LETAN

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 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.

I 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

THE POWE

110.) An agent, c

on a contract so

Own name will E

alter the legal doctrine, and to become itself the " estables will be discu Ilished rule of law" for subsequent cases; second, those in Delegata potestas I which the old rule of law still prevails, except where its an importan appears that the usage of the parties has been different, and ciple may be evidence of such a contrary custom is admissible to control other to do an the effect of the legal doctrine; and, third, those in which gate his autho usage or custom is not permitted to affect the legal doct reposed in t trine. Bearing these in mind, we will proceed to a consider, whose at eration of the different relations in which usage has been principal, or controlling or ineffectual, as the case may be.

IV. In the Relation of Principal and Agent.

ch a purpos me except

as it is imp

e a case

As already stated,' not every one of the many legal run as first governing the rights and liabilities of principal and aged by 1 can be discussed, in connection with our subject, within s indeed. limited space. It will be sufficient for the purpose of clerks w

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:

usage nized the tom, in th

ike out t

(2.) Ad, was he

(1.) An authority to do an act cannot be delegat another-Delegata potestas non potest delegari. tor has no implied authority to sell except for cash.

(3-ilder liab

factor has no implied authority to pledge the goods of" said Tir principal as security for his own debt. (4.) A payment for archite

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

surveyors!

soa . Cunni

authority to set off his own private debt against the deal Board v.

Arpeal, 72 P

of the vendee. (7.) Profits made by an agent out of Warner

principal's business belong to the principal. (8.) An agory, 411:

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.

Ward . B C. 265;

117: Bu

501.

Trecothi

USTOV

jons. (10.) An agent, contracting as such, is not personally selves able on a contract so made.. (11.) An agent contracting ope his own name will be personally liable on his contract. hese rules will be discussed in the above order.

d, but itself

; second

missible:

d, those ct the le ceed to a

e.

(1.) Delegata potestas non potest delegari. This maxim presses an important principle in the law of agency. exce his principle may be thus stated: One who has authority Deen di m another to do an act must execute it himself, and candelegate his authority to another; for, being a confidence trust reposed in him personally, it cannot be assigned to tranger, whose ability and integrity might not be known the principal, or, if known, might not be selected by him. usage such a purpose. Although to this general rule there >me exceptions,' they are not material to this discusas it is important here to note only that usage may Agent. nge a case which otherwise would be governed by the any legim as first stated in this paragraph. In one case it was ipal andarked by Lord Eldon that "the doctrine is very danject, wit us indeed, that if an auctioneer is authorized to sell, is clerks when he goes out of town are, in consequence purpose ich a Cusage in that business, agents for the person who d in thrized them," 3 but in Moon v. Guardians of the Poor,* tom, in the case of an architect, to employ a surveyor delega1ike out the quantities of a building proposed to be (2.) td, was held valid so as to render the employers of cash. builder liable to the surveyor for his work. "The jury goods id," said Tindal, C. J., "that there was a usage in the A payme for architects or builders to have their quantities made , but by surveyors. It appeared that the custom is

is no in

* * *

is no in Johnson v. Cunningham, I Ala. 249; Alexander v. Alexander, 2 Ves. nst the Burial Board v. Thompson, L. R. 6 C. P. 457; Baker v. Cave, 1 Hurl.

t out

678; Warner v. Martin, 11 How. 209: Hawley v. James, 5 Paige, 326; ke's Appeal, 72 Pa. St. 491; Lyon v. Jerome, 26 Wend. 485; Ex parte 3.) Ansor, 2ory, 411: Bocock v. Pavey, 8 Ohio St. 270.

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

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

117; Buckland v. Conway, 16 Mass. 396; Commercial Bank v. 501.

Trecothick, 9 Ves. 250.

4

3 Bing. N. C. 814.