1817.

Hughes

Hay in reply. The instance mentioned by Mr. Nicholas, in FEBRUARY, which a Court of Equity acts in rem, to wit, the proceeding in foreign Attachment, rather confirms than weakens my position. The proceedings in that case are authorized by Statute; anterior to which there is no instance of a Court of Equity exercising the jurisdiction conferred by it.

It is not pretended that there is any express provision in the Act requiring residence, but only a strong implication, that such was the intention of the Legislature, from the various clauses relating to the arrangement of the papers, and from the obvious policy of the law. Some rule was necessary to be established for that purpose, to control the arbitrary discretion of the Clerk; and none was more convenient, than the one adopted.

Besides, the implication, however strong, cannot have the effect contended for. It is a sound rule of construction, that the jurisdiction of a Court cannot be ousted by implication, but must be expressly taken away.

As to the policy of the law, Mr. Nicholas seems to think that it was intended for defendants alone. This surely was not the case. If it be an evil for a defendant to travel a great distance to the Court, it is as great an evil for a plaintiff. The argument founded on the policy of the law then proves nothing.

February 20th, 1817. Judge ROANE pronounced the Court's opinion, that the Decree be reversed, the plea to the Jurisdiction over-ruled, and the cause remanded for farther proceedings.

V.

Hall.

Travis against Claiborne.

Decided Feb. 27, 1817.

PHILIP CLAIBORNE, as Trustee for the benefit of David and 1. If a Slave, conveyed by James Halliday and Company, brought an action of Trover Deed of Trust against Joseph H. Travis, in the Superior Court of Brunswick to County, for the value of a negro man slave named Aaron.

secure the payment of a Debt, be permitted to remain in the Debtor's

possession, who thereupon, by an Agent, sends him out of the State, and sells him; such Agent, not having actual notice, of the lien on the slave, before he pays over the money to his principal, is not responsible to the Trustee, or the Creditor; notwithstanding the Deed was duly recorded.

FEBRUARY,

1817.

Travis

V.

Claiborne.

The parties agreed a case, from which it appeared, that a certain John Drummond, jun. being in lawful possession of the slave in the declaration mentioned, conveyed him to the plaintiff by a Deed of Trust, to secure the payment of a debt to the said D. & J. Holliday and Company, which Deed was duly recorded in the County Court of Brunswick; that, afterwards, the defendant carried the said slave, as agent for the said Drummond, to some part of the western country, and sold him under a contract, to that effect, for a commission of twelve and a half per cent. on the amount of the sale, and paid over the amount to Drummond; that the plaintiff, the defendant, and the said Drummond, ail resided in the County of Brunswick, and D. & J. Halliday and Co. were merchants of the town of Petersburg; that the debt to them remained unsatisfied; that the slave had remained in Drummond's possession in the said County, from the date of the Deed, 'till the defendant carried bim away; that the defendant, previous to his payment to Drummond, had no notice from the plaintiff, (other than may be inferred from the facts agreed,) of the lien upon the slave in controversy; and that no actual demand of the slave was made previous to the institution of the suit.

Upon this case, the Superior Court of Law gave judgment for the plaintiff; whereupon the defendant appealed to this Court.

Friday, February 27th, 1817, the Judges delivered their opi

nions.

Judge COALTER. If this case turned altogether on the general principle of the liability of an agent or servant, who, by authority of his principal, had converted goods of another, which, by finding or otherwise, had come to the possession of that principal, and to which he never had a title, the question, how far this Court would consider the broad doctrine of the ir responsibility of agents, laid down in the case of Mires v. Solebay, in 2 Mod. 242, as being over-ruled by the cases of Perkins v. Smith, 1 Wils. 328, and Parker v. Godin, Stra. 813, would, with me, be a question of no little magnitude. I am willing to say, however, that the case in Modern, at present, appears to me to maintain the most reasonable doctrine, although it

seems to be considered by Buller, Saunders and Chitty, to have FEBRUARY, been over-ruled by the other cases above referred to.

Those cases, however, appear to me by no means as strong, in favour of the agent, as the present. In the case in Wilson, the agent, in the first place, undertook to invest his master with the right of property, and then to dispose of it for his use; and thus, as it were, took on him the risk of interfering with the rights of others.

In the case in Strange, the agent undertook to pawn, in his own name, the goods of a trader, who had absented himself, and was a bankrupt, and to pay over the money to his wife; and, although the Judges do not put these cases on the ground of actual notice of the bankruptcy, which must have been found by the Jury, if thought important, and not inferred by the Court, yet these were the circumstances; and it might well have occurred to those agents, that they were possibly doing a wrong to third persons.

But, in this case, the plaintiff, although he had acquired a title to the property from the former owner, defeasible by his paying the debt within the time, which, whether recorded or not, was good as to that party, and any agent acting for him, with notice; yet this title is unaccompanied with any change of possession, or other notice, except by recording the Deed, to shew that the right of property had been transferred. If recording the Deed does not affect the agent with notice, but only makes it good against creditors and purchasers, when it would otherwise be void as to them; and if the rule caveat emptor does not apply to him, as at present I incline to think, then he would stand, in this respect, as at common law; that is, the plaintiff shews a title under his Deed, but he has permitted the grantor to remain in possession.

It may be said though, that this possession is consistent with the Deed, which is a mortgage or Deed of Trust, and therefore not, per se, fraudulent. But, in Ryall v. Rolle, 1 Wils. 260, it is said that a mortgage of personal property is void as to creditors, if the mortgagor remain in possession; and perhaps the case of Edwards v. Harben, 2 Term Rep. 587, is a confirmation of this doctrine, rather than the reverse; especially if the continued possession by the mortgagor is not stipulated for in the Deed. Be this, however, as it may, and admitting that

1817.

Travis

V.

Claiborne.

1817.

Travis

V.

FEBRUARY, the continued possession of the grantor is under circumstances, which do not make the transaction fraudulent per se, it may nevertheless operate that effect upon innocent agents, and ought, therefore, not only to divest the case, as to them, of those circumstances of apparent wrong, which may have had weight in the cases in Wilson and Strange above noted, but to be thrown into the opposite scale, so as to operate in their fa

Claiborne.

vour.

For these reasons, I feel little hesitation in concurring with my brother Judges, in reversing the Judgment in this case.

Judge CABELL. The sale of the slave in this case, was unquestionably a conversion; and the sale having been made by Travis as the agent, and for the benefit of Drummond, it is equally clear that Drummond, the principal, is liable therefor. The only question is, whether Travis, the agent, who has paid over the money to his principal, is also liable. I am clearly of opinion that he is not.

The command of the principal will not justify the agent in committing a tresspass, nor even an apparent wrong; in such a case, both the principal and agent are liable to the party injured. But where the conduct of the agent is within the limits of the authority confided to him; is fair, and unattended by circumstances, sufficient to apprize him that he is acting wrongfully in relation to others; or, in other words, where he does not commit an apparent wrong, the principal and not the agent is responsible for the act. These are the general principles upon this subject, and they are clearly established by the case of Mires v. Solebay, 2 Mod. 242. There is nothing in the case of Perkins v. Smith 1 Wils, 328, nor in that of Parker v. Godin, 2 Str. 813, in opposition to these principles. The circumstances were such, as ought to have convinced those agents, that they were acting unlawfully; and it was expressly on that ground, that they were made liable. There is a total absence of such circumstances in the case now before the Court. The creditors, Holliday and Co., took a lien only, upon the property of their debtor, Drummond; permitting him, however, to remain, as before, in possession, and to exercise all the rights of ownership. Travis had no reason (from any thing that I have observed in this record) to doubt that Drummond was the

1817.

Travis

v.

Claiborne.

real, as he certainly was the apparent owner of the property. FEBRUARY, He has done no more than what Drummond employed him to do, and what he believed Drummond might lawfully employ him to do; he has acted fairly and has honestly paid over the money. I therefore think him absolved from all liability. A contrary decision would, in my opinion, subvert the law upon this subject, and produce much inconvenience, by putting an end to almost all agencies. In thus absolving a fair and innocent agent, creditors will have no just ground of complaint. They still have recourse against their debtors, or may pursue the property in the hands of the purchasers.

I am of opinion to reverse the judgment.

Judge ROANE. The reason, why the acts of the agent are in many respects considered as the acts of the principal, arises from the relation, which exists between them; and, as the liberty of acting by an agent is an indulgence to the principal, it is reasonable that he should be bound by the acts of his agent, done in pursuance of the authority given him. In such case, the act of the agent is the act of the principal; and no action is imposed upon the latter, but by himself, through his agent, acting under his authority; and the agent shall be held not responsible. No injury is done to third persons by this construction they are in the same situation, as if this indulgence had not been allowed the principal, and he had been compellable personally to do the act. If, on the other hand, the agent goes beyond his instructions, and does more than they authorize; or if he does an act, (as a trespass,) which his principal ought not to require, nor he to obey him in; in either case, his character of agent ceases, and he shall be himself responsible for his acts. Were this not the case, it would be in the power of the agent to subject his principal, by his own misconduct, to what actions he pleased.

The case before us is a case of the former character. The agent has done nothing, but what he was authorized and required by his principal to do. He sold a negro for him, long owned and possessed by him, and paid to him the proceeds; and whether the principal had or had not a right to sell the negro in question, notwithstanding the Deed of Trust, depended upon circumstances within his knowledge; upon the state of