Εικόνες σελίδας
Ηλεκτρ. έκδοση

ihe 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

12 Johns. Rep. 385. 15 Ibid. 1. Opinions of the Attorneys General, vol. 2. 962. 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 misseasance and excess of authority, through the negligence of workmen under him. Leader v. Moxton, 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, 2d ed. sec. 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 misfeasances 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. 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. Clarke & Finelly's R. vol. 12. 91. The case of the post-master 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 Ld. 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 defaults 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 B. of Cress. 547. Littledale v. Lansdale, 2 H. Blacks. Rep. 267. Bush v. Steinman, 1 B. 4 Puller, 404. McManus v. Crickett, 1 East's Rep. 106. Vide supra, p. 259, 260. But there is also a qualification to this doctrine in the case of masters of mer. chants' vessels and of steam-boats, who are responsible as principals and

An agent, ordinarily, and without express authority, or a fair presumption of one, growing out of the particular transaction, or of the usage of trade, has not power to employ a sub-agent 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. And if the autho

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 it. foundations laid deep in the Roman law. Dig. 4. 9. 1. See supra, p. 609. 632. note c.

· Combes' case, 9 Co. 75. Ingram v. Ingram, 2 Atk. Rep. 88. Attor. ney General v. Beveyman, cited in 2 Ves. 643. Solly v. Rathbone, 2 Maule f. Selw. 298. Cockran v. Irlam, Ihid. 303. Schmaling v. Thom. linson, 6 Taunt. Rep. 147. Lyon v. Jerome, 26 Wendell'8 Rep. 485. There must be in such cases a special power of substitution. Coles v. Trecothick, 9 Ves. 234, 251. Story on Agency, p. 13—17, 2d edit. In this latter work it is said, p. 17, that the substituted agent may still be re. sponsible to the original agent, inasmuch as the latter is responsible to the principal; and if a sub-agent 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 principal. Story on Agency, sect. 386. But in general sub-agents, acting ex contractu, are responsible only to the immediate agents who employ them, and not to the principal of such agents. Traston v. U. States, 3 Story's R. 696. The conclusion from the cases 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 sub-agent as his agent, and sue for the money. i Peter's R. 25. 1 Howard, 234. 3d Id. 763. See Holcomb's leading cases on commercial law, p. 22, where the subject and cases are fully discussed in a note. The principal is liable to third persons in a civil suit for frauds or misleasances or neglect of duty in his agent, or in those whom his agent employs, though the priucipal did not authorize or assent to it. The liability runs through all the stages of the service. Story on Agency, ch. 17. sec. 452. 454. In Sproul v. Hemmingway, 14 Pick. 1, in the case of a brig towed at the stern of a steamboat employed in the business of towing vessels in the Mississippi, and through the negligence of the master and crew of the VOL. II.


rity, in a matter of mere private concern, be confided to more than one agent, it is requisite that all join in execution of the power and they are jointly responsible for each other ; though the cases admit the rule to be dif. ferent in a matter of public trust, or of power conferred for public purposes ; and if all meet in the latter case, the act of the majority will bind.a

*634 *III. Of the agent's right of lien.

The lien here referred to, is the right of an agent to retain possession of property belonging to another, until some demand of his is satisfied. It is created either by common law, or by the usage of trade, or by the express agreement or particular usage of the parties.b A lien, said Ch. J. Tindal, only can arise in one of three ways. 1. By an express contract; 2. by a general course of dealing in the trade in which the lien is set up; 3. from the particular circumstances of the dealing between the parties.

A general lien, is the right to retain the property of another, for a general balance of accounts; but a particular lien is a right to retain it only for a charge on account of labour employed or expenses bestowed upon the identical property detained. The former is taken strict.

steamboat, the brig was brought into collision with a vessel lying at anchor and did damage to it, it was held that the owner of the brig was not liable for the damage, and on the ground that the master and crew of the steamboat were not in any sense his agents, and that there was no negligence or misconduct on the part of the master and crew of the towed brig.

Grindley v. Barker, 1 Bos. f Pull. 229. Town v. Jaquith, 6 Mass. Rep. 46. Green v. Miller, 6 Johns. Rep. 39. Baltimore Turnpike 5 Binney's Rep. 481. Patterson v. Leavitt, 4 Conn. Rep. 50. The King v. Beeston, 3 Term Rep. 592. Lawrence, J., in Withnell v. Gartham, 6 Term Rep. 388. M'Cready v. Guardians of the Poor, Serg. $ Rawle, 99. First Parish in Sutton v. Cole, 3 Pick. Rep. 244, 245. Ex parte Rogers, 7 Cowen's Rep. 526. Jewett v. Alton, 7 N. H. Rep. 253. Downing v. Rugar, 21 Wendell, 178. Johnston v. Bingham, 9 Watts & Serg. 56. Story on Agency, 2d edit. sec. 41–44. Vide supra, p. 293.

b Lord Mansfield, in Green v. Farmer, 4 Burr. Rep. 2221. • Ferguson v. Norman, 5 Bingham, N. C. 76.

'ly, but the latter is favoured in law.& The right rests on principles of natural equity and commercial necessity, and it prevents circuity of action and gives security and confidence to agents.

Where a person, from the nature of his occupation, is under obligation, according to his means, to receive, and be at trouble and expense about the personal property of another, he has a particular lien upon it; and the law has given this privilege to persons concerned in certain trades and occupations, which are necessary for the accommodation of the public. Upon this ground, common carriers, innkeepers, and farriers, had a particular lien bv the common law :b for they were bound, as Lord Holt said, to serve the public to the utmost extent and ability of their employment, and an action lies against hem if they refuse, without adequate *reason. But *635 though the right of lien probably originated in those cases in which there was an obligation, arising out of the public employment, to receive the goods, it is not now confined to that class of persons; and, in a variety of cases, a person has a right to detain goods delivered to him to have labour bestowed on them, who would not be obliged to receive the goods, in the first instance, contrary to his inclination. It is now the general rule, that

• Heath, J., 3 Bos. g Pull. 494. Tindal, Ch. J., 4 Carr. f Payne's Rep. 152. Scarfe v. Morgan, Exch. Trin. Term, 1838.

b Naylor v. Mangles, 1 Esp. Rep. 109. York v. Grenaugh, 1 Salk, Rep. 388. 2 Ld. Raym. 866, S. C. Chambre, J., 3 Bos. of Pull. 55. Rushfort v. Hadfield, 7 East's Rep. 224. 21 Hen. VI. 55. Keilu. 50. Popham, Ch. J., Yelv. Rep. 67. Carlisle v. Quattlebaum, 2 Bailey's S. C. Rep. 452. This lion does not extend to agisters and livery-stable keepers, without a special agreement, or the horse be taken for training. Lord Holt in Yorke v. Grenaugh, sup. Bevan v. Waters, 3 Carr. &. Payne, 520. Wallace v. Woodgate, 1 Carr. f. Payne, 575. See, also, Judson v. Etheridge, 1. Crompt. f. Meeson, 743. Grinnell v. Cook, 3 Hill, 492. Jackson v. Cummins, 5 Mees. f Wells. 342. Nor does the innkeeper's sight of lien extend to the person of his guest, or to his wearing apparel. Sunbolp v. Alford, 1 Horn f Hurlstone's Exch. Rep. 13.

• Lane v. Cotton, 12 Mod. Rep. 484. 1 Ld. Raym. 646.

every bailee for hire, who, by his labour and skill, has imparted an additional value to the goods, has a lien upon the property for his reasonable charges. A tailor, or dyer, is not bound to accept an employment from any one that offers it, and yet they have a particular lien, by the common law, upon the cloth placed in their hands to be died, or worked up into a garment. The same right of a particular or specific lien applies to a miller, printer, tailor, wharfinger, warehouseman, or whoever takes property in the way of his trade or occupation, to bestow labour or expense upon it; and it extends to the whole of one entire work upon one single subject, in like manner as a carrier has a lien on the entire cargo for his whole freight. The lien exists equally, whether there be an agreement to pay a stipulated price, or only an implied contract to pay a reasonable price. The old authorities, which went to establish the proposition, that the lien did not exist in cases of a special agreement for the price, have been overruled, as contrary to reason, and the principles of law; and it is now settled to exist equally, whether there be, or be not, an agreement for the price, unless there be a future time of payment fixed; and then the special agreement would be inconsistent with the right of lien, and would destroy it.d

a Grinnell v. Cook, 3 Hill, 491.

Hob. Rep. 42. Yelv. Rep. 67. Green v. Farmer, 4 Burr. Rep. 2214. Close v. Waterhouse, 6 East's Rep. 523, in notis.

· A lien at common law signifies the right of detention in persons who have bestowed labor upon an article or done some act in reference to it, and who have this right of detention, till reimbursed for their expenditure and labor. Whitman Ch. J., 24 Maine R. 219.

d Blake v. Nicholson, 3 Maule & Selw. 168. Chase v. Westmore, 5 Ibid. 180. Crawshay v. Homfray, 4 Barnw. f Ald. 50. Burdick v. Murray, 3 Vermont Rep. 302. The statute laws of the states generally, give a lien to mechanics and others on buildings for labour bestowed, and materials furnished in the erection of them, as well as a remedy personally against the owner who employed them. This is the case in Maine, Mas. sachusetts, Connecticut, New-York, (Act of N. York, May 7th, 1844.) New Jersey, Pennsylvania, Ohio. In Ohio the purchaser of a steamboat, with notice of a debt created on account of it by the original owner, takes

« ΠροηγούμενηΣυνέχεια »