In conclusion of this head we must observe, that there is a dif- j

ference between the principal's rights against a remunerated and

against an unremunerated agent. The former having once en-

gaged, may be compelled to proceed to the task which he has un-

dertaken; the latter cannot, for his promise to do so, being induced /

bj no consideration, the rule ex nudo pacto non oritur actio applies.

{l)) But if he do commence his task, and afterwards be guilty of

misconduct in performing it, he will, though unremunerated, be

liable for the damage so occasioned ; since, by entering upon the

business, he has prevented the employment of sctne better qualified

jjerson, and the detriment thus occasioned to his principal is a suf-

ficient consideration to uphold an undertaking on his part to act

with care and fidelity, {q) Less skill, however, is required fronr

him than from a paid agent ; he is bound to use such skill as he

jjossesses (r) but is bound to that only, and it is for gross negligence

alone that he can be held answerable ; (s) unless he act in a public

or professional character, in which case he holds himself out as pos-

sessing, and will be assumed to possess, skill, his omission to use

which constitutes gross negligence, {t)

Embezzlements and fraudulent conversions of their employers'

property committed by agents in breach of the confidence reposed

In them, are punished criminally by stats. 7 & 8 Geo. 4, cap. 29,

sects. 49, 50, 51, 52, and 5 & 6 Vic. c. 39, s. 6.*

{p) Elsee V. Gateward, 5 T. R. 143; 1 Esp. '74. Coggs v. Bernard, 2 Ld. Raym.

909.

(?) ^''SSS '»• Bernard, 2 Ld, Raym. 909. Wilkinson v. Coverdale, 1 Esp. '74. Door*

man v. Jenkins, 4 Fev. & Mann. 170, 2 Ad. &, K 256. Beaucliamp v. Powley, 1 M. &

Rob. 40. Whitehead v. Greetham, 2 Bing. 464. Shillibeer v. Glynn, 2 M. &, W. 143.

(r) Wilson v. Brett, 11 M. & W. 113.

(В«) 2 Ld. Raym. 909 ; 2 Atk. 406. Doorman v. Jenkins, 4 Nev. & Mann. 170 ; 2

Ad. & E. 256. Dartnell v. Howard, 4 B. & C. 345. In Wilson v. Brett, 11 M. & W,

113, Baron Rolfe observed that he could see no difference between negligence and

gross negligence, that gross negligence was only negligence with a vituperative

epithet.

{t) Shiells V. Blackburne, 1 H. Bl. 161. See Bourne v. Diggles, 2 Chitt. 311.

Dartnall v. Howard, 4 B. <fe G. 345. Lamphier v. Phipos, 8 C. <fe P. 475.

* It is well settled, that wherever the principal can trace his own propertj', or its

proceeds, and distinguish it from the mass of the property of his factor, he may re-

16G mercantile persoxs.

Eights of Agent against Principal.

Section III. — Rights of Agent against Principal.

The chief right of the agent is to receive his remuneration, or

as it is often called, commission ; the amount of which is fixed

either by contract between him and his employer, or by the usage

of trade in like cases, (w) or, in some few instances, as in those of

navy agents and brokers, or solicitors negotiating annuities and

loans, by act of parliament, {v) or, if there be no usage, contract, or

enactment applicable to the case, the value of his services must be

determined by the verdict of a jury. He may, however, be de-

prived of it in several ways ; if the object of his employment be

illegal, he can of course claim none ; {iv) he may also forfeit it by

misconduct, as by neglect to keep an account, that being an essen-

tial part of his employment, (x) or if gross negligence or want of

skill on his part prevent his employer from deriving any benefit

from his services, [y] a fortiori^ if he betray his trust and act ad-

versely to his j)i'incipal. (2) As the usage of trade may regulate

(m) See Eicke v Meyer, 3 Camp. 412. Cohen v. Paget, 4 Camp. 96. Roberts v.

Jackson, 2 Stark. 225. Levi v. Barnes, 1 Holt, 412. Chapman v. De Tastet, 2 Stark.

294. Stewart v. Kahle, 3 Stark, 161. See also Bower v. Jones, 8 Bingh. 65.

{v) 31 Geo. 2, c. 10, s. 30; 17 Geo. 3, c. 26; 12 Anne, stat. 2, c. 16, s. 2. See

Pryce v. Wilkinson, 2 Bingh. 470.

(w) Stackpole v. Earle, 2 Wils. 133. Josephs v. Pebrer, 3 B. & C. 639. Cope v.

Rowlands, 2 M. & W. 157. See tlie Bicffst, lib. 3, tit. 27. " liei turpis nullum man-

datum est ; illud quoque mandatum non est obligatorium quod contra bonos mores est,

veluti si Titius defurto aut de damno faciendo, aut de injuria faciendd mandet tibi, licet

enim pcenam istius facti nomine prcestiteris non tamen ullam habes adeersus Titium ac-

tionem."

(x) "White V. Lady Lincoln, 8 Ves. 371. See 11 Yes. 355.

(y) Denew v. Daverell, 3 Camp. 451. White v. Chapman, 1 Stark. 113. Ham-

mond V. Holida}", 1 C. <fe P. 384. Hill v. Featherstonhaugh, 7 Bingh. 596. Turner v^

Robinson, 6 C. & P. 16. Shaw v. Arden, 9 Bingh. 287. Gill v. Laugher, 1 Tyrwh. 124.

1 C. & J. 170.

{z) Hurst V. Holding, 3 Taunt. 32. Brown v. Croft, 6 C. <fe P. 16, n. g.

claim it ; and it is immaterial whether the factor had or had not a del credere com-

mission. If, however, the factor so blends the money thus received with his own

funds, that it cannot be distinguished, in the event of his death or insolvency, the

principal must come in as a common creditor. Thompson v. Perkins, 3 Mason C. C.

E. 232. See also Overseers of Poor v. Bank of Virg. 2 Gratt. 544.

PRINCII'AL AND AGENT. 161

Eights of Agent against Principal.

the amount of bis commission, so it may, under certain circum-

stances, deprive him entirely thereof: thus it would seem, that a

shipbroker can charge a shipowner nothing for his labor in procur-