Contracts. The delegation of power by one person to another.
2. We will consider, 1. The delegation 2. The nature of the authority. 3. The manner it is to be executed. 4. The effects of the authority.
3. 1. The authority may be delegated by deed, or by parol. 1. It may be delegated by deed for any purpose whatever, for whenever an authority by parol would be sufficient, one by deed will be equally so. When the authority is to do something which must be performed through the medium of a deed, then the authority must also be by deed, and executed with all the forms necessary, to render that instrument perfect; usless, indeed, the principal be present, and verbally or impliedly authorizes the agent to fix
his name to the deed; 4 T. R. 313; W. Jones, R. 268; as, if a man be authorized to convey
of land, the letter of attorney
must be by deed. Bac. Ab. h. t.; 7 T. R. 209; 2 Bos. & Pull
, 338; 5 Binn. 613;. 14 S. & A. 331; 6 S. & R. 90; 2 Pick. R. 345; 6 Mass. R. 11; 1 Wend. 424 9 Wend. R. 54, 68; 12 Wend. R. 525; Story, Ag. 49; 3 Kent, Com. 613, 3d edit.; 3 Chit. Com. Law, 195. But it does not require a written authority to sign an unscaled paper, or a contract in writing not under seal
. Paley on Ag. by Lloyd, 161; Story, Ag. 50.
4. 2. For many purposes, however, the authority may be by parol, either in writing not under seal, or verbally, or by the mere employment of the agent. Pal. on Agen. 2. The exigencies of commercial affairs render such an appointment indispensable; business would be greatly embarrassed, if a regular letter of attorney were required to sign or negotiate a promissory note
or bill of exchange
, or sell or buy goods, or write
a letter, or procure a policy for another. This rule of the common law has been adopted and followed from the civil law. Story, Ag. 47; Dig. 3, 3, 1, 1 Poth. Pand. 3, 3, 3; Domat, liv. 1, tit. 15, 1, art. 5; see also 3 Chit. Com. Law, 5, 195 7 T. R. 350.
5. 2. The authority given must have been possessed by the person who delegates it, or it will be void; and it must be of a thing lawful, or it will not justify the person to whom it is given. Dyer, 102; Kielw. 83. It is a maxim that delegata potestas non potest delegari
, so that an agent who has a mere authority must execute it himself, and cannot delegate his authority to a sub-agent
. See 5 Pet. 390
; 3 Story, R. 411, 425; 11 Gill
& John. 58; 26 Wend. 485; 15 Pick. 303, 307; 1 McMullan, 453; 4 Scamm. 127, 133; 2 Inst. 597. See Delegation.
6. Authorities are divided into general or special. A general authority is one which extends to all acts connected with a particular employment; a special authority
is one confined to "an individual instance." 15 East, 408; Id. 38.
7. They are also divided into limited and unlimited. When the agent is bound by precise instructions, it is limited; and unlimited when be is left to pursue his own discretion
. An authority is either express or implied.
8. An express authority
may be by deed of by parol, that is in writing not under seal, or verbally.. The authority must have been actually given.
9. An implied authority
is one which, although no proof exists of its having been actually given, may be inferred from the conduct of the principal; for example, when a man leaves his wife without support, the law presumes he authorizes her to buy necessaries for her maintenance; or if a master, usually send his servant to buy goods for him upon credit, and the servant buy some things without the master's orders, yet the latter will be liable upon the implied authority. Show. 95; Pal. on Ag. 137 to 146.
10. 3. In considering in what manner the authority is to be executed, it will be necessary to examine, 1. By whom the authority must be executed. 2. In what manner. 3. In what time.
11. 1. A delegated authority
can be executed only by the person to whom it is given, for the confidence
being personal, cannot be assigned to a stranger
. 1 Roll. Ab. 330 2 Roll. Ab. 9 9 Co. 77 b .; 9 Ves. 236, 251 3 Mer. R. 237; 2 M. & S. 299, 301.
12. An authority given to two cannot be executed by one. Co. Litt. 112 b, 181 b. And an authority given to three jointly
and separately, is not, in general, well executed by two. Co. Litt. 181 b; sed vide
1 Roll. Abr. 329, 1, 5; Com. Dig. Attorney, C 8 3 Pick. R. 232; 2 Pick. R. 345; 12 Mass. R. 185; 6 Pick. R. 198; 6 John. R. 39; Story, Ag. 42. These rules apply to on authority of a private nature, which must be executed by all to whom it is given; and notto a power of a public nature, which may be executed by all to whom majority. 9 Watts, R. 466; 5 Bin. 484, 5; 9 S, & R. 99. 2. When the authority is particular, it must in general be strictly pursued, or it will be void, unless the variance
be merely circumstantial. Co. Litt. 49 b, 303, b; 6 T. R. 591; 2 H. Bl. 623 Co. Lit. 181 , b; 1 Tho. Co. Lit. 852.
13. 2. As to the form to be observed in the execution of an authority, it is a general rule that an act done under a power of attorney
must be done in the name Of the person who gives a power, and not in the attorney's name. 9 Co. 76, 77. It has been holden that the name of the attorney is not requisite. 1 W. & S. 328, 332; Moor
, pl. 1106; Str. 705; 2 East, R. 142; Moor, 818; Paley on Ag. by Lloyd, 175; Story on Ag. 146 T 9 Ves. 236: 1 Y. & J. 387; 2 M. & S. 299; 4 Campb. R. 184; 2 Cox, R. 84; 9 Co. R. 75; 6 John. R. 94; 9 John. Pi,. 334; 10 Wend. R. 87; 4 Mass. R. 595; 2 Kent, Com. 631, 3d ed. But it matters not in what words this is done, if it sufficiently appear to be in the name of the principal, as, for A B, (the principal,) C D, (the attorney,) which has been held to be sufficient. See 15 Serg. & R. 55; 11 Mass. R. 97; 22 Pick. R. 168; 12 Mass. R. 237 9 Mass. 335; 16 Mass. R. 461; 1 Cowen, 513; 3 Wend. 94; Story, Ag. 154,275, 278, 395; Story on P. N., 69; 2 East, R. 142; 7 Watt's R. 121 6 John. R. 94. But see
contra, Bac. Ab. Leases, J 10; 9 Co, 77; l Hare & Wall. Sel. Dec. 426.
14. 3. The execution musr take place during the continuance, of the authority, which is determined either by revocation
, or performance of the commission.
15. In general, an authority is revocable, unless it be given as a security, or it be coupled with an interest. 3 Watts & Serg. 14; 4 Campb. N. P. 272; 7 Ver. 28; 2 Kent's Com. 506; 8 Wheat. 203; 2 Cowen, 196; 2 Esp. N. P. Cases, 565; Bac. Abr. h. t. The revocation (q. v.) is either express or implied; when it is express and made known
to the person authorized, the authority is at an end; the revocation is implied when the principal dies, or, if a female, marries; or the subject of the authority is destroyed, as if a man have authority to sell my house, and it is destroyed by fire or to buy for me a horse, and before the execution of the authority, the horse dies.
16. When once the agent has exercised all the authority given to him, the authority is at an end.
17. 4. An authority is to be so construed as to include all necessary or usual means of executing it with effect 2 H. Bl. 618; 1 Roll
. R. 390; Palm. 394 10 Ves. 441; 6 Serg. & R. 149; Com'. Dig. Attorney, C 15; 4 Campb. R. 163 Story on Ag. 58 to 142; 1 J. J. Marsh. R. 293 5 Johns. R. 58 1 Liv. on Ag. 103, 4 and when the agent acts, avowedly as such, within his authority, he is not personally responsible . Pal. on Ag. 4, 5. Vide, generally, 3 Vin. Ab. 416; Bac. Ab. h. f.; 1 Salk. 95 Com. Dig. h. t., and the titles there referred to. 1 Roll. Ab. 330 2 Roll. Ab. 9 Bouv. Inst. Index, h. t. and the articles, Attorney; Agency; Agent; Principal.