Ing within the Statute of Frauds. (/)

An agent may in general be appointed by bare words, or such

appointment may be inferred from the conduct of his supposed

principal respecting him ; {g) there are, however, cases in which the

nomination must be in writing, or even by deed. (A) The appoint-

ment of an agent for the purposes specified by the 1st, 2d, and 3d

sections of the Statute of Frauds (^) must be by writing ;* and it is

a general rule that an agent who is to execute a deed, {j) or to take

or give livery of seisin, {k) must be appointed by deed for that pur-

pose. Moreover, as a corporation aggregate can in general act only

(e) Co. Litt. 62, a. Emerson v. Blonden, 1 Esp. 142. Palethorpe v. Furnish, 2

Esp. 511. Prestwick v. Marshall, 7 Bingh. 565. Prince v. Brunatte, 1 Bingh. N. C.

438.

(/) Wright V. Dannah, 2 Camp. 203. Farebrother v. Simmons, 5 B. & A. 333.

Raynor v. Linthorn, R. & M. 325. Cooper v. Smith, 15 East, 103. See, however

Bii'd V. Boulter, 4 B. <fe Ad. 448, and dicta of the Judges there.

(g) See post, sec. 4.

(Ji) Bac. Abr. Authority, A-

{i) 29 Car. 2 cap. 3.

(j) Harrison v. Jackson, "7 T. R. 209. Elliott v. Davis, 2 B. <fe P. 338. Horsley v.

Rush, cited 7 T. R. 209. Berkeley v. Hardy, 5 B. <fe C. 355. Williams v. Walsby, 4

Esp. 220. Stfciglitz v. Egginton, 1 Holt, 141. See Hunter v. Parker, 7 M. &. W. 322,

from which it appears that though an agent cannot bind his principal by deed, unless

himself appointed by deed, yet the deed executed by the agent may sometimes bind

the principal as a writing.

(k) 2 Roll. Abr. R. pi. 3, 4.

* The 4th and I7th sections of the statute contains no such provision, and it has

been held in England and in many of the United States, that an agent may be ap-

pointed to enter into a contract respecting real estate by parol, although an instru-

ment of writing will be necessary to bind the principal. Clinan v. Cooke, 1 Sch. &

Lefr. 31. Coles v. Trecothick, 9 Ves. 234. Shaw v. Nudd, 8 Pick. 9. Yerby v.

Grigsby, 9 Leigh, 387. Talbot v. Bowen, 1 Marsh K. R. 436. Mortimer v. Crom-

well, 1 HofF. R. 351 ; but the opposite doctrine has been ruled in Pennsylvania, &

Berg. & Raw. 90.

150 Mercantile persons.

Definition and character of Agent.

by deed, its agent must be so appointed, (Z)* though it would seem

that some trifling agencies, even for corporations, may be created

without one ; (m) and there is one case in which it was considered

that a corporation might, without deed, empower an agent to do

acts in the common course of its corporate business, as to make

notes for a banking corporation.

There are two extensive classes of mercantile agents, viz., factors,

who are intrusted with the possession as well as the disposal of

property, and hrolcers^ who are employed to contract about it, with-

out being put in possession. But though brokers are usually em-

ployed in the manner just stated, yet every person so employed is

not a hroher ; thus it would seem, that neither auctioneers (n) nor

merchants acting by commission from correspondents abroad, (o)

can properly be called brokers. It is perhaps strange that the

meaning of the word should not be better ascertained, for by stat.