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20 SEP 1961

LIBRARY

Entered according to Act of Congress, in the year 1882, by

REVIEW PUBLISHING COMPANY, In the office of the Librarian of Congress, at Washington.

SOUTHERN LAW REVIEW

Vol. VII., N. S.] St. Louis, April, 1881.

[NUMBER 1.

THE POWER OF USAGE AND CUSTOM TO CON

TROL 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,

viz. :

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.

16 South. L. Rev. 845. VOL. VII. NO. 1.

I

up to affect them, properly resolve themselves. They are First, those in which usage has been so powerful as no only to obtain recognition where proved, but to entirel alter the legal doctrine, and to become itself the "estat lished rule of law" for subsequent cases; second, those which the old rule of law still prevails, except where appears that the usage of the parties has been different, ai evidence of such a contrary custom is admissible to conti the effect of the legal doctrine; and, third, those in whi usage or custom is not permitted to affect the legal di trine. Bearing these in mind, we will proceed to a cons eration of the different relations in which usage has be 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 ru governing the rights and liabilities of principal and ag can be discussed, in connection with our subject, within limited space.

It will be sufficient for the purpose of essay to note only the principal rules as to which a co custom has grown up among the parties; and in tł of agency these are eleven, as follows:

(1.) An authority to do an act cannot be delegat J another — Delegata potestas non potest delegari. (2.) A tor has no implied authority to sell except for cash. (3. factor has no implied authority to pledge the goods of principal as security for his own debt. (4.) A paymen an authorized agent will discharge the debt, but (5) agent employed to sell for a known principal has no imp authority to receive payment. (6.) A factor has no imp authority to set off his own private debt against the d of the vendee. (7.) Profits made by an agent out of principal's business belong to the principal. (8.) An ag of the owner to sell property cannot be also as the purchaser as well, and receive compensation (9.) An agent cannot legally disregard his princip

1 6 South. L. Rev. 849.

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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 à 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

ome exceptions, they are not material to this discusion, as it is important here to note only that usage may hange a case which otherwisé would be governed by the

axim as first stated in this paragraph. In one case it was and amarked by Lord Eldon that “the doctrine is very danwithinrous indeed, that if an auctioneer is authorized to sell,

in ose of his clerks when he goes out of town are, consequence

vusage 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 egat fr’ike out the quantities of a building proposed to be 2.) A ected, was held valid so as to render the employers of

(3e builder liable to the surveyor for his work. “The jury ods olund,” said Tindal, C. J., “that there was a usage in the jaymeade for architects or builders to have their quantities made put (Sat by surveyors.

It appeared that the custom is no im' Johnson v. Cunningham, I Ala. 249; Alexander v. Alexander, 2 Ves. st the o; Burial Board v. Thompson, L. R. 6 C. P. 457; Baker v. Cave, i Hurl.

N. 678; Warner v. Martin, u How. 209: Hawley v. James, 5 Paige, 326 ;

ocke's Appeal, 72 Pa. St. 491; Lyon v. Jerome, 26 Wend. 485; Ex parte ) An einsor, ? ' ory, 4!!: Bocock v. Pavey, 8 Ohio St. 270.

vard v. Bailee, 2 H. Black. 618; Quebec, etc., R. Co. v. Quinn, app

, C. 265; Howard's Case, L. R. 1 Ch. 561; Bodine v. Insurance d the

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117; Buckland v. Conway, 16 Mass. 396; Commercial Bank v.

501. Trecothick, 9 Ves. 250.

4 3 Bing. N. C. 814.

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