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property brought by the guest to the inn, notwithstanding even that the property does not belong to the guest, or is not ordinary traveller's luggage (h); and with regard to carriages and horses, the lien is not limited to the charge for the keep of the horses and the care of the carriages, but extends to the whole charges against the guest (i). The Innkeepers' Act, 1878, as before noticed, now gives the innkeeper a right of actively enforcing his lien (k). As before noticed on lodging-house the decision in Calye's Case, a lodging-house or boardinghouse keeper house keeper is not liable as an innkeeper; he is liable as innkeeper's. only in a less degree, his duty being to use an ordinary amount of care with regard both to his guest and his guest's goods (1).

Liability of

or boarding

not the same

Another

classification

We have now gone through the different kinds of bailments in Lord Holt's division in Coggs v. Bernard (m), on which it is apparent that another classification of bailments. (which has been stated in various text-books) may be given. It has the advantage of simplicity, and is as follows:

1. Bailments exclusively for the benefit of the bailor. (This will include those styled depositum and mandatum.)

2. Bailments exclusively for the benefit of the bailee. (This will include that styled commodatum.)

(h) Snead v. Watkins, 1 C. B. (N.S.) 267; Threlfall v. Barwick, L. R. 7 Q. B. 711; 41 L. J. Q. B. 266, affirmed on appeal, L. R. 10 Q. B. 210; 44 L. J. Q. B. 87. But this rule must not be taken in any way as applying to give an innkeeper any right of lien in respect of goods the property of a third person sent to the guest in the inn for a temporary purpose, e.g. a piano or other article upon hire (Broadwood v. Granara, 10 Ex. 417).

(i) Mullinger v. Florence, 26 W. R. 385; 38 L. T. 167.

(k) Ante, pp. 87, 88.

(1) Dansey v. Richardson, 3 E. & B. 144. This case also shews the doubt on the point of the extent of the liability of such a person in case of a loss to his guest's goods arising from his servant's negligence See also as to lodging-houses, Holder v. Soulby, 8 C. B. (N.S.) 254.

(m) See ante, p. 99.

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3. Bailments partly for the benefit of the bailor and partly for the benefit of the bailee. (This will include those styled locatio rei, vadium or pignori acceptum, and locatio operis faciendi.)

There being a property in the case of goods bailed Bailor or both in the bailor and bailee, generally speaking either may maintain an action in respect of the same (n).

(n) See also post, pp. 318, 319.

bailee may generally maintain an action in respect of the goods bailed.

Matters

treated of in

this chapter

mercantile.

CHAPTER V.

OF MERCANTILE CONTRACTS, AND HEREIN OF BILLS OF
EXCHANGE, PROMISSORY NOTES, AND CHEQUES.

ALTHOUGH for convenience the title given to this chapter is "Mercantile Contracts," &c., it must not be not exclusively understood that the matters treated of in it are exclusively mercantile, but only more generally so; for instance, both agencies and partnerships may of course occur in matters not strictly mercantile.

Who are

agents.

alium facit per se.

It must be manifest that in many matters of ordinary business persons may be unable to do personally all acts coming within the scope of their transactions, and for this reason they employ other persons to act for them, and such persons are called agents for them the principals, and acts done by the agents are considered to be done by the principals by force of the Qui facit per maxim Qui facit per alium facit per se. Generally speaking, what a person can do himself he may do by an agent, and, ordinarily speaking, an agent may be authorized by mere word of mouth; but to execute a deed an agent must be authorized by deed, and the agent that is allowed under the 1st and 3rd sections of the Statute of Frauds (0) must be authorized by writing. The relation of principal and agent requires the consensus of both parties; there must be an express or implied assent to, or a subsequent ratification of, that relation (p). No person can authorize another to do for

(0) 29 Car. 2, c. 3.

(p) Markwick v. Hardingham, L. R. 15 Ch. D. 349; 29 W. R. 361; 43 L. T. 647.

him what he cannot do himself, for naturally he cannot pass to another a power which he never had himself; but though this is so, persons who cannot do acts Persons not sui juris may for themselves are generally speaking competent to act nevertheless as agents, e.g. infants or married women, for they are exercising not their own, but another person's power (q).

The powers of an agent vary according to the authority he is invested with, and from these powers there are said to be three kinds of agencies:

act as agents.

1. Universal agency, which is the largest and widest Three kinds of agencies. kind, being a general authority to do any acts without reference to their character, and this is not of constant

occurrence.

2. General agency, which is the next largest, signifying a power to do all acts in some particular trade, business, or employment, e.g. the authority that is vested in a wife to bind her husband for necessaries without any particular sanction on each occasion from him.

3. Special agency, which is the most limited and usual case of agency, being where a person has simply an authority to do some particular act for the principal (r).

between

agencies on

There is a very important difference to be noted be- Differences tween universal and general agencies on the one hand, universal and special agencies on the other hand, with regard and general to the power to bind the principal. In the former, the one hand and special even although the act exceeds the agent's authority in agencies on the particular instance and is contrary to the principal's instructions, yet if it comes within the scope of his ordinary

the other.

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Omnis ratihabitio

et mandato priori æquiparatur.

authority the principal is liable (s); thus, for instance, supposing a servant to have a general authority to order goods for his master, and the master one day withdraws that authority, yet if the servant orders goods as theretofore, the tradesman not knowing of such withdrawal, the master will be liable, because the act comes within the scope of the agent's ordinary authority. In the case of special agency this will not be so; it is the duty of the party contracting with such an agent to inquire and see as to the extent of his authority, and if he exceeds it the principal cannot be liable (†). So that where the owner of a public-house left a manager in possession of the premises, instructing him only to deal with particular persons, it was held that there was no evidence to be left to the jury of his liability to other persons for goods supplied (u).

But retrotrahitur although an act may be done without any authority from the principal, and therefore not bind him, yet if at the time of doing the act the agent professed that he was acting for the principal (x), it may be subsequently ratified by the principal, and become his act just as much as if he had authorized it beforehand; for the maxim is, omnis ratihabitio retrotrahitur et mandato priori æquiparatur (y).

As to the effect of giving credit to an agent.

An important point on the law of principal and agent is as to the effect of a person contracting with an agent giving credit to the agent; of course, generally speaking, an agent incurs no personal liability, and the person contracting with him will charge his principal, but it may be that it is not known that he is an agent, or though known that he is an agent, it is

(s) Smethurst v. Taylor, 12 M. & W. 545; National Bolivian Navigation Co. v. Wilson, L. R. 5 App. Cas. 290; 43 L. T. 70; Chapleo v. Brunswick Building Society, L. R. 6 Q. B. D. 696; 50 L. J. Q. B. 372; 29 W. R. 529.

(t) East India Co. v. Hensley, 1 Esp. 111.

(u) Daun v. Simmons, 28 W. R. 129; 41 L. T. 783.
(x) Per Parker, J., Vere v. Ashby, 10 B. & C. 288.
(y) Maclean v. Dunn, 4 Bing. 722.

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