thority to do a mere formal act, which passes no interest, and which the bankrupt himself might have been compelled to

* execute, notwithstanding his bankruptcy. (a) Nor will *645 the bankruptcy of the principal affect the personal rights of the agent, or his lien upon the proceeds of a remittance made to him under the orders of his principal before the bankruptcy, but received afterwards. (b) If the principal or agent be a feme sole when the power is given, it is determined, likewise, by her marriage; for the agent, after the marriage, cannot bind the husband without his authority, and the acts of a feme covert might prejudice her husband. (e) Her warrant of attorney to confess judgment is countermanded by her marriage before the judgment is entered up. (d.)

4. The authority of an agent may be revoked by the lunacy of the principal; but the better opinion would seem to be, that the fact of the existence of lunacy must have been previously established by inquisition, before it could control the operation of the power. Neither the agent nor third persons dealing with him under the power, have any certain evidence short of finding by inquisition of the state of the mind of the principal; and in cases of partnerships, it would at least require a decree in chancery to dissolve the partnership on the ground of lunacy. Insanity does not operate as a revocation of a power coupled with an interest; nor if the agent acts under a written power, or a previously acknowledged authority, and the insanity be unknown to the party. (e)

5. The authority of an agent determines by the death of his

(a) Dixon v. Ewart, 3 Meriv. 322.

(b) Alley v. Hotson, 4 Camp. N. P. 325.

(c) White v. Gifford, 1 Rol. Abr. 331, tit. Authorities, E. pl. 4. Anon. Wm. Jones, 388. Charnley v. Winstanley, 5 East, 266.

(d) Anon. 1 Salk. 117, 399. The cases in Salkeld have been since overruled, and judgment may in case of marriage be entered up against husband and wife. 1 Show. 91. Hartford v. Mattingly, 2 Chitty, 117. 3 Moore & Scott, 800. Eneu v. Clark, 2 Barr (Penn.) 234.

(e) Huddleston's case, cited in 2 Vesey, 34. 1 Swanst. 514, n. Sayer v. Bennet, 1 Cox, 107. Waters v. Taylor, 2 Ves. & Bea. 301. Jones v. Noy, 2 My. & K. 125. The principle in the Roman law was, that no valid transaction whatever was destroyed by subsequent lunacy. Neque testamentum recte factum, neque ullum aliud negotium recte estum, postea furor interveniens perimit. Inst. 2, 12, 1. Lunacy is no revocation of a power, so far as third persons, ignorant of the lunacy, are concerned in acts done under the power. 1 Bell's Com. 489. Davis v. Lane, 10 N. Hamp. 156.

*

principal; and a joint authority to two persons terminates *646 by the death of one of them. This is the general doctrine. (a) By the civil law, and the law of those countries which have adopted the civil law, the acts of an agent, done bond fide after the death of the principal, and before notice of his death, are valid and binding on his representatives. (b) But this equitable principle does not prevail in the English law; and the death of the principal is an instantaneous and absolute revocation of the authority of the agent, unless the power be coupled with an interest. (c) Even a warrant of attorney to confess judgment,

(a) Litt. sec. 66. Co. Litt. Ibid. Moore, 61, pl. 172. Mitchell v. Eades, Prec. in Chan. 125. Hunt v. Rousmanier, 8 Wheaton, 201. Peries v. Aycinena, 3 Watts & Serg. 79. Paley on Agency, c. 3, p. 1, § 3. Comyn's Dig. tit. Attorney, C. 10, 11. Raw v. Alderson, 7 Taunt. 453.

(b) Inst. 3, 27, 10. Dig. 17, 1, 26. Ibid. 46, 3, 32. Pothier, Traité des Oblig. No. 81. Pothier, Traité du Contrat de Change, part 1, ch. 6, sec. 168. Emerigon, Traité des Ass. tom. ii. p. 120. 1 Bell's Com. on the Laws of Scotland, 488. Code of Louisiana, art. 3001. If A. proposes, by letter to B., (says Pothier, in his Traité du Contrat de Vente, No. 32,) to buy his goods for a certain price, and A. dies before the letter reaches B., and B. on the receipt of the letter, and ignorant of the death of A., accepts, yet it is no contract, for the will of A. did not continue to the time of the acceptance by B. Here was not a concurrence of wills at the time. But if B. acted in pursuance of the letter, and sent the goods, the representatives of A. are bound to execute the proposal, not as a contract of sale, but under an implied obligation to indemnify, according to the rule in equity, that nemo ex alterius facto prægravari debet. Vide supra, p. 477. The conclusion to which Pothier arrives is not correct, but he qualifies the mischievous consequences of his doctrine by the infusion of an element of equity. A difficult question arose in the Engilsh Court of Exchequer, in Smout v. Ilberry, 10 Mees. & W. 1. The family of A. was supplied with necessaries by B., and A. went abroad, leaving his wife authority to contract with B., and died. The wife continued to be supplied with goods by B., before information of the husband's death had been received by either party. It was held that the wife was not liable, the revocation being the act of God, she being entirely blameless, and chargeable with no omission, and acting in the character of agent only. It was conceded, in the same case, that the executors of the husband were not liable, and no one was liable on the contract. I doubt the equity of this decision, and I think it might not unreasonably have been considered that the wife, acting as the agent of her husband, and obtaining credit in that character, took the consequences of that assumption, rather than the tradesman with whom she dealt.

(c) The King v. Corporation of Bedford Level, 6 East, 356. Watson v. King, 4 Campb. N. P. 272. Harper v. Little, 2 Greenl. 14. Shipman v. Thompson, Willes, 103, n. Wynne v. Thomas, Ibid. 563. Bergen v. Bennett, 1 Caines Cases, 1. Hunt v. Ennis, 2 Mason, 244. Hunt v. Rousmanier, 8 Wheaton, 174. To constitute a power coupled with an interest, there must be an interest in the thing itself, and not merely in the execution of the power. Ibid. A naked power, without any interest, or one simply collateral, is when authority is given to a stranger to dispose of an interest in which he hath no estate whatsoever; but if he has, under the instrument creating the power, a present or future interest in the land, then the power relates to the land, and

though it be not revocable by the act of the party, is nev- * 647 ertheless revoked by his death; and all that the courts can do is to permit the creditor to enter up judgment as of the preceding term, if it was prior to the party's death. (a) Such a power is not, in the sense of the law, a power coupled with an interest. (b) 2

is coupled with an interest. Bergen v. Bennett, 1 Caines Cases, 1. In Maryland, by statute in 1837, acts done under a power of attorney, unrevoked at the time, are binding upon the representative or assignee of the constituent, though he was dead or had assigned his interest at the time the act was done, provided the other party had no notice of the death or assignment. So, by statute in Georgia, of February 22, 1785, Prince's Dig. 163, a power of attorney is in force until the attorney or agent has due notice of the death of his constituent. So it is held in Pennsylvania, that the acts of an agent or attorney, done after the death of his principal, of which he was ignorant, are binding upon the parties. Cassiday v. Makenzie, 4 Watts & Serg. 282. The broad principle is here inculcated, that the determination of an agency by death, like an express revocation, takes effect only from the time of notice. This is substituting the rule of the civil for the rule of the common law.1

(a) Nichols v. Chapman, 9 Wendell, 452. (b) Oades v. Woodward, 1 Salk. 87. Fuller v. Jocelyn, 2 Str. 882. Hunt v. Ennis, 2 Mason, 244. But though a warrant of attorney to confess judgment, given by two persons, be revoked by the death of one of them, such a warrant, given to two persons, is not revoked by the death of one of them. Gee v. Lane, 15 East, 592. Raw v. Alderson, 7 Taunt. 453. The law of principal and agent has been extensively considered, and the judicial decisions at Westminster Hall digested in several English works; but the treatise of Mr. Livermore, on the Law of Principal and Agent, published in two volumes, at Baltimore, in 1818, is a work of superior industry and learning. He has illustrated every part of the subject by references to the civil law, and to the commentators upon that law, and he has incorporated into the work the leading decisions in our American courts. The treatise on the law of Principal and Agent, by Mr. Hammond, of New York, published in February, 1836, is of still more useful application, by reason of his extensive view of all the principles and cases applicable to the subject, brought down to the present time. He has drawn largely from Paley's treatise, and the notes of the learned editor, Mr. Lloyd; but the digest of the American cases, which are very numerous, gives the work a decided superiority. Paley's Agency, with Mr. Lloyd's notes, was in 1847 greatly enlarged by the learned labors of Mr. Dunlap, and his edition probably contains the fullest collection of references to modern decisions that is to be met with. The principal cases under the maxim qui per alium facit per seipsum facere

1 Dick v. Page, 17 Mis. 234.

2 In Smart v. Sandars, 5 Man., Gr. & Scott, 895, 917, C. J. Wilde, (now Ld. Ch. Truro,) after a consideration of the cases, declared that "the result appears to be, that where an agreement is entered into on a sufficient consideration, whereby an authority is given for the purpose of securing some benefit to the donee of the authority, such an authority is irrevocable." This is what is usually meant by an authority coupled with an interest. See Marfield v. Goodhue, 3 Comst. 62, 73. See, also, Knapp v. Alford, 10 Paige, 205, 209; Houghtaling v. Marvin, 7 Barb. (N. Y.) 412; Wilson v. Edmonds, 4 Foster, 517.

videtur, are reviewed and accompanied with judicious reflections and skilful arrangement, in Broom's Selection of Legal Maxims, p. 373, London edition.

Since the third edition of these Commentaries, Mr. Justice Story's Commentaries on the Law of Agency have appeared, and the subject is examined and digested with his usual accuracy and research, and with fulness and completeness of execution. A second edition of the work, revised and enlarged, appeared in 1844.1

1 The cases relative to the liability of principal and agent, on the contracts of the latter, may be, perhaps, usefully classed as follows:

I. Where the principal only is liable.

Where the agent, acting within the limits of his authority, makes his principal known; or where (though there were no express statement to that effect) circumstances show, that it was understood at the time that the person contracting acted as agent, and intended to make the contract on behalf of his principal, the contract is entirely the principal's, and the agent incurs no liability.

This proposition, subject to the qualification which follows, is sufficiently established by the commentator. And see Smith on Mercantile Law, (by H. & G.,) p. 144; 3 Chitty on Com. and Manf. 211, 212; Paley on Agency, Dunlap's ed. pp. 368, 369; Story on Agency, §§ 261, 263; Roberts v. Button, 14 Vermont, 195. See, also, Kirkpatrick v. Stainer, 22 Wendell, 244; Shelton v. Darling, 2 Conn. 435; Mott v. Hicks, 1 Cowen, 513; Brockway v. Allen, 17 Wendell, 40; Stanton v. Camp, 4 Barb. (N. Y.) 274; Hicks v. Hinde, 9 Barb. (N. Y.) 528; Johnson v. Smith, 21 Conn. 827.

So, also, where a person has been authorized to do an act in his own name, for which no one but the principal can be held liable; as where a husband authorizes his wife to do an act in her own name. Lindus v. Bradwell, 12 Jurist, C. P. 1848.

II. Where the agent only is liable.

1. When one professing to act as an agent has no authority, or has exceeded his authority, he is generally liable to the other contracting party, so far as he has exceeded his powers. This is the general rule, but it is subject to several exceptions. The principal may be liable for the acts of a professed agent, though the latter has acted without or in violation of instructions, if the principal, by the mode of his appointment, the usages of trade, the course of dealing, or other circumstances, has held forth the agent to the world, or allowed him to appear as if clothed with competent authority, and his acts are within the limits of his apparent authority. Whitehead v. Tuckett, 15 East, 408. Fenn v. Harrison, 4 Term Rep. 177. Sykes v. Giles, 5 Mees. & W. 645. Shower, 95. Iveson v. Conington, 1 Barn. & Cress. 160. Fox v. Frith, 10 Mees. & W. 131. See, also, Birdseye v. Flint, 3 Barb. (N. Y.) 500; Ballou v. Talbot, 16 Mass. 461; Platt v. Cathell, 3 Denio, 604; Townsend v. Hubbard, 4 Hill (N. Y.) 351; Perkins v. Wash. Ins. Co. 4 Cowen, 645.

The liability of a party, professing to act for another, without authority, is clearly set forth in the recent case of Smout v. Ilberry, 10 Mees. & W. 1, and considered to exist equally in the following cases, namely,

(1st.) When having in fact no authority, he has fraudulently represented himself as having authority.

(2d.) When he has no authority, and knows it, but nevertheless makes the contract as having authority, although no proof of the fraudulent intention can be given.

(3d.) When the party making the contract as agent, bonâ fide, believes that such authority is vested in him, but has, in fact, no such authority. See, also, Polhill v. Walter, 3 Barn. & Adol. 114; Kaye v. Brett, 19 Law Journal, May, 1850. See Cassidy v. McKenzie, 4 Watts & Serg. 282. See the Com's, post, 646.

Some doubt, however, is thrown over the third position in Smout v. Ilberry, by the later cases of Taylor v. Ashton, 11 Mees. & W. 401, and Collins v. Evans, 5 Adol. & Ell. (N. S.) 820. See further, Lewis v. Nicholson, 12 Eng. L. & Eq. 430; Carr v. Jackson, 10 Eng. L. & Eq. 526.

2. When from the form of the contract, if written, or from the attending circumstances, if the contract be verbal, it may be inferred that exclusive credit was given to the agent; and when the technical rules of law will permit no other person to be charged. Chadwick u Maden, 12 Eng. L. & Eq. 180.

(a.) If an agent contracts under seal, although he describes himself as acting for and on behalf of his principal, he will be liable on his express covenants, whether he have authority or not. Hancock v. Hodgson, 4 Bing. 269. Appleton v. Binks, 5 East, 148. Stone v. Wood, 7 Cowen, 453. Spencer v. Field, 10 Wendell, 87. Hopkins v. Mehaffy, 11 Serg. & Rawle, 126. Hall v. Cockrell, 28 Ala. 507. But this case last cited lays down the rule, that if the covenants are in the name of the principal, and the instrument is signed by the agent, as agent, the latter is not liable personally. Abbey v. Chase, 6 Cush. 54.

(b.) So, if the agency and the liability of the principal be known, an election to take the individual note of the agent will be regarded as an election to discharge the principal. Paige v. Stone, 10 Metcalf, 169. Green v. Tanner, 8 Metcalf, 411. Wilkins v. Reed, 6 Greenl. 220. And giving credit to the agent, in the contracting party's book, or otherwise treating him as principal under the like circumstances, will discharge the principal. Addison v. Gandassequi, 4 Taunt. 574.

It has been held, that where the agent gives a promissory note or bill of exchange, in his own name, and, it would seem, under circumstances which do not show an election to take the exclusive credit of the agent, the principal cannot be sued on the security; and that parol evidence is not admissible to charge him. Stackpole v. Arnold, 11 Mass. 27. Taber v. Cannon, 8 Metcalf, 456. Bradford Com. Ins. Co. v. Covell, 8 Metcalf, 442. Fenly v. Stewart, 5 Sandf. (N. Y.) 101. Dawson v. Cotton, 26 Ala. 591.

The right (says Lord Abinger) to sue the principal when disclosed, does not apply to bills of exchange, accepted or indorsed by the agent in his own name; for, by the law-merchant, a chose in action is passed by indorsement, and each party who receives the bill is making a contract with the parties upon the face of it, and with no other party whatever. Beckham v. Drake, 9 Mees. & W. 92.

Whether, in Massachusetts, the principal will be chargeable in any form of action, seems not to have been decided. See Taber v. Cannon, supra. In New York, the principal, though not chargeable on the note, would be chargeable in another form of action, if he had received the benefit of the contract. Allen v. Coit, 6 Hill (N. Y.) 318. Minard v. Mead, 7 Wendell, 68. Bank of Rochester v. Monteath, 1 Denio, 402.

In England, parol evidence would probably be admissible to charge the principal, but not to discharge the agent. Higgins v. Senior, 8 Mees. & W. 834. Beckham v. Drake, 9 Mees. & W. 79. Jones v. Littledale, 6 Adol. & Ell. 486. 2 Smith Ld. Cases, 225, 305. Contra, Fenly v. Stewart, supra.

But where the act is done in the name of one partner, upon agreement, for the whole firm, all will be bound. 1 Denio, 402, supra. Bank of South Carolina v. Case, 8 Barn. & Cress. 427. Winship v. Bank of United States, 5 Peters U. S. 529.

3. Where there is no responsible principal, a contracting party, though representing himself as an agent, will be personally liable. Eaton v. Bell, 5 B. & Ald. 34. Thacher v. Dinsmore, 5 Mass. 299. Childs v. Monins, 2 Brod. & Bing. 460. Story on Agency, § 280.

4. Where the agent acts for a principal residing in a foreign country. But on the question whether the agent is alone liable, the authorities are conflicting. See ante, p. [* 631], n. b.

III. Where both principal and agent are liable.

Subject to the exceptions mentioned above, where an agent, acting within his authority, contracts without naming his principal, the contracting party, on discovering the principal, may elect to charge either him or the agent. The converse of this rule is also well established, namely, that the principal may declare himself, and take advantage of his agent's contracts made without disclosing him. But if the state of accounts between the contracting parties have bonâ fide, in due course of dealing, been altered, the right of election is, in such case, lost. Sims v. Bond, 5 Barn. & Adol. 393. Patterson v. Gandessequi, 15 East, 62. Thomson v. Davenport, 9 Barn. & Cress. 78. Kymer v. Suwercropp, 1 Campb. 109. Pent