once he has entered on the agency. Feasance is the act of doing, so that non-feasance is the not doing or undertaking, and mis-feasance is the doing badly or wrongly. He must carry out the work without negligence, as it has been held that sufficient legal consideration has been given by reposing confidence in him; and recently it has been decided, also, that the giving of gratuitous advice is parallel. Thus, in the case of Coggs v. Bernard (1704), which is the leading authority on the law of bailments, A had promised B to take up some hogsheads of brandy from a certain cellar and lay them down again safely and securely in another cellar. By the fault of A one cask was smashed and the contents spilt. It was decided that B was entitled to recover from A, notwithstanding that A was not being paid for doing the work, but that being a voluntary bailee, i.e., a gratuitous agent only, he was liable for gross negligence. But in spite of this decision, where the voluntary bailee undertakes, expressly or impliedly, to use skill, he must exercise that skill. In the case of Wilson v. Brett (1843), A rode a horse belonging to B in order to exhibit it and offer it for sale, though he was not to be paid for doing it. The horse was injured by the non-exercise of certain skill. It was held that A was bound to use such skill as he possessed and, as he was proved to be conversant with and skilled in horsemanship, he was liable for the injury to the horse.

Secret Profits and Bribes.-The agent must keep, and render to the principal on demand, proper accounts of all transactions. He must not use his position for the purpose of benefiting himself. As laid down in the case of Robinson v. Mollett (1875), if the agent is employed to sell property he cannot purchase it himself, nor if he is employed to purchase property must he sell his own goods, without the express assent of the principal. Nor must an agent make any secret profit: if he does so it becomes the property of the principal. If the agent agrees to take a secret commission he cannot recover it, as was held in the case of Harrington v. Victoria Graving Dock Co. (1878); and, if the amount has been paid, the principal can recover it from the agent, who, in either case, forfeits his right to any remuneration earned in connection with the transaction. The same rule will apply to a sub-agent who is aware that he is employed by an agent for the principal: but it was decided in Bath v. Standard Land Co. Limited (1911) that it does not apply to the directors and officers of a corporation which had been appointed agent and had employed them in connection with the agency.

Similarly, if a bribe has been given to an agent, the principal has several remedies, viz.,

RIGHTS AND DUTIES OF PRINCIPAL AND AGENT

Principal as against Agent.

The duties of agent to principal are

(1) He must carry out with ordinary skill and diligence the work undertaken, in accordance with the terms agreed.

(2) He must acquaint the principal with all matters in connection with the agency as and when they come to his notice.

(3) He must keep proper accounts to render to the principal on demand.

(4) He must not use his position as agent for his own personal benefit, nor make use, on behalf of any other person, of any information which comes to his knowledge in his capacity of agent.

(5) He must hand to his principal all profits made, whether directly or indirectly, in the course of the agency. (6) He must, as a rule, do the work himself, and not entrust it to another person, except where

(a) The principal assents, expressly or impliedly.

(b) It is sanctioned by the usage of the trade.

(c) It is necessary for the proper carrying out of the work.

(d) It is rendered necessary by sudden emergency. Agent expected to give his best service.-An agent is bound by the terms of his agreement with his principal, whether it be verbal or in writing, and he must carry out the work with ordinary skill and diligence; but the amount of skill and diligence required will depend on whether the agent is to be paid or whether it is a gratuitous agency. He must not show less diligence than he would have exercised in his own affairs; and, if he has undertaken to show special skill, he must exercise that skill to the agreed standard. Any loss incurred by the principal through the lack of skill or the neglect of the agent must be made good by the agent; and, if he gives credit to a third party without the consent of the principal, the agent must himself make good any loss incurred through failure of the third party to pay. The agent also is liable to his principal if he has represented himself as possessing qualifications or skill which he does not possess.

There is, as mentioned above, a difference in the degree of skill demanded from a gratuitous agent and a paid agent. The former is, obviously, not liable for non-feasance, as he is not bound to enter on the agency; but he is liable for mis-feasance

once he has entered on the agency. Feasance is the act of doing, so that non-feasance is the not doing or undertaking, and mis-feasance is the doing badly or wrongly. He must carry out the work without negligence, as it has been held that sufficient legal consideration has been given by reposing confidence in him; and recently it has been decided, also, that the giving of gratuitous advice is parallel. Thus, in the case of Coggs v. Bernard (1704), which is the leading authority on the law of bailments, A had promised B to take up some hogsheads of brandy from a certain cellar and lay them down again safely and securely in another cellar. By the fault of A one cask was smashed and the contents spilt. It was decided that B was entitled to recover from A, notwithstanding that A was not being paid for doing the work, but that being a voluntary bailee, i.e., a gratuitous agent only, he was liable for gross negligence. But in spite of this decision, where the voluntary bailee undertakes, expressly or impliedly, to use skill, he must exercise that skill. In the case of Wilson v. Brett (1843), A rode a horse belonging to B in order to exhibit it and offer it for sale, though he was not to be paid for doing it. The horse was injured by the non-exercise of certain skill. It was held that A was bound to use such skill as he possessed and, as he was proved to be conversant with and skilled in horsemanship, he was liable for the injury to the horse.

Secret Profits and Bribes.-The agent must keep, and render to the principal on demand, proper accounts of all transactions. He must not use his position for the purpose of benefiting himself. As laid down in the case of Robinson v. Mollett (1875), if the agent is employed to sell property he cannot purchase it himself, nor if he is employed to purchase property must he sell his own goods, without the express assent of the principal. Nor must an agent make any secret profit: if he does so it becomes the property of the principal. If the agent agrees to take a secret commission he cannot recover it, as was held in the case of Harrington v. Victoria Graving Dock Co. (1878); and, if the amount has been paid, the principal can recover it from the agent, who, in either case, forfeits his right to any remuneration earned in connection with the transaction. The same rule will apply to a sub-agent who is aware that he is employed by an agent for the principal: but it was decided in Bath v. Standard Land Co. Limited (1911) that it does not apply to the directors and officers of a corporation which had been appointed agent and had employed them in connection with the agency.

Similarly, if a bribe has been given to an agent, the principal has several remedies, viz.,

(1) He may dismiss the agent without notice, as in the case of Boston Deep Sea, etc. Co. v. Ansell (1888).

(2) He can recover the amount of the bribe from the agent

if it has been paid over, or, if not yet paid over, then from the person who has promised it.

(3) He can proceed against the person who gave or promised the bribe in an action for damages, as in Mayor of Salford v. Lever (1891), irrespective of whether he has recovered the amount of the bribe from the agent. (4) He may refuse to pay any commission or remuneration in connection with the transaction.

(5) He may repudiate the whole transaction, whether or not the offer of the bribe did, in fact, affect the agent's mind. Further, it is an offence under the Prevention of Corruption Act, 1906, for an agent to accept, or for any person to give, corruptly, any gift or consideration, and such transactions are punishable as misdemeanours, both the parties being liable to a fine of £500 or to two years' imprisonment, or to both. Proceedings may not, however, be taken without the consent of the Law Officers of the Crown.

Delegation of Duties of Agent.-An agent may not, as a rule, delegate the work to another, but must carry it out himself, the maxim being-Delegatus non potest delegare (he to whom the work is delegated cannot delegate in his turn). This is the general rule where the authority is coupled with a discretion or confidence, e.g., to purchase a house at the best price possible, or where he has to exercise personal skill, e.g., to inspect, and if it is genuine to purchase, a picture. But in some cases delegation can take place, in particular where the principal has consented, either expressly or impliedly, or the delegation is necessary for due performance of the work. In this connection the case of De Bussche v. Alt (1878) is the leading authority. Here the plaintiff in England consigned a ship to a firm in China for sale on certain terms, and the firm in China, with plaintiff's knowledge, employed the defendant in Japan to sell the ship. It was held that an authority to the effect that delegation may be rendered necessary to the carrying out of the instructions of the principal may, and should, be implied where, from the conduct of the parties to the original contract of agency, the usage of trade or the nature of the particular business which is the subject of the agency, it may reasonably be presumed that the parties originally intended that such authority should exist, or where in the course of the employment unforeseen emergencies arise which impose upon the agent the necessity of employing a substitute.

The principal is not bound by or liable for acts of the agent

not done in the course of his employment as such, nor by acts outside the apparent scope of the agent's authority unless, of course, he has in fact authorized the agent to do the acts. But the principal is liable for any fraudulent acts of the agent done within the scope of his authority, and the injured party may sue either the principal or the agent. In Newlands v. Employers' Accident Association (1885), a secretary, by misrepresentations, induced a person to apply for shares in a company. The applicant for the shares was compelled to fulfil his contract as the company was not bound by acts outside the scope of the secretary's authority, it not being part of his duty to sell shares. It is still an unsettled question as to how far the principal is liable for innocent misrepresentation made by the agent. But where the agent did not act innocently and his unauthorized acts are not ratified by the principal, the agent will be liable in an action for damages for the breach of an implied warranty of authority; and in case of fraudulent misrepresentation of his authority he can, of course, be sued for fraud.

Agent as against Principal.

The rights of the agent against the principal are as follows:(1) To receive the remuneration agreed upon, together with any necessary or customary expenses incurred. (2) To be indemnified against all losses and liabilities arising in the course of all lawful acts done in relation to the agency.

(3) To be indemnified against the consequences of wrongful acts against third parties, if done innocently and bona fide. (4) A right of lien on the goods in connection with the agency until his charges are satisfied. This lien may be either Particular or General, according to the class of agent, and will be considered hereinafter. (f)

(5) In some cases, the right of stoppage in transitu. (g) If no remuneration has been agreed between the parties, then there is an implied undertaking to pay that which is usual and customary in the particular kind of agency and, failing that, a reasonable sum by way of remuneration. The agent may sometimes be entitled to his remuneration even if the contract has not been completed, as in the case of Prickett v. Badger (1857), where an agent found a purchaser and the principal refused to complete. Similarly, as in Simpson v. Lamb (1855), where an agent had taken steps to find a purchaser and the principal sold the goods over his head, it was held that he was entitled to (f) See post, p. 85 et seq. (g) See post, p. 141.