Is a contractual relation and not a status. Even

though it be conceded that it finds its origin in the re-

lation of master and servant and that that relation was

originally the relation of master and slave, it is clear

enough that, regarded as an instrument for creating

contractual obligations between the principal and third

persons, agency does not exhibit those essential char-

acteristics of status necessary to mark it as such. As

stated by Sir William Anson, "so far as we are con-

cerned with Agency for the purpose of creating con-

tractual relations, it retains no trace in English law of

Its origin in status. Even where a man employs as

his agent one who is incapable of entering into a con-

tract with himself, as where he gives authority to his

child, being an infant, the authority must be given, it

§§ 2-4.] DEFINITIONS AND DISTINCTIONS. 5

4

Is never inherent. There must be evidence of intention

on the one side to confer, on the other to undertake,

the authority given, though the person employed may,

from defective status, be unable to sue or be sued on

the contract of employment."

See Anson on Contract, 330.

В§ 3. Can usually exist only by assent of the prin-

cipal. — As a rule, therefore, authority to act as agent

can exist only by the express or implied assent of the

principal, either previously given or subsequently con-

ferred.

We shall find hereafter that there may be express creations of

the relation and implied creations. In fact, we shall doubtless find

that the cases in which the existence of the relation is implied from

the acts of the parties are the more numerous.

It is not at all necessary that the authority shall have been con-

ferred in advance, although it commonly is. After the act has been

done, the authority may be conferred and, by retroactive effect, it

goes back to the beginning.

§4. — Exceptions — Authority created by law. —

In a few cases, however, authority to act as agent lor

certain purposes arises by mere operation of law, as an

Incident of some other relation in which, the parties al-

ready stand. Of these cases there are four chief types :

(1) The authority of the wife to buy necessaries on

her husband's credit.

(2) The similar authority of an infant child to bay

necessaries, in certain cases, upon his father's credit

(3) The authority of the vendor of personal prop-

erty in certain cases to sell the goods still in his posses-

sion to secure his pay.

(4) The authority of a ship-master to buy neces-

saries on the owner's credit.

In these cases the assent of the principal is not neces-

sary, and his dissent would in most cases be unavailing.

6 Definitions and distinctions. [в§в§ 4-5.

This authority is said to be created by law, or to be

authority by necessity.

§ 5. How agent compares with servant. — The rela-

tion of principal and agent bears a close resemblance to

that of master and servant, but is not identical with it.

The characteristic of the agent is that he is a busi-

ness representative. His function is to bring about

contractual relations between his principal and third

persons.

The function of the servant i s to execute the com-

mands of his master chiefly in reference to tilings, but

occasionally with reference to persons when no con-

tractual obligation is to result.

A person who is ordinarily a servant may at times

act as agent, and vice versa.

"The distinction between a servant and an agent," it is said by

Mr. Justice Holmes in his edition of Kent's Commentaries (Vol. 2,

p. 260, note), "is the distinction between serving and acting for."

When I employ an agent, I am seeking to employ some one who

shall represent me in business dealings with other persons. The

purpose of the employment of the agent and his authorization is to

represent me and to deal for me with other persons. He is to come