powers and privileges thereby created in the agent.[1] A careful discrimination in these particulars would, it is submitted, go far toward clearing up certain problems in the law of agency.[2]
Essentially similar to the powers of agents are powers of appointment in relation to property interests. So, too, the powers of public officers are, intrinsically considered, comparable to those of agents,—for example, the power of a sheriff to sell property under a writ of execution. The power of a donor, in a gift causa mortis, to revoke the gift and divest the title of the donee is another clear example of the legal quantities now being considered;[3] also a pledgee's statutory power of sale.[4]
There are, on the other hand, cases where the true nature of the relations involved has not, perhaps, been so clearly recognized. Thus, in the case of a conditional sale of personality, assuming
- ↑ For examples of the loose and confusing employment of the term "authority" in agency cases,—and that too, in problems of the conflict of laws requiring the closest reason,—see Pope v. Nickerson (1844), 3 Story, 465, 473, 476, 481, 483; Lloyd v Guibert (1865), 6 B. & S., 100, 117; King v. Sarria (1877), 69 N. Y., 24, 28, 30–32; Risdon, etc., Works v. Furness (1905), 1 K. B. 304; (1906) 1 K. B. 49.For a criticism of these cases in relation to the present matter, see the writer's article The Individual Liability of Stockholders and the Conflict of Laws (1909). 9 Columb. L. Rev., 492, 512, n. 46, 521, n. 71; 10 Columb. L. Rev., 542–544.
- ↑ The clear understanding and recognition of the agency relation as involving the creation of legal powers may be of crucial importance in many cases,—especially, as already intimated, in regard to problems in the conflict of laws. Besides the cases in the preceding note, two others may be referred to, Milliken v. Pratt (1878), 125 Mass., 374, presenting no analysis of the agency problem; and, on the other hand, Freeman's Appeal (1897), 68 Conn., 533, involving a careful analysis of the agency relation by Baldwin, J. Led by this analysis to reach a decision essentially opposite to that of the Massachusetts case, the learned judge said, inter alia:"Such was, in effect, the act by which Mrs. Mitchell undertook to do what she had no legal capacity to do, by making her' husband her agent to deliver the guaranty to the bank. He had no more power to make it operative by delivery in Chicago to one of his creditors in Illinois, than he would have had to make it operative by delivery here, had it been drawn in favor of one of his creditors in Connecticut. It is not the place of delivery that controls, but the power of delivery."
- ↑ See Emery v. Clough (1885), 63 N. H., 552 ("right or power of defeasance").
- ↑ See Hudgens v. Chamberlain (1911), 161 Cal., 710, 713, 715. For another instance of statutory powers, see Capital, etc., Bk. v. Rhodes (1903), 1 Ch. 631, 655 (powers under registry acts.).
