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Agency.

158 Sect.

4.

Agency of Necessity,

may also arise where a person carries out the legal (c) or moral (d) duties of another in the absence or default of that other, or acts in his interest to preserve his property from destruction. Most of the cases have reference to sea or land carriage, when, to prevent destruction of the ship, cargo or goods, the shipmaster or carrier has to take prompt action in excess of his instructions and none of them establish that a mere stranger can under any circumstances become an agent. The doctrine of agency of necessity has a limited application, probably confined to cases in which there is a contractual relationship of some kind, express or implied, in existence already (e). The occurrence of exceptional circumstances during the carrying out of the act of agency, from the nature of the contract itself, necessitates its extension in the interests both of principal and agent of the principal because otherwise his property or interests would be sacrificed of the agent so that he shall have the necessary authority to preserve them and acquire rights against third parties for his principal and against the principal in respect of his own remuneraIt



Application of doctrine.

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tion,

indemnity

etc.

The authority

arises

only under urgent

necessity; and, if questioned, it will lie upon the party contracting with the agent to show that such was the nature of the circumstances (/). At the same time, though a strong case is required, it is not essential that any other course should be an impossibility the course that a prudent man would take under all the circumstances is that which will be upheld (g).

Sect. Holding

out.

5.

Agency by Estoppel.

346. Agency by estoppel arises where one person has so acted as to lead another to believe that he has authorised a third person to act on his behalf, and that other in such belief enters into transactions with the third person within the scope of such ostensible authority

(h)

.

(c) On tlie ground that a husband is legally bound to maintain his wife, a person who supplies a deserted wife with necessaries may recover their price from the husband, and on the ground that the wife's necessaries include necessaries for her children in her custody he may likewise recover the price of necessaries supplied for such children [Bazeley v. Forder (1868), L. E. 3 Q. B. 559).

And

see title

Husband and Wife.

Langan

v. Oreat Western Rail. Co. (1873), 30 L. T. 173 (a police inspector held to have sufficient authority to bind a railway company for board and lodging of injured passengers) Oreat Northerii Rail. Co. v. ISwaffield (1874), L. E. 9 Exch. 132 (carriers of a horse, finding no one to receive it at the destination, maintained it from " common humanity "). Tvrist, [1895] 2 Q. B. 84; haivtayne v. Bourne (1841), 7 (e) OiuiUiam v. M. & W. 595, per Parke, B., at p. 599. The Gratitudine (/) The Bonita (1861), 5 L. T. 141 (sale of ship by master) Benson v. Duncan (1849), 3 Exch. 644 Oilhs v. Orey (1801), 3 Ch. Eob. 240 (1857), 2 H. & N. 22 (payment of freight by master on reshipment of cargo) (d)









Shipping and Navigation. The Australia (1859), 13 Moo. P. C. 132. It is not necessary that the ship should be absolutely unrepairable to entitle a master to sell, the question being whether it was prudent to incur so large an expense, compare The Mariposa, [1896] P. 273 (as to whether the shipmaster was acting as agent for the ship or the

and

see title

{g)

[h) Summers v. Solomon (1857), 26 L. J. (Q. B.) 301 ; and see Biggs v. Evans, [1894] 1 Q. B. 88 ; Dickinson v. Valpy (1829), 10 B. & 0. 128, 140 Farquharson Brothers & Co. v. King, [1902] A. C. 325.