joint agents who have a common interest are liable for the misconduct and omissions of each other, in violation of their duty, although the business has, in fact, been wholly transacted by one with the knowledge of the principal, and it has been privately agreed between themselves that neither shall be liable for the acts or losses of the other; Story, Ag. § 232; Paley, Ag. 52, 53; 7 Taunt. 403; 3 Wils. 73; 51 N. Y. 373. AGENT 766, 767; 61 Penn. 69. In general, although As The degree of neglect which will make the agent responsible for damages varies according to the nature of the business and the relation in which he stands to his principal. The rule of the common law is, that where a person holds himself out as of a certain business, trade, or profession, and undertakes, whether gratuitously or otherwise, to perform an act which relates to his particular employment, an omission of the skill which belongs to his situation or profession is imputable to him as a fraud upon his employer; Paley, Ag., Lloyd ed. 7, note 4. But where his employment does not necessarily imply skill in the business he has undertaken, and he is to have no compensation for what he does, he will not be liable to an action if he act bona fide and to the best of his ability; 1 Livermore, Ag. 336, 339, 340. As to third parties, generally, when a per-agent or not, this being the usage of trade, son having full authority is known to act merely for another, his acts and contracts will be deemed those of the principal only, and the agent will incur no personal responsibility; Story, Ag. § 261; Paley, Ag. 368, 369; 2 Kent, 629, 630; 15 East, 62; 3 P. Will. 277; 6 Binn. 324; 13 Johns. 58, 77; 15 id. 1. But when an agent does an act without authority, or exceeds his authority, and the want of authority is unknown to the other party, the agent will be personally responsible to the person with whom he deals; Story, Ag. § 264; 2 Taunt. 385; 7 Wend. 315; 8 Mass. 178. If the agent having original authority contract in the name of his principal, and it happen that at the time of the contract, unknown to both parties, his authority was revoked by the death of the principal, the agent will not be personally responsible; Story, Ag. § 265 a; 10 M. & W. 1." An agent will be liable on a contract made with him when he expressly, or by implication, incurs a personal responsibility; Story, Ag. §§ 156-159; 269; as, if he make an express warranty of title, and the like; or if, though known to act as agent, he give or accept a draft in his own name; 5 Taunt. 74; 1 Mass. 27, 54; 2 Duer, 260; 2 Conn. 453; 5 Whart. 288; and public as well as private agents may, by a personal engagement, render themselves personally liable; Paley, Ag. 381. If he makes a contract, signs a note, or accepts a draft as "agent," without disclosing his principal, he becomes personally liable unless the person with whom he is dealing has knowledge of the character and extent of the agency or the circumstances of the transaction are sufficient to inform him; 1 Am. L. C. and it being presumed that the credit was given to him and not to his principal; Story, Ag. § 268; 15 East, 68; 9 B. & C. 78; L. R. 9 Q. B. 572; 35 Md. 396; 15 East, 62; 22 Wend. 244; 33 Me. 106; 5 W. & S. 9; 3 Hill, N. Y. 72; but this presumption may be rebutted by proof of a contrary agreement; 11 Ad. & E. 589, 594, 595; and does not apply to agents in a different state within the U. S.; 23 Ind. 63. An agent is personally responsible where money has been paid to him for the use of his principal under such circumstances that the party paying it becomes entitled to recall it. In such cases, as long as the money has not been paid over by the agent, nor his situation altered, as by giving his principal fresh credit upon the faith of it, it may be recov ered from the agent; Story, Ag. § 300; 3 M. & S. 344; 7 Johns. 179; 1 Wend. 173; and if, in receiving the money, the agent was a wrong-doer, he will not be exempted from liability by payment to his principal; Paley, Ag. 393, 394; 1 Campb. 396. With regard to the liability of agents to third persons for torts, there is a distinction between acts of misfeasance or positive wrongs, and non-feasances or mere omissions of duty. In the former case, the agent is personally liable to third persons, although authorized by his principal; Story, Ag. § 311; Paley, Ag. 396; 1 Wils. 328; 1 B. & P. 410; 28 Me. 464; while in the latter he is, in general, solely liable to his principal; Story, Ag. § 308; Paley, Ag. 396, 397, 398; Story, Bailm. §§ 400, 404, 507. Where the sub-agents are appointed, if the agent has either express or implied authority to appoint a sub-agent, he will not ordinarily be responsible for the acts or omissions of the substitute, 2 B. & P. 438; 2 M. & S. 301; 1 Wash. C. C. 479; 8 Cowen, 198 (but only for negligence in choosing the substitute; Whart. Negl. § 277); and this is especially true of public officers; 1 Ld. Raym. 646; Cowp. 754; 15 East, 384; 7 Cranch, 242; 9 Wheat. 720; 8 Wend. 403; 3 Hill, 531; 22 N. H. 252; 13 Ohio, 523; 1 Pick. 418; 4 Mass. 378; 8 Watts, 455; but the sub-agent will himself be directly responsible to the principal for his own negligence or misconduct; Story, Ag. § 201, 217 a; 2 Gall. C. C. 565; 8 Cow. N. Y. 198. Rights and privileges. Pick. 328, 332; 20 id. 167; nor will he be entitled to be reimbursed his expenses after he has notice that his authority has been revoked; 2 Term, 113; 8 d. 204; 3 Brown, Ch. 314. The agent may enforce the payment of a debt due him from his principal on account of the agency, either by an action at law or by a bill in equity, according to the nature of the case; and he may also have the benefit of his claim by way of set-off to an action of his principal against him, provided the claim is not for uncertain damages, and is in other respects of such a nature as to be the subject of a set-off; Story, Ag. §§ 350, 385; 4 Burr, 2133; 6 Cowen, 181; 11 Pick. 482. He has also a lien for all his necessary commissions, expenditures, advances, and services in and about the property intrusted to his agency, which right is in many respects analogous to the right of set-off; Story, Ag. § 373; 40 N. H. 88, 511; 67 Ill. 139; 8 Iowa, 211; 30 Miss. 578; but it is only a particular lien; 9 Cush. 215; 8 Engl. (Ark.) 437; 8 H. L. Cas. 838. Factors have a general lien upon the goods of their principal in their possession, and upon the price of such as have been lawfully sold by them, and the securities given therefor; Story, Ag. § 376; 2 Kent, 640; 26 Wend. 367; 10 Paige, Ch. 205. There are other eases in which a general lien exists in regard to particular classes of agents, either from usage, from a special agreement of the parties, or from the peculiar habit of dealing between them: such, for example, as insurance brokers, bankers, common carriers, attorneys-at-law, and solicitors in equity, packers, calico-printers, fullers, dyers, and wharf As to his principal, an agent is ordinarily entitled to compensation for his services, commonly called a commission, which is regulated either by special agreement, by the usage of trade, or by the presumed intention of the parties; Story, Ag. §§ 324, 326; 8 Bingh. 65; 1 Caines, 349; 2 id. 357. In general, he must have faithfully performed the whole service or duty before he can claim any commissions; Story, Ag. §§ 329, 331; 1 C. & P. 384; 4 id. 289; 7 Bingh. 99; 16 Ohio, 412. He may forfeit his right to commissions by gross unskilfulness, by gross negligence, or gross misconduct, in the course of his agency; 3 Campb. 451; 7 Bingh. 569; 12 Pick. 328; as, by not keeping regular accounts; 8 Ves. 48; 11 id. 358; 17 Mass. 145; 2 Johns. Ch. N. Y. 108; by violating his instructions; by wilfully confounding his own property with that of his principal; 9 Beav. 284; 5 Bos. & P. 136; 11 Ohio, 363; by fraudulently mis-ingers; Story, Ag. §§ 379-384. See LIEN. applying the funds of his principal; 3 Chitty, Comm. & M. 222; by embarking the property in illegal transactions; or by doing anything which amounts to a betrayal of his trust; 12 Pick. 328, 332, 334; 20 Grat. 672; 21 Iowa, 326; L. R. 9 Q. B. 480; 98 Mass. 348; 25 Conn. 386; 52 Ill. 512; 9 Kans. 320; 29 Cal. 142; 71 Penn. 206. The agent has a right to be reimbursed his advances, expenses, and disbursements reasonably and in good faith incurred and paid, without any default on his part, in the course of the agency; Story, Ag. §§ 335, 336; 5 B. & C. 141; 3 Binn. 295; 11 Johns. 439; 4 Halst. Ch. 657; and also to be paid interest on such advancements and disbursements whenever it may fairly be presumed to have been stipulated for, or to be due to him; 15 East, 223; 3 Campb. 467; 7 Wend. 315; 3 Caines, 226; 3 Binn. 295. But he cannot recover for advances and disbursements made in the prosecution of an illegal transaction, though sanctioned by or even undertaken at the request of his principal; Story, Ag. § 344; 3 B. & C. 639; and he may forfeit all remedy against his principal even for his advances and disbursements made in the course of legal transactions by his own gross negligence, fraud, or misconduct; 12 Wend. 362; 12 As to third persons, in general, a mere agent who has no beneficial interest in a contract which he has made on behalf of his principal cannot support an action thereon; 1 Livermore, Ag. 215; 22 Penn. 522. An agent acquires a right to maintain an action upon a contract against third persons in the following cases: First, when the contract is in writing, and made expressly with the agent, and imports to be a contract personally with him; as, for example, when a promissory note is given to the agent, as such, for the benefit of the principal, and the promise is to pay the money to the agent eo nomine; in such case the agent is the legal plaintiff, and alone can bring an action; Story, Ag. §§ 393, 394, 396; 1 Livermore, Ag. 215-221; 3 Pick. 322; 16 id. 381; 5 Vt. 500; Dicey, Parties, 134; 5 Penn. 520; 27 Penn. 97; and it has been held that the right of the agent in such case to sue in his own name is not confined to an express contract; thus, it has been said that one holding, as mere agent, a bill of exchange, or promissory note, indorsed in blank, or a check or note payable to bearer, may yet sue on it in his own name; Paley, Ag., Dunl. ed. 361, note. Second, the agent may maintain an action against third persons on contracts made with them, whenever he is the only known and ostensible principal, and consequently, in contemplation of law, the real contracting party; Russ. Fact. & B. 241, 244; Paley, Ag. 361, note; Story, Ag. § 393; Dicey, Parties, 136-138; 5 Penn. 41; as, if an agent sell goods of his principal in his own name, as though he were the owner, he is entitled to sue the buyer in his own name; 12 Wend. 413; 5 M. & S. 833; and, on the other hand, if he so buy, he may enforce the contract by action. The renunciation of the agent's contract by the principal does not necessarily preclude the agent from maintaining an action, but he will still be entitled to sue the party with whom he has contracted for any damages which he may have sustained by reason of a breach of contract by the latter; Russ. Fact. & B. 243, 244; 2 B. & Ald. 962. Third, the right of the agent to sue in his own name exists when, by the usage of trade or the general course of business, he is authorized to act as owner, or as a principal contracting party, although his character as agent is known; Story, Ag. § 393. Fourth, where the agent has made a contract in the subjectmatter of which he has a special interest or property, he may enforce his contract by action, whether he held himself out at the time to be acting in his own behalf or not; 1 Livermore, Ag. 215-219; Story, Ag. § 393; 27 Ala. N. 8. 215; Dicey, Parties, 189; 22 Penn. 522: for example, an auctioneer who sells the goods of another may maintain an action for the price, though the sale be on the premises of the owner of the goods, because the auctioneer has a possession coupled with an interest; 2 Esp. 493; 1 H. Bla. 81, 84, 85. But this right of the agent to bring an action in his own name is subordinate to the rights of the principal, who may, unless in particular cases where the agent has a lien or some other vested right, bring a suit himself, and suspend or extinguish the right of the agent; 1 Livermore, Ag. 221; Story, Ag. § 403; 3 Hill, 72, 73; 6 S. & R. 27; 4 Campb. 194. An agent may maintain an action of trespass or trover against third persons for injuries affecting the possession of his principal's property; and when he has been induced by the fraud of a third person to sell or buy goods for his principal, and he has sustained a personal loss, he may maintain an action against such third person for such wrongful act, deceit, or fraud; Story, Ag. §§ 414, 415; 9 B. & C. 208; 3 Campb. 320; 1 H. Bla. 81; 1 B. & Ald. 59. But his remedy for mere torts is confined to cases like the foregoing, where his "right of possession is injuriously invaded, or where he incurs a personal responsibility, or loss, or damage in consequence of the tort;" Story, Ag. § 416. A sub-agent employed without the knowledge or consent of the principal has his remedy against his immediate employer only, with regard to whom he will have the same rights, obligations, and duties as if the agent were the sole principal. But where sub-agents are ordinarily or necessarily employed in the busi AGGRAVATION ness of the agency, the sub-agent can maintain his claim for compensation both against the principal and the immediate employer, unless the agency be avowed and exclusive credit be given to the principal, in which case his remedy will be limited to the principal; Story, Ag. §§ 386, 387; 6 Taunt. 147; 4 Wend. 285; 16 La. An. 127 ; 6 S. & R. 386; 3 Johns. 167. A sub-agent will be clothed with a lien against the principal for services performed and disbursements made by him on account' of the sub-agency, whenever a privity exists between them; Štory, Ag. § 388; 2 Campb. 218, 597; 2 East, 523; 6 Wend. 475. He will acquire a lien against the principal if the latter ratifies his acts, or seeks to avail himself of the proceeds of the sub-agency, though employed by the agent without the knowledge or consent of the principal; Story, Ag. § 389; 2 Campb. 218, 597, 598; 4 id. 348, 353. He may avail himself of his general lien against the principal by way of substitution to the rights of his immediate employer, to the extent of the lien of the latter; Story, Ag. § 389; 1 East, 335; 2 id. 523, 529; 7 id. 7; 6 Taunt. 147. And there are cases in which a sub-agent who has no knowledge or reason to believe that his immediate employer is acting as an agent for another, will have a lien on the property for his general balance; 2 Livermore, Ag. 87-92; Paley, Ag. 148, 149; Story, Ag. § 390; 4 Campb. 60, 349, 353. See INSURANCE AGENT. Consult Livermore, Paley, Ross, Story, Wharton, Agency; Addison, Chitty, Parsons, Story, Contracts; Cross, Lien; Kent, Commentaries; Bouvier, Institutes. AGENT AND PATIENT. A phrase indicating the state of a person who is required to do a thing, and is at the same time the person to whom it is done; as, when a man is indebted to another, and he appoints him his executor, the latter is required to pay the debt in his capacity of executor, and entitled to receive it in his own right; he is then agent and patient; Termes de la Ley. AGER (Lat.). In Civil Law. A field; land generally. A portion of land enclosed by definite boundaries. Used like the word acre in the old English law, denoting a measure of undetermined and variable value; Spelman, Gloss.; Du Cange; 3 Kent, 441. AGGRAVATION (Lat. ad, to, and gravis, heavy; aggravare, to make heavy). That which increases the enormity of a crime or the injury of a wrong. In Criminal Law. One of the rules respecting variances is, that cumulative allegations, or such as merely operate in aggravation, are immaterial, provided that sufficient is proved to establish some right, offence, or justification included in the claim, charge, or defence specified on the record. This rule runs through the whole criminal law, that it is invariably enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified; per Lord Ellenborough, 2 Campb. 583; 4 B. & C. 329; 21 Pick. 525; 4 Gray, 18; 7 id. 49, 331; 1 Taylor, Ev. § 215. Thus, on an indictment for murder the prisoner may be convicted of manslaughter, for the averment of malice aforethought is merely matter of aggravation; Coke, Litt. 282 a. In Pleading. The introduction of matter into the declaration which tends to increase the amount of damages, but does not affect the right of action itself; Stephen, Pl. 257; 12 Mod. 597. See 3 Am. Jur. 287-313. An example of this is found in the case where a plaintiff declares in trespass for entering his house, and breaking his close, and tossing his goods about; the entry of the house is the principal ground and foundation of the action, and the rest is only stated by way of aggravation; 3 Wils. 294; and this matter need not be proved by the plaintiff or answered by the defendant. AGGREGATE. Consisting of particular persons or items, formed into one body. See CORPORATION. AGGRESSOR. He who begins a quarrel or dispute, either by threatening or striking another. No man may strike another because he has been threatened, or in consequence of the use of any words. AGIO. A term used in commercial transactions to denote the difference of price between the value of bank-notes or other nominal money and the coin of the country. AGISTMENT. The taking of another person's cattle into one's own ground to be fed, for a consideration to be paid by the owner. See AGISTOR. AGISTOR. One who takes in horses or other animals to pasture at certain rates; Story, Bailm. § 443. $4 and the agnatio spreads and is perpetuated not A AGRARIAN LAWS. In Roman Law, Those laws by which the commonwealth disposed of its public land, or regulated the possession thereof by individuals, were termed Agrarian Laws. The greater part of the public lands acquired by conquest were laid open to the possession of any citizen, but the state reserved the title and the right to resume possession. The object of many of the agrarian laws was to limit the area of public land of which any one person might take possession. The law of Cassius, B. c. 486, is the most noted of these laws. been assumed that these laws were framed to Until a comparatively recent period, it has reach private property as well as to restrict possession of the public domain, and hence the term agrarian is, in legal and political literature, to a catory law, intended to reduce large estates and great degree fixed with the meaning of a confisincrease the number of landholders. HarringHe is not, like an innkeeper, bound to take ton, in his "Oceana," and the philosophers of the all horses offered to him, nor is he liable for French Revolution, have advocated agrarian laws any injury done to such animals in his care, in this sense. The researches of Heyne, Op. 4. unless he has been guilty of negligence, or 351; Niehbuhr, Hist. vol. ii., trans.; and Safrom his ignorance, negligence may be in-vigny, Das Recht des Besitzes, have redeemed the Roman word from the burden of this meaning. ferred; Holt, 547. AGREAMENTUM. Agreement. Spelman says that it is equivalent in meaning AGNATES. In Scotch Law. Rela- to aggregatio mentium, though not derived theretions on the father's side. As to whether he is entitled to a lien, see 3 Hill, 485, and LIEN. AGNATI. In Civil Law. The members of a Roman family who traced their origin and name to a common deceased ancestor through the male line, under whose paternal power they would be if he were living. They were called adgnati-adgnati, from the words ad eum nati. Ulpianus says: "Adgnati autem sunt cognati virilis sexus ab eodem orti: nam post suos et consanguineos statim mihi proximus est consanguinei mei filius, et ego ei; patris quoque frater qui patruus appellatur; deincepsque ceteri, si qui sunt, hinc orti in infinitum;" Dig. 38, 16, De suis, 2, § 1. Thus, although, the grandfather and father being dead, the children become sui juris, and the males may become the founders of new families, still they all continue to be agnates; from. AGREEMENT. A coming together of parties in opinion or determination; the union of two or more minds in a thing done or to be done; a mutual assent to do a thing; Comyn, Dig. Agreement, A 1; Plowd. 5 a, 6 a. Aggregatio mentium.-When two or more minds are united in a thing done or to be done. It ought to be so certain and complete that either party may have an action on it, and there must be a quid pro quo; Dane, Abr. c. 11. The consent of two or more persons concurring, the one in parting with, the other in receiving, some property, right, or benefit; Bacon, Abr. A mutual contract in consideration between AGREEMENT two or more parties; 5 East, 10; 4 Gill & J. 1; 12 How. 126. 141 "The expression by two or more persons of a common intention to affect the legal relations of those persons;" Anson, Contr. 3. An agreement "consists of two persons being of the same mind, intention, or meaning, concerning the matter agreed upon"; Leake, Contr. 12. “ Agreement” is seldom applied to specialties; "contract" is generally confined to simple contracts; and "promise" refers to the engagement of a party without reference to the reasons or considerations for it, or the duties of other parties; Parsons, Contr. 6. An agreement ceases to be such by being put in writing under seal, but not when put in writing for a memorandum; Dane, Abr. c. 11. It is a wider term than "contract"; Anson, Contr. 4; an agreement might not be a contract, because not fulfilling some requirement of the law of the place in which it is made. A promise or undertaking. This is the loose and inaccurate use of the word; 5 East, 10; 3 B. & B. 14; 3 Conn. 335. The writing or instrument which is evidence of an agreement. This is a loose and evidently inaccurate use of the term. The agreement may be valid, and yet the written evidence thereof insufficient: as, if a promissory note be given for twenty dollars, the amount of a previous debt, where the note may generally be neglected and the debt collected by means of other evidence; or, again, if a note good in form be given for an illegal consideration, in which case the instrument is good and the agree ment void. Conditional agreements are those which are to have full effect only in case of the happening of certain events, or the existence of a given state of things. Executed agreements are those where nothing further remains to be done by the parties. Executed agreements take place when two or more persons make over their respective rights in a thing to one another, and thereby change their property therein either presently and at once, or at a future time upon some event that shall give it full effect, without either party trusting to the other. Such an agreement exists where a thing is bought, paid for, and delivered. Executory agreements are such as rest on articles, memorandums, parol promises or undertakings, and the like, to be performed in the future, or which are entered into preparatory to more solemn and formal alienations of property; Powell, Contr. An executed agreement always conveys a chose in possession, while an executory one conveys a chose in action only. Express agreements are those in which the terms are openly uttered and avowed by the parties at the time of making. Implied agreements are those which the law supposes the parties to have made, although the terms were not openly expressed. Thus. every one who undertakes any office, AGREEMENT employment, or duty impliedly contracts to do it with integrity, diligence, and skill; and he impliedly contracts to do whatever is fairly within the scope of his employment; 6 Scott, 761. Implied promises, or promises in law, only exist where there is no express stipulation between the parties touching the same matter; for expressum facit cessare tacitum; 2 Bla. Com. 444; 2 Term, 105; 7 Scott, 69; 1 Ń. & P. 633. The parties must agree or assent. There must be a definite promise by one party accepted by the other; 3 Johns. 534; 12 id. 190; 9 Ala. 69; 29 Ala. N. s. 864; 4 R. I. 14; 2 Dutch. 268; 3 Halst. 147; 29 Penn. 358. There must be a communication of assent by the party accepting; a mere mental assent to the terms in his own mind is not enough; L. R. 2 App. Ca. 691. But the assent need the party's acts; L. R. 6 Q. B. 607; L. R. not be formally made; it can be inferred from 10 C. P. 307. They must assent to the same thing in the same sense; 4 Wheat. 225; 1 Sumn. 218; 2 Woodb. & M. 359; 7 Johns. 240; 18 Ala. 605; 9 M. & W. 535; 4 Bing. 660; L. R. 6 Q. B. 597. The assent must be mutual and obligatory; there must be a request on one side, and an assent on the other; 5 Bingh. N. c. 75. The assent must comprehend the whole of the proposition; it must be exactly equal to its extent and provision, and it must not qualify them by any new matter; 1 Parsons, Contr. 400; and even a slight qualification destroys the assent; 5 M. & W. 535; 2 Sandf. 133. The question of assent when gathered from conversations is for the jury; 1 Cush. 89; 13 Johns. 294. A sufficient consideration for the agreement must exist; 2 Bla. Com. 444; Chitty, Contr. 20; 2 Q. B. 851; 5 Ad. & E. 548; 7 Brown, Ch. 550; 7 Term, 350; as against third parties this consideration must be good or valuable; 10 B. & C. 606; Chitty, Contr. 28; as between the parties it may be equitable only; 1 Pars. Contr. 431. But it need not be adequate, if only it have some real value; 3 Anstr. 732; 2 Sch. & L. 395, n. a; 9 Ves. 246; 16 East, 372; 11 Ad. & E. 983; 1 Metc. Mass. 84. If the consideration be illegal in whole or in part, the agreement will be void; 6 Dana, 91; 3 Bibb, 500; 9 Vt. 23; 5 Penn. 452; 22 Me. 488. So also if the consideration be impossible; 5 Viner, Abr. 110, Condition; Coke, Litt. 206 a; Sheppard, Touchst. 164; L. R. 5 C. P. 588; 2 Lev. 161. See CONSIDERATION. The agreement may be to do any thing which is lawful, as to sell or buy real estate or personal property. But the evidence of the sale of real property must generally be by deed, sealed; and in many cases agreements in regard to personal property must be in writing. See STATUTE OF FRAUDS. The construction to be given to agreements is to be favorable to upholding them, and according to the intention of the parties at the time of making it, as nearly as the meaning of the words used and the rules of law will permit; 1 Pars. Contr. 7; 2 Kent, 555; 1 H. |