) ; Abbott on Shipp. P. 2, ch. 2, § 3, p. 92. (American edit. 1829.) The modern commercial code of France, (as in- deed do the general principles of the maritime^ law of other nations,) recognizes distinctions as to the authority of the master of a ship in most cases coincident with those of the common law. Thus, the Commercial Code of France (art. 223) gives authority to the master to engage the crew employed in the ship, in, concert with the owner when the master is at his place of residence. The mas- ter (art. 232,) in the place of the residence of the owners or their agents, has no general authority to repair the vessel, or to buy sails, cordage or other things for her use, or to take up money on bottomry, or to let the ship on freight. See also 1 Bell, Comm. § 433 to 436, p. 412 to 414, (4th edit.) ; Id. p. 522 to 530, (5th edit.) ; Pothier .on Marit. Contracts, by Cushing, n. 48, 49, p. 26 to 28 ; Id. n. 163, p. 98, 99 ; Jacobsen's Sea Laws, by Frick, ch. 1, p. 32 to 91 ; 3 Kent, Comm. Lect, 45, p. 158 to 176, (4th edit); 2 Stair, Inst, by Brodie, Supp. p. 953, 969, 970, 971, 973, 980, 981 ; Ante, § 11.7, 119, 121, 122. 1441 AGENCY.- [CH. VI. tained.i Pefljaps this is laying down the rule somewhat too broadly, for if there be an express agreement between the master and owner that he shall be at liberty to trade upon his own account during the voyage, that wOuld certainly be obliga- tory ; and if there be a known usage in the particular trade to the same effect, that would seem to afford an equally con- clusive presumption of an implied agreement to the same effect. § 124. Sixthly. Partners. It is not our design to enter upon any general examination of the rights, powers, and duties of partners at large. That would properly belong to a distinct treatise on partnership. But we shall here advert only to the general authorities deduced by law from the very nature and character of partnership. Every partner is, (as we have seen,) in contemplation of law, the general and accredited agent of the partnership ; ^ or, as it is sometimes expressed, each partner is Prcepositus negotiis societatis ; and may consequently bind all the other partners by his acts in all mat,ters, which are within the scope and objects of the partnership. Hence, if the part- nership be of a general commercial nature, he may pledge or sell the partnership property ; he may buy goods on account of the partnership ; he may borrow money, contract debts, and pay debts on account of the partnership ; he may draw, make, sign, indorse, accept, transfer, negotiate, and procure to be dis- counted, promissory notes, bills of exchange, checks, and other 1 Gardner v. MoCutoheon, 4 Beavan, R. 534. 3 Ante, § 37 ; 2 Bell, Comm. §1230, p. 615, (4tli edit.) Id. p. 615, (5tli edit.) PotMer on- Oblig. by Evans, n. 83 ; Story on PartnersHp, cli. 7, § 101 to 103. How far one partner could bind the firm by his acts under the Roman law, is 'a matter, which has been much discussed by the civilians. That each partner could bind all the others, when there was an express or implied authority for this purpose, is not doubted. But in the absence of an express authority, the difficulty has been to ascertain what circumstances should afford a just presump- tion of authority. The mere relations of partnership did not, as it should seem, in the Roman law, create such implied authority as it does in our law. See Ersk. Inst. B. 3, tit. 3, § 20 ; 1 Stair, Inst. B. 1, tit. 16, § 6 ; 1 Domat, B. 1, tit. 8, §4, art. 16; Dig. Lib. 17, tit. 2, 1. 68; Pothier, Pand. Lib. 17, tit. 2, n. 26. • • CH. VI.] NATURE AND EXTENT OF AUTHORITY. 145 negotiable paper, in the name and on account of the partner- ship.^ § 125. The restrictions of this implied authority of partners to bind the partnership, are apparent from what has been already stated. Each partner is an agent only in and for the business of the firm ; and therefore his acts beyond that busi- ness will not bind the firm.^ Neither will his acts, done in violation of his duty to the firm, bind it, when the other party to the transaction is cognizant of, or cooperates in such breach of duty.^ And upon the principle already suggested, as to agents jexecuting sealed instruments, one partner cannot exe- cute an instrument, under seal, which shall bhid the other partners, in virtue of his general authority ; but he must have a special authority under seal ; * or the deed must be executed by him in the presence of the other partners.^ § 126. Before quitting this subject of the nature and extent 1 Ante, § 37; see CoUyer on Partnership, B. 3, ch. 1, § 1 and 2, p, 215 to 230 ; 3 Kent, Comm. Lect. 43, p. 40 to 48, (4th edit.) ; Story on Partnership, ch. 7, § 101 to 125; Bayley on Bills, ch. 2, § 6, (5th edit.) ; Id. oh. 6, § 1 ; 3 Chitty on Comm. and Manuf. 236-238 ; South Carolina Bank v. Case, 8 Barn. & Cresw. 427 ; Vere v. Ashby, 10 B. & Cresw. 288 ; Ex parte Bondonus, 8 Ves. 540 ; Ex parte Agace, 2 Cox, R, 312 ; U. S. Bank v. Binney and Win- ship, 5 Mason, E. 176; S. C. 5 Peters, R. 529 ; 1 Domat, B.*l,tit. 16,§ 3, art. 7; Ersk. Inst. B. 3, tit. 3, § 20; 2 Bell, Comm. § 1203, p. 015 to 618, (4th edit.) ; Id. p. 615-617, (5th edit); 1 Stair, Inst, by Brodie, B. 1, tit. 16, § 4, 6 ; Pothier on Oblig. by Evans, n. 83. 2 Hasleroan v. Young, 5 Adolph. & Ell. 833. 3 3 Kent, Comm. Lect. 43, p. 46, 47, (4th edit.) ; CoUyer on Partii. B. 3, ch. 1, p. 212, and § 1, p. 215; Id. ch. 2, § 1, p. 256 to 286; 2 Bell, Comm. § 1203, p. 615-618, (4th edit.) ; Id. p. 615 to 618, (5th edit.) ; Ex parte Agace, 2 Cox, R. 312, 316 ; Sandilands v. Marsh, 2 Barn. & Aid. 673. * Ante, § 37; Ante, § 61 ; Post, § 242, 252; 3 Kent, Comm. Lect. 43, p. 47, 48, (4th edit.) ; Harrison v. Jackson, 7 T. R. 207; CoUyer on Partn.B. 3, ch. 2, § 1, p. 256, 257. Contra, Cady v. Shepherd, 11 Pick. 400; referred to ante, § 49, and note, § 51 ; Post, § 2'42, 252 ; Story on Partn. § 117 to 123. In con- sequence of this doctrine, or, at least, to clear away all doubts on the subject, a statute has been passed by Congress (Act of 1823, ch. 149, § 25 ;) 3 U. S. Laws, p. 1889, (Story's edit.) by which one partner is authorized to bind the firm in bonds given to the Custom-House for duties. 5 Ante, § 49, 51 ; Story on Partn. § 117 to 123. AGENCY. 13 146 AGENCY, [CH. VI. of the authority "of agents, it seems proper to refer again to what has been already incidentally stated, the distinction commonly taken between the case of a general agent and that of a special agent, the former being appointed to act in his prin- cipal's affairs generally, and the latter to act concerning some particular object.^ In the former case, the principal will be bound by the acts of his agent within the scope of the general authority conferred on him, although he violates by those acts his private instructions and directions, which are given to him by the principal, limiting, qualifying, suspending, or prohibit- ing the exercise of such authority under particular circumstan- ces.^ In the latter case, if the agent exceeds the special and limited authority conferred on him, the principal is not bound by his acts ; but they become mere nullities, so far as he is concerned ; unless, indeed, he has held him out as possessing a more enlarged authority.^ 1 Ante, §17-20; Id. § 73; Post, § 131-133; Tomlinson v. CoUett, 3 Blackf. Ind. R. 436 ; Walker v. Skipwitli, Meigs's Tenn. E. 502. 2 Ante, § 73 ; Post, § 127 to 133; Allen v. Ogden, 1 Wash. Cir. K. 174; Bryant v. Moore, 26 Maine K. 84 ; Fitzsimmons v. Joslin, 21 Vermont E. 129. 3 Post, § 127, and note, § 128 to 133 ; 2 Kent, Comm. Lect. 41, p. 620, 621, (4tli edit.) ; 3 Chitty on Comm. and Manuf. 198 ; Paley on Agency, by Lloyd, 198, 199, 207, 208, (8d edit.) ; Smith on Mercantile Law, 58 to 62, (2d edit.) ; Id. ch. 5, § 4, p. 107, 108, (3d edit. 1843) ; 1 Liverm. on Agency, 94, 95. (edit. 1818); Id. p. 107 to 119; Fenn u. Harrison, 3 T. E. 757; Howard v. Braith- waite, 1 Ves. & B. 209, 210 ; Whiteheads. Tuckett, 15 East, 408 ; Pickerings. Busk, 15 East, E. 38, 43, 44; 1 Bell, Comm. § 412, p. 387, (4th- edit.) ; Id. p. 478, (5th edit.) ; Munn v. Commission Co. 15 Johns. E. 44, 54 ; Eossiter v. Eossiter, 8 Wend. E. 494 ; Andrews v. Kneeland, 6 Cowen, E. 354 ; Waters v. Brogden, 1 Young & Jerv. 457 ; Brown v. Trantura, 6 Mill. (Louis.) E. 47 ; Beals V. Allen, 18 Johns. E. 363 ; Allen v. Ogden, 1 Wash. Cir. E. 174. The same principle is applied in the case of partnership. Each partner is held out to the public as the general agent of the partnership ; and, consequently, his acts will bind it, notwithstanding he may have violated his private instructions or the express terms of the secret articles of partnership. Sandilands v. Marsh, 2 B. & Aid. 673 ; U. S. Bank v. Binney, 5 Mason, E. 176 ; S. C. 5 Peters, R. 529 ; Collyer on Partn. by Phillips, oh. 1, p. 212, to 215 and note ; 3 Kent, Comm. Lect. 43, p. 40 to 50, (4th edit.) ; 3 Chitty on Comm. and Manuf ch. 4, p. 236 to 241. Mr. Smith, in his work on Mercantile Law, p. 59, (2d edit.) has stated the distinction between general and special agents very perspicuously. " A CH. VI.] NATURE AND EXTENT OF AUTHORITY. 14i7 § 127. The ground of this distinction is the public policy of preventing frauds upon innocent persons, and the encourage- ment of confidence in dealings with agents. • If a person is held out to third persons, or to the public at large, by the principal, as having a general authority to act for and to bind him in a particular business, or employment, it would be the height of injustice, and lead to the grossest frauds, to allow him to set up his own secret and private instructions to the agent, limiting that authority ; and thus to defeat his acts and transactions under the agency, when the party dealing with him had, and could have, no notice of such instructions. In such cases, good faith requires, that the principal should be held bound by the acts of the agent, within the scope of his general authority; for he has held him out to the public as competent to do the acts, and to bind him thereby. The max- im of natural justice here applies with its full force, that he, who, without intentional^ fraud, has enabled any person to do an act, which must be injurious to himself, or to another inno- cent party, shall himself suffer the injury rather than the inno- gent party, who has placed confidence in him.-^ The maxim is B general agent is a person," says he, " whom a man puts in his place, to transact all his business of a particular kind ; thus, a man usually retains a factor to buy and sell all goods, and a broker to negotiate all contracts of a certain descrip- tion, an attorney to transact all his legal business, a master to perform all things relating to the usual employment of his ship, and so in other instances. The authority of such an agent to perform all'things usual in the line of business, in which he is employed, cannot be limited by any private order or direction, not known to the party dealing with him. But the rule is directly the reverse con- cerning a particular agent, that is, an agent employed specially in one single transaction ; for it is the duty of the party dealing with such a one, to ascertain the extent of his authority ; and if he do not, he must abide the consequences." S. P. Smith on Merc. Law, ch. 5, § 4, p. 107, 108, (3d edit. 1843.) This is true, if the agent is not held out as possessing a more enlarged authority. See also Woodln V. Burford, 2 Crompt. & Mees. 391 ; Jordan v. Norton, 4 Mees. & Wels. 155; Sykes v. Giles, 5 Mees. k Wels. 645; Post, § 127, note, § 128, note. Smith v. East India Co. 16 Simons, R. 76. 1 Paley on Agency, by Lloyd, 194, 200, 201, (3d edit.) ; Whitehead v. Tuckett, 15 East, 401, 409; 3 Kent, Comm. Lect. 41, p. 620, 621, (4th edit.) ; 3 Chitty on Comm. and Manuf. 202 ; Guerreiro v. Peile, 3 B. & Aid. 616 ; ante. 148 AGENCY. [CH. VI. founded in the soundest ethics, and is enforced to a large ex- tent by Courts of Equity.-^ Of course the maxim fails in its § 73. See North River Bank v. Aymar, 3 Hill, E. 262 ; Commercial Bank of Buffalo V. Kortright, 22 Wend. E. 348, 361 ; post, § 470 ; Locke v. Stearns, 1 Mete. E. 560. The general ground, on which this distinction is taken, is well stated in a note to Paley on Agency, by Mr. Lloyd, (Paley on Agency, by Lloyd, p. 199, note.) "A general authority," says Mr. Lloyd, "arises from a general employment in a specific capacity ; such as factor, broker, attorney, &c. When we can say of any one, that he is A.'s broker, or A.'s factor, or A.'s at- torney, he has then a general authority, in the sense in which it is used in the text. But, of course, this does not imply that he has an unlimited or unre- strained authority. A. may give his broker, or his factor, or his attorney, any instructions, that he pleases ; and the effect will be this. As between himself and his broker, &o., any deviation from these instructions will render the latter accountable to him for any loss he may sustain thereby. But, as regards him- self and third parties, who may have dealt with the broker, &c. any limitation of the authority, not communicated to them, can have no effect. A third person has a right to assume, without notice to the contrary, that the person, whom A. employs generally as his broker, &c. has also an unqualified authority to act for his principal in all matters, which come within the scope of that employment. In the case of a particular agent, that is, one -whom A. may have employed specially in that single instance, no such assumption can reasonably be made. It then becomes the duty of the party dealing with one whom he knows to be ' acting for another in the transaction, to ascertain by inquiry the nature and ex- tent of the authority ; and if it be departed from or exceeded, he must be con- tent to abide the coillequences. The distinction thus pointed out is perfectly consonant with right reason ; and if duly attended to will satisfactorily explain all the cases which follow in the text." In Fitzherbert v. Mather, 1 Term Eep. 12, 16, Mr. Justice Buller said: "It is the common question every day at Guild- hall, when one of two innocent persons must suffer by the fraud or negligence of a third, which of the two gave credit ? " See also Hern v. Nichols, 1 Salk. 289. » 1 Story on Eq. Jurisp. § 384 to 394 ; Ktzherbert v. Mather, 1 Term Eep. 12, 16. Duke of Beaufort v. Neeld, 12 Clark & Finnelly, E. 290. It has been already suggested, ante, § 73, that the same general principle pervades all cases of agency, whether the party be a general or a special agent. But, neverthe- less, the distinction between general and special agents is not unfounded or use- less. It IS sufficient to solve many cases. But the difficulty is, that from the general language in the books, and the general contrast made between general and special agents, there is great danger in applying the distinction to solve cases, to which it does not properly apply. The principle, which pervades all cases of agency, whether it be a general or a special agency, is this : The prin- cipal 13 bound by all acts of his agent, within the scope of the authority, which he holds him out to the world to possess ; although he may have given him more limited private instructions, unknown to the persons dealing with him. And this CH. VI.] NATURE AND EXTENT OP AUTHORITY. 149 application, when the party deahng with the agent has a full knowledge of the private instructions of the agent, or that, he is exceeding his authority.^ is founded on the doctrine, that where one of two persons must suffer by the act of a third person, he, who has held that person out as worthy of trust and confi- dence, and having authority in that matter, shall be bound by it. It will at once be perceived, that this doctrine is equally applicable to all cases of agency, whether it be the case of a general, or of a special agency. When I hold out to the public a person, as my agent in all my business and employment, he is deemed my general agent ; and all acts done within the scope of that business bind me, notwithstanding I have privately limited his authority by special in- structions. Why ? Because he is externally clothed with an unlimited authority over the subject-matter, and third persons might otherwise be defrauded by his acts. In such a case, he is not less a general agent as to third persons, than if he had received no private limitations of his authority. As between himself and his principal, his authority is not general, but quoad hoc, is limited. In the same case, if the principal had privately revoked his whole authority, he would still be bound. So, if he had privately limited the authority to a single act in the same business (and he would accordingly be, between himself and his prin- cipal, a special agent,) still the principal would be bound. Precisely the same rule applies to a special agency. If A. authorizes B. to purchase ten bales of cotton for him, and holds out to all the public, that B. has full and unlimited authority to purchase that cotton, every person, dealing with that agent, has a right to deal with him as a person having a general authority as to that pur- chase ; and the principal will be bound by his acts, notwithstanding he may have privately limited the agent as to price, quality, &c. In the case of a gen- eral agency, the principal holds out the agent to the public as having unlimited authority as to all his business. In the case of a special agency, like that above stated, the principal holds out the agent to the public as having unlimited author- ity as to a particular act, subject, or purchase. In each case, therefore, the same general principle applies. If the principal hold out to the public his agent, as having a general authority to bind him in any one case, or in all cases, he, who deals with any such agent innocently, ought to be protected, and the principal to be bound. The case's of special agency, to which the rule, founded upon the distinction between general agency and special agency properly ap- plies, are where the principal does not hold out the agent as possessing any particular authority ; and of course, where the nature and extent of the real authority, conferred on him, furnish the only rule to govern the case ; and the party, dealing with the agent, must act at his own peril. We do not, in legal language, or common parlance, call an agent a general agent, merely because there are no limitations on his authority ; nor do we caU a man a special agent, because he is limited by special orders, quoad that agency. Neither do we call J Howard v. Braithwaite, 1 Ves. & B. 209 ; Stainer». Tysen, 3 Hill, K. 279 ; Barnard v. Wheeler, 24 Maine E. 412. 13* 150 AGENCY. [CH. VI. § 128. The same rule was also fully recognized, and applied with rigorous exactness in the Roman Law, even in cases otherwise highly favored. Even a creditor, having a pledge, was bound, if he suiFered the owner to hold himself out as competent to dispose of the pledge, with the consent of the creditor. Creditor, qui permittet rem veniri, pignus dimittit} Si consensu venditioni creditor, liheratur hypofheca? So, the acts of a ship-master, as a general agent within the scope of his authority, (as we have seen,) were, for the like reason, deemed binding on his employer, although he had disobeyed his private instructions.^ Omnia enim facta Magistri debet proBstare, qui eum prceposuit ; alioquin, contrahentes decipien- tur ; et facilius hoc in Magistro, quam Institore, admittendum propter utilitafem.^ Here, we see, that the same grounds of the rule are given, as in the common law, to prevent any de- ception upon the innocent and unwary, and also to further and sustain the public policy of inviting confidence in all matters of navigation, trade, and business.^ § 129- The same distinction was familiarly exemplified in the civil law, by the case of an authority, even to buy a single thing for the principal. If the agent was authorized to buy generally, without fixing any price for the thing, the principal was bound by his purchase, at any price whatsoever. But, if the agent was limited as to price, then he could not bind the principal beyond that price. The former was a general, the a man a general agent, who is appointed to do one act, or to make one purchase, although he has unlimited authority to do that act. There would be no just logical objection to such distinctions ; but the cases in the books do not make them. And if they did, the distinctions would not meet to solve the difficulties in the authorities. Ante, § 73, 127, note ; post, § 129, 133. 1 Dig. Lib. 50, tit. 17, 1. 158 ; 1 Story on Eq. Jurisp. § 394. 2 Dig. Lib. 20, tit. 6, 1. 7 ; 1 Story on Eq. Jurisp. § 394. 3 Ante, § 119, 120. 4 Dig. Lib. 14, tit. 1, 1. 1, § 5 ; Ante, § 117; 1 Domat, B. 1, tit. 16, § 3, art. 3. 5 Ante, § 126, 127. CH. VI.] NATURE AND .EXTENT OF AUTHORITY, 151 latter a limited authority. Et quidem, si mandavi tibi, ut ali- quam rem mihi emeres, nee de pretio qiddquam statui, tuque emisti ; utrinque aetio nascitur. Quod, si pretium statuit, tuque pluris emisti ; quidam negaverunt, te mandati habere actionem, etiamsi paratus esses, id, quod excedit, remitiere ; nam iniquum est, non esse mihi cum illo actionem, si nolit ; illi vera, si velit, mecum esse. Sed Proculus recte eum, usque ad pretium statutum, acturum existimat ; Quce sententia sane henignior est} § 130, Pothier has laid down the general rule in a very- satisfactory manner, and says : " But the contract made by my agent, in my name, would be obligatory upon me, if he did not exceed the power with which he was ostensibly invested ; and I could not avail myself of having given him any secret in- structions, which he had not pursued. His deviation from these instructions might give me a right of action against him- self, but could not exonerate me in respect of the third person, with whom he had contracted conformably to his apparent authority ; otherwise, no one could he safe in contracting with the agent of an absent person."^ § ISl. The illustrations in our law of the same distinction between general agents, and limited or special agents, may be familiarly seen in the common case of factors, known to be such. They possess a general authority to sell ; and if in selling they violate their private instructions, the principal is nevertheless bound.s And it makes no difference, in a case of 1 Dig. Lib. 17, tit. 1, 1. 3, § 1, 2 ; Id. 1. 4 ; Potiier, Pand. Lib. 17, tit. 1, n. 42 to 44 ; 1 Liverm. on Agency, ch. 5, § 1, p. 96-99, (edit. 1818.) See 3 Chitty on Comm. and Manuf. 199 ; Hicks v. Hankin, 4 Esp. K. 114. 2 1 Pothier on Oblig. by Evans, n. 79. See also Id. n. 447, 448 ; Ante, § 73, 127-129. 3 Fenn v. Harrison, 3 Term E. 757, 762 ; S. C. 4 Term R. 177 ; Ante, § 73, 127, 128; Paley on Agency, by Lloyd, 199, note, (3d edit.); Id. 207, 208; Whitehead v. Tuckett, 15 East, K. 408 ; 3 Chitty on Comm. and Manuf. 198, 199 ; Pickering v. Busk, 15 East, K. 38, 43 ; Smith on Merc. Law, 57 to 60, 152 AGENCY. [CH. VI. this kind, whether the factor, (if known to be such,) has been ordinarily employed by the principal to sell, or whether it is the first and only instance of his being so employed by the principal ; for still, being- a known factor, he is held out by the principal as possessing, in effect, all the ordinary general authority of a factor, in relation to the particular sale.^ But if a common person, not being a factor, should be authorized to make a like sale, and he should violate his private instruc- tions, and deviate from his authority in the sale, the principal would not be bound. In such a case, no general authority is presumed, and he who deals with such an agent deals with him at his own peril ; Tor, in such a case, the principal has not held the agent out as a general agent.^ § 182. So, (it has been said,) if a person, keeping a livery- stable, and having a horse to sell, intrusts a servant with power to sell the horse, and directs him not to warrant the horse ; and the servant, nevertheless, upon the sale, should warrant him, the master would be bound by the warranty ; because the servant was acting within the general scope of his authority, and the public cannot be supposed to be cognizant of any pri- vate conversation between the master and the servant.^ But if the owner of a horse should send the horse to a fair by a stranger, with express directions not to warrant him ; and the (2d edit.) ; Id. ch. 5, § 4, p. 107, 108, (3d edit. 1843) ; Daniel v. Adams, Ambl. 495, 498 ; Johnson v. Jones, 4 Barbour, Ch. K. (N. Y.) 369. 1 Ibid. ; Paley on Agency, by Lloyd, 199, and note, (3d edit.) ; Ante, § 73, 81, 127, 128. 2 Ante, § 73, 127-129; Fenn v. Harrison, 3 Term Eep. 757, 762; S. C. 4 Term Rep. 177; 1 Liverm. on Agency, 103, 104, 111-113, (edit. 1818) ; Paley on Agency, by Lloyd, 167, 199 to 205 ; Id. 207, 208; East India Co.u. Hensley, 1 Esp. K. 112; 3 Kent, Comm. Leot. 41, p. 620, 621, (4tliedit.); Pickering v. Busk, 15 East, R. 38, 43 ; Gibson v. Colt, 7 John. R. 390; Munn V. Commission Company, 15 John. E. 44, 54 ; Rossiter v. Eossiter, 8 Wend. E. 494; Tradesmen's Bank v. Astor, 11 Wend. E. 87 ; Ante, § 12.7, note, § 128, note ; Lobdell v. Baker, 1 Mete. R. 193. 3 Ante, § 59 ; post, § 420, note. CH. VI.] NATURE AND EXTENT OF AUTHORITY. 153 latter should, on the sale, contrary to his orders, warrant him, the owner would not he bound by the warranty.^ § 133. This distinction, between cases of general agency and those of special agency, may seem, at first view, to import a diflference of doctrine founded more in arbitrary rules, than in just reasoning. But properly considered, the same princi- ple pervades and governs each of the cases. So far as the agent, whether he is a general, or a special agent, is in any case held out to the public at large, or to third persons dealing with him, as competent to contract for, and to bind the prin- cipal, the latter will be bound by the acts of the agent notwith- standing he may have deviated from his secret instructions and orders ; for otherwise such secret instructions and orders would operate as a fraud upon the unsuspecting confidence and conduct of the other party .^ Thus, for example, if a merchant should appoint a special agent pro hac vice, to buy or sell a cargo of cotton for him, in his discretion ; and he should, by an open letter state, that he had so authorized the agent to buy or sell on his account, and that he would ratify and confirm his acts in the premises ; a person, who should 1 Per Ashurst, J., in Fenn v. Harrison, 3 Term B. 760, 761 ; Paley on Agency, by Lloyd, 203, (3d edit.) But see Seignior and Walmer's case, Godbolt, K. 360, cited in Paley on Agency, by Lloyd, p. 323, and post, § 421, note. The prin- ciple of these cases is clear ; but the whole distinction turns upon this, as to the livery-stable keeper, whether the servant had, from the nature of his employ, ment or the business of his master, a general authority. In America, livery stable-keepers are not ™derstood to give their servants any general authority to sell their horses. Mr. Justice Bayley, in Pickering v. Busk, 15 East, 45, has put the case in its true light, as being that of a horse-dealer. " If," said he, "the servant of a horse-dealer, with express directions not to warrant, do war- rant, the master is bound ; because the servant having a general authority to selli is in a condition to warrant ; and the master has not notified to the world that the general authority is circumscribed." See also Helyear v. Hawke, 5 Esp. E. 72, 75 ; Coleman v. Riches, 29 Eng. Law & Eq. R. 326. 2 Jeffrey v. Bigelow, 13 Wend. R. 518 ; ante, § 73, 127 to 182 ; Anderson v Coonley, 21 Wend. R. 279 ; Munn v. Commission Co. 15 John. R. 44, 54 ; An- drews V. Kneeland, 6 Cowen, R. 354. 154 AGENCY. [CH. VI. deal with the agent upon the faith of that letter, and buy or sell the cargo of cotton accordingly, would be entitled to hold the principal bound by the acts of the agent, although the lat- ter might have violated his secret instructions, as to the price of the cotton purchased or sold. The law, in such a case, would hold the authority to purchase to be general upon the face of the letter, and the agent to possess authority to bind his principal, in regard to such purchase or sale, as much as if he had been a general agent, accustomed to make purchases, in numerous cases of the same sort for the principal.' But where the agency is not held out by the principal, by any acts, or declarations, or implications, to be general in regard to the particular act or business, it must from necessity be construed 1 See ScLimmelpennieli v. Bayard, 1 Peters, K. 264 ; 1 Liverm. on Agency, ch. 5, § 2, p. 107, 108, (edit. 1818) ; ante, § 73, 127, note ; Withington v. Heiv ring, 5 Bing. R. 442. The whole difficulty, in considering this doctrine, arises from confounding two things with each other, which are essentially distinct, naniely, the extent of the authority given to an agent, whether it be limited or unlimited, with the nature of the agency, in which he is employed, whether it be general, or special. A person may be a general agent, that is, he may he employed in the general business of his principal ; and yet he may be privately limited, in the exercise of his agency, by certain instructions given by his prin- cipal, far within the general scope of that business. Ante, § 73. On the other hand, he may be a special a|ent, that is, he may be employed for a particular object only ; and yet he may have an unlimited authority to act within the scope of his agency in that particular affair, or he may be limited therein by lite instructions. Ante, § 17, 18, 127, note. In each case, so far as he is held out to persons dealing with him, as having general power to act in the premises, that is, as having unlimited authority to act within the scope of his agency, whether general or special, his acts bind his principal notwithstanding his private and limited instructions. In each case, if the instructions and limitations upon his authority are known to persons dealing with him, and the agent exceeds them, the principal will not be bound. Mr. Smith, in his excellent Compendium of Mercantile Law, p. 46, 47, (2d edit.) has stated the distinction with clearness and brevity. " The appointment (of the agent) is his only authority. It may be general, to act in all his principal's affairs, or special, concerning some partic- ular object. It may be limited by certain instructions, as to the conduct he is to pursue, or unlimited, leaving his conduct to his own discretion." S. P. Smith on Merc. Law, ch. 5, § 2, p. 91, (3d edit. 1843.) See also the reasoning of Mr. Chief Justice Savage, in Jefirey v. Bigelow, 13 Wend. K. 518; ante, § 127 note, § 128, note, § 129, note ; Andrews v. Kneeland, 6 Cowen, K. 354. CH. VI.] NATURE AND EXTENT OP AUTHORITY. 155 according to its real nature and extent ; and the other party- must act at his own peril, and is bound to inquire into the nature and extent of the authority actually conferred.^ In such a case, there is no ground to contend, that the principal ought to be bound by the acts of the agent, beyond what he has apparently authorized ; because he has not misled the con- fidence of the other party, who has dealt with the agent. Each party is equally innocent ; and, in a just sense, it cannot be said, that the principal has enabled the agent to practise any deception upon the other party. The duty of inquiring, then, is incumbent on such party, since the principal has never held the agent out, as having any general authority whatsoever in the premises. And, if he trusts without inquiry, he trusts to the good faith of the agent, and not to that of the principal,^ This distinction between the effects of a general and a special agency seems (as Ve shall hereafter see) to be limited to cases of private agency ; and to be inapplicable to the case of public agents, who can bind the government, or the public authorities, only to the extent of the powers actually conferred on them.^ § lS4i. We have already seen to what extent, and under what circumstances, the acts of an agent will bind his princi- pal. It remains to consider, to what extent and under what circumstances, .the representations, declarations, and admissions J Ante, § 127, note, § 128, note; Snow v. Perry, 9 Pick. 542; Rossiter v. . Eossiter, 8 "Wend. 494 ; Denning v. Smith, 3 Johns. Ch. K. 344 ; Lobdell v. Baker, 1 Mete. E. 193. 2 This doctrine has been already adverted to in another place ; ante, § 127, note, § 128, note. But I have ventured to repeat it in the text, knowing how often it is misunderstood. The case of Withington v. Herring, 5 Bing. E. 442, recognizes the true point of the distinction ; and does, as I think, fully bear out the deductions in the text, as does the doctrine of Lord Kenyon in Penn v. Harrison, 3 T. E. 757, and of Lord Ellenborough in Pickering v. Busk, 15 East, 38, 43, and of the Supreme Court of U. S. in Schimmelponnich v. Bayard, 1 Peters, R. 264, 290 ; ante, § 81 ; Id. § 73. See also Paley on Agency, by Lloyd, 197-199, and note; Helyear v. Hawke, 5 Esp. E. 72; East India Company v. Hensley, 1 Esp. E. 112; 1 Liverm. on Agency, 107 to 119, (edit. 1818); Andrews v. Kneeland, 6 Cowen, E. 354. 3 See post, § 307 a; Lee v. Munroe, 7 Cranch, R. 366. 156 AGENCY. [CH. VI. of an agent will also bind his principal. And here it may be laid down generally, that no representations, declarations, or admissions of an agent, will bind his principal, except in cases within the scope of the authority confided to him ; subject, however, to the same distinction of which notice has been al- ready taken, between general agents and limited or special agents.^ For, where the acts of the agent will bind the prin- pal, there his representations, declarations, and admissions, respecting the subject-matter, will also bind him, i^ made at the same time, and constituting a part of the res gestae.^ § 135. Indeed, for most practical purposes, a party dealing with an agent, who is acting within the scope of his authority and employment, is to be considered as dealing with the princi- pal himself. If it is a case of contract, it *is {he contract of the principal. If the agent, at the time of the contract, makes any representation, declaration, or admission, touching the matter of the contract, it is treated as the representation, declaration, or admission of the principal himself.^ But the qualifications above stated are also most important to be attended to. The representation, declaration, or admission of 1 Ante, § 120 to 133 ; Fuller v. Wilson, 2 Gale & Dav. K. 460 ; Post, § 307 o; Graham v. Schmidt, 1 Sandford, Sup. Ct. N. Y. K. 74 ; N. Y. Life & Trust Co. V. Beebe, 3 Selden, 364 ; Doe v. Robinson, 24 Missis. 688. 2 Paley on Agency, by Lloyd, p. 255 to 274 ; 3 Chitty on Comm, and Manuf. 208, 209 ; Smith on Merc. Law, 67, (2d edit.) ; Id. p. 123, 124, (3d edit. 1843) ; Fairlie v. Hastings, 10 Ves. 125 ; 2 Starkie on Evid. Agent, p. 54 ; Marshall on Insur. B. 1, ch. 10, § 1, p. 453 ;^ Dawson v. Atty, 7 East, K. 367 ; Bree v. Hol- beck, Doug. R. 654, 657 ; American Fur Company v. U. States, 2 Peters, E. 358, 364 ; Fitzherbert v. Mather, 1 Term Rep. 12, 15 ; 2 Pothier on Oblig. by Evans; App'x. No. 16, p. 287, 288 ; North River Bank v. Aymar, 3 Hill, R. 262 ; Sandford v. Handy, 23 Wend. R. 260 ; Lobdell v. Baker, 1 Meto. R. 193 ; Thallimer v. Brinckerhoff, 4 Wend. R. 394; Lee v. Munroe, 7 Cranoh, R. 366 i Stewartson v. Watts, 8 Watis, R. 392 ; Carpenter v. Amer. Insur. Co. 1 Story, Rep. 57 ; {landall v. Ches. & Del. Canal Co. 1 Harring. Delaw. R. 234; Post, § 307 a; Bank of U. States v. Davis, 2 Hill, N. Y. R. 451, 461, 464. 3 2 Pothier on Oblig. by Evans, App'x. No. 16, p. 287, 288 ; 3 Chitty on Comm. and Manuf. 207, 208 ; Thallhimer v. Brinckerhoff, 4 Wend. 394; Jlub- bard v. Elmer, 7 Wend. R. 446 ; Ante, § 67, 68. CH. VI.] NATURE AND EXTENT OF AUTHORITY. 157 the agent, does not bind the principal, if it is not made at the very time of the contract, but upon another occasion ; or if it does not concern the subject-matter of the contract, but some other matter, in no degree belonging to the res gestm} [Thus the declarations of an agent while performing a cont'tact of labor and service for his principal, as a son for his father, are not admissible to prove the terms of his contract.^] § 136. The reasoning", upon which this distinction proceeds, has been very well explained by a late learned Judge.^ " As a general proposition," (said he,) " what one man says, not upon oath, cannot be evidence against another man. The ex- ception must arise out of some peculiarity of situation, coupled with the declarations made by one. An agent may, undoubt- edly, within the scope of his authority, bind his principal by his agreement; and in many cases by his acts. What the agent has said may be what constitutes the agreement of the principal; or the representations or statements may be the foundation of, or the inducement to, the agreement. Therefore, if writing is not necessary by law, evidence must be admitted, to prove the agent did make that statement or representation. So, with regard to acts done, the words, with which those acts are accompanied, frequently tend to determine their quality. The party, therefore, to be bound by the act, must be affected by the words. But, except in one or the other of those ways, I do not know, how, what is said by an agent, can be evidence against his principal. The mere assertion of a fact cannot 1 Peto V. Hague, 5 Esp. R. 135 ; Helyear v. Hawke, 5 Esp. R. 72, 74 ; Alex- ander w. Gibson, 2 Camp. 556 ; Paley on Agency, by Lloyd, 256, 257; Fairlie V. Hastings, 10 Ves. 125; Dawson v. Atty, 7 East, E. 367; 2 Starkie on Evid. Agent, p. 60 ; 2 Liverm. on Agency, 238, 239, (edit. 1818) ; 3 Chitty on Comm. and Manuf. 208, 209 ; 2 Pothier on Oblig. by Evans, App'x. No. 16, p. 287, 288 ; Thallhimer v. Brinckerhoff, 4 Wend. R. 395 ; Stewartson v. Watts, 8 Watts, E. 392 ; Hubbard v. Elmer, 7 Wend. R. 446. 2 Corbin v. Adams, 6 Cush. 93. See also Royall v. Sprinkle, 1 Jones, (N. C.) 505; Byers v. Fowler, 14 Ark. 87. 3 Sir William Grant. AGENCY. 14 158 AGENCY. [CH. VI. amount to proof of it ; though it may have some relation to .the husiness, in which the person making that assertion was employed as agent. For instance, if it was a material fact, that there was the bond of the defendant in the hands of [the principal,] that fact would not be proved by the assertion that [the agent,] supposing him an agent, had said there was ; for that is no fact, that is, no part of any agreement, which [the agent,] is making, or of any statement he is making, as induce- ment to an agreement. It is mere narration ; communication to the witness in the course of conversation ; and, therefore, could not be evidence of the existence of the fact. The admis- sion of an agent cannot be assimilated to the admission of the principal. A party is bound by his own admission ; and is not permitted to contradict it. But it is impossible to say, [that] a man is precluded from questioning or contradicting any thing any person has asserted as to him, as to his conduct or his agreement, merely because that person has been an agent of his. If any fact, material to the interest of either party, rests in the knowledge of an agent, it is to be proved by his testi- mony, not by his mere assertion." i [Thus the fact of agency. 1 Fairlie v. Hastings, 10 Ves. 126, 127; Garth v. Howard, 8 Bing. K. 451. The same doctrine is fully expounded by Mr. Justice Kennedy, in delivering the opinion of the Court, in Hannay v. Stewart, 6 Watts, K. 489. " In order to determine," (says he,) " whether the declarations or representations of an agent are admissible, as evidence against his principal, it may be proper, first, to state the grounds upon which they have been deemed to be so. The state- ments of an agent, generally, though made of the business of his principal, are not to be taken as equivalent to the admissions of the principal ; for then the latter would be bound by them, whether true or false, which would render the situation of every principal truly perilous. Every man has a right to make such representations of what he has done, as he pleases, and to bind himself to abide by them, whether true or otherwise ; and they, of course, may be given in evi- dence against him afterwards, when relevant to the issue trying ; not, however, because the facts therein stated are true ; but because he has the right to pledge himself in the same manner as if they were true ; and if true, justice naturally requires, that he should be bound by them ; or if not, it is no more than the infliction of a just penalty for his disregard of truth. But it would not be reasonable to hold him responsible, upon the same principle, for the declarations of his agent ; nor upon any principle, except that of truth, and the protection CH. VI.] NATURE AND EXTENT OF AUTHORITY. 159 or the extent of the authority, cannot be proved by the declar- ations of the alleged agent, although accompanied by his acts as agent.^] • § 137. Thus, for example, what an agent has said, or represented, at the time of the sale of a horse, which skle was authorized by his master, whether it be a representation or a warranty of soundness, or of any other quality, will be binding upon the master. But, what he has said upon the subject at another time, or upon another occasion, will not be binding upon him ; for it is no part of the res gestce ; and did not attach, as an incident or inducement to the sale.^ For such purposes the agent is no longer acting as agent of the master; and his declarations are not to be used as proofs against the master ; but the facts contained in those declarations must be proved aliunde.^ Indeed, in such cases, the agent himself may of those against loss or injury, that might otherwise arise, from their having con- fided in the representations of the agent, made by him at the time of entering into the agreement, or of transacting the business, under the authority of his principal." 1 Brigham v. Peters, 1 Gray, 139. 2 Helyear v. Hawke, 5 Esp. K. 72, 73; Lobdell v. Baker, 1 Mete. R. 193; North River Bank v. Aymar, 3 Hill, R. 262; Hubbard v. Elmer, 7 Wend. R. 446. 3 2 Starkie, Evid. Agent, 60, 61 ; Cooley v. Norton, 4 Cush. 93 ; Langhorne i;. AUnutt, 4 Taunt. R. 511 ; Betham v. Benson, 1 Gow. R. 45 ; Fairlie v. Hast- •ings, 10 Ves. 123; Paley on Agency, by Lloyd, 257, 268, 269; Masters v. Abraham, 1 Esp. R. 375 ; Hannay v. Stewart, 6 Watts, R. 489 ; Smith on Merc. Law, 66, 67, (2d edit.) ; Id. ch. 5, § 4, p. 123, (3d edit. 1843) ; Hubbard v. Elmer, 7 Wend. 446. Questions of a different nature may arije ; as, for exam- ple, whether the verbal declarations of an auctioneer, at a sale, shall be permitted to countervail or vary the printed particulars of the sale ; and also, whether parol declarations of an .agent, during the negotiation of a contract, afterwards reduced to writing, shall be admitted to control or vary that writing. But these are questions which more properly belong to the general law of evidence, than to the doctrines of agency ; since they may equally arise in the case of the principal himself, if he is the immediate party to the transaction. As to the case of the auctioneer, see Gunnis v. Erhart, 1 H. Bl. 289 ; Powell v. Edmunds, 12 East, R. 6; Howard v. Braithwaite, 1 Ves. & B. 210; Jones v. Edney, 3 Camp. R. 285 ; Ogilvie v. Foljambe, 3 Meriv. R. 53. As to the other case, see Pickering v. Dowson, 4 Taunt. R. 779 ; Kain v. Old, 2 B. & Cresw. 634. 160 AGENCY. [CH. VI. be properly called as a witness ; and, hence, it has been said, that his declarations are not the best evidence of the facts.'' § 138. Upon this ground it -is, that, vrhere an agent is authorized to pay money for work done for his principal, or where he is referred to, to settle and adjust any account or business, his admissions of the existence of the debt, and of its validity, will be sufficient to take the case out of the statute of limitations ; for it is connected with, and a part of, the very business of his agency.^ So, an acknowledgment by an agent 1 This suggestion does not show the true foundation of the rule, which admits or excludes the declarations and admissions of the agent ; for, in all such cases, the agent may be examined under oath. But, notwithstanding that, his declara- tions and admissions are clearly evidence, when a part of the res gestce. In Garth «. Howard, 8 Bing. R. 451, Lord Chief Justice Tindal said: "If the transaction, out of which this suit arises, had been one in the ordinary trade or business of the defendant, as a pawnbroker, in which trade the shopman was agent, or servant to the defendant, a declaration of such agent, that his master had received the goods, might probably have been evidence against the master, as it might be held within the scope of such agent's authority to give an answer to such an inquiry, made by any person interested in the goods deposited with the pawnbroker. In that case, the rule laid down by the Master of the Rolls, in the case of Fairlie v. Hastings, which may be regarded as the leading case on this head of evidence, directly applies. But the transaction with Fleming appears to us, not a transaction in his business as a pawnbroker, but was a loan by him, as by any other lender of money, at five per cent. And there is no evidence to show the agency of the shopman in private transactions, uncon- nected with the business of the shop. I doubted much, at the time, whether it could be received, and intimated such doubt, by reserving the point ; and now, upon consideration with the Court, am satisfied, that it is not admissible. It is dangerous to open the door to declarations of agents, beyond what the cases have already done. The declaration itself is evidence against the principal, not given upon oath ; it is made in his absence, when he has no opportunity to set it aside, if incorrectly made, by any observation, or any question put to the agent; and it is brought before the Court and jury, frequently, after a long interval of time. It is liable, therefore, to suspicion originally, from carelessness or misapprehension in the original hearer ; and again, to further suspicion, from the faithlessness of memory in the reporter, and the facility with which he may give an untrue account. Evidence, therefore, of such a nature, ought always to be kept within the strictest limits to which the cases have confined it ; and as that, which was admitted in this case, appears to us to exceed those limits, we think there ought to be a new trial." a Burt V. Palmer, 5 Esp. R. 145 ; Paley on Agency, by Lloyd, 267 ; Palethorp CH. VI.] NATURE AND EXTE^STT OF AUTHORITY. 161 « authorized to buy goods for his principal, that he has received the goods, will, if made while he is transacting the business, but not otherwise, be good evidence of the delivery of them to him, as against his principal.^ § 189- And not only will the positive acts, representations, declarations, and admission^ of an agent, when part of the res gestcB, be binding upon the principal ; but even his fraudulent or negligent statements, misrepresentations, and concealments will, in many cases, have the same effect.^ Thus, for example, if an agent, authorized to procure insurance, should conceal from" the underwriters a material fact within his own knowledge, it will be equally as potent to invalidate the insurance, as if it were concealed by the principal himself.^ [But it has been held in England, that where A, a principal, knowing a material objection to the letting of a tenement, as that an adjoining house was a house of ill-fame, employs B, an agent, to let the property, who is ignorant of such objection, and B innocently makes a misrepresentation to C concerning such estate, and thereby in- duces C to hire the tenement, the misrepresentation of the V. Furnish, 2 Esp. R. 511 n; Anderson ru. Sanderson, 2 Stark. K. 204; S. C. Holt, R. 591. 1 Biggs V. Lawrence, 3 Term K. 454. But see Bauerman v. Radenius, 7 Term R. 663, and Betham v. Benson, 1 Gow, R. 45 ; Drake v. Marryatt, 1 B. & Cresw. 473 ; Clifford u. Burton, 1 Bing. R. 199 ; Gregory v. Parker, 1 Camp. R. 394;. Paley on Agency, by Lloyd, 270, 272, 273; 2 Pothier on Oblig. by Evans, App'x. No. 16, p. 287, 288; Bingham v. Cabot, 3 Dall. 19 ; Garth v. Howard, 8 Bing. R. 451 ; New England Mar. Ins. Company v. De Wolf, 8 Pick. 56 ; Van Renssellaer v. Morris, 1 Paige, R. 13. 2Ante, §126, 127. 3 Marshall on Insur. B. 1, ch. 11, § 1, p. 466 ; Fillis v. Brutton, Marsh, on Insur. B. 1, ch. 11, § 1, p. 467 ; Stewart v. Dunlop, 4 Bro. Pari. Cas. 483 ; S. C. Marsh, on Insur. B. 1, ch. 11, § l,p. 468; Willes v. Glover, 4 Bos. & Pall. 14 ; Shirley u. Wilkinson, Doug. R. 306 n ; Roberts v. Fonnereau, Park on Insur. ch. 10, p. 285, (7th edit.) ; Seaman u. Fonnereau, 2 Str. R. 1183; Ruggles v. Gen. Int. Ins. Company, 4 Mason, R. 74 ; S. C. 12 Wheat. R. 408 ; 3 Chitty on Comm. and Manuf. 208, 289 ; Paley on Agency, by Lloyd, p. 256 to 262 ; Carpenters. Amer. Ins. Company, 1 Story, R. 57 ; Bank of U. States v. Davis, 2 Hill, N. Y. R. 451, 461,462. 14* 162 AGEJJCY. [CH. VI, agent will not be held to support an allegation of fraud and covin in the principal, since he had made no misrepresentation, not even to his agent, and his agent had made no misrepresenta- tion, since he had no knowledge of any such objection.^ Neither was there any proof that the principal had purposely employed an innocent agent that he might ignorantly make such misrep- resentation. But this case may not be inconsistent with the sound and perfectly well-settled principle, that if a principal seeks to enforce a contract made by his agent, he is as much bound by any material misrepresentation made therein by the agent, as if made by himself. Thus, if A obtains credit upon the recommendation of B, which is so far a fraudulent mis- representation, thati if made by A himself would avoid the sale, it will have the same effect, if its falsity was known by A, and he claims to hold the goods purchased by means of this fraudulent representation.^ So, where the directors of a joint 1 Cornfoot v. To-wke, 6 Mees. & Welsh. 358. This case has Sometimes been doubted, and sometimes sharply criticized; see Fitzsitnmons d. Joslin, 21 Verm. 129-141 ; but when understood in its true light' seems not open to the objections made. The jury at the trial found a verdict for the defendant, which was set aside by the Court of Exchequer, solely upon the ground that the allegation of fraud in the plaintiff, upon which the defence proceeded, was not proved by the evidence. But if there had been no allegation of fraud in the case, and the ' lessee had relied, not upon positive fraud in the plaintiff, but upon a misrepre- sentation merely, it was not denied by the Court, but that the contract might have been avoided for that cause, and the principal would have been bound by the misrepresentation of his agent. See National Exchange Co. v. Drew, 32 Eng. Law & Eq. R. 1, 14, 16. 2 Eitzsimmons v. Joslin, 21 Verm. 129. " In this case the creditors of a trader, who was insolvent, but who wished to purchase goods, being unwilling to extend to him further credit, told him, that they did not like to sell to him, if he could buy elsewhere, and gave him the name of another merchant, and authorized him to refer to them. He attempted to purchase of this merchant, and, being asked for references, gave the names of his original creditors, and was told to call again in half an hour. He did call again in the course of the day, and the purchase was effected. No inquiry was made by the vendor of the purchaser, as to his circumstances, nor did he give any assurances whatever relative thereto. On the same day, and after the purchase was effected, the purchaser met one of his original creditors, who told hifti that he had been called upon by the vendor, CH. VI.] NATURE AND EXTENT OF AUTHORITY. 163 stock company, by fraudulent reports of the standing and con- ditions of the company, induced third persons to contract with the company, and the latter was benefited by the transaction, it was held that the company would be bound by the misrep- resentation.^ So, where an auctioneer pretended to have re- ceived bids, not actually made, and thus ran up the price of the property from |20,000, the last real bid, to |40,000, at which it was struck off to the plaintiff, who had no knowledge of the fraud, it was held that the owners of the property were bound by this fraud, although they did not direct it, but claimed to hold the whole 1^0,000 paid.^] The reason seems to be, that, where one of two innocent persons must suffer, he ought to suJEer, who has misled the other into a false confidence in his and that ' he had given as good an account of him as he could and not make himself liable,' — ' that he had told him, that he, (the purchaser,) was a clever fellow, and was doing a thriving business in Vergennes, and that he (the cred- itor) had sold him goods, and he paid well, and he was ready to sell him more.' At the time of this transaction the purchaser was in arrears to these same origi- nal creditors, to the amount of several hundred dollars each, and their demands had actually been placed in the hands of their attorney at Vergennes, where the purchaser resided, for collection ; and, as soon as they learned, that this last pur- chase had been effected, they sent instructions to the attorney to attach the goods, as the property of the purchaser, upon their arrival at the place of destination. This was done ; and, as soon as the vendor was informed of the insolvency of the purchaser, which was within a week after the attachment, he demanded the goods of the sheriff, offering to pay freight ; but the sheriff refused to surrender them. The attachment was made upon suits in favor of the several original creditors ; and it did not appear, that either of ttiese creditors, except the one above mentioned, had made any representation whatever in relation to the matter. And it was held, that the purchaser was responsible for the rep- resentations made by his creditor, and that the vendor, having been cheated and deceived by means for which the purchaser was legally responsible, might sustain trover against the sheriff to recover the value of the goods so attached." ' National Exchange Co. v. Drew, 32 Eng. Law & Eq. K. 1. See also Burnes I'. Pennell, 2 House of Lords Cases, 497 ; Ranger v. Great Western Railway, 5 Id. 72 ; 27 Eng. Law and Eq. R. 35 ; Wontner v. Shairp, 4 Railw. Cas. 542. . 2 Veazie v. Williams, 8 Howard, 134. 164< AGENCY. [CH. VI. agent, by clothing him with apparent authority to act and speak in the premises, and who otherwise might receive an injury, for which he might have no adequate redress. § 139 «. The question has been made in cases of joint agency, (not of joint and several agency,) how far the acts, or. admissions, or representations, or concealment, or negligences of one agent in the common concern, intrusted to them, unknown to the others, will affect their principal. It would seem clear upon principle, that, where the authority given is joint, neither of the agents, can act, so as to bind the principal by his act without the cooperation of all the others hi the same act.^ If, then, the act of one joint agent alone will not bind the principal, upon what ground can his admissions, or "representations, or concealments, or negligences have a more conclusive and com- prehensive effect '? Yet it seems sometimes to have been thought, that, in cases of mere joint agency, the act of one of the several joint agents would bind the principal ; and certainly, if that be correct, the conclusion seems irresistible, that the admissions, representations, concealments, and negligences of one of several joint agents ought equally to bind the prin- cipal.^ § 140. Upon a similar ground, notice of facts to an agent is constructive notice thereof to the principal himself, where it arises from, or is at the time connected with, the subject-matter of his agency ; for, upon general principles of public policy, it is presumed that the agent has communicated such facts to the principal ; and if he has not, still the principal, having intrusted the agent with the particular business, the other party has a 1 Ante, § 42 to^4. 2 See Bank of the U. States v. Davis, 2 Hill, N. Y. E. 451, 463, 464, where the doctrine is maintained, that, in cases of joint agency, the principal is respon- sible for the conduct of each and all of his agents, while acting within the limits the power conferred on them, that is, on all of thera jointly. It deserves con- sideration, whether this doctrine is maintainable except in cases where the power is joint and several. Post, § 140, 140 a, 140 6, and note. CH. VI.] NATURE AND EXTENT OF AUTHORITY. 165 right to deem his acts and knowledge obligatory upon the principal ; otherwise, the neglect of the agent, whether designed or undesigned, might operate most injuriously to the rights anil interests of such party.' But, unless notice of the facts come to the agent, while he is concerned for the principal, and in the course of the very transaction, or so near before it that the agent must be presumed to recollect it, it is not notice thereof to the principal, for otherwise the agent might have forgotten it ; and then the principal would be affected by his want of memory, at the time of undertaking the agency.^ Notice, therefore, to the agent, before the agency is begun or after it has terminated, will, not, ordinarily, affect the princi- pal.^ § 140 a. We have already had occasion to consider how far, in cases of joint agency, the act, admission, representation, or concealment of one, without the knowledge or assent of the others, would or ought to bind the principal.* Probably, the same rule would be held applicable to notice in cases of joint agency. In cases of corporations, who act through the instru- mentality of agents, the same rule, as to notice, would seem 1 Paley on Agency, by Lloyd, p. 262 to 266 ; Fitzherbert v. Mather, 1 Term R.12, 16; Le Neve w. Le Neve, 1 Ves. p. 64 to 69; Hiern u. Mill, 13 Ves. 114 ; Id. 120 ; 3 Chitty on Comm. and Manuf. 208, 209 ; 1 Story on Eq. Jurisp. § 408; Astor v. Wells, 4 Wheat. R. 466 ; 2 Liverm. on Agency, p. 235 to 238, (edit. 1818) ; Cowen w.Smpson, 1 Esp. R. 290; Toulmin v. Steere, 3 Meriv. R. 210 ; Smith on Merc. Law, 67, (2d edit.) ; Id. ch. 5, § 4, p. 123, (3d edit. 1843) ; Berkeley v. Watling, 7 Adolph. & Ell. 29 ; Fulton Bank v. N. Y. and Sharon Canal Company, 4 Paige, R. 1^7, 136, 137 ; Bank of U. States v. Davis, 2 Hill, R. 451, 461, 464 ; Hovey v. Blanchard, 13 N. Hamp. R. 145 ; Sutton v. Dillaye, 3 Barbour, Sup. Ct. R..(N. Y.) 529 ; Ross v. Houston, 25 Missis. 591. 2Hiern u.Mill, 13 Ves. 120; 1 Story on Eq. Jurisp. §408; 2 Liverm. on Agency, 235, 237, (edit. 1818); Hargreaves u. Rothwell, 1' Keen, R. 159; Bracken v. Miller, 4 Watts & Serg. R. 102 ; Hood v. Fahnestock, 8 Watts,^R. 489,490; Lawrences. Tucker, 7 Greenl. 195; Boyd v. Vanderkemp, 1 Bar- bour, Ch, R. 28 7; fuller v. Bennett, 2 Hare, 402, where the subject is fully discussed. 3 Ibid. 4 Ante, §42, 139 a. 166 AGENCY. [CH. VI. properly to apply to their regular agents, as applies to the agents of a mere private person. But a nice question may arise, in cases where corporations act through the instrumen- tality of a Board of Directors or Trustees, or other official agents, how far notice to one of the directors, or trustees, or other official agents, is to be deemed notice to all, and binding upon the corporation. Thus, for example, suppose, in the case of a bank, one of the directors should have notice 'that a note offered for discount was invalid or void, from extrinsic facts, unknown to the other directors, and he should conceal those facts, and -the note should be discounted by the Board; the question would arise, whether notice to one director, and un- known to the others, was notice to, and obligatory upon, the corporation, so as to let in the proof as a defence against a suit on the note for non-payment. Upon this question, it is not easy to affirm what is the prevailing rule, since the authorities are not entirely agreed. On the one hand, it has been thought reasonable, that nothing but an official notice of the facts to the Board, or to the majority of the Board, acting as such in the particular discount, ought to bind the bank.-^ On the other hand, it has been insisted, that notice of the facts to any one of the directors, who acts in the discount, (but not unless he acts,) is sufficient to bind the corporation, although the other directors at the Board have no knowledge thereof.^ [So, 1 See Louisiana State Bank v. Seneoal, 13 Louis. R. 525, 527 ; Housatonic and Lee Bank v. Martin, 1 Mete. K. 294, 308 ; Commercial Bank v. Cunningliam, 24 Pick. R. 274, 276. On this occasion, tlie Court said: " The knowledge of Parker, although he was one of the directors of the Commercial Bank, is no proof of notice to that corporation, especially as he was a party to all these con- tracts, whose interest might be opposed to that of the corporation. To admit the stockholders or directors of a bank to subject it to liability, or to affect its • interests, unless they have authority so to do expressly by its charter, would be attended with the most dangerous consequences, and is certainly not sanctioned by any authority. Hallowell & Augusta Bank v. Hamlin, 14 Mass. E. 180." 2 Bank of U. States v. Davis, 2 Hill, R. 451 ; North RivSr Bank v. Aymar, 3 Hill, R. 262, 274, 275. CH. YI.]; NATURE AND EXTENT OF AUTHORITY. 167 in another case, it was held, that notice to the president of a banking corporation, that stock, standing upon the books of the bank in the name of one person, is held by him in trust for another, should be considered as notice to the corporation. And it is not necessary, in order to affect the corporation with notice of such trust, that there should have been a full communication of all the circumstances connected with § 140 i. If we examine the subject upon general principles, and with reference to practical convenience in the administra- tion of banks, it might seem, that, to bind the bank, the notice ought to be given to the proper agents of the bank, legally intrusted with the particular business, to which the notice relates. * If the business be legally confided to the cashier, notice to him ought to bind the bank, If it is to be done by a Board of Directors, as, for example, in the discounting of notes, they ought to have official notice of any illegality or in- formality affecting the notes. And notice to one director only, unknown to the others of the Board, ought not to bind the bank.^ But in one of the authorities, a distinction is taken between notice given to a director privately, and notice given to him offtcially, for the purpose of being communicated to the Board, although it should not be communicated to the Board. In the latter case it is said, that the bank is bound by the notice to the one director only, although it may not be in the former.^ In another case a distinction is taken between notice to a direc- tor, who acts at the Board, in discounting a note, of whose illegality or infirmity he alone has notice, and not the Board, 1 Porter v. Bank of Rutland, 19 Verm. 410. 2 Louisiana State Bank v. Seneeal, 13 Louis. R. 525, 527. See also National Bank v. Norton, 1 Hill, N. Y. E. 572, 578 ; Bank of U. States v. Davis, 2 Hill, R. 451, 463 ; Fulton Bank v. N. Y. & Sharon Canal Company, 4 Paige, E. 127, 136, 137. 3 National Bank v. Norton, 1 Hill, N. Y. R. 575, 578 ; Fulton Bank v. N. Y. & Sharon Canal Company, 4 Paige, R. 127, 129. 168 AGENCY. [CH. TI. and notice to a director, who does not act at the time of the discount at the Board. In the former case it is said, that the bank is bound ; in the latter it is not.-^ Perhaps it will be 1 Bank of U. States v. Davis', 2 Hill, R. 451, 464 ; North Elver Bank ». Aymar, 3 Hill, N. Y. R. 262, 274, 275. In the case of Bank of United States V. Davis, 2 Hill, N. Y. R. 451, 463, Mr. Ch. Justice Nelson, in delivering the opinion of the Court, said : " I agree, that notice to a director, or knowledge derived by him, while not engaged officially in the business of the bank, cannot and should not operate to the prejudice of the latter. This is clear, from the ground and reason upon which the -doctrine of notice to the principal, through the agent, rests. The principal is chargeable with this knowledge for the reason that the agent is substituted in his place, and represents him in the par- ticular transaction ; and as this relation, strictly speaking, exists only while the . agent is acting in the business thus delegated to him, it is proper to limit it to such occasions. But in this case, as has been already observed, Williams was a mem- ber of the Board, participating at the time jn the discounting of bills*and notes as one of the directors of the bank ; and as such procured the discount of the paper in question, avowedly for his own benefit, but knowing at the time that it belonged to Davis, one of the defendants. So far, therefore, as he may be re- garded as representing the bank in transacting its business at the Board, the institution must be considered as having knowledge of the fraudulent perversion of the bills from the object for which they were drawn. To this extent, his acts and knowledge concerning the object and ownership of the paper, are to he deemed the acts and knowledge of the institution itself. It is said, however, that Williams was Iftt one of the five empowered by the bank to represent it in this transaction ; that the bank is not therefore to be held responsible for his individual fraud at the time, nor can it be chargeable with his knowledge of the , facts, under which the paper .in question was discounted ; and that such knowl- edge is chargeable only when the agent has full power to act for the principal in the particular case. It is not to be denied, that if a principal employs several agents to transact jointly a particular piece of business, he is equally responsible for the conduct of each and all of them while acting within the limit and scope of their power, as completely so as he would be for the conduct of a single agent upon whom the whole authority has been conferred. He cannot shift or avoid this responsibility by the multiplication of his agents. It is also clear, that the corresponding responsibility of each of the several joint agents to the prin- cipal for the faithful discharge of their duties, is as coniplete and perfect as in the case of a single agency; and any prejudice to the principal, arising from fraud, misconduct, or negligence of either of them, would afford ground for re- dress from the party guilty of the wrong. These are general conceded princi- ples, for which no authority need be cited. One of the grounds for charging the principal with the knowledge possessed by the agent is, because the latter is bound to communicate the fact to the former, and is liable for any prejudice that may arise from a neglect in this respect; and hence the law presumes that the CH. VI.] NATURE AND EXTENT OF AUTHORITY. 169 found, that, if either of these distinctions is to prevail, it will sap the foundations, on which the security of all banking and principal has had actual notice. Now the duty of any one of the joint agents is as obligatory upon him in this respect, as if he had possessed the sole power in the matter of the agency, and any prejudice resulting from the neglect would afford a like redress. Again ; so completely is the principal represented by the agent while acting within the scope of his authority and employment, that the third party, for most purposes, is considered as dealing with the principal him- self. In the case of a contract, it is deemed the contract of the principal, and if the acfent at the time of the contract make any representation or declaration touching the subject-matter, it is the representation and declaration of the prin- cipal. Sandford v. Handy, 23 Wend. 260, and cases there cited. Upon these views it seems to me consistently and reasonably to follow, that in case of a joint agency by several persons, — as of the directors of a bank, — notice to any one, or the acts of any one, while engaged in the business of the principal, is notice to the bank itself. The corporation is acting and speaking through the several directors, who jointly represent it in the particular transaction. In judgment of law it is present, conducting the business of the institution itself; the acts of the several directors are the acts of the bank ; their knowledge the knowledge of the bank, and notice to them notice to the bank.'' In North Kiver Bank v. Aymar, 3 Hill, N. Y. E. 262, 274, the Supreme Court of New York recognized the authority of this case. In Fulton Bank v. N. Y. and Sharon Canal Company, 4 Paige, E. 127, 136, 137, Mr. Chancellor Walworth said: " There can be no actual notice to a corporation aggregate, except through its agents or officers. The directors or trustees, when assembled as a Board, are the general agents, upon whom a notice may be served ; and which will be binding upon their succes- sors and the corporation. But notice to an individual director, who has no duty to perform in relation to such notice cannot be considered a notice to the cor- poration. The notice, which Brown and Cheesebrough had of what took place at the house of the former, on the evening of the 7th of September, was not of itself legal notice to the bank that the fund was placed under the control of the finance committee ; and that Brown, although he left his signature, and appar- ently had the control of the money the next morning, was not in fact authorized to draw it from the bank. But if Cheeseborough had been authorized by the bank, as their president and agent, to agree to receive the money on deposit, the agreement made with him as such agent, would have been notice to the corpora- tion ; although he neglected to communicate the facts to the other officers of the bank, or to the board of directors. It is well settled, that notice to an agent of a party, whose duty it is, as such agent, to act upon the notice, or to communi- cate the information to his principal, in the proper discharge of his trust as such agent, is legal notice to the principal. And this rule applies to the agents of corporations as well as others." On the other hand, in Louisiana State Bank V. Senecal, 13 Louis. K. 625, 527, Mr. Justice Eost, in delivering the opinion of AGENCY. 15 170 AGENCY. [CH. VI. Other moneyed corporations, if not of all corporations, have been hitherto supposed to rest, to wit, that no act, or represen- tation, or knowledge of any agent thereof, unless officially done, made, or acquired, is to be deemed the act, representation, or knowledge of the corporation itself. If it is once promulgated, that the mere private knowledge of any director of a bank, or of any member of an official Board, is binding upon the bank, although unknown to the other members of the Board, when- ever he acts officially at the Board, or whenever it is his duty to communicate that knowledge to the Board, it will be found difficult to circumscribe the doctrine practically within any bounds short of binding the corporation in all cases, where any director has such private knowledge. It may, perhaps, be the Court, said : " It was proved at the trial, that the note was given in payment of land sold by Mrs. Peyohaud, and was delivered to her husband, Anatole Peyehaud, who had signed with her the deed of sale. That deed contains a clause, that the note, upon which this action is brought, shall not be negotiated, nor the payment thereof exacted, until the property sold shall be fully released from all liabilities resulting, or to result, from certain general mortgages then existing upon it. Peyehaud, being at that time a director of the Louisiana State Bank, offered the note for discount, before the mortgages were raised ; was present at the Board when it was acted upon ; took no part in the discount of it, and gave no information to the Board in relation to the restrictions con- tained in the act of sale. The note was discounted for his benefit, and the de- fendant now contends, that he was the agent of the bank, and that the knowl- edge of the agent being the knowledge of the principal, the plaintiffs are to be considered as having received notice, and ought not to recover. If the knowl- edge of those facts had been brought home to the president or cashier, we would unhesitatingly say, that the plaintiffs were bound by it, they being the executive oflScers of the bank, upon whom all notices and process may be served. But directors are not officers of the bank, in the proper sense of the word, nor have they individually any power or control in the management of its concerns. They act collectively, and at stated times, and have otherwise no more to do with the general management of the institution than the other stock- holders. The director, in this instance, had a direct interest in suppressing the information he possessed; and it would be extending constructive notices beyond all reasonable bounds, to say, that the plaintiffs must be held cognizant of facts, which are proved to have been intentionally concealed from them, by a person, who, individually, was neither their officer nor their agent." CH. VI.] NATURE AND EXTENT OF AUTHORITY. I7I correctly said, that, in all cases, it is the duty of every director to communicate all facts within his knowledge or notice, which are material to the interests of the bank. Whenever, there- fore, the question shall again directly arise in judgment, it will well deserve the profound consideration of those who shall be called upon to decide it, what, in a conflict of authority, ought, upon principle, to he the true rule to govern, with reference to the rights, and claims, and securities, not only of the members of corporations, but also of the public at large dealing with corporations. It may here be said in respect to both, Una solus, ambohus periculum. § 14iO c. If notice to any director, be notice to the corpora- tion, although never communicated to the other proper func- tionaries of the corporation, notice by any director ought equally to prevail in favor of the corporation, although not authorized by any act of the appropriate Board, superintending its concerns. Questions may easily be put upon this subject, which would involve considerations of a very delicate and im- portant nature. Would notice to a single director of a bank, of the dishonor of a bill or note indorsed by or on behalf of the bank, be notice to bind the bank, although the other direc- tors never had any knowledge thereof? Would notice of the dishonor of a bill or note indorsed to, and held by the bank, given by one of the directors, be good to bind the indorsers, although unknown to the Board of Directors, and never adopted by it 1 Would a bank, holding bills or notes indorsed to it by one of its directors, be affected with all infirmities, or illegalities, or frauds, which might attach to it in his own hands, upon the notion of constructive notice thereof I Would a mortgage, made to a bank by one of its directors, or by a third person, be affected by prior unregistered incumbrances or other equities, attaching to it, which were known at the time to such directors 1 Would a mortgagor be permitted to avoid a mortgage given by him to the bank, for a valuable consider- ation, without notice by the Board of Directors of any defect 172 AGENCY. [CH. VI. in the title, merely, because one of the directors had, at the time, secret knowledge of facts, which would avoid it 1 These questions are put merely to show the extent, to which the doc- trine of constructive notice may be carried in regard to corpor- ations, which are compellable, by their charters, to act through; the instrumentality of a Board of Directors. 8 140 J. On the other hand, notice of facts to the principal is ordinarily notice thereof to the agent ; for it is the duty of the principal to communicate to his agent notice of the facts, which come to his knowledge, touching the matter of the agency ; and if the principal suffers any loss or injury by want of such notice, he suffers by his own fault ; and if the other party is injured thereby, he ought to have correspondent redress.^ The law, therefore, imputes the knowledge of the principal to be the knowledge of the agent, either upon the presumption, that the principal has done his duty, or to avoid all circuity and difficulty, a§ to the mode and extent of the remedy. 8 141. We have already had occasion to remark, that, although the powers of agents are, ordinarily, Umited to par- ticular acts ; yet, that extraordinary emergencies may arise, in which a person, who is an agent, may, from the very necessi- ties of the case, be justified in assuming extraordinary powers; and that his acts, fairly done, under such circumstances, will be binding upon his principal.^ Thus, for example, a factor will be justified in deviating from his orders, directing him to sell at a stipulated price, if the goods are of a perishable nature, and the sale is indispensable, to prevent a total loss, or a 1 Mayhew v. Eames, 3 B. & Cresw. 601 ; Willis v. Bank of England, 4 Adolph. & Ell. 21, 39. 2 Ante, § 85 ; Post, 118, 193, 194, 237 ; 2 Kent, Comm. Lect. 41, p. 614, (4th edit.) ; 3 Chitty on Comm. and Manuf. 218; Liotard v. Graves, 3 Caines, R. 226 ; Lawler v. Keaquick, 1 John. Cas. 1 74 ; Drummond i'. Wood, 2 Caines, K. 310 ; Forrestier v. Bordman, 1 Story, R. 43. CH. VI.] NATURE AND EXTENT OF AUTHORITY. 173 greater loss} The master of a ship acquires in the same way, as we have seen, a superinduced authority over the cargo of the ship in cases of necessity, which does not belong to his ordinary agency.^ Upon the same ground, perhaps, an agent, not generally authorized to insure, might, in unforeseen exigen- cies, to prevent an irreparable loss to his principal, acquire a right to insure for his principal.^ So an agent, who is directed by his principal to place his funds in a certain place, may be justified or excused in sending them to another place, if there be reasonable ground of alarm and danger, which pre- vents him from obeying his orders.* § 14)2. The same doctrine would seem to apply to the case of a mere stranger, acting for the principal without any authority, under circumstances of positive necessity; as, for example, in the case of a stranger interfering to prevent irre- parable injury to perishable property, occasioned by fire, ship- wreck, inundation, or other casualties, or found without any known owner or agent, in order to its due protection or preser- vation.^ In such cases, he performs the functions of the N^otiorum G-estor of the civil law; and seems justified in doing what is indispensable for the preservation of the property, or to prevent its total destruction.^ Salvors, on land, equally with those at sea, in cases of this sort, are understood to be 1 3 Chitty on Cowm. and Manuf. 218 ; 1 Comyn on Contr. 236. But see Anon. 2 Mod. 100; Story on Bailments, § 455 ; Ante, § 85 ; Chapman ». Morton, 11 Mees. & "Wels. 540. 2 Ante, § 85, 118; The Gratitudine, 3 Kob. 255 to 258. 3 See Wolf u. Horncastle, 1 Bos. & Pull. 323 ; Paley on Agency, by Lloyd, 107, 108; 1 Liverm. on Agency, 123, 124. * Perez v. Miranda, 19 Martin, K. 494. s Story on Bailments, § 83. 6 Story on Bailments, § 189 ; Dig. Lib. 3, tit. 5, 1. 10, § 1 ; Id. 1. 45 ; Pothier, Pand. Lib. 3, tit. 5, n. 1 to 14 ; Pothier, App'x. Du Quasi Contrat Negot. Ges- torum; 1 Pothier on Oblig. n. 113 to 115; 2 Kent, Comm. Lect. 41, p. 616, (4th edit.) ; ErsL Inst. B., 3, tit. 3, § 52 ; 1 Stair, Inst. B. 1, tit. 8, § 3 to 6, by Brodie. 15* I74l AGENCY, [CH. VI. clothed with authority to dispose of the property saved for the interests of all concerned, if it be of a perishable nature, or unfit to await the regular determination of a court of justice.^ § 143. Cases bearing a strong analogy have also come under the cognizance of Courts of Equity. Thus, for exam- ple, where a foreign factor deviated from his orders, as to the price of goods to be shipped by him to his principal ; and the goods arrived ; and the principal refused to receive them ; the question arose, whether the principal was bound to return them, at all events to the factor, by a reshipment ; or, whether he was at liberty to act as an agent from necessity, for the benefit of the original factor ; and, whether, if it was for the interest of the latter, he might sell them on the spot ; and it was thought that he might. And, even supposing, that at law, under such circumstances, the principal would not be protected in such a sale, a Court of Equity would deal with it as a mat- ter of equitable agency.^ 1 Story on Bailm. § 83, 83 a, 84, 121 a, 189, 189 a, 190, 621 a, 622 to 625. 2 Paley on Agency, by Lloyd, 28-30, and note (m) ; Id. 32 ; Kemp v. Ptyor, 7 Ves. jr. 240 ; Cornwall v. Wilson, 1 Ves. 509 ; Smith on Merc. Law, 52, 53, (2d edit.) ; Id. cli. 5, § 2, p. 99, (3d edit. 1843) ; — Lord Eldon, on one occasion, said : " But I dcjjibt, whether it may not be held, and whether it has not been held, by special juries before me, that in such a case as this, of goods exported, and where the person receiving them abroad cannot return them, the vendee is authorized to sell them for the benefit of the vendor ; and may hold him liable in an action for damages, to the amount of the difference ; giving him the benefit of the sale in the foreign market." Again ; " I go upon these particular circum- stances ; that, where there is a contract of sale and delivery, and the goods might, from the nature of the contract, be re-delivered ; if under the circum- stances, they cannot be re-delivered, an equity arises from this, that the party cannot protect himself at law as he cannot re-deliver ; and he was led into that by the misrepresentation of the other. The vendee, therefore, has a right to the extent of his loss ; the vendor to an account of the sales in the foreign market ; and whether the most was made of them ; which can only be made out by an account under the particular circumstances." Again ; " I have a strong convic- tion, upon sound principles, confirmed by my short experience at Guildhall, that, if a man under a contract to supply one article supplies another, under such circumstances, that the party to whom it is supplied, must remain in utter ignor- ance of the change, untQ the goods are under circumstances, in which it would CH. VX.J NATURE AND EXTENT OF AUTHORITY. 175 be against the interest of the other to return or reject them, instead of doing what is best for him, selling them immediately, a jury would have no hesitation in saying, he ought to be considered, if he pleased, hot as a purchaser, but as placed by the vendor in a situation, in whioh, acting prudently for him, he was an agent. The consequence then, is, that he would be liable to account for the money received, subject to freight and other charges ; though, while the goods were in transitu, he had considered himself owner." Kemp v. Pryor, 7 Ves. jr. 240-242, 247. See also Cornwall v. Wilson, 1 Ves. 509, where the same doc- trine is affirmed by Lord Hardwicke, who said : " But, though I could incline to that, yet the present case turns on the latter part of the transaction, what defendant himself has done by taking these goods to himself, treating them as his own, not as factor for plaintiffs, as he would have himself considered by the custom of merchants ; as to which it is sworn, (and it is very true and reason- able,) that a merchant here, refusing the goods sent over' by his factor in a foreign country, who exceeded the authority, having advanced and paid his money on these goods, may be considered as having an interest in the goods as a pledge, and may act thereon as a factor for that person, who broke his orders, and may therefore insure these goods, as he has done ; which might be reason- able, as it was war time." 176 AGENCY. [CH. VII. CHAPTER VII. DUTIES AND OBLIGATIONS OF AGENTS IN EXECUTING AUTHORITY. § 144*. Let us, in the next place, proceed to the considera- tion of the duties, obligations, and responsibilities of agents. The latter, so far as their principals lare concerned, naturally grow out of the former. So far as third persons are con- cerned, they may, in some measure, depend upon, or arise from, collateral inquiries. § 14<5. And first, in relation to the duties and obligations of agents to their principals. These may admit of various con- siderations ; (1.) What is the proper mode of executing the authority ; and what virill be held a good execution thereof. (2.) What is the degree of diligence required of agents, in the proper exercise of their functions. (3.) What are the other incidental acts, which are required of them by law, in order to fulfiHheir duties and obligations. § 146. First. As to the proper mode of execution of their authority by agents. We have already seen that an agent can- not ordinarily delegate his authority, and, consequently, the act must be done by him in person, as it is a matter of personal confidence.^ Hence it follows, that if he is authorized to make a contract for his principal in writing, it must, in general, be personally signed by him, and it cannot be signed by his clerk, either in his own name, as agent, or in the name of the prin- 1 Ante, § 13 and 14 ; Paley on Agency, by Lloyd, p. 175-177 ; Coles v. Tre- cothick, 9 Ves. 236, 251, 252; Henderson v. Barnwall, 1 Y. & Jerv. 387; CoUy V. Kathbone, 2 M. & Selw. 299 ; Catlin v. Bell, 4 Camp. R. 184 ; Coombe'a case, 9 Co. E. 75, 76 ; Ex parte Sutton, 2 Cox, 84. CH. VII.] AUTHORITY, HOW EXECUTED. V^f^ cipal, sogs to bind the latter.^ We have also already seen how a joint authority is to be executed ; and therefore it is unneces- sary to recur to that subject in this place.^ § 147. But a most material consideration is, as to the par- ticular form in which the agent, when he acts personally, is to execute tl^e authority, so as to bind his principal. And as to this, the rule usually laid down in case's of written contracts, (subject, however, to the qualifications and exceptions hereafter stated,)^ is, that in order to bind the principal, and to make it his contract, the instrument must purport on its face to be the contract of the principal, and his name must be inserted in it, and signed to it, fod not merely the name of the agent, even though the latter be described as agent in the instrument ; or at least the terms of the instrument should clearly show, that the principal is intended to be positively bound thereby, and that the agent acts plainly as his agent in executing it.* In- 1 Coles V. Trecothick, 9 Ves. 235, 251, 252 ; Blore v. Sutton, 3 Meriv. E. 237 ; Henderson v. Barnwall, 1 Y. & Jerv. 387. But see Ex parte Sutton, 2 Cox, K. 84. 2 Ante, § 42, 44 ; Com. Dig. Attorney, C. 11. 3 Post, § 161, 162, 269, 270. 1 Stackpole v. Arnold, 11 Mass. R. 27, 29 ; Bedford Commercial Ins. Co. v. Co- vell, 8 Met. 442. Mr. Justice Parker, in delivering the opinion of the Court in the first case, said : " It might be sufficient for the decision of this cause to state, that no person, in making a contract, is considered to be the agent of another, unless he stipulates for his principal by name, stating his agency in the instru- ment which he signs. This principle has been long settled, and has been fre- quently recognized ; nor do 1 know of an instance in the books of an attempt to charge a person as the maker of any written contract, appearing to be signed by another, unless the signer professed to act by procuration or authority, and stated the name of the principal, on whose behalf he gave his signature. It is also held, that whatever authority the signer may have to bind another, if he does not sign as agent or attorney, he binds himself and no other person." [But see Lindus v. Bradwell, 5 Com. B. Kep. 583.] The same doctrine was affirmed in Bradlee v. Boston Glass Manufactory, 16 Pick. E. 347, 350. See also Ar- fridson v. Ladd, 12 Mass. R. 173-175 ; Savage v. Eix, 9 New Hamp. E. 263, 269, 270; Eice v. Gove, 22 Pick. 158, 161 ; Minard v. Eeed, 7 Wend. E. 68 . Pentzw. Stanton, 10 Wend. E. 271; Spencer i. Field, 10 Wend. E. 87. And Buch is now the well-settled law of Massachusetts as applied to bills of exchange 178 AGENCY. [CH. VII. deed, the rule has been laid dovni in broader terms ; ajid it has been said to be an ancient rule of the law, that, when any one has authority, as attorney, to do any act, he ought to do it in his name who gives the authority ; for he appoints the attorney to be in his place, and to represent his person ; and, therefore, the attorney cannot do it in his own name, nor as his proper act; but in the name and as the act of him who gives the authority.^ and promissory notes. See Bank of British North America v. Hooper, 9 Bos- ton Law R. May, 1856, p. 42 ; 5 Gray, R. We shall presently see that the doctrine here stated, if maintainable at all in respect to contracts not under seal, must be received with many qualifications and limitations. It seems directly opposed to the decision in HIggins v. Senior, 8 Mees. & Wels. 834, 844, and many other well-considered authorities. See post, § 154, 155, 160, 100 a, 161, 162, 269, 270, 275, 276, 391 to 400; Taintor v. Prendergast, 3 Hill, E. 72; Post, § 268. Indeed, in the case of the New England Mar. Insur. Comp. v. De Wolf, 8 Pick. R. 56, 61, Mr. Ch. Justice Parker laid down the doctrine in a manner which qualifies the conclusion from the general language of the case of Stackpole v. Arnold, 11 Mass. R. 27, 29, restraining it to cases of sealed instru- ments. He there said : " If Clapp had authority to make the guarantee for the defendant, and the words are such as not clearly to bind himself alone, and it can be ascertained that he intended to act for De Wolf, the latter will be bound. The authorities cited to maintain the position, that the name of the principal must be signed by the agent, are of deeds only, instruments under seal; and it is not desirable, that the rigid doctrine of the common law should be extended to mercantile transactions of this nature, which are usually managed with more attention to the substance than to the form of contracts." See also Andrews v. Estes, 2 Fairf. R. 267, where the rule in Coombe's case is affirmed to apply only to contracts under seal. 2 Kent, Comm. Lect. 41, p. 631 note (a), (4th edit); Post, § 160, 161. See also Daniells v. Burnham, 2 Louis. E. 243 ; American Jurist for January, 1830, vol. 3, p. 78, 79 ; Post, § 269, 270 ; Stetson v. Patten, 2 Greenl. 358 ; Stanton v. Camp, 4 Barbour, Sup. Ct. R. (N. Y.) 274 ; Taber v. Cannon, 8 Metcalf, R. 456 ; Dyer v. Burnham, 25 Maine, 10; Burnham v. Wil- liams, 7 Q. Rep. 103. ' Coombe's case, 9 Co. R. 75, 77 ; Comm. Dig. Aitorney,.C. 14 ; Paley on Agen- cy, by Lloyd, 180-182 ; 2 Kent, Comm. Lect. 41, p. 629-631, (4th edit) ; Clark V. Courtney, 5 Peters, R. 319, 349, 350; Shack v. Anthony, 1 M. & Selw. 573; Parker v. Kett, 1 Salk. 95 ; S. C. 2 Mod. R. 466 ; Lynch v. Postlethwaite, 7 Mill. Louis. R. 293 ; New Eng. Mar. Insur. Comp. v. De Wolf, 8 Pick. 56, 61 ; Andrews V. Estes, 2 Pairf. R. 267 ; Abbott on Shipp. P. 2, ch. 2, § 5, (edit. 1829) ; Abbott on Shipp. P. 3, ch. 1, § 2 ; Harner v. Hampton, 1 Harr. & John. R. 622 ; Amer- ican Jurist for January, 1830, fol. 3, p. 52 to 86 ; Wilks v. Back, 2 East, E. 142; Stinchfield v. Little, 1 Greenl. R. 231 ; Elwell v. Shaw, 1 Greenl. 339; CH. VII.] AUTHORITY, HOW EXECUTED. 179 § 148. This rule, thus laid down, is regularly true in regard to all solemn instruments under seal,^ although not, as we shall presently see, as to instruments not under seal.^ Therefore, if a person is authorized by a power of attorney to make a con- veyance under seal of the lands of his principal ; and he makes the conveyance by a deed in his own name, it will be a void conveyance.^ And it will make no difference in the case, that, in the deed, the agent describes himself as such ; as if he says, " Know all men by these presents, that I, A. B., as agent of C. D,, do hereby grant, sell, convey, &c.; " or if he signs and seals it, " A. B., for C. D. ; " for, in such a case, it is still his own deed, and not the deed of his principal.* For the same reason, if a .person be authorized by a power of attorney to make a release, and he draws and executes the same in his own Heffernan v. Addams, 7 Watts, K. 121 ; Mears v. Morrison, 1 Breese, Illinois E. 172; Sheldon V. Dunlap, 1 Harr. N. J. Rep. 245.^ i Ibid. a Post, § 154, 155, 275 to 279. 3 Coombe's case, 9 Co. K. 77 a; 1 Eoll. Abridg. Authority, p. 330, 1. 37; Com. Dig. ■Attorney, C. 14 ; Frontin v. Small, 2 Ld. Eaym. 1418 ; S. C. 2 S^r. R. 705; Wilts V. Back, 2 East, E. 142 ; Fowler v. Shearer, 7 Mass. E. 14 ; Elwell v. Shaw, 16 Mass. E. 42; S. C. 1 Greenl. E. 339 ; Copeland v. Mereh. Insur. Co. 6 Pick. 198; Lutz v. Linthicum, 8 Peters, E. 165; 2 Kent, Comm. Lect. 41, p. 631, 632; (4th edit.) ; Stone v. Wood, 7 Cowen, 453 ; Clarke v. Courtney, 5 Peters, R. 319, 349, 350 ; American Jurist for January, 1830, vol. 3, p. 71 to 85, where the leading cases are collected in a learned argument of Mr. Profes- sor David Hoffman, of Baltimore ; Stinohfield v. Little, 1 Greenl. E. 231 ; Sheldon v. Dunlap, 1 Harr. N. J. E. 245 ; Townsend v. Hubbard, 4 Hill, N. Y. Eep. 351, 357, 358. ■» Frontin v. Small, 2 Lord Eaym. 1418 ; S. C. 2 Str. 705 ; Wilks v. Back, 2 East, E. 142; Bacon v. Dubary, 1 Lord Eaym. 246; Paley on Agency, by Lloyd, 181 to 183 ; Bac. Abridg. Leases, I. § 10; Com. Dig. Attorney, C. 14- Spencer v. Field, 10 Wend. R. 87 ; White v. Cuyler, 6 Term E. 176 ; Appleton V. Binks, 5 East, 148 ; Cayhill v. Fitzgerald, 1 Wils. R. 28, 58 ; D'Abridgcourt V. Ashley, Moore, 818, pi. 1106 ; Bogart v. De Bussey, 6 Johns. R. 94; Taft v. Brewster, 9 Johns. E. 334; 2 Kent, Comm. Lect. 41, p. 6^, (4th edit.) ; Tip- petts ?). Walker, 4 Mass. E. 595; Fowler v. Shearer, 7 Mass. E. 14; Elwell V. Shaw, 16 Mass. E. 42 ; Fetter v. Field, 1 Louis. Ann. E. 80 ; Clarke v. Court- ney, 5 Peters, E. 349-351 ; Martin v. Flowers, 8 Leigh, Virg. E. 158 ; Hall v. Bainbridge, 1 Mann. & Grang. 42 ; Townsend v. Hubbard, 4 Hill, N. Y. E. 351 ; Skinner v. Gunn, 9 Porter, 305. 180 AGENCY. [CH. VII. name, it will not bind his principal, or be the release of the latter.i A Court of Equity, might, indeed, if the release were for a valuable consideration, compel the principal to make a release in his own name, or compel the agent to execute a proper release, or grant other relief adapted to the circum- stances.^ § 149. Upon the same ground, where an agent of the king is, by letters-patent, authorized to execute a deed of lease for the king, the deed must be drawn and executed in the name of the king, and the king's seal must be affixed thereto ; for if the agent affixes his own seal, and says, "In testimony whereof I have hereunto set my seal," the execution will be bad ; for unless it be the king's seal, it cannot be his deed of lease.^ The same principle will apply to the case of a power of attorney given by a corporation to execute a deed. To bind the corporation, the deed must be under the seal of the corpo- ration, and not under the seal of an attorney.* [And in a late 1 Com. Dig. Attorney, C. 14 ; Moore, K. 818, pi. 1106 ; Wells v. Evans, 20 Wend. R. 251. The statute of Maine, of 1823, eh. 220, (vol. 3,'p. 49,) pro- vides, that deeds made by an agent, in his own name, shall be valid, provided the agent had authority, and it appears on the' face of the deed that he meant to execute the authority. 2 See Yerby v. Grisby, 9 Leigh, Virg. K. 387 ; McNaughten,' v. Partridge, , 11 Ohio R. 223. 3 Bac. Abridg. Leases, I, § 10 ; Paley on Agency, by Lloyd, 181 ; Anonymous, Moore, R. 70, pi. 191. The anonymous case in Moore, K. 70, pi. 191, is very strong in point. There, the king, by his letters-patent, had authorized his sur- veyor to make leases ; and the surveyor made a lease beginning, " This Inden- ture, made between our Lord the King of the one part, and J. S. of the other part, witnesseth, &c. That our Lord the King, demiseth, &c." But at the end, the words were, " In testimony whereof, the said (the surveyor) hath here- unto set Jiis seal ; " and it was held, that the lease was void ; for the seal of the surveyor was not the seal pf the king ; and so the lease was not the lease of the kinjg. See also Clarke v. Coultney, 5 Peters, R. 349-351 ; Townsend v. Hub- bard, 4 Hill, N. Y. Rep. 351, 358. « Bank of Columbia v. Patterson's Adm'r, 7 Cranch, 299, 308 ; Damon v. Inhab. of Granby, 2 Pick. 345 ; Tippetts v. Walker, 4 Mass. R. 595, 597 ; Hatch V. Barr, 1 Ohio R. 390; Brinley v. Mann, 2 Gushing, 337, a strong case, on this point. Savings Bank v. Davis, 8 Conn. 192 ; Flint v. Clinton Company CH. VII.J AUTHORITY, HOW EXECUTED. 181 American case, a deed by a corporation, in which the formal part was, " Know all men, &c., that the New England Silk Co., a .corporation, by C. C. their treasurer, &c., do hereby grant, &c.," and signed thus, " In witness whereof, I, the said C. C, in behalf of said company, and as their treasurer, do hereto set my hand and seal. C. C, Treasurer of New Eng- land Silk Co.," was held not properly executed, and not the deed of the corporation.^] & Trustee, 12 N. H. R. 433. There is a distinction between doing an act by an agent, and doing an act by a deputy, whom the law deems such. An agent can only bind his principal, when he does the act in the name of his principal. But a deputy may do the act, and sign his own name ; and it binds his principal ; for the deputy in law has the whole power of his principal. Parker v. Kett, Salk. 95 ; Craig v. Radford, 3 Wheat. R. 594. , 1 Brinley v. Mann, 2 Cush. 337. Metcalf, J., said: "It is a rule of convey- ancing, long established, that deeds, which are executed by an attorney or agent, must be executed in the name of the constituent or principal. In Coombes's case, 9 Co. 76 b, it was resolved ' that when any has autljority, as attorney, to do any act, he ought to do it in his name who gives the authority ; for he appoints the attorney to be in his place, and to represent his person ; and therefore the attorney cannot do it in his own name, nor as his proper act, but in the name and as the act of him who gives the authority.' And in Fowler v. Shearer, 7 Mass. 19, Parsons, C. J., says, ' It is not enough for the attorney, in the form of the conveyance, to declare that he does it as attorney ; for he being in the place of the principal, it must be the act and deed of the principal, done and executed by the attorney in his name.' This doctrine, which was applied in Elwell v. Shaw, 16 Mass. 42, and in other cases cited by the demandants' counsel, and also in Berkeley v. Hardy, 8 Dowl. & Ryl. 102; must be applied to the deeds now before us. Both of these deeds were executed by C. Colt, jr., in his own name, were sealed with his seal, and were acknowledged by him as his acts and deeds. In one of them, it is true, he declared that he acted in behalf of the company, and as their treasurer ; and in the other he declared himself to be their treasurer and to be duly authorized for the purpose of executing it. Butthis, as we have seen, was ' not enough.' He should have executed the deeds in the name of the company. He should also have affixed to them the seal of the company, and have acknowledged them to be the deeds of the com- pany. 1 Crabb on Real Property, §§ 703, 705 ; 4 Kent Com. (3d edit.) 451 ; Stinchfield v. Little, 1 Greenl. 231 ; Savings Bank v. Davis, 8 Connect. 191 ; 3 Stewart oft Conveyancing, 189. If the deeds had been rightly executed in other respects, the seal which C. Colt, jr., affixed to Ifech of them (namely, a wafer and a paper, without any stamp or impression) might have been regarded as the seal of the company, according to the decisions in Mill Dam Foundery V. Hovey, 21 Pick. 417, and Reynolds v. Glasgow Academy, 6 Dana, 37. AGENCY. 16 18S AGENCY. . [CH. VII. ' § 150. The reason of this doctrine, although at first view it may seem somewhat artificial, is not wholly technical, hut seems founded in good sense. Where an interest is to pass by an instrument, it must in terms purport to be conveyed by him, in whom alone that interest is vested. A power of attorney to convey is but a naked power, and transfers no in- terest to the attorney ; and, consequently, as no interest is vested thereby in the agent, his own conveyance can pass none to his grantee. It cannot pass the interest of the principal ; for he is not a party thereto, or the grantor thereof ; and it is not the instrument which he has authorized to be executed.^ The case of Warner v. Mower, 4 Verm. 385, cited by the tenant's counsel, was decided upon a statute of Vermont, which authorizes certain corporations to convey real estate by a deed of their president, sealed with his seal. The Court, in that case, admitted that ' the form of the deed, at common law, would not, probably, be considered good.' " 1 Paley on Agency, 181 to 183, Bac. Abridg. Leases, I. § 10; Coombe's case, 9 Co. R. .77 ; Lutz v. Linthioum, 8 Peters, K. 165. The reasoning of Lord Ch. Baron Gilbert on this subject in Bac. Abridg. Leases, I. § 10, (4 Gwillim's Bac. Abridg. 140,) is very full on this point. " If one hath power " (says he) " by virtue of -a letter of attorney, to make leases for years generally by indenture, the attorney ought to make them in the name and style of his master, and not in his own name. For the letter of attorney gives him no interest or estate in the lands, but only an authority to supply the absence of his master by standing in his stead, which he can no otherwise do than by using his name, and making them just in the same manner and style as his master would do if he were pres- ent. For if he should make them in his own name, though he added also, by virtue of the letter of attorney to him made for that purpose ; yet such leases seem to be void ; because the indenture, being made in his name, must pass the interest and lease from him, or it can pass it from nobody. It cannot pass it from the master immediately, because he is no party ; and it cannot pass it from the attorney at all, because he has nothing in the lands. And then his adding hj virtue of the letter of attorney, will not help it; because that letter of attorney " made over no estate or interest in the land to him, and consequently, he cannot, by virtue thereof, convey over any to another. Neither can such interest pass from the master immediately, or through the attorney ; for then the same in- denture must have this strange effect at one and the same instant, to draw out the interest from the master to the attorney, and from the attorney to the lessee, which certainly it canno|do. And therefore all such leases made in that man- ner seem to be absolutely void, and not good, even by estoppel, against the attorney ; because they pretend to be made, not in his own name absolutely, but in the name of another, by virtue of an authority, iviich is not pursued. See also Clarke v. Courtney, 5 Peters, 849, 350. * • CH. VII.] AUTHORITY, HOW EXECUTED. 183 In this respect, the case differs from ^that of a power coupled with an interest in the property ; for, there, the deed of the agent may convey the interest vested in him in connection with the power .^ § 151. The same doctrine will apply to cases, where a deed is to be made to a person through the instrumentality of his agent. The deed must be made to, and in the name of, the principal ; for if it be made to, and in the name of, the agent, although it describes him as agent of the principal, as if it be a grant " to A. B. for, and as agent of, C. D.," the deed will convey nothing to the principal ; but it will take effect as a conveyance only to the agent himself, although it may be a trust for his principal.^ So, if an agent should in a sealed in- strument describe himself as an agent, and covenant that he himself, or that his principal will do a certain thing, and the deed is executed in his own name, he alone will be liable there- on, and the term " agent," will be deemed a mere descriptio personce.^ § 152. But where an act is to be done in pais, or in any other manner than by a written instrument, under seal, there, the act will be so construed, if it may be, as most effectually to accomplish the end required by the principal ; for, where the act may take effect, if construed one way, and will be de- feated, if consjtrued another way, Ut res magis valeat, quam pereat, it will, to accomplish the intention of the parties, be construed so as to give it validity.* Thus, if a power of attorney should authorize an agent to make a surrender of a copyhold, or to make livery of seisin ; and the agent should, in 1 Hunt V. Kousmaniere's Adm'r, 2 Mason, E. 244 ; S. C. 3 Mason, R. 294 ; S. C. 8 Wheat. R. 17-4, 202^ 203 ; S. C. 1 Peters, R. 1 ; Post, § 164. 2 See 1 Stair, Inst, by Brodie.B. 1, tit. 12, § 16 ; Clark v. Courtney, 5 Peters, R. 319, 349, 350, See Fox v. Frith, 10 Meea & Wels. 136. 3 Dealing v. Bullitt, 1 Black. Ind. E. 241 ; Hall v^ Bainbridge, 1 Mann. & Grang. R. 42 ; Post, § 450. • * Paley on Agency, by Lloyd, 181 ; Parker v. Kett, 1 Salk. 95 ; S. C. 12 Mod. R. 467; Anderson v. Highland Turnpike Co. 16 John. R. 86. 184i AGENCY. [CH. VII. making the surrender or livery, say, I, A.'B., as attorney of C. D., or by virtue of a letter of attorney from C. D., do sur- render, &c., or do deliver to you seisin of such lands (naming them) ; such an act will be held valid and binding upon the principal, as his own act; because (it is said) such acts are only ministerial or transitory acts in pais, the first to be done by holding the court-rod, and the last by delivering a turf or twig ; and when the agent does them as an attorney, or by vir- tue of a letter of attorney from the principal, the law pro- nounces them to be done by the principal himself, and carries the possession accordingly.-' So, the delivery of a deed by an agent for the principal, after its due execution, as the deed of the principal, is governed by the same rule ; for the delivery is an act in pais? The better reason in all such cases seems to be, that as the agent, doing the act, intends it to be done as the act of his principal, his act shall be construed accordingly, and not as his own personal act, upon the maxim already stated. § 153. And even in the case of deeds, if the name of the principal be properly stated therein, as the grantor, and the seal and signature of the principal are affixed thereto, the form of the words used in the execution and subscription of the deed by the agent will not be material. The true and best mode in such cases undoubtedly is, to sign the name of the principal ("A. B.") and to add, "by his attorney, C, D." But it will be sufficient, if the signature in such case be, " For A. B." (the principal) " C. D." (the agent) ; for, under such circumstances, the order of the words is not material,^ as the deed purports on its face to be the deed of the principal ; and 1 Bac. Abridg. Leases for Years, 1, § 10, (4 Bac. Abridg. by Gwillim, 140 ; Com. Dig. Attorney, C. 14; Coomte's case, 9 Co. K. 77 ; Parker v. Kett, 1 Salk. 95 ; S. C. 12 Mod. K. 467 ; Clarke v. Courtney, 5 Peters, E. 319, 5S0, 351. 2 Ibid. 3 Mussey v. Scott, 7 Gush. 216 ; Hunter v. Miller, 6 B. Monroe, 612 ; Wilburn V. Larkin, 3 Blackf. 55. CH. VII.] AUTHORITY, HOW EXECUTED. 185 the intention is to execute it in his name, and as his deed.^ Indeed, in all cases, where the instrument purports on its face to be intended to be the deed of the principal, and the mode of execution of it by the agent, however irregular and informal, is not repugnant to that purport, it would probably be construed to be the deed of the principal, especially where the In testimonium clause -is, that the principal has thereto affixed his seal.^ § 154i. But although the rule is thus strict in relation to the mode of executing sealed instruments, where, from the objects of the instruments, as well as the due technical and legal opera- tion of the same, it is essential, that they should be in the name 1 Wilks V. Back, 2 East, E. 142 ; Abbott on Shipp. P. 3, ch. 1, § 2, note (c.) In this case, the deed purported to be the deed of M. W. & J. B., and it was executed, having two seals; thus, "M. W." (L. S.) "for J. B. M. W. (L. S.);" and it was held to be the deed of J. B. Mr. Justice Grose said : " Whether the attorney put his name first or last, cannot aflfect the validity of the act done." Mr. Justice Lawrence said : " Here the bond was executed by W. for, and in the name of his principal, and this is distinctly shown by the manner of making the signature. Not that even this was necessary to be shown ; for if W. haA sealed and delivered it in the name of B., that would have been enough without stating that he had so done. There is no particular form of words required to be used, provided the act be done in the name of the principal." Mr. Justice Le Blanc said : "I cannot' see what difference it can make as to the order in which the names stand. But if, in this case, W^., instead of putting the name of his principal (B.) had made the execution in his own name only as '• W. (L. S.),' the case might have been different." Query, what would have been the effect, if the In testimonium clause had been, " In testimony whereof the said J. B. (the principal), hath hereunto' set his seal ; and the signature had been ' W. (L. S.) ' " ? The whole subject has been discussed with a good deal of learning by Mr. Professor Hoffman, in an article in No. 5 of the American Jurist, p. 71 to 81; Mears v. Morrison, 1 Breese, Illinois K. 172; Deming v. Bullitt, - 1 Black. K. 241, 242. It is to be remarked^ that this doctrine, as to the manner of the_ execution of a sealed instrument in order to bind the principal, is to be applied to the mere liability of the principal at law on the instrument ; for there are many cases, where, in Equity, the principal might be bound to fulfil the contract, notwithstanding he was not bound by it at law. Van Keimsdyk v. Kane, 1 Gallis. R. 630 ; S. C. 9 Cranch, 153 ; Devinney v. Reynolds, 1 Watts & Serg. 328; McNaughten v. Partridge, 11 Ohio K. 232; ante, § 148; Post, §162. 2 Ibid, and supr^, note ; Post, § 150. See also Anon., Moore, K. 70, pi. 191 ; Devinney v. Eeyholds, 1 Watts & Serg. 328 ; Stanton v. Gamp, 4 Barbour, Sup. Ct. R. 274. 16* 186 AGENCY. [CH. VII. of the principal, and under his seal ; yet a more liberal exposi- tion is allowed in cases of unsolemn instruments, and especially of commercial and maritime contracts, which are usually drawn up in a loose and inartificial manner.^ In such cases, in fur- therance of the pubhc policy of encouraging trade, if it can, upon the whole instrument, he collected, that the true object and intent of it are to bind the principal and not to bind the agent, courts of justice will adopt that construction of it, how- ever informally it may be expressed.^ Thus, where an agent duly authorized, made a promissory note thus ; " I promise to pay J. S. or order, &c.," and signed the note, "Pro C. D. A. B. ; " it was held to be the note of the principal, and not of the agent, although the words were, " I promise." ^ So, where A and B wrote a note in these words, '^Tfe jointly and severally promise," and signed it A and B for C, it was held to be the note of C, and not of A and B the agents.* So, where the note was, " I promise," &c., and it was signed by ihe agent, "For the Providence Hat Manufacturing Company," A. B. (the agent) ; it was held to be a note of the Company, and ;iot of the agent.' So a promissory note of a like tenor, signed by the agent in this- manner, "A. B., agent for C. D.," has been held to be the note of the principal, and not of the agent.® So, where a promissory note was in these words; " I, the subscriber, treasurer of the Dorchester Turnpike Cor- poration, for value received promise, &c. ; " and it was signed 1 N. E. Mar. Insur. Co. v. De Wolf, 8 Pick. 56 ; Ante, § 147, note ; BeU v. Bruen, 1 Howard, Sup. Ct. R. 169 ; S. C. 17 Peters,. K. 161. 2 Ibid.; Pentz v. Stanton, 10 Wend. R. 271 ; Mechanics Bank of Alexandria v. Bank of Columbia, 5 Wheat. R. 3«e ; Post, 269, 270, 275, 276, 395 to 400; Townsend v. Hubbard, 4 Hill, N. Y. Rep. 351 ; Alexander v. Bank of Rutland, 24 Verm. 227. 3 Long V. Coburn, 11 Mass. R. 97. 4 Rice V. Gove, 22 Pick. R. 158 ; Post, § 275, 276, 395. 5 Emerson v. Prov. Hat. Manuf. Co. 12 Mass. R. 237. 6 Ballou V. Talbot, 16 Mass. R. 461 ; Despatch Line of Packets v. Bellamy Manuf. Co. 12 New Hamp. R. 229 ; Roberts v. Button, 14 Verm. 195 ; Robertson V. Pope, 1 Richardson, 501 ; Campbell v. Baker, 2 Watts, 83. CH. VII.] AUTHORITY, HOW EXECUTED. 187 "A. B., Treasurer of the Dorchester Turnpike Corporation ; " it was held to be the note of the corporation, and not of the treasurer.^ So, where a note purported to be a promise by " The President and Directors " of a particular corporation, and was signed "A. B., President," [or J. W., Cashier,^] it was held to be the note, not of A. B., but of the corporation.^ But if the note had been, " I, A. B., President of the Corpo- ration (naming it) promise to pay, &c.," it would (it seems) have been deemed to be the personal note of A, B., and not of the corporation.* So, where the agent of a corporation drew 1 Mann v. Chandler, 9 Mass. E. 335. See Hills v. Bannister, 8 Cow. R. 31 ; Post, § 276 ; Barker v. Mechan. Fire Ins. Co. 3 Wend. E. 94 ; Mott v. Hioks, I Cowen, E. 513 ; Brockway v. Allen, 17 Wend. E. 40. 2 Farmer's Bank v. Troy City Bank, 1 Douglass, 107. 3 Mott V. Hioks, 1 Cowen, E. 513. See also Bowen ^rMorris, 2 T^unt. 374 ; Shelton v. Darling, 2 Conn. E. 435 ; Brockway v. Allen, 17 Wend. E. 40 ; Post, § 278 and note, § 279. * Barker v. Median. Fire Ins. Co. 3 Wend. E. 94. But see Brockway v. Allen, 17 Wend. E. 40 ; Hills v. Bannister, 8 Cowen, R. 31 ; Post, § 276 ; Mann V. Chandler, 9 Mass. E. 335. It is not easy to reconcile all the cases in the books on this subject ; although I cannot but think, that the true principle to be deduced from them is that stated in the text. See Paley on Agency, by Lloyd, p. 378 to 385, and Bayley on Bills, (2d Amer. edit, from 5th London edit.) by Phillips & Sewall, ch. 2, § 7, p. 68 to 76, (edit. 1836,) and notes, ibid ; Bowen V. Morris, 2 Taunt. 374 ; Kennedy v. Gouveia, 3 Dowl. & Eyl. 503 ; Dubois v. Del. & Hudson Canal Co. 4 Wend. E. 285. In Pentz v. Stanton, 10 Wend. E. 271, where an agent drew a bill for a purchase of goods, on account of his prin- cipal, and signed the bill A. B., agent, not stating the name of his principal, it was held that he, and not his principal, was personally bound by the bill, as drawer. But the principal was held liable for the goods, on a count for goods sold and delivered, as fhe form of the bill showed that exclusive credit was not given to the agent. There is a curious case cited in the Digest, Lib. 14, tit. 3, 1. 20, where the question, whether an agent, who wrote a letter to a creditor, stating' himself to be agent of his principal, was personally liable on the contract stated in the letter ; and it was held that he was not, as he wrote confessedly as an agent. Pothier, Pand. Lib. 14, tit. 3, u. 2 ; 1 Domat, B. 1, tit. 16, § 3, art. 8. In Dubois v. Del. & Hudson Canal Co. 4 Wend. R. 285, an agent signed and sealed a contract, " M. W., agent for the Del. & Hudson Canal Co. ; '' ajid it was held, that he was not personally liable thereon, as he was authorized to make the contract, although it was not under the seal of the corporation. S. P. Randall v. Van Vechten, 9 Johns. R. 60. But see^Hopkins v. Mehaffey, II Serg. & E. 129 ; Keah v. Davis, Spencer, E. 426. See post, § 274-278. 188 AGENCY. [CH. VII. a bill of exchange upon the president of the corporation, styling him such, and the latter accepted the bill, it was held, that he was not personally liable, if he had authority to accept the bill ; but the corporation was alone liable.^ So, where the agents of a corporation, being duly authorized, made a written contract as follows : " We hereby agree to sell," &c., and signed it- as agents of the corporation, it was held, that they were not per- sonally bound thereby ; but the corporation was.^ So, where A, an agent duly authorized, wrote on a note, " by authority from B, I hereby guaranty the payment of this note," and signed in his own name, A ; it was held to be the guaranty^f the principal, and not of the agent.^ So. where A, an agent, entered into and signed an agreement " as agent for and on behalf of B," and B shortly afterwards wrote on it the words, " I hereby sanction this agreement, and approve of A's having signed it on my behalf ; " it was held to be the agreement of B, and that A was not personally responsible thereon.* So, where on a sale of real property by a corporation, a memoran- dum of the- sale was signed by the parties, on which it was stated, that the sale was made to A. B., the purchaser, and that he and C. D., " mayor of the corporation, on behalf of himself and the rest of the burgesses and commonalty of the borough of Caermarthen, do mutually agree to perform and fulfil, on each of their parts respectively, the conditions of sale," and then came the signature of the purchaser, and of " C. D., mayor ; " it was held, that the agreement was that of the cor- poration, and not that of the mayor personally ; and that, con- 5 Lazarus v. Shearer, 2 Alabama, R. 718, N. S. See also Robertson w^Pope, 1 Kioh. 501 ; Wyman v. Gray, 7 Harris & Joins. 409 ; Lyman v. Sherwood, 20 Verm. 42. SMarnyt'. Beekman Iron Company, 9 Paige, K. 188; Evans w. WellSj 22 Wend. R. 325. 3 N. E. Mar. Ins. Co. v. Be Wolf, 8 Pick. 56. See Passmore v. Mott, 2 Binn. R. 201 ; Post, § 160 a, 161, 269, 2.70, 275, 276, 395 to 400. ' * Spittle V. Laveijjltr, 2'Brod. & Bing. R. 452. CH. VII.] ■ AUTHORITY, HOW EXECUTED. 189 sequently, the mayor could not sue thereon.^ So, where in articles of agreement the covenants were in the name of a cor- poration without mention of any agent, but the instrument was signed by the president of the corporation by his private name on behalf of the corporation, and sealed with his private seal, it was held, that he. was not personally liable thereon.^ On the other hand, unless some agency is apparent on the face of the instrument, it has been not unfrequently held, that the principal is not bound, although the agent had full authority to make the contract.^ Thus, where a wife had full authority to sign notes for her husband, and she made a note in her own name, not referring to her husband, either in the body of the note, or in the signature, it was held, that the husband was not bound.* [But the contrary has recently been held in England.^ So, where A, B and C made a note as follows : " We the subscribers, jointly and severally, promise to pay D, or order, for the Boston Glass Manufactory, the sum of — ," and signed the note in their own names, without saying " as agents," it was held, that they were personally bound, and not the corpo- ration.® So where A, (an agent,) made a promise in the fol- lowing terms : " I undertake on behalf of Messrs. E. & Co. to pay," it was held on the face of the paper to be the promise of A as agent of the principals, and not as himself a principal; and that A was not liable on the promise personally, unless it 1 Bowen v. Morris, 2 Taunt. 374, 387. S»e Kennedy v. Gouveia, 3 Dow. & Kyi. 503 ; Hopkins v. Mehaffey, 11 Serg. & R. 129 ; Meyer v. Barker, 6 Binn. 228, 231. See Woodes v. Dennett, 9 N. Hamp. K. 55 ; Post, § 275, 276. 2 Hopkins v. Mehaffey, 11 Serg. & Kawle, 129 ; Post, § 273, notet 3 Ante, § 147, note. * Minard v. Reed, 7 Wend. R. 68. And see Bank of North America v. Hooper, 9 Boston Law Reporter, 42. 6 Lindus v. Bradwell, 5 Com. B. Rep. 583. 6 Bradlee v. The. Boston Glass Manufactory, 16 Pick. 347. This case seems distinguishable from 'that of Rice v. Gove, 22 Pick. R. 158, principally in the circumstance, that the signatures of A, B, C did not purport to be as agents. See also Savage v. Rix, 9 N. H. R. 263 ; Trask v. Roberts, 1 -B. Monroe, 201, as to the effect of the words jointly and severally. Post, § 275, 276 ; Ante, 147, and note. 190 AGENCY. [CH. VII. was proved that he had no authority to make the contract, or that he exceeded the authority.^ [§ 154 a. So, where a written contract,^for the building of a church edifice was entered into by the defendants as the '.' com- mittee" of a religious society, and was subscribed by them as such, the intent being clearly to bind the corporation as princi- pal and not the defendants as agents, and the name of the princi- pal and the fact of the agency as well as the want of individual interest by the defendants in the subject-matter of the contract, all appeared on the face of the contract ; it was held that these facts might be pleaded in bar of an action upon such contsact against the members of the committee individually.^ § 155. The same principles of construction will apply to cases where bills are drawn, or accepted, or indorsed by agents.' If, from the nature and terms of the instrument, it clearly ap- pears not only that the party is an agent, bjat that he means to bind his principal, and to act for him, and not to draw, accept, or indorse the bill on his own account, that construction will be adopted, however inartificial may be the language, in further- ance of the actual intention of the instrument. But, if the terms of the instrument are not thus explicit, although it may appear that the party is an agent, he will be deemed to have contracted in his personal capacity.^ And there is no differ- 1 Downman v. Jones, 9 Jurist, p. 454 to 458, 1845. 2 Stanton v. Camp, 4 Barbour, Sup. Ct. R. (N. Y.) 274. 3 Paley on Agency, by Lloyd, ch. 6, § 1, p. 378 to 402 ; Stackpole v. Arnold, 11 Mass. K. 27, 29 ; Bedford Com. Ins. Co. v. Covel, 8 Met. 442 ; Leadbitter v. Farrow, 5 M. & Selw. 345 ; Kennedy v. Gouveia, 3 Dowl. & Ryl. 503 ; Stevens V. Hill, 5 Esp. K. 247 ; 2 Kent, Cbmm. Leot. 41, p. 630, 631, (4th edit.); Tip- pets V. Walker, 4 Mass. R. 595; White v. Skinner, 13 John. R. 307; Ante, § 154; Post, § 269, 275, 276 ; Dusenbury v. Ellis, 3 Johns. Cas. 70 ; Hastings v. Lovering, 2 Pick. R. 214, 221 ; Mills v^ Hunt, 20 Wend. R. 431 ; Newhall v. Dunlap, 2 Shepley, R. 280 ; Higgins v. Senior, 8 Mees. & Wels. 834, 844 ; Akin V. Bedford, 17 Martin, R. 502 ; Pentz v. Stanton, 10 Wend. R. 271 ; Eaton ». Bell, 5 Barn. & Aid. 34. A similar doctrine seems to pervade the Scottish law, and, in its application to particular cases, has given rise to no small diversity of opinion. See Thompson oil Bills of Exchange, p. 218, 219, (2d edit.) 1836; Post, § 275 a. CH. VII.] AUTHORITY, HOW EXECUTED. 191 ence on this point, whether the instrument be a deed or an un- sealed contract.! Thus, if an agent should execute a deed in his own name, and should thereby, " for and on behalf" of his principal, covenant, &c. ; he would be personally bound thereby, and not his" princip4-^ So, if an unsealed instrument should purport to be a memorandum of agreement between A. B. on behalf of C. D., of the one part, and E. F. of the other part, to execute a lease of certain premises of the principal, it would be held to be the contract of the agent, and binding on him personally.® A fortiori, an agent will be held to be personally bound, if the name or character of the principal should not ap- pear on the instrument ; or, if it should appear that no other person than himself could be legally bound by it, although he should sign his name thereto as agent, or as acting in an official capacity.* § 156. We shall have occasion, hereafter, to consider some- what more at large the cases, in which an agent incurs a per- sonal liability, on contracts made by himself; ® and therefore shall content ourselves, in this place, with a few other illustrations, founded upon written instruments, to justify the foregoing statements. Thus, if a broker should sell goods, and draw 1 Burrell v. Jones, 3 B. & Aid. 47 ; Iveson v. Conington, 1 B. & Cresw. 160 ; Post,§ 269, 290, 273-276 ; Ante, S 154; Pentz v. Stanton, 10 Wend. R. 270, 271. 2 Appleton V. Binks, 5 East, K. 148 ; Cayhill v. Fitzgerald, 1 Wilson, 28, 58 ; CassK. Kuddle, 2 Vern. 280 ; Norton v. Plerron, Ryan & Mood. R. 229 ; S. C. 1 Car. & Payne, 648; Tanner v. Christian, 29 Eng. Law. & Eq. R. 103 ; Ken- nedy V. Gouveia, 3 Dowl. & Ryl. 503 ; Duvall v. Craig, 2 Wheat. R. 45 ; 3 Chit- ty on Comm. and Manuf. 211, 212 ; 2 Kent, Coram. Lect. 41, p. 631, 362, (4th edit.) ; Post, § 269. 3 Norton v. Herron, 1 Car. & Payne, 648 ; S. C. 1 Ryan & Mood. R. 229 ; Tanner v. Christian, 29 Eng. Law & Eq. R. 103 ; Hopkins u. Mehaffey, 11 Serg. & R. 129 ; Post, § 269, 270, 274, note. * Norton c. Herron, 1 Car. & Payne, 648 ; Paley on Agency, by Lloyd, 386 to 388 ; Bayley on Bills, by Phillips & Sewall, from 5th London edit., ch. 2,§ 7, p. 72, 73, and notes; Pentz v. Stanton, 10 Wend. B. 271 ; Post, § 280 to 287. 5 Post, 260, 270, 272-276 ; Ante, § 154, 155. 192 AGENCY. [CH. VII. upon the buyer for the amount, in his own name, in favor of his principal, if the hill should be dishonored, he would be per- sonally liable, unless some special words were used in the bill to prevent it ; and this liability would not only extend to third persons, but even to his principal, although,he was bnown to be a mere agent. For, in such a case, the bill imports, on its face, a personal liabiHty, as drawer, in favor of all persons, who are, or become parties to the bill ; and there is nothing in the char- acter of an agent, which excludes such personal liability, if he chooses voluntarily to incur it in favor of his principal, as well as in favor of third persons.^ So, if a known agent should draw a bill on a third person, in favor of the payee, and direct the drawee to place the amount to the debit of his principal, he would be personally liable on the bill to the payee, unless he use other words to exclude it.^ § 157. Precisely the same personal liability will attach to an agent, who, in his own name, signs a note as maker, or a bill as drawer, or accepts a bill, or indorses a bill or note generally; for, in such a case, although he is a known agent, the making, or accepting, or indorsing of the instrument, is treated as an admission that it is his personal act, not only in respect to third persons, but also in respect to his jJrincipal.^ 1 Bayley on Bills, (5th edit.) ch. 2, § 7, p. 68 ; Post, § 269 ; Le Fevre v. Lloyd, 5 Taunt. 749 ; Mayhew v. Prince, 11 Mass. K. 54 ; Stackpole v. Arnold, 11 Mass. R. 27, 29; Thompson on Bills of Exchange, p. 218, 227, 228, (2d edit. 1836); Post, §.269. But see Sharp v. Emmett, 5 Whart. 288. 2 Leadbitter v. Farrow, 5 M. & Selw. 345 ; Bayley on Bills, (5th edit.), ch. 2, § 7, n. 46 ; Eaton v. Bell, 5 B. & Aid. 34 ; Post, § 269. 3 Stackpole v. Arnold, 11 Mass. E. 27, 29 ; Goupyu. Harden, 7 Taunt. K. 159 ; Leadbitter v. Farrow, 5 M. & Selw. 345 ; Maber v. Massias, 2 W. Bl. 1072 1 Le Fevre v. Lloyd, 5 Taunt. K. 749 ; Heuback v. Mollman, 2 Duer, 260; Stevens V. Hill, 5 Esp. K. 247. But see Kidson v. Dilworth, 5 Price, R. 564. In respect to the principal, the doctrine may, in many cases, require to be qualified ; for if, as between him and the agent, there was no intention to create a personal liability, it will not arise ; Castrique v. ButUgicy, before the Privy Council, where it was said that in Goupy v. Harden, 7 Taunton, 159, there is an intention to .make the agent liable. See Miles v. O'Hara, 1 Serg. & R. 32 ; Kidson v. Dil- CH. VII.] AUTHORITY, HOW EXECUTED. 1^8 8 158. Upon the same ground, where A, the consignee and agent of a ship, entered into an agreement of charter-party with the master of the ship ; and the agreement stated, that it was agreed hetween the master, of the one part, and A, consignee and agent of the ship and cargo, on behalf of B, the principal, on the other part ; and A signed the agreement in his own name, and not as agent ; it was held, that the agent. A, was personally bound by the instrument ; for the agent and master only were parties to it.-^ So, where an agent, by a writing, acknowledged himself to have received goods for his principal, and, by the same writing, bound himself to pay for the same at a day certain, he was held personally liable.^ § 159. The doctrine has been carried constructively a step further ; for, it has been held, that a bill, drawn by the principal upon an agent, with the description of his office or agency an- nexed, and directed to be placed to the account of the principal, will, if he accepts it generally, bind him personally; and the description will be treated as a mere designation of the person, and not as a qualification of his personal liability.® [So, where worth, 5 Price, R. 564 ; Post, § 269 ; Sharp v. Emmett, 5 Whart. R. 288. In this last case it was £eld, that if an agent remits a bill in payment, for goods sold on account of his principal, and indorses the bill, he does not thereby become re- sponsible thereon to his principal, if he received no consideration for guarantee- ing the bill, and does not expressly undertake to do so. 1 Kennedy v. Gouveia, 3 Dow. & Byl. 503 ; Paley on Agency, by Lloyd, 381,. •882 ; Meyer v. Barker, 6 Binn. R. 228, 234. See Thompson on Bills of Ex- change, 218, 227, 228, (2d-edit. 1836.) 2 Dyer, B. 230 b ; Post, § 269 to 273. 3 Thomas v. Bishop, 2 Str. R. 955 ; S. C. Cas. Temp. Hard. 1 ; Bayley on Bills,- (5th edit.) ch. 2, § 7, note 48; Paley on Agency, by Lloyd, ch. 6, § 1, p. 378) 379. This case seems to press the doctrine to the utmost limit of the law, if,, indeed, upon principle, it is sustainable at all. Post, § 269, note. In Mott d.. Hicks, 1 Cowen, R. 513, where the principal made a note payable to an agent,, (in his, the agent's, own name,) or order, and the payee indorsed the note " A. B. agent ; " it was held, that the indorsee could not recover personally against A. B. on this indorsement, he well knowing all the facts, and that the instrument wa» merely to give currency to the note. See also Rheinhold v. Dertzell, 1 Yeates,. R. 39 ; Miles u. O'Hara, 1 Serg. & Rawle, 32 ; Kidson v. Dilworth, 5 Price, R. 564,' 5 72, 573, See also Bayley on Bills, 2d Amer. from 5th English edit, by AGENCY. 17 194 AGENCY. [CH. VII. a bill of exchange, purporting to be " for value received in ma- chinery supplied to the adventurers in Hayter and Holne Moor Mines," was directed to the defendant as an individual, and he wrote across the bill the words " Accepted for the Company, W. C, Purser," he was held personally liable as acceptor, al- though he was not a member of the company, and had authority as purser to accept the bill.] ^ 8 160. As, on the one hand, we have seen, that agents can- not, ordinarily, bind their principals by a written contract under seal, executed in the agent's own name,^ and thus give a title to an action against them ; so on the other hand, the principal cannot, ordinarily, avail himself of such a contract under seal. Phillips & Sewall, in notes to p. 73, (edit. 1836.) See Thompson on Bills, p. 218, 227, 228, (2d edit. 1836.) iMareu. Charles, 34 Eng. Law and Eq. R. 138. Lord Campbell said :" I am of opinion that the defendant is personally liable as acceptor of these bills, and I come to this conclusion on principle and authority. The bills are drawn on him as an individual. In the body of them, to be sure, the consideration is stated to be for "machinery supplied the adventurers in Hayter and Holne Moor Mines." The defendant accepts the bills in these words, " Accepted for the companies. William Charles, purser." Now, I think that this will bear the interpretation that the defendant makes himself personally liable as acceptor ; and we ought to put such a construction on the words as will not make the ac- ceptance void, ut res -magis valeat quam pereat. The defendant must be sup- posed to have known that the bills would be entirely void unless he made him- self personally liable on them. There is nothing like a disclaimer of personal liability, as might have been the case if the words "■per proc." had been used. It seems to me to make no difference that the consideration is for goods supplied to the company. This only shows that the company are the parties ultimately indebted, and that as between the defendant and them there was an arrange- ment that he was to be repaid what he might have paid. In that sense he ac- cepts for the company. This case falls within the principle of Thomas v. Bishop, which may have been doubted on the other side of the Atlantic, but has always been looked upon as good law here. It is not necessary to say whether we agree with all the observations in Nicholls v. Diamond. The acceptance was there "^er proc." which might have amounted to a disclaimer of personal liability, if the defendant had not been a member of the company. We need not decide whether, if such words had been used here, the defendant would have been liable." See also NichoUs v. Diamond, 9 Exch. R. 164 ; 24 Eng. Law & Eq. K. 403 ; Ow^en v. Van Uster, 1 Eng. Law and Eq. R. 396 ; 10 Com. B. Rep. 318. 2 Ante, § 147 to 154. CH. VII.] AUTHORITY, HOW EXECUTED. 195 and sue the other contracting party thereon ; for it is treated as a contract, merely between the parties named in it, although one is known to be acting in the character of an a'gent.^ But even in cases of contracts so made under seal by an agent, there are exceptions to the rule, and it does not universally follow, that, although no action lies by, or against, the principal thereon, therefore, no obligations are created thereby between the prin- cipal and the other contracting party ; for, in many cases, such a contract will be collaterally binding on the principal, and create an implied obligation on his part to fulfil its stipulations, and entitle him also to corresponding rights against the other contracting party, although the direct remedy for a breach of the original contract may be, or must be, exclusively sought by, or against, the immediate parties thereto.^ The learned author of a very valuable work on Shipping, speaking on this subject, says : " I apprehend, the owners of the ship may be made re- sponsible, either by a special action on the case, or by a suit in equity for the faithful performance of the stipulations of a charter-party, made by the master under the circumstances before mentioned ;"^ that is, in cases, where the owners have authorized the master to enter in the charter-party. If this be so, there can be no reason, why the owners should not recipro- cally have an action on the case, or a bill in equity, to compel the charterer to fulfil his obligations, under the charter-party.* 1 U. States V. Parmele, 1 Paine, Cir. K. 252 ; Clarke's Ex'ors v. Wilson, 3 Wash. Cir. K. 560 ; New England Marine Ins. Co. v. De Wolf, 8 Pick. 56, 61; Andrews v. Estes, 2 Fairf. E. 267; Clark v. Courtney, 5 Peters, K. 319, 349, 350; ante, § 147 to 154. 2 Post, § 161, 162, note, § 278, 422; Abbott on Shipp. Pt. 2, ch. 2, § 5 to 8, (edit. 1829); Id. Pt. 3, eh. 1, § 2 ; Id. Pt. 4, ch. 1, § 5, (6th edit, by Mr. Serg. Shee, 1840.) 3 Abbott on Shipping, Pt. 2, ch. 2, § 5. 4 Post, § 422, 460, note; 1 Bell, Comm. B. 3,' Pt. 1, ch. 4, § 1, p. 506,, 507, (5th edit.); Id. § 2, p. 538 to 547; Dubois v. Delaware & Hudson Canal Co. 4 Wend. R. 285. But see Schack v. Anthony, 1 M. & Selw. 573. This case seems at variance with the doctrine maintained in Abbott on Shipping, and the 196 AGENCY. [CH. VII. § 160 a. In respect to written contracts, not under seal, a far more liberal doctrine has been established. It is very clear from the authorities, that it is not indispensable, in order to bind the principal, that such a contract should be executed in the name, and as the act, of the principal. It will be sufficient, if, upon the whole instrument, it can be gathered, from the terms thereof, that the party describes himself, and acts as agent, and intends thereby to bind the principal, and not to bind hii^self.-' Indeed, the doctrine, maintained in the more recent authorities, is of a far more comprehensive extent. It is, that if the agent possesses due authority to make a written contract, not under seal, and he makes it in his own name, whether he describes himself to be an agent, or not, or, whether the principal be known or unknown, he, the agent, will be liable to be sued, and be entitled to sue thereon, and his princi- pal also will be liable to be sued,^ and be entitled to sue thereon in all cases,^ unless, from the attendant circumstances, it is clearly manifested, that an exclusive credit is given to the agent, and it is intended by both parties, that no resort shall in case of Kandall v. Van Vechten, 19 Johns. E. 60, and that of Dubois v. Dela- ware & Hudson Canal Co. 4 Wend. R. 285. It seems to me difficult to support the doctrine, if the principal is not a party to the sealed instrument, executed by the agent, and yet is bound by its obligations, that an action of assumpsit is not maintainable against him for a breach of his implied promise to perform the obligations thereof; and, e converso, that he may not maintain a like suit against the other contracting party for any breach of the implied obligations on his part. The decision in Sohack v. Anthony, 1 Maule & Selw. 573, is but a dry declara- tion of the rale, promulgated by the Court without any reasoning in its support, and founded on no antecedent authorities. See also Moorsom v. Kymar, 2 Maule & Selw. 303 ; Post, § 273, 277, 278, 294, 422, 450 and note: See also Hall V. Bainbridge, 1 Mann. & Grang. 42. 1 Ante, § 147 ; Stackpole v. Arnold, 11 Mass. K. 27, 29. See also other cases, where the doctrine is laid down in this qualified manner, cited ante, § 147, note ; Rice v. Gove, 22 Pick. R. 158 ; Daniels v. Burnham, 2 Mill. Louis. R. 244 i Minard v. Reed, 7 Wend. R. 68 ; Pentz v. Stanton, 10 Wend. R. 271 ; Spencer V. Field, 10 Wend. R. 87. 2 See Lindus v. Bradwell, 5 Com. B. Rep. 583. 3 See Phelps v. Prothero, 32 Eng. Law & Eq. R. 474 ; Huntington v. Knox, 7 Cush. 374 ; Fuller v. Hooper, 3 Gray, 334. CH. VII.] AUTHORITY, HOW EXECUTED. 197 any event be had by or against the principal upon it.-^ The doctrine thus asserted, has this title to comnaendation and sup- port, that it not only furnishes a sound rule for the exposition of contracts, but that it proceeds upon a principle of reciprocity, and gives to the other contracting party, the same rights and remedies, against the agent and principal, which they possess against him. § 161. Admitting then the rule, usually laid down, to be generally true, that, in order to bind the principal and to make him personally liable upon a written contract, made by his agent, or to enable the principal to sue or to be sued thereon, 1 See Dupont v. Mount Pleasant Ferry Co. 9 Kichardson, 258. This more comprehensive doctrine is very fully stated and expounded in Higgins v. Senior, 8 Mees. & Wels. 834, 845, wliich will be cited more at large hereafter, (Sect. 270.) It is there said : " There is no doubt, that Tvhere such an agreement is made, it is competent to show, that one or both of the contracting parties were agents for other persons, and acted as such agents in making the contract, so as to give the benefit of the contract on the one hand to, and charge with liability on the other, the unnamed principals ; and this, whether the agreement be or be not required to be in writing by the Statute of Frauds. And this evidence in no way contradicts the written agreement. It does not deny that it is bind- ing on those, whom, on the face of it, purports to bind ; but shows, that it also binds another, by reason that the act of the agent, in signing the agreement, in pursuance of his authority, is in law the act of the principal." See Trueman V. Loder, 11 Adolph. & Ellis, 589 ; Post, § 269, 270, 272, 2'73 to 280, § 395 to 400 ; Nelson v. Powell, 3 Doug. R. 410 ; Thomson v. Davenport, 9 Barn. & Cresw. 78; Cothay w. Fennell, 10 Barn. & Cresw. 671; Garrett y. Handley, 4 B. & Cresw. 664 ; Batemen v. Phillips, 15 East, E. 272 ; Higgins v. Senior, 8 Mees. & Wels. 834, 844 ; Jones v. Littledale, 6 Adolph. & Ell. 486 ; Beebee V. Eoberts, 12 Wend. B. 413 ; Taintor v. Prendergast, 3 Hill. R. 72, 73 ; Inhabitants of Garland v. Reynolds, 2 Applet. R. 45 ; Taunton & South Boston Turnpike v. Whiting, 10 Mass. R. 327; Commercial Bank v. French, 21 Pick. 486, 491 ; Fisher v. Ellis, 3 Pick. 322 ; Fairfield v. Adams, 16 Pick. 381 ; New England Marine Ins. Co. v. De Wolf, 8 Pick. R. 56, 61, 62. See also 2 Kent, Comm. Lect. 41, p. 631, 632, (4th edit.) and note (o) ; Hopkins v. Laoouture, 4 Mill. Louis. R. 66 ; Williams v. Winchester, 19 Martin, R. 24 ; Hyde v. Wolf, 4 Mill. Louis. R. 236 ; Muldon v. Whitlock, 1 Cowen, R. 290; Porter v. Tal- cott, 1 Cowen, R. 359 ; Collins v. Butts, 10 Wend. E. 399 ; Sullivan v. Camp- bell, 2 Hall, R. 271 ; American Jurist for January, 1830, vol. 3, p. 78-80 ; Edmond v. Caldwell, 3 Shepley, R. 340 ; Smith on Merc. Law, p. 134 to 136, (3d edit. 1843) ; Hicks v. Whitmore, 12 Wend. R. 548 ; Hays v. Lynn, 7 Watts, R. 524 ; Small v. Attwood, 1 Younge, E. 407, 457. * 17* • 198 AGENCY. [CH. VII. it should be executed in his own name, and appear to be his own contract ; yet, it must be equally admitted, that there are .raany qualifications of it and exceptions to it, as well established as the rule itself.^ A few cases may be sufficient in this place, (as the subject will necessarily occur in other connections here- after) ^ to illustrate, not only the qualifications and exceptions to the general rule, as to sealed instruments, but also the more liberal doctrine applicable to unsealed instruments. Thus, for example, a written contract, made by a factor, in his own name, for the purchase or sale of goods for his principal, will bind the principal, and he may sue and be sued thereon, exactly as if he were named in it ; for it is treated as the contract of the principal, as well as that of the agent.^ So, if an agent should procure a policy of insurance in his own name, for the benefit of his principal, the agent, as well as the principal,* may sue thereon ; for it is treated properly as a contract, to which the principal, as well as the agent, is a party .^ So, if the 1 Post, 392 to 402. 2 Post, 269, 270, 275, 276, 395 to 400. 3 Ante, § 110: Paley on Agency, by Lloyd, 207, 208 ; 3 Chitty on Comm. and Manuf. 193, 210, 211 ; 1 Bell, Comm. § 212, 385, 386, 408, 409, 416, (4th edit.) ; Id. 490, 491, 494, 537, 558, (5th edit.) ; 2 Kent, Comm. Lect. 41 p. 622, 624, 630, (4th edit.) ; 1 Liverm. on Agency, ch. 5, § 1, p. 214, 217 ; Atkyns v. Amber, 2 Esp. R. 493 ; Paley on Agency, by Lloyd, ch. 2, § 2, p. Ill, note (3), ch. 4, § 1, p. 324 ; Snee v. Presoott, 1 Atk. 248 ; Morris v. Cleasby, 4 M. & Selw. 566 ; Allen v. Ayers, 3 Pick. 298 ; Taintor v. Prendergast, 3 Hill, R. 72; Commercial Bank v. Prench, 21 Pick. E. 486 ; Higgins v. Senior, 8 Mees. & Wels. 844 ; Post, § 269 to 275, 392 to 402. * But see Pinney v. Bedford Commercial Ins. Co. 8 Met. 348. 5 Ante, § 109, 111 ; Post, § 272, 392 to 402 ; 8 Chitty on Comm. and Manuf. 201 ; Wolff u. Horncastle, 1 Bos. & Pull. 323; Lucena v. Crawford, 3 Bos. & Pull. 98; De Vignier v. Swanson, 1 Bos. & Pull. 346 n.; Bell v. Gilson, 1 Bos. & Pull. 345; 2 Kent. Comm. Lect. 41, p. 630, 631, (4th edit.); Paley on Agency, by Lloyd, 21, 22 ; Marsh, on Insur. B. 1, ch. 8, § 3, p. 311, 312, (2d edit.) ; 3 Chitty on Comm. and Manuf. ch. 3, p. 212. In the case of the United States V. Parmele, 1 Paine's Cir. E. 252, Mr. Justice Livingston admitted, that the principal might sue, in case of a written contract of his factor. But, argu- endo, he expressed a doubt, whether he could sue on the instrument itself, as one to which he was a party. His language was : " But the Court does not know, that? such suit, (by the principal,) was ever sustained on the contract CH. VII.] AUTHORITY, HOW EXECUTED. 199 master of a ship, by a written contract in his own name, should contract for or order repairs, the owner may be sued therefor, as well as the master ; and the contract will be treated as the several contract of each.^ So, a bottomry bond, properly entered into by the master of the ship, in his own name, will bind the owner ; and a charter-party, made by the master, in his own name, or a bill of lading, signed in his own name, in the usual course of the employment of the ship, will buid the owner .^ It is true, that, from a technical principle of the com- mon law, the owner cannot be sued directly on a bottomry bond or a charter-party executed by the master under seal ; because it is not the deed of the owner.^ But, the owner is, nevertheless, bound by it ; and all the obligations and covenants contained in it are binding on him, although the form of the remedy against him may be different from what it is against the master.* It is not improbable that this liability of the principal was suggested by, if not derived from, the Edicts of itself, when one in writing took place between the factor and vendor, in which the name of the principal did not appear. What use might be made of such a paper as evidence, is one thing. But, that a suit can be brought upon it in the name of any but a party to it, has not been shown ; nor is it believed that such is tha law." The doctrine, however, which is here doubted- by the learned Judge, is now very firmly established, as may be abundantly seen iu the author- ities cited ; Ante, § 160 a, note, and Post, § 270, note, § 278. And see Hunt- ington V. Knox, 7 Cush. 375. 1 Abbott on Shipp. Pt. 2, ch. 3, § 1-3, (edit. 1829) ; Ante, § 116 ; Post, § 294 ; James v. Bixby, 11 Mass. 36, 37 ; Ingersoll v. Van Bokkelin, 7 Cowen, E. 670. 2 Abbott on Shipp. Pt. 2, ch. 2, § 1, 2, 3, 5-8, (edit. 1829) ; Ante, § 116 to 119 ; 3 Kent, Comm. Lect. 46, p. 161-163, (4th edit.) ; 1 Bell, Comm. § 446 to 466, (4th edit.) ; 1 Bell, Comm. B. 3, Pt. 1, ch. 4, § 1, p. 506, 507, (5th edit.) 3 Ante, § 116 ; Abbott on Shipp. Pt. 2, ch. 2, § 5 ; Blood v. Goodrich, 9 Wend. R. 68 ; 1 Liverm. on Agency, ch. 2, § 3, p. 35, 36, (edit. 1818) ; 3 Kent, Comm. Lect 46, p. 162, 163, (4th edit.) ; 1 Bell, Comm. § 482, (4th edit.) ; Id. p. 539, (5th edit.) ; Gardner v. Lachlan, 8 Sim. K. 126, 128 ; Meyer v. Barker, 6 Binn. 234 ; Pickering v. Holt, 6 Greenl. K. 160. * Abbott on Shipp. Pt. 2, ch. 2, § 5, (edit. 1829); Id. Pt. 3, ch. 1, § 2. But see 1 Liverm. on Agency, 294-296, (edit. 1818); Schack v. Anthony, 1 M. & Selw. 573 ; Leslie v. Wilson, 3 Brod. & Bing. E. 171 ; 1 Bell. Comm. B. 3, Pt. 1, ch. 4, § 1, p. 506, 507, (5th edit.) ; Ante, § 160 ; Post, § 162, 278, 294, 422, 450, note. 200 AGENCY. [CH. VII, the Roman Praetor, respecting the exercitorial action and insti- torial action, which we have already had occasion to consider.^ § 162. The true principle, however, upon which all these cases stand, undoubtedly is, that the principal authorizes the agent to contract in his own name, and thereby to bind the principal also ; and then the common law acting upon the in- tention of the parties, makes the party who would be ulti- mately liable, immediately liable to the other, whenever its forms of proceeding will enable it to do so.^ In this respect, there is a strong analogy to the jurisdiction exercised by Courts of Equity, in cases of assignment of choses in action, where the debtor is made directly liable to the assignee, although' he might not be so at law. The general interests of trade and commerce require this expapsion of the law of agency ; and the Edicts of the Praetor, were unquestionably founded on this, as a matter of public policy ; Facilius hoc in Magistro, quam Institore, admittendum propter utilitatem; Dicendwn tamen erit eo usque producendam utilitatem navigahtium? Indeed, it may be asserted, as a general rule, that in all cases, where an agent has contracted within the sphere of his agency, and the principal is not, by the form of the contract, bound at law, a Court of Equity will enforce it against the principal, upon principles ex cequo et hono^ 1 Ante, § 36, 116, 117, 122 ; Post, § 163 ; Abbott on Sbipp. Pt. 2, ch. 2, § S, 11 ; Id. Pt. 3, ch. 1, § 2, (edit. 1829); Dubois v. Del. & Hudson Canal Co. 4 Wend. K. 285 ; Randall v. Van Vechten, 19 Johns. R. 60. 2 See Abbott on Shipp. Pt. 2, ch. 2, § 5 to 8, (edit. 1829) ; Id. Pt. 3, ch. 1, § 2 ; Higgins v. Senior, 8 Mees. & Wels. K. 834, 844 ; Ante, § 160 a, and note ; Post, § 270 and note. 3 Dig. Lib. 14, tit. 1,1. 1,§5. ■* Clark's Ex'ors v. Van Keimsdyk, 9 Cranch, K. 153 ; Abbott on Shipp. Pt. 2, ch. 2, § 5, (edit. 1829); Id. Pt. 3, ch. 1, § 2 ; Ante, § 160, note; Dubois V. Delaware & Hudson Canal Comp. 4 Wend. K, 285. It seems, that in Louisiana, a power executed by the agent in his own name, will bind his principal, when he acts in the business intrusted to him, and according to the power conferred ; for in that law the liability of the principal depends upon the act done, not upon the form in which it has been executed. The only CH. VII.] AUTHORITY, HOW EXECUTED. 201 § 163. The Roman law seems, however, in some of its juridical regulations, to have proceeded upon principles some- what different froni ours, as to actions by and against parties, contracting through the instrumentality of agents. In general, the principal, although bound by the act of his agent, was not personally and directly liable to the other contracting party, nor could he enforce the contract against the latter.^ The only direct remedy (^Actio Directa) was between the immediate parties to the contract, that is, the agent and the other con- tractor. Thus Pothier states it as the undoubted rule (and he is confirmed by other civilians) ; Ex contractu Procuratoris, actio regulariter procaratori et adversus procuratorem quceri- tur ; nan autem Domino, aut adversus Dominum? There were exceptions to the rule, as has been 'before intimated ; but they were principally introduced by the Praetor, as a matter of equity, and hence called Actiones Utiles, in which the con- tract of an agent would be enforced against hi& principal ; as, for example, in cases of exercitors or owners of ships, by the Actio Exercitoria, and in other agencies of a common nature in trade, such as the Actio Institoria against shopkeepers, and others acting through agents, {Institores or Procuratores,) in difference in that law is, that where the agent contracts in his own name he adds his own personal responsibility to that of the person who has empowered him. Hopkins v. Lacouture, 4 Louisiana K. . 64 ; Hyde v. Wolff, 4 Louisiana K. 234. This seems also to be the rule of the foreign continental law ; and Pothier lays it down as cleai-ly the law of France. Pothier on Oblig. n. 82, 448; 2 Emerig. on Assur. ch. 4, § 12, p. 465-467. It was also clearly the doc- trine of the Eoman law, in which, in such cases, the Actio Utilis Institoria was allowed against the principal, and the Actio Exercitoria, against the owner, which are analogous to our suits in Equity.. Pothier on Oblig. n. 82, 447, 448 ; Dig. Lib. 14, tit. 3, 1. 3,'§ 17; Pothier, Pand. Lib. 14, tit. 3, n. 17, 18 ; Dig. Lib. 14, tit. 1, 1. 1, § 7-9 and 12 ; Pothier, Pand. Lib. 14, tit. 1, n. 9 to 18 ; 2 Kent, Comm. Lect. 41^ p. 630, note (d.) (4th edit.) ; Ante, § 160 ; Post, § 163, -note, § 278, 422, 450. 1 Post, § 261, 271, 425, 426. 2 Pothier, Pand. Lib. 3, tit. 3, n. 9, 10 ; 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 16 ; Ersk. Inst. B. 3, tit. 3, § 43. 20£ AGENCY. [CH, VII. favor of commerce.^ And it would seem, that, in the modern nations recognizing the civil law, as the basis of their jurispru- dence, the like action (Actio Utilis) will generally he by or against the principal upon the contract of his agent ; and that it is competent for the agent to contract in his own name di- rectly, or in the name of his principal only. Such, certainly, is the law in Scotland and in France.^ In cases of this sort, where the agent contracts in the name of his principal, having due authority, the principal is directly bound, and the agent is not (in general) personally liable. But if the agent makes the contract for his principal in his own name, he incurs a per- sonal responsibility, although there is an accessorial obhgation on the part of the principal.^ § 164. Hitherto, for the most part we have been consider- ing cases of pure agency, where the authority is unclothed with any real or apparent interest in the property itself. But where the authority is coupled with an interest in the property itself, 1 Ersk. Inst. B. 3, tit. 3, § 43, 46 ; 1 Stair, Inst. B. 1, tit. 12, § 16, 18, 19 ; Pothier, Pand. Lib. 3, tit. 3, n. 1, 2, 6, 9, and 10, and note ibid. (3) ; Pothier on Oblig. 11. 82, 448-450; Ante, § 117. 2 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 16 ; Pothier, on Obliga. n. 447, 448; Id. n. 74, 82. Pothier, on Oblig. (by Evans,) n. 82, speaking on this subject, says : '' "We contract through the ministry of another, not only when a person merely lends us his ministry, by contracting in our name, and not in his own, as when wo contract by the ministry of a tutor, curator, agent, &c., in their quality as such. We are also deemed to contract by the ministry of another, though he contracts himself in his own name, when he contracts in relation to the affairs, which we have committed to his management ; for we are supposed to have adopted and approved, beforehand, of all the contracts, which he may make respecting the affairs committed to him, as if we had contracted ourselves, and are held to have acceded to all the obligations resulting therefrom. Upon this principle is founded the Actio Exercitoria, which those, who have contracted with the master of a ship for matters relative to the conduct of such ship, have against the proprietor, who has appointed the master. Upon the same principle is founded the Actio Institoria, which those, who have contracted with the man- ager of a commercial concern, or a manufactory, have against the employer, (le commettant,) and the Actio Utilis Institoria, which relates to contracts made with a manager of any other kind." Post, § 271. 3 Pothier on Oblig. n. 447-449. CH. VII.] AUTHORITY, HOW EXECUTED, 203 there (as we have seen)^ the authority over it may be, and, in general, properly is, executed in the name of the agent himself, and not in that of the principal. Perhaps some of the cases of factors, and masters of ships, and insurance agents may be explained upon this broad principle ; for they are in some cases clothed with a legal interest in the property, or the con- tract.^ Thus, if the principal has clothed a factor with the legal title to the property, subject to his own equitable owner- ship, or has authorized the factor to sell it in his own name, there cannot be a doubt, that he may so sell it ; and the legal title will pass to the purchaser.^ The master of a ship, too, who sells the ship or cargo, or a part thereof, in a case of necessity, generally sells it in his own name, and is presumed to be clothed with this superinduced authority in such extremi- ties, by virtue of his office.* But the more common cases, in which the principle is applied, are, where there is an author- ity coupled with an interest in mortgages and other convey- ances of real or personal property to the grantee, in which is also contained an authority to the grantee to sell the property under certain circumstances. In such cases, the legal estate in the property being in the grantee, he is at liberty to sell it in his own name, and to confer thereby, under the circumstan- ces contemplated by the conveyance, an absolute title to the purchaser.® But, where no interest whatever in the property is conveyed to the grantee of the authority, although, the in- 1 Ante, § 150 ; Post, § 399, 400. 2 Ante, § 116, 150, 161 ; Post, § 278, 298, 299, 399-401. 3 Post, § 397, 400, 401 ; Paley on Agency, by Lloyd, Pt. 1, ch. 3, § 5, p. 207, 208 ; P. 2, ch. 3, § 5, p. 288, 289 ; Coates v. Lewes, 1 Camp. E. 444 ; Baring v. Corrie, 2 Barn. & Aid. 137; 3 Chitty on Comm. and Manuf. ch. 3, p. 205, 206; Martini v. Coles, 1 M. & Selw. 140, 147 ; Pickering v. Busk, 15 East, 38. * The Gratitudine, 3 Rob. 257 to 263 ; The Sohr. Tilton, 5 Mason, R. 481 ; Ante, 116 to 118. 5 See Hunt v. Rousmaniere's Adm'or, 2 Mason, R. 244 ; S. C. 3 Mason, R. 294; 8 Wheat. R. 174; S. C. 1 Peters, R. 1, 13; Ante, § 150; Post, § 399, 400. 204* AGENCY. [CH. VII. strument is designed to be a security for debts due to him, the sale by the grantee, to bind the principal, must be in his name, and not in that of the grantee.^ § 165, In the next place, let us consider, what in other re- spects will be held to be a good execution of the authority. And here it may be laid down as a general rule,, that, in order to bind the principal, (supposing the instrument to be in other respects properly executed,) the act done must be within the scope of the authority committed to the agent.^ In other words, his authority, or commission must be punctiliously and prop- erly pursued; and its limitations and extent duly observed, although a circumstantial variance in its execution will not de- feat it.* If the act varies substantially (and not merely in form) from the authority or commission in its nature, or extent, or degree, it is void, as to the principal, and does not bind him.* [And w^here the agent of a corporation was authorized to borrow money from a bank, and to execute the note of the corporation therefor, and he borrowed the money accordingly, but executed a bond therefor under the seal of the corpora- tion, it was held that he did not pursue his authority, and that his act was not binding on his principal.^] Of course, this doctrine is to be taken with an exception of the cases of a general authority, where there are secret instructions limiting it, to which our attention has been already directed.^ Thus, for example, if an agent is authorized to do an act upon con- 1 See Hunt v. Rousmaniere's Adm'or, 2 Mason, K. 244 ; S. C. 3 Mason, R. 294 ; 8 Wheat. K. 174 ; S. C. 1 Peters, E. 1, 13 ; Ante, § 160 ; Post, § 399, 400. 2 Ante, § 126 to 133. 3 Com. Dig. Attorney, C. 15 ; North River Bank v. Aymar, 3 Hill, E. 262; Nixon V. Hyserott, 5 John. E. 58 ; Batty v. Carswell, 2 John. E. 48. 4 Com. Dig. Attorney, C. 11, 14, 15 ; North Eiver Bank v. Aymar, 3 Hill, R. 262 ; Nixon v. Hyserott, 5 John. E. 58 ; Batty v. Carswell, 2 John, E. 48. 5 Mayor and Aldermen of Little Eocku. State Bank, 3 Arkansas, E. 227. 6 Ante, § 73, 126 to 133; Pothier on Oblig. n. 79; Tradesman's Bank v. Astor, 11 Wend. E. 87. CH. VII.] AUTHORITY, HOW EXECUTED. 203 dition, and^he does it absolutely ; or, vige versa, if he is author- ized to do an act absolutely, and he executes it upon condition ; in such cases the act will not bind the principal.^ On the other hand, if a general discretion is reposed, the act of the agent, however indiscreet, becomes obligatory, unless, indeed, there is such gross misconduct, as amounts to a fraud upon the princi- pal, and that misconduct is known to the person contracting with the agent.^ » § 166. But the question may often arise, whether an act is wholly void, or not, when the agent does more than he is author- ized to do, or less than he is authorized to do. There are some distinctions on this subject, which deserve to be examined, not because they present any diversity in the general principle, but because they present some diversity in the application of it. Lord Coke has laid down the rule in the following terms : " Regularly, it is true that, where a man doth less than the commandment or authority committed unto him, there, the commandment or authority being not pursued, the a»t is void. And, where a man doeth that, which he is authorized to do, and more, there it is good for that, which is warranted, and void for the rest. Yet both these rules have divers exceptions and limitations."^ And Lord' Coke is well warranted in suggest- ing, that there are exceptions and limitations. Where there is a complete execution of the authority, and something ex abun- dant is added, which is improper, there the execution is good, and the excess only is void. But where there is not a com- plete execution of a power, or where the boundaries between 1 Co. Litt. 258 b.; Paley on Agency, by Lloyd, 29-; Com. Dig. Attorney/, C. 13, 14 ; Howard v. Baillie, 2 H. Bl. 623. 2 1 Liverm. on Agency, ch. 5, § 1, p. 96, 97, (edit. 1818,) ante, § 73 ; 127 to 133. s Co. Litt. 258 a. ; Com. Dig. Attorney, C. 15 ; Paley on Agency, by Lloyd, 179, and note (n.) ; 1 Liverm. on Agency, ch. 5, § 1, p. 98, 101, 102, (edit. 1818.) AGENCY. 18 206 AGENCY. [CH. VIX. the excess and the rightful execution are not distinguishable, there the whole will be void.^ § 167. Some illustrations of this doctrine may, perhaps, be useful. Thus, if a man has a power to settle a jointure upon his wife for hfe, and he should execute it by an appointment for ninety-nine years, if she should so long live, even if it would be a void execution of the power at law, it would be up- held in equity fro tanto. For in such a case he has done less than his power, and the boundaries are clear and distinguish- able ; for if the wife should outlive the ninety-nine years, the estate, for the residue of her life, would be undisposed of.^ So, if the power were to lease for twenty-one years, and the party should make a lease for forty years, it would be a good execu- tion of the power in equity, although not at law, for the twenty- one years, and void as to the residue ; for it distinctly appears how much he has exceeded it.^ So, if a power of appointment is executed in definite proportions among persons who are ob- jects of the power, and others who are mere strangers, it will, in many cases, be good as to the proper objects, and void as to the strangers, because the excess is clearly ascertained ; and the donee of the power shall not be allowed, by his own wrongful act, to defeat the rightful execution pro ianto.^ And where a 1 Harg. note (202) to Co. Litt. 258 a.: Alexander v. Alexander, 2 Ves. 644; Com. Dig. Attorney, C. 15 ; 1 Liverm. on Agency, oh. 5, § 1, p. 101, 102, (edit. 1818.) Mr. Sugden, in his work on Powers, has considered this subject at large, with reference to powers of appointment and the execution of powers under the Statute of Uses. See Sugden on Powers, (3d edit.) ch. 5, per tot., and especially § 7 and 8 of the same chapter. Id. ch. 6, § 7 and 8, (6th edit.) p. 373 to 456. 2 Alexander v. Alexander, 2 Ves. 644 ; Post, § 173. 3 Alexander v. Alexander, 2 Ves. 644 ; Sugden on Powers, ch. 5, § 8, p. 549, 550, (3d edit.) ; Id. ch. 9, § 1, vol. 2, p. 59 to 79, (6th edit.); Campbells. Leach, Ambl. K. 740 ; Jenkins v. Kemishe, Hardres, K. 395 ; Koe v. Prideaux, 10 East, 158 ; Dig. Lib. 17, tit. 1, 1. 33. 4 Sugden on Powers, (3d edit.) ch. 5, § 8, p. 546 to 549 ; Id. ch. 9, § 1, vol. 2, p. 59 to 79, (6th edit.) ; Adams u. Adams, Cowp. R. 651. CH. VII.] AUTHORITY, HOW EXECUTED. 207 distinct limitation or appointment is made according to the power, and another distinct limitation or appointment is made in the same instrument, exceeding the power, the former will be good even at law, and the latter will be held void.^ § 168. Upon the same ground, if a warrant of attorney is given to make livery to one person, and the attorney make livery to two ; or if the authority is to make livery of Black- acre, and the attorney makes livery of Blackacre and White- acre, the execution is good, so far as it is authorized by the power, and void as to the residue ; ^ for the excess is clearly ascertainable. So, if a letter of attorney be to make livery absolutely, and the attorney make it upon condition, this is a good execution of the pOwer, and amounts to a sufficient livery, and the condition is void.^ But the contrary would be true, if the livery were to be made upon condition, and the attorney were to make it absolute ; '' or, if it were to make livery to two, and he made it to one only.^ § 169. Upon the same ground, if an agent were authorized to procure insurance upon a ship for two thousand dollars, and he should procure a policy for two thousand dollars on the ship, and two thousand dollars on the cargo ; the policy would be held good as to the ship, and void as to the cargo, at least 1 Sugden on Powers, (3d edit.) oh. 5, § 8, p. 550 to 556 ; Id. eh. 9, § 1, vol. 2, p. 69 to 79, (6th edit.) ; Commons v. Marshall, 6 Bro. Pari. R. 168. 2 Perkins on Convey, n. 189 ; 1 Liverm. on Agency, ch. 5, § 1, p. 101jil02, (edit. 1818.) 3 1 Liverm. on Agency, 102, (edit. 1818) ; Perkins on Convey, n. 188, 189. * Perkins on Convey, n. 188 ; 1 Liverm. on Agency, ch. 5, § 1, p. 102, (edit. 1818) ; Co. Lit. 258 a. 5 1 Liverm. on Agency, ch. 5, § 1, p. 103, (edit. 1818) ; 2 KoU. Abridg. Feoffment, p. 9, 1. 50. See also Dig. Lib. 45, tit. 1, 1. 1, § 5. A case somewhat analogous to some of the foregoing is put in the Roman law. Si mihi Pamphi- lum stipulanti, tu Pamphilum et Stiehum spoponderis ; Stichi abjectionem pro supervacuo habendam puto. Nam si tot sunt stipulationes quot corpora ; duse sunt quodammodo stipulationes, una utilis, alia inutilis. Neque vitiatur utilis per hanc inutilem. Dig. Lib. 45, tit. 1, 1. 1, § 6 ; 1 Liverm. on Agency, ch. 5, § 1, p. 102, note, (edit. 1818.) 208 AGENCY. [CH. VII. unless under special circumstances.^ On the other hand, if an agent were authorized to sign a note for his principal, payable in six months, and he should sign one payable in sixty days, it would be utterly void.^ [So, if being authorized to draw a bill at four months, he draws one payable in less than four months from the time it is drawn, but ante-dates it, making it apparently drawn according to his authority.^] So, if an agent were authorized to purchase goods on a credit of three and six months, and to give notes accordingly in the name of the prin- cipal ; and he were to purchase the goods and give notes pay- able at four and five months, it would be utterly void, since in neither respect is it in conformity to tjie authority, as to the time of credit given to the principal, although the credit may possibly be equally beneficial to him ; for, as to that, the agent has no right to judge.* § 170. The general principle, which pervades all these cases, is the same ; that the principal is not bound by the unauthor- ized acts of his agent, but is bound where the authority is sub- stantially pursued, or so far as it is distinctly pursued. But the question may often arise, whether, in fact, the agent has exceeded what may be deemed the substance of his authority. Thus, if a man should authorize an agent to buy one hundred bales of cotton for him, and he should buy fifty at one time of one person, and fifty at another time of a difierent person ; or if he should buy fifty only, being unable to purchase more at any. price, or at the price limited ; the question might arise, whether the authority was well executed. In general, it may be answered that it was ; because, in such a case, it would ordinarily be implied, that the purchase might be made at different times, of different persons ; or that it might be made of a part only, if the whole could not be bought at all, or not 1 1 Liverm. on Agency, ch. 5, § 1, p. lOl, 102, (edit. 1818.) 2 Batty V. Carswell, 2 John. K. 48 ; Dig. Lib. 45, tit. 1, 1. 1, § 4. 3 Tate y. Evans, 7 Missouri, 419.' 1 Post, § 175 to 178; Instit. Lib. 3, tit. 27, § 8. CH. VII,] AUTHORITY, HOW EXECUTED. 209 within the limits prescribed.-^ So, if a commission to an agent were to purchase fifty shares of the stock of a bank, and the agent should contract with one person, who is the owner of thirty shares, for the purchase, of that number, intending to buy the remaining twenty shares from some other person, the principal would be bound by that contract, although the agent should afterwards fail in his attempts to buy the remaining twenty.^ So, if a merchant should direct his correspondent to procure insurance for him of two thousand dollars upon a par- ticular voyage, for a particular ship, and, after one underwriter had subscribed one thousand dollars, the others should decline the risk ; in such a case, the authority would be well executed for the one thousand dollars, and the principal would be bound to pay the premium.^ So, if the principal should authorize his agent to become surety in a certain sum for him, and he should become surety in a less sum, it has been thought that the prin- cipal would be bound by the stipulation ; and such, indeed, is the rule of the Roman law.* § 171 . But cases may arise, in which it would be as mani- fest from the objects of the purchase, that the whole or no part of the property was to be bought, and even bought of the same person. As for example, if a person should authorize his agent to buy a ship, it would be presumed, that a purchase of the whole, and not of a part, was intended ; for the convenient use of a ship may be most materially impaired by a divided ownership ; and, perhaps, the whole objects of the purchase would thereby be defeated.^ The same rule would apply to the 1 1 Liverm. on Agency, ch. 5, § 1, p. 99, 100, (edit. 1818) ; Dig. Lib. 17, tit. 1, 1. 33. 8 1 Liverm. on Agency, ch. 5, § 1, p. 99, 100, (edit. 1818) ; 2 Kent, Comm. Leet. 41, p. 618, 619, (4th edit.) » 1 Liverm. on Agency, ch. 5, § 1, p. 100, (edit. 1818) ; Dig. Lib. 17, tit. 1, 1. 33. *Post, § 174; 1 Liverm. on Agency, ch. 5, § 1, p. 100, (edit. 1818) ; Dig. Lib. 17, tit. 1, 1. 33 ; Pothier, Pand. Lib. 17, tit. 1, n. 46. 5 Post, § 180. 18* 210 AGENCY. [CH. VII. case of a commission or authority to buy a plantation. It would not be a good execution of the commission to buy a part thereof only, or to buy an undivided share of it, or any inter- est in it less than the fee. In all such cases, it would generally be presumed, that the entirety of the property constituted an essential element in the purchase.^ But of this more hereafter.^ § 172. The true inquiry, therefore, in all such cases, is, what, under all the circumstances, is the true nature and hmits of the authority. If it is exceeded in any substantial manner, it will not be obligatory on the principal.^ Let us suppose a case, where A should authorize B to purchase ten bales of cot- ton at ten cents per pound ; and B should purchase the ten bales at eight cents per pound ; no one would doubt, that the pur- chase would be binding upon the principal ; because the mean- ing of the parties is presumed to be, that the price should not exceed the ten cents. In such a case, the maxim may well apply, Omne majus in se continet minus. Majori summm minor inest^ But if B should in such a case, purchase at twelve cents, the purchase would not be binding on the principal, or at least, not binding, unless B should offer the bales of cotton to A for the price of ten cents.^ In the former case, the bargain would be advantageous to the principal; in the latter case it would be injurious ; and the law will construe the inten- tion favorably in the case, where the less price is given, because it is for the advantage of the principal, and must be presumed to have been within the scope of the authority ; but it will never construe it to have been the intention of the prin- i 1 Liverm. on Agency, ch. 5, § 1, p. 100, (edit. 1818) ; Post, 176, 177. 2 Post, §175-178. 3 Ante, § 165. 4 1 Liverm. on Agency, ch. 5, § 1, p. 96-98, (edit. 1818) ; Instit. Lib. 3,tit. 27, § 8 ; 2 Kent, Comm. Lect. 41, 617, 618, (4tli edit.) ; Post, § 174, 176. 5 Pothier on OHig. n. 77, 78 ; Co. Lit. 258 (a) ; 1 Liverm. on- Agency, cK- 5, ^ 1, p. 97-99 ; Dig. Lib. 17, tit. 1, 1. 33 ; 1 Domat, B. 1, tit. 15, § 3, art. 6, 7; 2 Kent, Comm. Lect. 41, p. 617-619, (4th edit.); Just. Inst. Lib. 3, tit. 27, .§ 8, 9. CH. VII.] AUTHORITY, HOW EXECUTED. 211 cipal to allow the agent to exceed j;he authority given to him, when it is to his disadvantage.-^ § 173. Upon somewhat similar grounds of the apparent intention, an agent, who has not a mere authority, but has an authority coupled with an interest, may do less than the terms of his authority seem directly to warrant, and yet bind his prin- cipal.'* Thus, if in England a copyholder for life has a license to lease for five years, he may lease for three years ; for it will be presumed, that the authority was limited in its extent to the du- ration of five years, and comprehended any intermediate period.® So, a license to a copyholder for life to lease for five years, if he should so long live, will be well executed by a lease for five years, omitting, if he should so long live ; for the law will imply the limitation in such a case.* § 174. The Roman law adopted similar distinctions. The general rule in that law was, (as we have already seen,) that the limits of the authority must be strictly observed.^ If an authority was given to buy at a limited price, that price could not lawfully be exceeded. Diligenter igitur fines mandati custodiendi sunt. Nam qui excessit, aliud quid facer e videtur.^ Prceterea in causa mandati etiam illud vetitur, ut interim nee melior causa mandantis fieri possit ; interdum melior ; deterior vero numquamJ Melior autem causa mandantis fieri potest, si, cum, tibi mandassem, ut Stichum decern emeres, tu eum mi- noris emeris ; vel tantidem, ut aliud quicquam servo accederet ; ilbid.; Post, §175. 2 See ante, § 164 ; Post, § 489. 3 Com. Dig. Attorney, C. 12, 15 ; 1 Koll. Abridg. Authority, G. 1, 1. 47 ; Ante, §167. * 1 Koll. Abridg. Authority, G. 2, 1. 50; Com. Dig. Attorney, C- 15; Ante, §167. 5 Ante, § 43, 70. 6 Ante, § 70; Dig. Lib. 17, tit. 1, 1. 5 ; Pothier, Pand. Lib. 17, tit. 1, n 41. The Institutes say-j (Lib. 3, tit. 27, § 8,) Is, qui exequitur mandatum, non debet excedere fines mandati. Ante, § 43, 70. 7 Dig. Lib. 17, tit. 1, 1. 3 ; Pothier, Pand. Lib. 17, tit. 1, n. 49 ; Just. Inst. Lib. 3, tit. 27, § 8, 9. £13 AGENCY. [CH. VII. utroque enim casu, aut non ultra pretium, aut intra pretium fecisti} Et quidem si mandavi tihi, ut aliquam rem mihi emeres nee de pretio quidquam statui, tuque eniisti, utrinque actio nas- citur? But the Roman lawyers were divided in opinion, whether, if the stipulated price was exceeded, the principal was bound, if the agent offered to remit the excess. However, the better opinion was that maintained by Proculus, that, in such case, the principal was bound.^ Quod, si pretium statui, tuque pluris emisti, quidam negaverunt, te mandati hahere actionem, etiam- si paratus esses, id, quod exedit, r emitter e ; namque ini' quimi est, non esse mihi cum illo actionem, si nolit; illi vera, si velit, mecum esse.^ Sed Proculus recte eum, usque ad pretium statutum, acturum existimat ; quce sententia sane henignior est} Again ; Rogatus, ut fidejuberet ; si in minorem, sum- mam se ohligavit, recte tenetur. Si in majorem, Julianus ve- rius putat, quod a plerisque responsum est, eum, qui majorem ' Dig. Lib. 17, tit. 1, 1. 5, § 5 ; Pothier, Pand. Lib. 17, tit. 1, n. 48 ; Just. Inst. Lib. 3, tit. 27, § 8 ; 1 Domat, B. 1, tit. 15, § 3, art. 6. 2 Dig. Lib. 17, tit. 1,1. 3, § 1. 3 2 Kent, Comm. Leot. 41' p. 618, (4th edit.) ; 1 Liverm. on Agency, ch. 5. § 1, p. 98, 99, (edit. 1818) ; Just. Inst. Lib. 3, tit. 27, § 8. Mr. Livermore thinks that the same rule prevails in our law ; and he puts the case thus : " If I have directed my agent to cause insurance to be effected for me, and he pays a higher premium than that prescribed by the order, the commission will be well exe- cuted, the Excess being a charge upon him." Ibid. And he cites a case from Valin, Comm. Tome 2, Liv. 3, tit. 6, Des Assur. art. 3, to that efiect. Perhaps it may not be quite certain that our law would decide this case in the same way, although the decision is full of equity. It might be difficult to say, that the principal could insist,upon his right to adopt the policy, made contrary to his orders, without ratifying it in toto. And, on the other hand, it might be difficult to say, that the agent could compel the principal to adopt any indivisible con- tract of this nature, made contrary to his orders, by a remission of part of the premium. See Pindley v. Breedlove, 16 Martin, R. 105. Mr. Chancellor Kent, however, is of opinion, (and his opinion is deservedly of very great authority,) that the decree of the French Court was right, and that the defence was unjust. 2 Kent, Com. Lect. 41, p. 618, (4th edit.) 4 Dig. Lib. 17, tit. 1, 1. 3, § 2 ; Pothier, Pand. Lib. 17, tit. l,n. 45 ; 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 9. 5 Dig. Lib. 17, tit. 1, 1. 4, and 1. 5, § 3, 1. 33; Pothier, Pand. Lib. 17, tit. 1, n. 45, 46 ; Just. Inst. Lib. 3, tit. 27, § 8 ; 1 Liverm. on Agency, ch. 5, § 1, p. 97, 98, (edit. 1818) ; 1 Domat, B. 1, tit. 15, § 3, art. 7. CH. VII.] AUTHORITY, H«W EXECUTED. 213 swmmam, quam rogatus erat, fidejussisset, hactenus mandati action em habere, quatenus rogatus esset; quia idfecisset, quod mandatum ei est ; nam usque ad earn summam in quam roga- tus erat, fidem ejus spectasse videtur, qui rogavit} § 175. But the mere fact, that the bargain, which is made, will be more beneficial for the principal, will not avail the agent, if it be different from the substance of the authority.^ Thus, if A authorizes B to purchase a particular house at a certain price, and B purchases another house at a lower price, which is really a better house, still A is not bound thereby ; for the estate is not that which was authorized to be bought. Si mandavero tibi, ut domum' Bejanam centum emeres, tuque Ti- tianam emeris longe majoris pretii, centum tamen, aut etiam minoris non videris implesse mandatum.^ § 176. Upon a broader ground, any deviation from the au- thority, which would defeat the manifest inducements of the principal to make the purchase, would be void, whether the bargain were beneficial or not. Therefore, if an authority is given to purchase a house with an adjoining wharf and store, and the agent should buy the house only, although at an ad- vantageous bargain, the principal would not be bound to take the house, especially if the wharf and store constituted an ap- parent inducement to the purchase.* So, if an agpnt were authorized to purchase a certain farni in fee, and he should purchase an interest for life, or for years, or an undivided right or share of one tenant in common therein, the principal would not be bound thereby ; for it would be presumed, that the main inducement to the purchase was the purchase of the entirety of the estate and title.^ It would be an abuse of the meaning of the maxim, Majori summce minor inest, to apply it to such 1 Dig. Lib. 17, tit. 1, 1. 33 ; Pothier, Pand. Lib. 17, tit. 1, n. 46. 2 Ante, § 170. 3 Dig. Lib. 19, tit. 1, 1. 5, § 2 ; Pothier, Pand. Lib. 17, tit. l,n. 43 ; Pothier on Oblig. n. 78 ; 1 Liverm. on Agency, 103, (edit. 1818). 4 2 Kent, Comm. Leot. 41, p. 618, 619, (4th edit.) ^ ibid. 214' AGENCY. [CH. VII. cases.-^ So, if the principal should authorize the agent to pur- chase a house for him, it would not be a proper execution of the authority to purchase a part of the house only, for, it must be presumed, unless the contrary should appear, that the prin■^ cipal intended the purchase of the whole house, and not of a part only.^ But if the whole house were purchased, it would not make any difference as to binding the principal, that it was purchased in parts of the different owners.^ 8 177- However, in the case of an authority to purchase a farm, or tract of land, owned and sold in parts, it seems, that by the Roman law a purchase of a part would be within the authority, unless there was a plain restriction, that the whole should be purchased or none. At least, so the Digest seems to import ; Quod si fundum, qui per partes venit, emendum tibi mandassem, sed ita, ut non aliter mandato tenear, quam si totuin fundum emeres, si tolum emere non potueris, in partihus emendis tili negotium gesseris ; sive hahueris in eo fundo partem, sive non ; et eveniet, ut is, cui tale mandatum datum est, periculo suo interim partes emat; et nisi totum emerit, in- gratus, eas retineat} Quod si mandassem tibi, ut fundum mihi emeres, non addito eo, ut non aliter mandato tenear, quam si totum emeres ; et tu partem, vel quasdam partes ejus emeris; turn habej)imus sine dubio invicem 'mandati actionem, quamvis aliquas partes emere non potuisses.^ 1 Ante, § 172. 2Dig. Lib. 17, tit. 1,1. 36, § 2; Pothier, Pand. Lib. 17, tit. 1, n. 44; Pothier, Trait6 de Mandat, n. 95 ; ante, § 171. 3 Dig. Lib. 17, tit. 1, 1. 35, 36, § 1, 2 ; PotMer, Pand. Lib. 17, tit. 1, n. 44 ; Post, § 177. * Dig. Lib. 17, tit. 1, 1. 36, § 2 ; Pothier, Pand, Lib. 17, tit. 1, n. 44 ; Potliier, Traite de Mandat, n. 95 ; Liverm. on Agency, oh. 5, § 1, p. 100, 101, (edit. 1818) ; 2 Kent, Comm. Lect. 41, p. 618, 619, (4tli edit.) s Dig. Lib. 17, tit. 1, 1. 36, § 3; Pothier, Pand. Lib. 17, tit. 1, n. 44. Mr. Livermore has stated the whole of this doctrine Tvith singular clearness and ac- curacy, and supposes it to be coincident with our law. " Therefore," says he, " if I have commissioned you to buy for me a certain plantation, and you have, bought a part of it only ; this purchase, which you have made in my name, will CH. VII.] AUTHORITY, HOW EXECUTED. 215 § 178. The ground of this distinction is not very apparent. But it probably may have rested upon the presumption, that where the house or land is owned, and to be sold in parts, the authority ought, in the absence of all controlling restrictions, to be treated as an authority to purchase the parts in severalty, as far as the agent can. In our law, it is most probable, that the construction would ordinarily be the other way, unless under peculiar circumstances ; as, where the purchaser was already a part-owner of the house or land ; and the object might fairly be presumed to be to enlarge his interest in it, by purchasing the shares of the other part-owners, as he might be able, from time to time. § 179. Similar considerations would apply to the converse case, where an agent is authorized to sell the land of his prin- cipal ; for a sale of a part at one time, and a sale of another part at another time, might, in some cases be deemed good, and in others be deemed bad, according to the just presump- ' tion of intent, and the consideration, whether a partial sale would be injurious, or not, to the sale of the residue. Thus, for example, if A should, by his will, devise all his lands to be sold, it might be a good execution of the authority, to sell a part at one time, and a part at another.^ So, if there be a feoffment of different parcels of land, with a letter of .attorney to make livery thereof, the attorney may make livery of a part not be obligatory upon me ; for this business is of an entire nature ; and althougli I might have a desire to be the owner of the entire plantation, yet its value may be very much lessened, or in my estimation, lost by a division of it. If, how- ever, when I employed you to purchase this plantation, I knew, that it was owned by several tenants in common, who proposed to sell their interests sepa- rately, I shall be bound by your contracts, if you have purchased the estate of some of the tenants in common, but have not been able to purchase of the others ; unless there were an express provision, that I should be obliged only in case of all the estates being purchased. It is the same thing, if the estate, which the agent has obtained, is less than that which he was authorized to purchase. As, if I have given you an authority to purchase for me the estate of J. S. in a certain dwelling-house, of which he has the fee-simple, and you procure me a lease for life, or a term of years; this will not be in pursuance X)f your authority." 1 Liverm. on Agency, ch. 5, § 1, p. 100, 101, (edit. 1818.) 1 Comm. Dig. Attorney, C. 15 ; Co. Litt. 113 a. 216 AGENCY. [CH. VII. thereof at one time, and for a part thereof at another time.^ So, if A should authorize his agent to sell all his houses and lands in a particular place, where he owned divers distinct houses and tracts of land in severalty, a sale of one house or tract at one time, and the sale of another house or tract at another, would, or at least might be good. But a sale of an undivided portion of any one house, or tract of land, would hardly be deemed justified by the power, from its apparent tendency.to injure the sale of the residue, and to diminish the value of the residue, even to the owner himself. § 180. In cases of mercantile sales of personal property, a very liberal construction of the authority would, undoubtedly, be generally, although, perhaps, not universally adopted.'' Thus, if A should consign a cargo of goods to B for sale ; there could be no doubt that B might sell different parcels thereof to different persons, and at different times ; and the sales would be held, by implication, fairly within the scope of the authority. This is the known usage of trade ; and it 1 Comm. Dig. Attorney, G. 15 ; Aattey v. Trevellion, Moore, E. 278, 280. It was held, in Corlies v. Widdifield, 6 Cowen, K. 181, that, if a factor has the goods of different principals for sale on credit, he may sell the whole to one purchaser, and take his note, payable to himself, for the aggregate amount, and it will not be a violation of his duty. But that case had some peculiarities in it, affecting the general doctrine so laid down. And it may deserve much consid- eration, whether uniting in one note the claims of different principals might not materially affect the rights of each. The Court in that very case, seemed to be of opinion, that, at least under some circumstances, the act might have been a violation of duty. See Jackson v. Baker, 1 Wash. Cir. K. 395, 445 ; Ante, § 38, note. In Johnson v. O'llara, 5 Leigh, Virg. K. 456, it was proved to be the usage in Petersburg, (Virginia,) for a commission merchant, not only to sell on credit, but to take one note for the goods sold for different persons, payable to himself or order, and that he might procure such note to be discounted in his own name. But in so procuring the note to be discounted, the Court held that he made it his own, and was liable for the proceeds to his principal, although the maker of the note had failed. Post, § 204 a, 205. [In the case of Clarke V. Tippin, 9 Beavan, R. 284, it is said, that among the most important duties of a factor are those which require him to give to his principal the free and un- biased use of his own discretion and judgment, to keep and render just and true accounts, and to keep the property of his principal unmixed with his own, or the property of other persons.] 2 Ante, § 60, 73, 74, 82. CH. VII.] AUTHORITY, HOW EXECUTED. 217 would probably be adopted as a just rule of interpretation of the authority, independent of any known usage in the partic- ular place of sale. But, if an agent were authorized to sell a ship, it would, upon grounds of inconvenience, be presumed that a sale of the whole, and not of a part only, was author- ized ; because the use of the ship for beneficial purposes might, (as has been already intimated,) be greatly embarrassed by a divided ownership.' § 181. Where an agent has a general authority to receive payment of a debt, he is ordinarily bound to receive the whole of it in money only ; for that is the only way which will en- able him completely to discharge his duty to his principal.^ But circumstances may vary this duty. As, for example, if he is a creditor of his principal, and the latter has authorized him to deduct from the sum received the amount due to himself, it will be sufficient for the agent to receive the balance in cash, which will remain due to the principal after deducting the sum due to himself; and as to the other part of the debt, he may settle it with the debtor as he pleases, provided he gives credit therefor to the principal ; since it can make no difference to his principal how it is received, or whether it is ever received by the agent or not.^ § 182. Secondly. What is the degree of diligence re- quired of agents, in the proper exercise of their functions. The doctrine, upon this subject, is often laid down in very loose and indeterminate terms. It is often said, that an agent is 1 See 1 Livenn. on Agency, ch. 5, § 1, p. 99, 100, (edit. 1818) ; Ante, § 171. Mr. Lloyd, in his edition of Paley on Agency, has, in his note to p. 179, 180, (note n.) said, that inquiries as to the due execution of powers on this ppint, (of doing more or less than the power directa,) " can have little place in mercantile questions, where the act done is, for the most part, indivisible." It is apparent, from what is said in the text, that this remark, in its general latitude, is incor- rect, if not unfounded. 2 Ante, § 98, 103, 109, and note ; Post, § 215, 413, 429, 430, and note. 3 Barker u. Greenwood, 2 Younge & Coll. 419, 420; Stewart v. Aberdein, 4 Mees. & Wels. K. 211, 228 ; Post, § 413, note. AGENCY. 19 £18 AGENCY, [CH. VII. bound to use the utmost care and diligence in the execution of his trust.^ So, in the Roman law, terms equally indeterminate are often used. Thus, it is said, in the Digest, that some con- tracts make the party liable for deceit only; some both for deceit and neglect. Nothing more than responsibility for deceit is demanded in deposits, and precarious possessions, or posses- sions at will. Both deceit and neglect are inhibited in man- dates, lending for use, custody after sale, taking in pledge, hir- ing, also in portions, guardianships, and voluntary services.^ Among these some require (even more than ordinary) diligence. Contractus quidam dolum malum duntaxat recipiunt; quidam, et dolum et culpam. Dolum tantum, depositum et precarium ; dolum et culpam, mandatum, commodatum, venditum, pignori acceptum, locatum, item dotis datio, tutelce negotia gesta. In Ms quidam et diligentiam? And, again, it is said, after enu- merating other contracts ; Bed uhi utriusque utilitas vertitur, ut in empto, ut in locato, ut in dote, ut in f ignore, ut in socie- tate, et dolus et culpa prcestatur.^ Upon the true meaning of these passages commentators have been greatly divided.^ Even in case of mere gratuitous mandates, the Code is sup- posed to have required very exact diligence, and to have made the mandatary liable for slight neglect.^ A procuratore dolum 1 Paley on Agency by Lloyd, Ft. 1, ch. 1,§ 2, p. 4,5; Madeira v. Townsley, 12 Martin, R. 84. Lord Holt, in applying the doctrine to the analagous cases of hiring, says, " That if goods are let out for a reward, the hirer is bound to the utmost diligence, such as the most diligent father of a family uses." Cdggs ij. Bernard, 2 Lord Raym. 916 ; Jones on Bailm. 86. And in BuUer'sNisi Prius, 72, it is laid down, that " The hirer is to take all imaginable care of the goods delived for hire." Jones on Bailm. 6 ; Id. 86. See also 1 Bell, Comm. §394, p. 367 to 370, (4th edit.) 2 Jones on Bailm. 15, 16. 3 Dig. Lib. 50, tit. 17, 1. 23. The Florentine copy has quidem; the Vulgate editions, quidam. Jones on Bailm. 18-20. * Dig. Lib. 13, tit. 6, 1. 5, § 2. 5 Jones on Bailm. 14, 17, 18 to 29 ; Ersk. Inst. B. 1, tit. 1, § 21 ; Id. tit. S, § 36 ; 1 Liverm. on Agency, ch. 8, § 2, p. 337, 338, (edit. 1818.) 6 1 Stair, Inst. B. 1, tit. 12, § 10'; Ersk. Inst. B. 3, tit. 3, § 36; Story on Bailm. § 173 ; Pleineoc. Elem. Jur. Inst. Lib. 3, tit. 14, § 788 ; 1 Domat, B. 1, tit. 16, § 3, art. 4. CH. VII.] AUTHORITY, HOW EXECUTED. 219 et omnem culpam, non etiam improvisum casum, prcestandum esse, juris auctoritate manifeste declaritur? § 183, The true rule undoubtedly is, that as the contract of agency is one for the benefit of both parties, the agent is understood to contract for reasonable skill and ordinary dili- gence, and he is consequently liable for injuries to his em- ployer, occasioned by the want of reasonable skill, and also for ordinary negligence ;^ [but not for injuries caused by his mis- take in a doubtful matter of law.^ By reasonable skill, we are to understand, such as is, and no more than is, ordinarily possessed and employed by persons of common capacity, engaged in the same trade, business, or employment.* By ordinary diligence, we are to understand, that degree of dili- gence, which persons of common prudence are accustomed to use about their own business and affairs.^ § 184. This seems, also, to have been the rule of the Roman law, where Culpa or Levis Culpa, is deemed to be equivalent to ordinary neglect, or the want of ordinary diligence.* iCod. Lib. 4, tit. 35, I. 13; Heinecc. Elem. Pand. Lib. 17, tit. 1, § 233; Heinecc. Elem. Jur. Inst. Lib. 3, tit. 14, § 788. 2 Jones on Bailm. 9, 10, 23 ; Id. 86, 119 ; Story on Bailm. § 23, 455 ; 1 Bell, Comm. § 389, p. 364 ; Id. § 411, p. 387, (4th edit.) ; MoUoy, B. 3, ch. 8, § 10 ; Chitty on Comm. and Manuf. 215; Chapman v. Walton, 10 Bing. K. 57; 1 Liverm. on Agency, 331 to 341, (edit. 1818) ; Paley on Agency, by Lloyd, 77, 78 ; Madeira v. Townsley, 12 Martin, R. 84 ; Leverick v. Meigs, 1 Cowen, R. 645; Broussard u. Declouet, 18 Martin, R. 260; Lawler v. Keaquick, 1 John. Cas. 174 ; Savage v. Birckhead, 20 Pick. R. 167. 3 Mechanics' Bank v. Merchant's Bank, 6 Mete. 13. * Story on Bailm. § 431-434 ; Jones on Bailm. 94, 98, 9§[ ; Denew v. Daverell, 3 Camp. R. 451 ; Leare v. Prentice, 8 East, 348 ; 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 10, and note; 1 Liverm. on Agency, ch. 8, § 2, p. 337 to 341, (edit. 1818) ; Id. 352 ; Simpson v. Swan, 3 Camp. R. 291 ; Madeira v. Townsley, 12 Martin, R. 84 ; Dartnall v. Howard, 4 B. & Cresw. 345 ; 1 Liverm. on Agency, ch. 8, § 2, p. 352-354, (edit. 1818) ; Park v. Hammond, 6 Taunt. R. 495 ; Cheviot V. Brooks, 1 John. R. 364 ; Chapman v. Walton, 10 Bing. R. 57. s Jones on Bailm. 5-7 ; Id. 121 ; Story on Bailm. § 11. 6 Jones on Bailm. 21-23 ; Heinecc. Elem. Inst. Lib. 3, tit. 14, § 788 ; Id. Pand. Lib. 17, tit. 1, § 233 ; Ersk. Inst. B. 3, tit. 3, § 36, 37 ; Pothier, Observ. Gdn^rale at the. end of his Treatise on Obligations; 1 Pothier, (Euv. (edit. 220 AGENCY. [CH. VII. And in regard to skill, although the language of the Roman lawyers is, Imperitia eulpce adnumeratur ; spondet peritiam artis ; spondet diligeniiam gerendo negotio par em ;^ yet, this - is to be understood with the proper qualification, that the agent contracts for the reasonable skill belonging to persons in gen- eral, engaged in the like business or employment. In negotio gerendo opus sit diligentia atque industria ; et is, qui mandat, diligentiam rei gerendce eonvenientem exigere ; et qui susctpit mandatum, hoe ipso industriam et diligentiam ad rem exequen- dam necessariam in se futuram, recipere videtur ;^ which words seem to import no more than reasonable diligence and skill, adequate to the ordinary performance of the task re- quired. In another place, it is added: Nihil enim amplim, quam bonam fidem prcestare eumoportet, quiprocurat? How- ever, the Civilians are not agreed upon this point ; and, there- fore, what is here propounded must be deemed open to much doubt and discussion.* The same rule, at least in regard to diligence, prevails in the Scotch law,** in that of France, and, indeed, in all the continental nations of Europe, which derive their jurisprudence from the Roman law.^ § 185. Whether the proper degree of diligence and skill, which the law requires of agents in performing their duties, 1781,) 4to. p. 455; Story on Bailm. § 24; 1 Bell, Comm. § 389, p. 364, (4tli edit.) ; Id. p. 481, 482, (5tli edit.) 1 Jones on Bailm. 23, note (m) ; Id. 63, note (w) ; Id. 99, note (1) ; Dig. Lib. 50, tit. 17, 1. 132. 2 Vinn. ad Inst. Lib. 4, tit. 27, § 11, a. 2. See Pothier, Traitd de Mandat, n. 46, 48 ; Id. Louag^ n. 425 ; Story on Bailm. § 431-435 ; 1 Domat, B. 1, tit. 4, § 8, n. 1, art. 1 ; Id. B. 1, tit. 15, § 3, art. 4, 5 ; 1 Liverm. on Agency, cb. 8, § 3, p. 336, 337 ; Id. 352; 1 Bell, Comm. § 394, p. 367 to 370, (4tb edit.) Id. p. 481, 482, (5tb edit.) 3 Dig. Lib. 17, tit. 1, 1. 10, Introd. 4 Ibid. 5 Ersk. Inst. B. 3, tit. 1, § 21 ; Id. tit. 3, § 86 ; 1 Bell, Comm. § 411, p. 387, (4th edit.) ; Id. § 389, p. 364 ; Id. p. 481, 482, (5th edit.) 6 Pothier, Oblig. n. 141, 142; Pothier on Obliga. App'x Observ. Gdn&ale; 1 Pothier, CEuv. 455, (2d edit. 4to. 1781) ; Story on Bailm. § 24, 430 to 435 ; Jones on Bailm. 30, 31. CH. VII.] AUTHORITY, HOW EXECUTED, 221 has been applied in a particular trade, employment, or busi- ness, is for the most part a matter of fact, open for inquiry, and sometimes involving points of great delicacy, and difficulty. The general usages of trade, the common habits of the partic- ular business, and the special mode of dealing b'etween the principal and agent, will often explain and expound the duties, required of the agent, as to diligence and skill.^ § 186. The case of a factor, employed to make sale of goods on consignment, may furnish a fit illustration of the general doctrine. He is bound not only to good faith, but to reasonable diligence. It is not sufficient, that he has been guilty of no fraud, or of no such gross negligence, as would carry with it the insignia of fraud. He is required to act with reasonable care and prudence in his employment, and to exercise his judgment after proper inquiries and precautions. If he shut his eyes against the light, or sell to a person with- out inquiry, when ordinary diligence would have enabled him to learn the discredit or insolvency of the party, he will not be discharged from responsibility to his principal. [He is also bound, in absence of any special directions as to price, to sell for the fair market value.^] So, also, he will not be permitted to sell his own goods to a purchaser, and take security for the price, and at the same time to sell the goods of his principal to the same party without any security. For, he is bound to exercise at least as much diligence and care, as to his factorage transactions, as he does as to his own private concerns. And, in the supposed case, it would afford ground for presumption, that the factor had knowledge of some latent defect of credit, although in the commercial world in general the purchaser stood with a fair character. But this presumption would not 1 Ante, § 95 and 96; 1 Liverm. on Agency, ch. 8, § 2, p. 336 to 341, (edit 1818) ; Niobols v. House, 2 Louisiana E. 382; 3 Chitty on Comm. and Manufi 215-218. 2 Bigelow V. Walker, 24 Verm. 149. 19* AGENCY. [CH, VIZ. ordinarily arise from the mere fact of the factor's taking security for advances made to the same purchaser in money, or even receiving a premium for such advances. He may well re- fuse to lend his own money without security, or a premium upon grounds altogether distinct from any doubt of the solvency of the party. In order to affect the factor with the imputation of neghgence, it is sufficient, if he have notice of facts, which ought to put a person of ordinary prudence on his guard. For the same rule prevails here as in equity, that the factor will be held affected with the notice, if the facts be such, as ought to have put him upon further inquiry before he sold the goods.^ § 1 87. Another illustration may be derived from the case of insurance brokers, or agents employed to procure insurance. Their duty is to take care, that the policy is procured in such a manner, and in such terms, as to cover the contemplated voyage and risks ; and they are bound to possess reasonable skill on this subject. So, they are to take care, that the under- writers are persons in good credit at the time of the insurance, otherwise, they must bear the loss arising from their insolvency.^ But if the underwriters are in good credit at the time, their subsequent insolvency will not make the broker responsible to his employer.^ § 188. But new cases and new exigencies are perpetually arising, in which it is not easy to say, that there is any established general rule ; or that, if a general rule is established, it can with propriety govern such new cases, under all their circum- stances. Resort must then be had to the general principle of law on the subject, aided by a search into those kindred doc- trines, which may furnish analogies to guide or instruct us, in 1 Liverm. on Agency, ch. 8, § 2, p. 354 to 356, (edit. 1818) ; Burrill v. PhiUips, 1 Gallis. R. 361 ; MoUoy, B. 3, ch. 8, § 5 ; Leverick v. Meigs, 1 Cowen, R. 645 ; Clarke v. Tipping, 9 Beavan, R. 284. 2 Post, §191, 218. 3 1 Valin, Comm. Lib. 3, tit. 6, art. 3, p. 33 ; Post, § 191 CH. Vri.] AUTHORITY, HOW EXECUTED, 223 arriving at the proper conclusion. It may, however, be gen- erally stated, that where an agent has used reasonable diligence and skill he is not liable for accidents, or losses, or damage, happening without his default, such, for example, as for losses by robbery, by fire, or by other accident, either at sea or on the land.^ There are special exceptions ; such, for example, as the case of common carriers ; and other exceptions may arise, from the particular contract or dealing between the parties, which may enlarge, or narrow the duty and responsibility of the agent.^ In this last particular our law adopts the rule of th6 civil law ; Nisi si quid nominatim convenit, vel plus, vel minus, in singulis, contractibus ; nam hoc servabitur, quod initio convenit ; legem, enim contractus dedit? However, an agreement, that the agent should not be liable for his own frauds, would be held utterly void, as inconsistent with morals and public policy. Legem enim contractus dedit; excepto eo, quod Celsus putat, non valere, si convenerit, ne dolus prcRstetur. Hoc enim lonce fideijudicio contrarium est; et itur utimur^ Illud nulla pac- tione effici potest, ne dolus prcestetur.^ § 189. It is in this connection, that we are most commonly called upon to consider, when an agent is bound to act upon the instructions of his principal ; or, in other words, when he is bound to execute the orders sent or delivered to him. And the doctrine, under this head, subject to the qualifications here- inafter stated,^ may be reduced to one general principle ; which ' Paley on Agency, by Lloyd, 4, 5, 15-17 ; 1 Domat, B. 1, tit. 15, § 3, art. 4 ; Ersk. Inst. B. 3, tit. 1, § 21 ; Coggs v. Bernard, 2 Ld. Kaym. 917; Story on Bailm. § 23, 25 to 31 ; Jones on Bailm. 44, 119 to 122 ; 1 Liverm. on Agency, ch. 8, § 2, p. 357, 358, (edit. 1818) ; Molloy, B. 3, cli. 8, § 7. 2 Jones on Bailm. 120-122 ; Story on Bailm. §^25 to 38 ; Niciolson v. Willan,' 5 East, K. 513 ; Bridge v. Austin, 4 Mass. K. 114; 1 Liverm. on Agency, ch. 8, ' § 2, p. 357, 358, (edit. 1818) ; Post, § 194. 3 Dig. Lib. 50, tit. 17, 1. 23 ; Story on Bailm. § 34, 35 ; 1 Liverm. on Agency, ch. 8, § 2, p. 358-360, (edit. 1818.) ■» Dig. Lib. 50, tit. 17, 1.23. ■ 5 Dig. Lib. 2, tit. 14, 1. 27, § 23 ; 1 Liverm. on Agency, ch. 8, § 2, p. 360, (edit. 1818.) 224< AGENCY. [CH. VII. is, that every agent is bound to execute the orders of his prin- cipal, whenever, for a valuable consideration, (for we are not treating of mere gratuitous agency,) he has undertaken to per- form them.^ This duty may arise in various ways; either by express agreement, or by clear implication. The former re- quires no explanation. The latter may arise either from the common usages of the particular agency ; or from the general modes of dealing between the particular parties ; or from the natural implications, arising from the nature and objects of a single transaction. § 190. The most familiar illustrations of this doctrine will be found in the cases, where an agent is called upon by orders to procure insurance for his principal. We have already seen in what cases an agent may, in his discretion, insure for his principal ; ® we are now to consider, when he is absolutely bound to insure. And it is now clearly settled, that there are several cases, in which an agent is bound to obey an order to insure. One is, where the agent has expressly contracted to procure insurance.* Another is, where a merchant abroad has effects in the hands of his correspondents here, and he has a right to ex- pect, that he will obey an order to insure ; because he is entitled to call his money out of the other's hands, when, and in what manner, he pleases. Another is, where the merchant has no effects in the hands of his correspondent ; yet, the course of dealing between them has been such, that the one has been used to send orders for insurance, and the other to comply with them ; in such a case the former has a right to expect, that his orders for insurance will still be obeyed, unless the latter gives 1 Post, § 194 to 196. 2 Le Guen v. Gouverneur, 1 Jolin. Gas. 437, n.; Bell v. Palmer, 6 Cowen,B. 128; La Farge t). Kneeland, 7 Cowen, K. 456 ; Allen v. Suydam, 20 Wend. K. 321. 3 Ante, § 111 ; Lucena v. Crawford, 3 Bos. & Pull. 75 ; S. C. 5 Bos. & Pull. 269 ; De Forest v. Fulton Ins. Co. 1 Hall, R. 84, 100 to 136. * Tickelu. Short, 2 Ves. 239 ; Marsh onlnsur. B. 1, ch. 8, § 2, p. 296, 297. CH. VII.] AUTHORITY, HOW EXECUTED. 225 him notice to discontinue that course of deahng.^ Another is, where the merchant abroad sends bills of lading to his corres- pondent here, and ingrafts on them an ordet to insure, as the implied condition, on which the bills of lading are to be ac- cepted ; in such a case the agent is bound to obey, if he accepts them ; for it is one entire transaction.^ Another may be added, which is, where the general usage of trade requires the agent to insure. And, here we may remark, that it seems to be the duty of an agent, who is ordered or bound to procure insur- ance, to give notice to his principal, if he is unable to effect it ; for, otherwise, the principal may be subjected to a loss, which he could have provided against, by procuring insurance to be made elsewhere. If, in any of the foregoing cases, the agent negli- gently or wilfully omits his duty, he becomes responsible to his principal for all losses sustained by the want of the insurance. And this rule is promulgated by the general sense of foreign maritime writers, as well as by our own law. The rule, being, Mandato daio de assecurandis mercibus, si non est ad impletum mandatum, tenefur mandatarius de casu sinistro? § 191. What is the proper exercise of due diligence and skill, in obtaining insurance, is, in sonde cases, a matter of great nicety and difficulty. On the one hdnd, an agent who acts honA fide in effecting an insurance for his principal, using reasonable skill and diligence, is not liable to be called upon, because the insurance might possibly have been procured from 1 Ralston v. Barclay, 6 Mill. Louis. K. 653 ; Berthoud v. Gordon, 6 Mill. Louis. R. 583. 2 Smith V. Lascelles, 2 T. Rep. 189 ; 1 Liverm. on Agency, eh. 8, § 1, p. 323, 325, 326, (edit. 1818) ; 2 MoUoy, B. 2, ch. 8, § 9 ; Morris v. Summerl, 2 "Wash. Cir. R. 203; S. C. Marsh, on Insur. by Con^, note to p. 301 ; Paley on Agency, by Lloyd, 18 ; Wallace v. Telfair, 2 T. Rep. 188, note ; Smith on Mercant. Law, 51, (2d edit.) ; Id. ch. 5, p. 91-93, (3d edit. 1843) ; De Tastet V. Crousillat, 2 Wash. Cir. R. 132 ; French v. Reed, 6 Binn. 308 ; Berthoud v. Gordon, 6 Louis. R. 579 ; Marsh, on Insur. B. 1, ch. 8, § 2, p. 296, 297 ; 1 Phil- lips on Insur. ch. 22, p. 519 to 524. 3 Emerigon Des Assur. Tom. 1, ch. 5, 8, p. 148 ; Casaregis, Discurses, 1, n. 26. 226 AGENCY. [CH. VII. Other persons upon better terms, or to include additional risks, by which the principal might, in the event of loss by those risks, have been indemnified.' On the other hand, an agent, in a like case, is bound to have inserted in the policy all the ordinary risks and chances which are usual and proper, to secure the principal for the contemplated voyage.^ And if he omits to have them inserted, when a reasonable attention to the facts stated in his orders, or the nature of the voyage, or the state of the property, or the objects intended, would have induced other insurance agents, of reasonable skill and diligence, to have had them inserted, he will be liable, in case of any loss, for his negligence.^ The same rule will apply, if such an agent negligently or wilfully conceals a ma- terial fact, or affirms a false fact, whereby the policy is avoided ; for his duty in each case is violated.* So, (as we have seen,) it is the duty of an agent, procuring insurance, to ascertain whether the underwriters are in good credit or not, at the time of procuring the policy ; * and if he negligently omits this duty, and a loss occurs from the insolvency of the underwriters at the time of subscribing the policy, he will be liable to pay it.^ So, if an agent has procured a policy, and it remains in his hands, he is bound to apply to the underwriters for payment of it within a reasonable time ; and if a loss occurs by his neglect, he will become responsible therefor.^ 1 Moore v. Morgue, Cowp. R. 479 ; Comber v. Anderson, 1 Camp. R. 623; 1 Liverm. on Agency, 344-347, (edit. 1818.) 2 Post, § 200, 218. 3 Post,§ 200 ; Park v. Hammond, 6 Taunt. 495 ; S. C. 4 Camp. R. 344 ; Mal- lough V. Barber, 4 Camp. R. 150j Farren v. Oswell, 3 Camp. R. 359; 1 Liverm. on Agency, 362, 353, 372-374, (edit. 1818) ; Paley on Agency, by Lloyd, 18. * Maydew v. Forrester, 5 Taunt. 615. See Wake v. Atty, 4 Taunt. 493 ; 1 Liverm. on Agency, 335, (edit. 1818) ; Seller v. Work, 1 Marsh, on Insur. B. 1, ch. 8, § 2, p. 300; Id. ch. 11, § 1, p. 466 ; Paley on Agency, by Lloyd, 257 to 260. 5 Ante, § 187; Post, § 218. 6 1 Liverm. on Agency, 364, (edit. 1818) ; Valin, Comm. Tom. 1 Liv. 3, tit. 6, art. 3, p. 82, 33 ; ante, § 187. 7 1 Liverm. on Agency, 459 to 466, (edit. 1818) ; Smith on Merc. Law, 198, CH. VII.] AUTHORITY, HOW EXECUTED. 2£7 8 192. Thirdly. The remarks, which have been already- made, naturally conduct us to the next head of inquiry, and that is, what are the incidental acts which the law requires of agents, in the discharge of their duties and oUigations. And here, in the first place, it may be stated to be the primary obli- gation of an agent, whose authority is limited by instructions, to adhere faithfully to those instructions, in all cases to which they ought properly to be applied.^ If he unnecessarily ex- ceeds his commission, or risks the property of his principal, he thereby renders himself responsible to his principal for all losses and damage, which are the natural consequences of his act. And it will constitute no defence for him, that he intended the act to be a beuefit to the principal.^ [Thus where the principal directed his agent to remit him |300 in bills of |50, or |100 each, and the agent sent the amount in bills of |5, |10 and ^20, which never reached the principal, the agent was held to have deviated from his instructions, and to be liable for the loss.^J Indeed, in all such cases, the question is not whether (2d edit.); Id. B. 3, ch. 4, § 1, p. 322, (3d edit. 1843) ; Power v. Butcher, 10 B. & Ores. 329 ; ante, § 58, 103, 109, note. 1 Paley on Agency, by Lloyd, p. 3 ; Id. 28 ; Rundle v. Moore, 3 John. Cas. 36 ; 1 Liverm. on Agency, ch. 8, § 2, p. 341 to 538, (edit. 1818) ; Idem. p. 368 to 374, (edit. 1818) ; 3 Chitty on Comm. and Manuf. ch. 3, p. 215, 216, 220 ; Malyne, Lex. Merc. ch. 16, p. 81 ; Blot v. Boiceau, 1 Sandford, Superior Court, R. (N. T.) Ill ; Marfield v. Douglas, Ibid. 361 ; Wilson v. Wilson, 26 Penn. St. E.'394. 3 Paley on Agency, by Lloyd, 3, 9, 10, 25, 26 ; 3 Chitty on Comm. and Manuf. ch. 3, p. 215, 218 ; 1 Liverm. on Agency, ch. 8, § 2, p. 368 to 374, (edit. 1818); 1 Beawes, Lex. Merc. 44, 46; Ure v. Currell, 16 Martin, K. 502; Manella v. Barry, 3 Cranch, 415 ; Post, § 199. 3 Wilson V. Wilson, 26 Penn. St. R. 394, Lewis, C. J. said : " The primary obligation of an agent, whose authority is limited by instructions, is to adhere faithfully to those instructions, in all ' cases to which they ought properly to apply.' Story on Agency, § 192. He is in general bound to obey the orders of his principal exactly, if they be imperative and not discretionary ; and, in order to make it the duty of a factor to obey an order, it is not necessary that it should be given in the form of a command. The expression of a wish by the consignor may fairly be presumed to be an order. Story on Contracts, § 359 ; Brown v. McGran, 14 Peters, 494. It is true that instructions may be disre- S£8 AGENCY. [CH. VII. the party has acted from good motives and vi'ithout fraud, but whether he has done his duty, and acted according to the con- fidence reposed in him; for the rule is: Grave estfidemfal- garded in cases of extreme necessity arising from unforeseen emergencies, or if performance becomes impossible, or if they require a breach of law or morals. Story on Agency, § 194. These are, however, exceptional cases. There may, perhaps, be others which have been sanctioned by adjudications, founded on the principle that the departure complained of was not material. But the general rule is as indicated in what has been said, and the case before the Court is not brought within any of the exceptions. To justify a departure from instructions, where a loss has resulted from such deviation, the case must be brought within some of the recognized exceptions. It is not sufficient that the deviation was not material if it appear that the party giving the instructions regarded them as material, unless it be shown affirmatively that the deviation in no manner con- tributed to the loss. This may be a difficult task, in a case like the present ; but the defendant voluntarily assumed it when he substituted his own plan for that prescribed by the plaintiff To force a man to perform an executory con- tract after substituting for the consideration other terms than those provided for in the bargain, is to deprive him of the right to manage his own business in his own way. To do this on the ground that the departure is not material, when it is manifest that the party considered -it otherwise, is a violation of private right, which leads to uncertainty and litigation without necessity or excuse. In Nes- bit V. Burry, 1 Casey, 210, this Court refused to compel a man to give up his oxen although he had sold them and received part of the purchase-money, because'it was a part of the contract that they were sold by weight, and the weight was to be ascertained by ' the scales at Mount Jackson.' The scales designated were so out of repair that the weight could not be ascertained by them, and it was held that no others could be substituted against his consent so as to divest his right of property. Whether an action for damages could have been sustained vas not the question there ; nor is if the question here. As between vendor and vendee, the right of property and the consequent risk vests on. delivery of the .goods purchased to the designated carrier, packed, and directed according to usage or instructions. But if a different method of packing and directing, or a different carrier than the one designated, be adopted by the vendor, he assumes the risk in case of loss, unless it be shown that his deviation in no way contributed to the loss, Where the goods are stolen, how can this be shown ? In sending bank-notes by mail, it is manifest that while a large package would attract the attention and care of honest agents on the route, it might tempt the cupidity of dishonest ones. The party who proposes to take the risk of this method of remittance has a right to weigh the advantages and disadvantages of the various methods of enclosing the notes ; and if he directs the money to be remitted in notes of $100 or $50, the debtor has no right to increase the size of the package by remitting in notes of $10 and $5. There was error in permitting the jury to find that the departure from instructions was immaterial." CH. VII.] AUTHORITY, HOW EXECUTED. 229 lere;'^ Fides servanda est; Simplicitas juris gentium prce- valeat? On the other hand, if, by the violation of his instruc- tions, he obtains a profit or advantage, he is not allowed to retain it : but the principal is entitled to the full benefit of it.^ So, an agent, by his misconduct, must bear the whole risk of failure and loss, and is not entitled to any indemnity for his un- authorized act or speculation.* The law never holds out a premium for any violation of duty. What will be the effect of a subsequent ratification by the principal, will come under re- view in our subsequent pages.s § 193, In regard to instructions, there are two quaUfications, which are naturally, and perhaps necessarily, impHed in every case of mercantile agency. The first is, that they are applica- ble only to the ordinary course of things ; and the agent will be justified, in cases of extreme necessity and unforeseen emer- gency, in deviating from them.® Thus, for example, if goods are perishable and perishing, the agent may deviate from his instructions, as to the time, or price, at which they are to be sold.'' So, if they are accidentally injured, and must be sold to prevent further loss. So, if they are in imminent peril of being lost by the capture of the port, they may for safety, in a case of necessity, and not otherwise, be transported to another port.® 1 Dig. Lib. 13, tit. 5, Introd. 2 1 Liverm. on Agency, ch. 8, § 1, p. 323, (edit. 1818) ; Paley on Agency, by Lloyd, 9, 10 ; Manella v. Barry, 3 Crancb, K. 415. 3 Paley on Agency, by Lloyd, 51 ; Malyne, Lex. Mer. 82 ; Massey v. Davies, 2 Ves. jr. 317 ; Beaumont v. Boultbee, 7 Ves. 608, 617 ; Post, § 207, 214, 340. * Paley on Agency, by Lloyd, 3, 4 ; Id. 49-51 ; 3 Chitty on Comm. andl Manuf. ch. 3, p. 216, 218, 221 ; Williams v. Littlefield, 12 Wend. R. 362. 5 Post, § 239 to 260, 439, 445. 6 Ante, § 85, 118, 141 ; Post, § 237 ; 1 Liverm. on Agency, eh. 8, § 2, p. 368- 370, (edit. 1818) ; 3 Chitty on Comm. and Manuf. ch. 3, p. 218; Dusar u. Perit,. 4 Binn. R. 361. 73 Chitty on Comm. and Manuf. ch. 3, p. 218; Anon. 2 Mod. R. 100; Story on BaUm. § 455 ; ante, § 85, 118, 141 ; Post, § 237 ; 1 Liverm. on Agency^ 368, 369, (edit. 1818.) 8 See Catlin v. Bell, 4 Camp. R. 183. AGENCY. 20 230 AGENCY. [CH. VII. § 1941. It is a proper corollary from this principle, that any unavoidahle calamity, or overwhelming force or accident, with- out any default of the agent, will excuse him from a strict performance of the duties of his agency ; for all such cases are deemed exceptions to the general rule.' A fortiori, if the strict performance becomes impossible, without any default of the agent, he is excused.^ The Roman law was even more indulgent in cases of mandataries, excusing them for non- performance in cases of sickness ; or of capital enmities ; or of an action becoming fruitless against the principal (as where he had directed goods to be purchased, and became insolvent) ; and for other causes deemed just. Sane, si valetudinis ad- versce, vel capitaliiim inimicitiarum, seu oh inanes rei actiones, seu ob aliam,justamcausam, excusationes allegat; audiendm. est? 8 195. The second qualification is, that, if the instructions require the agent to do an illegal or immoral act, he may violate his instructions with impunity; for the law will not tolerate either party in violating any moral or legal duties.* Rei turpis nullum mandatum est ; et idea hac actione non agetur? Illud quoque mandatum non est olligatorium, quod contra honos mores est. Veluti, si Titius de furto, aut de dam- no faciendo, aut de injuria facienda, mandet tibi; licet enim poenam istius facti nomine prcesiiteris, non tamen ullam hales adversus Titium actionem.^ Pacta, qiice contra leges comtiti^ tionesque, vel contra honos mores fiunt, nullam vim habere, indulitati juris est, is the strong language of the Roman law ; ^ and it is more strongly dictated by the sound 1 Ante, § 85, 118, 141 ; Post, § 200, 208, 237 ; Wilson v. Wilson, 26 Penn. St. R. 394. 2 1 Liverm. on Agency, ch. 8, § 1, p. 310, 311 ; Id. 328, 357, 358, (edit. 1818) ; Smith V. Calogan, 2 T. Kep. 188 n; ante, § 85, 118, 141, 188 ; Post, § 2?7. 3 Dig. Lib. 17, tit. 1, 1. 23-25 ; Pothior, Pand. Lib. 17, tit. 1, u. 80. 4 Catlin V. Bell, 4 Camp. E. 183 ; Bexwell v. Christie, Cowp. E. 395 ; Paley on Agency, by Lloyd, 8, 25, 26 ; Webster v. De Tastet, 7 T. E. 157 ; 3 Chitty on Comm. and Manuf. 216. 5 Dig. Lib. 17, tit. 1, 1. 6, § 3. 6 Inst. Lib. 3, tit. 27, § 7. 1 Cod. Lib. 2, tit. 3, 1. 6 ; Story on Conflict of Laws, § 245. CH. VII.] AUTHORITY, HOW EXECUTED. 281 morals inculcated by Christianity.' Thus, for example, if goods are bought or sold by an agent, to be smuggled in violation of the laws of the country, no recovery or account can be had by either party of the same ; for the IsW, in such a case, refuses to interfere on either side, upon the principle, Ex turpi causa non oritur actio? And where the fault is mutual, the law will leave the case, as it finds it ; In pari delicto potior est conditio defendentis? So, if a person is employed, and money is advanced to him for the purchase of libellous books, or indecent pictures, he will not be compelled to account. And, on the other hand, if he has advanced the money for such immoral purposes, at the request of his employer, he cannot recover these advances, or compel the employer to take the books, or the pictures, and to pay for them.* Nay, the principle is carried further; and if the main object, for which the agent is employed, is legal ; yet if, by the terms of the contract, and as a part of it, the agent is to act in an illegal character or manner in another part of the trans- action, the whole contract will be contaminated thereby ; and the agent can recover no compensation even for his legal acts under the contract. Neither can the principal enforce any of its obligations.^ § 196. This doctrine is founded in the principles of eternal justice ; and it is greatly to be lamented, that it has not been followed out in our intercourse with foreign nations, to the ex- tent of refusing to interfere in contracts, even between our own 1 1 Liyerin. on Agency, ch. 1, § 2, p. 14-16, (edit. 1818) ; Holman v. Johnson, Cowper, K. 343 ; 1 Story on Equity Jurisp. § 296 ; Story on Conflict of Lawa, § 244 to 260. 2 1 Liverm. on Agency, ch. 1, § 2, p. 14, 15, (edit. 1818) ; Holman v. Johnson, Cowper, K. 343 ; Story on Conflict of Laws, § 244 to 258 ; Armstrong v. Toler, 11 Wheat. E. 258, 260. ■ 3 1 Liverm. on Agency, ch. 1, § 2, p. 19, 20, (edit. 1818.) 4 Ibid. 5 1 Liverm. on Agency, ch. 1, § 2, p. 19-21,, (edit. 1818) ; Story on Conflict of Laws, (246-248) ; The Vanguard, 6 Rob. 207. 232 AGENCY. [CH. VII. citizens, which are made in violation of the laws of trade and the public policy of foreign nations. Pothier, with the deep feelings of a moralist and universal jurist, has inculcated and enforced, in a persuasive manner, this enlarged doctrine.^ But the general practice of nations is the other way ; and that practice is sustained by the common law, as well as by the authority of Valin and Emerigon.^ § 197> However ; it will not be presumed, that an agent is authorized to violate the laws of a foreign country, (as, for ex- ample, by smuggling) ; and, therefore, either an express authority must be shown, or an implied authority from the known habits of the particular trade, or the general dealings between the parties in similar enterprises.^ We hope that the time may arrive, when the general cultivation of international law, enlightened and reformed by Christian morals, will intro» duce a better system, which shall declare, that the common interests of all nations are best promoted by a steady support of all the municipal laws of each, which are not inconsistent with justice, rational liberty, and liberal intercourse. § 198. In regard to instructions, they must often leave much to the discretion of the agent ; and, under such circum- stances, his proper duty must be ascertained by the considera- tions already mentioned, as well as by those, which will be hereinafter stated.* Thus, (to suggest a rule in a general form,) where an agent has general orders to dispose of goods for his principal to the best advantage, (a very common mode 1 Potliier V. D'Assur. n. 58, and note of Estrangin. ad locum, (edit. 1810,) p. 86, 89. 2 1 Liverm. on Agency, eh. 1, § 2, p. 15-19, (edit. 1818) ; Story on Conflict of Laws, § 245, 246, 257 ; 1 Emerig. D'Assur. ch. 8, § 5, p. 212, 215 ; edit, by Boulay Paty, p..215 to 218 ; 2 Valin, Comm. art. 49, p. 127 ; 1 Marsh, on Insur. ch. 3, § 1, p. 59-61 ; Planche v. Fletcher, Doug. E. 251, 254 ; 1 Chittv on Comm. & Manuf. 83, 84. 3 1 Liverm. on Agency, ch. 8, § 2, p. 361 to 368, (edit. 1818) Wellman v. Nutting, 4 Mass. Pi. 434 ; Molloy, B. 3, ch. 8, § 6. 4 Ante, § 189, 192, 199, 237. CH. VII.] AUTHORITY, HOW EXECUTED. 288 of expression to be found in written orders,) he is bound to execute them with that degree of diligence and skill, which prudent men usually exercise in similar aflPairs ; ^ and, conse- quently, he may dispose of the goods according to the best terms, which can be obtained at the time ; and if he does so, his principal will be bound thereby, although the sale may turn out in the event to be disadvantageous.^ And sometimes even a literal deviation from the terms of the orders may be excused, and the act bind the owner, if the conditions and objects of the order are substantially obtained, without any increase of ex- pense or risk to the principal. Thus, if an agent should exceed the limited price in a purchase of goods in a small degree, and yet he should be able to effect an equal saving in some other part of the same business, such as in the expense of shipping them, he would, at least in equity, be deemed excused, and the principal be bound.^ § 199. In the next place, it may be laid down as a general rule, in the absence of instructions, that if there be a known usage of trade, or a mode of transacting business, applicable to the particular agency, or analogous to it, in such a case it will be the duty of the agent to conform to it; and any depart- ure from it, not required by necessity, will be at the peril of the agent, and involve him in full responsibility for any loss occasioned thereby.* This is- not an arbitrary doctrine ; but it is founded upon an implied authority on one side, involving an implied confidence and obligation on the other side.^ We have 1 Kingston v. Kineaid, 1 Wash. Cir. K. 453 ; Ante, § 182, 183. 2 3 Chitty on Comm. and Manuf. ch. 3, p. 217, 218 ; 2 M0II07, B. 3, ch. 8, § 2, 5 ; Malyne, Lex. Merc. ch. 16, p. 81-83 ; Evans v. Potter, 2 Gallis. K. 13 ; Burrill v. Phillipps, 1 Gallis. E. 360. 3 Cornwall v. Wilson, 1 Ves. 510 ; 3 Chitty on Comm. and Manuf. ch. 3, p. 219, note (1) ; Smith on Merc. Law, 53, 54, (2d edit.) ; Id. ch. 5, § 2, p. 99, (3d edit. 1843) ; Ante, § 85. * 3 Chitty on Comm. and Manuf. 215, 216 ; Ante, § 85, 96, 118, 141, 185, 194; Post, § 208, 237. 5 Ante, § 60, 73, 77. 20* 234 AGENCY. [CH. VII. already seen, that if an agent acts according to the customary mode of business, and settled usages of trade, he will be pro- tected, although a loss should, without his default, happen there- by, because his authority embraces, by implication, that extent.^ And it is equally true, that the agent impliedly agrees to act according to such modes of business and usages of trade, and that he is trusted, in the confidence that he will not violate them.^ It will not, therefore, as we have seen, constitute any defence to the agent, that he intended a benefit to his employer, if he acted in violation of his duty.^ And, on the other hand, even the usage of trade may not, under all circumstances, ex- cuse an agent for acting in conformity to it, if, by following it, he knowingly and advisedly and wilfully does an injury to his employer thereby; for the very notion of an usage is, that it is to be a guide to his judgment and discretion in common cases, when it is presumed not necessarily to work a sacrifice of the interests of the employer.^ § 200. Illustrations might be easily multiplied, to establish this doctrine in its various aspects. Thus, for example, if an agent, intrusted with the sale of goods, should negligently allow them to remain in an improper place of deposit, contrary to the usual habits of the business, and the goods should be de- stroyed by fire, he would be responsible for the loss, although the fire arose from an accidental cause ; for the loss, although 1 Ante, § 96, 185 ; 1 Gallis. R. 360 ; Keano v. Mager, 11 Martin, E. 636. 2 Ibid. We have already seen, that if the construction of the terms of written instructions be doubtful, and the agent has acted in good faith under a mistaken interpretation of their purport, he will not be responsible to his principal for damages or losses occasioned thereby. And, in cases of doubt, the rule is, that the words are to be construed most strongly against the principal. Ante, 74-76, 82. See also Vianna v. Barclay, 3 Cowen, E. 281 ; Mackbeath v. Haldimand, 1 T. E. 182, per BuUer, J. ; Lucas v. Groning, 7 Taunt. R. 164 ; Morrell v. Frith, 3 Mees. & Wels. 402. 3 3 Chitty on Comm. and Manuf. ch. 3, p. 215, 216, 218 ; Ante, § 192. "i 3 Chitty on Comm. and Manuf ch. 3, p. 215, 216, 218, note (1.) See Sa- dock V. Burton, Yelv. E. 202; Malyne, Lex Merc. 83 ; Rex v. Lee, 12 Mod. 514 ; 2 Molloy, B. 3, ch. 8, § 5 ; Malyne, Lex Merc. ch. 16, p. 81, 83. CH. VII.] AUTHORITY, HOW EXECUTED. 235 not in a strict sense inimediately caused by his negligence, may fairly be attributed to it.^ So, if an agent should, improperly and contrary to his known duty, or the habits of business, de- posit the money of his principal in his own name, and on his own account, with a banker, who should fail, the agent would be responsible to his principal for the money lost by the failure.^ So, if an agent, authorized to procure insurance for his prin- cipal, should, by his negligence, omit to have inserted in the policy the common and usual clauses in the like policies, and a loss should occur, which would have been covered by such clauses, the agent would be responsible for the loss.^ So, if an agent should sell goods on credit, when there was no usage of trade to justify it ; or if he should sell on a longer credit than the usage should justify ; or if he should omit to demand pay- ment, when the credit had expired ; or if he should sell to persons of doubtful credit, or actually insolvent ; in all such cases, he would be personally responsible tor the loss to his principal.* 1 Post, §218; Paley on Ageacy, ^by Lloyd, 10; Caffrey v. Darby, 6 Ves. 496. This is one .of the cases, in whioh the maxim, Causa proxima, non remota, spectatur, does not apply, although it is not perhaps easy to state the exact grounds of the distinction. The loss is not, indeed, directly caused by the neg- ligence ; but the latter may properly be said to be the occasion of it. See Davis V. Garrett, 6 Bing. E. 716. The case of a policy-agent stands on a similar ground ; for the loss cannot be correctly said to be immediately caused by his neglect, as it may be directly attributable to the peril of the sea. See Paley on Agency, by Lloyd, 15-17. In Cafi'rey v. Darby, 6 Ves. 496, the Master of the KoUs, in his judgment, speaking of loss, where there had been negligence by trustees, said : " If they have already been guilty of negligence, they must be ifesponsible for any loss in any way to that property; for, whatever may be the immediate cause, the property would not have been in a situation to sustain that loss, if it had not been for their negligence." See ante, § 192. 2 Massey v. Banner, 1 Jac. & Walk. 245, 248 ; 3 Chitty on Comm. and Manuf. ch. 3, p. 215 ; Wren v. Kirton, 11 Ves. 378 ; Post, § 203, 208, 218. 3 Ante, §191; Mallough u. Barber, 4 Camp. E. 150. See also Comber v. Anderson, 1 Camp. E. 523 ; Park v. Hammond, 4 Camp. E. 344 ; S. C. 6 Taunt. E. 495 ; 1 Liverm. on Agency, ch. 8, § 1, p. 341, to 354, (edit. 1818) ; Paley on Agency, by Lloyd, 18-21. 4 Ante, § 60, 109, 209, 220; 1 Liverm. on Agency, ch. 8, § 2, p. 368, (edit. 1818) ; Id. 354 ; Paley on Agency, by Lloyd, 26, 27 ; MoUoy, B. 3, ch. 8, § 3 ; 3 Chitty on Comm. and Manuf. 205, 206, 216, 218; Littlejohn u. Eamsay, 16 2S6 AGENCY, [CH. VII. So, if he should give time for payment after the money hecame due, or should omit to use the common diligence to collect it, the loss would be his own.^ So, if an agent, authorized to pur- chase goods, should deviate from his orders as to price, quality, or kind, or otherwise, the principal would not be bound.^ [And if an attorney at law undertakes the collection of a debt, and by gross negligence, puts it in such a situation as embarrasses the creditor in obtaining payment, and to render the debt less valua- ble, he is liable to his employer.] ^ § 201. The employment of sub-agents or substitutes is often expressly provided for in letters of attorney, and other formal instruments. In such cases, it is clear, that the original attor- ney or agent will not be liable for the acts or omissions of the substitute, appointed or employed by him, unless, indeed, in the appointment or substitution he is guilty of fraud, or gross negligence, or improperly cooperates in the acts or omissions.* In many other cases a similiar authority arises, by implication, from the conduct of the parties, or from the usage of trade. Thus, for example, it is very common, in certain classes of business, to employ a sub-agent to transact the business of the agency ; such as the employment of a broker to buy or sell goods.* In all cases of this sort, the agent will not ordinarily be responsible for the negligence or misconduct of the sub- agent, if the employment of the sub-agent is authorized by the principal either expressly or impliedly, by the usage of trade, or the usual dealings between himself and his principal, and he Martin, K. 655 ; Gilly v. Logan, 14 Martin, E. 196 ; Hosmer v. Beebe, 14 Mar- tin, K. 368 ; Richardson v. Weston, 16 Martin, K. 244; Leverick v. Meigs, 1 Cowen, E. 645 ; Forrestier v. Boardman, 1 Story, K. 43. 1 Caffrey u. Darby, 6 Ves. 494, 495; Paley on Agency, by Lloyd, 39,40; Malyne, Lex Merc. ch. 16, p. 81, 82 ; Childs v. Corp, 1 Paine, E. 286. 2 3 Chitty on Comm. and Manuf. ch. 3, p. 218, 219 ; 1 Liverm. on Agenc/i ch. 8, § 2, p. 368, (edit. 1818.) 3 Wilson V. Coffin, 2 Cush. 316. 4 Foster «. Preston, 8 Cowen, K. 198; Taber v. Perrott, 2 Gallis. R. 565; Post, § 217 a, 232, 333. 5 Ante, §14, 15; Post, 217. CH, VII.] AUTHORITY, HOW EXECUTED. 237 has used reasonable diligence in his choice as to the skill and ability of the sub-agent.^ The same rule will apply, where the employment, although not so authorized, arises from unfore- seen exigencies or emergencies, imposing upon the agent the necessity of employing a sub-agent,^ But the sub-agent will, under such circumstances, be himself directly responsible to the principal for his own negligence or misconduct ; for wherever any such express or implied authority to appoint a sub-agent is allowed or given by the principal, a privity is created between them,^ Under other circumstances, as no privity would exist between them, the sub-agent would be directly responsible only to his immediate employer, the original agent,* If, therefore, the agent has actually become responsible to the principal, by the negligence or misconduct of his own sub-agent, and has been compelled to pay damages therefor to the principal, he I Paley on Agency, by Lloyd, 17, 20; G-oswell v. Dunkley, 1 Str. R. 680; Cochran v. Irlam, 2 M. & Selw. 301, note; Commercial Bank of New Orleans V. Martin, 1 Louisiana Annual K. 344 ; Pothier, Pand. Lib. 14, tit. 3, n. 18. See, also, as to who is to be deemed the principal, and who the agent, and who the sub-agent. Rapson v. Cubitt, 9 Mees. & Welsh. 710 ; Quarman v. Burnett, 6 Mees. & Welsh. E. 499 ; Milligan v. Wedge,' 12 Adolph. & Ellis, R. 737 ; Winterbottom v. Wright, 10 Mees. & Wels. R. 109, 111 ; Post, § 453 a, 453 6, 453 c, 454 a; Story on Bailments, § 403 a. 3 Bromley v. Coxwell, 2 Bos. & Pull. 438 ; Goswell v. Dunkley, 1 Str. R. 680 ; Catlin V. Bell, 4 Camp. R. 183 ; Paley on Agency, by Lloyd, 17 ; ante, § 85, 118, 141. 3 Ibid. ; Livermore on Agency, ch. 2, § 1, p. 56 to 69 ; Id. p. 64 to 67, (edit. 1818.) But see Lockwood w. Abdy, 9 Jurist, 1845, p. 267. 4 Cleaves v. Stockwell, 33 Maine, 341 ; Cobb v, Becke, 6 Q. B. 930 ; Robbins V. Fennell, 11 Q. B. 248 ; Paley on Agency, by Lloyd, 5, 16, 17, 32, 79 ; Id. p. 396, 397. See Bromley u. Coxwell, 2 Bos. & Pull. 438; 1 Liverm. on Agency, ch. 2, § 4, p. 56 to 59 ; Id. 64, 65, 67, (edit. 1818) ; Post, § 203, note 217 a, 308 ; Cochran v. Irlam, 2 M. & Selw. SOI n. The text contains what I cannot but deem the true doctrine on this point. But there is something in the circumstances of the case of Bromley v. Coxwell, 2 Bos. & Pull. 438, which may, perhaps, create a doubt in some minds. See also Lord North's case, Dyer, K. 161 ; Solly v. Rathbone, 2 M. & Selw. 298 ; Cull v. Backhouse, cited 6 Taunt. R. 148; Schmaling v. Tomlinson, 6 Taunt. 147; Lane v. Cotton, 12 Mod. E. 488 ; 1 Black. Comm. 90. See Lookwood v. Abdy, 9 Jurist, (1845,) p. 267. 2S8 AGENCY. [CH. VII. may recover all that he has been thus compelled to pay, from the sub-agent.^ We shall hereafter see, that an agent may also, by his own conduct, sometimes render himself responsible for the acts of his sub-agent, and become, in effect, a guarantor for him, and incur an absolute responsibility to his principal for money received by his sub-agent.^ § 202. On the other hand, where the agent has given only the usual credit, or has conducted himself according to the usual course of business, and has employed the usual diligence in his agency, he will not be responsible for any loss, occasioned by the subsequent insolvency or fraud of the persons, whom he has trusted, or to whom he has sold the property, if, at the time of the sale, they were in good credit.^ So, if payment is received in the usual manner of conducting the like business transactions, as by receiving a check on a bank from a person in good credit, who should become insolvent, before the check could be duly presented; or, by receiving the common cur- rency of the country, which should afterwards become depreci- ated ; in each of these cases the loss would be the loss of the principal, and not that of the agent.* So, if an agent, who is authorized to purchase goods, uses reasonable diligence in the choice and purchase of them, and afterwards they are found to be, or should become, damaged without his default, the loss must be borne by the principal.^ So, if the goods of the prin- cipal are deposited for safety in a proper place, according to the usage of trade, and they are there -destroyed by fire or 1 Maiuwaring v. Brandon, 8 Taunt. R. 202, 204, 205 ; Post, § 308. 2 Taber v. Perrott, 2 Gallia. E. 565 ; Post, § 231 a. 3 Ante, § 187, 191 ; Paley on Agency, by Lloyd, 9, 26, 27, 45-47 ; 3 Chitty on Comm. and Manuf. 204, 205, 215, 218 ; Scott v. Surman, Willes, K. 406, 407 ; Smith on Mercantile Law, p. 99, (3d edit. 1843.) 4 Paley on Agency, by Lloyd, 9, 27, 28 ; Molloy, B. 3, cL 8, § 7 ; Kussell v. Hankey, 6 T. K. 12 ; 1 Liverm. on Agency, ch. 8, § 2, p. 356, (edit. 1818); Ante, § 98, 103, 109 and note, 181. 5 Paley on Agency, by Lloyd, 32 and note (2); Main waring v. Brandon, 8 Taunt. 202. CH. VII.] AUTHORITY, HOW EXECUTED. 289 other casualty, the agent is discharged.^ So, if the money of the principal is deposited in his name in the hands of a banker of good credit, and such a deposit is according to the common usage of the place, or of that business, the agent will not be responsible for any loss arising from the failure of the banker.* And this is in conformity to the rule of the Roman law. Si res pupillaris incursu latronum pereat, vel argentarius, cm tutor pecunmm dedtt, cumfuisset celeherrimus, solidum redder^ non possit ; nihil eo nomine tutor prcestare eogitur? § 203. In the next place, it is the duty of an agent, where the business in which he is employed admits of it, or requires it, to keep regular accounts of all his transactions on behalf of his principal, not only of his payments and disbursements, but also of his receipts ; and to render such accounts to his prin- cipal at all reasonable times, without any suppression, conceal- ment, or overcharge.* The Roman law, in the like manner, required mandataries and agents to render an account of their doings to their principals, and to pay over to them all the prop- erty and proceeds in their hands. Procurator, ut in cceteris quoque negotiis gerendis, ita et in litilus, ex bona fide rationem reddere debet. Itaque, quod ex lite consecutus erit, sive prin- cipaliter ipsius rei nomine, sive extrinsecus ob earn rem, debet mandati judicio restituere.° 1 Paley on Agency, by Lloyd, 17 ; Goswell v. Dunkley, 1 Str. R. 680, 681. See Bromley v. Coxwell, 2 Bos. & Pull. 438 ; Ante, § 194. 2 Paley on Agency, by"l!iloycI, 45, 46 ; Knight v. Ld. Plymouth, 3 Atk. 480 ; Ex parte Parsons, Ambler, R. 219; Ante, § 200; Post, 208; Hammon v. Cottle, 6 Serg. & Bawle, R. 290. s Dig. Lib. 26, tit. 7, 1. 50. * Paley on Agency, by Lloyd, 48, 49 ; White v. Lady Lincoln, 8 Ves. 369, 370; 3 Chitty on Comm. and Manuf. ch. 3, p. 219 ; Smith on Merc. Law, 47-49, (2d edit.) ; Id. p. 94, 95, (3d. edit. 1843) ; Chedworth v. Edwards, 8 Ves. 49 ; 1 Liverm. on Agency, ch. 8, § 7, p. 434 to 436 ; 1 Story on Eq. Jurisp. § 468, 623. A sub-agent, employed by an agent, is, in general, only accountable to the agent, and not to the principal ; for there is no privity between them. Ante, § 201; Post, § 217; Cartwright v. Hateley, 1 Ves. jr. 292; Pinto v. Santos, 5 Taunt. 447; Stephens v. Badcock, 3 Barn. & Adolph. 354; Myler v. Fitzpatrick, 6 Mad. R. 360. 5 Dig. Lib. 3, tit. 3, 1. 46, § 4 ; Pothier, Pand. Lib. 3, tit. 3, n. 55 ; 1 Domat, B. 1, tit. 15, § 3, art. 8. 240 AGENCY. [CH. VII. § 204. This duty is strictly enforced in Courts of Equity ; and if, by the neglect or omission of this duty, the principal suffers a loss, that loss must be ultimately borne by the agent. When an agent omits to render his account of sales, when reasonably required after the sales are made, he will be pre- sumed to have received the money, and will be accountable therefor ; and, in all cases of unreasonable delay, he is gen- erally charged with interest, whether he has made interest or not.-* But this is properly applicable only t.o cases, where there has been no credit, or the credit has expired ; for the agent is not in any default for not paying over the money, until he has received it.^ 8 204 a. In the next place, it would seem in general to be the duty of an agent, employed to sell the goods of different persons, such, for example, as a factor, to keep distinct ac- counts of the sales made for each of them ; and, if he should sell on credit and take notes for the payment, to take separate notes for the amount due to each principal ; for otherwise the rights of each might be essentially changed in case of a failure of due payment, and a difficulty might arise in ascertaining the exact amount of property of each in the respective notes so taken.^ Without doubt, the usage of trade, or the mode of dealing between the parties, may vary the application of this 1 3 Chitty on Coram, and Manuf. ch. 3, p. 220 ; Paley on Agency, by Lloyd, 49, 50 ; Dodge v. Perkins, 9 Pick. E. 368 ; v. JoUand, 8 Ves. 72. See Keid V. Van Rensselaer Glass Factory, 3 Cowen, E. 393 ; S. C. 5 Cowen, R. 587. See also Mr. Cowen's note to 3 Cowen, E. 87 ; Pope v. Barrat, 1 Mason, E. 117 ; Smith's Compendium of Merc. Law, p. 94, 95, (3d edit. 1843.) 2 See 3 Chitty on Comm. and Manuf. ch. 3, p. 220 ; Bird's Syndic «. Dix's Estate, 16 Martin, E. 254 ; Leverick v. Meigs, 1 Cowen, E. 645. In Varden v. Parker, 2 Esp. Eep. 710, Mr. Justice BuUer seems to have thought, that if part of the purchase-money only had been received by the agent, the principal could not recover that until the whole transaction was closed, unless the rest was not received by the default of the agent. This doctrine does not seem to have been called for by the facts of the case, and therefore will deserve further considera- tion. See 3 Chitty on Comm. and Manuf. ch. 3, p. 220 ; Paley on Agency, by Lloyd, 39, 40, and note (a.) 3 Ante, § 179, note; Clark v. Tipping, 9 Beavan, E. 284. CH. VIl".] AUTHORITY, HOW ;EXECUTED. 24)1 rule ; but it seems in itself equally convenient and equitable, as applied to ordinary cases.^ § 205. So, it is, in many cases, the duty of an agent to keep the property of his principal separate fi*om his own, andfnot to mix it with the latter ; and if he does not keep it separate from his own, in cases where it is properly his duty, and afterwards he is unable to distinguish between the one and the other, the whole will, as a sort of penalty for his negligence, be adjudged to belong to his principal.^ It is also the duty of an agent, in some cases, to invest the money of his principal, which comes to his, hands, so as to yield an interest ; in other cases, it is equally his duty to abstain from making any investment. If, in either case, he should violate his proper duty, he. would be- come responsible to his principal. « As, for example, if he has omitted to invest, in the former case, lie will be made responsi- ble for interest ; in the latter case, the principal will be at liberty to reject the investment, and to hold the loss, if any, on the investment, to be the loss of the agent.^ The duty of in- vesting is sometimes dependent upon the general usage of* trade ; sometimes upon the particular course of business' be- tween the parties ; and sometimes upon what may be deemed the law of particiJar tribunals.* « 1 See ante, 179, note; Corlies w. Widdifield, 6 Cowen, K. 181; Jackson v. Baker, 1 Wash. Cir. R. 395, 445 ; Johnson v. O'Hara, 5 Leigh, Virg. K. 456. 2 Paley on -Agency, by Lloyd, 48, 49, 51 ; Wren v. Kirtou, 11 Ves. 377, 382 ; Fletcher v. Walker, 3 Madd. R. 73; Lupton u. White, 15 Ves. 432; 1 Beawes, Lex Merc. Factors, p. 44, 46 ; 3 Chitty on Comm. and Manuf. eh. 3, p. 215, 220 ; Smith on Merc. Law, 48-50, (2d edit.) ; Id. ch, 5, § 2, p. 95, 96, (3d edit. 1843) ; Chedworth v. Edwards, 8 Ves. 49, 50 ; 1 Story on Eq. Jurisp. § 468, 6^ ; Ersk. Inst. B. 3, tit. 3, § 34 ; ante, 179, n., 204 a. 3 Paley on Agency, by Lloyd, -48 ; 3 Chitty on Comm. and Manuf. ch. 3, p. 218. * Paley on Agency, by Lloyd, ch. 50 ; Brown v. Southouse, cited 3 Bro. Ch. R. 107. The question, whether interest is to be allowed, in cases of agency, against the agent, or not, is dependent upon a great variety of circumstances. Mr. Cowen, in his learned note to 3 Cowen, Reports, p. 87, has collected many of the author- ities. In general, it may be stated, that interest is allowed, wherever it has been, or it might properly have been, made by the agent ; and also where, by gross misconduct, he has withheld, or grosWy misapplied, the moneys of his principal. AGENCY. 21 24)2 AGENCY. . [CH. VII. 8 206. In many cases, also, agents become depositaries or stake-holders of property, as well as agents ; and in such cases, the ordinary duties of depositq;ries of the same nature and charadter belong to tKem. Thus, (as we have seen,) factors are depositaries of the goods, which they are employed to sell ; and therefore they are bound to reasonable skill and diligence in the preservation of them.^ Auctioneers are also deposit' aries or stake-holders of both parties of money, paid ufon purchases, to remain in their hands, until all the conditions of the sale are fulfilled. Of course they are bound to keep it until that period, as a mutual pledge ; and if, before the con- ditions are fulfilled, it is given up to either party, without the consent of both, they will be responsible for any loss occasioned thereby.^ § 207. It may also be stated, as generally true, that all profits, which are made by an agent in the course of the busi- ness of his principal, belong to the latter.^ Indeed, this doc- trine is so firmly established upon principles of public policy, 'that no agent will be permitted to take beyond a reasonable compensation for his services, or to hold any profits incidentally obtained in the execution of his duty, even if it be sanctioned by usage.* Such a usage has been severely stigmatized, as a usage of fraud and plunder.® Where the profits are made by a violation of duty, it would be obviously unjust to allow the agent to reap the fruits of his own misconduct ; and where the profits are made in the ordinary course of the business of the 1 Ante, § 33, 110, 186. 2 3 Ctitty on Comm. and Manuf. ch. 3, p. 219 ; Burrough v. Skinner, 5 Burr. R. 2639 ; Prevost v. Gratz, 1 Peters, Cir. E. 364. 3 Ante, § 192 ; Post, § 214, 340. 4 3 Chitty on Comm. and Manuf. ch. 3, p. 216, 221 ; Diplock v. Blackburn, 3 Camp. K. 43, 44 ; Smith on Merc. Law, 49, (2d ed.) ; Id. ch. 5, § 2, p. 91, 92, (3d edit. 1843) ; Massey v. Davis, 2 Ves. jr. 317 ; v. JoUand, 8 Ves. 72; Paley on Agency, by Lloyd, 3, 4 ; Ante, § 192. 5 Diplock V. Blackburn, 3 Camp. R. 44.* CH. VII.] AUTHORITY, HOW EXECUTED. £43 agency, it must be presumed, that the parties intended, that the principal should have the benefit thereof.^ § 208. Besides the particular duties of agents, which have been already incidentally stated, there are others, which seem to be the proper result of law ; and a deviation from them can only be justified by some clear usage of business, or by the sanction of the principal, or by an overruling necessity.^ Thus, in, regard to agents receiving money for their principals, it seems, (as has been already suggested,) a clear duty, if they deposit the money in the hands of bankers, to deposit it in the name of their principals, and not in their own names ; and if they adopt the latter course, and the bankers shoidd become insolvent, the agents would become personally responsible for the loss." So, it is the duty of agents, to keep their principals apprised of their doings, and to give them notice, within a reasonable time, of all such facts and circumstances, as may be important to their interests ; and if, by neglect of the agent, the principal suffers a loss, he is entitled to be indemnified by the agent.* Thus, for example, it is the duty of an agent, to whom a bill of exchange is remitted for acceptance, to give notice to his employer of the acceptance or non-acceptance of the bill by the earliest reasonable opportunity.® So, an agent 1 Ante, § 192 ; Post, § 210, 211. « Ante, § 85, 118, 141, 194, 201, 237. 3 Ante, § 202 ; Post, 218 ; Caffrey v. Darby, 6 Ves. 496 ; Massey v. Banner, 1 Jac. & VTalk. 241 ; 4 Madd. K. 413 ; Paley on Agency, by Lloyd, Pt. 1, ch. 1, § 3, p. 9, 10; Wren v. Kirton, 11 Ves. 377, 382 ; Fletcher v. Walker, 3 Madd. R. 73 ; 3 Chitty on Comm. and Manuf. ch. 3, p. 215 ; Macdonnell v. Harding, 7 Sim. R. 178 ; Hammon v. Cottle, 6 Serg. k Eawie, 290. * Paley on Agency, by Lloyd, 27, 38, 39 ; Malyne, Lex Merc. 82 ; 3 Chitty on Comm. and Manuf. ch. 3, p. 219, 220 ; Arrott v. Brown, 6 Wharton, R. 9 ; Devall V. Burbridge, 4 Watts & Serg. R. 305 ; Harvey v. Turner, 4 Ra-wle, R. 229 ; Forrestier v. Bordman, 1 Story, R. 43, 56. 5 Beawes, Lex Merc. tit. Bills of Exchange, p. 430, § 117 ; Paley on Agency, by Lloyd, p. 5 ; Id. 39 ; Crawford v. Louisiana State Bank, 13 Martin, R. 214, 706 ; Montillat v. Bank of U. S. 13 Martin, R. 365 ; Miranda v. City Bank pf Naw Orleans, 6 Mill. Louis. R.'740 ;.Pritchard v. Louisiana State Bank, 2 Mill. 244 AGENCY. [CH. VII. employed to purchase goods abroad, or goods to be shipped abroad, is bound to transmit the bill of lading to his employer as soon as possible, or at least within a reasonable time.-^ It has also been laid down, as the duty of a bill-broker, or other per- son, to whom a bill is remitted on commission, first to endeavor to procure acceptance ; secondly, on refusal, to protest the bill for non-acceptance ; thirdly, to advise the remitter of the re- ceipt, acceptance, or protest ; and in case of the latter, to send the protest to him ; and fourthly, to advise any third person, that is concerned ; and all this is to be done without delay ; or, as Beawes expresses it, by the post's return without further delay.^ But it is far from being clear, that all these are strictly his duties in all cases ; and it is certain, that there are others equally imperative. Indeed, the duties properly belonging to such agencies, are most naturally affected and qualified by the usages of trade, and the particular dealings between the parties. Thus, for example, unless there be a clear usage of trade, it seems hardly to be a part of such an agent's duty, to give ad- vice to third persons of the receipt, or acceptance, or refusal of acceptance of a bill, although it is his duty to give such advice to his employer.^ And it seems quite as much the duty of such an agent to present the bill for payment, if accepted, and to give notice of the payment, or non-pa)Tnent, and in the latter case, to protest the bill, as it is to perform the other duties already enumerated.* § 209. And this leads us to the remark, which, indeed, has been already anticipated in the preceding pages, that there are certain duties appropriate, and belonging to certain classes of Louis. U. 415 ; Durnford v. Patterson, 7 Miller, Louis. R. 464; Canonge u. Louisiana State Bank, 15 Martin, R. 344. 1 Barker v. Taylor, 5 Mees. & Wels. 527. 2 Paley on Agency, by Lloyd, 5, 39; Beawes, Lex Merc. p. 430, § 117; Arrott V. Brown, 6 Whart. R. 9. 3 See ante, § 199, 200. * Ante, § 200. CH. Vir.] AUTHORITY, HOW EXECUTED. 245 agencies, resulting either from the general usages of business, or the habits of dealing between the parties, or the special functions to be performed, which cannot be deemed of universal application or obligation. Thus, for example, there are pecu- Uar duties, and peculiar functions, belonging to auctioneers, to brokers, to factors, to masters of ships, to ships-husbands, and even to particular agents, arranged under the same general denomination, such as ship-brokers, bill-brokers, stock-brokers, insurance-brokers, supercargoes, and commission merchants, with or without a del credere commission,^ In some of these cases, the law, (as we have already seen,) has prescribed, or recognized, particular duties as positively obligatory ; in other cases, they are to be gathered from analogous principles, or are dependent upon the usages and habits of trade, to be ascer- tained as matters of fact.^ Thus, for example, it is now settled, as a matter of law, that auctioneers can sell goods only for ready money; but that factors may sell* upon credit.^ In^the first case, the general rule of law is strictly adhered to, that all sales must be for cash, unless there is a usage of trade, which relaxes the rule, and governs the sale. In the latter case, the right of a factor to sell upon credit, although formerly a matter of fact and usage, and to be ascertained as such, is now treated as an undeniable principle of law, and incidental to the agency, in the absence of all contradictory proofs.* A minute enumer- ation of the particular duties of all classes of agents would not be of any great utility, even if it were a practicable task. But in the present state of the law, it must necessarily be very im- perfect and derived mainly from general principles, which must. 1 See 1 Liverm. on Agency, ch. 3, p. 57 to 77 ; Beawe's, Lex Merc. Vol. 1, p. 44 to 49, 4to. (6th edit.) 2 Ante, § 26 to 37. ' 3 3 CMtty on Comm. and Manuf. 199 ; Ante, § 27, 60, 108, lltt; Post, § 226. 4 Ante, § 108, 110. 21 * 24<6 AGENCY. [CH. VII. of course, undergo many modifications, to adapt them to the exigencies of each agency.^ § 210. In this connection, also, it seems proper to state an- other rule, in regard to the duties of agents, which is of gen- eral application, and that is, that, in matters touching the agency, agents cannot act, so as to bind their principals, where they have an adverse interest in themselves.^ This rule is founded upon the plain and obvious consideration, that the prin- cipal bargains, in the employment, for the exercise of the dis- interested skill, diligence, and zeal of the agent, for his own exclusive benefit.^ [Thus, where an agent, having a sum of money in his hands belonging to his principal, is authorized to remit it by purchasing a bill of exchange, he should pur- chase the bill with such money, and not by using his own credit.*] It is a confidence necessarily reposed in the agent, 1 The learned reader will find in Malyne's Lex Meroatoria, ch. 16, p. 81 to 86, much information as to the practical duties of factors ; and ia 1 Liverm. on Agency, oh. 3, p. 67 to 78, (edit. 1818,) in Paley on Agency, by Lloyd, p. 18 to 24, and in Beawes, Lex Mercatoria, p. 44, to 49 (6th edit.) the like informa- tion, as to these and other mercantile agencies.' But, as a specimen, how little can be attained in practical utility by any general statements, we select the fol- lowing passage from Mr. Livermore, as to the general duty of a factor : " The general duty of a factor is to procure the best intelligence of the state of trade at his place of residence ; of the course of exchange ; of the quantity and quality of goods at market ; their present price, and the probability, that it may rise or fall ; to pay exact obedience to the orders of his employers ; to consult their advantage in matters referred to his discretion ; to execute their business with all the despatch that circumstances will admit ; to be early in his intelli- gence, distinct in his accounts, and punctual in his correspondence." 1 Liverm, on Agency, ch. 3, p. 69, (edit. 1818.) See also 1 Bell, Comm. § 407 to 418 ; Id. §432 to 436, (4th edit.); Id. p. 477, 478,481, 482, (5th edit.); Clarke v. Tipping, 9 Beavan, R. 284. * Stone V. Hayes, 3 Denio, K. 575. 3 Paley on Agency, by Lloyd, 10, 11, 33, 37 ; 3 Chitty on Comm. and Manuf. 216, 217 ; 1 Liverm. on Agency, ch. 8, § 6, p. 416 to 433, (edit. 1818) ; Church V. Marine Insur. Co. 1 Mason, K. 341 ; Shepherd v. Percy, 16 Martin, R. 267; Parkhurst v. Alexander, 1 John. Ch. R. 394 ; Beale v. McKiernan, 6 Mill. Louis R. 407 ; 1 Story, Eq. Jur. § 315, 316, 316 a. ; Copeland w. Merchants' Insur Co. 6 Pick. 198, 204 ; Ante, § 10. * Stone V. Hayes, 3 Denio, R. 575. CH. VII.] . AUTHORITY, HOW EXECUTED, . 247 * that he will act with a sole regard to the interests of his principal, as far as he lawfully may ; and, even if impartiality could possibly be presumed on the part of an agent, where his own interests were concerned, that is not what the principal bar- gains for ; and, in many cases, it is the very last thing, which would advance his interests.^ The seller of an estate must be presumed to be desirous of obtaining as high a price, as can fairly be obtained therefor ; and the purchaser must equally be presumed to desire to buy it for as low a price, as he may. It has been said by Cujacius ; ,IIcec scilicet est naiura contractus emptionis et venditionis, ut vendat unus quanta pluris, emat alter quanta minoris potest ; ^ or, more briefly, in another place; Ut. emptor votum gerat emendi minoris, et venditor pluris ven- dendi; ^ or more pointedly still ; Emptor emit, quam minima potest; venditor vendit, quam maxima potest.^ Without going to the full length of the statement of Pomponius, as adopted in the Pandects, that, in regard to price, the parties may lawfully circumvent each other, if that word is to be uifderstood in its offensive sense ; In pretio emptionis et venditionis- naturaliter licere contrahentibus se circumvenire ; ® it maji be correctly said, with refer,ence to Christian morals, that no man can faithfully serve two masters, whose interests are in conflict. If, then, the seller were permitted, as the agent of another, to become the * ~' 1 Paley on Agency, by Lloyd, 10-12 ; 3 Chitty on Comm. and Manuf. 216, 217 ; 1 Liverm. on Agency, ch. 8, §^, p. 416 to 433, (edit. 1818) ; Beale v. McKiernan, 6 Louis. K. 407 ;' Gillett v. Peppercorne, 3 Beavan, R. 78, 83, 84 ; Ante, § 10. 2 Cujac. Opera, Tom. 4, col. 963, ad Lib. 3, Resp. Pap. (edit. Neap. 1758) ; Atte, § 10, note. 3 Cuj«e. Opera, Tom. 10, col. 1005, in IV. Lib. Prior. Cod. Lib. 4, tit. 44, §8, (edit. Neap. 1759). * Cujac. ad Dig. Lib. 4, tit. 4, 1. 16, § 4 ; De Minor. Vig. Quin. Ann. (Tom. 1, col. 998,) cited 1 Liverm. on Agency, 417, (edit. 1818.) I Have not found the very passage, after some search. But there is a passage to the same effect in Cujac. Comm. in Lib. 3, Resp. Pap. ad § — Cum inter. Dig. Lib. 46, tit. 1, 1. 51, § 4 ; Cujac. Oper. Tom. 4, p. 963; (edit. Neap. 1758) ; Ante, § 10, note. 5 Dig. Lib. 4, tit. 4, 1. 16, § 4 ; Ante, § 10 ; Post, § 213. 248 AGENCY. [CH. VII, purchaser, his duty to his principal and his own interest would stand in direct opposition to each other ; and thus a temptation, perhaps, in many cases, too strong for resistance by men of flexible morals, or hackneyed in the common devices of worldly business, would be held out, which would betray them into gross misconduct, and even into crime. It is to interpose a pre- ventive check against such temptations and seductions, that a positive prohibition has been found to be the soundest policy, encouraged by the purest precepts of Christianity. This doc- trine is well settled at law ;' but if is acted upon in Courts of Equity to a much larger extent, not only in cases of persons, confidentially intrusted with the management of the property of others; but, in cases of other relations of a confidential nature, involving the rights and interests of the employer.^ And it is by no means necessary, in cases of this sort, that the agent should have made any advantage, by the bargain. Whether he has so or not, the bargain is equally without any obligation to bifid the principal.^ Of course, it is to be under- stood, as a proper qualification of the doctrine, that the prin- cipal has an election to adopt the act of the agent, or not ; and that, if, after a full knowledge of all the circumstances, he de- liberately and freely ratifies the act of the agent, or acquiesces in it for a great length of time, it will become obligatory upon him ; not by its own intrinsic force, but from the consideration, that he thereby waives the protection, intended by the law for his own iuterests, and deals with his agent, as a person, qmacP hoc, discharged of his agency.* 1 Taylor v. Salmon, 4 Mylne &. Craig, K. 139. 2 Paley on Agency, by Lloyd, 10 to 12, 33 to 36 ; 1 Story on Equity Jurisp. § 308 to 328 ; Huguenin v. Baseley, 14 Ves. 290 ; Baker v. Whiting, 3 Sumner, R. 476 ; Poillon v. Martin, 1 Sandford Ch. K. 569 ; Ante, § 10 ; Post, § 211 to 213. 3 Campbell v. Walker, 5 Ves. 680 ; Ex parte James, 8 Ves. 348 ; Ex parte Bennett, 10 Ves. 385 ; Cane v. Allen, 2 Dow. R. 289 ; Ex parte Lacey, 6 Ves.- 625 ; 1 Story, Equity Juris. § 315, 316, 316 a. * Paley on Agency, by Lloyd, 33 to 36, and note ; 1 Liverm. on Agency, CH. VII.l AUTHORITY, HOW EXECUTED, 249 §211, Hence, it is well settled, (to illustrate the general rule,) that an agent, employed to sell, cannot himself become the purchaser ; and an agent, employed to buy, cannot himself be the seller,^ [And upon the same principle it is held that a contract made by one who acts as the agent of both parties, may be avoided by either principal.^ So, an agent employed ch. 8, § 6, p. 427 to 433, (edit. 1818) ; 3 Chitty on Comm. and Manuf. ch. 3, p. 216, 317 ; Woodhouse v. Meredith, 1 Jac. & Walk. 204, 224 ; Morse u. Royal, 12 Ves. 355; Lowther v. Lowther, 13 Yps. 95, 103 ; Saunderson v. Walker, 13 Ves. 601. 1 Ante, § 10 ; Paley on Agency, by Lloyd, 33, 34, 37 ; 1 Story Eq. Jurisp. § 315, 316, 316 a ; 3 Chitty on Comm. and Manuf. oh. 3, p. 216, 217 ; 1 Liverm. on Agency, ch. 8, § 6, p. 416 to 433, (edit. 1818) ; Lees v. Nuttall, 1 Euss. & Mylne, 53 ; S. C. 2 Mylne & Keen, 819 ; Copeland v. Merc. Ins. Co. 6 Pick. 198; Eeed v. Warner, 5 Paige, R. 650; Lowther v. Lowther, 13 Ves. 103; Reed v. Norris, 2 M. & Craig, 374 ; Beal v. McKiernan, 6 Mill. Louis. R. 407 ; Bartholomew v. Leach, 7 Watts, 472. 2 N. Y. Central Ins. Co. v. National Protection Ins. Co. 20 Barbour, 470, Mason, J., said : " This is an action upon a policy of reinsurance for $2,000, executed by the defendants to the plaintiflFs through the agent, G. W. Stevens, who was also the agent of the plaintiffs in making the contract of insurance. The risk was selected and the rates of insurance fixed by Stevens, and the question is, whether this action can be maintained upon the policy: It becomes impor- tant to inquire whether such a contract, made by an agent who acts as the agent of both parties in making the contract, is absolutely void at common law, or whether it is voidable in a court of law ; or whether it is only voidable in a court of equity. The rule is well settled, both in England and this country, that such a contract is voidable in a court of equity at the election of the prin- cipal. The principle is illustrated in the case of an agent employed to sell. If such agent become himself the purchaser or the agent of another ; or if he be an agent to buy, and he become himself the seller, or the agent of another in making the sale, the principal may avoid the sale or the purchase, in equity. If he come to the Court upon a timely application, upon the fact being alleged and proved, the Court will presume the transaction was injurious and consequently fraudulent ; and this presumption cannot be overcome unless it can be shown that the principal, furnjphed with all the knowledge the agent possessed, gave him previous authority to become purchaser or seller, or afterwards assented to such purchase or sale. (Campbell v. Walker, 5 Ves. 678 ; 1 Ves. jr. 287 ; Mas- sey u. Davies, 2 id. 317 ;'l Russ. & Mylne, 53; 2 Myl. & K. 819; Story on Agency, §§ 9, 192, 210, 211, 214 ; Dunl. Paley on Agency, 33, 34 ; 1 Mason, 341 ; 6 Pick. 198 ; 2 John. Ch. 252 ; 5 id. 388 ; Hopk. Ch. 515 ; 9 Paige, 237 ; 4 Conn. R. 717 ; 5 Lond. Jurist, 18 ; Smith's Merc. Law, 101 ; 13 Ves. 103 i 8 id. 502 ; 9 id. 234 ; 12 id. 3ff5 ; 3 Bro. C. C. 119 ; 5 Paige, 650 ; 2 Mylne & 250 AGENCY. [CH. VII. to purchase, can,not purchase for himself.^ So, a trustee can- not, ordinarily, become the purchaser of the estate of his cestui que trust? And it will make no diiFerence, whether he is sole trustee, or joined with others in the trust.^ So, the assignee Cr. 374; Liver, on Agency, 423; 4 Mylne & Cr. 134 ; 6 Ves. 625; 1 Story's Eq. Jur. §§ 315, 316 ; 2 Mason, 369 ; 1 Jac. & Wal. 294 ; 1 John. Ch. 27 ; 2 id- 394 ; 3 Ves. 740 ; 4 Denio, 575 ; Angell on Fire and Life Ins. 454, 455 ; Par^ sons on Contracts, 74, 75.) The rule seems to be founded on the danger of imposition in such cases, and the presumption which a court of equity indulges of the existence of fraud which is inaccessible to the eye of the Court, and con- sequently in equity such agreements are regarded as constructively fraudulent. (9 Paige, 242 ; 4 Kent's Com. 438, 3d edit.) The rule is a well-settled one, and the presumption is not an unreasonable one in a Court governed by the principles of equity. The principal in fact has bargained for the exercise of all the skill, ability, and industry of his agent, and he is entitled to demand the exertion of this in his own favor. (Parsons on Cont. 74, 75.) Where the agent, unbeknown to his principal, is acting equally in behalf of the other party, the presumption is not an unreasonable one. This principle, however, like the one that a trustee cannot be the purchaser of an estate, is a mere rule of equity. If the proper forms have been observed, the conveyance is good at law, and the title passes. The contract is not void, but only voidable. (5 Metoalf, 467; 5 John. 43, 48 ; 1 Bing. 396, 400, 401 ; 5 Ves. 678 ; 13 id. 603 ; 7 Moore, 315; 5 Pick. 521 ; 3 Ves. 740, 751 ; 2 John. Ch. 740, 751 ; 9 Ves. 248 ; 10 id. 381 ; 14 John. 414, 415 ; 2 Gill & John. 227 ; 4 id. 376 ; 3 Harr. & John. 38 ; Par- sons on Cont. 75, 76, note j. ; 1 Peters' C. C. E. 368 ; 6 Halst. 585 ; 8 Cowen, 361.) No ease, I apprehend, can be found where a court of law has pronounced such a conveyance absolutely void. (M John. 418 ; 5«id. 48 ; Mackintosh v. Barber, 1 Bing. 50 ; 7 Moore, 315 ; 5 Pick. 519, 521 ; 5 Mete. 467.) The rule of which we have been speaking is applicable to all persons placed in situations of trust or confidence with reference to the subject-matter of the contract, and embraces trustees, executors, administrators, guardians, agents and factors, at- torneys, solicitors, &c. It embraces all who come within the principle. (9 Paige, 241.) There is no such rule, in equity even, as that a person standing in such tr.ust relation, cannot himself buy at his own sale. He may purchase and take the title, subject however to the option of the cestui que trust, if he come in a reasonable time, to have the sale declared invalid. (Campbell v. Walker, 5 Ves. 678, and cases note a; Lister v. Lister, 6 id. 631 ; Ex f)arte Lacey, 6 id. 625 ; 15 Pick. 31 ; 7 id. 1 ; 10 id. 77 ; 2 John. Ch. 252, 261, 266 ; 4 Gill & John. 376 ; Parsons on Cont. 76.) 1 Taylor v. Salmon, 4 Mylne & C. 139. 3 Ante, § 210 ; Baker v. Whiting, 3 Sumner, K. 476. 3 Palcy on Agency, 10, 11, 34, 35 note ; 1 Story on Eq. Jurisp. § 314, 316, 321, 322; Parkhurst v. Alexander, 1 John. Ch. K. 394; Cane v. Allen, 2 Dow, K. 289 ; 1 Liverm. on Agency, ch. 8, § 6, p. 416 to 433, (edit. 1818) ; Campbell CH. VII.] AUTHORITY, HOW EXECUTED. 251 of a bankrupt cannot become a purchaser of the debts or estate of the bankrupt on his own account. And, if he does pur- chase, it will be a trust for the benefit of the creditors ; for he is treated as an agent for the creditors, in all matters touching the estate of the bankrupt. So, an executor or administrator cannot buy any of the debts of the deceased for his own bene- fit ; but the benefit will belong to those interested in the estate.^ So, a surety, purchasing the debt, cannot avail himself of the purchase, against his principal, for more than he has paid ; but he will be held as a quasi trustee.^ So, the master of a ship, purchasing the ship at a sale by public authority, cannot pur- chase for himself, unless the owner afterwards elects to allow him the right.* So, an agent employed to settle a debt, can- not purchase it upon his own account ; for he is bound to pur- chase it upon the best terms which he can, for the benefit of his principal ; and it would hold out a temptation to him to violate his duty, if he were permitted *to purchase for himself.^ For the like reason, an agent of the seller cannot become the agent of the purchaser in the same transaction.® So, an agent, who discovers a defect in the title of his principal to lands, cannot misuse it to acquire a title for himsejf, but will be held a trustee for his principal.'' Indeed, it may be laid down as a u. Walker, 5 Ves. 680 ; Ex parte James, 8 Ves. 348; Ex 'parte Bennett, 10 Ves. 385 ; Ex parte Lacey, 6 Ves. 625 ; Whichcote v. Lawrence, 3 Ves. 740 ; Davoue v. Fanning, 2 John. Ch. R. 251, 260 ; Green v. Winter, 1 John. Ch. R. 27. 1 Ex parte Lacey, 6 Ves. 625, 628 ; 1 Story on Eq. Jurisp. § 321, 322. 2 Ex parte Lacey, 6 Vea. 625, 628, 629 ; 1 Story on Eq. Jurisp. § 321, 322. 3 Reed v. Norris, 2 M. &;,Craig, 374 ; 1 Story on Eq. Jurisp. § 321, 322, 324. * Chamberlain v. Harrod, 5 Greenl. R. 420 ; Church v. Marine Ins. Co. 1 Mason, R. 341 ; Barker v. Marine Ins. Co. 2 Mason, 369 ; The Schooner Tilton, 5 Mason, R. 465, 480 ; Copeland v. Merch. Ins. Co. 6 Pick. R. 198. 5 Reed u. Norris, 2 M. & Craig, 361, 374; 1 Story on Eq. Jurisp. § 321, 322. 6 Paley on Agency, by Lloyd, 33, note (3). See Wright v. Dannah, 2 Camp. 203 ; Dixon v. Bromfield, 2 Chitty, R. 205 ; ante, § 207. 7 Ringo V. Binns, 10 Peters, R. 269. Mr. Smith, in his Compendium of Mer- cantile Law, has summed up the doctri^j^ on this matter in a very exact man-' ner : " It has been already said, in the chapter on Partnership, that, from a 252 AGENCY. [CH. VII. general principle, that, in all cases where a person is, either actually or constructively, an agent for other persons, all profits and advantages, made by him in the business, beyond his or- dinary compensation, are to be for the benefit of his employers.^ § 212. With a view to provide effectually against the abuse of professional confidence, even a purchase of an estate by an attorney from his client is treated with severe jealousy by Courts of Equity. The presumption is prima facie so far against its validity, that the burden of proof is thrown on the attorney, to establish its entire good faith for an adequate and fair consideration.^ In this respect, it is said to differ from the case of a pure agency in particular transactions, for in those transactions the purchase of the agent has no validity whatever, independent of the ratification of the principal ; whereas, in the case of attorney and client, the purchase is valid, if it can be shown to have been made uberrima fide, and without any advantage, -taken from professional confidence on one side, or pressing necessity on the other.^ person standing in a situation of confidence with regard to another, the strictest good faith is required. This maxim applies in full force to agents, of whose morals the law is so careful, that it Tvill not suffer them even to incur temptation ; thus, an agent employed to sell is not allowed to be the purchaser, at least not unless he make known that he intends to become such, and furnish his employer with all the knowledge he himself possesses, or unless the Court, perceiving that the principal would loose by a re-sale, think fit on that account to uphold the transaction ; so neither can an agent, employed to purchase, be himself the seller, unless there was a plain understanding between him and his principal to that effect. And if an agent, who is employed to purchase, purchase for him- self, he will be considered a trustee for his principal. This is in accordance with the rule of the Civilians, ^utor rem pupilli emere non potest ; Idemque porrigendum est ad similia, id est, ad curatores, proouratores, et qui ncgotia aliena gerunt. Dig. 1. 18, tit. 1,"— p. 93, (3d edit. 1843.) ' 1 Paley on Agency, by Lloyd, 37, 38, 49 ; East India Co. v. Henchman, 1 Ves. jr. 289 ; Massey v. Davies, 2 Ves. jr. 317 ; 3 Chitty on Comm. & Manuf. 221 ; Campbell v. Penns. Life Insur. Co. 2 Wharton, R. 64 ; Bartholomew v. Leach, 7 Watts, K. 472. 2 Paley on Agency, 10, 11, 33 to 36 ; 1 Story, Equity Jurisp. § 310 to 316 ; Cane v. Allen, 2 Dow, K. 289, 299 ; Poillon v. Martin, 1 Sandford, Ch. K. 569 ; Howell V. Ransom, 11 Paige, R. 538 ; Evans v. Ellis, 5 Denio, R. 640. 3 1 Story on Equity Jurisp. § 310 to 313. CH. VII.] AUTHORITY, HOW EXECUTED. 253 § 213. The Roman law asserted principles in most respects equally comprehensive. Thus it is said in the Pandects : Tutor rem pupilli emere non potest Idemque porrigendum est ad simiUa, id est, ad curatores, procuratores, et qui negotia aliena gerunt} The same doctrine has been incorporated into the French law,^ and into that of other nations, deriving' their ju- risprudence from the Roman law.^ In one respect, the Roman law seems to have stopped short of the principles of our equity jurisprudence ; for, by our law,,(as A^e have seen,) it is imma- terial, whether the purchase or sale be by a single trustee, or agent, aqting alone or by him, acting in connection with other joint trustees or agents ; for in each case, the purchase or sale will be invalid.* But according to the Pandects, although a tutor cannot, at the same time, be both buyer 'and seller; yet, if he has a co-tutor, who has also authority to buy or sell, he may become the buyer or seller, unless there is some fraud. Item, ipse Tutor et emptoris et venditoris officio fungi non potest. Sed enim, si contutorem habeat, cujus auctoritas suffi- cit, procul dubio emere potest. Sed si maid fide emptio inter- cesserit, nullius erit momenti.^ The Roman law seems to have proceeded upon the notion, that the vigilance of the co-tutor, or co-agent, would sufficiently protect the interests of the pupil, or principal ; whereas, our law has proceeded upon the wiser policy of deeming both equally guardians of his interests. § 214. The doctrine which we have been considering, is capable of a great variety of applications. But in all the cases, it is founded upon the same beneficial and enlightened policy, the protection of the principal, and the advancement of his in- terests. Thus, for example, if an agent, authorized to buy,' 1 Dig. Lib. 18, tit. 1, 1. 34, § 7 ; Dig. Lib. 26, tit. 8, 1. 5, § 2, 3 ; 1 Liverm. on AgencyjCh. 8, § 6, p. 417, 418, (edit. 1818) ; ante, § 10, 210. 2 Pothier, Traite de Vente, n. 13. 3 Ersk. Inst. B. 1, tit. 7, § 19 ; 1 Voet, ad Pand. Lib. 18, tit. 1, 9, p. 766. 4 Ante, § 210, 211 ; 1 Liverm. on Agency, ch. 8, § 6, p. 426, 427, (edit. 1818.) 5 Dig. Lib. 26, tit. 8, 1. 5, § 2. AGENCY. 22 254) AGENCY. [CH. VII, should buy of himself, and the bargain is advantageous to the principal, (as has been already hinted,) the latter has his elec- tion to ratify it, or not ; if disadvantageous, he may affirm it, or repudiate it, at his pleasure.^ On the other hand, if the agent makes any profits in the care of his agency by any con- cealed management, either in buying, or selling, or in other transactions on account of his principal, the profits will belong exclusively to the latter.^ § 215. Besides the duties aqd obligations, thus arising from the general relations of principal and agent, there are others, again, which may arise from an express contract, or from an implied contract. The former requires no explanation; the latter, ordinarily, arises from the usages of particular trades, or the habits and special dealings between the particular parties. The most important, in a practical view, to be here taken notice of, is the contract of guaranty by a factor, arising from the receipt of what is commonly called a del credere commis- sion, (the nature whereof has been already stated,^) by which he, in effect, becomes liable, in the case of a sale of goods, to pay to his principal the amount of the purchase-money, if the buyer fails to pay it, when it becomes due. It has been some- times suggested, that this contract makes the factor the pri- mary debtor to his principal, on the sale. But this doctrine is unmaintainable, both upon principle and authority,* The true engagement of the factor, in such cases, is merely to pay the 1 Ante, 192, 207, 210. 2 Paley on Agency, by Lloyd, 37, 38 ; East India Co. v. Henchman, 1 Ves. jr. 289; Massey ». Davis, 2 Ves. jr. 317 ; Prevost v. Gratz, 1 Peters, Cir. K. 364; Ante, § 210, 211. 3 Ante, § 33, 112; Post, § 234, 328 ; 1 Liverm. on Agency, 408, (edit. 1818); Paley on Agency, by Lloyd, 41 ; Smith on Merc. Law, 52, (2d edit.) ; Id. ch. 5, § 2, p. 98, (3d edit. 1843) ; Leverick v. Meigs, 1 Cowen, R. 645 ; 3 Chitty on Com. and Manuf. 220, 221. 4 Ante, § 33 ; 2 Kent, Comm. Lect. 41, p. 624, 625, (4th edit.) ; Thompson V. Perkins, 3 Mason, E. 232; Gall v. Comber, 7 Taunt. R. 558; Peele i>. Northcote, 7 Taunt. R. 478; McJrris v. Cleasby, 4 M. & Selw. 566, 574; Paley on Agency, by Lloyd, 41, note (d) ; Id. Ill, note ; Leverick v. Meigs, 1 Cowen, R. 645. CH. VII.] AUTHORITY, HOW EXECUTED. 255 debt, if it is not punctually discharged by the buyer. In legal eflFect, he warrants, or guaranties the debt ; and thus he stands more in the character of a surety for the debt, than as a debtor. Hence it is well established, that he is not liable to pay the debt, until there has been a default by the buyer .^ [Still his undertaking is not so far collateral, as to be required to be in writing under the statute of frauds, as a promise to pay the debt of another.^] The receipt of acceptances from the buyer, although transmitted to the principal, will not discharge the agent ; but, there must be an absolute payment in money ; or some other mode of payment, authorized by the principal.' But, if the money is once received from the buyer, and the dealings between the parties require the agent to remit to his principal, he does not become a guarantor of the pajTnent of such remittance ; but he is deemed an ordinary factor, liable only for due diligence in purchasing the remittance.* § 21 6^ Hitherto we have been chiefly considering the duties and obli^tions of agents to their principals. There are, how- ever, certain duties and obligations, which they may incur in their dealings with third persons, for the breach of which they become personally responsible to the latter. But these will be more properly and conveniently discussed in some of the suc- ceeding chapters, as they are of a more limited extent, and fall naturally within the topics embraced therein.^ 8 217. The duty of thus guarding the interests of the prin- ' Morris v. Cleasby, 4 M. & Selw. 574. 2 Couturier v. Hastie, 16 Eng. Law & Eq. R. 562 ; Swan v. Nesmith, 7 Pick. 220 ; Wolff V. Koppell, 5 Hill, 458 ; 2 Denio, 368 ; Bradley v. Richardson, 23 Verm. 720. ||| 3 Ante, § 98; Post, § 413 ; MoKenzie v. Scott, 6 Bro. Pari. Cas. 280, (Tom- lin's edit.) ; Paley on Agency, by Lloyd, 41, 42 ; MuUer v. Bohlens, 2 Wash. Cir. R. 378. ' V'j *Leverick v. Meig«, 1 Cowen, R. 645. But see McKenzie v. Scott, '6 3Bro. Pari. Cas. by Tomlins, 286 ; 1 Liverm. on Agency, 408 to 411, (edit.: 1818) ; Lucas V. Groning, 7 Taunt. 164 ; Paley on Agency, by Lloyd, 41, 42, and note ; Smith on Merc. Law, 52, (2d edit.) ; Id. oh. 5, § 2, p. 98, (3d edit. 1843). 5 Post, ch. 10, 260 to 301 ; eh. 12, § 308 to 322. ' > €56 AGENCY. i[cH. VII. cipal is not confined to cases where the agent may sacrifice his interests by attempts to further his own ; but the same protec- tive policy extends to cases where the interests of strangers are sought to be asserted by the agent, adversely to those of the principal. Therefore it is, that an agent is not, ordinarily, permitted to set up the adverse title of a third person, to defeat the rights of his principal, against his own manifest obligations to him ; or to dispute the title of his principal.-' If, therefore, he has received goods from his principal, and has agreed to •hold them, subject to his order, or to sell them for him, and to account for the proceeds, he will not be allowed to set up the -adverse title of a third person to the same goods, to defeat his obligations.^ And if he should agree by a receipt to hold them for such third person, such conduct would amount to a conver- sion of the property of his principal, for which an action would lie.^ An exception, however, is allowed, where the principal has obtained the goods fraudulently, or tortiously, from such third person.* The same principle is upheld, as well in equity, 1 Kieran v. Sandars, 6 Adol. & Ellis, 515 ; Nicholson v. Knowles, 5 Mad. E. 47. 5.H0II V. Griffin, 10 Bing. R. 246; Harman v. Anderson, 2 Camp. E. 243;^ Steward v. Duncan, 2 Camp. R. 344 ; Dixon v. Hamond, 2 B. & Aid. 310 ; Goslin I'. Birnie, 7 Bing. K. 339 ; White v. Bartlett, 9 Bing. R. 378 ; Roberts v. Ogilby, 9 Price, R. 269 ; Hardman v. Wilcook, 9 Bing. R. 382, note ; Kieran v. Sandars, 6 Adolph. & Ellis, 515 ; Hawes v. Watson, 2 B. & Cressw. 540; Paley on Agency, by Lloyd, 80, 81 ; Id. 53 ; Story on Bailments, § 110; Smith's Com- pendium of Merc. Law, ch. 5, § 2, p. 94, (3d edit. 1843). 3 Holbrook v. Wight, 24 Wend. R. 169. * Hardman v. Wilcook, 9 Bing. E. 382, note ; Taylor v. Plumer, 3 M. & Selw. 562. We are carefully to distinguish those cases, where the suit is brought by the principal, from those, where the suit is brought by a third person, claim- ing the property against the agent. The rights of the latter togpaintain the suit are not affected by any thing, that has passed between the prindpal and agent. If such third person has a good title to the goods, he may recover them, notwith- standing the bailment. See Ogle v. Atkinson, 6 Taunt. R. 759 ; Wilson v. Anderton, 1 Barn. & Adolph. 450; Story on Bailm. § J.02, 103. There is a dictum in Ogle v. Atkinson, by Lord Chief Justice Gibbs, which contradicts the text, in which he refers to a point made, that the defendants (the agents) cannot refuse to deliver up the goods to the plaintiff, (the principal,) from whom they received them ; and he then says : " But, if the property is in others, I think CH. VII.] AUTHORITY, HOW EXECUTED. 257 as at law ; and therefore, if an agent receives money for his prin- cipal, he is hound to pay it over to him, and he cannot be converted into a trustee for a third person, hy a mere notice of his claim.^ § £17 a. It is upon a somewhat analogous principle, con- nected with the want of privity, that an agent employed hy a trustee is accountable only to him, and not to the cestui que trust ;^ and a sub-agent ordinarily is accountable only to the superior agent, who has employed him, and not, generally, to the principal.^ But where, by the usage of trade, or otherwise, a sub-agent is employed, with the express or implied consent of the principal, there the original agent will not be responsible for the conduct of the sub-agent ; hut the appropriate remedy of the principal for the misconduct or negligence of the sub- agent is directly against the latter,* since a privity will, under that they may set up this defence." This dictum has heen since treated as un- tenable. See Goslin v. Birnie, 7*Bing. K. 339; Paley on Agency, by Lloyd, 80, 81, and note ; Id. 53. 1 Nicholson v. Knowles, 5 Madd. K. 47 ; Story on Bailm. § 102, 103 ; 2 Story, Eq. Jurisp. § 317. 2 Myler v. Fitzpatrick, 6 Madd. B. 360 ; Ante, 201. 3 Cartwright v, Hately, 1 Ves. jr. 292 ; Pinto v. Santos, 5 Taunt. R. 447 ; , Stephens v. Badcoek, 3 Barn. & Adolph. 354 ; Ante, § 13 to^l5, note; Tickel v. Short, 2 Ves. 239 ; Ex parte Sutton, 2 Cox, 84; Soley v. Rathbone, 2 M. & Selw. 298 ; Cockran v. Irlam, 2 M. & Selw. 301, 303, note ; Myler v. Fitzpatrick, 6 Madd. K. 360 ; A'nte, § 201 ; Post, § 321, 322. 4 Paley on Agency, by Lloyd, 16, 17; Goswell v. Dunkley, 1 Str. R. 680. See Branby v. Coxwell, 2 Bos. & Pull. 438; Cockran v. Irlam, 2 M. & Selw. 301, note, 303 ; Merrick v. Barnard, 1 Wash. Cir. B. 479 ; Ante, § 14, 15, 201 ; Foster v. Preston, 8 Cowen, R. 198. In Cockran v. Irlam, (3 M. & Selw. 303, note,) Lord Ellenborough said : " A principal employs a broker from the opinion he entertains of his personal skill and integrity ; and a broker has no right, without notice, to turn his principal over to another, of whom he knows nothing. It appears to me, therefore, that there is no privity, either express or impUed, between Campbell and Orr, and Hutchinson. There certainly was not any express privity ; neither can any be implied, unless the case had found, that the usage of trade was such as to authorize one broker to put the goods of his em- ployer into the hands of a sub-broker to sell, and to divide the commission with him. It is said, however, that Campbell and Orr drew bills on their broker for these goods, and that afterwards they received value for them ; but the case fails in establishing that point." See also Post, § 308, 313, 322, 453 a, 453 b, 453 c, 454 a. 22* £58 AGENCY. [CH. VII. such circumstances, exist between them. In many cases of this sort, however, the agent may by his own conduct render himself responsible to his principal for the acts of the sub- agent, and for money received by hita on account of his prin- cipal ; ^ as, for example, if he has participated or cooperated with the sub-agent in his improper acts, or misconduct, or deviation from duty. 1 Taber v. Perrott, 2 Gallis. K. 565 ; Ante, § 201 ; Post, § 231 a, 313, 322. CH. VIII.] LIABILITIES TO PRINCIPALS. 259 CHAPTER VIII. LIABILITIES OF AGENTS TO THEIR PRINCIPALS. § 217 ^. Having thus considered the nature and extent of the duties and obhgations of agents, we are, in the next place, led to the consideration of the correlative topic of the liabilities of agents. These are naturally divisible into two general heads : (1.) Their liabilities to their principals; and (2.) Their liabilities to third persons. § 217 c. And first, their liabilities to their principals. From what has been already said it is sufficiently clear, that wherever an agent violates his duties or oUigations to his prin- cipal, whether it be by exceeding his authority or by positive misconduct, or by mere negligence or omission in the proper functions of his agency, or in any other manner, and any loss or damage thereby falls on his principal, he is responsible therefor, and bound to make a full indemnity.-^ In such cases, it is wholly immaterial whether the loss or damage be direct to the property of the principal, or whether it arise from the com- pensation or reparation, which he has been obliged to make to third persons in discharge of his liability to them, for the acts or omissions of his agent.^ The loss or damage need not be 1 Paley on Agency, by Lloyd, 7, 71, 74, and note, (2) ; Marzetti v. Williams, 1 B. & Adolph. 415 ; 1 Liverm. on Agency, ch. 8, § 3, p. 398, (edit. 1818) ; Dodge V. Tileston, 12 Pick. 328 ; Savage v. Birckliead, 20 Pick. 167 ; Attorney- General V. Corporation of Leicester, 7 Beavan, K. 176 ; Wilson v. Short, 6 Hare, R. 366. 2 Paley on Agency, by Lloyd, 7 ; Id. 294 to 304 ; Ante, § 200, 201 ; Arrott V. Brown, 6 Whart. K. 9 ; Harvey v. Turner, 4 Rawie, E. 223 ; Woodward v. Suydam, 11 Ohio (Stanton) Rep. 363 ; 1 Liverm. on Agency, 363, (edit. 1818) ; Pothier on Oblig. by Evans, note 453. In Louisiana, the Civil Code restricts the liability of principals, for the delinquency and acts of their agents, in the functions in which they have employed them, to cases where the principal might 260 AGENCY. [CH. VIII. directly or immediately caused by the act which is done, or is omitted to be done. It will be sufficient if it be fairly attribu- table to it, as a natural result, or a just consequence.^ But it will not be sufficient if it be merely a remote consequence, or an accidental mischief; for in such a case, as in many others, the maxim applies, Cmisa proxima, non remota^ spectatur? It must be a real loss,. or actual damage, and not merely a probable or possible one.® Where the breach of duty is clear, it will, in the absence of all evidence of other damage, be pre- sumed that the party has sustained a nominal damage.* § £18, We may illustrate these remarks by some of the cases already cited in the foregoing pages. And first, in rela^ tion to the point that the loss or damage need not be directly or immediately caused by the act or omission of the agent. Thus, if an agent should knowingly deposit goods in an improper place, and a fire should accidentally take place, by ■which they are destroyed, he will be responsible for the loss ; ^ for, although the loss is not the immediate and direct conse- quence of the negligence, but of the fire ; yet it may be truly said, that it would not have occurred, except from such negli- gence. The negligence, then, was the occasion, although not strictly the cause of the loss ; and the loss may be fairly have prevented the act, which caused the damage, and has not done it. Code Civil of Louisiana, art. 2299; Strawbridge v. Turner, 8 Mill. Louis. Rep. 587. This is different, however, from the civil law, which creates a general liability for all the delinquencies and acts of agents, in matters within their authority. Pothier on Oblig. by Evans, note 453. 1 Caffrey v. Darby, 6 Yes. 490 ; Paley on Agency, by Lloyd, 9, 10, 16, 17; Jeffrey v. Bigelow, 13 Wend. R. 518. 2 Story on Bailm. § 515 to 524 ; Smith v. Condry, 1 Howard, Sup. Ct. R. 28; S. C. 17 Peters, R. 20 ; Vicars u. Wilcocks, 8 East, R. 1 ; 2 Smith's Leading Cases, 300, and note, (2d edit.); 1 Smith's Leading Cases, lg'2, note, (2d edit.) 3 Paley on Agency, by Lloyd, 7, 8, 9, 10, 74, 75 ; Ante, § 200 and note ; Post, § 217, 221 ; Webster v. Do Tastet, 7 T. Rep. 157 ; Bell v. Cunningham, 3 Peters, R. 69, 85. See Harvey v. Turner, 4 Rawle, R. 223 ; Arrott v. Brown, 6 Wharton, R. 9. ' 4 Marzetti v. Williams, 1 B. & Adolph. 415. fi Ante, § 200, and note ; Paley on Agency, by Lloyd, 9, 10, 16, 17. CH. VIII.] LIABILITIES TO PRINCIPALS. 261 attributed to it.^ So, if an agent should so negligently execute his duty in procuring a policy of insurance, as that the risk (as, for example, a peril of the seas, by which a loss was caused^ should not be included in it ; the principal might, nevertheless, recover the amount of the loss against the agent, although the loss was directly caused by the peril of the seas.^ So, if an agent, who is bound to procure insurance for his principal, neglects to procure any, and a loss occurs to his principal from a peril, ordinarily insured against, the agent will be bound to pay the principal the full amount of the loss occasioned by his negligence.' So, if an agent to procure insurance should pro- cure the policy to be underwritten by insurers notoriously in bad credit, or insolvent, and a loss should occur therefrom, he would be bound to indemnify his employer against the loss.* So, if an agent should improperly deposit the money of his principal in his own name in the hands of a banker, who should afterwards become insolvent, the loss must be ultimately borne by the agent.® So, if a carrier-master of a ship should unnecessarily deviate .from the proper course of the voyage, and the goods shipped should afterwards be injured by a tempest, or should be lost by capture, or other peril, the shipper would be entitled to a full indemnity from the ship-master and ship- owner.® • Paley on Agency, by Lloyd, 9, 10, 16, 17 ; Ante, § 200. 2 Mallough V. Barber, 4 Camp. E. 150 ; Park v. Hammond, 4 Camp. E. 344 ; S. C. 6 Taunt. R. 495 ; 1 Liverm. on Agency, ch. 8, § 1, p. 341 to 354, (edit. 1818) ; Paley on Agency, by Lloyd, 18 to 21 ; 1 Phillips on Insur. ch. 22, p. 619 to 524 ; Marsh, on Insur. B. 1, ch. 8, § 2, p. 297 to 301 ; Ante, § 191. 3 Paley on Agency, by Lloyd, 18-20 ; Wallace v. Telfair, 2 T. Eep. 188, note; Smith V. Lascelles, 2 T. Eep. 187 ; Delancy v. Stoddart, 1 T. Eep. 24 ; Morris V. Summer], 2 Wash. Cir. R. 203 ; De Tastet v. Crousillat, 2 Wash. Cir. E. 132, 136; Ante, § 190, 191, 200. < 2 Valin, Comm. Lib. 3, tit. 6, art. 3, p. 33 ; Ante, § 187, 191. 5 CafiFrey v. Darby, 6 Ves. 496 ; Paley on Agency, by Lloyd, 46, 47 ; Wren V. Kirton, 11 Ves. 382 ; Ante, § 200, 208. 6 Davis V. Garrett, 6 Bing. E. 716; Parker v. James, 4 Camp. E. 112; Dale V. Hall, 1 Wils. E. 281 ; Max v. Eoberts, }2 East, E. 89 ; Story on Bailments, §413,509. 26£ AGENCY. [CH. -VIII. § £19. In all these gases, although the misconduct or negli- gence of the agent is not the direct and immediate cause of the loss ; yet it is held to be sufficiently proximate/ to entitle the principal to recover for the loss or damage ; for, otherwise, the principal would ordinarily be without remedy for such loss or damage ; since the same objection would apply in almost all cases of this sort. It is true, that, in many cases of this sort, it may be said that it is not certain, that the loss or damage might not have occurred, if there had been no such misconduct or negligence-; but this furnishes no objection to the recovery. Thus, if an agent has improperly sold goods on a credit, to a person not in good credit, it may be said, that he might have sold the goods to another person, apparently in good credit, who might have failed before the expiration of the credit.^ So, in the above case of a loss by tempest, or capture, or other peril after a deviation, it may be said, that the like loss might have occurred, if the vessel had continued on the voyage. But the law disregards such subtleties and niceties, as to causes and possibilities, and it acts upon the intelligible ground, that, where there has been misconduct or negligence in the agent, all losses and damages occurring afterwards, to which the property would not have been exposed, but for such misconduct or negligence, are fairly attributable to it, as a sufficiently prox- imate cause, although not necessarily the immediate or nearest cause of the loss or damage. The doctrine, too, may be vindi- cated upon the broader ground of public policy, that no wrong- doer ought to be allowed to apportion or qualify his own wrong ; and that, as a loss has actually happened, whilst his wrongful act was in operation and force, which is fairly attributable to his wrongful act, he ought not to be permitted to set up, as a defence, that there was a more immediate cause of the loss, acting upon the subject-matter at the same time, or a bare pos- sibility of loss, if his wrongful act had not been done.^ 1 See ante, § 202. 2 Davis V. Garrett, 6 Bing. R. 716 ; Cafi'rey v. Darby, 6 Ves. 496. CH. VIII.] LIABILITIES TO PRINCIPALS. 263 § 220. In the next place, as to the point of the loss or dam- age being merely a remote consequence, or accidental mischief, from the negligence or omission of the agent. Thus, if an agent, who is bound to render an account, and to pay over moneys to his principal, at a particular time, ghould omit so to do, whereby the principal should be unable to pay his debts, or to fulfil his other contracts, and should stop payment and fail in business, or be injured in his general credit thereby, the^gent would not be liable for such injury ; for it is but a remote or accidental consequence of the negligence.^ So, if an agent having funds in his hands, should improperly neglect to ship goods by a particular ship, according to the orders of his prin- cipal ; and the ship should duly arrive ; and, if the goods had been on board, the principal might, by future r^shipments and speculations, have made great profits thereon ; the agent will not be bound to pay for the loss of such possible profits ; for it is a mere contingent damage, or an accidental mischief.^ So, if an agent, bound to make a shipment to his principal from a foreign port, not being limited to any particular ,ship, should wholly neglect so to do ; and it should appear, that, if the ship- ment had been made, and had safely arrived in due season, the principal would have made great profits ; the agent would not be liable for such loss of profits ; for, as it could not, under such circumstances, be absolutely ascertained, whether the ship- ment would have arrived at the port, or in what ship, or at what particular time, the loss or damage would be merely contingent and possible.^ The same reasoning would apply to a case, where, by the neglect of an agent to remit money, the principal has been prevented from engaging in a profitable speculation in some other business by his want of the funds. ' Shortu. Skipwith, 1 Brook, Cir. R. 103, 104. See Arrott v. Brown, 6 Whar- ton, E. 9'. 2 Bell V. Cunningham, 3 Peters, R. 69, 84, 85 ; S. C. 5 Mason, R. 161 ; ante, §217; Post, § 221. 3 See The Amiable Nancy, 3 Wheat. E. 560, 561 ; ante, § 217 ; Post, § 221 ; Smith V. Condry, 1 Howard, Sup. Ct. R. 28; S. C. 17 Peters, K. 20. 264 AGENCY. [CH. VIII, § 221. In all cases of this sort, the law contents itself with rules, as to damages, derived from sources, having more cer- tainty and universality of application ; and founded upon the ordinary results of human transactions. Thus, if an agent improperly withholds the money of his principal, he is made liable for the ordinary interest of the country, where it ought to be paid, and the incidental expense of remitting it, if it ought, to be remitted.^ So, if the goods of the principal are negligently lost, or tortiously disposed of, by the agent, he is made liable for the actual value of the goods at the time of the loss or the conversion.^ So, in the case above supposed, of a non-shipment of goods by an agent, where the ship, by which they were ordered to be sent, has safely arrived, the principal would be entitled to recover the actual value of the goods at the port of arrival ; for, as the ship has safely arrived, that is the actual loss sustained by the principal, by the non-shipment, ^ although that value may be greatly enhanced by the state of the market, beyond what the prime cost would have been at the port, where the shipment ought to have been made.^ So, if an agent is directed to invest the funds of his principal in a particular stock, and he neglects so to do, and the stock there- upon rises, the principal is entitled to recover the enhanced value, as if the stock had been purchased.* But possible or probable future profits, or contingent and speculative gains, would constitute no just ingredients in the estimate of such loss or damage from the uncertainty of their nature, the fluctu- ating and changeable elements on which they depend, and their utter inadequacy and unfitness, as a rule, in a great variety of cases, where a wrong has been done to the principal.^ 1 Short V. Skipwith, 1 Brock. Cir. K.'lOS, 104. a The Amiable Nancy, 3 Wheat. R. 560, 561 ; Pope v. Barrett, 1 Mason, K. 117 ; Woodward v. Suydam, 11 Ohio (Stanton) R. 383. 3 Cunningham w.Bell, 3 Peters, K. 84, 85 ; ante, § 220. * Short V. Skipwith, 1 Brock. Cir.R. 103. 5 Bell V. Cunningham, 3 Peters, R. 69, 84, 85 ; S. C. 5 Mason, R. 161 ; The CH. VIII.] LIABILITIES TO PRINCIPALS. 265 8 222.' In the next place, there must he a real loss, or actual damage, and not merely a probable or a possible one. There- fore, if an agent is ordered to procure a policy of insurance for his principal, and neglects to do it ; and yet the policy, if pro- cured, would not have entitled the principal, in the events which happened, to recover the loss or damage, the agent may avail himself of that, as a complete matter of defence.^ Thus, if the ship, to be insured, has deviated from the voyage ; or the voyage, or the insurance, is illegal ; or the prindpal had no in- surable interest ; or the voyage, as described in the order, would not have covered the risk ; in all such cases, the agent, although he has not fulfilled his orders, will not be responsible ; for the principal cannot have sustained any real loss or actual injury by the neglect.^ And, in such cases, it will make no dijfference, that, if the insurance had been made, the underwriters might probably have paid the loss or damage without objection ; for the right to recover is still an essential ingredient in the case against the agent.^ So, if the principal would have sustained a loss or damage, if his orders had been complied with, that would be an answer to a suit for the breach of them ; for there must not only be a wrong done, but a damage resulting there- from.* However, as has been already stated, it will be pre- sumed, unless the contrary clearly appears, that the princi- Ainiable Nancy, 3 Wheat. R. 560, 561 ; Tide-water Canal Co. v. Arete, 9 GilL & John. R. 479, 535 ; Smith v. Condry, 1 Howard, Sup. Ct. K. 28 ; S. C. 17 Peters, R. 20 ; ante, § 220. 1 Paley on Agency, by Lloyd, 19-21, 74, 75 ; Marshall on Insur. B. 1, ch. 8, § 2, p. 297 to 305 ; 1 Phillips on Insur. ch. 22, p. 519 to 524 ; 2 Phillips on Insur. ch. 22, p. 363 ; Post, § 235, 238. 2 Post, § 235, 238 ; Paley on Agency, by Lloyd, 19-21,75,76; Marsh, on Insur. B. 1, ch. 8, § 2, p. 300 ; Delaney «. Stoddart, I T. Kep. 22 ; Webster v. De Tastet, 7 T. fiep. 157 ; 1 Liverm. on Agency, oh. 8, § 3, p. 386 to 390, (edit. 1818.) 3 Webster v. De Tastet, 7 T. Kep. 157 ; Formin v. Oswell, 3 Camp. K. 359 ; Paley on Agency, by Lloyd, 74-76. See De Tastet v. Crousillar, 2 Wash. Cir. R. 132 ; 1 Liverm. on Agency, ch. 8, § 3, p. 386, 388, (edit. 1818). 4 Post, § 236. AGENCY. 23 266 AGENCY. [CH. VIlI. pal, by the breach of his orders, has sustained some' damages, and, if none other are established in evidence, he will be en- titled to nominal damages.^ § 22S. It will be no excuse for an agent who has rendered himself responsible by his negligence, or his> deviation from orders, that he has, in other transactions, conducted himself so well, that his principal has derived greater advantages therein from his uncommon care, skill, and diligence. For it is his duty in all cases, to manage the business of his principal to the best advantage, and to his best ability. In this respect, as has been very properly said, the case of an agent does not differ from that of a partner under the Roman law, who was not permitted to set off the profits, which the partnership had derived from his superior skill, attention, and diligence in one instance, against losses sustained by his negligence in other instances.^ JYon oh earn rem minus ad fericulum socii pertinet, quod negligentta ejus periisset, quod in plerisque aliis industrial, ejus societas aucta fuisset Et hoc ex appellatione Imperator pronunciavit,^ § 224. And not only will an action lie against an agent for losses and damages occasioned by any violation or neglect of his duty ; but, in many cases, where it touches the property of the principal, the latter will be entitled to proceed in rem, and reassert his rights thereto ; a remedy, which may sometimes.be the only effectual means (as, for example, in case of the insol- vency of the agent) to secure to the principal an adequate re- dress.* When, therefore, the property of the principal is in- ' Ante, § 217; Marzetti v. Williams, 1 Barn. & Adolph. 415. 2 1 Liverm. on Agency, p. 384, (edit. 1818). 3 Dig. Lib. 17, tit. 2, i; 25 ; S. P. Dig. Lib. 17, tit. 2, 1. 26. 4 Paley on Agency, by Lloyd, 335, 337, 338, 340 to 442. The particular remedies, which are to be pursued, either in personam, or in rem, are more proper for a treatise on pleading, than for one, like the present, -which seeks only to expound the general rights and duties incident to agency. See 1 Liverm. on Agency, ch. 8, § 3, p. 375 to 386, (edit. 1818) ; Paley on Agency, by Llc*yd, P. 2, §1 to 4, p. 55 to 99. S ^W J CH. VIII.] LIABILITIES TO PRINCIPALS. trusted to.the agent for a special purpose, as, for example, for sale or exchange, if a transfer is made by him within the scope of the authority confided to him, a good title will be conveyed to the transferree. But when the transfer is made in a mode, which is not within the scope of the authority confided to the agent, or with which the agent is not apparently clothed, or held out to the public to be clothed, no title to the property will be passed, and it may be reclaimed by the owner.^ We have already seen, that, in the case of a general agent, his acts are valid to bind the principal within the scope of the general au- thority, with which his agency apparently invests him, notwith- standing any private secret instructions, which restrict or vary that authority.^ But, if the person, dealing with such an agent, has notice of such instructions or variations, he cannot acquire any title to the property, which is transferred in vio- lation of them.^ § 225. Similar considerations will apply to cases of general agency, where, from the usage of trade, or otherwise, persons dealing with the agent, have knowledge, that he is transcend- ing the ordinary and accustomed modes of transacting the like business ; for they are presumed to understand the restrictions and limitations, thus imposed upon the general agency, and are bound by them.* Thus, a person, dealing with a factor, or broker, is bound to know, that, by law, a factor, or broker, although a general agent, is not clothed with authority to pledge, deposit, or transfer the property of his principal for his own debts ; and, if he receives such a deposit, or pledge, the title is invalid, and the property may be reclaimed by the principal.* And in such a case, it is wholly immaterial, whether the 1 Paley on Agency, by Lloyd, 78, 79, 325, 340, 341 ; 3 Chitty on Comm. and Manuf. 204 ; Boyson u.. Coles, 6 M. & Selw. 14. 2 Ante, § 70 to 73, 126 to 133. 3 Ibid. * Paley on Agency, by Lloyd, 340, 341. 6 Post, § 229, 389; Paley on Agency, by Lloyd, 340-342; Id. 218, 219; 1 Liverm. on Agency, 129, 130 to 149, (edit. 1818) ; Ante, § 113 ; Bouchout v- 268 AGENCY. [CH. VIII. pledgee knew, that the party, with whom he was dealing, was a factor, or broker, or not. If he knew the fact, he was also bound to know the law applicable to it. If he did not know the fact, his own ignorance would not, ordinarily, enlarge his rights against the principal ; since the latter has not held him out to the public, as having such an authority.! § 226. The same principle applies, where the act of the agent is not justified by the usage of trade. Thus, for example, by the usage of trade, a sale of goods may^ ordinarily, be made by a factor on credit ; but, by the like usage of trade, a sale of stock by a broker is always understood to be a sale for ready money .^ Hence, if a broker should sell stock on a credit, the sale would be invalid ; and the principal would be entitled to recover it back.^ § 227. Cases, indeed, may arise, in which the principal may be bound ; as, if he has clothed the agent with all the apparent muniments of an absolute title, and authorized him to dispose of the property, as sole owner, and the pledgee has no notice of the agency.* Thus, although a broker, employed to purchase, has, ordinarily, no authority to sell ; still, if the principal invests Goldsmid, 5 Ves. 211, 213; 3 Chitty on Comm. and Manuf. 204, 205; Van Amringe v. Peabody, 1 Mason, E. 440 ; Boyson v. Coles, 6 M. & Selw. 14. 1 Paley on Agency, by Lloyd, 213-216, 218-220, 340, 341 ; Newson v. Thorn- ton, 6 East, 17; Jackson v. Clarke, 1 Young & Jerv. 216 ; Glyn v. Baker, 13 East, 509 ; Barton v. Williams, 5 Barn. & Aid. 395, S. C. 3 Bing. E. 139 ; 3 Chitty on Comm. and Manuf. 204, 205; 2 Kent, Comm. Lect. 41, p. 625, 626, (4th edit.) 2 Ante, § 60, 108, 110. 3 Paley on Agency, by Lloyd, 212, 213 ; Wiltshire v. Sims, 1 Camp. K. 258 ; Post, § 229. * Paley on Agency, by Lloyd, 218-220, 325 ; Boyson v. Coles, 6 M. & Selw. 14; Post, §443. This constitutes the very difficulty, as to the doctrine of the non-existence of a right to pledge by a factor. As a new question, there might be great reason to contend, that a factor, being clothed with the apparent pos- session and ownership, has a right to pledge, as the exercise df a minor right, than that of selling. But the point has been too firmly established by adjudica- tion to admit of further judicial controversy. See ante, § 73, 113, 126 to 133 ; Post, § 419 to 421; and Paley on Agency, by Lloyd, 218-221, note (3); 1 Liverm. on Agency, 149, (edit. 1818). CH. VIII.] LIABILITIES TO PRINCIPALS. £69 him with the apparent legal ownership, he will be bound by a sale made by the broker.^ [So, where a principal accepted bills of exchange, drawn on him by his agent, payable to the order of the agent, who agreed to have them discounted for the bene- fit of the principal ; and the agent, assuming to be the owner of the bills,* pledged them to a bond fide holder, to secure money borrowed for his own use ; it was held, that the principal, having enabled the agent to hold himself out as owner, was bound by the pledge.^] § £28. This latter principle lies at the foundation of the well-established doctrine, that if an agent is intrusted with the disposal of negotiable securities or instruments, and he disposes of them by sale, or pledge, or otherwise, contrary to the orders of his principal, to a hona fide holder without notice, the prin- cipal cannot reclaim them ; for it is said, that the title of the holder, in cases of negotiable instruments, is derived from the instrument itself, and not from the title, which the party has, from whom he received them.^ But the better reason is, that the principal, in all such cases, holds out the agent, as having an unlimited authority to dispose of and use such instruments, as he may please. And, indeed, negotiable instruments, when indorsed in blank, or payable to bearer, are treated as a sort of currency, and pass in the market without inquiry as to the title of the holder ; * and the negotiability of all instruments would 1 Paley on Agency, by Lloyd, 218-220 ; Baring v. Corrie, 2 B. & Aid. 137, 145 ; 2 Kent, Comm. Lect. 41, p. 626, 627, (4th edit.) ; 3 Chitty on Comm.and Manuf. 202 ; Pickering v. Busk, 15 East, 38 ; Whitehead v. Tuckett, 15 East, 400 ; Boyson v. Coles, 6 M. & Selw. 14 ; Martini v. Coles, 1 M. & Selw. 140 ; Lausatt v. Lippincott, 6 Serg. & R. 386 ; Moore v. Clementson, 2 Camp. R. 22 ; Story on Bailments, § 324 to 326. 2 Clement v. Leverett, 12 New Hamp. 317. 3 Paley on Agency, by Lloyd, 90 to, 95, 233 to 238 ; 1 Liverm. on Agency, 304, 305, (edit. 1818) ; Coddington v. Bay, 6 Johns. Ch. R. 54 ; S. C. 20 Johns. R. 637. 4 Miller v. Race, 1 Burr. 452 ; Grant v. Vaughan, 3 Burr. B. 1516 ; Peacock V. Rhodes, Doug. R. 633 ; Bolton v. Puller, 1 Bos. & Pull. 539 ; Collins v. Martin, 1 Bos. & Piill. 648. 23* 270 AGENCY. [CH. VIII. be greatly impaired, if not wholly destroyed, by a different doctrine.^ Of course, the doctrine does not apply to cases, 1 Paley on Agency, by Lloyd, 233, 234. Questions under this head most commonly arise, where negotiable instruments have come into the hands of bankers. The leading principles on this subject have been collected by Mr. Lloyd, in a note to Paley on Agency, by Lloyd, p. 91, note, which, as of general practical utility, is here transcribed. "As the subject," (says he,) " here treated of, is one of great importance to all persons engaged in trade, it may be well to state, concisely, what is conceived to be the present state of the law affecting it. And (1.) A banker is to be considered as the agent of his customer. If property of the customer come into his hands, to be dealt with in a particular manner, he is, as to that property, the factor of the customer, having the rights and liabili- ties belonging to that character. (2.) Bills not due, paid in by a customer to his banker, are, in the absence of evidence to the contrary, presumed to be placed with him as an agent to procure the payment of them when due, and in such cases the property remains in the customer. Giles v. Perkins, 9 East, 12. (3.) If tbey are indorsed by the customer, the legal property in them is changed. Lang V. Smyth, 7 Bing. 284. (4.) And, if they are also discounted by the banker for the customer, they become the absolute property of the banker, and of course pass to his assignees, as part of his estate ; Carstairs v. Bates, 3 Camp. 301 ; and the indorsement is prima fade evidence of discounting. Ex parte Twogood, 19 Ves. 229. (5.) The taking of the banker's acceptances, in ex- change for bills paid in and indorsed, is tantamount to a discounting, and, even though the banker's acceptances be dishonored, the bills will, nevertheless, pass to his assignees. Hornblower v. Proud, 2 B. & Aid. 327. (6.) But bills may be indorsed by the customer, (and so the legal property be changed,) and may yet remain in the hands of the banker, clothed with a trust for the customer ; in which case, as has been already said, they do not pass to the assignees of the banker upon his bankruptcy. And the difficulty in most cases is, to determine whether such a trust exists or not. (7.) When the bills are entered short by the banker, that is to say, when they arc entered as bills not yet available, and not cai-ried to the general cash account, there is no doubt that they do not pass to the assignees, but must be given up to the customer. 1 Rose, 154. (8.) And even though the banker have entered them in his own books as cash, and allowed his customer credit in account generally upon them, this will not, of itself, affect the customer, as the banker's books can be no evidence for himself or his assignees. 1 Rose, 239. (9;) Much less, if the customer have expressly directed the banker to get payment of them when due, or forbidden him to negotiate them ; or the course of dealing between them raise an inference of such direction or prohibition. 1 Hose, 243. (10.) If the customer have giveil the banker a limited authority to negotiate them under certain circumstances, as in reduction of the cash balance, when unfavorable, or the like ; this will, of course, not extend to other circumstances, or to more bills, than are sufficient for the purpose, and indeed will, of itself, negative any general authority to dis- pose of them. Ibid. (11.) But if a general authority to negotiate them had CH. VIII.] LIABILITIES TO PRINCIPALS, 271 where, upon the face of the instrument, there is a restricted authority; or, where the holder has knowledge, or notice, of been either expressly given, or is to be inferred from the course of dealing known and assented to by the customer, then, it seems, the customer is to be considered as having abandoned all property in the bills, which, consequently, pass to the assignees. (12.) What cii-cumstances are sufficient to raise the in- ference of such a general authority, is a question of some nicety. Lord Eldon seems to have been of opinion, that if the bills were entered as cash, with the knowledge of the customer, and he drew, or were entitled to draw, upon the banker, as having that credit in cash, he would thereby be precluded from re- .curring to the bills specifically. Ex parte Sargeant, 1 Rose, 153; Ex parte SoUers, Ibid. 155 ; Ex parte Pease, Ibid. 232 ; Ex parte The Wakefield Bank, Ibid. 243 ; Ex parte The Leeds Bank, Ibid. 254 ; and see 18 Ves. 229, 233; 19 Ves. 25, S. C. However, in all these cases his lordship held the assignees to very strict proof of such a course of dealing ; and, in the absence of such proof, decided that there was no such general authority. The opinion of Lord Eldon, as conveyed in this dictum, has been adopted and acted upon by the present Vice-Chancellor, in a recent case of Ex parte Thompson, 1 Mont. & Mc Arthur, 312, which was certainly a strong case; for there, in an account of four years, there were but three entries of actual cash paid, — the rest of the entries being entirely of bills, against which the remitters had been in the habit of drawing very extensively. On the other hand, it is said that it is immaterial whether such a general authority exists, either expressly or from the course of dealing, if, at the time of the bankruptcy, the bills, in fact, remained in specie in the hands of the bankers, and the cash balance were in favor of the customer. And, at all events, it is insisted the. circumstance of the customer taking credit for the bills, and drawing, or considering himself entitled to draw against them, does not make them the bills of the banker ; because, in the actual course of trade, such a privilege is a consequence of paying in bills. The former part of tliis proposition is the opinion of Mr. Deacon, and is not without the support of good reasoning, although it must be considered as doubtful. Law and Practice of Bankruptcy, vol. 1, p. 432. The latter part is borne out by the case of Thompson v. Giles, 2 B. & Cressw. 422 ; and Ex parte Armistead, 2 G. & J. 371. (13.) The right to reclaim extends not only to the specific bills, or securities, but to the substitutes for, or proceeds of them, so long as they continue in the same hands and are specifically ascertainable. VuUiamy v. Noble, 3 Mer. 593. (14.) But if the proceeds cannot be distinguished from the general stock of the banker, the right of the general creditors prevails, and the customer must come in ratably with the rest. And herein consists, principally, the evil of the in- dorsing of the bills by the customer, as it gives the banker the opportunity of negotiating them. (15.) Neither can the customer follow them into the hands of third parties, who have obtained them lond fide, and for value, although negotiated by the banker against good faith. Ex parte Pease, 1 Kose, 232 ; Collins V. Martin, 1 B. & P. 648 ; Ibid. 546. (16.) The banker, like a factor, has a general lien for advances made, and a right to be indemnified for liabilities 27^ AGENCY. [CH. VIII. the validity of the title ; -^ or where he has acquired his title by fraud.^ This subject will hereafter occur in other connections ; and, therefore, may now be passed over without further com- ment.^ contracted on account of his principal, and the claim of the customer will con- sequently be modified by the state of the account. Therefore, if the cash balance is against the customer, or if the banker has advanced money speci- fically upon the bills remitted, or has accepted other bills for the accommodation of the customer, the assignees will have a right to retain the bills, and even to put them in suit, until those sums are repaid, and those liabilities discharged ; that is to say, they will be entitled to a deduction of the amount In the first" case, and to an indemnity in the second. Jourdaine v. Lefevre, 1 Esp. N. P. C. 66 ; Davis v. Bowsher, 5 T. K. 488 ; Scott v. Franklin, 15 East, 428 ; Bosanquet 0. Dudman, 1 Stark. N. P. C. 1 ; Bolland v. Bygrave, R. & M. 271 ; Ex parte Waring, 2 G. & J. 403, and the cases before cited. (17.) It is a consequence of the right to an indemnity, that, although the holder of the banker's accept- ances in favor of the customer cannot directly come in, and claim in his place as against the assignees of the banker ; yet, if-the customer also become bank- rupt, while these acceptances are outstanding, as the holders must be satisfied before the assignees of the customers can be entitled to the bills, the Court of Bankruptcy will order such an arrangement between the two estates, as to render the claim of the bill-holders indirectly available. Ex parte Waring, 2 Rose, 182 ; Ex parte Iriglis, 19 Ves. 345 ; Ex parte Parr, Buck, 191." See also Clark v. Merchants' Bank, 1 Sandford, Superior Ct. (N. Y.) R. 498. 1 Paley on Agency, by Lloyd, 236-238 ; Treutell v. Barandon, 8 Taunt. 100; Collins V. Martin, 1 Bos. & Pull. 648 ; Sigourney v. Lloyd, 8 B. & Cresw. 622; Post, § 231. 2 Paley on Agency, by Lloyd, 238, 239 ; Solomons v. Bank of England, 13 East, R. 135, n.; Goodman v. Harvey, 4 Adolph. & Ellis,' 870. What will amount to notice, or fraud, is in some cases a matter of groat nicety. At one time, it was thought that receiving a negotiable instrument, under circumstances which might excite some suspicion, or amount to gross negligence in the holder, was sufficient to invalidate his title. But it is now settled, that the conduct of the holder must amount to mala fides, and even gross neghgence will not avoid his title. Goodman v. Harvey, 4 Adolph. & Ellis, 870 ; Arbouin v. Anderson, 1 Adolph. &; Ell. New R. 498, 504. In this last case Lord Denman said : "Act- ing upon the case of Goodman v. Harvey, which gives the law now prevailing on this subject, we must bold that the owner of a bill is entitled to recover upon it, if he has come by it honestly ; that that fact is implied 2)rim.d facie by pos- session ; and that, to meet the inference so raised, fraud, felony, or some such matter, mi;st be proved. Here is a possession not so accounted for ; and 1 think the rephcation entitles the plaintifi" to recover." Story on Bills of Exchange, §193, 194,415,416. 3 Post, § 231, 404-406, 419-421. CH. VIII.] LIABILITIES TO PKINCIPALS. S7^ § 2S9. And not only may the principal, in many cases, follow his own property into the hands of third persons, where it has been transferred or disposed of by an agent, contrary to his instructions, or duty, but the principle is still more exten- sive in its reach ; for, if it has been converted into, or invested in, other property, and can be distinctly traced, the principal may follow it, wherever he can find it, and as far as it can be thus traced, subject, however, to the rights of a bond fide pur- chaser for a valuable consideration without notice, in all cases where the latter is entitled to protection.-^ It will make no difference, in law, as, indeed, it does not in reason, what change of form, different from the original, the property may have undergone, whether it be changed into promissory notes or other securities, or into merchandise, or into stock, or into money .^ For the product of the substitute for the original thing still follows the nature of the thing itself, as long as it can be ascertained to be such ; and the right only ceases, when the means of ascertainment fail ; which is the case, when the subject, being goods, is turned into money, which is mixed and confounded in a general mass of the same description; or when the subject, being money, has been converted into specific property of another kind, having before that time lost, as it were, its ear-mark and identity, and become incapable of being distinguished from the mass of the common moneys of the agent.^ But money in a bag, or otherwise kept apart from other money, or guineas, or other coin, marked or otherwise specially designated, for the purpose of being distinguished, is treated as so far ear-marked, as to fall within the rule already lAnte, § 227, 228; Post, § 231; Taylor v. Plumer, 3 M. & Selw. 562; 1 Liverm. on Agency, 278-280 ; Ante, § 225, 226 ; Post, § 436 to 439. 2 Ibid. ; Scott v. Surman, Willes, R. 400; Whitcomb u. Jacob, 1 Salk. 160; Ryall v. RoUe, 1 Atk. 172; Lane v. Dighton, Ambler, R. 409; Thompson v. Perkins, 3 Mason, R. 232 ; Hourquebie v. Gerard, 2 Wash. Cir. R. 212 ; Chedworth v. Edwards, 8 Ves. 49 ; Lench v. Lench, 10 Ves. 511 ; Jack- son V. Clarke, 1 Younge & Jerv. 216. 3 Ibid. ; Conard ». Atlantic Insur. Company, 1 Peters, Sup. Ct. R. 386. 274 AGENCY. [CH. VIII. stated, while it remains in the hands of the agent, or of his general personal representatives.^ § 230. The same doctrine is still more fully acted upon in Courts of Equity ; for, if an agent or trustee has wrongfully invested the money or trust property of the principal, or cestui que trust, in land, and it can be distinctly traced, equity will follow it into the land, and hold the legal owner to be a trustee thereof for the benefit of the party, whose money or trust property has been so invested.^ § 231. The foregoing cases turn upon the wrongful conduct of the agent in the discharge of his appropriate duties. But the remedy of the principal, to recover back his own property, is not confined to cases, where there has been some tortious conversion of it. On the contrary, if there has been no mis- conduct in the agent, the principal is entitled, in all cases, where he can trace his property, whether it be in the hands of the agent, or of his representatives or assignees, or of third per- sons, to reclaim it, unless it has been transferred lond fide to a purchaser without notice; subject, however, to the lien and other rights of the agent.^ And, in such cases, it is wholly immaterial, whether the property be in its original state, or has been converted into money, or securities, or negotiable instru- ments, or other property, so only that it is distinguishable and separable from the other property and assets of the agent, and has an ear-mark or other appropriate identity.* Upon this 1 Taylor v. Plumer, 3 M. & Selw. 562, 576 ; Whitcomb v. Jacob, 1 Salk. 161 ; Scott V. Surman, Willes, E. 400 ; Paley on Agency, by Lloyd, 90 to 95 ; Godfrey v. Furzo, 3 P. Will. 185 ; 1 Liverm. on Agency, 278, 279, 287. Tlie judgment of Lord EUenborough, in Taylor u. Plumer, 3 M. & Selw. 562, on this ■whole subject, is very masterly, and contains a thorough review of all the author- ities on the subject-matter of the text. See also Jackson v. Clarke, 1 Y. & Jerv. 216. 2 Lane v. Dighton, Ambler, E. 409 ; Lench v. Lench, 10 Ves. 517 ; Boyd v. McLean, 1 John. Ch. E. 582. 3 1 Liverm. on Agency, 275-277, (edit. 1818) ; Ante, § 227, 229. * Taylor v. Plumer, 3 M. & Selw. 562 ; Veil v. Mitchell's Adm'rs, 4 Wash. Cir. E. 105 ; Thompson v. Perkins, 3 Mason, E. 232; Scott v. Surman, Willes, CH. VIII.] LIABILITIES TO PRINCIPALS. Q'JS same ground, if an agent purchases property for his principal, and takes a bill of sale in his own name, paying the money of his -principal therefor, the latter may compel the agent to transfer the property to him.^ This is a very important right, especially in cases of the bankruptcy, or insolvency, or death of the agent. § 231 a. Cases may also arise, where agents will be respon- sible to their principals for money of the latter, received by sub-agents, although the money has never reached the hands of the agents. Thus, for example, if an agent is employed to collect and receive payment of bills of exchange, due to the principal, and the agent transmits them to his own private agent to recover the money on the same bills, and orders such sub-agent to place the amount, when received, to his (the agent's) credit, payment to such sub-agent is payment to the original agent ; and the principal will be entitled to recover the amount from the agent, although the same may be lost by the failure and insolvency of the siib-agent ; for in such case, the loss properly falls on the agent, and not on the principal.^ A fortiori, this doctrine will apply, where the amount in the hands of the sub-agent is drawn for by the agent, by a bill in favor of a third person, and the bill has been accepted by the sub-agent before his failure and insolvency.^ § £3®' The remarks, which have been already made, as to the responsibility of agents to their principals, apply not only to cases of a sole agency, but also to those of a joint agency. Where joint agents are employed, who have a common interest, they are liable for the acts, misconduct, and omissions of each other, in violation of their duty. Thus, for example, joint fac- tors are hable for each other's doings and omissions ; and it K. 400 ; Paley on Agency, by Lloyd, 90 to 95 ; Jackson v. Clarke, 1 Y. & Jerv. 216 ; Ante, § 228, 229. 1 Hall V. Sprigg, 7 Mill. Louis. R. 245. 2 Taber v. Perrott, 2 Gallis. R. 565 ; Ante, § 201 ; Post, § 429. 3 Ibid. 276 , AGENCY. [CH, VIII. will be no discharge of one, that the business has been, in fact, wholly transacted by the other, with the knowledge of the principal ; for in such cases, the principal still trusts to the joint responsibihty.^ And, if the joint agents are to receive a joint commission, or to share in the profits of their business, it will make no difference in their responsibility to the principal, that it is privately agreed between themselves, that neither shall be liable for the acts or losses of the other, but each is to be liable only for his own.® § 2S8. The Roman law adopted a similar doctrine, as founded in a most persuasive equity. Thus, in the Digest, the language of Scsevola is approved ; Duohus quis mandavit negotiorum administrationem ; qucesitum est, an unusquisque mandati judicio in solidum teneatur ? Respondi; unumqum- que pro solido conveniri dehere ; dummodo et utroque non amplius deUto exigatur? § £34. The liabilities of agents, which we have been thus far considering, are those which arise by the general principles of law, independent of any special contracts made by the par- ticular parties. It is, of course, competent for the parties to vary, or restrict, or enlarge, these general liabilities, by contract, according to their pleasure, with the exception, that no contract can be valid, which stipulates to exempt agents from responsi- bility for their own fraudulent acts. Such a stipulation would be against good morals and public policy, and would be treated therefore as utterly void.* In a treatise, like the present, it is not necessary to consider, what would be the true interpretation or result of particular stipulations of this sort. Contracts for 1 Paley on Agency, by Lloyd, 52, 53 ; 1 Liverm. on Agency, oh. 4, § 1, p. 79 to 84, (edit. 1818) ; Wells -o. Ross, 7 Taunt. 403. 2 Paley on Agency, by Lloyd, 52, 53 ; 1 Liverm. on Agency, ch. 4, § 1, p. 80 to 87, (edit. 1818) ; Godfrey v. Saunders, 3 Wils. R. 94 ; Waugh v. Carver, 2 I-I. Bl. 237. 3 Dig. Lib. 17, tit. 1, 1. 60, § 2 ; 1 Domat, B. 1, tit. 15, § 3, art. 13. * Story on Bailm. § 32 ; Dig. Lib. 50, tit. 17, 1. 23 ; Jones on Bailm. 11, 48 ; Heinece. Elem. Jurist Inst. Ps. 3, Lib. 3, tit. 14, § 785. CH. VIII.] LIABILITIES TO PRINCIPALS. 277 •a del credere commission, which amount to a guaranty of debts contracted on sales by factors, and others, are, however, of so common and general a character, that they may be properly taken notice of, as an appropriate illastration of the enlarged responsibility of agents, resulting from contract. The nature and effect of this species of contract has been already con- sidered.^ 1 Ante, § 33, and 112, 215. AGENCY. 24 S78 AGENCY. [CH. IX. CHAPTER IX. DEFENCES OF AGENTS AGAINST PRINCIPALS. § 235. In this connection, the consideration naturally arises of those matters, which may properly be urged by agents, by way of defence or excuse, to repel the actions and claims brought against them by their principals, for violations or omissions of duty, or oth^r delinquencies, touching their agencies. Some of these have been already incidentally men- tioned ; but a short recapitulation, in this place, may not be without use. In the first place, the agent may insist, as a mat- ter of defence, that the subject-matter of the agency is an illegal, or an immoral transaction, or is founded in fraud, or against public policy ; in all which cases, the principal will not be allowed to maintain any suit for redress of any sort against the agent, touching that transaction.^ And this doctrine not only applies to suits, founded upon matters of account, or receipts of money, or non-fulfilment of contracts by the agent in the course of such illegal transactions, or flowing therefrom; but it applies equally to the recovery back of the property, which has been intrusted to him, when it has been actually em- ployed in such illegal, fraudulent, or immoral purposes. Thus, if goods are intrusted to an agent, to be smuggled into a country, and sold there against its laws, the principal will be equally disabled to maintain a suit against the agent in the courts of that country for the goods themselves, as he will be 1 Ante, § 195, 222 ; Paley on Agency, by Lloyd, 8, 20, 74, 75 ; Bexwell v. Christie, Cowp. K. 395 ; Webster v. De Tastet, 7 T. E. 157 ; Simpson u. Nich- olas, 3 Mees. & Welsh. 240 ; Story on Conflict of Laws, § 243 to 262 ; 1 Story on Equity Jurisp. § 296 to 308 ; 1 Liverm. on Agency, ch. 1, § 2, p. 14 to 22 j Thomson v. Thomson, 7 Ves. 470 ; Canaan v. Bryce, 3 B. & Aid. 179 ; Langton V. Hughes, 1 M. & Selw. 593 ; Le Guen v. Gouverneur, 1 John. Cases, 436. CH. ?X.] DEFENCES AGAINST PRINCIPALS. 279 to maintain a suit for the proceeds of the goods, if sold.^ The rule, in all such cases, is, MeKor est conditio possidentis? 1 Ibid. ; Post, § 344 to 347. ^ Edgar V. Fowler, 3 East, K. 222. The doctrine in the text is (I conceive) the true doctrine, notwithstanding some apparent discrepancies in the authorities. Perhaps, where moneys, or goods, are deposited with an agent, to effect an illegal object, and before any thing is done, the principal repents, and revokes the orders, he may recover back the money ; for he may have, until there is some part execution of the authority, a locus poenitentise. See Ex parte Bulmer, 13 Ves. 313 ; Taylor v. Lendey, 9 East, K. 49 ; Hastelow v. Jackson, 8 B. & Cressw. 222. But, if the moneys, or goods, have been actually put into a course of execution of the illegal purpose, it will be otherwise. Thus, if goods have been delivered to an agent, to be smuggled into the country, and they have been actually shipped and smuggled into the country, the principal cannot recover them from the agent who withholds them from him. So, if moneys are invested in goods for a like purpose, the money, or goods, cannot afterwards be recovered by the principal from the agent. In such cases the right to recover is neces- earily founded upon the very contract for illegal purposes. But, where the recovery from an agent is not sought through, or upon, the illegal contract, but upon a, new collateral contract, not illegal, there it may be recovered. Thus, if an agent has received money from third persons for his principal by his author- ity, which money accrued from an illegal transaction between the principal and such third persons, who had no connection with the agent, the principal may recover it from his agent, for, as between them, the receipt of the money for the principal is upon a legal contract, although the money itself accrued under a former illegal transaction. It is upon some ground of this sort, that we are to understand the cases of Faikney v. Reynous, 4 Burr. K. 2069, and Petrie v. Hanney, 3 T. Rep. 418, 419 ; Thomson v. Thomson, 7 Ves. 470 ; Farmer v. Russell, 1 Bos. & Pull. 296 ; Tenant v. Elliot, 1 Bos. & Pull. 3. See Ex parte Bulmer, 13 Ves. 313 ; Steers v. Lashley, 6 T. R. 61 ; Booth v. Hodgson, 6 T. R. 405 ; Sullivan v. Greaves, 6 T. R. 406 n. ; Paley on Agency, by Lloyd, p. 62, 63 ; 1 Liverm. on Agency, ch. 8, § 7, p. 467 to 470, (edit. 1818). Indeed, some of these cases have been greatly doubted, and especially Faikney v. Reynous, 4 Burr. R. 2069, and Petrie v. Hanney, 3 T. R. 418. See Aubert v. Maze, 2 Bos. & Pull. 371 ; Canaan v. Bryce, 3 Barn. & Aid. 179 ; Bensley v. Bignold, 5 B. & Aid. 335 ; Ex parte Daniels, 14 Ves. 191. In Canaan v. Bryce, 3 B. 8e Aid. 179, it was held, that money, lent to a party to be applied by the borrower to settle illegal transactions, could not be recovered from the borrower. So, in McKinnell v. Robinson, 3 Mees. & Wels. 434, it was held that money, lent for gaming to the borrower, could not be recovered from the latter. Indeed, it seems difficult to perceive, how either money, or goods, placed in the hands of an agent for illegal purposes, can be recovered back by the principal, as the delivery of the money, or goods, is in part execution of such purposes ; and the possession of the agent is a direct result of the agreement to execute such pur- poses. But see Paley on Agency, by Lloyd, 64-66. 280 AGENCY. [CH. IX, § 236. In the next place, as we have seen, it is a good de- fence, or rather a good excuse, that the misconduct of the agent has been followed by no loss or damage whatsoever to the principal ; for then the rule applies, that although it is a wrong, yet it is without any damage ; and, to maintain an action, both must concur ; for Damnum absque injuria, and Injuria absque damno, are, in general, equally objections to any recovery.^ § 237' In the next place, the agent may defend himself by showing, that, although he has violated his instructions or or- ders, or he has not otherwise performed his undertaking ; yet, he has acted under an overwhelming necessity, or, has been pre- vented from acting by a like calamity ; or, that what he has done has been from an unexpected or unforeseen emergency, to which the instructions or orders did not, or could not apply ; or, if they did apply, that he was compelled to act in order to prevent a greater loss, or absolute ruin, to his principal.^ § 238. In the next place, it is a good matter of defence to an action, brought by the principal against his agent for negli- gence in the performance of his duty, that, if the act had been properly done, the principal could have derived no benefit from it, but it would have been merely void, upon grounds of public policy,^ Upon this ground it was formerly held, that, if an agent sells goods to be delivered at a future day, and, at the time, the principal neither has the goods, nor has entered into any prior contract to buy them, nor has any reasonable expectar tion of receiving them on consignment, but he means to go into the market and buy the goods, which the agent has con- tracted to deliver, no action will lie against the agent for any negligence in such sale ; because the principal himself cannot 1 Ante, § 222 ; Post, § 238. 2 Ante, § 85, 118, 193 to 197, 208; 3 Chitty on Comm. and Manuf. ch. 3, p. 218; The Gratitudine, 1 Kob. R. 340, 257 ; 1 Li verm, on Agency, ch. 8, § 2, p. 368, 369, (edit. 1818) ; Dusar u. Perit, 4 Binn. R. 361 ; Forrestier v. Boardman, 1 Stovy, R. 43. 3 Ante, § 222, 235. CH. ,IX.] DEFENCES AGAINST PRINCIPALS, 281 maintain an action upon such a contract of sale made by him- self; since such a contract amounts, on the part of the vendor, to a wager on the price of the commodity, and is attended with such mischievous consequences, as to be prohibited by public policy.^ This case has been since overruled ; ^ but, although it can no longer be relied on, as a fit illustration of the doctrine above stated ; yet there can be no doubt, that the principle, on which it is founded, is entirely correct, that the principal cannot avail himself of a right of action against his agent for negli- gence or misconduct in a contract between them, which is against public policy. Supposing, however, the case really to be, in the understanding and contemplation of both parties, a mere wager on the future state of the markets, although in the form of a contract of sale, there can be little doubt, that it ought to be deemed a gaming speculation, which no Court should enforce 1 Bryan v. Lewis, 1 Kyan & Mood. E. 386. 2 Hibblewhite v. MeMorine, 6 Mees. & Wels. 202. In this case Mr. Baron Parke said : " I have always entertained considerable doubt and suspicion as to the correctness of Lord Tenterden's doctrine in Bryan v. Lewis ; it excited a good deal of surprise in my mind at the time ; and, when examined, I think it is untenable. I cannot see what principle of law is at all affected by a man's being allowed to contract for the sale of goods, of which he has not possession at the time of the bargain, and has no reasonable expectation of receiving. Such a contract, does not amount to a wager, inasmuch as both the contracting parties are not cognizant of the fact, that the goods are not in the vendor's possession ; and, even if it were a wager, it is not illegal, because it has no necessary ten- dency to injure third parties. The dictum of Lord Tenderden certainly was not a hasty observation thrown out by him, because it appears from the case of Lorymer v. Smith, that he had entertained and expressed similar notions four years before. He did not, indeed, in that case, say that such a contract was void, but only, that it was of a kind not to be encouraged ; and the strong opinion he afterwards expressed appears to have gradually formed in his mind during the interval, and was, no doubt, confirmed by the effects of the unfortunate mer- cantile speculations throughout the country about that time. There is no indi- cation in any of the books of such a doctrine having ever been promulgated from the Bench, until the case of Lorymer v. Smith, in the year 1822 ; and there is no ease, which has since been decided on that authority. Not only, then, was the doubt expressed by Bosanquet, J., in Wells v. Porter, well founded, but the doctrine is clearly contrary to law." Mr. Baron Alderson and Mr. Baron Maule fully supported the same doctrine. Ante, § 49, note. 24* 28£ AGENCY. [CH. IX, or encourage, and which, at least in States where mere wages are held to be void at the common law, as against public policy, would be held incapable of sustaining any action for any breach of the contract.' r § 289. But the most important point of defence, usually occurring in practice to suits for breaches of duty by agents, is 1 By the civil law, things not in existence, or possession, or ownership, might be sold. Thus, for example, fruits, which shall be gathered, and are not yet in existence, animals not yet born, the next grapes of a vineyard, the wine of the next vintage may be sold. Nee emptio nee venditio sine re, quEe veneat, potest intelligi. Et tamen fruotus, et partus futuri recte ementur ; ut, cum editus esset partus, jam tunc, cum contractum esset negotium, venditio facta intelligitur. Dig. Lib. 18, tit. 1, 1. 8 ; Pothier, Pand. Lib. 18, tit. 1, n. 4-6. Here, the distinc- tion is clearly taken between an executed sale, and a contract of sale, or executory sale. Each is good. Sed, si id egerit venditor, ne nascatur, aut fiant, ex empto agi posse. Dig. Lib. 18, tit. 1, 1. 8; Pothier, Pand. Lib. 18, tit. 1, n. 6; Po- thier, Contrat de Vente, n. 5-7. So, a mere hope, or expectation in a thing, could be sold ; as for example, the next draught of a fish-net, or capture by a bird-trap, or bird-shot. Aliquando tamen, et sine re, venditio intelligitur ; veluti, cum quasi alea emitur ; quod fit, cum captus piscium, vel avium, vel missilium emitur ; emptio enim contrahitur, etiamsi nihil incident, quia spei emptio est. Dig. Lib. 18, tit. 1, 1. 8, § 1. See also Pothier, Pand. Lib. 18, tit. 1, n. 8 ; 1 Domat, B. 1, tit. 2, § 4, art. 3, 4 ; Hein. Elem. Jur. Instit. Lib. 3, tit. 24, § 905 ; Pothier, Contrat de Vente, n. 5-7. See Mr. Cushing's valuable translation of Pothier on Sale, n. 6-7, p. 4, 5. So, by the civil law, a sale, and acontract of sale, could be made by a person, who was not owner even without the consent of the owner. Kem alienam distrahere quem posse, nulla dubitatio est; nam emptio est et ven- ditio. Sed res emptori auferri potest. Dig. Lib. 18, tit. 1, 1. 28 ; Pothier, Pand. Lib. 18, tit. 1, n. 18 ; 1 Domat, B. 1, tit. 2, § 4, art. 13 ; Pothier, Contrat de Vente, n. 7 ; Pothier on Oblig. n. 133, 136. Contracts for the sale of things, •which the seller has not, at the time, are very common in stock-jobbifig transac- tions ; and, if the doctrine in the case of Bryant v. Lewis (1 Kyan & Mood. K. 386, ante, § 238) be correct, then, it W(5uld seem, that upon the principles of the common law, no action could be maintained by the seller for the price, upon a sale of stock, deliverable at a future day, which the seller did not then own, or had not a title to ; but which he meant to buy in the market at or before the day of delivery. And, if the buyer also knew the facts, he could not maintain an action for the non-delivery under the same contract. It would seem, from the case of Cud v. Kutter, 1 P. Will. 570; S. C. 5 Vin. Abridg. p. 538, pi. 21, that such stock contracts were not properly the subjects of an immediate sale, since no sale can be without a present thing, on which it can operate. But they might properly constitute the subject of a contract of sale, to operate and take efiect in futuro. See 2 Black. Comm. 446. CH. IX.] DEFENCES AGAINST PRINCIPALS. 283 that, which involves the question of a ratification hy the princi- pal, of the acts, or doings, or omissions of his agent. Where the principal, upon a full knowledge of all the circunistances of the case,^ deliberately ratifies the acts, doings or omissions of his agent, he will be bound thereby, as fully to all intents and purposes, as if he had originally given him direct authority in the premises, to the extent, which such acts, doings, or omis-/ sions reach. The maxim of the common law is, and it has been fully adopted into maritime and commercial jurisprudence ; Omnis ratihahitio retrotraJdtur, et mandato priori cequipara- tur? This most useful and convenient rule was as fully recog- nized in the Roman law ; Bi quis ratum habuerit, quod gestum est, ohstringitur mandati actione? Rati enim habitio mandato comparatur.* And the same rule was applied, (as Cujacius in- forms us,) even to the case of an unauthorized person, {negotio- rum gestor,) who interfered in the concerns of another party ; BatihaUto tamenfacit,ut videaturnegotium meum gestum, et erit mutua.actio negotiorum gestorum. Verum est, esse negotiorum gestorum actionem, si ratum hdbuero ; sed tentari potest, esse etiam mandati actionem. Nam ratihalitio duplicem vim habet, ut alienum negotium meum faciat, et haheat etiam vim mandati.^ 1 This is essential. Hardeman v. Ford, 12 Georgia, 205. s Post, § 445 ; Co. Litt. 207 ; Wolf v. Horneastle, 1 Bos. & Pull. 316 ; 1 Liverm. on Agency, ch. 2, §4, p. 44, 47, (edit. 1818) ; 3 Chitty on Comm. and Manuf. 197, 198 ; Armstrong v. Gilchrist, 2 Johns. Gas. 424j 4 Coke, Ins. 317; Paley on Agency, by Lloyd, 324 ; Smith on Merc. Law, 47, 60 ; Odiorne v. Maxcy, 13 Mass. E. 1 78 ; Conn v. Penn, 1 Peters, Cir. K. 496 ; Pratt v. Putnam, 13 Mass. R. 361; Fisher w. Willard, 13 Mass. E. 379; Boynton v. Turner, 13 Mass. R. 391 ; Copeland v. Merchants Insur. Co. 6 Pick. 198; Prince v. Clark, 1 B. & Cres. E. 186 ; Horsley v. Bell, 1 Brown, Ch. R. 101, note; S. C. Ambler, E. 770 ; Den v. Wright, 1 Peters, Cir. E. 72 ; Breedlove v. Wamack, 14 Martin, R. 181 ; Buchannan v. Upshaw, 1 Howard, Sup. Ct. E. 56 ; S. C. 17 Peters, E. 70. 3 Dig. Lib. 50, tit. 17, 1. 60 ; 1 Liverm. on Agency, ch. 2, § 4, p. 44 ; Pothier, Pand.Lib. 17, tit. 1, n. 19. ^Dig.Lib. 46,tit. 3,1. 12,§4. 5 Cujac. ad. L. 60, de Reg. Juris. (Lib. 50, tit. 17, 1. 60,) Tome 8, col. 784, ,(Neap. edit. 1758.) 284 AGENCY. [CH. IX. Pothier has commented on this doctrine in the following terms ; Et negotiorum gestorum actionihus locus est, quia sinemandato gesfum est ; et mandati etiam agi potest propter ratihabitionem, quce cequipollet mandato. Electio est utriusque mtionis} Po- thier has added : Quinetiam et ratihabitio mandato cequipollet? The modern nations of continental Europe, following the civil law, have adopted the same enlarged policy.^ § 240. At the common law, however, there is a distinction between the ratification of acts, which are void, and the ratifi- cation of acts, which are voidable. In the former case, the ratification is inoperative for any purpose whatsoever ; in the latter, full validity is given to the acts.* The groundwork of this distinction seems to be, that a ratification of a void act only confirms it in its invalidity; which is a subtlety in rea- soning, more dependent upon artificial and technical rules, than expressive of the real intent of the parties.^ § 241. The principle is applied with far more justice and propriety to cases of contracts, and acts, which are illegal, or immoral, or against public policy ; for, in such cases, the orig- inal contracts, or acts, being void, ought not to be allowed to acquire any validity from their being subsequently confirmed ; since the same noxious qualities adhere to the ratification, as 1 Pothier, Pand. Lib.' 17, tit. 1, n. 19, note, (2) ; Pothier on Oblig. n. 75; 1 Liverm. on Agency, ch. 2, § 4, p. 44, 45, 50-52, and note, (edit. 1818.) sPothier, Pand. Lib. 17, tit. 1, n. 19; Id. Lib. 14, tit. 3, n. 18. 3 Pothier on Oblig. n. 76. See the effect of a ratification of the acts of a sub- agent, post, § 389. 4 Co. Litt. 295 b, 306 b ; and Ibid. Harg. and Butler's note (1) ; Gilb. on Tenures, 75 ; Dyer, Rep. 263, pi. 37 ; 1 Story on Equity Jurisp. § 307 ; Com. Dig. Confirmation, D. 1. 5 AA^lkinson v. Leland, 2 Peters, E. 661, 662. In deeds of confirmation, the distinction turns upon the legal effect of the words, " ratify, approve, and con- firm ;" for if the words "give and grant" be also in the deed, it will take effect, not as a confirmation, but as a grant. See Co. Litt. 295 b, 307 a. Lord Coke says : " A confirmation doth not strengthen a void estate ; for a confirmation may make a voidable or defeasible estate good ; but it cannot work upon an estate that is void in law." Co. Litt. 295 b. ; Com. Dig. Confirmation, D. 1. CH. IX.] DEFENCES AGAINST PRINCIPALS. 2S5 existed in the original transaction; and, therefore, the maxim may well be applied ; Quod ah initio nan valet, tractu temporis nan convalescit} § 242. But, whatever may be the force of this distinction in the former class of cases, (that is to say, in cases not illegal, immoral, or against pubhc policy,) when understood in its true meaning, and with its true limitations, it is not applicable to cases of agency, where a party assumes to act, not for himself, but for another, without any authority what- soever, or by an excess of the authority delegated to him. In all such cases, if the principal subsequently ratifies the act? he is bound by it, whether it be for his detriment, or for his advantage; and whether it be founded upon a tort, or upon a contract.^ And a ratification, once deliberately made, with a full knowledge of all the material circumstances, can- not be recalled.^ Of course, this doctrine is to be understood with the qualification, that if the act of the agent be in the name of his principal, by an instrument [necessarily]* under seal^, without authority, the ratification must be under seal also ;: since (as we have seen) the principal is not bound by any act 1 1 Story on Equity Jurisp. § 307. 2 7 H. 4, p. 35, .4 Inst; 317; Hagedorn v. Oliverson, 2 M. & Selw. 485.; Lucena v. Craufurd, 5 Bos. & Pull. 269 ; Routh v. Thompson, 13 East, 274 ; Paley on Agency, fcy Lloyd, 112-115, 171, 172, 324, and note ; Wilson v. PouK ter, 2 Str. B. 859 ; Taylor v. Plumer, 3 M. & Selw. 562, 580; 1 Liverm. on Agency, 44 to 52 ; Id. 391 to 396, (edit. 1818) ; Rogers v. Kneeland, 10 Wend. R. 218 ; Lench v. Lench, 10 Ves. 517 ; Kelly v. Munson, 7 Mass. R. 319. This point arose as long ago as in the Year Book, 7 Henry 4, p. 35. There a party justified, as bailiff, taking a heriot, for services due to the lord ; and the issue was on the point, that he was not bailiff; and it was held, that, if he took the heriot, claiming property therein for himself, the subsequent agreement of the lord would not amount to a ratification, making him bailiff at the time. But; if he took at the time, as bailiff of the lord, and not for himself, without command of the lord ; yet the subsequent ratification made good his act, and made him bailiff at the time. The same point was held by Anderson, Chief Justice, in. Godbolt, 109, and was cited by Taddy, as counsel, and not denied in Hagedorn V. Oliverson, 2 Maul. & Selw. 487, 488. See also Moore v. Hush, Hob. R: 63 ; Post,.§ 246, note. 3 Post, § 250. 4 If the act of the agent was unnecessarily under seal, it might be ratified by 286 AGENCY, [CH. IX. of his agent under seal, unless the authority of the principal has also been originally given to the agent under his seal.^ A ratification cannot, in this respect, stand upon a higher ground, than an original authority,^ [And, generally, if the adoption of any particular form or mode is necessary to confer the au- thority in the first instance, there can be no valid ratification except in the same manner.^] 8 242 AGENCY. [CH, X. held unmaintainable, because the agreement was considered as made by and with the agent in his own name, as attorney, and not in the name of his principal, and then the whole agreement deemed void, since the agent had no estate in the farm to con- vey.^ If, however, the agreement had been by the agent, not that he would convey, but that his principal should convey, then it seems that the agreement would have been valid.^ § 274 b. Another class of cases may readily be suggested, where, from the defective mode of executing the instrument, the principal is not bound, and yet, neither is the agent bound; and that is, where, although the agent is capable of acting for the principal, he or she is incapacitated from binding himself or herself by a personal contract. Thus, for example, if a husband should authorize his wife to sign notes on his account, it is indispensable, in order to bind him, that the notes should, either in the body thereof, or in the signature, purport to be his notes, or on his account ; for notes, given in her own name, would not, in such a case, bind either the husband, or the wife.' [Although the contrary has been recently held in England.*] Similar considerations will apply to an agent, who is an infant. In short, in all cases, in order to bind the principal upon the instrument, there must be apt words to charge him ; and in like manner, if the principal is not bound by the instrument, 1 Bogart V. De Bussy, 6 Johns. E. 94. 2 Spencer v. Field, 10 Wend. E. 87. Some doubt may well be entertained, whether the case of Bogart v. De Bussy, 6 Johns. E. 94, was a correct applicar tion of the principle of the case of Frontin v. Small, 2 Ld. Kaym. 1418. The latter was an executed lease in the name of the agent, and passed no estate. The former was an executory agreement, under seal, in which the covenant was, on the part of the agent, " to execute a good and sufficient conveyance in the law " of the farm of his principal, which covenant could properly be performed by a conveyance in the name of his pHncipal, under due authority. The plead- ings, upon ^hich the case was decided, did not raise any question as to the form of the conveyance, which was to be made ; but turned upon a collateral mort- gage on the estate. 3 Minard v. Mead, 7 Wend. 68 ; Ante, § 264, note. * Lindus V. Bradwell, 5 Com. B. Rep. 583. CH. X.] LIABILITIES TO THIRD PERSONS. 343 the agent will n6t be bound thereby, unless at contains apt words also to charge him ; although, if "he be of competent capacity to enter into a contract, he may be responsible in an action upon the case for his negligent performance of his duty, or his improper assumption of authority.^ § 275. In a great variety of cases, even where the contract is in writing, it becomes a nice question, whether the agent is, or is not, personally bound.® Some of the cases on this sub- ject have been already cited ; ^ and it is difficult, perhaps impossible, to reconcile all the authorities, bearing on the point. Ordinarily, as we have seen, if the contract is made in such a manner as directly to bind the principal, the agent will not be bound personally.* But the embarrassing question still remains, whether the form of the instrument does, or does not, import a personal liability on the part of the agent. Thus, if an agent should make a note, in which he should say, " I promise to pay," &c., and sign it "A. B, for C. D," (the principal,) the question would arise, whether he was personally bound, or not, upon the instrument in that form.^ We have already seen, that it has been held, that in such a case, he is not personally bound, if he has authority to sign the note from C. D.® The construction might, perhaps, be more doubtful, if the note were, " I, A. B., as agent of C. D., promise," &c., and it were signed, "A. B," And, if in the latter case the note were under seal, there would be strong ground to say, that it. was the deed of the agent, and not of the principal.^ 1 Stetson V. Patten, 2 Greenl; K. 358 ; Ante, § 264, note. 2 Smith on Merc. Law, 79, 80, (2d edit.) ; Id. p. 140 to 143, (3d edit. 1843) ; Bowen V. Morris, 2 Taunt. R. 374 ; Denton v. Kodie, 3 Camp. R. 493 ; Norton V. Herron, 1 Carr. & Payne, 648 ; S. C. 1 Ry. &Mood. 229 ; Kendray v. Hodg- son, 5 Esp. R. 228. 3 Ante, § 154, 155, 158, 269, 270. * Ante, § 263 and 269 ; Mann v. Chandler, 9 Mass. K. 335. 5 See Rice v. Gove, 22 Pick. 158 ; Woodes v. Dennet, 9 New Hamp. R. 55 ; Ante, § 154, 155, 161; Post, § 269, 270, 275-279. 6 Ante, § 154, 155; Ballou v. Talbot, 16 Mass. R. 461. ' 7 See Dubois v. Delaware & Hudson Canal Co. 4 Wend. 285 ; Ante, § 147 to 155 ; Appleton v. Binks. 5 East. R. 148. 84<4) AGENCY. [CH. X. § '2^5 a. Similar difficulties have occurred in the application of the same doctrine in the Scottish Courts, although they are professedly governed by the same general principle, which reg- ulates the doctrine maintained in England and America. Thus, in one case, where the agent of a company, having drawn bills in his own name, discounted them, when accepted, with a bank, (the acceptor, who happened to be debtor of the company, having also been informed in a letter to him from the drawer, that the bills in question would be placed to his credit with them,) the Court of Sessions found the company liable in an action on the bills, on the ground, that the drawer had drawn and discounted the bills as their agent and for their behoof. But the judgment has been reversed on appeal, and the reversal appears to be conformable with the doctrine now stated. The circumstance of the funds, raised by discounting the bills, being applied to the company's use, was a matter between them and their agents, with which the discounters had no concern. In a later case, certain trustees were found liable for the amount of a promissory note, which the manager of a coal-work, forming part of the trust, had granted in his own name. But this was found, not in an action on the bill, but in an action brought on the authority alleged to be given by the trustees, both directly and rebus ei factis, to sign bills on their account in the business of the trust.^ § 276. Other illustrations of the difficulties, growing out of the interpretations of particular instruments, may be derived from adjudged cases. Thus, where a contract under seal was made between A. B., as agent of C. D. of the one part, and E. F. of the other part, and it was signed and sealed A. B. and E. F. ; it was held to be the deed of A. B., the agent ; and that he was personally responsible on the covenant.^ So, 1 Thomson on Bills, p. 218, 219, (edit. 1887). 2 Stone u. Wood, 7 Cowen, R. 453; Taft v. Brewster, 9 John. K. 334; Hall «. Bainbridge, l-Mann. & Grang. K. 42; Ante, § 158, 273; Post, § 278, and note. CH. X.] LIABILITIES TO THIRD PERSONS. 84l5 where a sealed agreement purported to be by and between the plaintiflPs, of the one part, and A. B., C. D., and E. F., direc- tors of the G. Cotton Manufactory, of the* other part, and it was signed, "for the directors, A. B. ;" it was held to be personally obUgatory upon A. B., although he by plea averred, that it was made by himself and the other directors, as agents only of the company.^ So, where A, B, and C, made a note as follows : " We, the subscribers, jointly and severally, prom- ise to pay D, or order, for the Boston Glass Manufactory," and signed their names, not saying, as agents, it was held, that the note bound them personally, and not the corporation.^ So, where two persons made a promissory note in this form; " We the subscribers, trustees foi; the proprietors of the new congregational meeting-house at A, promise to pay B the sum of," &c., and signed it C, D, E, F ; it was held, that the note bound them personally, and not the proprietors.^ So, where the committee of a town made a contract in the follow- ing words : " Agreement between A, B, and C, committee of the town of N., of the one part, and D and E of the other part, and the said committee agree to pay," &c., signing their own names. A, B, and C ; it was held, that they were personally liable on the contract.* So, where a committee of the directors of a turnpike corporation entered into a contract under seal, describing themselves as such committee, on the one part, with the plaintiff, on the other part, and signed sLnd. 1 White V. Skinner, 13 John. K. 307 ; Ante, § 273. 2 Bradlee v. Boston Glass Manufactory, 16 Pick. K. 347. In this case Mr. Ch. Just. Shaw, said : " It is held in many cases, that, although the contract of one is given for the debt of another, and although it is understood, between the persons promising, and the party for whom the contract is entered into, that the latter is to pay it, or to reimburse and indemnify the contracting party, if he should be required to pay it, it Js still, as between the parties to it, the contract of the party making it. A leading and decisive case on this point is Staokpole V. Arnold, 11 Mass. R. 27." See ante, § 154, 155. 3 Packard v. Nye, 2 Mete. R. 47. 4 Simonds v. Heard, 23 Pick. K. 121. See Savage v. Kix, 9 N. H. K. 263. 84>6 AGENCY. [CH. X. sealed the contract in their own names, it was held, that they were personally responsihle ; for it was the deed of the com- mittee, and not of the directors, or of the corporation.-' So, where certain persons signed a note, descrihing themselves as " Trustees of Union Religious Society," it was held, that they were personally liable thereon, although it was proved, that the society was a corporation, and the note was given for a balance due from the society for a church bell.^ § £77- In ^^^ tw l^st cases, it did not appear, that the agents executing the contract had due authority from the directors, or corporation, to execute the deeds. If such an authority had been proved, or admitted, it would still have re- mained a question, whether, as the deeds were executed in their own names, they would not have been personally bound. This last question has, however, arisen; and it has been decided in America, that the agents are not affected by any personal responsibility under such a contract, although it is made under their own seals, if the corporation itself has conferred on them a due authority to make the contract on their behalf. Thus, where a contract was made by certain persons, by name, purporting to be " a committee of the cor- poration of the city of Albany," on the one part, and the plain- tiff, on the other part ; and it was sealed by the committee with their own seals ; it was held, that they were not personally bound by the contract, as it was authorized by the corpora- tion, although not under its corporate seal ; and that the cor- poration was alone liable on the contract in an action of as- 1 Tippits V. Walker, 4 Mass. E. 595. 2 Hills V. Bannister, 8 Cowen, R. 31 ; Ante, § 154; Shelton v. Darling, 2 Connect. R. 435 ; Barker v. Mechanic Fire Insur. Co. 3 Wend. E. 94. Fogg V. Virgin, 19 Maine, 352 ; Cleaveland v. Steward, 3 Kelly, 283 ; Trask v. Rob- erts, 1 B. Monroe, 201 ; Webb v. Burke, 5 Id. 51. But see Mann v. Chandler, 9 Mass. R. 335 ; Mott v. Hicks, 1 Cowen, E. 513 ; Ante, § 154 ; Leach v. Blad, 8 Sm. & Marsh. 221. See Cooch v. Goodman, 2 Adolph. & Ell. New Kep. 580, 595, 596. CH. X.] LIABILITIES TO THIRD PERSONS. 84 See Burls v. Smith, 7 Bing. K.,705. 2 Ibid. 3 Ridgely v. Dobson, 3 Watts & Serg. 118. * Tobey v. Clafflin, 3 Sumner, 379 ; Parrottv. Eyre, 10 Bing. R. 283. CH. X.] LIABILITIES TO THIRD PERSONS. * S57 ciple prevails in all these cases, notwithstanding their apparent diversity of form and decision. They are all answered by the same general inquiry : To whom is the credit knowingly given, according to the understanding of both parties 1 This inquiry is sometimes a matter of fact, as where the contract is verbal and unwritten, and sometimes a matter of law, as where it depends upon the true construction of the terms of a particular written instrument. The law, in all these cases, pronounces the same decision ; that he to whom the credit is knowingly and exclusively given, is the proper person, who incurs liability, whether he be the principal or the agent.^ § 289. Hence it is, that, although it is perfectly well known, that a person is acting for others, as an agent, as, for example, for a club, if articles are furnished for the club at his request, 1 Smith on Merc. Law, 79, (2d edit.) ; Id. ch. 5, § 7, p. 140, 141, (3d edit. 1843); Paley on Agency, by Lloyd, 368, 370, -371; Delauney v. Strickland, 2 Stark. R. 416; 3 Chitty on Comm. and Manuf. 211, 212; Paterson v. Gandasequi, 15 East, 62, 64, 66, 68, 69; Ex parte Hartop, 12Ves. 352; Thomson v. Davenport, 9 B.- & Cressw. 78, 88, 90; Addison v. Gandasequi, 4 Taunt. R. 575; Owen v. Goooh, 2 Esp. R. 567; Hyde ?;. Wolf, 4 Miller, Louis. R. 234. See the language of Lord Erskine in Ex parte Hartop, 12 Ves. 352, cited ante, § 261, note (1). In Owen v. Gooch, 2 Esp. R. 568, Lord Kenyon said : " The goods are ordered by Gooch, but at the time it is not pre- tended, that they were for his own use ; they were ordered for Tippell, and the entry is made in his name. We must keep distinct the cases of orders given by the parties themselves, and by others, as their agents. If the mere act of order- ing goods was to make the party, who ordered them, liable, no man could give an order for a friend in the country, who might request him to do it, without risk to himself. If a party orders goods from a tradesman, though in fact they are for another, if the -tradesman was not informed at the time, that they were for the use of another, he, who ordered them, is certainly liable, for the trades- man must be presumed to have looked to his credit only. So, if they were ordered for another person, and the tradesman refuses to deliver to such person's credit, but to his credit only, who orders them, there is, then, no pretext for charging such third person ; or, if goods are ordered to be delivered on account of another, and, after delivery, the person, who gave the order, refuses to inform the tradesman, who the person is, in order that he may sue him, under such cir- cumstances he is himself liable ; but, wherever an order is given by one person for another, and he informs the tradesman, who that person is, for whose use the goods are ordered, he thereby declares himself to be merely an agent, and there is no foundation for holding him to be liable. 358 AGENCY. [CH. X. upon the exclusive credit of the agent, or of any other particu- lar member, no other persons, composing the club, will be liable therefor.^ But it will not necessarily be conclusive proof of such an exclusive credit, that the agent, or other member, is charged in the creditor's books, or that the account is made out in his name ; for it is a mere matter of presumption, to which a jury may attach more or less weight, according to cir- cumstances.^ So, also, if a foreign merchant, not choosing to make himself personally liable, should go with his agent to tradesmen, and should buy goods in the "agent's name, and credit should be given to the agent, although the principal is known, there cannot be the slightest doubt, that no recovery could be had for the goods against the principal.^ Indeed, the doctrine may be stated in a more general form, that, wherever exclusive credit is given to an agent in any transaction for a known principal, there, the party must abide by his election ; and he cannot afterwards hold the principal liable therefor.* § !290. There are cases, in which the presumption of an ex- clusive credit being given to an agent is so strong, as almost to amount to a conclusive presumption of law. Thus, for ex- ample, where a known factor buys or sells goods for his prin- cipal, who is resident in a foreign country, as, for example, in France or Germany ; it will be presumed, in the absence of all rebutting circumstances, that credit is given exclusively to the factor in the whole transaction, and that he is dealt with as the principal.^ This doctrine may be satisfactorily explained, in 1 Delauney v. Strickland, 2 Starkie, E. 416 ; Paterson v. Gandasequi, 15 East, K. 62, 64, 68. See Todd v. Emly, 7 Mees. & Welsb. 427; Todd v. Emly, 8 Mees. & Welsb. 505. 2 IWd. 3 Paterson v. Gandasequi, 13 East, K. 64, 66, 68 ; Addison v. Gandasequi, 5 Taunt. 574. * Thomson v. Davenport, 9 B. & Cressw. 78, 88, 90 ; Addison v. Gandasequi, 4 Taunt. 574 ; Eanken v. Deforest, 18 Barbour, 143. 5 Gonzales v. Sladen, Bull. N. P. 130; 2 Liverm. on Agency, 249, (edit. 1818; ; Paley on Agency, by Lloyd, 248, 373 ; Paterson v. Gandasequi, 15 East, CH. X.] LIABILITIES TO THIRD PERSONS. 859 many cases, by the consideration already stated, that #here is no other known responsible principal.^ But it is founded upon a broader ground, namely, upon the presumption, that the party, dealing with the agent; intends to trust one, who is known to him, and resides in the same country, and is subject to the same laws as himself, rather than to one, who, if known, cannot, from his residence in a foreign country, be made amenable to those laws, and whose liability may be affected by local institutions and local exemptions, which may put at hazard both his rights and his remedies.^ A fortiori^ the doctrine will apply to an agent acting for an unknown prin- cipal in a foreign country. § 291. In the cases, which have been already stated, the principal question discussed has been. To whom credit has been exclusively given. And this leads us to remark, that, although in general, where credit is given, either to the agent, or to the principal, a presumption will arise, that it is an exclusive credit ; yet this doctrine is far from being universally true. The cases, to which it properly applies, are those, where the agent is act- ing for a known principal, and the party dealing with the agent, 68, 69; Thomson v. Davenport, 9 B. & Cressw. 78, 87, 88; 3 Chitty, Comm. and Manuf. 203 ; -Hougliton v. Mathews, 3 Bos. & Pull. 489, 490, per Chambre, J. ; Smith on Merc. Law, 66, 78, (3d edit.) ; Id. B. 1, ch. 5, § 7, p. 142, 143, (3d edit. 1843) ; Addison v. Gandasequi, 4 Taunt. R. 575 ; 1 Bell, Comm. § 418, p. 398, (4th edit.) ; Id. p. 491, 492, (5th edit.) In De Gaillon v. L'Aigle, 1 Bos. & Pull. 359, Lord Chief Justice Eyre said : " I am not ajvare, that I have ever concurred in any decision, in which it has been held, that, if a person, describing himself as agent for another residing abroad, enter into a contract here, he is not personally liable on the contract." Lord Tenterden, in Thomson v. Davenport, 9 B. & Cressw. 87, said: "There may be another case, and that is, where a British merchant is buying for a foreigner. According to the universal understanding of merchants, and of all persons in trade, the credit is then considered to be given to the British buyer, and not to the foreigner." Ante, § 267, 268. But see Taintor v. Prendergast, 3 Hill, 72, 73 ; Kirkpatrick V. Stainer, 22 Wend. K. 244, and ante, § 268, note ; Post, § 291, note, 400 ; Green u. Kopke, Boston Law Rep. 229. 1 Ante, § 280 ; Post, § 400, 423, 448. a Ante, § 268, and note; Post, § 400. 360 AGENCY. [CH. X. elects tP credit one, and not the other.^ When, therefore, the agent acts, without disclosing that he is acting as an agent; or when, acting as a known agent, he does not disclose the name of his principal ; there, although credit is given to the ag'ent, yet it is not deemed to he an exclusive credit.^ On the contrary, when the principal is discovered, he also will be deemed responsihle, as well as the agent.^ There is this quali- 1 Hyde v. Wolff, 4 Miller, Louis. E. 234. 2 Ante, § 266-268 ; Post, § 393, 396. 3 Smith on Merc. Law, 65, 66, 78 ; Kailton v. Hoclgson< 4 Taunt. 576, note; Wilson V. Hart, 7 Taunt. R. 295 ; Thomson v. Davenport, 9 B. & Cressw, 78 ; Hyde v. Wolff, 4 Miller, Louis. R. 234, 236 ; Upton v. Gray, 2 Green). 373; Palsy on Agency, by Lloyd, 245 to 250 ; 2 Kent, Comm. Leot. 41, p. 630, 631, (4th edit.) This whole doctrine, and its distinctions, are fully expounded by the Court, in Thomson v. Davenport, 9 B. & Cressw. 78. On that occasion, Lord Tenterden said, p. 86,87: "I take it to be a general rule, thatfif a person sells goods, (supposing, at the time of the contract, he is dealing with a principal,) but afterwards discovers that the person, with whom he has been dealing, is not the principal in the transaction, but agent for a third person, though he may, in the mean time, have debited the agent with it, ho may afterwards recover thq amount from the real principal ; subject, however, to this qualification, that the state of the account between the principal and the agent is not altered to the prejudice of the principal. On the other hand, if, at the time of the sale, the seller knows, not only that the person, who is nominally dealing with him, is not principal, but agent, and also knows, who the principal really is, and, not- withstanding all that knowledge, chooses to make the agent his debtor, dealing with him, and him alone ; then, according to the cases of Addison v. Gandasequi, and Paterson v. Gandasequi, the seller cannot afterwards, on the failure of the agent, turn round and charge the principal, having once made his election at the time, when he had the power of choosing between the one and the other. The present is a middle case. At the time of the dealing for the goodg, the plaintiffs were informed, that M'Kune who came to them to buy the goods, was dealing for another, that is, that he was an agent ; but they were not informed who the principal was. They had not, therefore, at that time, the means of making their election. It is true that they might, perhaps, have obtained those means, if they had made further inquiry. But they made no further inquiry. Not knowing who the principal really was, they had not the power at that instant, of making their election. That being so, it seems to me that this middle case falls in substance and effect, within the first proposition, which I have men- tioned, the case of a person not known to be an agent ; and not within the second, where the buyer is not merely known to be an agent, but the name of his principal is also known." In Mr. Lloyd's edition of Paley on Agency, oh. 3, CH. X.j LIABILITIES TO THIRD PERSONS. 361 fication, however, annexed to such liability of the principal, that nothing has, in the meantime, passed between the principal and the agent to alter the state of their accounts, or otherwise to operate injuriously to the principal, if he has acted in the confidence, that inclusive credit was given to the agent ; and. Pt. 1, § 8, p. 245 to 250, these distinctions are laid down witli great clearness and accuracy. He says : " Indeed, there are several ways in which the liability if the principal may be affected in purchases made by his agent, of which the 'oUowing summary may be useful/' 1st. The purchase may be made by the broiler expressly for, and in the name of, his principal. In that case, if the principal be debited by the seller, he only, and not the broker, will be liable. 2d. A broker may purchase in his character of broker, for a known principal ; but, the seller may choose, nevertheless, to take him for his debtor, rather than the principal, in whose credit he may not have the same confidence ; and after this deliberate election, the seller cannot afterwards turn round and charge the principal. 3d. The broker may buy in his own name, without disclosing his principal, in which case the invoices will, of course, be made out to him, and he will be debited with the account. If now, before payment, the seller dis- cover that the purchase was, in fact, made for another, he may at his choice, look for payment either to-the broker or the principal ; to the former upon his personal contract, to the latter upon the contract of his agent; and the adoption of the purchase by the principal will be evidence of the agent's authority. But 4th. If, after the disclosure of the principal, the seller lie by and suffer the principal to settle an account with his broker for the amount of the purchase, he cannot afterwards charge the latter, so as to make him a loser, but will be deemed to have elected the broker for his debtor. And 5th. If the principal be a foreigner, it seems that, by the usage of trade, the credit is to be considered as having been given to the English broker, and that he only, and not the foreign buyer, will be liable. That question, however, is for the jury. 6th. There is still an intermediate case, where upon a purchase by a broker, the seller, knowing that he is acting as broker in the transaction, but not for whom, makes out the invoice to him, and debits him with the price ; can the seller afterwards, when the name of the principal is made known to him, substitute him as the debtor, and call upon him for payment ? On the one part, it is said, the principal, in debiting the broker, can have exercised no election, because election implies a preference, and there can be no preference, where the prin- cipal is unknown. On the other part, it is answered, that the seller might have known, by simply asking the question, and that the omitting to make the inquiry is decisive evidence of a deliberate preference of the broker. The Court of King's Bench has decided that the principal, in such case, is not discharged ; but the decision has not been considered very satisfactory, and is certainly not implicitly acquiesced in." AGENCY. 31 362 AGENCY. [CH. X. moreover, that there has been no laches on the part of the creditor.-^ § 292. The same doctrine, as to the HabiUty of the princi- pal, as well as of the agent, has been recognized in the law of many, if not of all, the nations of continental Europe.^ Thus, Pothier lays it down, as clear, that, where an agent contracts in his quality as agent, in his own name, his principal is bound, as well as the agent himself.^ His language is, that in all such engagements, which an agent contracts for the affairs committed to his charge, although he contracts in his own name, he binds himself, as principal, and, at the same time, he binds his employer, as an accessary debtor ; for the employer is considered as having consented beforehand, by the commis- sion, which he has given, to all the engagements, which the agent might contract in the business, to which he is appointed, and to have rendered himself answerable for them.* Undoubt- edly, exceptions may exist, in regard to this general liability, in the foreign law, as they do in ours, wherever an exclusive credit is shown to be given, either to the employer, or to the agent.^ § 293. There are some particular agencies, in which the presumption of a reciprocal credit between the principal and 1 Smith on Merc. Law, 66, 78, (2d edit.) ; Id. B. 1, ch. 5, § 7, p. 140-142, (3d. edit. 1843) ; Thomson v. Davenport, 9 Barn. & Cressw. 78 ; Horsfallt;. Fauntleroy, 10 Barn. & Cressw. 755 ; 3 Chitty on Comm. & Manuf. 203; Paley on Agency, by Lloyd, 245 to 250 ; Kathbone v. Tucker, 15 Wend. K. 498. A fortiori, if the seller has furnished the agent with the means of misre- presenting the contract to his principal, and the latter has actually paid his agent for the goods purchased, according to the terms communicated to him, he will be discharged from all liability to the seller. Horsfall v. Fauntleroy, 10 Barn. & Cressw. 755 ; Paley on Agency, by Lloyd, 249, 250. 2 See 1 Bell, Comm. § 418, p. 398, (4th edit.) ; Id. p. 492, 494, (5th edit); Pothier on Oblig. by Evans, n. 82, 446, 447. s Pothier on Oblig. by Evans, n. 82, 447-449 ; Hyde v. Wolff, 4 Miller, Louis. R. 234 ; Hopkins v. Lacouture, 4 Miller, Louis. R. 64, 66. 4 Pothier on Oblig. by Evans, n. 447 ; Id. n. 82. 5 Hyde v. Wolff, 4 Miller, Louis. R. 234 ; Hopkins v. Lacouture, 4 Miller, Louis. R. 64. CH. X.] LIABILITIES TO THIRD PERSONS. 863 agent, and third persons, is generally understood to arise by the usages of trade, or by intendment of law. Such, for ex- ample, is the case in the ordinary dealings of home factors in buying and selling goods. So that, in case of a purchase by such a factor, he, as well as his principal, is deemed liable for the debt ; and, in case of a sale by such a factor, the buyer is liable, both to the principal and to the factor, for the debt.-^ This is the ordinary presumption, which, however, may be repelled, by any proofs of exclusive credit or contract with either, arising from the circumstances of the particular transaction.^ § 294'. But the most striking case of this sort is that of a master of a ship, contracting within the ordinary scope of his powers and duties. In such a case, he is, in general, person- ally responsible, as well as the owner, upon all contracts made by him, for the employment, and repairs, and supplies of the ship. This is the established rule of our maritime law ; and it is said to have been introduced in favor of commerce, so that merchants may not be compelled to seek after the owners, to sue them; but that they may have a twofold remedy against the owners, and against the master.^ Nor is this doc- 1 1 Bell, Comm. § 418, p. 398, (4tli edit.) ; Id. p. 494, 508, (5th edit.) ; Ante, ■§269, 270; Post, §400, 401. ' 2 Ante, § 267, 291 ; Paley on Agency, by Lloyd, 243-245, 371, 372 ; Thom- son V. Davenport, 9 Barn. & Cressw. 78, 88, 91; Paterson v. Gandasequi, 15 East, E. 62. 3 Post, § 315 ; Abbott on Shipp. Pt. 2, ch. 2, § 3, p. 90, (edit. 1829) ; Id. § 3-6, p. 91-94 ; Id. ch. 3, § 2-9, p. 100-107 ; Paley on Agency, by Lloyd, 245, 246, 388; Kich v. Coe, Cowp. E. 637; James v. Bixby, 11 Mass. E. 34; 1 Liverm. on Agency, 70, 71; Id. 54 to 197, (edit. 1818); 2 Liverm. on Agency, 267-269, (edit. 1818); Ante, § 36, 116, 117; Hussey v. Christie, 9 East, E. 426, 432 ; 3 Kent, Comm. Lect. 46, p. 161, (4th edit.) ; The Nelson, 6 Eob. E. 227. The American authorities on this subject are in. perfect coin- cidence with the English. Many of them are cited in the notes to the American edition of Abbott on Shipping, (edit. 1829,) Pt. 2, ch. 2, § 2, note (1,) and § 3 ; Id. ch. 3, § 2, note (1) ; Id. § 3, notes 1 and 2. Indeed, in many cases, there may be a threefold remedy, against the ship, the owner, and the master ; as, for example, by seamen for their wages ; and by material-men, for repairs and sup- plies in foreign ports. See Abbott on Shipp. Pt. 2, ch. 2, § 2, 3, 10, and notes S64) AGENCY. [CH. X. trine peculiar to our law ; but it has been fully recognized and adopted by the commercial nations of continental Europe.^ In truth, however, it has been derived, both to us and to them, from the Roman law, promulgated by the Prsetor's edict, whereby the owners and employers of the ship are positively made responsible for the faults of the master and crew, and also for the contracts of the master, in matters within the scope of his authority.^ Utilitatem hujus Edicti patere (says the Digest) nemo est, qui ignoret. Nam cum interdum ignari, cujus sint conditionis, vel quales, cum magistris propter navi- gandi necessitatem contrahamus, wquum fuit, eum, qui magis- trum navi imposuit, teneri ; ut tenetur, qui institorem tahernw, vel negotio, prceposuit ; cum sit major necessitas contrahendi cum magistro, quam institore ; quippe res patitur, ut de con- ditione quis institoris dispiciat, et sic contrahat. In navis magistro non ita ; nam interdum locus, tempus non patitur plenius deliberandi consilium.^ And it is afterwards added: iSed ex contrario, exercenti^iavem adversus eos, qui cum magis- tro contraxerunt, actio non pollicetur ; quia non eodem auxilio indigehat, Sed auf ex locato cum magistro, si mereede operant ei exhihet ; aut si gratuitam, mandati agere potest.^ The exer- citorial action, thus given against the owner, is merely acces- sorial, or supplemental, to that against the master, and does not to the American edit, of 1829 ; Id. Ft. 4, oh. 4, § 1, 2-10, and notes to the American edit, of 1829 ; Rich v. Coe, Cowp. E. 637; 1 Bell, Comm. p. 508, (5th edit.) 1 Abbott on Shipp. Ft. 2, ch. 2, § 3, p. 91, (edit. 1829) ; Id. § 4, p. 93 ; Id. § 5, p. 94 ; Id. ch. 3, § 2, 3-9, p. 100-107 ; Ante, § 116, 160, 161, 278 ; Pothier on Oblig. n. 82, 448; 2 Eraerigon, Assur. ch. 4, § 10, p. 448 ; Id. ch. 4, § 12, p. 465-468 ; Ersk. Inst. B. 3, tit. 3, § 43 ; 1 Stair, Inst, by Brodie, B. 1, tit. 13, § ] 8 ; 1 Bell, Comm. § 434, p. 413, (4th edit.) ; Id. p. 507, 508 ; Id. p. 522, 523, (5th edit.) 2 Ibid. ; Ante, § 116, 117 ; Dig. Lib. 4, tit. 9, 1. 1 ; Abbott on Shipp. Ft. 2, ch. 2, § 3, and note (g,) p. 91, (Amer. edit. 1829.) 3 Dig. Lib. 14, tit. 1, 1. 1, Introd. and § 17; Fothier, Pand. Lib. 14, tit. 1, n. 2. 4 Dig. Lib. 14, tit. 1, 1. 1, § 18 ; Pothier, Pand. Lib. 14, tit. 1, n. 18. CH. X.l LIABILITIES TO THIRD PERSONS. 365 supersede or extinguish it. Hoc enim Edicto non iransfertur actio ; sed adjicitur?- The rule thus promulgated,^ and the reasoning, hy which it is supported, are precisely the same, which, in modern times, have been adopted, as the just founda- tions of maritime jurisprudence ; Eo usque producendam utili- tatem navigantium? § 295. There seems, however, to be one pecuharity in the Roman law on this subject ; and that is, that, while it gives a right to proceed against the owner or employer, as well as against the master of the ship, for the amount of the repairs and supplies furnished for the ship, and for other contracts, made by him, within the scope of his employment ; yet, if the creditor elects to proceed in a suit against either of them, he thereby discharges the other, ^s^ autem nobis electio, utrum Exercitorem, an Magistrum convenire velimus? Hoec actio ex persona Magistri in Exercitorem dabitiir. Et ideo, si cum utro eorum actum est, cum altera agi non potest^ Our law, on the other hand, while it gives an election to the creditor, to sue either the master, or the owner, in a distinct and separate action, does not preclude the creditor, by such an election, from maintaining another action against the party not sued, unless, in the first election, he has obtained a complete satisfaction of the claim.^ § 296. Such, then, as above stated, is the general doctrine of our law ; but it prevails only in the absence of any satis- 1 Dig. Lib. 14, tit. 1, 1. 5, § 1. 2 Dig. Lib. 14, tit. 1, 1. 1, § 5." 3 Dig. Lib. 14, tit. 1, 1. 1, § 17 : Pothier, Pand. Lib. 14, tit. 1, n. 17. * Dig. Lib. 14, tit. 1, 1. 1, § 24 ; Pothier, Pand. Lib. 14, tit. 1, n. 17. 5 2 Liverm. on Agency, 267, (edit. 1818.)— Emerigon understands the Koman law differently from what I have stated ; and supposes it to be exactly like our law ; (2 Emerig. Assur. ch. 4, § 10, p. 448, 449) ; and he cites Stypmannus, and Daurenus also, as authorities in support of his opinion. It is with great diffi- dence, that I have ventured to differ from such authorities, in the interpretation of the words of the Roman text ; and I am far from feeling certain, that I have not misunderstood that text ; although I am not satisfied, that the language, cited from Stypmannus, does support the proposition of Emerigon. 31* 366 AGENCY. [CH. X. factory proof, that exclusive credit is given, either to the owner, or to the master ; for it is perfectly competent for the parties to contract, so as to confine the responsibility, either to the master, or to the owner.' If, therefore, there is satisfactory proof, that exclusive credit has been given to the one, the other will be completely discharged. Nay, the principle has been carried further ; and it has been held, that, if the party has so conducted himself in the particular transaction, as to lead to the conclusion, that an exclusive credit has been given, either to the master, or to the owner, severally, he will not be per- mitted afterwards to assert his claim, to the prejudice of the party, whom he has misled into the belief, that he is exoner- ated.^ § 297- What will amount to satisfactory proof of an exclu- sive credit, must necessarily depend upon the circumstances of each particular case, and, of course, admits of no positive or universal averment. In general, it may be stated, that the mere fact, that the repairs are made, or the supplies furnished, either in the home port, or in a foreign country, at the request of the master, will be sufficient to charge him, but not to dis- charge the owner, as a personal and exclusive credit to the 1 2 Liverm. on Agency, 167 to 169, (edit. 1818) ; Jamea v. Bixby, 11 '. E. 34, 36, 37. 2 Abbott on Sbipp. Pt. 2, ch. 3, § 2, p. 100, (Amer. edit. 1829,) and notes ibid.; Wyatt v. Marquis of Plertford, 3 East, R. 147 ; Hyde v. Wolff, 4 Miller, Louis. R. 234 ; Reed v. White, 5 Esp. R. 122 ; Schemerliorn v. Loines, 7 John. R. 311 ; Muldon v. Whitlock, 1 Cowen, E. 299; 2 Liverm. on Agency, 267 to 269, (edit. 1818.) The same doctrine will apply to cases, where, after a con- tract has been made, binding both principal and agent, the seller gives an ex- clusive credit to the agent for the debt, and induces the principal to believe, that the debt is settled by the agent ; as, for example, if, after a sale to the agent, the seller takes the note, or other security of the agent, for the amount, or gives him a receipt, or other document, showing an apparent extinguishment of the debt, and thereby enables the agent to settle with the principal, as if the debt had been paid. Hyde v. Wolff, 4 Miller, Louis. R. 284, 236 ; 1 Bell, Comm. § 418, p. 398, (4th edit.) ; Id. p. 494, 507, 522-524, 537, 538, (5th edit.) ; Reed v. White, 5 Esp. R. 122 ; Stewart v. Hall, 2 Dow, R. 29 ; Porter i^. Talcott, 1 Cowen, R. 359. CH. X.] LIABILITIES TO THIRD PERSONS. 867 master, unless some positive contract, or other act, can be shown, which demonstrates an intention to discharge the owner .^ Nor will a charge of the repairs or supplies in the books of the material-men, in such a case, against the master personally, be sufficient to discharge the owner ; because such a charge is quite consistent with the intention still to hold the owner liable, whether he be then known, or unknown.^ A fortiori, if the charge is made against the ship by her name, without charging either the master, or the owner, as the debtor, both will be liable ; for, in such a case, the master and the owner may well be deemed as equally representatives of the ship.^ § 298. It will make no difference in respect to the liability of the owner, in cases of repairs to ships, that by a private agreement, or charter-party, between the owner and the master, the latter is to have the entire ship to his own use for a speci- fied period, and is to make all the repairs at his o^^j^xpense ; for such a private agreement cannot vary the rights of third persons.* Neither will it make any difference, as to the liability of the owner, that the master has bound himself personally by a written contract, if such contract does not establish, that an exclusive credit is given to the master; for, in many cases, (as, for example, in the common shipping articles between the 1 Abbott on SMpp. Ft. 2, ch. 3, § 2, 3 ; Hussey v. Allen, 6 Mass. R. 163, 165 ; Rich V. Coe, Cowp. E. 636 ; Leonard v. Huntington, 15 John. K. 288 ; Mar- quand v. Webb, 16 John. E. 89 ; 3 Chitty on Comm. and Manuf. 212 ; Garnham B. Bennett, 2 Str. E. 816 ; James v. Bixby, 11 Mass. R. 34, 36 ; Hussey v. Christie, 9 East, R. 432 ; 3 Kent. Comm. Lect. 46, p. 161, (4th edit.) ; 1 Bell, Comm. § 434, p. 413, (4th edit.) ; Id. p. 494, 507, 522-524, 537, 538, fpth edit.) 2 See Farmer v. Davis, 1 Term E. 108, 109 ; Muldon v. Whitlook,%'Cowen, E. 299. 3 See Farmer v. Davis, 1 Term E, 108, 109 ; Muldon v. Whitlock, 1 Cowen, E. 299 ; Stewart v. Hall, 2 Dow. E. 29 ; Abbott on Shipp. Pt. 1, oh. 3, § 7, note (1) (Amer. edit. 1829) ; Id. Pt. 2, ch. 3, § 1, note (1) ; Stewart v. Hall, 2 Dow, R. 29. * Rich V. Coe, Cowp. R. 636. 868 AGENCY. [CH. X. master and seamen for a voyage,)^ the owner will be bound by the written contract of the master in his own name, especially where it is according to the common usage of the employment. Similar considerations apply to the execution of charter-parties, and of bills of lading, by the master, within the scope of his general authority.^ 1 Abbott on Shipp. Pt. 2, ch. 3, § 2, 3 ; PL 4, ch. 1, § 1 ; Id. ch. 4, § 1, 10, and notes, (Amer. edit. 1829) ; The Nelson, 6 Kob. K. 227 ; Ante, § 116, 161, 294. 2 Abbott on Shipp. Pt. 2, ch. 2, § 5 ; ch. 3, § 2, 3 ; Pt. 3, ch. 1, § 2 ; Cock v. Taylor, 13 East, R. 399; Ante, § 116, 160, 161, 294; Jones v. Littledale, 6 Adolph. & Ellis, 486 to 490. Lord Mansfield fully expounded this whole doc- trine in Rich v. Coe, Cowp. R. 636, 639. On that occasion, his Lordship said: " Whoever supplies a ship with necessaries, has a treble security. 1. The per- son of the master. 2. The specific ship. 3. The personal security of the owners, whether they know of the supply or not. 1. The master is personally liable, as making the contract. 2. The owners are liable, in consequence of the master's act, because they choose him. They run the risk, and they say -whom they will tru^jwith the appointment and office of master. Suppose the owners, in this case, had delivered the value of the goods in question in specie to the master, with directions for him to pay it over to the creditors, and the master had embezzled the money ; it would have been no concern of the creditors ; for they trust specifically to the ship, and generally to the owners. In this case, the defendants are the owners, and there happens to be a private agreement between them and the master, by which he is to have the sole conduct and management of the ship, and to keep her in repair, &c. But how does that afieot the creditors, who, it is expressly stated, were total strangers to the trans- action ? And that is an answer to the observation, that the plaintiff must have known the real situation of the master in this case, from the general usage and custom of the country in that respect. To be sure, if it appeared, that a trades- man had notice of such a contract, and, in consequence of it, gave credit to the captain individually, as the responsible person, particular circumstances of that sort might afford a ground to say, he meant to absolve the owners, and to look singly to the personal security of the master. But here it is stated, that the plaintiff" had no notice whatever of the contract. The owners themselves are aware oPtheir being liable at the time. They choose a master, to whom they agree to let the ship ; and trust, for their security, to the covenants, which they oblige him to enter into. These covenants are, that he shall keep the ship in repair, and deliver her up, at the end of the term, in as good condition, as when delivered to him. This is not all ; for they indemnify themselves against the private debts of the master ; and against his being taken in execution ; for if he does not perform all and every the covenants in the agreement, (except in case CH. X.] LIABILITIES TO THIRD PERSONS. 869 § 299. On the other hand, if the ship is in the home port of the owner, and repairs are there "made, or supplies furnished, at the request of the master, the mere fact of the presence of the owner in the home port will not exonerate the master from responsihility.^ But, in such a case, if the contract for the repairs or supplies, is directly with the owner, and not with the master, a strong presumption will arise, that credit is given exclusively to the owner, which it would require cogent proofs of the loss of the ship,) the consequence, besides their remedy againist him upon the covenant, is, that the contract and agreement is to be absolutely at an end, and they are to take possession of the ship. Suppose the ship had been im- pounded in the admiralty court, and that had happened at the end of the term ; or suppose the captain had then broken a covenant, ■which had put an end to the agreement ; the defendants could never have taken the ship out of the court, vrithout paying the debt, for which the sWp was impounded. We are all of Opinion, therefore, that under these circumstances, there is no color to say, that the creditors should be stripped of the general security, they are by law entitled to, against the owners." See also Abbott on Shipp. Pt. 2, ch. 3, § 1, 3, 10; Id. Pt. 4, eh. 4, § 1, note, (Amer. edit. 1828) ; Aspinwall v. Bartlett, 8 Mass. R. 483 ; Farmer v. Davis, 1 Term K. 109. In this last case, Lord Mansfield said : " Where a captain contracts for the use of the ship, the credit is given to him in respect to his contract ; it is given to the owfiers, because the contract is on their account ; and the tradesman has likewise a specific lien on the ship itself. Therefore, in general, the tradesman, who gives that credit, debits both the cap- tain and the owners. Now, what is this case ? The captain made no contract personally. The owners contracted for their ship ; the credit was given to them only, and there is not a shadow of color to charge the captain for any part of these goods." 1 Hussey v. Christie, 9 East, E. 426, 432 ; Hoskins v. Slayton, Cas. Temp. Hard. 376 ; Kich v. Coe, Cowper, R. 636 ; Abbott on Shipp. Pt. 2, ch. 3, § 2-4; James v. Bixby, 11 Mass. K. 34, 36, 37 ; Marquand v. Webb, 16 John, E. 89 ; Stewart v. Hall, 2 Dow, E. 29 ; Farmer v. Davis, 1 Term E. 108. In Hussey v. Christie, 9 East, E. 432, Lord EUenborough, in delivering the opinion of the Court, said : " If the repairs be done here, the owners are liable ; though the master may also become liable on his own contract, if he do not stipulate against his personal liability, and confine the' credit to his owners. If the necessary repairs be done abroad, the master may hypothecate the ship for them ; and it IS his own fault, if he subjects himself to any personal responsibility, which he may renounce." In Hoskins v. Slayton, Cas. Temp. Hard. 377, which was the case of sales made for the ship at a home port, and ordered by the master. Lord Chief Justice Lee, said : " In general, if the master orders the goods, both are liable ; the master, who gives the orders, and upon whose credit the work is SyO AGENCY. [CH. X. to reblit or overcome.^ But the like presumption will not arise on a contract for seamen's wages, that exclusive credit, is given to the owner by the crew, from the mere fact, that the owner shipped the crew in the home port ; as the shipping articles generally contemplate the contract to be made by and with the master, and the maritime law treats the master, from his direct relation to the crew, as incurring a personal responsibility to them for their wages. It will, of course, under such circum- stances, require the most positive and satisfactory proof, omni exceptione major, to sustain a defence by the master, that ex- clusive credit is given by the crew to the owner for their wages.^ § SOO. The liability of agents to third persons, on contracts, may also arise from acts done, or refused to be done, by such agents. Thus, for example,*if a party, who has paid money to an agent for the use of his principal, becomes entitled to recall it, he may upon notice to the agent, recall it, provided the agent has not paid it over to his principal, and also pro- vided no change has taken place in the situation of the agent since the payment to bin!, before such notice.® The mere fact, done, and the owners, in respect of the work being done to their property; for if I, without having given orders, suffer a work to be done for me, I must pay for it. But yet, though both are liable in such a case, yet if it appears, that the credit was given to the owners only, and that the master, in giving orders, acted merely as their servant, he will not be liable ; and he directed the jury, that, if, upon the evidence, they thought no credit was given to the master, but the owners alone, then they should find for defendant." The jury found a ver- dict for the defendant. See also 1 Bell, Comm. § 434, p. 413, § 435, p. 414, (4th edit.) ; Id. p. 507, 519, 520, 524, (5th edit.) 1 Farmer v. Davis, 1 Term R. 108 ; Ante, § 294, 296-298, note ; Hoskins v. Slayton, Cas. Temp. Hard. 376, 377; 2 Liverm. on Agency, 267-269, (edit. 1818) ; Abbott on Shipp. Ft. 2, ch. 2, § 2-4 ; James v. Bixby, 11 Mass. E. 34, 36, 37. 2 Abbott on Shipp. Ft. 4, ch. 4, § 1, and note, (2) ; Id. § 10, (Amer. edit. 1829.) See 2 Emerigon, Assur. ch. 4, § 12, p. 467. See 1 Bell, Comm. § 435, p. 414, (4th edit.) ; Id. § 418, p. 398, (4th edit.) ; Id. p. 507, 508, 519 "to 524, (5th edit.) 3 Paley on Agency, by Lloyd, 388 to 394 ; 3 Chitty on Comm. and Manuf. CH. X.] LIABILITIES TO THIRD PERSONS. 371 that the agent has passed such money in account with his prin- cipal, or that he has made a rest in his accounts, without any- new credit being given to the principal, will not of itself be sufficient to entitle the agent to retain the money, when the party entitled to recall it, demands it.-* But if a new credit has been given to the principal since the payment, or if bills have been accepted, or if advances have been made, on the footing 313; 2 Liverm. on Agency, 260, 261, (edit 1818); Cox w. Prentice, ^ M. & Selw. 344 ; Hearsay v. Pruyn. 7 John. R. 179 ; Mowatt v. M'Lellan, 1 Wend. E. 173 ; Langley w. Warner, 1 Sandford, Superipr Ct. (N. Y.) B,. 209. In tiie Bank of U. States v. The Bank of Washington, 6 Peters, K. 8, it was held, that where a judgment had been recovered for the plaintiff, and the money had been received by the agent, notice to the agent to retain it, the other party intending to bring a writ of error to reverse the judgment, would not, in case of a reversal, justify an action against the agent. On that occasion, Mr. Justice Thompson, in delivering the opinion of the Court, said : " When the money was paid, there was a legal obligation; on the part of the Bank of Washington, to pay it ; and a legal right, on the part of Triplett and Neale, to demand and receive it, or to enforce payment of it under the execution. And whatever was done under that execution, whilst the judgment was in full force, was valid and binding on the Bank of Washington, so far as the rights of strangers or third persons are concerned. The reversal of the judgment cannot have a retrospective operation, and make void that which was lawful when done. The reversal of the judgment gives a new right, or cause of action, against the parties to the judgment, and creates a legal obligation, on their part, to restore what the other party has lost by reason of the erroneous judgment. And as, between the parties to the judgment, there is all the privity necessary to sustain and enforce such right. But, as to strangers, there is no such privity ; and, if no legal right existed, when the money was paid, to recover it back, no such right could be created by notice of an intention so to do. Where money is wrongfully and illegally exacted, it is received without any legal right or authority to receive it ; and the law, at the very time of payment, creates the obligation to refund it. A notice of intention to recover back the money does not, even in such cases, create the right to recover it back ; that results from the illegal exaction of it, and the notice may serve to rebut the inference, that it was a voluntary payment, or made through mistake." But a prize agent, hold- ing prize proceeds, if he pay over the money after an appeal is entered, pays it over at his own peril ; for the appeal suspends the former sentence. Penhallow V. Doane, 3 Ball. R. 54. See Bamford v. Shuttleworth, 11 Adolph. & Ell. 926. 1 3 Chitty on Comm. and Manuf. 313 ; Paley on Agency, by Lloyd, 388, 389 ; 2 Liverm. on Agency,, 264, (edit. 1818) ; BuUer v. Harrison, Cowp. R. 565; Cox V. Prentice, 3 M. & Selw. 344 ; Langley v. Warner, 1 Sandford, Superior Ct. (N. Y.) k! 209. 372 AGENCY, [CH. X. of it, the payment cannot be recalled.^ A fortiori, if the money has been paid over to the principal before notice of the recall, the agent will not be liable, unless, indeed, the receipt of the money by the agent was obviously fraudulent and illegal, or his authority to receive it was known to himself to be utterly void.^ 1 Chitty on Comm. and Manuf. 313; BuUer v. Harrison, Cowp. 665; Paley on Agency, by Lloyd, 388, 389 ; 2 Liverm. on Agency, 264-266; (edit. 1818); Mowatt t). M'Lellan, 1 Wend. R. 173. 2 Chitty on Comm. and Manuf. 313 ; Cary v. Webster, 1 Str. 480 ; Campbell V. Hall, Cowp. K 204 ; Edwards v. Hodding, 5 Taunt. 515 ; Snowden v. Davis, 1 Taunt. K. 359 ; Kipley v. Gelston, 9 Johns. K. 201 ; Smith on Merc. Law. 80-82, (2d edit.) ; Id. p. 143, 144, (3d edit. 1843) ; Buller v. Harrison, Cowp. R. 565 ; Paley on Agency, by Lloyd, 388-390 ; Seidell v. Peqkworth, 10 Serg. & R. 442 ; Frye v. Lockwood, 4 Cowen, R. 454. Mr. Smith (on Merc. Law, p. 143-145, 3d edit. 1843,) on this subject, says: "If the agent exceed his authority, so that his principal is not bound, he will himself be liable for the damage thus occasioned to the other contracting party, although he may have been innocent of any intention to defraud. The question, whether an agent is personally liable for money paid to him for the use of his principal, under cir- cumstances which would entitle some person to recover it from that principal, involves much difficulty. In the first place, it is clear, that if the agent have, without notice to act otherwise, paid over the money to his principal, he never can be called on to refund it. But in Cox v. Prentice, it was laid down by the Court on the authority of Buller v. Harrison, that an agent who receives money for his principal, is liable as a principal, so long as he stands in his original situation, and until there has been a change in circumstances by his having paid over the money to his principal, or done what is equivalent to it. In that case, the defendant received a bar of silver from his principal, and sold it to plaintiff at a price calculated with reference to the number of ounces which, on assay, it was thought to contain ; it turned out afterwards that it contained fewer ounces than had been supposed, and the plaintiff was held entitled to recover the money overpaid from the defendant, who had not yet handed it to its principal, although lie had forwarded an account to him in which he was credited with the full sum, but which was still unsettled. In Buller v. Harrison, the defendant was an in- surance broker ; and the money, sought to be recovered, was paid by the plain- tiff, an underwriter, in discharge of a loss, which turned out to be foul. It will be observed that in neither of these cases could the principal himself, ever, by possibility, have claimed to retain the money for a single instant, had it reached his hands ; the payment having been made by the plaintiff under pure mistake of facts, and being void, ab initio, as sooii as that mistake was discovered, so that ^ the agent would not have been estopped from denying his principal's title to the money any more than the factor of J. S., of Jamaica, who has received money paid to him under the supposition of his employer being J. S., of Trinidad, would be estopped from retaining that money against his employer, in order to CH. X.] LIABILITIES TO THIRD PERSONS. S^S § 301. Various examples might be put to illustrate this doctrine. Thus, where money has been paid to an agent to avoid an illegal distress, or an illegal claim ; as to the bailiff of a sheriff, to avoid an illegal distress ; or, where money has been paid to a collector for an illegal duty ; and notice of the objection is given to the agent, or collector, before he pays it over ; the party, paying it, may recover it back from the agent, or collector, notwithstanding he has since paid it over to the principal.^ But, if the illegaKty is unknown to the agent, and return it to the person, who paid it to him. Besides which, in Buller v. Harri- son, had the agent paid the money he received from the underwriter, in dis- charge of the foul loss, over to his principal, he would have rendered himself an instrument of fraud, which, as we have already seen, no agent can be obliged to do. Except in such cases as these, the maxim, Respondeat superior, has been applied, and the agent held responsible to no one but his principal. Thus in Stephens v. Badcock, the defendant, as attorney's clerk, having received by his master's orders, rents for the plaintiff, a client ; it was held that he was not responsible to the plaintiff, though his employer, the attorney, has since become a bankrupt ; nor can an action for money had and received be brought against ' the agent who has received it on behalf of his principal, for the purpose of try- ing the existence of a right in that principal ; thus the right of a lord of a manor cannot be tried in an action against his steward for quitrent voluntarily paid ; and these decisions are but just, since, as the agent is estopped from question- ing the title of his principal, he would but for this rule of respondeat superior, be frequently exposed, without any defence, to two different suits, in respect of the same subject-matter. But an agent cannot defend himself even on the ground of payment over to his principal, if he receive money illegally from a party, who is not prevented from suing him by the rule, pari delicto potior est conditio defendentis. This was decided in Miller v. Aris, where the money was received by a gaoler from a prisoner for rent for a room illegally let to him, and paid over by the gaoler to his employers. Neither do the foregoing remarks extend to cases in which the money gets into the agent's hands, in consequence of a tort committed by him, under the directions of, or jointly with, his prin- cipal. Of course, if an agent pay money to his principal, which was not in- trusted to him for that purpose, he will not be discharged ; ex gr., if a stake- holder pay over the deposit before the condition on which it was to become ' due is performed." iPost, § 307; Snowden v. Davis, 1 Taunt. R. 359; Edwards u. Hodding, 5 Taunt. K. 815; Eipley u. Gelston, 9 Johns. R. 201; Bank of U. States w. Bank of Washington, 6 Peters, R. 8, 18; Tracy v. Swartwout, 10 Peters, R. 80; Elliot v. Swartwout, 10 Peters, R. 137 ; Frye v. Lookwood, 4 Cowen, R. 454; 2 Liverm. on Agency, 262-264, (edit. 1818) ; Smith, on Merc. Law, AGENCY. 32 Sy* AGENCY. [CH. X. no objection of that sort is made before he has paid over the money, he will not be liable therefor.^ 82, (2d edit); Id. Pt. 1, ch. 5, § 7, p. 143-145, (3d edit. 1843); Bend v. Hoyt, 13 Peters, K. 263; Allen v. M'Keen, 1 Sumner, E. 277, 278, 317; Miller v. Aris, 3 Esp. K. 231 ; S. C. cited Selwyn's Nisi Prius, 93, (8th edit.) ; Paley on Agency, by Lloyd, 393, 394. Mr. Paley has remarked, in p. 389, " It seems, however, that the right to recover against the agent is to be understood with some qualification. For it has been held that an action will not lie against a mere collector or receiver, for the purpose of trying a right in the principal, even though he have not paid over the money. It is said in one case, that if the defendant can show the least color of right in his principal, it is sutEcient. And Lord Chief Justice Lee declared that the right to an inheritance should not be tried in an action for money had and rec'eived, brought against the receiver. In a ease where the question was much con- sidered, it was held that an action could not be supported against a steward for quitrent voluntarily paid, in order to bring the lord's right in question, but that it must be against the lord." 1 Ibid. CH. XI.] LIABILITIES OF PUBLIC AGENTS. S^S CHAPTER XI. LIABILITIES OF PUBLIC AGENTS ON CONTRACTS. § 302. Hitherto we have been considering the personal Habihty of agents on contracts with third persons, in cases of mere private agency. But a very diflferent rule, in general, prevails in regard to public agents ; for, in the ordinary course of things, an agent, contracting in behalf of the government, or of the public, is not personally bound by such a contract, even though he would be by the terms of the contract, if it were an agency of a private nature.^ The reason of the distinction is, that it is not to be presumed, either that the public agent means to bind himself personally, in acting as a functionary of the government, or that the party dealing with him in his public character, means to rely upon his individual responsibility.^ On the contrary, the natural presumption in such cases is, that the contract was made upon the credit and responsibility of the government itself, as possessing an entire ability to fulfil all its 1 Macbeath». Haldimand, 1 Term R. 172; Bowen v. Morris, 2 Taunt. R. 374, 387; Unwin v. Woolseley, 1 Term R. 674; Brown v. Austin, 1 Mass. R. 208 Dawes v. Jackson, 9 Mass. R. 490 ; Walker r. Swartwout, 12 John. R. 444 2 Liverm. on Agency, 269-280, (edit. 1818) ; Ghent v. Adams, 2 Kelly, 214 Copes V. Matthews, 10 Sm. & Mar. 398; Parks v. Ross, 11 Howard, 362; 3 Chitty on Comm. and Manuf. 213, 214 ; Paley on Agency, by Lloyd, 376, 377 ; Bainbridge v. Downie, 6 Mass. R. 253 ; Fox v. Drake, 8 Cowen, R. 191 ; Os- borne V. Kerr, 12 Wend. R. 17; Jones v. La Tombe, 3 Dall. 384 ; Rathbone v. Budlong, 15 John. R. 1 ; Mott v. Hicks, 1 Cowen, R. 513 ; Sheffield v. Watson, 3 Caines, 69 ; Bronson v. Woolsey, 1 7 John. R. 46 ; Hodgson v. Dexter, 1 Crancb, R. 345, 363, 364 ; Post, § 306, note ; Bernard v. Torrance, 5 Gill & John. R. 383 ; Enloe v. Hall, 1 Humph. Tenn. R. 303 ; Tutt v. Hobbs, 17 Misso. 486 ; Miller ». Ford, 4 Rich. 376 ; Dwinelle v. Henriquez, 1 Calif. 387 ; Ogden v. Raymond, 22 Conn. 379. 3 2 Kent, Comm. Lect. 41, p. 632, 633, (4th edit.) S76 AGENCY. [CH. XI. just contracts, far beyond that of any private man ; ^ and that it is ready to fulfil them not only with good faith, but with punctilious promptitude, and in a spirit of hberal courtesy. Great public inconveniences would result from a different doc- trine, considering the various public functionaries, which the government must employ, in order to transact its ordinary busi- ness and operations; and many persons would be deterred from accepting important offices of trust under the government, if they were held personally liable upon all their official contracts.^ Take one example only ; Every officer in the army or navy, from the commander-in-chief downwards, who should enter into any official contract, or give any orders, which should in- volve a contract, as, for example, a contract for supplies, or for provisions, or for military materials, might be held personally liable thereon, to his utter ruin.^ By parity of reasoning, upon any such contract, entered into by a public agent on behalf of the government, no suit lies by him ; but it must be brought in the name of the government, against the other contracting party.* 8 303. This principle not only applies to simple contracts both parol and written, but also to instruments under seal, which are executed by agents of the government in their own names, and purporting to be made by them on behalf of the gov- ernment ; for the like presumption prevails in such cases, that the parties contract, not personally, but merely officially, within the sphere of their appropriate duties.^ Thus, a charter-party. ' Tippets V. Walker, 4 Mass. K. 595, 697 ; 2 Kent, Comm. Leot. 41, p. 632, 633, (4tli edit.) 2 Maobeatli v. Haldimand, 1 Term K. 172, 181, 182 ; Hodgson v. Dexter, 1 Cranoh, B. 345, 363, 364 ; Jones v. La Tombe, 8 Dall. 384. 3 Macbeatliu. Haldimand, 1 Term K. 172, 180-182; Hodgson v. Dexter,! Cranch, 345, 363, 364 ; Bronson v. Wolsey, 17 Johns. E. 46 ; Belknap v. Eein- hart, 2 Wend. K. 375. 4 Bainbridge u. Downie, 6 Mass. K. 253 ; Bowen v. Morris, 2 Taunt. E. 374 ; Irish V. Webster, 5 Greenl. R. 171. 5 3 Chitty on Comm. and Mamif. 213, 214 ; Stinehfield v. Little, 1 Greenl. B. CH. XI.J LIABILITIES OF PUBLIC AGENTS. 377 sealed and executed by a public officer in his own name, but describing himself as acting on behalf of the king or govern- ment, for purposes connected with the public service, has been held not to bind him personally, but to be merely obligatory upon the government.^ So, an indenture, executed between A. B., describing himself as " secretary of war," of the one part, and C. D. of the other part, for a demise of certain build- ings for public purposes, and for a certain period, and contain- ing a covenant, on the part of A. B., to pay the stipulated rent during that period, has been held not to bind A. B. personally ; but to bind the government alone.^ § 304. The same principle applies to cases, where public officers, contracting for a public purpose, afterwards, upon a set- tlement of accounts with the other contracting party, strike a balance, and in writing promise to pay that balance on a specific day, signing their names, with their official designations an- nexed, as, for example, as commissioners ; for such a written document is quite consistent with an intention not to incur any personal responsibility; but merely to apply the public funds, which might be in their hands at the time prescribed, towards the discharge of the public debt.^ § 305. The same principle applies to the case, where a pub- lic officer receives moneys officially, for the purpose of applying the same to the discharge of the debts, or allowances, of the government J for, in such a case, he acts merely as an agent of the governmerit, and the only obligation or duty, which arises, 231 ; Macbeath v. Haldimand, 1 Term K. 172, 181, 182 ; Hodgson v. Dexter, 1 Cjeanch, K. 345, 363, 364; Osborne u. Kerr, 12 Wend. K. 179; Walker v. Swartwout, 12 John. 444 ; Bowen v. Morris, 2 Taunt. R. 379 ; Smith on Merc. Law, B. 1, ch. 5, § 7, p. 141, 142, (3d edit. 1843.) 1 Unwin v. Woolseley, 1 Term K. 674, 678 ; Walker v. Swartwout, 12 John. R. 444. 2 Hodgson V. Dexter, 1 Cranch, 345, 363, 364. 3 Fox V. Drake, 8 Cowen, R. 191. In this case it was said that he would be personally liable, if he had public funds in his hands at the time. But see post, § 305, note. 378 AGENCY. [CH. XI. is to the government, from his official character ; and not any personal responsibility to third persons. Hence, it has been held, that no suit will lie against a person, who is secretary of war, for refusing to pay over moneys, which he has received to distribute among certain claimants, as retiring allowances, be- stowed upon them by the bounty of the government.^ 1 Gidley v. Lord Palmerston, 3 Brod. & Bing. 275. On the occasion of de- livering tlie opinion of the Court in Gidley v. Lord Palmerston, Lord Chief Justice Dallas said : " On these facts, the question arises, whether, upon all or any of the counts in the declaration, the present action can be maintained ; and we think, that it cannot be maintained. It is not pretended, that the defendant is to be charged in respect of any express undertaking, or agreement, be- tween him and the testator, or in respect of any other character than his public and official character of secretary at war. It is in that character, and in that only, that his duty is alleged to arise ; being, therefore, a duty as between him and the crown only, and not resulting from any relation to, or employment by, the plaintiff, or under any undertaking in any way to be personally responsible to him. The money received is granted by the crown, subject oniy to the dis- position or control of the defendant, as the agent or officer of the crown, amd responsible to the crown for the due execution of the trust or duty so committed. There is, therefore, no duty, from which the law can imply a promise to pay the testator, during his life, or to his executor after his death ; nor can money be said to have been had and received to the use of the testator, which money be- longed to the crown, being received as the money of the crown, and the party receiving it being responsible only to the crown in his public character. On this view of the case, it appears to us, that this action cannot be maintained. But it must fail also on another and a wider ground. This is an action brought against the defendant, as paymaster-general, for an alleged breach of an impHed undertaking, said to attach upon him in that character. With reference to this ground, it will bei sufficient to advert to a class of cases, too well known and established to require to be more particularly mentioned, and which in sub- stance and result, have established, that an action will not lie against a public agent for any thing done by him in his public character, or employment, though alleged to be, in the particular instance, a breach of such employment, and con- stituting a particular and personal liability. Such persons, said Lord Mansfield, in one of the cases cited at the bar, are not understood personally to contract; and, in the same case, it was observed, by Mr. Justice Ashhurst : ' In great ques- tions of policy, we cannot argue from the nature Of private agreements.' ' Great inconveniences would result from considering a governor, or commader, as per- sonally responsible.' ♦ No man would accept of any office of trust under govern- ment, upon such conditions. And, indeed, it has frequently been determined, that no individual is answerable for any engagements, which he enters into on their behalf. There is no doubt, but the crown will do ample justice to the CH. XI.] LIABILITIES OF PUBLIC AGENTS. 879 8 806. But, although this is the general rule in relation to public agents, yet it is founded upon a mere presumption, and is liable to be rebutted by circumstances, which clearly establish an intention between the parties to the contract to create and rely upon a personal responsibility on the part of a public agent.-' For there is nothing in the general principles or policy of the law, which forbids an agent from waiving his official immunity, and from making himself personally responsible on any contract, made for and on behalf of the government. Where it is not known to the other party, that the agent is acting for the public, it may fairly be presumed, that he intends to trust to the personal credit and responsibility of the agent, even although it may not be to his exclusive credit and responsi- plaintiffs demands, if they be ■well founded.' Mr. Justice BuUer, in the case, added : ' Where a man acts as agent for the public, and treats in that capacity, there is no pretence to say, that he is personally liable.' And, in a subsequent case, it is held, that a servant of the crown, contracting on the part of the govern- ment, is not personably answerable. I am aware that these cases are not, in their circumstances, precisely similar to the present ; and, perhaps, in respect of some of the circumstances belonging to the present case, I may personally have doubted longer than, I am now satisfied, I ought to have done. But, in their doctrine, they go to this, that, on principles of public policy, an action will not lie against persons, acting in a public character and situation, which, from their very nature, would expose them to an iniinite multiplicity of actions, that is, to actions at the instance of any person, who might suppose himself aggrieved. And, though it is to be presumed, that actions improperly brought would fail, and, it may be said, that actions properly brought should succeed ; yet, the very liability to an unlimited multiplicity of suits would, in all probability, prevent any proper or prudent person from accepting a public situation, at the hazard of such peril to himself" But see Myrtle v. Beaver, 1 East, R. 135 ; Kice v. Chute, 1 East, K. 579; Freeman v. Otis, 9 Mass. R. 272; Fox v. Drake, 8 Cowen, R. 191 ; Ante, § 304, and note. Qusere, if a writ of mandamus might not lie, in such a case, to compel the oiBScer to pay over the public funds in his hands, if appropriated to that purpose ? See Kendall, Postmaster-General, v. United States, 12 Peters, R. 527. There is some difficulty in reconciling all the authorities, as to the non-payment of moneys in their hands, and other omissions of duty by public officers ; and as to the point how far, and when they are re- sponsible to third persons. See Kowning v. Goodchild, 3 Wilson, R. 443 ; S. C. 5 Burr. 2716 ; Stock v. Harris, 5 Burr. 2709 ; Barnes v. Foley, 5 Burr. 2711 ; Bend v. Hoyt, 13 Peters, R. 263. 1 Copes V. Matthews, 10 Sm. & Mar. 398. 380 AGENCY, [CH. XI. bility.^ But the same result may arise, where there is an ex- press personal responsibility, incurred by a known public agent ; or where it may fairly be implied from all the attendant circum- stances.^ In cases of such an implied responsibility, the proofs ought to be exceedingly cogent and clear, in order to create such personal responsibility in a known public agent, and to repel the presumption of law, that he contracts only on the credit of the government,^ [It is, however, as in other cases, a question for the jury, to whom was the credit given.'*] The same principle, with the same qualifications, prevails in the Scottish law. A public agent is not ordinarily liable on a con- tract made by him on behalf of the government ; but he may, if he pleases, incur a personal liability on such contract ; and he will be deemed so to intend, when he draws a bill or note in his own name under the contract.^ § SO7. Where, however, money is obtained from third per- sons, by public officers, illegally, but under color of office, it may be recovered back from them, if notice has been given by the party, at the time, to the officer, although the money has been paid over to the government ; and if it has not been paid over, but it remains in the officer's hands, it may be recovered back, even without notice.® And it will make no diiference in 1 Swift V. Hopkins, 13 John. K. 313. 2 Macbeath v. Haldimand, 1 Term E. 172, 180, 181 ; Gill v. Brown, 12 John. R. 385 ; Freeman .«. Otis, 9 Mass. E. 272. 3 Ibid. ; Bainbridge v. Downie, 6 Mass. E. 253 ; Freeman v. Otis, 9 Mass. K. 272; Dawes v. Jackson, 9 Mass. E. 490; Osborn v. Kerr, 12 Wend. K. 179; Belknap v. Eeinhart, 2 Wend. E. 375; Fox v. Drake, 8 Cowen, E. 191. It seems almost impossible to reconcile the case of Sheffield v. Watson^ 3 Gaines, E. 69, with the principles here laid down; or, indeed, with the general bearing of the other authorities on this subject. Indeed, it was shaken to its foundation by the decision in Walker v. Swartwout, 12 John. E. 444, 448. See 2 Liverm, on Agency, 273-279, (edit. 1818.) 4 Brown v. Eundlett, 15 N. H. E. 360 ; Hamlnarskold v. Bull, 9 Eich. E. 484. 5 Thomson on Bills of Exchange, 229, 230, (2d edit. 1836.) 6 Ante, § 301 ; Barnes v. Foley, 5 Burr. 2711 ; Frye u.*Lockwood,.4 Cowen, E. 454; Tracy v. Swartwout, 10 Peters, E. 80 ; Elliot v. Swartwout, 10 Peters,. CH. XI.J LIABILITIES OP PUBLIC AGENTS. 381 the case, that the payment was originally made under a miscon- ception or misconstruction of the law, by both or by either of the parties.^ We shall hereafter have occasion to examine, how far, and under what circumstances, public agents are liable for their own torts, and for the torts of sub-agents employed by or under them.^ § SO7 a. In respect to the acts and declarations and repre- sentations of public agents, it would seem that the same rule does not prevail, which ordinarily governs in relation to mere private agents. As to the latter, (as we have seen,) the prin- cipals are in many cases bound, where they have not author- ized the declarations and r^resentations to be made.^ But, in cases of public agents, the government, or other public author- ity, is not bound, unless it manifestly appears that the agent is acting within the scope of his authority, or he is held out as having authority to do the act, or is employed, in his capacity as a public agent, to make the declaration or representation for the government. Indeed, this rule seems indispensable, in order to guard the public against losses and injuries arising from the fraud or mistake, or rashness and indiscretion of their agents.* And there is no hardship in requiring from private persons, dealing with pubhc officers, the duty of inquiry, as to their real or apparent power and authority to bind the govern- ment. E. 137 ; Kipley v. Gelston, 9. John. E. 201 ; Ante, § 300, and note. See Bend V. Swartwout, 13 Peters, E. 263. 1 Barnes v. Tolay, 5 Burr. 2711; Tracy v. Swartwout, 10 Peters, E. 80 ; Elliot u. Swartwout, 10 Peters, E. 137; Eipley v. Gelston,- 9 John. E. 201 ; Ante, § 300, and note. See Bend v. Swartwout, 13 Peters, E. 263. '8 Post, §320-322. • 3 Ante, §126, 133, 134. ■» Lee V. Munroe, 7 Cranch, K. 366. . 382 AGENCY. [CH. XII. CHAPTER XII. LIABILITY OF AGENTS FOR TORTS. § 308. We come, in the next place, to the consideration of the liability of agents to third persons, in regard to torts or wrongs done by them, in the course of their agency ; and this liability may be either of private agents or of pubHc agents. Let us first consider that of private agents. And here the dis- tinction ordinarily taken is between acts of misfeasance or positive wrongs, and nonfeasances or mere omissions of duty by private agents. The law upon this subject, as to principals and agents, is founded upon the .same analogies as exist in the case of masters and servants. The master is always liable to third persons, for the misfeasances, and negligences, and omis- sions of duty of his servant, in all cases within the scope of his employment.-' So the principal, in like manner, is liable to third persons for the like misfeasances, negligences, and omissions of duty of his agent, leaving him to his remedy over against the agent in all cases, where the tort is of such a nature as that he is entitled to compensation.^ And this liability is ■ 1 Paley on Agency, by Lloyd, 396, 397, and notes ; Id. 305, 306 ; Com. Dig. Action on the Case for negligence, A. 2, A. 5, A. 6 ; 3 Chitty on Comm. and Manuf. 214 ; Story on Bailments, § 400 ; Morse v. Slue, 1 Vent. 238 ; Clarke V. City Corporation of Washington, 12 Wheat. K. 40; Eandleson v. Murray, 3 Nev. & Perry, 239 ; S. C. 8 Adolph. & Ellis, 109 ; Ante, § 217. a Lane v. Cotton, 12 Mod. 488, 489 ; Perkins v. Smith, Sayer, E. 40, 41; Post, § 452 to 457. See also Quarman v. Burnett, 6 Mees. & Welsh. 499; Priestly v. Fowler, 3 Mees. & Welsh. 1 ;'Milligan v. Wedge, 12 Adolph. & Ell. 737, 742 ; Schieffelin v. Harvey, 6 John. E. 170 ; Post, § 452-457 ; U. States v. Halberstadt, 1 Gilp. E. 262. As to the cases in -which a principal may recover compensation from his agent, for the tort of the latter, see Parebrother v. Ansley, 1 Camp. E. 343 ; Paley on Agency, by Lloyd, 152, 153 ; Ante, § 201. As to the cases in -which an agent may, or may not, recover compensation for torts CH. XII.] LIABILITY OF AGENTS FOR TORTS. 383 not limited to principals, who are mere private persons ; but extends also to private corporations, for the misfeasances, neg- ligences, and omissions of duty of their agents, in the course of their employment, whenever they are duly appointed.^ The done by authority of his principal, see 2 Liverm. on Agency, 321-325, (edit. 1818) ; Merryweather v. Nixon, 8 Term R. 186 ; Farebrother v. Ansley, 1 Camp. K. 343; Stephens v. Elwall, 4 M. & Selw. 259, 261; Martyn v. Blithman, Yelv. E. 197; Fletcher v. Harcott, Hutton, R. 55; Adamson v. Jarvis, 4 Bing. R. 66. In this last case, Lord Chief Justice Best, in delivering the opinion of the Court, said : "Auctioneers, brokers, factors, and agents, do not take regular indemnities. These would be indeed surprised, if, having sold goods for a man, and paid him the proceeds, and having suffered afterwards in an action at the suit of the true owners, they were to find themselves wrong- doers, and could not recover compensation from him who had induced them to do the wrong. It was certainly decided in Merryweather v. Nixon, that one wrong-doer could not sue another for contribution. Lord Kenyon, however, said, ' that the decision would not affect cases of indemnity, where one man em- ployed another to do acts, not unlawful in themselves, for the purpose of assert- ing a right.' This is the only decided case on the subject, that is intelligible. There is a case of Walton v. Hanbury and others, but it is so imperfectly stated that it is impossible to get at the principle of the judgment. The case of Phillips V. Briggs was never decided. But the Court of Chancery seemed to consider the case of two sheriffs of Middlesex, where one had paid the damages in an action for an escape, and sued the other for contribution, as like the case of two jointobligors. From the inclination of the Court on this last case, and from the concluding part of Lord Kenyon's judgment in Merryweather v. Nixon, and from reason, justice, and sound policy, the rule, that wrong-doers cannot have redress, or contribution, against each other, is confined to cases, where the person seeking redress must be presumed to have known that he was doing an unlawful act. If a man buys the goods of another, from a person who has no authority to sell them, he is a wrong-doer to the person whose goods he takes ; yet, he may recover compensation against the person who sold the goods to him, although the person who sold them did not undertake that he had a right to sell, and did not know that he had no right to sell. That is proved by Medina v. Stoughton, Sanders v. Powell, Crosse v. Gardner, and many other cases. These cases rest on this principle, that, if a man having the possession of property, which gives him the character of owner, affirms that he is owner, and thereby induces a man to buy, when, in point of fact, the affirmant is not the owner, he is liable to an action. It has been said that he is, because there is 9, breach of contract to rest the action on, and, that there is no contract in this case. This is not the true principle. It is this : he who affirms, either what he does, not know to be true, or knows to be false, to another's prejudice and his own gain, is, both in morality and law, guilty of falsehood, and must answer in damages." ' Yarborough v. Bank of England, 16 East, R. 6 ; Smith v. The Birmingham 884* AGENCY. [CH. XII. agent is also personally liable to third persons, for his own misfeasances and positive wrongs.-' But he is not, in general, (for there are exceptions,^) liable to third persons for his own nonfeasances or omissions of duty, in the course of his employ- ment.^ His liability, in these latter cases, is solely to his prin- cipal; there being no privity between him and such third persons ; but the privity exists only between him and his prin- cipal.* And hence the general maxim", as to all such negli- gences and omissions of duty, is, in cases of private agency, Respondeat superior.^ Whether the agent has been guilty of Gas Company, 1 Adolpb. & Ell. 526 ; Salem Bank v. Gloucester Bank, 17 Mass. R. 1 ; Foster v. Essex Bank, 17 Mass. K. 479 ; Kiddle v. Proprietors of Locks and Canals on Merrimack Kiver, 7 Mass. K. 169 ; Townsend v. Susqnehannah Turnpike Road, 6 John. R. 90; Gray D. Portland Bank, 3 Mass. R. 364; Fowle V. Common Council of Alexandria, 3 Peters, R. 398, 409 ; Rabassa v. Orleans Navigation Company, 5 Miller, Louis. R. 463, 464 ; 2 Kent, Comm. Lect. 33, p. 283, (4tla edit.) ; Goodloe v. City of Cincinnati, 4 Hamm. Ohio R. 500 ; Hay V. Cohoes Co. 3 Barbour, Sup. Ct. R. (N. Y.) 42. 1 Story on Bailments, § 404 ; Post, § 320. 2 Post, § 314, 315. 3 Paley on Agency, by Lloyd, 296-399 ; Lane v. Cotton, 12 Mod. 488 ; S. C. 1 Lord Raymond, 646, 655 ; 3 Gliitty on Comm. and Manuf. 214 ; Story on Bailm. § 400, 404, 507 ; Perkins v. Smith, Sayer, R. 40, 42. ■* Paley on Agency, by Lloyd, 395-397, and notes ; Lane v. Cotton, 12 Mod. 488 ; S. C. 1 Lord Raymond, 646, 655 ; Perkins v. Smith, Sayer, R. 40, 42 ; Cameron v. Reynolds, Cowp. R. 403 ; Rowning v. Goodchild, 5 Burr. 2721 ; S. C. 3 Wills. R. 454 ; Story on Bailm. § 402, 404 ; Smith on Merc. Law, 82, (2d edit.) ; Id. 145, 146, (3d edit. 1843) ; Morse v. Slue, 1 Vent. R. 238 ; Quarman c. Burnett, 6 Mees. & Welsh. 499 ; Rapson «. Cubitt, 9 Mees. & Welsh. 710; Stone v. Cartwright, 6 Term R. 411; Milligan v. Wedge, 12 Adolph. & Ell. 737; Winterbottom v. Wright, 10 Mees. & Welsh. 109, 111 ; Ante, § 201, 217 a; Post, § 452, 453, 453 a, 453 h, 453 c, 454 a. 5 Lord Holt, in his celebrated judgment in Lane v. Cotton, 12 Mod. R. 488, expounded this doctrine at large. " It was objected at the bar," (said he) " that they have this remedy against Breese. I agree, if they could prove, that he took put the bills, they might sue him for it ; so they might anybody else, on whom they could fix that fact. But, for a neglect in him, they can have no remedy against him ; for they must consider him only as a servant; and then his neglect is only chargeable on his master or principal ; for a servant or deputy, quatenus such, cannot be charged for neglect, but the principal only shall be charged for it. But, for a misfeasance, an action will lie against a servant or deputy, but not quatenus a deputy or servant, but as a wrong-doer. As, if a CH. XII.J LIABILITY OF AGENTS FOR TORTS, 385 negligence or not, is not ordinarily a question of law, but of fact, under all the circumstances.^ § 309. The distinction, thus propounded, between misfea- sance and nonfeasance, between acts of direct, positive wrong, and mere neglects by agents, as to their personal liability there- for, may seem nice and artificial, and partakes, perhaps, not a little of the subtilty aiM over-refinement of the. old doctrines of the common law. It seems, however, to be founded upon this ground, that no authority whatsoever from a superior can furnish to any party a just defence for his own positive torts or trespasses ; for no man can authorize another to do a positive wrong.^ But, in respect to nonfeasances, or mere neglects, in the performance of duty, the responsibility therefor must arise from some express or implied obligation between particular parties, standing in privity of law or contract with each other ; and no man is bound to answer for any such violations of duty or obligation, except to those, to whom he has become directly bound or amenable for his conduct. Whether the distinction be satisfactory or not, it is well established ; although some niceties and difficulties occasionally occur in its practical appli- cation to particular cases. § 810. It may be useful to illustrate each of these proposi* bailiff, who has a warrant from the sheriff to execute a writ, suffer his prisoner, . by neglect, to escape, the sheriff shall be charged for it, and not the bailiff. But, if the bailiff turn the prisoner loose, the action may be brought against the bailiff himself; for then he is a kind of wrong-doer, or rescuer; and it will lie against any other, that will rescue in like manner. And for this diversity, vide 1 Leon. 146 ; 3 Cro. 143, 175 ; 41 Ed. 3, 12 ; 1 Ro. 78 ; which is not well re- ported, but the inference may be well made from it." S. C. 1 Ld. Kaym. 646, 653. See also Morse v. Slue, 1 Vent. 238, 239 ; Hall v. Smith, 2 Bing. E. 267 ; Bradford v. Eastburn, 2 Wash. Cir. K. 219 ; Denny v. Manhattan Co. 2 Denio,- R. 115 ; Ante, § 201, 217 a; Post, § 452-461. 1 Foot V, Wiswall, 14 John. E. 304 ; Savage u. Birckhead, 20 Pick. R. 167. 2 Paley on Agency, by Lloyd, 396-398 ; 3 Chitty on Comm. and Manuf 214; Perkins v. Smith, 1 Wilson, R. 328 ; S. C. Sayer, R. 41 ; 2 Liverm. on Agency, 257, 258, (edit. 1818) ; Stephens u.Tllwall, 4 M. & Selw. 259 ; Farebrother v.. Ansley, 1 Camp. R. 343 ; Morse v. Slue, 1 Vent. 238. AGENCY.' 33 386 AGENCY. [CH. XII. tions by some cases which have been treated as clear, or which have undergone judicial decision. And, in the first place, as to the non-liability of agents for their nonfeasances and omissions of duty, except to their own principals. Thus, if the servant of a common carrier negligently loses a parcel of goods, intrusted to him, the principal, and not the servant, is respon- sible to the bailor, or the owner .^ Sb, if an under sheriff is guilty of a negligent breach of duty, an action lies by the injured party against the high sheriff, and not against the dep- uty personally, for his negligence.^ So, if the servant of a blacksmith so negligently conducts himself in shoeing a horse, that the horse is consequentially injured, or afterwards becomes lame, the master, and not the servant, will be liable for the negligent injury.^ But, if the servant, in shoeing the horse, has pricked him, or has maliciously or wantonly lamed him, an action will lie personally against the servant himself.* So, the mere omission of a servant to deliver goods, intrusted to hira by his master, when demanded by the real owner, will not amount to a conversion of the goods, if, at the time, the ser- vant states his want of authority to deliver them ; and he has no knowledge of the true ownership.^ So, it has been said, if an agent is guilty of any deceit, or fraud, or false warranty, 1 3 Chitty on Comm. and Manuf. 214 ; Lane v. Cotton, 12 Mod. 488. 2 Cameron v. Reynolds, Cowp. K. 403 ; Paley on Agency, 396, 397, and notes. See Morse v. Slue, 1 Vent. 238. 3 1 Black. Comm. 431 ; Story on Bailm. § 400, 402. See Paley on Agency, by Lloyd, 397, and note ; Post, § 453. In 2 Black. Comm. 481, it is laid down, " If a smith's servant lames a horse, while shoeing him, an action lies against the master, and not against the servant." The law, as thus laid down, has been doubted by some commentators. See Paley on Agency, by Lloyd, 397, note (e), and Mr. (now Mr. Justice) Coleridge's edition of 2 Blackstone's Comm. 431, note. The doubt seems to be founded upon this ; whether it is not an act of misfeasance, and not merely negligence. See 1 Chitty's Black. Comm. 431, note. The question, after all, may turn mainly upon this, whether the injury be direct or consequential only. See also Hay v. Cohoes Co. 3 Barbour, Sup. Ct. (N. T.) R. 43. 4 Story on Bailm. §402, 409 ; Paley on Agency, by Lloyd, 397, and note. 5 Alexander v. Southey, 5 Barn. & Aid. 247 ; Mires v. Sblebay, 2 Mod. 242. CH. XII.] LIABILITY OP AGENTS FOR TORTS. 387 in the business or employment of his principal, as, if he know- ingly sells or warrants corrupt wines, or other things fraud- ulently disguised, for and by the authority of his principal, he is not personally responsible therefor to the buyer; but his master alohe is liable.^ But it may well be doubted, whether an agent can shelter himself from personal responsibility, where he thus directly and knowingly cooperates in a deceit, or mis- representation, or fraud, to the injury of a third person, although he is authorized to do so by his principal; for it is an illegal act, and contrary to sound morals.^ §311. In the next place, as to the liability of agents to tHIrd persons, for their own misfeasances and positive wrongs. In all such cases, (as we have seen,) the agent is personally responsible, whether he did the wrong intentionally, or igno- rantly, by the authority of his principal ; for the principal could not confer on him any authority to commit a tort upon the rights or the property of another.^ Thus, if goods are delivered by the owner to A to keep ; if he dehvers them to B to keep to the use of A, and B wastes or destroys them, the owner may have an action for the tort against B, although the bailment was not made to him by the owner ; for B is a wrong-doer.* So, if A delivers his horse to a blacksmith, and he delivers him to another blacksmith, who wantonly lames 1 Rail. Abridg. Action on the Case, 95, T. 1. 20 ; 1 Com. Dig. Action on the Case for Deceit, B. ; 3 Chitty on Comm. and Manuf. 214 ; Paley on Agency, by Lloyd, 152 ; Id. 30. See Southerne v. How, Cro. Jac. 468 ; 2 MoUoy, Jur. Marit. B. 3, ch. 8, § 6 ; S. C. Bridgman, R. 126, 127 ; Hern v. Mchola, Salk. 289 ; Grammar v. Nixon, 1 Str. E. 653 ; Paley on Agency by Lloyd, 398, 399, and dote. 2 19 Hen. 6, 53; Com. Dig. Action on the Case for Deceit, B; Story on Equity Pleadings, § 232 ; 1 Story on Equity Jurisp. § 191, 192, 204 ; Paley on Agency, by Lloyd, 386 ; Ante, § 308. 3 Ante, § 309; Paley on Agency, by Lloyd, 398, 399 ; Lane v. Cotton, 12 Mod. 488 ; Perkins v. Smith, 1 Wils. R. 328 ; S. C. Sayer, R. 40, 42 ; Bush v. Steinman, 1 Bos. & Pull. 404, 410 ; Richardson v. Kimball, 28 Maine R. 464. ■1 1 Roll. Abridg. Action sur Case, 90, O. 1, 1. 15; 3 Chitty on Comm. and Manuf. 214 ; Paley on Agency, by Lloyd, 307. S88 AGENCY. [CH. XII. him, A may have an action against the latter ; notwithstand* mg A did not authorize the bailment; for he is a wrong- doer.i § 312. A fortiori, if the principal is a wrong-doer, the agent, however innocent in intention, who participates in his acts, is a wrong-doer also. Thus, if an auctioneer should be employed by a sheriff to sell goods at auction, which he had unlawfully seized upon an execution, as, if the goods did not belong to the execution debtor ; the auctioneer, who should sell, would be Hable to an action for the tortious conversion, equally with the sheriff.^ So, if the agent of a merchant, who has received goods from a bankrupt, after a secret act of ba^- ruptcy, should, pursuant to orders from his principal, sell the goods, an action of trover would lie, in favor of the assignees, against the agent, however ignorant he might be of the defect of title ; for a person is guilty of a conversion, who inter- meddles with the property of another, without due authority from the true owner ; and it is no answer, that he acted as an 1 1 Roll. Abridg. Action sur Case, p. 90, O. 2, 1. 20 ; Paley on Agency, hy Lloyd, 396, 397 ; Ante, § 310. 2 Farebrother v. Ansley, 1 Carapb. K. 343 ; Adamson v. Jarvis, 4 Bing. E. 66 ; Post, § 339. See Van Brunt v. Sohenek, U Johns. R. 377. In this latter case, there had been a seizure of a ship by a revenue officer, for a supposed breach of law, and pending the proceedings under the seizure, he allowed another officer to take possession of, and use the ship. Afterwards, upon the trial, the ship was acquitted ; but the Court granted a certificate of probable cause of seizure. The owner of the ship brought an action of trespass against the officer who had used the ship, and the Court held that trespass did not lie. The Court seem to have thought, that the seizure, being made for a supposed breach of law, divested the possession of the owner. The same decision was made in Barrett v. Warren, 3 Hill, R. 348. But Mr. Justice Cowen doubted the cor- rectness of the doctrine, in a very elaborate opinion. Qusere, whether the pos- session of the owner would be divested by the illegal seizure of the sheriff so as to take away the right to maintain trespass against a subsequent holder under the sheriif. There is no doubt, that trover would lie in such a case. But tres- pass will lie against a mala fide purchaser, and against a second trespasser, who takes b'y trespass from the first. Ibid. ; Acker v. Camp, 23 Wend. R. 372 ; Wil- braham v. Snow, 1 Siderf. R. 438. CH. XII.l LIABILITY OF AGENTS FOR TORTS. 389 agent, under the authority of a person, supposed at the time to be entitled as the owner.-' § 313. But no action will ordinarily lie against an agent, for the misfeasance, or for the negligence of those, whom he has retained for the service of his principal, by his consent, or authority ; any more than it will lie against a servant, who hires laborers for his master at his request, for their acts ; un- less, indeed, in either case, the particular acts, which occasion the damage, are done by the orders or directions of such agent or servant.^ The action, under other circumstances, must be brought, either against the principal, or against the immediate actors in the wrong.^ §' 314. There is, however, one important exception to the rule already stated, as to the non-liability of agents ^to third persons for the negligences and omissions of duty of themselves and of their sub-agents, founded upon the principles of the maritime law. It is the case of masters of ships, who, al- though they are the agents, or servants of the owners, are, also, in many respects, deemed to be responsible, as principals, to third persons, not only for their own negligences and nonfea- sance, but also for the negligences, nonfeasances, and mis- feasances of the subordinate officers and others, employed by and under them.* We have already seen, that the master of 1 Stevens v. Elwall, 4 M. & Selw. 259 ; Sharland v. Mildon, 5 Hare, K. 469 ; Paley on Agency, by Lloyd, 399, 400; Perkins v. Smith, Sayer, K. 40, 42 ; S. C. 1 Wilson, R. 328 ; MoCombie v. Davies, 6 East, K. 538 ; Baldwin v. Cole, 6 Mod. 212. 2 Paley on Agency, by Lloyd, 402; Stone v. Cartwrigbt, 6 Term R. 411; 3 Chitty on Comm. and Manuf. 214. See Hills v. Ross, 3 Dall. R. 331 ; Nichol- son V. Mouhsey, 15 East, R. 383, 387, 388. See ante, § 201, 217 a, 313, 321, ■322. 3 Stone V. Cartwright, 6 Term R. 411 ; Brown v. Lent, 20 Verm. 532 ; Bush V. Steinman, 1 Bos. & Pull. 404 ; Denison v. Seymour, 9 Wend. R. 8, 12 ;■ Rap- son V. Curbitt, 9 Mees. & Welsh. 710 ; Quarman v. Burnett, 6 Mees. & Welsh. 710; Reedie v. London and Northwestern Railway Co. 4 Welsby, Hurlstone & Gordon, 255 ; Post, § 454, 454 a. Post, § 316, 317. 33* 390 AGENCY. fcH. XII. the ship is responsible upon contracts made by him in regard to the usual employment of the ship, and also upon contracts made by him for the repairs, and necessaries suppHed for the ship, as well as for the wages of the seamen, employed in nav- igating the ship.i This liability is founded upon the doctrine of the maritime law, which treats the master, not merely as an agent, contracting on his own behalf, as well as for the owner; but which, upon a broader policy, treats him as, in some sort, a subrogated principal, and qualified owner of the ship, pos- sessing authority in the nature of the exercitorial power, for the time being.^ And his liability, founded upon this consider- ation, extends not merely to his contracts, but (as we have, said) to his own negligences, and nonfeasances, and misfea- sances, as well as to those of his officers and crew.^- His re- pOnsibility for the officers and crew has this additional reason for its support, that he is thus induced to exercise a superior watchfulness over their acts and conduct ; and, if he were not so made liable for their acts and conduct, he might often, by his connivance in their frauds, misfeasances, negligences, or nonfeasances subject the shippers of goods, as well as the owr>- ers of the ship, to great losses and injuries, without their 1 Ante, § 36, 116, 117, 294-300. 2 Ante, § 36, 116, 117, 294, 295. Lord Hale, in Morse v. Slue, 1 "Vent. 238 ; S. C. 1 Mod. R. 85, (which was an action on the case against the master of a ship, for negligence in the carriage of goods, whereby they were stolen,) in allusion to this point, said : " It is objected, that the master is but a servant to the owners. Answer. The law takes notice of him as. more than a servant. It is known, that he may impawn the ship, if occasion be, and sell bona periiwa. ^ He is rather an officer than a servant." He added : " By the civil law, the master or owner is chargeable, at the election of the merchant." See also Mol- loy, B. 2, eh. 2, § 2. See also Dig. Lib. 5, tit. 9, 1. 1, § 2. See post, § 317, note, and ante, § 36 and 116. 3 Paley on Agency, by Lloyd, 398 ; Abbott on Shipp. Pt. 2, ch; 2, § 2; Id. Pt. 3jCh. 3, § 3 ; Id. Pt. 2, ch. 4, § 1, and notes, (Amer. edit. 1829) ; Purviance »• Argus, 1 Ball. K. 184, 185 ; 2 Valin, Lib. 2, tit. 7, art. 4, p. 171 ; Denison v. Seymour, 9 Wend. 1, 8, 15; Schieffelin v. Harvey, 6 Johns. R. 170; Ante, I 294, 295, 308, 817, note. CH. XII.] LIABILITY OF AGENTS FOR T(5RTS. 391 having any adequate redress.^ The policy of the maritime law has, therefore, indissolubly connected his personal responsibility with that of all the other persons on board, who are under his command, and are subjected to his authority. § 315. Hence it is, that the master of a general or carrier ship, as well as the owner, is treated as a common carrier. He is responsible for the goods, in the like manner as any other common carrier; and nothing will discharge him from his responsibility to the owners of the goods, but a loss by some act of Providence, or by some inevitable casualty, or by some public enemy.^ If the goods, therefore, are injured, or perish, by the negligence or misfeasance of the crew, or if they are stolen, the master, as well as the owner, is severally liable therefor.^ § 316. Upon the same ground, the master of a steamboat, employed in the transportation of passengers, is, like the master of a vessel engaged in the merchant service, held liable for the misfeasance and negligence and want of care of all the persons, officers, and crew to whom the management of the steamboat is intrusted. And this rule is applied without any distinction, whether the officers and crew are appointed by the owners or by himself.* Therefore, where, by the negligence of the pilot of a steamboat, who was appointed by the owner, a collision 1 Abbott on Shipp. Pt. 3, ch. 3, § 3, (Amer. edit. .1829) ; Ante, § 116, 117, 294-306. 2 Morse v. Slue, 1 Vent. R. 238 ; MoUoy, B. 2, ch. 2, § 2. 3 Abbott on Shipp. Pt. 3, ch. 3, § 3, ch. 4, § 1, (Amer. edit. 1829) ; Morse v. Slue, 1 Vent. 238 ; M0II07, B. 2, ch. 2, § 2 ; Schieffelin v. Harvey, 6 Johns. R 170, 176 ; Watkinson v. Laughton, 8 Johns. R. 213, 216. In Abbott on Shipp. Pt. 3, ch. 3, § 3, p. 222, (Amer. edit. 1829,) it is said: " As soon as any goods are put on board, the master must provide a sufBcient number of persons to protect them ; for, even if the crew be overpowered by a superior force, and the goods stolen, while the ship is in a port- or river within the body of a county, the master and owners will be answerable for the loss, although they have been guilty of neither fraud nor fault ; the law, in this instance, holding them respon- sible, from reasons of public policy, and to prevent the combinations, that might otherwise be made with thieves and robbers." Ante, § 315. 4 Foot V. Wiswall, 14 John. R. 304 ; Denison v. Seymour, 9 Wend. 8. 392 • AGENCY. [CH. XII. took place, whereby another vessel was run down and sunk, while the pilot was at the helm, navigating the boat, he having the exclusive control and direction of her course ; it was held, that the master of the boat was responsible in damages for the injury by the collision.^ 1 Denison v. Seymour, 9 Wend. R. 8, 15. Mr. Chief Justice Savage in deliv- ering the opinion of the Court, went into an elaborate examination of the authorities, and then added : " Were this an action against the master of a vessel engaged in the merchant service, it seems to be conceded by all the cases that he would be liable. In such cases, the master is responsible for the dili- gence of all to whom is intrusted the management of the vessel. On the other hand, were the action against the captain of a ship of war, the case of Nicholsoh V. Mounsey proves that the captain is not responsible for the neghgence of the other officers. For this exemption, two reasons seem to be assigned ; one is, that the captain and his officers are all appointed by the same authority, and the captain cannot appoint or remove his inferior officers ; the other reason is, that the captain is not a volunteer in the station where he is found. He is obliged, from the office which he holds, to take command of any vessel to which he may be assigned, with such other officers and crews as he may find there, and make the best of them. A steamboat, for the transportation of passengers with their baggage, and for carrying small freight, is a merchant vessel ; and, though the pilots are appointed by the owners, and not by the captain, yet the captain is a volunteer in that service, in the language of Lord EUenborough. The steam- boat service is not like the naval service of a nation. No captain is bound to engage as such ; he has a choice, whether he will serve with such persons as the owners choose to put on board as officers. He knows the responsibility of master of a vessel, and if he is unwilling to be responsible for the negligence of the subordinate officers, he is under no compulsion to serve there himself. If he accepts the office of master of the vessel, he does so with the knowledge of the responsibility which, as such, he incurs. If the owner of a merchant ship were to stipulate with the master that he should take certain persons for his mates, that, I apprehend, would not alter his responsibility to third persons, however it might affect his responsibility to the owner. On the whole, I am of opinion, that the fact of the pilot being chosen by the owners does not alter the law as to the captain's responsibility. Suppose the owners should contract, not only with the pilots, but with all the hands on board, through the agency of some other person besides the captain, as they probably do, would the captain, therefore, become entirely irresponsible ? And must any one whose vessel has been run down where a totally irresponsible person was at the wheel, bring his suit against a common sailor ? The owners of a vessel may not be known ; they may be residents of a foreign country. It would be adding insult to injury, to say to a man, whose property had been destroyed, that he has his remedy against a' common sailor, or the owners, who, perhaps, live in Europe. My opinion is, that the master of a steamboat is liable like the master of a merchant CH. XII.] LIABILITY OF AGENTS FOR TORTS. 393 8 317. The same rule is adopted in the maritime jurispru- dence of the modern commercial nations of continental Europe, it having been derived from the same common source, the Roman law.' -By this law, the Praetor gave a remedy against the master and employers of ships, where they had received goods, as carriers, and had not safely delivered them. Ait Pmtor, (says the Digest,) Nautce, Gaupones, Stabularii, quod cuj'usque salvum fore receperint, nisi restituent, in eos judicium dabo."^ The reason, assigned in the Digest, is precisely that which governs in the policy .of modern maritime nations, that is to say, the necessity of placing confidence in the masters and crews of ships, and the impossibility of shippers of goods being otherwise secure against the injuries sustained by them from the negligences, misfeasances, and frauds of the masters and crews. Maxima utilitas est hujus Edicti ; quin necesse ship ; and that the circumstance of the pilot's being appointed by the owners does not discharge that liability, so far as third persons are concerned." See also Nicholson v. Mounsey, 15 East, R. 384. See Abbott on Shipp. Pt. 2, eh. 7, § 1-9, p. 173, (Shee's edit. 1840), and Lacey v. Ingram, (1840), Exchr. cited in the Addenda to the same edition. 1 Rocc. de Nav. n. 3, 19, 55, 57, 59, 62, 68 ; 2 Emerig. ch. 4, § 10, p. 448, &c. ; 2 Valin, Comm. Liv. 3, tit. 7, art. 4, p. 161 ; Pothier, Chdrte Partie, n. 45 ; Post, § 458; 1 Stair's Instit. by Brodie, B. 1, tit. 12, § 28 ; 1 Bell, Comm. § 500, p. 465, (4th edit.) ; Id. § 501, 502, p. 469-471 ; Id. § 505, p. 473, 4^4 ; Id. p. 465-476, (5th edit.) 2 Dig. Lib. 4, tit. 9, Introd. ; Pothier, Pand. Lib. 4, tit. 9, n. 1, 2. The Digest has explained who are meant by Nautce, in this place. The word embraces, in i(ij most extensive signification, all those who are employed in the navigation of the ship. But it is here used in a more restrictive sense, as including properly the employer of the ship, commonly called the exercitor, an appellation which sometimes is applied to the master, although it is generally used in contradistinc- tion to him. Thus, Ulpian says : "Ait Praetor ; Nauta: ; Nautam accipere debemus eum, qui navem exercet ; quamvis nautas appellantur omnes, qui navis navigan- dse causa in nave sint. Sed de exercitore solummodo Prastor sentit. Nee enim debt, (inquit Pomponieus,) per remigem, aut meso-nautam obligari ; sed per se, vel per navis inagistram ; quanquam si ipse alicui e nautis committi jussit, sine dubio debeat obligari." Dig. Lib. 4, tit. 9, 1. 1, § 2 ; Pothier, Pand. Lib. 4, tit. 9, n. 2. See also Dig. Lib. 47, tit. 5, 1. 1 ; Pothier, Pand. Lib. 47, tit. 5, n. 1, 2, 3, 8, 10 ; Dig. Lib. 14, tit. 1, 1. 1, § 2. See 2 Emerigon, ch. 4, § 10, p. 448, &c. : Post, § 458. 394 AGENCY. [CH. XII. est plerumque eorum fidem sequi, et res eustodice eorum eom- mittere. Ne quisquam putet graviter hoc adversus eos consU- tutum ; nam est in ipsorum arbitrio, ne quern recipiant. Et nisi hoc esset statutum, materia daretur cum furihus adversus eos, quos recipiunt, coeundi ; cum ne nunc quidem abstineant hujusmodi fraudibus} §318, The master of a ship, however, is not, any more than the owner thereof, responsible for wilful trespasses and in- juries, done by the persons employed under him, which acts were not ordered by him, or were not in the course of the duty devolved upon such persons.^ In all such cases, the proper remedy is against the immediate wrong-doers, for their own misconduct. [As a general rule, a principal who neither au- • thorizes or ratifies a wilful trespass committed by his agent, is not liable therefor. Nor is a corporation liable for a wilful trespass of a person employed by it,^ although the act be sanc- tioned by some of its managers ; as where the plaintiff's boat was run into and damaged by the wilful act of the master of the boat belonging to the corporation, and the trespass was sanctioned by a person who was president of the corporation &nd its general agent.*] § 319. In the next place, as to the liability of public agents for torts or wrongs done in the course of their agency. It is plain, that the government itself is not responsible for the mis- feasances, or wrongs, or negligences, or qimsjions of duty of the subordinate officers or agents employed in the public service ; f^ it does not undertake to guarantee to any persons the fidelity of any of the officers or agents, whom it employs ; since that would involve it, in all its operations, in endless embarrassments, and 1 Dig. Lib. 4, tit. 9, 1. 1, § 1 ; Pothier, Pand. Lib. 4, tit. 9, n. 1. 2 Boucher v. Noidstrom, 1 Taunt. K. 568. 3 See Eastern Counties Railway Co. v. Broom, 6 Exoh. K. 314 ; 2 Eng. Law & Eq. R. 406. 4 Vanderbilt v. Richmond Turnpike Co. 2 Comstock, (N. Y.) 479. See also Hipp V. The State, 5 Blackford, R. 149. CH. XII.] LUBILITY OF AGENTS FOR TORTS. 895 difficulties, and losses, which would be subversive of the public interests ; and, indeed, laches are never imputable to the govern- ment.^ Our next inquiry, therefore, is, whether the heads of its departments, or other superior functionaries, are in a different predicament. And here the doctrine is now firmly established ; (subject to the qualifications hereinafter stated,) that public | officers and agents are not responsible for the misfeasances, or positive wrongs, or for the nonfeasances, or negligences, or omissions of duty of the sub-agents, or servants, or other per- 1 sons properly employed by and under them, in the discharge off their official duties. Thus, for example, it is now well settled,/ although it was formerly a matter of learned controversy, that the postmaster-general is not liable for any default, or negli- gence, or misfeasance of any of the deputies or clerks employed under him in his office.^ This exemption is founded upon the 1 See Seymour v. Van Slyck, 8 Wend. K. 403, 422 ; U. States v. Kirkpatrick, 9 Wheat. E. 720, 723. 2 Lane v. Cotton, 1 Ld. Raym. 646 ; S. C. 12 Mod. 482 ; Whitfield i'. Le De- spencer, Cowp. 754 ; 1 Bell, Comm. § 401, p. 377, (4th edit.) ; Id. p. 468, (5th ■ edit.) ; 3 Chitty on Comm. & Manuf. 214 ; Post, § 321, 322. Lord Holt differed from this opinion in Lane v. Cotton ; but the doctrine of the other Judges was afterwards affirmed in Whitfield v. Le Despencer, Cowp. E. 754. The princi- ples involved in the discussion are thus shortly stated in Story on Bailm. § 462. "In the year 1699 an action was brought against the postmaster-general for the loss of a letter containing exchequer bills, by the negligence of his servants and deputies ; and three judges against Lord Holt held, that the plaintiff was not entitled to recover. The ground of the opinion of the three judges appears to have been, that the post-office establishment is a branch of the public police, created by statute for purposes of revenue, as well as for public convenience, and that the government have the management and control of the whole con- cern. It is, in short, a government instrument, established for its own great pur- poses. The postmasters enter into no contract with individuals, and receive no hire, like common carriers, in proportion to the risk and value of the letters un- der their charge, but only a general compensation from government. The same question was again still more elaborately discussed in a case in the time of Lord Mansfield, brought against the postmaster-general to recover the amount of a bank-note stolen out of a letter by one of the sorters of letters, when the Court adhered to the doctrine of the three judges against the opinion of Lord Holt; Upon that occasion Lord Mansfield said : " The ground of Lord Holt's opinion in that case is founded upon comparing the situation of a postmaster to that of a 396 AGENCY. [CH. XII. general ground, that he is a public officer, and that the whole establishment of the post-office being for public purposes, and the officers employed therein being appointed under public au- thority, it would be against public policy to make the head of the department personally responsible for the acts of all his subordinate officers ; since it would be impracticable for him to supervise all their acts ; and discouragements would thus be held out against such official employment in the public service.'^ § 319 d' Similar considerations apply to deputy postmasters, [to contractors for carrying the public mail,^] and other subor- dinate officers acting under the head of a department, who are compelled, in the course of their official duties, to employ sub- agents, and clerks, and servants, in the public service.^ They are not responsible, either to the government itself, or to third persons, for the misfeasances, or negligences, or omissions of common carrier, or the master of a ship talking goods on board for freight. Now, ■with all deference to so great an opinion, the comparison between a postmaster and a carrier, or a master of a ship, seems to me to hold in no particular what- ever. The postmaster has no hire, enters into no contract, carries on no mer- chandise or commerce. But the post-office is a branch of revenue, and a branch of police created by act of Parliament. As a branch of revenue there are great receipts ; but there is likewise a great surplus of benefit and advantage to the public, arising from the fund. As a branch of police, it puts the whole corres- pondence of the country (for the exceptions are very tritling) under government, and intrusts the management and direction of it to the crown, and the officers appointed by the crown. There is no analogy, therefore, between the case of the postmaster and a common carrier." In truth, in England and in America, the postmasters are mere public officers, appointed by the government ; and the con- tracts, made by them officially, are public ; and not private contracts, binding on the government, and not on themselves personally. Ante, § 302-305 ; Dunlop V. Monroe, 7 Cranch, 242, 269 ; Post, § 321, 322. 1 Ibid. See Seymour v. Van Slyck, 8 Wend. 403, 422 ; United States v. Kirk- patrick, 9 Wheat. E. 720, 725 ; Post, § 320-822. 2 Hutchins V. Brackett, 2 Foster, 252 ; Conwell v. Voorhees, 13 Ohio, 528. 3 Eowning «. Goodchild, 3 Wilson, R. 443 ; Stock v. Harris, 5 Burr. K. 2709 ; McMillan v. Eastman, 4 Mass. R. 378 ; Story on Bailm. § 463 ; 4 Bell, Comm. § 401, p. 377, (4th edit.) ; Id. p. 468, (5th edit,) ; Whitfield v. Le Despencer, Cowp. R. 754, 766; Schroyer u. Lynch, 8 Watts, 455. CH. XII.] LIABILITY OF AGENTS FOR TORTS. 397 duty of the sub-agents, clerks, and servants so enaployed under them, unless, indeed, they are guilty of ordinary negligence at least, in not selecting persoos of suitable skill, or in not exer- cising a reasonable superintendence and vigilance over their acts and doings.^ In this respect, their responsibility does not seem to differ from that of private agents, who employ sub-agents at the request of their principals.^ Indeed, for many purposes, the deputy postmasters are treated as principals, and, substan- tially, as independent officers of the government.^ 8 319 5. But, although neither the government nor its supe- rior officers, are responsible to third persons for misfeasances, or negligences, or omissions of duty of the subordinates in office, properly or necessarily employed under them, it by no means follows that such subordinates are themselves exempted from all personal responsibility therefor to third persons. On the contrary, the very consideration, that the public superiors are not responsible for the acts and omissions of their subordi- nates in their official conduct, distinguishes the case from that of mere private agencies, and lets in the doctrine, that, under such circumstances, they shall be held personally responsible therefor to third persons, who are injured thereby. Thus, for example, deputy postmasters are held responsible to third per- son^, for any injuries or losses sustained by the latter, from the personal negligence or omissions of duty of such deputy post- masters.* 1 Dunlop V. Munroe, 7 Cranch, 242, 269. In this case, the very point was not positively decided, but the Court intimated an opinion to this effect ; and it seems a just inference from the principles applicable to the subject. See Story on Bailments, § 463; 2 Kent, Comm. Lect. 40, p. 610, 611, (4th edit.) 2 Ante, §313. 3 Supra, note (2). * Eowning v. Gioodchild, 3 Wilson, R. 443 ; S. C. 5 Burr. R. 2715, 2716 ; 2 W. Black. 906 ; 3 Chitty,on Comm. and M^nuf. 214 ; Paley on Agency, by Lloyd, 398, and note. In Whitfield v. Le Despencer, Cowper, 765, Lord Mans- field said : " As to an action on the case lying against the party really offending, there can be no doubt of it ; for, •whoever does an act, by which another person receives an injury, is liable, in an action, for the injury sustained. If the man AGENCY. 34 398 AGENCY. [CH. XII. § 820. A fortiori, the same rule applies to cases where the subordinate officers of the government are guilty of direct mis- feasances or positive wrongs to thi^d persons in the discharge of their official functions ; for, in such cases, they incur the same personal responsibility, and to the same extent, as private agents.^ This is founded upon a very plain principle of com- mon sense and common justice ; and that is, that no person shall shelter himself from personal liability, who does a wrong, under color of, but without any authority, or by an- excess of his authority, or by a negligent use or abuse of his authority. Where a person is clothed with authority, as a pub- lic agent, it cannot be presumed, that the government means to justify, or even to excuse, his violations of his own proper duty, under color of that authority. And, in cases of this sort, it is not sufficient for public agents to show, that they have acted, bond fide, and. to the best of their skill and judgment; for they are bound also to conduct themselves with reasonable skill and diligence in the execution of their trust.^ Therefore, where commissioners, appointed to pave certain streets, under an act of Parliament, grossly exceeded their powers, by raising the street in front of the plaintifi's house, so as to obstruct the passages to the house, as well as the lights thereof ; it was held, that they were liable to an action on the case for damages.^ But, if there has been no misfeasance or negligence, and no excess of authority, by public agents, in the execution of their duty, then they will not be liable, although a party may have sus- tained damages, in consequence of their acts.* who receives a penny to carry the letters to the post-oiBoe loses any of them, he is answerable ; so is the sorter in the business of his department. So is the post- master, for any fault of his own." 1 Ante, § 308, 311 ; Bayley v. Mayor of New York, 3 Hill, K. 631. 3 Jones V. Bird, 5 Barn. & Aid. 837, 845. 3 Leader v. Moxton, 3 Wils. R. 461 ; S. C. 2 Wm. Black. K. 924 ; Hall v- Smith, 2 Bing. R. 156. See also Governor and Company of Plate Manufacturers w. Meredith, 4 Term K. 794. * Governor and Company of Plate Manufacturers v. Meredith, 4 Term K. 794. See Callender v. Marsh, 1 Pick. K. 418. CH. XII.] LIABILITY OF AGENTS FOR TORTS. S99 § 331. The rule, which we have been considering, that, where persons are acting as pubUc agents, they are responsible only for their own misfeasances and negligences, and (as we have seen^) not for the misfeasances and neghgences of those who are employed under them, if they have employed persons of suitable skill and ability, and have not cooperated in or author- ized the wrong, is not confined to public officers, or agents of the government, properly so called, in a strict legal sense ; but it equally applies to other public officers or agents, engaged in the public service, or acting for public objects, whether their appointments emanate from particular public bodies, or are de- rived from general laws, and whether those objects are of a local or of a general nature. For, if the doctrine of Respondeat superior were applied to such agencies, it would operate as a serious discouragement to persons who perform public functions, many of which are rendered gratuitously, and all of which are highly important to the public interest.^ In this respect, their 1 Ante, § 319. 2 Hall V. Smith, 2 Bing. K. 156 ; Harris v. Baker, 4 Maul. & Selw. 27 ; Bay- ley V. The Mayor of New York, 3 Hill, R. 531 ; Ante, § 319, 31 9 a. The judg- ment of the Court, in the case of Hall v. Smith, delivered by Lord Chief Justice Best, is very instructive, and states the ground of the distinction with great clear- ness and force. " If commissioners under an act of Parliament," said he, " order something to be done which is not within the 'scope of their authority, or they are themselves guilty of negligence in doing that which they are empowered to do, they render themselves liable to an action ; but they are not answerable for the misconduct of such as they are obliged to employ. If the doctrine of Re- spondeat supemor were applied to such commissioners, who would be hardy enough to undertake any of those various offices, by which much valuable yet unpaid service is rendered to the country? Our public roads are formed and kept in repair, our towns paved and lighted, our lands drained and protected from inundation, our internal navigation has been improved, ports have been made and are kept in order, and many other public works are conducted by commissioners, who act spontaneously. Such commissioners will act no longer, if they are to make amends, from their own fortunes, for the conduct of such as must be employed under them. It would be much better that an individual, in- jured by the act of an agent, should endure an injury unredressed, than that the zeal of the most useful members of the community should be checked, by subjecting them to a responsibility for agents, from whose services they derive 4iOO AGENCY. [CH. XII. case is distinguishable from that of persons acting for their own benefit, or employing others for their own benefit.^ But the no benefit, and who are seldom under the immediate control of their employers whilst they are employed on the works they are ordered to do.. The commis- sioners, taking the advice of their surveyors and engineers, are to direct what tunnels, or other works, are to be made. Few commissioners know how such works should be executed ; they ought not, therefore, to be answerable for an im- perfect execution of them ; nor can it be expected that they shall attend, day by day, to see that proper precautions are taken against accidents, or get up in the night to see that lights are burned, to warn passengers of the danger from temporary obstructions in the roads. If, by taking their office of commissioners, they have not undertaken the performance of these duties, with what justice can they be charged with the consequences of the neglect of them ? The maxim of Respondeat superior is bottomed on this principle, that he who expects to derive advantage from an act, which is done by another for him, must answer for any injury which a third person may sustain from it. This maxim was first apphed to public officers by the statute of Westminster 2, c. 11, from the words of which statute it is taken. ' Si custos gaolse non habeat, per quod justicietur, vel unde solvat, respondeat superior suus, qui custodiam hujusmodi gaolse sibi commisit' The terms of the statute of Westminster the second, embrace only those who delegate the keeping of gaols to deputies, and were intended only, as Lord Coke tells us, to apply ' to those who, having the custody of gaols of freeholder inheritance, commit the same to another, that is not sufficient.' The principle of the statute has, however, since been extended to sheriffs, who are responsible for their under-sheriffs and bailiffs ; but has not been applied to any other public officer. Although the office of sherifis be now a burdensome one, yet they are entitled to poundage, and other fees, for acts done by their officers, which in old time, might be a just equivalent for their responsibility. In Bowcher b. Nold- strom, Lawrence, J., mentions the case of the captain of the Kussell, man-of-war, who was held answerable for the act of one of the lieutenants, who had the com- mand of the watch, in running down an Indiaman, whilst the captain was asleep in his cabin. When or by whom that case was decided, I do not know; but it is supported by no other decision, that I am aware of, and its authority is shaken by the judgment of the case in which it is cited. The actions in the cases of Leader v. Moxon, Jones v. Bird, and The Plate-Glass Company v. Meredith, were not brought against the commissioners, but against those who did the acts com- plained of. In the latter case I adverted to that circumstance, as distinguishing it from Sutton v. Clarke. If the counsel, who advised the bringing these actions, had thought they could have been maintained against the commissioners, who gave the orders for the works, that occasioned the injuries of the plaintiffs, the commissioners would have been included. Schinotti v. Bumsteedis distinguish- able from this case. There, the negligence was brought home to the commis- 1 Hall V. Smith, 2 Bing. R. 156 ; Harris v. Baker, 4 M. & Selw. 27. CH. XII.] LIABILITY OF AGEOTS FOR TORTS. • 401 party who suffers the injury under such circumstances, is not without redress ; for he may maintain a suit against the im- mediate wTong-doer.' Upon this ground it has heen held, that the trustees of a puhlic turnpike are not liable for the misfea- sances or negligences of sub-agents employed by them in the performance of their duty, unless they- have directed the sioners of the lottery, -who were the defendants, and they were compensated for their services, and were bound to pay due attention to their duty. The commis- sioners here had authority to make the trench, which occasioned the damage to the plaintiff. The Plate-Glass Company v. Meredith, already referred to, shows that no action could be maintained against them for what they are authorized to do, although an individual sustain an injury from what has been done. The passage into the plaintiff's premises, in that case, was rendered impassable with carts, by the raising of pavement, by the order of the commissioners. Lord Kenyon says : ' If this action could be maintained, every turnpike act, paving act, and navi- gation act, would give rise to an infinity of actions. The parties are without remedy, provided the commissioners do not exceed their j urisdiction.' In Sutton v. Clarke, the defendant, as a trustee under a turnpike act, who was duly authorized to make' a drain, had ordered such drain to be cut in an improper manner ; he had, however, given this order after having taken the best advice that could be obtained. Lord Chief Justice Gibbs considered that circumstance as distinguish- ing the case from that of the British Plate-Glass Company, where what was done could not be done in any other manner than that in which it was done. But still his lordship and the rest of the Court held, that as the defendant acted according to the best of his judgment, and with the best advice, he was not answerable for the injury ; and he added : ' This case is perfectly unlike thaE of an individual who makes an improvement in his own land, from which an injury accrues to another ; such person must answer for the injury, because he was acting for his own benefit.' In Harris and Cross v. Baker, the clerk to commissioners for making a road, under an act which contained a clause direct- ing actions to be brought against such clerk for acts done by the trustees, was holdeu not to be liable to an action for an injury sustained, in consequence of heaps of dirt being left by the side of the road, and no lights being placed to enable persons to avoid such heaps. In this case there was, as in that now be- fore us, great negligence in those employed by the trustees. From these cases I collect, that the law recognizes the principles, which, I venture to state, were founded in sound policy and justice, and that no action can be maintained against a man acting gratuitously for the public, for the consequence of any act which he was authorized to do, and which, so far as he is concerned, is done with due care and attention, and that such a person is not answerable for the negligent execution of an order properly given." Ante, § 319, 319 a. 1 Ibid ; Jones v. Bird, 5 B. & Aid. 837 ; Nicholson v. Mounsey, 15 East, K. 384 ; Ante, § 313, 319 b. 34* 402 « A(||NCY. [CH. XII, act to be done, or have personally cooperated in the negli- gence.^ 1 Duncan v. Findlater, 6 Clark & Finell. 903, 910. In this case, the question came from Scotland, and it was held by the House of Lords, that the English law and Scottish law, upon this subject were precisely the same. Lord Cotten- ham on that occasion reviewed the decisions of both countries, and said : " It is important to preserve the law of Scotland, where it really differs from that of England ; but, where that is not so, and no principle of conflicting law is in- volved, it is a reproach to any system of law, that there should be, in matters of the same kind, and on subjects of the same legislation, a different rule of con- struction applied in one part of the kingdom and in another. In looking into the authorities in this case, I have in vain sought for a rule of Scotch law peculiar to that country ;, and in the English law, I find that the principle, on which the liability of employers is founded, was fully recognized in the time of Lord Holt in Lane v. Cotton, and applied in Bush v. Steinman, where it was pushed to its -fullest extent. Indeed, there is one Scotch case, that of Lin wood v. Van Hathom, which is much more restrictive, in respect to the liability of trustees than some of the English cases, and, certainly, more so, than the case I have just mentioned. But it is supposed, that the regulations of the law are not the same in both countries, upon this point. When trusts are created, it is plain, that, for the public benefit, the courts should have a common principle of deal- ing with them, on which might be engrafted such special rules as it seemed ad- visable to adopt, on account of the particular circumstances of one or other of the two countries. In England, we have long held, that trustees of a turnpike- road are not liable in cases of this sort ; Baker v. Harris, Humphries v. Mears, and Hall v. Smith. In all these cases it was distinctly held, that such trustees are not answerable but for their own personal default. There is another class of cases, in which it has been decided, that trustees, exceeding the authority given them, may be personally liable, but keeping vrithin it, they are not answerable. In this instance, there is no pretence for setting up personal liability. In some cases, it is true, a person injured may be without a remedy; but the fact, that he may be so, will not alter the principle of law, which was left him in that situation. The British Plate-Glass Company v. Meredith, and Boulton V, Crowther, the former decided in 1792, are cases, that may be re- ferred to, as showing, that, where trustees or commissioners are appointed under a public Act, they are not responsible for the consequences of an act done with- in the scope of their authority. In both these cases, if the plaintiff had obtained a judgment it would have been against a public body as such, and it was not therefore necessary to consider the question of the personal liability of the trus- tees. In Hall V. Smith, Lord Wynford said : ' If commissioners, under an Act of Parliament, order something to be done, which is not within the scope of their authority, or are themselves guilty of negligence in doing that, which they are empowered to do, they render themselves liable to an action ; but they are not answerable for such as they are obliged' to employ.' The true distinction is CH. XII.] LIABILITY OF AGENTS FOR TORTS. 403 § 822. The same doctrine has been appHed to public officers, acting in the army or navy, who are held responsible for their own acts and negligences, but are not held responsible for the misfeasances and negligences of the subordinate officers under them, who, indeed,, are not ordinarily appointed by them, but are appointed by the government itself. Thus it has been held, that the captain of a public sloop of war is not answer- able for any damage done by her running down another vessel, the mischief appearing to have been done during the watch of the lieutenant, who was upon deck, and who had the actual direction and management of the steering and navigating of the sloop at the time, and when the captain was not upon deck, nor was called there by his duty.-' here taken, and the law, thus laid down, has ever since been recognized in Eng- land." Lord Brougham, on the same occasion, added : " That there was no such decision previous to 1820, is admitted ; that all the cases, which have been decided, have been upon the terms of particular turnpike trusts, is not denied ; that, therefore, no general rul.ehas been laid down by the Scotch Courts, may be taken as admitted ; but it may be, that some case has been decided, extend- ing the liability of persons for the aotsJof their agents, beyond the limit assigned to it by the law of England. But such is not the fact ; on the contrary, it is found, that the liability of the principal is more restricted there than here. Such a case as that of Bush v. Steinman, which was satisfactorily decided here, if it had happened in Scotland, would- not have been so decided there, for the reason I have just mentioned. The rule of liability, and its reason, I take to be this ; I am liable for what is done for me and under my orders, by the man I employ, for I may turn him off from that employ, when I please ; and the reason that I am liable is this, that, by employing him, I set the whole thing in motion ; and what he does, being done for my benefit and under my direction, I am re- sponsible for the consequences of doing it.^ Ante, § 320. 1 Nicholson v. Mounsey, 15 East, 384. On this occasion, Lord Ellenborough said: " This is a case very important in its consequences, and, if I thought it as doubtful in principle as it i» important, I should wish for further consider- ation before I delivered by opinion. But I cannot entertain any doubt upon it. Captain Mounsey is said to be liable for the damages awarded in this case, by considering him in the ordinary character of the master of the vessel, by means of which the injury was done to the plaintiflf 's property. But how was he master ? He had no power of appointing the officers or crew on board ; he had no power to appoint even himself to the station, which he filled on board ; he was no volunteer in that particular station, merely by having entered originally into the naval service ; but was compellable to take it, when appointed to it, and had no 404 AGENCY. [CH. XII. choice, whether or not be would serve with the other persons on board, but was obliged to take such as he found there, and make the best of them. He had no power, either of appointment or dismissal, over them. The case, therefore, is not at all like that of an owner or master, who, according to the principle laid down by Lord Chief Justice Eyre, in Bush v. Steinman, is answerable for those, whom he employs, for injuries done by them to others, within the scope of their employment. The principle, perhaps, cannot be impugned, though that was a hard application of it. It does not, however, apply to this case. Here Captain Mounsey was a servant of His Majesty, stationed on board this ship to do his duty there, together with others equally appointed and stationed there by the same authority, to do their several duties. They had each their several duties to perform, only they were to be performed on board the same ship. In the case of Lane v. Cotton, now established as law. Lord Holt only difiered from the other judges upon the point, whether in truth the clerk in the post-office, to whom the misconduct was in fact attributable, was the servant of the postmastef, or not. The facts of that case were, indeed, very different from the present; but, even with the power of appointment of such clerks, the postmasters were held not to be liable for their default. Then with respect to the case of Webb and others u. Drake, which at first was supposed to have been an authority in support of this action ; if, as it is now stated, the captain had originally given the order to proceed in the course the ship was holding, when the damage was done, there, there might have been some color (I do not mean to say, that there was any) for making him liable, as for his personal act. But here, there was no personal interference of the captain with the act of the lieutenant, by which the damage was occasioned ; both, indeed, were servants of one common master; • but there was no consent by the one to the act of the other, unless that can be inferred from the community of their services. This disposes of the rule, as it affects the case of Captain Mounsey ; and it does not touch the case of the other defendant." CH. XIII.] RIGHTS OF, AS TO PRINCIPALS. 405 CHAPTER XIIL RIGHTS OF AGENTS IN REGARD TO THEIR PRINCIPALS. § 82S. Having thus considered the duties and obligations of agents to their principals; and their liabilities to their prin- cipals, and to third persons, as well in cases of contracts, as in cases of torts; we are next led to the consideration of the rights of agents in respect to their principals, which will, of course, include a review of the duties, obligations, and liabilities of the latter to the former. § 324. In the first place then, as to the compensation of agents. Ordinarily, an agent, performing services for his principal, is entitled to a compensation therefor, unless he is a mere gratuitous agent or mandatary, or unless the nature of the service, or the understanding between the parties, repel such a claim. In respect to gratuitous agents or mandataries, the consideration of their rights properly belongs to a treatise on Bailments, and need not be touched in this place.^ In re- spect to agents or attorneys in fact, merely to sign a deed, or to do some other single ministerial act for another, it is not usual either to pay, or to stipulate for pay, for the execution of such fugitive acts. They are, ordinarily, treated as acts of friendship or benevolence, and are performed from a mere sense of duty, or from personal regard, and are wholly of a gratuitous nature. § 325.^ Cases may also exist, where services are not intended to be wholly gratuitous, but are to be compensated for ; and yet, where the agent has, strictly speaking, no legal claim, as 1 See Story on Bailm. 153, 154, 196-201. 406 AGENCY. [CH. XIII. he has stipulated to leave the amount of the compensation alto- gether to the good-will, and generosity, and sense of duty of his employers. Thus, for example, where an agent performed work for a committee under a resolution entered into by them, " That any service, to be rendered by him, shall be taken into consideration, and such remuneration be made, as shall be deemed right ; " it was held, that no action would lie to re- cover recompense for services performed under the resolution, because the committee were to judge, whether any compen- sation was due, and ought to be paid, or not. In such a case, the agent is presumed to intend to throw himself entirely upon the mercy and generosity of his employers, and to insist upon no claim as a matter of right.^ Agreements of this sort are said to happen not unfrequently in contracts with particular departments of the government. However, in cases of this sort, if it is not perfectly clear, that the agent contracts with this understanding ; but his contract is, that he shall receive some reasonable remuneration for his services, the amount only to be fixed by his employers ; he may then maintain a suit for a reasonable remuneration, if none is fixed by his employers, or none, which in a just sense, is considered as reasonable.^ § 826. In the ordinary course of commercial agencies, a compensation is always understood to belong to the agent, in consideration of the duties and responsibiUties which he as- sumes, and the labor and services which he performs. This compensation is commonly called a commission ; and it is usu- ally the allowance of a certain per centage upon the actual amount, or the value of the business done ; as for example, upon the value of the goods bought or sold in the course of the agency.^ The amount of the commissions allowed to 1 Taylor v. Brewer, 1 M. & Selw. 290. * 2 United States u.'M'Daniel, 7 Peters, R. 1 ; United States v. Ripley, 7 Peters, R. 18 ; United States v. Pillebrown, 7 Peters, R. 28. 3 Paley on Agency, by Lloyd, 100, 101 ; 3 Chitty on Comm. and Manuf. 221, 222. CH. XIII.] RIGHTS OF, AS TO PRINCIPALS, 407 auctioneers, and brokers, and factors, and other regular agents, is generally regulated by the usage of trade at the particular place, or in the particular business, in which the agent is em- ployed.^ Where there is no usage of trade, a reasonable com- pensation, to be ascertained by the Court, or jury, as the case may happen to arise at law or in equity, is allowed to the agent. But, in every case, the allowance will be governed by the positive agreement of the parties, whenever such an agreement exists ; for where there is an express agreement, it follows, of course, that the implied compensation, from the usage of trade, or the presumed intention of the parties, wholly fails.^ Ex- pressum facit cessare taciturn. § 827. The civil law adopted principles of a like nature. In cases of mandates, the services were treated, ordinarily, as gratuitous. If a particular salary or compensation was stipu- lated for or fixed, the contract fell under a different denomin- ation, — the contract of hire, or Locatio-conductio, and the salary or compensation was to be regularly paid,^ De salario autem, quod promisit, apud Prcesidem Provincice cognitio, prcebehitur.^ But if there was no certainty in the promise, so that it was treated as a vague and indeterminate poUicitatio" or promise, no compensation was allowed, Solarium incertce pollicitationis peti non potest? Or, as Papinian expressed it : Solarium incertce pollicitationis neque extra ordinem reete petitur, neque judicio mondati, ut solarium tihi constituat.^ If no particular sum was agreed on, but a compensation was to 1 Eicke V. Meyer, 3 Camp. K. 412 ; Cohen w. Paget, 4 Camp. K. 96 ; Roberts V. Jackson, 2 Starkie, E. 225 ; 3 Chitty on Comm. and Manuf. 221, 222 ; Smith on Merc. Law, p. 54, 55', (2d edit.) ; Id. p. 100, 101, (3d edit. 1843) ; Chapman V. De Tastet, 2 Starkie, R. 294. 8 Bower v. Jones, 8 Bing.^5 ; Miller v. Livingston, 1 Caines, K. 349 ; Robin- son u. New York Insur. Co. 2 Caines, R. 357. See Stevenson j-. Maxwell, 2 Sandf. Ch. E. 274. 3 1 Bell, Comm. p. 481, (5th edit.) 4 Cod. Lib. 4, tit. 35, 1. 1 ; Pothier, Pand. Lib. 17, tit. 1, n. 74. 5 Cod. Lib. 4, tit. 35, 1. 17 ; Pothier, Pand. Lib. 17, tit. 1, n. 74. 6 Dig. Lib. 17, tit. 1, 1. 56, § 3 ; Pothier, Pand. Lib. 17, tit. 1, n. 74. 408 AGENCY. [CH. XIII. be paid, then a reasonable compensation was to be allowed and decreed by the proper tribunal. This reasonable compensation was to be proportionable to the nature and quantity of the par- ticular commerce, business, or affair to be transacted, to the quality of the agent, to the time employed about it, and to the pains taken by the agent. De proxenetico, quod et sordidum, Solent Prcesides cognoscere. Sic tamen, ut in his modus esse debeat, et guantitatis, et negotii, in quo operula ista defuncti sunt, et'ministerium quale accommodaverunt} Indeed, a sim- ilar doctrine must prevail in all countries, which profess to be governed by the rules of enlightened reason and natural justice.^ § 328. Besides the ordinary commissions, in some classes of agency, such as cases of factors for the sale of goods, ex- traordinary commissions are sometimes allowed, either by the usage of trade, or by the positive agreement of the parties. Of this character is what is commonly called a commission del cr^edere, which is an extra compensation paid to a factor, in consideration of his undertaking to be responsible for the sol- vency and punctual payment of the debt, by the parties to whom the goods of his principal have been sold.^ The nature and extent of the obligation, thus created between the principal and factor, have been already, in some measure, discussed and considered.* § 329. The general rule of law, as to commissions, un- doubtedly is, that the whole service or duty must be performed, before the right to any commissions attaches, either ordinary or extraordinary ; for an agent must complete the thing required of him, before he is entitled to charge for it.^ But cases may 1 Dig. Lib. 50, tit. 14, 1. 3; 1 Domat, B. 1, tit. 17, § 2, art. 2. 2 See 1 Bell, Comm. p. 386, § 409, (4th edit.) ;,Id. § 411 ; Id. p. 481, 482, (5th edit.) 3 Paley on Agency, by Lloyd, 40, 41, 100, 101. "Ante, § 33, 112, 215; Paley on Agency, by Lloyd, 41, 42, 111, note; 1 Bell, Comm. p. 387, § 411, (4th edit.) ; Id. p. 481, 482, (5th edit.) ; Smith on Merc. Law, B. 1, eh. 5, § 2, p. 98; Id. § 3, p. 100, 101, (3d edit. 1843) 5 Post, § 331 ; Hammond v. Holiday, 1 Carr. & Payne, 384 ; Broad v. Thomas, CH. XIII.] RIGHTS OF, AS TO PRINCIPALS, 409 occur, in which an agent may be entitled to a reniuneration for his services, in proportion to what he has done, although he has not done the whole service or duty originally required. This may arise, either from the known usage of the particular •business, or from the entire performance being prevented by the act or neglect of the principal himself ; or from the inter- vention of an overwhelming calamity, or irresistible force, which has rendered it impossible.-^ The same principle would prob- ably be applied to the case of a person, who, during the time of his agency, and before it was completed, should become, by the death of his principal, his executor or administrator ; in which case, by operation of law, his right to receive commis- sions for future acts would be merged in his new character of personal representative.^ § 330. The right, however, of an agent to receive commis- sions, either ordinary or extraordinary, is subject to several exceptions, founded, either in the policy of the law, or in the nature of the contract. In the first place, an agent can never recover commissions for his services in any illegal transactions, whether they are positively prohibited by law, or by morals, or public policy.* Thus, for example, an agent employed to sell for another a public employment, such as an office in the cus- toms, cannot support an action for any compensation for his services; for the transaction is against public policy.* So, 7 Bing. R. 99 ; Simpson v. Lamb, 33 Eng. Law and Bq. R. 229 ; Dalton v. Irvin, 4 Carr. & Payne, 289 ; Paley on Agency, by Lloyd, 105, 106. 1 See Hamond v. Holiday, 1 Carr. & Payne, 384 ; Broad v. Thomas, 7 Bing. R. 99 ; Reed v. Ran-n, 10 Barn. & Cressw. 438. 2 Hovey v. Blakeman, 4 Ves. 596 ; Sheriff v. Axe, 4 Russ. R. 38. 3 Post, § 344. * Paley on Agency, by Lloyd, 502 ; Stackpole v. Earl, 2 Wils. R. 133 ; Waldo. V. Martin, 4 Barn. & Cressw. 319 ; 6 Dowl. & Ryl. 364; Parsons v. Thompson, 1 H. Black. 322; 3 Chitty on Comm. and Manuf. 222, 223; 2 Liverm. on Agency, 8-10, (edit. 1818) ; Smith on Merc. Law, 64, 55, (2d edit.) ; Id. B. 1, ch. 5, § 2, p. 91 ; Id. § 3, p. 100, 191, (3d edit. 1843) ; Josephs v. Pebre, 3 Barn. & Cressw. 639 ; Ante, § 195, 196 ; 1 Liverm. on Agency, ch. 1, § 2, p. 14-21:,, (edit. 1818.) AGENCY. , 85 410 AGKNCy. [CH. XIII. an agent employed to assist in smuggling, and selling the smuggled goods, cannot support on action for any compensa- tion.^ So, an agent employed to buy or sell the stock of an illegal association, cannot recover any compensation therefor,^ So, an agent employed to charter a ship for an illegal voyage, or to assist in carrying on an illegal voyage, cannot recover any compensation therefor.^ So, an agreement to allow poundage to an agent upon the amount of the bills of all customers, recommended by him, will be held void, as a fraud upon the customers.' 4 § 331. In the next place,, the agent is entitled to his com- missions only upon a due and faithful performance of all the duties of his agency in regard to his principal.^ For it is a necessary element in all such cases, that, as the commissions are allowed for particular services to the principal, it is a con- dition precedent to the title of the commissions, that the con- templated services should be fully and faithfully performed.* If, therefore, the agent does not perform his appropriate duties, or if he is guilty of gross negligence, or gross misconduct, or gross unskilfulness, in the business of his agency, he will not only become liable to his principal for any damages, which he may sustain thereby, but he will also forfeit all his commissions.' 1 Story on Conflict of Laws, § 244-256 ; Armstrong v. Toler, 11 Wheat. R. 261, 262. 2 Josephs V. Pebre, 3 Barn. & Cressw. 639. 3 See Haines v. Busk, 5 Taunt. R. 521. * Wyburd v. Staunton, 4 Esp. R. 179. sPaleyon Agency, by Lloyd, 104; Sea v. Carpenter, 16 Ohio K. 412; . Ante, § 392. 8 Ante, § 329. ' Paley on Agency, by Lloyd, 104, 105 ; White v. Chapman, 1 Starkie, K. 113 ; Denew v. Daverell, 3 Camp. R. 451 ; Hammond v. Holliday, 1 Carr. & Payne, 384; 3 Chitty on Comm. & Manuf. 222, 223 ; Hill v. Featherstonehaugh, 7 Bing. R. 569 ; Shaw v. Arden, 9 Bing. R. 287 ; Dodge ». Tileston, 12 Pick. R. 328, 332-334 ; Smith on Merc. Law, 54, 55, (2d edit.) ; Id. B. 1, ch. 6, § 3, p. 100-103, (8d edit. 1843) ; Callandar v. Oelrichs, 5 Bing. (N. C.) R. 58. In this last case, damages were recovered against an agent to insure for not giving notice CH. XIII.] RIGHTS OF, AS TO PRINCIPALS. 411 Slight negligence, or slight omissions of duty, will not, indeed, ordinarily be visited with such serious consequences ; although, if any loss has occurred thereby to the principal, it will be followed by a proportionate diminution of the commissions.-' § 382. Thus, for example, it is ordinarily the duty of agents to keep regular accounts and vouchers of the business in the course of their agency ; and if this duty is not faithfully per- formed, the omission will always be construed unfavorably to the rights of the agent, and care will be taken, that the princi- pal shall not suffer thereby.^ Indeed, cases may occur of such gross neglect and misconduct of agents, in this respect, as to amount to a complete forfeiture of all compensation, which would otherwise belong to the agency.^ § 883. So, if an agent should grossly misconduct himself in other respects, in the course of his agency ; as, if he should violate his instructions ; or if he should act injuriously to his principal without any authority; or if he should wilfully con- found his own property with that of his principal ; in these, and the like cases, he might forfeit his whole title to compen- to his principal of his failure to procure insurance, the Court holding it to be an implied part of his duty. 1 Id.; 2 Liverm. on Agency, ch. 9, § 1, p. 4-6, (edit. 1818.) 2 Ante, § 203, 204; 2 Liverm. on Agency, ch. 9, § (1), p. 4, (edit. 1818) ; Paley on Agency, by Lloyd, 47, 48, 104 ; Beaumont v. Boultbee, 11 Ves. 358 ; Lord Chedworth v. Edwards, 8 Ves. 48 ; Lupton v. White, 15 Ves. 439-443 ; Massey v. Banner, 4 Madd. K. 413 ; Smith on Merc. Law, 54, 55, (2d edit.) ; Id. B. 1, ch. 5, § 3, p. 100, 101, (3d edit. 1843) ; Clarke v. Moody, 17 Mass. R. 145. On this ground it is, that if an agent whose duty it is to keep accounts, neglects ft, and thereby his own property becomes so mixed up with that of his principal, that the one is not clearly distinguishable from the other, a Court of Equity will restrain him from disposing of stock standing in his own name, which may have been purchased with the*aoney of his principal, until he clearly shows on oath, how much of it was, or might have been, bought with his own money, and how much with that of his principal. Ante, § 179, note, § 205 ; Lord Chedworth v. Edwards, 8 Ves.-48 ; Panton v. Panton, cited 15 Ves. R. 440 ; Morgan v. Lewis, 4 Dow, R. 52 ; Hart v. Ten Eyck, 2 John. Ch. R. 108. 3 1 Story on Eq. Jurisp. § 468 ; White v. Lady Lincoln, 8 Ves. 371 ; Lupton V. White, 15 Ves. 439-443 ; Morgan v. Lewes, 4 Dow, R. 52 ; Paley on Agency, by Lloyd, 104. • 412 AGENCY. [CH. XIII. sation, if the circumstances were aggravated ; or, at all events, he would be made to bear all the losses sustained by such mis- conduct. He would also be held to account to his principal ; and every doubtful circumstance would be construed unfavor- ably to his rights and interests.-' § 384f. A fortiori, an agent will forfeit his commissions, if he engages in any transaction, which amounts to a fraud upon his principal ; such as betraying his trust, by acting adversely to his interests;^ or by embarking his property in illegal trans- actions ; or by being guilty of barratry ; or by fraudulently misapplying his funds.® And, if the agent has stipulated to give his whole time and services to his principal, he will not be permitted to derive any commissions, or other compensation, for services in another employment during the same period.^ Indeed, the commissions, or other compensation, earned by services in another employment, under such circumstances, would, in equity at least, seem properly to belong to the prin- cipal.® § 334 a. It is upon the same general ground that it is held, that the master of a ship is an agent bound to give all his time and attention to his principal. It is his duty, when the ship is employed on a trading adventure, to act for the common benefit of the owners ; and when the ship is freighted, or chartered, 1 1 Story on Equity Jurisp. § 468 ; White v. Lady Lincoln, 8 Ves. 363 ; Lupton V. White, 15 Ves. 439-442 ; Chedworth v. Edwards, 8 Ves. 46 ; Ante, § 205 ; Paley on Agency, by Lloyd, 47, 48 ; Id. 104, 105 ; Denew v. Daverell, 3 Camp. R. 451 ; White v. Chapman, 1 Stark. R. 113 ; Hamond v. Holiday, 1 Carr. & Payne, 384 ; Hurst v. Holding, 3 Taunt. R. 32 ; 3 Chitty Sn Comm. and Manuf. 222; 2 Liverm. on Agency, 4, 6, 7, (edit. 1818.) But see Templer V. McLachlan, 5 Bos. & Pull. 136; Dodge v. Tileston, 12 Pick. R. 328; Woodward v. Suydam, 11 Ohio (Stanton) Rep. 363 ; Clarke v. Tipping, 9 Beavan, R. 284. 2 Hurst V. Holding, 3 Taunt. R. 32 ; Paley on Agency, by Lloyd, 105 ; Brown V. Croft, 6 Carr. & Payne, R. 16, n. 3 See 3 Chitty on Comm. and Manuf. 222, note (1) ; Id. 223. 4 Thompson v. Havelock, 1 Camp. R. 527; Gardner v. MoCutcheon, 4 Beav. R. 535. s Ibid.; Paley on Agency, by Lloyd} 105, 106. CH. Xlil.3 RIGHTS OF, AS TO PRINCIPALS. 413 to obtain freight upon the best terms he can for the owners, free from all bias of separate interest in , hjmself, or of leave given to himself by the charterers to trade for himself ; and it has been thought difficult to support a custom which, if legal, would entitle him to trade for himself, when it is his duty to trade to the best of his ability for the joint interest of himself and the other owners, and would give him a discretionary power to place his own interest in competition with the joint interests.^ § 335. Another right of agents is, to be reimbursed all their advances, expenses, and disbursements, made in the course of their agency, on account of, or for the benefit of, their principal.^ This is naturally, nay necessarily, implied from the very character of every agency, to which such ad- vances, expenses, and disbursements are incident, whenever they fall within the appropriate duty of the agent. Hence, all the incidental charges and expenses incurred for warehouse-room, duties, freight, lighterage, general average, salvage, repairs, journeys, and other acts done to preserve the property of the principal, and to enable the agent to accomplish the objects of the principal, are to be fully paid by the latter.^ So, if an agent has, at the express or the implied request of his prin- cipal, necessarily incurred expenses in carrying on or defend- ing suits for the benefit of his principal, those expenses must be borne by the latter, and the agent will be entitled to recover them from him.* 1 Gardner v. McCutcheon, 4 Beavan, 535, 542. 2 2 Liverm. on Agency, ch. 9, § 2, p. 11 to 33, (edit. 1818) ; Story on Bailm. § 196,197. 3 Story on BaUm. § 196, 197, 357, 358; Paley on Agency^ by Lloyd, 107, 108, 110-113, 124; Smith on Merc. Law,* 55, (2d edit.); Id. B. 1, ch. 5, § 3, p. 100-103, (3d edit. 1843) ; 3 Chitty on Comm. and Manuf. 222, 223 ; 2 Liverm. on Agency, p. 11-22, (edit 1818); Kamsey w. Gardner, 11 Johns. K. 439. * Hawes v. Martin, 1 Esp. R. 162 ; Delaware Ins. Co. v. Delannie, 3 Binn. K. 295 ; Spurrier v. Elderton, 5 Esp. E. 1 ; 2 Liverm. on Agency, 13-16, (edit. 1818) ; Curtis v. Barclay, 5 B. & Cressw. 141. 35* 414 AGENCY. [ca. XIII. § 886. But this liability of the principal proceeds upon the ground, that the advances, expenses, and disbursements have been properly incurred, and reasonably and in good faith paid, without any default on the part of the agent.-^ Under such circumstances, it will constitute no objection to the claim, that the advances, expenses, or disbursements have not been at- tended with all the benefits to the principals, which were expected or intended by the agent ; for, his acts being in good faith, in the exercise of a sound judgment, and according to the ordinary course of business, the ageiit ought not, in justice, to be made responsible for any ultimate failure of success, in the agency.^ Cases may, indeed, occur, of such peculiar exigency, as will justify an agent in making advances or incurring ex- penses, beyond what ordinarily appertain to the regular course of business, for which, neverthe^.ess, the principal will be bound to make him a full reimbursement.® And, a fortiori, this rule will apply, where the agent is clothed with a discretionary authority.* However, if the agent has voluntarily, and officious- ly, and without any authority, made advances, or payments,^ or has incurred unreasonable, useless, or superfluous expenses, the principal will not be bound to any reimbursement thereof; for it will be imputed to the fault, or negligence, or unskilful- ness of the agent.® 1 2 Liverm. on Agency, 14-16, (edit. 1818) ; Capp v. Topliam, 6 East, K. 392 ; Smith on Mere. Law, 56, (2d edit.) p. 100-103, (3d edit. 1843); Paley on Agency, by Lloyd, 109, 110 ; Vandyke v. Brown, 4 Halst. Ch. R. 657. 2 1 Domat, B. 1, tit. 15, § 2, art. 2 ; Ersls:. Inst. B. 2, tit. 3, § 38 ; Pothier, Traitfe de Mandat. u. 68, 75, 78, 79 ; 2 Liverm. on Agency, 33, (edit. 1818.) 3 Paley on Agency, by Lloyd, 108, 109 ; Wolf v. Horncastle, 1 Bos. & Pull. 323 ;■ 3 Chitty on Comm. and Manuf. 222, 223 ; Smith on Merc. Law, 55, (2d edit.) ; Id. B. 1, ch 5, § 3, p. 100-103, (3d edit. 1843.) 4 Wolff D. Horncastle, 1 Bos. & Pull. 323. 5 Paley on Agency, by Lloyd, 110, 111, and notes 1, 13 ; Child v. Morley, 8 T. R. 610 ; Grove v. Dubois, 1 T. R. 112 ; Wilson v. Creighton, cited 1 Term R. 113 ; 3 Chitty on Comm. and Manuf. 222. 6 Paley on Agency, by Lloyd, 109, 114, note; Id. 115, 116; Edmiston v. Wright, 1 Camp. R. 88; Howard v. Tucker, 1 Barn. & Adolph. R. 712; 3 Chitty, on Comm. and Manuf. 222, 223; Pothier, Trait6 de Mandat. n. 75, 76, 78 ; Beaumo?t v. Boultbee, 11 Ves. R. 358. CH. XIII.] RIGHTS OF, AS TO PRINCIPALS. 415 § 337. This doctrine, so consonant to reason and justice, is also recognized in the civil law. iSi mihi mandaveris., ut rem tibi atiquam emam, egoque emero meo pretio^ habeho mandati actionem de pretio recuperando. Sed et si tuo pretio, impend- ero ixtmen aliquid -bond fide ad emptionem rei, erit contraria mandati actio, aut si rem emptam nolis recipere. Simili mode, et si quod aliud mandaveris, et in id sumptum fecero} Impen- dia, mand(tii exsequendi gratia facta, si bond fide facta sunt, restitui omnimodo debent; nee ad rem pertinet, quod is, qui manddsset, potuissef, si ipse negotium gereret, minus impend- ere? Sumptus bond fide necessario factos, etsi negoti finem adhibere procurator non potuit, judicio mandati restitui necesse est? Si tamen nihil culpa tud factum est, sumptus, quos in litem probabili ratione feceras, contraria mandati actione petere potest.^ Si quid procurator citra mandatum in voluptatem fecit, permittendum ei auforre, quod sine damno domini fiat, nisi rationem sumptiis istius dominus admittit.^ The same maxims are fully recognized in the jurisprudence of the mod- ern commercial nations of continental Europe. Pothier lays it down as a general doctrine, that the mandant, or principal, is, by the contract of mandate, bound to indemnify the manda- tary, or agent, for all his disbursements, and for all the liabili- ties he has incurred in the execution of his agency.^ And the same doctrine is found approved by many other jurists.^ 1 Dig. Lib. 17, tit. 1, 1. 12, § 9 ; Pothier, Pand. Lib. 17, tit. 1, n. 53 ; Pothier, Trait6 de Mandat. n. 69 ; 2 Liverm. on Agency, 12, (edit. 1818.) 2 Dig. Lib. 17, tit. 1, 1. 27, § 4 ; Pothier, Pand. Lib. 17, tit. 1, n. 67 ; 1 Domat, B. 1, tit. 15, § 1, art. 11, § 2, art. 2, 3 ; Pothier, Traite de Mandat. n. 78. 3 Dig. Lib. 17, tit. 1, 1. 56, § 4; Pothier, Pand. Lib. 17, tit. 1, n. 68 ; Heinec. Elem. Pand. § 234 ; 1 Domat, B. 1, tit. 15, § 2, art. 3 ; Pothier, Trai;6 de Man- dat. n. 79 ; 2 Liverm. on Agency, 33 (edit. 1818.) 4 Cod. Lib. 4, tit. 35, 1. 4 ; Pothier, Pand. Lib. 17, tit. 1, n. 68 ; 1 Domat, B. 1, tit. 15, § 2, art. 2; Pothier, Traite de Mandat. n. 75, 78, 79. 5 Dig. Lib. 17, tit. 1, 1. 10, § 10; Pothier, Pand. Lib. 17, tit. 1, n. 62; 1 Domat, B. 1, tit. 15, § 2, art. 2. 6 Pothier, Trait6 de Mandat. n. 68-75. 1 Ersk. Inst. B. 3, tit. 3, § 34, 38; Heinec. Elem. Juris Nat. et Gent. Lib. 1, cap. 13, § 349 ; 1 Tumb. Heinec. Elem. of Law of Nat. and Nat. § 349 ; 1 Domat, B. 1, tit. 15, § 2, art. 4, 6. 416 AGENCY. [CH. XIII. § 338. Not only may the advances and disbursements of an agent, made out of his own funds, be claimed from the prin- cipal, when they properly flow from the matters of his agency, but he will also be entitled to interest upon such advances and disbursements, wherever, from the nature of the business, or the usage of trade, or the particular agreement of the parties, it may fairly be presumed to be stipulated for, or due to the agent.^ In this respect, the common law is in coincidence with the civil law. Adversus eum cujus negotia gesta sunt, de pecunid, quam de propriis opibus, vel ah aliis, mutuo acceptam, erogasti, mandati actione pro sorte et usuris potes experiri? Nee tantum id, quod impendi, verum usura^ quoque consequar. Usuras autem non tantum ex mora esse admittendas, verum judicem cestimare debere si exeget a dehitore suo quis, et solvit, cum uberrimas usuras consequeretur {cequissimum enim erit rationem ejus rei, haleri) ; aut si ipse mutuatus gravibus usuris, solvit. Et, ut est constitutum, totum hoc ex cequo et bono Judex arbitrabitur.? § 339. Upon similar grounds, if an agent has, without his own default, incurred losses or damages, in the course of trans- acting the business of his agency, or in following the instruc- tions of his principal, he will be entitled to full compensation therefor.* Thus, for example, if an agent, in consequence of a deception practised upon him by his principal, and in pur- suance of orders, innocently makes a false representation of the quality of the goods of his principal, and he is compelled 1 Meeoh v. Smith, 7 Wend. E. 315 ; 2 Liverm. on Agency, 17, (edit. 1818); Delaware Insur. Co. v. Delaunie, 3 Binn. 295 ; Trelawney v. Thomas, 1 H. Bl. 303; Bruce u. Hunter, 3 Camp. K. 467; Calton u. Bragg, 15 East, R. 223; Loitard v. Graves, 3 Caines, R. 226. 2 Cod. Lib. 4, tit. 35, 1. 1 ; Pothier, Pand. Lib. 17, tit. 1, n. 74. 3 Dig. Lib. 17, tit. 1, 1. 12, § 9 ; Pothier, Pand. Lib. 17, tit. 1, n. 53, 73. 4 Ramsay r. Gardner, 11 Johns. R. 439 ; Powell jj. Trustees of Newburgh, 19 Johns. R. 284 ; D'Arcy v. Lisle, 5 Binn. R. 441 ; Stocking v. Sage, 1 Day, Conn. R. 522 ; Hill v. Packard, 5 Wend. R. 375 ; Rogers v. Kneeland, 10 Wend. R. 219 ; Elliot v. Walker, 1 Rawle, 126 ; Green v. Goddard, 9 Met. 212, a very important case on this subject. CH. XIII.] RIGHTS OF, AS TO PRINCIPALS. 417 to pay damages to a purchaser on account thereof, he will be entitled to a full remuneration from the principal.^ So an agent may recover of his principal damages sustained in defending a suit on the principal's behalf, if the agent was acting within the scope of his authority, and the loss arose from the fact of agency, and without any fault or laches on the agent's part,^ So, if an agent has innocently, and without any notice of an adverse title, converted the property of a third person, under the direction or authority of his principal, claiming it as owner, and a recovery is subsequently had against him therefor by such third person, he will be entitled to a reimbursement from his principal.^ Indeed, it may be stated, as a general principle of law, that an agent, who commits a trespass, or other wrong to the property of a third person, by the direction of his prin- cipal, if at the time he has no knowledge or suspicion, that it is such a trespass or wrong, but acts bond fide, will be entitled to a reimbursement and contribution from his principal for all the damages, which he sustains thereby.* For, although the general doctrine of the common law is, that there can be no reimbursement or contribution among wrong-doers, whether the^h-e principals, or are agents ; yet that doctrine is to be received with the qualification, that the parties know, at the time, that it is a wrong.s And in all these cases, there is no ' Paley on Agency, by Lloyd, 152, 301 ; Southern v. How, Bridgeman, K. 126 ; 2 MoUoy de Jur. Marit. B. 3, ch. 8, § 6, p. 329, 330 ; Cro. Jac. 468. 3 Frlxione v. Tagliaferro, 34 Eng. Law & Eq. K. 27. 3 Paley on Agency, by Lloyd, 152, 301 ; Adamson v. Jarvis, 4 Bing. R. 66 ; Allaire u. Ouland, 2 Johns. Cas. 54 ; Coventry d. Barton, 17 Johns. R. 142; Avery v. Halsey, 14 Pick. R. 1 74. 1 Adamson v. Jarvis, 4 Bing. R. 66 ; Fletcher v. Harcott, Hutton, R. 55 ; Powell V. Trustees of Newburgh, 19 Johils. R. 284 ; Avery v. Halsey, 14 Pick. R. 174 ; Coventry v. Barton, 17 Johns. R. 142. 5 Merryweather v. Nixon, 8 T. R. 186 ; Adamson v. Jarvis, 4 Bing. R. 66 ; , Jacobs V. Pollard, 10 Cush. 287 ; Pearson v. Skelton, 1 M. & W. 504. The case of Farebrother v. Ansley, 1 Camp. R. 343, seems overturned in its leading prin- ciple by that of Adamson v. Jarvis, 4 Bing. R. 66 ; see also 2 Li verm, on Agency, 316-318, (edit. 1818.) ; Id. 320, 324, 325 ; Fletcher v. Harcott, Hutton, R. 55 ; S. C. Winch. R. 48 ; Humphrey v. Pratt, 2 Dow & Clarke, 288 ; Betts v. Gibbins, 418 AGENCY. [CH. XIII. difference, whether there be a promise of indemnity, or not ; for the law will not enforce a contract of indemnity against a known and meditated wrong- ; and, on the other hand, where the agent acts innocently, and without notice of the wrong, the law will imply a promise on the part of the principal to in- demnify him.^ The same doctrine appUes to all other cases of losses or damages, sustained by an agent in the course of the business of his agency, if they are incurred without any negli- gence or default on his own part.^ § 34i0. Here, again, the common law only follows out the beneficent principles of the civil law ; for, as, on the one hand, the agent is not permitted to reap any of the profits of his agency, properly belonging to his principal ; ^ so, on the other hand, he is held entitled to be indemnified against all losses, which have been iimoceutly sustained by him upon the same account ; but for no losses sustained by his own default or negligence. Ex mandato apud eum, qui mandatum suscepit, nihil remanere oportet ; sicuti, nee damnum pati delete Hcec iia puto vera esse, si nulla culpa ipsius, qui mandatum vel depositum suseeperif, intercedat.^ The reason given is very satisfactory. MuUo tamen oequius esse, nemini officium§kum, quod ejus, cum quo contraxerit, non etiam sui commodi cmsd susceperat, damnosum esse.^ § 341. But it is not every loss or damage, for which the V 2 Adolph. & Ellis, 57 ; D'Arcy v. Lisle, 5 Binn. R. 441 ; Powell v. Trustees of Ne-wburgh, 19 Jolins. K. 284 ; Coventry v. Barton, 17 Johns. K. 143 ; Avery v. Halsey, 14Pick. 174. i Ibid. 2 Paley on Agency, by Lloyd, 109, 110, 115, 116 ; 2 Liverm. on Agency, 14, 16, (edit. 1818) ; 3 Chitty on Comm. and Manuf. 222, 223 ; Smith on Merc. Law, 55, 56, (2d edit); Id. p. 100-103, (3d edit. 1843) ; Capp v. Topham, 6 East, K. 392. 3 Ante, §192, 207, 214. 4 Dig. Lib. 17, tit. 1, 1. 20 ; Pothier, Pand. Lib. 17, tit. 1, n. 31 ; 1 Domat, B. 1, tit. 15, § 2, art. 4, 6. 5 Dig. Lib. 47, tit. 2, 1. 61, § 7 ; Dig. Lib. 17, tit. 1, 1. 26, § 7 ; Pothier, Pand. Lib. 17, tit. 1, n. 10 ; Pothier, Traitfe de Mandat, n. 75. 6 Dig. Lib. 47, tit. 2, 61, § 5 ; Pothier, Pand. Lib. 17, tit. 1, n. 60 ; Pothier, Traits de Mandat. n. 75 ; 2 Liverm. on Agency, 18, 19, (edit. 1818.) CH. XIII.] RIGHTS OF, AS TO PRINCIPALS. 419 agent will be entitled to reimbursement from his principal. The latter is liable only for such losses and damages as are direct and immediate, and naturally flow from the execution of the agency. If, therefore, the losses or damage are casual, accidental, oblique, or remote, the principal is not liable therefor. In short, the agency must be the cause, and not merely the occasion of the losses or damages, to found a just right to reimbursement.^ This, also, was the rule promulgated in the civil law. Non omnia, quce impensurus non fait, mandatori imputabit ; veluti, quod spoliatus sit a latronibus, aut nau- fragio res amiserit, vel languore sua suorumque apprehensus, quoedam erogaverit. Nam hcec magis casibus, quam mandato, imputari oportet? The modern jurists of Europe have fully recognized *the same doctrine.^ Pothier, in broad language, lays it down, that all losses suffered by the agent, (the man- datary,) in the course or execution of his agency, and of which agency was the proximate cause, are to be reimbursed by his principal. But he adds, that we are carefully to distinguish, whether the execution of the agency has been the cause, or only the occasion of the loss ; for, if it has been only the occa- sion, the principal is not bound to indemnity.* § S4j2. Attempts have been sometimes made to limit the rights of certain agents, such, for example, as factors, for ad- vances upon goods of the principal in their possession, to a mere lien on the goods themselves, so as to exchide all per- sonal recourse to, and responsibility of, the principal for such advances, if there happens to be a loss or failure of the fund, so that it becomes insufficient to repay the advances. Such a limited responsibility may, doubtless, arise, wherever there is an express agreement between the parties, to that effect, or a ' 2 Liverm. on Agency, 18-23, (edit. 1818.) 2 Dig. Lib. 17, tit. 1, 1. 26, § 6; Pothier, Pand. Lib. 17, tit. 1, n. 61 ; Pothier, Trait6, de Mandat. n. 76. 3 Ersk. Inst. B. 3, tit. 3, § 34, 38 ; Pothier, Trait6 de Mandat. n. 75-78 ; Heineo. Elem. Juris Nat. et Gent. Lib. 1, ch. 13, § 349. n. * Pothier, Trait6 de Mandat. n. 75, 76. 4>20 AGENCY. [CH. XIII. clear usage of trade, from which such an agreement may be inferred,^ But, independently of such an agreement or usage, the general rule of law is, that advances by a factor are deemed to be made upon the joint credit of the principal and of the fund, including a lien on the latter, as well as a personal responsibility of the former, for the full amount,^ Where a factor receives a del credere commission upon the sale of goods, and he has made advances thereon of a less amount, than the price, for which they are sold, he must he deemed, by the very guaranty arising out of that commission, to waive any personal recourse to his principal for such advances. If the advances exceed the price, he must be deemed to waive any personal recourse to his principal, to the extent of the price, for which he sells the goods, and to rely solely upon the fund realized from the sale, for his reimbursement pro tanto. If, therefore, the advances made are less than the amount, for which the goods are sold, the law, in order to prevent a circuity of action, founded upon the guaranty, will deem the whole advances paid or extinguished as to the principal, beyond what the factor may actually receive from the sales ; and, if the advances are more than the amount of the sales, then the principal will be person- ally liable only for the excess, beyond that amount, and the residue will be deemed paid or extinguished as to the principal. A waiver of personal recourse to the principal may also be pre- sumed from' the subsequent conduct of the factor ; as if he sells the goods upon credit, and then settles the account with, the principal, deducting his commissions, before the credit has expired, and pays over the balance to the principal ; for, in such a case, the payment of the balance may fairly be treated as an assumption of the outstanding debt on the part of the factor.^ 1 Burrill v. Phillips, 1 Gallis. R. 360 ; Peisch v. Dickson, 1 Mason, K. 10 ; Corlies v. Gumming, 6 Cowen, R. 181. 2 Ibid. ; Post, § 350, 385. 3 Oakley v. Crenshaw, 4 Cowen, R. 250. See Robertson v. Livingston, CH.. XIII.] RIGHTS OF, AS TO PRINCIPALS, 4<21 § 343. It has been said, that, if an agent abroad, as, for example, a foreign factor, should, at his own risk and peril, evade the payment of foreign customs and duties, he would still be entitled to charge them against his principal, as if they had been actually paid. But it may well be doubted, whether this doctrine is sound or maintainable.^ For the factor, by his conduct, violated his own proper duty to his principal, if the act was unauthorized, since he thereby subjected the goods of the latter to the peril of confiscation and forfeiture ; and cer- tainly no man can be permitted to found a claim, in a court of justice, upon his own misconduct. Besides, the customs, or duties, not having been paid, there is no ground to assert that the principal ought to reimburse the agent for what he has not in fact paid, but what, contrary to his duty, he has omitted to pay. Indeed, it is difficult to perceive how an agent can, in law or in morals, found any just claim against his principal, upon a fraud committed upon a foreign government.^ On the other 5 Cowen, K. 475 ; Hapgood v. Batelieller, 4 Met. 576 ; Consequa v. Fanning, 3 John. Ch. R 600. See Greely v. Bartlett, 1 Greenl. E. 172. 1 Smith V. Oxenden, 1 Ch. Cas. 25 ; 1 Eq. Abridg. 369 ; Borr v. Vandall, I Ch. Cas. 30 ; S. C. Nelson, Ch. R. 87 ; Knipe v. Jesson, 1 Ch. Cas. 76 ; Francis's Maxims, (edit. 1739,) Max. 4, PL 8, p. 24 ; 3 Salk. 235. This doctrine was dis- approved of by Lord Keeper North, in an anonymous case in Skinn. R. 149, who said, that he was not satisfied with the case of Vandervaldy v. Barry, or Boor V. Vandall, 1 Ch. Cas. 30 ; for the factor ventured his master's goods, as well as his own life, by his smuggling. 13 Viner, Abridg. Factor, B. pi. 6, in marg. The remark was undoubtedly meant to repel the suggestion, made in the case of Vandervaldy v. Barry, that the factor had put his life in danger by the smuggling ; by showing, that however that might be, the factor had no right to put the principal's goods also in peril by his fraudulent conduct. See Paley on Agency, by Lloyd, 107, 168, note (a.) Smith on Merc. Law, p. 55, (2d edit.) ; Id. B. 1, ch. 5, ^ 3, p. 102,, (3d edit. 1843.) Can commercial agents, who are bound to insure the property of their principals, charge commissions, if they omit this duty, as if it were done ? 2 In 1 Equity Abridg. 369, 370, (2d edit.) there is a very sensible note on this very point, which deserves to be transcribed, as importing a lofty morality, worthy of universal homage. After referring to the doctrine, that such an eva- sion of our own laws would be unjustifiable, the writer says : " And why not be deemed a fraud to cheat a foreign state of its customs ? Fraud is always the AGENCT. 36 4<22 AGENCY. [CH. XIII, hand, if the principal, either expressly or impliedly, authorized the agent so to evade the payment of the customs or duties, the principal, and not the agent, ought to have the benefit thereof, unless there be some stipulation to the contrary between them.^ § 84<4i. In respect to agencies in illegal transactions, the same principles apply as to advances and disbursements by agents, as apply to their commissions.^ None are recovera- ble, either in law or equity.^ For the law will not (as we have already seen) assist any persons in evading the oUigations im- posed upon the whole community to conform to its directions and prohibitions.* As between principals and agents, in all such cases, the guilt is deemed to be equal ; and the maxim is, In pari delicto potior est conditio defendentis ; ^ or, as the Pandects state it, In pari causa possessor potior haheri delet.^ The parties, therefore, must trust exclusively to the piersonal faith of each other, as to the fulfilment of their mutual stipu- lations in illegal transactions. The law will not assist the agent to recover his expenses or advances, or the principal to recover his property, or its proceeds. Each party is left pre- same, though an allowancB in one case is more prejudicial than another. And surely a court of chancery should not connive at any thing so detrimental to good faith, commerce, and reciprocal assurance, as even smuggling into foreign ports. It is not proceeding on the great maxim, Quod tibi non vis, alien non feceris, to make any distinction in this case in our favor." It is to be regretted that this doctrine has nob been fully carried out and sustained in the commercial law. See Story on Conflict of Laws, § 245 ; Planchfe v. Fletcher, Doug. K. 250; Boucher v. Lawson, Cas. Temp. Hard. 84. See Ante, § 195-197 ; Smith on Merc. Law, § 3, p. 55, (2d edit.) ; Id. p. 100-103, (3d edit. 1843) ; Paley on Agency, by Lloyd, 107, n. (a); MoUoy, de Jur. Marit. B. 3, ch. 8,§ 6, 7. 1 But see Smith v. Oxenden, 1 Ch. Cas. 25 ; 3 Salk. 235. 2 Ante,§ 330. 3 Ante, § 195, 196, 235 and note, § 330 ; Story on Conflict of Laws, § 246- 248 ; 1 Liverm. on Agency, ch. 1, § 2, p. 14-M, (edit 1818) ; Id. ch. 8, § 7, p. 467-470 ; Josephs v. Pebrer, 3 Barn. & Cressw. 639 ; The Vanguard, 6 Rob. 207. 4 Ibid. 5 Ante, 195, 196, 235 ; Holman v. Johnson, Cowp. R. 341 ; 1 Liverm. on Agency, ch. 1,^2, p. 14, 15, (edit. 1818.) 6 Dig. Lib. 50, tit. 17, 1. 128; Pothier, Pand. Lib. 12, tit. 5, n. 7. CH. XIII.] RIGHTS OF, AS TO PRINCIPALS. cisely where he is found at the time of the controversy, to bear the burden of his own abandonment of his duty to the law of his country.^ We have already seen that this same wholesome doctrine is fully recognized in the foreign law ;^ and it can admit of no question that it is deeply founded in the precepts of Christianity. § 84>5. The civil law proceeded upon the basis of the same wholesome principles. Where money was paid on an illegal, or an immoral transaction, in which both parties participated, it could not be recovered from the principal, for whose benefit it was advanced. And, on the other hand, if it had been re- paid, it could not be redemanded by the principal. But, where the principal only was engaged in the illegal transaction, there, money advanced by the agent innocently, and without knowl- edge, which enabled the principal to accomplish it, was recov- erable by the agent. [05 reni] turpem auiem, aut ut dantis sit turpifudo, non aecipientis ; aut, ut accipientis dimtazat, non etiam dantis ; aut utriusque.^ TJhi autem dantis et accipientis turpitudo versatur, non posse repeti dieimus. Quotiens autem solius accipientis turpitude versatur, repeti posset Si oh tur- pent causam promiseris Titio ; quamvis, si petat, exceptione doli mali, vel in factum summovere eumpossis ; tamen si sol- veris, non posse te repetere ; quoniam, sublatd proximo, causd stipulationis, qua propter exceptionem inanis esset, pristina causa, id est, turpitudo, superesset. Porro auten% si et dantis et aecipientis turpis causa sit, possessorem potiorem esse. Et ideo repetitionem cessare, tametsi ex stipulatione solutum est.^ § 846. A distinction was formerly attempted to be made 1 Paley on Agency, by Lloyd, 102, 103, 116, 117 ; Josephs v. Pebrer, 3 B. & Cressw. 639 ; Holland v. Hall, 1 Barn. & Aid. 53 ; Armstrong v. Toler, 11 Wheat. K. 258 ; Ante, § 235 and note (2). 2 Ante, § 195, 196 ; Pothier, Traits d'Assur. n. 58 ; Dig. Lib. 17, tit. 1, 1. 6, § 3 ; Cod. Lib. 2, tit. 3, 1. 6. 3 Dig. Lib. 12, tit. 5, 1. 1 ; Pothier, Pand. Lib. 12, tit. 5, n. 1. * Dig. Lib. 12, tit. 5, 1. 3,4, § 2, 3 ; Pothier, Pand. Lib. 12, tit. 5, n. 2, 7, 9. 5 Dig. Lib. 12, tit. 5, 1. 8 j Pothier, Pand. Lib. 12, tit. 6, n. 10. 4<24< AGENCY. [CH. XUI. etween cases, which involved an illegality, resulting from positive law, {malum prohibitum,) and an illegality, existing* in the very nature of the transaction, upon principles of natural, moral, and public law {malum in se.) In the former case, it was held, that money, knowingly advanced to or for the prin-. cipal, upon an illegal transaction, might be recovered by the agent ; in the latter case that it could not.-' But this distinc- tion is now justly repudiated.^ Hence, if an agent should be employed to buy smuggled goods, and he should pay for the. goods, and they should come to the hands of his employer, the agent could not recover for these advances from the employer.^ So, if an agent should knowingly advance money to pay for illegal insurances, or for stockjobbing transactions of his em- ployer, he could not recover it from the latter.* So, if an agent should knowingly advance money to his employer to game with, it would not be recoverable.^ § 34i7. But, although the rule is thus simple and clear in its elements, it is occasionally somewhat nice and difficult in its application to particular cases. A distinction has been taken between cases, where the money is knowingly advanced in fur- therance of an illegal transaction, or where it grows immedi- ately out of it, and cases, where the money is knowingly 1 Faikney u. Eeynous, 4 Burr. 2069 ; Petrie v. Hannay, 3 T. Eep. 418. 2 Steers u. LasUey, 6 T. Eep. 61 ; Paley on Agency, by Lloyd, 63, 64, note, (o) ; Id. 120 ; Bensley v. Bignold, 5 Barn. & Aid. 335 ; Ex parte Mather, 3 Ves. 373 ; Brown v. Turner, 7 Term Eep. 631 ; Miteliell v. Cockburne, 2 H. Bl. 379 ; Aubert v. Maize, 2 Bos. & Pull. 271 ; Webb v. Brooke, 3 Taunt. E. 6 ; Ex parte Bell, 1 M. & Selw. 751 ; Canaan u. Bryce, 3 Barn. & Aid. 180, 183 ; Langton v. Hughes, 1 M. & Selw. 594 ; Armstrong v. Toler, 11 Wheat.- E. 258. 3 Ex parte Mather, 3 Ves. 373 ; Armstrong v. Toler, 11 Wheat. R. 258. * Stebbins v. Leo Wolf, 3 Cush. 137 ; Ward v. Van Duzer, 2 Hall, 162 ; Ex parte Mather, 3 Ves. jr. 373 ; Amory v. Merryweather, 2 Barn. & Cressw. 575 ; Aubert v. Maize, 2 Bos. & Pull. 271 ; Canaan v. Bryce, 3 Barn. & Aid. 179. But see Armstrong v. Toler, 11 Wheat. E. 258 ; Brown v. Duncan, 10 Barn. & Cressw. 93. 5 McKinnell v. Eobinson, 3 Mees. & Welsb. 434. CH. XIII.] RIGHTS OF, AS TO PRINCIPALS. 4<25 advanced in a transaction collateral to, although remotel^ connected with, the illegal transaction. In the latter case, the money advanced may be recovered. The ground of the dis- tinction is, that the- new contract, in the latter case, is one degree removed from the original illegal transaction ; and, as it is in itself perfectly legal in its consideration and formation, as an independent contract, it ought not to be tainted by the illegality of the original transaction ; although, at the time, the agent had knowledge of it. Thus, if money due to a principal on an illegal transaction, should be paid over to his agent for him by the party, from whom it is due, it has been held, that the principal may recover it from the agent ; for the contract of the agent to pay the monpy to his principal is not immedi- ately connected with the illegal transaction ; but it grows out of the receipt of the money for the use of his principal.^ Upon the like ground, it is said, that an agent, who has knowingly made advances to pay the duties due to the government upon goods, which have been previously and fraudulently, by a col- lusive capture, introduced into the country by the principal, but in which transaction the agent had no part or cooperation, 1 Tenant v. Elliot, 1 Bos. & Pull. 4 ; Farmer v. Kussell, 1 Bos. & Pull. 29G. See Warren v. Manuf. Insur. Co. 13 Pick. K. 518. In Wetherell v. Jones, 3 Barn. & Adolph. K. 212, where spirits had been sold without a regu- lar permit, in .violation of law, Lord Tenterden said : " We are of opinion that the irregularity of the permit, though it arises from the plaintiff's own fault, and is a violation of the law by him, does not deprive him of the right of suing upon a contract, which is in itself perfectly legal ; there having been no agreement, express or implied, in that contract, that the law should be violated by such im- proper delivery. Where a contract which a plaintiff seeks to enforce, is ex- pressly, or by implication, forbidden by the statute or common law, no court will lend its assistance to give it effect; and there are numerous cases in the books where an action on the contract has failed, because either the considerar tion for the promise, or the act to be done, was illegal, as being against the ex- press provisions of the law, or contrary to justice, morality, and sound policy. But where the consideration and the matter to be performed, are both legal, we are not aware that a plaintiff has ever been precluded from recovering by an infringement of the law, not contemplated by the contract, in the performance of something to be done on his part." See also Levy v. Yates, 8 Adolph. & Ellis, 129. 86* 426 AGENCY. [CH. XIII. may recover such advances.^ So, where goods are smuggled into the country contrary to law, and they are seized, and a prosecution is instituted against the principal, if an agent, knowing the facts, should advance money to assist his employer in his defence upon that occasion, it is said, that he may re- cover the money advanced from his principal ; because such advance is upon a new and valid contract, unconnected with the original illegal act, although remotely caused by it.^ But, in all these cases, so put, if the agent is connected with the original illegal transaction, or the advance is a part of the original scheme, and in furtherance of it, it will not be recover- able from the principal ; for, then, the agent is properly to be deemed a partaker in the illegality, particeps criminis? 1 Armstrong v. Toler, 11 Wheat. K. 258. 2 Ibid. 3 Armstrong v. Toler, 11 Wheat. E. 258; Farmer v. Kussell, 1 Bos. & Pull. 296, per Eyre, Ch. Just, and Brooke, J.; Warren v. Manuf. Insur. Co. 13 Pick. K. 518. The opinion of Brooke, J., is very able and exceedingly difficult to be answered. He puts the grounds against a recovery in a very strong light. The cases in the books are not easily reconcilable with each other ; and Faikney v. Keynous, (4 Burr. K. 2069,) and Petrie v. Hannay, (3 Term R. 418,) are deemed to be overruled in England. They, however, were not so treated in the Supreme Court of the United States, in Armstrong v. Toler, (11 Wheat. E. 258.) In this last case, the subject was very much considered, and the lead- ing authorities then existing critically examined. In this case, Toler brought an action to recover money paid by him on account of the goods of Armstrong and others, consigned to Toler, which had been seized as imported contrary to law. Toler, upon the seizure, became a surety on the stipulation bond given upon the delivery up of the goods under the seizure, to abide the event of the suit; and Armstrong's portion of the goods was delivered to him upon his promise to pay Toler his proportion of the amount for which Toler should he- come liable. The, goods were condemned ; and Toler paid the appraised value, and brought this action to recover the amount of the money' so paid for Armstrong's proportion of the goods. At the trial, Armstrong founded his de- fence upon the illegality of the transaction. Mr. Justice Washington at the trial, said : " The rule of law, under which the defendant seeks to shelter him- self against a compliance with his contract, to indemnify the plaintiff for all sums, which he might have to pay on account of the goods shipped from New Brunswick for the defendant, and consigned to the plaintiff, is a salutary one, founded in morality and good policy, and which reconmiends itself to the good sense of.every man, as soon as it is stated. The principle of the rule .is, that no man ought to be heard in a court of justice who seeks to enforce a contract CH. XIII.] RIGHTS OF, AS TO PRINCIPALS. 437 § 84f8. An agent may not only forfeit his title to the repay- ment of advances and disbursements, made by him on account founded in, or arising out of, moral or political turpitude. The rule itself has sometimes been carried to inconvenient lengths ; the difficulty being, not in any unsoundness in the rule itself, but in its fitness to the particular cases to which it has been applied. Does the taint in the original transaction infect and vitiate every contract growing out of it, however remotely connected with it ? This would be to extend the rule beyond the policy which produced it, and would ^iead to the most inconvenient consequences. Carried out to such an extent it ■ would deserve to be entitled a rule to encourage and protect fraud. So far as the rule operates to discourage the perpetration of an immoral or illegal act, it is founded in the strongest reason ; but it cannot safely be pushed further. If, for example, the man who imports goods for another by meansof a violation of the. laws of his country, is disqualified from founding any action upon such illegal transaction for the value or freight of the goods,. or other advances made on them, he is justly punished Tor the immorality of the act, and a powerful dis- couragement from the perpetration of it is provided by the rule. But after the • act is accomplished, no new contract ought to be affected by it. It ought not to vitiate the contract of the retail merchant who buys these goods from the im- porter, that of the tailor who purchases from the merchant, or of the customers of the former amongst whom the goods are distributed in clothing, although the illegality of the original act was known to each of the above persons, at the time he contracted. I understand the rule as now clearly settled, to be, that where the contract grows immediately out of, and is connected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it. And if the contract be in part only connected with the illegal transaction, and growing im- mediately out of it, though it be, in fact, a new contract, it is equally tainted by it. The case before supposed, of an action for the value of goods illegally im- ported for another, or freight and expenses attending, founded upon a promise, express or implied, exemplifies a part of the above rule. The latter part of it may be explained by the following case. As, if the importation was the result of a scheme to consign the goods to the friend of the owner, with tlie privity of the former, that he might protect and defend them for the owner in case they should be brought into jeopardy, I should consider a bond or promise afterwards given by the owner to his friend, to indemnify him for his advances on account of any proceedings against the property or otherwise, to constitute a part of the res gesia, or of the original transaction, though if purports to be a new contract. For it would clearly be a promise growing immediately out of, and connected with; the illegal transaction. It would be, in fact, all one transaction ; and the party to whom the promise was made, would, by such a contrivance, contribute, in effect, to the success of the illegal measure.' But, if the promise be uncon- nected with the illegal act, and is founded on a new consideration, it is not tainted by the act although it was known to the party, to whom the promise was made, and although he was the contriver and conductor of the illegal act. Thus, if A should, during war, contrive a plan for importing goods from the 4l28 AGENCY. . [cH. XIII. of his principal, where the transactions are founded in illegal- ity ; but he may also, by his own gross negligence, or fraud country of the enemy on his own account, by means of smuggling, or of a col- lusive capture, and in the same vessel should be sent goods for B ; and A should upon the request of B, become surety for payment of the duties, or should undertake to become answerable for expenses on account of a prosecution for the illegal importation, or should advance money to B, to enable him to pay those expenses; these acts constituting no part of the original scheme, here would be a new contract, upon a valid and legal consideration, unconnected with the original act, although remotely caused by it ; and such contract would " not be so contaminated by the turpitude of the offensive act, as to turn A out of Court, when seeking to enforce it, although the illegal introduction of the goods into the country, was the consequence of the scheme projected by A in relation to his own goods." On a writ of error, the Supreme Court held, that there was no error in this ruling of the Court below. Mr. Chief Justice Marshall, in de- livering the opinion of the Court, commented on the leading authorities and principles; arid especially on the charge of the Court below. After quoting the opinion, he said-: " If this opinion be contrary to law, the judgment ought to be reversed. The opinion is, that a new contract, founded on a new consideration, although in relation to property, respecting which there had been unlawful transactions between the parties, is not itself unlawful. This general proposition is illustrated by particular examples, and will be best understood by considering the examples themselves. The case supposed is, that A, during a war, contrives a plan for importing goods on his own account, from the country of the enemy, and that goods are sent to B, by the same vessel. A, at the request of B, be- comes surety for the payment of the duties, which accrue on the goods of B, and is compelled to pay them ; can he maintain an action on the promise of B to return this money ? The opinion is, that such an action may be sustained. The case -does not suppose A to be concerned, or in apy manner instrumental. in promoting the illegal importation of B ; but to have been ,jnerely engaged himself in a similar illegal transaction, and to have devised the plan for himself, which B afterwards adopted. This illustration explains what was meant by the general words previously used, which, unexplained, would have been exception- able. The contract, made with the government for the payment of duties, is a substantive, independent contract, entirely distinct from the unlawful importa- tion. The consideration is not^ infected with the vice of the importation. If the amount of duties be paid by A for B, it is the payment of a debt due in good faith from B to the government ; and, if it may not constitute the consideration of a promise to repay it, the reason must be, that two persons, who are separate- ly engaged in an unlawful trade, can make no contract with each other ; at any ' rate, no contract, which, in any manner, respects the goods unlawfully imported by either of them. This would be to connect distinct and independent transac- tions with each other, and to infuse ijito one, which was perfectly fair and legal in itself, the contaminating matter, which infected the other. This would intro- duce extensive mischief into the ordinary affairs and transactions of life, not CH. XIII.] RIGHTS OF, AS TO PRINCIPALS. 429 or misconduct, in his agency, be excluded from all remedy against his principal, even for his advances and^disbursements, compensated by any one accompanying advantage. The same principle, diversi- fied in form, is illustrated by another example. If A should become answerable for expenses on account of aprosecution for the illegal importation, or should advance money to B, to enable him to pay those expenses, these acts, the Court thought, would constitute a new contract, the consideration of which would be sufficient to maintain an action. It cannot be questioned, that, however strongly the laws may denounce the crime of importing goods from the enemy in time of war, the act of defending a prosecution instituted iu consequence of such illegal importation, is perfectly lawful. Money advanced, then, by a friend, in such a case, is advanced for a lawful purpose, and a promise to repay it is made on a lawful consideration. The criminal importation constitutes no part of this con- sideration. It is laid down with great clearness, that, if the importation was the result of a scheme between the plaintiff and defendant, or if the plaintiff had any interest in the goods, or if they were consigned to him with his privity, that he might protect and defend them for the owner, a bond or promise, given to repay any advances made in pursuance of such understanding or agreement, would be utterly void. The questions, whether the plaintiff had any interest in the goods of the defendant, or was the contriver of, or concerned in, a scheme to introduce them, or consented to become the consignee of the defendant's goods, with a view to their introduction, were left to the jury. The point of law decided is, that a subsequent independent contract, founded on a new con- sideration, is not contaminated by the illegal importation, although such illegal importation was known to Toler, when the contract was made, provided he was not interested in the goods, and had no previous concern in their importation." The recent authorities, since this case was decided, have not entirely cleared the subject of all difficulty. The distinction between the cases, in which a recovery can he had, and the cases, in which a recovery cannot be had, of money con- nected with illegsfl transactions, which seems now best supported, is this ; that, wherever the party seeking to recover is obliged to make out his case by show- ing the illegal contract or transaction, or through the medium of the illegal con- tract or transaction, or when it appears, that he was privy to the original illegal contract or transaction, there, he is not entitled to recover any advances made by him, connected with that contract. But, when the advances have been made upon a new contract, remotely connected with the original illegal contract or transaction, but the title of the party to recover is not dependent upon that con- tract, but his case may be proved without reference to it, there he is entitled to recover. See Paleyon Agency, by Lloyd, 62-64, and notes; Id. 116-119, note (t) ; Id. 120, 121. Mr. Evans, in his edition of Pothier on Obligations, Vol. 2, App'x, No. 1, p. 1-19, has examined this whole subject with great dili- gence and ability. His conclusion is, that money advanced to pay the debt of another, due upon an illegal transaction, may be recovered by the party lending it, from the party for whom it is advanced, if the lender was not a party to the original transaction, or it was not a part of the original scheme ; although, at the time of the advance, he knew of the illegality. 430 AGENCY. [CH. XIII. made in the course of legal transactions. Thus, for example, if an agent should be guilty of gross negligence, either in sell- ing the goods of his principal to persons, who are notoriously insolvent, or in omitting to sell them at the proper time con- trary to his orders, whereby they are totally lost to his princi- pal, he will not be entitled to recover from his principal any advances or disbursements, made by him on the same goods.^ So, if he should purchase and pay for goods on account of his principal, and by his gross negligence, or disobedience of or- ders, the goods are not forwarded to the principal at the proper time, but are afterwards destroyed by fire, or other accident, in their transit, before they reach the principal, the agent will not be entitled to recover for the money so paid for the goods.^ Where the loss does not go to the totality of the claim, the principal will still be entitled to be indemnified, fro tanto, to the extent of the loss, by recouping or deducting the amount from the sum due to" the agent for his advances and dis- bursements.^ § 349. It follows, from what has been already stated, that, if an agent incurs expenses, or makes disbursements, after his authority is revoked, and he has notice of the revocation, he cannot make his principal liable therefor. A revocation may be by the act of the party or by operation of law.'* The former requires no explanation in this place. The latter may arise in various ways. Thus, for example, it may arise, where the principal becomes a bankrupt, and is thereby rendered incapa- ble of acting any further in the disposition of the property, or other subject-matter of the agency.® In such a case, all pay- ments and advances made by an agent, after notice of the 1 Dodge V. Tileston, 12 Pick. 328, 332. See also, Savage v, Birekhead, 20Pick. R. 167. 2 Williams v. Littlefield, 12 Wend. R. 362. 8 Dodge V. Tileston, 12 Pick. R. 328, 332. 4 Paley on Agency, by Lloyd, 184-189 ; ' 3 Chitty on Comm. and Manuf. 223, 224 ; Post, § 463-469, 480-496. 5 Post, § 408, 482, 483. CH. XIII.] RIGHTS OF, AS TO PRINCIPALS. 431 bankruptcy of his principal, on account of such property, or other subject-matter, will be treated as made by the agent in his own wrong, so far as the assignees are concerned, and will be disallowed accordingly.^ So, also, in the case of the death of the principal, the agency determines by mere operation of law, and similar consequences will follow.^ But upon this subject we shall have occasion to speak more fully here- after.^ § 850. In respect to the personal remedies, by which the various rights of the agent may be enforced, the consideration thereof properly belongs to a treatise upon actions, or other remedial processes. It may, however, be generally stated, that an agent may insist upon deducting all his advances, expenses, disbursements, and losses, arising in the course of his agency, whenever they are definite and certain, and do not merely sound in damages, from the pecuniary funds in his hands belonging to his principal, by way of recouper, discount, or set-off.* Or, where no such funds exist, he may maintain an action at law, or a bill in equity, as the case may require, for the recovery thereof.^ Where an agent is a factor in a foreign country, and purchases goods on his own credit for his principal, and ships them to the latter, he is' deemed, as between himself and his principal, to be in the same predicament, and entitled to the same rights and remedies, as any common vendor and consignor of the goods ; and, consequently, he has the right of stoppage 1 Vernon v. Hankey, 2 Term R. 113 ; Copeland v. Stein, 8 Term R. 204 ; Hankey v. Vernon, 3 Bro. Ch. E. 314 ; Paley on Agency, by Lloyd, 121, 122, 187 ; Post, § 402. Perhaps an exception may properly exist, as to expenses in- curred from necessity to preserve the property, while it remains in the posses- sion of the agent. 2 Post, § 448,490,496.; 3 Chitty on Comm. andManuf. 223. 3 Post, §462-500. '4 Paley on Agency, by Lloyd, 124-126 ; Id. Ill, 112, note ; 2 Liverm. on Agency, 34, (edit. 1818) ; Dale v. SoUett, 4 Burr. R. 2133 ; Green v. Farmer, 4Burr.R. 2220, 2221; Dinwiddle w. Bailey, 6 Ves. 142 ; Ante, § 344 ; Post, ■ §385. 5 Ibid. 4S£ AGENCY. [CH. XIII. in transitu, in case the principal fails, or becomes insolvent, be- fore the transit of the goods is ended by delivery thereof to the principal.^ The case here supposed is where the shipment is made for and consigned to the principal for his account and risk. The same principle applies, a fortiori, to the case, where the consignment is made to the order of the factor ; for then he is deemed still to retain the constructive possession of the goods, and consequently he has not only the right of stoppage in transitu, but also the right of lien for his general balances, like that of factor retaining the actual possession of the goods.^ 1 Paley on Agency, by Lloyd, 144, 145 ; Frieze v. Wray, 3 East, E. 93-; D'Aquila v. Lambert, Ambler, K. 400 ; Snee v. Prescott, 1 Atk. K. 245 ; S. C. 6 East, R. 28, note ; Sifkin v. Wray, 6 East, R. 371 ; Abbott on Shipp. Ft. 3, ch. 9, k 5, p- 369, (Amer. edit. 1829) ; 2 Liverm. on Agency, 120-123, (edit. 1818) ; Ante, § 268, 290 ; Post, § 400, 423, 448. 2 Paley on Agency, by Lloyd, 144, 145. See also Sweet v. Pym, 1 East, 4 ; Post, § 351-390. CH. XIV.] RIGHT OF LIEN OF AGENTS. 433 CHAPTER XIV. RIGHT OF LIEN OF AGENTS. § 351. Independent of the personal remedies, already- alluded to, by agents against their principals, for the payment of their commissions, advances, disbursements, and responsi- bilities, in the course of their agency, there is an established right, which, in many cases, becomes more important and effectual, than any other means of remedial redress, that is to say, the Right of Lien of Agents. To the consideration there- of we shall now proceed. § 852. A lien has been defined to be a right in one man to retain that, which is in his possession, belonging to another, until certain demands of him, the person in possession, are satisfied,-^ It is a quahfied right, therefore, which may be ex- ercised over the. property of another person ; and it is founded in natural justice, and the general convenience of commerce and business.^ It is sometimes said, that, in strictness of law, it is not either a jus in re, or a jus ad rem, that is to say, it is not a right of property in the thing itself, or a right of action to the thing itself.^ These descriptions are sufficiently clear to represent the general character of liens. But there are liens, 1 Per Grose, J., in Hammond v. Barclay, 2 East, R. 227 ; Gladstone v. Birley,. 2 Meriv. K. 404 ; 2 Liverm. on Agency, 34, 35, (edit. 1818) ; Paley on Agency, by Lloyd, 127; 2 Kent, Comm. Lect. 41, p. 634, (4th edit.) ; Holland's Assig- nees V. Humble's Assignees, 1 Starkie, K. 143. 8 Per Buller, J., in Lickbarrow v. Mason, 6 East, K. 21 n. ; Kirkman v. Shaw- cross, 6 Term K. 191 2 Kent, Comm. Lect. 41, p. 634, (4th edit.) ; Green v. Farmer, 4 Burr. 2221. 3 Brace v. Duchess of Marlborough, 2 P. Will. 491 ; Gilman v. Brown, 1 Mason, K. 221 ; 1 Story on Equity Jurisp. § 206 ; 2 Story on Eq. Jurisp. § 1215. AGENCY. 37 434 AGENCY. [CH. XIV. which properly constitute, not merely a right to retain the posses- sion of a thing, but also a right or charge upon the thing itself. Such is the lien of a vendor upon the real estate gold, for the purchase-money ; and that of a bottomry bond-holder upon the ship, for the money lent.^ And, so far from a lien being a mere right to retain the possession of a thing, it is in many cases wholly disconnected from the possession ; as is the case of the lien of a vendor, as above stated, for the purchase- money; and that of a bottomry bond-holder, for the money due to him, and also that of mariners on the ship and freight, for their wages.^ § 353. The lien of agents, however, generally (although not universally) falls within the common definition above alluded to, of a mere right to retain a thing, of which the party has possession, until some charge upon it is paid or removed.^ In this respect, it is like the lien or right of retainer of common carriers, wharfingers, shipwrights, blacksmiths, and other arti- ficers ; and probably was derived from the same general prin- ciple of the common law, which gives to a man, who has the lawful possession of a thing, and has expended his money or labor upon it, at the request of the owner, a right to retain it until his demand is satisfied.* § 854<. Liens are also divisible into two sorts, particular and general. A particular lien is usually defined to be the right to retain a thing for some charge or claim growing out of, or connected with, that identical thing ; such as for labor, or services, or expenses, bestowed upon that identical thing.* 1 2 Story on Equity Jurisp. § 1215-1217. 2 1 Story on Equity Jurisp. § 506 ; 2 Story on Equity Jurisp. § 1216, 1217. 3 2 Kent, Comm. Lect. 41, p. 634, (4th edit.) ; Montague on Liens, 1 ; Wilson j;. Balfour, 2 Camp. R. 579; Ex parte Heywood, 2 Rose, R. 357; Smith on Merc. Law, 3S6, (2d edit.) ; Id. 514, 515, (3d edit. 1843.) ' 4 Paley on Agency, by Lloyd, 127 ; 2 Kent, Comm. Lect. 41, p. 634, 635, (4th edit.) ; Scarfe u.' Morgan, 4 Mees. & Welsb. 270, 283. 5 Paley on Agency, by Lloyd, 127; 3 Chitty on Comm. and Manuf. 537; 2 Kent, Comm. Lect. 41, p. 634, (4th edit.) ; 2 Liverm. on Agency, 35, (edit. CH. XIV.] RIGHT OF LIEN OF AGENTS. 4)3S Of this nature are the common liens already alluded to, of agents, carriers, and artificers, for their labor, or for money- expended upon the thing intrusted to them for particular pur- poses. These liens are generally favored at the common law, as resting on natural equity, and the general convenience of trade and commerce.^ A general lien is a right to retain a thing, not only for charges and claims specifically arising out of, or connected with, that identical thing ; but also for a general balance of accounts between the parties, in respect to other dealings of the like nature.^ It is less favored, and is construed somewhat more strictly, by courts of law, than a par- ticular lien ; although, certainly, the tendency of late years, in the commercial community, has been rather to expand than to restrict the cases, in which it is to be implied by the usage of trade.^ 1818) ; Smith on Merc. Law, 337, (2d edit.) ; Id. B. 4, ch. 2, p. 510, (3d. edit. 1843) ; Houghton v. Mathews, 3 Bos. & Pull. 485, 494 ; Bevans v. Waters, 3 Carr. & Payne, 520 ; Scarfs v. Morgan, 4 Mees. & Welsh. 270, 283 ; 2 Bell, Comm. § 773, (4th edit.) ; Id. p. 90, 91, (5th edit.) ilbid.; Ex parte Deeze, 1 Atk. 228; Green v. Farmer, 4 Burr. K. 2221; Scarfe v. Morgan, 4 Mees. & Welsh. 270, 283 ; Chase v. Westmore, 5 M. & Selw. 180. In Scarfe v. Morgan, 4 Mees. & Welsh. 283, Mr. Baron Parke, in delivering the opinion of the" Court, said : " The principle seems to he well laid down in Bevan v. Waters, 1 Mood. & Malk. 235, S. C. 3 Carr. & Payne, 620, by Lord Chief Justice Best, that where a bailee has expended his labor and skill in the improvement of a chattel delivered to him, he has a lien for his charge in this respect. Thus, the artificer, to whom the goods are delivered for the purpose of being worked into form, or the farrier, by whose skill the animal is cured of a disease ; or the horse-breaker, by whose skill he is rendered manageable, have liens on the chattels in respect of their charges. And all such specific liens, being consistent with the principles of natural equity, are favored by the law, which is construed liberally in such cases." See also Chase v. West- more, 5 M. & Selw. 180. 2 Paley on Agency, by Lloyd, 127 ; 3 Qhitty on Comm. and Manuf 537 ; 2 Kent, Comm. Lect. 41, p. 634, (4th edit.) ; 2 Liverm. on Agency, 35, (edit. 1818) ; Smith on Merc. Law, 337, (2d edit.) ; Id. B. 4, ch. 2, p. 510, (3d edit. 1843) ; 2 Bell, Comm. § 773, (4th edit.) ; Id. p. 90, 91, 105, (5th edit.) 3 Ibid.; Montague on Liens, 1, and cases there cited; Houghton v. Mathews, 3 Bos. & Pull. 485 ; Rushforth v. Hadfield, 7 East, K. 228 ; Holderness v. Col- linson, 7 Barn. & Cressw. 212 ; 3 Chitty on Comm. and Manuf. 544 ; Paley on 486 AGENCY. [CH. XIV. § 855. In regard to particular liens, they may arise in vari- ous ways. First, by an express contract ; secondly, by an im- plied contract, resulting from the usage of trade, or the manner of dealing between the parties ; or, thirdly, by mere operation of law, from the legal relation and acts of the parties, inde- pendently of any contract.-^ The last is generally deemed the true source of the particular lien of salvors, innkeepers, com- mon carriers, farriers, blacksmiths, tailors, shipwrights, and other artisans.^ But, general liens not being (as we have seen)* favored in the law, they must be maintained upon some one of the two former grounds, that is to say, upon the ground of an express contract, or that of an implied contract, resulting from the usage of trade, or from the previous dealings between the parties.* § 356. Indeed, it might, perhaps, in strict propriety of language, be said, that all liens arise by operation of law, and that, where they arise by a contract, express or implied, they are more properly pledges, or hypothecations, than liens. It was upon one occasion said, by a learned judge, that " The right of lien does not arise out of any contract whatsoever, but out of a right to hold property till the, party claiming the lien Agency, by Lloyd, 142, 143; Gladstone v. Birley, 2 Meriv. R. 404 ; WilliamB I). Littlefiold, 12 Wend. K. 362 ; Smith on Merc. Law, B. 4, ch. 2, p. 511-516, (3d edit. 1843.) • 3 Cliitty on Comm. and Manuf. 538, 539 ; Green v. Farmer, 4 Burr. K. 2221 ; Paley on Agency, by Lloyd, 127, 128 ; Montagu on Lien, Ft. 2, ch. 1,2, p. 26-40 ; Scarfe v. Morgan, 4 Mees. & Welsb. 270 ; 2 Bell, Comm. § 773, (4tl] edit.) ; Id. p. 90, 91, (5th edit.) 8 3 Chitty on Comm. and Manuf. 538-540, 543 ; Green v. Farmer, 4 Burr. R. 2221 ; Smith on Merc. Law, 336-339, (2d edit.) ; Id. B.4, ch. 2, § 2, p. 511-516, , (3d edit. 1843) ; 2 Kent, Comm. Lect. 41, p. 634-636, (4th edit.) ; Story on Bailm. § 440 ; Blake v. Nicholson, 3 Maule & Selw. 167 ; Chase v. Westmore, 5 M. & Selw. 180. 3 Ante, § 354. * Paley on Agency, by Lloyd, 127, 128 ; 3 Chitty on Comm. and Manuf. 544, 546, 547 ; 2 Kent, Comm. Lect. 41, p. 636, (4th edit.) ; 2 Liverm.on Agency, 35, 36, (edit. 1818) ; Gladstone v. Birley, 2 Meriv. R. 404 ; Jarvis -w. Rogers, 15 Mass. R. 389, 394, 396 ; Post, § 375. CH. XIV.] RIGHT OF LIEN OF AGENTS. 437 has been paid for the operation he performs." ^ And upon another occasion, another learned judge used expressions still more direct, saying: "Lien, in its proper sense, is a right which the law gives. But it is usual to speak of lien by con- tract, though that is now in the nature of an agreement for a pledge. Taken either way, however, the question always is, whether there be a right to detain the goods till a given demand shall be satisfied. That right must be derived from law or con- tract."^ Whatever may be the critical force of these remarks, the indiscriminate use of the word lien, as applicable to the right in cases arising from contract, as well as in cases arising by operation of law, is now become so universal, that it would be a vain refinement to attempt to recall, or to perpetuate any distinction between them.^ § 356 a. The Roman law derived its own liens, whether they were pledges, or hypothecations, or simple privilegesj, from similar sources. They might arise from a contract, either express or implied, or they might arise by mere operation of law. They might be express. Contrahitur hypotheca per pactum conventum ; cum quis paciscatur, ut res ejus propter aliquam ohligationem sint hypothecce nomine olligatce. Nee ad rem pertinet, quibus fit verbis.^ Sicuti est et in Ms ohligation- ibus, quae consensu contrahuntur. They might be implied, or arise by tacit consent. Pignori esse credantur ; quasi id tacite convenerit? They might arise by mere operation of law, as 1 By Lord Chief Justice Gibbs, in Wilson v. Heather, 5 Taunt. 642, 645. ^ Sir Wm. Grant, in Gladstone a. Birley, 2 Meriv. 404. 3 In Scarfe v. Morgan, 4 Mees. & Welsh. 278, Mr. Baron Alderson said : " A lien may he created by contract, and it may arise out of an express contract, or a contract by the custom of trade." See also Cowell v. Simpson, 16 Ves. 275 ; Chase v. Westmore, 5 M. & Selw. 180 ; Jarvis v. Kogers, 15 Mass. iR. 389, 394 ; Smith V. Plummer, 1 Barn. & Aid. 582, by Bayley, J.; 2 BeU, Comm. § 793, (4th edit.) ; Id. p. 90, 91, 97, (5th edit.); Smith on Merc. Law, B. 4, ch. 2, § 2, p. 511-516, (3d edit. 1843.) * Dig. Lib. 20, tit. 1, 1. 4 ; 1 Domat, B. 8, tit. 1, § 2, art. 5. * Dig. Lib. 20, tit. 2, 1. 4 ; 1 Domat, B. 3, tit. 1, § 2, art. 5. 37* AGENCY. [CH. XIT. in the case of repairs by artificers. Qui in navem extruendam vel instruendam credidit, vel etiam emendam, privilegium habet} § 357. Particular liens were fully recognized and enforced in the Roman law, wherever money, or labor, or services, had been expended on account of the property demanded.^ In that law they were well known under the .denomination of privi- leges, and, in many instances, they gave a right of priority of satisfaction, even over claims, which were antecedent in point of time. Privilegice non ex tempore cestimantur, sed ex causA; ei, si ej'usdem tituli fuerunt, concurrunt, licet diversitates tem- poris in his fuerint? Interdum posterior potior est priori ; utputa, si in rem istam conservandam impensum est, quod sequens credidit.^ Thus, persons advancing their money to improve the property, shipwrights, architects, undertakers, workmen, artificers, and carriers, were entitled to a lien, or privilege, on the property. Creditor, qui oh restitutionen cedificiorum crediderit, in pecunid, quce credita erit, privile- gium exigendi habelit.^ Qui in navem extruendam, vel instru- endam credidit, vel etiam emendam privilegium halet.^ Item, si quis in merces sihi ohligatas crediderit, vel ut salvce fiant, vel, ut naulum exsolvatur, potentior erit, licet posterior sit. Nam et ipsum naulum potentius est. Tantundem dicetur, etsi merces horreorum, vel areoe, vel vecturce jumentorum debe- tur. Nam et hie potentior erit.'' A factor was entitled to a similar privilege for his advances and disbursements to pre- serve the property, for the plain reason, that he thereby insured the preservation of the property. Hujus enim pecunia salvam fecit totius pignoris causam? The same rule was applied to , 1 Dig. Lib. 22, tit. 5, 1. 26 ; 1 Domat, B. 3, tit. 1, § 5, art. 5. 2 2 Story on Equity Jurisp.§ 1221-1223. 3 Dig. Lib. 42, tit. 5, 1. 32 ; 1 Domat, B. 3, tit. 1, § 5, art. 1. * Dig. Lib. 20, tit. 4, 1. 5 ; 1 Domat, B. 3, tit. 1, § 5, art. 2, 3. 5 Dig. Lib. 42, tit. 5, 1. 24, § 1 ; 1 Domat, B. 3, tit. 1, § 5, art. 6. 6 Dig. Lib, 42, tit. 5, 1. 26; 1 Domat, B. 3, tit. 1, § 5, art. 5-11 ; Ante, § 356. -> Dig. Lib. 20, tit. 4, 1. 6, § 1, 2 ; 1 DomaF, B. 3, tit. 1, § 5, art. 11. 8 Dig. Lib. 20, 1. 6, Introd.; 2 Liverm. on Agency, 36, 37, (edit. 1818.) CH. XIV.] RIGHT OF LIEN OF AGENTS. 439 the depositaries, mandataries, and other agents ; and the prop- erty might be retained in the nature of a pledge. Quasi pig- ms retinere potest earn rem} Indeed, the ciyil law went much further than our law upon this subject ; for it gave a particular lien or privilege to persons who advanced their moneys to others for .the improvement, repair, purchase or building of houses, ships, and other things.''^ In many cases, too, the civil law made the lien equivalent to a pledge, or what is sometimes called, a tacit mortgage.^ § 358. General liens do not seem to have been distinctly recognized in the Roman law, although it is highly probable that they would be enforced, as in the nature of a pledge, in cases of express contracts for the purpose.* In some cases, indeed, the party might avail himself of the defence by way of set-oiF, or compensation, as it was called in the Roman law, on account of a general balance of accounts. But this was rather a right resulting from a general doctrine of law, in respect to the extinguishment of mutual claims of the same nature, such as mutual debts, than a distinct right to retain the thing itself for such balance.^ Pothier points out the very distinction, in the case of a deposit. " The depositary cannot, indeed, oppose to the restitution of the deposit a compensation of the credits, which he has against the person, who intrusted him with it, when these credits arise upon other accounts. But, when the credit arises from the deposit itself, as for the expenses, which he has been obliged to incur for the preservation of it, there is a right of compensation, not only in the case of an irregular ' Pothier on Oblig. n. 589, hj Evans, (in the tFrenoh editions, F. 625) ; 1 Domat, B. 3, tit. 1, § 5, art. 8 ; Story on Bailm. § 121, 197, 357, 358 ; Ayliffe's Pand. B. 4, tit. 17, p. 521, 522 ; Pothier de D^pot, n. 59 ; Pothier, Trait6 de Mandat. n. 69, 78, 79 ; Cod. Lib. 4, tit. 35, 1. 4 ; Ante, § 356. '^ Domat, B. 3, tit. 1, § 5, art. 5-8 ; Dig. Lib. 42, tit. 5, 1. 26, 34 ; Cod. Lib. 1, lit. 8,1. 7; Id. tit. 14,1.17. 3 1 Domat, B. 3, tit. 2, § 2, art. 5 ; Dig. Lib. 20, tit. 1, 1. 4 ; Id. tit. 2, 1. 4. * 2 Livel-m. on Agency, 36, (edit. 1818) ; Ante, § 356, 357. 5 2 Bell, Comm. 772, 773, (4th edit.) ; Id. p. 90, 91, (5th edit.1 440 AGENCY. [CH. XIV. deposit, but, also, with respect to the deposit of a specific thing, which may he retained, quasi qiiodam jure pignoris, until the credit is discharged." ^ § S59. Having thus considered the nature of liens, particu-. lar, as well as general, it may be proper to say a few words ; (1.) In relation to the manner and circumstances, under which they are acquired. (2.) To what claims they properly attach. (8.) How they may be waived or lost; and (4.) In what manner they are to be enforced, or taken advantage of. 8 360. First. As to the manner and circumstances under which a lien may be acquired. To create a 'valid lien, it is essential, that the party, through . whom, or by whom, it is acquired, should himself either have the true and just owner- ship of the property, or, at least, a right to vest it. If, there- fore, he is not the true owner of the property ; or if he has no rightful power to dispose of the same, or to create a lien ; or if he exceeds his authority : or if he is a mere wrong- doer ; or if his possession is tortious ; in these, and the like cases, it is obvious, that he cannot ordinarily create a lien, or confer it on others.^ If the rule were otherwise, it would enable the party to give to others, what he did not himself possess, which would violate the general maxim, (which has but few exceptions,) that he, who has no title himself, cannot ' Pothier on Oblig. n. 589*, by Evans, (in the French editions, No. 625.) See also 2 Liverm. on Agency, 36, (edit. 1818) ; 2 Bell, Comm. § 772, 773 ; Id. p. 90, 91, (5th edit.) In the Scottish law, the doctrine of lien is known by the name of Eetention ; and that of set-off by the name of Compensation. 2 Bell. Comm. § 772, (4th edit.) ; Id. p. 90, 91, (5th edit.) ; Id. p. 105,' 106. sPaley on Agency, by Lloyd, 128-131, 134, 139, 140; 2 Bell, Comm. § 774, (4th edit.) ; Id. 90, 92, (5th edit.) ; 3 Chitty on Comm. and Manuf. 547, 548; Hiscox V. Greenwood, 4 Esp. K. 174 ; Burn v. Brown, 2 Starkie, K. 272; Mad- den V. Kempster, 1 Campb. K. 12; Lanyon v. Blanchard, 2 Campb. R. 597; Jackson v.. Clarke, 1 T. & Jerv. 216 ; 2 Liverm. on Agency, 38, 39, 69, 70, (edit. 1818); 2 Kent, Comm. Lect. 41, p. 638, 639, (4th edit.) ; Lemprieret;. Pasley, 2 Term E. 485 ; McCombie v. Davies, 7 East, E. 5 ; Maansa v. Hen- derson, 1 East, E. 335 ; Ogle v. Atkinson, 5 Taunt. E. 763 ; Montague on Lien, Pt. 4,ch. 4, p. 68 ; Smith on Merc. Law, B. 4, ch. 2,p. 511-516, (3d edit. 1843.) CH. XIV.] RIGHT OF LIEN OF AGENTS. 441 transfer a title to another ; Nemo plus juris ad alium trans- ferre potest, quam ipsi haheret? It would be easy to multiply illustrations of this doctrine. But a single ^ one may suffice, which has been already mentioned, that a factor cannot pledge the goods of his principal, so as to create a lien on them, for advances made to himself.^ A fortiori, a person cannot acquire a lien on himself, founded upon his own illegal or wrongful act, or upon his own misconduct, or breach of duty, or fraud.^ § 361. In the next place, to found a valid lien, there*must be an actual or constructive possession of the thing by the party asserting it, with the express or implied assent of the party, against whom it is asserted.* This follows, as a natural consequence, from what has been already said ; for a lien is a right to retain a thing, which presupposes a lawful possession, which can arise only from a just possession under the owner, or other party, against whom the claim exists.^ The posses- sion, indeed, need not be the actual possession of the party himself; for it is sufficient, if the possession be by his servants or agents in the proper discharge of their duty.^ Neither need • Dig. Lib. 50, tit. 17, 1. 54 ; Pothier, de Vente, n. 7 ; Ante, § 113, and note. 2 Ante, §113; Paley an Agency, by Lloyd, 213-232; Doubigny «. Duval, 5 Term R. 604 ; Story on Bailm*. § 325, 326 ; 3 Cliitty on Comm, and Manuf. 204, 205, 547; Jackson v. Clarke, 1 Y. & Jery. 216; McCombie w. Davies, 7 East, R. 5 ; Smith on Merc. Law, 342, (2d edit.) ; Id. B. 1, ch. 5, § 4, p. 511, 512, (3d edit. 1843) ; Jarvis v. Rogers, 15 Mass. R. 389, 394-396. 3 3 Chitty on Comm. and Manuf. 547, 548 ; Burn v. Brown, 2 Starkie, R. 272; Smith on Merc. Law, 342, (2d edit); Id. B. 1, oh. 5, § 4, p. 511, 512, (edit. 1843) ; Lucus v. Dorrien, 7 Taunt. R. 278 ; Taylor v. Robinson, 2 Moore, E. 730;*Paley on Agency, by Lloyd, 139, 140 ; Lempriere v. Pasley, 2 Term R 487. * 3 Chitty on Comm. and Manuf. 547, 549, 550 ; Paley on Agency, by Lloyd, 137-139; 2 Liverm. on Agency, 70-72, (edit. 1818) ; Montague on Lien, Pt. 1, ch. 1, p. 4, 6; 2 Bell, Comm. § 774, (4th edit.) ; Id. p. 91-97, (5th edit.) ; Rice 0. Austin, 1 7 Mass. R. 197. SHeywood u. Waring, 4 Camp. B. 291; Hallet v. Barsfield, 18 Ves. 188; Winter v. Coit, 3 Selden, 288 ; Legg v. Evans, 6 Mees. & Welsh. 41, 42. 6 3 Chitty on Comm. and Manuf. 547, 549 ; 2 Kent, Comm. Lect. 41, p. 639, 4)4)2 AGENCY. [CH. XIV. the possession always be direct and actual. It is sufficient, if it be constructive, and operative in point of law. Thus, where property is at sea, the delivery and indorsement of the bill of lading will confer a constructive possession, sufficient to create a lien.^ So, the delivery of choses in action, or other docu- ments or muniments of title, will in many cases, give a good lien upon the property represented, or intended to be conveyed thereby.^ Thus, the delivery of a bill of sale of a ship at sea will b*e a constructive possession, sufficient to sustain a lien, if the ship is taken possession of within a reasonable time after her return.^ So, the delivery of a policy of insurance will give a lien thereon ; as will the delivery of a promissory note, to collect and receive the amount.* Still, however, the rule is strictly adhered to that there must be a possession, actual or constructive.^ If, therefore, the thing has not yet arrived to the possession of the party, but is still in transitu, or if he has only a right of possession, the lien does not attach thereon.^ § 862. In the next place, no right of lien can arise, where, from the nature of the contract between the parties, it would (4tliedit.); McCombie v. Davies, 7 East, K. 5 ; 2 Bell, Comm. § 774, (4tli edit.); Id. p. 91-97, (5tli edit.); Gainsford v. Detillet, 13 Martin, R. 284; Clemson v. Davidson, 5 Binn. 392. 1 Eice V. Austin, 17 Mass. E. 197 ; 2 Bell, C^mm. p. 91-97, (5tli edit.) a 3 Chitty on Comm. & Manuf. 550 ; Brown v. Heathcote, 1 Atk. 160 ; Lem- priere m. Pasley, 2 Term E. 485, 491; Lucas v. Dorrien, 7 Taunt. K. 279; Haile v. Smith, 1 Bos. & Pull. 563. 3 Mair V. Glennie, 4 M. & Selw. 240 ; Robinson v. McDonnell, 2 B. & Aid. 134; Abbott on Shipp. Ft. 1, cli. 1, § 4-10, (Amer. edit. 1829.) 4 Paley on Agency, by Lloyd, 130 ; Montague on Lien, Pt. 1, ch. 1, p. 19 ; 2 Liverm. on Agency, 79, (edit. 1818.) ♦ 5 2' Bell, Comm. § 774, (4th edit.) ; Id. p. 91-97, (5th edit.)* 3 Chitty on Comm. and Manuf. 549 ; Paley on Agency, by Lloyd, 137-139; 2 Liverm. on Agency, 70-72, (edit. 1818) ; Kinlook v. Craig, 3 Term R. 119; Id. 783 ; 2 Kent, Comm. Lect. 41, p. 638, (4th edit.) ; Sweet v. Pym, 1 East, R. 4 ; Holland's Assignees v. Humble's Assignees, 1 Starkie, R. 143 ; Hervey v. Liddard, 1 Starkie, R. 123; Montague on Lien, Pt. 1, ch. 1, p. 5, 6 ; 2 Bell, Comm. § 774, (4th edit.); Id. p. 91-97, (5th edit.) See Anderson u. Clarke, 2 Bing. R. 20 ; Bryan v. Eix, 4 Mees. & Welsh. 775, 792 ; Id. 791. CH. XIV.] RIGHT OF LIEN OP AGENTS. 443 be inconsistent with the express terms or the clear intent of the * contract.-' Thus, for example, if the goods are deposited in the possession of the party for a particular purpose, inconsist- ent with the notion of a lien, as, for example, to hold them, or . their proceeds, subject to the order of a third person, or to have them transported to another place, or to have them de- livered to another person, no lien will attach thereon.^ So, if the money, for which the lien is asserted, is not due, but is payable at some future time, and in the intermediate time the goods are to be redelivered to the owner, no lien will attach thereon ; for, in such a case, the lien will be inconsistent with such intermediate redelivery.^ So, no lien will arise, where there is an express agreement between the parties not to insist upon it ; or, where it is clear, from the whole transaction, that the party trusted exclusively to the personal credit of his debtor,* or to another distinct fund.^ 1 Chase v. Westmore, 5 M. & Selw. 180 ; Jarvis v. Rogers, 15 Mass. E. 389, 395-397; Smith on Merc. Law, B. 4, ch. 2, § 2, p. 511-513, (3d edit. 1843.) See Pinnock v. Harris, 3 Mees. & Welsb. 532 ; Jackson v. Cummins, 5 Mees. & Welsh. K. 350, 351. 2 Paley on Agency, by Lloyd, 140-142 ; 3 Chitty on Comm. and Manuf. 549, 550 ; Walker v. Birch, 6 T. Kep. 258 ; Jarvis v. Rogers, 15 Mass. K 389, 395, 396; Weymouth v. Boyer, 1 Ves. jr. 416 ; Smith on Mere. Law, 337, 338, (2d edit.); Id. p. 511-513, (3d edit. 1843); 2 Liverm. on Agency, 51-54, (edit. 1818.) 3 3 Chitty on Comm. and Manuf. 548 ; Crawshay v. Homfray, 4 B. & Aid. 50; Searfe v. Morgan, 4 Mees. & Welsh. 270, 284; Judson v. Etheridge, 1 Cromp. & Mees. 743 ; Chase v. Westmore, 5 M. & Selw. 180 ; Williams v. Littlefield, 12 Wend. R. 362, 370. * See Pinnock v. Harrison, 3 Mees. & Welsb. 532 ; Ante, § 342 ; Post, § 366, 385. 5 2 Liverm. on Agency, 53-55, (edit. 1818) ; 2 Kent, Comm. Leot. 41, p. 638, 639, (4th edit.) ; Cowell v. Simpson, 16 Ves. 275 ; 5ailey v. Adams, 14 Wend. K, 201 ; Paley on Agency, by Lloyd, 147, 148 ; Oilman v. Brown, 1 Mason, K. 191 ; Jackson v. Cummins, 5 Mees. & Welsb. B. 350, 351 ; Sanderson v. Bell, 2 Cromp. & Mees. 304. In Mr. Metcalfs edition of Yelverton's Eep. 67 a, note (1), there is a full statement of the doctrines on this subject. See also 5 Edw. 4, 2, pi. 20 ; 17 Edw. 4, 1 ; Davis v. Bowsher, 5 Term R. 491 ; Jarvis V. Rogers, 15 Mass. E. 389, 394-396. We are carefully to distinguish between cases of this sort, where the lien to be asserted is created by mere operation of 4)4<4i AGENCY. [CH. XIV. * § 362 a. It sometimes becomes a matter of very nice con- sideration, whether a particular agreement amounts to an original waiver of, or dispensation from, the right of lien, which other- wise might by law attach itself to the particular transaction, Thus, it was formerly thought that, where work was done, or services performed, under an express contract, for a specific stipulated sum, there all right of lien was by implication aban- doned.^ But that doctrine has been since overturned ; and the: reasonably doctrine established, that the mere existence of a special agreement will not exclude the rigiht of lien ; but the terms of it must be such as actually or necessarily are incon- sistent with such right.^ 8 368, This doctrine is entirely coincident with that of the Roman law, which, in cases of sales, gave a lien for the pur- chase money on the thing sold, unless personal credit was given to the buyer. Quod vendidi, non aliter fit accipientis, qiiam si aut pretium nobis solutum sit, aut satis eo nomine factum, vel etiam fidem haiuerimus emptori sine ultci satisfactione? § S6'i<. Secondly. Let us now .proceed to the second head of inquiry ; what are the debts or claims, to which liens prop- erly attach. In general, it may be stated, that they attach only law, and is excluded by the agreement of the parties, and another class of cases, where the right of setoff is asserted in a suit ; for, in the latter cases, the right of set-off (as, for example, in a case of bankruptcy,) would not be taken away by any agreement not to insist upon a lien, or set-off, for a balance of accounts, in regard to goods received by the party for sale, and actually sold under such an agreement, for which the party is sued. The ground of this distinction seems to be, that the general right of set-off, in a suit at law, being secured by statute, cannot be taken away by implication from any such agreement. McGil^ livray v. Simpson, 2 Carr. & Payne, E. 320 ; S. C. 9 Dowl. & Kyi. 35. See Cornforth v, Kivett, 2 M.*& Selw. 510 ; Eland v. Carr, 1 East, K. 375; Mayer w. Nias, 1 Bing. R. 311. 1 Brennan u. Currint, Sayer, R. 224; Bull. Nisi Prius, 45; Smith on Merc. Law, B. 4, ch. 2, § 2, p. 513, 514, (3d edit. 1843.) 2 Chase V. Westmore, 5 Maule & Selw. 180; Hutton v. Bragg, 7 Tauiit. K. 25 ; Smith on Merc. Law, B. 4, ch. 2, § 2, p. 512-514, (3d edit. 1843) ; Peyroux V. Howard, 7 Peters, R. 324. 3 Dig. Lib. 18, tit. 1, 1. 19 ; Owenson v. Morse, 7 Term R. 64. CH. XIV.] RIGHT OF LIEN. OF AGENTS. 445 to certain and liquidated demands ; and not to those, which sound only in damages, and can be ascertained only through the intervention of a jury.^ A special contract, may, indeed, exist, by which a lien will be created in cases of this latter sort ; as, for example, where there is an express contract to hold goods for an indemnity against future contingent claims, or damages.^ But the law will not imply a lien for such un- liquidated and contingent demands ; but the lien, if asserted, must be made out by clear proofs. It may be added, that, generally, the same rules are adopted, in respect to the nature of. the claims and demands, for which a lien may be asserted, as regulate the rights of the parties, and allowances in matters of account ; that is to say, they must be legal or equitable claims or demands founded upon a just and moral considera- tion, and due to the party, as a matter of right, and not as matter of mere favor .^ § 865. In the next place, the debt or demand, for which the- lien . is asserted, must be due to the party, claiming it in his own right and not merely as the agent of a third person.* It must, also, be a debt or demand due from the very person, for whose benefit the party is acting, and not from a third person, although the goods may be claimed through him.^ So, the debt or demand, if claimed for a general balance of accounts, must be a balance, arising from transactions of a similar nature with that upon which the particular lien arises. As, for ex- ample, if the particular lien is for factorage, the general lien ' 3 Chitty on Comm. and Manuf. 548, 549. 2 3 CMtty on Comm. and Manuf. 548, 549 ; Drinkwater v. Goodwin, Cowp. E. 251. "Paley on Agency, by Lloyd, 132-134, 137; Curtis v. Barclay, 5 Barn. & Cressw. 141. • *Paleyon Agency, by Lloyd, 132; Houghton i'. Mathews, 3 Bos. & Pull. 485; 3 Chitty on Comm. and Manuf. 55,2, 553 ; Montague on Lien, Pt. 1, ch. 1,, p. 8, 10; Ex parte Shank, 1 Atk. 234. 5 Paley on Agency, by Lloyd, 132, 147, 148; Weymouth v. Boyer, 1 Ves. jr. 416 ; Jackson v. Clark, 1 Y. & Jerv. 216 ; Foster v. Hoyt, 2 Johns. Cas. 327 ;. Maanss v. Henderson, 1 East, 335. AGENCT. 38 4i4<6 AGENCY. [CH. XIV. must also be for factorage transactions, and cannot be applied to transactions of a totally dissimilar nature, such as for rent, or for other debts due to the factor, before that relation existed between him and his principal.^ Of course, these remarks apply only to cases, where there is no special agreement between the parties, varying the rule ; for such an agreement will always constitute the true expositor of the rights of the parties. § 366. Thirdly. How a lien may be waived or lost. In the first place, it may be waived by any act or agreement between the parties, by which it is surrendered, or it becomes inapplicable.^ As, for example, if, while the property is in the hands of the party, with a lien attached to it, he agrees to hold the property exclusively for, or as the property of, a third per- son, that will amount to an implied waiver of his lien. So, the same result will take place, if he expressly agrees that it shall no longer be subject to the lien ; or if he agrees to take another security in lieu of the lien.^ § 867. In the next place, the voluntary parting with the possession of the goods will amount to a waiver or surrender, of a lien ; for, as it is a right founded upon possession, it must ordinarily cease, when the possession ceases.* In such cases, it matters not, whether the party absolutely parts with the pos- 1 Houghton V. Mathews, 3 Bos. & Pull. 485 ; Smith on Merc. Law, 340, (2d edit.) ; Id. p. 512, 513, (3d edit. 1843) ; 2 Liverm. on Agency, 65-68 ; 2 Kent, Comm. Lect. 41, p. 638, (4th edit.) ; Montagu on Lien, Pt. 2, ch. 1, § 2, p. 33, 34; Paley on Agency, by Lloyd, 134-136 ; Walker v. Birch, 6 Term K. 258, per Lawrence, J. ; Jarvis v. Rogers, 15 Mass. R. 389, 396. 2 Piesch V. Dickson, 1 Mason, Cir. K. 9. 3 Montagu on Lien, Pt. 3, ch. 1, p. 40-48 ; 2 Bell, Comm. § 776, (4th edit.) ; Id. p. 96, 97, (6th edit.) ; 3 Chitty on Comm. and Manuf. 556, 557 ; Ante, § 362. « Paley on Agency, by Lloyd, 142, 144 ; 2 Kent, Comm. Lect. 41, p, 639, (4th edit.) ; Kruger v. Wilcox, cited 1 Burr. 494 ; 3 Chitty on Comm. and Manuf. 549, 550, 554, 555 ; Sweet v. Pym, 1 East, R. 4 ; Daubigny v. Duval, 5 Term R. 604 ; Owenson v. Morse, 7 Term R. 64 ; Kruger v. Wilcox, Ambler, R. 254; 2 Liverm. on Agency, 75-77, (edit. 1818) ; 2 Bell, Comm. § 774, (4th edit.); Id. p. 91-97, (5th edit.) ; Id. p. 116, 117. CH. XIV.] RIGHT OF LIEN OF AGENTS. 44.7 session, rightfully or wrongfully; or whether it is with the assent of the owner ; or whether it is by his own tortious con- version of the property, or by some other unauthorized act. Thus, if an agent should make a shipment of goods, consigned to the order of his principal, (it would be diflFerent, if it were to his own ordey,)^ it would destroy the lien of the agent on those goods equally, whether the shipment were by the orders of the principal, or in violation of his orders ; for, in such a case, the transfer of the property would be complete and abso- lute.^ But, it might be different in a case, where the transfer was merely.qualified, and not absolute; for, if such transfer were rightful, then the lien would not be lost. But, if it were wrongful, then it would be lost. Thus, for example, an agent who has a lien on property, may lawfully transfer and pledge the same to another person, as a security, to the extent of the amount due to himself, and for which he has the Hen, if he apprizes such person, at the time of the lien, that he is to hold the property solely for the lien and no more ; - for, that being a rightful exercise of his authority, it amounts to a mere appointment of the party to keep possession as his servant, and the lien is not thereby extinguished; for the possession still continues properly to be the possession of the agent.^ On the other hand, if an agent should tortiously pledge the property of his principal generally for ^vances made to himself, by that very act his own lien upon the property would be gone, not- 1 Ante, § 361 ; Paley on Agency, by Lloyd, 144, 145 ; 2 Liverm. on Agency, 75, 76, (edit. 1818) ; 3 Chitty on Comm. and Manuf. 555. 2 Paley on Agency, by Lloyd, 142-144 ; 3 Chitty on Comm. and Manuf. 649, 550, 654, 555 ; Sweet v. Pym, 1 East, R. 4 ; Abbott on Shipp. Pt. 3, eh. 9, § 7, p. 373, (edit. 1829.) 3 Paley on Agency, by Lloyd, 144, 145, 217 ; 3 Chitty on Comm. and Manuf. 551, 555; Montagu on Lien, B. 1, Pt. 4, ch. 4, p. 74; McCombie u. Davies, 7 East, K. 7 ; Mann v. Shifner, 2 East, K. 529 ; Gainsford v. Duillet, 13 Martin, R. 284 ; 2 Kent. Comm. Leot. 41, p. 639, (4th edit.) ; 2 Liverm. on Agency, 78, (edit. 1818) ; Thompson v. Farmer, 1 Mood. & Malk. 48 ; Urquhart v. Mc- Iver, 4 Johns. R. 103; Jarvis u. Rogers, 15 Mass. R. 389, 408; Clemson ». Davidson, 5 Binn. 392. 448 AGENCY. ♦ [CH. XIT. withstanding the possession of the pledgee might, in some sense, be treated as his own possession ; for the change of possession would be tortious, and be deemed a waiver, or extinguishment of his lien.i So, if a person, having a lien on goods, should cause them to be taken in execution at his own suit, he would lose his lien thereby, although he should become the purchaser of them at the execution sale, and they never were removed from his premises ; for the sheriflf took posses- sion under the execution with his consent, and his possession, as purchaser, is a new and subsequent possession.^ § 368. Such is the general rule as to possession, But there are certain cases, which constitute exceptions to the application of the rule, and in which, in favor of trade and the apparent intention of the parties, the lien is preserved, although the pos- session of the property is parted with. Thus, for example, a factor, who, by lawful authority, sells the goods of his prin- cipal, and parts with the possession under the sale, is not deemed to lose his lien thereby; but it attaches to the proceeds of the sale in the hands of the vendee, and also to the securi- ties therefor in the hands of the factor, in lieu of the original ■property.^ This exception is grounded upon the manifest inconvenience, which would otherwise attend all factorage transactions ; for a factor wouM rarely sell, except for ready money, if thereby he should loSb his lien ; and yet a sale on credit would be, or might be, incomparably more beneficial for his principal. Hence, the law presumes, that the parties tacitly agree, that the securities and proceeds shall stand charged with 1 McCombie v. Davies, 7 East, K. 7 ; Ante, § 78, 113, and notes. Ibid. ; Ship- ley V. Kymer, 1 M. & Selw. 484 ; Solly v. Kathbone, 2 M. & Selw. 298 ; Martini V. Coles, 1 M. & Selw. 140 ; Boyston v. Coles, 6 M. & Selw. 14 ; Cookran v. Irlam, 2 M. & Selw. 301. 2 Jacobs V. Latour, 5 Bing. R. 130. See Campbell v. Proctor, 6 Greenl. 12. 3 Paley on Agency, by Lloyd, 147; Drinkwater v. Goodwin, Cowp. R. 251 ; Houghton V. Mathews, 3 Bos. & Pull. 489 ; 8 Chitty on Comm. and Manuf. 550, 551, 555, 556 ; Montagu on Lien, Pt. 1, ch. 1, p. 10 ; 2 Bell, Comm. § 774, (3), (4th edit.) ; Id. p. 115-117, (5th edit.) CH. XIV.] RIGHT OF LIEN OF AGENTS, 44*9 the original lien ; and this tacit understanding is now univer- sally in coincidence with the usage of trade,^ Indeed, a factor is deemed, for many purposes, as the owner of the property, especially when he has demands upon it for advances and debts.^ Cases of a similar nature may occur, where there is an express agreement between the parties, that the lien shall not be lost by a transfer of the possession ; for, in all such cases, the rule of law is, Conventio vincet legem? § 369. Another exception is, where the possession has not been voluntarily parted with, but has been taken from the party by fraud, or force, or mistake ; for, in such a case, it would be against the first principles of justice to allow the lien to be di- vested.* Another exception (as we have just seen) is, where the party parts with the possession, sub modo only, as upon a pledge of his own lien as security to a third person.^ And another exception, of course, is of maritime liens, and other special liens, already alluded to.® § 370. It may be added, under this head, that although a lien is lost by parting with the possession, yet it may revive and reattach upon the property coming again into the possession of the party entitled to the lien, if it so comes, as the property of the same owner against whom his right exists, and no new in- termediate equities have affected it.'^ This, at least, is true, in regard to a general Hen ; for, in such a case, it will attach upon 1 Ibid. 2 Drinkwater u. Goodwin, Cowp. K. 251 ; Houghton v. Mathews, 3 Bos. & Pull. 485. /3 Paley on Agency, by Lloyd, 147 ; Chitty on C6mm. and Manuf. 550, 556 ; Dodsley v. Varley, 12 Adolph. & EDis, 632. * 3 Chitty on Comm. and Manuf. 556 ; Montagu on Lien, Pt. 1, ch. 1, p. 11 ; Plerson v. Dunlop, Cowper, K. 571 ; Wallace v. Woodgate, Kyan & Mood. R. 193 ; S. C. 1 Carr. & Payne, K. 575. 5 Ante, §367. *Ante, § 352. "% 7 Paley on Agency, by Lloyd, 145, 146 ; 3 Chitty on Comm. and Manuf. 557, 558 ; Whitehead v. Vaughan, Cook's Bank. Laws, 579 ; Spring v. S. Carolina Ins. Co. 8 Wheat. R. 268, 285, 286 ; 2 Bell, Comm. p. 117, (5th edit.) 38* 450 AGENCY. [CH. XIV. fresh goods which have for the first time come to hand ; and there is no reason why it should not equally attach to the old property coming back again. How far the same principle will apply to a specific or particular lien does not seem to be set- tled ; although the intimations in judicial opinions are against it.^ § 371- Fourthly. In what manner a lien may be enforced, and taken advantage of. In respect to the rights conferred upon a party by a lien, it may be stated that they are generally of a very limited nature. As a lien is, ordinarily, nothing more than a right of retainer of the property, the party entitled to the lien cannot ordinarily sell or dispose of the property, in order to satisfy his lien, unless with the consent of the owner, either express or implied, from the nature and objects of the very transaction. Thus, for example, if goods are consigned to a factor for sale, and he makes advances upon them, he is, of course, invested with a right to sell them, and may out of the proceeds satisfy his lien, or use it by way of set-off.^ Nay, in cer- tain cases, where he has made advances as a factor, it would seem to be clear, that he may sell to repay himself for those advances, without the assent of the owner, {invito domino,) if the latter, after due notice of the intention to sell for the advances, does not repay him the amount.^ But, except in a few and limited 1 Hartley v. Hitchcock, 1 Starkie, R. 408 ; Jones v. Pearl, 1 Str. R. 556 ; Bo- sanquet v. Dudmanj 1 Starkie, R. 1 ; Montagu on Lien, Ft. 1, ch. 1, p. 19, 20; 2 Bell, Comm. § 774, (4), (4th edit.); Id. p. 116, 117, (5th edit.) 2 3 Chitty on Comm. and Manuf. 551 ; Pothonier v. Dawson, Holt's N. P. Rep. 383 ; Zoit v. Millaudon, 16 Martin, R. 471 ; Montagu on Lien, Pt. 1, ch. 3, p. 23, 24 ; 2 Liverm. on Agency, 103, 104, (edit. 1818) ; 2 Kent, Comm. Lect. 41, p. 642, (4th edit.) ; 2 Bell, Comm. p. 117, (5th edit.) 3 This point was expressly decided in the Supreme Court of Massachusetts, in the case of Parker v. Brancker, 22 Pick. R. 40. [In England it has been de- cided, that the factor has no right to sell the goods, contrary to the orders of his principal, though the latter has neglected a request to repay the advances. Smart v. Sandars, 5 Manning, Granger & Scott, R. 895.] See also Chitty on Comm. and Manuf. 551. In Pothonier v. Dawson, Holt's N. P. R. 383, Ld. •Chief Justice Gibbs said : " Undoubtedly, as a general proposition, a right of Jien gives no right to sell the goods. But when goods are deposited, by way of CH. XIV.] RIGHT OF LIEN OF AGENTS, 451 cases of this sort, the right of the holder of the lien seems to be confined to the mere right of retainer, which may be used as a defence to any action for the recovery of the property, brought against him, or, as a matter of title, or special property, to jeclaim the property by action, if he has been unlawfully dispossessed of it.^ In many cases, however, where the, lien itself does not confer a right of sale, a Court of Equity will decree it, as a part of its own system of remedial justice ; ^ and Courts of Admiralty are constantly in the habit of decree- ing a sale, to satisfy maritime liens, such as bottomry bonds, seamen's wages, repairs of foreign ships, salvage, and other claims of a kindred nature.^ § 87)2. But it seems, that even a lien or right of retainer is not, or may not be, deemed, under all circumstances, an unqual- ified right at least, as against the owner ; for it has been said, that, although an agent has a lien upon the property of his principal for any advances or balance due him, yet he has not a right to retain more of the property, when demanded by the principal, than is sufficient to secure and satisfy his lien ; and, as to the residue, he is bound to obey the orders of the princi- pal.* This is a point, however, which is manifestly open to security, to indemnify a party against a loan of money, it is more than a pledge. The lender's rights are more extensive than such as accrue under an ordinary lien in the way of trade. These goods were deposited to secure a loan. It may be inferred, therefore, that the contract was this: ' If I (the borrower) repay the money, you must redeliver the goods ; but if I fail to repay it, you may use the security I have left to repay yourself.' I think, therefore, the defendant had a right to sell." See S. P. Zoit v. Millaudon, 16 Martin, R. 470 ; 3 Kent, Comm. Lect. 41, 642, (4th edit.) ; Rice v. Austin, 17 Mass. R. 197. I 3 Chitty on Comm. and Manuf. 551 ; The Ship Packet, 3 Mason, 334 ; Greene v. Farmer, 4 Burr. 2218; 2 Liverm. on Agency, 103, 104, (edit. 1818) ; Paley on Agency, by Lloyd, 131 ; Scott v. Franklin, 15 East, 428. 8 2 Kent, Comm. Leet. 41, p. 642,. (4th edit.) ; 2 Liverm. on Agency, 103, 104, (edit. 1818) ; 1 Story on Equity Jurisp. § 506; 2 Story on Equity Jurisp. §1216,1217. 3 Abbott on Shipp, Pt. 3, ch. 10, § 2, and note to Amer. edit. 1829 ; Id. Ft. 2, eh. 2, § 10-17, and notes ; Id. § 17, 27-29 ; Id. Pt. 4, ch. 4, § 1. * Jolly V. Blanchard, 1 Wash. Cir. R. 252, 255. 4)52 AGENCY. [CH. XIV. question, since the lien extends over the whole property, as a tacit pledge ; and the agent does not seem any more bound to part with any of it, until his claim is satisfied, than a pledgee would be bound in the case of an express pledge.^ But, be this as it may be, it is certain, that the owner has a perfect right to dispose of the property, subject to the lien, as he may please ; and the party to whom he conveys it, will have a perfect title to it, upon discharging the lien.^ It may be added, that a lien is a personal privilege of the party himself, who is entitled to it, and cannot be set up by any third person against the principal, either as a defence, or as a cause of action.^ § 373. Having disposed of these general considerations in regard to liens, all of which do or may apply to liens created by agency, let us now proceed to the more immediate object of these Commentaries, and inquire, what liens belong to agents, in general, and what belong to particular classes of agents. The former may be disposed of in a very few words ; for, in cases of agency, there generally exists a particular right of lien in the agent for all his commissions, expenditures, advances, and services, in and about the property or thing intrusted to his agency, whenever they were proper, or necessary, or inci- dent thereto. This is strictly true in all cases of mere private agency, unless there is some private agreement, express or im- plied, or some usage of trade or business, which repels or excludes the lien.* Thus, for example, attorneys, bankers, brokers, factors, carriers, packers, dyers, shipwrights, wharf- ingers, commission merchants, auctioneers, supercargoes, and masters of ships have all a lien on the papers, documents. 1 See Davis v. Bowcher, 5 Term E. 488. 2 The Ship Packet, 3 Mason, R. 334 ; Walter v. Ross, 2 Wash. Cir. R. 283. 3 Holly V. Huggeford, 8 Pick. R. 73. * Paley on Agency, by Lloyd, 127, 128, 131 ; 3 Chitty on Comm. and Manuf. 537-540 ; Smith on Merc. Law, 337, (2d edit.) ; Id. B. 4, ch. 2, § 2, p. 515, (3d edit. 1843) ; 2 Liverm. on Agency, 34, 35, (edit. 1818) ; Id. 98-103 ; Montagu on Lien, Pt. 2, ch. 1, p. 26-36 ; ch. 2, p. 36-38 ; 2 Bell, Comm. § 777-779, 781, 782, (4th edit.) ; Id. p. 114-118, (5th edit.) CH. XIV.] RIGHT OF LIEN OF AGENTS. 453 goods, merchandise, and other property committed to their care in the course of their agency, for the sums due to them for their commissions, disbursements, advances, and services, in and about the same.^ § 374. Factors and agents for the purchase of goods have also a heii on the goods, when purchased, for the moneys paid and HabiHties incurred by them in respect to such purchase ; and, unless the usage of trade, or the particular agreement or course of dealing between the parties, varies this right, they are not bound to pa-rt with the possession of the goods, or to deliver them, or to ship them, subject to the absolute control of the principal, until they are reimbursed or secured for such ad- vances and liabilities.^ § 8^5. Particular liens, then, belonging to all classes of agents, let us, in the next place, inquire, to what classes of agents general liens appropriately appertain. From what has been already said, it is clear, that all general liens have their origin in the positive or implied agreement of the parties.® Some of them, however, have now, by the general usage of trade, become so fixed and invariable, that no proof whatsoever is required to establish their existence ; but courts of justice take notice of them, as a matter of course. Others, again, are 80 variable and uncertain, or are so much affected by local usages, that in all cases of controversy, they are required to be established by competent proofs, before they are admitted.* In practice, however, except for this purpose, the distinction be- i Montagu on Lien, Pt. 2, ch. 1, p. 26-30 ; 3 Chitty on Comm. and Manuf. 538-542, 589 ; Paley on Agency, by Lloyd, 127-137 ; Id. 90, 91, note ; 2 Kent, Comm. Lect. 41, p. 640, (4th edit.) ; Abbott on Shipp. Pt. 3, ch. 1, § 7 ; Id. ch. 3, § 11 ; Hunt v. Haskell, 24 Maine R. 339. 2 Stevens v. Robbing, 12 Mass. R. 180. See Williams v. Littlefield, 12 Wend. E. 362, 370 ; 2 Bell, Comm. § 775; 799, (Itb edit.) ; Id. p. 105-111, (5th edit.) ; Holbrook V. Wright, 24 Wend. R. 169 ; Knapp v. Alvord, 10 Paige, R. 205. 3 Ante, 354, 355. * 3 Chitty on Comm. & Manuf. 544-546 ; 2 Bell, Comm. § 789-806, (4th edit.) ; Id. p. 105-124, (5th edit.) 4)54! . AGENCY. [CH. XIV. tween general liens by the usage of trade, and those arising from positive or special agreement, is little attended to ; and therefore it need not be insisted on in this place.^ Let us, then, proceed to examine some of the more common cases, in which these general liens exist. § 376. And, first, in relation to factors. It is now incon- trovertibly established, as a matter of law, derived from long usage, and admitted without proofs, that factors have a general lien upon every portion of the goods of their principal in their possession, and upon the price of such, as are lawfully sold by them, and the securities given therefor, for the general balance of the accounts between thiem and their principal, as well as for the charges and disbursements, arising upon those particu- lar goods.^ The lien may also extend to all sums, for which a factor has become liable, as a surety or otherwise, for his prin' cipal, wherever the suretyship has resulted from the nature of the agency, or it has been undertaken upon the footing of such a lien.^ But it does not extend to other independent debtSj contracted before, and without reference to, the agency.* § 877' The general lien of a factor will attach, not only to goods, which have actually come into the factor's possession in the lifetime of the principal, but also to goods, which, at the 1 Ante, § 354-356. 2 Paley on Agency, by Lloyd, 128, 129, note; 2 Kent, Comm. Lect. 41, p. 640, (4tli edit.) ; 2 Liverm. on Agency, p. 38, (edit. 1818) ; 3 Chitty on Comm. and Manuf. 544-546 ; Smith on Merc. Law, 338, 339, (2d edit.) ; Id. B. 4, ch. 2, § 2, p. 515, (3d edit. 1843) ; Kruger v. Wilcox, Ambler, R. 252; Hudson V. Granger, 5 Bam. & Aid. 22, 31, 32 ; Godin v. London Assur. Co. 1 W. Bl. 104; S. C. 1 Burr. 489; Jarvis v. Rogers, 15 Mass. R. 389, 396; Peisch V. Dixon, 1 Mason, R. 10 ; Burrill v. Phillips, 1 Gallis. R. 360 ; 2 Bell, Comm. § 799, 800, (4th edit.) ; Id. p. 114-118, (5th edit.) 3 Liverm. on Agency, 38-40, (edit. 1818) ; Drinkwater v. Goodwin, Cowp. R. 251 ; Poxcroft v. Devonshire, 2 Burr. R. 931 ; Hammond v. Barclay, 2 East, R. 227 ; Paley on Agency, by Lloyd, 129, 130. * Paley on Agency, by Lloyd, 134-136 ; Drinkwater v. Goodwin, Cowper, R. 251 ; 2 Liverm. on Agency, 65, 66, (edit. 1818) ; Houghton v. Mathews, 3 Bos. & Pull. 485; Stevens v. Robins, 12 Mass. R. 182; Smith- on Merc. Law, 339, 340 ; Olive v. Smith, 5 Taunt. 56 ; Ante, § 365. CH. XIV.] RIGHT OF LIEN OF AGENTS. 4)55 death of the principal, are m transitu to the factor, and after- wards come to his hands, where he has advanced money, or accepted bills on account of them, to the extent of such ad- vances or acceptances, and the incidental charges of the con- gignmeiit.^ If goods come to the possession of the factor after a secret act of bankruptcy, committed by the principal, the factor will not be entitled to retain the goods against the as- signees, for advances or acceptances, made after such act of bankruptcy, upon the faith of the consignment of the goods to him, although such act was unknown to him at the time of the advances or acceptances ; for the act of bankruptcy devests the property out of the bankrupt.^ Whether the like eflfect would be produced, where the act of bankruptcy was committed after the advances or acceptances were made, and while the goods were in transitu to the factor, is a point, upon which doubts have been entertained; but the weight of judicial opinion seems against the lien.^ § 378. This general lien, given to factors, has been estab- lished upon its manifest tendency to aid the interests of trade and commerce, and to promote confidence and a liberal spirit on the part of factors in respect to advances to their principals.* It is deemed to exist in all cases, until the contrary presumption is clearly established. But, if such a presumption is clearly established, and, a fortiori, if an express agreement, repelling it, is proved, then the lien of the factor fails, as every other 1 Paley on Agency, by Lloyd, 140 ; Hammond v. Barclay, 2 East, R. 227 ; 2 Liverm. on Agency, 44, 45, (edit. 1818) ; 2 Bell, Comm. § 800, 801, (4th edit.) ; Id.p. 114-118, (5tli edit.) 2 Copland V. Stein, 8 Term K. 199- 3 Nichols V. Clent, 3 Price, R. 547. But see Foxcroft v. Devonshire, 2 Burr, 931 ; Kinlock v. Craig, 3 Term R. 119, 783 ; Lempriore v. Pasley, 2 Term R. 485 ; Hammond v. Barclay, 2 East, R. 227 ; 2 Liverm. on Agency, 42-48 ; Id. 69-74 ; Id. 78, (edit. 1818) ; Paley on Agency, by Lloyd, 121-123 ; Montagu on Lien, B. 1, Pt. 4, ch. 4, p. 79 ; Rice'w. Austin, 17 Mass. R. 197 ; 2 Bell, Comm. § 800, (4th edit.) ; Id. p. 114-118, (5th edit.) « Paley on Agency, by Lloyd, 128, 129. 456 AGENCY. [CH. XIV. lien does, when it contravenes the intention of the parties.-' It was formerly thought, that this lien of a factor was dissolved by the death of the principal, and that it could not be asserted against the specialty creditors of the deceased.^ But this doc- trine has no just foundation in principle ; and it has long since been deemed utterly unsupportable.^ § 379. Secondly. In relation to Insurance Brokers. This class of agents, also, have now, by general usage, a lien upon the policies of insurance in their hands, procured by them for their principals, as also upon the moneys, received by them upon such policies, not only for the amount of their commis- sions and the premiums for the particular policies, but also for the balance of their general insurance account with their em- ployers.'* But the lien does not extend to cover any balance due upon business, foreign to that of eflfecting policies of in- surance, as the usage does not , extend to such a claim ; ^ although, in many cases, it may be made available by way of set-off, and, in cases of bankruptcy, by way of mutual debt and mutual credit.^ The lien, also, for a general balance, extends to cases, where the insurance broker procures a policy for, and 1 Ante, § 362 ; 2 Liverm. on Agency, 51-54, (edit. 1818) ; Walkei- v. Biroli, 6 Term R. 258 ; Mabar v. Massias, 2 W. Black. E. 1072 ; Weymouth v. Boyer, 1 Ves.jr. 416. 2 Chapman v. Darby, 2 Vern. R. 117 ; 2 Liverm. on Agency, 79, (edit 1818.) 3 Paley on Agency, by Lloyd, 128, 129, note (m) ; Montagu on Lien, B. 1, Ft. 4, ch. 4, p. 77-80. See Lempriere v. Pasley, 2 Term R. 485, 490, 491. 4 2 Liverm. on Agency, 79, 80, (edit. 1818) ; 3 Chitty on Comm. and Manuf. 546 ; Paley on Agency, by Lloyd, 130 ; Castling v. Aubert, 2 East, R. 325, 330, 331 ; Mann v. Skiffner, 2 East, R. 523 ; Hovil v. Pack, 7 East, R. 164; Cranston v. The Philad. Insur. Co. 5 Binn. 638 ; Smith on Merc. Law, 339, 340, (2d edit.) ; Id. B. 4, ch. 2, § 2, p. 516, (3d edit. 1848) ; Springs. So. Car. Insurance Co. 8 Wheat. R. 268, 285 ; Moody v. Webster, 3 Pick. R. 454; 2 Bell, Comm. § 804, (4th edit.) ; Id. p. 114-118, (5th edit.) 5 2 Liverm. on Agency, 80-87, (edit. 1818) ; Olive v. Smith, 5 Taunt. R. 56; Paley on Agency, by Lloyd, 134-136 ; Id. 147 ; 2 Bell, Comm. § 804, (4th edit.) ; Id. p. 120-123, (5th edit.) ; Ante, § 365. 8 Olive V. Smith, 5 Taunt. R. 56 ; 2 Liverm. on Agency, 80-87, (edit. 1818); Parker v. Carter, Cooke, Bank. Law, 567, (5th edit.) ; 2 Bell, Comm. § 807, 812, (4th edit.) ; Id. p. 120-123, (5th edit.) ; Ante, § 370. CH. XIV.] RIGHT OF LIEN OF AGENTS. 457 in the name of, another, who acts as agent for a third person, where the agency is unknown to the broker ; for, in such a case, the broker has a right to treat with the agent, as if he were the principal, and his rights are not controllable by such secret agency.^ But, where it is known to the broker, that the party acts for another, there his lien is strictly confined to the commissions, and premium, and charges on that very policy.^ § 380. Thirdly. In relation to Bankers. Bankers, in like manner, have a general lien upon all notes, bills, and other securities, deposited with them by their customers, for the bal- ance due to them on general account.^ Indeed, they may properly be considered as holders for value of notes, and bills, and other securities, indorsed in blank, and deposited with them, for all advances, and for all acceptances, past and future made by them, for a customer, which exceeds its cash balance.* jAnd, under such circumstances, they may sue upon such secu- rities, and recover thereon, at least to the amount of the balance due to them.^ § S81. But here, as in other cases of lien, the right to re- tain for the general balance of accounts may be controlled by 1 Liverm. on Agency, 87-98, (edit. 1818) ; Mann v. Forrester, 4 Camp. R. 60; Westwood v. Bell, 4 Camp. R. 349; Foster d. Hoyt, 2 John. Cas. 327; Maanss v. Henderson, 1 East, R. 335. 5 Ibid. ; Snook v. Davidson, 2 Camp. R. 218 ; Mann v. Shiflfner, 2 East, R. 523 ; 2 Bell, Comm. § 804, (4tli edit.) ; Id. p. 120-123, (5tli edit.) ; Swift v. Tyson, 16 Petersf R. 1, 21, 22 ; Bank of the Metropolis v. The New England Bank, 17 Peters, R. 174; S. C. 1 Howard,|^up. Ct. R. 234. 3Paley on%gency, by Lloyd, 131 ; Davis v. Bowsher, 5 Term R. 488; Bolton u. Puller, 1 Bos. & Pall. 546 ; Giles v. Perkins, 9 East, 14; Bolland v. Bygrave, 1 feyan & Mood. 271 ; Jourdaine v. Lefevre, 1 Esp. R. 66 ; Smith on Mercantile Law, 338, 339, (2d edit.) ; Id. p. 514, 515, (3d edit. 1843) ; 2 Bell, Comm. § 803, (4th edit.) ; Id. p. 118-120, (5th edit.) 4 Bosanquet v. Dudman, 1 Starkie, R. 1 ; Scott v. Franklin, 15 East, B. 428 ; Ex parte Bloxam, 8 Ves. 531; Heywood v. Watson, 4 Bing. R. 496 ; Bramah V. Roberts, 1 Bing. New Cas. 469 ; Percival v. Frampton, 2 Cromp., Mees. & Rose. 180; Swift v. Tyson, 16 Peters, R. 1, 21, 22. «Ibid; Paley on Agency, by Lloyd, 131; Bolland v. Bygrave, 1 Ryan & Mood. 271. AGENCY. 39 4i58 AGENCY. [CH. XIV. any special agreement, which shows, that it was .not intended by the parties ; as it may also be repelled by circumstances, showing, that the securities did not come into the hands of the banker, or were not held by him, in the ordinary course of business.^ Thus, for example, if securities have been deposited with a banker, as a pledge for a specific sum, and not as a pledge generally, that will repel the inference, that they were intended to give a lien for the general account or balance be- tween the parties.^ So, a banker will not have a lien for his general balance of account on muniments, or securities, casually left at his banking house, after he has refused to advance money on them as a security.^ 8 382. Fourthly. In regard to Common Carriers. They have a lien, not only for the freight and charges of carrying the particular goods, but sometimes also for the general balance of accounts due to them. This general lien seems to have orig- inated in special agreements and notices ; but it has now be- come common. Still, however, it is so little favored, as a mat- ter of public policy, that if disputed, it must be shown to exist in the particular case, either by a general usage, or by a special agreement, or by a particular mode of dealing between the parties.* § 888. Fifthly. In regard to Attorneys at Law, and Solic- itors in Equity. They also have a general lien upon all the papers and documents of their clients in their possession, not only for all thg costs and charges, due to them in the particular ^ 1 _ 1 Ante, § 862. 2 Paley on Agency, by Lloyd, 131 ; Vanderzee v. Willis, 3 Bro. Ch. R. 21 ; Smith on Merc. Law, 338, 339, (2d edit.) ; Id. B. 4, oh. 2, § 2, p. 514, 515, (3d edit. 1843) ; 2 Bell, Comm. § 803, (4th edit.) ; Id. p. 118-120, (5th edit.) 8 Paley on Agency, by Lloyd, 131 ; Lucas v. Dorrien, 7 Taunt. K. 278 i Mountfort v. Scott, 1 Turn. & Russ. 274 ; Smith on Merc. Law, 338, 339, (2d edit.) ; Id. B. 4, ch. 2, § 2, p. 514, 515, (3d edit. 1843) ; 2 Bell, Comm. § 803, (4th edit.) ; Id. p. 118-120, (5th edit.) 4Rushforth v. Hadfield, 6 East, R. 519; S. C. 7 East, R. 224; Wright ». Sneli, 5 Barn. & Aid. 350 ; Jarvis v. Rogers, 15 Mass. R. 389, 395, 396 ; 2 Bell, Comm. § 781, 790 ; Id. p. 99-102, (5th edit.) 3 CH. XIV.] RIGHT OF LIEN OF AGENTS. 459 cause, in which the papers and documents come to their pos- session, but also for the costs and charges due to them for other professional business and employment in other causes. This has long been the settled practice, and is now fully recog- nized as an existing general right.^ But the lien upon papers and documents is only commensurate with the right of the client, who delivers the papers and documents to the attorney, and is not valid against third persons, claiming by a distinct title.^ Thus, for example, if a client, who deposits deeds and title papers with an attorney, be only tenant for life, the lien will be good against him, but not against the remainder-man.' The lien of an attorney or solicitor also extends, in England, to all moneys received, and judgments recovered, and costs taxed, for his client, subject only to any deductions, which the other party may have a right to, by way of cross-costs, or set- off.* The practice in America is probably variable, being governed by local practice, or by statutory provisions. The lien also is strictly confined to papers and documents, which come into the possession of the attorney or solicitor, in the course of professional employment.® But, upon this class of cases, it seems unnecessary to dwell, as agencies of this sort are not within the intended scope of these Commentaries. § 384. Sixthly. There are other cases in which a general lien has been admitted to exist in regard to particular classes of agents; such, for example, as packers, acting as factors, ' Ex parte Nesbltt, 2 Sch. & Left. 279 ; Ex parte Stirling, 16 Ves. 259 ; Ex parte Pemberton, 18 Ves. 382; Stevenson v. Blakelock, 1 Maule & Selw. 535 ; Hollis V. Claridge, 4 Taunt. 807 ; Montagu on Lien, B. 1, Pt. 4, ch. 3, p. 59-67 ;, Smith on Merc. Law, 338, 339, (2d edit.) ; Id. B. 1, ch. 2, § 2, p. 514, 415, (3d edit. 1843) ; 2 Bell, Comm. § 796, (4tfi edit.) ; Id. p. 111-114, (5th edit.) 2 Hollis V. Claridge, 4 Taunt. K. 807. 3 Ex parte Nesbitt, 2 Schr. & Lefr. 279 ; Montagu on Lien, B. 1, Pt. 4, ch. 3, p. 61. * Montagu on Lien, B. 1, Pt. 4, ch. 3, p. 59-63. .*Montaguon Lien, B. 1, Pt. 4, ch. 3, p. 61, 62; Stevenson v. Blakelock, 1 M. & Selw. 535. 460 AGENCY. [CH. XIV. calico-printers, fullers, dyers, and wharfingers.-' Butj, in all cases of this sort, the general lien arises, either from the usage of the, particular trade, or from a special agreement of the parties, or from the peculiar hahit of dealing between them.^ Independently of the existence of one or other of these sources of right, the law confines the parties to the particular lien on the goods themselves, incurred or due on their sole account ; and the burden of proof is on those who set up a general lien, to establish it by clear and determinate evidence.^ 8 385, We may close this part of the subject, in relation to liens by agents, by remarking, .that the mere fact, that an agent has a lien upon the property confided to him, either for his commissions, advances, disbursements, or expenses, upon that property, or for his general balance of account, does not limit the right of the agent to that mere fund ; but the principal is still liable to him personally, in a suit in personam, for the amount of the same claims.* For, by the general rule of law, an agent, in such cases, trusts both to the fund and to the person of his principal.® [And a factor who makes ad- vances on goods consigned to him, may maintain an action to recover the money advanced, even before the goods are sold, unless there is an agreement to the contrary.^] But this per- sonal liability may be waived by an express agreement between the parties, or by a course of dealing between them, which 1 Montagu on Lien, B. 1, Pt. 2, ch. 1, § 2, p. 31-34 ; 3 Chitty on Cpmm, and Manuf. 546 ; Paley on Agency, by Lloyd, 130, 131 ; Smith on Merc. Law, 338, 339, (2d edit.) ; Id. B. 4, ch. 2, § 2, p. 514, 515, (3d edit. 1843) ; 2 Bell Comm. § 792, (4th edit.) ; Id. p. 105-110, (5th edit.) ; Ante, § 34. 2 Ibid. sibid, ; Holderness v. Collinson, 7 Barn. & Cressw. 212; 2 Bell, Comm. § 792, (4th edit.) ; Id. p. 105-110, (5th edit.) 4 Ante, § 342, 362, 366. 5 BurrlU v. Phillips, 1 Gallis. E. 360 ; Peiseh v. Dickson, 1 Mason, K. 10 ; Cor- lies V. Cummings, 6 Uowen, R. 181 ; Beckwithu. Sibley, 11 Pick. R. 482 ; Ante, § 342, 362, 366. 6 Upham V. Lefavour, 1 1 Met. 1 74. CH. XIV.] RIGHT OF LIEN OF AGENTS. 461 justifies the same conclusion.^ The burden of proof of such a waiver, however, will lie upon the principal, and cannot be inferred from the mere relation of principal and factor.^ § 386. Let us, in the next place, consider what are the rights of sub-agents, in regard to their immediate employers, and also in regard to the superior or real principal. It may be generally stated, that, where agents employ sub-agents in the business of the agency, the latter are clothed with precisely the same rights, and incur precisely the same obligations, and are bound to the same duties, in regard to their immediate em- ployers, as if they were the sole and real principals. This is the general rule.^ ' But it is, of course, liable to exceptions ; for where, by the usage of trade, or the agreement between the parties, sub-agents are ordinarily or necessarily employed to accomplish the ends of the agency, there, if the agency is avowed, and credit is exclusively given to the principal, the intermediate agent may be exempted from all responsibility to the sub-agent.* But, uidess such exclusive credit is given, the intermediate agent will be liable to the sub-agent, although the superior or real principal may also be liable.^ § 387. In regard to the superior, or real principal, the gen- eral rule of law is, that, if an agent employs a sub-agent, to do the whole, or any part of the business of his agency, with- out the knowledge or consent of the principal, express or im- pHed, there, inasmuch as no privity exists in such a case between the principal and the sub-agent, the latter will not be entitled to claim from the principal any compensation for commissions, or advances, or disbursements, in the course of his sub-agency. 1 Ibid. 2 Burrill v. Phillips, 1 Gallis. R. 360 ; Peisch v. Dickson, 1 Mason, R. 10 ; Cor- lies V. Cummings, 6 Cowen, R. 181 ; Beckwith v. Sibley, 11 Pick. R. 482; Ante, § 342, 362, 366. 3 Ante, § 217, 289 ; Ersk. Inst. B. 3, tit. 3, § 49. * Ante, § 1, 5, 201, 289. 5 Ante, § 14, 15, 217. See Paley on Agency, by Lloyd, 49. 39* 462 AGENCY. [CH. XIV. But his sole remedy therefor is against his immediate employer, and his sole responsibility is also to him.^ But, where, by the usage of trade, or the express or implied agreement of the parties, a sub-agent is to be employed, there, a privity is deemed to exist between the principal and the sub-agent, and the latter may, under such circumstances, well maintain his claim for such compensation, both against the principal and the immediate employer, unless exclusive credit is given to one of them ; and, if it is, then his remedy is limited to that party .^ § 388. In the next place, in relation to the hen of sub- agents. We have seen, that, ordinarily, an agent has not a power to substitute a sub-agent in his stead, so as to bind the principal to the act of the latter, except where there is an ex- press agreement, or usage of trade, which justifies it.^ We have also seen, that, generally, a sub-agent is only responsible to his immediate employer, and not to the paramount principal;^ although this, again, may be affected by the express agreement of the parties, or by the usage of trade, creating 'a direct privity between them.s If, therefore, no privity exists between the principal and the sub-agent, no lien can be acquired by the latter against the former, unless so far as he may claim, by way of substitution, the hen of his immediate employer, of which we shall presently speak. But, wherever such a privity does exist, the sub-agent will incur a direct and immediate responsibility to the principal, and not merely to the agent, who employs him.® He will also have a reciprocal personal claim against the principal, and will be clothed with a lien against him to the extent of the services performed, and the advances 1 Ante, § 13-15, 21 7 ; Paley on Agency, by Lloyd, 49 ; 1 Liverm. On Agency, 64-66, (edit. 1818) ; Cull v. Backhouse, cited 6 Taunt. 148 ; Schmaling v. Tom- linson, 6 Taunt. R. 147. 3 Ibid. 3 Ante, § 13-15 ; 1 Liverm. on Agency, 54-66, (edit. 1818.) 4 Ante, § 13-15, 217 ; 1 Liverm. on Agency, 54-60, (edit. 1818.) . 6 Ante, § 217, 289. 6 Ante, §201, 217. CH. XIV.] RIGHT OF HEN OF AGENTS. 46S aiid disbursements, properly made by him, on account of the sub-agency.^ § 389. A sub-agent, who is employed by an agent to per- form a particular act of agency, without the privity or. consent of the principal, may also acquire a lien upon the property, thus coming into his possession, against the principal, for his commissions, advances, disbursements, and liabilities thereon, if the principal adopts his acts, or seeks to avail himself of the property or proceeds, acquired in the usual course of such sub- agency.^ For the principal will not be allowed to avail himself of the benefits of the transaction, without at the same time subjecting himself to its burdens.^ If he ratifies the acts of the sub-agent, he thereby clothes those acts with all the proper accompaniments of an original authority."* If he does not ratify them directly, still, if he seeks to avail himself of the acts of the sub-agent, so as to found derivative rights upon them, and not merely to avail himself of his original rights in his own property, paramount of those acts and independent of their aid, he must take the acts with all the responsibilities, and charges, and incidents annexed to them, according to the well- 1 Paley on Agency, by Lloyd, 148, 149 ; Snook v. Davidson, 2 Campb. E. 218 ; Lanyon v. Blanchard, 2 Campb. R. 597 ; Mann v. Shiffner, 2 East, E. 523, 629 ; 2 Liverm. on Agency, 87-98, (edit. 1818) ; Lincoln v. Battelle, 6 Wend. E. 475. ^ Paley on Agency, by Lloyd, 148, 149; Id. 49; Montagu on Lien, Pt. 1, ch. 4, p. 72-74 ; Snook v. Davidson, 2 Camp. R. 218 ; Lanyon v. Blanchard, 2 Camp. E. 597, 598 ; Westwood v. Bell, 4 Camp. E. 348, 353. 3 Ante, § 242-244, 249. *Ibid. § 253, 258, 259, ante, (4.) See also Willinks v. HoUingsworth, 6 Wheat. E. 259 ; 1 Liverm. on Agency, 54-66, (edit. 1818.) We should care- fully distinguish between cases of this sort, and cases where the principal seeks only to avail himself of his original rights in his property, which has been improperly confided to, and sold by, a sub-agent. The bringing of a suit for the property, or for the proceeds, under such circumstances, will not subj.eet the principal to the charges and expenditures, incurred thereon by the sub-agent, unless the form of the action establishes a ratification of the proceedings. See ante, § 259, and note; 1 Liverm. on Agency, 56-66, (edit. ISiS) ; Schmaling V. Tomlinson, 6 Taunt. R. 147. 4>64) AGENCY. [CH. XIV. known maxim, Qui sentit commodwm sentire 'debet et onus} But a sub-agent has no general lien upon the property of the principal, on account of any balance due to .him from the immediate agent, who employs him, when he knows, or has reason to believe, that the latter is acting for another person at the time of his sub-agency.^ At the same time, however, he* will be at liberty to avail himself of his general lien against the principal to the extent of the lien, particular or general, which the agent himself has at the same time against the prin- cipal, by way of substitution to the rights of the agent, if the acts of the latter, or his own, are not tortious.^ In this respect, there seems to be an admitted difference between the case of a pledge, or other unauthorized act, by an agent or factor, which is treated as a tortious act, and the creation of a sub-agengy, and 1 1 Co. K. 99 ; Branch, Maxims, 182, (edit. 1824) ; Solly v. Rathbone, 2 M. & Selw. 298; Cockran v. Irlam, 2 M. & Selw. 301, note; Ante, § 113, and note. 2 Paley on Agency, by Lloyd, 147-149 ; Maanss v. Henderson, 1 East, R. 335 ; Mann v. Shiffner, 2 East, R. 528, 529, n. ; Westwood v. Bell, 4 Camp. R. 348 ; Montagu on Lien, B. 1, Pt. 4, ch. 4, p. 74-76 ; 2 Liverm. on .^gency,i 87-98, (edit. 1818.) 3 Paley on Agency, by Lloyd, 147-150 ; Maanss v. Henderson, 1 East, R. 335 ; Mann v. Shiffner, 2 East, R. 523, 529 ; M'Combie v. Davies, 7 East, R. 7 ; Solly V. Rathbone, 2 M. & Selw. 298 ; Cockran v. Irlam, 2 M. & Selw. 301, note; Schmaling v. Tomlinson, 6 Taunt. R. 147 ; Montagu on Lien, B. 1, Pt. 4, ch. 4, p. 74-76. In the case of Snook v. Davidson, 2 Campb. R. 218, it seems to have been held by Lord Ellenborough, that the sub-agent could not hold, by way of substitution, the lien of his immediate employer for his general balance against the principal, but only his lien for the premium on the particular policy. This doctrine may not, at first sight, seem reconcilable with the decision of the Court, in Mann v. Shiffner, 2 East, R. 523, where a sub-agent of a policy was held entitled to retain, to the extent of the general balance of his immediate employer, against the principal. The distinction between the cases seems to be, that, in the case in 2 East, R. 523, the employment of the sub-agent was in the usual course of business ; whereas in the case in 2 Camp. 218, it was held, that there was no privity between the principal and the sub-agent, he not being employed in the usual course of business. But, as the principal sought to recover the policy, so procured by the sub-agent, it seems difficult to perceive, why the action did not amount to a ratification of the sub-agency ; and then the sub- agent, as servant of his immediate employer, would be entitled to retain for the general balance, upon the principle decided in 2 East, R. 523. CH. XIV.] . RIGHT OF LIEN OF AGENTS. 4<65 the delivery of the property to the sub-agent, in order to effectuate the original purposes of the principal, according to the usual course of business.^ In the latter case, the delivery, of the property to the sub-agent is treated as a rightful pledge, sub modo, in his favor, to the extent of the lien of the original agent.^ § 390. In many cases, however, a sub-agent, who acts with- out any knowledge, or reason to believe, that the party employ- ing him is acting as an agent for another, will acquire a rightful lien on the property, for his general balance. Thus, for example, if a sub-agent, or broker, at the request of an agent, should effect a policy on a cargo, supposing it to be for the agent himself, but, in fact, it should be for a third person, for whom the agent has purchased the cargo, and afterwards, and while the policy is in the broker's hands, he should make advances to the agent, before any notice of the real state of the title to the property, he will be entitled to a lien on the policy, and on the money received on it, to the extent of the money so advanced, and also (as it should seem) for his general balance of account againsif liie agent.^ For the broker may well be 1 Ante, § 78, 113, 235 ; Paley on Agency, by Lloyd, 213 ; Id. 143 ; Solly v. Eathbone, 2 M. & Selw. 298 ; Cockran v. Irlam, 301, note ; Montagu on Lien, B. 1, Pt. 40, ch. 4, p. 73. 2 Paley on Agency, by Lloyd, 145, 147-155 ; M'Combie v. Davis, 7 East, R. 7; Ante, § 113, and note. • 3 Mann u. Forrester, 4 Camp. R. 60 ; Westwood v. Bell, 4 Camp. R. 348, 353 ; Smith on Merc. Law, 340, (2d edit.) ; Id. p. 515, 516, (3d edit. 1843) ; Paley on Agency, by Lloyd, 148, 149 ; 2 Liverm. on Agency, 87-92; Montagu on Lien, B. 1, Pt. 4, ch. 4, p. 75, 76 ; Westwood v. Bell, 4 Camp. R. 349, 353. In this last case. Lord Chief Justice Gibbs' said : " I hold that, if a policy of insurance is effected by a broker, in ignorance that it does not belong to the persons by wjjom he is employed, he has a lien upon it for the amount of the balance which they owe him. In this case, Clarkson has misconducted himself, and is liable for not disclosing that he was a mere agent in the transaction ; but the defendants, who had every reason to believe that he was the principal, are entitled to hold the policy. If goods are sold by a factor in his own name, the purchaser has a right to set-off a debt due-from him, in an action by the principal for the price of the goods. The factor may be liable to his employer for holding himself out 4>66 AGENCY, [CH. XIV. supposed to have made the advances, or delayed his demands, relying on the credit of the policy, which is allowed to remain in his hands.^ So, if a factor should sell goods of his princi- pal in his own name, without any ifotice on the part of the purchaser, that the goods are not his own, the purchaser will as the principal ; but that is not to prejudice the purchaser, who bond Jide dealt with him as the owner of the goods, and gave him Sredit in that capacity. The lien of the policy-broker rests on the same foundation. • The only question is, whether he knew, or had reason to believe, that the person by whom he was employed, was only an agent ; and the party who seeks to deprive him of his" lien must make out the affirmative. The employer is to be taken to be the prin- cipal till the contrary is proved. If the plaintiff's assent to the employment of Clarkson is denied, then he can have no right to the policy, and there is no privity between the parties. The argument about pledging the policy is fallar cious. This never was a policy of the plaintiff's, which he held unincumbered, and handed over to his agent. In its very origin and creation it was burdened with the lien. It never has been the plaintiff's for an instant, but subject to the lien which is now claimed. The rights of the parties do not stand on the same footing as if Clarkson had said he had authority to pledge the policy ; but, as if he had said, ' The goods to be insured are mine, the policy is for my benefit alone, and I agree that, when it is effected, it shall remain in your hands till the whole of the balance I owe you is satisfied ; and on the iBtrength, you will con- tinue to trust me.' If that had passed, can I say, that the defendants are to be stripped of their rights on account of a fact of which they had no knowledge, and that they are to deliver up to a stranger the policy which they have effected under a contract, that they should hold it as a security for the balance due to them from their employer ? Nor do the cases cited ^on the part of the plaintiff at all contradict the doctrine I am laying down. In Snook v. Davidson, the person who employed the defendants to effect the policy, said, that it was for a correspondent in the country. In Lanyon v. Blanchard, likewise, the defendant must be taken to have had notice that the person who employed him was not the principal. The representation made by Crowgy, that he had authority to indorse the bill of lading, was abundantly sufficient to show that he was only an agent ; and I entirely subscribe to what Lord Ellenborough is there supposed to have laid down respecting the risk which the defendant run in giving faith to that representation. The subsequent case of Mann v. Forrester, is quite decisive. The doctrine stands upon authority as well as upon principle. I should have had no difficulty in determining the question, were it entirely neW ; and I find myself strongly fortified by the opinions of other judges." See also George v. Ciaggett, 2 Esp. R. 557 ; S. C. 7 Term R. 359 ; Rabone v. Williams, 7 Term R. 361, n. ; Paley on Agency, by Lloyd, 325-327, 329, 330 ; Baring V. Corrie, 2 Barn. & Aid. 137. 1 Ibid. CH. XIV.J RIGHT OF LIEN OF AGENTS. 467 be entitled to set off a debt, due to him from the factor, against the price of the goods.^ The ground of this doctrine undoubt- edly is, that, where any person holds himself out, as a principal, with the consent of the owner, third persons, who deal with him bond fide, are entitled to all the rights, which they would have, if he were the real principal.^ And so, if a party assumes to act as principal, being only an agent, the real prin- cipal sh^ll-not be permitted to avail himself of the benefit of the transaction, without subjecting himself to the burdens, which would attach to the transaction, if the ostensible party were the real party in interest.® iPaley on Agency, by Lloyd, 325 ; Coppin v. Walker, 7 Taunt. R. 239; Lime Kock Bank |). Plimpton, 17 Pick. E. 159 ; 2 Smith's Leading Cases, 77 and notes, (2d edit.) ; See Young v. White, 7 Beavan, R. 506. 2 Ibid. » Paley on Agency, 172-175 ; Hovil v. Pack, 7 East, R. 164, 166 ; 2 Li verm, on Agency, 87-98", (edit. 1818) ; Fergusson v. Carriugton, 9 B. & Cressw. 69 ; Ante, § 389. See Hurlburt v. Pacific Ins. Co. 2 Sumner, R, 475 ; Ante, § 389. 468 AGENCY. [CH. XV. CHAPTER XV. RIGHTS OF AGENTS IN REGARD TO THIRD PERSONS. § 891. Having considered the rights of agents in i%gard to their principals, we may next proceed to the consideration of their rights in regard to third persons, vi^hich will also include a review of *he duties and ohligations of the latter to the former. We have already had occasion to remark, that, in general, agents, acting openly and notoriously as such, do not, by their acts or contracts, made or done in the name of their principals, incur any personal responsibility whatever ; but they are treated not so much as parties thereto, as .they are as in- struments, through whom the acts or contracts of their princi- pals are effected.^ Hence it is, that, ordinarily, an agent, con- tracting in the name of his principal, and not in his own name, is not entitled to sue, nor can he be sued, on such contracts.^ Thus, an agent selling the goods of his principal in his name, and as his agent, cannot ordinarily sue on the contract, as for goods sold and delivered. This is clearly illustrated in the common case of a sale made by a clerk or shopman in a shop, who has no right whatsoever to sue on the contract ; but the right belongs exclusively to his superior or employer. So, if a purchase is made by. a clerk or shopman, for and in the name of his principal, the latter only is liable on the contract ; for the natural, if not the necessary, implication, in such cases, is, that credit is exclusively given to the principal, and that the clerk or shopman acts as a mere naked agent for him in mak- 1 Ante, § 160, 161, 261-263. 2 Ante, §102* note, § 160,161,169,170, 261-263; G-iHinu. Cantine, 10 Johns, R. 387 ; 2 Liverm. on Agency, 215, 216, (edit. 1818.) CH. XV.] RIGHTS AS TO THIRD PERSONS. 469 ing the bargain.-' We have seen, that the Roman law origi- nally proceeded upon an opposite principle, holding the agent, in such cases, personally and exclusively liable, until the Prsetor introduced an equitable remedy against the principal.^ § 892. But there are exceptions to, or rather modifications of, the doctrine in both respects. We have already had occa- sion to state, that, where agents contract in their own name, although notoriously for their principals, they are deemed to be parties to the contract, and are liable thereon ; and that such liability may exist, notwithstanding the principal is also liable on the same contract.^ But the exceptions, or modifications of the doctrine, which now require our more immediate attention, respect the cases, where the agent acquires rights against third persons, notwithstanding he acts merely as agent. This sub- ject naturally divides itself into two branches ; first, the cases in which agents acquire rights, founded upon contracts made by them in that character, against third persons ; and secondly, the cases, in which they acquire rights against such persons, founded upon the torts of the latter to them in the course of their agency. § 893. And, first, in relation to the rights of agents against third persons, founded upon contracts made by them. These rights, being in derogation of the general doctrine already stated, apply only to special and particular cases. They are- all resolvable into the following classes : First, where the con- tract is made in writing expressly with the agent, and imports^ to be a contract personally with him, although he may be^ known to act as an agent.* Secondly, where the agent is the ' Ante, § 160, 161, 261-263, 269, 270. "2 Ante, § 163, 261, 262, 269, 271. 3 Ante, § 154-159, 161, 266-270, 275 ; Pentz v. Stanton, 10 Wend. K. 271 ; Beebee v. Robert, 12 Wend. R. 413 ; Higgins v. Senior, 8 Mees. & Welsb. 480 ;, Ante, § 270, note. * See Ante, § 266, 269, 275, 278 ; 3 Chitty on Comm. and Manu£ 210, 211 Clay V. Southern, 7 Exch. R. 71 7 ; Burrell v. Jones, 3 Barn. & Aid. 47 ; Ireson. v. AGENCY. 40 470 AGENCY. [CH. XV. only known or ostensible principal, and, therefore, is, in con- templation of law, the real contracting party .^ Thirdly, where by the usage of trade, or the general course of business, the agent is authorized to act as the owner, or as a principal coh^ tracting party, although his character as agent is known.^ Fourthly, where the agent has made a contract, in the subject- matter of which he has a special interest or property, whether he professed at the time to be acting for himself, or not.^ In all these cases, the agent acquires personal rights, and may maintain an action upon the contract, in his own name, without any distinction, whether his principal is, or is not, entitled also to similar rights and remedies on the same contract.* § 394f, The first class may be illustrated by the common instance of a promissory note, given to an agent as such, for the benefit of his principal, where the promise is, to pay the money to the agent eo nomine, in which case he may sue on the note in his own name.^ So, a promissory note, promising to pay A and B, " trustees of — - — ," (naming the corporation,) may be sued by A and B, as proper parties thereto.^ So, a prom- issory note, made payable, or indorsed to A, "cashier," or order, may be sued by him personally, he being the cashier of Conington, 1 Barn. & Creesw. 160; Post, § 394-396; 1 Liverm. on Agency, 215-221, (edit. 1818) ; BanfiU v. Leigh, 8 T. Rep. 571. See Hudson v. Gran- ger, 5 B. & Aid. 27, 32, 83 ; Fisher v. Ellis, 3 Pick. R. 322 ; Fairfield v. Adams, 16 Pick. 881 ; Ante, § 260, 260 a, 269, 270 ; 2 Kent, Comm. Lect. 41, p. 631, 632, (4th edit.) But see Garland v. Reynolds, 2 Appleton, R. 45. I'See ante, 102, note, ICO, 161, 266-270, 293 ; Post, § 396. 2 See ante, § 268-270, 278 ; Post, 397. 3 Smith on Merc. Law, p. 138, (3d edit. 1843.) See Dunlap v. Lambert, 6 Clark & Finnell. 600, 626,627; Bryan v. Wilson, 27 Ala. R. 215 ; Post, § 394, 897, 407, 408, 424. 4 See ante, § 160, 162, 268-270, 272-275, 278. 5 Commercial Bank v. French, 21 Pick. 486 ; Fairfield v. Adams, 16 Pick. K. 881 ; Fisher v. Ellis, 3 Pick. 822 ; Ante, § 260, 260 a, 269, 270. But see In- habitants of Garland v. Reynolds, 2 Applet. R. 45, and other cases cited in note to ante, § 269. Binney v. Plumley, 5 Vermont R. 500. 6 Binney V. Plumley, 5 Vermont R. 500. CH. XV.] RIGHTS AS TO THIRD PERSONS. 4*71 a bank.^ So, a promissory note, payable to A, " commissioner and agent for the inhabitants of the county of B," may be sued by A, as a proper party .^ Sp, if a promissory note should contain a promise by the maker to pay to A, for the use or the benefit of B, a certain sum of money, A, and not B, would be the proper person to maintain an action on the note.^ So, a promise to pay A, " guardian of B," may be sued by A, and cannot be sued by B.* So, a note to A and B, trustees of the corporation of B, might be sued by A and B, and not by the corporation.* So, where a bond is given to A, for the use of himself and B, it will be treated as a bond given to A, and he is solely entitled to sue thereon, as obligee; and B can neither sue thereon, nor release it at law.^ So, where an acceptance is, to pay an agent the amount of a bill of exchange, he may, although he is a known agent, sue thereon in his own name.' So, if an agent is the shipper of goods, and by the bill of lad- ing they are deliverable to him or his assigns, he paying freight, he may sue thereon, although he is a known agent ; for the bill of "lading amounts to a direct contract with him.® So, if a sale note purport to be made by A, on account of B, and the purchaser is to pay A, by a bill payable a;t a future day, it seems, that A may sue on the contract, especially if he has a 1 McHenry v. Ridgely, 2 Scamm. K. 111. 309 ; Portei" v. Nekervis, 4 Kand. Virg. R. 339 ; Johnson v. Catlin, 27 Verm. 89 ; Post, § 395. ^ McConnell v. Thomas, 2 Scamm. 111. K. 313. But see ante, § 269, note, and post, § 395. 3 Buffum V. Chad wick, 8 Mass. K. 103 ; Doe v. Thompson, 2 Foster, 217. 4 Wheelock v. Wheelock, 5 Verm. K. 433. s Binney v. Plumley, 5 Verm. 500. 8 Offley V. Warde, 1 Lev. 235. See also the Reporter's note to Piggott v. Thompson, 3 Bos. & Pull. 149 (a.) ' Van Staphorst v. Pearce, 4 Mass. R. 258. 8 See Joseph v. Knox, 3 Camp. R. 320; 1 Liverm. on Agency, 216, 217, (edit. 1818) ; Griffith v. Ingledew, 6 Serg. & R. 429. But see Abbott on Shipp. Pt. 3, ch. 2, § 3, p. 216, (Amer. edit. 1829) ; Id. Pt. 3, ch. 7, § 4, p. 285-287, and notes to Amer. edit. 1829. See Sargent u. Morris, 3 B. & Aid. 277; Ante, § 263, 264. 472 AGENCY. [CH. XV. beneficial interest in it.^ So, if a negotiable note is indorsed in blank, and sent by the owner to his agent for collection, the agent may sue thereon in, his own name, as indorsee.^ So, where a policy of insurance is procured to be underwritten by an agent in his own name, for the benefit of a particular per- son, or for whom it may concern, the agent may sue thereon, in his own name, for any loss occurring under the policy ; for he is treated as a direct party to the contract, and the under- writer undertakes to pay the loss to him.^ And yet, in such a case, there is no doubt that the principal may sue in his own name, on the same policy.* So, in the case of a bill of lading, 1 Atkyns v. Amber, 2 Esp. K. 493; 2 Liverni. on Agency, 217-219, (edit. 1818.) 2 Solomons v. Bank of England, 13 East, R. 135, n ; Clarke v. Pigot, 12 Mod. R. 195 ; Adams v. Oakes, 6 Carr. & Payne, 70 ; De la Chaumette v. Bank of England, 9 B. & Cressw. 208 ; Little v. Obrien, 9 Mass. R. 423 ; Brigham v Marean, 7 Pick. R. 40 ; Banks v. Eastin, 15 Martin, R. 291 ; Ante, § 227, 228; 1 Bell, Comm. § 412, p. 392, (4th edit.) ; Id. p. 493, 494, (5tli edit.) ; U. States V. Dugan, 3 Wheat. R. 172, 180 ; Guernsey v. Burns, 25 Wend. 411 ; MoCon- nell V. Thomas, 2 Scamm. 111. R. 313; Story on Bills of Exchange, § 224; Contra, Thatcher v. Winslow,. 5 Mason, R. 58 ; Sherwood v. Roys, 14 Pick. E. 172. The latter was a note payable to bearer, and held by the agent to collect; but no transfer of the property was intended. There were some peculiarities in this case, as well as in that of Thatcher v. Winslow, which distinguish them from the other cases, and may, perhaps, reconcile them with the general doc- trine stated in the text. 3 Ante, § 109, 111, 160, 161, 272^, 273 ; Post, § 498; Paley on Agency, by Lloyd, 361, 362 ; 2 Story on Equity Jurisp. § 460 ; Usparicha v. Noble, IS East, R. 332 ; Sargent v. Morris, 3 B. & Aid. 277, 280. 4 Ibid. We have already seen, that this doctrine is not peculiar to the Eng- lish law ; but that it is recognized in the jurisprudence of continental Europe. See ante, § 109, 111, 272, 273 ; 1 Emerigon, Assur. ch. 5, § 3, p. 137, 138 ; Id. § 4, p. 139-141 ; Pothier, Traitd d' Assur. n. 96 ; 2 Valin, Comm. Liv. 3, tit. 6, art. 3, p. 132, 133. In Sargent v. Morris, 3 B. & Aid. 277, 280, Mr. Justice Bayley said : " Now, I take the rule to be this, — if an agent acts for me, and on my behalf, but in his own name, then, inasmuch as he is the person with whom the contract is made, it is no answer to an action in his name to say, that he is merely an agent, unless you can also show that he is prohibited from carrying on that action by the person' on whose behalf the contract was made. In such cases, however, you may bring your action, either in the name of the party by whom the contract was made, or of the party for whom the contract was made. CH. XV.] RIGHTS AS TO THIRD PERSONS. 473 signed by the master, he may sue for the freight and primage,^ So; upon a charter-party, executed by the master in his own name, on behalf of the owner, he may sue for any breach of the covenants contained therein on the part of the charterer.^ Indeed, for many purposes, as we have already seen, masters of ships are treated as possessing the powers and rights of owners.^ The same principle applies generally to cases, where contracts are made by agents with third persons, under the seal of both parties, and the contracts are in their own proper names ; for, in such cases, the principal cannot be treated as a party in form, or entitled to avail himself of the contract ex directo, however he may be indirectly bound by, or entitled to avail himself of it.* § 395. In all the foregoing cases, it is apparent, that the agent is the direct party, with whom the contract is made ; and, therefore, no difficulty can arise as to his title to sue.® But it is sometimes a matter of difficulty, upon the face of a writing, to ascertain who is the proper party contracted with, whether he be the principal, or the agent. In such cases, re- sort must be had to the whofe instrument, in order to ascertain who that party is ; and, when the proper interpretation is fixed. In policies of insurance, it is a common practice to bring your action, either in the name of the agent or principal." Where the policy of insurance is under seal, there, upon principles already suggested, the action must be brought exclusively in the name of the agent. Paley on Agency, by Lloyd, 362 ; 3 Chitty on Comm. and Manuf. 211 ; Ante, § 155, 160-162 ; Id. 272-278 J Shack V. Anthony, 3 M. & Selw. 573. ' Abbott on Shipp. Ft. 3, ch. 7, § 4, p. 282-28S, (Amer. edit. 1829) ; Id. Pt. 3, ch. 3, § 11, p. 246-249. ^Abbott on Shipp. Pt. 3, ch. 1, § 2, (Amer. edit. 1829) ; Ante, § 116, 158, 161, 278, 278, 294; 3 Chitty on.Comm. and Manuf. 210, 211; Post, § 399, 400. 3 Ante, § 116, 160 a, 161, 294, 298, 299. * Ante, § 155, 160, 160 a, 161, 162, 272, 273, 275-278 ; Hopkins v. Mebaffey, U Serg. & R. 129 ; Ante, § 273, note (1) ; 3 Chitty on Comm. and Manuf. 211 ; Hanford v. McNair, 9 Wend. R. 54; Blood v. Goodrich, 9 Wend. R. 68; Spencer v. Field, 10 Wend. R. 87 ; Potts v. Rider, 3 Hamm. Ohio R. 71. 5 See Hudson v. Granger, 5 Barn. & Aid. 27, 32, 38. 40* 474 AGENCY. [CH. XV, the law will act accordingly upon it. Some cases may be use- ful to illustrate the difficulty as well as to show the manner in which it has been overcome. Thus, for example, where A, in writing, agreed to pay the rent of certain tolls, which he had hired for three years of certain commissioners for drainage, " to the treasurer of the commissioners," it was held, that no action was maintainable by the treasurer in his own name for the rent, but that it was a promise to the commissioners to pay the rent to the person whom they should, from time to time, appoint to receive it.^ So, where certain persons signed a sub- scription paper, to take certain shares in a turnpike corporation, set against their names, and to pay on demand to A. B. or order, all assessments, made by the corporation for the purposes of the road ; it was held, that A. B. (who was agent of the corporation) could not recover upon the promise in his own name ; but that the suit must be brought in the name of the corporation, upon the ground, that, there being no con- sideration between the agent and the subscribers, he could not support an action.^ So, where an attorney gave a receipt 1 Piggott V. Thompson, 3 Bos. & Pull. 147, 150 ; 2 Liverm. on Agency, 215, 216, (edit. 1818.) 2 Gilmore v. Pope, 5 Mass. R. 491 ; Ante, § 274. It is somewhat difficult to reconcile this case with other admitted doctrines. If there be a consideration for a promise, it does not seem' material, from whom it comes. See on this point Piggott V. Thompson, 3 Bos. & Pull. i47, and the note (a), of the Reporters, p. 149. Lord Alvanley, in the case of Piggott v. Thompson, said : " It is not necessary to discuss, whether, if A let land to B, in consideration of which the latter promises to pay the rent to C, his executors and administrators, C may maintain an action on this promise." The Reporters, in their note, say : " This very point arose in Lowther v. Kelly, 8 Mod. 115, where the plaintiff's attorney had made a lease by indenture to the defendant in his own name, rendering rent to the plaintiff, whom the defendant covenanted to pay. But the case appears to have been adjourned, after- argument, without any decision. It is said by Levinz, J., in Gilby v. Copley, 3 Lev. 139, that, when a deed is made inter partes, 3, stranger shall not take advantage of a covenant made for his benefit. But, where it is not made inter partes, he may, whether the deed be indented or not. For this he cites Cooker v. Child, Hil. 24 and 25, Car. 2, B. R., which was an action on a charter-party indented in these terms : ' This CH. XV.] RIGHTS AS TO THIRD PERSONS. 475 by which he acknowledged, that he had received of A. B. an agreement between C. & D. " assigned to S. S., to collect the money therein contained," it was held, that A. B., being the indented charter-party witnessetK, that Bindly, master and part owner of the ship, with the consent of Cooker, the other part owner, hath let the ship to Child, on such a voyage ; ' and Child covenanted with Bindley, necnon with Cooker, to pay £300 ; and it was held, that Cooker might maintain the action. Lord Holt'also, in Salter v. Kingley, Garth. 7 7, held, that one party to a deed could not covenant with another, who was no party, but a mere stranger to it. So, vthere a bill was sealed in this manner : ' Received of A £40 to the use of B and C, equally to be divided, to be repaid at such a time to the use of B and C,'. it was resolved, that B and C might each sue for £20. Shaw v. Sherwood, Cro. Eliz. 729, affirmed in error, Yelv. 23. , But, where a bond was made to A for the benefit of B, it was adjudged the latter could neither sue upon it, nor re- lease it, he not being a party to the bond. Offley v. Ward, 1 Lev. 235. Vide etiam 2 Inst. 673. With respect -to the right of a third person to sue upon a parol promise made to another for his benefit, there is great contradiction among the older cases, all which are collected 1 Vin. Abridg. fol. 333-337, Actions of Assumpsit, Z. But, in Button v. Poole, Mich. 29, Car. 2, B. K. 2 Lev. 210 ; S. C. 1 Vent. 318; S. C. Sir T. Bay. 302 ; and S. C. Sir T. Jones, 102, the point seems to have been very fully considered and very solemnly decided. There, the father of the plaintiff 's wife, being seised of a wood, which he in- tended to sell to raise fortunes for younger children, the defendant being his heir, in consideration that he would forbear to sell it, promised to pay his daughter, the plaintiff''s wife, £1,000, for which the action was brought ; and it was held, that the plaintiff" might well maintain the action ; which decision was affirmed in the Exchequer Chamber. In that case, indeed, some stress was laid upon the nearness of relationship between the plaintiff's wife and her fatl^pr, to whom the promise was made. But another case has since occurred, to which that reason does not apply. In Martin v. Hinde, Cowp. 437, the plaintiff" declared against the defendant, rector of A, upon an instrument in writing, dated, &c,, whereby the defendant promised the plaintiff to retain him as curate, till, &c., and to allow him £50 per annum. The instrument produced in evi- dence was a certificate, addressed to the bishop, whereby the defendant nomi- nated the plaintiff his curate, and promised to allow him £50 per annum. Upon this evidence the plaintiff was, after argument, held entitled to recover against the defendant. So in Marchington v. Vernon, 1 Bos. & Pull. 101, in notis, BuUer, J., expressly says : ' If one person makes a promise to another for the ben- efit of a third that third may maintain an action upon it.' " The decision in Gil- more u. Pope, 6 Mass. K. 491, seems also in direct conflict with the doctrine in Higgins V. Senior, 8 Mees. & Welsh. R. 834, 844; Ante, § 160, 160 a, 270. See . also Binney I). Plumley, 5 Vermont R. 500. See also 2 Liverm. on Agency, 217-220, (edit. 1818) ; Taunton and South Boston Turnpike u. Whiting, 10 Mass. R. 327, 336, commenting on Gilmore v. Pope, 5 Mass. R. 491. 476 AGENCY. [CH, XV. mere agent of S. S., could not sue the attorney for the moneys collected ; but that the suit should be by S. S. So, where a bill of lading acknowledged that the master had received the goods of A, and the master undertook to deliver them to A, and in his name, according to usage, to B or his assigns^ (he or they) paying freight ; and the goods were the property of A ; it was held, that A, not B, ought to bring a suit for the goods, or for damages done to them.^ So, where a bill of lading was for a shipment of goods consigned to A for the ac- count of B ; it was held, that B, and not A, was the proper party to bring an action for the non-delivery.^ So, where the mayor of a corporation, in behalf of himself and the rest of the burgesses and commonalty of the corporation, signed in his own name, as mayor, a memorandum of a sale of some 1 Sargent v. Morris, 3 Barn. & Aid. 277. See also Evans v. Marlett, 1 Ld. Kaym. 271 ; 12 Mod. E. 156 ; 3 Salk. 291. But see Paley on Agency, by Lloyd, 364; Ante,§ 263, 269, 274, 394. 2 Ibid. It has been matter of some contrariety of opinion, whether, if a bill of lading contains a clause, that the goods shall be delivered to the shipper or his assigns, and it is indorsed to an agent of the shipper, the agent can, as con- signee, maintain an action for the non-delivery or conversion of the goodsj as he has no interest in them before they come to hand. In Coxe », Harden, 4 East, E. 211, the Court intimated a strong opinion, that he could not. Lord Ellenjjorough, in Waring v. Cox, 1 Camp. E. 369, ruled the same point the same way. But Mr. Paley says, that it seems at present to be settled, that he may, provided the consignment be not countermanded. But for this he cites no authority, except an unreported anonymous decision before Lord Ellen- borough, at the sittings after Trinity Term, 1810. Paley on Agency, by Lloyd, 364. See Abbott on Shipp. Pt. 3, oh. 2, § 3, p. 216, (Amer. edit. 1829) ; Ante, , § 274, and note. In Griffith v. Ingledew, 6 Serg. & E. 429, goods were shipped, at Liverpool by A on his own account, but by the bill of lading they were made deliverable to B or his assigns at Philadelphia. The freight on the goods was paid at Liverpool by A. It was held, that B could maintain an action against the owner of the ship for loss by tie negligent carriage of the goods, although B was but an agent ; for the legal property by the bill of lading vested in B in trust for A. This last case contains a review of the English decisions, and, as there was a difference of opinion on the bench, (Mr. Justice Gibson dissenting,) the point was examined with extraordinary care and ability. See Amos v. Temperley, 8 Mees, & Welsb. 798 ; Ante, § 263, 274 ; Dunlap ». Lambert, 6 Clark & Finnell, E. 600, 626, 627 ; Ante, § 2^4, and note. CH. XV.] RIGHTS AS TO THIRD PERSONS. 477 real estate of the corporation with the purchaser, and they thereby mutually agreed to perform and fulfil, on each of their parts respectively, the conditions of the sale ; it was held, that the mayor could not maintain an action upon the agreement against the purchaser for a breach thereof; for he acted merely as agent of the corporation, and did not contract on behalf of himself personally.^ So, where a note was given by B to A, "Treasurer of the committee of the surplus fund" of a town, for money loaned by it with the authority of the town, it was held, that the suit was properly brought in the name of the town, and could not be properly brought by A in his own name, as he had no interest in the note.^ So, where a note was given to A, the land agent of a State, in his official capacity, it was held, that the suit ought to be brought in the name of the State, and not of A.^ So, where a note was given payable " to the cashier of the Conimercial Bank, or order," it was held, that the bank might properly maintain a suit thereon in its corporate name.* So, where a person subscribed an engagement to pay to A. B., or order, all assessments on shares taken by him in a Turnpike Corporation, it was held, that the corporation might maintain an action thereon, A. B. 1 Bowen v. Morris, 2 Taunt. R. 374 ; Ante, § 154. It must be admitted, that some of these cases stand upon very nice and critical grounds. The true prin- ciple undoubtedly is, that, wherever, taking the whole language of the instrument together, it is to be inferred, that the promise is made, not to the agent person- ally, but through him to the principal, there the suit should be brought in the name of the principal, and not of the agent. But there certainly is no legal difficulty in making a promise to an agent to pay him money, or to deliver to him goods for the use or benefit of his principal ; and in such a case it should seem, that the agent might maintain a suit in his own name upon such a con- tract. See ante, § 154, 395 ; 2 Liverm. on Agency, 216-225, (edit. 1818.) 2 The Inhabitants of Gariand ;;. Keynolds, 2 Applet. R. 45. But see ante, §394. 3 Irish V. Webster, 5 Greenl. R. 171. * Commercial Bank v. French, 21 Pick. R. 486. And see Eastern Railroad' ti. Benedict, 5 Gray; Ante, § 154, 155, 161, 269, 270, 275. See abo Medway Cotton Man'y v. Adalns, 10 Mass. R. 360 ; Ante, § 269, note ; Woodstock Bank V. Downer, 27 Verm. 482 478 AGENCY. [CH. XV. being their agent, and that the agent, A. B., could not.^ So, a note given to A, " as town treasurer," is not suable in his own name,^ but" is suable in the name of the town.^ The like interpretation has been applied to a note payable to A, "town treasurer, or his successors in office,"* and to a note payable to the selectmen of the town of A.^ [But in a later case in the same Court, this doctrine was doubted, and it was there held that a promissory note payable to " A. B., cashier," might be sued by A. B. in his own name.^] 1' Taunton'and South Boston Turnpike v. Whiting, 10 Mass. R. 327; Gilmore B. Pope, 5 Mass. K. 491. It is very difficult if not impracticable, to reconcile all the cases upon this subject. Many of them might be reconciled by the doc- trine, that either the agent or the principal might sue in such cases. See Dupont V. Mount Pleasant Co. 9 Kichardson, 259. 2 Sed qucere, as to not being suable in his own name. 3 Hinds V. Stone, Brayton's liep. 230. * Arlington v. Hinds, D. Chipman's K. 431. 5 Middleburyu. Case, 6 Verm. R. 165. 6 Johnson v. Cathin, 27 Verm. 87. And Bennett, J., said : " At somewhat of an early day, in the case of the Town of Arlington v. Hinds, 1 D. Chip. 431, it was held that where the note was given to Luther Stone, town treasurer, or his successors in oiEce, the action might be maintained on it in the name of the town of Arlington ; and, in that case, the position was advanced by the judge who gave the opimon of the Court, that, though the action might be maintained in the name of the town, yet it would not follow but what Stone might also have the action in his own name. The principles of that case have been followed in several subsequent case^. The case in Chipman aro^e under somewhat peculiar circumstances, and the Court must have been pressed with the necessity of sus- taining that action to prevent a failure of justice in that particular case, and the Court found it necessary to assume that the law merchant was not adopted in this State, in order to avoid the effect of the position that, upon commercial paper, the person who appears upon the face of the paper to have the legal interest, must sue; and that you cannot resout to matter aliunde the note to determine who may sue upon it. But it has long been settled in this State, that the law merchant was a part of our law, so that it now appears that the very ground upon which the case of Arlington v. Hinds was based, has been long since swept away. If the principles which are applicable to the case of prin- cipal and agent could have been rightly applied to the case of Arlington v. Hinds it might have been sound. In such case it is familiar law, that the action may be brought in the name of the principal from whom the consideration moves, or in the name of the agent with whom the contract was ostensibly made. Though this Court have been repeatedly called upon to repudiate the case of Arlington CH. XV.] RIGHTS AS TO THIRD PERSONS. 479 § 396. The second class of cases would seefli scarcely to re- quire any illustration ; for, as the agent acts in his own name, without disclosing any other principal, it follows, as an irresisti- ble inference, that the other contracting party binds himself personally to the agent. This, indeed, would seem justly to follow from the reciprocity of obligation on the other side ; for (as we have already seen) the agent is in every such case un- deniably bound by his personal promise to the other party.-^ Hence it is, that if an agent sells the goods of his principal in his own name, and as if he were owner, he is entitled to sue the buyer for the price in his own name, although the principal may also sue.^ [So, if he sells goods on a condition not com- plied with, he may maintain replevin for the same.^ And, on the other hand, if he buys goods in his own name, as pur- chaser, he may maintain action on the contract against the V. Hinds, as being a departure from the pi-inciples of the law merchant, they have hitherto declined ; and subsequent decisions have been made upon the authority of that case, which would seem to be opposed to the current of the cases, which have been decided upon the principles of the commercial law. It may be a matter of some importance that there should be a uniformity of decision on commercial questions in the different States, and how long our courts will adhere to the authority of the case of Arlington v. Hinds for the sake of preserving uniformity in our own decisions, though it mars the symmetry of the commercial law, must depend upon the subsequent adjudications of this Court. There may be a difficulty, as the counsel argue, upon the principles of the commercial law, in holding that either the ca«hier or the bank can maintain an action on this bill, at their own election. But let that be as it may, we think it is clear that this action is well brought. The cases are numerous, where it lias been held in cases of promissory notes and bills of exchange, that a promise to the agent, naming him, and not his principal, although the word agent, or cashier, be added to his name, is a promise to the agent, as an individual, and the addition is simply descriptive of the person." 1 Ante, § 266-270, 290, 291 ; 3 Chitty on Comm. and Manuf 211-214 ; Ante, § 160; Paley on Agency, by Lloyd, 288, 289; Id. 861, 362; Id. 364-367; Leeds v. The Marine Insur. Com. 6 Wheat. 565 ; Sims v. Bond, 3 Barn. & Adolph. 393. 8 Ante, § 290, 291, 293; Beebee v. Robert, 12 Wend. 413; Bickerton ». Burrell, 5 M. & Selw. 383. See also Kayner v. Grote, 15 Meeson & Welsby, K. 359; Post, §496, note. 3 Tyler v. Freeman, 3 Cash. 261. 480 AGENCY. [CH. XV. seller, whether it be for a delivery thereof, if wrongfully with- held, or upon any warranty on the same, in the same manner, as if he were the only party in interest.^ The principle will apply with far greater force, when the agent has an interest in the property, or a lien on it, as we shall more fully see in the succeeding pages.^ § 897- The third class of cases is, where, by the usage of trade, or the general course of business, the agent, although known to be acting as such. Is dealt with, as if he were the owner or principal, so that the contract is deemed a personal contract with him. In cases of this sort, it seems to be wholly immaterial, whether the contract is deemed to be exclusively made with the agent, or whether the real principal, also, has a right, as an implied party, to avail • himself of the contract.^ The fourth class of cases is, where the agent has made a con- tract, in the subject-matter of which he has a special interest or property, whether he professed at the time to be acting for himself or not. For the most part, the illustrations arising under the third and fourth classes, embrace mixed considera- tions, dependent upon the usage of trade and business, and a special Interest or property of the agent in the thing contracted for, or the business done. They will, therefore, be convenient- ly discussed together. It may be laid down,' as a general rule, that wherever an agent, although known to be such, has a special property in the subject-matter of the contract, and not a bare custody thereof, or where he has acquired an Interest in it, or has a lien upon it, he may. In all such cases, sue upon the contract.* Thus, for example, as we have seen, an auctioneer 1 Ante, § 290, 291, 293; Beebee v. Robert, 12 Wend. 413; Bickerton !>. Burrell, 5 M. & Selw. 3a3. See also Rayner v. Grote, 15 Meeson & Welsby, R. 359 ; Post, § 496, note. 2 1 Liverm. on Agency, 220, (edit. 1818) ; 3 Chitty on Comm. and Manuf. 211; Post, §397. 3 Ante, § 269, 270, 272-280 ; Post, § 403-412, 418-440. 4 Atkyns u. Amber, 2 Esp. R. 498; Ante, § 164; 1 Liverm. on Agency, 215-219, (edit. 1818) ; Joseph v. Kno.K, 3 Camp. R. 320 ; Williams v. Millington, CH. XV.] RIGHTS AS TO THIRD PERSONS. 481 may maintain an action in his own name, for goods sold by him at public or at private auction.^ It will make no dif- ference in the case, that the goods are even sold on the land of the owner, and are known to be his property ; for an auctioneer has a possession, coupled with an interest, in goods which he is employed to sell, and not a bare custody, hke a servant or shopman.^ An auctioneer, also, has a special property in the goods to be sold, and a lien for the charges of the sale, and for his commissions.^ § 398. Upon a similar ground, if an agent is answerable to his principal for the price of the goods sold by him, or for any other debt contracted by or with him in the course of his agency, he will be entitled to sue for the price, or other debt, in his own name.* Thus, for example, an agent selling under a del credere commission, is entitled to sue for the price of the goods sold by him. Indeed, as between himself and the vendee, he is generally treated as the owner of the goods ; and of course he is entitled to the general rights of an owner ; but still he is so, object to the superior rights of the principal, not incompatible with his own.^ So, if an agent procures a policy of insurance in his own name for his principal, and pays the premium ; and it turns out, in the event, that the policy never attached, or is void from some circumstance, of which he had no knowledge ; he may sue for and recover back in his own name the premium, which he has paid therefor.® So, if an 1 H. Black. 81, 84 ; Paley on Agency, by Lloyd, 361, 362 ; Sargent v. Morris, 3 Barn. & Aid. 276, 280, 281 ; 3 Chitty on Comm. and Manuf. 210, 211 ; Leeds V. The Marine Ins. Com. 6 Wieat. 565. ' Ante, § 27. 2 Ante, § 27 ; Williams v. Millington, 1 H. Black. 81, 84. See also Kobinson V. Kutter, 30 Eng. Law & Eq. R. 40l"; Coppin v. Walker, 7 Taunt. E. 237 ; 3 Chitty on Comm. and Manuf. 210, 211 ; Coppin v. Craig, 7 Taunt. R 243. 3 Williams v. Millington, 1 H. Black. 81, 85 ; Ante, § 27. 4 3 Chitty on Comm. and Manuf. 210, 211. 5 Houghton V. Mathews, 3 Bos. & Pull. 485, 489 ; 3 Chitty on Comm. and Manuf. 211 ; Post, § 402, 463. 6 Oom V. Bruce, 12 East, 225. See Leeds v. Mar. Ins. Com. 6 Wheat. 565. AGENCY. 41 482 AGENCY. [CH. XV. agent has transferred the money or property of his principal, under circumstances which give him a right to recover it back, he may do so in his ovra name, notwithstanding his principal may maintain a like suit therefor ; the agent (as was said by Lord Mansfield) may maintain the suit from the authority of the principal, and the principal may maintain it, as proving it paid by the agent.^ But perhaps, strictly speaking, the agent acquires such right, because of his responsibility for the money or property to his principal, and the interest which he has in indemnifying himself. Indeed, the proposition may be laid down in broader terms, that, if an agent pays money for his principal, by mistake or otherwise, which he ought not to have paid, the agent, as well as the principal, may maintain an action to recover it back.^ § 399. The cases of contracts made by masters of ships, relative to their repairs and usual employment, and other inci- dental contracts, belonging to their office and duties, fall under the like consideration. We have seen that the master of a ship is ordinarily liable on all such contracts, made in virtue of his office ; and there is a reciprocal obligation on the other party to the master.^ Indeed, it would be an anomaly to hold that the contract is, for the purpose of charging the master, personal 1 Stevenson v. Mortimer, Cowp. K. 805 ; Holt v. Ely, 1 Ellis & Blackf. 795 ; 18 Eng. Law & Eq. R. 422. 2 Post, § 435 ; Stevenson v. Mortimer, Cowper, R. 806. In this case Lord Mansfield said : " The ground of the nonsuit at the trial was, that this aption could not be well maintained by the plaintiffs, who are the owners of the vessel in question, but it ought to have been brought by the master, who actually paid the money. That ground, therefore, makes now the only question before us ; as to which, there is not a particle of doubt. Qui facil per alium, facit per se. Where a man pays money by his agent, which ought not to have been paid, either the agent or principal may bring an action to recover it back. The agent may, from the authority of the principal ; and the principal may, as prov- ing it to have been paid by his agent." See also Paley on Agency, by Lloyd, 362, and Bickerton v. Burrell, 5 Maule & Selw. .S83. 3 Ante, § 36, 116, 266-268, 294, 295, 298, 299 ; Coppin v. Craig, 7 Taunt. R. 243 ; 1 Bell, Comm. 422, (4th edit.) ; Id. p. 523-538, (5th edit.) CH. XV.] RIGHTS AS TO THIRD PERSONS. 483 on his part ; and, at the same time, that there is not, on the other side, a correspondent responsibiUty to him ; since the foundation of the contract, in every such case, must he a mu- tual and reciprocal consideration, sufficient to create a mutual and reciprocal obligation. . § 400. But the most common illustration of the third class of cases, and that, indeed, which presents the principles upon which it is founded in its clearest form, is that of a factor. In regard to foreign factors, it has been already stated that they are generally treated, not only as principals, in all contracts made with them and by them, but also as exclusive principals, (unless other circumstances repel the presumption,) whether they are known to be acting for others, or not;^ so that exclusive credit is ordinarily deemed to be given by them and to them ; and they alone, therefore, are ordinarily entitled to maintain actions on such contracts.^ This doctrine is in con- formity to the general usage of trade ; and it was, in all prob- ability, originally derived from it, as affording a just exposition of the intentions of all parties, and as being founded in public policy and convenience, and in the safety, if not the necessities of commerce.^ § 401. The same doctrine has been applied with some modi- fications, to the case of domestic factors. The latter are, by the usages of trade, treated as principals, although not as ex- clusive principals (for the real principal may sue and be sued 1 Ante, § 268, 290, and tlie authorities there cited ; Post, § 423, 448 ; 1 Bell, Comm. §209, (4th edit.) ; Id. p. 491, (5th edit.) ; 1 Liverm. on Agency, 226, 227, (edit. 18.18) ; Paley on Agency, by Lloyd, 248, 334, 373 ; Addison v. Gandase- qui, 4 Taunt. 574 ; Thomson v. Davenport, 9 Barn. & Cressw. 78. 2 Ante, § 268, 290 ; Wilson v. Zuluetta, 14 Q. B. /Rep. 405 ; Post, § 423 ; 1 Liverm. on Agency, 226, 227, (edit. 1818) ; 3 Chitty on Comm. andManuf. 302, 303. See Taintor v. Prendergast, 3 Hill, R. 72. 3 Ibid. It seems to have been held in Taintor v. Prendergast, 3 Hill, R. 72, 73, that the agent is liable equally, whether his principal be a foreigner or not, if he does not disclose his principal, unless exclusive credit has been given to the agent. Ante, § 268 ; Trueman v. Loder, 11 Adolph. & EIL 589 ; Kirkpat- rick V. Stainer, 22 Wend. R. 244. 484 AGENCY. [CH. XV. on the contracts of his factor) ; and this without any distinc- tion, whether, in making the contract they are known to be acting as factors, or not ; whether they act under a del credere commission, or not.' In every contract so made by them, they are entitled to sue, and may be sued, as principals.^ § 401 a. The case of factors, both foreign and domestic, affords an equally striking illustration of the fourth class of cases. Where factors are employed to sell goods, they are un- derstood to be special owners, to be entitled to the management, control, and possession of the goods, and to have full authority to sell them (as indeed they usually do) in their own names.^ Where they are employed to buy goods, similar considerations apply. They become personally liable to pay for them (al- though their principal may also be liable) ; and they have a right to the possession of them, and a special ownership in them.* In both cases they have also a lien on them, or their proceeds, for their commissions, disbursements, and advances touching them, as well as a lien for their general balance of accounts, subject to the exceptions already stated.^ They may also maintain suits in their own name for trespasses and torts 1 Ante,§ 34, 110-112, 161, 162, 266, 268, 290, 293 ; Paley on Agency, by Lloyd, 324, 361 ; Houghton v. Mathews, 3 Bos. & Pull. 485, 489 ; 1 Liverm. on Agency, 226, 227, (edit. 1818) ; Leveriok v. Meigs, 1 Cow. R. 645,663, 664; 3 Chitty on Coinm. and Manuf. 201, 202 ; 2 Bell, Comm. § 417, 418, (4th edit.) ; Id. p. 491, (5th edit.) 2 Ante, §34, 110-112, 161, 162, 266, 268, 290, 293; Paley on Agency, by l^loyd, 361 ; Houghton v. Mathews, 3 Bos. & Pull. 485, 489 ; Sadler v. Leigh, 4 Campb. R. 195; 1 Liverm. on Agency, 215-221, (edit. 1818) ; Id. 226, 227; Girard v. Taggart, 5 Serg. & Eawle, K. 27 ; Smith on Merc. Law, B. 1, ch. 5, ^ 6, p. 138, 139, (3d edit. 1843.) 3 Ante, § 34, 110-112, 161,266, 268, 290, 293. i Ante, § 39, 110-112, 161, 162, 266, 268, 290, 293 ; 3 Chitty on Comm. and Manuf. 210, 211. = x\nte, § 34, 372, 373, 376, 377, 379 ; Post, § 407 ; 3 Chitty on Comm. and Manuf. 210, 211; 2 Bell, Comm. § 799-802, (4th edit.) ; Id. B. 114-118, (5th edit.) ; Hudson v. Granger, 5 Barn. & Aid. 27, 32-34. CH. XV.] RIGHTS AS TO THIRD PERSONS. 485 committed on all goods, while in their possession as factors, founded upon their special ownership and rights therein. ^ § 403. But although agents are thus entitled, in a variety of cases, to maintain actions upon contracts made for, or on behalf of their principals, whether known or unknown ; yet the right thus conferred upon them is not unlimited, either in regard to their principals, or in regard to the other contracting parties. Sub- ject to the exceptions, which will be presently stated, ^ this right of agents is subordinate to, and controllable by, their principals; and in favor of the other contracting parties, this right is also modified, so as not to work any injustice or wrong to them.^ Both parts of this proposition may require some illustration ; and then the exceptions will naturally follow. § 403. In the first place, then, the right of agents is sub- ordinate to, and controllable by, their principals.* Wherever the principal, as well as the agent has a right to maintain a suit upon any contract, made by the latter, he may generally supersede the right of the agent to sue, by suing in his own name.* So, the principal may, by his own intervention, inter- ' Paley on Agency, by Lloyd, 285-288; Id. 363-368; Williams c. Milling- ton 1 H. Black. 81 ; Smith on Merc. Law, 77, (2d edit.) ; Id. B. 1, eh. 5, § 6, p. 138, 139, (3d edit. 1843) ; 1 Lrverm. on Agency, 226, 227, (edit. 1818) ; Post, §415. 2 Post, § 407-410. ' Smith, on Merc. Law, 77, (2d edit.) ; Id. B. 1, ch. 5, § 6, p. 138, 139, (3d edit. 1843) ; Atkyns v. Amber, 2 Es^. R. 493 ; Ante, § 160, 161, 269, 270. * Post, § 410, 429. 5 Sadler v. Leigh, 4 Camp. K. 194; 1 Liverm. on Agency, 221, (edit. 1818); Paley on Agency, 285-288 ; Id. 326 ; Id. 363-367 ; Id. Ill note, (3) ; Taintor v. Prendergast, 3 Hill, K. 72, 73 ; Girard v. Taggart, 6 Serg. & Rawle, 27. In the case of Sadler v. Leigh, the contract was made with a factor, for the purchase of goods for his principal. The latter afterwards became bankrupt. Lord Ellen- borough held, that the factor was a good petitioning creditor, under the bank- rupt laws, for the debt. But, it appearing, that, after the purchase, there had been a communication between the principal and the purchaser, whereby the former agreed to consider the latter as his debtor, and he had taken steps for recovering the debt directly from the purchaser. Lord EUenborough held, that the factor's right was gone. He said : " This last fact, I think, is fatal to the petitioning creditor's debt. After the intervention of the principal, the right of 41* 486 AGENCY. [CH. XV. cept, suspend, or extinguish the right of the agent under the contract ; as, if he • makes other arrangements with the other contracting party, or waives his claims under it, or receives pay- ment thereof, or in any other manner, discharges it.^ This, indeed, results from the general principle of law, that every man may waive rights, or extinguish rights, the benefit whereof exclusively belongs to himself; and, that, whatever rights are acquired by an agent are acquired for his principal. Quiequid acquiritur servo, acquiritur domino? Quilibet potest renunciare juri, pro se introducto? Of course this doctrine is appHcable only to cases of pure agency, where the agent has no lien or other interest, or superior right in the property. If he has any, to the extent of such lien, and other interest and right, he is entitled to protection against the principal.* § 404. In the next place, in respect to the rights of the other party, with whom the agent has contracted. If the suit is brought in the name of the agent, instead of the principal, upon any contract knowingly made by the former for the latter, the other contracting party will generally be entitled to make the same defence, and establish the same claims against the agent, that he would be entitled to, if the suit were brought in the name of the principal.^ Thus, for example, if a sale of goods is made by an auctioneer, or other agent, notoriously for the factor to sue was gone. The debt was then due to the principal, in the same manner, as if the sale had been made personally by him in the first instance." Ante, 160, 161, 269, 270. 1 See Coppin «. Walker, 7 Taunt. E. 237 ; Coppin v. Craig, 7 Taunt. K. 243; Paley on Agency, by Lloyd, 362; Morris v. Cleasby, 1 Maule & Selw. 576; 1 Liverm. on Agency, 226-228, (edit. 1818) ; Walker v. Kuss, 2 Wash. Cir. E. 283 ; 3 Chitty on Comm. and Manuf. 201-203. 2 15 Viner, Abridg. 327 ; Co. Litt. 117 a. 3 2 Inst. 183 ; Wingate, Maxims, p. 483. 4 Ante, § 371, 372. s Atkyns v. Amber, 2 Esp. K. 493 ; 3 Chitty on Comm. and Manuf. 201-203, 211 ; Smith on Merc. Law, 77, (2d edit.) ; Id. p. 135, 136, 139, (3d edit. 1843) ; Leeds v. The Marine Ins. Co. 6 Wheat. 565, 570, 571 ; Taintor v. Prendergast, 5 Hill, K. 72; Post, §419,420. CH. XV.] RIGHTS AS TO THIRD PERSONS. 487 his principal, the purchaser may, if he has no notice of any claims or denaands of the agent upon the principal, make pay- ment to the principal ; and his payment will be available in a suit brought by the auctioneer, or other agent; notwithstanding any latent claims or liens, which the auctioneer or agent may have ; for it is his duty in such a case to make his claims known to the purchaser, otherwise the latter may fairly pre- sume, that a payment to the principal will be a just fulfilment of his contract.^ So, in the like case, if the purchaser has a set-off against the principal, and has bought in reference to that claim, he may set-off the claim in a suit brought by the agent, with the same effect, as if it were brought by the prin- cipal.^ So, if the purchaser has purchased of the agent upon the just belief, authorized by the facts of the case, that he is the real principal, he may avail himself of any set-off, which he has against the agent, as well as the principal, in any suit brought by the latter upon the contract; for, in such a case, he will -be entitled to avail himself of the like set-off', if the suit is in the name of the principal.^ § 405. The same doctrine applies to other matters of defence. Thus, if a suit is brought by an agent upon a nego- tiable note, given to him for the benefit of his principal, the maker, or other party sued, may avail himself of the same defects of title, such as fraud, or want of consideration, as if 1 Coppin V. Walker, 7 Taunt. K. 237 ; Coppin v. Craig, 7 Taunt. E. 243 3 Chrtty on Coinm. and Manuf. 211. 2 Coppin V. Walker, 7 Taunt. R. 237; Coppin v. Craig, 7 Taunt. R. 2i3 2 Liverm. on Agency, 89, 90, (edit. 1818) ; Paley on Agency, by Lloyd, 326 327 ; Stewart v. Aberdein, 4 Mees. & Welsb. 218, 219,-228 ; 3 Chittyon Comm, and Manuf. 201-203 ; Leeds v. Marine Ins. Co. 6 Wheat. 565, 570. 3 Paley on Agency, 287-289, 325-328 and note, 329, 330 ; George v. Clagett, 7 Term Kep. 359 ; Eabone v. Williams, 7 Term Rep. 360, note (a) ; Stracey v. Deey, 7 Term Kep. 361, note ; Baring v. Corrie, 2 Barn. & Aid. 137. See also Lime Rock Bank v. Plimpton, 17 Pick. 159 ; Leeds v. Marine Ins. Co. 6 Wheat. R. 565, 570. See 2 Smith's Select Cases, 77 and note, 79, 80; Warner v. McKay, 1 Mees. & Welsb. 595 ; Post, § 419. 488 AGENCY. [CH. XV. the principal had brought the suit in his own name;^ for, although, in such a case, the agent is entitled to sue, yet, if he claims no beneficial interest in the note, and has acquired no lien on it for advances or otherwise, he is treated as a naked holder, asserting the mere rights of his principal, and is affected by the same equities as the latter.^ § 406. The doctrine has been carried a step further. For, if an auctioneer, or other agent, should avowedly contract with another for the purchase of property for a third person, as the agent of the latter, [who is named in the contract as principal] when in fact he is himself the real principal, he will not only not be permitted to escape thereby from any defence, to a suit, brought in his own name upon the contract ; but he will not be allowed to maintain any suit in his own name on the con- tract as principal, without giving notice, before bringing the suit, of his real, character in the transaction ; for, otherwise, the vendbr may be taken by surprise, and may be prevented from taking steps to avoid the suit, which he might have taken, if he had been apprized of all the facts.^ 1 Ante, § 227, 228 ; Solomons v. Bank of England, 13 East, R. 135, n. ; De la Chaumette v. Bank of England, 9 B. & Cressw. 208 ; S. C. 2 Barn. & Adolph. 385 ; Paley on Agency, by Lloyd, 238, 285-287, 326, 363, note (3), 364-367. 2 Ibid. 3 See Humble v. Hunter, 12 Q. B. Eep. 359 ; Bickerton v. Burrell, 5 Maule & Selw. 383. On this occasion Lord Ellenborough said: "This is an action founded upon a contract made by the plaintiff in the character of agent to an individual, named by him as principal ; and the question is upon the plaintiff's title to sue. In the ordinary transactions of commerce, a man may sell or pur- chase in his own name ; and yet it does not follow that the contract is, his; but the transaction is open to explanation, and others, who do not appear as parties to the contract, are frequently disclosed, and step in to demand the benefit of it. But where a man assigns to himself the character of agent to another, whom he names, I am not aware that the law will permit him to shift his situation and de- clare himself the principal, and the other to be a mere creature of straw. That, I believe, has never yet been attempted. Now, on the face of this agreement, it is stated that the plaintiif made the purchase, paid the deposit, and agreed to comply with the conditions of sale for Richardson, and in the mere character of agent. Is not this account of himself to be taken fortissime contra prof erentem ; that is, that he was really treating in the character which he assigned to himself CH. XV.] RIGHTS AS TO THIRD PERSONS. 489 [§ 406 a. On the other hand, it has been expressly adjudged, that a person who contracts as agent for an unknov(^n and un- at the time of the purchase ? And has not the defendant, with whom the plain- tlfif dealt as agent, a right still to consider him as such, notwithstanding he would now sue in the character of principal ? Supposing that he might, under a different state of circumstances, have entitled himself to sue in his own name ; Burely the defendant ought to have had notice of the plaintiff's real situation before he is subjected to an action at the plaintiff's suit, and while it was open to him to make a tender. It was proposed to call Mrs. Richardson to prove that she had no interest in the transaction ; and a reason was assigned why her name appeared in it, namely, that the purchase was intended for her benefit. Admit- ting this to be so, yet the question still occurs, whether a man who has dealt with another in the character of agent, is at liberty to retract that character without notice, and to turn round and sue in the character of principal. As to which, it appears to me, that the defendant ought at least to have an opportunity of knowing, by means of a specific notice, before he is dragged into a court of justice, the real situation in which the plaintiff claims to stand, in order that he may judge how to act. In the present case, non constat but that the defendant would have tendered the money. It was the plaintiff's fault originally, that he misled the defendant by assuming a situation, which did not belong to him; and therefore he was bound to undeceive the defendant before bringing an action. This seems to follow from a consideration of what the common ijrineiples of jus- tice demand, which accord with the eases decided upon this subject. I recognize the authority of the Duke of Norfolk v. "Worthy, which was merely the case of an undisclosed principal at the time of sale. Dr. Bethune's ease is of like im- port ; and it has been settled in many cases that a principal, when disclosed, may step in and exercise his own rights. But it is wholly without precedent, I believe,' and, as it seems to me, contrary to justice, that a person who has exhib- ited himself as agent for another should at once throw off that character and put himself forward as principal, without any communication or notice to the other party." [But see Kayner v. Grote, 15 Mees. & Welsb. R. 359. In this case the plaintiff, made a written contract for the sale of goods, in which he describes himself as the agent of A., and the buyer accepted and paid the price of a portion of the goods, and then had notice that the plaintiff was himself the real principal, and not the agent of A. It was decided that the plaintiff might sue in his own name for the non-acceptance of, and non-payment for the residue of the goods. In delivering the judgment of the Court, Baron Alderson con- sidered the case of Bickerton v. Burrell. "And it may be observed," he said, "that this case is really distinguishable from Bickerton v. Burrell, on the very ground on which that case was decided ; for here, at all events, before action 'brought and trial had, the defendants knew that the plaintiff was the principal in the transaction. Perhaps it may be doubted whether that case was well decided on such a distinction, as if may fairly be argued that it would have been quite sufficient to prevent any possible inconvenience or injustice, and more in 490 AGENCY. [CH. XV. named principal, may himself sue as principal, if he was in fact such, unless it appear that the other party relied on his charac- ter as being only an agent, and would not have contracted with him as principal, if he had known him to be such.^j accordance with former authorities, if the Court had held that a party named as a^ent under such circumstances as existed in that case, was entitled, on showing himself to be the real principal, to maintain the action, the defendant being, however, allowed to make any defence to which he could show himself to bp entitled, either as against the plaintiflf or as against the person named as princi- pal by the plaintiff in the contract. It is not, however, necessary for us, in the present case, to question the authority of that decision."] 1 Schmalz v. Avery, 3 Eng. Law and Eq. R. 391 ; 16 Q. B. R. 655,— Patter- son J., said : " This was an action of assumpsit on a charter-parter, not under seal, against the defendant, a ship-owner, for not taking the- cargo onboard according to the charter-party. The question raised on the plea of no^i-assump- sit is, whether the action wiU lie at the suit of the present plaintiff. The charter- party, in terms, states that it is made by Schmalz & Co., the plaintiffs, as ao'ents for the freighter. It then states the terms of the contract, and concludes with these words : ' This charter-party being concluded on behalf of another party, it is agreed that aU responsibility on the part of Schmalz & Co. ceases as soon as the' cargo is shipped.' The declaration treats the charter-party as made between the plaintiff and the defendant, without mentioning the character of the plaintiff as agent, and without any reference to the concluding clause, thereby treating the plaintiff as principal in the contract. At the trial, it was proved, that the plaintiff was, in point of fact, the real freighter. No Objection was taken to the admissibility of the evidence by which that fact was estab- lished ; but at the close of the plaintiff's case it was objected, that he was concluded by the terms of the charter-party, and fixed with the character of agent ; so that he could sue only in that character, and consequently that there was a variance between the declaration and the proof. A verdict was found for the defendant, with liberty to enter a verdict for the plaintiff for 51. 10s., if the Court should be of opinion that he was entitled to sue as principal, notwith- standing the terms of the charter-party ; and a rule nisi was obtained so to enter it. We are of opinion that the rule must be made absolute. It is conceded, that if there had been a third party who was the real freighter, such third party might have sued, although his name was not disclosed in the charter-party ; but the question is, whether the plaintiff can fill both characters of agent and prin- cipal, or rather, whether he can repudiate that of agent and adopt that of prin- cipal, both characters being referred to in the charter-party, but- the name of the principal not being therein mentioned. The cases principally relied on for the defendant were Bickerton v. Burrell, 5 Mau. & S. 383, and Kayner v. Grote, 15 M. & W. 359, in both which cases the supposed principal was named in the instrument of contract; also the case of Humble v. Hunter, 12 Q. B. 310; 12 Jur. 1021. In the case of Bickerton v. Burrell, the plaintiff, on the face of CH. XV.] RIGHTS AS TO THIRD- PERSONS. 491 § 407. Such is the general rule applicable to this subject ; but, as has been already suggested, it is liable to exceptions, the contract, professed to enter into it as agent for C. Richardson. At the trial, C. Eichardson was called to prove that her name was used without her knowl- edge, and that she had nothing to do with the contract Lord EUenborough re- fused to receive the evidence, and nonsuited the plaintiff. A rule nisi to set aside the nonsuit was obtained, but, upon argument, was discharged, on the ground that a person who ias exhibited himself as agent for another, whom he names, cannot at once throw off that character, and put himself forward as principal, vfithout any communication or notice to the other party. All the judges relied on the want of such notice, which seems to have been the chief ground of the decision ; for they considered that the defendant was thereby placed in great difficulty, as he had contracted, in point of law, with Richardson, and not with the plaintiff, and might have no means of ascertaining, or even conjecturing, that she was not the real party. The soundness'of that ground of decision was somewhat doubted in the late case of Rayner v. Grote. There the plaintiff contracted as agent for Johnson, but was, in truth, himself the principal ; he sued the defendant for not accepting and paying for the goods. The defendant had accepted and paid for a great part of the goods sold, and knew, before he refused the residue, that the plaintiff was the real principal; and so the ease was distinguishable from that of Bickerton v. Burrell upon the very ground on which that decision proceeded, and the plaintiff was held to be entitled to sue. The case of Humble v. Hunter, was an action by Grace Humble, on a charter- party signed by her son, J. C. Humble, in which he was described as the ' owner of the good ship or vessel called The Ann.' There the son was called at the trial, and, after objection taken to his admissibility, proved that he executed as agent for the plaintiff, and the plaintiff had a verdict. The Court, however, granted a new trial, on the ground that it was not competent for a third party to come in and claim to be the principal, and so contradict the express statement of the contract itself. The case turned upon the form of the contract; for it was conceded, that if the words ' owner of the good ship,' &c., had been omitted, *** the plaintiff might have sued, on showing that she was the real owner, and that the son was her agent only. Such evidence would not have contradicted the contract, but would only have let in a third party who was really interested, in 1 conformity with the current of authorities in cases of contracts executed by agents, and in their own names. The case of Jenkins v. Hutchinson, 13 Jur. 763, was also cited for the defendant, but it proceeded on a different ground, and is not applicable to the present question. There the defendant was sought to be charged as principal on a charter-party executed by him, on the face of it, as agent for Barnes ; he had, in truth, no authority from Barnes, nor was he himself interestUd at all ; and the Court held that he could not be sued as prin- cipal without showing that he really was so. A distinction was taken on the argument in the present case, by the defendant's counsel, between an executed and an executory contract ; and it was said, that whatever might be the rule in 4)Q2 AGENCY. [CH. XV. founded upon the same considerations of reciprocal equity and justice, as the general rule itself.^ The rule, properly and the former class of cases, where tlie defendant has received the benefit of the contract, and it is probably immaterial to him whom he pays, yet that in the latter class the defendant cannot be properly held answerable to B, having ex- pressly contracted with A ; and a passage in the judgment of the Court in the case of llayner v. Grote, was much relied on, which is this : ' If, indeed, the contract had been wholly unperformed, and one which the plaintiff, by merely proving himself to be the real principal, was seeking to enforce, the question might admit of some doubt. In many cases, such as, for instance, the case of contracts, in which the skill or solvency of the person who is named as the prin- cipal may reasonably be considered as a material ingredient in the contract, it is clear that the agent cannot then show himself to be the real principal, and sue in his own name ; and it may be fairly urged that this, in all executory con- tracts, if wholly unperformed, or if partly performed without the knowledge of who is the real principal, may be the general rule.' With this passage we entirely agree ; but it is plain that it is applicable only to cases where the supposed prin- cipal is named in the contract ; if he be not named, it is impossible that the other party can have been in any way induced to enter into the contract by any of the reasons suggested. In the present ease, the names of the supposed freighters not being inserted, no inducement to enter into the contract, from the supposed solvency of the freighters, can be surmised. Any one who could prove himself to have been the real freighter and principal, whether solvent or not, might most unquestionably have been sued on this charter-party. The defendant cannot have been in any way prejudiced in respect of any supposed reliance on the solvency of the freighter, since the freighter is admitted to have been unknown to him, and he did not think it necessaiy to inquire who he was. It is, indeed, possible that he may have been contented to take any freighter and principal, provided it was not the present plaintiif ; and he may have relied on the terms of the charter-party, indicating that the plaintiff was an agent only, being willing to accept of any one else, be he who he might, as principal. After all, therefore, the question is reduced to this, whether we are to assume that the defendant did so rely on the character of the plaintiff as agent only, and would not have contracted with him as principal if he had known him so to be ; and are to lay it down as a broad rule, that a person contracting as agent for an un- known and unnamed principal, is precluded from saying, ' I am myself that principal.' Doubtless, his saying so does in some measure contradict the written contract, especially the concluding clause, which says : ' This charter-party being concluded on behalf of another party,' &c., for there was no such other party. It may be that the plaintiff entered into the charter-party for some other party, who had not absolutely authorized him to do so, an§ afterwards de- clined taking it ; or it may be that he intended originally to be the principal. 1 Ante, § 402. CH. XV.] RIGHTS AS TO THIRD PERSONS. 493 primarily, has its due operation, where the agent, entering into the contract, is the mere representative of the principal, and has acquired no interest, or lien, or other claim under it, in virtue of his agency ; for, if he has acquired any such interest, lien, or other claim, then, to the extent thereof, he is entitled to protection, as well against the principal, as against the other contracting party.' Thus, for example, a factor or other agent has a lien on the goods intrusted to him for sale for his com- missions and advances, and, when he has sold the goods, this lien will attach upon the price in the hands of the purchaser ; and to this extent the factor, or other agent, may insist upon payment from the purchaser to himself, in opposition to the claims of the principal, and also of the purchaser against' the principal.^ But, to entitle the factor, or other agent, in such a In either ease the charter-party would be, strictly speaking, contradicted ; yet the defendant does not appear to be' prejudiced, for as he was regardless who the real freighter was, it should seem that he trusted for his freight to his lien on the cargo. But there is no contradiction of a charter-party if the plaintiff can be considered as filling two characters, namely, those of agent and principal. A man cannot, in strict jfcprietv of speech, be said to be an agent to himself; yet, in a contract of this description, we see no absurdity'in saying, that he might fill both characters — that he might contract as agent for the freighter, whoever that freighter might turn out to be, and might still adopt that character of freighter himself if he chose. There is nothing in the argument that the plain- . tiff's responsibility is expressly made to cease ' as soon as the cargo is shipped,' for that limitation plainly applies only to his character as agent, and, being real principal, his responsibility would unquestionably continue after the cargo was shipped. Upon the whole, we are of opinion, that this rule must be made ab- solute." 1 3 Chitty on Comm. and Manuf. 211 ; Post, § 424 ; Smith on Merc. Law, 77, (2d edit.) ; Id. p. 135, 136, 139, (3d edit. 1843) ; Drinkwater t;. Goodwin, Cowp. K. 251, 255 ; 1 Liverm. on Agency, 217-219, 226, 285-288, 336, (edit. 1818) ; Id. 364-367; Morris v. Cleasby, 1 M. & Selw. 576; Hudson v. Granger, 5 Bam. & Aid. 27, 32-34. If he is an. agent acting under a del credere com- mission, he has an undoubted right to sue, so as to protect himself from liability under his guaranty. And the principal cannot displace his rights, without, at the same time, waiving ro eo est, quasi ipsi solutum esset^ But the principal may intercept such payment, by giving notice to the debtor not to pay to the agent, before the money is paid ; and, in such a case, if the agent has no supe- rior right, from a lien or otherwise, any subsequent payment, made to the agent, will be invalid, and the principal may recover the money from the debtor.^ § 430. The modes and circumstances, under which such payments are made to the agent, may also have a material bearing on the rights of the principal. If the payments are received by the agent, according to the ordinary course of business, or even if they are made out of the ordinary course 1 Ante, § 98, 99, 181, 413; Post,§ 440; 2 Liverm. on Agency, 226, 232, (edit. 1818); Id. 283-285 ; Smith on Merc. Law, 67, 68, (2d edit.) ; lb. B. 1, ch. 5, § 4, p. 124, 125, (5th edit. 1843) ; Ante, § 98, 181, 215, 413 ; Post, § 451 ; Paley on Agency, by Lloyd, 111, 112, note; Id. 278-281, 285, 288; 325- 327 ; Baring v. Corrie, 2 B. & Aid. 137 ; Favenc v. Bennet, 11 East, R. 36 ; Morris v. Cleasby, 1 M. & Selw. 576, 579 ; 1 Liverm. on Agency, 226-232, (edit. 1818.) Payment to a sub-agent will sometimes bind the agent, so as to make him responsible to his principal for any loss of the money in the hands of the sub-agent. Taber v. Perrott, 2 Gallis. R. 565 ; Ante, § 231 (a). 2 Dig. Lib. 50, tit. 17, 1. 180 ; Pothier on Oblig. by Evans, n. 470, (n. 505 of the French editions.) 3 Ante, § 112, 402, 403, 407; Pavenc v. Bennet,'ll East, E. 36 ; Morris «. Cleasby, 1 M. & Selw. 576, 579 ; 1 Liverm. on Agency, 226-232, (edit. 1818) ; Powell V. Nelson, cited 15 East, R. 65 ; Paley on Agency, by Lloyd", 111, 112, and note; Id. 285-288, 326-328 ; Sorimshire v. Alderton, 2 Str. B. 1182 ; Mann V. Forrester, 4 Campb. R. 60 ; Stewart v. Aberdein, 4 Mees. & Welsh. 218, 225, 228 ; Corlies v. Gumming, 6 Cowen, 181, 186. CH. XVI.] PRINCIPALS AGAINST THIRD PERSONS. 511 of business, if the agent alone is known, or is supposed to be the principal, and the debtor has no notice of any claim by the real principal, the latter will be bound thereby.^ But, if the transaction is on behalf of a known principal, or the principal is afterwards disclosed, no subsequent payment, but such as is strictly authorized by the usual course of business, or by the particular usage of trade, or by the express or implied au- thority of the principal, will bind him ; and,- if made otherwise, the principal may, notwithstanding, recover the amount from the debtor.^ § 431, Secondly, in relation to payments made by agents ' Ante, § 98, 106, 109, 181, 413 ; Paley on Agency, by Lloyd, 279-281, 288 ; Ante, § 98, 181, 215, 413 ; Favenc v. Bennet, 11 East, K. 38 ; Coates v. Lewes, 1 Campb. R. 444 ■ Blackburn v. Scboles, 2 Campb. E. 341, 343; Morris u. Cleasby, 1 Maule & Selw. 576, 579 ; 1 Liverm. on Agency, 226-232, (edit. 1818) ; Smith on Merc. Law, 74, 75, (2d edit.) ; Id. B. 1, ch. 5, § 4, p. 124, J25, 135, 136, (3d edit. 1843); De Valingin's Adm'r ;;. Duff, 14 Peters, R. •82. Hence it is, that if the principal be unknown and undisclosed, the agent may vary the terms of the contract, and receive payment in any manner he may pleaSe, since he acts as, and is supposed to be, the principal. Blackburn v. Scholes, 2 Campb. E. 341, 343. See Paley on Agency, by Lloyd, 281-284. In Stewart v. Aberdein, 4 Mees. & Welsh. 211, 218, which was a case, where an insurance broker had received payment of a loSs by a set-off with the under- writers, -according to usage. Lord Abinger, at Nisi Prius, in summing up, ex- pressed his opinion, " that the notion had been pushed too far about the actual payment in cash ; and that it appeared to him, that, if one nifln has to pay another money on account of his principal, and there is money due to him from such other person, it makes no difference to the principal, whether there is an interchange of bank-notes, or a mere transfer of accounts from one side to the other ; and that it is equally a payment if it is done without fraud. He, how- ever, left the whole facts to the jury, and directed them to consider, whether parties, effecting insurance for their own benefit through an agent, must not know what is the habit of dealing between the broker and underwriter ; and whether the authority to settle must not mean, that the broker should settle in the same way as is the custom to settle with underwriters." The Court held his direction right. Ante, § 429, note. See also Carr v. Hinchliff, 4 Barn. & Cressw. 547 ; Gibson v. Winter, 5 Barn. & Adolph. 96. 2 Paley on Agency, by Lloyd, 278-281 ; Townsend v. Inglis, Holt, N. P. Eep. 278; Stewart v. Aberdien, 4 Mees. & Welsh. E. 218, 228 ; Underwood v. Nich- olls, 17 Gomm. E. Rep. 239 ; 33 Eng. Law &Eq. E. 3,21 ; Ante, § 98, 181, 410, 413, 429. 512 AGENCY. [CH. XVI. for their principals. In these cases, any mode of piayment by the agent, accepted and received as such by the other contract- ing party, as an absolute payment, will discharge the principal, whether he be known or unknown, and whether it be in the usual course of business, or not.^ Thus, for example, if a fac- tor, or other agent, should be employed to purchase goods for his principal, or should be intrusted with money to be paid for his principal, and the creditor or seller should take the note of the factor or agent, payable at a future day, as an absolute pay- ment, the principal would be entirely discharged from the debt, and the creditor, having thus given exclusive credit to the factor or agent, would have no remedy except against the latter.^ The question, in most cases of this sort, is not, generally, so much a question of law, as of fact ; that is to say, whether the note is received as a conditional payment, or as an absolute pay- ment ; whether it is received with the knowledge, that there is • another principal, or not ; and whether there is an exclusive^ credit given to the agent or not.^ " § 4fS2. On the other hand, in all cases of this sor^ where exclusive credit is given to the agent, or an absolute payment is acknowledged, either by receiving a security, or otherwise, the agent has a' right to substitute himself to the creditor, and to recover the amount from his principal, in the same manner, • ^ 1 Post, § 440. 2 Chitty on Comm. and Manuf. 204; Ante, 266-268, 287-300; Seymour, d. PycWau, 1 Barn. & Aid. 14,' 17-1 9 ; Strong v. Hart, 6 Barn. & Cressw. 160, approved in Anderson v. Hillies, 10 Eng. Law & Eq. E. 497; Smith v. Fer- rand, 7 Barn. & Cressw. 19 ; Marsh v. Pedder, 4 Campb. E. 257. 3 Seymour v. Pychlau, 1 Barn. & Aid. 14 ; Ante, § 290, 291, 293, 296, 297; Paley on Agency, by Lloyd, 250-252 ; Strong-u.'Hart, 6.Barn. & Cressw. 160; Smith V. Ferrand, 7 Barn. & Cressw. 19 ; Porter v. Talcott, 1 Cowen, E. 359, 383, 385 ; Johnson v. Weed, 9 Johns. R. 310; 1 Liverm. on Agency, 207-212, (edit. 1818); Everett v. Collins, 2 Campb. E. 515; Corlies v. CummirigSj 6 Cowen, E. 181, 187; Muldon v. Whitlock, 1 Cowen, E: 290, 303-305; Schermerhorn v. Loines, 7 Johns. E. 311 ; Cheever v. Smith, 15 Johns. E. 276 ; Tapley v. Martens, 8 Term E. 451 ; Marsh v. Pedder, 4 Campb. E. 257 ; Jaques v. Todd, 3 Wend.«R. 83 ; Lincoln v. Battelle, 6 Wend. E. 475 ; Tobey V. Barber, 5 Johns. K. 68 ; Pentz v. Stanton, 10 Wend. E. 271. CH. XVI.] PRINCIPALS AGAINST THIRD PERSONS. 513 although not in the same form of action, as if it had heen actually paid by him. Therefore, if an insurance broker, by the usage of business, or by the agreement of the parties, is exclusively liable to the underwriters for the premium, and they credit him therefor accordingly, he is entitled to recover the amount from his principal, even though he has not actually paid the money to the underwriters.^ But this doctrine is con- 1 See Seymour v. Pychlau, 1 B. & Aid. 14 ; Power v. Butcher, 10 B. & Cressw. 329. On this latter occasion, Mr. Justice Bayley said : " This is an action by the assignees of an insurance broker, for work and labor, and premiums, against the defendants, who are ship-owners, and had employed the broker to effect certain policies on their behalf, which he did effect with a company, of which he was a member. Now, according to the ordinary course of trade be- tween the assured, the broker, and the underwriter, the assured do not, in the first instance, pay the premium to the broker, nor does the latter pay it to the underwriter. But, as between the assured and the underwriter, the premiums are considered as paid. The underwriter, to whom, in most instances, the assured are unknown, looks to the broker for payment, and he to the assured. The latter pay the premiums to the broker only, and he is a middle-man be- tween the assured and the underwriter. But he is not solely agent ; he is a principal to receive the money from the assured, and to pay it to the underwriters. In this case, the policies were not- in the ordinary form, but by deed, and the broker covenanted to pay the premiums to the underwriters ; and in consider- ation of that covenant the policies were effected. The underwriters, therefore, took a covenant from the broker to pay the premium, instead of acknowledging the receipt of the premium, as they do in the ordinary case of a policy by simple contract. In such a case, the action would be maintainable at the suit of the broker, on the principle, that he was entitled to call upon the assured for the payment of those premiums, which he had become liable to pay to the under- writers, and which they had acknowledged the receipt of. The assured have had the benefit of the policies ; and, if the underwriters were liable upon the * risk, they were warranted in calling upon the broker to pay the premiums. In point of justice, the assured ought to pay the broker, or, in the event, which has happened, of his failure, his assignees. In an ordinary case, the assurers would have no claim upon the assured for the premium, because, by the policy, they acknowledge the receipt of it. Here there is no such acknowledgment, and, therefore, it may be said, the assurers may claim the premiums from the assured. A contract cannot be raised by implication of law, except in the absence of an "express contract. Now, here there was an express contract between the under- writers and the assured, through the agent, and by that contract the under- writer agreed tolook to the broker alone for the premiums. The assured have had the same benefit from the policies, as if the premiums had been advanced to the underwriters at the morpent when the policies were effected. Then, it is 514 AGENCY. [CH. XVI. fined to cases, where it results from the usage of trade,, or from the express or implied agreement of the parties. For, if a factor, or other agent, should buy goods for his principal in his own name, and on his own exclusive credit, payable at a future day, he would not be at liberty, as between himself and his principal, (unless the purchase was agreed between them so to be made,) to consider himself as the vendor, or to sue for the value of the goods before the expiration of the credit.-^ § 4f3S. The doctrine may be carried further ; for, if a cred- necessary to consider in what situation the broker stands, in order to ascertain, whether he is not entitled to call upon the assured for the premiums. The underwriters have a claim upon him for the full amount of premiums ; andj if that be so, he ought to recover those premiums from those persons who have had the benefit of the policies." 1 Seymour v. Pychlau, 1 Barn. & Aid. 14, 16-18. This case was presented under somewhat peculiar circumstances. The purchase of the goods was made by an agent for a foreign merchant then in England. The agent gave his _ acceptances, payable at six months, for the amount. But the goods were known to be purchased for the foreign merchant, and the invoices were made out in his name. The agent brought an action against his principal for goods sold and delivered, before the acceptances became due, pending which suit he became bankrupt. The Court held the action not maintainable. Lord EUenborough said : " There is not one feature in the case, to show that the plaintiff was to buy in order to assume the character of seller to the defendant. The relation between the parties is this ; the defendant, coming from Russia, wants the accommodation of a person in this country to become responsible for him ; the defendant is to pay to the plaintiff a commission for the service done ; when a person pays another commission, such other person stands in the relation of factor or agent ; but this commission is to be paid, when he has performed the duty. What is the duty ? to pay for the goods ; then, if the defendant is now liable to the plaintiff for the debt, he does not derive the benefit intended to be earned by the payment of commission. Upon the latter point, there is not any pretence for saying, that the price is demandable instanter. Let us look at the reason of the thing ; the defendant wants credit, and yet he is called upon to pay his agent immediately. The plaintiff was to pay by a bill at six months i when he has paid that bill, then he may sue the defendant, and not before. If it were, otherwise, the plaintiff would be placed in a worse situation with respect to his agent, than he would with respect to the seller. I think, therefore, that, as there was not in this case any tiling to import a contract of buying and selling, and as immediate payment was contrary to the nature of the thing, and the expectancy of the parties, and, as there was not any express stipulation to that effect, the plaintiff has failed in both points." CH. XVI.] PRINCIPALS AGAINST THIRD PERSONS. 515 itor of the principal settles with the agent, and takes a note or other security from the latter, for the amount due by the prin- cipal, although, as between the parties, it is intended only as a conditional payment ; yet, if the creditor gives a receipt, as if the money were actually received, or the security were an abso- lute payment, so that the agent is thereby enabled to settle, and does settle, with the principal, as if the debt had been actually discharged, and the principal would otherwise be prejudiced, the debt will be deemed, as to the latter, absolutely discharged.^ § 434. Upon this ground, where work was done for the principal, and the account was presented to his steward, who gave his own check on a banker for the amount ; and there- upon the creditor gave a receipt for the money on account of the principal ; and, upon the dishonor of the check, the creditor accepted another draft for the amount, payable at a future time from the steward ; it was held, that, if the principal had, in the mean time, settled his accounts with his steward, or had dealt with him differently in consequence of that receipt, so that he would be prejudiced thereby, the principal would be dis- charged.^ The same doctrine will apply to the case of a ship's husband, or a shipmaster, contracting a debt for supplies, or for repairs of the ship, where an exclusive credit is originally given to him, or an absolute payment is afterwards acknowl- edged, by a receipt, upon a note or other security being given by such agent for the amount, whereby he is enabled to settle with, and to receive the amount, in credit or otherwise, from the owners.^ 1 3 Chitty on Comm. and Manuf. 204 ; Wyatt w. Marquis of Hertford, 3 East, E. 147 ; Abbott on Shipp. Ft. 1, ch. 3, § 8, and note (1) to the Amer. edit. 1829, p. 76 ; 1 Liverm. on Agency, 207-212, (edit. 1818) ; Marsh v. Pedder, 4 Campb. 257 ; Paley on Agency, by Lloyd, 250-252. 2 Wyatt V. Marquis of Hertford, 3 East, K. 147 ; Cheever v. Smith, 15 Johns. R. 276 ; Muldon «. Whitlock, 1 Cowen, K. 290, 803-305 ; 1 Liverm. on Agency, 207-212, (edit. 1818.) 3 Abbott on Shipp. Ft. 1, ch. 3, § 8, note (1) (Amer. edit. 1829) ; Keed v. White, 5 Esp. R. 122; Stewart v. Hall, 2 Dow, R. S9 i Cheever v. Smith, 516 AGENCY. [CH. XTI. § 435. The foregoing are cases, where payments made by the agent are available for the principal, as being for his benefit. But payments may have been made by an agent injuriously to the principal ; and the question often arises, under what cir- cumstances the principal is entitled to recover back the money so paid. In the first place, he may recover it back, when the whole consideration fails ; as in the case of a deposit upon ac- count of a purchase, where the bargain is rescinded, or becomes incapable of being performed.^ So, if an agent to insure pays a premium upon a policy to the underwriters, or they acknowl- edge on the policy, that they have received the premium, and the policy never attaches, the principal may recover back the premium from them.^ In the next place, if an agent pays money, under a mistake of fact, for his principal, the latter may recover it back from the party who has received it ; ^ [and it seems also if the money be paid under a mistake of the legal obligation of his principal.*] In the next place, where money has been illegally extorted from an agent in the course of his employment, the principal may recover it back. Thus, for example, if his agent pays duties, for which the goods are not liable, and the goods are withheld until the duties are paid, the principal may recover the amount back.^ In the last place, where an agent has paid money, by some fraud or imposition practised upon him, and also where he himself has participated 15 Johns. R. 276; Schermerhorn «. Loines, 7. Johns. R. 311; Muldon v. "Whitlook, 1 Cowen, R. 290, 303-305. '. Paley on Agency, by Lloyd, 335 ; Duke of Norfolk v. Worthy, 1 Campb. R. 337, 339 ; Smith on Mere. Law, 75, 76, (2d edit.) ; Id. B. 1, oh. 5, § 4, p. 124-126, (3d edit. 1843) ; Post, § 451. 2 Paley on Agency, by Lloyd, 335, 336 ; Dalzell «. Mair, 1 Campb. R. 532 ; Power V. Butcher, 10 Barn. & Cressw. 329. 3 Paley on Agency, by Lloyd, 336 ; Id. 236 ; Anchor v. Bank of England, Doug. R. 637; Treuttell u. Barandon, 8 Taunt. R. 100; Sigourney u. Lloyd, 8 Barn. & Cressw. 622 ; S. C. 5 Bing. R. 525 ; Ante, § 398. 4 United States v. Bartlett, Davies, R. 9. 5 Paley on Agency, by Lloyd, 336, 337 ; Stevenson v. Mortimer, Cowp. K. 805 ; Elliott v. Swartwout, 10 Peters, R. 137 ; Ante, § 307. CH. XVI.] PRINCIPALS AGAINST THIRD PERSONS. 517 in a fraudulent payment to another person, cognizant of the fraud, the principal may recover it back.^ § 436. Secondly, as to the rights of principals on account of torts or injuries done to their property or rights, in the course of the agency, by third persons. This may be very briefly disposed of. The tort or injury may be one in which the agent himself has been a party, as well as the third person ; or it may be a tort or injury, in which the latter alone has acted, and is alone responsible. In the former case, the agent and the third person are jointly, as well as severally, liable to the principal ; and he may sue both, or either of them.^ In the latter case, the third person is Hable to the principal, although he may also be liable for the tort to the agent.^ § 437. We may illustrate these principles by a few cases. Thus, if an agent tortiously converts the property of his prin- cipal ; as, if he sells or pledges it to a third person, without right or authority, the latter will generally be liable, equally with the agent, for the conversion.* This doctrine applies in all cases, where the third person knew and participated in the illegal or unauthorized act of conversion. It also applies in all cases of a special agency, (but not of a general agency,) even though the third person was not cognizant of, or party to, the tort, but acted bond fide, and without notice.^ Thus, if A, not being a general agent of B, sells a horse of B to C, without due authority, or by an excess of authority, C, and every sub- '.Paley on Agency, by Lloyd, 336-338; Clarke v. Shea, Cowp. K. 197; Taylor v. Plumer, 3 Maule & Selw. 562 ; Ante, § 224, 229, 230. 3 Paley on Agency, by Lloyd, 340-342 ; Taylor v. Plumer, 3 Maule & Selw. 562. 3 Paley on Agency, by Lloyd, 363 ; Ante, § 229. * 3 Chitty on Comm. and Manuf. 204-206 ; Clarke v. Shee, Cowp. E. 197 ; Paley on Agency, by Lloyd, 213-218, 339-342 ; Ante, § 224, 229, 230. 5 Ante, § 228, 229 ; Taylor v. Plumer, 3 Maule & Selw. 576 ; 3 Chitty on Comm. and Manuf. 205, 206 ; Paley on Agency, 213-218, 339-342; McCombie V. Davis, 6 East, R. 538 ; Smith on Merc. Law, 74, 75, (2d edit.) ; Id. B. 1, ch. 5, § 4, p. 124, 125, (3d.edit.%843) ; Anon. 12 Mod. 514 ; Baldwin v. Cole, 6 Mod. 212 ; Taylor v. Kymer, 3 Barn. & Adolph. 320. AGENCY. 44 518 AGENCY. [CH. XVI, sequent vendee under him, will be liable to B, for the conver- sion. But if A were the general agent of B, although he violated his private orders, A alone, and not C, or any subse- quent vendee, would be liable for the conversion.^ § 438. On the other hand, the agent may have conducted himself within the true scope of his duties, and the tort or injury may arise wholly from the misconduct of a third person. Thus, if a third person should' wrongfully convert, or misuse, or injure the property of the principal, while it is in the pos- session of the agent, the principal may maintain an action in his own name against the wrong doer, for damages for the tort. So, if, in the sale of goods to an agent, the seller has been guilty of a gross fraud, the principal may maintain an action for any loss which he has sustained thereby. So, if a master of a ship should let the ship to hire to a charterer, and the latter, having possession of the ship, should, by his misconduct on the voyage, cause the ship to be seized and confiscated by a foreign government, or should cause her to be lost or destroyed by his negligence, or should convert her to his own use, by going on other voyages, or by selling her ; in all these cases the principal may maintain an action for the wrong.^ § 439. In many cases of an illegal conversion of property by a third person, as Aj^ll as by his agent, the principal may have an election of remedy ; as, for example, in the case of a tortious sale, he may waive the tort, and maintain an action for the proceeds of the sale ; or he may bring trover against the wrongdoer.^ Sometimes the one course is more desirable than the other ; but it is so, only when the interests of the principal may be enhanced thereby. Thus, if the wrongdoer 1 Ante, § 73, 126-133 ; 3 Chitty on Comm. & Manijf. 205, 206 ; Pickering v. Busk, 15 East, 38. 2 Ante, § 229-231; Paley on Agency, by Lloyd, 172, 173, and note (n); Id. 324, 325, note (e) ; Hunter v. Prinseps, 10 East, R. 378, 394; Clarke «. Shee, Cowp. R. 197. * . 3 Ibid. CH. XVI.] PRINCIPALS AGAINST THIRD PERSONS. 519 has sold the goods of the principal for a high price, it will he most favorable to the latter to pursue his remedy for the price or proceeds. On the other hand, if the goods have been sold at an undervalue, then an action of trover would be the more beneficial remedy, as the principal would be entitled to recover the full price or value of the goods. § 440. We may close this head of inquiry by remarking, that the acts of agents, within the scope of the authority delegated to them, will enure to the benefit of the princi- pal in a variety of cases, not falling under the preceding heads. In all such cases, the acts are treated as the acts of the principal, and are generally available for him, in the same manner and with the same effect as if personally done by himself; according to the old approved maxim. Qui per alium facit, per seipsum facere videtur} Thus, as we have seen, payment by an agent is payment by the principal, and may be pleaded as such.^ So, a demand by an agent, duly authorized by the principal, if he shows his authority, or his authority is admitted by the other side, is a demand by the principal, for the purpose of founding a right or an action for the principal.^ In many cases, too, as we have seen, the subsequent ratification of an unauthorized act, such, for example, as a demand, or notice, or claim, of an unauthorized agent, will avail to bind the principal, as well as to confer rights upon him.* But this is true, only when the act is beneficial to the principal, and does not create an immediate duty on another party, to do some 1 Co. Litt. 258 ; Paley on Agency, by Lloyd, 343 ; Branch. Max. (Amer. edit. 1824,) p. 122 ; Smith on Merc. Law, 69, (2d edit.) ; Id. p. 103, 104, 121, 122, (3d edit. 1843.) 2 Ante, §431. 3 Smith on Merc. Law, 73-75, (2d edit.) ; Id. B. 1, ch. 5, § 5, p. 133, 134, (3d edit. 1843) ; Paley on Agency, by Lloyd, 343, 344 ; Bothlingk v. Inglis, 3 East, R. 381 ; Koe v. Davis, 7 East, K. 364 ; Coore v. Callaway, 1 Esp. K. 115 ; Coles W.Bell, 1 Camp. 478, n. * Ante, § 244, 245, 248, 249 ; Maclean i'. Dunn, 4 Bing. K. 722 ; Wilson v. Anderton, 1 Barn. & Adolph. 450; Bartram v. Farebrother, 4 Bing. R. 579. 520 AGENCY. [CH. XVI. other act, or does not subject the latter to some loss, damage, or injury ; for then, if permitted, it would have a retroactive effect to defeat or control preexisting rights, or to found duties, a compliance with which was not obligatory, or even justifiable, at the time, and, of course, which the law will not be so un- reasonable as to encourage or establish.-^ ' Ante, §245-427; 3 Chittyon Comm.andManuf^ 206, 207 ; Paley on Agency, by Lloyd, 343-347 ; Solomons v. Dawes, 1 Esp. R. 83 ; Smith on Mere. Law, 73, 74, (2d edit.) ; Id. p. 133-135, (3d edit. 1843) ; Doe v. Walters, 10 Barn. & Cressw. 626. CH. XVII.] THIRD PERSOI^rS AGAINST PRINCIPALS. 521 CHAPTER XVII. RIGHTS OF THIRD PERSONS AGAINST PRINCIPALS, § 4411. We next come to an inquiry into the rights of third persons against principals, arising either from the contracts, or the acts, or the torts of their agents. Many topics, which would arrange themselves for consideration under this head, have been unavoidably discussed in the preceding pages. The subject, therefore, will be briefly considered in this place ; but, at the same time, as it will become indispensable to bring all matters touching it under review, in order to a complete examination of it, it will necessarily involve some repetitions. § 44S. In the first place, then, as to the rights of third per- sons against principals, growing out of the contracts of their agents. It may be generally stated, that wherever an agent, having proper authority, makes a contract for or on behalf of his principal, that contract becomes obligatory on the principal ; and the other contracting party has ordinarily the same rights and the same remedies against the principal, as if he had per- sonally made the contract.^ There are exceptions to this doc- trine, founded upon special considerations, some of which will presently fall under our notice. Tfie whole doctrine rests upon the maxim already referred to, Quifacitper aliumjacitper se; and it is a plain and obvious dictate of natural justice, that he who is to receive the benefit shall bear the burden ; and that he who has acquired, through his agent, certain fixed rights 1 Smith on Merc. Law, 55-58, (2d edit.) ; Id. B. 1, ch. 5, § 4, p. 103-108, (3d edit. 1843) ; Paley on Agency, by Lloyd, 343-345 ; 3 Chitty on Comm. and Manuf. 201-205 ; 2 Kent, Comm. Lect. 41, p. 629, 630, (4th edit.) See also Todd V. Emly, 7 Mees. & Welsh. 427. 44* 522 AGENCY. [CH. XVIl. and remedies upon the contract, against the other contracting party, shall be the latter. § 448. But the responsibility of the principal to third per- sons is not confined to cases, where the contract has been actually made under his express or implied authority. It extends further, and binds the principal in all cases, where the agent is acting within the scope of his usual employment, or is held out to the public, or to the other party, as having com- petent authority, although, in fact, he has, in the particular instance, exceeded or violated his instructions, and acted with- out authority.^ For, in all such cases, where one of two inno- cent persons is to suffer, he ought to suffer who misled the other into the contract, by holding out the agent as competent to act, and as enjoying his confidence.^ We have already seen, that this doctrine applies to a large class of agencies, where the party acts under a general authority, as contradistinguished from a special authority.^ To the other illustrations, we may add the case of the master of a ship. If he makes a particular engagement or warranty, relating to the conveyance of goods, according to the usual employment of the ship, the owners will be bound by such engagement or warranty, although it is made without their knowledge or approbation, or against their orders.* So, if the principal should clothe the agent, although a mere special agent, with all the apparent muniments of an absolute title to the property in himself, the principal would be bound by the acts of the latter ; ffe, for example, if he should clothe him with the apparent title to property by a bill of lading of a shipment, as by making the shipment appear to be on account 1 Ante, § 72, 105, 127, 128 ; Kerns v. Piper, 4 Watts, R. 222. 3 Ante, § 17, 18, 73, 126, 127, 131-133, 227, 223; Post, §470; Smith on Merc. Law, 56-59, (2(1 edit.) ; Id. B. 1, ct. 5, § 4, p. 103-111, (3d edit. 1843) ; 3 Chitty on Comm. and Manuf. 202, 203. 3 Ante, § 17, 18, 73, 126-133, 227, 228. 4 Abbott on Shipp. Pt. 2, eh. 2, § 6-8, p. 94-98, (Amer. edit. 1829) ; Ellis v. Turner, 8 Term R. 531 ; Ante, § 73, 126-133. CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 528 of the agent, or should trust him with negotiable securities, indorsed in blank, a sale or disposal thereof by the agent, although in violation of his private orders, would bind the prin- cipal, and give correspondent rights and remedies to third persons, who become bond fide possessors under such sale, or other act of disposal, against him.-' § 444. So, upon similar grounds, the rights of third persons will be j)rotected, where they deal with an agent, supposing him to be the sole principal, without any knowledge, that the property involved therein belongs to another person. This has been already alluded to, in cases where purchases are made of a factor, or other agent, holding himself out as the principal, or supposed to be such, and the buyer has a set-ofF against such agent or factor.^ In such cases, the set-ofi' is equally good, whether a suit be brought in the name of the principal, or of the factor or agent, for the price of the goods.^ Scg if an agent, em- ployed to collect money, and to remifit to'his principal, should lend it to a person to whom he is indebted in a larger amount, the latter, if he has no knowledge that the money does not belong to the agent, may retain it as a set-ofF, and may resist a suit therefor by the principal, although notice of the claim of the principal is given to him, before the suit is brought.* But, where an agent is known to be merely acting as such in the transaction, a third person, dealing with him with full notice, cannot avail himself of any right of set-ofF, which he may have against the agent.^ 1 Ante, § 84, note, 227, 228. 2 Ante, § 390, 404, 407, 419, 420. 3 Ante, § 419, 420 ; Smith on Merc. Law, 74, 75, (2d edit.) ; Id. B. 1, ch. 5, §5, p. 135, 136, (2d edit. 1843); Paley on Agency, by Lloyd, 277-280, 288, 289, 326, 383 ; 3 Chitty on Comm.and Manuf. 202; Morris v. Cleasby, 4 Maule & Selw. 566 ; George v. Clagett, 7 Term K. 359 ; Pickering v. Busk, 16 East, E. 38 ; Whitehead v. Tuckett, 15 East, 400. * Lime Rock Bank v. Plimpton, 17 Pick. 159. 5 Hurlburt v. Pacific Ins. Co. 2 Sumner, R. 471. Young v. White, 7 Beavan, R. 506. But where the principal has parted with all beneficial interest in any 524 AGENCY. [CH. XVII. § 4i4<5. So, if a contract is originally made without the authority of the principal, he may, by a ratification of it, give it validity, so as to confer upon the other contracting party the same rights and remedies, as if he had personally made it ; ^ for, as we have seen, the general maxim is, that a subsequent ratification is equivalent to a prior authority : Omnis ratihdbitio retrotrahitur, et mandato priori cequiparatur? This is so regularly true, that if an agent purchases goods for his prin- cipal, without due authority, and signs a written contract there- for, and the contract is within the statute of frauds, yet, if the principal subsequently ratifies it, the ratification will make the contract good within the statute of frauds, so as to bind the principal.^ § 446. The liability of the principal to third persons upon contracts made by his agent, within the scope of his authority, is not varied by thf mere fact, that the agent contracts in his own name, whether he discloses his agency or not, provided the circumstances of the case do not show that an exclusive credit is given to the agent.* Thus, if an agent purchases goods in his own name for his principal, without disclosing the latter, the principal will be liable, when discovered, to the ven- property, the agent cannot make a valid sale thereof, nor a valid contract in re- spect thereto, so as to bind the principal, although the latter still retain the legal title. Thus, although the registered owner of a ship would be liable primd facie for repairs done thereon, this presumption may be rebutted by proof, that he has parted with the beneficial interest. Jennings v. Grifiiths, Ryan and Mood. 42 ; Mclver p. Humble, 16 East, R. 169 ; Curling v. Robinson, 7 Mann. & Grang. 339. 1 Ante, § 239-360 ; Smith on Merc. Law, 60, (2d edit.) ; Id. p. 108, (3d edit. 1843.) 2 Maclean v. Dunn, 4 Bing. R. 722 ; Smith on Merc. Law, 60 ; 1 Liverm. on Agency; 44; Co.Litt. 207 a; Ante, § 239-260, (2d edit.) ; Id. p. 108, (3d edit. 1843.) 3 Ante, § 244 ; Maclean v. Dunn, 4 Bing. R. 722 ; Kinnltz v. Surry, Paley on Agency by Lloyd, 171, note ; Soames v. Spencer, 1 Dowl. & Ryl. 32 ; Smith on Merc. Law, 59, 60, (2d edit.) ; Id. p. 108, 133, 134, (3d edit. 1843.) * 1 Bell, Comm.§ 418, (4th edit.) ; Id. B. 3, ch. 3, p. 491, 492, (5th edit.) ■ Paley on Agency, by Lloyd, 243, 244 ; Ante, § 147, 269, 270. CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 525 dor for the price.^ So, if the agent purchases the goods, and states, at the time, that he purchases as agent, but does not disclose the name of his principal, the latter will not be ab- solved from the contract ; for, in such a case, as the principal is not known, it is impossible to say that the vendor has made his election not to trust the prjncipal, but exclusively to trust the agent.^ He may credit both, or either ; and he is not to be presumed to have an intention to elect either exclusively, until the name and credit of both are fairly before him.® If no exclusive credit has been given by the vendor, in such cases, either to the principal or to the agent, it will make no differ- ence in the rights of the vendor that there is a private and un- known agreement between the principal and agent, that either of them should be exclusively liable for the amount ; for such agreements, however valid between the parties, cannot be admitted to change the rights of third persons, who are strangers to them.* Neither, for the same reason, will a set- off, which the principal has against the agent, be, under such circumstances, available against the vendor.^ 1 Ante, § 266-270, 420 ; Paley on Agency, by Lloyd, 343-345 ; Smith on Merc. La*, 65, 66, (2d edit.) ; Id. B. 1, ch. 5, § 5, p. 133, 134, (3d edit. 1843) ; Pater- son V. Gandasequi, 15 East, R. 62 ; Addison v. Ga,ndasequi, 4 Taunt. R. 574 ; Bailton V. Hodgson, 4 Taunt. R. 576, n. ; Wilson v. Hart, 7 Taunt. R. 295 ; Thom- son V. Davenport, 9 Barn. & Cressw. 78, 86, 88 ; Bickerton v. Burrell, 5 Maule & Selw. 383 ; Paley on Agency, by Lloyd, 243-245 ; Jones v. Littledale, 6 Adolph. & Ellis, 490 ; Seymour v. Pychlau, 1 Barn. & Aid. 14, 17, 18 ; Rayner V. Grote, 15 Meeson & Welsby, R. 359. See ante, § 406, note. 2 Ante, § 266-270 ; Thomson v. Davenport, 9 Barn. & Cressw. 78 ; Higgins V. Senior, 8 Mees. & Welsh. 440 ; Ante, § 270. 3 Thomson v. Davenport, 9 Barn. & Cressw. 78, 86, 88. * Paley on Agency, by Lloyd, 334, 343-345 ; Rich v. Coe, Cowp. 636 Precious v. Able, 1 Esp. Rep. 350 ; Kymer v. Suwercropp, 1 Camp. R. 109 Waring v. Favenck, 1 Camp. R. 85 ; Speering v. De Grave, 2 Vern. 643 Ante, § 280-300, 431-433. 5 Waring v. Favenck, 1 Campb. R. 85 ; Paley on Agency, by Lloyd, 245, 334 ; Heald v. Kenworthy, 28 Eng. Law & Eq. R. 537. Mr. Bell, in ^is excel- lent Commentaries on Mercantile Jurisprudence, 1 Bell, Comm. § 418, (4th edit.) ; Id. p. 491, 492, (5th edit.) has summed up the whole doctrine on this subject in a very satisfactory manner. " Third parties, who have dealt with the 526 AGENCY. [CH. XVII. § 446 a. The fact that the agent has contracted in his own name in writing, yet with th^ assent of his principal and for factor, have their claim against the estate of the principal as if they had dealt with himself. The agent's contract entered into, /aciono nomine, the principal's name being disclosed, forms a good ground of' action or claim against the prin- cipal, provided the power is proved. A'""^ '" ^^^^ '^^^^ there will be no action against the factor, unless the principal is abroad. Such is the case of a rider to a manufacturing house. In taking an order in the name of the house, he binds the house to furnish the article. In such cases, the claim may either be, first against the principal, as the buyer of goods, for the price ; or, secondly, against the principal, as the seller of goods, for delivery of the goods, or for damages. In the former case, the claim is merely for a dividend, even where the goods are still with the agent or factor, and distinguishable. In the latter, the claim also is merely personal. But where the agent is neutral, as a general comniission. agent, who unites the business of a custodier with that of a broker, acting for both parties, the property may, in such situations, be held as transferred, so as to vest a real right in the buyer. Where the contract is not in the principal's name, but generally as with a factor, the election will be with the third party to hold to the credit of the factor, or to seek his remedy against the principal. And the remedy against the principal will not be hurt, either, first, by any private agreement between the principal and the factor, that the factor alone shall be responsible ; or, secondly, where the principal has paid the price to his agent, who has squandered it ; unless the day of payment has been allowed to pass, and the principal has been led to believe that the agent alone was relied on ; or, thirdly, by the circumstance of the factor failing, with a large balance due to the prin- cipal. Where notice is given of the principal, and the third party chooses to rely on the factor, he will be entitled so to do, but will not also have his claim against the principal. Evfen where the factor contracts in his own name, the principal is bound to the third party, on his name and interest being disclosed. But, in such case, the principal and factor will reciprocally have the benefit of their private stipulations, as to responsibility, and of their correlative rights, in respect to the state of the balance in account between them. A del credere commission affects the settlement only between the principal and factor, relative to the moneys to be recovered from third parties. So, a factor with a del credere is responsible that the buyer shall pay the price. But although the factor will, on the buyer's failure, (himself being insolvent,) have the beneficial interest in claiming on the buyer's estate, he is not so much a creditor as, on the one hand, to deprive the buyer of the benefit of retention or compensation against the principal ; nor, on the other, to give his own creditors the benefit of the claim against the buyer, while they pay only a dividend to the principal. In the former case, compensation or retention against the principal will discharge the guarantee ; in the latter, the principal will have his claim against the buyer on the bankruptcy, and also against the factor on his guarantee. Claims may be made by third parties against the estate of the principal, in consequence of the acts of the agent, though unauthorized by the principal. Thus, the representations of CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 5^7 his benefit, will not exclude the principal from liability, unless exclusive credit is given to the agent. Thus, if an agent with the assent of his principal and for his benefit draws a bill of ex- change in his own name on his principal, which is taken by a party in the business of the principal, (as to raise money for him,) although the principal may not be directly bound as drawer of the bill, but the principal only, yet the party advanc- ing the money on the bill may have an action for money paid, &c., against the principal for the amount of the advances.^ § 447. The exceptions to this liability of the principal may easily be gathered from what has been already stated. If the principal and the agent are both known, and exclusive credit is given to the latter, the principal will not be liable, although the agent should subsequently fail ; for it is competent to the parties to agree to charge one, exonerating the other ; and an election, when once made, becomes conclusive and irrevocable.^ § 448. In the common case of purchases by a factor, for a principal, resident iu a foreign country, we have already seen, that the credit is, from the general usage of trade, deemed to be exclusive ; and, therefore, the principal is never, or, at least, is not ordinarily, deemed liable therefor.^ And even with re- the a^ent, in the strict course of the contract, will be tak^n to form a part of the contract with the principal ; and the concealment or misrepresentation of the agent will also affect the principal. In the same way, notice to a factor or agent will be held as notice to the principal, prpvided such factor has power to treat and negotiate the contract. And finally, the principal is liable civilly for the neglect or fraud of his agent, committed in execution of the authority given to him." 1 Allen V. Coit, 6 Hill, N. Y. R. 318 ; Rogers v. Coit, 6 Hill, N. Y. R. 322. 2 Ante, § 161, 278, 279, 291, 423, 432 ; Abbott on Shipp. Pt. 1, ch. 3, § 8, p. 76, note (1), (Amer. edit. 1829) ; Id. Pt. 2, ch. 3, § 2, 3, p. 100-102, Paley on Agency, by Lloyd, 244, 245. 3 Ante, § 268, 279, 290, 296, 297, 350, 423, 432, 434 ; Thompson v. Daven. port, 9 B. & Cressw. 78, 87; Paley on Agency, 243-246, 248, 334; Smith on Merc. Law, 66, (2d edit.) Id. p. 122, 123, (3d edit. 1843) ; 3 Chitty on Comm. and Manuf. 203 ; 1 Bell, Comm. § 418, (4th edit.) ; Id. p. 491, (5th edit.) As to the case of a principal, resident in another State of the United States, see Taintor v. Prendergast, 3 Hill, R. 72, and ante, § 268, note. 52S AGENCY. [CH. XVII. spect to domestic factors, a similar conclusion may arise from the previous dealings between the parties, or the peculiar circum- stances of the particular transaction. Thus, for example, if an agent purchases goods for his principal, vi'ho is known, and stands by at the time of the purchase, and the vendor gives credit to the agent, that is ordinarily deemed an election to charge him alone.-" A fortiori, the presumption of an exclu- sive credit to the agent will arise in such a case, if the agent is a domestic factor, and the principal is a foreigner, transiently in the country.^ The case of an exclusive credit, given to ship- masters, for supplies or repairs, constitutes another illustration of the same doctrine ; although, in a variety of cases, the mate- rial man may have a lien on the ship, as well as the responsi- bility of the shipmaster and ship-owner, for the supplies or re- pairs.^ § 449. The liability of the principal to third persons, where the purchase is made in the name of his agent, and the prin- cipal is not known or disclosed at the time, is [sometimes thought to be] qualified by another consideration ; and that is, that the principal will not be made personally liable, if, in the intermediate time, he has settled with his agent, without any suspicion of his own personal liability, or if he would other- wise, without any default on his own part, be prejudiced by being made personally liable. Therefore, if, in the inter- mediate time, the principal has paid the agent for goods pur- chased in the name of the latter, or if the state of the accounts between the agent and the principal would make it unjust that the principal should be held liable to the vendor, such fact of 1 Addison v. Gandasequi, 4 Taunt. R. 574, 580 ; Wilson v, Har.t, 7 Taunt. K. 295. See Waring v. Favenck, 1 Campb. R. 85 ; Kymer v. Suwercropp, 1 Campb. R. 109 ; Ante, § 400, 406, 423. 3 Ibid. See also Seymour v. Pychlau, 1 Barn. & Aid. 14, 16-19. 3 See Abbott on Shipp. Pt. 2, eh. 3, § 3-18, and notes to Amer. edit. 1829 ; Paley on Agency, by Lloyd, 245, 246 ; Rich v. Coe, Cowp. R. 637; Paley on Agency, by Lloyd, 243-246 ; Ante, § 294, 434 ; Post, § 450. CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 529 payment, or such a state of accounts, [it has been said,] would be a good defence to a suit brought by the vendor against the principal.^ The same result would arise, if the vendor had accepted a negotiable security from the agent, for the amount, payable at a future day, or had given him a receipt, by which he had in the mean time settled with his principal, or the latter had been induced to deal differently with the agent, from what he would otherwise have done.^ So, if the vendor had suffered 1 Per Bayley, J., in Thomson v. Davenport, 9 B. & Cressw. 88, 89 ; Paley on Agency, by Lloyd, 243, 244, 248-253 ; Smitli on Merc. Law, 65, 66, (2d. edit.) ; Id. p. 122, 123, (3d edit. 1843) ; Ante, § 434. But see Waring v. Favenck, 1 Camp. K. 85; Kymer v. Suwercropp, 1 Campb. K. 109. 2 Ante, § 288, 291, 433, 434 ; Porter v. Talcott, 1 Cowen, R. 359 ; 3 Ciiitty on Comm. and Manuf. 204 ; Wyatt v. Marquis of Hertford, 3 East, K. 147 ; Marsb v. Pedder, 4 Campb. E. 257; 1 Liverm. on Agency, 207-217, (edit. 1818) ; Paley on Agency, by Lloyd, 245-247, 250-253 ; Smith on Merc. Law, 65, 66, (2d edit.) ; Id. B. 1, eh. 2, § 4, p. 121, 122, (3d edit. 1843.) Mr. Lloyd, in his edition of Paley on Agency, 246-254, has made a summary of the prin- cipal cases. Although it is somewhat long, its practical utility has induced me to cite it at large in this place. " Indeed, there are several ways, in which the liability of the principal may be aiFected, in purchases made by his agent, of which the following summary may be useful. 1st. The purchase may be made by the broker, expi*ssly for and in the name of his principal. In that case, if the principal be debited by the seller, he only, and not the broker, will be liable. 2d. A broker may purchase, in his character of broker, for a known principal ; .but the seller may choose, nevertheless, to take him for his debtor, rather than the principal, in whose credit he may not have the same confidence ; and, after this deliberate election, the seller cannot afterwards turn round and charge the principal. 3d. The broker may buy in his own name, without disclosing his principal ; in which case, the invoices will, of course, be made out to him, and he will be debited with the account. If now, before payment, the seller discover that the purchase was in fact made for another, he may, at his choice, look for payment either to the broker or the principal,— to the former upon his personal contract,— to the latter upon the contract of his agent : and the adoption of the purchase by the principal will be evidence o^ the agent's authority. But, 4th. If, after the disclosure of the principal, the seller lie by and suffer the principal to settle in account with his broker for the amount of the purchase, he cannot afterwards charge the latter, so as to make him a loser, but will be deemed to have elected thebroker for his debtor. And, 5th. If the principal be a foreigner, it seems, that, by the usage of trade, the credit is to be considered as having been given to the Enghsh broker, and that he only, and not the foreign buyer, will be liable. That question, however, is for the jury. 6th. There is still an intermediate case, where, upon a purchase by a broker, the seller, knowing that AGENCY. 45 580 AGENCY. [CH. XVII. the day of payment for the goods to pass by, without demand- ing payment, and had thereby induced the principal to suppose ; 7 ~ he is acting as broker in the transaction, but not for ■whom, makes out the in- voice to him, and debits him with the price ; can the seller afterwards, when tte name of the principal is made known to him, substitute him as the debtor, and call upon him for payment ? On the one part, it is said, the principal, in debiting the broker, can have exercised no election ; because election implies a preference, and there can be no preference, when the principal is unknown. On the other part, it is answered, that the seller might have known by simply asking the question, and that the omitting to make the inquiry is decisive evi- dence of a deliberate preference of the broker. The Court of King's Bench has decided, that the principal, in such case, is not discharged ; but the decision has not been considered very satisfactory, and is certainly not implicitly acqui- esced in. 7th. It was laid down by Parke, J., in a case which underwent much consideration, that wherever the broker has stated to his principal, and the latter has bona fide adopted, a contract different from that under which the purchase was actually made, the seller cannot call upon the principal for payment ; be- cause the seller sues on the contract, under which the goods were really sold, and is, therefore, bound to show that the principal authorized or ratified that contract, and not a different one, substituted by the broker. And, although the Court hesitated to adopt this proposition in its full extent, yet, they were unan- imously of opinion, that, if the seller have furnished the broker with the means of so misrepresenting the contract to his principal, and the latter have actually paid the broker, according to the terms communicated to him, he will thence- forth be released from all liability to the seller. 8th. Payment by the agent will, of course, discharge the principal. And it is a general principle, that, if the creditor voluntarily give an enlarged credit to the agent of the debtor, or adopt a particular mode of payment, whereby the principal is placed in a worse situ- ation than he would otherwise have been, the liability of the original debtor is discharged ; and, therefore, if a creditor, voluntarily, and for his own accommo- dation, take a security from an agent of the debtor, who afterwards fails, having in his hands funds of his principal adequate to the payment of the demand, he cannot afterwards resort to the principal. But, if the creditor take the security, not voluntarily and for his own convenience, but because he is unable at the time to procure cash, or if he take it conditionally, and not as absolute payment, or if the principal be in no respect prejudiced by the accommodation afforded to the debtor, then, to whatever extent the indulgence may have been carried, the principal will not be released. It seems, in short, that nothing will operate as a discharge to the principal, which could not be pleaded as payment, or as accord and satisfaction between the creditor and the agent. And, therefore, a receipt, given by the creditor to an agent or broker, does not necessarily of itself operate as a discharge to the principal ; nor has it that effect, unless the principal appear to have dealt differently with his agent in consequence of the receipt, as by passing it in his accounts, and giving him further credit upon the faith of that voucher. But, where the receipt is the means of accrediting the CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 531 that credit was exclusively given to the agent, and upon the faith of that he had paid over the amount to the agent, or settled it in account with him, the principal would be dis- charged.^ [But in all these cases, it seems to be essential, that the vendor should in some way have either deceived the principal, or induced him to alter his position and accounts towards his agent, before he is deprived of his remedy against the principal. And it is now settled, that the simple fact that the principal has paid his agent the funds with which to pay the ageBt with his principal, or altering the situation of the latter, the creditor can only resort to the agent. Accordingly, in the insurance trade, where the usage is for the broker of the assured to charge his employer with premiums as paid to the underwriter, though in fact there be no money paid, but a running account kept between the broker and underwriter, it is held, that the receipt in the policy, whereby the underwriter confesses himself paid the premium, is conclu- sive, as between him and the principal." In case of the sale of goods to an agent, payable upon time, if the time of payment has not elapsed, the principal, whether known or unknown, cannot, by a premature payment to, or settlement with, the agent, exonerate himself from responsibility to the vendor, unless it is clear, from all the circumstances, that an exclusive credit was given to the agent. Smith on Merc. Law, 65, 66, (2d edit.) ; Id. B. 1, ch. 5, § 121, 122, (3d edit. 1843) ; Waring v. Favenck, 1 Campb. R. 85 ; Kymer v. Suwercropp, 1 Campb. R. 109. In this last case. Lord EUenborough said : " A person selling goods is not confined to the credit of a broker, who buys them ; but may resort to the principal, on whose account they are bought ; and he is no more affected by the state of accounts between the two, than I sfiould be, were I to deliver goods to a man's servant, pursuant to his order, by the consideration of whether the servant was indebted to the master, or the master to the servant. If he lets the day of payment go by, he may lead the principal into the supposition, that he relies solely on the broker ; and if, in that case, the price of the goods has been paid to the broker on account of this deception, the principal shall be discharged. But here, payment was demanded of the defendant on the several days it be- came due, and no reason was given him to believe, "^hat his broker alone was trusted. He has received a great part of the coffee, and enjoyed the benefit of it ; the right of the vendors is entire, unless he has paid them, or some person authorized by them to receive payment. Kenyon & Co. had no such authority ; therefore, he is still liable. The rest of the coffee was stopped, only to prevent its getting into the hands of the insolvent brokers ; and, as payment was to pre- cede the delivery, it was enough, if the plaintiffs, on being paid, were ready to have delivered it." 1 Kymer v. Suwercropp, 1 Campb. R. 109 ; Paley on Agency, by Lloyd, 243- 246 ; Smith on Merc. Law, B. 1, ch. 5, § 4, p. 121, 122, (3d edit. 1843.) 532 AGENCY. [CH. XVII. plaintiff, does not deprive the plaintiff of his right to look to the principal, if the agent fail to pay over according to his orders.-'] 1^450, Another exception may arise from the form of the contract, where, although it is authorized by the principal, and is in the course of his business, yet it is exclusively, in its form, and character, and operation, a contract between the agent and the third person.^ In such cases, the principal is not directly liable to such third person upon the contract. [1 Heald v. Keuworthy, 28 Eng. Law and Eq. R. 537.— Parke, B., said : " If a man order an agent to buy goods, he is bound to see that his agent pays for them, and the giving of money to his agent for that purpose, does not amount to payment, unless the money be actually so applied. It is true, the cases furnish dicta upon which some argument to the contrary may be hung. First, there is the dictum of Bayley, J., in Thomson v. Davenport, to the effect that, if the agent ' does make himself personally liable, it does not follow that the principal may not be liable also, subject to this qualification, that the principal shall not be prejudiced by being made personally liable, if the justice of the case is that he should not be personally liable.' He then goes on to say : ' If the principal has paid the agent, or if the state of accounts between the agent here and the prin- cipal would make it unjust that the seller should call on the principal, the fact of payment, or such a state of accounts, would be an answer to the' action brought by the seller where he had looked to the responsibility of the agent.' That expression is somewhat vague, but it is quite true when properly under- stood. If, for example, the principal is induced, by the conduct of the seller, to pay his own agent, on the faith that the agent will settle with the seller, in such a case the seller would be precluded from recovering, as it would be unjust for him to do so. But, under ordinary circumstances, the plaintifi' is entitled to re- cover, unless he has either deceived the defendant or induced him to alter his position. This is the case of Wyatt v. The Marquis of Hertford. So in the case of Kymer v. Suwercropp, the observations of Lord EUenborough are quite correct, as the fact of the seller's allowing the day of payment to pass, may afford evidence of deceit, and of his having induded the principal to pay his agent. The same conclusion is to be drawn, from the judgment of my brother Maule, in Smyth v. Anderson, and his language is not at all at variance with the other decisions with reference to the effect of payment. He observes : ' Pay- ment, however, is only put in the dicta to which I have adverted, as an instance of its being unjust or unfair that the seller should enforce the contract against the principal.' The result is, that, under the circumstances of the present case, the seller may recover against the principal." ' See also Smyth v. Anderson, 7 Com. B. E. 21.] 2 Ante, § id, 160 a, 161, 278, 422, 434. CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 588 although, in some cases, he may be indirectly liable.^ Thus, where a contract is made under seal between the agent in his own name and a third person, the principal cannot sue or be sued thereon, although it may be authorized by him ; as, for example, in case of a charter-party, or a bottomry bt)nd, sealed and executed by the master of a ship ; or in a contract, made by the agent under his own seal, for the purchase or sale of goods, or for a lease, or for any other thing to be done, where the covenants, although on behalf of the principal, are exclusively in the names of the agent and the third person.^ lAnte, § 151, 160, 160 a, 161, 278, 422; Dubois v. Delaware & Hudson Canal Co. 4 Wend. K. 285 ; Hall v. Bainbridge, 1 Mann. & Grang. 42. 2 Ante, § 155-158, 160, 161, 162, note, 263, 273, 275, 276, 278, 279,294, 422; Abbott on SMpp. Pt. 3, eh. 1, § 2, p. 163-165, (Amer. edit. 1829) ; Paley on Agency, 381-384 ; Wells v. Evans, 20 Wend. 251 ; Ante, § 49, note. Lord Tenterden, in his work on Shipping, Pt. 3, ch. 1, § 2, p. 163-165, refers to this doctrine, in the following passage : " I have before observed, that the execution of a charter-party by the master, although said to be done on behalf of the owners, does not furnish a direct action, grounded upon the instrument itself, against them. This depends upon a technical rule of the law of England, applicable as well to this as to other cases, and not affected by the mercantile practice of executing deed& for, and in the name of absent persons ; the rule of the law of England being, that the force and effect, which that law gives to a deed under seal, cannot exist, unless the deed be executed by the party himself, or by another for him, in his presence, and with his direction ; or, in his absence, by an agent, authorized to do so by another deed ; and, in every such case, the deed must be made and executed in the name of the principal. The agent, in- deed, either of the owner or merchant, may, and sometimes does, execute a charter-party, and covenant in his own name for performance by his principal, so as to bind himself to answer for his principal's default, by force of the deed. And, in an action to recover freight or demurrage, claimed in pursuance of a charter-party by deed, it has been held, the declaration must be specially framed on the deed itself. If such a charter-party be made between the master and the merchant, in pursuance of which goods are delivered to the merchant and his partners, the freight cannot be recovered in an action upon the case, brought by the owners against the merchants. So, if the owner execute a deed to the merchant, containing the usual covenant for a right dehvery of the cargo, he cannot be sued by the merchant for not delivering it, in an action upon the case, grounded on the bill of lading signed by the master. But, where a charter- party, under seal, was made by the master in that character, with merchants who did not know that he was also a part-owner in the ship, as in fact he was ; it was held, that they might sue him and the other owners in an action upon the 45* 584l AGENCY. [CH. XVII. § 451. In the next place, as to the liability of principals to third persons for the acts of their agents. This topic may be case, for a breach of such general duties as were not inconsistent with the stipu- latioils of the charter-party, such as the not providing necessaries for the voyage, and employing a negligent and unskilful master. And, whether the instrument be under seal or not, an action at law, grounded upon it, must be brought in the name of the party to it, and not in the name of another, to whom he may have assigned his interest. And, therefore, the purchaser of a ship, previously char- tered, cannot sue for the freight earned under the charter-party in his own name, although payment to him will be a good discharge to an action brought in the name of the seller, at least if the purchase be made before the ship sails on the voyage. In like manner, where goods were shipped, in pursuance of a charter-party made by the master with one Partridge, and whereby he engaged to receive a cargo of fruit from the agents or assigns of Partridge, and deliver the same to him or his assigns ; and, upon a shipment, he signed a bill of lading, stating the goods to have been shipped by one Strange, by order of Eovedino & Moores, to be delivered to the order of Moores, and freight to be paid accord- ing to the tenor of the contract of affreightment ; it was held, that Moores could not maintain an action against the master for negligence in the stowing of the fruit. Another technical rule of the law of England, applicable also to the contract by charter-party, under seal, should be noticed in this place. If a charter-party is expressed to be made between certain parties, as between A and B, owners of a ship, whereof C is master, of the one part, and D and E, of the other part, and purports to contain covenants with C, nevertheless, C cannot bring an action in his name upon the covenants expressed to be made with him, nor give a release' of them, even although he seals and delivers the instrument. But if the charter-party is not expressed to be made between parties, but runs thus : This charter-party indented witnesseth, that C, master of the ship W., with consent of A and B, the owners thereof, lets the ship to freight to E and F ; and the instrument contains covenants by E and F, to and with A and B ; in this case, A and B may bring an action upon the covenants, ■expressed to be made with them ; although, unless they seal the deed, they can- not be sued upon it. This latter, therefore, is the most proper form." See also Atty V. Parish, 4 Bos. & Pull. 104. In Tilson v. Warwick Gas Light Company, 4 Barn. & Cressw. 962, 968, Bayley, J., said : "I am not convinced by the case of Atty 11. Parish, that, where a contract appears upon the face of a declaration to be such, that the plaintiff may recover, whether the contract be by deed or not, that it is necessary to declare upon the deed, if there be one. The strong impression of my mind is, that, upon principle, although there be a deed be- tween the parties, yet, if there be a debt, independent of the deed, the amount of which, however, is to be ascertained by the deed, the existence of the deed will not prevent the party from recovering that debt upon the common counts. And where there was a charter-party, under which the cargo was to be sent alongside the ship, at the merchant's expense, the master rendering the custom- ary assistance with his boats and crew, and the cargo lying about thirty yards CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 385 dismissed in a few words ; for the whole doctrine turns upon the obvious maxim, that he, who acts by another, acts by him- self ; Qui facit per alium, facit per se} Hence it is, that the delivery of goods by a third person to an agent, and. the accept- ance of goods by an agent for his principal, is, in contemplation of law, a delivery to, and acceptance by, the principal.^ Hence, also, a delivery of goods to the servant of a carrier, in the course of his employment, is a delivery to the carrier himself, and binds him to responsibility to the owner.^ A delivery of goods to a master of a ship is a delivery to the owner or em- ployer. [But a master of a ship, or other agent, has no power to bind his principal by a receipt for goods as delivered, which in fact, never were delivered.*] A delivery of goods to the consignee, who is agent of the shipper, is a delivery to the latter.^ So, payments, made by a third person to the agent, in the course of his employment, is payment to the principal ; and, whether actually paid to the principal, or not, by the agent, it is conclusive upon him.® So, if the money is, from any cir- from tke edge of the wharf, the master applied to the defendant's factor for laborers, to remove it into the boats, and he refused, saying he would abide by the charter-party, and the master hired laborers for the purpose ; it was held, that the ship-owner might recover such expense in an action of assumpsit, not- withstanding the' charter-party." Fletcher v. Gillespie, 3 Bing. R. 635. See Banorgee v. Hovey, 5 Mass. R. 11 ; Kimball v. Tucker, 10 Mass. R. 192. It is not, in the present state of the authorities, easy to say, in what cases the princi- pal may or may not sue or be sued, upon written and sealed contracts of his agent, either directly or indirectly, as the cases do not seem to be in perfect harmony with each other, or to furnish any very clear or definite rule. See ante, § 49, note, 160, 161, 275-278, 294, 422. ' 1 Ante, § 134-139 ; Smith on Merc. Law, 69, (2d edit.) ; Id, B. 1, ch. 5, § 4, p. 127-130, (3d edit. 1843) ; Paley on Agency, by Lloyd, 293 ; 1 Bell, Comm. § 418, (4th edit.) ; Id. p. 493, (5th edit.) s Smith on Merc. Law, 69, (2d edit.) ; Id. p. 127-130, (3d edit. 1843) ; Paley on Agency, by Lloyd, 593 ; Mead v. Hamond, 1 Str. R. 505 ; 3 Chitty on Comm. and Manuf. 207. 3 Ibid. ; Staples v. Alder, 2 Mod. R. 309 ; Taylor v. , 2 Ld. Baym. 792. * Grant v. Norway, 2 Eng. Law & Eq. R. 337 ; Hubbersty v. Ward, 18 Id. 551 ; Coleman u..Riches, 29 Id. 323. 5 Abbott on Shipp. Pt. 2, ch. 2, § 2, 8, p. 90-99, (Amer. edit. 1829.) 6 Ante, § 429. 536 AGENCY.. [CH. XVII. cumstances, recoverable back, as, if it is paid by mistake, or upon a consideration that has failed, the principal will be liable to repay it, although he may never have received it from his agent.^ So, a tender to an authorized agent will be a good tender to the principal.^ Notice, also, to an agent, in the course of his employment, is notice to the principal.^ So, the representations, declarations, and admissions of the agent, in the course of his agency, are deemed a part of the res gestae, and equally obligatory upon the principal, as if made by him- self.* So, a demand, made of an agent, of goods pawned to his principal, upon a tender of the money due, will, upon the refusal of the agent, if usually intrusted to deliver up such property, amount to evidence of conversion to bind the master .° § 452. In the next place, as to the liability of the principal to third persons, for the misfeasances, negligences, and torts of his agent. It is a general doctrine of law, that, although the principal is not ordinarily liable (for he sometimes is) in a criminal suit,® for the acts or misdeeds of his agent, unless, in- deed, he has authorized or cooperated in those acts or mis- deeds ; yet, he is held liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, negligences,'' and other malfeasances, or misfeasances, and omis- sions of duty, of his agent, in the course of his emplojonent, 1 Paley on Agency, by Lloyd, 293 ; Carey v. Webster, 1 Str. K. 480 ; Mathew v. Haydou, 2 Esp. R. 509 ; 3 Chitty on Comm. and Manuf. 207 ; Ante, § 408, 413, 435. 2 Anon. 1 Esp. E. 349; Goodland v. Blewith, 1 Campb. 477; 3 Chitty on Comm. and Manuf. 208; Ante, § 103, 147. 3 Ante, § 140 ; 3 Chitty on Comm. and Manuf: 209. 4 Ante, § 134-139 ; 3 Chitty on Comm. and Manuf. 208, 209. 5 Jones V. Hart, 2 Salk. 441 ; S. C. Ld. Kaym. 738 ; Com. Dig. Action on the case for Negligence, A. 1-A. 6 ; Paley on Agency, by Lloyd, 305 ; 4 Bac. Abridg. Master and Servant, K.; Ante, § 247. 6 Attorney-General v. Siddon, 1 Tyrwh. R. 41 ; Rex v. Goutch, 1 Mood. & Malk. 437; Rex. u. Almon, 1 Leading Crim. Cases, 241 and note; Paley on Agency, by Lloyd, 294-298 ; Id. 305, 306 ; 3 Chitty on Cogam. and Manuf. 209, 210 ; Smith on Merc. Law, B. 1, oh. 5, § 3, p. 130, (3d edit. 1843.) 7 Barber v. Britton, 26 Verm. 112; Linsley v. Lovely, Id. 123. CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 587 although the principal did not authorize, or justify, or partici- pate in, or, indeed, know of such misconduct, or even if he for- bade the acts, or disapproved of them.^ In all such cases, the rule applies, Respo'p.deat Superior ; and it is founded upon pub- lic policy and convenience ; for in no other way could there be any safety to third persons in their dealings, either directly with the principal, or indirectly with him through the instrumentality of agents.^ In every such case, the principal holds out his agent, as competent, and fit to be trusted ; and thereby, in effect, he warrants his fidelity and good conduct in all matters within the scope of the agency.^ 1 Southwick V. Estes, 7 Cush. 385 ; Philadelphia Kailroad Co. v. Derby, 14 How. 468 ; Hunter v. The Hudson River Iron Co.' 20 Barbour, 507 ; .Chitty on Comm. and Manuf. 208-210 ; Paley on Agency, by Lloyd, 294-296, 301-307 ; Smith on Merc. Law, 70, 71, (2d edit.); Id. B. l,oh 5,§ 8, p. 127-130, (3d edit. 1843); Ante, § 139, 217, 308-310; Doe r. Marten, 4 Term R. 66, per Lord Kenyon ; Bush u. Steinman, 1 Bos. & Pull. 404 ; Att'y-Gen'l v. Siddon, 1 Tyrwh. R. 41 ; Ante, § 308, 311, 315-319 ; Milligan v. Wedge, 12 Adolph. & Ellis, 737, 742 ; Quarman v. Burnett, 6 Mees. & Welsh. 499 ; Locke v. Stearns, 1 Mete. R. 560; Penn. Steam Navig. Co. u. Hungerford, 6 Gill & Johns. R. 291. • a Ante, § 308 ; 1 Black. Comm. 431, 432; Abbott on Shipp. Pt. 2, ch. 2, § 11 ; Ellis V. Turner, s' Term R. 533 ; Bush v. Steinman, 1 Bos. & Pull. 404 ; Laugher !). Pointer, 5 Barn. & Cressw. 547*; Randleson v. Murray, 8 Adolph. & Ellis, 109 ; Milligan v. Wedge, 12 Adolph. & Ellis, 737 ; Quarman v. Burnett, 6 Mees. & Welsh. 499 ; Rapson v. Cubitt, 9 Mees. & Welsh. 710 ; Winterbottom V. Wright, 10 Mees. & Welsh. 109, 111 ; Ante, § 308, 311 ; Wilkins v. Gilmore, 2 Humphreys, 140 ; Leggett v. Simmons, 7 Sm. & Mar. 348 ; Penn. Steam Co. V. Hungerford, 6 Gill & Johns. 291 ; Johnson v. Barber, 5 Gilman, 425 ; Harris V. Mabry, 1 Iredell, 240.. 3 See the opinion of Lord Holt in Lane v. Cotton, 12 Mod. R. 490 ;- Paley on Agency, by Lloyd, 294, 301-307 ; 4 Bac. Abridg. Master and Servant, K. ; Ante, § 11-13, 315, 316, 319 ; Hern v. Nichols, 1 Salk. 289. Mr. Justice Blackstone, in his Commentaries, gives a different reason, and says : " We may observe, that, in all the cases here put, the master may be frequently a loser by the trust reposed in his servant, but never can be a gainer ; he may frequently be answerable for,his servant's misbehavior, but never can shelter himself from punishment, by laying the blame on his agent. The reason of this is still uni- form and the same ; that the wrong done by the servant is looked upon in law as -the wrong of the master himself; and it is a standing maxim, that no man shall be allowed to make any advantage of his own wrong." 1 Black. Comm. 538 AGENCY. [CH. XVII. § 4<5S. A few cases may serve to illustrate this doctrine. Thus, a carrier will be liable for the negligence of his agent, by which the goods committed to his custody are damaged or lost.^ So, he will be liable for the tortious conversion of the property by his ageijt.^ So, the owner of a ship will be liable for damages and losses, arising to a shipper of goods by reason of the negligence, the fraud, the unskilfulness, or the tortious acts of the master.^ So, if the master of a ship should negli- gently run down, or come into collision with another ship, the owner would be liable to the party injured for the damages occasioned thereby.* So, if a servant should negligently drive his master's carriage or cart, as to overturn another carriage, or to run over an individual, and do him injury, [or leave his master's cart in the street, where it is struck by a third person, and the plaintiff thereby injured,'] the master would be liable for the damages.^ [So, if a man's servant wrongfully pile up his master's wood in the highway and thereby an injury is 432. It seems to me, that the reason here given is artificial and unsatisfacfory, and assumes, as its basis, a fact, whicn is the reverse of the truth in many cases; for the master is liable for the wrong and negligence of his servant, just as much, when it has been done contrary to his orders and against his intent, as he is, when he has cooperated in, or known the wrong. 1 Story on Bailm. § 488-583; 1 Bell, Comm. § 397-400,' (4th edit.) Id. p. 463-465, (5th edit.) ; Coggs v. Bernard, 2 Ld. Raym. 909, 919, 920. 2 Ante, § 310, 315, 316 ; Morse v. Slue, 1 Vent. R. 238 ; S. C. 1 Mod. R. 85. 3 4 Bae. Abridg. Master and Servant, K.; Ante, § 315-317; Abbott on Shipp. Ft. 2, ch. 2, § 6-8, p. 94-98, (Amer. edit. 1829) ; Id. p. 99, note (1), and cases there cited ; Paley on Agency, by Lloyd, 297, 298. * Abbott on Shipp. Ft. 2, ch. 2, § 11, and note (1) (Amer. edit. 1829) ; and cases there cited ; The Thames, 5 Rob. 345 ; The Dundee, 1 Ilagg. Admir. R. 109 ; The Woodrop Sims, 2 Dodson, R. 83 ; The Neptune the 2d, 1 Dodson, R. 467 ; Stone v. Ketland, 1 Wash. Cir. R. 142; Ante,§ 315-317; Shaww. Reed, 9 Watts & Serg. 72. 5 Illidge V. Goodwin, 5 C. & P. 190. 6 Jones V. Hart, 2 Salk. 441 ; Brucker v. Fromont, 6 Term R. 659 ; Morley V. Gaisford, 2 H. Black. 442 ; McManus v. Crickett, 1 East, R. 107, 108; John- son V. Small, 5 B. Monroe, 25 ; Faley on Agency by Lloyd, 295 ; Booth v. Mister, 7 Carr. & Payne, 66. See Quarman v. Burnett, 6 Mees. & Welsh. 499 ; Post, § 453 a, 453 b, 453 c. en, XVII.] THIRD PERSONS AGAINST PRINCIPALS. 539 caused to a traveller, the master is responsible, although he was sick at the time, and knew nothing of tlfe fact.^] So, if a servant of a smith should injure a horse in shoeing him, or an assistant of a surgeon should treat a patient with gross want of skill, the principal would be liable for thp damages.^ So, if an agent should sell a piece of cloth, and warrant it to be good, an action of deceit would lie against the master.^ So, if an agent should fraudulently sell false jewels, or should fraudu- lently deceive a third person, in the matter of his agency, the principal, even if not cooperating in the act, would be liable therefor.* § 453 a. But very nice questions may arise, and often do arise, as to the person, who, in the sense of the rule, is to be deemed the principal or employer in particular cases. Sup- pose, for example, a person should hire a coach and horses of a stable-keeper for a day, or a week, or a journey, and they are driven by a coachman, who is furnished and hired by the stable-keeper ; and the coachman, during the time, should, in driving, be guilty of some negligent act, by which an injury should occur to a third person ; the question would arise whether the stable-keeper or the hirer would be responsible therefor. It seems formerly to have been thought, that in such a case the hirer was to be deemed the principal or em- 1 Harlow v. Humiston, 6 Cowen, 189. 2 Paley on Agency, by Lloyd, 298 ; 4 Bac. Abridg. Master and Servant, K. ; Ante, § 310. 3 4 Bac. Abridg. Master and Servant, K. ; Attorney-General v. Siddon, 1 Tyrwh. R. 41, 46, 47. 4 Smith on Merc. Law. 70, 71, (2d edit.) ; Id. B. 1, eh. 5, § 3, p. 127-130, (3d edit. 1843) ; Hern v. Nichols, 1 Salk. 289 ; Grammar v. Nixon, 6 Str. E. 653 ; Attorney-General v. Siddon, 1 Tyrwh. E. 41, 44, 48, 49 ; Paley on Agency, by Lloyd, 301-303 ; Crockford v. Winter, 1 Campb. E. 125. See also Bandleson v. Murray, 8 Adolph. & Ellis. 109; S. C. 3 Nev. & Perry, 239; Ante, § 308, 311 ; Milligan v. Wedge, 1 2 Adolph. & Ellis, 737 ; Hughes v. Boyer, 9 Watts, E. 556 ; Story on Bailm. § 403 a ; Quarman v. Burnett, 6 Mees. & Welsh. 499 ; Eapson v. Cubitt, 9 Mees. & Welsh. 710 ; Winterbottom v. Wright, 10 Mees. & Welsh. 109, 111. 540 AGENCY. [CH. XVII. ployer, and, as such, responsible for the injury.-' But the better opinion, maintained by the more recent authoritiesj is to the contrary;^ for, in such a case, the coachman is to be treated, as in truth the servant of the stable-keeper, and con- tinued in his employment, notwithstanding the temporary hir- ing ; and he could not at the same time be properly deemed the servant both of the stable-keeper and the hirer .^ "Jhe same rule would apply to a man, who hires a carriage and horses to travel from stage to stage on a journey; the carriage and horses are employed for the benefit or pleasure of the traveller, and yet the law has never considered die traveller liable, but the owner only, for the negligence of tne driver.* The case of the hire of a hackney coach affords a stronger illustration. There the owner of the coach, and not the hirer for his tempo- rary convenience or profit, will be held to be responsible for the negligence of the coachman.^ Upon the like ground the hirer of a wherry on the Thames, to go from one place to another, would not be responsible for the conduct of the waterman ; nor the owner of a ship, chartered for a voyage on the ocean, for the misconduct of the crew, employed by the charterer.^ § 453 b. But a case of a more nice character may easily be put, and, indeed, has undergone a judicial decision. Suppose a person to be the owner of a coach, and he hires from a job- 1 See the opinion of Mr. Justice Heath in Bush v. Steinman, 1 Bos. & Pull. 404, 409, and that of Holroyd, J., and Bayley, J., in Laugher v. Pointer, 6 Barn. & Cressw. 564, 568. 2 Quarman v. Burnett, 6 Mees. & Welsh. 499, 509, 510; Hughes v. Beyer, 9 Watts, K. 556 ; Weyrant v. H. Y. & H. Railroad, 3 Duer, 360. 3 Per Littledale, J., in Laugher v. Pointer, 5 Barn. & Cressw. 547. See Chilcot V. Bromley, 12 Yes. 114. Eeedie v. London & Northwestern Railway Company, 4 Welsby, Hurlstone & Gordon, 255. 4 Ibid. ; Sammell v. Wright, 5 Esp. R. 263 ; Dean v. Branthwaite, 5 Esp. K. 35. 5 Ibid. ; Per Littledale, J., and Lord Tenterden, in Laugher v. Pointer, 5 Barn. & Cressw. 562, 563, 578, 579 ; McLaughlin v. Prior, 4 Mann. & Grang. 48. 6 Per Lord Tenterden, in Laugher v. Pointer, 5 Barn. & Cressw. 578, 579. CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 54)1 master horses and a driver for the coach to draw them for a day, or a drive, and, through the negligence of the driver, an injm-y is done to a third person ; the question would arise, who is responsible for the wrong, whether the owner of the coach, or the owner of the horses, who also hires the driver. It has been recently adjudged, after no inconsiderable conflict of opin- ion in prior cases, that the owner of the coach is not, and that the owner of the horses is, under such circumstances, the re- sponsible principal.^ The true distinctions and doctrines, which govern, or ought to govern, the cases, were, upon that occasion, fully expounded by the learned judge,^ who delivered the opin- ion of the Court. "Upon the principle," (said he,) " that. Qui facit per alium, facit per se, the master is responsible for the acts of his servant ; and that person is undoubtedly liable, who stood in the relation of master to the wrongdoer ; he, who had selected him as his servant, from the knowledge of, or belief in, his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey; and whether such servant has been appointed by the master directly, or intermediately through the intervention of an agent, author- ized by him to appoint servants for him, can make no differ- ' Quarman ». Burnett, 6 Mees. & Welsb. 499, 509, 510; Story on Bailm. § 403 a, note ; Post, 454. In the case of LaugLer v. Pointer, 5 Barn. & Cressw. 547, where the owner of a carriage hired of a stable-keeper a pair of horses to drive it for a day, and the stable-keeper provided a driver, through whose negli- gent driving an injury was done to the horse of a third person, the Court of King's Bench were equally divided upon the question, whether the owner of the carriage was liable for the injury or not ; Lord Tenterden and Mr. J. Little- dale held him not liable, and Mr. J. Bayley and Mr. J. Holroyd held him liable. The opinions of the learned judges, on that occasion, exhausted the whole learn- ing on the subject, and, on that account, should be attentively studied. The decision in Quarman v. Burnett affirmed the doctrine of Lord Tenterden and Mr. J. Littledale, and that decision has been uniformly adhered to in all the latter cases. See Randleson v. Murray, 8 Adolph. & Ellis, 109; Milligan v. Wedge, 12 Adolph. & Ellis, 737; Rapson v. Cubitt, 9 Mees. & Welsb. 710; Martin v. Tertiperly, 4 Q. B. Rep. 298 ; Reedie v. London & Northwestern Railway Co. 4 Welsby, Hurlstone & Gordon, 255. 2 Mr. Baron Parke. AGENCY. 46 54<2 AGENCY. . [CH. XVIIi ence. But the liability, by virtue of the principle of relatiod of master and servant, nnust cease, where the relation itself ceases to exist ; and no other person than the master of such servant can be liable, on the simple ground, that the servant is the servant of another, and his act the act of another. Conse^ quently, a third person, entering into a contract with the master, which does not raise the relation of master and servant at all, is not thereby rendered liable ; and to make such person liable, recourse must be had to a different and mor.e extended prin- ciple, namely, that a person is liable not only for the acts of his own servant, but for any injury, which arises by the act of another person, in carrying into execution that, which that other person has contracted to do for his benefit. That, how- ever, is too large a position, as Lord Chief Justice Eyre says, in the case of Bush v. Steinman, and cannot be maintained to its full extent, without overturning some decisions, and pro- ducing consequences, which would, as Lord Tenterden observes, ' shock the common sense of all men ; ' not merely would the hirer of a post-chaise, hackney-coach, or wherry on the Thames, be liable for the acts of the owners of those vehicles, if they had the management of them, or their servants, if they were managed by servants ; but the purchaser of an article at a shop, which he had ordered the shopman to bring home for him, might be made responsible for an injury committed by the shopman's carelessness, whilst passing along the street."' § 453 c. Another case of a novel character, calling for the exposition of the general principles applicable to this subject, recently occurred in America. A brig, which was towed at the stern of a steamboat, employed in the business of towing vessels in the river Mississippi, below New Orleans, was, through the negligence of the master and crew of the steam- boat, over whom those in charge of the brig had no control. > See also Milligan v. Wedge, 12 Adolph. & Ell. 737 ; Winterbottom »i Wright, 10 Mees. & Welsh. 109, 111 ; Post, § 454 a. CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 543 brought into collision with a schooner lying at anchor in the river. A suit was brought by the owners of the schooner against the owner of the brig for the damages, sustained by the collision ; and the question was, whether the owners of the brig were liable therefor. It was held, upon full argument, that they were not, upon the ground, that the master and crew of the steamboat were not the servants of the owner of the brig ; were not appointed by him ; did not receive their wages or salaries from him ; had no power to order or control them in their movements ; and had no contract with the master and crew of the steamboat, but only through the master with the owners of the steamboat for a participation in the power of the steamboat, derived from the public use and employment thereof by the owners.^ 1 Sproul V. Hemmingway, 14 Pick. R. 1. Mr. Chief Justice Shaw, in deliv- ering the opinion of the Court in this case, said : " The owners of a vessel or coach are held liable for damages to third persons, occasioned by the negligence or unskilfulness of those who are in the management of the ship or coach. 1. Either because they are engaged or employed by them, are subject to their order, control, and direction, and so are to be deemed, either generally or for the particular occasion, their servants. 2. Or, in respect to their being engaged in the business or employment of the owners, conducting and carrying on such business for the profit or pleasure of the owners, by reason of which the acts, done in the prosecution of such business, shall be taken civlliter to be done by the employers themselves, and this, whether the persons, whose negligence is the cause of damage, have been retained and employed by the principal him- self, or by the procuration of others, employed by him for the purpose. Tried by either of these principles, we think, that the defendant is not responsible for damages, attributable to the carelessness or want of skill of the master and crew of the towing vessel. They were not the servants of the defendant ; were not a|)pointed by him ; did not receive their wages or salaries from him ; the de- fendant had no power to remove them; had no power to order or control them in their movements ; had no contract with them, but only through them, with the owners of the steamboat, for a participation in the power, derived from the public use and employment of that vessel, by her owners. After making such contract, it was perfectly in the po*er of the owners of the steamboat to appoint another master, pilot, and crew, and the defendant would have had no cause of complaint. 3. Nor can the master and crew of the steamboat, in any intelligible sense, be considered as in the employment or business of the defend- ant, any more than a general freighting ship, her officers and crow, can be con- 5^i< AGENCY. [CH. XVII. § 4)58 d. It will be observed, that the rule is generally laid down, that the principal is liable to third persons for the mis- sidered as in tlie employment of eaoli freighter of goods, or the master and crew of a ferry-boat in the employment of the owners of each coach, wagon, or team, transported thereon. The steamboat was engaged in an open, public, distinct branch of navigation, that of towing and transporting vessels up and down the Mississippi, for a certain toll or hire, for the profit of the owners. The defend- ant seemed to have the same relation to the steamboat, that a freighter has to a general ship, or a passenger to a packet. The defendant participated in the ben- efit but incidentally and collaterally ; he did not share in the profits of the busi; ness, one, which, from its magnitude, may well be called the trade of towing. Such a trade may be considered as much a public and distinct employment, as that of freighting or conveying passengers. The steamboat was in no sense in the possession of those whom she was employed to tow. If it is contended, that the defendant is liable on the ground, that the steamboat was, for the time being, in his possession, occupation, or employment, then it would follow, that the defendant would be liable for the negligence of the ofiicers and crew of the steamboat, as well whether the plaintiff's vessel was struck by the defendant's vessel, The Burton, as struck by either of the other vessels towed, or by the steamboat herself; which cannot for a moment be contended. The case may well be illustrated by considering the condition of one of the side vessels, firmly lashed to the steamboat, and governed wholly by its movements. The payment, for the privilege of being thus moved or transported, is precisely like freight paid for heavy luggage, timber, or spars, for instance, carried in or upon a ship. The whole conduct or management is entirely under the control of the- master and crew of the towing vessel in the one case, as it is of the freighting ship in the other. If collision takes place between the side ship, thus firmly lashed, and another vessel, it is as directly attributable to the steamboat, and her officers and crew, as if the steamboat herself had come into collision with the other ves- sel. The towed ship is the passive instrument and means, by which the damage is done. But there is no difference, in this respect, between the condition of one of the side ships, and a ship towed astern, except this : that, on board the ship towed astern by means of a cable, something may and ought to be done by the master and crew, in steering, keeping watch, observing and obeying orders and signs ; and, if there be any wantof care and skill in the performance of these duties, and damage ensue, then the case we have been considering does not exist ; the damage is attributable to the master and crew of the towed ship, and they and their owners must sustain it. The jury were so instructed at the trial, and it was left to them to find, whether the damage was caused by the negli- gence of the one or the other. Then, supposing all duties faithfully performed on board the towed vessel, and the damage to be caused by the negligence, or misconduct of the master and crew of the steamboat, there is no difference be- tween the case of the side ship, which is wholly passive, and the ship astern, which is partially so. The case most nearly resembling this, perhaps, is that of CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 54,5 feasances, negligences, and onjissions of duty, of their servants and agents. And the question, 'therefore, remains to be con- sidered, whether the same rule apphes to cases of different agents, employed by the same principal, where one by his mis- feasance, or negligence, or omission of duty, does an injury to the other, as is applied to strangers to that relation. This, like many other questions of an important nature, arising from the complicated business of modern society, has not, until recently, become a subject of judicial examination. Two classes of cases may be suggested; (1st.) Where the different agents are employed in the same business or employment by the prin- cipal ; (2d.) Where different agents are employed in difierent businesses or employments by the same principal. In respect to the former, the doctrine at present maintained is, that the principal is not liable for any such injury, done to one agent by another agent, while engaged in the same business or em- ployment. The reason assigned is, that the mere relation of master and servant, or principal and agent, creates no contract, and therefore no duty, on the part of the principal, that the servant or agent shall suffer no injury from the negligence of others, employed by^ him in the same business or service ; and that, in such cases, the servant or agent takes upon himself the hazards of any such injury, which may arise in the course of such business or employment ; and his remedy for any such injury, by the misconduct or negligence of a fellow-servant or agent, lies solely against the wrongdoer himself. Any other a vessel chartered, where, for a certain time, the whole use and benefit of the ship is transferred to the charterers, but the officers are appointed, and the crew engaged and subsisted by the owners ; in which case it is held, that the owners, and not the charterers, are responsible to third persons for any damage occai- sJoned by the negligence of the officers and crew. Fletcher v. Braddick, 5 Bos. & Pull. 182. Under the circumstances of this case, the Court are of opinion, •that the defendant is not responsible for damage arising from the negligence or unskilfulness of the master, officers, and crew of the steamboat ; that the direc- tion, in this respect, at the trial, was correct, and that there must be judgment on the verdict." 46* 5416 AGENCY. [CH. XVII. doctrine (it is said) would lead to mischievous consequences, and create responsibilities on the part of principals, the nature and extent of which could scarcely be measured ; and the public policy, upon which the rule itself is founded, would be subverted, instead of being subserved, by giving it such a comprehensive grasp. Thus, for example, where two servants of the same master were employed in convepng goods in a van of the mas- ter, in his business, and by negligence, in the overloading of the van by one, it broke down upon the road, and thereby the^ other received a severe injury, for which he brought an action against his master, founded upon such negligence ; it was held, that the action was not maintainable.-^ [So, where the defend- 1 Priestley v. Fowler, 3 Mees. & Welsh. 1. In this case, Lord Abinger, in delivering the opinion of the Court, said : " If the master be liable to the servant in this action, the principle of that liability will be found to carry us to an alarm- ing extent. He who is responsible, by his general duty, or by the terms of his contract, for all the consequences of negligence in a matter, in which he is the principal, is responsible for the negligence of all his inferior agents. If the owner of the carriage is, therefore, responsible for the sufficiency of his carriage to his servant, he is responsible for the negligence of his coach-maker, or his larness-maker, or his coachman. The footman, therefore, who rides behind the •carriage, may have an action against his master for a defect in the carriage, owing to the negligence of the coach-maker, or for a defect in the harness, aris- ing from the negligence of the harness-maker, or for drunkenness, neglect, or for •want of skill in the coachman ; nor is there any reason why the principle should -not, if applicable in this class of cases, extend to many others. The master, for example, would be liable to the servant for the negligence of the chambermaid, for putting him into a damp bed ; for that of the upholsterer, for sending in a crazy bedstead, whereby he was made to fall down, while asleep, and injure himself; for the negligence of the cook, in not properly cleaning the copper vessels used in the kitchen ; of the butcher, in supplying the family with meat of a quality injurious to the health ; of the builder, for a defect in the foundation of the house, whereby it fell, and injured both the master and the servant by the ruins. The inconvenience, not to say the absurdity, of these consequences, affords a sufficient argument against the application of this principle to the pres- ent case. But, in truth, the mere relation of the master and the servant never can imply an obligation, on the part of the master, to take more care of the servant than he may reasonably be expected to do of himself. He is, no doflbtji bound to provide for the safety of his servant, in the course of his employment, .to the best of his judgment, information, and belief. The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 54^7 ant employed the plaintiff, a bricklayer, and the defendant's foreman erected a scaffolding with unsound timber, in conse- quence of which it fell while the plaintiff was at work upon it, it was held that the defendant was not liable, it not being con- tended that the defendant's foreman was deficient in skill, or an improper person to be employed for that purpose.^] § 453 e. A case of quite as novel a character, has recently occurred, and is illustrative of the same doctrine. Two per- sons were employed by a railroad company in their business, the one as an engineer to manage the engines and cars on the road, the other to tend the management and shifting of certain switches on the railway. The latter, although he was properly -selected by the company, as a per^^ of due skill and reason- able diligence, negligently put or left a switch across the rail- way, whereby the engine and cars were thrown off the track, and the engineer was severely injured. , He brought an action therefor against the company ; and it was held, upon full ar- gument;, that the action was not maintainable ; but that the action should have been against the wrongdoer himself. The ■ground, upon which the Court proceeded, was, that neither principle, nor authority, nor public policy, justified such an extension of the rule ; and that the perils, incident to such a service, were as likely to be known to the agent as to the prin- any service, in which he reasonably apprehends injury to himself; and in most of the cases, in which danger may be incurred, if not in all, he is just as Ukely to he acquainted with the probability and extent of it, as the master. In that sort of employment, espeoiallyi which is described in the declaration in this case, the ■plaintiff must have known, as well as his master, and probably better, whether the van was sufficient, whether it was overloaded, and whether it was likely to carry him safely. In fact, to allow this sort of action to prevail would be an encouragement to the servant to omit that diligence and caution, which he is in duty bound to exercise on the behalf of his master, to protect him against the misconduct or negligence of others, who serve him, and which diligence and 'caution, while they protect the master, are a much better security against any. injury the servant may sustain by the negligence of others engaged under tie same master, than any recourse against his master for damages could possibly afford." 1 Wigmore v. Jay, 5 Exch. R. 354. 548 AGENCY. [CH. XVII. cipal ; and might be distinctly foreseen and provided against by him in his rate of compensation, if he chose ; and he must be presumed, in the absence of any different contract, to take them upon himself.^ [And the same rule was applied to the case 1 Farwell v. The Boston and Worcester Railroad Corporation, 4 Mete. K. 49. Mr. Chief Justice Shaw, in delivering the opiniop of the Court, -went into an elaborate examination of the whole subject, and said : " This is an action of new impression in our Courts, and involves a principle of great importance. It pre- sents a case, where two persons are in the service and employment of, one com- pany, whose business it is to construct and maintain a railroad, and to employ their trains of cars to carry persons and merchandise for hire. They are appointed and employed by the same company to perform separate -duties and services, all tending to the accomplishment of one and the same purpose, — that of the safe and rapid transmission of the trains ; and they are paid for their respective services, according to the nature ^f*their respective duties, and the labor and skill required for their proper performance. The question is, whether,, foj damages, sustained by one of the persons so employed, by means of the, care- lessness and negligence of another, the party injured has a remedy against the common employer. It is an argument against such an action, though certainly not a decisive one, that no such action has before been maintained. It is laid down by Blackstone, that, if a servant, by his negligence, does any damage to a stranger, the master shall be answerable for his neglect. But the damage must be done while he is actually employed in the master's service ; otherwise, the servant shall answer for his own misbehavior. 1 Bl. Comm. 431 ; M'Manns v. Criekett, 1 East, 106. This rule is obviously founded on the great principle of social duty, that every man, in the management of his own affairs, whether. by himself, or by his agents or servants, shall so conduct them' as not to iiyure another ; and, if he does not, and another thereby sustains damage, he shall answer for it. If done by a servant, in the course of his employment, and acting within the scope of his authority, it is considered, in contemplation of law, so far the act of the master, that the latter shall be answerable civiliter. But this presupposes, that the parties stand to each other in the relation ,of strangers, between whojn there is no privity ; and the action, in such case, is an action sounding in tort. The form is trespass on the case, for the consequential damage. The maxim. Respondeat superior, is adopted in that case, from general considerations of policy and security. But this does not apply to the case of a servant bringing his action against his own employer, to recover damages foi; an injury arising in the course of that employment, where all such risks and perils, as the employer and the servant respectively intend to assxmie and bear, may be regulated by the express or implied contract between them, and which, in contemplation of law, must be presumed to be thus regulated. The same view seems to have been taken by the learned counsel for the plaintiff in the argu- ment ; and it was conceded, that the claim could not be placed on the principle indicated by the maxim, Respondeat superior, which binds the master to indem- CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 549 of a brakeman on a railroad, who was injured by a collision caused b.y the negligence of a brakeman on another train.'] nify a stranger for the damage caused by the careless, negligent, or unskilful act of his servant in the conduct of his afi'airs. The claim, therefore, is placed, and must be maintained, if maintained at all, on the ground of contract. As there is no express contract between the parties, applicable to this point, it is placed on the footing of an implied contract of indemnity, arising out of the relation of master and servant. It would be an implied promise, arising from the duty of the master, to be responsible to each person employed by him, in the conduct of every branch of business, where two or more persons are- employed, to pay for all damage' occasioned by the negligence of every other person em- ployed in the same service. If such a duty were established by law, — like that of a common carrier, to stand to all losses of goods not caused by the act of God or of a public enemy, — or that of an innkeeper, to be responsible, in like man- ner, for the baggage of his guest; it would be a rule of frequent and familiar oceurrfence, and its existence and application, with all itfe qualifications and Restrictions, would be settled by judicial precedents. But we are of opinion, that no such rule has been established, and the authorities, as far as they go, are Opposed to the principle. Priestley v. Fowler, 3 Mees. & Welsh. 1 ; Murray v. South Carolina Railroad Company, 1 McMullan, 385. The general rule, result- ing from considerations as well of justice as of policy, is, that he, who engages in the employment of another, for the performance of specified duties and ser- vices, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services ; and, in legal presumption, the compensation is adjusted accordingly. And we are not aware of any prin- ciple, which should except the perils arising from the carelessness and neg- ligence of those who are in the same employment. These are perils, which the servant is as likely to know, and against which he can as effectually guard,-as the master. They are perils incident to the service, and which can be as dis- tinctly foreseen and provided for, in the rate of compensation, as any others. To say, that the master shall be responsible, because the damage is caused by his agents, is assuming the very point which remains to be proved. They are his agents to some extent, and for some purposes ; but whether he is re- sponsible in a particular case, for their negligence, is not decided by the single fact, that they are, for some purposes, his agents. It seems to be now well set- fled, whatever might have been thought formerly, that underwriters cannot excuse themselves from payment of a loss by one of the perils insured against, oii the ground, that the loss was caused by the negligence or unskilfulness of the officers or crew of the vessel, in the performance of their various duties as navigators, although employed and paid by the owners, and, in the navigation of the vessel, their agents. Copeland v. New England Marine Ins. Co. 2 Mete. 440-443, and cases there cited. I am aware, that the maritime law has its own rules aM analogies, and that we cannot always safely rely upon them in apply- l)Hayes V. The Western Railroad Corporation, 3 Cush. 270. 550 AGENCY. [CH. XVII. In neither of these cases, could there be the least doubt, that the principal would have been liable, if the injury had been ing them to other branches of law. But the rule in question seems to be a good authority for the point, that persons are not to be responsible, in all cases, for the negligence of those employed by them. If we look from considerations of justice to those of policy, they will strongly lead to the same conclusion. In considering the rights and obligations arising out of particular relations, it is competent for courts of justice to regard considerations of policy and general convenience, and to draw from them such rules as will, in their practical appli-! cation, best promote the safety and security of all parties concerned. This is, in truth, the basis, on which implied promises are raised, being duties legally inferred from a consideration of what is best adapted to promote the benefit of all persons concerned, under given circumstances. To take the well-knpvn and familiar cases already cited ; a common carrier, without regard to aotuEil fault or neglect in himself or his servants, is made liable for all losses of goods confided to him for carriage, except those caused by the act of God or of a pub- lie enemy, because he can best guard them against all minor dangers, and because, in case of actual loss, it would be extremely difficult for the owner to adduce proof of embezzlement, or other actual fault or neglect, on the part of the carrier, although it may have been the real cause of the loss. The risk is therefore thrown upon the carrier, and he receives, in the form of payment for the carriage, a premium for the risk, which he thus assumes. So of an inn- keeper ; he can best secure the attendance of honest and faithful servants, and guard his house against thieves. Whereas, if he were responsible only upon pro.of of actual negligence, he might connive at the presence of dishonest inmates and retainers, and even participate in the embezzlement of the prop- erty of the guests, during the hours of their necessary sleep ; and yet it would be difficult, and often impossible to prove these facts. The liability of passen- ger carriers is founded on similar considerations. They are held to the strictest, responsibility for care, vigilance and skill, on the part of themselves and all per- sons employed by them, and they are paid accordingly. The rule is founded ou the expediency of throwing the risk upon those who can best guard against it. Story on Bailments, § 590, et seq. We are of opinion, that these considerations apply strongly to the case in question. Where several persons are employed, in the conduct of one common enterprise or undertaking, and the safety of each depends much on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others, can give notice of any misconduct, incapacity, or neglect of duty, and leave the service, if the common employer will not take such precautions, and employ such agents as the safety of the whole party may require. By these means, the safety of each will be much more effectually secured, than could be done by a resort to the common employer for indemnity in case of loss by the negligence of each other. Regarding it in this light, it is the ordinary case of one sustaining an injury in the course of his own employment, in which he must bear the loss CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 551 ocdasioiied by his own personal negligence or omission of duty. [In a still later case in the same court, the plaintiff was an operative in the defendant's mill : the defendant's superin- tendent had the charge of lighting the mill and managing the gas for that purpose. On one occasion he so negligently man- aged the gasometer, that large quantities of gas escaped into the mill and greatly injured the plaintiff at her work. The Court held the company not liable.^] himself, or seek Lis remedy, if he have any, against the actual wrongdoer." [See also Murray v. S. C. Railroad Co. 1 McMullan, 385 ; McDaniel v. Emanuel, 2 Richardson, 455 ; Hayes v. The Western Railroad, 3 Cush. 270 ; Coon v. The Utica, &c. R. R. 6 Barbour, 231 ; 1 Selden, 492 ; King v. The Boston and Worcester R. R. 9 Cush. 112 ; Brown v. Maxwell, 6 Hill, 592 ; Skip v. Eastern Counties Railway Co. 24 Eng. Law & Eq. R. 397; Sherman v. The Rochester and Syracuse Railroad Co. 15 Barbour, 574; Ryan v. The Cumberland Valley Railroad, in Sup. Court of Pennsylvania, Am. Law Reg. Aug. 1855, p. 598 ; 11 Harris, 384 ; Cook v. Parham, 24 Ala. 21 ; Horner i: Illinois Central Rail- road, 15 lUinoiSj 550.] 1 [Albro V. Agawam Canal Co. 6 Cush. 75. Fletcher, J., said : " This case canr not be distinguished in principle from the case of Farwell v. Boston and Worces- ter Railroad, 4 Met. 49 ; and the same point has been since adjudged in the case of Hayes v. Western Railroad, 3 Cush. 270. " The principle of these decisions is, that when one person engages in the service of another, he undertakes, as between him and his employer, to run all the ordinary risks of the service, and this includes the risk of negligence on the part of others in the service of the same employer, whenever he, such servant, is acting in the-discharge of his duty to his employer, who is the common em- ployer of both. In the present case, the injury of which the plaintiff complains appears to have happened, while she was acting in the discharge of her duty to the defendants, as her employers, in their factory, and to have been occasioned by the negligence of another person, who was also engaged in the defendants' service, in the same factory. '*It cannot affect the principle, that the duties of the superintendent may be different, and perhaps may be considered as of a somewhat higher character than those of the plaintlfi"; inasmuch as they are both the servants of the same master, have the same employer, are engaged in the accomplishment of the same general object, are acting in one common service, and derive their compensa- tion from the same source. " The plaintiff and the superintendent must be considered as fellow-servants, within the principle and meaning of the cases above referred to, and the other adjudged cases on this subject. There is no allegation, that the superintendent was not a fit and proper person to be employed by the defendants to perform 552 AGENCY. [CH. XVII, § 4)5Sf. Whether the same rule would apply to a case, where the agents are engaged in diflferent and distinct employ- ments or business by the same principal, is a point upon which there does not seem hitherto to have been any positive adjudi- cation ; and the principles, asserted in the other case, where the employment or business is the same, do not necessarily govern it. Suppose two ships, owned by the same person, and engaged in different voyages, and by a collision between them, caused by the negligence, of the master of one, the master of the other should receive a grievous injury in his person or property ; would he have no redress against the principal, upon the ground of the maxim. Respondeat superior ? Suppose a commission-merchant, employed by the owner to sell goods for him in Boston, should embark in a steamboat, owned by the same person, for New York, on his own private business, and, in the course of the voyage, he should sufier great personal injury from the gross carelessness of the master of the steam- boat ; would it be a good answer to an action brought by him against the owner, that he was the agent of the latter, as well as the master 1 Suppose a foreign factor should embark his own private goods in a ship belonging to the principal, paying therefor the customary freight for the carriage of the like goods, and during the voyage, by the gross negligence of the master of the ship, the goods should be damaged or destroyed ; would the owner be exempted from all liability therefor ^ Sup- the duties assigned to him, but only that he was chargeable with negligehce and unskilfulness, on the particular occasion when the plaintiff was injured in the manner described. It would have presented a very different case, if the defend- ants had employed an unfit and improper person, and in that way the plaintiff had been exposed to and had suffered injury. • " In the decision of the case of Farwell v. Boston and Worcester Railroad, the case of Priestley v. Fowler, 3 M. & W. 1, was referred to as an authority in point. There have recently been two other English cases (Hutchinson v. York, Newcastle and Berwick Railway, 5 W. H. & G. 343 ; Wigmore v. Jay, lb. 354,) which fully sustain the doctrine and decision of Priestley v. Fowler. It is very clear, therefore, upon the adjudged cases, that this action cannot be maintained, and that judgment must be entered for the defendants."] CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 55S pose a carpenter, employed to build a house for the owner of a stage-coach, should, in travelling in the coach, paying the usual farcj by the overturning of the coach, through the gross negli- gence of the coachman, have his limbs fractured ; vrould the owner be free from all liability ; and the suit lie solely against the wrongdoer 1 These questions are propounded for the mere purpose of showing, that there are, or may be, intrinsic diffi- culties and inconveniences in pressing the doctrine, resulting from the relation of agency, to such a large extent. [§ 4>53 ff. Since the former edition of this work however the question suggested in the last section has been directly involved in a recent decision in the Court of Exchequer. It was there held, that a railway company is not liable for an injury to one of their servants, occasioned by the negligence of other servants in guiding another train, with which the train, on which the plaintifi" was riding, came in collision.^ But the 1 [Hutchinson v. York, Newcastle, &c. Eailway, 5 Exch. R. 343. Alderson, B., said : " This was an action under Lord Campbell's Act, brought by the plaintiff as administratrix of her deceased husband Joseph Hutchinson, to recover com- pensation from the defendants on the ground that he had met with his death by reason of the negligence of their servants. [His Lordship stated the pleadings.} On this record the question is, whether the defendants are liable for an injury occasioned to one of their own servants by a collision, while he was travelling, in one of their carriages, in discharge of his duty as their servant, in respect (rf which injury they would undoubtedly have been liable, if the party injured had been a stranger travelling as a passenger for hire. We think they are not This case appears to us to be undistinguishable in principle from that of Priestley V. Fowler, 3 M. & W. 1. In that case the plaintiff was the servant of the defendant, and had sustained an injury by the defendant having overloaded a van, in which he the plaintiff was travelling by direction of defendant in discharge of his ordi- nary duties. That case was fully considered, and the Court, after a verdict for the plamtiff, arrested the judgment, on the ground that a master is not in general liable to one servant for damage resulting from the negligence of another ; and some of the inconveniences, not to say absurdities, which would result from a contrary doctrine, were there pointed out. The principle, upon which a master is in general liable to answer for accidents resulting from the negligence or un-- skilfulness of his servant, is, that the act of his servant is in truth his own act. If the master is himself driving his carriage, aind from want of skill causes injury, to a passer by, he is of course responsible for that want of skill. If, instead of. driving the carriage with his own hands, he employs his servant to drive it, the AGENCY. 47 554? AGENCY. [CH. XVII. contrary has been held in Ohio, where a brakeman was injured by the carelessness of a conductor on the same train, under servant is but an instrument set in naotion by the master, It was the master's will that the servant should drive, and whatever the servant does in order to give effect to his master's will may be ti-eated by others as the act of the master ■ ' Qui facit per alium, faoit per se.' So far there is no difficulty. Equally clear is it, that though a stranger may treat the act of the servant as the act of his master, yet the servant himself, by whose negligence or want of skill the accident has occurred, cannot. And, therefore, he cannot defend himself against the claim of a third person; nor, if by his unskilfulness he is himself injured, can he claim damageslTrom his master upon an allegation that his own negligence was, in point of law, the negligence of his master. The grounds for these dis- tinctions are so obvious as to need no illustration. The difficulty is as to the principle applicable to the case of several servants employed by the same master, ^ and injury resulting to one of them from the negligence of another. In such a case, however, we are of opinion that the master is not in general responsible, when he has selected persons of competent care and skill. Put the case of a master employing A and B, two of his servants, to drive his cattle to market. It is admitted, that if by the unskilfulness of A, a stranger is injured, the master is responsible. Not so, if A, by his unskilfulness, hurts himself; he cannot treat that as the want of skill of his master. Suppose, then, that by the unskilfulness of A, B, the other servant, is injured while they are jointly engaged in the same service, there we think B has no claim against the master. They hate both engaged in a common service, the duties of which impose a certain risk on each of them ; and in case of negligence on the part of the other, the party injured knows that the negligence is that of his fellow-servant and not of his master. He knew, when he engaged in the service, that he was exposed to the risk of injury, not only from his own want of skill or care, but also from the want of it on the part of his fellow-servant ; and he must be supposed to have contracted on the terms that, as between himself and his master, he would run this risk. Now, applying these principles to the present case, it follows that the plaintiff has no title to recover. Hutchinson, in the discharge of his duty as one of the servants of the defendants, had put himself into one of their railway carriages under the guidance of others of their servants, and by the neglect of those other servants, while they were engaged together with him in one common service, the accident occurred. This was a risk which Hutchinson must be taken to have agreed to run when he entered into the defendants' service, and for the consequences of which, therefore, they are not responsible. The declaration, indeed, states the accident to have arisen from the combined neglect of the ser- vants who were managing the carriages in which the deceased was travelling, and of others of their servants who were managing the train with which the plaintiff's carriage came into collision. And Mr. Hill argued, that this allegation is divisible, and that, in order to sustain the declaration, it would not be neces- sary to prove any negligence on the part of the train in which Hutchinson was travelling ; that it would be sufficient to prove negligence on the part of the other train ; and so he contended that, even admitting the defendants would not CH, XVII.] THIRD PERSONS AGAINST PRINCIPALS. 5S5 whose command and control the brakeman was. They were declared not to be fellow-servants within the meaning of the foregoing cases, and the company were held responsible.-*] be liable for any neglect on the part of those who were managing the train in one of the carriages in which Hutchinson was travelling, yet there could be no principle exempting them from liability for the acts of those who, though equally with Hutchinson, servants of the defendants, were not, at the time of the acci- dent, engaged in any common act of service with him. But we do not think there is any real distinction between the two cases. The principle is, that a servant, when he engages to serve a master, undertakes, as between him and his master, to run all the ordinary risks of the service, and this includes the risk of negligence on the part of a fellow-servant, whenever he is acting in discharge of his duty as servant of him who is the common master of both. The death of Hutchinson appears on the pleadings to have happened while he was acting in the discharge of his duties to the defendants as his master, and to have been the result of carelessness on the part of one or more other servant or servants of the same master lAile engaged in their service; and whether the death resulted from the mismanagement of the one train or of the other, or of both, does not affect the principle ; in any case it arose from carelessness or want of skill, the risk of which the deceased had, as between himself and the defendants, agreed to run. It may, however, be proper with reference to this point to add, that we do not think a master is exempt from responsibility to his servant for an injury occasioned to him by the act of another servant, where the servant injured was not, at the time of the injury, acting in the service of his master. In such a ease the servant injured is substantially a stranger, and entitled to all the priv- ileges he would have had, if he had not been a servant. It was contended that the plea in this case is bad on special demurrer, as being but an argumenta- tive denial of the cause of action stated in the declaration. But we think Mr. Addison successfully showed this objection to be unfounded. Though we have said that a master is not in general responsible to one servant for an injury oc- casioned to him by the negligence of a fellow-servant while they are acting in one common service, yet this must be taken with the qualification that the mas- ter shall have taken due care not to expose his servant to unreasonable risks. The servant, when he engages to run the risks of his service, including those arising from the negligence of fellow-servants, has a right to understand that the master has taken reasonable care to protect him from such risks by associat- ing him only with persons of ordinary skill and care ; and the object of the plea in this case is to show that the defendants had discharged this duty, the omission to discharge which might have made them responsible to the deceased. The plea, therefore, appears to us not to be open to the objection insisted on. For these reasons we are of opinion that the plaintiff has shown no ground of action, and so our judgment must be for the defendants." See also Sherman v. The Kochester, &c. Railway Co. 15 Barbour, 574 ; Ryan v. Cumberland Valley Railroad, 11 Harris, 384; Gilshannon v. Stony Brook Railroad, 10 Cush. 228.] 1 [Cleveland, &c. Railroad Co. v. Keary, 3 Ohio St. R. 201. Ranney, J., said : 556 AGENCY. [CH. XVII. [4153 h. Whether the same rule prevails, where the injury arises from defective apparatus, machinery, or tools, in the " But it is very confidently claimed that this view of the law is at variance with all the adjudged cases in England and in this country — not only with the de- cisions of every court, but with the opinion of every judge of those courts. We are referred, in proof of this position, to the cases of Priestley v. Fowler, 3 M. & W. 1 ; Hutchinson v. The York, N. & B. Eailway, 5 Ex. R. 343, and Wigmore ti. Jay, lb. 354, decided by the English Court of Exchequer ; Murray v. The South Carolina R. R. Co. 1 McMullen, 385, by the Court of Appeals of that State ; Farwell v. The Boston & Worcester R. R. Co. 4 Met. 49 ; and Hayes V. The Western R. R. Co. 3 Cush. 270, by the Supreme Court of Massachu- setts ; and Coon v. The'Utica and Syracuse R. R. Co. 1 Selden, R. 492, by the Court of Appeals in New York. We entertain the highest respect for these Courts, and their undivided opinions upon any question arising upon the princi- ples of the common law, would cause us to hesitate long before we differed from them. But even upon such a question, we should be compelled to follow the dictates of our own understandings ; and the more especially should we feel at perfect liberty to do so, when they did not profess to base their decisions upon any settled principle of law, but undertook to declare a new rule for their action. ,If such a rule did not seem to us consistent with the analogies of the law, and calculated to promote justice, we should feel bound to reject it. Upon this question, we find no occasion to depart from established principles. It lies upon those who deny the defendant in error the benefit of these principles, to show gome good reason for the exclusion. We have carefully examined all these cases, and can find in none of them any such reason, or any denial of the prin- ciple upon which we base this decision. While we cannot approve all that is said in some of them, no one of them has determined the question now before us. Priestley v. Fowler was decided in 1837, and is the first case to be found jn the English books where the limitation of the liability of the master is even hinted at. The action was brought by a servant against his master, for the negligence of another servant in overloading a van, by which the plaintiff was injured. It was held the action could not be maintained. Chief Baron Abinger, in delivering the opinion, says : ' There is no precedent for the action by a ser- vant against a master. We are, therefore, to decide the question upon general principles ; and in doing so we are at liberty to look at the consequences of a decision one way or the other.' He accordingly looked at the consequences, with a view to the actual state of English society, and concluded they would carry him to an ' alarming extent.' After referring to several instances where the liability of the master would attach, he concludes that ' the inconvenience, not to say absurdity of these consequences,' aflbrd a sufficient argument against the action. It can admit of very little doubt, that holding the relation of master and servant to exist between the buyer and seller of a coach or a harness, (in- stances put by his Lordship,) would, indeed, be both inconvenient and absurd. It is' unnecessary to examine, at any length, the other cases decided in that court. ' Upon a similar state of facts, they each follow and affirm the doctrine of Priestley CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 557 hands of a fellow-servant, may not perhaps be fully settled. It has been thought in some cases, that the principle of non- V. Fowler. As these cases were decided upon no settled principle of the com- mon law, but upon general principles, with a view to consequences, I may be permitted to refer to the opinion of another Court, equally learned and able, sitting in the same kingdom, and subject to review, if I am not mistaken, in the same ultimate tribunal. In the case of Dixon v. Ranken, (1 Am. Kailway Cases, 569,) determined by the highest Court in Scotland, as late as 1852, the doctrines of the English cases were repudiated, and an exactly contrary decision made. The Lord Justice Clerk, after referring to the English decisions, proceeds to say : ' The master's primary obligation in every contract of service, in which his workmen are employed in a hazardous and dangerous occupation, for his in- terest and profit, is to provide for, and attend to, the safety of the men. That is his first and leading obligation, paramount even to that of paying for their labor. This obligation includes the duty of furnishing good and sufficient machinery and apparatus, and of keeping the same in good condition, and the more rude and cheap the machinery, and the more liable on that account to cause injury, the greater his obligation to make up for its defects, by the attention necessary to prevent such injury. In his obligation is equally included, as he cannot do every thing himself, the duty to have all acts by others whom he em- ploys, done properly and carefully, in order to avoid risk. This obligation is not less than the obligation to provide for the safety of the lives of his servants by fit toachinery. The other servants are employed by him to do acts which, of course, he cannot do himself, but they are acting for him, and instead of him- self, as in his hands. For their careful and cautious attention to duty, and for ■ their want of vigilance, and for their neglect of precaution by which danger to life may be caused, he is just as much responsible as he would be for such mis- conduct on his own part, if he were actually working or present. And this particularly holds as to the person he intrusts with the direction and control over any of his workmen, and who represents him in such a matter.^ And he adds : ' There have been many cases in Scotland, at all periods, and during the last fifty years, a very large number, which proceeded on this as a fixed principle of the law as to the contract of service.' Lord Cbckburn, after stating that ' the plea that the master is not liable, rests solely on the authority of two or three very recent decisions of English Courts,' says : ' If this be the law of England, I speak of it with all due respect. But it most certainly is not the law of Scot- land. I defy any industry to produce a single decision, or dictum, or institu- tional indication, or any trace of any authority to this efiect, or of this tendency, from the whole range of our law. If such an idea exists in our system, it has, as yet, lurked undetected. It has never been condemned, because it has never been stated.' After alluding to the fact that the rule had been pressed upon the Court, not only on account of the weight, of the English authority, but for its own inherent justice, he proceeds : ' This last recommendation fails with me, because I think that the justice of the thing is exactly in the opposite direction. I have rarely come upon any principle that seems less reconcilable to legal rea- 47* 558 AGENCY. [CH. XVII. liability of a principal for the injury caused to one servant by another, was not applicable to such a case, but only when the son. I can conceive some reasonings for exempting the employer from liability altogether, but not one for exempting him only when those who act for him injure one of themselves. It rather seems to me that these are the very persons who have the strongest claim upon him for reparation, because they incur danger on his account, and certainly are not understood, by our law, to come under any engagement to take these risks on themselves.' Such is the diversity of opinion, not only as to the existence of the doctrine, but also as to its justice and propriety, found to obtain in two of the learned Courts in Great Britain ; both uncontrolled by any statutory regulation, or other consideration peculiar to the system of law administered by either ; but each determining the obliga- tion arising from a relation, founded upon contract, which must be the same in England and Scotland. The case of Murray v. The S. C. Railroad, 1 McMuUan, 385, was decided in 1841. The plaintiff was a fireman, and was injured by the carelessness of the engineer. A majority of the Court held that he could not recover. Judges O'Neall and Gantt, and Chancellor Johnston dissented. They admit that the plaintiff took upon himself, as a consequence of his contract, all the ordinary risks of the employment, and that he could not claim for injuries, against which the ordinary prudence of his employers could not provide ; but they insist that injuries from negligence do not belong to these ordinary risks ; ' that the company was bound to carry him safely, while he was bound to serve ■ them faithfully; and that neither party should be permitted- to extend or abridge the contract. ' That the master cannot exact other services than those -stipulated for; nor, by any indirection, subject the servant to any other than -the ordinary perils incident to the employment ; and that if he does, by any agency whatever, or by any means, whether of design or negligence, accumulate upon the servant, while in the performance of his duty, any dangers beyond those inherent in" the service itself, they fall upon the latter, not as a servant, (for his contract does not bind him to endure them,) but as a man, and the law entitles him to redress.' The next case in order of time, is that of Farwell v. The Boston & Worcester K. R. 4 Met. 49. The plaintiff, an engineer on the • defendant's road, was injured by the negligence of a switch tender. His right . to recover against the company, was denied in a very ingenious opinion by C. J. Shaw ; in which the general proposition is maintained, that a master who uses due diligence in the selection of competent servants, and furnishes them with suitable means to perform the service in which he employs them, is not liable for the carelessness of one resulting in injury to another, while both are engaged .in the same service. Of judicial determinations, he was able to bring to his sup- .port only the cases of Priestley v. Fowler, and Murray v. The S. C. Railroad ; and characterizing it ' as in some measure a nice question,' he says : ' We would add a caution against any hasty conclusion as to the application of this rule to a case not fully within the same principle.' That it was not intended, by this de-' cision, to foreclose the question now before us, is evident from the later case of Hayes v. The Western .Railroad, 3 Cush; 270, in which the negligence charged, CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 559 injury happened without any fault or misconduct of the prin- cipal, either in the act which caused the injury, or in the selec- was that of a brakeman, acting, as was claimed, pro tempore, as conductor ; and it was argued, that although the company were not -liable to a laborer, for the neglect of another laborer, yet they were answerable for the neglect of an officer, such as the conductor was. The Court expressly declined expressing any opinion upon the soundness of this distinction, and held that it did not properly arise upon the facts of the case. The case of Coon v. The Syracuse and Utica R. R. 1 Selden, 492, was brought by a trackman, employed by the defendants to keep a certain portion of their road in order, who claimed to have been injured by the negligence of the managers of a train running upon the road. The Court considered the case governed by the authorities to which I have re- ferred, and especially the one from Metcalf, and gave judgment for the defend- ants. Judges Gardner and Foot only, expressed opinions. The former said, the good sense of the principle, when applied to individuals engaged in the same service, was sufficiently obvious ; but that there might be more doubt of its justice in reference to those whose employments are distinct, although both may be necessary to the successful result of a common enterprise. And the latter admits that it ' lias been unfolded and brought to view within the last twenty years, and principally by the new business commenced within that period, and now extensively prosecuted, of transporting persons and property by steam on railways.' I have now referred to every decision of a Court of last resort, within my knowledge, bearing upon the question under consideration. While the principle oi respondeat superior is as old as the law itself, it is every- where admitted that no such exception to its operation as is now contended for was ever asserted until the case of Priestley v. Towler was decided. That case, and those made upon its authority in England and America, have all proceeded upon the general ground of exempting the master from responsibility to one servant for injuries arising from the carelessness of another engaged in the com- mon service, because the servant, by his contract, takes these risks upon himself. None of them have in terms declared that he is not liable for the negligent and careless conduct of him to whom he delegates the power of control and com- mand over them. The Court, whose authority has been most relied on in this country, has expressly refused to declare it. Even to this extent the doctrine has been resolutely resisted at every step by distinguished jurists. To speak of it, therefore, as a settled principle of the common law, is to confound ideas. To adopt it without a conviction of its justice and propriety, is to abuse the power with which the law has invested u3. Our plain duty is to endeavor to ascertain the true nature of the relation between the parties, and the inherent elements of the contract on which it is founded, and from tlem deduce the principle that ought to govern. For, as has been said by an elegant writer : 'If la,wbea science, and really deserves so sublime a name, it must be founded on principle, ■and claim an exalted rank in the Empire of Reason.' And upon a question like this, what is good sense at Westminster is good sense at Edinburgh, or wherever else parties may contract. Tested in this manner, it seems to us clear, 560 AGENCY. [CH. XVII. tion or employment of the agent by whose fault it happened. It has therefore been held, that a fireman engaged on a rail- road, might recover for an injury received by the bursting of a boiler of an engine known to the defendants to be defective ; at least if such defect was not known to the plaintiflP, and he himself was without fault.^ And actual notice to the defendant, of the defect, must be averred and proved.^ On the otheV hand, if the defective character of the machinery or apparatus is not known to the principal, and the servant sustains an injury thereby, he would not, it seems, have any cause of action against his principal.® And, in another case, a fireman on a in a case like the present, that as between the company and those employed to labor in subordinate situations under the control of a superior, two distinct classes of obligations arise — the one resting upon the company, and the other upon the servants — and both founded upon what each, either expressly or im- pliedly, has agreed to do in execution of the contract. It is the duty of the company to furnish suitable machinery and apparatus, and, as they reserve the government and control of the train to themselves, and intrust no part of it to these servants, to control it and them, with prudence and care. As the neces- sity for this prudence and care is constant and continuing, the obligation is performed only when it is constantly exercised, and they cannot rid themselves of it by devolving this power upon the conductor. If they intrust him with its exercise, in the language of Judge Story, they ' in effect warrant his fidelity and good conduct' It is the duty of the servants to obey the orders of the superior thus placed over them, and to perform as he shall direct. If they fail to do this, and injure each other, they violate their engagements to the company, and are alone answerable for the wrongs they may do. In such case there is no failure of the company to do, what as between them and these servants,- it was under- stood they should do, when the servants entered the service. But they cannot be made to bear losses arising from carelessness in conducting the train, over which their employer gave them no power or control, either separately or col- lectively, until we are prepared to say that justice and public policy require the consequences of duty omitted by one party to be visited upon the other, although stripped of all power to prevent such consequences."] ' 1 Keegan v. The Western Railroad Corporation, 4 Selden, 175. 2 McMillan v. The Saratoga & Washington Railroad Co. 20 Barbour, 449. 3 [Strange !7. McCormick, in Dis. Ct. of Penn., Boston Law Rep., April, 1851, p. 619 ; Lowrie, J., there said : " Where a person undertakes to work, by means of machinery that is dangerous in its operation, and receives an injury from it, in its ordinary operation, is the employer liable ? The" answer is plain — He is not. But as the question involved in this cause seems to have never been decided by our Courts, it will not be out of place to refer to the reasons and CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 561 railroad locomotive, who had been injured, as he contended, by the breaking of a defective switch managed by another servant, principles upon which the solution of the question depends. It has been said, that the liability of the employer can arise only in cases of breach of contract, or of a public duty. But this proposition does not fully present the difficulty of this case ; for wherever the law imposes a private duty from one man to another, it implies a contract to perform that duty, and the question still remains, — Does not the law impose on the employer the duty to have his machinery constructed in such a manner that it will operate with reasonable safety to the persons work- ing at it? .This, it must be observed, is a question of legal, not of moral duty. The moral duty, which every man owes to those in his employment to consult their safety, will not be disputed. This is a duty prompted by the ordinary feel- ings of human charity, and may be of no more perfect obligation than the duty which one owes to another to warn him of approaching danger — a duty enforced by no sanctions but those of the moral law. It will not be pretended, if the defendant had warned the plaintiflf that the machinery was dangerous, and then the plaintiff had agreed to risk it, that in such case the defendant would be lia- ble for the unfortunate result of the experiment. But the law very properly presumes that every man who undertakes a business understands the character of the business, and of the tools and machinery with which it is to be done ; and on this account it is a fair presumption, that he undertakes the risk for what he considers a sufficient compensation. If he ignorantly and presumptuously un- dertakes the work, it is not wrong that he should himself bear the natural conse- quences. If the machinery is dangerous in its character, or by reason of its want of repair, a proper workman is presumed to know it at least as well as his employer, and has a right to decline the work ; and if he does not, he takes the risk. It is not necessary to say how the law would be, where one is induced by false representations to work with unsafe machinery. If the duty claimed to exist here is founded on any other principle than kindness, it must be a prin- ciple involving the legal duty of protection. But where the law imposes this duty, it requires the correlative duty of subjection, a relation which would be repudiated with scorn in the present instance. There is one illustrious instance, wherein the law protects the weak and ignorant from the exactions of the more powerful and even from his own ignorance, and this is by the laws forbidding all worldly employment on the Lord's day. Looking at "this in a merely legal point of view, (and here we can no otherwise view it,) it is easy to see that thousands of people, even in a Christian land, would have no day of physical rest were it not for these Jaws. But this protection is afforded by the law, not re- quired of the employers. There is another large class of cases, wherein the law affords its protection to persons who are indiscreetly seduced into engagements by those who stand in a relation towards them, by which an undue influence may be exercised. But the relation of employer and employee has never been supposed to be of this character. There is no relation of confidence or depend- ence between them. Both are equal before the law, and considered equally 562 AGENCY. [CH. XVII. sought to recover of the railroad company, on the ground that the latter was liable for the defective character of their appa- ratus ; but, as the company were expressly acquitted of gross negligence, the Court held, that the company would be respon- sible only for want of ordinary care and diligence.^] § 454. This liabihty of the principal for the misfeasances, and negligences, and torts of his agents an^ servants, extends not only to the injuries and wrongs of the agent, who is im- mediately employed by the principal in a particular business, but also to the injuries and wrongs done by others, who are employed by that agent under him, or with whom he contracts for the performance of the business ; for the liabihty reaches through all the stages of the service. Thus, for example, where the owner of a house employed an agent to repair the house for a stipulated sum ; and the latter contracted with C to do the work, and with D to furnish the materials ; and D's servant, by negligently leaving the materials in the road, oc- casioned an injury to the plaintiflf; he was held entitled to maintain an action for damages therefor against the owner.^ competent to take care of themselTes. No protection is legally due by one, nor subjection by the other; and of course no action lies for failure of protection. As a general rule, the law leaves all men free to make their own bargains, and decides between them according to their contracts, without diminishing the free- dom of either in order to protect him against the other. Suppose there was actual carelessness on the part of the manager in the arrangement of the cards, so that their operation was defective ; this is only another way of saying that the plaintiff was set to work with imperfect instruments. If he had been set to cut wood with the defendant's axe, and it had become detached from the handle, I suppose it would not have been claimed that the defendant was liable for an injury thus occasioned to the plaintiff. Yet I do not perceive the difference between that case and this ; for if the machinery, in this instance, is more com- plicated, the person using it is presumed to have more skill and care. Even the manager himself is, (as far as concerns the plaintiff,) but one of the instruments by which the defendant carries on his business ; an instrument just as likely to be defective as any of the unintelligent instruments by which the business is effected, and the persons employed are all subject to the risk of his occasional negligence and unskilfulness, and cannot transfer the risk to the employer."] 1 King V. Boston & Worcester Railroad Corporation, 9 Cush. R. 112. 2 Bush!). Steinman, 1 Bos. & Pull. 409; Ante, § 322, note (1). [But the CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 568 So, where a warehouseman employed a master porter to re- move some barrels of flour from his warehouse, and the master authority of Bush v. Steinman, has been in the modern cases, entirely denied. See Knight v. Fox, 5 Exoh. R. 721 ; 1 Eng. Law & Eq. R. 477, and Bennett's note ; Overton v. Freeman, 8 Eng. Law & Eq. R. 479 ; Hllliard v. Richardson, 3 Gray, 349 ;] Nicholson v. Mounsey, 15 East, R. 384 ; Paley on Agency, by Lloyd, 296, 297 ; Weyland v. Elkins, Holt's N. P. Rep. 227 ; S. C. 1 Starkie, R. 272; Smith on Merc. Law, 69 (2d edit.); Id. p. 127, 128 (Sd edit. 1843.) Lord Chief Justice Eyre's opinion, in Bush v. Steinman, shows the difficulty of this doctrine, and the grounds on which it is founded. " At the trial," said he, "I entertained great doubts with respect to the defendant's liability in this action. He appeared to be so far removed from the immediate author of the nuisance, and so far removed even from the person connected with the imme- diate author in the relation of master, that to allow him to be charged for the injury sustained by the plaintiff, seemed to render a circuity of action necessary. Upon the plaintiff's recovery, the defendant would be entitled to an action against the surveyor; the surveyor, and each of the sub-contracting parties in succession, to actions against the persons with whom they immediately con- tracted ; and, last of all, the lime-burner would be entitled to the common action against his own servant. I hesitated, therefore, in carrying the respon- sibility beyond the immediate master of the person who committed the injury, and I retained my doubts upon the subject, till I heard the argument on the part of the plaintiff", and had. an opportunity of conferring with my brothers. They, including Mr. Justice BuUer, are satisfied, that the action will lie ; and, upon reflection, I am disposed to concur with them, though I am ready to con- fess, that I find great difficulty in stating with accuracy the grounds on which it^is to be supported. The relation between master and servant, as commonly exemplified in actions brought against the master, is not sufficient ; and the gen- eral proposition that a person shall be answerable for any injury which arises in carrying into execution that which he has employed another to do, seems to-be too large and loose. The principle of Stone v. Cartwright, with the decision of which I am well satisfied, is certainly applicable to this case ; but that of Little- dale V. Lord Lonsdale comes much nearer. Lord Lonsdale's colliery was worked in such a manner by his agents and servants, (or possibly by his con- tractors, for that would have made no difference,) that an injury was done to the plaintifi"'s house, and his Lordship was held responsible. Why ? Because the injury was done in the course of his working the colliery ; whether he vforked it by ao-ents, by servants, or by contractors, still it was his work ; and, though- another person might have contracted with him for the management of the whole concern, without bis interference, yet, the work being carried on for his benefit, and on his property, all the persons employed must have been considered as his agents and servants, notwithstanding any such arrange- ' ment ; and he must have been responsible to all the world, on the principle of sic utere tuo, ut alienum non Imdas. Lord Lonsdale having empowered 564> AGENCY, [CH. XVII, porter used his own tackle, and brought and paid his own men, and an injury was done to the plaiptifF by the falling of a the contractor to appoint such persons under him, as he should think fit, the persons appointed would, in contemplation of law, have been the agents and servants of Lord Lonsdale. Nor can I think, that it would have made any difference, if the injury complained of had arisen from his Lordship's coals having been placed by the workmen on the premises of Mr. Littledale ; since it would have been impossible to distinguish such an act from the general course of business, in which they were engaged, the whole of which business was carried on, either by the express direction of Lord Lonsdale, or under a pre- sumed authority from him. The principle of this case, therefore, seems to afford a ground, which may be satisfactory for the present action; though I do not say, that it is exactly in point. According to the doctrine cited from Blackstone's Commentaries, if one of a family ' layeth or casteth' any thing out of the house, which constitutes a nuisance, the owner is chargeable. Suppose, then, that the owner of a house, with a view to rebuild or repair, employ his own servants to erect a hord in the street, (which, being for the benefit of the pub- lic, they may lawfully do,) and they carry it out so far as to encroach unreason- ably on the highway ; it is clear, that the owner would be guilty of a nuisance ; and, I apprehend, there can be but little doubt, that he would be equally guilty, if he had contracted with a person to do it for a certain sum of money, instead of employing his own servants for the purpose ; for, in contemplation of law, the erection of the hord would equally be . his a^t. If that be established, we come one step nearer to this case. Here the defendant, by a contractor, and by agents under him, was repairing his house ; the repairs were done at his ex- pense, and the repairing was his act. If, then, the injury complained of by the plaintiff was committed in the course of making those repairs, I am unable to distinguish the case from that of erecting the hord, or from " Littledale v. Lons- dale, unless, indeed, a distinction could be maintained, (which, however, I do not think possible,) on the ground of the lime not having been delivered on the defendant's premises, but only at a place close to them, with a view to being carried on to the premises and consumed there. My brother BuUer recollects a case, which he would have stated more particularly, had he been able to attend. It was this. A master having employed his servant to do some act, the servant, out of idleness, employed another to do it ; and that person, in carrying into execution the orders, which had been given to the servant, committed ^n injury to the plaintiff, for which the master was held liable. The responsibility was thrown on the principal, from whom the authority originally moved. This determination is certainly highly convenient and beneficial to the public. Where a civil injury of the kind now complained of, has been sustained, the remedy ought to be obvious, and the persons injured should have only to discover the owner of the house, which was the occasion of the mischief ; not be com- pelled to enter into the concerns between that owner and other persons, the inconvenience of which would be more heavily felt, than any, which can arise CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 565 barrel on him, in consequence of the tackle failing, while it was used by the porter's men ; it was held, that the warehouse-man from a circuity of action. Upon the -whole case, therefore, though I still feel difficulty in stating the precise principle, on which the action is founded, I am satisfied with the opinion of my brothers." See this case commented on in Duncan v. Findlater, 6 Clark & Pinnell. K. 894, 903, 909, 913, by Lord Cotting- ham, and Lord Brougham, where it seems to have been thought to push the doctrine of the liability of the principal to its fullest extent. Mr. Holt has appended a very able note (p. 229) on this subject, to the case of Weyland v. Elkins. The following extract contains some striking illustrations and comments on the doctrine : " The responsibility of the master," says he, " for the acts of his servant, has been extended by recent cases to a length beyond the ordinary course of practice, and which, unless the principle be duly understood, may appear contrary both to reason and the principles of general equity. The question is of very general concern, and the cases rest upon some nice distinctions, which, however subtle and remote, are perfectly consonant with the principles of legal liability ; a very diflferent thing from morSl criminality. The foundation of this branch of our law, is avowedly in the maxim of the Koman Code, (4 Inst, tit. 5,) Quifacitper alium, facit per se ; namely, that the agency of a servant is but an instrument ; and that any man, having authority over the actions of an- other, who either expressly commands him to do an act, or puts him in a con- dition, of which such act is a result, or by the absence of a due care and con- trol, (either previously in the choice of his servant, or immediately in the act itself,) negligently suffers him to do an injury, shall be responsible for the act of his servant, as if it were the act of himself. All the cases rest upon the develop- ment of this principle. We shall here subjoin some of those main divisions, into which it seems to distribute itself. 1. The first case of such responsibility, is the express command of the master ; and-here the principle is too obvious to need an explanation. 2. The second head is, that of reasonable presumption, or, in legal terms, a general command. Whatever a servant is permitted to do, in the ordi- nary course of his business, is equivalent to this reasonable presumption and gen- eral command. Thus, if an innkeeper employ a drawer, who serves his guests with wine injurious to their health, the party injured may bring an action against the master. 1 KoU. Abr. 95. Upon the same principle, by the common law, (till altered by the statute of Anne,) if a servant keep his master's fire negli- gently, so that his neighbor's house be burnt dofrn thereby, an action lies against the master, because this negligence occurred in his service. Otherwise, if the servant, going along the street with a torch, by negligence set fire to the house of a neighbor ; for there he is not in his master's immediate service, and must answer the damage personally. Noy's Max. ch. 44. In all such cases, the term in our law books, general command, is equivalent to the words, the general depu- tation, or voluntary substitution, of the servant for the master, within the line of his particular employ ; and, therefore, all the acts of the servant, within such particular line, are very properly regarded as the acts of the master. 3. The AGENCT. 48 566 AGENCY. [CH. XVII, was liable therefor, and that the men were in point of law to be deemed his servants.^ So, the owner of a ship, who third head of such responsibility is, where the absence of a due care and control by a master, either in the previous choice of a servant, or in the immediate act itself, has occasioned an injury to another. In all such cases, the master is legally as well as morally criminal for the act of his servant, and, therefore, be- comes a subject of legal as well as of moral imputation. Thus, a chemist, who employs an unskilful apprentice to mix up drugs and vend in his shop, and the master of a stage-coach, employing a negligent driver, are responsible for the acts of their respective servants. Nor does it make any distinction in these cases, whether such injury be the effect of negligence or wilfulness in the ser- vant, so long as it is within the scope of the master's employ. The reason of this is twofold ; in the first place, because the master, who alone could know his ser- vant, is bound to make choice of a proper one in every respect, both as to good character, which would exclude such wilfulness, and as to skill, which would ex- clude such negligence. 4. According to the above definition, (that the. servant is the deputy of the master only within the limits in which he is employed,) the master is not responsible for any act of his servant, which makes no part or con- nection with his service, and which he might or would have committed without such service, such acts being contemporary only with his service, but not any result from it. For example, if my coachman drive over the leg of another man, I am responsible for the injury ; but, if he get off his coach-box and horse- whip a man in the street, it is his act, and not mine. It is nothing, wbich I could foresee or prevent ; it is not the result of character, or the absence of any proper quality, which I ought, acting with ordinary discretion, to have required in a driver. All the cases under this exception rest upon the same distinction. The injurious act, for which the master is made responsible, must be something growing out of the particular service, and be committed, quatenus in servitio. 5. To instance a few more cases. In Bro. Abr. tit. Trespass, pi. 435, it is said : ' If my servant, without my notice, put my beasts in another's land, my servant is the trespasser, and not I ; because, by the voluntary putting of the beasts there, without my assent, he gains a special property for the time, and so, to this purpose, they are his beasts.' The reason here given, is an example of the sub- tilty of our old law-writers, who preferred a reason, however technical and re- mote, to one more obvious and familiar. In Mlddleton v. Fowler, Salk. 282, Holt, C. J., places the law upon its proper foundation, when he states it, as a general position, ' that no master is chargeable with the acts of his servant, but when he acta in the execution of the authority given him.' In other words, when a servant quits sight of the object, for which he was employed, and with- out reference to his master's business or orders, commits, from his own malice, some wilful and independent act, he is no longer presumed to be acting in pur- 1 Randleson v. Murray, 8 Adolpb. & Ellis, 109. See also Witte v. Hague, 2 Dowl. & Kyi. 33. CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 567 appoints the master, and desires him to appoint, and select, and employ, a proper crew, will be responsible for the negligent suance of his general authority as a servant ; and, according to the doctrine of Lord Holt, his master is not responsible for the act which he does. Thus, in McManus v. Cricket, 1 East, 106, the Court of King's Bench determined, that a master was not liable in trespass for the wilful act of his servant in driving his master's carriage against another ; such act being done without the direction or assent of the master ; admitting, at the same time, that the master would be liable for any damage occasioned by the negligence and unskilfulness of his servant, whilst in his employ. In the same manner, although the master of a ship is not discharged of his responsibility for the acts of his crew, notwithstand- ing they are done under the direction of a pilot, who, by the regulations of a statute, supersedes the master, for the time, in the government of the ship ; yet, if one of the ship's crew does a wilful act of injury to another ship, without any direction from, or privity with, the master, trespass cannot be maintained against the master, although he was on board at the time. Bowcher v. Noidstrom, 1 Taunt. 568 ; and see the cases referred to in the argument. So, in a later case, Nicholson v. Mounsey, 15 East, 384, it was determined, that the captain of a sloop-of-war was not responsible in an action on the case, which is a material distinction, for damages done by running down another vessel ; the mischief appearing to have been committed during the watch of the lieutenant, who was upon deck, and had the actual management of the sloop at the time ; and when the captain was not upon deck, and was not called by his duty to be there. That case, however, was determined upon this principle: 1. That the defend- ant and the lieutenant were equally the servants of a superior, and stationed on board by the same authority. 2. That the defendant had no power either to appoint or dismiss his officers and crew. 6. With respect to the description of agents and servants, for whose acts the master may be responsible, there is a peculiarity in the English law, which embraces a very wide and extensive rela- tion. In the civil law the liability was narrowed to the person standing in the relation of a paterfamilias to the wrongdoer. Dig. Lib. 9, tit. 3. Our law ex- tends, not only to cases, where the agent is a domestic, but it throws the respon- sibility upon the principal, from whom the authority, of which the injury is a consequence, originally moved. Thus, where a master, having employed his servant to dg some act, and the servant, out of idleness, employed another to do it, and that person, in carrying into execution the orders, which had been given to the servant, committed an injury to the plaintiff, the master was held respon- sible. Reported from Buller, J., by Eyre, C. J., in Bush v. Steinman, 1 Bos. & Pull. 404. 7. The general proposition, that a person shall be answerable for an injury, which arises in carrying into execution that which he has employed an- other to do, is perhaps too large and loose ; but in the case of Littledale v. Lord Lonsdale, 2 H. Bl. 267-299 ; and in Bush v. Steinman, 1 Bos. & Pull. 404, the principle was carried to a great extent. In the former case, the defendant was held responsible for an injury to the plaintiff's horse, done by persons, with 568 AGENCY. [CH. xvir. acts of the crew, for they are to be deemed his servants for the management and government of the ship.^ The same principle prevails, where the owner of a farm has it in his own hands, and he does not personally interfere in the management, but appoints a bailiff or hind, who hires other persons under him, all of them being paid out of the funds of the owner, and selected by himself, or by a person specially deputed by him ; for the owner will be answerable for any damage, which happens through their default, because their neglect or default is his, as they are appointed by and through him.^ So, in the case of a mine, if the owner employs a steward or manager to superintend the working of the mine, and to hire under-work- men, and he pays them on behalf of the owner ; these under- workmen become the immediate servants of the owner, and the owner will be answerable for their default in doing any acts on account of their employer.^ So, where a corn-factor was absent from his shop, and during his absence, his sister man- whom he had contracted, (and not merely employed as agents or servants,) to ■work a colliery, on the ground that the colliery was the defendant's property; that it was upon his land ; and that the description of persons working it could make no difference in his responsibility. In Bush v. Steinman, the decision was this : A, having a house by the road-side, contracted with B to repair it for a stipulated sum ; B contracted with C to do the work ; and C with D to furnish the materials. The servant of D brought a quantity of lime to the house and placed it in the road, by which the plaintiff's carriage was overturned ; it was held, that A was answerable for the damage sustained. In this case, the Court principally relied upon the case of Littledale v. Lonsdale. See likewise. Stone I;. Cartwright, 6 T. E. 4H ; Flower v. Adam, 2 Taunt. 314 ; Payne v. Rogers, 2 H. B. 350 ; Leslie v. Pounds, 4 Taunt. 649." See also Laugher v. Pointer, 5 Barn. & Cressw. 547, where most of the cases are reviewed ; Hughs v. Boyer, 9 Watts, R. 559 ; Milligan v. Wedge, 12 Adolph. & Ellis, 737, 742 ; Brown v. Lent, 20 Verm. 533. [The authority of Bush v. Steinman seems to be shaken in a recent English case, Reddie v. London & Northwestern Railway Co. 4 Welsh. Hurlstone, & Gordon, 244.] 1 Per Littledale, J., in Laugher v. Pointer, 5 Barn. & Cressw. 547, 554, per Lord Tenterden ; Id. p. 574-576. 2 Ibid. 3 Ibid. ; Stone v. Cartwright, 6 Term R. 415 ; Littledale v. Lord Lonsdale, 2 H. Black. R. 267, 269; Bush v. Steinman, 1 Bos. & Pull. 404. CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 569 aged his business ; and she, wanting to send out some corn to a customer, for this purpose employed a person, who occasion- ally worked for her brother, and who, at the time of such employment, was in a state of inebriety ; and the man so employed, contrary to the practice in the corn-factor's shop, took out the corn on a small warehouse truck, which he negli- gently left in the road, whereby a person, driving along in a chaise, was injured ; it was held, that the corn-factor was liable in an action at the suit of the person injured, for this negligent act of the drunken man, upon the ground, that the employ- ment of a drunken man was in itself an act of negligence, and that, by such employment through his agent, the corn-factor set the whole thing in motion, and must, therefore, be liable for the consequences.^ So, where the owner of land employed a mechanic to make a drain for him on the land, and to extend it therefrom to a public drain, the mechanic procuring the necessary materials, hiring laborers, and charging. a compensa- tion for his services and disbursements ; it was held, that the mechanic was to be deemed in the service of his employer, so as to make the employer responsible to a third person, who sustained damage in his property by reason of the want of skill, or want of due care and diligence, on the part of the mechanic, and those employed under him in digging the drain.^ [So where A employed B at a stipulated sum, to jemove a house from one side of the street to the other, and B hired all the hands, A having nothing to do with the operations in moving the building, A was nevertheless held Uable for the negligence of B, in leaving a hole open in the street, whereby 1 Wanstall v. Pooley, Mich. Term, 1841, Q. B., cited 6 Clark & Finnell. K. 910, note. See also Dunlap v. Findlater, 6 Clark & Finnell. R. 894, 903, 909, 910. 2 Stone V. Codman, 15 Pick. E. 297. It does not appear, that in this case the work was undertaken to be done by the mechanic by the job, or as an indepen- dent employment. If it had been, it might have admitted of a very different con- sideration. [And see Peachey v. Rowland, 16 Eng. Law and Eq. E. 442, and Bennett's note.] See post, § 454 a. 48* ' 570 AGENCY. CH. XVII. the plaintiff's horse was killed.^ The simple fact, however, that the person who did the work was employed hy the job, and not by the day, cannot be decisive upon the question of the employ- er's liability. For if the relationship of master and servant exists at the time ; if the employer had the power to control the manner in which the work is done, he is responsible for the negligence of the servant who executes it.^ So in Burgess V. Gray,8 the defendant had employed one Palmer to make a drain from his house to the street sewer, and Palmer's men left a pile of dirt in the street, whereby the plaintiff was injured ; but the jury having found upon the evidence that the defendant had not completely parted with the control over the work, the Court of Common Pleas held him legally liable for the injury, although Palmer was doing the work by contract, and was himself a master-builder.^] § 4<54> a. But here again nice questions have arisen in the application of this last doctrine to cases of sub-agency, where the facts presented the inquiry, when, and under what circum- stances, the parties employed are to be deemed the servants or sub-agents of the principal employer, and when only the sub- agents of the immediate person, by whom they are actually employed. In the former case, the principal employer is liable for their negligent acts ; in the latter, not. Some cases may be put to illustrate the embarrassments, which occasionally surround the subject, and perhaps make it difficult to lay down [' Wiswall V. Brinson, 10 Iredell, 554. Sed qucere, and KufBn, C. J., dis- sented, in an able judgment. In Stone v. Cheshire Railroad Corporation, 19 N. Hamp. R. 100, where a railroad corporation contracted -with certain persons to build a section of the road, and while the contractors, or their servants, were blasting rocks upon the road, and a stone fell upon the plaintiflf and injured him, it was h^ld, that he had his remedy against the railroad corporation ; and the cases of Bush v. Steinman, and Lowell v. Boston and Lowell Railroad, 23 Pick. 24, were fully approved.] 2 Sadler v. Henlock, 4 El. & Bl. 570 ; 80 Eng. Law and Eq. R. 167. See the case stated post, § 454 c, in the judgment to Uilliard v. Richardson. 3 1 Com. B. Rep. 578 ; See post, opinion in HiUiard v. Richardson. CH. XVII.] THIKD PERSONS AGAINST PRINCIPALS. 571 any positive rule of distinction, applicable to all the varieties of human transactions. In one case, a builder was employed by a committee of a club to make extensive alterations and im- provements in the club-house, and, among other things, to pre- pare and fix the necessary gas-fittings. The builder made a sub-contract with a gas-fitter, to execute the latter portion of the work, by whom, or whose servants, it was performed in such a negligent manner, that the gas exploded, and seriously injured the plaintiff and his wife. A suit was brought against the builder ; and the question arose, whether he was respon- sible for the injury. It was held, that he was not, because the gas-fitter did not stand to him in the relation of a servant, but was a mere sub-contractor.-' In another case, where the buyer of a bullock employed a licensed drover to drive it from Smith- field, in London, to his slaughter-house, without the city ; and, by the by-laws of the city, no person but a licensed drover can drive cattle for hire from Smithfield, though the owner may drive them himself; the drover employed a boy to drive the bullock to the slaughter-house ; and the buUock did the mis- chief complained of, while the boy was driving him ; it was held, that the boy was not the servant of the butcher, and,, therefore, he was not liable for the negligent acts of the bo^.^ [In another case, a railroad company contracted under seal with certain persons, to make a portion of the line, and, by the con- tract, reserved to themselves the power of dismissing any of the workmen of the contractors ; the workmen, in constructing a bridge over a public highway, negligently caused the death of a person passing along the highway beneath, by allowing a stone to fall upon him ; after elaborate argument, it was de- cided, in an action against the company, by the administratrix of the deceased, that they were not liable, and that the terms 1 Eapson v. Cubitt, 9 Mees. & Welsb. 710. See also Winterbottom v. Wright, 10 Mees. & Welsb. K. 109, 111. 2 Milligan. i;. Wedge, 12 Adolph. & Ell. 739. [This case is explained in Sadler v. Hancock, 30 Eng. Law and Eq. R. 169 ; 4 EI. & Bl. 570.] 572 AGENCY. [CH. XVII. of the contract did not make any diflferehce.-'^] The ground of these decisions seems to have heen, that, where the party em- ployed by the principal exercises a distinct and independent employment, he, and the persons whom he employs under him, are not to be deemed the servants of the principal, but he stands in the relation of a sub-contractor only, and the persons employed by him are his own servants.^ 8 [4>54< h. Thus, where the defendants contracted to pave a certain highway district, but sub-contracted with B to pave a particular street therein, and B's men negligently left a pile of paving-stones in the street, over which the plaintiff fell and broke his leg, it was held that the defendants were not liable, although they furnished all the stones, and sent them, to the street in their carts.^ So, where the defendant employed A to fill, in the earth over a drain leading from the defendant's house to the main sewer in the highway, and A's men, after filling up the drain, left the earth piled up so high above the level of the road, that the plaintiff drove against it and was injured, it was held that the defendant was not liable, A doing the work as a contractor, and the defendant not having any thing to do with the manner in which the work was done, and the negligent manner not being necessary to the execution of the work.* So in Knight v. Fox,^ a railway company en- tered into a contract with A to construct a branch line ; A contracted with the defendant to erect a tubular bridge, part of 1 Eeedie v. London & Northwestern Kailway Co. 4 Welsby, Hurlstone, and Gordon, 244. See Cuthbertson v. Parsons, 10 Eng. Law and Eq. E. 524 ; Blake v. Ferris, 1 Selden, 48 ; Pack v. Mayor of N. Y. 4 Seld. 222. 2 See Milligan v. Wedge, 12 Adolph. & Ell. 737, and particularly what was said by Lord Denman, and by Mr. J. Williams. See also Martin v. Temperley, 4 Q. B. Rep. 298; The Jurist, February 25, 1843, No. 320, p. 150. See The Agrieola, Id. p. 157, 159. 3 Overton v. Freeman, 8 Eng. Law & Eq. R. 479 ; 11 Com. B. Rep. 867. See Hilliard v. Richardson, post, § 454 c. 4 Peaohey v. Rowland, 13 Com. R. Rep. 182 ; 16 Eng. Law & Eq. R. 442, and Bennett's note. 5 1 Eng. Law & Eq. R. 477, and Bennett's note ; 5 Exch. R. 721. CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 578 the works ; the defendant had a surveyor, C, whom he paid by a yearly salary of £250, to attend to his general business ; and after obtaining the contract for the bridge, he contracted with C to provide the necessary scaffolding, for which he was to receive £40 irrespective of his salary, the defendant to fur- bish the requisite materials including lights. One of the poles of the scaffolding rested on a highway, and from the want of sufficient light, the plaintiff' fell over the pole at night and broke her leg. It was held that the defendant was not liable for the injury ; C being at the time in the relation of a sub- contractor to the defendant, and not a servant, or agent. In like manner where a railway company contracted with B to excavate a road in order to lay an embankment for the railway, and the work was done under the general superintendence of the company's surveyor, who furnished the plans, but the fore- man of B was the person to decide in what manner the direc- tions of the surveyor should be carried out, and the surveyor directed the foreman to cut through only the half of a certain road at once ; but B's men, notwithstanding this direction, cut through the whole, whereby the plaintiff's adjoining land was inundated, it was held that the railway company was not liable for the injury.^] [§ 4i54> c. This whole subject of the law of Respondeat Superior was fully examined in a late case in Massachusetts, in 1 [Steel V. The Southeastern Railway Co. 32 Eng. Law & Eq.K. 366. Cress- well, J., said : " 1 also am of opinion that there was no evidence_in this case that could properly have been left to the jury to show that the defendants or their servants had been guilty of any such negligence as to make them respon- sible. The person who did the work proved that he was employed by Furness. If it could have been shown that the plaintiff's land was flooded in consequence of something done by the orders of Mr. Phillips, the company's surveyor, it might have been said that it was the same as if Phillips had done it with his own hands, and then the company would have been responsible. But, it seems that the order given by Phillips was, to do the work in a different manner from that adopted by Furness's men. This was work done under a contract, — whether parol or otherwise, is immaterial, — and there is nothing to show negligence in any one for whose acts the company are responsible."] 574 AGENCY. [CH. XVII. which the authorities were very elaborately and critically exam- ined by Judge Thomas, and the true principle of the law on this subject clearly stated. In that case the evidence tended to prove the following facts : Between the hours of five and six in the afternoon of December 5th, 1851, the plaintiff was driv- ing in a wagon in and through a highway, when the horse, suddenly took fright at a pile of boards lying by the side of the way, but within its limits, bolted from his course, and car- ried the wheel of the wagon violently against a post near the edge of the sidewalk, whereby the plaintiff was thrown violently from the wagon, and seriously injured. The boards were placed there the same afternoon, and not long before the occur- rence of the accident, by a teamster, acting under the direction of Lewis Shaw, with the intention of allowing them to remain till the morning of the next day, and then removing them to the land adjoining the highway. This land, and the buildings upon it, belonged to the defendant, and were in his possession, ex- cept so far as they were occupied by Shaw in the execution of a written contract with the defendant, and under license from him. By that contract, Shaw agreed, for a specific price, and before a day named, to alter a certain paper factory into two dwelling-houses, according to a plan and specifications annexed to the contract, and to make certain repairs thereon, and to fur- nish all the requisite materials. The defendant also gave Shaw license to use, while he should be engaged in the execu- tion of the contract, one of the buildings upon the land to shape and finish work for buildings of his own, in which the defend- ant had no interest. Shaw procured the boards and brought them to the place, chiefly for the purpose of using them in the alteration of the defendant's buildings, under the written contract, and was, at the time of the accident, actually engaged in the execution of that contract. The presiding judge instructed the jury, among other things, that "the act of laying and leaving the boards in the highway by Shaw must, for the purposes of this action, be deemed the CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS, 575 act of the defendant ; " and that, " as the boards at which it was alleged that the horse took fright, were procured by Shaw, to be used, in whole or in part, in performance and execution of the written contract between him and the defendant, and were materials necessary therefor, the defendant was responsi- ble for the acts of Shaw, in placing the boards in the highway, and suffering them to remain there ; and that his liability in relation thereto was in all respects the same as the liability of Shaw." But this ruling was reversed by the whole Court,^ 1 [Hilliard v. Richardson, 3 Gray, 349. Thomas, J., said : " The questions raised by the report are upon the instructions given by the presiding judge to the jury. The material question, that upon which the case hinges, is -whether, upon the facts reported, the defendant is liable for the acts and for the negligenee and care- lessness of Shaw. In looking upon the ease reported, it is to be observed, 1st. That the acts done by Shaw, and which are charged as negligence; were not done by any specific direction, or order, or request of the defendant. 2dly. That between the defendant and Shaw the ordinary relation of master and ser- vant did not exist. ' 3dly. That the acts done, and which are charged as negli- gence, were not done upon the land of the defendant. They did not consist in the creating or suffering of a nuisance upon his own land, to the injury of another. 4thly. That the boards placed in the highway were not the property of the defendant ; that he had no interest in them, and could exercise no con- trol over them. 5thly. That the defendant did not assume to exercise any control over them. 6thly. That there is no evidence of any purpose on the part of the defendant to injure the plaintifl", or anybody else, or so to use his property, or suffer it to be so used, as to occasion an injury. Was the defend- ant liable for the negligent acts of Shaw in the use of the highway ? As a matter of reason and justice, if the question were a new one, it would be diflScult to see on what solid ground the claim of the plaintiff could rest. But he says that such is the settled law of this Commonwealth, and that the question is now no longer open for discussion. Three cases are especially relied upon by the plaintiff, as settling the rule in Massachusetts. They are Stone v. Cod- man, 15 Pick. 297; Lowell v. Boston and Lowell Railroad, 23 Pick. 24; and Earle v. Hall, 2 Mete. 353. Stone v. Codman was this: The defendant em- ployed one Lincoln, a mason, to dig and lay a drain from the defendant's stores, in the city of Boston, to the common sewer. By reason of the opening made by Lincoln and the laborers in his employment, water was let into the plaintiff's cellar, and his goods were wet. 1. Lincoln procured the materials and hired the laborers, charging a compensation for his services and disbursements. 2. The acts causing the injury to the plaintiff's goods were done upon the defend- ant's land, and in the use of it for the defendant's benefit. 3. There was no contract, written or oral,' by which the work was to be done for a specific price. 576 AGENCY. [CH. XVIX. But where a person is employed to do an unlawful act, by which an injury is occasioned to a third person, the employer is or as a job. 4. The case is expressly put upon the ground that between the defendant and Lincoln the relation of master and servant existed. The Chief Justice, in delivering the opinion of the Court, said : ' Without revievring the authorities, and taking the general rule of law to be well settled, that a master or principal is responsible to third persons for the negligence of a servant, by which damage has been done, we are of opinion, that, if Lincoln was employed by the defendant to make and lay a drain for him, on his own land, and extend- ing thence to the public drain, he (Lincoln) procuring the necessary materials, employing laborers, and charging a compensation for his own services and his disbursements, he must be deemed, in a legal sense, to have been in the service of the defendant, to the effect of rendering his employer responsible for want of skill, or want of due diligence and care ; so that, if the plaintiff sustained damage by reason of such negligence, the defendant was responsible for such damage.' The case well stands on the relation of master and servant. The work was under the control of the defendant. He could change, suspend or terminate it, at his pleasure. Lincoln was upon the land with only an implied license, which the defendant could at any moment revoke. The work was done by Lincoln, not on his own account, but on the defendeint's. The defend- ant was indeed acting throughout by his servants. The injury was done by the escape of water from land of the defendant to that of the plaintiff, which the defendant could have and was bound to have prevented. The second case relied upon by the plaintiff is that of Lowell 4». Boston and Lowell Railroad, 23 Pick. 24. In a previous suit, (Currier v. Lowell, 16 Pick. 170,) the town of Lowell had been compelled to pay damages sustained by Currier by reason of a defect in one of the highways of the town. That defect was caused in the con- struction of the railroad of the Boston and Lowell Company. It consisted in a deep cut through the highway, made in the construction of the railroad. Bar- riers had been placed across the highway, to prevent travellers from falling into the chasm. It became, in the construction of the railroad, necessary to remove the barriers, for the purpose of carrying out stone and rubbish from the deep cu^. They were removed by persons in the employ of the corporation, who neglected to replace them. Currier and another person, driving along the high- way in the night time, were precipitated into the deep cut, and seriously in- jured. Currier brought his action against the town of Lowell, and recovered damages. This action was to recover of the railroad corporation the amount the town had been so compelled to pay. The railroad corporation denied their responsibility for the negligence of the. persons employed in the construction of that part of the railroad where the accident took place, because that section of the road had been let out to one Noonan, who had contracted to make the same for a stipulated .sum, and had employed the workmen. This defence was not sustained; nor should it have been. The defendants had been authorized by their charter to construct a railroad from Boston to Lowell, four rods wide CH. X\II.] THIRD PERSONS AGAINST PRINCIPALS. 577 liable for the injury although the person employed be a con- tractor, and the act be that of his servants. In such case it is through the whole length. They were authorized to cross turnpikes or other highways, with power to raise or lower such turnpikes or highways, so that the railroad, if necessary, might pass conveniently over or under the same. Si. 1830, c. 4, §§ 1, 11. Now it is plain that it is the corporation that are intrusted by the legislature with the execution of these public works, and that they are bound, in the construction of them, to protect the public against danger. It is equally plain that they cannot escape this responsibility, by a delegation of this power to others. The work was done on land appropriated to the purpose of the railroad, and under authority of the corporation, vested in them by law for the purpose. The barriers, the omission to replace which was the occasion of the accident, were put up and maintained by a servant of the corporation, and by the'ir express orders ; and that servant had thfe care and' supervision of them-. The accident occurred from the negligence of a servant of the railroad cor- poration, acting under their express orders. The case, then, of Lowell v. Boston and Lowell Kailroad stands perfectly well upon its own principles, and is clearly distinguishable from the case at bar. The Court might well say, that the fact of Noonan being a contractor for this section did not relieve the corporation from the duties or responsibility imposed on them by their charter and the law, espec- ially as the failure to replace the barriers was the act of their immediate servant, acting under their orders. The only respect, it seems to us, in which this case aids the doctrine of the plaintiff, is that the learned Judge who delivered the opinion of the Court cites with approbation the case of Bush u. Steinman, 1 Bos. & Pul..404, as ' fully supported by the authorities and well-established princi- ples.' It is sufficient to remark, in passing, that the decision of the case before the Court did not involve the correctness of the rule in Bush v. Steinman. The case of Earle v. Hall, 2 Met. 353, is the third case- cited by the plaintiff as affirming the doctrine upon which he relies. Hall agreed to sell land to one Gilbert. Gilbert agreed to build a house upon and pay for the land. While the agreement was in force, Gilbert, in preparing to build the houlfe on his own account, by workmen employed by him alone, undermined the wall of the ad-' joining house of the j^aintiff. It was held that Hall was not answerable for the injury, although the title to the land was in him at" the time the injury was com- mitted. The general doctrine is stated to be, that we are not merely to inquire who is the general owner of the estate, in ascertaining who is responsible for acts done upon it injurious to another ; but who has the efficient control, for whose account, at whose expense, under whose orders is «he business carried on,, the eoiiduct of which has occasioned the injury. The case of Bush v. Steinman is cited as a leading case, ' very peculiar, and much discussed; " but we do not perceive that the point it decides is affirmed. The general scope of the reason- ing in Earle v. Hall, as w^U as the express point decided, are adverse to it. These cases, neither in the points decided, nor the principles which they involve, support the rule co'ntended for by the plaintiff. But the plaintiff says that the AGENCY. 49 578 AGENCY. [CH. XVII, not material that- the workmen were not under the immediate direction of the person sought to be charged ; for if the whole well-known case of Bush v. Steinman is directly in point, and that that case is still the settled law of Westminster Hall. If so, as authority, it would not con- clude us ; though, as evidence of the law, it would be entitled to high consider- ation. Upon this case of Bush v. Steinman three questions arise : I. What does it decide ? 2. Does it stand well upon authority or reason ? 3. Has its author- ity been overthrown or substantially shaken and impaired by subsequent decisions ? 1. The case was this: A, having a house by the roadside, contracted with B to repair it for a stipulated sum ; B contracted with C to do the work ; C with D to furnish the materials ; the servant of D brought a quantity of lime to the house, and placed it in the road, by which the plaintiff's carriage was overturned. Held, that A was answerable for the damage sustained. 2. At the trial. Chief Justice Eyre was of opinion that the defendant was not answerable for the injury. In giving his opinion at the hearing in banc, he says he found great difficulty in stating with accuracy the grounds on which the taction was to be supported ; the relation of master and servant was not sufficient ; the general proposition, that a person shall be answerable for any injury which arises in carrying into execution that which he has employed another to do, seemed to be too large and loose. He relied, as authorities, upon three cases only ; Stone V. Cai'twright, 6 T. E. 411 ; Littledale v. Lonsdale, 2 H. Bl. 267 ; and a case stated upon the recollection of Mr^ Justice BuUer. " Stone V. Cartwright lays no foundation for the rule in Bush v. Steinman. The decision was but negative in its character. It was that no action would lie against a steward, manager or agent, for the damage of those employed by him in the service of his principal. This is the entire point decided. Lord Kenyon said : ' I have ever understood that the action must be brought against the hand committing the injury, or against the owner for whom the act was done.' The injury complained of was done upon the land of the defendant, and by his servants. It consisted in so negligently working the defendant's mine as to undermine tne plaintiff's ground and buildings above it, so that the surface gave way. The mine was in the possession and occupation of the defendant; the injury was direct and immediate ; the workmen were the servants of the owner. The case of Littledale v. Lonsdale, in its main facts, cannot be distinguished from. Stone v. Cartwright. It stands upon the same grounds. The defendant's steward employed the under-workmen. They were paid out of the defendant's funds. The machinery and utensils belonged to the defendant, and all the pe.r- sons employed were hi? immediate servants. The third case was but this : A master having employed his servant to do some act, this servant, out of idleness, employed another to do it; and that person, in carrying into execution the orders which had been given to the servant, committed an injury to the plain- . tiff, for which the master was held liable. What was the nature of the acts done does not appear. And whether the case was rightly, decided or not, it is diflScult to see any analogy between it and the case the Lord Chief Justice was CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 579 work itself be illegal, and cannot be done at all except by a siFTongful act, the original employer is responsible.^] considering. Mr. Justice Heath referred to the action for defamation, brought against Tattersall, who was the proprietor of a newspaper with sixteen others. The libel was inserted by the persons whom the proprietors had employed by contract to collect the news and compose the paper ; yet the defendant 'iras held liable. It would seem to be not very material who composed the paper, but who owned and published it. Mr. Justice Heath also cited, as in point, the case of Eosewell v. Prior, 2 Salk. 460, which was an action upon the case for ob- structing ancient lights. The defendant had erected upon his land the obstruc- tion complained of There had been a former recovery for the erection ; this suit was for the continuance. The premises of the defendant had been leased. The question wa!s, whether the action would lie for the continuance after his lease. ' Et per cur. It lies ; for he transferred it with the original wrong, and his demise affirms the continuance of it ; he hath also rent as a consideration for the continuance, and therefore ought to answer the damage it occasions.' Mr. Justice Eooke, in addition to the cases of Stone v. Cartwright, and Little- dale D. Lonsdale, alluded also to the case of Michael v. Alestree, 2 Lev. 172, in which it was held that an action might be maintained against a master for damage done by his servant to the plaintiff in exercising his horses in an improper placie, though he was absent, because it should be intended that the master sent the servant to exercise the horses there. See Parsons v. Winchell, 5 Cush. 595. •The examination of these cases justifies the remark that Bush v. Steinman does not stand well upon the authorities, and is not a recognition of principles before that time settled. The rule it adopts is apparently for the first time announced. Does it stand well upon the reasoning of the Court. We think all the opinions given in it lose sightof these two important distinctions : In the cases cited and relied upon, the' acts done, which were the subjects of complaint, were either acts done by servants or agents, under the efficient control of the defendants, or were nuisances created upon the premises of the defendants to the direct injury of the estate of the plaintiffs. The servant of the lime-burner was not the serv- ant of the defendant; over him the defendant had no control whatsoever; to the defendant he was not responsible. There was no nuisance created on the defendant's land. It does not appear that the defendant owned the fee of the highway. The case is put on the ground that the lime was put near the - premises of the defendant, and with a view of being carried upon them. The lime was not on the defendant's land ; he did not direct it to be put there ; he had not the control of the man who put it there. Mr. Justice ^Heath said : ' I found my opinion on this single point, viz., that all the sub-con- tracting parties were in the employ of the defendant' This is not so, un- less it be true "that a man who contracts with a mason to build a house employs the servant of the man who burns the lime. »Mr. Justice Rooke said : ' The person, from whom the whole authority is originally derived, is the person who 1 Ellis V. The Sheffield Gas Co. 2 El. & Bl. 767 ; 22 Eng. Law & Eq. R. 198. 580 AGENCY. [CH. XVII. § 455. The liability of the principal to third persons, for the misfeasances, negligences, and torts of their agents and ser- ought to be answerable, and great inconvenience would follow if it were other- wise.' It cannot be meant tbat one who builds a house is to be responsible for the negligence of every man and his servants who undertakes to furnish mate- rials for the same. Such a rule would render him liable for the most remote and inconsequential damages. But the act complained of did not result from the authority of theTJefendant. The authority under which the servant of the lime-burner acted, was that of his master. And neither the lime-burner nor his servant was acting under the authority of the defendant, or subject to his control. The defendant might, with the same reason, have been held liable for the careless- ness of the servant who burnt the }ime, and of the servant' of the man who fur- nished the coals to burn the lime. 3. Has the doctrine of the case of Bush v. Stein- man been affirmed in England, or has it been overruled, and its autFority im- paired ? The plaintiff cites the case of Sly v. Edgley, at nisi prius,, 6 Esp. R. 6. The defendant, with others, then owning several houses, the kitchens, of which were subject to be overflowed, employed a bricklayer to sink a large sewer in the street. The bricklayer opened the sewer and left it open, and the plaintiff fell in. It was contended that the bricklayer was not the servant of the defend- ant. He was employed to do a certain act, and the mode of doing it, which had caused the injury, was certainly his own. Lord EUenborough is reported as saying, ' It is the rule of respondeat superior ; what the bricklayer did,- was by the defendant's direction.' It does not appear how the bricklayer was em- ployed. If not by independent contract, the case stands very well on the rela- tion of master and servant. 'A case at nisi prius., so imperfectly reported, can have but little weight. Another ease at nisi prius was that of Matthews v. West London Waterworks, 3 Campb. 403, in which the defendants, contracting with pipe-layers to lay down pipes for the conveyance of water through the streets of the city, were held liable for the negligence of workmen employed by the pipe- layers. The case is very briefly stated, and no reasons, given by Lord Ellen- borough for his opiijion, reported. It may stand on the ground that the defend- ants, having a public duty to discharge, as well as right given, could not dele- gate this trust, so as to exempt themselves from responsibility. This case is alluded to in Overton v. Freeman, 11 C. B. 872, hereafter to be examined, where Maule, J., makes the following remarks concerning it : ' That is but a nisi prius case ; the report is shorthand unsatisfactory ; and the particular cir- cumstances are not detailed.' In Harris v. Baker, 4 M. & S. 27, and in Hall v. Smith, 2 Bing. 156, it was held that trustees or commissioners, intrusted with the conduct of pubUc works, were not liable for injuries occasioned by the neg- ligence of th6 workmen employed under their authority. These cases stand upon th^ ground that an actimi cannot be maintained against a man, acting gratuitously for the public, for the consequences of acts which he is authorized to do, and which on his part are done with due. care and a,ttention. They give no sanction whatever to the doctrine of Bush v. Steinman. In Randleson v. CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 581 ' vants, may also arise, although the act is not done, or the wrong is not committed, within the scope of the ordinary business of Murray, 8 Ad. & El. 109, a warehouse-man in Liverpool employed a master porter to remove a barrel from his warehouse. Through the negligence of his men the tackle failed, and the barrel fell and injured the plaintiff. Held, that the warehouse-man was liable. The case is put distinctly on the relation of mas- ter and servant. Lord. Deuman said : ' Had the jury been asked whether the porters, whose negligence occasioned the accident, were the servants of the defendant, there can be no doubt they would have foubd in the affirmative.' The injury occurred also in the direct use of the defendant's estate. In Bur- gess V. Gray, 1 C. B. 578, the defendant, owning and occupying premises ad- joining the highway, employed one Palmer to make a drain from his land to the common sewer. In doing the work, the men employed by Palmer placed gravfel on the highway, in consequence of which the plaintiff, in driving along the road, sustained a personal injury. There was evidence that, upon the defend- ant's attention being called to the gravel, he promised to remove it. The matter left to the jury was whether the defendant wrongfully put, or caused to be put, the gravel on the highway. ' I think,' says Tindal, C. J. ' there was evidence to -leave to the jury in support of that charge. If, indeed, this had been the simple case of a contract entered into between Gray and Palmer, that the latter should make the drain iad remove the earth and rubbish, and there had been no per- sonal superintendence or interference oil the part of the former, I should have Said it fell within the principle contended for by my brother Byles, and that the damage should be made good by the contractor, and not by the individual for whom the work was done.' After adverting to the evidence that the soil was placed upon the road with the defendant's consent, if not by his express direc- tion, he says : ' I therefore think the case is taken out of the rule in Bush v. Steinman, whi& is supposed to be inconsistent with the later authorities.' Colt- man, J., said : ' I think there was evidence enough to satisfy the jury that the entire control of the-work had not been abandoned to Palmer.' Cresswell, J., said : ' No precise contract for the work was proved ; nor was it shown that Palmer was employed to do the work personally, the mode of dc5ng it being left to his judgment and discretion. I think there was abundant evidence to show that the defendant at least sanctioned the placing of the nuisance on the road.' Erie, J., said : ' The work was done with the knowledge of the defendant, and under -his superintendence, and for his benefit.' This well-considered case, it is plain, so far from affirming the rule in Bush v. Steinman, is carefully and anxiously taken out of it by the counsel and by the Court, with the strongest intimation by the latter, that, but for the difference, the actien could nob be maintained. The latest case in England, referred to in the learned argument of the plaintiff's counsel, as affirming the doctrine of Bush v. Steinman, is Sadler ».Henlock,in the Queen's Bench, (1855,) 4 El. SeB1.S70, The defendant, with the consent of the owner of the soil and the surveyor of the district, em- ployed one Pearson, a laborer, but skilled in the construction of drains, to 49* . ■ 582 ♦ AGENCY. [CH. XVII, the principal, if it is done or committed by the previous command, or with the subsequent assent, adoption, or ratifica- oleanse a drain running from the defendant's garden under the public road, and paid five sliillinga for the job. Held, that the defendant was liable for an injury occasioned to the plaintiff by reason of the negligent manner in which Pearson had left the soil of the road over the drain. The case is put by all the judges distinctly on the relation of master and servant. And Crompton, J., said : ' The test here is, whether the defendant retained the power of controlling the work. No distinction can 'be drawn from the circumstance of the man being employed at so much a day or by the job. I think that here the relation was that of mas- ter and servant, not of contractor and contractee. It is only on the ground of a contractor not being a servant that I can understand the authorities.' The case of Bush v. Steinman is not referred to by either of the justices ; but the distinction of servant and contractor runs through the whole case — a distinction which is wholly inconsistent with the doctrine of Bush u. Steinman. In Laugher V. Pointer, 5 B. & C. 547, and 8 D. & R. 556, (1826,) where the owner of a carriage hired of a stable-keeper a pair of horses to draw it for a day, and the owner of the horses provided a driver, through whose negligent driving an in- jury was done to the horse of a third person, it was held by Lord Tenterden, C. J., and Littledale, J,, that the owner of the carriage was not liable for such injury ; Bayley and Holroyd, Justices, dissenting. This case is, in substance, the one put by Mr. Justice Heath, in illustration and support of the judgment in Bush V. Steinman. In the opinions of Lord Tenterden and of Little- dale, J., the doctrines of Bush v. Steinman, in their application to personal property, are examined, and their soundness questioned. In Quarman v. Buf- 'nett, 6 M. & W. 499, (1840,) the same question arose in the Exchequer as in Laugher «. Pointer in the King's Bench, and the opinions of Lord Tenterden and Littledale, J., were affirmed, in a careful opinion pronounced by Baron Parke. In the course of it, he says : ' Upon the principle that qui facitper aliuin facit per se, the master is responsible for the acts of his servant; and that person is undoubtedly liable who stood in the relation of master to the wrong- doer — he who had selected him as his servant, from the knowledge of or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey.; and whether such servant has been appointed by the master directly, or intermediately through the intervention of an agent authorized by him to appoint servants for him, can make no difference. But the liability, by virtue of the principle of relation of master and servant, must cease where the relation itself ceases to exist.' These cases, however, do not overrule Bush v. Steinman, as to the liability of owners of real estate. The ease of Milligan v. Wedge, 12 Ad. & El. 737, and 4 P. & Dav. 714, (1840) is also in relation to the use of personal property, and rests upon the rule set- tled in Quarman v. Burnett. But in this case Lord Denman suggests a doubt whether the distinction as to the law in cases' of fixed and movable property can be relied on. The case of Rapson v. Cubitt, 9 M. & W. 710,. (1842,) was CH. XVII.] THIRD. PERSONS AGAINST PRINCIPALS. 583 tion of the principal. Thus, if the principal should direct his agent to commit a trespass, or to make a conversion of the this : The defendant, a builder, employed by the committee of a club to make certain alterations at the club-house, employed a gas fitter, by a subcontract, to do that part of the work. In the course of doing it, by the negligence of the gas fitter, the gas exploded and injured the plaintiff. Held, that the defendant was not liable. The reasons upon which this decision is based ^ not well consist 4with the rule in Bush v. Steinman. The case of Allen v. Hay ward, 7 Ad. & El. N. R. 960, (1845,) is still more directly adverse. But we pass; from these to cases directly in point. In the oases of Keedie and Hobbit v. London and Northwestern Railway, 4 Exch. 244, 254, (1849,) the defendants, empowered by act of parliament to construct a railway, contracted under seal with certain persons to make a portion of the line, and, by the contract, reserved to them- selves the power of dismissing any of the contractors' workmen for incompe- tence. The workmen, in constructing a bridge over a public highway, negli- gently caused the death of a person passing beneath, along the highway, by allowing a stone to fall upon him. In an action against the company, it was held that they were not liable, the terms of the contract making no difference. In the judgment of the Court, given by Baron RoUe, (now Lord Chancellor Cranworth,) alluding to the supposed distinction as to real property, the Court say : ' On full consideration, we have come to the conclusion that there is no such distinction, unless, perhaps, in cases where the act complained of is such as to amount to a nuisance ; and, in fact, that, according to the modern decisions, Bush u. Steinman must be taken not to be law, or, at all events, that it cannot be supported on the .ground on which the judgment of the Court proceeded.' Without sanctioning this doctrine, as it affects a public trust, it is very plain that it direct^ overrules the doctrine of Bush u. Steinman. The case of Knight v. Fox, 5 Exch. 721, (1850,) is, if possible, a stronger case in the same direction — a decision which it is plain could not have been made if the doctrines of Bush V. Steinman were the law of Westminster Hall. There are three cases remain- ing. In Overton u. Freeman, 11 C. B. 867, (1851,) A contracted to pave a district, and B entered into a subcontract with him to pave a particular street. A supplied the stones, and his carts were used to carry them. B's men, in the course of the work, negligently left a heap of stones in the street. The plaintiff fell over them and broke his leg. It was held, that A was not liable, even though the act complained of amounted to a public nuisance. And Maule, J., said, that the case of Bush v. Steinman ' has been considered as having laid down the law erroneously.' • " In Peachey v. Rowland, 13 C. B. 182, (1853,) the defendants contracted with A to fill in the earth over a drain which was being made for them across a por- tion of the highway from their house to the common sewer. A, after having filled it in, left the earth so heaped above the level of the highway as to consti- tute a. public nuisance, whereby the plaintiff, in driving along the road, sus- tained an injury. The case had this other feature : A few days before the " 584i AGENCY. [CH. XVII. property of a third person, or he should subsequently ratify or adopt the act, when done for his own use or benefit, he will be accident, and before the work was finished, one of the defendants had seen the earth so heaped over a portion of the drain ; but beyond this there was no. evidence that either defendant had interfered with or exercised any control over the work. It was held there was no evidence to go to the jury of the defendants' liability. Bush v. Steinman appears not to have been cited by counsel or alludeSlto by the Court. The still more recent case of Ellis v. Shef- field Gas Consumers' Co. 2 El. & Bl. 767, (1853,) cited by the counsel for the plaintiff, only determined that a party employing another to do an act unlawful in itself will be liable for an injury such act may, occasion — very familiar and well-settled law. Bush v. Steinman is no longer law in England. If ever a case can be said to have been overruled, indirectly a'hd directly, by reasoning and by authority, this has been. No one can have examined the case without feeling the difficulty of that clear-headed Judge, Chief Justice Eyre, of knowing on what ground its decision was put. It could not stand on the relation of master and servant. That relation did not exist. It could not stand upon the ground of the defendant having created or suffered a nuisance upon his own land to the injury of his neighbor's property. The lime was on the highway. There is no rule to include it but the indefinitely broad and loose one that a person shall be answerable for any injury which arises in carrying into execu- tion that which he has employed another to do — a rule which ought to have been and was expressly 'repudiated. The case of Leslie o. Pounds, 4 Taunt. 649, not cited in the argument, has some resemblance to the cases before referred to. This was an action against the landlord of a house leased, who, under contract with the tenant, who was bound to repair, employed workmen to repair the house, and superintended the work. Being remonstrated with by the commissioners of pavements as to the dangerous state of the Sellar, he promised to take care of it, and had put up some boards temporarily as a pro- tection to the public. They proved insufficient, and the plaintiff falling through, the landlord was held liable. The case was decided on the ground that the landlord was making the repairs, and that the workmen were employed by him, and were his servants. The suggestion is made that, whatever may be the result of the later-eases in England, the doctrine of Bush v. Steinman has been affirmed in this country. The cases in this Court we have already examined. The case of Bailey v. Mayor, &o. of New York, 3 Hill, 531, and 2 Denio, 433, was an action brought against the corporation of New York, for the negligent and unskilful construction of the dam for the waterworks at "CrotOn Kiver, by the destruction" f which, injury was occasioned to the mills of the plaintiff. ' The city was held responsible. This case rests well upon the ground that where persons are invested by law with authority to execute a work involving ordinarily the exercise of the right of eminent domain, and always affecting rights of third persons, they are to be liable fot the faithful execution of the power, and cannot escape responsibility by delegating to others the power with which they have been intrusted. Blake v. Ferris, 1 Seld.- 48, seems to CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 585 liable, as an original trespasser or wrongdoer.-^ [So, if the principal directs his servant to do some act, as to " go and conflict with Bailey v. Mayor, &c. of New York. Certain persons were per- mitted to construct a public sewer at their own expense ; they employed another person to do it at an agreed price for the whole work ; the pljiintiifs received an injury from the negligent manner in which the sewer was left at night. It was held that the persons who were authorized to make the sewer were not responsible for the negligence of the servants of the contractor. This case utterly rejects the rule, of Bush v. Steinman. The case of Stevens v. Armstrong, 2 Seld. 435, was this : A bought ^ heavy article of B, and sent a porter to get it ;'by permission of A, the porter used his tackle and fall ; through negligence, the porter suffered the article to drop, by which C was injured. It was held, that the porter acted as the servant of B, and that A was not answer- able. Yet this was an injury done on A's estate, by his permission, and in the use of his property. This case also rejects the rule of Bush v. Steinman. In Lesher y. Wabash Navigation Co. 14 111. 85, where a corporation was authorized to take materials to construct public works, and contracted with others to do the work and find the materials, and the contractors nevertheless took the mate- rials under the authority granted to the corporation, the corporation were held liaible therefor. If the Court could find that the materials were taken under the ^authority of the corporation, the case will stand perfectly well uiider the rule of Lowell u. Boston and Lowell Railroad, and Bailey v. Mayor, &c. of New York. The cases of Willard v. Newbury, 22 Verm. 458, and Batty v. Duxbury, 24 Vei-m. 155, rest on the same principles. In the case of Wiswall v. Brinson, 10 Ired. 554, the Court held an owner of real estate responsible for the negligence of the servants of a carpenter with whom the defendant had contracted, for a stipulated price, to remove a barn on to his premises. This case (in which, however, there was a divided judgment, Ruffin, C. J., dissenting, in a very able opinion,) certainly sustains the doctrine of Bush v. Steinman. De Forrest v. Wright, 2 Mich. 368, not cited, is in direct conflict with the rule of Bush v. Steinman. A public, licensed drayman was employed to haul a quantity of salt from a warehouse, and deliver it at the store of the employer, at so much a barrel. Whije in the act of delivering it, one of the barrels, through the care- lessness of the drayman, rolled against and injured a person on the sidewalk. It was held, that the employer was not liable for the injury, the drayman exer- cising a distinct and independent employment, and not being under the imme- diate control and direction or supervision of the employer. This is a well- lAnte, §244, 812, 313; Paley on Agency, by Lloyd, 305-307; Com. Dig. Trespass, C. 1 ; Bates v. Pilling, 6 Barn. & Cressw. 38 ; Story on Bailm. § 400, -402-404 ; Co. Litt. 20,7 a. Lord Coke, in 4 Inst. 317,.says, that, by "^ the com- mon law, he that r^ceiveth a trespasser and agreeth to a trespass after it is done, is no trespasser, unless the trespass wa? done to his use or for his benefit, and then his agreement subsequent amounteth to a commandment; for, in that case, Omnis ratihahitio retroirahitur et mandaio cequiparatur." 586 AGENCY. [CH. XVII, get" a neighbor's horse, expecting that the servant will obtain the owner's permission, but the servant, misunderstanding the direction, takes him without leave, the master is liable for any injury to the horse, while used by the servant in his master's business.^] So, although the relation of master and servant should not exist in a; particular case*; yet a party may, by his own conduct, make himself responsible for the neglect or im- proper act of the servant. Thus, although the hirer of job- horses and servants will not ordinarily be liable for the negli- != * - considered case, rejecting the rule of Bush v. Steinman, and sanctioning the result to which we have been brought in the case at bar. We have thus, at the risk of tediousness, examined the case at bar as one of authority and precedent. The clear weight and preponderance of the authorities at common law is against the rule given to the jury. The rule of the civil law seems to have limited the liability to him who stood in the relation of paterfamilias to the per- son doing the injury. Inst. lib. 4, tit. 5 ; §§1,2; 1 Domat. lib. 2, tit. 8, §1; Dig. lib. 9, tit. 2, § 1. Viewing this as a question, not of authority, but to be determined by the application to these facts of settled principles of law, upon ,what principle can the defendant be held responsible for this injury ? He did not himself do the act which caused the injury to the plaintiff. It was not done, by one acting by his command or request. It was not done by one whom he had the right to command, over whose conduct he had the efficient control, whose operations he might direct, whose negligence he might restrain. It was not an act done for the benefit of the defendant, and from the doing of which an implied obligation for compensation would arise. It was not an act done in the occupation of land by the defendant, or upon land to which, upon the facts, he had any title. To say that a man shall be liable for injuries resulting from acts done near to his land, is to establish a rule as uncertain and indefinite as it is manifestly unjust. It is to make him liable for that which he cannot forbid, prevent or remove. The case cannot stand on the relation of master and ser- vant. It cannot stand upon the ground of nuisance erected by the owner of land, or by his license, to the injury of another. It cannot stand upon the groiind of an act done in the execution of a work under the public authority, as the construction .of a railroad or canal, and from the responsibility for the careful and just execution of which public policy will not permit the corpora- tion to escape by delegating their power to others. It can only stand, where Bush V. Steinman, when carefully examined, stands, upon the general proposi- tion that a person shall be answerable for any injury which arises in carJ'ying into execution that which he has employed another to do — to adopt which would be to ignore all limitations of legal responsibility."] ' 1 Moir V. Hopkihs,'l6 111. 313. And see May v. Bliss, 22 Verm, 477 ; Fuller V. Voght, 13 111. 283. CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 587 gent acts of the servants, since the relation of master and ser- vant is now held not to exist between them ; yet the hirer may become so responsible by his own conduct, by taking the actual management of the horses, or ordering the servant to drive in a particular manner, which occasions the damage complained of, or by ordering his absence at the particular moment, when the damage occurs.^ § 4)56. But, although the principal is thus liable for the torts and negligences of his agent ; yet we are to understand the doctrine with its just limitations, that the tort or negligence occurs in the course of the agency. For the principal is not liable for the torts or negligences of his agent in any matters beyond the scope of the agency, unless he has expressly author- ized them to be done, or he has subsequently adopted them for his own use or benefit.^ Hence it is, that the principal is never liable for the unauthorized, the wilful, or the malicious, act or trespass of his agent.^ Thus, if a servant, while driving the carriage of his master, should wilfully or maliciously run. against or upset another carriage, or run down and injure a person in the road, or should jump from his box, and beat a person ; in all these cases, he, and not his master, would be liable for this wanton wrong and mischief.* [So, if a man's 1 Per Baron Parke, in delivering the opinion of the Court, in Quarman v. Burnett, 6 Mees. & Welsh. R. 499, 507. See Laugher v. Pointer, 5 B. & Cressw. 547 ; Story on Bailm. § 403 a. 2 Ante, § 319, 464, 455, and note ; Paley on Agency, by Lloyd, 305-307 ; 4 Inst. 317; Mr. Holt's remarks, ante, 454, note; Croft u. -Alison, 4 Barn. & Aid. 590; Story on Bailm. § 400, 402, 403; Bac. Abridg. Master and Ser- vant, L. ♦ 3 Harris ?>. Nicholas, 5 Munford, 483 ; Brown v. PurriancS, 2 Harris & Gill, 316 ; Puryear v. Thompson, 5 Humphreys, 397 ; Kerns v. Piper, 4 Watjs, 222 ; Kichmond S. Co. v. Vanderbilt, 1 Hill, 480. ^McManusu. Crickett, 1 East, R. 106; Smith on Merc. Law, 69, 70, (2d edit.) ; Id. B. 1, ch. 5, § 3, p. 127-130, (3d edit. 1843) ; Croft v. Alison, 4 Barn. & Aid. 590; Bacon's Abridgment, Master and Servant, L. The judgment of Lord Kenyon, In McManus v. Crickett, 1 East, R. 106, may be considered as the leading judgment on this subject, and states the distinctions with fulness and accuracy. J have, therefore, cited it at large. " This, (said his lordship,) is an 588 AGENCY. [CH, XVII. carman, after finishing his work for the day, instead of putting up his horse and cart, as it was his duty to do, drives a fellow- aotion of trespass, in wliich the declaration charges, that the defendant with force and arms, drove a certain chariot against a chaise, in which the plaintiff was driving in the king's highway, by which the plaintiff' was thrown from hia chaise and greatly hurt. At the trial, it appeared in evidence, that one Brown, a servant of the defendant, wilfully drove the chariot against the plaintiff's chaise, but that the defendant was not himself present, nor did he in any man- ner direct or assent to the act of the .servant; and the question is, if, for this wilful and designed act of the servant, an action of trespass lies against the de- fendant, his master ? As this is a question of very general extent, and as cases were cited at the bar, "where verdicts had been obtained against masters for the misconduct of their servants under similar circumstances, we were desirous of looking into the authorities on the subject, before we gave our opinion ; and, after an examination of all, that we could find, as to this point, we think, that this action cannot be maintained. It is a question of very general concern, and has been often canvassed ; but I hope at last it will be at rest. It is said in Bro. Abr. tit. Trespass, pi. 435 : ' If my servant, contrary to my will, chase my beasts into the soil of another, I shall not be punished.' And in 2 Eoll. Abr. 553 : ' If my servant, without my notice, put my beasts into another's land, my servant is the trespasser, and not I ; because, by the voluntary putting of the beasts there, without my assent, he gains a special property for the time, and so to this purpose they are his beasts.' I have looked into the correspondent part in Vin. Abr., and, as he has not produced any case contrary to this, I am satis- fied with the authority of it. And in Noy's Maxims, ch. 44 : ' If I command my servant to distrain, and he ride' on the distress, he shall be punished, not I.' And it is laid down by Holt, C. J., in Middleton v. Fowler, Salk. 282, as a gen- eral position, ' that no master is chargeable with the acts of his servant, but when he acts in the execution* of the authority given him.' Now, when a servant quits sight of the object, for which he is employed, and, without having in view his master's orders, pursues that, which his own malice suggests, he no longer acts in pursuance of the authority given him, and,, according to the doctrine of Lord Holt, his master will mot be answerable for such act. Such, upon the evi- dence, was the present case ; and the technical reason, in 2 Roll. Abr. with re- spect to the s^jpep, applies here ; and it may be said, that the servant, by wilfully driving the chariiff against the plaintiff's chaise, without his master's assent, gained a special property for the time, and so to that purpose the chariot was the servant's. This doctrine does not at all militate with the cases, in which a master has been holden liable for the mischief arising from the negligence or unskilfulness of his servant, who had no purpose but the execution of his mas- ter's orders. But the form of those actions proves, that this action of trespass cannot be maintained ; for, if it can be supported, it must be upon the ground, that, in trespass, all are principals: But the form of those actions shows, that, where the servant is in point of law a trespasser, the master is not chargeable as CH. XVJI.] THIRD PERSONS AGAINST PRINCIPALS. 589 servant to his home, without his master's leave, and in return- ing' runs over a traveller, the master is not responsible.-' So, such, though liable to make a compensation for the damage consequential from his employing of an unskilful or negligent servant The act of the master is the employment of the servant ; but from that no immediate prejudice arises to those, who may suffer from some subsequent act of the servant. If this were otherwise, the plaintiffs, in the cases mentioned in 1 Lord Raym. 739,- (one, where the servants of a carman, through negligence, ran over a boy in the streets, and maimed him ; and the other, where the servants of A, with his cart, ran against the cart of B, and overturned it, by which a pipe of wine was spilled,) must have been nonsuited from their mistaking the proper form of. action, inbringing an action upon the case, instead of an action of trespass.; for there is no doubt of the servants in those cases being liable as trespassers, even though they intended no mischief; for which, if it were necessary, AVeaver V. Ward, in Hobart, 134, and Dickenson v. Watson, in Sir Thomas Jones, 205, are authorities. But it must not be inferred from this, that, in all cases, where an action is brought against the servant for improperly conducting his master's carriage, by which mischief happens to another, the action must be trespass- Michael V. AUestree, in 2 Levinz, 172, where an action on the case was brought against a man and his servant, for breaking a pair of horses in Lincoln's Inn Fields, where, being unmanageable, they ran away with the carriage and hurt the plaintiff's wife, is an instance to show, that trespass on the case may be the proper form of action. And, upon a distinction between those cases, where the mischief immediately proceeds from something, in which the defendant is him- self active, and where it may. arise from the neglect or other misconduct of the- party, but not immediately, and which, perhaps, may amount only to a nonfea- 1 [Mitchell u.'Crassweller, 16 Eng. Law and Eq. K. 448, and see Bennett's note. The true principle was well and clearly laid down in the late case of Church V. Mansfield, 20 Connecticut, 284, (1850.) In that case, it was said : " In order to render a master liable for a trespass committed by his servant, it is necessary to show, that the acts constituting such trespass, were done while the servant was acting under the authority of the master. If the master was ignorant of such acts, no presumption of his having authorized them will arise from their' having been done for his benefit, and from his silence regarding them. There- fore, where A employed B to make coal on A's land, and transport it with A's teams and carts, to A's furnace, for bis benefit ; and C brought trespass against A, for B's unnecessarily making roads on C's land, and passing thereen, with teams and carts, to A's furnace ; on the trial, there was no evidence that A authorized the acts complained of, or knew that B had committed, or intended to commit, them, unless this might be inferred from the facts above stated ; and the Court instructed the jury, that if B had done these acts, under these circum- stances, the presumption was, that they were done by the authority and under the direction of A ; it was held, that this was a misdirection, for which a new trial should be granted."] AGENCY. 50 590 AGENCY, [CH. XVII. wher'e a servant kindled a fire on his master's land, and by hife direction, but afterwards during his master's absence, and with- out his orders, carried some fire to another field, to kindle a fire there, and by so doing burnt the plaintifiF's grass, the master was held not liable.-'] So, the master of a ship is not liable for a wilful act of injury, done to another ship by, his crew, although he would be for such an injury, done by their negligence.^ [So, where a person employed by a railway com- saiice,.-we held, in Ogle v. Barnes, 8 Term Rep. 188, that the plaintiff was entitled to recover. The case of Savignao and Roome, 6 Term Rep. 125, ■which was much pressed, as supporting this action, came before the Court on a motion in arrest of judgment ; and the only question decided by the Court was, that the plaintiff could not have judgment, as it appeared, that he had brought an action on the case for that, which in law was a trespass ; for the decla- ration there stated, that the defendant, by his servant, wilfully drove his coach against the plainti2''s chaise. Day v. Edwards, 5 Term Rep. 648, was also mentioned, which was an action on the case, in which the declaration charged ' the defendant personally with furiously and negligently driving his cart ; that, by, and through the furious, negligent, and improper conduct of the defendant, the said cart was driven and struck against the plaintiff's carriage ; and, on de- murrer, the Court were of opinion, that the fact complained of was a trespass. And, in the last case that was mentioned, of Brucker v. Fromont, 6 Term Rep. 659, the only point agitated was, whether evidence of the defendant's servant having negligently managed a cart supported the declaration, which imputed that negligence to the defendant ; and the Court with reluctance held, that it did, on the authority, of a precedent in Lord Raymond's Reports, 2G4, of Tuber- ville and Stamp. In none of these cases, was the point now in question, de- cided ; and those determinations do not contradict the opinion we now entertain, which is, that the plaintiff cannot recover, and that a nonsuit must be entered." 1 [Wilson V. Peverly, 2 N. H. R. 548. But if the injury happens as a conse- quence resulting from acts done by the master's commands, he cannot shield himself from responsibility, by showing that his" instructions were not strictly pursued by his servant in doing the act. Thus, in Armstrong v. Cooley, 5 Gil- man, 509, (1849,) where the plaintiff's grain and hay were destroyed, by reason of a fire- on the prairie, set by a servant of the defendant by his directions, he was not permitted to avoid responsibility, by showing that he directed the fire to be set only when the wind was in a particular direction, but that it was in fact set when the wind was in a different direction.] 2 Bowcher v. Noidstrom, 1 Taunt. R. 568. See, as to how far ship-owners are liable in cases of pilots, Lucy v. Ingram, 6 Mees. & Welsh. 802 ; The Maria, 1 Rob. New R. 95 ; Martin v. Temperiey, 4 Q. B. R. 298 ; The (English) Jurist, Feb. 25, 1843, No. 320, p. 150 ; The Agricola, Id. p. 157 ; Post, § 656 a, and note. CH. XVir.] THIRD PERSONS AGAINST PRINCIPALS. 591 pany, wrongfully arrests a traveller for the non-payment of his passage-money, but without any instructions from the company so to do, and without any authority in the company to order such arrest, or any ratification by them,-^ the company are not liable.2] § 456 a. From what has been already stated, the master of a ship, and the owner also, is liable for any injury, done by the negligence of the crew employed in the ship.^ The same doc-- trine *vill apply to the case of a pilot, employed by the master or owner, by whose negligence any injury happens to a third person or his property; as, for example, by a collision with another ship, occasioned by his negligence. And it will make no difference in the case, that the pilot, if any is employed, is required to be a licensed pilot ; provided the master is at liberty to take a pilot, or not, at his pleasure ; for, in siich a case, the master acts voluntarily, although he is necessarily required to select from a particular class.* On the other hand, if it is compulsive upon the master to take a pilot, and, a fortiori, if he is bound to do so under a penalty, then, and in such case, neither he, nor the owner, will be liable for injuries occasioned by the negligence of the pilot ; ^ for, in such a case, the pilot cannot be deemed properly the servant of the master or the 1 Eastern Counties Eail way Co. u. Brown, 2 Eng. Law & Eq. R. 406. 2 Koe V. The Birkenhead &c. Railway Co. 7 Eng. Law and Eq. R. 546 ; 7 Exch. E. 36. 3 Ante, § 315-317,453. * The Neptune 2d, 1 Dodson, Adm. R. 467 ; The Maria, 1 Rob. New Adm. E. 95 ; Atfy-Gen'l v. Case, 3 Price, R. 302 ; Abbott on Shipp. Pt. 2, ch. 7, § 8, 9, and cases there cited, (5th edit, by Serg. Shee) ; Id. Addenda, p. 599 ; Lucey v. Ingram, 6 Mees. & Welsh. 302. s Abbott on Shipp. Pt. 2, ch. 7, § 8, (6th edit, by Shee,_1840) ; Atfy-Gen'l ». Case, 3 Price, R. 302 ; Carruthers v. Sidebottom, 4 Maule & Selw. 77 ; The Maria, 1 Rob. New Adm. R. 95 ; Lucey v. Ingram, 6 Mees. & Welsh. 302 ; The Agricola, The (English) Jurist, Feb. 2q, 1843, No. 3-20, p. 157 ; Smith v. Gondry, 1 Howard's Sup. Court E. 28, S. C. 17 Peters, R. 20; The Protector, 1 W. Robin. New Adm. R. 45 ; Bennet v. Moira, 7 Taunt. R. 258 ; Mcintosh v. Slade, 6 Barn. & Cressw. 657 ; The ship The Duke of Sussex, 3 W. Robin. New Adm. R. 270, 272. 592 AGENCY. [CH. XVII. owner, but is forced upon tKem ; and the maxim, Quifacit per alium facit per se, does not apply.-' In short, the rule of the common law seems to be, that, wherever a man is absolutely compellable by law to employ a particular individual in a given matter, the law, which compels him to employ that individual, takes away his responsibility, arising from any act of that in- dividual.^ But, if he is only compellable to select from a class of privileged persons, there, he will be responsible for the acts of the persons, whom he selects and employs. ThereforeWt has been held, that, where a barge-owner in London employed persons as watermen to navigate on the Thames, none being allowed by law to act as such, except freemen of the city, or apprentices of freemen or of their widows ; there, .if he selects or employs any watermen, they are to be deemed his servants, and he is res'ponsible for their negligence, although he must select from the class, if he employs any in the business'; and, even if he is not at liberty to employ his own servants to navi- gate the river and carry his own goods, unless thej- are free* men, or apprentices of freemen or of their widows, belonging to their class.^ The distinction between this case and the case of the pilot is certainly a very nice one ; but it turns apparently upon this ground, that, in the case of the pilot, the master is bound to take one, and, in the other case, the barge-owner is only restricted, as to the class_ of persons, whom he shall em- ploy, not being compellable to employ any. Unless the dis- tinction were allowed to prevail, the owner or master of a British ship would not be responsible f^r the negligence of the crew, since they are compellable to select the crew from a par- ticular class, that is, three fourths, at least, of the crew must be British seamen;* ilbid. 2 Ibid. 3 Martin v. Temperley,4 Q.B.Kep.298; The (English) Jurist, Feb. 25, 1842, No. 320, p. 150. But see The Agricola, Id. p. 157, 158 ; Milligan v. Wedge, 12 Adolph. &EI1. R. 737. * Ibid. It is observable, that the cases above cited generally turn upon the distinction, ■whether the master or employer is absolutely compellable or not to CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 503 § 457. We have already had occasion, also, to notice another exception, or, more properly speaking, another limitation of take a pilot, or to employ a pai-ticular person (not merely one of a class, from which he may select,) or not. The British Pilot Acts generally, but not univer- sally,' make it compulsive, under a penalty, upon the master of a ship to take a pilot, and in such cases exempt the master and owner from responsibility for the negligence of the pilot. But, in some cases, the master has an option to employ a pilot or not ; and, in case he elects not to employ one, he is by law required to pay the pilotage fee, or a part thereof, to any pilot who offers himself, and whose services are declined. ' In these latter cases, the question has arisen, whether the master and owners are responsible for the negligence of the pilot, if one is taken by the election of the master. The present learned Judge of the High Court of Admiralty (Dr. Lushington) has held, that there is no differ- ence in principle, whether the master or owner is compellable, under a penalty, to take a pilot, and whether he has an election to take or not, but if he declines to take one, then he is to pay pilotage ; and he deems the pilotage, so paid, as in the nature of a penalty. But there seems great reason to doubt the correct- ness of this doctrine. In the first place, the penalty is properly and strictly designed, as a punishment for an offence, in neglecting or refusing to comply with a positive duty imposed by law ; and the penalty is in no just sense to be treated as a commutation for liberty to commit the offence, and to pmit the duty. In the other case no such positive duty exists, and it is left to the choice of the master to take a pilot or not, according to his own discretion. The taking of the pilot is, then, a voluntary act, and not a compulsive act. In the next place, the compensation to be paid to the pilot, or the pilotaige allowed him, in case of the master's declining to employ him, is not a penalty, or in the nature of a penalty, to compel the party to take a pilot, but is more properly to be treated as a renumeration of the pilot for keeping himself at all times ready to perform the duty of a pilot, when required, and to encourage him to encounter the hazards and perils incident to such a service, and to secure adequate skill and ability for the safety and protection of vessels navigating tha coasts and harbors of the country. It is, therefore, a compensation, pro opera ellabore, founded in a sound publie policy, to secure protection, and prompt assistance, and ready skill, to all persons, who may require them in navigation, rather than a punish- ment for a dereliction of duty. See the ship Duke of Sussex, 3 W. Robins. New. Adm. Eep. 270, 272. In America, certainly, no such doctrine has ever been inculcated ; and the owners and masters of ships are held liable for the negligence of pilots, in cases, where they are not compellable to take them; although; if not taken, half pilotage, or some other proportion of pilotage, is required to be paid to the pilot who offers. Williamson v. Price, 16 Martin, K. 399 ; Yates v. Brown, 8 Pick. E. 23. See also the opinion of Sir John NichoU in The Girolamo, 3 Hagg. Adm. R. 169, 172. Indeed, in the case of Williamson. V. Price, 16 Martin, R. 399, the Supreme Court of. Louisiana went much fur- ther, and seems lo have held, that, even if the taking of a pilot on board was a compulsive duty, and not optional, stiU the owners were liable for the negligence 50* 59 4 AGENCY. [CH. XVII. the doctrine of the responsibility of principals for the malfea- sances, and negligences, and torts, of their agents and servants, in the course of their employments, and that is in the case of public agents.^ The latter are responsible for their own per- sonal malfeasances and negligences only, and not for the mal- feasances and negligences of the persons, who are employed under them, if they are persons of reasonable skill and discre- tion, and the agents themselves have not directed or cooperated in the wrong.^ This doctrine is founded partly upon consider- ations of public policy, and partly results from the fact, that these subordinates are often appointed by another independent authority, and are not controllable by, or immediately respon- sible to, the public. agents.^ § 458. The Roman law, in like manner, in many cases, made the principal liable for the torts and negligences of his agents and servants.* It has been supposed, that the Roman law never was as extensive in its reach as our law ; in other words, that it never did create a general liability of principals for the wrongs and negligences of their agents, but limited it to particular classes of cases ; and that the liability of princi- of the pilot actuallj- employed. See also Bussy v. Donaldson, 4 Dall. R. 206, which seems to have adopted the same doctrine. And this seems also to have been the opinion entertained by Lord Stowell, upon general principles ; The Neptune 2d, 1 Doison, Adm. R. 46 7 ; and by Sir John NichoU in The Girolamo, 3 Hagg. R. 169. But see the able note of Mr. Curtis, on this subject, in his work on Merchant Seamen, p. 195, 196, note. Even under the British Pilot Acts, in order to exempt the owner from responsibility, the collision, or other act, occasioning the damage, should be exclusively caused by the negligence, unskilfulness, or misconduct of the pilot alone ; for, if it be in part caused by the unskilfulness, misconduct, or negligence of the master or mariners, the owner will still remain liable therefor. The Protector, 1 Rob. Adm. R. 45 ; The Diana, 1 W. Rob. New Adm. K. 131 ; Smith v. Cowdry, 17 Peters, K, 20; S. C. 1 Howard's Sup. Ct. R. 28. 1 Ante, § 320-322. 2 Ante, §320-322, 455. See Lord Abinger's remarks in Winterbottom v. Wright, 10 Mees. & Welsh. 109, 114, 115. 3 Ante, § 321, 322, and notes. 4 Ante, § 318. CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 595 pals, SO far as it is recognized in that law, is mainly dependent upon the Praetor's edict, and was not worked out of the orig- nal materials of the Roman jurisprudence. Whether this sup- position he correct or not, it is clear, that, in certain classes of cases, the Praetor, by his edict, either introduced a new and more rigid liahility, or he gave to that, which previously ex- isted, an additional force, and in some respects, a more onerous obligation. Thus, masters and employers of ships, innkeepers and stable-keepers, were made responsible for the safety and due delivery of the goods committed to their charge ; and, of course, if the loss or damage were occasioned by the negligences or wrongs of their servants^ and not by themselves, their re- sponsibility was not varied.' Ait Prcetor ; Nautce, Cawpones. 1 Ante, § 318 ; Story on Bailm. § 464, 565 ; Dig. Lib. 4, tit. 9, 1. 1, § 3 ; Heinecc. Pand. Lib. 4, tit. 8, § 546-548 ; Pothier, Pand. Lib. 4, tit. 9, n. 1, 2, 8 ; 1 Domat, B. 1, tit. 16, § 1, art. 3, 5 ; Id. § 2, art. 2, Id. § 3, art. 1. Lord Stair, in his Institutes, (B. 1, tit. 13, § 3,) seems manifestly to have considered this edict, as introducing, for the first time, the liability of principals for the acts and defaults of their agents, and of making that liability more rigid, in many cases, upon the ground of public policy. His language is : " In the civil law there is a depositation of a special nature, introduced by the edict ; naut», caupones, stabularii, ' quod cujusque salvum fore receperint,'nisi restituent, in eos judicium dabo.' By this edict, positive law, for utility's sake, hath appointed, that the custody of the goods of passengers in ships, or strangers in inns, or in stables, shall be far extended beyond the nature of depositation, which obliges only for fraud, or supine negligence, them who have expressly contracted for their own tact. But this edict, for public utility's sake, extends it ; first, to the restitution of the goods of passengers and voyagers, and reparation of any loss or injury done by the mariners, or servants of the inn or stable. Whereas, by the com- mon law, before that edict, in this and such other cases, there was no such obligement ; much less arc persons now obliged for their hired servant's fact or fault, except facts, wherein they are specially intrusted by them. But, because the theft and loss of goods is very ordinary in ships, inns, and stables, therefore this edict was introduced for the security of travellers. Secondly, the edict extends this obligement, even to the damage sustained by (the act of) other passen-rers or strangers in the ship, inn, or stable, for the which, the master of the ship, innkeeper, or keeper of the sUble, could be no ways obliged, but by virtue of this edict. Thirdly, they were made liable for the loss or theft of such things absolutely from which they were free by no diligence, but wef e not liable for accident or force ; that is, sea-hazard must always be fex- 596 AGENCY, [CH. XVII. Stalularii, quod cujusque salvum fore receperint, nisi restituent, in eos judicium daho? The reason assigned is, that the rule is well founded in public policy and convenience, and is the only means to prevent losses by fraud or connivance.^ A fortiori, if the act was done with the consent of the principal, he was liable. Quamquam, si ipse alicui e nautis committi jussit, sine dulio debeat ohligari? The liability of the principal for the acts and negligences of the agents, as well as for his own, is fully proclaimed in the comments of the Roman law. Thus, for example, it is said, as to the owners or em- ployers of ships ; Et sunt quidam in navibus, qui custodies gratia navibus prceponuntur, vawjivTuiKeg, id est, navium custo- des et dietarii. Si quis igitur ex his receperit, puto in exerci- torem dandam actionem; quia is, qui eos hujusmodi officio cepted." See also 1 Bell, Comm. § 398-402, 500, 505, (4t]i edit.) ; Id. p. 463- 476, (5tli'edit.) See Story on Bailm. § 400-402, 458, 464-466. There are certainly passages in the Digest, which make principals responsible for the faults and negligences of their agents and servants, beyond those specially pointed out in the PriEtor's edict. This responsibility seems, however, to have been limited to cases, where the principal was guilty of some negligence in employing negli- gent and improper agents and servants. Thus, in the Digest, the opinion of Pomponius is approved : " Videamus, an et servorum culpam, et quoscunque induxerit, prasstare conductor debeat ? Et quatenus prsestat ? - TJtrum, ut servos noxse dedat, an vero suo nomine -teneatur? Et adversus eos quos- in- duxerit, utrura pra33tabit tantum actiones, an quasi ob propriam culpam tenebi- tur ? Mihi ita placet, ut culpam etiam eorum, quos induxit,pr8estet suo nomine, etsi nihil convenit, si tamen culpam, in inducendis admittit, quod tales habuerit, vel SU09, vel hospites." Digest, Lib. 19, tit. 2,1. 11 ; Potliier, Pand. Lib. 19, tit. 2, n. 30, 31. See also Dig. Lib. 9, tit. 2, 1. 29, § 9, 11 ; Pothier, Pand. Lib. 19, tit. 2, u. 31. See Story on Bajlm. § 401 ; 1 Domat, B. 1, tit. 4, ^ 2, art. 5, 6 ; Id. B. 2, tit. 8, § 1, art. 1-9 ; Id. § 4, art. 8. Again : Qui " columnam transportan- dam conduxit, si ea dum toUitur, aut portatur, aut reponitur, fracta sit, ita id peri- culum prtestat, si qua ipsius, eorumque, quorum opera uteretur, culpa accident. Culpa autem abest, si omnia facta sunt qua? diligentissimus quisque observaturus fuisset." Dig. Lib. 19, tit. 2, 1. 25, § 7 ; Pothier, Pand. Lib. 19, tit. 2, n. 32. 1 Dig. Lib. 4, tit. 9, 1. 1 ; Pothier, Pand. Lib. 4, tit. 9, n. 1, 2 ; 1 Domat, B. 1, tit. 16, § 1, art. 2, 4, 6 ; Id. § 2, art. 2 ; Id. § 3, art. 1-3 ; Heinecc. ad Pand. Lib. 4, tit. 8, § 546-548, 551 ; Ante, § 318. 2 Ante; § 318, and note ; 1 Domat, B. 1, tit. 16, § 1, art. 7. 3 Dig. Lib. 4, tit. 9, 1. 1, § 2 ; Pothier, Pand. Lib. 4, tit. 9, n. 2 ; Ante, § 318, note (2) ; 1 Domat, B. 1, tit. 16, § 1, art. 5. CH. XVII.J THIRD PERSONS AGAINST PRINCIPALS. 597 preeponit, committi eis permittit} The same doctrine is also applied to innkeepers. Caupo prcestat factum eorutn, quiin ed caupond, ejus cauponce exercendce causd. Hi sunt. Item eorum, qui habitomdi causd ihi sunt. Viatorum autem fac- tum non prcestat.^ The same doctrine is also applied to stable-keepers. Caupones autem ei stabularios ceque eos ac- cipiemus, qui cauponam vel stabulum ezercent, institoresve eorum.^ JSodem modo tenentur caupones et stabularii, quoexer- centes negoUum suum recipiunt. Cceterum, si extra negotium receperint, non tenebuntur.* And the whole doctrine is sum- med up in another passage, where it treats of the liability of such principals for the frauds, deceits, and thefts of their agents or servants, without their knowledge. Item exercitor navis,aut cauponce, aut stabuli, de dolo aut furto, quod in navi, aut cau- pond, aut stabulo, factum erit,' quasi ex maleficio teneri videtur, si modo ipsius nullum estmaleficium, sed alicujus- eorum, quorum opera navem aut cauponam aut stabulum exercet. Cum enim neque ex maleficio, neque ex contractu, sit adversus cum conr ■ stituta hcee actio, et aliquatenus culpce reus est, quod opera nialorum hominum uteretur ; ideo, quasi ex maleficio, teneri videtur fi Here we have the rule of the liability of owners and 1 Dig. Lib. 4, tit. 9, 1. 1, § 3 ; Pothier, Pand. Lib. 4, tit. 9, n. 2 ; 1 Domat, B- ^ 1, tit. 16, § 2, art. 1-4. 2 Dig. Lib. 4, tit. 5, ,1. 1, § 6 ; Pothier, Pand. Lib. 47, tit. 5, n. 3 ; 1 Domat, B. 1, tit. 16, § 1, art. 3, 6. 3 Dig. Lib. 4, tit. 9, 1. 1, § 5 ; Pothier, Pand. Lib. 4, tit. 9, n. 2 ; 1 Domat, B. l.tit. 16, §l,art. 3. 4 Dig. Lib. 4, tit. 9, 1. 3, § 2 ; Pothier, Pand. Lib. 4, tit. 9, n. 3 ; Post, § 459. 5 Inst. Lib. 4, tit. 5, § 3 ; 1 Domat, B. 1, tit. 16, § 1, art. 7 ; Id. § 2, art. 1-4. The same rule is laid down in the Digest. " In eos, qui naves, cauponas| stabula exercebunt, si quid a quoquo eorum, quosve ibi habebunt, furtum factum esse dicetur, judicium datur ; sive furtum ope, consilio exercitoris factum sit; sive eorum cujus, qui in ea navi navigandi causa esset. Navigandi autem ctasa aocipere debemus eos, qui adhibentur, ut navis naviget, hoc est, nautas." Dig. Lib. 47, tit. 5, Introd. and 1. 1 ; Pothier in Pand. Lib. 47, tit. 5, n. 1, 3. " Quas- tunque de furto diximus, eadem et de damno debent intelligi. Non enita kubitari oportet, quin is, qui salvum fore recipit, non solum a furto, sed etiam a idamno reeipere videatur." Dig. Lib. 4, tit. 9, 1. 5, § 1 ; Pothier, Pand. Lib. 4, tit. 9, n. 8 ; Dig. Lib. 14, tit. 1, 1. 1, § 2; Pothier, Pand. Lib. 14, tit. 1, n. 6 ; 598 AGENCY. [CH. XVII. employers of ships and stable-keepers, and the reason for it. They are responsible for the tort and fraud of their agents and servants, although they are not parties to it, quasi ex maleficio, as if they themselves were wrongdoers, because they have made use of the services of such bad agents and servants in their employment. § 459. And here, again, the like limitations to this liability were recognized in the Roman law, as exist in ours. The principal was not liable for the torts Or negligences of his agents or servants, except in cases within the scope of their employment. Thus, for example, the innkeeper was liable only for the. torts or thefts, or damages of his servants, done or committed in his inn, or about the business thereof; and not for such torts or thefts committed in other places. Modem modo teneniur caupones et stahularii, quo exercentes negotium suum recipiunt. Cceterum, si extra negotium receperint, non tenehuntur} So, the owner or employer of a ship was not liable for the torts or thefts, or damages of the mariner, unless they were done or committed in the ship, or about the business thereof. Debet exercitor omnium nautarum suorum, sive liberie sive servi, factum prai'stare. Nee immerito factum eorum prces tat, cum ipse eos suo periculo adhihuerit. Sed non alias prcestat, quam si in ipsa nave damnum datum sit. Cceterum, si extra navem, licet a nautis, non prcestabit. ^ § 460. Similar principles were applied in the Roman law to the ordinary agents employed in the common business of trade and commerce, called Institores ; ^ and also to the cases of do- Heinecc. Pand. Ps. 1, Lib. 4, tit. 8, §551-554; Story on Bailm. § 464-468 ; Ersk. Inst. B. 3, tit, 1, § 28, 29 ; Id. B. 3, tit. 3, § 43-45 ; 1 Bell, Comm. § 398- 406, (4th edit.) ; Id. p. 465-476, (5th edit.) ; 1 Domat, B. 1, tit. 16, Introd.; Story on Bailm. § 401-. 1 Dig. Lib. 4, tit. 9, 1. S, § 2 ; Pothier, Pand. Lib. 4, tit. 9, n. 3 ; Ante, §458. 2 Dig. Lib. 4, tit. 9, 1. 7 ; Pothier, Pand. Lib. 47, tit. 5, n. 1 ; 1 Domat, B. 1, tit. 16, §1, art. 7; Id. § 2, art. 1-4. 3 Ante, § 8 ; 1 Domat, B. 1, tit. 16, § 3, art. 1 ; Dig. Lib. 14, tit. S, 1. 5, § 1- 9 ; Pothier en Oblig. n. 121, 453, by Evans ; Id. in French edit. n. 121, 489. CH. XVII.] THIRD PERSONS AGAINST PRINCIPALS. 599 mestic servants and persons belonging to the family. ]?r(Btor ait de his, qui dejecerini^ vel effuderint ; Unde in eiim locum, quo vulgo iter fiet, vel in quo consistetur, dejectum vel effusum quid erit, quantum ex ed re damnum datum factumve erit, in eum, qui ihi hahitaverit, in duplum judicium daho} Si servus, insciente domino, fecisse dicetur, in judicio adjiciam, aut nox- am dedere? These seem to be the most important cases, spe- cially and positively provided for in the Roman law. That law does not seenti to have recognized, to the full extent, the general maxim, Respondeat superior, inculcated by our law.^ § 4i61. The modern nations of continental Europe have adopted the doctrine of the Roman law to its full extent, and some of them, at least, seem to have carried it further. Pothier 1 Dig; Lib. 9, tit. 3, 1. 1 ; Id. 1. 27, § U ; 1 Blaclt. Coram. 431 ; Inst. Lib. 4, tit. 5, § 1 ; Ersk. Inst. B. 3, tit. 3, § 46 ; Dig. Lib. 19, tit. 2, 1. 11 ; 1 Domat, B. 2, tit. 8, § l,art.. 1-9. 2 Dig. Lib. 9, tit. 3, 1. 1 ; Pothier, Band.- Lib. 9, tit. 3, n. 1 ; Inst. Lib. 4, tit. 5, §1,2. 3 See 1 Stair's Inst. B. 1, tit. 13, § 3 ; Ante, 454, note. Mr. Holt, in the note already cited in § 454, note 1, says, that, " In the civil law the liability was nar- rowed to the person standing in the relation of a paterfamilias to the wrongdoer.'' It is also observable, that Mr. Le Blanc and Mr. Marshall in arguing the case of Bushi). Steinman, 1 Bos. & Pull. 405, assert, that " The liability of tbe principal to answer for his agents is founded in the superintendence and control, -which he is supposed to have over them, citing 1 Black. Comm. 431.) In the civil law, that liability was confined to the person standing in the relation of paterfamilias to the person doing the injury." For which they cite Inst. Lib. 4, tit. 5, § 1, and Dig. Lib. 9, tit. 3. These citations clearly prove, that the paterfamilias is liable for the wrongful acts and negligences of his domestics ; but they do not prove, negatively, that other persons were not liable, as principals, in any other cases, forAe wrongs and faults of their agents. The text shows, that, in many other cases, besides that of a paterfamilias, the principal was, in the civil law, liable for such wrongs and faults. The learned counsel seem to have misunder- stood the true meaning of the text of Blackstone's Commentaries, which by no means insists upon any such limitations. Mr. Justice Heath, in the same case, seems to have entertained the notion, that the Roman law was, or might be, as limited as the learned counsel supposed. But he added, " Whatever may be the doctrine of the civil law, it is perfectly clear, that our law carries such liability much farther." S. C. 1 Bos. & Pull. 409. See also Story on Bailm. § 464- 469. 600 AGENCY. [CH. XVII. lays down the rule in the following broad terms : " Not only is the person, who has committed the injury, or been guilty of the negligence, obliged to repair the damage, which it has oc- casioned; those who have any person under their authority, such as fathers, mothers, tutors, preceptors, are subject to this obligation, in respect of the acts of those who are under them, when committed in their presence, and generally when they could prevent such acts, and have not done so. But, if they could not prevent it, then they are not liable ; Nullum crimen patitur is, qui non prohihet, quum prohibere non potest fl. 109, ff. de reg. jur.J ^ Even when the act is committed in their sight, and with their knowledge; Culpa caret, qui scit, sed prohihere non potest (I. 50, ff. d. tit. J ^ Masters are also answerable for the injury occasioned by the wrongs and negligence of their servants. They are even so, when they have no power to pre- vent them, provided such wrongs or injuries are committed in the exercise of the functions, in which the servants are employed by their masters, although in the master's absence. This has been established, to render masters careful in the choice of those whom they employ. With regard to their wrongs, or neglects, not committed in these functions, the masters are not responsible."^ The doctrine of the Roman law seems to be followed with more scrupulous exactness in the laws of Spain* and of Scot- land,^ where, in treating of the liability of principals for the acts of their agents, the specific enumerations of the Roman law are to be found followed out. 1 Dig. Lib. 50, tit. 17,1. 109. a Dig. Lib. 50, tit. 17, L 50. 3 Pothier on Oblig. by Evans, n. 121, 453, (in the French edit.n. 121, 489.) 4 2 Moreau & Carlt. Partidas, 5, tit. 8, 1. 26, p. 743 ; Story on Bailm. § 465- 468. s Ersk. Inst. B. 3, tit. 3, §43-46 ; 2 Bell, Comm. § 398-406, (4th edit.) ; Id. p. 465-476, (6th edit.) ; 1 Stair, Inst. B. 1, tit. 13, § 3. CH. XVIII.] DISSOLUTION OF AGENCY. 601 CHAPTER XVIII. DISSOLUTION, OR DETERMINATION, OF AGENCY. § 4f62. We come, in the next place, to the consideration of the manner, in which an agency may be dissolved or deter- mined, and the effect thereof. And a dissolution of the agency may take place in two different ways ; first, by the act of the principal or agent, and, secondly, by operation of law. The former takes place, wherever there is a revocation by the prin- cipal, or a renunciation by the agent. The latter may take place in various ways ; first, by the termination of the agency by the mere efflux of time, or by the expiration, of the period, or by the occurrence of the event, to which, and by which, it was originally limited ; secondly, by the change of the state or condition of the principal, or of the agent ; thirdly, by the death of either party ; and, fourthly, by the natural cessation of the power, in consequence of the extinction of the subject- matter, or of the principal's power over it, or by the complete execution of the power.^ § 463. First. Let us consider the dissolution of an agency by the revocation of the principal. In general, the principal 1 See Pothier, de Mandat, n. 100 ; 2 Kent, Comnj. Lect. 41, p. 643, (4th edit.) Pothier, in his edition of the Pandects, (Lib. 17, tit. 1, tertia pars, Introd. to n. 75.) " Potissimae causse, ex quibus mandatum solvitur, hie sunt ; mora man- datarii ; mors mandatoria ; si mandator revocaverit mandatum j si mandatarius mandato renuntiaverit." Mr. Thomson, in speaking of the law of Scotland, says : " Mandates terminate, in general, by the death of the mandant or mandatary ; by the insanity of the latter ; by revocation ; by renunciation ; or by the sequestration of the mandant, which vests his estate, and all the rights connected with it, in his creditors. The mandatary's bankruptcy does not appear to be inconsistent with the continuance of his' mandate." Thomson on Bills of Exchange, p. 224, 225, (2d edit. 1836.) AGENCT. 51 602 AGENCY. [CH. XVIII. has a right to determine or revoke the authority given to his agent at his own mere pleasure ; for, since the authority is conferred by his mere will, and is to be executed for his own benefit and his own purposes, the agent cannot insist upon act- ing, when the principal has withdrawn his confidence, and no longer desires his aid.-^ This is so plain a doctrine of common sense and common justice, that it requires no illustration or reasoning to support it. [And although the agent is appointed under seal, it has been held that his authority may be revoked by parol.^] At what time the revocation will take efiect, and the modes by which it is accomplished, will presently come under our consideration.^ S 464i. The Civil Law contained an equally broad doctrine. Si mandavero emgendam pecuniam, deinde volimtatem miita- vero, an sit mandati actio vel mihi, vel hceredi meo ? M ait Marcellus ; Cessare mandati actionem, quia extinctum est man- datum, finitd voluntate^ The same principle has infused itself into the jurisprudence of modern Europe, as, indeed, it could not fail to do, since it is but an application of a maxim, founded upon the natural rights of men in all ages, in regard to their own private concerns, when the law has not interfered to pro- hibit the exercise of them.^ 8 4)Q5. Such is the general rule ; and it strictly applies in all cases where the authority has not been actually exercised at all by the agent.^ For, in such a case, the principal may exer- cise his power of revocation at any moment. So, if it has 1 Paley on Agency, by Lloyd, 170, 184-188; 2 Liverm. on Agency, 308, (edit. 1818) ; Story on Bailm. § 202, 207-209 ; United States v. Jarvis, Daveis, R. 289. 2 Brookshire v. Brooksliire, 8 Iredell, 74. 3 Post, § 470-475. 4 Dig. Lib. 17, tit. 1,1. 12, § 16 ; Pothier, Pand. Lib. 17, tit. 1, n. 79 ; 1 Domat, B. 1, tit. 15, § 4, art. 1 ; HeinecG. Elem. Pand. Lib. 17, tit. 1, § 238 ; Inst. Lib. 3, tit. 27, § 9. 5 Pothier on Oblig. by Evans, n. 474, (in French edit. n. 510) ; 1 Bell, Comm. § 413, (4th edit.) ; Id. p. 488-490, (5th edit.) ; Ersk. Inst. B. 3, tit. 3, § 40; 1 Stair, Inst. B. 1, tit. 12, § 8. 6 2 Liverm. on Agency, 309, (edit. 1818.) CH. XVIII.] DISSOLUTION OF AGENCY. 603 been in part put in the course of execution, but not to such an extent as to become obhgatory between the parties ; as, if pre- Uminary proceedings only have been instituted.^ Thus, for example, if a broker should enter into a verbal agreement to sell goods for his principal, and the sale is within the reach of the statute of frauds, (which requires the agreement to be in writing,) and, before the broker signs the written agreement of sale, the principal should revoke his authority, the revoca- tion will have full validity.^ So, if the sale respects lands, and is within the statute of frau(ffl| the same rule will, under the like circumstances, apply. So?" if an insurance broker should negotiate a policy of insurance for his principal, and, before it is completed, the principal should dissent, and repudiate the transaction, the revocation will be complete and operative.^ Upon a similar ground, if a broker should deliver money or goods to a bailee, to be delivered to a third person, he may coun- termand the order at any time before the delivery thereof to the third person, or his assent thereto.* But after the third person has assented thereto, the bailment is not countermand- able, if there is a valuable consideration for the bailment.^ § 466, But let us suppose that the authority has been in part actually executed by the agent ; in that case the question will arise, whether the principal can revoke the authority, either in the whole or as to the part which remains unexecuted. The true principle would seem to be, that if the authority admits of severance, or of being revoked, as to the part which is unexecuted, either as to the agent or as to third persons, then, and in such case, the revocation will be good, as to the iPost, §466, 467. 2 Paley on Agency, by Lloyd, 185 ; Farmer v. Robinson, 2 Campb.K. 339, n. 3 Paley on Agency, by Lloyd, 185 ; Warwick v. Slade, 3 Campb. K. 127 ; Bristow V. Porter, 2 Stark. E. 50. * Story on Bailm. § 207-210; Scottborn «. South Staffordshire Railway, 8 Exch. R. 341 ; 3 Chitty on Comm. and Manuf.'223, 224. 5 Hodgson V. Anderson, 3 Bam. & Cressw. 842; Creager ».Link, 7 Md. R. 267 ; 2 Story on Equity Jurisp. § 1041-1047 ; Post, § 477. 604 AGENCY. [CH. XVIII. part unexecuted, but not as to the part already executed. But if the authority be not thus severable, and damage will thereby happen to the agent, on account of the execution of the author- ity pro tanto, there the principal will not be allowed to revoke the unexecuted part, or, at least, not without fully indemnifying the agent.^ As to the rights of the other contracting party in this last case, they are not affected by the revocation ; but he will retain them all, as well as all the remedies, consequent upon any violation of them, in the same manner as if no revocation has taken place.^ * § 467. Perhaps there is ncFdirect authority in our law for the support of this proposition.^ But it stands so clearly approved by natural justice*, as well as by the principles of the Roman law and the jurisprudence of modern commercial nations, that it is difficult to resist it. Thus, it is laid down in the Roman law, as a principle of broad and general justice : Nemo potest mutare consilium suum in alterius injuriam} And the very case is put, of a purchase authorized and after- wards revoked. Si manddssem tihi, utfundum emeres, postea scripsissem, ne emeres ; tu antequam scias me vetuisse, emisses; mandati tibi ohligatus ero, ne damno officiatur is, qui suscipit mandatum.^ The reason here assigned, for making the sale obligatory, has great force ; for damage might otherwise happen to the agent. Pothier says, that if the agent, when he. receives knowledge of the revocation of his authority, has already commenced executing the business, he is nevertheless 1 1 Bell, Comm. § 413, (4th edit.) ; Id. p. 489, (5th edit.) ; Post, § 483, note, 494 ; United States v. Jarvis, Daveis, K. 274. 2 See 3 Chitty on Comm. and Manuf. 223, 224 ; 2 Story on Eq. Jurisp. § 1041-1047; Hodgson v. Anderson, 3 Barn. & Cresaw. 842; 1 Domat, B. 1, tit. 16, § 3, art. 9. 3 3 Chitty on Comm. and Manuf. 223, 224 ; a Kent, Comm. Lect. 41, p. 643, (4th edit.) ; Story on Bailm. § 208, 209; 1 Bell, Comm. § 413, (4th edit.) ; Id. p. 489, (5th edit.) But see United States v. Jarvis, Daveis, K. 274. * Dig. Lib. 50, tit. 17,1. 75. 6 Dig. Lib. 17, tit. 1, 1. 15 ; Pothier, Pand. Lib.' 17, tit. 1, n. 89. CH. XVIII.] DISSOLUTION OF AGENCY. 605 authorized to do whatever may be a necessary duty or conse- quence of that which he has commenced, ffaire ce, qui est une suite necessaire de ce qu'il avoit commence,J and the principal will be bound thereby.' § 468. Domat lays down the doctrine in the following terms : " The power and charge of a proxy, or other agent, expire by the change of the will of the person who made choice of him. For this choice is free, and he may revoke his order whenever he thinks fit ; provided he makes known his revocation to the person whom he revokes, and that all things be still entire. But if the proxy, or other agent, had already executed the order, or begun to execute it, before he knew any thing of the revocation, it would be without effect, as to what had been already executed ; and he will be indemnified as to any obligation into which the said order may have engaged him."^ So, Erskine lays it down, as the law of Scotland, that to justify a revocation, matters must remain entire. " For, (says he,) if the mandatary has executed a part of his com- mission, and thereby becomes concerned that it should not be revoked ; if, for instance, he should, on the faith thereof, have obliged liimself to purchase goods from a third party, the mandant cannot effectually revoke his commission till he relieve the mandatary from such engagements." ^ § 469. It follows, from what has been said, that, when the power of an agent is revoked or terminated, that also of any substitute, appointed by and under him, it being a dependent power, is ordinarily also revoked. This is a natural result from the presumed intention of the principal, who, in with- drawing or terminating the authority of his agent, withdraws, by impHcation, the derivative authority of his substitute, whether it is expressly provided for in the original delegation 1 Pothier, de Mandat, n. 121. 2 1 Domat, B. 1, tit. 15, § 4, art. 1, by Strahan. 3 Ersk. Inst. B. 3, tit. 3, §40 ; 1 Bell, Comm. § 413, (4th edit.) ; Id. p. 488- 490, (5tli edit.) 51* 606 AGENCY. [CH. XVIII. or not.^ It is also a result of law ; for, as the agent could not, after the revocation, do the act personally, neither could the substitute, acting in his stead, since the source of the authority has ceased to exist. And, accordingly, Pothier assigns this as the reason of the rule.^ Exceptions may exist; as where, from the express terms, or from the nature of the power, it is a just inference that the principal intends that the substitute shall continue to act for him, notwithstanding the revocation of the authority of his immediate agent.' In many cases of the appointment of public officers, it is expressly provided that their deputies shall continue to act, notwithstanding the re- moval, or death, or incapacity, of the superior officer who appointed them. The same presumption may arise in some cases of a private agency. Thus, for example, the removal, or death, or incapacity, of the master of a ship, who has appointed the mate, will not be understood to revoke the appointment of the latter ; for it is ordinarily the duty of the mate to act as master, whenever the place of the master is vacant from any cause whatsoever, and no other substitute is provided by the owner. § 470. In the next place, let us consider, at what time, and under what circumstances, the revocation, by the act of the principal, takes effect. And here the rule of our law is equally dear, and comprehensive, and just. As to the agent himself, subject to what has been already stated, it takes effect from the time when the revocation is made known to him ; and as to third persons, when it is made known to them ; and not before. Until, therefore, the revocation is so made known, it is inoper- ative. If known to the agent, as against his principal, his rights are gone ; but, as to third persons, who are ignorant of > Pothier, de Mandat, n. 112 ; 2 Liverm. on Agency, 307, 308, (edit. 1818) r Post, § 496. 2 Pothier, de Mandat, n; 112. 3 Post, § 490. CH. XVIII.] DISSOLUTION OF AGENCY. 607 the revocation, his acts bind both himself and his principal.^ [Thus, where an agency, constituted by writing, was revoked, but the written authority was left in the hands of the agent, and he subsequently exhibited it to a third person, who dealt with him as agent, on the faith of it, without any notice of the revocation, the act of the agent, within the scope of the author- ity, was held to bind the principal.^] Hence it is, that, if a clerk or agent is employed to sign, indorse, or accept, bills and notes for his principal, and he is discharged by the principal, if the discharge is not known by persons dealing with him, notes and' bills subsequently signed, indorsed, or accepted, by' the clerk or agent, will be binding upon the principal.^ Indeed, this is but another application of the known maxim of law and equity, that, where one of two innocent persons must suffer, he shall suffer, who, by his confidence, or silence, or conduct, has misled the other.* § 4i7l. Pothier has stated the reason in succinct, but accu- rate terms, illustrating it by referring to the case of payments, made in ignorance of the revocation, where the principal is clearly bound. " The reason, (says he,) is, that the mistake of the debtor, who pays after the revocation of the procuration, arises rather from the fault of the creditor, who ought to apprize him of the revocation, than of the debtor himself, who, seeing an authority to receive, and having no reason to suppose that it has been revoked, has a sufficient ground for making the payment accordingly. Therefore, it is not just, that he should suffer from this mistake, and be liable to a second payment ; the 1 Beard v. Kirk, 11 New Hamp. R 397. 2 Salte V. Field, 5 Term K. 215, per Buller, J. ; Anon. v. Harrison, 12 Mod. 346 ; Paley on Agency, by Lloyd, 188; Id. 570 ; Hazard v. Treadwell, 1 Str. R. 506 ; 2 Liverm. on Agency, 306, 310, (edit. 1818) ; 2 Kent, Comm. Lect. 41, p. 644, (4th edit.) ; Morgan v. Stell, 5 Binn. R. 305 ; Story on Bailm. § 208 ; 1 Bell, Comm. 413, (4th edit.); Id. p. 488-490, (5th edit.); Bowerbank v. Morris, Wallace, R. 126 ; Beard v. Kirk,. 11 New Hamp. R. 397. 3 3 Chitty on Comm. and Manuf. 197. ♦ Ante, § 127, 443. 608 AGENCY. [CH. XVIII. creditor, who alone is in fault, is the only person, who should suJ[Fer." -^ § 472. The same persuasive doctrine is fully recognized in the Roman law. Sed, si quis mandaverit, ut Titio solvam, deinde vetuerit eum .accipere, si ignorans prohibitum eum acci- pere solvam, liberabor. Sed si sciero, non liheralor? Si Titium omnibus negotiis meis prceposuero, deinde vetuero eum, ignoran- tibus debitorilus, administrare negotia mea ; debitores ei sol- vendo, liberabuntur. Nam is qui omnibus negotiis suis aliquem proponit, intelligitur etiam debitoribus mandare, ut procuratori solvant? Dispensatori, qui, ignorante debitore, remotus est ab actu, recte solvitur. Ex voluntate enim Domini ei solvitur ; quam si nescit mutatam, qui solvit, liberatur} The converse proposition, that a payment to an agent, who has no authority, or whose authority is exceeded, or known to he revoked, is invalid, as is clearly maintained.^ De quo palam proscriptum fuerit, Ne cum eo contrahatur, is prcepositi loco non habetur. Non enim permittendum erit cum Institore contrahere. Sed, si quis nolit contrahi, prohibeat ; cceterum, qui prceposuit, tenebi- tur ipsa prapositione.^ § 47s. Domat sums up the doctrine in the following lan- guage : " The power of factors and agents is determined by their revocation. But if, after they are recalled, they treat with persons, who knew nothing of their being recalled, what they shall have transacted will oblige the master, unless the revocation has been published, if it was the custom so to do, or that by other circumstances the person, who treated with 1 Pothier on Oblig. by Evans, n. 80, n. 474, (in French edition, n. 80, 510.) 2 Dig. Lib. 46, tit. 3, 1. 12, § 2 ; Pothier, Pand. Lib. 46, tit. 3, n. 31 ; 1 Domat, B. 1, tit. 16, § 3, art. 9. 3 Dig. Lib. 46, tit. 3, 1. 34, § 3 ; Pothier, Pand. Lib. 46, tit. 3, n. 31. 4 Dig. Lib. 46, tit. 3, 1. 51 ; Pothier, Pand. Lib. 46, tit. 3, n. 31 ; Inst. Lib. 3, tit. 27, § 10. 5 Dig. Lib. 46, tit. 3, 1. 34, § 4 ; Pothier, Pand. Lib. 46, tit. 3, n. 33 ; Dig. Lib. 14, tit. 3, 1. 11, § 2 ; Pothier, Pand. Lib. 14, tit. 3, n. 7. 6 Dig. Lib. 14, tit. 3, 1. 11, § 2 ; Pothier, Pand. Lib. 14, tit. 3, n. 7. CH. XVIII.] DISSOLUTION OF AGENCY. 609 the factor, might have known, that he ought not to have treated with him." -^ Indeed, this may be said to be the universal rule laid down in all modern jurisprudence.^ § 474. In the next place, as to the modes, by which an author- ity may he revoked. It may be express, as by a direct and formal declaration, publicly made known, or by an informal writing, or by parol ; or it may be implied from circumstances.® What circumstances will, or will not, amount to a revocation, or to notice of a revocation, by implication, cannot be stated with any definite certainty. But there are some acts, which admit of little or no doubt. Thus, for example, if the princi- pal appoints another person to do the same act, this will ordi- narily be construed to be a revocation of the power of the former agent.^ The same presumption existed in the civil law. Julianus ait ; Eum, qui dedit diver sis temporihus procu- ratores duos, posteriorem dando priorem prohihuisse videri.^ The same doctrine is recognized in the French law.® This presumption, however, arises only in cases where there is an incompatibility in the exercise of the authority by both ; for, if the original agent has a general authority, and the second agent is appointed only for a special object or purpose, there, the revocation will operate only pro tanto, and not as a total revo- cation. The maxim of the Roman law is as follows : In Mo jure generi per speciem derogatur, et illud potissimum hahetiir, quod ad speciem directum est.'' On the other hand, if the 1 1 Domafc, B. 1, tit. 16, § 3, art. 9, by Strahan. 2 Pothier, de Mandat, n. 121 ; 1 Bell, Coram. § 413, (4th edit.) ; Id. p. 488- 490, (5th edit.) 3 Story on Bailm. § 207, 208; Morgan v. Stell, 5 Binn. 305; Copeland u. Merc. Ins. Co. 6 Pick. K. 198; Smith on Merc. Law, p. 131, 132, (3d edit. 1843.) 4 Morgan v. Stell, 5 Binn. K. 305 ; Copcland v. Merc. Ins. Co. 6 Pick. R. 198 ; Story on Bailm. § 208. 5 Dig. Lib. 3, tit. 3, 1. 31, § 2 ; Pothier, Pand. Lib. S, tit. 3, n. 27 ; 1 Domat, B. 1, tit. 15, § 4, art. 2. 6 Pothier, de Mandat, n. 114, 115. 1 Di". Lib. 50, tit. 17, 1. 80 ; Pothier, do Mandat, n. 115-117. 610 AGENCY. [CH. XVIII. first authority is special and the second authority is general, it seems to have been thought, that the presumption ought -to be the other way, namely, that the second is not designed to oper- ate as a revocation of the first.^ But this may probably de- pend upon very nice considerations. § 475. A revocation may also arise by implication or pre- sumption from various other circumstances. Thus, if the prin- cipal should intrust another with authority to collect certain debts for him, and should deliver him at the time the vouchers or instruments, negotiable or otherwise, by which such debts are evidenced, and which are to be delivered to the debtors, when paid ; and afterwards the principal should take back the vouchers, or other instruments, that will be an implied revoca- tion of the authority of the agent.^ So, if the principal should himself collect the debts, that also will be an implied revoca- tion. § 476. We have already stated, that the general rule is, that the principal may revoke the authority of his agent at his mere pleasure.^ But tliis is open to some exceptions, which, however, are entirely consistent with the reason, upon which the general rule is founded. One exception is, when the prin- cipal has expressly stipulated, that the authority shall be irre- vocable, and the agent has an interest in its execution. Both of these circumstances must concur ; for, although in its terms an authority may be expressly declared to be irrevocable ; yet, if the agent has no interest in its execution, and there is no valid consideration for it, it is treated as a mere nude pact, and is deemed in law to be revocable, upon the general principle, that he, who alone has an interest in the execution of an act, is also entitled to control it. § 477- But, where an authority or power is coupled with an interest, or where it is given for a valuable consideration, or 1 Pothier, de Mandat, n. 15. 2 Ibid. 118. 3 Ante, § 462. CH. XVIII.] DISSOLUTION OF AGENCY. 611 where it is a part of a security, there, unless there is an express stipulation, that it shall he revocable, it is, from its own nature and character, in contemplation of law, irrevocable, whether it is expressed to be so upon the face of the instrument, confer- ring the authority, or not.^ Thus, for example, if a power of attorney, to levy a fine is executed, as a part of a sequrity to a creditor, the power is irrevocable.^ So, if a letter of attorney to sell a ship is taken as a security upon a loan of money, it is irrevocable.^ So, if the principal assigns all his effects for the 1 Smith on Merc. Law, 71, 72, (2d edit.) ; Id. B. 1, ch. 5, § 4, p. 131, 132, (3d edit. 1843) ; 2 Liverm. on Agency, 308, 309, (edit. 1818) ; Paley on Agency, by Lloyd, 184, 185 ; 3 Chitty on Comm. and Manuf. 223, 224 ; Hunt u. Rousmaniere's Adm'r, 2 Mason, R. 244; Id. 342; S. C. 8 Wheat. R. 177; 1 Peters, R. 1 ; Bromley v. Holland, 7 Ves. 28 ; Lepard v. Vernon, 2 V. & Beam. 51 ; Watson v. King, 4 Campb. R 272, 273 ; 2 Kent, Comm. Leot. 41, p. 643, 644, (4th edit.) ; Gaussen v. Morton, 10 B. & Cressw. 731 ; Story on Bailm. § 209. See also Metcalf u. Clough, 2 Mann. & Ryl. 178; Smyth v. Craig, 3 Watts & Serg. 14 ; Smart v. Sanders, 5 Manning, Granger & Scott, 895; Knapp v. Alvord, 10 Paige, R. 205; Marfield w. Douglas, 1 Sandford, Superior Ct. R. (N. Y.) 360. This doctrine was much considered in the case of Hunt V. Rousbaniere's Adm'r, 8 Wheat. R. 174 ; S. C. 1 Peters, R. 1 ; and the distinction between a mere power, and a power coupled with an interest, was there clearly pointed out. On that occasion, Mr. Chief Justice Marshall explained, what was meant by a jiower coupled with an interest, and said : " It becomes necessary to inquire, what is meant by the expression ' a power coupled with an interest ? ' Is it an interest in the subject, on which the power is to be exercised or is it an interest in that which is produced by the exercise of the power ? We hold it to be clear, that the interest, which can protect a power after the death of a person, who creates it, must be an interest in the thing itself. In other words, the power must be engrafted on an estate in the thing. The words themselves would seem to import this meaning. 'A power coupled with an interest,' is a power, which accompanies, or is connected with, an interest. The power and the interest are united in the same person. But, if we are to understand by the word 'interest,' an interest in that which is to be produced by the exercise of the power, then they are never united. The power, to pro- duce the interest, must be exercised, and by its exercise is extinguished. The power ceases, when the interest commences, and, therefore, cannot, in accurate law language, be said to be ' coupled' with it." See also Com. Dig. Attor7uy, C. 9, 10. 2 Walsh V. Whitcomb, 2 Esp. R. 565 ; Paley on Agency, by Lloyd, 184. 3 Hunt V. Rousmaniere's Adm'r, 2 Mason, R. 244 ; Id, 342 ; S. C. 8 Wheat. R. 174; 1 Peters, R. 1. 612 AGENCY. [CH. XVIII. benefit of his creditors, and gives the assignee a power of attor- ney to collect and receive all debts and outstanding claims, the power is irrevocable.-' So, if a power of attorney to sell lands is given to a creditor to pay his debts out of the proceeds of the sale, the power is irrevocable.^ So, a remittance to an agent of money or goods, to be delivered to a creditor in dis- charge of his debt, is irrevocable, after the creditor has as- sented thereto, and signified his assent to the agent.^ The ground of this doctrine is, that a party shall not be at liberty to violate his own solemn engagement, or to vacate his own security by his own wrongful act ; for that would be to enable him to perpetrate a fraud upon innocent ' persons, who have placed implicit confidence in him, which is against the clearest principles of justice and equity. " But a power of. attorney, al- though irrevocable by the party, and although founded upon a valuable consideration, or given as a' security, is nevertheless, as we shall presently see, revoked by the death of the party, unless it be also coupled with an interest.* § 478. Secondly. In the next place, the agency may be determined by the renunciation of the agent. This renuncia- tion may be before any part of the authority is executed, or when it is in part executed.^ But, in either case, if the agency is founded upon a valuable consideration, the agent, by renounc- ing it, makes himself liable for the damages which his princi- pal may sustain thereby.^ If the agency is purely voluntary and gratuitotis, there, according to our law, the principal will not be entitled to any damages for its non-execution. But if it was in part executed, and then renounced, and the principal 1 Walsh V. Whitcomb, 2 Esp. R. 565. 2 Gaussen v. Morton, 10 Barn. & Cressw. 731. 3 Hodgson V. Anderson, 3 Barn. & Cressw. 842 ; Creager v. Link, 7 Md. E. 267 ; 2 Story on Equity Jurisp. § 1041-1043 ; Ante, § 465. * Post, § 488, 489. S Story on Bailm. § 202. <> Story on Bailm. § 436 ; Jones on Bailm. 101 ; 3 Black. Comm. 157 ; Elsee V. Gatward, 5 Term K. 143 ; Thome v. Deas, 4 Johns. K. 84. CH. XVIII.] DISSOLUTION OF AGENCY. 613 sustains damages thereby, the agent will be held responsible therefor, upon the known distinction between nonfeasance and misfeasance, in cases of gratuitous agency.-' But in all cases, where the agent renounces his agency, he would seem to be bound to give notice thereof to the principal ; and if he does not, and damage is thereby sustained, it may, perhaps, if the omission be fraudulent, give rise, even in our law, to a claim for damages, even though it be a case of gratuitous agency.^ § 479. The Roman law, upon this point, diflfered in some respects from our law. In that law, if an agent even gratui- tously undertook to perform a particular business or act, he was bound to perform it, if he was able to perform it, and no just excuse intervened. And if he did not, and the principal sus- tained any damage thereby, the agent |Was responsible therefor.^ Sicut autem liherum est, (says the Digest,) mandatum non sus- cipere, ita susceptum consummare oportet, nisi renunciatum sit. Renunciari autem ita potest, uf integrum jus mandatori reser- vetur, vel per se, vel per alium, eandem, rem commode expli- candi, aut si redundet in eum captio, qui suscepit mandatum. Et quidem, si is, cui mandatum est, ut aliquid mercaretur, mer- catus non sit, neque renunciaverit, se non empturum, idque sud, non alterius culpa fecerit, mandati actione teneri eum convenit. Hoc amplius tenehitur, (sieuti Mela quoque scripsit,) si eo tem- pore per fraudem renunciaverit, cum jam rede emere non pos- sit.^ Again : Ut, si susceptum non impleverit, tenetur.^ And again : Ad comparandas merces data pecunid, qui mandatum suscepit^'Jide ruptd, quanti interest mandatoris, tenetur.^ And again : Qui mandatum suscepit, si potest id explere, deserere promissum officium non debet ; alioquin, quanti mandatoris in- 1 Story on Bailm. § 9, 164-1 72. 2 See Dig. Lib. 17, tit. 1, 1. 22, § 11, cited post, § 479. 3 Story on Bailm. § 164-172 ; Inst. Lib. 3, tit. 27, § 11 ; 1 Domat, B. 1, tit. 15, § 4, art. 3-6. * Dig. Lib. 1 7, tit. 1 , 1. 22, § 1 1 ; Pothier, Pand. Lib. 1 7, tit. 1 , i.. 25 ; Id. n. 80. 5 Dig. Lib. 17, tit. 1, 1. 5, § 1 ; Pothier, Pand. Lib. 17, tit. 1, n. 25. 8 Cod. Lib. 4, tit. 35, 1. 16 ; Pothier, Pand. Lib. 17, tit. 1, n. 25 ; Id. n. 80. AGENCT. 52 614i AGENGY. [CH. XVIII. iersit, damnabitur} If he could not perform the act, he was bound to give notice to the principal, if practicable ; otherwise, he was responsible in damages. Si vero intelligit, explere se id officium non posse, id ipsum, cum primum poterif, debet mandatofi nunciare ; ut is, si velit, alterius operd utatur. Quod si, quum possit nunciare, cessaverit, quanti mandatoris intersit, tenehitur. Si aliqud ex causa non poterit nunciare, securus erit.^ But if the principal sustained no damage by the renunciation, then the agent was not liable in any action on account of his renunciation. Mandavi, ut negotia gereres ; si nihil deperierit, quamvis nemo gesserit, nulla actio est; aut si alius idonee gesserit, cessat actio mandati. Et in similibus hoc idem erit probandum? The same rule seems to prevail in those modern nations which have derived the basis of their jurisprudence from the Roman law.* § 480. Thirdly. In the next place, as to the revocation of the agency by operation of law. This, as we have seen, may arise in various ways. And first, where the agency terminates by the expiration of the period, during which it is to exist and to have effect.® Thus, for example, if an agency is created hy the principal to endure for a year, it becomes extinct when that year has expired. So, if a person, about to depart on a voyage, should, by power of attorney, appoint an agent to manage his aflPairs until his return home, there, upon his return home, the authority would expire by its own limitation.^ Indeed, Pothier ' i Dig. Lib. 17, tit. 1, 1. 27, § 2; Pothier, Pand. Lib. 17, tit. l,n. 26; Id. ii. 80. 2 Ibid. 3 Dig. Lib. 17, tit. 1,1. 8,§ 6; Pothier, Pand. Lib. 17, tit. l,n. 27; Inst. Lib. 3, tit. 27, §11. * Ersk. Inst. B. 3, tit. 3, § 40 ; 1 Dontat, B. 1, tit. 15, § 3, art. 1, 12 ; Id. § 4, art. 3-5 ; Pothier, de Mandat, n. 38-45 ; Story on Bailm. § 164. 5 3 Chitty on Comm. and Manuf. 233 ; Blackburn v. Scholes, 2 Campb. R. 341-344 ; Comm. Dig. Attorney, B. 9, 10 ; 1 Bell, Comm. § 413, (1), (4th edit.) ; Id. p. 488-490, (5th edit.) ; 2 Liverm. on Agency, 307, (edit. 1818) ; Paley on Agency, by Lloyd, 188, 189 ; Smith on Merc. Law, 72, (2d edit.) ; Id. p. 131, 132, (3d edit. 1843) ; Dickinson «. Lilwall, 4 Campb. R. 279. 6 1 Bell, Comm. § 413, (4th edit.) ; Id. p. 488-490, (5th edit.) ; Pothier on Oblig. II. 474, (n. 509 of French edit.) ; Pothier, de Mandat, n. 119. CH. XVIII,] DISSOLUTION OF AGENCY. 615 contends, that if a power is given by a person, going abroad, to an agent to manage his affairs, without containing, any words of limitation as to its duration, it ought to be presumed to be revoked upon his return home, unless there are some circum- stances in the case to repel that presumption ; such as allowing the agent to act in the agency, without objection, after his return home.^ § 481. Fourthly. A revocation by operation of law may be, by a change of condition, or of state, producing an inca- pacity of either party .^ This proceeds upon a general rule of law, that the derivative authority expires with the original authority, from which it proceeds. The power of constituting an agent is founded| upon the right of the principal to do the business himself; and, when that right ceases, the right of creating an appointment, or of continuing the appointment of an agent, already made, for the same purpose, must cease also.^ In short, the derivative authority cannot generally mount higher, or exist longer, than the original authority. Thus, if an unmarried woman should, as principal, execute a power of attorney, or give any other authority to an agent, and after- wards she should marry, the marriage would, ipso facto, amount to a revocation of the power ; for a married woman has, in general, by our law, no right to authorize an agent to do any act in her name, or to engage in any contract for her, or to dispose of any of her property.* So, if a principal should become insane, that would, or might, operate as a suspension, or revocation of the authority of his agent, during the continu- ' PotHer,'de Mandat, n. 119. See also Id. n. 112; 2 Liverm. on Agency, 307, (edit. 1818.) 2 Story on Bailm. § 206 ; PotHer, de Mandat, n. Ill, 112. 3 2 Liverm. on Agency, 306, (edit. 1818) ; Hunt v. Eousmaniere's Adm'r, 8 Wheat. K. 174, 202-204 ; Pothier, de Mandat, n. 103. 4 2 Liverm. on Agency, 307, (edit. 1818) ; Anon. 1 Salk. 117, 399 ; 2 Kent, Comm. Lect. 41, p. 645, (4th edit.) ; White v. Gifford, 1 KoU. Abridg. 331, title Authoritie, E. pi. 4 ; Anon. W. Jones, E«p. 388 ; Charnley v. Winstanly, 5 East, R. 266 ; Story on Bailm. § 206. 616 AGENCY. [CH. XVIII. ance of the insanity ; ^ for the party himself, during his insan- ity, could not personally do a valid act ; and his agent cannot, in virtue of a derivative authority, do any act for and in the name of his principal, which he could not lawfully do for him- self.2 1 Davis V. Lane, 10 N. H. K. 156. 2 Hunt V. Kousmaniere's Adm'r, 8 Wheat. R. 174, 201-204. This is clear, where the party's lunacy is established under an inquisition, or where he is put under guardianship. But some doubt seems to be entertained, whether, before such inquisition or guardianship, there is any implied suspension or revocation of the agent's authority. Mr. Bell (1 Bell, Comm. § 413, p. 395, 396, 4th edit. ; Id. p. 488-490, 5th edit.) considers insanity, not so established, to be no suspen- sion or revocation of the authority. He says, in the fifth edition, (the language in the fourth edition slightly differs,) " Insanity is not an implied natural ter- mination to a mandate ; nor is there an existing will to recall the former ap- pointment ; nor is the act notorious, by which the public may be aware of such failure of capacity.. It was to this interesting question chiefly, that the meta- physical discussion, to which I have already alluded, was applied. But the strong practical ground of good sense, on which the . question was disposed of, as relative to the public, was, that insanity is contradistinguished from death by the want of notoriety ; that all general delegations of power, on which a credit is once raised with the trading world, subsist in force to bind the grantor, till re- called by some public act or individuar notice ; ana that, while they continue in uninterrupted operation, relied on by the public, they are, in law, to be held as available generally ; leaving -particular cases to be distinguished by special cir- cumstances of mala fides. The question does not appear to have occurred in England ; but the opinion of very eminent English counsel was taken in a case, which was tried in Scotland, and they held the acts of the procurator to be effectual to the public against the estate of the person, by whom the procuratory was granted." He states, in his note, the Scottish case, in the following words : " Pollock against Paterson. The case, in which this question occurred to be tried, was compromised (10th December, 1811, 16 Faculty Decis. 369) after the first decision given on the question. The opinions of the judges are peculiarly worthy of perusal ; not being confined to the narrow state of the question, as it occurred technically, but extending to a large and comprehensive discussion of the general question, as to the effect of insanity on such powers." In another note, he refers to the opinions of counsel taken in England, in these words : "After stating the terms of the procuration, and that, after the insanity of the grantor, the procurator had continued to carry on the business of a banker for the principal, the question put was, ' Whether, in these circumstances, the trans- actions of Mr. John Paterson, under his father's procuration, are good to those, who transacted with him, from the date of it to the period of stopping.' The answer by Sir Vicary Glbbs, (afterwards Lord Chief Justice of the Common Pleas,) Sir Samuel Komilly, and Mr. Adam, (now Lord Chief Commissioner of CH. XVIII.] DISSOLUTION OE AGENCY. 617 § 4)82. Upon similar grounds, the bankruptcy of the prin- cipal operates as a revocation of the authority of his agent, touching any rights of property, of which he is devested by the bankruptcy ; ^ for the bankrupt thereby ceases to be the owner, and consequently is incapable of personally passing any title to it ; and the act of his agelit cannot have any higher validity.^ But, as to other rights and property, which do not pass by the bankruptcy, but remain personally in the bankrupt, (as, for ex- ample, the rights and property which he holds as trustee, or as guardian, or as executor,) the authority of his agent will not be suspended or revoked by his bankruptcy.^ So, if he has, before his bankruptcy, executed a bill of sale of a ship, and the Scottish Jury Court,) was, ' We think they are good.' " Mr. Chancellor Kent, in his Commentaries, inclines to the same opinion. 2 Kent, Comm. Lect. 41, p. 645, (4th edit.) ; Smith on Merc. Law, p. 132, (3d edit. 1843.) In Wallis V. Manhattan Bank, 2 Hall, E. 495, it was held by the Court, that the lunacy of a person, who has executed a power of attorney, does not operate to revoke it, at least, until the fact of his lunacy has been properly established by an inquisition. Would a deed, or a sale, executed personally by a party mani- festly insane at the time, be valid ? If not, can his agent be in a better con- dition, if the agent is to execute the deed, or do the act, in the name of his principal, and not in his own name ? But see Thdnison on Bills, p. 226, 227, (2d edit. 1836,) cited at large ; Post, § 494, note. 1- See Ogdeh v. Gillingham, Baldwin, 38. 2 2 Kent, Comm. Lect. 41, p. 644, (4th edit.) ; Minett u. Forrester, 4 Taunt. R. 641 ; 1 Bell, Comm. § 413, (4th edit.) ; Id. p. 488r-490, (5th edit.) ; Ante, § 349, 408; 2 Liverm. on Agency, 307, (edit. 1818); Paley on Agency, by Lloyd, 187 ; 3 Chitty on Comm. and Manuf. 223, 224 ; Story on Bailm. § 211 ; Parker v. Smith, 16 East, R. 382. In this last case. Lord Ellenborough held : "And, inasmuch as the bankrupt was not competent, after his bankruptcy, to pay or apply this fund himself, in satisfaction of these claims of the assured, it follows, as a consequence, that he could not authorize his broker so to do; otherwise the derivative and implied authority would be stronger and more ex- tensive than the original and principa,! authority of the party himself; which cannot be. The consequence is, that the authority of the agent, the broker's, was virtually countermanded and extinct by that act of bankruptcy, by which the bankrupt's own original power over the subject-matter ceased, and became transferred to others." 3 3 Chitty on Comm. and Manuf. 223 ; Dixon v. Ewart, 3 Meriv. 322 ; Smith on Merc. Law, 72, (2d edit.) ; Id. B. 1, ch. 5, 1 131, 133, (3d edit. 1843) ; Post, §486. 62* 618 AGENCY. [CH. XVIII. given a letter of attorney to sign an indorsement on the certifi- cate of registry, in compliance with law, to make the sale com- plete, the power is not revoked by his bankruptcy ; for it is but a formal act, which a court of equity would compel him to execute.^ § 4<8S. And here, again, the same exception exists in rela- tion to mere cases of incapacity, which has been already sug- gested in relation to the right of revocation by the principal.'' The doctrine does not apply to the case of an authority coupled with an interest ; for that may still be executed, notwithstand- ing the marriage, or insanity, or bankruptcy of the principal, for the plain reason, that it need not be executed in the name of the principal ; but it will be valid, if executed in the name of the agent.^ Therefore, where a factor has possession of the goods of his principal, with a power to sell, and has made ad- vances on the consignment, he is still entitled to sell, for his indemnification, to the extent of such advances, notwithstand- ing the bankruptcy of his principal.* § 4>84i. Principles very similar are adopted in the jurispru- dence of foreign countries. Thus, Frothier lays it down that an authority ceases by the change of condition of the principal. As, if a creditor is a woman, who afterwards marries, her au- thority, previously given to an agent to receive money for her, 1 Dixon V. Ewart, 3 Meriv. K. 322 ; Paley on Agency, by Lloyd, 187, 188. 2 Ante, § 477. 3 2 Liverm. on Agency, 307, (edit. 1818) ; Alley v. Hotson, 4 Campb. R. 325 ; 1 Bell, Coram. § 413, (4th edit.) ; Id. p. 488-490, (5th edit.) ; Paley on Agency, by Lloyd, 187, 188 ; Ante, § 477. * 1 Bell, Coram. § 413, (4th edit.) ; Id. p. 488-490, (5th edit.) Mr. Bell in- sists upon other exceptions, which, perhaps, may fall -within the same reason. He says.: " Express or tacit revocation, by act of the principal, or by death, bankruptcy, or insanity, will have no effect, either to deprive the factor of the benefit of his authority, in extricating hiraself from transactions already begun, or from the consequences of his having acted ; or to deprive others, who have relied on his powers, of the benefit of the transactions, on which they have pre- viously entered with. him; or even to disturb transactions entered into, while he still appeared to hold his authonty undiminished." Id. p, 489, (5th edit.) See also Erskine's Inst. B. 3, tit. 3, § 40 ; Ante, § 466. CH. XVIII.] DISSOLUTION OF AGENCY. 619 is revoked by her change of condition ; and payment to him, if the debtor knows of the marriage, will be invalid.^ So, a power given by a person having a quality or character to re- ceive for the creditor, expires, when that quality or character ceases. Thus, if the tutor of a minor gives a power to receive a debt due to the minor, the debtor cannot safely pay, upon the authority of the power, after the minority has expired ; because the quality or character of the tutor, who gave the authority, having ceased, a payment to himself would be void and ineffectual.^ This results from the maxim of the Roman law : Qmd jussu alterius solyitur, pro eo est, quasi ipsi solu- tum esset; ^ since the maxim tacitly involves the converse prop- osition, that, where payment is made to a person, having no authority to receive it, it is no payment to the creditor. So, if a person who has given an authority becomes incapable, by a change of his condition, as, if he is interdicted from acting for himself, and is placed under the guardianship of a curator, the authority is revoked.* § 485. In the next place, as to the incapacity of the agent. Here the same rule does not reciprocally apply in its full extent ; for, although an agent may be incapacitated to act for himself, he is not, in all cases, necessarily incapacitated to act for another. Thus, for example, although an infant, cannot act for himself, he may, nevertheless, be the agent of another person,^ So, a married woman, at least, unless she is prohib- ited by her husband, may also be the agent of another person.^ 1 Pothler on Oblig. by Evans, n. 475, (n. 511 of the French edition) ; Pothier, de Mandat, n. Ill, 2 Post, § 500. 3 Pothier on Oblig. by' Evans, n. 476, (n. 512 of the Frencli edition) ; Big. Lib. 5a, tit. 17, 1. 180 ; Pothier, de Mandat, n. 112. ■* Pothier, de Mandat, n. 111. 5 Ante, § 7 ; Thomson on Bills of Exchange, p. 220, (2d edit. 1836.) 8 Ante, § 7. Query, whether the prohibition of the husband would, in all cases, incapacitate the wife to do a mere ministerial act for another, as his agent, involving no labor or duty inconsistent with her duty to her family, as, for ex- ample, to deliver a deed ? 620 AGENCY. [CH. XVIII. And if she is appointed an agent before marriage, the marriage does not, per se, necessarily operate as a revocation of her agency ; since there is, or may be, nothing in the marriage in- compatible with her executing an authority or an agency. A fortiori, where her agency is coupled with an interest, it is not only not revoked by her marriage, but it is irrevocable ; for the husband and wife have an interest in its execution.^ § 486. The case of the bankruptcy of the agent is, in some respects, governed by the same rule. It does not necessarily suspend or revoke the power of the bankrupt to act as an agent for another, by doing a formal act, which passes no interest ; such, for example, as executing a deed in the name of another.^ Neither does it prevent him from doing an act as principal, where it is the mere execution of an existing trust,, which he might be compelled to execute.^ Neither will it afi'ect his right as a factor, with the consent of his assignees, to enforce his lien for commissions and advances, or for a gen- eral balance, due to him from his principal, upon the goods of the latter, or the proceeds thereof, against the purchaser of the goods.* But it is said, that it will, amount to a revocation of his authority to receive any money from the purchaser, or from other persons, upon the account of his principal.® By the for- eign law, also, the bankruptcy of the agent operates as a re- vocation of his authority, for the satisfactory, reason, that it is presumed that the confidence of the principal in him is thereby destroyed.^ ^ § 487- The case of the insanity of the agent would seem to constitute a natural, nay, a necessary revocation of his authority ; 1 Anon. 1 Salk. 117; Reignolds v. Davis, 12 Mod. R. 383; Harder w. Lee, 3 Burr. R. 1469, 1471. 2 2 Kent, Comm. Lect. 41, p. 644, 645, (4th edit.) ; Dixon v. Ewart, 3 Meriv. R. 322; Ante, § 477, 482. 3 Dixon V. Ewart, 3 Meriv. 322 ; Ante, § 482. 1 Hudson V. Granger, 5 Barn. & Aid. 27, 31, 32. 5 Hudson V. Granger, 5 Barn. & Aid. 27, 31, 32 ; 2 Kent, Comm. Lect. 41, p. 645, (4th edit.) ; Story on Bailm. § 211. 6 Pothier, de Mandat, n. 120 ; Story on Bailm. § 211. CH. XVIII.] DISSOLUTION OP AGENCY; 621 for the principal cannot be presumed to intend, that acts, done for him, and to bind him, shall be done by one who is iacom- petent to understand, or to transact, the business which he is employed to execute. The exercise of sound judgment and discretion would seem to be required, in all such cases, as pre- liminaries to the due execution of the authority. § 488. Fifthly. A revocation may be, by operation of law, by the death either of the principal, or of the agent. This is an ancient and well-settled doctrine of the common law.^ It 1 Littleton, § 66 ; Co. Litt. 52 ; Shipman v. Thompson, Willes, R. 104, 105 ; Wynne v. Thomas, Willes, R. 563, 565 ; Wallace v. Cooke, 5 Esp. R. 117, 118 ; Paley on Agency, by Lloyd, 185, 186; 2 Liverm. on Agency, 301-304, (edit 1818) ; Smith on Merc. Law, 72, (2d edit.) ; Id. p. 131, 132, (3d edit. 1843) ; Bac. Abridg. Authority, E ; 3 Chitty on Comm. and Manuf. 223 ; 2 Kent, Comm. Lect. 41, p. 645, 646, {4th edit.) ; Story on Bailm. §'-203-205 ; Smout v. Ilbery, 10 Mees. & Welsb. 1 ; Campanari v. Woodburn, 28 Eng. Law & Eq. R. 321 ; Wilson V. Edmonds, 4 Foster, 517 ; Blades v. Free, 9 Barn. & Cressw. 167 ; Gait V. Galloway, 4 Peters, R. 332, 344 ; Rigs v. Cagg, 2 Humph. Tenn. R. 350 ; Harper v. Little, 2 Greenl. 14; Ante, § 264, 477; Gale t;. Tappan, 12 New Hamp.a45 ; Houghtallng v. Marvin, 7 Barbour, 412 ; Gleason v. Dodd, 4 Met. 333 ; Huston v. Cantril, 11 Leigh, 137. In Cassiday v. McKensie, 4 Watts & Serg. R. 282, the Supreme Court of Pennsylvania held, that a pa)ment of money to an agent, after the death of his 'principal, the death being unknown to both parties, was good, and bound the estate of the principal. Mr. Justice Rogers, in delivering the opinion of the Court, said : " But filially, it is con- tended, that a payment, after the death of the principal, is not good. It is con- ceded, that the death of the principal is, ipso facto, a revocation of a letter of attorney. But does it avoid all acts of the attorney, intermediate between the death of the principal and notice of it ? In Salte v. Field, 5 Term Rep. 214, Mr. Justice BuUer observes ; ' It has been questioned, with respect to an agent acting under a power of attorney, whether acts, done by him, before he knows of the revocation of his warrant, are good against (he principal ; and it seems, that the principal,_in such a case, could not avoid the acts of his agents, done hona fide, if they were to his disadvantage^ though he might consent to avoid such as were for his benefit.' And in Hazard v. Treadwell, (gtr., 506 ; 12 Mod. 346,) it is ruled, that the credit, arising from an ostensible employment, con- tinues, at least with regard to those, who have been accustomed to deal on the faith of that employment, until they have notice of its being at an end, or till its temfination is notorious. And these are principles founded on the most obvious justice. Thus, if a man is the notorious agent for anothei-, to collect debts, it is but reasonable, that debtors should be protected in payments to the agent, until they are informed that the agency has terminated. "But this, it is said, is only 622 AGENCY. [CH. XVIII. will make no difference, that the power is declared in express terms to be irrevocable ; for, if it be not coupled with an interest, true of an agency terminated by express revocation, and does not hold of an im. plied revooa1:ion by the death of the principal. It would puzzle the most acute man to give any reason, why it should be a mispayment, when revoked by death, and a good payment, when expressly revoked by the party in his lifetime. ' In Watson V. King, 4 Campb. 272, however, it is ruled, 'that a power of attorney, tTiough coupled with an interest, is instantly revoked by the death of the grantor ; and an act, afterwards bond fide done under it by the grantee, before notice of the death of the grantor, is a nullity. Lord Ellenborough says, a power, coupled with an interest, cannot be revoked by the person granting it ; but it is necessa- rily revoked by his death. How can a valid act be done in the name of a dead man ? ' It will be observed, that the reason is purely technical. How can a valid ae't be done in the name of a dead man ? And it might with as much pro- priety be asked, How can a valid act be done by an agent, whose authority is revoked by his principal V But, notwithstanding the opinion thus confidently expressed, it is now an admitted exception, that, where the power or authorityis coupled with an interest in the thing actually vested in the agent, then an act, done by him after the death of his principal, is good. And the reason givQn by , Chief Justice Marshall, in Hunt v. Rousmaniere's Adm'r, (8 Wheat. 174,) is, that the agent, having the legal title in the property, is capable of transferring it in his own name, notwithstanding the death of the principal ; and the death of the principal has no operation upon his act. The power, given by the prin- cipal, is, under such circumstances, rather an assent or agreement, that the agent may transfer the property vested in him, free from all equities of the principal, than strictly a power to transfer. The whole reasoning of the Court, in Hunt ». Rousmaniere's Adm'r, shows their anxiety to rid themselves of the absurdity, into which a strict adherence to the principle, that death is a revocation of a power, would lead them. Why not place it on the rational ground, that, al- though the conveyance would be bad at law, yet it would be good in equity, when made honafide without any notice whatever of the death of the principal? But, be this as it may, the principle does not apply here. There is no act to be done. This money has been paid by the debtor,.and received by the agent, in good faith ; and why should it not be good, when the authority is revoked by death, as it confessedly is, when expressly revoked by the principal in his life- time ? Here the precise point is, whether a payment to an agent, when the par- ties are ignorant of the death, is a good payment. In addition to the case in Campbell, before cited, the same judge, Lord Ellenborough, has decided, in 5 Esp. 117, the general question, that a payment, after the death of the principal, is not good. Thus, a payment of sailor's wages, to a person having a power of attorney to receive them, has been held void, when the principal was dead at the time of the payment. If, by this case, it is meant merely to decide the gen- eral proposition, that by operation of law, the death of the principal is a revoca- tion of the powers of the attorney, no objection can be taken to it. But if it is CH. XVIII,] DISSOLUTION OF AGENCY. 62S although irrevocable by the party, it is revoked by his death.^ The doctrine seems to be a natural deduction or presumptiop of the actual intention of the parties. But it has this addi- tional reason to support it, that, as the act must, if done at all, be done in the name of the principal, it is impossible, that it can properly be done, since a dead man can do no act ; and we intended to say, that this principle applies, where there was no notice of death, or opportunity of notice, I must be permitted to dissent from it. In addition, it is contrary to the opinion of Lord Loughborough in 'Ate v. Hilberts, (2 Ves. Jun.,) where, on a question, whether a check, given by a dying person to a rela- tion, but not presented in his lifetime, could be enforced, as donatio causa mortis, against the executor, he said, if the donee had received the money upon the check immediately after the death of the testator, and before the cashier was apprized of it, he was inclined to think no Court would have taken it from him. And what would he have said, if the attempt had been made to subject the banker, when he was ignorant of the death ? But, if this doctrine applies, why does it not apply to the case of factors, foreign or domestic, to commission merchants, to supercargoes, and masters of ships, and to various other agencies, which the ne- cessities of commerce may require ? In the case of a foreign factor, for example, has it been supposed, that his acts, after this implied revocation of authority, are void ? Cases of this kind must often have occurred ; and it would astonish the inercantile world to be informed, that the factor was liable on a contract, made in the name of his principal, because he was dead, a fact of which he was ignorant, and of which he could not by any possibility be informed ; or that the merchant, who was trusting his goods on the credit of the principal, was to be cast on him, who may have been of doubtful solvency, for payment, Can it be, that a payment, made to an agent from a foreign country, and from one of our dfties to the Western States, employed for the special purpose of collecting debts, is void, because his principal may have died the very day before the actual receipt of the money ? That a payment may be good to-day, or bad to-morrow, from the accidental circumstance of the death of the principal, which he did not know, and which by no possibility he could know ? It would be unjust to the agent and unjust to the debtor. In the civil law, the acts of the agent, done bona fide in ignorance of the death of his principal, are held valid and binding upon the heirs of the latter. The same rule holds in the Scottish law ; and I cannot believe the common law is so unreasonable, notwithstanding the doubts expressed by Chancellor Kent, in the 2d volume of his Commentaries, p. 646." 1 Mitchell V. Eades, Free. A. 125 ; Lepard v. Vernon, 2 Ves. & Beam. R. 51 ; Watson V. King, 4 Campb. K. 272 ; S. C. 1 Starkie, K. 121 ; Wilson v. Edmonds, 4 Foster, 517; Primm v. Stewart, 7 Texas, 178; Houston v. Robertson, 6 Taunt. R. 448; Hunt w. Rousmaniere's Adm'r, 8 Wheaton, R. 174, 201-203, 206, 207 ; Ante, 8 477. 624) AGENCY. [CH. XVIII. have already seen that every authority, executed for another person, pre-supposes that the party could, at the time, by his personal execution of it, have made the act valid.^ 1 Ante, § 147, 148, 264 ; Coombes's case, 9 Co. 76, 77 ; Hunt v. Rousmaniere's Adm'r, 8 Wheat. K. 174, 200-205; Clarke v. Courtney,, 5 Peters, R. 319, 349-351. This subject is very amply illustrated in the opinion of the Supreme Court of the United States, delivered by Mr. Chief Justice Marshall, in Hunt v. Rousmaniere's Adm'r, 8 Wheat. R. 291. Among other things he says: "This instrument contains ho words of conveyance, or of assignment, but is, a slinple power to sell and convej'. As the power of one man to act for another depends on the will and license of that other, th^ power ceases when the will or this per- mission is withdrawn. The general rule, therefore, is, that a letter of attorney may, at any time, be revoked by the party who makes it, and is revoked by his death. But this general rule, which results from the nature of the act, has sus- tained some modification. Where a letter of attorney forms a part of a contract, and is a security for money, or for the performance of any act which is deemed valuable, it is generally made irrevocable in terms, or, if not so, is deemed irre- vocable in law. Although a letter of attorney depends, from its nature, on the will of the person making it, and may,*!n general, be recalled at his will, yet, if he binds himself for a consideration, in terms or by the nature of his contract, not to change his" will, the law will not permit him to change it. Rousmaniere, therefore, could not, during his life, by any act of his own, have revoked this letter of attorney. But does it retain its efficacy after his death ? We think it does not. We think it well settled, that a power of%;torney, though irrevocable during the life of the party, becomes extinct by his death. This principle is asserted in Littleton, § 66, by Lord Coke, in his Commentary on that section, (52 b.) and in Willes's Reports, (105, note, and 565.) The legal reason of the rule is a plain one. It seems founded on the presumption, that the substitute acts by virtue of the authority of his principal, existing at the time the act is performed ; and on the manner in which he must execute his authority, as stated in Coombes's case. In that case it was resolved, that ' When any one has authority, as attorney, to do any act, he ought to do it in his name who gave the authority.' The reason of this resolution is obvious. The title can regularly pass out of the person in whom it is vested, only by a conveyance in his own name ; and this cannot be executed by another for him, when it could not, in law, be executed by himself. A conveyance in the name of a pei-son^ who was dead at the time, would be a manifest absurdity. This general doctrine, that a power must be executed in the name of the person who gives it, a doctrine founded on the nature of the transaction, is most usually engrafted in the power itself. Its usual language is, that the substitute shall do that which he is em- powered to do in the name of his principal. He is put in the place and stead of his principal, and is to act in his name. This accustomed form is observed in the instrument under consideration. Hunt is constituted the attorney, and is au- thorized to make and execute a regular bill of sale in the name of Rousmaniere. CH. XVIIl.] DISSOLUTION OF AGENCY. 625 § 489. The only admitted exception in our law, if, indeed, that properly constitutes an exception, is the case, where the power or authority is coupled with an interest in the thing, actually vested in the agent.^ The reason of this exception is entirely compatible with the general ground upon which the rule is founded. It is, that thff agent having the legal title to the property vested in himself, is capable of transferring it in his own name, notwithstanding the death of the principal ; and the death of the principal, therefore, has no operation upon his act. The power, given by the principal, is, under such cir- cumstances, rather an assent or agreement that the agent may transfer the property vested in him, free from any equi- ties of the principal, than strictly a power to transfer.^ Now, as an authority must be pursued in order to make the act of the substitute the act of the principal, it is necessary that this bill of sale should be in the name of Rousmaniere ; and it would be a gross absurdity, that a deed should purport to be executed by him, even by attorney, after his death ; for the attorney is in the place of the principal capable of doing that alone which the principal might do." Pothier puts the doctrine upon analogous reasoning, of a similar, though perhaps of a less technicajfiature. The principle (says he) is drawn from the nature of the contract of mandate. The. principal, (Ze mandant,) hy his con- tract, charges the agent to do something in his place or stead ; vice versa the agent, (le mandataire,) in executing the mandate, lends his agency (ministre) to the principal, who is deemed to do, "by the agency of his agent, what is in- tended by the. mandate. Now, the agent cannot any further lend his agency to a principal who is dead, and therefore he cannot further execute the mandate after the death of the principal. Pothier, de Mandat, n. 103. 1 Hunt !). Kousraaniere's Adm'r, 8 Wheat. K. 174, 201-206; 2 Kent, Comm. Lect. 41, p. 645, 646, (4th edit.) ; Shipman v. Thompson, Willes, R. 104, note (a.) ; Story on Bailm. § 209 ; Ante, § 164, 477, 478. 2 Mr. Chief Justice Marshall, in Hunt v. Rousmaniere's Adm'r, 8 Wheat. E. 174, stated the grounds of this distinction very fully : " The interest or title in the thing being vested in the person who gives the power, remains in him, unless it be conveyed with the power, and can' pass out of him only by a regular act in. his own name. The act of the substitute, therefore, which in such a case is the act of the principal, to be legally effectual, must be in his name, must be such an act as the principal himself would be capable of performmg, and which would be valid if performed by him. Such a power necessarily ceases with the life of tlie person making it. But if the interest or estate passes with the power, and vests in the person by whom the power is to be exercised, such person acts AGENCY. 53 6^ AGENCY. . [CH. XVIII. [489 a- A recent case furnishes an illustration of this prin- ciple. A person, going- abroad on account of ill health, em- ployed an agent to carry on his business, with complete posses- in his own name. The estate, being in him, passes from him by a conveyance in his own name. Ho is no longer a substitute, acting in the place and name of another, but is a principal, acting in his own name, in pursuance of powers, which limit his estate. The legal reason, which limits a power to the life of the person giving it, exists no longer, and the rule ceases with the" reason on which it is founded. The intention of the instrument may be effected without violating any legal principle. This idea may be in some degree illustrated by examples of cases, in which the law is clear, and which are incom- patible with any other exposition of the term ' power coupled with an interest.' If the word ' interest,' thus used, indicated a title to the proceeds of the sale, and not a title to the thing to be sold, then a power to. A, to sell for his own benefit, would be a power coupled with an interest; but a power to A, to sell for the benefit of B, would be a naked power, which could be executed only in the life of the person who gave it. Yet for this distinction no legal reason can be assigned. Nor is there any reason for it in justice ; for a power to A, to sell for the benefit of B, may be as much a part of the contract, on which B advances his money, as if the power had been made to himself. If this were the true ex- position of the term, then a power to A to sell for the use of B, inserted in a conveyance to A of the thing to be sold, would not be a power coupled with an interest, and, consequently, could not be exercised after the death of the person making it ; while a power to A to sell and pay a debt to himself, though not ac- companied with any conveyance, which might vest the title in him, would enable him to make the conveyance, and to pass a title not in him, even after the vivi- fying principle of the power had become extinct. But every day's experience teaches us, that the law is not, as the firit case put would suppose. We know, that a power to A to sell for the benefit of B, engrafted on an estate conveyed to A, may be exercised at any time, and is not affected by the death of the person who created it. It is, then, a power coupled with an interest, although the person, to whom it is given, has no interest in its exercise. His power is coupled with an interest in the thing, which enables him to execute it in his own name, and is, therefore, not dependent on the life of the person who created it. The gen- eral rule, that a power of attorney, though irrevocable by the party during his life, is extinguished by his death, is not affected by the circumstance, that testa- mentary powers are executed after the death of the testator. The law, in allowing a testamentary disposition of property, not only permits a will to be considered as a conveyance, but gives it an operation, which is not allowed to deeds, which have their effect during the life of the person who executes them. An estate, given by will, may take effect at a future time, or on a future contin- gency, and in the mean time descends to the heir. The power is, necessarily, to be executed after the death of the person, who makes it, and cannot ej^®* during his life. It is the intention, that it shall be executed after his death. The con- veyance, made by the person to whom it is given, takes effect by virtue of the CH. XVin.] DISSOLUTION OF AGENCY. 627 sion and control of his property, with a written power to sell all or any of the furniture, stock, and property at any time in his hands, and to apply the proceeds to the security or pay- ment of a specified note, indorsed hy such agent and a third person, or of any other note given in renewal of the same, or for which the agent mighf become responsible. It was held, that the possession of the property being connected with the power for the protection and indemnity of the agent, as well as for other purposes, the agent had a power coupled with an in- terest, which survived after the death of the principal abroad, and authorized the agent to sell the property for his protection and indemnity, after such death.^] § 490. The same principle applies, a fortiori, to the death of the agent; for it then becomes practically impossible for him to execute the power, either in his own name, or in the name of his principail. But a further reason exists why it should not be executed by his personal representatives ; and that is, that the principal must be presumed to have placed a confidence and trust in the personal character and skill of his agent, which might not equally extend to his representatives.^ The same reasoning will apply to the case of a substitute, who is appointed by the agent under a power of substitution. The death of the agent extinguishes the power of the substi- tute; for the agent is accountable to the principal for the acts of his substitute, since he is appointed by, and in place of, the agent ; and the appointment is, therefore, naturally with- drawn by the death of the appointer.^ But a distinction may will, and the purchaser holds his title under it. Every case of a power, given in a will, is considered in a Court of Chancery as a trust for the benefit of the person for whose use the power is made, and as a devise or bequest to that person." ' Knapp V. Alvord, 10 Paige, R. 205. 2 Pothier, de Mandat, n. 101. See Merrick's Estate, 8 Watts & Serjeant, R. 402 ; Gage r. Allison, 1 Brevard, 495 ; City Council v. Duncan, 3 Id. 386. 3 Pothier, de Mandat, n. 105 ; 2 Liverm. on Agency, 308, (edit. 1818) ; Ante, §469. 628 AGENCY. [CH. XVIII. well exist in this matter, where the substitute is to be treated as the sole agent of the principal; as, if the power he to the agent, and if he cannot or will not act, then that he may- appoint another to act as the agent of the principal, and not as a substitute under himself.^ For, in this latter case, the death of the agent will not revoke the appointment^ made by him of the sub-agent.^ § 491. These doctrines are not peculiar to our law. In the Roman law the rule was fully recognized, that a mere power or authority expired by the death either of the principal, or of the agent. Mandatum^ re integrd, Domini morte finitur? Inter casus omittendi mandati etiam mors mandatoris est; nam man- datum solvitur morte} Morte quoque ejus, cui mandatum est, si is integro adhuc mandato decesserit, solvitur mandatum} But there was this qualification of the doctrine in the Roman law, that, if the business was in part executed by the agent, at the time of the death of the agent, (but not otherwise,) the remainder might be executed by his heir, who succeeded to the authority.® This was 1 Ante, § 469. 2 Pothier, de Mandat, n. 105 ; Smith v. White, 5 Dana, 376; Story on Bailm. §20. 3 Cod. Lib. 4, tit. 35, 1. 15 ; Pothier, Pand. Lib. 17, tit. 1, n. 76 ; Pothier, de Mandat, n. 103 ; 1 Domat, B. 1, tit. 15, § 4, art. 6. 4 Dig. Lib. 17, tit. 1, 1. 26, Introd.; Pothier, Pand. Lib. 17, tit. 1, n. 76. 5 Dig. Lib. 17, tit. 1, 1. 27, § 3 ; Pothier, Pand. Lib. 17, tit. 1, n. 75. 6 Pothier, Pand. Lib. 17, tit. 1, n. 75 ; 2 Liverm. on Agency, 304, 305, (edit. 1818) ; Pothier, de Mandat, n. 101 ; 1 Domat, B. 1, tit. 15, § 4, art. 7. 'This distinction in the Roman law between cases, where the mandate is wholly unex- ecuted, and where it is partly executed, as to the validity of the subsequent acts of the agent or of his representatives, does not seem founded in any very satis- factory reasoning. Domat has stated it, (1 Domat, B. 1, tit. 15, § 4, art. 7 and 8,) and has added the following very sensible questions. " But, if a proxy, or other agent, were charged with an affair, which could not admit of delay, such as the care of gathering in a harvest, or any other pressing and important affair, and, just as he is going to execute the order, or after he has already begun it, he learns the death of the person, from whom he received his order, and he cannot give notice of it to the heirs or executors, who happen to be absent, may not he, and even ought not he, to execute the order ? " And again : " But, if the heir, or executor, of the proxy, knowing the order, that was given him, and seeing, CH. XVIII.] DISSOLUTION OF AGENCY. 629 expressly laid down in the case of a deceased partner, where the heir was held to be authorized to complete the execution of the inchoate act of the deceased partner. Hmres socii, quamvis socius non est, tamen ea, quce per defunctum inchoata sunt,per hceredem explicari debeni? So, the acts of jthe agent, done lona fide, in ignorance of the death of his principal, were held valid and binding upon the heirs of the latter.^ Bi tamen per ignorantiam impletum est, competere actionem utilitatis causa, dicitur. Juli- anus quoque scripsit, morte solvi .mandatum, sed oUigaiionem aliquando durare? Si quis deUtorisuomandaverit,ut Titio sol- ver et, et debitor, mortuo eo, cum idignoraret, solverit, liberarieum oportet.^ Hence Paulus declared : Mandatum morte mandato- ris, non etiam mandati actio solvitur} A fortiori, the same rule was applied, where the authority was not to be executed until after the death of the principal.^ Idem est, et si mandavi iibi, ut post mortem meam hoeredibus meis emeres fundum? that the absent master could not look after his own afiairs, and that there would he danger of some loss, if he did not take care of it ; would not he be obliged to do what were in his power, such as to continue to till the land, or to gather in the harvest ? " See also Story on Bailm. § 202, 204. 1 Dig. Lib. 17, tit. 2, 1. 40 ; Pothier, Paud. Lib. 17, tit. 2, n. 59 ; Pothier, de Mandat, n.'lOl ; 1 Domat, B. 1, tit. 15, § 4, art. 7, 8. 2 1 Domat, B. 1, tit. 15, § 4, art. 7, 8. 3 Dig. Lib. 17, Jit. 1, 1. 26, Introd. ; Pothier, Pand. Lib. 17, tit. 1, n. 77. 1 Dig. Lib. 17, tit. 1, 1. 26, § 1 ; Pothier, Pand. Lib. 17, tit. 1, n. 77 ; Pothier, de Mandat, n. 106. 5 Dig. Lib. 17, tit. 1, 1. 58, Introd.; Pothier, Pand. Lib. 17, tit. 1, n. 77 ; Dig. Lib. 46, tit. 3, 1. 32. 6 Dig. Lib. 17, tit. 1, 1. 12, § 17; Id. 1. 13 ; Pothier, Pand. Lib. 17, tit. 1, n. 78. 7 Dig. Lib. 17, tit. 1, 1. 13 ; Pothier, Pand. Lib. 17, tit. 1, n. 78 ; 2 Liverm. on Agency, 305, 306, (edit. 1818.) The same doctrine is still more succinctly ex- pressed in the Institutes. " Item, si adhuc integro mandato, mors alterutrius in- terveniat, id est, vel ejus, qui mandaverit, vel iUius, qui mandatum susceperit, solvitur mandatum. Sed utUitatis causa receptum est, si eo mortuo, qui tibi mandaverat, tu, ignorans eum decessisse, executus fueris mandatum, posse te agere mandati actione ; alioqui justa et probabilis ignorantia tibi damnum adter- ret. Et huic simile est, quod placuit, si debitores, manumisso dispensatore Titii, per ignorantiam liberto solyerint, Uberari eos ; cum alioqui stricta juris ratione 53* 630 ' AGENCY. [CH. XVIII. § 492. From the Roman law, similar principles have heen imported into the commercial jurisprudence of the modern na- tions of continental Europe. Pothier says : " The maindate is extinguished by the natural or civil death of the principal, (or mandant,) when it happens, before the agent, (or mandatary,) has executed it. For example, if I have authorized you to purchase a certain thing for me, the power, which I have given you, ceases with my death, and my heirs are not obliged to take, on their own account, the purchase made by you after my death." -^ " But, (he adds,) although the mandate is thus ex- tinguished by the death of the principal, nevertheless, if the agent, being ignorant of the death of the principal, has in good faith transacted the business, with which he was charged, the heirs and other representatives of the principal are bound to indemnify him, and to ratify what he has done." ^ Again, he says : " Nevertheless, there are cases, in which the agent, although he has knowledge of the death of his principal, not only may, but ought to, act in the business intrusted to him. As, for example, if one is charged with gathering the vint- age of another, and hears of the death of his principal at the very time, when the vintage cannot properly be deferred, as the grapes of the country are then fit to be gathered, and there is not time to advise his heirs thereof, who live at a distance, there it will be the duty of the agent to gather the vintage, notwithstanding such death." ^ So, if the act, required to be done, is to be done after the death of the principal, the same rule will apply .^ § 493. Pothier adds another most important exception to non possent liberari ; quia alii solvissent, quam cui solvere debuerint." Inst. Lib. 3, tit. 27, § 10. > Pothier, de Mandat, n. 103. 2 Pothier, de Mandat, n. 106; Pothier on Oblig. by Evans, n. 81, 448, 475 ; Id. French edit. n. 81, 449, 511. 3 Pothier, de Mandat, n. 107. * Pothier de Mandat, n. 108. CH. XVIII.] DISSOLUTION OF AGENCY. 631 the rule, as applicable to the business of commerce. Although, (says he,) regularly, every mandate ends with the death of the person giving it, yet it has, for the benefit of commerce, been established, that the commission of these agents, (or manda- taries,) shall last even after the death of the merchant, who appointed them, until it is revoked by the heir, or other suc- cessor. And, in contracting for the business, to which they are appointed, they bind the heir of the merchant who appointed them, or the vacant possession if he has left no heir.^ 1 Pothier on Oblig. by Evans, n. 448 : Id. n. 80, 475 ; Id. French edit. n. 81, 449, 511 ; Pothier, de Mandat, n. 109. See also Emerig. sur Assur. torn. 2, p. 120. Other illustrations ■will be found in Mr. Cushing's very valuable trans- lation of Pothier on the Contract of Sale, n. 32. Pothier there says: " In this contract, as in others, the consent of the parties may be manifested, not only be- tween those who are present together, but also between those who are at a dis- tance from each other, by means of letters, or through the intervention of an agent per epistolam, aut per nuntium. In order that the consent of the parties may take place in the last-mentioned case, it is necessary, that the will of the party, who makes a proposition in writing, should continue until his letter reaches the other party, and until the other party declares his acceptance of the proposition. This will is presumed to continue, if nothing appears to the con- trary. But, if I write a letter to a merchant living at a distance, and therein pro- pose to him to sell me a certain quantity of merchandise, for a certain price ; and, before my letter has time to reach him, I write a second, informing him, that I no longer wish to make the bargain ; or if I die ; or lose the use of my reason ; al- though the merchant, on the receipt of my letter, being in ignorance of my change of will, or of my death, or insanity, makes answer, that he accepts the proposed bargain ; yet there will be no contract of sale between us ; for, as my will does not continue until his receipt of my letter, and his acceptance of the proposition contained in it, there is not that consent or concurrence of our wills, which is necessary to constitute the contract of sale. This is the opinion of Bartholus, and the other jurists, cited by Bruneman, ad. 1. 1, § 2, D. de contrah. empt. (Dig. lib. ' 18, tit. 1, b. 1, § 2,) who very properly rejected the contrary opinion of the Gloss, addictam legem. It must be observed, however, that if my letter causes the mer- chant to be at any expense, in proceeding to execute the contract proposed ; or, if it occasions him any loss, as, for example, if, in the intermediate time between the receipt of my first, and that of my second letter, the price of that particular kind of merchandise falls, and my first letter deprives him of an opportunity to sell it before the fall of the price ; in all these cases, I am bound to indemnify him, unless I prefer to agree to the bargain, as proposed by my first letter. This obligation resulte from that rule of equity, that no person should suffer from the act of another ; Nemo ex alterius facto prcegravari debet. I ought, therefore, to 682 AGENCY. [CH. XVIII. § 494i. Similar principles will be found adopted into the jurisprudence of Scotland. Thus, it is laid down by Erskine, in his Institutes, that mandates expire by the death of the mandant, (the principal,) both because it is presumed that the commission was accepted from a personal regard to him, and because the will of the mandant, which alone supports the commission, ceases necessarily upon his death. They expire by the death of the mandatary, (the agent,) because the com- mission was given from the mandant's special confidence in him,^ But, (he adds,j if a mandatary, ignorant of the man- dant's death, continue to execute the commission bond fide, what he doth under that ignorantia facti must be ratified by the mandant's heir ; for, till the mandatary knew of his em- ployer's death, it was his duty to go on in the management. But if the mandatary, ignorant, perhaps, that manda,tes are vacated by the death of the mandant, shall, after his knowl- edge of it, proceed to execute a commission, which he had ac- cepted at the desire of the deceased, what he does cannot affect the mandant's heir ; for ignorance of law can give no man a right to manage the affairs of another, who had given him no indemnify him for the expense and loss, Which I occasion him by making a pro- position, which I afterwards refuse to execute. For the same reason, if the merchant, on the receipt of my first letter, and before receiving the second, which contains a revocation of it, or being in ignorance of my insanity or death, which prevents the conclusion of the bargain, charges to my account and for- wards the merchandise ; though, in that case, there cannot properly be a con- tract of sale between us, yet he will have a right to compel me or my heirs to execute the proposed contract, not in virtue of any contract of sale, but of my obligation to indemnify him, which results from the rule of equity above-men- tioned." The decision of the Supreme Court of Massachusetts, in McCul-* loch V. The Eagle Insurance Co. 1 Pick. 278, is in conformity to this general doctrine. But the English decisions are to the contrary, holding that the offer by the mail is a continuing offer up to the time when the other party assents thereto, and then becomes obligatory on both parties. Adams v. Lindsell, 1 Barn. & Aid. 681 ; Long on Sales, by Band, (1839,) p. 182, 183. See also Pothier de Change, n. 179. [And such is now the well-settled English and American law, on this subject.] 1 Ersk. Inst. B. 3, tit. 3, § 40 ; 2 Bell, Comm. § 413, (4tb edit.) ; Id. p. 488- 490, (5th edit.) CH. XVIII.] DISSOLUTION OF AGENCY. 6S3 commission. Yet this is to be understood, rebus integris. For if part of the commission had been executed before the man- dant's death, by which the management would suffer if the whole were not to be carried into immediate execution, the powers given by the mandate are not accounted to have ex- pired, and the mandatary not only may, but ought, to continue his management.-' In the same manner, if the mandatary should die after having begun a course of management, which required to be carried on without delay, his heir may execute what was left unfinished by his ancestor.^ § 495. Reasonable as these doctrines seem, and convenient as they must be admitted to be, for the practical purposes of trade and commerce, it has been thought that they do not pre- vail in the common law, as recognized either in England or in America.* But it may be doubted whether our law deserves 1 Ante, § 465, 466, 483. 2 Ersk. Inst. B. 3, tit. 3, § 41 ; 2 Bell, Comm. § 413, (4tli edit.) ; Id. p. 488- 490, (5th edit.) 3 2 Comm. Lect. 41, p. 646, (4th edit.) See also Story on Bailm. § 204, 205; Ante, § 465, 466, 483. Mr. Thompson, on the subject of the limitation of the agency, says : '' Mandates terminate, in general, by the death of the mandant or mandatary ; by the insanity of the latter ; by revocation ; by renunciation ; or by the sequestration of the mandant, which vests his estate, and all the rights connected with it, in his creditors. The mandatary's bankruptcy does not ap- pear to be inconsistent with the continuance of his mandate. But the rights of third parties are differently affected by its termination, from the cause now stated, according as they have or have not been led to believe in its continuance. Any person allowing another to exercise a general management of his affairs, whether by express or tacit mandate, contracts thereby an implied obligation to the public, that the mandate shall be held ciuoad him as continued, until its ter- mination becomes notorious, or has been made known to the party contracting. In this view, as the mandant's death and bankruptcy are notorious events, the presumption is, that every person is aware of them ; and, therefore, contracts made subsequently with the mandatary, or acts performed by him, will not be valid, unless it is proved by the parties making them that these events were un- known to the mandatary or the contracting party, and could not have been known by ordinary diligence. Further, if a factor has advanced money before his constituent's deatlj or bankruptcy, on the faith of goods consigned to him, he will be entitled, even after these events, to sell the goods for his indemnification. Such advances change the contract from mandate to loan and security. But, on 684^ AGENCY. [CH. XVIII. such a reproach, at least to the full extent in which it is usually imputed to it. Regularly, indeed, where the act to he done must be done in the name of the principal, and not in that of the agent, the authority is extinguished by the death of the principal, because it has then become incapable of being so exe- cuted.^ And it should seem that this would be equally true in the Roman law, and in the jurisprudence of continental Europe, under the like circumstances. The difference on this subject between our law and the latter seems to rest, not so much upon the principles ■which have beeA now mentioned, there is no ground to presume that the revocation or renunciation of a general mandate, (neither of them being notorious,) are known to third parties ; and, therefore, the contracts of such parties with a general agent will be effectual, unless it is proved that they knew, or ought to have known, of the renunciation or recall. For instance, a servant, who had power to draw bills in his master's name, may bind him by bills so drawn after his dismissal, if the party taking them had not time to know of it. The kind of intimation which is necessary to exclude this risk, shall be after- wards considered with reference to the dissolution of partnership. In the event of the mandant's supervening insanity, which is not in itself notorious, it seenis to follow, from the mandant's implied contract with the public, that transac- tions, made even after it, with the mandatary, shall stand, unless with reference to parties who knew of the insanity. Such parties cannot be said to be in bona fide to contract ; or rather, it may be held, that, with regard to them, (as they cannot plead want of notice,) the mandant's known insanity annulled the man- datary's powers. The same rule, under the same limitations, appears to hold with regard to all mandates, which, however limited in their terms, are acted on before the public as general mandates, the public being 'entitled to rely on them as general mandates till their termination is made known. It has been said that limited mandates, (which expire, in general, from the causes already mentioned, or by performance of the business for which they were granted,) ' are not, like general powers, capable of extension by mere inference and hona fides.' But the mandant, by suffering such a mandatary to act, enters into the same implied contract with the public as in a general mandate, namely, that the mandate shall continue till its termination is made known ; and, therefore, though it be recalled, or have ceased, all facts falling within the scope of it will be good, as to third parties, unless its revocation is notorious, or has been intimated to them The case of a limited partnership, to be afterwards notieed, which entitles third parties, after its dissolution, to rely on conti-aots within the scope of it, made by any one partner in the company's name, before the dissolution is made known to them, affords an illustration of this principle." Thompson, on Bills, p. 221-227, (2d edit. 1836.) 1 Ante, § 147, 148, 488. CH. XVIII.] DISSOLUTION OF AGENCY. 685 a difference of principle, as upon the difference in the modes of "executing the authority. Under the Roman law, the agent ordinarily executed his authority in his own name, and thereby bound his principal, indirectly, by his contract, ex mandate, and himself personally.-^ An execution of the authority in the name of his principal was not generally allowed or required. In the jurisprudence of modern continental Europe, the rule of the Roman law would seem still to exist, so far, that the agent may bind the principal by the act done in his, the agent's own name, ex mandato; although he is also at liberty to do the act in the name of his principal, in which latter case he may escape from any personal responsibility.^ This is certainly the doctrine in Scotland.^ Where the act, notwithstanding the death of the principal, can and may be done in the name of the agent, there seems to be a sound reason why his death should not be deemed to be a positive revocation under all circumstances, and that a subsequent execution of it may be valid. But, where the act is required to be done in the name of the principal, the same .objection would seem to lie to it in the foreign law as does lie in our law. § 496. Now, our law recognizes this very distinction in its fullest force. In the case of an authority coupled with a vested interest in the thing, we have already seen, that it is not extin- guished by the death of the principal, for the very reason, that it can still be executed in the name of the agent, he having the vested legal or equitable title in the thing, which he can trans- fer or change by his own act, as owner.* And it seems rea- sonable to believe, that the same doctrine would be fully recog- nized in our law in all other cases of authority, where the act to be done may lawfully be done in the sole name of the agent. 1 Ante, § 163, 271 ; 1 Stair, Inst. B. 1, tit. 12, § 16. 2 Ante, § 163, and note, 265 a; Pothier on Oblig. n. 82 ; Smout v. Ilberry, 10 Mees. & Welsh. K. 1. 3 1 Stair, Inst. B. 1, tit. 12, § 16. * Ante, § 488, 489. 636 AGENCY. [CH, XVIII. Thus, for example, a factor, as special owner of the goods may, and indeed usually does, sell them in his own name.^ So, a supercargo generally buys and sells in his own name. So, the master of a ship, in the usual course of exercising his authority, contracts in his own name, as Dominus navis? Thus, he pur- chases supplies, gives bottomry bonds, makes charter-parties, and sells the ship, in cases of necessity, in his own name ; and these acts are constantly treated, when within the scope of his ordinary duties and employment, as binding upon his owner.^ Now, in all these cases of factors, (and especially, if they are foreign factors,) and supercargoes, and masters of ships, cases must constantly have arisen, in which the principal has died during the agency, or during the voyage and adventure ; and yet transfers and sales have as constantly been made, when the death of the principal must have been unknown. No case has as yet_been decided, that, at the common law, the power was not lawfully exercised after the death of the principal under such circumstances. _ On the contrary, the general understanding seems to be that the acts done by the factor, supercargo, and master, are under such circumstances, binding upon all the parties in interest. These cases seem, in truth, to be disposed of by the single consideration, that they either are, in fact, cases of powers coupled with an interest, or are governed by the like analogy. § 4*97' The same doctrine seems to be understood to apply to cases of policies of insurance, procured by insurance brokers in their own names, but for and on behalf of their principals, whose right to receive the moneys for losses upon such policies, after the death of their principals, is admitted, without any dis- tinction, whether the death be known or unknown. Being par- ties to the contract, .they are treated, as to the underwriters^ as 1 Ante, § 83, 34, 161. 2 Ante, §36, 294, 315. 3 Ante, § 36, 116-123, 294-300, 315. CH. XVIII,'] DISSOLUTION OF AGENCY. 637 principals, for the purpose *f receiving such losses.^ And, if an insurance broker were authorized to procure a pohcy of in- surance, and should execute his orders, but before the ex- ecution thereof the principal should, unknown to him, die, it would certainly deserve consideration, whether, in such case, the policy would be utterly void by the supposed revocation of the order by operation of law. § 498. Whether, therefore, our law be so strict and rigid in its character, as to the implied revocation, resulting from the death of the principal, in cases, where the agency can be, nay, ordinarily is, and should be, executed in the name of the agent, and not of the principal, (as has been often supposed,) is a point, wMch may, perhaps, be entitled to further consideration and examination than it has been thought hitherto to require.^ If it be thus strict and rigid, it certainly must involve very many practical inconveniences and embarrassments, without obtaining any clear assignable good to the community at large. But, upon such a subject, it is the duty of the commentator to abstain from any further reflections.^ § 499. Sixthly. As to the dissolution or determination of agency Dy the extinction of the subject-matter of the agency, or of the principal's power over it, or by the complete execu- tion of the trust confided to the agent.* Neither of these cases can require any illustration to make them more clear or intelligible. The dissolution results from the very nature of the agency. If the subject-matter of the agency has become ex- tinct, as, if the principal authorizes his agent to sell a particu- lar ship, of which he is the owner, and the ship is afterwards lost, sunk, or destroyed, it is manifest, that there is a physical '1 Ante, § 161, 272, 394. 2 See Dick v. Page, 17 Missouri, 234. 3 As to how far a revocation of authority by the death of the principal, un- known to both parties, will affect the agent with liability for goods purchased for the principal, see Smout v. Biierry, 10 Mees. & Welsh. 1 ; Ante, § 465 a. * Story on Bailm. § 207 ; Pothier, de Mandat, n. 112. AGENCY. 54 638 AGENCY. [CH. XVIII. impossibility of doing' the act. If ^he owner has sold the ship to* another person, before any sale by the agent, there then arises an implied revocation of the authority.^ If the agent, in pursuance of his authority, makes a complete sale of the ship, the agency is functus officio, and, therefore, has its natural termination;^ [and the agent cannot rescind the contract.^] So, if in any other manner the principal's power over the sub- ject matter becomes extinct, the agency over it also ceases. Thus, a guardian ceases to have any power over his ward's property, when the latter comes of age ; and, therefore, the guardian cannot authorize any further act to be done respecting it.* § 500. Here these Commentaries upon the Law o||Agency are brought to their natural close. Upon reviewing the whole subject, it cannot escape the observation of the diligent reader, how many of the general principles, which regulate it, are com- mon to the Roman law, to the law of Continental Europe and Scotland, and to the commercial jurisprudence of England. To the latter, however, we are indebted, not only for the fullest and most comprehensive exposition of these principles, but for the most varied and admirable adaptations of them to the daily business of human life. It is, indeed, to be numbered among the proudest achievements of England, that, while the peculiar doctrines of her own common-law have been cultivated and illustrated by her lawyers, and administered by her Judges, with a sagacity and learning and ability rarely equalled and never excelled, Westminster Hall has promulgated the more enlarged and liberal principles of her commercial jurisprudence with a practical wisdom and enlightened policy, which have com-* manded the respect of the world, and silently obtained for it an authority and influence, more enviable and more extensive eveh than those acquired by her arts or her arms. 1 Story on Bailm. § 207. s See Paley on Agency, 188, 189 ; Seton u.^lade, 7 Ves. 276. 3 Bradford v. Bush, 10 Alabama, 386 ; Smith v. Rice, 1 Bailey, 648. * Story on Bailm. § 207 ; Pothier, deMandat, u. 112 ; Ante, § 484. INDEX. THE KEFJEKENCES ARE TO THE SECTIOKS. ABANDONMENT, When an agent may make, in cases of insurance ACCOUNTS, When agents must keep, and render Negh'gence in keeping, effect of ACTIO DIRE CTA, What it is .• UOfs, What it is . Exerciioria, What it is Institoria, What it is ADMISSIONS OF AGENT, When they bind principal or not ..... {See Kepeesentation of Agent.) ADVANCES AND DISBURSEMENTS OF AGBNT, When agent may sell to reimburse himself for When repayable by principal When not In illegal transactions, not recoverable Right to, when forfeited by misconduct ADVERSE INTEREST IN AGENT, Effect of ADVOCATES, Who are deemed . . Duties of . AGENCY, Nature of Different kinds of . Denomination of, in civil: law Subject-matter of, what may be What may not be What acts are personal to the agent How corporations act in cases of Construction of powers in cases of . General, what Sections . 103 203, 204, 332 203, 204, 332, 333 . 163 . 163 . 42, 115, 163 . 163 134-141, 451, 452 74, note 335-338 348, 349 330, 344-348 348, 349 , 10, 210, 211 24 . 24 . 1-4 24-37 4 .11-13 . 12,13 . 12, 13 16, 52, 53 21,58-128 17-19, 126 6iO INDEX. AGENCY, Continued. Special, what . . ' . . • . Kiglits, powers', and duties of general and special agents, different . When joint only When joint and several Dissolution of agency By act of the party By operation of law . . . 462- By r^ocation of the principal Effect of revocation, as to the agent As to sub-agent . ' • ^ ^ ^ In case of part execution of poWer When power is coupled with an interest, it is not revocable . . . • . . . 476 How, and in what modes, revocation may be by principal Eevocatibn by renunciation of agent By change of state or condition of principal By insanity of principal . . 481 By marriage of principal By bankruptcy of principal When bankruptcy not a revocation Kevocatiou by change of state or condition of agent When marriage of agent is, or is not, a revocation When bankruptcy of agent is, or is not When insanity of agent is . Revocation by death Death of principal, when it is a revocation When not Death of agent is a revocation Effect of revocation by death when unknown In the Roman law In our law Effect of death of agent as to sub-agent . Dissolution by extinction of sflbject^matter {See Dissolution of Agency.) AGENT, Definition of . Who may not be an agent . An infant A married woman Monk . Person outlawed or attainted Villein Alien . Who may be an agent Idiot . Lunatic Sections 17-19, 126 126-134 .42, 43 ■■ . 42-44 462-500 463-469, 476 480, 488-500 463-469 470-474 . 469 465-469 477,483,497 474, 475, 500 46^, 478, 479 '480-486 483, 484, 487 . 481 . 482 * . 482 481, 485, 486 . 485 . 486 . 487 488-494 . 488 . 489 ' 490-492 490-500 491-494 490, 495-500 . 490 . 499 5, 7-1^ . 7,8 . 7,8 7 7 7 7 7, 9, 210 7 7 INDEX. 641 AGENT, Continued. Person non compos mentis A man cannot be principal and agent at the same time Nor a trustee, guardian, &c. Agent cannot delegate his authority Corporation must act by i Nature and extent of authority of General, who is . Special, who is . Eights and powers of general agent Eights and powers of special agent Reasons for distinction between a general and special agent '..... Universal agent, who is a . Powers of agent, how construed . •When he can, or cannot, delegate his power Different kinds of agents Attorney in law Attorney in fact Auptioneer Broker Factor Consignee Supercargo Ship's husband Master of ship ' Partner Cashier of a bank Sections 7 , 10, 210, 211 . 9, 10,210, 211 . 14, 15, 29, 34 16 . 17-22 17-20, 22, 126-133 17-20, 22, 126-133 21, 126-133, 224 20, 21, 126-133, 224 Sub-agent Agent cannot act for both parties ordinarily Power of joint agents When power joint and several How agent must execute authority . 42, 44, When joint sale for several principals good, or not Appointment of . Mode of appointment of . When it may be by parol When it must be by deed Authority of, when implied • . Incidental powers of What powers not implied . How power of agent to be executed What agent may do in cases of necessity 85, 118, 141, 142, 193, 194, 198, 208, 237 When he may sell on credit When not . . • • • When, can bind principal by signing bill of lading 54* . 126-133, 224 21 21, 58-125 14-16, 29, 34, 108 . 23-37 24 25 26, 27, 107, 108 . 28-32, 34, 109 33-35, 110-113 . 33-35 33 35 36, 116-123 . 37, 124, 125 114, 115 15, 201, 217, 386, 390 31, 210-212, 214 . 42, 43 . 42-44 57-90, 144-181 179, note . 46-56 . 46-56 . 46-56 47-49, 51, 52 54-56, 84-123 61, 84, 97-125 . 76-84 86, 146-173 58- 60, 109, 110, 509 60, 109, 110, 209 113 642 INDEX. AGENT, Continued. Seciiom When he may insure .... 111,189-192 When he is bound to insure • . . . 111,189-192 When his declarations and representations bind his prin- cipal, or not . . . . . 134-139, 452 Duties and obligations of, to his principal . . i 144-216 Mode of executing authority by .... 146-182 When the authority must be executed in the name of the principal ...... 147-160 Contracts of, when void ..... 166-171 What is a good execution, or not, of authority 147-160, 179, note What In commercial instruments. . . . 154-160 When agent liable on an instrument or contract, or not . . . . ; 116,154-160,266-300 When he may sue in his own name . . 112, 161, 393-404 When not ... . 28, 391, 392, 402-404 Diligence, what is required of agents . . 182-189, 206.., Duty of agents to keep accounts . . . 203, 204, 208, 332 Instructions to be followed by, except in cases of unforeseen emergency . . . . 89, 189-192 When instructions may be deviated from 85, 118, 141, 142, 193, 194, 198, 208,237 Not to mix his principal? property with his own . 200, 205, 208 Must conform to usage of trade . . . 77,78,198,199 For what negligences liable .. . 192, 198-200, 202, 204, 217 When he may employ, a sub-agent .... 201 How he must deposit the principal's mon^ . . . 200, 208 When a deposifiry, duties of .... 206 Profits made by, belonging to principal . . 192, 207, 214, 340 Cannot purchase for himself, at expense or to the injury of his principal ....... 210, 211 When deemed a trustee for his principal . . . 210, 211 Having an adverse interest, cannot act for his principal . 210,211 Cannot set up title of third persons, adverse to the interest of his principal . . . . . . 217 Duty of giving advice and notice to principal . . 208 Cannot act adversely to his principal .... 210-214 Cannot be both buyer and seller . . . 9, 210-214* Cannot receive application for insurance from himself .* . 9* Cannot set up title adverse to his principal . . . 217 Exception, where principal has obtained goods by fraud . 217 Agent accountable only fo immediate principal . . 217 When sub-agent is accountable to, or not . . 201,217 a When responsible for conduct of sub-agent, or not 201, 217 a, 231 a When responsible for negligence, or not . 190,200,217-220 Liabilities of agent to principal . . . 217 &-235 For nonfeasances and misfeasances . 199, 200, 217-220, 383 INDEX. 64,3 AGENT, Continued. g,ea„^ For what damages liable .... 217 c-223 Remote- and proximate cause of damage . . 217 c-221 Defences of agent against suits by the principal . . 235-261 No loss pr damage to principal . . . 222,236,238 Illegality of transaction .... 195-198, 235 Speculation against public policy .... 235, 238 Deviation from necessity 85, 141, 142, 193, 194, 201, 208, 237 Ratification by the principal .... 239-261 What amounts to a ratification .... 252-261 What is no defence .to agent .... 223 No defence, that in other cases the principal has benefit .... Defences of agent against suits by third persons Liabilities of agents to third persons On contracts When agent liable on coiltract Liable on contract in his own name When he has no authority When principal not disclosed When agent a foreign factor On written contract . On contract under seal 147-150, 152-156, 160, When there is no other responsible principal On implied contract .... Cases of private agents, acting for public companies When agent and principal are both liable When agent is not liable When no credit given to him In case of voluntary associations Liabilities of agent of club What is proof of exclusive credit to Effect of exclusive credit to . . • Effect of giving time to agent Liability of agent to third persons for money paid him by mistake ....-• Liability of, to third persons for torts When not liable . . . . • When liable for torts or negligences of his sub-agents received 223 411 . 261-323 . 261-307 155-159,262-292 . 264-275 . 264, 265 266-268, 268 a. .268, 290, 400 . 269-278 273, 277,278 280-290 274, 276-279 276-279, 282-288 160, 161,278, 291-300 . 261-263 . 287-300 . 287-289 . 286-289 . 297-300 434, 447-449 434, 447-449 . 300 308-322 308-311 201,217 a, 815-322 When not . . . • 217 a, 313, 314, 319 Not liable for his own nonfeasances to third persons . 308-310 But is liable for misfeasances • • . • Reason of the distinction between nonfeasances and misfeasances . . • • • 308-310 308-310 6U INDEX. AGENT, Continued. Sections Not liable for wilful trespasses of sub-agents . . 319 Public agents, -when liable on contracts, or not . 302-306(412 When liable for tortious acts, or not . . 307,319-322 Rights of agents as to principals . . ^ . . 324-350 Commissions and compensation .... 324, 327 Del credere commission ..... 328 When commissions lost or forfeited . . . 330-334 Commissions of, lost by illegal transactions . . 330 So by negligence . _ . . 331 So by fraud or misconduct . . 333, 334 So by gross omission to keep accounts . 332 By breach of orders . . . 333 Reimbursement of advances of . . . . 335-338 Advances of, when forfeited or lost . . 330, 343-350 Expense»and disbursements of . . . . 335-337 When forfeited or lost • . . . . 344-350 Reimbursement of damages to, when and what . . 339 Rights of, in personam, against principal . . 342, 350, 385 Expenses of, after revocation of authority when payable or not . . . . . ... 349 Personal remedies of, against principal . . 342, 350, 385 Right of lien of 'agent . . . . 351-390 Particular lien, what it is . . . . . 354-358 Generallien, what it is .... 354,358,375 How lien is acquired ..... 359, 363 To what debts it attaches ..... 364-366 How lien is waived or lost .... 336-370 How lien is enforced . . . . .371-373 What agents are entitled to a particular lien . . 373,374 What agents, to a general lien .... 375-390 Lien of factors ...... 376-378 Of insurance brokers . . . , .' 379 Of bankers ...... 380-381 Of common carriers . . . . . 382 Of attorneys at law ..... 383 Of solicitors ...... 383 Of sub-agents ...... 386-390 Rights of agents as to third .persons .... 391-416 In cases of contract .... 102, note, 391-412 When agent is a party to a contract, or not . . 403-412 When contract is in writing with agent . . 393-396 When he does not disclose his principal . . ,396 When by usage of trade agent is a party . . 397 When he personally contracts, though as agent . 398 Contracts by master of a ship 36, 116, 266-268, 295-300, 434, 443 INDEX. 645 AGENT, Continued. „ . SectionB When his rights are superior to those of principar . 407,424 When his rights controllable by his |)rincipal 402,^403, 418, 420 When he may replevin goods sold . . '. .396 When he may sue for money advanced . . . 385 When agent may sue on contract, or not . 102, 391-395 Eights of third persons upon contracts of agent 404-406, 420, 421 Payment to or by agent, when good, or not 58, 98, 99, 181, 191, 413, 429-431, 440 Rights of, against third persons, for torts 414-416 For frauds . 415 ATTORNEY, Definition of . . 3, 24 Letter of, what it is 3 Cannot act as principal at the same time 9, 210,212, 213 Liable for negligence . 200 Lien of ■ , ; . 383 Cannot delegate his authority 12-14 In law ...... . 24 In fact ...... . 25 Joint power of, how executed 43,44 AUCTIONEERS, Who are . . . . , . . 27 Powers and rights and duties of . 27, 107, 108 Cannot delegate authority . 108 Whether they may warrant goods sold by them . 107, note Whether they have in all cases a right to receive the purchase-money on sales 102, 108, note Cannot sell on credit . . . . . 209 AUTHORITY, How given 3 When it may be delegated, or not 11-15 Naked, what is . 12, 13 Coupled with an interest . . 164,173, 476-477, 489 Implied power to delegate 14, 15 Construction of, when general language used 21, 22, 62-71 When joint only .... 42,43 When joint and several .... 42-44 Joint, how executed 42-44 How authority is to be executed . 42-44, ] 146-155, 161, 162,165 Whether revocable by parol, when under seal 49, note How authority coupled with an interest is to be executed .... 164,173 When exceeded, effect of . 166-173 When is an excess of, or not 166-175 When less done than authorized, how far binding 166-174 When it must be strictly pursued, or not 78, 79, 165-172, 179-181 When ioint asrents must all execute 42-44 6i6 INDEX. AUTHORITY, Continued. When it is several as well as joint When it may be given by parol When it must be by deed . Execution of deed, in presence of principal Of agent to bind principal as surety Of corporation, when and how given and executed Sections 42-44 46-48 49, 51-53 . 51 . 69 52,53 When authority need not be given by deed 54-56, 58-62 When implied generally . . 54-56, 58, 62, 84, 89-103 Nature and extent of . . . . 57-143 How construed ... 21, 22, 62-71, 74-75 Incidental powers . . 57-76, 81-83, 85-87, 94-106 Incidental powers' of particular agents . . 107-126 How written instruments construed . 62-72, 74-76 How commercial instruments construed 69, 74, 75, 77, 82, 83 Distinction between authority and private instructions 73 Instructions, how construed . . 73-75, 77, 82 Parol evidence to explain, when admissible, or not 76, 77, 79-83 Deviation from, when excused 83, 118, 141-143, 193, 237 What not implied .... 77-79,98,99,119 Distinction between general and special authority as to third persons '. . .17-22,73,126-133 Mode of execution of ... . 146-164 When coupled with an interest . . 164,173- When to be executed in name of principal 147-153 How deeds to be executed by agent . 146-152 How other instruments . . . 152-155 Wlien principal bound by mode of execu- tion ..... 147-155 When agent bound by mode of execution 156-160, 264-278 What is a deviation from authority, or not . 167-172 When execution of, is good ^ro tanio, or not . 167-172 B. BAILIFF OF A MANOR, What acts he may do . What leases he may make BANK, CASHIER OF . Implied powers of When his acts bind the bank . When his acts do not bind the bank BANKER, When agent may deposit with . Lien of . . . BILL OF LADING, Who liable on, for freisht 101 114, 115 114, 115 114, 115 114, 115 202 208, 218 , 380 263, 274 394, 395 INDEX. 647 BILLS AND NOTES, When agent personally liable on bills, drawn, indorsed, or accepted by him When agent can draw or indorse, and how BOTTOMRY BY MASTER OF SHIP BOUGHT AND SOLD NOTE, What BROKER, Definition of . Does not act in his own name May buy and sell goods Has not custody of goods Bought and sold note of Powers and duties of . . 28-32, 34 Cannot delegate his authority For whom he is agent . When for both parties . Diiferent kinds of Implied powers of To insure, when he may receive loss When he may refer or compromise a debt # When he cannot sell on credit . Cannot generally receive payment Policy broker, authority of "May adjust and receive losses on policies 58, 103, 109 Diligence required of . When broker may sue in his own name, or not Has no lien Sometimes acts as factor 34 a, 13, 28, 58, Sections 156, 269 . 59 118,450 28, note . 28 28-34, 109 28,29, 211 28,34 28, and note 109, 187, 209 29, 34 a, 109 28, 31 28, 31 . 32 109, 225-227 58, 103, 191 . ' 58 109, 226 . 109 58, 103, 109 and note, 191 . 127 109, 161 . 34 34, note C. CARRIERS, COMMON, lien of 373,382 CASHIER OF BANK 115 Powers of . . • • . . .115 May dispose of bank funds, to pay its debts . . 115 May draw checks on other banks for its funds . .115 What powers he has not ..... 115 Cannot bind the bank by his unauthorized declaration or act . . • . . . . 115 Payment of forged check by, when it binds the bank . 115 CAUSE, Proximate and remote, of loss, effect of . . 219, 220 CLUB, Committee of, how and when liable, or not . . ' 286-289 COMMISSION, When agent entitled to . . • • 326-330, 348 Wheo not 329-333, 348 Not, on illegal transaction . . . 330 Not, when guilty of negligence . . 331-333 Not, when guilty of misconduct . . 331-334 When forfeited 831-334 648 INDEX. COMMISSION, Bel credere, Meaning of . COMMISSION MERCHANT, Definition of . COMPOSITION OF DEBT, When agent may make COMPKOMISE OF DEBT When agent may make CONFUSION OF PROPERTY, By agent 179, note, 200 Effect of, by joint sale of property of several principals .... CONSENT, Tacit, when implied in favor of agent CONSIGNEE, Definition of Rights of Joint consignees When property vests in , May insure for his principal When agent consignee liable for freight When he may sue on bill of lading CONSIGNMENT ... When treated as joint When as several To or by partners By part-owners To agent, effect of . CONSTRUCTION, Of written instruments, belongs to the court Of powers of agency CONTRACT, When agent may sue on . . . 102, When principal may sue on . 160-168, 402, When agent bound by . . .• 154. When principal bound by . . 146-160,275- Whether principal liable for, under seal Contracts of agents acting for both parties voidable CONTRIBUTION, When agent is entitled to for damages When not .... CONVERSION OF PROPERTY by agent. . . 210, Remedy of principal in case of . 224, 229, CORPORATION, How it must act Must act by agent .... How appointment made by Cannot delegate authority . When authority by, need not be under its seal Implied authority of, to act and make contracts Liable for tort of agent When notice to its agent binds or not Whether notice to the directors is notice to CREDIT, Sale on 60, 109^ 'When an agent may sell on credit . 60, 109, 110, Secnons 112, 215, 328 33 99 99 99 205, 332, note 179, note, 205 54-56, 87-93 . 33 111, 274, 395 . 44 111, 274,395 . Ill . 274 274, 395 . 44 42-44 42-|ft 39,44 40 274, 395 63, 63 a 21, 58-125 161, 391-402 403, 418-429 -160,263-300 -300, 442-462 49 . 211 . 339 339-341 215,217, 225 230, 436, 437 16, 52, 53 16, 52, 53 . 52, 53 . 13, 14 . 52, 53 . 52, 53 308 140-140 h 140 a, 140 h 110, 200, 210 200, 209, 226 INDEX. 649 Sectioiu . 60, 108-110, 209, 226 CREDIT, Continued. When not Exclusive credit, when given to the principal or agent . . 280-300, 431-43^, 446, 447, 449 Effect of exclusive credit . 288, 289, 296-299, 432, 440^49 CUSTOM OF TRADE, Effect of, as to authority ■ of agent . . 60, 77, 86, 87, 96, 106, 189, 225, 226 D. DAMAGES, For what, agent is liable Proximate and remote Rules of ascertaining Probable, agent not liable for Proximate and remote, when agent liable for When agent entitled to . From principals From third persons . When agent not entitled to . DEATH OF PRINCIPAL, Revocation of authority . 349, Effect on acts of agent, when the death is unknown DECLARATIONS, Of agents, when they bind principal, or not Of cashiers of banks, when binding on the banks DEED, Authority to execute, must be under seal Execution by agent in presence of principal Must be executed, how by corporation agents DEFENCES, of agent . For not procuring insurance For omissions in policy For omissions of duty What a good defence Illegality of transaction No damage has occurred Overwhelming necessity . . 85, What not a defence Of third persons, to suits by agents By principal, to suits by third persons By third persons, to suits by principals To suits by agents When giving credit to agent is a good defence DEL CREDERE COMMISSION, Definition of . 33, Effect of . . . • • 33, Makes no difference in extent of authority Duties of factor with such a commission . Compensation of factor under such a commission . AGENCY. S5 18, 141 404- 217C-221 217C-220 217C-221 220, 221 . 217C-221 . 339 . 339 414, 415 . 341 488, 491-496 . 488 134-139 114-115 . 49-51 51 . 149; 235-261 . 222 22^ . 222 . 222, 195, 222, 235 235, 238 142, 193, 237 223 404-409 432-435 , -409, 418-431 404-409 432-435 112, 215, 328 112, 215, 234 112, 215 215, 234 . 328 650 INDEX. DELEGATION OP AUTHORITY, When it may be made, or not Agent cannot delegate Corporation cannot delegate Except in special cases Factor and broker cannot / Auctioneer cannot . When substitution good, or not Auctioneer has no right of . Nor broker Nor factor Nor pplicy broker Shipmaster, when he may delegate his authority DEMAND, by agent, when good, or not . Effect of ratification of an unauthorized demand Of payment by unauthorized agent, not good DEPOSIT, When agent must make, of his principal's money In what manner to be made When agent liable for loss of, or not . 202 Must be made in name of principal DEVIATION FROM AUTHORITY, When excused . . . 85,118,141-143, When not excused .... DEVIATION FROM VOYAGE, When a defence for an agent .' ' . When owner and master responsible for loss of goods after deviation ..... DILIGENCE, What degree required of agents . Governed by usage of trade and habits of business (&e Negligence.) DISCHARGE OF PRINCIPAL, By acts of creditor . By agents taking or giving security DISSOLUTION OF AGENCY . By act of party . By operation of law By revocation of principal In cases of part execution of power What amounts to a revocation At what time it takes effect By renunciation of agent Revocation by change of state or condition By insanity of principal By marriage of principal By bankruptcy of principal When bankruptcy not a revocation Revocation by change of state or condition of agent ...... 481, 485, 486 - SectioTifl 6, 11-16, 29, 34, 108 14-16, 29, 34, 108 . 13, 14 . 14, 15 14, 15, 29, 34 108 . 13-15 108 29, 109 34 a, 110 . 109 36, 120 247, 440 . 247 . 247 . 208 208, 218 206, 208, 218 . 208 193, 237 189-194 218, 219 . 218 182-188 185-191 432-434 433, 434 485-500 463-469 480, 488-500 463-469 465-469 474, 475, 500 470-474 462, 478, 479 480-486 481-484 . 481 . 482 . 482 462, INDEX. 651 DISSOLUTION OF AGENCY, Continued. S^H„„, When marriage of agent is, or is not . . . 485 When bankruptcy of agent is, or is not . . . 486 When insanity of agent is . . . .487 By death ...... 488-494 By death of principal * . . . . . 488 When death of principal is not .... 489 When power coupled with an interest not 476, 477, 483, 497 By death of agent .... 490-492 Whether power in all cases revoked by death in our law. . . . . . 490-500 In cases of supercargoes, factors, and masters of ships, when death of principal unknown . 491-500 DUTIES TO GOVERNMENT, When principal liable for . 335, 3*36 When principal not liable for . . . 343, 344 Not to agent, for duties illegally evaded ... 343-345 Illegal, not repayable to agent . . . 344, 345 Saved by smuggling, not allowed to agent . . 343 E. ELECTION OF PRINCIPAL OR AGENT as debtor. When allowedljll . . . . ELECTION OF KEMEDT^gainst principal or agent 447, 448 101, 269, note, 291, 294, 295 In the Roman law discharged the other party . 294, 295 But not in our law . . . 294, 295 EQUITY, Owner may be bound in equity, by the act or contract of his agent, when not at law . . 148, 153, note, 162 EVIDENCE, Parol, When admissible to explain authority, or not ..... 62, 76, 79, 80, 83 Not admissible to enlarge authority EXCESS OF AUTHORITY by agent, effect of What is an excess What not . When execution of authority good pro tanto EXECUTION OF AUTHORITY Mode of, to bind principal . When agent bound by mode of When good pro lanto •. When coupled with an interest (See Authority.) EXECUTORS AND ADMINISTRATORS, Cannot act adversely to the estate Cannot buy or sell for themselves . . 76-81 165-174 165-174 165-174 167-172 44, 57-90, 144-181 147-164 147-160, 263-290 167-172 164,173 211 211 652 INDEX. EXERCITORIAL ACTION, What it is EXERCITOR NAVIS, Who is in Roman 1 Sections . 163 116, 117 FACTOR, Definition of . Differs from a broker, in what respects Is a general agent General powers and rights of . Buys and sells in his own name Powers of, in cases of necessity When bound by his contract, as well as his 34, 112, 266- principal .... Foreign factor . . . . Domestic factor . . . . . Special property of, in goods . . . . Lien of 34,113, Powers and duties of . . . 34, 34 a, 110- Cannot delegate his authority . Diligence and skill required of When he may sell on credit Incidental and implied authority of May insure ittk May sell in his own name . . . 110, Cannot pledge or barter goods May pledge for ad varices for principal May pledge for charges When he may make a joint sale for several principals When he may sell to reimburse advances • Rights of Lien of, particular and general Rights of, when superior to those of principal 407- Eights of, when subordinate to those of principal When he may sue or be sued on contract When he may be sued . . 290, 400- When he may maintain an action for tort to property Foreign factor, when deemed the sole principal 268, FACTORAGE, or commission . . . ' . FEME COVERT, (See Married Woman.) . Cannot authorize others to act for her generally May in special cases .... May be an agent ..... FOREIGN PRINCIPAL, When agent liable on contract for FRAUD OF AGENT, When principal liable for . 126, 33-34 a 34, 34 a 110-114, 131 1'10-114, 131 34, 110-114 85, 141-143 -268, 290, 400 268, 290, 400 293, 401 34, 111 373, 376, 378 ■113, 131, 209 . 34 a . 186 60, 110, 209 110-113, 131 . Ill 112, 398-403 113, 225 . 113 . 113 179, note 74, note 407-410 873-378, 407 -411,423,424 402,403,410, 418-420 112, 400-402 -402, 447, 448 . 401 290, 432, 448 33 6 6 . 7,8 268, 290, 400 127, 139, 453 INDEX. 65S FRAUD UPON AGENT, When he may sue for FREIGHT, When agent is liable for G. GENERAL AGENT, Meaning of When his acts bind his principal Even though he violates instructions Reasons of the doctrine Factor is a general agent Master of a ship is a general agfent . GUARANTY (del credere) GUARDIAN, Cannot be principal and agent at the same time Sections . 415 263, 274, 395 17, 18 60, 70, 73, 126-128, 131 . 73, 126-133 127 and note, 133 110-114, 131, 224 116-123, 128 33, 112, 215, 328 H. HOMAGE, Cannot be done by an agent HYPOTHECATION, When master of ship may hypotheca|te ship When he may hypothecate cargo also 12 116 118 IDIOTS AND LUNATICS, Cannot be principals Cannot be agents IGNORANCE OF LAW, No excuse . ILLEGAL ACTS, Authority to do, not presumed ILLEGAL COMMISSIONS, Not recoverable . (See Advances.) ILLEGAL CONTRACTS of agency are void 195-197, ILLEGAL INSTRUCTIONS, Not obligatory . ILLEGAL PAYMENTS, When recoverable back, or not IMPLIED POWERS .... When powers are implied . When not INCIDENTAL AUTHORITY of agent INCIDENTAL DUTY of agent INCIDENTS to principal authority, What are . 58-60, INDEMNITY, When agent entitled to . When not . . . • INDORSEMENT, When agent is authorized to make . Power of partner to make . Of negotiable instruments, apparent title by Effect of, by agent . . • • 65* 6 7 225, 226 . 197 . 330 235, S30, 344-348 . 195-197, 235 300; 301, 344, 345 55-60, 87, 92-125 55-60, 87, 92-125 . 77-80, 98, 99 55-60, 87, 92, 125 192-210 73, 77, 78, 85-88, 96-120 339,340 . 341 59 . 124 227, 228 . 269 654, INDEX. Sections INFANTS, Cannot delegate authority ..... 6 May be agents ...... 7 INNKEEPERS, How and when responsible for acts of their servants ...... 458, 459 INSTITOR, Meaning of, in civil law . . . . .8 INSTITORIAL ACTION, What 163 INSTRUCTIONS, How construed . . 72-83, 86, 96, 198, 199, note When principal bound, although violated . 70-73, 126-133, 193-197 When deviation from, is excusable, or not 85, 118, 141, 193-198, 237, 333 Illegal, not to be followed .... 195-197, 235 How and when to be followed . . .188,192-198 Breach of, when agent liable for . ... 332, 333 Commissions lost by breach of . . . 331-333 When restrictive of authority, or not . 72-74, 78, 198 Usages of trade, effect of, on . 60, 76, 77, 86, 96, 106, 159, 196, 199 Parol evidence to explain, when admissible or not . 76-82 Deviation from, when excused . 85,118,141,194-198,237 When not INSURANCE, Who may insure . When broker When factor • When consignee may make Who is bound to insure Who may not insure Ship's husband may not How orders for insurance executed Defences of agent for not procuring, what are good. Broker, duties and diligence required of 189-192 111, 189-192 32, 58, 189-192 111, 189-192 111, 189-192 189-192 35 . 35 . 191 . 222 187, 190, 191 Broker, when he may receive loss Abandonment by agent, when good When agent may adjust loss . When agent may insure or not When agent responsible for negligence in procuring insurance When agent may sue on policy When principal may sue on policy In cases of necessity, whether agent may make -INSURANCE BROKER . Lien of, general and special Rights of . . . Duty of May adjust and receive losses When bound to demand payment of losses u. 58, 103, 191 . 103 . 103, 191 111, 189-191 . 218 109, 111,161,272,394 . 161 . 141 32 . 373, 379 109 and note, 191 58, 187, 190,191 58,103 . 191 58, 103 INDEX. 655 Sections . 38, 39 . 38, 39 164,173 . 338 205, 221 INTEREST, Joint, in property, in cases of agency Several in cases of agency Coupled with a power, effect of On advances when allowed to agent . When agent bound to pay interest INTERPEETATION OF INSTRUMENTS, Generally belongs to the court . . 63, note, 74, note But in commercial instruments the meaning of particular phrases sometimes is left to the jury 74, note, 75 INVESTMENT OF PROPERTY, When agent bound to make, or not for the principal 205, 206 JOINT AGENTS . Powers and rights of When all must act, or not Liability of JOINT CONSIGNMENT . When to be treated also as several, or not JOINT INSTRUCTIONS . How treated JOINT INTERESTS, In cases of agency JOINT OWNERS OF SHIPS Powers and rights of Majority of, govern JOINT POWER OF ATTORNEY What may be done under When all must execute When joint and several JOINT PRINCIPALS Instructions by Powers and rights of JOINT SALE for several principals. When good, or not How loss apportioned among them JOINT TENANTS . . . 38 . 42 . 42 . 42 . 232, 233 38, 39, 42-44 38, 39, 42-44 38 38 8, 39, 42-44 . 40 40, 41 40, 41 42-44 42-44 42,43 42,44 38,39 38,39 38,39 179, note 38, note 38, 39 LEASES, What, and when, a bailiff of manor may make LETTER OF ATTORNEY, What How construed .... LETTERS OF INSTRUCTIONS, How construed When restrictive of authority, or not LIEN, Of agents Nature of lien .... Particular, what .... . 101 3 62-72 73-76 70, 75-83 351-390 , 352,353 354 bob INDEX. LIEN, Continued. Sections General, what .... 354 Particular, how it arises . 355-357 Who entitled to . 355-357,373-400 How acquired .... . 359-363 For what claims and debts . 364, 365 How waived and lost . . ' . . 366-371 How revived ■ . . . . 370 How enforced .... 371,372,385,40.7-412 General, who entitled to . . . 373-385 Does not exclude personal responsibility 385, 407-412 When personal responsibility waived . 385 Of sub-agents .... . 388-390 Of auctioneers .... 27 Of attorneys .... 383 Of factors .... . 34,384 Of brokers .... . 34, 379 Of bankers .... 380 Of common carriers 382 M. MANDATARY, In civil law . MANDATE, In civil law, what M AND AT OR, Ja civil Uw . MARRIED WOMAN, Cannot generally delegate authority May in special cases . May be an agent . Rights of, as to separate property . MASTERS, When liable on contracts of servants When for torts of servants When not MASTER OF SHIP Powers and duties of As to employment of ship As to repairs of ship . What he may do, or not As to shipment of officers and seamen As to equipment and repairs of ship When he may delegate his authority Power to hypothecate Treated as quasi owner Treated as general agent of owner Has special property in ship When liable on contracts When he may sue in his own name 313, 308, 317,456, 36, 36, 119, 116, 117,278, 116, 36, 116,117,160-161, 4 4 4 6 6 7,8 7,8 442-451 452-456" 458-462 36 116-123 116-121 116,117 116-123 120 122, 123 36,, 120 116, 117 294, 315 117, 128 116,117 278,294 116, 161 INDEX. 657 MASTER OF SHIP, Continued. For freight .... For a tort to ship Power over cargo .... Power in cases of necessity When agent of underwriters When owner bound, although master disobeys his in- structions ..'.., Powers of, when supercargo When his acts bind the owner, though made in his name ...... Sale by, in cases of necessity When master bound by contract . When exclusive credit given to, or not Liability of, to third persons for torts Liability of, to third persons for his own negligences Liability of, to third persons for the negligences of his crew ...... Not liable for wilful trespasses of his crew When he may sue or be sued on contracts MISREPRESENTATIONS OF AGENT (iSee Representation.) MONEY, Paid by or to agent, when recoverable back Paid by or to agent by mistake, when recoverable, and by whom ..... Paid by mistake to agent, when recoverable back from him ....... 300 N. NECESSITY, When it excuses deviation from orders 83, 118, 141, 142, 193- 198 Power of master of ship, in cases of, over cargo 118, 141, 208, 237 Power of other agents, in cases of 85, 141, 193, 237 Agents from necessity, powers of 85, 118, 141, 142, 193, 237 Salvors, power of, in cases of . . . . 142 Sale in cases of .... 118,141-143 NEGLIGENCE, When agent responsible for 199-201, 217-226, 333, 348 When agent liable for negligence of sub-agent 201, 217> 217 a, 321,322 When not ...... 202 When principal liable for negligence of agent 252-262, 452-456 Is ordinarily a question of fact, not of law . . 308 Seciions 116 116 118,141 118, 141 118 126 -133, 443 • 36 161 294-296 118,141 294 -299, 399 . 294-299 308, 315 308 315-317 ■ 315-318 318 294- -299, 399 134- -140, 4S2 398, 435,451 398, 435, 451 658 INDEX. NEGLIGENCE OF AGENTS, When principal responsible for 252 Public agent, when liable for acts of sub-agent, or not . . ... When public agent liable for his own torts . NEGOTIABLE INSTRUMENTS, Apparent title to, in agent, effect of . NUGOTIORUM GESTOR, of the civil hw . NOTICE, When notice to agent is notice to principal, or not When agent bound to give notice to principal of his acts ...... 'By unauthorized agent, not good Effect of notice, that agent is violating his duty 72, 73 What is notice of defect of title, or not Effect of notice, that agent is acting as such . What is, to corporation or not . Whether notice to one director of corporation is Seclions -262,452-456 322-332, 447 319-322 34, note, 228 142, 143 140,451 . 208 245-247 127, 224-228 . 228 . 444 140 a, 140 b 140 a, 140 b o. OFFICERS, PUBLIC, When liable on their contracts . When not When liable for torts and illegal acts Not liable for torts of under-officers Not liable for negligence of under-officers . When they cannot sue on contracts ORDERS, Construction of ... . Parol evidence to vary, when admissible, or not Usage of trade, effect on . . . . 306 302-306 307, 319, 320-322 . 319, 321,322 319, 3)9 a, 321,322 .412 . 69-75, 82, 86 62, 76, 77, 79, 81 77, 78, 86 189-192, 217-224,333 85, 141, 193, 237 . 191-193, 223, 226 . 195 217-227 Breach of, agent liable for Deviation from, when excugab When not Illegal, not to be obeyed Defence for breach of . OWNER OF SHIP, When bound by acts of master . . 116-128,294-299 When he may sue or be sued on contracts of master . 161 When bound by contracts of master . . 116-123,294-299 When bound for torts and negligences of master and crew ...... 308, 413, 456 a When, of the pilot ..... 456 a Not liable for wilful trespasses of master and crew . .319 OWNERSHIP, APPARENT, Effect of . . . 34, 93, 110-112, 164, 224, 227, 228 Of negotiable securities . . .85, 92, 227, 228 Acquiescence in, . . . . . . 90-93 INDEX. 659 SectionB 37, 39, 124, 125 37, 39, 124, 125 37, 39, 124, 125 39 39 PARTNER, Agents of partnership When one partner may bind the partnership When not Consignment by . Instructions by . . . May delegate power to agents May pledge and sell partnership property May borrow money . May make and negotiate notes PART-OWNERS OF SHIPS . Powers and rights of . When majority of, govern . PAYMENT, To or by agent, when good 58, 98, 99, 181, 191, 413, 429-431, 440 When not . . . . 98, 99, 191, 413, 440 Implied authority to receive, or not . 58, 98, 99, 102, 103, 191 In what manner to be received . 98, 103, 181, 202, 413, 430 Must be in money 98, 103, 109, note, 181, 202, 215, 413, 430 Factor may receive . . . . . .112 39 124 124 124 40,41 40,41 40,41 Broker may not receive Policy broker may receive When agent must demand Demand of, by unauthorized agent, not good To agent, when revocable, or not To agent, when recoverable back from agent, or not Illegal, effect of . . . Of illegal interest, not recoverable back When taking security amounts to By mistake .... PILOT, When owner liable for misfeasance or negligence of, or not When master liable therefor . PLEDGE, When power to, exists, or not Factors have not general power to . Factors may pledge in special cases . When principal may recover POLICY BROKERS, Duties of Diligence of . Powers and rights of . Lien of ... • POLICY OF INSURANCE BY AGENT, When agent may procure When agent bound to insure Who may sue thereon When agent may sue . When principal may sue thereon 109 58, 103, 109 and note, 191 191, 200 . 247 300, 301 300, 301 300, 301 344-348 432-435, 449 435, 451 456 a . 316 . 78, 99 112, 113, 225 . 114 . 225 32, 58, 187 . 191 58, 191 34, note, 379 111, 190 111, 190 109, 112, 161, 272, SH 109, 112, 161, 272, 394 . 109, 161, 394 660 INDEX. Sections 319 6,-321 319 a, 321 319, 321 42-44 42,43 62-69 58-60, 73, 77, 78, 85-126 55, 56, 58, 59, 87-89, 100-156 42,44,146-155,161,162 . 146-155, 161, 162 76-78, 98, 99 145-155, 161, 162, 165 164, 173 of 476, 477, 483 POSTMASTER, DEPUTY, Liable for his own defaults Not liable for defaults of his clerks . POSTMASTER-GENERA.L, Not liable for defaults of deputies POWER, When joint (5ce Authority.) When joint and several Of attorney, how construed Incidental powers Implied powers . How executed . And in whose name What, not implied Mo'de of execution of Coupled with an interest, how executed Coupled with an interest, not revoked by death principal ..... PRINCIPAL, Definition of 3 Who may delegate authority . . . .6 Who not ... . . . 6 Infant ...... 6 Married woman ..... 6 Idiot or lunatic . ... 6 • Cannot at same time act as agent . . 9, 210, 211, 213 When bound by his silence or acquiescence . . 87-92 When bound by act of general agent . . 126-183, 165 When bound by mode of execution of power . 147, 155 When bound by instrument executed by agent 147-165, 161, 162 When not ..... 147-155, 165 When bound as surety by agent's writing . . .69 When he may avail himself of instrument executed by agent ...... 160, 418-421 When he may sue on instrument executed in name of agent . . 160-163, 269, noie, 402, 403, 418, 428 When he may sue on contract of his factor . 161, 270 When he may spe on contract of master of ship . . 161 When he may be sued How far bound, when authority exceeded What is an excess of authority Liability of agent to When agent not liable to Remedy of, in rem . Remedy for conversion of his property When liable for torts of his agent . When liable for torts of sub-agent . When not liable for torts- of agent . When responsible for acts of servants of his agents or sub-oontractoi's . . . . . . 161, 269, 270 165, 166 165-172 217 6-234 235-237, 239, 240 . 224, 229-231 229-231 252-262, 465-474 201, 217, 308, 309,321 . 320, 456-461 453-455 INDEX. 661 PRINCIPAL, Continued. Section Personal responsibility of, to agent . . 32.4, 342, 350, 385 For commissions .... 324, 326, 328 For advances and disbursements . . 335, 346 For damages ..... 339, 340 For what damages not liable .... 341 When liable on notes or bills made by agent . . 79 When not liable for duties paid by agent . . . 343 Eights of, against agent . . 217-234, 402, 463, 407-410 Eights of, against third persons . 402-410,417-422,429-440 Liability of, to third persons on contracts of agent . . . . 160 a, 161, 404, 418-421 Liability of, for agent's expense in defending a suit . 339 Eight of, to sue on contracts of agent . . 402, 403, 410 Eight of, to sue for torts to his property . . 436-439 When he has no right to sue third persons . . 422-424, 432 When money paid to or by" agent recoverable back . 435 Eights of, against third persons for torts and frauds ' 436-439 When and what acts of agent enure for benefit of principal 440 Exclusive credit to agent exonerates 288, 289, 396, 432, 446 Eights of third persons against 161, 404-407, 442-462 On contracts of agent For acts of agent For torts and negligences of agent PROCUEATION, What . How construed ' Extent of power by PEOCUEATOES, In civil law In law In fact How appointed Whea authority of, is implied Powers of How powers of, construed . PEOFITS, Made by agent, belong to principal Probable, not a rule by which to fix damages PEOXENET^ oi the cmlla,y7 . . ■ Were brokers PEOXIMATE CAUSE of damage. What is PUBLIC AGENT, When liable on contract When not . , When he may sue on contract When not Acts and representations of, do not bind the public unless he has authority . When exclusive credit given to When liable for illegal acta and demands 192 442-452 451,452 452-462' 3 70, 71 87-89. 24. 24 25. 47-49 56- 61 70, 71^ 207, 214, 340' 220, 221 SO- SO 217-221 302-306 . 302-306 . 412 . 412' 307 a, 314 . 306. 307 AGENCY. 56 662 INDEX. PUBLIC AGENT, Continued. Sections When liable for his own torts . . . 319-322 When liable for acts of sub-agenta . . 328-332, 386, 388 When not liable for torts of sub-agents . . 319-322 When he cannot sue on contracts .... 302 Representations by, when they bind the government, or not . . - • . • . . 307 a Sales by, whether he may warrant^n sales . 107, note 5 PURCHASE, Agent cannot make, to injury of principal . 210, 211 K. RATIFICATION BY PRINCIPAL .... 239-260 Effect of .... . 239-244, 249, 251 Effect of, as to third persons . . 244, 440, 445, 455 When it binds third persons . . . 244, 440, 445 When not ..... 245-247,440 Effect of, on sub-agency .... 249, 455 Of part, effect of ...... 250 Not good for part, and bad for part . . . 250 Cannot be recalled ..... 242, 250- What will amount to ... . 252-26G When implied generally . . . .90, 253-260 When implied from silence . . . .90, 255-259 When implied from habits of dealing . . . 260 When implied from acquiescence . . . .90 REFERENCE. {See Arbitration.) 58 When agent has power to refer . . . .58 RELEASE, When agent may make, of debt . . . 99,102 REMEDIES OF PRINCIPAL, Against agent . . . 217-234 In rem . . . . . ' . 224, 229-231 In personam ...... 232, 283 Against third persons . . 402-410,417,422,429-439 REMOTE CAUSE OF DAMAGE, What is . . . 217-220 When agent liable for .... 217-220 When not . . . . . .220 REPRESENTATION OF AGENT (See Admission.) Of private agent, when it binds principal, or not . . . . . 134 Of cashier of a bank, when it binds the bank Of public agent, when it binds the government, or REVOCATION OF AGENCY . By act of principal . By operation of law . By expiration of time By change of state or condition 463 -139,451,452 . 115 not . 307 h 462-500 ■465, 469, 476 480-496 . 480 481-484