AGREEMENTS Administra tion. To widow a dower. Divide residue equally. ably expend or be put unto in obtaining the said letters of administration, or in executing the same, and also in paying the funeral expenses of the said (intestate), not exceeding the sum of £ AND, in the next place, pay or cause to be paid unto the said recompense for (widow), for satisfaction of her right or title to dower, or thirds at common law, in or out of the [freehold messuage in which the said (intestate) lived at the time of his decease, situated at, &c., or the personal estate and effects which the said husband was possessed of at the time of his decease as the case may be], the sum of £ Specialty Debts. AND then and in the next place, do and shall pay and satisfy the several sums mentioned in the schedule here underwritten, marked A, unto the person or persons against whose names the same sums are respectively sett. AND then and thereafter do and shall pay and divide the residue and surplus of the said monies, unto and between all and every of the other parties hereto and other the persons named, share and share alike, in the schedule hereunder written marked B, the several sums set opposite to their respective names, according to a due course of administration under the statute for the distribution of the estate and effects of intestates, as the case may require], when and as often as he the said (administrator) shall have sufficient in his hands to pay the sum of shillings in the pound upon the same respectively, and the amount whereof it is hereby agreed, shall be in full satisfaction of their several and respective debts or claims upon the estate and effects of the said (intestate). AND it is hereby further agreed and declared, that no one or more of the parties heretó, (each agreeing and declaring in the manner aforesaid), shall or will commence or prosecute any action, suit, or other legal proceeding against the said (administrator) or the said (widow), or any other person or persons whomsoever, whereby he or they shall be molested or prejudiced, or these presents or any agreement, matter, or thing herein contained, shall or may be in anywise impeached, or hindered, or delayed in being carried into effect; and that they, and every of them tinue subsisting respectively, shall and will forthwith, absolutely, and for ever, abate and discontinue, all and every suit, action, and proceeding which they, or any or cither of them shall or may have commenced, or prosecuted in or concerning the premises. AND the said (administrator) doth hereby agree to take upon himself the administration aforesaid, and doth covenant and declare to and with the other respective parties hereto, well and faithfully to dispose of, administer, pay, and divide the estate and effects which shall from time to time come to his hands by virtue thereof, in the manner Parties will not bring actions. Will discon actions. Administrator Covenants to administer. Administra tion. administrator. hereinbefore expressed or hereby intended concerning the same, AGREEMENTS so nevertheless that they, and every of them do and shall, upon receipt of his or their share or proportion, or supposed and presumptive share or proportion thereof, give a good and sufficient release and discharge for the same, and also a good and sufficient indemnity to him the said (administrator) against any future lawful demands by any other creditor, kindred, or other person or persons who may be discovered to be entitled thereto, or to any part thereof; each of them the said partics hereto, doth accordingly covenant and Indemnity to declare with and to him the said (administrator), that if any person or persons, not party to these presents, do at any time hereafter, as creditor, kindred, legatee, or otherwise, of the said (intestate) deceased, commence or prosecute any action or suit against the said (administrator) as administrator aforesaid, and shall lawfully recover their said debt or claims against him the said (administrator), then and in such case, they the said parties shall and will, out of their respective dividends, shares, or sums so by them received, allow and pay in equal proportions, according to the amount thereof, unto the said (administrator) so much money as, together with the like proportion of him the said (administrator), will satisfy and discharge the said debts or sums, with all costs of suit, and also shall and will indemnify him the said (administrator) in a like proportion against all loss, costs, charges, and expenses which he shall or may sustain or be put unto, (other than by his own wilful default), by reason or on account of any such action, suit, or proceeding, or by reason of his having administered to the estate and effects of the said (intestate), or of having applied the same under and by virtue of these presents. AND moreover, shall and will become defendants respectively, if requisite, in order to such indemnity, in any action or actions which shall or may be commenced against him the said (administrator), as such administrator aforesaid, &c. (reference of differences to arbitration (3).) IN WITNESS, &c. Signed, &c. SCHEDULES ABOVE REFERRED TO. Arbitration. (3) Sec post, p. 27. AGREEMENTS Agent. No. III. An Agreement between a Principal in the Country and an Agent in AGENT. General remark. Who may be an agent. Kinds of agents. Caution in framing appointment of a general agent. *(1) The business of commerce could not be carried on (nor indeed could many of the ordinary concerns of life be at all times conducted) without the assistance of agents, or persons appointed to act for the parties beneficially interested in the subject matter of the transaction; hence the law legitimizes acts done by an agent, as if done by the principal, under the well-known maxim, qui fecit per alium fecit per se. And as agencies are offices of a ministerial nature only, the performance of them does not require any legal, but only a personal discretion or judgment, i. e. such as the principal in his own discretion thinks them competent to nerform; therefore any person, without regard to the legal disabilities in other matters, as coverture, minority, or the like, may be appointed an agent to do whatever the principal himself has authority to do. Co. Lit. 52. a. Agents are either general or special. A general agent is one appointed to manage all the affairs of his principal, either in some particular place, or in some particular matter discretionally, according to his own judgment. A special agent is one appointed to perform some particular or specific thing, or to complete some particular transaction, in the mode, and according to the directions pointed out by his principal. In the first case, the principal is bound by whatever his agent may do consistently with the general scope of his authority, and nature of the matter entrusted to him; because, if he trust his agent with powers to which those who treat with him cannot know the extent, he must abide the consequences: but in the latter case, the principal is bound to the extent only of the special authority delegated, and not by any excess of, or deviation from it; for here, as his authority is circumscribed, and is known to be so from the character in which he acts, as will appear by the instances adduced in a subsequent page, (see post, p. 29. n.) it behoves the persons with whom he contracts to see its extent, or to sustain the consequences of their neglect. Hence, caution should be used by solicitors in preparing the form of an appointment of every general agent; that his powers are not, by any sweeping words, extended to authorize (the principals) of, &c. agent) (2) of, &c. of the one part, and (the AGREEMENTS of the other part. WHEREAS the Agent. him to do any thing which may be prejudicial to the interests of the principal, in excess of the authority reposed in him; for which purpose it will be proper (where any such danger is apprehended) to insert a negative clause, prohibiting him from doing or acceding to such and such particular things, in the exercise of his powers; for although this may not annul the transaction as between the principal and third persons, (see Harrison v. Harrison, 3 Durnf. and E. 177.) yet it will make him responsible to his principal for a wilful breach of the trusts confided to him. The same doctrine, on the other hand, suggests the propriety, in framing Caution in the appointment of a special agent, of guarding against the insufficiency of his framing appowers to conclude and complete the contract or transaction to be effected, pointment of a the authority of a special agent being strictly construed and confined to special agent. the particular and express powers delegated to him; but as even a special agent may do all such acts as flow from his particular powers, or from the nature of the transaction, it will be proper, in the appointment of a special agent, to insert a similar restrictive clause to that already mentioned, if it be thought fit to restrain him from doing any particular act, which is within the scope of his implied authority, but which it is not intended he should exercise. In other respects, no particular form or wording of the instrument is No particular necessary to constitute an agent, nor is it even essential that it should form essential. be in writing, unless in particular cases required by statute, (and which will be noticed hereafter). Co. Lit. 48. b. 94. b. Rex v. Biggs, 3 P. Wms. 423. But it would evidently be imprudent as well for the principal to give, as for the agent to accept, an authority otherwise than in writing, in order to prevent all doubts as to the limits and extent of the powers intended to be transferred, and all questions as to the exercise of those implied by law. The appointments of factors and brokers will furnish practical illustrations of the distinction we have been noticing between general and special agency, and upon which some further remarks will be made on these, (see post, No. IV.) In addition to what has already been said, it may be observed, that in Notice of agent's order to protect the principal against the liability to which he is legally authority. subject by the misconduct of his agents, in the cases I have mentioned, the solicitor for the principal, in the appointment of an agent, whether general or special, should advise his client (where the thing is practicable) to give to the party contracting or negotiating with the agent, notice, before the completion of the contract or transaction, of the agent's acting as such, and not as a principal, and of the extent of his authority. See Maners v. Henderson, 1 East, 335, and 1 Peake's Rep. 177. *(2) Great circumspection should be had by a principal in the appoint- Principal bound ment of an agent, as the agent, by becoming the representative of his by acts of agent. principal, will bind him in all transactions relative to the subject of the agency, unless when he grossly, palpably, and evidently is acting in excess of the usual authority of agents of a similar description. And if the AGREEMENTS said (principals) are agents and manufacturers of Agent. pointment of agent Covenant by agent to dispose of manufactures consigned to him. their works, at aforesaid, and in order to increase the sale of their said goods and commodities, being Recital of ap- desirous of keeping a stock of the various articles of their manufacture, at for the London markets, have agreed with the said (agent) to become their agent in disposing of the same, upon the terms and conditions hereafter mentioned. Now, THESE PRESENTS WITNESS, that for the considerations hereinafter mentioned, Ile (4) the said (agent) doth hereby for himself, his heirs, executors, and administrators, covenant, promise, declare, and agree with, and to the said (principals) and each of them respectively, and their respective executors, administrators, and assigns, that he the said (agent) shall and will, during the term of years, to be computed from the day of the date of these presents, (but determinable nevertheless as hereinafter mentioned) accept and receive all such goods, wares, and merchandize, as shall be sent or consigned to him, by the said (principals), or any, or either of them (5), and carefully deposit the same in warehouses or Notice of agent exceeding his authority. Agents copart. ners. Copartners. agent exceed his authority, immediate notice should be given of it to the party with whom he has contracted, as an acquiescence for any unnecessary length of time would be an assent to the transaction, and be an implied authority for similar dealings by the agent with the same or other parties. See Ward v. Evans, Ld. Raym. 930. Spittle v. Lavender, 2 Brod. & Bing. 452, and very trifling circumstances will afford a presumption of subsequent assent. See Fern v. Harrison, 4 Durnf. & E. 177. Hunter v. Prinsep, 10 East. 378.; and see also 2 Durnf. & E. 189. n. Hence the solicitor should advise great caution to be observed by the principal in his correspondence with his agent on the subject of any excess of authority which he does not intend to sanction; and in case of the agent ceasing to be such, immediate notice (and the most public in the case of a general agency) should be given of his removal to prevent the principal being further liable for his acts. *(4) If there be several agents in copartnership, say, "They the said (agents,) for themselves, severally and respectively, and for their several and respective heirs, executors, and administrators, but not the one for the other of them, or for the heirs, executors, or administrators, or for the acts, deeds, or defaults, of the other of them, do, and each of them doth hereby covenant, &c." as above. (5) If copartners, say, "Other person or persons who may be copartner or copartners with them or either of them, for the time being," and so through out. |