Van Ostrand v Reed 157, 253, 257 Wickens v Townsend

36

36

321

253

10, 390

382

348

132, 133

170

170

11

51

Williams & Williams

Williams Woodard

235

179

A

TREATISE

ON THE

LAW OF PRINCIPAL AND AGENT.

CHAPTER I.

OF THE RELATION OF PRINCIPAL AND AGENT.

PART I.-SECTION 1.

THE relation of Principal and Agent takes place whereever one person authorizes another to do acts, or make engagements in his name.

In all cases where a man has power as owner, or in his own right, to do any thing, he may do it by another ;(A)

(A) " Agency," Mr. Chancellor Kent says, (2 Comm. 612,)" is founded upon a contract either express or implied, by which one of the parties confides to the other the management of some business, to be transacted in his name, or on his account, and by which the other assumes to do the business and to render an account of it. The authority of the agent may be created by deed or writing, or verbally without writing; and for the ordinary purposes of business and commerce, the latter is sufficient." Commonwealth v. Griffith, 2 Pick. 18; Long v. Colburn, 11 Mass. Rep. 98.

"That power of acting which one man has, being transferred to another, is called an authority, and this the law allows of; for as a contract is no more than the consent of a man's mind to a thing, if such consent or concurrence appears, it would be very unreasonable to oblige him to be present

as to sell his lands, goods, &c. but a bare authority can only be executed by the person to whom it is given.(a)

at the execution of every contract, since it may be as well performed by any other person delegated for that purpose." Bac. Ab.-Authority A. In the next paragraph it is said:" But such delegation or authority must be by deed, that it may appear that the attorney or substitute had a commission or power to represent the party; also that it may appear that the authority was well pursued." That this position must be taken in a very restricted sense will appear from the sequel. Post, 158, and the passage just quoted from Kent's Commentaries.

A person duly authorized to act for another is denominated an agent, which is nomen generalissimum, and includes a variety of persons who are authorized to act for their principal with powers more or less extensive, either by the express terms of the power, or by implication. The terms agent and attorney are frequently used synonymously: (Pratt v. Putnam, 13 Mass. R. 363.) Thus we constantly speak of a letter, or power of attorney, as the formal instrument by which an agency is created. But the term attorney is often taken in a more limited sense, and confined to the person whom a litigant has delegated to represent him in judicial proceedings in a court of law. The attorney who performs the same functions in a Court of Equity is denominated a Solicitor. In the Admiralty and Ecclesiastical Courts he is called a Proctor.

There are certain persons who are incapable of appointing an agent to act in their behalf. This incapacity arises either from the want of that degree of judgment, which is requisite for the due performance of any act, as in the case of idiots, lunatics, and children of tender years; or, is a disability arising from positive institution; as in the case of married women; and of infants, who, though in other respects competent to act discreetly, have not attained the period of majority assigned by law. The restriction as to married women is perhaps not unqualified; for as a feme covert may in many instances act, as regards her separate estate as if she were a feme sole, the right of appointing an attorney to act for her, would seem to be a necessary incident. See Story on Agency, § 6.||

(a) 1 Salk. 96; 9 Co. 76; 2 Roll. Rep. 393; Edmiston v. Wright, 1 Campb. 88. So an attorney for making livery cannot make another attorney. 2 Roll. Ab. 9; || Post, 175.|| "So if there be tenant for life, remainder, &c. with power to make leases for twenty-one years, he cannot make a lease by letter of attorney, by force of his power, because he has but a particular power which is personal to him." Lady Graham's case, 24 Eliz. 9 Co. 76. And things annexed to the person, as homage and fealty, cannot be performed by attorney. Ib. "So it is said, 33 E. III. Trespass, 253, the lord may beat his villein with cause or without cause, but if the lord commands another to beat his villein without cause, he shall have an action of battery against him who beats him in such case." Ib.