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merchant, or other person, and is intrusted with the possession, and apparent ownership, of the goods to be sold by him, for his principal. A broker has not the custody of the goods of his principal. He is merely empowered to effect the contract for the sale (m).

An agent for the sale of goods sometimes acts under a del credere commission; that is, for a higher reward or commission than is usually given, he becomes responsible to his principal, for the solvency of the vendee; in other words, he gaurantees the due payment of the price of the goods: but, even in this case, the contract is in law between the employer and the purchaser (»); and it seems the agent's liability is collateral, and his guarantee should be in writing, under the Statute of Frauds, 29 Car. 2, c. 3, s. 4, (0).

2. Appointment of an Agent, and Revocation of his Power. An agent, whether he be a mercantile or domestic servant, may, in general, be appointed or authorised by parol. Writing is not necessary to empower him to act, even for the purposes described in the 4th section of the Statute of Frauds, 29 Car. 2, c. 3, viz, to charge executors personally; to charge a person in the debt of another; or upon an agreement in consideration of marriage; or upon a contract or sale of premises, or an interest therein; or upon a contract not to be performed in a year. Although these contracts are to be in writing, and signed, an agent may sign them without having a written authority. Nor is a written appointment necessary to authorize an agent to sign an agreement for the purchase of goods, under the 17th section of the act. There is, however, an exception in the case of a deed, which cannot be executed by an agent, so as to bind his principal, unless the authority to execute the instrument, be conveyed by a specialty (p). And for the purposes of confirming a debt contracted by a principal during infancy; or reviving his debt barred by the Statute of Limitations, or by bankruptcy (q); or of creating a freehold or leasehold interest, or any uncertain interest, (other than leases under three years), in tenements; or surrendering the

(m) See Baring v. Corrie, 2 B. & Ald. 137; 3 Chit. Com. L. 193; London Sworn Broker, Proctor v. Swain, 2 M & P. 284.

(n) Grove v. Dubois, 1 T. R. 112; Morris v. Cleasby, 1 M. & Selw. 581, 582; Hornby v. Lacey, 6 id., 166.

(0) Theobald on P. & S. 64.

(p) Anon. 12 Mod. 564; Harrison v. Jackson, 7 T. R. 209. See Appleton v. Binks, 5 East, 148.

(q) 9 G. 4, c. 14, s. 5; 1-6, G. 4, c. 16, s. 131.

same, (except copyhold interests,) under the Statute of Frauds; the authority of the agent must be in writing (r).

There are instances in which an authority may be implied from the acts of a party, although no authority was in fact ever given. As if the owner of a horse send it to a common repository for the sale of horses; or the proprietor of goods send them to an auction room, or to a broker, whose ordinary business is to sell goods of that description (s); the owner would be bound by the sale, without his express consent, to a bonâ fide purchaser; because an authority to sell shall be presumed against him (t). And if a coachman go in his master's livery and hire horses, in his name, which his master uses, the latter will be bound to pay for the hire of the horses, although he has agreed with the coachman, to pay him a large salary to provide horses; unless the owner of the horses had some notice that the coachman hired them on his own account, and not for his master (u).

It seems that the mortgagor or assignor of a ship, contracting in his own behalf, with a third person to let it, &c., cannot be regarded by the mortgagee or assignee as his agent, so as to enable the latter to sue for the freight, &c., in his own name: for the mortgagee or assignee is no party to the contract that is made after the transfer: and it is not material that he is entitled to the ship's earnings (x).

A contract made by an agent, as such, is, in law, the contract of the principal. Qui facit per alium facit per se. The agent is considered merely as a conduit: He is simply the medium by which the contract is effected. His assent is merely the assent

of his principal. He need not therefore be competent to contract

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Bing. 145, per Best, C. J.

(u) Rimell v. Sampayo, 1 C. & P. 254. Wherever one of two innocent persons must suffer by the acts of a third person, he who has enabled such third person to occasion the loss, must sustain it. Per Ashurst, J., Lickbarrow v. Mason, 2 T. R. 70.

(x) Chinnery v. Blackman, 3 Dougl. 391; 1 H. Bla. 317, n,; Morrison v. Parsons, 2 Taunt. 407; Case v. Davidson, 5 M. & Selw. 79; 2 B. & B. 379, S. C.; Abbott, 5th ed. 17; Dean v. M'Ghie, 4 Bing. 45.

for himself; so that infants, married women, persons attainted or outlawed, or aliens, may act as agents for other persons (y).

An agent's authority may be determined either

1st. By the express revocation thereof by the principal. 2ndly. By his death (~).

3rdly. By efflux of time, where a specific period is fixed for the execution of the act to be done by the agent: or,

4thly. By the execution of the commission, whereby the agent becomes functus officio (a).

A bare authority is revocable by the party who conferred it, at any time before it has been executed: but if there be an interest coupled with the authority, that is, if the party receiving the authority, acquire with it a beneficial and valuable personal interest in the subject matter, or in the execution of the act which he is authorised to perform, the power granted cannot be countermanded (b).

But the implied authority arising from general employment, continues, it seems, even after the agency has in reality ceased, as regards parties who have before given, and continue to give credit to it, and who have not actually received, and cannot be presumed to have had, notice of the change (c). A servant had power to draw bills in his master's name, and was afterwards turned out of his service, and it was ruled, "that if he draw a bill in so little a time that the world cannot take notice of his being out of service; or if he were a long time out of his service, but that kept so secret that the world cannot take notice of it; the bill in those cases shall bind the master (d)." And where a servant who had been used to raise, receive, and pay money for his master, borrowed 200 guineas in his master's name after he

(y) Co. Lit. 52, a. By the French law, married women and emancipated minors may be agents. Code Civil, book 3, tit. 13, art. 1990.

(z) Watson v. King, 4 Camp. 274; Lepard v. Vernon, 2 V. and B. 51; Odes v. Woodward, Lord Ray. 849; Blades v. Free, 9 B. & C. 167; cited ante, 132; Bac. Ab. Authority E; Cholmeley v. Paxton, 3 Bing. 211, per Best, C. J.

(a) Seton v. Slade, 7 Ves. jun. 276; Paley, 137; Macheath v. Cooke, 1 M. & P. 513.

(b) Walsh v. Whitcomb, 2 Esp. R.

565; Bromley v. Holland, 7 Ves. jun. 28; Paley, 135.

(c) See Paley, 136, 137, 123, 124; and see 1 Pothier, Tr. Oblig., 47, by Evans, part 1, c. 1, s. 1, art 5. The same principle applies in the case of a dissolution of partnership, vide post. But it seems that the death of the principal, though not known, absolutely and at once, extinguishes the agent's power. See Blades v. Free, 9 B. & C. Sed vide Pothier, ubi supra. (d) Harrison, 12 Mod. 346; Moll. 107. See ante 139, note (n).

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had quitted the service, the lender recovered against the master, by the direction of Keeling, C. J.; and this direction was approved of by the whole Court, on a motion for a new trial (e).

3. Extent of Authority, and Liability of Principal. The rules of law by which the extent of an agent's authority to bind his principal, is regulated, are, in general, the same, whether such agent be appointed for commercial or domestic purposes. Of course, however, the nature of the employment, and the difference of the pursuit, will occasion some distinctions. The leading principles are, however, the same in both cases. Thus it is always material to ascertain, when the power of an agent is the point at issue, whether he be a general or a special agent (ƒ)·

A master is liable, civiliter, for the acts (g) and contracts of his servant, within the scope of his employment, on the ground of an authority delegated by the master, expressly, or impliedly, to the servant (h). The responsibility for the act of a domestic servant does not rest on the circumstance of the master being pater familias. The master's assent must, in all cases, appear, either by express evidence thereof, or by the proof of facts, from which the law raises an inference that such assent was given.

We have already remarked, that a husband's liability on the contracts of his wife, rests on the ground of an implied authority on her part to act as his agent, or servant (i).

It is necessary and expedient, that parties should be allowed to communicate with each other, through the medium of a third person; but business would be impeded, if, on all occasions, it were necessary that the public should consult the master. If, therefore, a servant be accredited and invested by his master with

(e) Monk v. Clayton, Moll. 282; cited also in Nickson v. Brohan, 10 Mod. 110.

(f) It is for the Court to put a construction on a written authority, Collis v. Emmett, 1 H. Bla. 313; Howard v. Baillie, 2 id., 618. Authority to receive rents is no authority to distrain, Ward v. Shew, 9 Bing. 608. When general authority to indorse bills may be presumed, Prescott v. Flinn, 2 Moore & S. 18; 9 Bing. 19, S. C. If two persons be appointed jointly, one alone cannot act, even in the case of clerks to trustees of a turnpike road. Bell v. Nixon, 2 Moore & S. 534; 9

Bing. 393, S. C.

(g) Not liable for the wilful act of his servant in committing a tort. M'Manus v. Crickett, 1 East, 106. See Gregory v. Piper, 9 B. & C. 591.

(h) Bac. Ab., Master and Servant (K). A master not impliedly liable for medicines, &c. supplied to his servant, who met with an accident whilst in the master's employ, unless the mas ter send for the doctor, &c., see New ley v. Wiltshire, 4 Dougl. 284; 2 Esp. R. 739, S. C. See Wennall v. Abney, 3 B. & P. 247. (i) Ante, 131.

a general discretion and authority, to act generally for him in his affairs, or, in other words, be a general agent, so that the public cannot discriminate what are, in any particular case, within the general scope of the agent's powers, the wishes and directions of the master, the latter is liable, although his orders be violated. In such case the master, having for his own convenience induced the public to consider that his servant is possessed of general powers to act for him, is not permitted to delude, by suddenly withholding such general authority, and confining it within prescribed limits, where, from his previous conduct, a continuance of a general discretion in the agent, might reasonably be presumed. But where the servant had never before been employed, and is retained only for a particular purpose; in other words, is a special agent; he is invested with a limited power;-it is the duty of persons dealing with such agent, to ascertain the extent of his authority, and the principal or master is not bound by any act of the agent not warranted expressly, or by fair and necessary implication (k), by the terms of the authority delegated to him.

If a person keeping a livery stable, and having a horse to sell, direct his servant not to warrant him, still the master would be liable on 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 private conversation between the master and servant. But if the owner of a horse were to send a stranger to a fair, with express directions not to warrant the horse, and the latter acted contrary to the orders, the purchaser could only have recourse to the person who actually sold the horse; and the owner would not be liable on the warranty, because the servant was not acting within the scope of his employment (7).

So if a servant has been allowed by his master to purchase goods upon credit, the latter is answerable even for goods bought by that servant, without his matter's particular authority. "If a man send his servant with ready money to buy goods, and the servant buy upon credit, the master is not chargeable. But if the servant usually buy for the master upon tick, and the servant buy

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(k) See Pickering v. Busk, 15 East,

(1) Per Ashurst, J., in Fenn v. Harrison. 3 T. R. 760; and see East

India Company v. Hensley, 1 Esp. R. 111; Pickering v. Busk, 15 East, 45, 407; Bank of Scotland v. Watson, 1 Dow's R. 45.

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