And if the agent even buys in his own name, but for the benefit of his principal, and without disclosing his name, the principal is also bound as well as the agent, provided the goods come to his use, or the agent acted in the business intrusted to him, and according to his power. (b) The attorney who executes a power,

the presumption as a settled rule of law was deduced, in the treatise referred to, were of recent origin, and founded on special or local usage in England, and one not adopted here. He cited Eyre C. J., in De Gaillon v. L'Aigle, 1 Bos. & Pull. 368; Bayley J., in Patterson v. Gandasequi, 15 East, 70; Lord Tenterden, in Thompson v. Davenport, 9 Barn. & Cress. 78; Lloyd's Notes to Paley on Agency. He questioned the policy of the rule that credit on sales or consignments was not presumed to be given to wellestablished foreign houses, but to temporary agents, in exoneration of their principles; and that until the course of business had established such a rule here, as well-known in mercantile usage and practice, it was wisest to adhere to the general law of agency, holding the known principal responsible when the agent discloses his name, and acts avowedly and authorizedly on his behalf, and leaving it to the discretion of the American trader to obtain the security of the factor or agent, when he judges it best. In Taintor v. Prendergast, 3 Hill, 72, it was admitted, that there may be a clear intent shown to give an exclusive credit to the agent; and that if the principal reside in a foreign country, that intent may be inferred from the custom of trade. The Supreme Court of Louisiana, in the Newcastle M. C. v. Red River R. R. Co. 1 Rob. (Louis.) 145, followed the rule laid down by Mr. Justice Story; and it was also followed in McKenzie v. Nevius, 22 Maine, 138. In the opinion of Mr. Justice Bliss, in the case of Hardy v. Fairbanks, in the Supreme Court of Nova Scotia, at Halifax, in April, 1847, this question arose, and was discussed, and the conclusion of the learned judge seemed to be, that the home principal, when discovered, will be liable in all cases, unless he can discharge himself; but that a clear case of liability must be established against the foreigner; for the presumption will be in his favor that he is not liable, and the onus of proof will rest with the seller. The agent may be deemed always responsible for the protection of the seller, and the liability of the foreign principal becomes a question of evidence and presumption; and as to the remedy of the foreign principal and the vendor against each other, that must be a question of evidence, and the case which they can generally establish. 3

(b) Nelson v. Powell, 3 Doug. 410. Upton v. Gray, 2 Greenl. 373. Thompson v. Davenport, 9 Barn. & Cress. 78. Cothay v. Fennell, 10 Ibid. 671. Beebee v. Robert, 12 Wendell, 413. By acting in his own name, the agent only adds his personal obligation to that of the person who employs him. This was a principle in the Roman law, and it applies equally to our own. Dig. 14, 3. Pothier, Traité des Oblig. No. 82. Hopkins v. Lacouture, 4 Louis. 64. Hyde v. Wolf, Ibid. 234. In Andrews v. Estes, 2 Fairf. 267, it was held, that the rule in Combes's case, that an agent binds himself, and not his principal, unless he uses the name of his principal, applies only to sealed instruments In other contracts, it is sufficient if it appear in the contract that he acted as agent, and meant to bind his principal. Evans v. Wells, 22 Wendell, 324, S. P.

2 See, also, Bray v. Kettell, 1 Allen, 80.

3 See Mahoney v. Kekulé, 25 Eng. L. & Eq. 278; Green v. Kopke, 36 Eng. L. & Eq. 396, where the doctrine of the note is sustained in opposition to that laid down by Mr. Justice Story.

4

as by giving a deed, must do it in the name of his principal; for if he executes it in his own name, though he describes himself to be agent or attorney of his principal, the deed is held to be void; and the attorney is not bound, even though he had no authority to execute the deed, when it appears on the face of it to be the deed of the principal. (c) But if the agent binds himself personally, and engages expressly in his own name, he will be held responsible, though he should, in the contract or covenant give himself the description or character of agent. (d) 1 And though the attorney, who acts without authority, but in the name of the principal, be not personally bound by the instrument he executes, if it contain no covenant or promise on his part, * 632 yet there is a remedy * against him by a special action upon the case, for assuming to act when he had no power. (a) 1 If, however, the authority of the agent be coupled with an interest in the property itself, he may contract and sell in his own name. This is illustrated in various instances, as in the case of factors, masters of ships, and mortgagees. (b) The case of a master of a

(c) Combes's case, 9 Co. 76. Frontin v. Small, 2 Lord Raym. 1418. Wilks v. Back, 2 East, 145. Gwillim's Bacon's Abr. tit. Leases, 1, sec. 10. Bogart v. De Bussy, 6 Johns. 94. Fowler v. Shearer, 7 Mass. 14, 19. Stinchfield v. Little, 1 Greenl. 231. Hopkins v. Mehaffy, 11 Serg. & Rawle, 126. Smith v. Perry, 1 Harr. & Johns. 706, n. Harper v. Hampton, 1 Harr. & Johns. 622. Townsend v. Corning, 23 Wendell, 435. In the American Jurist, No. 5, 71-85, there is a very critical examination of all the cases, and especially of Combes's case, the great leading case for the doctrine in the text, by Mr. Hoffman, of Baltimore, the learned author of the Legal Outlines. But in the state of Maine, by Act of 1823, a deed by an agent in his own name is valid, provided he had authority, and it appears on the face of the deed that he meant to execute the authority.

(d) Appleton v. Blinks, 5 East, 148. Forster v. Fuller, 6 Mass. 58. Duvall v. Craig, 2 Wheaton, 56. Tippets v. Walker, 4 Mass. 595. White v. Skinner, 13 Johns. 307. Stone v. Wood, 7 Cowen, 453. Fash v. Ross, 2 Hill S. C. 294.

(a) Long v. Colburn, 11 Mass. 97. Harper v. Little, 2 Greenl. 14. Delius v. Cawthorn, 2 Dev. (N. C.) 90. Jefts v. York, 10 Cush. 392. Pow v. Davis, 1 Ell., B. & Smith, 220. Collen v. Wright, 8 Ell. & Bl. 647. Taylor v. Shelton, 30 Conn. 128. Emerigon, Traité des Contrats à la Grosse, tom. ii. pp. 458, 461, 468, lays down the rule, and applies it to the captain of a ship, who, he says, is personally answerable, if he draws a bill in his character of agent, without authority.

(b) Paley on Agency, by Lloyd, 207, 208, 288, 289. Story on Agency, § 164.

See Seaver v. Coburn, 10 Cush. 324; Tanner v. Christian, 29 Eng. L. & Eq. 103; Lennard v. Robinson, 32 Eng. L. & Eq. 127. But see Haight v. Sahlers, 30 Barb. (N. Y.) 218. 1 An agent is not personally liable on a contract made in the principal's name, when his authority had been in fact terminated by the principal's death, of which he was ignorant. Smout v. Ilberry, 12 Mees. & W. 1.

ship is an exception to the general rule, and though, he contracts within the ordinary scope of his powers, he is, in general, personally responsible, as well as the owner, upon all contracts made by him for the employment, repairs, and supplies of the ship. This is the rule of the maritime law, and it was taken from the Roman law, and is founded on commercial policy. (c) But it is of course competent for the parties to agree to confine the exclusive credit, either to the owner or to the master, as the case may be. (d)

2

When goods have been sold by the factor, the owner is entitled to call upon the buyer for payment before the money is paid over to the factor; and a payment to the factor, after notice from the owner not to pay, would be a payment by the buyer in his own wrong, and it would not prejudice the rights of the principal. (e) 2 If, however, the factor should sell in his own name as owner, and not disclose his principal, and act ostensibly as the real and sole owner, the principal may nevertheless afterwards bring his action upon the contract against the purchaser, but the latter, if he bonâ fide dealt with the factor as owner, will be entitled to set off any claim he may have against the factor, in answer to the demand of the principal. (f) When the party dealing with an agent, and with knowledge of the agency, elects to make the agent his debtor, he cannot afterwards have recourse against the principal. (g)

There is a distinction in the books between public and private agents, on the point of personal responsibility. If an agent, on behalf of government, makes a contract, and describes himself as such, he is not personally bound, even though the terms of the contract be such as might, in a case of a private nature, involve

(c) Rich v. Coe, Cowper, 636, 639. Farmer v. Davies, 1 Term Rep. 109. Abbott on Shipping, part 2, ch. 2 and 3. Emerigon, tit. 2, 448. Dig. 14, 1. Story on Agency, §§ 294, 296. See infra, vol. iii. 161.

(d) Story on Agency, § 296.

(e) Lisset v. Reave, 2 Atk. 394.

(ƒ) Rabone v. Williams, cited in 7 Term Rep. 360, note. George v. Claget, Ibid. Gordon v. Church, 2 Caines, 299. Hogan v. Shorb, 24 Wendell, 458. Taintor

359.

v. Pendergast, 3 Hill, 72. Chambre J., in 3 Bos. & Pull. 490. Seignor & Wolmer's case, Godb. 360. Story on Agency, §§ 420, 421.

(g) Paterson v. Gandasequi, 15 East, 62. Addison v. Gandasequi, 4 Taunt. 574.

him in a personal obligation. (h) The reason of the dis* 633 tinction is, that it is not to be presumed that a public agent meant to bind himself individually for the government; and the party who deals with him in that character is justly supposed to rely upon the good faith and undoubted ability of the government. But the agent in behalf of the public may still bind himself by an express engagement, and the distinction terminates in a question of evidence. The inquiry in all the

cases is, to whom was the credit, in the contemplation of the parties, intended to be given. This is the general inference to be drawn from all the cases, and it is expressly declared in some of them. (a)

(h) Macbeath v. Haldimand, 1 Term Rep. 172. Unwin v. Wolseley, Ibid. 674. Gidley v. Lord Palmerston, 3 Brod. & Bing. 275. Brown v. Austin, 1 Mass. 208. Dawes v. Jackson, 9 Mass. 490. Hodgson v. Dexter, 1 Cranch, 345. Walker v. Swartwout, 12 Johns. 444. Rathbone v. Budlong, 15 Ibid. 1. Adams v. Whittlesey, 3 Conn. 560. Stinchfield v. Little, 1 Greenl. 231. Enloe v. Hall, 1 Humph. (Tenn.)

303.

(a) 12 Johns. 388. 15 Ibid. 1. Opinions of the Attorneys-General, August 5, 1834. A public agent, as, for instance, a commissioner for paving streets, or the superintendent of repairs on the canals, is personally responsible in damages for misfeasance and excess of authority, through the negligence of workmen under him. Leader v. Moxon, 3 Wilson, 461. Hall v. Smith, 2 Bing. 156. Shepherd v. Lincoln, 17 Wendell, 250. So, money obtained by a public officer, illegally, may be recovered back by a suit against him personally. Story on Agency, § 307, and the cases there cited. The general principle is, that an agent is liable to third persons for acts of misfeasance and positive wrong; but for mere nonfeasances and negligences in the course of his employment, he is answerable only to his principal, and the principal is answerable over to the third party.2 Agents and attorneys using reasonable skill and ordinary diligence in the exercise of their agency, are not responsible for injuries arising from mistakes in a doubtful point of law. Mechanics' Bank v. Merchants' Bank, 6 Metcalf, 13. S. P. 4 Burr, 2060. 12 Cl. & Fin. 91. The case of the postmaster-general is an exception, and he is not liable for any of his deputies or clerks, on obvious principles of public policy. Lane v. Cotton, 1 Lord Raym. 646, 655. S. C. 12 Mod. 488. Story on Agency, ch. 12. Supra, p. 610. So, public officers generally are responsible for their own acts and negligences, but not for those of their subordinate officers. Hall v. Smith, 2 Bingham, 156. Nicholson v. Mounsey, 15 East, 384. In ordinary cases of private individuals, the principal is liable to third persons for the frauds, torts, misfeasances, negligences, and de

1 Hence it follows that, although an action cannot be maintained against a public agent, the case is not out of the jurisdiction of the court; and although bad, it is entitled to a hearing. Hammarskold v. Bull, 9 Rich. Law (S. C.) 474.

In a late case, it is declared to be the settled law, that an agent is not responsible to third persons for an omission or neglect of duty in the matter of his agency; but that the principal alone is responsible. Colvin v. Holbrook, 2 Comst. 129. Denny v. The Manhattan Co. 2 Denio, 118. Costigan v. Newland, 12 Barb. (N. Y.) 456.

An agent ordinarily, and without express authority, or a fair presumption of one, growing out of the particular transaction or the usage of trade, has not power to employ a subagent to do the business, without the knowledge or consent of his principal. The maxim is, that delegatus non potest delegare, and the agency is generally a personal trust and confidence which cannot be delegated; for the principal employs the agent from the opinion which he has of his personal skill and integrity, and the latter has no right to turn his principal over to another, of whom he knows nothing. (b) And if the authority, in a matter of mere

faults of the agent, even though the conduct of the agent was without his participation, consent, or knowledge, provided the breach or want of duty arose in the course of his employment, and was not a wilful departure from it. Paley on Agency, by Lloyd, 297-307. Story on Agency, 465-477. Laughter v. Pointer, 5 Barn. & Cress. 547. Lonsdale v. Littledale, 2 H. Blacks. 267. Bush v. Steinman, 1 Bos. & Pull. 404. McManus v. Crickett, 1 East, 106. Vide supra, pp. 259, 260. But there is also a qualification to this doctrine in the case of masters of merchants' vessels and of steamboats, who are responsible as principals and common carriers, for the misfeasances and negligences of the servants under them; and this responsibility is founded on solid principles of maritime policy. It prevails in the maritime jurisprudence of Europe, and has its foundations laid deep in the Roman law. Dig. 4, 9, 1. See supra, pp. 609, 632, note c. (b) Combes's case, 9 Co. 75. Ingram v. Ingram, 2 Atk. 88. Attorney-General v. Berryman, cited in 2 Vesey, 643. Solly v. Rathbone, 2 Maule & Selw. 298. Cockran v. Irlam, Ibid. 303, n. Schmaling v. Thomlinson, 6 Taunt. 147. Lyon v. Jerome, 26 Wendell, 485. There must be in such cases a special power of substitution. Coles v. Trecothick, 9 Vesey, 234, 251. Story on Agency, §§ 11-15. In this latter work, it is said, p. 17, that the substituted agent may still be responsible to the original agent, inasmuch as the latter is responsible to the principal; and if a subagent be employed in the business of the agency, he has the same rights, and is bound to the same duties, as if he was the original agent. Story on Agency, §§ 386, 387. But in general, subagents, acting witnout the knowledge or consent of the principal, are responsible only to the immediate agents who employ them, and not to the principal of such agents. Trafton v. United States, 3 Story, 646. The conclusion from the case seems to be, that if a subagent be employed by the agent to receive money for the principal, or if such an authority be fairly implied from circumstances, the principal may treat the subagent as his agent, and sue for the money. 1 Peters U. S. 25. 1 How U. S. 234. 3 Ibid. 763. See Holcomb's Leading Cases on Commercial Law, p. 22, where the subject and cases

3 The principal is not liable for wilful trespass committed by his agent. Vanderbilt v. The Richmond T. Co. 2 Comst. 479. Wright v. Wilcox, 19 Wendell, 343. Ante, p. 260. The discretionary power cannot be delegated; the mechanical may be. Com. Bank v. Norton, 1 Hill (N. Y.) 504. Williams v. Woods, 16 Md. 220. Rossiter v. Trafalgar L. A. Co. 27 Beavan, 377. Trustees are bound by the receipt of money by a subagent under their authority; Robertson v. Armstrong, 28 Beavan, 123; and an attorney, by payment to his clerk with his authority. Hemming v. Hale, 7 C. B. (N. S.) 487. In Newton v. Bronson, 3 Kernan, 587, it is held that the agent may ratify the act of a subagent so as to make it valid.