proceed at all in his undertaking;(i) nor is he liable, except for gross negligence ;(k) nor, lastly, is he bound to possess competent skill for the execution of the service.(l) If, however, he possess that skill he is bound to exert it; and the possession of it will sometimes, from his situation or [*] office, be presumed against *him.(m)(4) These distinctions will be explained more fully in the sequel.(n)

SECTION 3.

1. The responsibility of an agent is not confined to the loss of his commission, but extends to the amount of the damage which the principal suffers, either by direct injury occasioned to his own property, (a) or by his being obliged to make reparation to others. (b) As if a man engage in

(i) 2 Ld. Raym. 909. || Post, 19, n. 6.[]

(k) Ib. and see post, || 77. ||

(7) 1 H. Bl. 161.

(m) 1 H. Bl. 161.

(4) The doctrine here laid down is scarcely strong enough. If a person undertake to do an act in some professional capacity, whether gratuitously or otherwise, the degree of skill and care which is ordinarily requisite for the exercise of such a profession will it is apprehended, in all cases be expected from him. See Dartnall v. Howard, 4 B. & C. 345, in which this proposition is assumed. || Park v. Hammond, 6 Taunt. 495; Chapman v. Walton, 10 Bing. 57; Leverick v. Meigs, 1 Cowen, 645.|| (n) Ch. I. Pt. 2. || p. 76-7.||

(a) 2 Moll. 327; Roll. Abr. 105; Lewson v. Kirk, Cro. Jac. 265. (b) A verdict obtained against the principal, for the act of his servant, is the measure of damages against the latter. Green v. N. R. Company, 4 T. R. 490; and see Miller v. Falconer, 1 Campb. 251; Gevers v. Mainwaring, Holt, N. P. C. 139 ;| ||Mainwaring v. Brandon, 8 Taunt. 202. A sub-agent, as well as the primary agent, may be liable to the original principal. As, where A. not having any interest in certain lands allows B. to use his name as a lessor of the plaintiff in ejectment, on condition that he be put to no costs, and B. employs an attorney to bring a suit in A.'s name, as lessor, without informing him of the condition, A. on being subjected to the costs arising from a nonsuit in the ejectment, may

certain covenants for himself, his servants and agents, the latter knowingly violating those covenants, whereby the principal is charged with the breach of them, are liable over to him. (c)

2. The damage, however, must be a real, and not a supposed or probable injury merely; and therefore [8] an agent is not liable for the neglect of an act expressly directed, if the act, when performed, would not have entitled his employer to any legal benefit; but only have conferred a probability of advantage, founded upon mere courtesy.(d)

3. Neither is an agent chargeable for a breach of his instructions, if the compliance would have been a fraud upon others.(e)(1) Thus an agent was employed to sell certain articles, and the condition of sale purported that the highest bidder should be the purchaser; but the agent had private instructions not to sell under a certain sum; notwithstanding which, he sold for the highest sum bid, though less than the sum prescribed; and upon an action brought against him by his employer, he had judgment in

maintain an action against the attorney for the amount. Bradt v. Walton, 8 Johns. Rep. 298. As B.'s authority was special, it was the duty of the attorney to ascertain its extent and limitations. Post, 201-2.||

(c) Sid. 298.

(d) Webster v. De Tastet, 6 T. R. 157. This was an action against a broker for negligence in not insuring, according to directions given, three slaves, allowed to a mate of a vessel in lieu of wages, and lost upon the voyage. The court held, that as the mate could not have recovered against the underwriters if the policy had been effected, he could not have a larger remedy against the broker, although from the usage it was probable that the insurance, if effected, would have been paid. The passage in the text is not a very happy generalization of this case. See post,+ || 20, n. (8); etiam, 18, n. (1) ||

(e) Bexwell v. Christie, Cowp. 395. Or where circumstances render a strict compliance impracticable. Dusar v. Perit, 4 Binney, 361. Or, an unforseen necessity arises, which was not originally contemplated; Forrestier v. Bordman, 1 Story's Rep. 51.]

(1)

The technical answer to this, and the like cases, is, that the court will not permit a plaintiff to allege his own fraud.↓

his favor, since he could not have obeyed his instructions without practising a fraud upon the bidders.(ƒ) [*9] *4. The law likewise exonerates agents from the

consequences arising from their having pursued the regular and accustomed modes of transacting business, although they might, under the particular circumstances, have acted to better advantage.(g) This principle is exemplified in several instances which occur in the sequel, and is indeed a just consequence of that responsibility to which they are subjected, by neglecting the prescribed rules of their business. Thus a banker who has received bills from his customer to present for payment, and who takes in payment the acceptor's check, which is afterwards dishonored, has been held to be discharged, because this is the usual course of trade.(h)

5. But the mere absence of fraud or bad motive is not sufficient to justify an act detrimental to the employer's interest, unless it be sanctioned by the usual course of business; (i) and although the immediate loss be not oc[*10] casioned by the agent's fault,(2) yet if it be such as would not have occurred but for his previous ne

(f) Bexwell v. Christie, Cowp. 395. But it would have been otherwise, if the direction had been to set the article up at the price mentioned, since no fraud would have ensued from that circumstance. Id. ib. (Howard v. Christie, 6 T. R. 642.)

(g) Post, || 26;|| Cowp. 480; Moore v. Morgue, 2 T. R. 188; Smith v. Cadogan, 2 Term Rep. 188,|| in notis; Pitt v. Yalden, 4 Burr. 2061; Young v. Cole, 3 Bing. N. C. 724.||

(h) Russell v. Hankey, 6 T. R. 12; and see Ambl. 219, post, || 46, || and Warwick v. Noakes, Peake's N. P. 68, post, || 46.||

(i) See this rule as applied to trustees exemplified in the case of Caffrey v. Darby, 6 Ves. jun. 496, upon the authority of which the position in the text is conceived to be well founded, agents being regarded with less favor than trustees are.

(2) + More correctly thus: "although the loss be not an immediate consequence of any fault in the agent." In Massey v. Banner, 1 Jac. & W. 241; 4 Madd. 413, even a gratuitous agent was charged with a loss occasioned by the failure of his bankers, the money which had been received under a trust-deed, having been paid in by him to his own account, though, so far as appeared, without any intention to misappropriate. || Post, 46.||

glect, as if goods be destroyed by fire in a place where they were improperly suffered by him to remain, he is answerable for the consequence.

6. Besides the positive duties that have been enumerated, the confidence necessarily placed by men in those whom they are obliged to entrust with their affairs, has given rise to certain less determinate maxims, (A) calculated to prevent its abuse. Therefore it is established in equity as a general principle, (with few exceptions,) that an agent cannot make himself an adverse party to his principal.(k) This is founded upon a plain reason; for even

(A) The phrase determinate is, perhaps, not a very apt expression as here applied. The maxims of equity are as determinate as those of law; but the constitution of courts of equity is such, that they can enforce positive duties beyond the scope of a court of law, either to enforce at all, or so as to afford adequate redress.||

(k) Post, || 33-38, 160, note 7; Van Horne v. Fonda, 5 Johns. Ch. Rep. 459; Benson v. Heathorn, 1 Yo. & Coll. C. C. 341. Hence, in general, an agent cannot deny the title of his principal to the subject of the agency, or protect himself, in a suit by the principal, by setting up an adverse title in a third person. Dixon v. Hamond, 2 Barn. & Ald. 610; Hawes v. Watson, 2 Barn. & Cress. 540; Gosling v. Birnie, 7 Bing. 339; White v. Bartlett, 9 Bing. 378, and Hardman v. Wilcock, note, ibid ; Kieran v. Sandars, 6 Ad. & Ell. 515; Holl v. Griffen, 10 Bing. 246; Holbrook v. Wight, 24 Wend. 169; De La Viesca v. Lubbock, 10 Sim. 629; Roberts v. Ogilby, 9 Price, 269; Harman v. Anderson, 2 Campb. 243; Steward v. Duncan, id. 344; post, 53, 80, 81; Parkist v. Alexander, 1 Johns. Ch. Rep. 397; Scott v. Crawford, 4 Mann. & Gran. 1031. Still less can he avail himself of such defence where the party in whom the claim or title resided, has abandoned it. Lord Denman, "Upon the argument a great many cases were cited to show that persons standing in similar situations to the defendant, as warehousemen, wharfingers, and others, had been permitted to set up the jus tertii. But no instance could be adduced in which it was held that the jus tertii could be set up when the third person, being aware of the circumstances, had abandoned his claim. To allow a depositary of goods or money, who has acknowledged the title of one person to set up the title of another who makes no claim, or has abandoned all claim, would enable the depositary to keep for himself that [to] which he does not pretend to have any title in himself whatsoever. After what passed, the defendant had no right to dispute the validity of the plaintiff's title, or to bring into question the validity of a contract to which he, the defendant, was no party, and

supposing the possibility of his maintaining a strict impartiality between the two opposite interests, yet the em

which was no longer disputed by those between whom it was made or their representatives." Betteley v. Reed, 4 Ad. & Ell. N. S. 511.

The doctrine stated in relation to principal and agent is supported by several legal analogies, and may perhaps all be traced to the equitable rule, that a man shall not defeat a trust which he has once accepted. The Attorney General v. Aspinall, 2 Myl. & Cr. 629; In the matter of the Ludlow Charities, 3 Myl. & Cr. 264; Hawley v. Mancius, 7 Johns. Ch. Rep. 174; Bowman v. Rainetaux, 1 Hoff. Ch. Rep. 150. Thus a carrier or other bailee cannot dispute the title of a party who delivers goods to him. Miles v. Cattle, 6 Bing. 743; Betteley v. Reed, ubi supra. So, a tenant cannot dispute the title of his landlord; or compel the landlord to interplead with a party claiming the land or rent under a paramount title. Crawshay v. Thornton, 3 Myl. & Cr. 21 ; Attorney General v. Lord Hotham, Turn. & Russ. 209; S. C. 3 Russ. 415; Crawford v. Fisher, Hare, 440; 2 Story's Eq. § 812; Magill v. Hinsdale, 6 Conn. Rep. 469. But bills of interpleader have been allowed where both parties refer their title back to the same derivative source. The following is an instance :-Upon the death of a landlord, the tenant, in ignorance of the rights of the parties, attorned and paid rent to certain persons who claimed as devisees under the will of the deceased landlord. The validity of the will was disputed by his heirs at law, who gave notice to the tenant to pay his rent only to themselves. It was held that this was a proper case for interpleader. Jew v. Wood, 3 Beav. 579; and see Townley v. Deare, id. 212; 2 Story's Eq. § 811-12; Smith v. Hammond, 6 Sim. 10. It has been held that a sheriff, who had levied, under an execution, upon property claimed by a third person, could not file a bill of interpleader against such third person and the plaintiff in the execution. Shaw v. Coster, 8 Paige, 339; S. C. 2 Edw. Ch. Rep. 405. The decision in that case was placed upon different, though satisfactory grounds, than the relation of principal and agent; but such a relation has been considered as existing between a plaintiff and the sheriff. In Woodley v. Boddington, 9 Sim. 214, it was alleged by counsel that "the sheriff is, in truth, the agent of the party at whose instance a writ has issued. If a party is arrested, irregularly, at law, the party who issued the writ is liable to an action for damages." And Shadwell, V. C. adopting the position, as to the particular case, says: "The sheriff who receives the writ is, to a certain extent, the agent or servant of the plaintiff at law; for any intimation given by the plaintiff at law to the sheriff not to go on, would be an indemnity to the sheriff, and he would be bound not to proceed."

It is a legitimate deduction from the same principle, that an agent cannot, under ordinary circumstances, file a bill of interpleader against his principal; as such a bill, if it does not directly question the principal's title, at least implies that it is doubtful; interpleader as between agent and principal being admissi