200 Mercantile persons.

Rights of third Persons against Principal.

of principal and agent seems not yet well settled, {h) As to the

Implied authority arising from previous employment, that can, as

we have seen, be determined only by rendering it notorious to the

world in general, or to the particular person who relies on it, that

{h) See this question learnedly discussed in Story on Principal and Agent, 1st ed.

435 ; And see Ex parte Bradberry, 4 Deacon, 202.

attorney, no objection can be taken to it. But if it is intended to say, that this prin-

ciple applies where there was no notice of death, or opportunity of notice, I must be

permitted to dissent from it.— In addition, it is contrary to the opinion of Lord Lough-

borough in Tate iВ». Hilberts, (2 Ves. jun.,) where on a question, whether a check

given by a dying person to a relation, but not presented in his lifetime, could be en-

forced, as a donatio causa mortis, against the executor, he said, if the donee had re-

ceived the money upon the check immediately after the death of the testator, and

before the cashier was apprised of it, he was inclined to think no court would have

taken it from him. And what would he have said if the attempt had been made to

subject the banker when he was ignorant of the death ? But, if tliis doctrine applies,

why does it not apply to the case of factors, foreign or domestic, to commission

merchants, to supercargoes and masters of ships, and to various other agencies which

the necessities of commerce may require ? In the case of a foreign factor, for exam-

ple, has it been supposed that his acts, after this implied revocation of authority,

are void? Cases of this kind must often have occurred; and it would astonish the

mercantile world to be informed, that the factor was liable on a contract, made in

the name of his principal, because he was dead, a fact of which he was ignorant,

and of which he could not by any possibility be informed ; or that the merchant,

who was trusting his goods on the credit of the principal, was to be cast on him who

may have been of doubtful solvency for payment. Can it be, that a payment made

to an agent from a foreign country, and from one of our cities to the Western States,

employed for the special purpose of collecting debts, is void, because his principal

may have died the day before the actual receipt of the money?— that a payment

may be good to-day, or bad to-morrow, from the accidental circumstance of the

death of the principal, which he did not know, and which by no possibility could he

know ? It would be unjust to the agent, and unjust to the debtor. In the civil law,

the acts of the agent, done bona fide in ignorance of the death of his principal, are

held valid and binding upon the heirs of the latter. The same rule holds in the

Scottish law ; and I cannot believe the common law is so unreasonable, notwith-

standing the doubts expressed by Chancellor Kent in 2d Vol. of his Commentaries,

p. 466."

However the interesting point which is here raised may be finally adjudicated,

the law seems now to be settled in England, that an agent contracting on behalf of

his principal, after the death of the latter, in ignorance of the fact, and without

making any representations as to it to the other party, will not incur any personal

responsibility. Smout v. Ilberry, 10 Mees. & Welb. 1.

PRIN'CIPAL AND AGENT. 201

Rights of third Persons against Principal.

such employment has been put an end to. {i) /SV Tilium omnibus

nogoiiis meis prcejjosuero, deinde vetuero eum, ignorantibus debitor ibiis,

administrare negotia mea^ debitores ei solvendo liberabuntur. And, if

a particular agent were to contract after the revocation of his au-

thority, but before the revocation had been made known to him,

there seems little doubt that jDcrsons who had dealt upon the faith

of it, would not be permitted to suffer, {j) except indeed in the case

of a revocation by death, in which it seems from Blades v. Free^ 9

B. and C. 167, that the representatives of the deceased principal

would not be liable, and from Smout v. Ilberry^ 10 M. and W. 1,

that the agent would not be so. It would seem also just, on prin-

ciple, that an agent should not be prejudiced by the revocation of

his power, without his own knowledge ; yet, though it would ap-

pear that an agent acting under a particular authority, after his

master's bankruptcy, which was not known to him, will not be lia-

ble to the assignees, it has been held otherwise where his authority

was a general one. {k)

The rule of the civil law guarded against detriment either to

the agent or to those contracting with him, by the sudden revoca-

tion of his authority. Nemo potest mutare consilium, suum in alterius

injuriain.il) Si tibi mandassem ut fandum eryieres, p>ostea scripsissem

ne emeres, tu antequam scias me vetuisse emisses, mandato tibi obligatus

era, ne damno ajfficiatur is qui suscipit rnandatum. (rn) Pothier goes

further, and lays it down that an agent has, in such cases, a right

faire ce qui est une suite necessaire de ce quil avait commence, (n)

"When an agent has completed his task, his authority of course de-

termines: thus, an auctioneer, when he has sold, is functus officio,

and has no right to treat about the mode of making out a title, (o)

(J) Hazard v. Tread well, Str. 506. v. Harrison, 12 Mod. 346.

(j) See the remarks of Buller, J., in Salte v. Field, 6 T. R. 215, and see Hodgson