AN 20 SEP 1961 LIBRARY Entered according to Act of Congress, in the year 1882, by In the office of the Librarian of Congress, at Washington. SOUTHERN LAW REVIEW VOL. VII., N. S.] ST. LOUIS, APRIL, 1881. [NUMBER I. THE POWER OF USAGE AND CUSTOM TO CONTROL OR ALTER RULES OF LAW. II. In a former paper,' the power of usage and custom to affect legal rules and liability was considered in three cases, I. In the Case of Common Carriers. II. In the Law of Insurance. III. In the Relation of Landlord and Tenant. In this paper, the discussion there commenced will be extended to the following, viz. :— IV. In the Relation of Principal and Agent. V. In the Law of Corporations. VI. In the Law of Sales. VII. In the Law of Banks and Banking, and Negotiable and Assignable Paper. The attention of the reader is directed to the language of courts and judges to the effect that a custom or usage which is contrary to an "established rule of law" is never admissible in evidence for the purpose of varying or altering those rules, which was cited at some length in the former paper, and which it is not necessary to repeat. But it may be well to repeat in this place the three divisions into which, as appears to the writer, these "established rules of law," and the cases in which usage and custom have been set 2 Id. 845, 846. 6 South. L. Rev. 845. up to affect them, properly resolve themselves. They are: First, those in which usage has been so powerful as not only to obtain recognition where proved, but to entirely alter the legal doctrine, and to become itself the "established rule of law" for subsequent cases; second, those in which the old rule of law still prevails, except where it appears that the usage of the parties has been different, and evidence of such a contrary custom is admissible to control the effect of the legal doctrine; and, third, those in which usage or custom is not permitted to affect the legal doctrine. Bearing these in mind, we will proceed to a consideration of the different relations in which usage has been controlling or ineffectual, as the case may be. IV. In the Relation of Principal and Agent. As already stated,' not every one of the many legal rule governing the rights and liabilities of principal and age can be discussed, in connection with our subject, within q limited space. It will be sufficient for the purpose of t essay to note only the principal rules as to which a co custom has grown up among the parties; and in th of agency these are eleven, as follows: (3-) (1.) An authority to do an act cannot be delegatu another - Delegata potestas non potest delegari. (2.) A f tor has no implied authority to sell except for cash. factor has no implied authority to pledge the goods of principal as security for his own debt. (4.) A payment an authorized agent will discharge the debt, but (5)+ agent employed to sell for a known principal has no impli authority to receive payment. (6.) A factor has no impli authority to set off his own private debt against the de of the vendee. (7.) Profits made by an agent out of t principal's business belong to the principal. (8.) An age of the owner to sell property cannot be also a the purchaser as well, and receive compensation (9.) An agent cannot legally disregard his princip 16 South. L. Rev. 849. tions. (10.) An agent, contracting as such, is not personally liable on a contract so made.. (11.) An agent contracting in his own name will be personally liable on his contract. These rules will be discussed in the above order. (1.) Delegata potestas non potest delegari. This maxim expresses an important principle in the law of agency. This principle may be thus stated: One who has authority from another to do an act must execute it himself, and cannot delegate his authority to another; for, being a confidence or trust reposed in him personally, it cannot be assigned to a stranger, whose ability and integrity might not be known to the principal, or, if known, might not be selected by him or such a purpose. Although to this general rule there. reme exceptions,' they are not material to this discuson, as it is important here to note only that usage may hange a case which otherwise would be governed by the alaxim as first stated in this paragraph. In one case it was marked by Lord Eldon that "the doctrine is very danhitrous indeed, that if an auctioneer is authorized to sell, of his clerks when he goes out of town are, in consequence usage in that business, agents for the person who rized them," 3 but in Moon v. Guardians of the Poor,+ tom, in the case of an architect, to employ a surveyor frike out the quantities of a building proposed to be Aected, was held valid so as to render the employers of (se builder liable to the surveyor for his work. "The jury ound," said Tindal, C. J., "that there was a usage in the Leade for architects or builders to have their quantities made at by surveyors. It appeared that the custom is * * Johnson v. Cunningham, 1 Ala. 249; Alexander v. Alexander, 2 Ves. 0; Burial Board v. Thompson, L. R. 6 C. P. 457; Baker v. Cave, 1 Hurl. N. 678; Warner v. Martin, 11 How. 209: Hawley v. James, 5 Paige, 326; ocke's Appeal, 72 Pa. St. 491; Lyon v. Jerome, 26 Wend. 485; Ex parte insor, 3 ory, 411; Bocock v. Pavey, 8 Ohio St. 270. vard v. Bailee, 2 H. Black. 618; Quebec, etc., R. Co. v. Quinn, 9 C. 265; Howard's Case, L. R. 1 Ch. 561; Bodine v. Insurance 117; Buckland v. Conway, 16 Mass. 396; Commercial Bank v. 11, 501. 43 Bing. N. C. 814. |