William M. Lacy James Kent.

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and may enforce those rights by action. Barry r. Page, 10 Gray (Mass.), 398;
BasscltV. Liderer, 1 Hun. (N. Y.) 274; Isley r. Merriman, 7 Cush. (xMajM.)
242; Bi-ewster r. Saul, 8 Iji. 396; Lulver v. Bigelow, 43 Vt. 249; Nicholls
V. Burke, 78 N. Y. 581; Frazier v. Erie Bank, 8 W. & S. (Pa.) 18; Conklin
r. Leeds, 58 111. 178; Childers r. Bowen, 68 Ala. 221; Bryant v. Wells, 66 N.
H. 153; State of Wisconsin r. Torinus, 26 Minn. 1; Gage v. Stiuson, 26
Minn. 64; Stonewall Manf. Co. r. Peek, 63 Miss. 342.

These rights are subject to two quaUfication.s. FirtU, whether the princi-
pal is known or undisclosed at the time the contract is entered into, is. that
the right of the principal is affected and modified by the declarations, mis-
representations, concealments and fraud generally of the agent acting within
the siH)pe of his authority. Elwell r. Chamberlain, 31 N. Y. 611; Veazie v.
Williams, 8 How. (U. S.) 13!; Mut. Ben. Ins. Co. v. Cannon, 48 Ind. 264;
Brown r. Hartford Fire Ins. Co., 117 Mass. 479; Southern Ex. Co. v. Palmer,
48 Ga. 85. Where one seeks to enforce a contract made by his agent he is
l)onnd by the declarationsof the agent made at the time, even though.the
agent exceeded bis authority. Keongli r. I.>eslie, 92 Pa. St 424. But this
principle does not apply when such declarations were neither the inducement
to make the contract nor part of the conditions. Merrick Thread Co. r. Phila-
delphia Shoe Co., 115 Pa, St 314. The ixcond which is applicable to cases
where the agent has been allowed to contract as principal with the third
party without notice, is, that the principal, if he takes advantage of the
agent*s contract, must do so subject to all equities and rights of which the
other contracting party might avail himself in the transaction as against the
agent assuming the latter to have been a principal. Traub t.^ Millikeu. 67
Me. 63; Train tor v, Preudergast, 3 Hill (N. Y.), 72; Leeds v. Marine Ins.



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the agent becomes liable by an undertaking in his own name, or
when he exceeds his power (a). If he makes the contract in be-
half of his principal, and discloses his name at the time, he is not
personally liable, not even though he should take a note for the
goods sold, payable to himself (6). But if a person would ex>
cuse 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, [ * 681 ]
so as to enable the party with whom he deals to have
recourse to the principal, in case the agent had authority to bind

{a) Thomas v. Bishop, 2 Sfr. Rep. 955. Leadbitter v. Farrow, 5 3fau1e dt
Selw. 345. Dasenbiiry r. Ellis, :* Johrs. Ca$. 70. Parker, Ch. J., Stackpole
r. Arnohl, 11 J//i«9. Rep. 29, and Hastings r. I^verinj?, 2 Pick. Rep, 221;
Hampton r, Speckenagle, 9 Serg. <fr Raxole^ 212. Where an agent voluntarily
(liHo)>eyH the instructions of his pnnci|)al, and converts to his own u.se moneys
lielonging to his principal, to whk'h a definite and specific destination was
pven. and the article he was directed to buy subsequently acquires addi-
tional value, the agent has been held responsible, not merely tor the money
with interest, but for the article. Short r. Skipwith, 1 BrockenhroiiglVii R. 1U3.
It is not consistent with the summary view taken in this lecture of the law of
agency, to enter into a detail of the particular respousibili ties of agents.
We must be content to state generally the principle that the agent is liable
to his principal for all losses and damages arising from violations of his duty
as agent; by reason of misconduct, delinquency, stretch or abuse of power,
or negligencies, provided the loss or damage be reasonably attributable to
the same. The illustrations of the general principle are to be seen in the
authorities stated or referred to in the treatise at large on agency, and es-
pecially in Livermore on Agency, ch. 8, Paley on Agency bv Lloyd, passim,
and particularly p. 7—20, 46, 55— 1(K), 130—149, 212—240, 294—304, 335—
342, 386—390, and in Story on Agency, ch. 8.

(6) Owen v. Gooch, 2 Esp. N. P. Rep. 567. Rathbone r. Budlong, 15 Johns,
Rep. 1. Goodenow v. Tyler, 7 Mam. Rep. 36. Greely v. Bartlett. 1 GreerUeafa
Rep, 172. Corlies v. Gumming, 6 OinD€7i^s Rep. 181. The agent is not liable
individually, if he draws a bill of exchange which is protested, provided he
declares himself at the same time to be the agent of the dratrees. Zacharie r.
Nash, 13 Louisiana R. 20. The agent is personally liable, though he discloses
the name of his principal, if he signs a contract which does not show upon
the face of it that he contracts as agent. Mills r. Hunt, 20 Wendell, 431.
Hut if he drew the bill in his own name, without stating his agency, he is
personally liable, though the payee knew he was but an agent. Newhall r.
Dunlap, 2 Sheptey, 180, or Maine Rep. vol. 14, p. 180. He must di.sclose his
principaVs name, thongh he sell as auctioneer, or be will be personally lia-
ble. Mills V. Hunt, 20 Wendell, 431.

Co., 6 Wheat. (U. S.) 665; Locke r. Lewis, 124 Mass. 1; Miller f». Sullivan,
390hio St, ^O; Miller r. Tea, 3*) Md. 396; Conklin r. Leeds, 58 III. 178:
Koch r. Willi, 63111. 144; Peel r. Shepherd, 58 Ga. 365. Where one buys
from an agent the goods of his principal, under a misapprehension, not in-
duced by the principal that the goods belong to the agent, he can not nse as
a payment or counter claim, on a suit by the principal for the value of such
goods, a credit given by him to such agent on an individual debt of the
latter. Brown o, Morris, 83 N. C. 251; Stewart v. Woodward, 50 Vt. 78.



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bitn (a).^^ And if the agent even buys in bis own name, bnt for
ibo benefit of bis principal, and without disclosing bis name the
principal is also booud as well as the agent, provided the goods
come to bis use, or the agent acted in the business intrusted to
bim, and according to bis power (5)J* The attorney who executes

(a) Manri r. Heflferman, 13 Johns. Rep. 58. Seaber r. Hawkes. 5 Moorr <0
PntfHe^ 549. Mr. Justice Story, in his Trea^Re on Agency, sec. 2(i8, 290, lays
down the rule that agents or factors for merchants residing in foreign c<mniric*^
are personally liable on contracts made by them lur their principal, and this
without any distinction, whether they describe themselves as agents or not.
The legal presumption is that the credit is given to the agent exclnsively.
The supreme court of New York, in Kirkpairidc v. Stainer, a<ihered hsiwever
t:> the old rule, and beUi that thd agent wa.s not personally resiionsiblc when
he appeared in the transaction as an agent only, and dealt with the plaintiff
in that known character. The court held, that there was m distinction
known to our law on this point, l)etwecn an agent acting for a foreign and
for a domestic house. This decision was affirmed in the court of emrs. in
Desember, lrt:i9. Mr. Senator Verplanck^ gave the opinion of the court of
errors, and he examined the question with learning and ability. He held
that there was no general presumption "known to our law and commercial
usa;;es. that the credit in such cases was given exclusively to the agent, and
that the the English cases on which the presumption as a settled rule of law
was deduced in the treatise referred to. were of recent origin, and founded
on special or local usage in England and one not adopted here. Uc. cited
Eyre, Ch. J., in De Gaillon r. L'Aigle, I B. d: PuUer, 358. Bay Icy, J., in
Patters:>n v. Grandessequi, 15 Eniti, 70. I^rd Tenderden, in Thorn jxwn v.
Davenport, 9 B. dt Cress. 78. IJoytVs Notes to Paley on Agency. He ques-
tioned the policy of the rule that credit on sales or consignments wa.s not
pre-^uraed to be given t.> well established foreign honsen, but to temporary
agents in exoneration of their principals; and that until the course of busi-
ness had established such a rule here as well known in mercantile usage
and practice, it was wisest to adhere to the general law of agency, holding
the known principal responsible when the agent discloses his name and acts
avowedly and authorizedly on bis behalf, and leaving it to the discretion of
the American trader to obtain the security of the factor or agent, when he
judges it best.

{b) Nelson r. Powell, 3 Doug. Rep. 410. Upton v. Gray, 2 GreetUcafs Rep.
Where an individual is known to be contracting on behalf of a known
principal, he will, as a general rule, incur no personal liability upon such
contract. Paterson v. Gandaaequi. Smith L. C; 15 East, 62; Ex parte Har-
top, 15 Ves. 352. Unless such liability is necessarily implied from his con-
duct or the form of the contract into which he has entered. Campbell v.
Baker, 2 Watts (Pa.), S3; Whitman r. Wyman, 101 U.S. 392; Haight r.
Sohler, 30 Barb. 219. If the agent contract in writing or under seal, his lia-
bility or non-liability will, asageneral rule, depend upon the true construction
or the writing, though a prima facie liability upon a written instrument may
III certain cases be rebutted. Wake f> Harrup, 1 H. A C. 202; Lindus r.
Bradwell 5 C. B. 583; Woodes r. Bennett, 9 N. H. 55; Ballon r. Talljot, 1«
Mass. 461; Chipman r. Foster, 119 Mass. 189; Bank r. Dix, 123 Mass. 148;
Kite r. Gove, 22 Pick. 158.

The agent alone will be liable in the following cases: First. When he cov-
enants personally in instruments under seal. Quigley r. De Haas. 82 Pa.

w^PvLl* ^}, **«»»• ^'^ ^»«"^'A. Where the agent coMmita a wilfur wrong,
X.A en wnere a contract is entered iato by an agent in bU own name, it

-„ „ lown name, it \b



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a power, as by giving a deed, mast do it in the name of his prin-
cipal; for if he executes it in his own name, though ho describes
himself to bo 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 (a). But if the agent
binds himself personally, and engages expressly in his own name,
ho will be held responsible, though he should, in the contract or
covenant, give himself the description or character of agent (b).
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, yet there is a remedy *again8t him by a special [ * 632 ]
action upon the case, for assuming to act when he had
no power (c). If, however, the authority of the agent be coupled

373. Thompaon v. Davenport, 9 Brnnw <fe Cress. 7R. Cothaj i\ Fennel!, 10
Ibid, 671. Beebee v. RoherU 12 WendeWs Rep. 413. By acting in his own
name, the agent only adds his personal obligation to that ot the person who
employs him. This was a principle in the Roman law, and it applies eqnally
to our own. Dig. 14, 3, 3, 17. Pothier^ Traile des Obfig. No. 82. Hopkins
r. I^couture, 4 MiUer^s Louis, Rep. 64. Hyde v. Wolf, ibid. 234. In Andrews
r. Estas, 2 Fairfield, 267, it was held that the rule in Combe^-t case, that an
agent binds himself, and not his principal,, unless he uses the name of his
principal, applies only to sealed instruments. In other contracts it is suffi-
cient if it appear in the contract that he acted as agent.

(rt) Combe's case, 9 Co. 76. Frontin r. Small, 2 Ld. Raym. 1418. Wilksr.
Back, 2 East's Rep, 142. Gwillim^s Bacon's Abr. tit. Leases, 1. sect. 10. Bogart
V. De Bussy, 6 Johns. Rep. 94. Fowler v. Shearer, 7 Mass. Rep. 14, 19. Stinoh-
field V. Little, 1 Oreenleafs Rep. 231. Hopkins v. Mehatty, 11 Serg. <fc
Rnirle, 126. Smith t:. Perry, 1 Harr. <& 3f'ffen. Rep. 706. Harper v. Hamp-
ton, 1 Harr, <& Johns. Rep. 622. In the American Jurist, No. 5, 71 — Rl, there
is a very critical examination of all the cases, and especially of Combers case,
the great leading case for the doctrine in the text, by Mr. Hoffman, of Bal-
timore, the learned author of the Jjcgal Outlines. But in the St;ite of Maine,
by act of 1823. a deed by an agent in his own name is valid, provided he had
authority, and it appears on the face of the deed that he meimt to execute
the authority.

(6) Appleton v. Binks. ."> EasVs Rep. 148. Forster r. Fuller, 6 Mass. Rep.
58. Duvall V. Craig, 2 Wheat. Rep. 56. Tippets tJ. Walker, 4 Mass. Rep. 595.
White V. Skinner, 13 Johns. Rep. 307. Stone r. Wood, 7 Cowen's Rep. 453.
Fash r. Ross, 2 Hiirs S. C. Rep. 294.

(c) Long?*. Colburn, 11 Mass. Rep. 97. Harper r. Little, 2 Greenleafs
Rep. 14. Deliust\ Cawthorn, 2 Dev. N. C. Rep. 90. E^nerigon, Traild des
Contrais h la Orosse^ tomeii. p. 458, 461, 468, lays down the rule, and applies

competent to be shown by parol evidence that the agent was acting for an
undisclosed principal. Barker p. Garvey, 83 111. 184; and see Parker o.
Donaldson, 2 W. & 8. (Pa.) 9.

The third party knowing he is dealing with an agent, and aware of the
principaPs name may elect to deal with the agent alone. Clenlaud r. Walker,
11 Ala. 1059.



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with an interest in the property itself, he may contract and sell
in his own name. This is illustrated in various instances, as in
the cases of factors, masters of ships, and mortgagees (aj^ TLi*
case of the master of a ship, is an exception to the general rule,
and though he contracts within the ordinary scope of his powers,
he is, in general, personally responsible, as well as the owner,
upon all contracts made, by him for the employment, repairs, and
supplies of the ship. This is the rule of the maritime law, and
it was taken from the Roman law, and is founded on commercial
policy (6). But it is of course competent for the parties to agree
to confine the exclusive credit, either to the owner, or to the
master, as the case may be (c).

When goods have been sold by the factor, the owner is en-
titled to call upon the buyer for payment, before the money is
paid over 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 prin-
cipal (d). 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 may 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 (ey* When the party dealing with an

it to the captain of a ship, who, be says, is personally answerable, tfhe draws
a bill in his character of agent, without authority.

(a) Paley on Agency by Uoyd, 207, 208, 288, 2e^9. Story on Afffncy, 155, 156.

(b) Rich f. Coe, Gouiper'sR. 636, 639. Farmer v, Davis, 1 Term, U)9- Ab-
bott on Shipping, part 2, ch. 2 and 3. Emerigon, tit. 2, 448. Dig. 14, 1.
Story on Agency, p. 295—297. See, infra, toI. 3 161.

(c) Story on Agency, p. 298—303.
(fi) Lisset r. Reave, 2 Afk. Rep. 394.

(e) Rabone v, Williams, cited in 7 Tenn Rep. 360, note. George v. Clag-
gett, Jhid. 359. Gordon r. Church, 2 CnineH' Rep. 299. Chambre, J., in 3

'* A deed will bine} the principal it executed in his name and on his behalf
and this fact appears on the face of the instrument. Gardner p. Gardner, 5 Cush,
(Maiss.) 483; Mahouey v. McLean, 26 Min. 415. Where an agent or treasurer
of an atisociation signed a promissory note "George Moore, treasurer of
Mechanics* Falls Dairying Association,'' it was held to be his personal note.
Mellen v. Moore, 68 Me. 39; see, also, School Township of Monticello v.
Kendall, 72 Ind. 91;

There are numerous instances in which an agent has contracted on behalf
of others, but in his own name, and has accordingly been held liable. 2^e'
Bryson r. Lucas, 84 N. C. 680; Spencer r. Field. 10 Wend. (N. Y) 87;
Nixon I?. Downey, 49 Iowa, 166; Baldwin p. Leonard, 39 Vt. 266.

'** But if he be known to be an agent the principle would not apply. See
Semerza v. Brinsley, 18 C. B. 477; see Borriea r. Imperial Ottoman Bank,



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agent, and with knowledge of the agency, elects to make the
agent his debtor, he cannot afterwards have recourse against the
principal (a).

There is a distinction in the books between public and private
agents, on the point of personal responsibility. If an agent, on
behalf of government, makes a contract, and describes himself as
such, he is not personally bound, even though the terras of the
contract be such as might, in a* case of private nature, involve
him in a personal obligation (6). The reason of the dis-
tinction is, that it is not to be presumed * that a public [ * 633 ]
agent meant to bind himself individually for the govern-
ment; and the 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 (c):"

Bo8. d' Pufl. 490. Seignior & Wolmer's cas^, Godb. 360. Story od Agency,
p. 432, 433.

(a) Paterson r. Gandaseqni, 15 Easi^a Rep. 62. Addison v. Gandasequi, 4
Taunt. Rep. 574.

(6) Macbeath v. Haldimand, 1 TVrm Rep. 172. Unwin v. Wolseley, Ihid,
674. Gidley v. Lord Palmereton, 3 Brod. <fe Bing. 275. Brown r. Austin, 1
Mass. Rep. 208. Dawes r. Jackson. 9 Mass. Rep. 490. Hodgson r. Dexter,
1 Cranch's Rep. .345. Walker v. Swartwout, 12 Johns. Rep. 444. Rathbone p.
Budlong, 15 Ibid. 1. Adams v. Whittlesey, 3 Conn. Rep. 560. Stinchtield v.
Little, 1 Greenleafs Rep. 231.

(c) 12 Johns. Rep. 385. 15 Ibid, 1. A pnblic agent, as, for instance, a com-
missioner for paving streets, or the superintendent of repairs on the canals,

L. R.9 C. P. 38; Ex parte Dixon, Re Henley, L. R. 4Ch. D. 133; and see
Brown r. Morris, 83 N. C. 251; Stewart v. Woodward. 50 Vt. 78; and see
Cooke V. Eshelby, 12 App. Cas. 271 (1887), which is open to serious criticism.
Law Quarterly 'Review (April, 1888), 219.

" See Twy cross p. Dreyfus, 5 Ch. Div. 605. A public agent acting in the
line of his duty is not responsible upon contracts made by him on behalf o(
the government, unless it appears that credit was given to, or the labour
performed for the agent himself and on his agreement and promise to pay; or
the fact of his being a public agent was unknown and not disclosed at the time
of making the contract. Nichols v. Moody, 22 Barb. (N. Y.) 611; Hall v.
Lauderdale, 46 N. Y. 70; Newman p. Sylvester, 42 Ind. 106; Baltimore v.
'Reynolds, 20 Md. 1; Hull v. County of Marshall; 12 Iowa, 142; Lyon t?.
Adamson, 7 Iowa, 509; Mann- v. Richardson, 66 111. 481. As to when he is
liable to an action, see, further, People v. Brown, 55 N. Y. 180; Van Hoe-
venburgh, 45 Barb. (N. Y.) 197. The question to whom was credit given is
for the jury. Brown p. Bundlett, 15 N. H. 360.

51 VOL. II. KENT. 801


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An agent, ordinarily, and without express anthoritj, or a fair
presumption of one, growing oat 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
18 generally a personal trust and c^mlidence which cannot be dele-
gated; 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 (a). And if the authority, in a matter of mere private
concern, be confided to more than one agent, it is requisite that

in personally responsible in (lamaji:es for Tnisfeasance and excess of anthority,
through the negligence of workmen uncler him. Leader t. Moxtun. 3 Wit*
Mon, 461. Hall r. Smith, 2 Bhig. 156. Shepherd r. Lincoln, 17 nenftffl.^^O.
Bo. money obtained by a public officer Hlegaffy, may be recovered back by a
jsnit against him personally. St4}rif on Agena/. 311, 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 nonfeasances and negligences
in the course of his employment, he is i^nswerable only (o his principal^ and
the princiiml is answerable over to the third party. The case of the post-
master general is an exception, and he is not fiable for any of his deputies or
clerks, on obvious principles of public policy. Lane r. Cotton, 1 Ld. Raym.
646, 655. 6. C. 12 Mod. 488. Slory on Agency, ch. 12. Supm, p. 610. So,
public officers, generally, are responsible for their own acts and negligences,
but not for those of their sabordinnte officers. Hall v. Smith, 2 Bingham,
156. Nicholson v. Monnsey, IS East. 384. In ordinary cases of private in-
dividuals, the principal is liable to third persons for the frauds, torts,
misfeasances, neglisi;jences,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 Ftiley on Agency, by Lloyd, 297—307. Story
on Agency, 465— 477-. Laugher tJ. Pointer, 5 B. ^ CrcBS, 547. Littledale c,
Landsdale, 2 ff. Blacks. 267. Bush i;. Steinman, I B. ^ Puller, 404. Mc-
Manus r. Crickett, 1 East's R. 106. Vide supra, p. 259, 260. But there is
also a qualification to this doctrine in the case of masters of mercbanta' ves-
sels and of steam-boats, who are i-esponsible as principles and common car-
riers, for the misfeasances and negligences of the servants under them; and
this responsibility is founded on solid principles of maritime policy. It pre-
vails in the maritime jurisprudence of Europe, and has its foundations laid
deep in the Roman law. Dig. 4, 9, 1. See snpra, p. 609, 632, note c.

(a) Combes' case, 9 Cd. 75. Ingram v. Ingram, 2 Atk, Rep. 88. Attorney
General v. Beveyman, cited in 2 Ves. 643. Solly r. Rathbone, 2 Jfaic/e <jt Sr/v.
298. Cockran v. Irlam, Ibid. 303. Schmalingr. Thomlinson, 6 Tauni. Rep.
147. Coles r. Trecothick. 9 Ves. 234, 251. Story on Agency, 16. In this
latter work it is said, p. 17, that the substituted agent may still be respon-
sible to the original agent, inasmuch as the latter is responsible to the prin-
cipal. In Sproul V. Hemmingway, 14 Pick. 1, in the case of a brig towed at
the stem of a steamboat employed in the business of towing vessels in the
Mississippi, and through the negligence of the master and crew of the steam*
lioat, 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 mis-
conduct on the part of the master and crew of the towed brig.


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all join in the exectiiion of the power and they are jointly respon-
sible for each other; though the oases admit the rule to be differ-
ent 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).~

* IIL Of the aqenVa right of lien. [ * 634 ]

The lien here referred to, is the right of an agent to
retain possession of property until some demand of his be satis-
fied. It is created either by common law, or by the usage of trade,
or by the express iigreement or particular usage of the parties (6).
A lien, said Ch. J.' Tindal (e), 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 cir-
cumstances 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

(rv) Grindley r. Barker, 1 Bon, d: Pull. 229. Town v, Jaquith, 6 Mass, Rep,

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 104 of 108)