In dealing with the question of the married woman's capacity to

act by agent, the starting point must be her common law incapacity,

which was practically complete. To a greater or less extent, this

Incapacity has been removed by statute, but the statutes are not

IS 42-42.] WHO MAY BE PRINCIPAL OR AGENT. 27

uniform, nor do they usually completely remove the common law

disabilities. So far as the latter have not been so removed, they still

operate, and it is necessary, therefore, in each case to see how that

particular case is affected by the statute.

Compare Weisbrod v. Railway Co., 18 Wis. 35, 86 Am. Dec. 743,

Cas. Ag. 31, with Nash v. Mitchell, 71 N. Y. 199, 27 Am. Rep. 38, Cas.

Ag. 33.

2. Who may be the Agent.

В§ 43. Less competence required in agent than in

principal. — Inasmuch as it is tbe principal who is to

be brought into contractual relations with third per-

sons, it is obvious that the question of his capacity is

more important than that of the agent. The agent acts

In a representative capacity and exercises a derivative

authority. A less degree of competency is therefore re-

quired in the agent than in the principal, and it is said

that any person may be an agent except a lunatic, im-

becile or child of tender years. Hence infants, married

women, slaves and aliens have been held competent to

act as agents.

See Lyon v. Kent, 45 Ala. 656, Cas. on Ag. 37.

It is, of course, not meant that an infant, for example, is alwayrj

an appropriate agent: there are many occasions where much judg-

ment, discretion or special skill may be requisite, which an infant

would not ordinarily possess, but that is a consideration which ap-

peals rather to the principal's wisdom in selecting his representa-

tive than to any standard of ability which the law may require.

The most serious difficulty in this connection is to reconcile the

statement that an infant, slave or married woman may be an agent

with the declaration previously made that the relation of agency —

the relation between the principal and his agent — is a contractual

one. It is asked, how that can be a contractual relation which may

be entered into by one not having contractual capacity. This ap-

parent difficulty has seemed to some so serious that they have been

led to ascribe some other character to agency and to describe it

not as a contractual relation but as a status or "office." Whether

agency may properly be defined as Matus or not depends, of course,

upon what is meant by status, — a matter upon which the persons

who use that term are by no means agreed. (See Holland's Juris-

prudence, 9th ed., p. 133.) It must suffice here to say that the char-

acteristics of status generally insisted upon are not to bВ« found is

28 WHO MAY BE PRINCIPAL OR AGENT. [§§43-45.

agency. To define agency as an office presents the same difficulties:

it certainly is not a public office, and to call it a private office is to

raise questions as difficult as those which this definition was sug-

gested to solve.

The true view doubtless is to regard the relation as a contractual

one, and to treat these as cases of imperfect relation as is done in

many other fields — the general contracts of the infant, for example,

which are merely voidable and not void, and then voidable by the

infant only and not by third persons.

§ 44. Infant as agent. — Though an infant may be

an agent, the relation is an imperfect one. The infant

agent may bind his principal, but neither the principal

nor third persons with whom the agent deals can ac-

quire the same rights against the infant agent which

they might have if he were an adult,

In the case of Cordross's Settlement, (1878) 7 Ch. Div. 728, Sir

George Jessel, M. R., said, "I will state that in my opinion it is good

law that an infant can exercise a power even though it be coupled

with an interest, where an intention appears that it should be exer-

cisable during minority."

But while the infant agent can thus doubtless effectually execute

the authority conferred upon him in such sense that neither the

principal nor the other party can disregard the contract merely be-

cause the agent was an infant, it is also doubtless true that the

principal could not enforce any contractual obligation against the