obligor. No proof of actual mistake is required. The existence of an antecedent equity is sufficient. In cases attended by precisely the same circumstances, so far as respects mistake, relief will be given against the representatives of a deceased obligor, who had received the benefit of the obligation, and refused against the representatives of him who had not received it. Yet the legal obligation is as completely extinguished in the one case as in the other; and the facts stated, in some of the cases in which these decisions have been made, would rather conduce to the opinion that the bond was made joint from ignorance of the legal consequences of a joint obligation, than from any mistake in fact.

The case of Lansdowne v. Lansdowne, reported in Mosley, 364, if it be law, has no inconsiderable bearing on this cause. The right of the heir at law was contested by a younger member of the family, and the arbitrator to whom the subject was *586] referred decided against him. He executed a deed in compliance with this award, and was afterwards relieved against it, on the principle that he was ignorant of his title.

The case does not suppose this fact, that he was the eldest son, to have been unknown to him; and if he was ignorant of anything, it was of the law, which gave him, as eldest son, the estate he had conveyed to a younger brother. Yet he was relieved in chancery against this conveyance. There are certainly strong objections to this decision in other respects; but, as a case in which relief has been granted on a mistake in law, it cannot be entirely disregarded.

Although we do not find the naked principle, that relief may be granted on account of ignorance of law, asserted in the books, we find no case in which it has been decided, that a plain and acknowledged mistake in law is beyond the reach of equity. In the case of Lord Irnham v. Child, 1 Brown's Ch. 94, application was made to the chancellor to establish a clause, which had been, it was said, agreed upon, but which had been considered by the parties, and excluded from the written instrument by consent. It is true, they excluded the clause, from a mistaken opinion that it would make the contract usurious, but they did not believe that the legal effect of the contract was precisely the same as if the clause had been inserted. They weighed the consequences of inserting and admitting the clause, and preferred the latter. That, too, was a case to which the statute applied. Most of the cases which have been cited were within the statute of frauds, and it is not easy to say how much has been the influence of that statute on them,

The case cited by the respondent's counsel from precedents in chancery is not of this description; but it does not appear from that case, that the power of attorney was intended, or believed, to be a lien.

versy.

In this case, the fact of mistake is placed beyond any controIt is averred in the bill, and admitted by the demurrer, that, "the powers of attorney were given by the said Rousmanier, and received by the said Hunt, under the belief that they were, and with the intention that they should create, a specific lien and security on the said vessels."

We find no case we think precisely in point; and are unwilling, where the effect of the instrument is acknowledged to have been entirely misunderstood by both parties, to say, that a court of equity is incapable of affording relief.

The decree of the Circuit Court is reversed; but as this is a case in which creditors are concerned, the court instead of giving a final decree on the demurrer in favor of the plaintiff, directs the cause to be remanded, *that the Circuit Court may permit the defendants to withdraw their demurrer, and to answer the bill.

[*587

Decree accordingly.

An agency may be determined by the full execution of the purpose for which it was appointed; thus, an agency to sell a particular article is terminated by the delivery of it to the purchaser, and of the proceeds to the principal; and after that, the agent cannot rescind the contract.(1)

Or, unless declared to be irrevocable, and the attorney has an interest in the execution, it may be expressly revoked. But a revocation by the act of the principal does not take effect till notice is given to the agent; nor as against purchasers for a valuable consideration, on the faith of a written authority left in the agent's hands, or of a known agency previously existing, till notice to them.(2) [But a second power to a person, where identical powers had been previously granted to another, does not, of itself, revoke the first power: though, of course, when either power is exercised, both are exhausted.(3)] An agency created by instrument under seal, may be revoked by parol.(4)

(1) Smith v. Rice, 1 Bailey, 648; Bradford v. Bush, 10 Alabama, 386, 389.

(2) Bonney v. Smith, 17 Illinois, 531; Viser v. Bertrand, 16 Arkansas, 301; Morgan v. Stell, 5 Binney, 305; Hancock v. Byrne, 5 Dana, 513, 515; Beard v. Kirk, 11 New Hampshire, 398, 403; Lamothe v. St. Louis M. R. & D. Co., 17 Missouri, 205; a case very unintelligently reported; Bowerbank v. Morris, Wallace's C. C. 119.

(3) Cushman v. Glover, 11 Il. 600.

(4) Brookshire v. Brookshire, 8 Iredell, 74, 77.

THE DEATH of the principal, also, though not affecting a power coupled with an interest in property on which the power is to be exercised,(1) is an immediate determination of an authority not coupled with an interest; and acts done by the agent after the principal's death, though in ignorance of it, and in good faith, are void.(2) [Hence, a sale effected after the death of the principal will be void, although the power to sell be coupled with a contract which gives the agent an interest in the execution: Campanari v. Woodburn, 15 C. B. 400.] The death of a client is an entire revocation of the power of an attorney at law.(3) The reason of the distinction between the death of the principal, and his act of revocation, is, that "in the case of a revocation, the power continues good against the constituent, till notice is given to the attorney; but the instant the constituent dies, the estate belongs to his heirs, or devisees, or creditors; and their rights cannot be divested or impaired by any act performed by the attorney after the death has happened; the attorney then being a stranger to them, and having no control over their property:" per Mellen, C. J., in Harper et al. v. Little, 2 Greenleaf, 14, 18. In opposition, however, to all the authorities, *it was held in *588] Cassiday v. McKenzie, 4 Watts & Sergeant, 282, that acts done by an agent after his principal's death, bona fide, in ignorance of the fact, are valid and binding, a doctrine maintained also after considerat'on, in 1sh v. Crane, 13 Ohio State, 586; but by a divided court, see, also, Leavitt v. Fisher, 4 Duer 2; the case of a "p. & c." as the brokers call it i. e. a power in blank, accompanying a certificate of stock; Smout v. Ilbery, 10 Meeson & Welsby, 1:(4) and also, act of Pennsylvania of 1705, ch. 23, sec. IV., as to agencies for the sale of lands. In South Carolina, by statute, acts done by an agent after his

(1) Knapp v. Alvord, 10 Paige, 205.

(2) Hunt v. Rousmanier; Saltmarsh v. Smith, 32 Alab. 407; Campanari v. Woodburn, 15 C. B. 400; Galt and others v. Galloway and others, 4 Peters, 333, 344; Jenkins v. Atkins, 1 Humphreys, 294, 299; Rigs et als. v. Cage, 2 Id. 350; Stirnermaun ». Cowing, 7 Johnson's Chancery, 275, 285; Houghtaling v. Marvin, 7 Barbour's S. Ct. 412; Gale v. Tappan, 12 New Hampshire, 146, 148; Surviving partners of Auley McNaughton & Co. v. Moore, 1 Haywood, 189; Coney v. Saunders, 28 Georgia.

(3) Palmer v. Reiffenstein, 1 Manning & Granger, 94 ; Clark's Ex'rs v. Parish's Execu tors, 1 Bibb, 547; Campbell's Repr's v. Kincaid, 3 Monroe, 68, 71; Gleason v. Dodd, Administrator, 4 Metcalf, 333, 341; Huston's Adm'r v. Cantril et al., 11 Leigh, 137.

(4) "In this case a man who had been in the habit of dealing with the plaintiff for meat supplied to his house, went abroad, leaving his wife and family resident in England, and died abroad, and it was held that the wife was not liable for goods supplied to her after his death, but before information of his death had been received, she having had originally full authority to contract, and done no wrong in representing her authority as continuing, nor omitted to state any fact within her knowledge relating to it; the revocation itself being by the act of God, and the continuance of the life of the principal being equally within the knowledge of both parties." The case is one, however, which Jervis, C. J., said in Campanari v. Woodburn, 15 C. B. 400, he must confess he had always had great difficulty in understanding.

principal's death are valid, if without knowledge in the third party, and if done within nine months of the death; st. of 1828; Stats. at Large, vol. 6, p. 359, and see act of Georgia of 1785, cited in 28 Georgia, 513. If the acts done by the agent be done in his own name, or rather, if the acts be of a kind which need be done in no name-as the transfer of property which passes by delivery-the act will be valid, though the person acting in the matter meant to act as agent, and though his principal was dead at the time. Thus, where A., an agent of B., after B.'s death, but before either A. or C. knew of it, deposited notes of a kind which passed by delivery, with C., as collateral security for money advanced to the agent in his management of B.'s affairs, which notes were paid to C., it was held that B.'s administrator could not recover of C. the proceeds of the notes.(1) In the case of a sub-agent, as his power emanates from the principal, the death of the agent who appointed him is no revocation of his powers.(2)

It has been held, also, that the insanity of the principal, or his incapacity to exercise any volition upon the subject, by reason of an entire loss of mental power, operates as revocation, or suspension for the time being, of the powers of an agent acting under a revocable power; a suspension, merely, if after recovery he does not manifest his will to terminate the agency entirely; but that such suspension or revocation would not operate to the injury of third persons, trusting to an apparent authority, in ignorance of the principal's incapacity (3)

As to the effect of the principal's bankruptcy, see Ogden, Ferguson & Co. v. Gillingham, Mitchell & Co., Baldwin, 38, 46.

The death of the agent, also, is an immediate termination of all powers granted to him; and his administrators have no authority whatever to act in the business of the principal.(4)

It is a maxim, that delegatus non potest delegare. An agent or attor ney, who has a mere authority, must execute it himself, and cannot delegate his authority to a sub-agent, so as to authorize him to bind his principal, unless by consent of the principal, expressly given, or to be implied from usage or a known necessity; and this is especially applicable to matters requiring any degree of judgment or discretion, however small.(5) In Ex parte Henry Winsor, 3 Story, *411, 425, it was held, that this principle was applicable where a corporation was

(1) Dick v. Page & Bacon, 17 Missouri, 234, a case undoubtedly well decided. (2) Smith et al. v. White, 5 Dana, 376, 383.

(3) Davis v. Lane, 10 New Hampshire, 156, 159.

[*589

(4) Gage v. Allison & Clark, 1 Brevard, 495; City Council v. Duncan, 3 Id. 386; Merrick's Estate, 8 Watts & Sergeant, 402.

(5) Brewster v. Hobart, 15 Pickering, 303, 307; Entz v. Mills & Beach, 1 McMullan, 453; Cathcart et al. ». Keirnaghan, 5 Strobhart, 129; Wilson v. York and Maryland Line Railroad Co., 11 Gill & Johnson, 58, 74; Lyon v. Jerome, 26 Wendell, 485; Shankland . The Corporation of Washington, 5 Peters, 390, 395; Mason v. Wait et al., 4 Scammon,

the agent, and that powers of a discretionary nature confided to a corporation cannot be delegated to the directors, but ought, in the absence of all other provisions, to be solely exercised by the corporation at its legal meetings held for that purpose.

It has been held, in some cases, that the duty of a notary public, in making presentment of a foreign bill of exchange, cannot be performed by his clerk.(1)

A merely ministerial or mechanical act may, however, be done by a sub-delegate.(2)

OF THE RATIFICATION OF ACTS DONE FOR ANOTHER, WITHOUT AUTHORITY.

JOHN CULVER v. THOMAS ASHLEY.

In the Supreme Judicial Court of Massachusetts.

SEPTEMBER TERM, 1837.

[REPORTED FROM 19 PICKERING, 300-304.]

If arbitrators exceed their authority in making an award, and one of the parties performs the award and the other accepts his acts, the latter thereby ratifies the award, and is bound by it in the same manner as if he had originally authorized it.

THIS was an action of debt upon an award. The plaintiff (who was a tenant of the defendant, and on his farm,) and the defendant himself had had some dealings with each other, which ended in a dispute about the length of the lease and about other matters also. Their dispute was referred to arbitrators, and these, having heard the parties, made a decision by which it was awarded that the plaintiff should do certain acts, among them, should deliver up at once possession of the farm, and should deliver up possession, also, of certain chattels; and that the defendant, in consideration of the plaintiff doing this, should pay to him $34 for himself, and should pay him also $19, the costs of the arbi127, 133; Despatch Line, &c., v. Bellamy Man. Co., 12 New Hampshire, 206, 228; Warner et al. v. Martin, 11 Howard's S. Ct. 209, 223; Dorchester & Milton Bank . N. E. Bank, 1 Cushing, 178.

(1) The Onondaga County Bank v. Bates, 3 Hill's N. Y. 54; Chenowith & Co. v. Chamberlin, 6 B. Monroe, 60; Bank of Kentucky v. Garey, &c., Id. 626, 629. (2) Com. Bank of Lake Erie v. Norton, 1 Hill's N. Y. 502, 505.