has no implied power to warrant and is without power to rescind a sale.

371. Attorneys at law.-An attorney at law is an agent to represent his principal in the prosecution of legal actions and in the conduct of other legal and equitable proceedings. He is an officer of the court and as such is given large powers and is held to high responsibilities. He may control the proceedings, but cannot waive a substantial right acquired by his client. He can in no way compromise his client's claim or release sureties or discharge liens, but he may accept payment in full and give a release. An attorney is liable to his client for careless management or neglect of the affairs intrusted to him.

The attorney's lien is a general lien upon all the papers of his client in his possession and also upon the fund or judgment which he has recovered. Ordinarily an attorney who obtains judgment may give notice to the debtor that his compensation has not been paid and that if the debtor pays his creditor without first discharging the lien of the creditor's attorney on the judgment, he does so at his peril.

372. The termination of agency.-Agency, it has been seen, is created by contract expressed or implied, and is terminated in the same way that other contracts are discharged. The relation may be terminated by agreement, which agreement may be entered into at the time of the creation of the agency or thereafter.

Where the object of the agency has been performed, or where a time specified in the original contract expires, then in accordance with the original agreement the agency terminates. The original contract of employment may give one of the parties the right to terminate the agency on certain conditions, and in accordance with

these terms the contract may be revoked or renounced. Where no time is specified and the contract says nothing as to the right to revoke or renounce the authority, ordinarily the authority may be revoked or renounced at any time on notice.

The authority granted the agent may be revoked or renounced, though in so doing the contract is broken. An agent cannot insist upon acting as agent after the principal revokes his authority, but he may, of course, bring an action for damages for the breach of contract. There are two principal exceptions to this rule. Authority cannot be revoked where it is coupled with an interest, neither can it be revoked so as to be binding upon third persons until notice has been given to those to whom the agent has been held out as having authority.

The relation of principal and agent may also be terminated by operation of law. Thus, the destruction of the subject-matter of the agency; the bankruptcy of either party; the insanity of either party; the death of either party; or, under the common law, the marriage of a female principal will terminate the agency. In all of these cases, however, if the agent has an interest in the subject-matter of the agency, his authority is not revoked.

EXAMPLES

358. P appoints A as agent to sell an automobile, and gives A six months within which to sell it, during which time A is to have possession and control of the automobile. It is also agreed that A shall receive for his services one-third of the receipts of the sale. At the end of one month P seeks to revoke the agency. He will not be permitted to do so for A has an interest in the subject-matter of the agency. The agency would not be revoked on the death, bankruptcy or insanity of P.

If no time were mentioned for the duration of the contract, P would have the right to revoke the authority at any time.

359. If in the above example A were not given an interest in the proceeds of the sale of the automobile, he would have no interest in the subject-matter, and P might revoke his authority

CHAPTER XXIII

MASTER AND SERVANT

373. Definition. The words "agent" and "servant" are frequently used interchangeably, but technically speaking the distinction between the relations of principal and agent, and master and servant, is clearly definable. An agent is a person authorized by another, called the principal, to act for him and to represent him in creating legal relations with third persons. A servant is a person employed by another, called the master, to perform operative acts which do not create contractual relations between the master and third persons. It is evident that the relations of master and servant and of principal and agent may exist between the same two persons at the same time.

374. Independent contractor and fellow servant.An independent contractor is one who undertakes to accomplish a certain purpose for another, but who retains control over the means and methods of accomplishment. For example, A, the owner of a building, makes a contract with B to repair the roof of the building for a certain sum. Here B is an independent contractor, and A will not be responsible for any of the torts of B injuring third persons or their property while B is performing the work. The following four exceptions should be noticed, for in each case the employer is responsible for the acts of the independent contractor. 1. Where the employer personally interferes with the

work, and the act performed by him occasioned the injury;

2. Where the thing contracted to be done is unlawful; 3. Where the acts performed create a public nui

sance;

4. Where an employer is bound by statute to do the thing efficiently and the injury results from its inefficiency.1

It is important to define the meaning of the term fellow-servant, as upon this definition depends in a large measure the rights of servants for certain kinds of injuries sustained while they are working for their master. A fellow-servant is one engaged in the same general business with another servant of the same master. One may be superior in grade to the other, or they may not be engaged at the same time in the same particular work, but if they are both engaged in operative acts for the same master and are performing duties and service for the same general purposes, they will be fellow-servants.

EXAMPLE

360. A and B are coachman and footman for C, and are seated beside each other when A negligently runs into X's wagon, thereby injuring B, who sues C for A's negligence. A and B are fellow-servants, and, as will be seen later, their master is not liable for injuries to a servant caused by the negligence of a fellow-servant.

Great care should be taken to distinguish between fellow-servants and vice-principals. The distinction is not one of rank among the different employés, but is based on the particular acts performed by an employé at the time the relation is sought to be established. If 1 Berg v. Parsons, 156 N. Y. 109.