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himself. But if a person would excuse himself from responsibility on the ground of agency, he must show that he disclosed his principal at the time of making the contract, and that he acted on his behalf, so as to enable the party with whom he deals to have recourse to the principal, in case the agent had authority to bind him." And if the agent even buys in his own name, but for the benefit of his principal, and without disclosing his name, the principal is also bound as well as the agent, provided the goods come to his use.c The attorney who executes a power, as by giving a deed, must do it in the name of his principal; for if he executes in his own name, though he describes himself to be the agent or attorney of his principal, the deed is held to be void; and the attorney is not bound, even though he had no authority to execute the deed, when it appears on the face of it to be the deed of the principal.d But if the agent binds himself personally, and engages ex pressly in his own name he will be held responsible, though he should, in the contract or covenant, give himself the description or character of agent. And though the attorney, who acts without authority, but in the name of the principal, be not personally bound by the instrument he executes, if it contain no covenant or promise on his part,

a Owen v. Gooch, 2 Esp. Rep. 567. Rathbone v. Budlong, 15 Johns. Rep. 1. Goodenow v. Tyler, 7 Mass. Rep. 36. Greely v. Bartlett, 1 Greenleaf, 172. Corlies v. Cumming, 6 Cowen, 181.

b Mauri v. Hefferman, 13 Johns. Rep. 58.

e Upton v. Gray, 2 Greenleaf, 373.

d Combes' case, 9 Co. 76.

Frontin v. Small, 2 Lord Raym. 1418. Wilks v. Back, 2 East, 142. Bogart v. De Bussy 6 Johns. Rep. 94. Fowler v. Shearer, 7 Mass. Rep. 14. 19. Stinchfield v. Little, 1 Greenleaf, 231. Hopkins v. Mebatty, 11 Serg. & Rawl. 126.

Forster v. Fuller, 6 Mass. Rep.
Tippets v. Walker, 4 Mass. Rep.

• Appleton v. Binks; 5 East, 148. 58. Duvall v. Craig, 2 Wheaton, 56. 595. White r. Skinner, 13 Johns. Rep. 307.

yet there is a remedy against him by a special action upon the case, for assuming the act when he had no power.

When goods have been sold by a factor, the owner is entitled to call upon the buyer for payment, before the money is paid even to the factor; and a payment to the factor, after notice from the owner not to pay, would be a payment by the buyer in his own wrong, and it would not prejudice the rights of the principal. If, however, the factor should sell in his own name as owner, and not disclose his principal, and act ostensibly as the real and sole owner, though the principal nay afterwards bring his action upon the contract against the purchaser, the latter, if he bona fide dealt with the factor as owner, will be entitled to set off any claim he may have against the factor, in answer to the demand of the principal.

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If

There is a distinction in the books between public and private agents on the point of personal responsibility. an agent, on behalf of government, makes a contract, and describes himself as such, he is not personally bound, even though the terms of the contract be such as might, in a case of a private nature, involve him in a personal obligation.d The reason of the distinction is, that it is not to be presumed that a public agent meant to bind himself individually for the government, and the party who deals with

a Long v. Colburn, 11 Mass. Rep. 97. Harper v. Little, 2 Greenleaf, 14.

b Lisset v. Reave, 2 Atk. 394.

e Rabone v. Williams, cited in 7 Term Rep. 360. note. George v. Clagett, 7 Term Rep. 359. Gordon v. Church, 2 Caines, 299. Chambre, J. in 3 Bos. & Pull 490.

d Macbeath v Haldimand, 1 Term Rep. 172. ibid. 674. Brown v. Austin, 1 Mass. Rep 208

Unwin v. Wolseley,

Dawes v. Jackson,

9 Mass. Rep. 490 Hodgson v. Dexter, Cranch, 345. Walker v. Swartwout, 12 Johns. Rep. 444. Rathbone v. Budlong, 15 Johns. Rep. 1. Adams v. Whittlesey, 3 Conn. Rep. 560. Stinchfield . Little, 1 Greenleaf, 231.

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, Anten led to be given. This is the general inference to be drawn from all the cases, and it is expressly declared in some of them."

An agent, ordinarily, and without express authority, has not power to employ a sub-agent to do the business, with out 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 authority, in a matter of mere private concern, be confided to more than one agent, it is requisite that all join in the execution of the power; though the cases admit the rule to be different 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.c

(3.) Of the agent's right of lien.

The lien here referred to is the right of an agent to re

a 12 Johns. Rep. 385. 15 Johns. Rep. 1.

b Combe's case, 9 Co. 75. Ingram v. Ingram, 2 Atk. 83. Attorney General v. Beveyman, cited in 2 Vesey, 643. Solly v. Rathbone, 2 Maule & Selw. 298. Cochran v. Irlam, ibid. 303. Schmaling v. Thomlinson, 6 Taunton, 147. Coles v. Trecothick, 9 Vesey, 234. 251.

c Grindley v. Barker, 1 Bos. & Pull. 229. Town v. Jaquith, 6 Mass. Rep. 46. Green v. Miller, 6 Johns. Rep. 39. Baltimore Turnpike, 5 Binney, 431. Patterson v. Leavitt, 4 Conn. Rep. 50.

tain possession of property until some demand of his be 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."

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 one is taken strictly, but the other 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 by the common law; 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 them if they refuse without adequate reason. But 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,

a Lord Mansfield, in Green v. Farmer, 4 Burr. 2221.

b Heath, J. 3 Bos. & Pull. 494.

c Naylor v. Mangles, 1 Esp. Rep. 109. York v. Grenaugh, 1 Salk. 388. 2 Lord Raym. 866. S. C. Chambre, J. 3 Bos. & Pull. 55. Rushforth v. Hadfield, 7 East, 224. 21 Hen. VI. 55. Keilw. 50. Popham, Ch. J. Yelv. 67.

d Lane v. Cotton, 12 Mod. 484, 1 Lord Raym. 646.

but 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. 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 dyed, or worked up into a garment. The same right applies to a miller, printer, tailor, wharfinger, 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 spe cial agreement would be inconsistent with the right of lien, and would destroy it."

If goods come to the possession of a person by finding, and he has been at trouble and expense about them, he has a lien upon the goods for a compensation in one case only, and that is the case of goods lost at sea, and it is a Aien for salvage. This lien is dictated by principles of com

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

b Blake v. Nicholson, 3 Maule & Selw. 168. Chase v. Westmore, Maule & Selw. 180. Crawshay v. Homfray, 4 Barn & Ald. 50

c Hartford v. Jones, 2 Salk. 654. 1 Lord Raym. 393. S. C. Ilamilton ☛. Davis, 5 Burr. 2732. Baring v. Day, 8 Eust, 57.

VOL. II.

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