39. Authority of agent to give into custody.

Whether an agent or servant has implied authority to give persons into custody has been considered in many cases; the test is whether in so doing he is acting within the scope of his ordinary duties, and also within the scope of the employer's powers1. If he is, he has implied authority2; if he is not, he or his employer or both will be liable in tort to the third party3; and it is for the person asserting the existence of the authority to prove it4.

To be within the scope of an agent's implied authority, an act must be