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 THE LAW 
 
 PEINCIPAL AND AGENT.
 
 THE LAW 
 
 OF 
 
 PRINCIPAL AND AG^ENT 
 
 BY 
 
 ERIC BLACKWOOD WRIGHT, 
 
 B.A., LL.B., 
 
 Late Holder of Three Scholarships at the Middle Temple, and Prizeman of the Council of 
 
 Legal Education ; 
 
 Joint A uthor of a Handbook to the Local Oovernment Act of ISSS ; 
 
 OF THE MIDDLE TEJtPLE AND NOKTIIERX CIRCUIT, BARRISTEB-AT-LAW. 
 
 LONDON : 
 
 STEYENS AND SONS, LIMITED, 
 
 119 & 120, CHANCERY LANE, 
 
 ^ato Dublisltn-fi nuir |iOJ3l\sfIkrs» 
 
 1894. 
 
 r
 
 T 
 
 LONDON : 
 FEINTED BY C. F. EOWOETH, GEKAT NEW STEEET, FETTEE LANE, E.G.
 
 PREFACE. 
 
 The present Work was undertaken in the hope, not 
 of supplanting either of the two standard works 
 on Principal and Agent — those of Mr. Justice 
 Story and Mr, Evans — but of suj^plying a handy 
 text-book on the subject, for which there seemed 
 to be a need, since "Principal and Agent" has 
 been made one of tlie subjects for the Final 
 Examination for Call to the Bar. 
 
 The appearance of another Work on Principal 
 and Agent is also perhaps justified by the fact 
 that the last book on the subject was issued in 
 1888, and since then considerable changes have 
 taken j^lace in the law. First, the Factors Act 
 of 1889 has been j^assed, consolidating the law 
 with respect to mercantile agents, and affording 
 greater protection to persons dealing with those 
 who are in possession of goods as apj^arent owners. 
 Next, the Gaming Act of 1892 has made a prin- 
 cipal no longer liable to indemnify his agent in 
 respect of gambling debts, overruling Read v. 
 Anderson; and the Married Women's Property 
 Act of 1893 has altered the position of a mar- 
 ried woman as principal in resjiect to contracts. 
 Lastly, many points obscure in 1888 have been 
 by subsequent decisions elucidated ; so that the 
 Law of Agency has become altogether more 
 simple and harmonious. 
 
 768477 
 
 r
 
 Tl PREFACE. 
 
 Having been a '' Times" Law Reporter, I have 
 naturally striven to call the attention of the pro- 
 fession to the large number of cases reported in 
 these Reports, of which text writers seem to have 
 but little availed themselves- hitherto. Some 
 important decisions as to when commission is 
 payable to Commission Agents and House Agents 
 appear only to be reported in these Volumes. 
 
 The Appendix contains the most recent statutes 
 affecting the law on the subject, viz., the Factors 
 Act, 1889, the Gaming Act, 1892, the Married 
 Women's Property Act, 1893. 
 
 The Sale of Goods Act, 1893, has also been 
 inserted in the Appendix, as it codifies the law as 
 to Stoppage in Transitu. The Index has been 
 made an index to all the Acts included in the 
 Appendix as well as the body of the book, in 
 the hope that tliis may assist the reader in study- 
 ing any change that may be made by recent legis- 
 lation. 
 
 For convenience of practitioners, a reference 
 has been given in the Table of Cases to all the 
 Reports of each case, and the date of each case is 
 given in the text. 
 
 In conclusion, the Author has to express his 
 deep obligations to Mr. John William Gordon 
 for many valuable suggestions and much assist- 
 ance in revising the proofs. 
 
 E. BLACKWOOD WRIGHT. 
 
 April, 1894.
 
 CONTENTS. 
 
 PAGE 
 
 Table of Cases ■. . . . . . ix 
 
 Table of Statutes .... xxxvii 
 
 Addendum ...... xxxviii 
 
 Chap. I. — Introductory 
 
 II. — AViio MAY BE Principal and who Agent,. 
 III. — Joint Principals and Joint Agents . 
 IV. — Appointment of Agent . 
 V. — Eatification .... 
 VI. — The Authority of an Agent 
 VII. — Delegation .... 
 VIII. — Duties of Agent .... 
 IX. — Eights of Principal against his Agent 
 
 X. — Eights of Agent against the Principal — 
 
 Eemuneration 
 
 XI. — Indemnity .... 
 
 XII. — Lien and Stoppage in Transitu 
 XIII. — Termination of Agency . 
 XIV. — Liability of Third Parties to Principal 
 XV. — Liability of Principal to Third Parties 
 XVI. — Liability of Agent to Third Parties 
 XVII. — Liability of Third Party to Agent 
 XVIII. — Public Agents 
 
 1 
 
 7 
 
 14 
 
 23 
 
 34 
 
 54 
 
 104 
 
 112 
 
 132 
 
 157 
 171 
 
 180 
 192 
 219 
 258 
 283 
 313 
 321 
 
 APPENDIX. 
 
 Factors Act, 1889 . . . . .325 
 
 Gaming Act, 1892 . . . . . . 330 
 
 Married Women's Property Act, 1893 . . . 330 
 
 Sale of Goods Act, 1893 . . . . . 332 
 
 INDEX ...... 353—428
 
 TABLE OF CASES. 
 
 -171, 
 
 172 
 
 - 
 
 276 
 
 - 
 
 - 26 
 
 - 
 
 248 
 
 J.Ch. 
 
 
 -128, 
 
 139 
 
 66, 
 
 118 
 
 - 
 
 193 
 
 - 
 
 03 
 
 _ 
 
 32 
 
 PAGE 
 
 Adams' Trust, In re, 12 C. D. 634; 48 L. J. 613; 41 L. T. 607; 
 
 28 W. E. 163 - - - - - 210, 216 
 
 Adamson v. Jar-vds, 4 Bing. 66; 12 Moore, 241 
 Addie's Case, L. E. 1 H. L. Sc. 145 - - - 
 
 Addison v. Gandasequi, 4 Taunt. 574 
 Akennan v. Humphrey, 1 C. & P. 53 - 
 Albion Steel and Wii-e Co. v. Martin, 1 C. D. 580 ; 45 L. 
 
 173; 33 L. T. 660; 24 W. E. 134 
 Alexander v, Alexander, 2 Ves. sen. 640 
 Alexander v, Da\ds, 2 Times, 142 - - - 
 
 Alexander v. Mackenzie, 6 0. B. 766 - - - 
 
 AUen V. Bone, 4 Beav. 493 _ _ _ 
 
 Allen V. Coltart, 11 Q. B. D. 782 ; 52 L. J. Q. B. 686 ; 48 L. T. 
 
 944 ; 31 W. E. 841 - - - - - - 299 
 
 Allen V. L. & S. W. Ey., L. E. 6 Q. B. 65 ; 40 L. J. Q. B. 55 ; 
 
 23 L. T. 612 ; 19 W. E. 127 ; 11 Cox, C. C. 621 - - 70, 71 
 
 Alley V. Hotson, 4 Camp. 325 - - - - - 206 
 
 Allfi-ey V. Allfi-ey, 1 Mac. & G. 87 - - - - - 152 
 
 Anderson v. Clark, 2 Bing. 20 - - - - 283, 320 
 
 Anonymous, 1 Salk. 117- - - - -- 215 
 
 Anonymous v. Harrison, 12 Mod. 346 - - - - 195 
 
 Anti-obusv. Wickens, 4F. &F. 291 - - _ - 160 
 
 Armstrong v. Stokes, L. E. 7 Q. B. 598 ; 41 L. J. Q. B. 253 ; 
 
 26 L. T. 872 ; 21 W. E. 52 - 265, 270, 297, Add. p. xxxix 
 
 Ai-nold V. Mayor of Poole, 5 Scott, N. E. 741 ; 2 D. N. S. 574 ; 
 
 4 M. & Gr. 860 ; 12 L. J. C. P. 97 ; 7 Jur. 653 - - 25 
 
 Aslibury Eailway Carriage Co. v, Eicke, L. E. 7 H. of L. 653 ; 
 
 44 L. J. Ex. 185 ; 33 L. T. 451 - - - 46, 69 
 
 Aspdin V. Austin, 5 Q. B. 671 - - - - - 202 
 
 Atkyns v. Amber, 2 Esp. 492 - - - - 313, 318 
 
 Atlantic [Mutual Ass. Co. v. Huth, 16 C. D. 474 ; 44 L. T. 67 ; 
 
 29 W. E. 387 - - - - - - 99, 129 
 
 Att.-Gen. v. Corp. of Leicester, 9 Beav. 546 - - - 308
 
 X TABLE OF CASES. 
 
 PAGE 
 
 Att.-Gen. v. Denny, 2 Atk. 212 - - - _ _ 19 
 
 Atwood V. Mvmnings, 7 B. & 0. 278 ; 1 M. & E. 66 - 59, 60, 63 
 Australia (The), 13 Moore, P. C. 132 ; Swabey, 486 _ - 99 
 
 Autr V. Hutcliinson, 6 C. B. 266; 17 L. J. C. P. 304; 12 Jur. 
 962 - - - - - - - - 321 
 
 Bailey v. Macauley, 13 Q. B. 815 - - - . - 15 
 
 Baines v. Ewing, 4 H. & C. oil ; L. E. 1 Ex. 320 ; 35 L. J. Ex. 
 
 194; 14 L. T. 733; 14 W. E. 732 - - - 66,118 
 
 Baines v. Swainston, 32 L. J. Q. B. 281 ; 4 B. & S. 270; 32 L. J. 
 
 Q. B. 281 ; 8 L. T. 636; 11 W. E. 945 - 239, 242, Add. p. xxxviii 
 Balfoiu" V. Ernest, 5 C. B. N. S. 601 ; 28 L. J. C. P. 170 ; 5 Jm-. 
 
 N. S. 439 ; 32 L. T. 295 ; 7 W. E. 207 - - - 69 
 
 BaU V. Dunsterville, 4 T. E. 313 - - - _ _ 24 
 
 Bamford v. Sliuttlewortli, 11 A. & E. 926 - - - 302 
 
 Bank of New S. Wales v. Owston, 4 Ap. Cas. 270 ; 48 L. J. 
 
 P. C. 25 ; 40 L. T. 500 - - - 32, 33, 71, 82, 94 
 
 Bank of Scotland v. Dominion Bank, 91 Ap. Cas. 592 - 55, 118 
 Bank of Upper Canada v. Bradsha-w, 1 P. C. 479 ; 4 Moore, 
 
 P. C. N. S. 406 - - - - - - 96 
 
 Banque Jacques Cartier v. La Ban que d'Espagne, 13 App. Cas. 
 
 Ill ; 57 L. J. P. C. 66 ; 58 L. T. 427 - - 43, 44, 46 
 
 Barber v. Dennis, 6 Mod. 69 - - - - - 139 
 
 Baring v. Corrie, 2 B. & Aid. 137 - - 86, 88, 92, 126, 235 
 
 Baring v. Stanton, 3 C. D. 502 ; 35 L. T. 652 ; 25 W. E. 237 - 129, 
 
 142 
 Barker's Trusts, In ro, 1 C. D. 43 ; 45 L. J. Cb. 52 ; 24 W. E. 
 
 264 - - - - - - - - 216 
 
 Barker v. Furlong, 2 Cb. 172; 60 L. J. Q. B. 145 ; 64 L. T. 
 
 353 ; 39 W. E. 657 ; 00 J. P. 676 
 Barker v. Norwood, 2 W. Bl. 865 - 
 
 Earned Banking Co., In re, Ex parte The Contract Corp. 
 
 105 ; 37 L. J. Cb. 81 
 Barnett v. Brown, 6 Times, 463 _ - - 
 
 Bamett v. Isaacson, 4 Times, 645 _ _ _ 
 
 Bartlett v. Pentland, 10 B. & C. 760 
 Barwick v. Eng. Joint Stock ]3ank, L. E. 2 Ex. 259 ; 36 L. J. 
 
 Ex. 147 ; 16 L. T. 461 ; 15 W. E. 877 - 95, 219, 220, 274, 275 
 Batoman v. Mid-Wales Eail. Co., L. E. 1 C. P. 499 ; 35 L. J. 
 
 C. P. 205; 12 Jur. N. S. 453; 14 W. E. 672; 1 H. & E. 
 
 508- - - - - - --6 
 
 Bates V. Pilling, 6 B. & C. 38 ; 9 D. & E. 44 - - 272, 308 
 
 Bawdcn v. London, Edinburgh and Glasgow Ass. Co., 2 Q. B. 
 
 634; 61 L. J. Q. B. 792 - - - - - - 225 
 
 - 
 
 311 
 
 - 
 
 272 
 
 Cb. 
 
 
 - 
 
 30 
 
 - 
 
 161 
 
 159, 
 
 169 
 
 72 
 
 ', 75
 
 TAWLE OF CASES. XI 
 
 PAGE 
 
 Bayley v. Mancliester, Slioffielcl and Line. Ey., L. E. 8 C. P. 
 
 148; 42L. J. C. P. 78; 28L. T. 36G - - -279 
 
 Beable v, Dickerson, 1 Times, 654 - - - - - 165 
 
 Beale, In re, Ex parte Durrant, 5 Mor. Bank. 37 - 1G5, 170 
 
 Beattie v. Lord Ebury, 7 E. & S. Ap. 102 ; 44 L. J. Cli. 20 ; 30 
 
 L. T. 581 ; 22 W. E. 897 _ _ . 285, 288 
 
 Beaufort (Duke of) v. Neeld, 12 CI. & E. 248 ; 9 Jur. 813 - - 259 
 Beaven. v. M'Donnell, 9 Ex. 309 .- - - - 8 
 
 Beckham v. Drake, 9 M. & W. 79 - - 112, 113, 226, 270 
 
 Bective v. Jewell, 4 Camp. 31 _ _ _ _ 188 
 
 Bell V. Auldjo, 4 Douglas, 48 - - - _ _ 56 
 
 Bell V. Cunningliam, 3 Peters, G9 - - - - 134 
 
 Bellcairn, 5 Asp. M. C. N. S. 582 - - - - - 18 
 
 Bensley v. Bigndd, 5 B. & Aid. 335 - - - - 168 
 
 Bentinck v. London Joint Stock Bank, (1893) 2 Ch. 120 ; 08 L. 
 
 T. N. S. 315; 93 W. N. 25 - - - _ _ 81 
 
 Betts V. Gibbins, 2 A. & E. 57 - - - - - 172 
 
 Biddle v. Bond, 34 L. J. Q. B. 137 ; 12 L. T. 178 ; 6 B. & S. 
 
 225 ; 11 Jur. N. S. 425 ; 13 W. E. 561 - - - - 148 
 
 Bigg V. Strong, 3 Sm. & Gif. 592 - - - - 40 
 
 Bilbee v. Hasse, 5 Times, 677 - - - - - 163 
 
 Bingbam v. AUport, 1 Nev. & M. 398 - - - - 78 
 
 Bird V. Brown, 4 Ex. 786; 19 L. J. 194; 14 Jur. 132 - _ 49 
 Blackbui-n v. Haslam, 21 Q. B. D. 144; 57 L. J. Q. B. 479; 
 
 59 L. T. 407 ; 36 W. E. 855 - - - - 130, 224 
 
 Blackbiu-n v. Mason, 9 Times, 286 ; 68 L. T. 510 - - 175, 197 
 
 Blackburn v. Scboles, 2 Camj). 341 - - - Add. p. xl 
 
 Blackburn v. Vigors, 12 Ap. Cas. 531 ; 57 L. J. Q. B. 114; 57 
 
 L. T. 730; 36 W. E. 449; 6 Asp. M. C. 216 - 129, 130, 223, 224 
 Blades v. Free, 9 B. & C. 167 ; 4 M. & E. 382 - 155, 204, 205 
 Bold Buccleugh, 7 Moore, P. C. 267 - - - - 184 
 
 Bolton V. Lambert, 41 C. D. 295 ; 58 L. J. Cb. 425 ; 60 L. T. 
 
 687 ; 37 W. E. 434 - - - - - _ 51 
 
 Bonaparte, 8 Moore, P. 0. 459 - - - 98, 99 
 
 Boorman v. Brown, 3 Q. B. 515; 11 CI; & E. 1 ; 2 G. & D. 
 
 793 - - - - - - 86, 87, 132, 137 
 
 Berries v. Imperial Ottoman Bank, L. E. 9 C. P. 38 ; 43 L. J. 
 
 C. P. 3; 29 L. T. 689; 22 W. E. 92 - - - 89, 235 
 
 Bostock V. Jardine, 34 L. J. Ex. 142 ; 11 L. T. 577 ; 3 H. & C. 
 
 700 ; 13 W. E. 970 - - - - - - 132 
 
 Boston Deep Sea Fishing Co. v. Ansell, 39 C. D. 339 ; 59 L. T. 
 
 345 ------ - 140, 141 
 
 Bouchont (De) v. Goldsmid, 5 Yes. 210 - - - 61 
 
 Boulton V. Crowther, 4 D. & E. 195 ; 2 B. & C. 703 - - 322
 
 Xll TABLE OF CASES. 
 
 PAGE 
 
 Bowden, Ex parte, Ee Wood, 28 L. T. N. S. 174 - - 217 
 
 Bowen v. HaU, 6 Q. B. D. 333 ; 50 L. J. Q. B. 305 ; 44 L. T. 
 
 75 ; 29 W. E. 397 ; 45 J. P. 373 - - - - 255 
 
 Bowen v. Morris, 2 Taunt. 373 - - - - 321 
 
 Bowing V. Shepherd, L. E. 6 Q. B. 309 ; 40 L. J. Q. B. 129 ; 
 
 24 L. T. 721 ; 19 W. E. 852 - - - -38,91 
 
 Boyd V. Tovil Paper Co., 4 Times, 332 - - - - 163 
 
 Bozon V. Bolland, 4 My. & Or. 354 . . _ . 186 
 
 Brady v. Todd, 9 0. B. N. S. 592 ; 30 L. J. 0. P. 223 ; 7 Jur. 
 
 N. S. 827 ; 4 L. T. 212 ; 9 W. E. 483 - - - 63 
 
 Brandao v. Barnett, 3 C. B. 531 - - - - 181, 185 
 
 Braunstein v. Lewis, 65 L. T. 449 ; 55 J. P. 77 ; 7 Times, 566 - 9 
 Brett V. Clowser, 5 C. P. D. 376 - . - 83, 220, 225, 258 
 
 Bridges v. Garrett, L. E. 5 0. P. 451 ; 39 L. J. C. P. 251 ; 22 
 
 L. T. 448; 18 W. E. 815 - - - -74,76 
 
 Briggs V. Wilkinson, 7 B. & 0. 30 ; 9 D. & E. 871 - - 16 
 
 Bright, Ex parte. In re Smith, 10 C. D, 566 ; 48 L. J. Bk. 81 ; 
 
 39 L. T. 649 ; 27 W. E. 385 - - - 4, 217, 250, 252 
 
 Bristow V. Taylor, 2 Stark. 50 - - - - 193, 194 
 
 Bristowe v. Whitmore, 9 H. of L. 391 ; 31 L. J. Ch. 467; 8 
 
 Jur. N. S. 291 ; 4 L. T. 622 ; 9 W. E. 621 - - 48, 222 
 
 British Mutual Banking Co. v. Charnwood Forest Ey., 18 
 
 Q. B. D. 714 ; 56 L. J. Q. B. 449 ; 57 L. T. 833 ; 35 W. E. 
 
 590 ; 52 J. P. 150 - - - - - - 273 
 
 Broad v. Thomas, 7 Bing. 99 ; 4 M. & P. 732 ; 4 C. & P. 338 - 167 
 Brocklesby v. Temperance Building Soc, 9 Times, 561 ; W. N. 
 
 (93) 122 - - - - - - - 237 
 
 Brodie v. Howard, 17 C. B. 109 - - - - - 17 
 
 Bromley v. Holland, 7 Ves. 3 - - - ' - - 197 
 
 Brook V. Hook, L. E. 6 Ex. 89 ; 40 L. J. Ex. 50 ; 24 L. T. 34 ; 
 
 19 W. E. 508 - - - - - - 44 
 
 Brown v. Andrew, 18 L. J. Q. B. 153; 13 Jur. 938 - - 21 
 
 Brown v. Boorman. See Boorman v. Brown. 
 
 Browning v. Prov. Insurance Co. of Canada, L. E. 5 P. 0. 263 ; 
 
 28 L. T. 853 ; 21 W. E. 587 - - - - - 226 
 
 Bruco V. Wait, 3 M. & W. 15 ; 1 M. & G. 1 - - - 181 
 
 Biyans v. Nix, 4 M. & W. 775 ; 1 H. & N. 480 - 182, 320 
 
 Bryant v. Banque da Peuplo, (1893) Ap. Cas. 170 - 59, 64 
 
 Bryant v. Flight, 5 M. & W. 114 157 
 
 Bullcr r. HarrisoM, 2 Cowp. 505 _ _ - 304,305 
 
 Burdick v. Garrick, 5 Gh. 233 ; 39 L. J. Ch. 369 ; 18 W. E. 
 
 387 - - - - - 128, 139, 145, 153
 
 
 PAGE 
 
 .457 
 
 - 110 
 
 - 
 
 - 8 
 
 - 
 
 - 182 
 
 - 
 
 - 324 
 
 - 
 
 -159, 
 
 Add. p. 
 
 xxxix 
 
 TABLE OF CASES. 
 
 Burial Board of St. Mary v. Thompson, L. R. 6 C. P. 457 
 
 Burnard v. Haggis, 14 C. B. N. S. 45 
 
 Burne v. Bone, 2 Stark. 272 - - - 
 
 Buron v. Denmau, 2 Ex. 167 
 
 BuiT V. Eideout, Times Newspaper, 22 Feb. 1893 
 
 Burton v. G. N. Ey., 9 Ex. 507 ; 23 L. J. Ex. 184 - - 202 
 
 Busche (Do) v. Alt, 8 C. D. 286 ; 47 L. J. Ch. 386 ; 38 L. T. 
 370 - - - - - - 104, 128, 146, 147 
 
 Bush V. Steinnian, 1 Bos. & Pul. 404 - - - - 324 
 
 Caffray V. Darby, 6 Ves. 488 - - - - 119,134 
 
 Calder v. Dobell, L. E. 6 C. P. 486 ; 40 L. J. C. P. 224 ; 25 
 
 L. T. 129; 19 W. E. 978 - . _ 114, 116, 226, 263 
 
 Caledonian Eail. Co. v. Justices of Helensburg, 2 Jur. N. S. 
 
 695; 2 M'L. 391 - - - - - - 37 
 
 Callendar v. Delriclis, 5 Bing. N. C. 59 ; 6 Scott, 761 - 122, 128 
 Cambefort v. Chapman, 19 Q. B. D. 229 ; 56 L. J. Q. B. 639; 
 
 57 L. T. 625 ; 35 W. E. 838 ; 51 J. P. 455 - - 18, 312 
 
 Campbell v. Hassel, 1 Starkie, 233 - - _ _ go 
 
 Campbell v. Larkworthy, 9 Times, 528 - - - 174 
 
 Cane v. Martin, 2 Beav. 584 - - - _ _ 187 
 
 Cape Breton Mining Co., In re, 26 C. D. 221 ; 50 L. T. 390 ; 32 
 
 W. E. 853 - - - - - - - 144 
 
 Capel V. Thornton, 3 C. .& P. 352 - - - 56, 230, 258 
 
 Carr v. Jackson, 7 Ex. 382 ; 21 L. J. Ex. 137 - - - 314 
 
 Carr v. L. & N. W. Ey., L. E. 10 C. P. 307; 44 L. J. C. P. 
 
 109 ; 31 L. T. 785 ; 23 W. E. 747 68 
 
 Cary v. "Webster, 1 Strange, 480 - _ _ _ 272 
 
 Cassaboglou ;-. Gibbs, 11 Q. B. D. 797 ; 52 L. J. Q. B. 538 ; 48 
 
 L. T. 850; 32 W. E. 138 - - 128, 133, 135, 155 
 
 CatteraU v. Hindle, L. E. 2 C. P. 386 - - - - 78 
 
 Chadburn v. Moore, 61 L. J. Ch. 674 ; 67 L. T. 257 ; 41 W. E. 
 
 39 - - - - - - - - 78 
 
 Champernown v. Scott, 6 Mad. 93 - - - - 186 
 
 Chapleo v. Brunswick Permanent Building Soc, 6 Q. B. D. 696 ; 
 
 50 L. J. Q. B. 372 ; 44 L. T. 449 ; 29 W. E. 529 - - 69 
 
 Chapman v. Partridge, 5 Esj:). 256 - - - - - 84 
 
 Chapman v. Walton, 10 Bing. 57 ; 3 M. & Scott, 389 - 87, 120, 136 
 Chappell V. Bray, 30 L. J. Ex. 24 - - - . - 17 
 
 Chappie V. Cowper, 13 M. & W. 252 - - - - 8 
 
 Charles v. Altin, 15 C. B. 46 ; 23 L. J. C. P. 197 ; 18 Jiu-. 1105 134 
 Charles v. Blackwell, 1 C. P. D. 548 ; 45 L. J. C. P. 542 - - 75
 
 XIV TABLE OF CASES. 
 
 JA«B 
 
 Charnley v. Winstanley, 5 East, 266 - - - - 204 
 Chattock V. MuUer, 8 C. D. 177 142 
 
 Chedworth v. Edwards, 8 Yes. 47 - - - - 122 
 
 Chester v. Cliadwick, 13 Sim. 102 - - - - - 108 
 
 Chown V. Parrott, 14 C. B. N. S. 74 - - - - 79 
 
 Christofferson v. Hansen, L. E. 7 Q. B. 509 ; 41 L. J. Q. B. 
 
 217 ; 26 L. T. 547 ; 20 W. E. 626 - - - - 115 
 
 Churcli V. Imperial Gas Light, 6 A. & E. 846 ; 3 N. & P. 35 ; 
 
 1 W. W. & H. 137 - - - - - 24, 26 
 
 Clark V. Wood, 9 Q. B. D. 276 ; 47 L. T. 144; 30 W. E. 931 - 158 
 Clarke v. Perrier, 2 Ereem. 48 - - - - - 39 
 
 Clarke v. Shoe, Cowper, 197 - - - - - 251 
 
 Clarke v. Tipping, 9 Beav. 284 - - - - - 125 
 
 Cleland, Ex parte, L. E 2 Ck. 808 ; 36 L. J. Bk. 45 ; 17 L. T. 
 
 187; 15 W. E. 1160 - - - - - - 210 
 
 Close i\ Holmes, 2 Moo. & Eob. 22 - - - - 239 
 
 Clyde Navigation Co. v. Barclay, 1 Ap. Cas. 790 ; 36 L. T. 
 
 379 - - - - - - - - 281 
 
 Coates V. Lewis, 1 Camp. 444 - - - - - 87 
 
 Cobb V. Becke, 6 Q. B. 930 ; 14 L. J. Q. B. 108 ; 9 Jiir. 439 - 157 
 Cock V. Taylor, 13 East, 399 ; 2 Camp. 587 - - - 299 
 
 Cockram v. Irlam, 2 M. & S. 300 - - - 89, 92, 108 
 
 Cockrane v. Eymill, 40 L. T. 744; 27 W. E. 776 - - 311 
 
 Cohen v. Paget, 4 Cowper, 96 - - - - - 158 
 
 Cole V. L. & N. W. Bank, L. E. 10 C. P. 354 ; 44 L. J. C. P. 
 
 233 ; 32 L. T. 733 - - 61, 229, 231, 232, 239, 241, 251 
 
 Colegrave v. Manley, T. & E. 400 - - - - 187 
 
 Coles V. BeU, 1 Camp. 478, note - - - - - 23 
 
 Coles V. Bristowc, 4 Ch. Ap. 3 ; 38 L. J. Ch. 18 ; 19 L. T. 403; 
 
 17 W. E. 105 . - - . 55, 58, 86, 112 
 
 Coles V. Trecothick, 9 Ves. 234 - - - - . 86 
 
 CoUedge v. Horn, 3 Bing. 119 - - - - - 101 
 
 CoUen V. Wright, 8 El. & B. 647 ; 27 L. J. Q. B. 215 ; 4 Jm-. 
 
 N. S. 357 284, 288 
 
 Collins V. Blantem, 2 WHs. 341 - - - - 108 
 
 Collisv.Benning, 12Mod. 444 - - - - - 154 
 
 Colquhoun V. WetzeU, Times Newspaper, 3rd, 7th, and 10th 
 
 Fob. 1894 _____ Add. ]y. xxxviii 
 
 Combo's Case, 9 Co. Ecp. 77 a - - - - -112 
 
 Comber v. Anderson, 1 Camp. 523 - - - -120, 125 
 
 Conalan v. Loyland, 27 C. D. 632 - - - - 9 
 
 Consolidated Co. v. Curtis and Son, (1892) 1 Q. B. 195; 61 
 
 L. J. a. B. 325 ; 40 W. E. 426 ; 56 J. P. 565 - - - 311
 
 TABLE OF CASES. XV 
 
 PAGE 
 
 Cooke, Ex parte, In re Strachan, 4 C. D. 123 ; 46 L. J. Bk. 
 
 52; 35 L. T. 649 ; 25 W. E. 171 - - - - 249 
 
 Cooke V. Eshelby, 12 Ap. Cas. 271 ; 56 -L. T. 673 ; 35 W. E. 
 
 629 - - - - - 175, 197, 235, 242 
 
 Cooke V. Seeley, 2 Ex. 786; 17 L. J. Ex. 286 - - - 227 
 
 Cooper V. Eyre, 1 H. Bl. 37 - - - - - 16 
 
 Coore V. Callaway, 1 Esp. 115 - - - - 23, 49 
 
 Cope V. Thames Haven Dock Co., 3 Ex. 841 ; 6 Eail. Cas. 83 ; 
 
 18 L. J. Ex. 345- - - - - - - 25 
 
 Copeman v. GaUant, 1 P. W. 314 - - - - 250 
 
 Copper Mines Co. v. Fox, 16 Q. B. 329; 20 L. J. Q. B. 174; 
 
 15 Jm-. 703 - - - - - - - 29 
 
 Cornwall v. Wilson, 1 Ves. 509 - - -39, 119, 155 
 
 Coupe Co. V. Maddick, (1891) 2 Q. B. 413 ; 60 L. J. Q. B. 676 ; 
 
 65 L. T. 489 - - - - - - - 276 
 
 Cox V. Midland EaU. Co., 3 Ex. 268 ; 18 L. J. Ex. 65 ; 13 Jm-. 
 
 65 32 
 
 Cox V. Prentice, 3 M. & S. 344 - - - -304, 305 
 
 Craufm-d v. Hunter, 8 Term. 13 - - - - 93 
 
 Cropper v. Cooke, L. E. 3 C. P. 194 ; 16 W. E. 596 - - 88 
 
 Crossman v, Granville Club, 77 L. T. Newsj^aper, 48 - 22, 66 
 
 CuEen v. Thompson, 4 MacQ. 424 ; 9 Jiu-. N. S. 85 ; 6 L. T. 
 
 870 - - - - - - - - 311 
 
 Cunard v. Van Oppen, 1 F. & F. 716 - - - - 161 
 
 Cunningham & Co., Ee, 36 C. D. 532; 57 L. J. Ch. 169; 58 
 
 L. T. 16 - - - ^ - - - _ - 65 
 
 Cm-ling V. Eobertson, 7 M. & G. 336; 8 Scott, N. E. 12; 13 
 L. J. C. P. 137 - - - - - - 16 
 
 Curtis V. Barclay, 7 D. & E. 539 ; 5 B. & C. 141 - - - 172 
 
 Curtis V. Nixon, 24 L. T. 706 - - - - - 1 62 
 
 Cuthbertson v. Parsons, 2 EI. & Bl. 767 - - - - 273 
 
 Dalton V. Irwin, 4 C. & P. 289- - - - 166, 167 
 
 Davidson v. Stanley, 2 M. & Gr. 721 ; 3 Scott, N. E. 49 - - 56 
 Davies, Ex parte, In re Sadler, 19 C. D. 86 ; 45 L. T. 632 ; 30 
 
 W. E. 237 - 148 
 
 Davis V. Garratt, 6 Bing. 716 ; 4 M. & P. 540 - - 119, 133 
 
 Davis V. Howard, 24 Q. B. D. 691 ; 59 L. J. Q. B. 133 57, 176 
 
 Davison v. Donaldson, 9 Q. B. D. 623 ; 47 L. T. 564 ; 4 Asp. 
 
 601 ; 31 W. E. 277 - - - - 266, 267, 268 
 
 Day V. Woolwich Building Soc, 40 C. D. 491 ; 58 L. J. Ch. 280; 
 
 60 L. T. 752 ; 37 W. E. 471 - - - - - 70 
 
 Deakin v. Lakin, In re Shakespeare, 30 C. D. 109. See 
 
 Shakespeare, In re - - - - - 9, 10
 
 XVI TABLE OF CASES. 
 
 PAGE 
 
 Dear v. Thwaite, 21 Beav. 261 - - - - - 153 
 
 Debenliam v. Mellon, 6 Ap. Cas. 24 ; 50 L. J. Q. B. 155 ; 45 
 
 L. T. 673 ; 29 W. E. 141 62 
 
 De Mattos v. Benjamin, (1894) 10 Times, 221 - - 179 
 
 Denew v. Daverell, 3 Camp. 451 - - - - - 121 
 
 Dennis v. Barber, 6 Mod. 69 - - - - - 139 
 
 Deslandes v. Gregory, 2 E. & E. 602 ; 30 L. J. Q. B. 36 ; 6 Jui-. 
 
 N. S. 651 ; 8 W. E. 585 114 
 
 Diplock V. Blackburn, 3 Camp. 43 - - - - 139 
 
 Dii-ks V. Eicbards, Car. & M. 626 ; 5 Scott, N. E. 534 ; 4 M. & 
 G. 574 ; 6 Jur. 562 - - - - - - 184 
 
 Dixon, Ex parte, In re Henley, 4 C. D. 133 ; 46 L. J. Bk. 20; 
 35 L. T. 644; 25 W. E. 105 - - - - 67, 231 
 
 Dixon V. Ewart, Buck. 94 - - - - - - 207 
 
 Dixon V. Hammond, 2 B. & Aid. 310 - - - - 147 
 
 Dixon V. Stansfield, 10 C. B. 398 181 
 
 Doe d. Tbomas v. Eobert, 10 M. & W. 778 - - - 7 
 
 Doe V. Somerset, 1 B. & A. 135 - - - - - 15 
 
 Donald v. SuckHng, L. E. 1 Q. B. 585 ; 35 L. J. Q. B. 232 ; 12 
 
 Jur. N. S. 795 ; 14 L. T. 772 ; 15 W. E. 13 - - 182, 186 
 
 Dore V. Hooton, unreported - - - - - 147 
 
 Dougal V. Kemble, 3 Bing. 383; 11 Moore, 251 - - 299 
 
 Doward v. Williams, 6 Times, 316 - - - - 192, 203 
 
 Downbam v. WiUiams, 7 Q. B. 103 ; 14 L. J. Q. B. 226 ; 9 
 
 Jui\ 454 - - - - - - - 115 
 
 Draper v. Earl Manners, 9 Times, 73 - - - - 289 
 
 Drew V. Nunn, 4 Q. B. D. 661 ; 48 L. J. Q. B. 591 ; 40 L. T. 
 
 071 ; 27 W. E. 10 - - - - 8, 11, 204, 212, 287 
 
 Drinkwater v. Goodwin, Cowper, 251 - 92, 209, 227, 318 
 
 Dugdale v. Lovering, 10 C. P. 196 ; 44 L. J. C. P. 197 ; 32 L. T. 
 
 155; 23 W. E. 391 - - - - - - 171 
 
 Duncan v. Findlater, 6 CI. & F. 894; 1 Eob. 911 - - - 322 
 
 Duncan v. Hill, L. E. 8 Ex. 242; 42 L. J. Ex. 179 ; 29 L. T. 
 
 268; 21 W. E. 797 173 
 
 Dunn V. Sayles, 5 Q. B. 685 ; D. & M. 579 ; 13 L. J. Q. B. 159 ; 
 
 8 Jur. 358 - - - - - - - 202 
 
 Dunnoi;. Englisb, 18Eq. 524; 31 L. T. 75 - - 128,145 
 
 Dutton V. Marsb, L. E. 6 Q. B. 361 ; 40 L. J. Q. B. 175 ; 24 
 
 L. T. 470; 19 W. E. 754 ... 112, 114, 116 
 
 Eads V. Williams, 4 Do G. M. & G. 674 - - - 109 
 
 EuKtland V. liurcbrai, 3 Q. B. D. 432 ; 47 L. J. Q. B. 500 ; 38 
 L. T. 568 ; 27 W. E. 290 - - - - - 32
 
 TABLE OF CASES. XVll 
 
 PAGE 
 
 Eaton V. Bell, 5 B. & Aid. 34 - - - - - 290 
 
 Eccles. Commrs. v. Merral, L. E. 4 Ex. 1(52 ; 32 L. J. Ex. 93 ; 
 
 26 L. T. 573; 17 W. E. G7G - - - - 27, 28 
 
 Eddy V. McGowan, Times, 17 Nov. 1870 - Add. p. xxxix 
 
 Edgell V. Day, L. E. 1 C. P. 7 ; 12 Jur. N. S. 27 ; 13 L. T. 328 ; 
 
 14 W. E. 87 ; 1 H. & E. 8 - - - - 301, 302 
 
 Edmunds v. Bushell, L. E. 1 Q. B. 97 ; 35 L. J. Q. B. 28 ; 12 
 Jur. N. S. 332 - - - - - 113, 260, 270 
 
 Edwards v. Brewer, 2 M. & W. 375 - - - - 189 
 
 Edwards v. Grand Junction Eail. Co., 1 M. & Cr. 650 - - 37 
 Edwards v. Hodding, 5 Taunt. 815 - - - 302, 303 
 
 Edwards v. Lewis, 3 Alk. 538 - - - - - 142 
 
 Edwards v. L. & N. W. Ey., L. E. 5 C. P. 445; 39 L. J. C. P. 
 
 241 ; 22 L. T. 656 ; 18 W. E. 834 - - - - 70 
 
 Elbinger Actien Gesol v. Claye, L. E. 8 Q. B. 313 ; 42 L. J. 
 
 151 - - - - - - - - 269 
 
 Elderton v. Emmens, 4 H. of L. 624 ; 5 D. & L. 680; 17 L. J. 
 
 0. P. 277 ; 12 Jul-. 728 - - - - - 202 
 
 Eley V. Positive Govt. Life Ass., 1 Ex. D. 88; 45 L. J. Ex. 
 
 451; 34L. T. 190; 24 W. E. 338 - - _ 30,31 
 
 Elliott V. Turquand, 7 Ap. Cas. 79; 51 L. J. P. C. 1 ; 45 L. T. 
 
 771 ; 30 W. E. 477 - - - - - - 208 
 
 Ellis V. Goulton, (1893) 1 Q. B. 350 - - - 301, 302 
 
 ElUs V. Sheffield Gas Co., 2 E. & B. 767 - - 272, 273, 278 
 
 EUison V. Bray, 9 L. T. 730 - - - - - 109 
 
 Elsee V. Gatward, 5 Term Eep. 141 - - - - 137 
 
 Emley v. Lye, 15 East, 7 - - - - - 113 
 
 Emma SHver Mining Co. v. Grant, 11 C. D. 918 ; 40 L. T. 804- 143 
 European Bank, In re, Agra Bank Claim, 8 Ch. 41 ; 27 L. T. 
 
 732; 21 W. E. 45 - - - - - - 185 
 
 Evans v. Nichol, 4 Scott, N. E. 43; 3 M. & G. 614; 5 Jm-. 
 
 1110 - - - - - - - -182 
 
 Everett v. Paxton, 65 L. T. 383 - - - - - 9 
 
 Express Engineering Co., In re, 16 C. D. 128 ; 43 L. T. 742 ; 
 
 29 W. E. 342 - - - - - - 37 
 
 Eail- V. M'lvor, 16 East, 130 - - - - - 210 
 
 Eairhurst v. Liverpool Adelphi Loan Asso., 9 Ex. 422 - 8 
 
 FairUe v. Fenton, L. E. 5 Ex. 169 ; 39 L. J. Ex. 107 ; 22 L. T. 
 
 373 - - - - - - 91, 219, 292, 313 
 
 Fanny (The), 48 L. T. 771 ; 5 Asp. 75 - - - 97, 106 
 
 Farebrother v. Simmons, 5 B. & Aid. 333 - - - 83 
 
 Farmer v. Eobinson, 2 Camp. 339, n. - - - - 193 
 
 w. b
 
 XVlll TABLE OF CASES. 
 
 PAGE 
 
 Farrer v. Lacey, 23 C. D. 636 ; 32 W. E. 196 - - - 75 
 
 Farthing v. Tomkins, 9 Times, 566 - - - - 159 
 
 Faviel v. Eastern Counties Ey. Co., 2 Ex. 344 ; 6 D. & L. 54 ; 
 
 17 L. J. Ex. 297 26 
 
 Fawcus, Ee, Ex parte Buck, 3 C. D. 795; 34 L. T. 807 - 217, 253 
 Feico V. Wray, 3 East, 93 - - - - - 188 
 
 Fell V. Brown, Peake, 96 - - - - - 137 
 
 Fenn v. Harrison, 3 Term Eep. 757 - - - - 63, 77 
 
 Ferguson v. Carrington, 9 B. & C. 59 ; 3 C. & P. 457 - - 39 
 
 Finch V. Boning, 4 C. P. D. 143 ; 40 L. T. 484 ; 27 W. E. 872 - 78 
 Fish V. Kempton, 7 C. B. 687 ; 18 L. J. C. P. 206; 13 Jm-. 750- 231, 
 
 232 
 
 Fisher v. Drewitt, 48 L. J. Ex. 32 ; 39 L. T. 253; 27 W. E. 12- 159, 
 
 166 
 
 Fitzgerald v. Dressier, 7 C. B. N. S. 374; 29 L. J. C. P. 113; 
 
 5 Jur. N. S. 598 - - - - - - 39 
 
 Fitzherbert v. Mather, 1 T. E. 12 - - - - - 224 
 
 Fleet V. Murton, L. E. 7 Q. B. 126 ; 41 L. J. Q. B. 49 ; 26 L. T. 
 
 181;20W. E. 97 113,293 
 
 Flemyng v. Hector, 2 M. & W. 172 ; 2 Gale, 180 - - 22, 65 
 
 Fletcher v. Harcot, Hatton, 55- - - - -171 
 
 Flower, Ex parte, 4 D. & C. 449 - - - - - 218 
 
 Foley V. HHl, 2 H. of L. Cas. 28 - - - 149, 153 
 
 Foster v. Pearson, 1 Cr. M. & E. 849 ; 5 Tyr. 255 - 81, 92 
 
 Fothergill v. Philips, 6 Ch. 770 _ - _ - 40 
 
 Fowler v. Down, 1 B. & B. 44 - - - - - 320 
 
 Fowler i\ Monmouthshire Ey. and Canal Co., 4 Q. B. D. 334 ; 
 
 48 L. J. Q. B. 457 ; 41 L. T. 159 ; 27 W. E. 659 - - 12 
 
 Fox V. Frith, 10 M. & W. 131 ; Car. & M. 502 - - - 113 
 
 Fox V. Makreth, White & Tudor, L. Cas. - - - 142 
 
 Franklyn v. Frith, 3 Br. C. C. 433 - - - - 138 
 
 Franklyn v. Lamond, 4 C. B. 657 ; 16 L. J. C. P. 221; 11 Jm-. 
 
 780 - - - - - - - - 84 
 
 Fraser v. Murdoch, 6 Ap. Cas. 855 ; 45 L. T. 417; 30 W. E. 162- 108 
 Fray v. Voules, 1 E. & E. 839 ; 28 L. J. 232 ; 5 Jur. N. S. 1253; 
 
 33 L. T. 0. S. 133; 7 W. E. 446 - - - - 78 
 
 Freeman v. Cooke, 2 Ex. 654; 18 L. J. Ex. 114 ; 12 Jur. 777 - 68 
 Freeman v. Eosher, 13 Q. B. 787 ; 18 L. J. Q. B. 348 - 34, 41, 52 
 French v. Backhouse, 5 Bur. 2727 - - - - 18, 40 
 
 Frith V. Forbes, 4 Do G. F. & J. 409; 32 L. J. Ch. 10; 8 Jur. 
 
 N. S. 1113 - - - - - - - 182 
 
 Frixiono v. Tugliafurro, 10 Moore, 1'. C. 175 - - - 173 
 
 Fronting. Small, 2 Ld.Raym. 1419 - - - -112
 
 TABLE OF CASES. XIX 
 
 PAGE 
 
 Fuentes v. Montis, L. E. 4 C. P. 93 ; 38 L. J. C. P. 95 ; 19 L. T. 
 
 364; 17 W. E. 208 - - - - - - 243 
 
 Furnival v. Combes, 5 M. & G. 73G ; 6 Scott, N. E. 522; 12 
 
 L. J. C. P. 263 ; 7 Jur. 399 - - - - - 290 
 
 Gadd V. Houghton, L. E. 1 Ex. Div. 357 ; 46 L. J. Ex. 71 ; 35 
 
 L. T. 222; 24 W. E. 975 - - 84, 114, 116, 117, 297 
 
 Garden, Gully & Co. v. McLister, 1 Ap. Cas. 39 ; 33 L. T. 408 ; 
 24 W. E. 744 - - - - - - - 222 
 
 Gardner v. L. C. & D. E., 2 Ch. 212 - - - - 5 
 
 Gardner v. McCutclieon, 4 Beav. 534 - - - - 167 
 
 Gaussen v. Morton, 10 B. & C. 731 - - - - 197 
 
 George v. Claggett, 2 Sm. L, C. 9tli ed. 130 ; 7 T. E. 359 231, 251 
 Getliing V. Keighley, 9 C. D. 547; 47 L. J. Ch. 45; 27 W. E. 283 151 
 Gibbons v. Proctor, 64 L. T. 594 ; 55 J. P. 616 ; 7 Times, 462 - 12 
 Gibson v. Crick, 31 L. J. Ex. 304; 1 H. & C. 142 - - 160, 161 
 
 Gibson i-. May, 4 Do G. M. & G. 512 - - - - 186 
 
 Gibson v. Winter, 3 B. & Ad. 96 - - - - 228, 319 
 
 Gidley v. Lord Palmerston, 2 Br. & B. 275; 7 Moore, 91 - 321 
 Gillett V. Peppercorn, 3 Beav. 78 - - - - - 127 
 
 Gladstone v. Hill, 1 M. & S. 35 - - - - 219 
 
 Glover v. Longford, 8 Times, 628 - - - - 295, 297 
 
 Godfrey v. Saunders, 3 Wils. 94 - - - - 22 
 
 Goodson V. Brooke, 4 Camp. 63 - - - - - 57 
 
 Goodtitle v. Woodward, 3 B. & Aid. 689 - - - 50 
 
 Goodwin V. Eobarts, 1 Ap. Cas. 476 ; 45 L. J. Ex. 748 ; 35 
 L. T. 179; 24 W. E. 987 - - - -79, 185, 234 
 
 Governors of Cast Plate Co. v. Meredith, 4 T. E. 794 - - 323 
 
 Grant v. Fletcher, 8 D. & E. 59 ; 5 B. & C. 436 - - - 87 
 
 Grant v. Norway, 10 C. B. 665 ; 20 L. J. C. P. 93 ; 15 Jur. 296 - 97, 
 
 100 
 
 Grant v. United Kingdom Switchback Co., 40 C. D. 135; 58 
 
 L. J. Ch. 211 ; 60 L. T. 525 ; 37 W. E. 312 ; 1 Meg. 117 42, 43 
 Graves v. Key, 3 B. & Ad. 313 - - - - 230, 262 
 
 Great Northern Eail. Co. v. Eastern Counties Eail. Co., 21 
 
 L. J. 837 - - - - - - 5, 111 
 
 Great Southern of Mysore, Ee, 28 L. T. 11 - - - 109 
 
 Great Western Insurance Co. v. Cunliffe, L. E. 9 Ch. 525 ; 43 
 
 L. J. Ch. 741 ; 31 L. T. 661 - - - 129, 142, 167 
 
 Green v. Bartlett, 14 C. B. N. S. 681 ; 32 L. J. C. P. 261 - 165 
 Green v. Kopke, 18 C. B. 549 ; 25 L. J. C.P. 297 ; 2 Jur. N. S. 
 
 1049 ------ -297,298 
 
 Green v. Lucas, 31 L. J. N. S. 731 ; affii-med, 33 L. T. 584 - 165 
 
 b2
 
 XX: TABLE OF CASES. 
 
 PAGE 
 
 Greenway v. Fisher, 1 C. & P. 190 - - - - 310 
 
 Grice v. Kenrick, L. E. 5 Q. B. 340; 39 L. J. Q. B. 175; 22 
 
 L. T. 743; 18W. E. 1155 - - - - - 320 
 
 Griffiths V. Griffiths, 12 L. J. Ch. 397 - - - - 187 
 
 Griffiths V. Perry, 1 E. & E. 680 - - - - - 249 
 
 Griffin v. Cheesewright, 2 Times, 99 - - - - 104 
 
 Grill V. Gen. Iron Screw Col. Co., 3 C. P. 476 ; 37 L. J. C. P. 
 
 205; 18L. T. 485; 16 W. E. 796 - - - - 136 
 
 Grindlay v. Barker, 1 B. & P. 229 - - - - 20 
 
 Grogan r. Smith, 7 Times, 132 - - - - - 159 
 
 Guerreiro v. PeHe, 3 B. & Aid. 616 - - - 61, 92 
 Gunn V. Bolckow, L. E. 10 Ch. 491 ; 44 L. J. Ch. 732; 31 L. T. 
 
 781 ; 23 W. E. 739 - - - - - - 240 
 
 Guthrie v. Armstrong, 5 B. & Aid. 628 ; 1 D. & E. 248 - 21 
 
 Hahn V. North German Pitwood Co., 8 Times, 537 - - 297 
 
 Haines v. Busk, 5 Taunt. 521 ; 1 Marsh. 191 - - - 168 
 
 Hall V. Smith, 2 Bing. 186 - - - - 308, 322 
 
 HaUer v. Worman, 3 L. T. 741 - - - - . 98 
 
 Hallett's Estate, Ee (see KnatchbuU v. HaUett), 13 C. D. 696 ; 
 
 42 L. T. N. S. 421 ; 49 L. J. Ch. 415 - - - 143 
 
 Halley, The, L. E. 2 P. C. 291 ; 37 L. J. Adm. 33 ; 18 L. T. 
 
 879; 5 Moore, P. C. N. S. 262 ; 16 W. E. 998 - - - 281 
 
 Halliday V. Holgate, L. E. 3 Ex. 299; 37 L. J. Ex. 174; 17 
 
 W. E. 13 - - - - - - - 182 
 
 Hamburg, The, 2 Moore, P. C. N. S. 289; 33 L. J. Adm. 110; 
 
 10 Jur. N. S. 600; 10 L. T. 206; 12 "W. E. 628 - - - 98 
 
 Hamer v. Sharp, 19 Eq. 108; 44 L. J. Ch. 53 ; 31 L. T. 643 ; 
 
 23 W. E. 158 - - - - - - 78 
 
 Hamilton v. Baker, 14 Ap. Cas. 209 ; 58 L. J. P. 57 ; 61 L. T. 
 
 26; 38 W. E. 129 - - - - - - 188 
 
 Hammond v. Barclay, 2 East, 226 - - - 180, 181 
 
 Hamond v. Holiday, 1 C. & P. 384 - - - - 164 
 
 Hanson v. Eobordean, Peako, 163 - - - - 84 
 
 Hardman v. Booth, 32 L. J. Ex. 103 ; 1 H. & 0. 803 ; 9 Jur. 
 
 N. S. 81 ; 7 L. T. 738 - - - - - - 242 
 
 Hardman v. Willcock, 9 Bing. 382, n. - - - - 148 
 
 Harker v. Edwards, 37 L. J. Q. B. 147 - - - 173, 229 
 
 Harper v. Godsell, L. E. 5 Q. B. 422 : 39 L. J. Q. B. 185 ; 18 
 
 W. E. 954 00 
 
 Harrington v. Victoria Graving Dock Co., 5 Q. B. D. 549; 47 
 
 L. J. 594; 39 L. T. 120; 26 W. E. 740 - - H, 256, 319
 
 TABLE OF CASES. Xxi 
 
 PAQE 
 
 Harris v. Nickcrson, L. E. 8 Q. B. 286; 42 L. J. Q. E. 171 ; 28 
 
 L. T. 410; 21 W. E. G3o - - - - - 85 
 
 Hartas v. Eibbons, 22 Q. B. D. 254; 58 L. J. Q. B. 187 ; 37 
 
 W. E. 278 - - - - - - - 174 
 
 Hartop, Ex parte, 12 Ves. 349 - - - - - 283 
 
 Hastings v. Eearson, (1892) 1 Q. B. G2 ; 67 L. T. 552 ; 41 W. E. 
 
 127 ----- - -239,242 
 
 Hatfield v. Elulips, 14 M. &W. 665 ; 12 CI. & F. 343 - - 244 
 
 Havilland v. Bowerbank, 1 Camp. 49 - - - - 138 
 
 Hawke r. Cole, 62 L. T. 658 - - - 14, 35, 6G, 286, 290 
 
 Hawken v. Bourne, 8 M. & W. 703 - - - - 93 
 
 Hawkesley v. Outram, (1892) 3 Ch. 359 - - 56, 59 
 
 Hawtayne v. Bourne, 7 M. & W. 595 ; 5 Jm-. 118 - 63, 65, 79 
 
 Haynes v. Foster, 2 Cr. & M. 237 - - - - 92 
 
 Hazard v. Treadwell, 1 Str. 506 - - - - - 195 
 
 Heald i'. Kenwortliy, 10 Ex. 757; 24 L. J, Ex. 76; 1 Jur. 
 
 N. S. 70 - - - - - - - 264 
 
 Heane v. Eogers, 9 B. & C. 577 - - - - 230, 262 
 
 Heare v. Greenbank, 3 Atk. 695 - - - - 12 
 
 Heatborn v. Darling, 1 Moo. F. C. 5 - - - - 99 
 
 Helyear v. Hawke, 5 Esj). 71 - - - - - 220 
 
 Henderson v. Barnewell, 1 Y. & J. 387 - - - 110, 112 
 
 Henley, In re, Ex parte Dixon, 4 C. D. 133 ; 46 L. J. Bk. 20 ; 
 
 35 L. T. 644 ; 25 W. E. 105 - - - - 67, 231 
 
 Henry v. Lowson, 2 Times, 142 - - - 156, 192, 193 
 
 Hester v. Hester, 34 C. D. 607 ; 56 L. J. Ch. 247 ; 55 L. T. 862 ; 
 
 35 W. E. 233 ; 51 J. P. 438 - - - - - 102 
 
 Hewison v. Gutlu-ie, 3 Scott, 298; 2 Bing. N. C. 755; 2 
 
 Hodges, 51 - - - - - - - 184 
 
 Hibernian, Tbe, E. E, 4 P. C. 511 ; 42 L. J. Adm. 8; 27 E. T. 
 
 725 ; 21 W. E. 276 ; 9 Moo. P. C. N. S. 340 - - 281 
 
 Hick V. Tweedy, 63 L. T. 725; 6 Asp. 599; 7 Times, 
 
 144 ------ - 116, 294 
 
 Higgins V. Senior, 8 M. & W. 834 - - - - 226 
 
 Hilbery v. Hatton, 2 H. & C. 822 - - - - 41, 52 
 
 Hill V. Cooper, (1893) 2 Q. B. 85 - - - - 9 
 
 Hill V. Fetberston, 7 Bing. 569 - - - - - 164 
 
 Hindmarsb v. Soutbgate, 3 Euss. 324 - - - - 1 1 
 
 Hoare v, Dawes, 1 Doiaglas, 371 - - - - - 16 
 
 Hocbster v. Do la Tour, 2 E. & Bl. 678 ; 22 L. J. Q. B. 455 ; 
 
 17 Jur. 972 - - - - - - - 201 
 
 Hodgson V. Anderson, 3 B. & C. 842 - - - - 197 
 
 Hogg V. Snaitb, 1 Taunt. 347 - - - - _ 60
 
 XXU TABLE OF CASES. 
 
 PAGE 
 
 HoUand v. EusscU, 4 B. & S. 14 - - - - 305 
 
 Hollins V. Fowler, L. E. 7 H. of L. 757 ; 44 L. J. Q. B. 1G9 ; 
 
 33 L. T. 73 - - - - - 253, 309, 310 
 
 Horford v. Wilson, 1 Taunt. 12 - - - - - 159 
 
 Horseley v. Bell, 1 Brown, by Eden, 101, note - - 290 
 
 Houghton V. Mathews, 3 Bos. & P. 485 - - - - 92 
 
 Houghton V. Orgar, 1 Times, 653 _ _ _ _ 158 
 
 Houldsworth v. City of Glasgow Bank, 5 Ap. Cas. 317 ; 42 L. T. 
 
 194; 28 W. E. 677 - - - 95, 96, 219, 276, 277 
 
 Houston V. Eobertson, 6 Taunt. 448 - - - - 206 
 
 Hovil V. Pack, 7 East, 164- - - - .-48 
 
 Howard v. BaiUie, 2 H. Bl. 628 - - - 55, 60 
 
 Howard v. Chapman, 4 C. & P. 508 - - - 90, 92 
 
 Howard v. Patent Ivory Co., 38 C. D. 156; 57 L. J. Ch. 878; 
 
 59 L. T. 395; 36 W. E. 801 - - - - - 37 
 
 Howard v. Sheward, L. E. 2 C. P. 148 ; 36 L. J. C. P. 42 ; 12 
 
 Jur. N. S. 1015 63 
 
 Howard v. Tucker, 1 B. & Ad. 712 - - - - 173 
 
 Hudson V. Granger, 5 B. & Aid. 27 - - - 215, 227 
 
 Hugh V. Abergavenny, 23 W. E. 40 - - - - 6 
 
 Humble v. Hiinter, 12 Q. B. 310 ; 17 L. J. Q. B. 350 - 227, 316 
 Hunt V. Wimbledon Local Board, 3 C. P. D. 208 ; 4 C. P. D. 
 
 48; 48 L.J. C. P. 207; 39 L. T. 35; 27 W.E. 123 - 26,27 
 
 Hunter v. Parker, 7 M. & W. 322 - - - - 30 
 
 Hurst V. Holding, 3 Taunt. 31 - - - - - 167 
 
 Hutchinson v. Tatham, L. E. 8 C. P. 482 ; 42 L. J. 0. P. 260 ; 
 
 29L. T. 103; 22 W. E. 18 293 
 
 Hutton V. Bragg, 7 Taunt. 15 182 
 
 Hutton V. Bullock, L. E. 8 Q. B. 331 ; 30 L. T. 648 ; 22 W. E. 
 
 956 - - - - - - - 269, 318 
 
 Imperial Bank of London v, St. Catherine Dock Co., 5 Ch. D. 
 
 195 ; 40 L. J. Ch. 355 ; 36 L. T. 233 . _ . 189 
 
 Inchball V. Western Neilghcrry Bail. Co., 17 C. B. N. S. 733; 
 
 34 L. J. C. P. 15 ; 10 Jur. N. S. 1129 - 
 International Contract Co., Pickering's Claim, 6 Ch. 525 
 lona, The, L. E. 1 P. C. 426 ; 4 Moore, P. C. N. S. 336 ; 
 
 L. T. 158 
 
 Ireland v. Livingstone, L. E. 5 H. of L. 395 ; 4 1 L. J. Q. 
 
 201 ; 27 L. T. 79 - - - - 4, 55, 
 
 Irvine v. Union Bank of Australia, 2 Ap. Cas. 366 ; 46 L. 
 
 P. C. 87 ; 37 L. T. 176 ; 25 W. E. 682 
 
 - 
 
 159 
 
 - 
 
 270 
 
 16 
 
 
 - 
 
 281 
 
 B. 
 
 
 91, 
 
 119 
 
 J. 
 
 
 42 
 
 1,47
 
 TABLE OF CASES. Xxiii 
 
 TAGB 
 
 Ii-vino V. Watson, 5 Q. B. D. 414 ; 49 L. J. 531 ; 42 L. T. 
 
 810 - - - - 2G1, 262, 2Go, 26G, 267, 268 
 
 Ivoson V. Conniugton, 1 B. & C. 160; 2 D. & E. 307 - - 284 
 
 Jacobs V. La Tom-, 5 Bing. 130 ; 2 M. & P. 201 - - - 183 
 
 Jackson v. Jacob, 5 Scott, 79 ; 3 Bing. N. C. 869 ; 3 Hodges, 
 
 219 - - - - - - - - 90 
 
 James v. Griffin, 2 M. & W. 621 - - - - - 190 
 
 Jeffrey v. Crawford, 7 Times, 618 - - - - 160 
 
 Jeffries V. Great Western Ey., 5 E. & Bl. 802 ; 25 L. J. Q. B. 
 
 107 ; 2 Jul-. N. S. 250 - - - - - - 320 
 
 Jeyes v. Jeyes, 45 L. J. Cb. 245 ; 34 L. T. 167 - - 206 
 
 Jobns V. Simmons, 2 Q. B. 425 - - - _ _ 97 
 
 Johnson v. CrecHt Lyonnais, 3 C. P. D. 32 ; 47 L. J. C. P. 241 : 
 
 37 L. T. 657 ; 26 W. E. 195 - - - 243, 246 
 
 Johnson v. Usborne, 3 P. & D. 236 ; 11 Ad. & El. 549 - - 92 
 Johnston V. Kershaw, L. E. 2 Ex. 82; 36 L. J. Ex. 44; 15 
 
 L. T. 485; 15 W. E. 354 - - - - 91, 116 
 
 Jones, Ex parte, In re Jones, 18 C. D. 109; 50 J. Ch. 673; 45 
 
 L. T. 193 ; 29 W. E. 747 - - - - - 8 
 
 Jones V. Bii'd, 5 B. & Aid. 837 ; 1 D. & E. 497 - - 322 
 
 Jones V. Hope, 3 Times, 247 - - - - 35, 286 
 
 Jones V. Littledale, 6 Ad. & El. 486 ; 1 N. & P. 677 - - 291 
 
 Jones V. Peppercorn, 28 L. J. Ch. 158; Johns. 430; 5 Jiir. 
 
 N. S. 140 180 
 
 Jones V. PhUHps, L. E. 3 Q. B. 567; 18 L. T. 655; 16 W. E. 
 
 1018 ; 9 B. & S. 761 - - - - - 50 
 
 Josephs V. Pebrer, 1 C. & P. 341 ; 3 B. & C. 639 - - - 168 
 
 Kaltenbach v. Lewis, 10 Ap. Cas. 617 ; 55 L. J. Ch. 58 - 61, 109, 
 
 219, 237, 244, 251, 254 
 
 Karnack (The), L. E. 2 C. P. 505 ; 38 L. J. Ad. 57; 21 L. T. 
 
 159; 17 AV. E. 1028; 6 Moo. P. C. N. S. 136 
 Keay v. Eenwick, 1 C. P. D. 745 - - - 
 
 Keech v. Sandford, W. & T. L. C. in Eq. 
 Kelner v. Baxter, L. E. 2 C. P. 174 ; 36 L. J. C. 
 
 Jru-. N. S. 1016 ; 15 L. T. 313; 15 W. E. 278 - 
 Kemp )'. Talk, 7 Ap. Cas. 573 ; 52 L. J. Ch. 167 
 
 454; 31 W. E. 125 ; 5 Asp. 1 - 
 Kendal v. HamHton, 4 Ap. Cas. 504 ; 48 L. J. C. P. 705 ; 41 
 
 L. T. 418 ; 28 W. E. 97 - - - 18, 53, 263, 312 
 
 - 
 
 - 
 
 98 
 
 - 
 
 - 
 
 16 
 
 - 
 
 - 
 
 139 
 
 p. 94; 
 
 12 
 
 
 - 
 
 36, 
 
 289 
 
 ; 47 L 
 
 T. 
 
 
 - 
 
 - 
 
 190
 
 XXIV TABLE OF CASES. 
 
 PAGK 
 Kensington, Ex parte, 1 Deac. 58 - - - - 181 
 
 Kidd V. Hore, 2 Times, 141 - - - - - 133 
 
 Kieran v. Sandars, 6 Ad. & El. 515 ; 1 N. & P. 625 - - 148 
 
 Kilgoui- V. Finlyson, 1 H. Bl. 156 - - - - - 60 
 
 Kimber v. Barber, 8 Ch. 56; 27 L. T. 526; 21 W. E. 65 - 128 
 
 King V. Beeston, 3 T. E. 592 - - - - - 19 
 
 King V. Corp. of Bedford, 6 East, 56 - - - - 206 
 
 King V. Eossett, 2 Younge & Jervis, 33 - - - - 148 
 
 Kingsford v. Merry, 1 H. & N. 503 ; 3 Jur. N. S. 68 ; 26 L. J. 
 
 Ex. 83 - - - - 237, Add. p. xxxviii 
 
 Kinlocb v. Craig, 4 Bro. P. C. 47 ; 3 T. E. 119, 783 - - 190 
 
 Ku-k V. Evans, 6 Times, 9 - - - - - 170 
 
 Kii-kbam v, Peele, 43 L. T. 171 ; affirm. 44 L. T. 195 - 120, 140 
 Knatcbbull v. HaUett, 13 C. D. 696; 49 L. J. Cli. 415; 42 
 
 L. T. 421 - - - - - -140,253 
 
 Knight V. Lee, (1893) 1 Q. B. 41 - - - - 179 
 
 Knowles v. Luce, Moore Eeports, by Palmer, 109 - - - 206 
 KuUberg, Ee, 12 W. E. 137 217 
 
 Ladywell Mining Co. v. Brookes, 35 C. D. 400 ; 56 L. J. Cb. 
 
 684 ; 56 L. T. 677 ; 55 W. E. 785 - - - - 144 
 
 Lamb v. Attenborougb, 1 B. & S. 831 ; 31 L. J. Q. B. 41 ; 8 
 
 Jur. N. S. 280 - - - - - - - 239 
 
 Lane v. Cotton, 1 Ld. Eaym. 646; 72 Mod. Eep. 488 307, 322 
 
 Langden v. Hugbes, 1 M. & S. 593 - - - - 176 
 
 Lanyon v. Blancbard, 2 Camp. 597 - - - - 191 
 
 Lara v. HHl, 15 C. B. N. S. 45- - - - - 170 
 
 Lawrence v. Fletcber, 12 C. D. 858 ; 27 W. E. 937 - - 187 
 
 Lawi-ie V. Lees, 7 Ap. Cas. 19; 51 L. J. Cb. 209; 40 L. T. 
 
 210 ; 30 W. E. 185 - - - - - - 292 
 
 Leader v. Moxon, 2 H. Bl. 924 - - - - - 322 
 
 Lcadbitter v. Farrow, 5 M. & S. 345 - - - - 270 
 
 Learoydi'. Bracken, 10 Times, 61; (1894) 1 Q. B. 114; 69 
 
 L. t. 068 _-_---- 1G8 
 
 Leo V. Bullen, 27 L. J. Q. B. 161 ; 4 Jur. N. S. 557 ; 8 Ell. & 
 
 Bl. 692 - - - - - - - 211 
 
 Leo V. Vescy, 1 H. & N. 90 - - - - - 19 
 
 Leeds Banking Co., In ro, 1 Ch. 501; 30 L. J. Cb. 42; 14 
 
 L. T. 747 ; 14 W. E. 883, 942 - - - - 111 
 
 Lees V. Nuttall, 1 E. & M. 53 - - - . 126, 142 
 
 Lcoso V. Martin, L. E. 17 Eq. 224 ; 43 L. J. Cb. 193 ; 29 L. T. 
 
 742 ; 22 W. E. 230 - - - - - - 185
 
 TABLE OF CASES. XXV 
 
 PAGE 
 
 Lefevre v. Lloyd, 5 Taunt. 7-19; 1 Marsh. 318 - - - ;300 
 
 Legg V. Evans, G M. & W. 30 ; 8 D. P. C. 177 ; 4 Jur. 197 - 320 
 Lewellin v. Mackworth, 2 Eq. Cas. Abr. 579 - _ _ ] 5,3 
 
 Lewis V. Eead, 13 M. & W. 854 ; 14 L. J. Ex. 295 - - 37 
 
 Levy V. Barnard, 8 Taunt. 149 - - - - - 184 
 
 Levy V. Yates, 8 Ad. & E. 129 - - - - 168 
 
 Lienard v. Dressier, 3 F. & F. 212 - - - - 183 
 
 Lilly V. Doubleday, 7 Q. B. I). 510; 51 L. J. Q. B. 310 ; 44 
 
 L. T. 814; 46 J. P. 708 - - - - 119,133 
 
 Lilly ('. Snales, 1 Q. B. 456 ; 40 W. E. 544 - - - 287 
 
 Limpus V. London Gen. Omnibus Co., 1 IL & C. 526 - - 280 
 
 Lindus v. Bradwell, 5 C. B. 583; 17 L. J. C. P. 121 ; 12 Jur. 
 
 230 - - - - - - - - 113 
 
 Lindus v. Mebose, 3 H. & N. 177 ; 27 L. J. Ex. 326 ; 4 Jur. 
 
 N. S. 488 - - - - - - - 114 
 
 Lister v. Stubbs, 45 C. D. 1 ; 59 L. J. Ch. 570 ; 63 L. T. 75 ; 
 
 38 W. E. 548 - - - - - 254, 256 
 
 Litt V. Cowley, 7 Taunt. 169 - - - - - 189 
 
 Little V. Newton, 2 Scott, N. E. 509 ; 1 M. & Gr. 976 - - 108 
 Lockwood V. Levick, 8 C. B. N. S. 603 - - - 165 
 
 Lofts V. Bourke, 1 Times, 58 - - - - - 160 
 
 London Cbartered Bank of Australia v. Wbite, 4 Ap. Cas. 
 
 113 - -- - - - - - - 185 
 
 London Dock Co. v. Sinnott, 8 E. & B. 347 ; 27 L. J. Q, B. 
 
 1129; 4 Jur. N. S. 70 - - - - - - 29 
 
 London Joint Stock Bank v. Simmons, (1892) Ap. Cas. 201 • 61 
 
 L. J. Ch. 723 ; 66 L. T. 625 ; 41 W. E. 108 ; 56 J. P. 644 - 80, 
 
 234, 236 
 Lonsdale v. Chiu-ch, 3 Bro. C. C. 40 - - - - 139 
 
 Loring v. Davis, 32 Ch. D. 625 ; 55 L. J. Ch. 725 ; 54 L. T. 
 
 899 ; 34 W. E. 701 - - - - _ _ 58 
 
 Lott r. Outhwaite, 10 Times, 7G - - - - 169 
 
 Lowe V. London & N. W. Ey., 7 Eail. Cas. 524 ; 18 Q. B. 632 • 
 
 21 L. J. Q. B. 361; 17 Jur. 375- - - . _ 28 
 
 Ludgater v. Love, 44 L. T. 694 ; 45 J. P. 600 - - - 222 
 
 Ludlow V. Mayor of Charlton, 6 M. & W. 815 ; 8 C. & P. 
 
 242 ; 4 Jur. 657 - - - - - - 24, 25 
 
 Lumley v. Nicholson, 34 ^Y. E. 716 - - - - 163 
 
 Lyell V. Kennedy, 14 Ap. Cas. 437 ; 59 L. J. Q. B. 268 • 62 
 
 L. T. 77 ; 38 W. E. 353 - - - - - - 50 
 
 Maans v. Henderson, 1 East, 334 - - 191, 238, 262 
 
 Macbeath v. Haldimand, 1 T. E. 172 - . - - - 321
 
 XXVI TABLE OF CASES. 
 
 PAGE 
 
 MacCombie v. Davies, 7 East, 5 - - - 61, 79, 232 
 
 Macdonald v. Macdonald, Hume's Collection of Cases - - 106 
 Mace V. Cadell, Cowper, 232 - - - - - 216 
 
 MacEntire v. Potter, 22 Q. B. D. 438; 60 L. T. 600; 37 W. E. 607- 307 
 MacEwan v. Smith, 2 H. of L. 309 ; 13 Jur. 265 - - 249 
 
 MacGowan v. Dyer, L. E. 8 Q. B. 141 ; 21 W. E. 560 - - 273 
 Mackay v. Comm.ercial Bank of New Brunswick, L. E. 5 P. C. 
 
 394; 43 L. J. P. C. 31 ; 30 L. T. 180; 22 W. E. 473 - 96 
 
 Mackenzie v. British Linen Co., 6 Ap. Cas. 82; 44 L. T. 431; 
 
 29 W. E. 477 - - - - - 44, 45, 68 
 
 Mackersy v. Eamsays, 9 C. & F. 818 - - - - 106 
 
 Maclean v. Dunn, 4 Bing. 722; 1 M. & P. 761 - - - 43 
 
 MacMuUan v. Helby, L. E. Ir. 6 Q. B. D. 463 - - 84 
 
 MacVickar v. MacGregor, Hume's Collection of Cases - - 107 
 Madden v. Kemj^ster, 1 Camp. 22 - - - - 182 
 
 Mahony v. Kokule, 14 C. B. 390 ; 23 L. J. C. P. 54 ; 18 Jiu-. 313 298 
 Makepiece v. Eogers, 4 De G-. J. & S. 649; 34 L. J. Cli. 396 - 148, 149 
 Malcolm v. Scott, 5 Esp. 601 - - - - - 306 
 
 Mallough V. Barber, 4 Camp. 150 - - - - 120, 153 
 
 Man V. Sliifner, 2 East, 522 - - - - - 191 
 
 Mann v. Forrester, 4 Camp, 60 - - - - - 178 
 
 Manning-ford v. Toleman, 1 Col. 670 - - - - 185 
 
 Marder v. Lee, 3 Bur. 1469 - - - - - 215 
 
 Marsh v. Jelf, 3 F. & F. 234 85 
 
 Martin v. Gale, 4 C. D. 431 ; 46 L. J. Ch. 84 ; 36 L. T. 357 ; 25 
 
 AV. E. 406 - - - - - - - 7 
 
 Martin v. Tucker, 1 Times, 655 _ - _ 158, 169 
 
 Marzetti v. WiUiams, 1 B. & Ad. 427 - - - - 135 
 
 Mason v. Clifton, 3 F. & F. 899 - - - - 158 
 
 Maspons v. Mildred. See Mildred v. Maspons. 
 
 Massey v. Banner, IJ. & W. 241 - - - - - 129 
 
 Masscy v Davios, 2 Ves. jun. 317 _ _ - - 127 
 
 Mathews v. Haydon, 2 Esp. 510 - - - - 258, 272 
 
 Maydcw V. Forrester, 5 Taunt. 615 - - - - 120 
 
 Meek v. Wcndt, 21 Q. B. D. 126; 59 L. T. 558 - - - 289 
 
 Melhado /'. Porto Alegree Eail. Co., L. E. 9 C. P. 503 ; 43 L. J. 
 
 C. P. 253 ; 31 L. T. 57 ; 23 W. E. 57- - - - 37 
 
 Merchant Banking Co. v. Phoenix Bessemer Steel Co., 5 C. D. 
 
 205 ; 46 L. J. Ch. 418 ; 36 L. T. 395; 25 W. E. 457 - - 240 
 Motfiilfo V. Clough, 2 M. & Ey. 178 - - - - 197 
 
 Metropolitan Bank v. Heiron, L. E. 5 Ex. Div. 319 ; 43 L. T. 
 
 676 ; 29 W. E. 370 - - - - - - 254 
 
 Mow8 V. Carr, 1 H. & N. 4 84 ; 26 L. J. Ex. 29 - - 83
 
 TABLE OF CASES. XXVU 
 
 PAGE 
 
 Moyerstoin v. Eastern Agency Co., 1 Times, 59a - - - lOG 
 
 Mildred v. Maspons, 8 Ap. Cas. 885 ; 53 L. J. Q. B. 33 ; 32 
 
 W. R. 125 - - - - - 235, 237, 2-12 
 
 MiU V. Hawker, L. E. 1 Ex. 92 ; 44 L. J. Ex. 49 ; 33 L. T. 177; 
 
 24 W. E. 348 - - - - - - - 308 
 
 Miller v. Aris, 3 Esp. 230 - - - - - 303 
 
 Minnett v. Forrester, 4 Taunt. 541 - - - 210, 211 
 
 Mitcliel V. Eeynolds, Smith's Leading Cases, 9tb. ed. vol. 1, 
 
 430; 1 P. Wms. 181 _ - . _ _ 108 
 
 Mogul SS. Co. V. MacGregor, (1892) Ap. Cas. 25; Gl L. J. Q. B. 
 
 295; 66 L. T. 1; 40 W. E. 337; 56 J. P. 101 - - - 255 
 
 MoUer v. Young, 5 El. & Bl. 755 ; 25 L. J. Q. B. 94 ; 2 Jur. 
 
 N. S. 393 - - - - - - - 300 
 
 Mollett V. Eobinson. See Eobinson v. MoUett. 
 
 Moneypenny v. Hartland, 1 C. & P. 352 - - - - 121 
 
 Monk V. Wliittenbuiy, 2 B. & Ad. 484 ; 1 M. & Eob. 81 - 240 
 
 Montagu v. Forwood, (1893) 2 Q. B. 350; 9 Times, 634; 69 
 
 L. T. 371 ; 42 W. E. 124 ; W. N. (1893) 111 - - - 233 
 
 Montaignac v. Shittan, 15 Ap. Cas. 357 - - - 64 
 
 Montgomery v. United Kingdom Mutual SS. Association, 
 
 (1891) 1 Q. B. 370; 60 L. J. Q. B. 429; 64 L. T. 323; 39 
 
 W. E. 351 - - - - - 269, 270, 271 
 
 Moore v. Morgue, Cowper, 479- - - - 126, 136 
 
 Morrison v. Thompson, L. E. 9 Q. B. 486; 43 L. J. Q. B. 215; 
 
 30 L. T. 869 ; 22 W. E. 859 - - - -125,139 
 
 Mortlock V. BuUer, 10 Yes. 291 - _ _ _ 24 
 
 Moulton V. Camroux, 4 Ex. 17- - - --8 
 
 Moxon V. Bright, 4 Ch. 292 - - - - - 149 
 
 Muii' V. Fleming, D. & E. N. P. C. 29 - - - - 182 
 
 Mullan V. M'Donagh, Q.C., 5 Ii'. Jiu\ N. S. 101 ; 2 L. T. N. S. 
 
 136 - - - - - - - - 137 
 
 Murphy v. O'Shea, 2 J. & Lat. 422 - - - - 145 
 
 Mui-ray v. Currie, L. E. 6 C. P. 24 ; 40 L. J. C. P. 26 ; 23 L. T. 
 
 557; 19 W. E. 104 - - - - - - 278 
 
 Murray v. East India Co., 5 B. & Aid. 201 - - - 60 
 
 Murray v. Pinkett, 12 C. & F. 764 - - - - 185 
 
 Mynn v. Joliffe, 1 M. & Eob. 326 - - - d6, 90 
 
 National Coffee Palace Co., In re, 24 Ch. D. 367 ; 53 L. J. Ch. 
 
 57 ; 50 L. T. 38 ; 32 W. E. 236 - - - - - 288 
 
 Naylor v. Mangles, 1 Esp. 109 - - - - - 180 
 
 Nelson (The) r. Aldridgo, 2 St. 435 - - . _ 86 
 
 New Zealand Land Co. v. AVatson, 7 Q. B. D. 371; 50 L. J. 
 
 Q. B. 433; 44 L. T. 675; 29 W. E. 694 - 107, 142, 219, 227
 
 XXVUl TABLE OF CASES. 
 
 PAGE 
 
 Newall V. Tomlinson, L. E. 6 C. P. 405 ; 25 L. T. 382 - - 304 
 Newington Local Board v. Eklridge, 12 C. D. 349 - - 186 
 
 Nicholson v. Bradfield Union, L. E. 1 Q. B. 620 ; 35 L. J. Q. B. 
 
 176; 14L. T. 830; 14AV. E. 731 - - _ _ 2S 
 
 Nicliolson V. Mounsey, 15 East, 384 - - - 308, 323 
 
 Nickalls v. Merry, L. E. 7 H. of L. 530; 45 L. J. Cli. 575; 32 
 
 L. T. 623 ; 23 W. E. 663 - - - _ - 58 
 
 Noah V. Owen, 2 Times, 364 - - - - -193 
 
 Norfolk (Duke of) v. Woxthj, 1 Camp. 337 - - 228, 301 
 
 Northern Counties Insurance Co. v. Whipp, 26 C. D. 482 ; 53 
 
 L. J. Ch. 629 ; 51 L. T. 80G; 32 W. E. 626 - - - 237 
 
 Northey r. Field, 2 Esp. 613 - - - - - 189 
 
 Northumberland Avenue Hotel, Ee, 33 C. D. 16 ; 54 L. T. 76, 
 
 777 - - - - - - - - 37 
 
 Norton v. Herron, 1 C. & P. 648 ; E. & M. 229 - - - 298 
 
 Oom V. Bruce, 12 East, 224 - - - - - 319 
 
 Oriental Bank Corp., Ee, In re GuiUeniin, 28 C. D. 643; 54 
 
 L. J. Ch. 322 ; 52 L. T. 167 - - - - 193, 208 
 
 Osborne v. Williams, 18 Yes. 379 - - - - 151 
 Overend and Gurney v. Gibbs, L. E. 5 H. of L, 480 ; 42 L. J.- 
 
 Ch. 67 - - - - - - - 120, 136 
 
 Overton V. Hewitt, 3 Times, 246 - - - - 290 
 
 Paice V. Walker, L. E. 5 Ex. 173; 39 L. J. Ex. 109; 22 L. T. 
 
 547 ; 18 W. E. 789 - - - 116, 117, 294, 295, 297 
 
 Palliser v. Gurnev, 19 Q. B. D. 519; 56 L. J. Q. B. 546; 35 
 
 W. E. 760 ; 51 J. P. 520 - - - - - 9 
 
 Panama and South Pacific, &c. Co. v. Indiarubber, &c. Co., 10 
 
 Ch. 515 ; 45 L. J. Ch. 121 ; 32 L. T. 517 ; 23 W. E. 583 - 3, 
 
 11, 256, 319 
 
 Pape V. Westacott, 10 Times, 51 ; (1894) 1 Q. B. 272; 63 L. J. 
 
 U. B. 222; 70 L. T. 18 - - - - 76, 136, 230 
 
 Pappa V. Eose, L. E. 7 C. P. 32 ; 41 L. J. C. P. 187 ; 27 L. T. 
 
 348; 20 W. E. 784 - - - - - -154 
 
 Park V. Hammond, 6 Taunt. 495 - - - - 120, 136 
 
 Parker v. Beasley, 2 M. & S. 422 - - - - 211 
 
 Parker V. Kctt, 1 Ld. Eaym. 658 - - - - - 110 
 
 Parker v. Smith, 16 East, 382 - - - - - 209 
 
 Partington v. Hawthorne, 53 L. J. C. P. ISO ; 10 L. T. 34 ; 12 
 
 W.E. 553; 52 J. P. 807 - - - - -312 
 
 Parton /-. Crofts, 16 C. B. N. S. 1 1 - - - - 87 
 
 Putcr.son v, Tash, 2 .Strange, 117'S - - - - 232 
 
 Patten v. Thompson, 5 M. & S. 350 - - - - 320
 
 TABLE OF CASES. XXIX 
 
 PAGE 
 
 Patterson v. Gandascqui, 15 East, 62 - - - - 262 
 
 Pattisou V. Mills, 2 Bl. N. S. 519 ; 1 Dow. & C. 342 - - 67 
 
 Payne v. Leconfield, 51 L. J. Q. B. 642 - - - _ 82 
 
 Peacock r. Freeman, 4 Times, 541 _ _ _ KJo, 170 
 
 Pearson v. Scott, 9 Ch. D. 198 ; 47 L. J. Cli. 705 ; 38 L. T. 747 ; 
 26 W. E. 796 . _ - - _ 76, 226 
 
 Peirce v. Corfe, L. E. 9 Q. B. 210 ; 43 L. J. Q. B. 52 ; 29 L. T. 
 
 219 ; 22 W. E. 299 - - - - - - 164 
 
 Perring v. Eebutter, 2 M. & Eob. 429 - - - - 137 
 
 Perry v. Barnett, 15 Q. B. D. 388; 54 L. J. Q. B. 466; 53 L. T. 
 
 585 - - - - - - 58, 175, 196 
 
 Peruvian Eail. Co. v. Thames and Mersey Marine Insurance 
 
 Co., 2 Ch. 617 ; 36 L. J. Cli. 86 ; 16 L. T. 644 ; 15 W. E. 1002 6 
 PliiUips V. Huth, 6 M. & W. 572 - - - - 244 
 
 Pickard v. Sears, 6 A. & E. 469 ; 2 N. & P. 488 - 68, 229, 261 
 Pickering v. Busk, 15 East, 38 - - - 67, 228, 220 
 
 Pike V. Ongley, 18 Q. B. D. 708 ; 56 L. J. Q. B. 373 ; 35 W. E. 
 
 534 - - - - - - - - 293 
 
 Pilot V. Crase, 52 J. P. 311 - - - - 14, 65 
 
 Pink V. Scudamore, 5 C. & P. 71 - - - - - 290 
 
 Pit V. Cholmondeley, 2 Yes. sen. 566 - - - - 151 
 
 Piatt V. Depree, 9 Times, 194 - - - - 168, 212 
 
 PolliiU V. Walter, 3 B. & Ad. 114 - - - - 284 
 
 Pontida, The, 9 P. D. 177 ; 53 L. J. P. 78; 33 W. E. 38 - - 99 
 Portalis v. Tetley, 5 Eq. 140 ; 37 L. J. Ch. 137 ; 17 L. T. 344; 
 
 16 W. E. 503 - - - - - - 240 
 
 Pott I'. Tui-ner, 6 Bing. 702 ; 4 M. & P. 551 - _ _ 86 
 
 Poulton V. L. & S. W. Eailway, L. E. 2 Q. B. 534 ; 30 L. J. 
 
 Q. B. 294; 17L. T. 11; 8B. &S. 616 - - - 71 
 
 Power V. Butcher, 10 B. & C. 329 ; e M. & E. 327 - - 298, 304 
 
 Precious v. Able, 1 Esp. 350 - - - _ _ 259 
 
 Prestwich v. Poley, 18 C. B. N. S. 806 - - - - 102 
 
 Prickett v. Badger, 1 C. B. N. S. 296 - - - - 161 
 
 Priestley v. Fernie, 3 H. & C. 977 ; 34 L. J. Ex. 173 - 2G3, 264 
 
 Prince v. Clark, 1 B. & C. 186 ; 2 D. & E. 266 - - 38 
 
 Proudfoot r.Montefiore, L. E. 2 Q. B. 511; 36 L. J. Q. B. 225- 
 
 16 L. T. 585 ; 15 W. E. 920 ; 8 B. & S. 510 - - 129, 219 
 
 Provincial Insurance Co. of Canada v. Le Due, L. E. 6 P. C. 
 
 224; 43 L. J. P. C. 49; 31 L. T. 142; 22 W. E. 929 - 316 
 
 Ealeigh v. Atkinson, 6 M. & W. 670 - - - - 198 
 
 Eamsden r. Dyson, L. E. 1 II. of L. 129; 12 Jur. N. S. 500- 
 14 W. E. 926 ------ 68
 
 XXX TABLE OF CASES. 
 
 PAGE 
 
 Eandal v. Trirnen, 18 C. B. 786 ; 45 L. J. C. P. 307 - - 284 
 
 Eayner v. Grote, 15 M. & W. 359; 16 L. J. Ex. 79 - 315, 316 
 Eead v. Anderson, 13 Q. B. D. 779 ; 53 L. J. Q. B. 532 ; 51 L. T. 
 
 55; 32 W. E. 950; 49 J. P. 4 - - - 176, 179, 195 
 
 Eead v. Eann, 10 B. & C. 438 167 
 
 Eedpati v. Wigg, L. E. 1 Ex. 335 ; 35 L. J. Ex. 211 ; 12 Jiu\ 
 
 N. S. 903; 11 L. T. 704; 14 W. E. 806- - - - 316 
 
 Eeg. V. Buchanan, 8 Q. B. 883; 15 L. J. Q. B. 227; 10 Jui\ 
 
 736 - - - - - - - - 12 
 
 Eeg. V. Buckmaster, 20 Q. B. D. 182; 57 L. J. M. C. 22; 57 L. T. 
 
 716 ; 36 W. E. 160 ; 52 J. P. 120 ; 12 Cox, C. C. 339 - xxxviii 
 Eeg. V, Justices of Kent, L. E. 8 Q. B. 305 ; 42 L. J. N. S. 
 
 M. C. 112 - - - - - - - 31 
 
 Eeg. V. Liclifield, 10 Q. B. 534; 11 Jur. 888; 16 L. J. Q. B. 
 
 333 - - - - - - - - 103 
 
 Eeid V. Explosives Co., 19 Q. B. D. 264; 56 L. J. Q. B. 388; 
 
 57 L. T. 439 ; 35 W. E. 509 - - - - - 204 
 
 Eenshaw's Trusts, Ee, 4 Ch. 783 - - - - 216 
 
 Eeynell v. Lewis, 15 M. & W. 517 - - - - 14 
 
 Eeynolds, Ex parte, In re Barnett, 15 Q. B. D. 169 ; 54 L. J. 
 
 Q. B. 354 ; 53 L. T. 448 ; 2 Morrell, 122 - - 217, 294 
 
 Eeynolds v. Smitli. See Smitli v. Eeynolds. 
 Eliodes V. Forwood, 1 Ap. Cas. 256 ; 47 L. J. Ex. 396 ; 34 L. T. 
 
 890 - - - - - - 201, 202, 203 
 
 Eice V. Chute, 1 East, 578 _ . - . - 322 
 
 Eichardson v. Anderson, 1 Camp. 42, n. - - - 56 
 
 Eichardson v. Peto, 1 M. & Gr. 896; 9 D. P. C. 73 - - 101 
 
 Eicliardson v. WiUiamson, L. E. 6 Q. B. 276 ; 40 L. J. Q. B. 
 
 145 - - - - - - - - 288 
 
 Eiding V. Smitli, L. E. 1 Ex. D. 91 ; 45 L. J. Ex. 281 ; 24 W. E. 
 
 487 - - - - - - - - 255 
 
 Eight V. Cuthel, 5 East, 491 - - - - - 50 
 
 Eiley v. Home, 5 Bing. 217 - - - - - 121 
 
 Eobinson v. Mollctt, L. E. 7 n. of L. 802 ; 44 L. J. C. P. 362 ; 
 
 33 L. T. 544 - - - - - 2, 11, 57, 59, 315 
 
 Eobinson v. Euttcr, 4 El. & Bl. 954 ; 24 L. J. Q. B. 250 ; 1 Jm-. 
 
 N. S. 823 - - - ■■ - 2, 82, 184, 320 
 
 Eoe V. Pridcaux, 10 East, 158- - - - -118 
 
 Eogers v. Boehm, 2 Esp. 702 - - - - 126, 1-38 
 
 Eooth V. Wilson, 1 B. & Aid. 59 - - - - 320 
 
 Eosovear v. Cliina Clay Co., 11 C. D. 569 ; 48 L. J. Bk. 100 ; 40 
 
 L. T. 730; 27 W. E. 591 - - - - - 189 
 
 Eothschild V. Brookman, 5 Bligh, N. S. 192 - - - 127 
 
 Euinhall V. ISIotropolitan P.ank, 2 Q. B. D. 194 ; 40 L. J. Q. B. 
 
 340; 36 L. T. 240; 25 W. E. 306 - - - - 186
 
 TABLE OF CASES. XXXI 
 
 PAGE 
 
 Eurnsey v. King, 33 L. T. 728 - - - - - 100 
 
 Russell V. Langloy, 4 B. & Aid. 395 - - 71, 75, 78 
 
 Eussell V. Hankey, 6 Term Eep. 12 - - - 59, 125 
 
 Sadler v. Evans, 4 Bur. 1986 - - - - 302, 306 
 
 Sadler v. Leigh, 4 Camp. 195 - - - -227, 318 
 
 Saffron Walden Benefit Soc. v. Eayner, 14 C. D. 406; 49 L. 
 
 J. Ch. 465 ; 43 L. T. 3 ; 18 W. E. 681 - - - 102 
 
 Saint Margaret's Burial Board v. Thompson, L. E. 6 C. P. 
 
 457; 40 L. J. C. P. 213; 24 L. T. 673; 19 W. E. 892 - -110 
 Salford V. Lever, (1891) 1 Q. B. 168 ; 60 L. J. Q. B. 39; 63 L. 
 
 T. 658 ; 39 W. E. 85; 55 J. P. 244 - - - 256, 257 
 
 Salomons r. Pender, 3 H. & C. 639; 34 L. J. Ex. 95; 11 Jur. 
 
 N. S. 432 ; 12 L. T. 267 ; 13 W. E. 637 - 
 Saltc V. Field, 6 Term Eep. 211 
 
 Sara (The), 14 Ap. Cas. 209. See Ilamilton v. Baker. 
 Sanderson v. Griffith, 5 B. & C. 909 ; 8 D. & E. 043 - 
 Sargent v. Morris, 3 B. & Aid. 277 
 
 Scarfe v. Morgan, 4 M. & W. 270 ; 1 H. & N. 292 ; 2 Jur. 
 Schamaling v. Thomlinson, 1 Marsh. 500; 6 Taunt. 147 - 
 Schmaltz v. Avery, 16 Q. B. 655 ; 20 L. J. Q. B. 228 ; 15 Jm: 
 
 291- - - - - - - - 314 
 
 Scott V. Irving, 1 B. & Ad. 605 - - - _ 7:3, 75 
 
 Scott V. Morley, 20 Q. B. D. 120 ; 57 L. J. Q. B. 43 ; 57 L. T. 
 
 919; 36 W.E. 67; 52 J. P. 230 - - - _ 9 
 
 Scott V. Newington, 1 M. & Eob. 252 - - - - 183 
 
 Scrace v. Whittington, 2 B. & C. 11 ; 3 D. & E. 195 - 
 Seller v. Work, Marshall on Insurance, 4th ed. p. 243 
 Semenza v. Brinsley, 18 C. B. N. S. 467 ; 34 L. J. C. P. 161 
 
 Jur. N. S. 409 ; 12 L. T. 265 ; 13 W. E. 634 
 Sentanco v. Hawley, 13 C. B. N. S. 458 ; 7 L. T. 745 
 Seton V. Slade, 7 Ves. 264 - 
 
 Seymoui' v. Bridge, 14 Q. B. D. 460 ; 54 L. J. Q. B. 347 
 SejTuour v. Greenwood, 4 L. T. 853 ; 9 W. E. 785 ; 7 H. 
 
 359 ; 30 L. J. Ex. 327 - - - - - - 279 
 
 Shakespeare, In re, Deakin v. Lakin, 30 C. D. 169; 55 L. J. 
 
 Ch. 44 ; 53 L. T. 145 ; 33 W. E. 744 - - 9, 10 
 
 Shand v. Grant, 15 C. B. N. S. 324 ; 9 L. T. 390 - - - 300 
 
 Sharman v. Brandt, L. E. 6 Q. B. 720 ; 40 L. J. Q. B. 312 ; 19 
 
 W. E. 936 - - - - - - 12, 315 
 
 Sharrod v. L. & N. W. Ey., 4 Ex. 580 ; 7 D. & L. 213 ; 6 Bail. 
 
 Cas. 239 ; 14 Jur. 23- - - - --8 
 
 Shaw 1'. Arden, 9 Bing. 287 - - - - -161 
 
 126, 
 
 167 
 
 - 
 
 195 
 
 _ 
 
 36 
 
 314, 
 
 317 
 
 569 
 
 184 
 
 - 
 
 107 
 
 284 
 
 300 
 
 - 
 
 137 
 
 [; 11 
 
 
 
 234 
 
 - 
 
 39 
 
 84, 
 
 201 
 
 175, 
 
 196 
 
 &N. 

 
 XXXll TABLE OF CASES. 
 
 Slieffield V. London Joint Stock Bank, 13 App. Cas. 337 ; 57 
 
 L. J. Ch. 986; 58L. T. 735; 37 W. E. 33 - 81,234,236 
 
 Shells V. Blackburn, 1 H. BL 159 - - - - 138 
 
 Sheppard v. Union Bank, 31 L. J. Ex. 154 ; 7 H. & N. 661 ; 8 
 
 Jur. N. S. 264 - - - - - - - 242 
 
 Skort V. Skipwith, 1 Brock. Cii". (American) - - _ 134 
 
 Siffkin V. Wray, 6 East, 371 - - - - - 189 
 
 Simlali (The), 15 Jur. 865 - - - - - 184 
 
 Simons v. Patchett, 7 El. & Bl. 568 - - - - 288 
 
 Simpson 1'. Lamb, 17 C. B. 603; 25 L. J. C. P. 113; 2 Jur. 
 
 N. S. 91 - - - - - - 164, 169 
 
 Simpson v. Swan, 2 Camp. 291 - - - - - 300 
 
 Sims V. Bond, 2 N. & M. 608 ; 5 B. & Ad. 389 - - 114, 226, 314 
 
 Smart v. Sandars, 5 C. B. 895 - - - - 183, 197 
 
 Smethurst v. Mitchell, 28 L. J. Q. B. 241 ; IE. & E. 623 ; 
 
 5 Jui\ N. S. 978 ; 7 W. E. 74 - - - - 268 
 
 Smith, Ex parte. In re Manning, 4 D. & C. 579 - - - 218 
 
 Smith V. Cologan, 2 T. E. 188 - - - - - 34 
 
 Smith V. Hull Glass Co., 8 C. B. 668 ; 11 C. B. 897 - - 42 
 
 Smith V. Lascelles, 2 T. E. 187 - - - - 122 
 
 Smith V. Leveaux, 2 D. J. & S. 1 ; 33 L. J. Ch. 167 - - 149 
 
 Smith V. MacGuire, 3 n. & N. 554 ; 27 L. J. Ex. 465 - - 63 
 
 Smith V. Eeynolds, 66 L. T. 808; 8 Times, 391 ; 9 Times, 494 - 176 
 Smith V. Sorby, 3 Q. B. D. 552, note - - - - 256 
 
 Smout V. Ilberry, 10 M. & W. 1 - - - 155, 204 
 
 Smyth V. Anderson, 7 C. B. 21 ; 18 L. J. C. P. 109; 13 Jui-. 
 
 211 264 
 
 Snelgrove v. EUi'ingham Colliery Co., 45 J. P. 408 - - 169 
 
 Snell, In re, 5 C. D. 815; 36 L. T. 534; 25 W. E. 736 - 103 
 
 Snowball, Ex parte, In re Douglas, 7 Ch. 534 ; 41 L. J. Bk. 49; 
 
 26 L. T. 894 ; 20 W. E. 786 - - - - - 208 
 
 Snowball v. Goodricko, 4 B. & Ad. 541 - - - - 220 
 
 Snowden v. Davis, 1 Taunt. 358 - - - - 303 
 
 South of Ii-eland Coll. Co. v. Waddle, L. E. 4 C. P. 617; 38 L. 
 
 J. C. P. 338 ; 17 W. E. 896 28 
 
 Southwell V. Bowditch, 1 C. P. D. 374 ; 45 L. T. 196 ; 24 W. E. 
 
 838 - - - - - - 110, 117, 295 
 
 Sovereign Life Assurance, Eo, 7 Times, 602 - - - 159 
 
 Spears v. Ilartlej', 3 Esp. 81 - - - - - 182 
 
 Speight V. Gaunt, 9 Ap. Cas. 1 ; 53 L. J. Ch. 419 - - - 110 
 
 Spittle V. Lavender, 2 Bro. & Bing. 452 - - - 52 
 
 Spurrier v. Eldcrton, 5 Esji. 1 - - - - - 172 
 
 Stackhouso v. Countess of Jersey, 30 L. J. Ch. 421 - - 185
 
 
 PAGE 
 
 - 
 
 63 
 
 - 
 
 272 
 
 - 
 
 132 
 
 , 66, 
 
 289 
 
 - 
 
 o3 
 
 302, 
 
 306 
 
 - 
 
 184 
 
 2bo, 
 
 319 
 
 - 
 
 73 
 
 ..J. 
 
 
 - 
 
 300 
 
 - 
 
 201 
 
 - 
 
 308 
 
 TABLE OF CASES. XXXIU 
 
 Stagg V. ElUott, 12 C. B. N. S. 373 ; 31 L. J. Ex. 200 
 
 Staples V. Alden, 2 Mod. 509 - - - - 
 
 Stearine Co. v. Hentzman, 17 0. B. N. S. 56 
 
 Steele v. Gourley, 3 Times, 772 - - - I'l, 
 
 Stephen v. Elwell, 4 M. & S. 258 - 
 
 Stephens v. Badcock, 3 B. & Ad. 354 - 
 
 Stevenson v. Blakelock, 1 M. <& Sel. 535 - 
 
 Stevenson v. Mortimer, Cowp. 805 
 
 Stewart v. Aberdein, 4 M. & W. 211 
 
 Stindt V. Eoberts, 5 D. & L. 460; 2 Bl. Eep. 212; 17 L. J. 
 
 Q. B. 166; 12 Jur. 518 - - 
 
 Stirling v. Maitland, 5 B. & S. 840 
 Stone v. Cartwright, 5 T. E. 411 
 Storey v. Ashton, L. E. 4 Q. B. 476 ; 38 L. J. Q. B. 223; 17 
 
 W. E. 727 ; 10 B. & S. 357 - - - - - 278 
 
 Strachan, In re. Ex parte Cooke. See Cooke, Ex parte. 
 Strauss v. Francis, L. E. 1 Q. B. 376 ; 35 L. J. Q. B. 133 ; 12 
 
 Jur. N. S. 486 ; 14 L. T. 326 ; 14 W. E. 634 ; 6 B. & S. 365 - 100 
 Sunderland Marine Insurance Co. v. Kearney, 16 Q. B. 925 ; 
 
 20 L. J. Q. B. 417 ; 15 Jur. 1006 - - 291, 316 
 
 Sutton, Ex parte, 2 Cox, 84 - - - - -110 
 
 Sutton V. Spectacle Makers' Co., 10 L. T. 411 ; 12 W. E. 742 - 25 
 Sutton v. Tatham, 10 A. & E. 27 - - - - 90, 91 
 
 Swanwick v. Sothern, 9 A. & E. 895 ; 1 P. & D. 648 - - 190 
 
 Sweet V. Pym, 1 East, 4- - - - --183 
 
 Sweeting v. Pearce, 7 C. B. N. S. 449 ; affirm. 9 C. B. N. S. 
 
 534 - - - - - - - 72, 76 
 
 Sweeting v. Tiu-ner, L. E. 7 Q. B. 310 ; 41 L. J. Q. B. 58 ; 25 
 
 L. T. 796; 20 W. E. 185 - - - - - 84 
 
 Swift V. Jewsbury, L. E. 9 Q. B. 301 ; 43 L. J. Q. B. 56 ; 30 
 
 L. T. 31 ; 22 W. E. 319 - - - 31, 94, 95, 221 
 
 Swift V. Winterbottam, L. E. 8 Q. B. 244, on appeal. See Swift 
 
 V. Jewsbury. 
 Sykes v. GUes, 5 M. & W. 645 - - - - 73, 83 
 
 Taplin v. Barrett, 6 Times, 30 - - - - _ 157 
 
 Tasker v. Shepherd, 5 H. & N. 575- - - - _ 192 
 
 Tatam v. Eoeve, (1893) 1 Q. B. 44; 62 L. J. Q. B. 30; 67 
 
 L. T. 683; 41 W. E. 174 ; 57 J. P. 118 ; 9 Times, 39 178, 195 
 Taylor v. Brewer, 1 M. & S. 290 - - - _ - 157 
 
 Taylor v. , 2 Lord EajTnond, 792 - - _ 272 
 
 Taylor v. Plumer, 3 M. & S. 562 ; 2 Eose, 415 - 217, 251, 254 
 
 Temperton v. EusseU, (1893) 1 Q. B. 715; W. N. (1893) 76 - 255 
 
 w. c
 
 XXXIV TABLE OF CASES. 
 
 PAGB 
 Thacker v. Hardy, 4 Q. B. D. 685 ; 48 L. J. Q. B. 289 ; 39 
 
 L. T. 595; 27 \y. E. 158- - - - - - 176 
 
 Thomas v. The Queen, L. R. 10 Q. B. 31 ; 44 L. J. Q. B. 9; 31 
 
 L. T. 439; 23 W. E. 176 321 
 
 Thompson v. Beatson, 7 Moore, 348 ; 1 Bing. 145 - - - 180 
 
 Thompson v. Gardiner, 1 0. P. D. 777 - - - 87, 88 
 
 Thompson v. Havelock, 1 Camp. 527 - 125, 139, 167, 319 
 
 Thomson v. Davenport, 9 B. & 0. 78 ; 4 M. & E. 110 - 262, 263, 
 
 264, 290, 296, 298 
 
 Thorold 1-. Smith, 11 Mod. 87 74 
 
 ThjTine v. St. Maur, 34 C. D. 465 ; 56 L. J. Ch. 733 ; 56 L. T. 
 
 145 ; 35 W. E. 273 12 
 
 Tickellv. Short, 2 Ves. sen. 239 - - - -122 
 
 Tilling V. Balmain, 8 Times, 517 - - - - - 279 
 
 Tomlinson v. Gell, 1 N. & P. 588 ; W. W. & D. 229 - - 32 
 
 Topham v. Bradick, 1 Taunt. 572 - - - - - 154 
 
 Toulmin V. Millar, 12 Ap. Cas. 746; 58 L. T. 96; 3 Times, 
 
 836 - - - - - - - 161, 164 
 
 Treves v. Townshend, 1 Brown, C. C. 384 - - - - 138 
 
 Tribe v. Taylor, 1 C. P. D. 505- - - - - 163 
 
 Tunney v. Midland Bail. Co., L. E. 1 C. P. 291 ; 12 Jur. N. S. 691 280 
 Turner V. Burkinshaw, 2 Ch. 492 - - - -138 
 
 Tui-ner v. Doane, 6 D. & L. 669; 3 Ex. 836; IS L. J. Ex. 343 - 181 
 Turner v. Goldsmith, (1891) 1 Q. B. 544 ; 60 L. J. Q. B. 247 ; 
 
 64 L. T. 301 ; 29 W. E. 547 - - - - - 203 
 
 Tui-ner v. Hockey, 56 L. J. Q. B. 301 - - - - 311 
 
 Turner v. Phillips, Peake, 122 - - - - - 137 
 
 Turquand, Ex parte, In re Parkers, 14 Q. B. D. 636 ; 54 L. J. 
 
 Q. B. 242 ; 53 L. T. 579 ; 33 W. E. 437 - - - - 217 
 
 Tyrell V. Bank of London, 10 H. of L. Cas. 39; 31 L. J. Ch. 
 
 639 ; 8 Jul-. N. S. 849 - - - - - - 130 
 
 Udall V. Athorton, 7 H. & N. 172 - - - - 222 
 Underwood v. Nicholls, 17 C. B. 239 ; 25 L. J. C. P. 75 - - 72 
 United S.S. Assoc, v. Nevill, 19 Q. B. D. 110 - - - 271 
 Unwin V. Wolseloy, 1 T. E. 674 321 
 
 Vandorsee v. Willis, 3 Bro. C. C. 21 - - - - 185 
 
 Van Wart v. Woolcy, 5 D. & E. 374 ; 3 B. & C. 439 ; E. & M. 
 
 4 ; 1 M. & M. 520 - - - - - - 135 
 
 Vertuo V. Jewell, 4 Camp. 31 - - - - - 188 
 
 Vickors V. Hotz, L. E. 2 H. L. Sc. 113 - - xxxviii 
 
 Vignior, Do, v. Swanson, 1 Bos. & Pul. 346, note 6 - - 88 
 
 Vindohola (Tho), 14 P. D. 50 ; 6 Asp. 376 ; 58 L. J. P. 51 ; 60 
 
 L. T. 057 ; 37 W. E. 409 193
 
 TABLE OF CASES. XXXV 
 
 PAOE 
 
 Viney v. Chaplin, 27 L. J. Ch. 434 ; 4 Jur. N. S. G19 - - 70 
 
 Vynior'sCase, 8 Coke, 82 a- - - - - - 198 
 
 Wadsworth, Ee, Ehodes v. Sugden, 29 C. D. 517 ; 54 L. J. Ch. 
 
 638 ; 52 L. T. G13 ; 33 W. E. 558 - - - - ISG 
 
 Wake V. Atty, 4 Taunt. 493 - - - - -120 
 
 Wake V. Harrop, 1 H. & C. 202 ; 31 L. J. Ex. 451 - - 291, 292 
 Walker v. Bii-ch, 6 T. E. 258 - - - - - 180 
 
 Walker v. South Eastern Eailway, L. E. 5 C. P. 640 ; 39 L. J. 
 
 C. P. 346; 23 L. T. 14; 18 W. E. 1032 - - - - 70 
 
 Walker v. Walker, 1 Times, 603 - - - - 165 
 
 Wallace v. Cook, 5 Esp. 116 - - - - 204, 206 
 
 WaUace v. Woodgate, 1 C. P. 575 ; E. & M. 193 - - 183 
 
 Walshe V. Provan, 8 Ex. 843 - - - - - 90 
 
 Walshe V. •\^^litcomb, 2 Esp. 564 - - - 197, 198 
 
 Walter i-. James, L. E. 6 Ex. 124 ; 40 L. J. 104 ; 24 L. T. 
 
 188 ; 19 W. E. 472 - - - - - 51, 52 
 
 Ward V. Lee, 7 E. & B. 426 ; 26 L. J. Q. B. 142 ; 3 Jur. N. S. 557 322 
 Warlow V. Harrison, 1 E. & E. 289 - - - - 85 
 
 Warwick v. Slade, 3 Camp. 127 - - - - - 193 
 
 Waters v. Monarch Life Ass., 5 E. & B. 870; 25 L. J. Q. B. 
 
 102 ; 2 Jur. N. S. 375 - - - - - 93 
 
 Watson V. King, 4 Camp. 272 - - - - 204, 206 
 
 Watteau v. Fenwick, (1893) 1 Q. B. 346; 9 Times, 133; 67 
 
 L. T. 831 ; 41 W. E. 222 ; 56 J. P. 839 - - - 260 
 
 Webster v. Be Tastet, 7 T. E. 157 - - - - - 135 
 
 Webster v. Seekamp, 4 B. & Ad. 352 - - - - 98 
 
 Weidner v. Hoggett, 1 C. P. D. 553 ; 35 L. T. 30S - - 116 
 
 Weil' V. Bell, 3 Ex. Div. 238 ; 47 L. J. Ex. 704 ; 38 L. T. 929 ; 
 
 26 W. E. 746 - - - - - - - 220 
 
 Wells ('. Kiugston-upon-IIull, L. E. 10 C. P. 402; 44 L. J. 
 
 C. P. 257 ; 32 L. T. 615 ; 23 W. E. 562 - - - 26 
 
 Wentworth /■. Outhwaite, 10 M. & W. 436 - - - 188 
 
 West London Commercial Bank v. Kitson, 13 Q. B. D. 360 ; 53 
 
 L. J. a B. 345; 50L. T. 656; 32 W. E. 757 - -286 
 
 Westwood V. BeU, 4 Camp. 349 - - - - 180, 191 
 
 White, Ex parte, In re NevHl, 6 Ch. 397 ; 40 L. J. Bk. 73 ; 24 
 
 L. T. 45 ; 19 W. E. 488 - - - -4,125 
 
 White V. Baxter, 1 Cab. & EU. 199 - - - - 163 
 
 White V. Lincoln, 8 Ves. 363 - - - - 123, 152 
 
 White V. Walker, 1 Times, 603 - - - - - 160 
 
 Whitehead v. Anderson, 9 M. & W. 519 - - 189, 190 
 
 Whitehead v. Tuckett, 15 East, 400 - - - - 259 
 
 Whiteman v. Hawkins, 4 C. P. D. 13 ; 39 L. T. 629; 27 W. E. 
 
 262 - - - - - - - - 136 
 
 c2
 
 XXXVl TABLE OF CASES. 
 
 PAGE 
 Whitfield V. Le Despencer, Cowper, 754 - - 308, 309, 322 
 
 Wliitley Partners, Ee, 32 Ch. D. 337 ; 55 L. J. Ch. 540 ; 54 L. T. 
 912 ; 34 W. E. 505 - - - - - - 23 
 
 "Wiggins V. Peppin, 2 Beav. 403 - - - - - 103 
 
 Wilkes V. Ellis, 2 H. Bl. 555 - - - - - 85 
 
 Wilkinson v. Alston, 48 L. J. Q. B. 733 ; 41 L. T. 394; 44 J. P. 
 35 ----- - -161,169 
 
 Wilkinson v. Martin, 8 C. & P. 1 - - - 160, 161 
 
 Wilks r. Back, 2 East, 140 - - - - 115, 291 
 
 Williams v. Evans, L. E. 1 Q. B. 332 ; 35 L. J. Q. B. Ill ; 13 
 
 L. T. 753 ; 14 W. E. 330 - - - - - 73 
 
 WilHams v. Everett, 14 East, 582 - - - - - 306 
 
 Williams v. Millington, 1 H. Bl. 80 - - - 82, 184, 314 
 
 Williams v. North Cliina Insui-ance Co., 1 C. P. D. 757; 35 
 
 L. T. 884 - - - - - - - 51 
 
 Wniiamson v. Barbour, 9 C. D. 529 ; 50 L. J. Ch. 147 ; 37 L. T. 
 
 698 ----- - 142, 147, 151 
 
 Williamson v. Hine, (1891) 1 Ch. 390 ; 60 L. J. Ch. 123 ; 63 
 
 L. T. 682; 39 W. E. 239 ; 6 Asp. 559 - - 130, 158 
 
 Williamson v. Bh.ee, 3 Camp. 469 - - - - - 138 
 
 WilHs V. Baddeley, (1892) 2 Q. B. 324 ; 61 L. J. Q. B. 769 ; 67 
 
 L. T. 206 ; 40 W. E. 577 - - - - - 228 
 
 WHson V. Kyner, 1 M. & S. 157 - - - - - 300 
 
 Wilson V. Tumman, 6 M. & Gr. 436 ; 6 Scott, N. E. 894 ; 1 D. 
 
 & L. 513 ; 12 L. J. C. P. 306 - - - - 35 
 
 WHson V. West Hartlepool Eail. Co., 2 De G. & S. 475 - - 38 
 Wiltshii-e V. Sims, 1 Camp. 257 - - - 63, 89 
 
 Withington v. Herring, 5 Bing. 442 - - - 59, 63 
 
 WitneU v. Garthan, 6 T. E. 388 - - - - 59 
 
 Witt, Ee, 2 Ch. D. 489; 45 L. J. Bk. 118 ; 34 L. T. 785 ; 24 
 
 W. E. 891 - - - - - - - 180 
 
 WooKe V. Home, 2 Q. B. D. 355 - - - - 184 
 
 Wren V. Kiiton, 11 Ves. 377 - - - - - 129 
 
 Wright V. Castle, 3 Mor. 12 - - - - - 103 
 
 Wright V. Dannah, 2 Cump. 603 - - - - 12, 83 
 
 Wright V. Mills, 63 L. T. 186 - - - - - 303 
 
 Xenos V. Wickham, L. E. 2 H. of L. 296; 36 L. J. C. P. 313; 
 16L. T. 800; 16 W. E. 38 - - - - - 57 
 
 York V. Stowors, W.N. (1883) 174 - - - - 150 
 
 Young V. Colo, 4 Scott, 489 ; 3 Bing. N. C. 728 ; 3 Hodges, 126 90 
 Young V. Mayor of Leamington, 8 App. Cas. 517 ; 52 L. J. 
 
 Q. B. 713 ; 49 L. T. 1 ; 31 W. E. 925 ; 47 J. P. 660 - - 26 
 
 Young V. Schuler, 11 Q. B. D. 651 ; 49 L. T. 546 - - 117, 118
 
 ( xxxvii ) 
 
 TABLE OF STATUTES. 
 
 PAGE 
 
 Statute of Frauds (29 Car. 2, c. 3) - 30, 32, 83, 86, 87, 133 
 
 Insolvent Debtors Belief (2 Geo. 11. c. 22) - - - 234 
 
 Set off (8 Geo. II. c. 24) 234 
 
 (9 Geo. ly. c. 14) 220 
 
 Factors Act (5 & 6 Vict. c. 39) - - - - - 232 
 
 Solicitors Act (6 & 7 Vict. c. 73), s. 2 - - - - 12 
 
 Act to Amend Law of Eeal Property (8 & 9 Vict. c. 106) - - 23 
 Merchant Shipping Act (17 & 18 Vict. c. 104) - - - 187 
 
 Bill of Lading Act (18 & 19 Vict. c. Ill), s. 1 - - - 299 
 
 Statute of Limitations (19 & 20 Vict. c. 97), s. 13 - 31, 153, 189 
 Divorce and Matrimonial Causes Act (20 & 21 Vict. c. 85) - - 10 
 Lord St. Leonards' Act (22 & 23 Vict. c. 35), s. 26 - - 155 
 
 SoHcitors Act, 1860 (23 & 24 Vict. c. 127), s. 26 - - - 12 
 
 Admiralty Court Act (24 Vict. c. 10 - - - - 188 
 
 Leeman's Act (30 & 31 Vict. c. 29) - - 58, 175, 196 
 
 33 & 34 Vict. c. 23 - - - - - - 11 
 
 Judicature Act (36 & 37 Vict. c. 66) - - - 149, 234 
 
 Infants' Eelief Act (37 & 38 Vict. c. 62) - - 7, 53 
 
 Public Health Act (38 & 39 Vict. c. 55), s. 174 - - - 26 
 
 Conveyancing Act, 1881 (44 & 45 Vict. c. 41), ss. 41, 46, 47 - 10, 
 
 112, 155, 207, 215 
 Bill of Exchange Act (45 & 46 Vict. c. 61) s. 23 - - 271 
 
 Conveyancing Act, 1882 (45 & 46 Vict. c. 39) - 195, 196 
 
 Married Women's Property Act (45 & 46 Vict. c. 75) - - 9 
 
 Bankruptcy Act, 1883 - - - 211,212,215,216 
 
 Inland Eevenue Act (51 Vict. c. 8), s. 17 - - - 168 
 
 Distress Amendment Act, 1888 (51 & 52 Vict. c. 21), s. 7 - - 12 
 Trustee Act, 1888 (51 & 52 Vict. c. 59) - - - 153 
 
 Factors Act, 1889 (52 & 53 Vict. c. 45) - 65, 93, 231, 239—251 
 Merchant Shipping Act, 1889 (52 & 53 Vict. c. 46) - 99, 188 
 
 Arbitration Act, 1889 (52 & 53 Vict. c. 49) - - - 150 
 
 Gaming Act, 1892 (55 Vict. c. 9) - - 168, 177, 178, 195 
 
 Married Women's Property Act, 1893 (56 & 57 Vict. c. 63) - 10, 
 
 Appendix, p. 330 
 
 Sale of Goods Act (56 it 57 Vict. c. 71) - Appendix, p. 332
 
 ( xxxYiii ) 
 
 ADDENDUM. 
 
 Possession by Mercantile Agent. 
 
 In order that tlie disposition by the mercantile agent of goods, 
 or a document of title thereto, should give a good title to them 
 to the third party, or give him any rights over it, the agent must 
 be in possession of them with the consent of the owner. If he has 
 got possession under circumstances which amount to larceny by a 
 trick, possession has never passed. Thus, in the Queen v. Biuk- 
 onasfer, where a welsher on a racecourse obtained money to lay on 
 a race, never intending to repay it in any event, it was held there 
 was no contract under which the property in the goods could have 
 passed, and that he was guilty of larceny (a). "Where goods have 
 been obtained bj' fraud, or other wrongful means not amounting 
 to larceny, the proj)erty in such goods passes by the disj^osition 
 of the mercantile agent, and the third party is ptrotected. 
 
 In Cvlquhoun v. Wetzell, reported in the Times of the 4th, 7th, 
 and 10th of Feb. 1894, a mercantile agent obtained possession 
 of a picture by Constable on the representation that he had a pur- 
 chaser of it for 1,000?. In fact he had no pxu'chaser at all. After 
 getting the jiicture, he pledged it to Wetzell for 300?. In an action 
 for conversion against Wetzell, Mr. Justice Hawkins asked the 
 jiuy whether the agent got possession intending to commit a 
 larceny, or whether he only afterwards conceived the fraudulent 
 intention of pawning it. The jury finding that possession of the 
 picture was obtained for the jmrpose of committing a fraud, his 
 lord.ship gave judgment for the plaintiff (i). 
 
 (a) Queen v. Burhnastcr (1887), 20 Q. B. D. 182 ; 57 L. J. M. C. 22 ; 
 67 L. T. 716 ; 36 W. R. IGO ; .02 J. P. 120 ; 16 Cox, C. C. 339. 
 
 (b) Sec also Kbigsford v. Mcrri/ (1856), 1 H. & N. o03 ; Tickers v. Ilotz 
 (1871), L. R. 2 n. L. Sc. 113 ; Baincs v. Stvainson (18G3), 4 B. & S. 270; 
 30 L. J. Q. B. 281.
 
 ADDENDUM. XXXIX 
 
 Usage — Scale of Charges of the Institute of British 
 Architects. 
 
 As lias been pointed out by Mr. Hudson in his work on Building, 
 at p. 79, the charges of the Institute of British Architects are only 
 those of a trade anion, and neither bind the Court nor those 
 emplopng architects. The Lord Chief Justice of England, Lord 
 Coleridge, in Burr v. Ridout (c), thus commented on the scale : " It 
 was said that the Institute of Architects had settled certain charges, 
 and percentages were charged on the estimated amount of expen- 
 ditm-e. But a commission upon exioenditure inciu'red was open to 
 the gravest possible objection. A gentleman wished to build a 
 house and was willing to pay 50,000/. upon it, and asked an 
 architect to prej)are plans for such an expenditure. His architect 
 prepared plans for a house which would cost 150,000Z. and said : 
 'Well, you may or may not build it, but you must pay me whether 
 you do so or not commission upon 150,000/., for the Institute of 
 British Ai'chitects say so.' He confessed his legal soul fired at it, 
 and he hoped no British jury would ever yield to it, for it was a 
 m.ost unjustifiable attempt of a body of men for their own advan- 
 tage, and to increase their emolument." In Eddy v. McGowan, 
 Times Newspaper, 17 Nov. 1870, both the Chief Baron (Sir Fitzroy 
 Kelly) and Baron Bramwell refused to recognise the same scale. 
 For other building customs which have been held bad, see Lord 
 Grimthorpe's (Sir Edmund Beckett) book on Building, 2nd ed. 
 Chap. I. 
 
 Liability of Intermediate Agent. 
 
 Story says that the general rule is, that sub-agents have exactly 
 the same rights against their intermediate employers as if the 
 intermediate agents were the sole and real princijials (cZ). 
 
 Where the intermediate agent does not disclose his i^rincipal, 
 that must be so ; for then the sub-agent only relies on the credit 
 of the agent. The principal will also be liable, it is submitted 
 (unless the sub-agent has given exclusive credit to the agent), on 
 the principle laid down in Armstrong v. Stokes (e). Where the 
 agent has no right to delegate, or where he is a factor, there, it 
 seems, from general principles, the agent must be solelj^ liable. In 
 some cases, where the principal is disclosed, the liability of the 
 
 (c) Times, 22 Feb. 1893. 
 
 (d) Sect. 386. 
 
 {e) (1872), 7 Q. B. 598,
 
 Xl ADDENDUM. 
 
 agent must depend on the intention of the parties as interpreted by 
 the usage and custom in the particuLar business. The agent in 
 some cases is only the instrument by means of which the principal 
 employs the sub-agent; in others, as in the case of the London 
 agent of a solicitor, the solicitor, and not the client, is primarily 
 responsible. 
 
 Broker — Authority to Vary Contract. 
 
 A broker with an undisclosed principal may vary the terms of 
 pajTnent after the sale is completed. The principal may interfere 
 at any time before payment, but not to rescind what has been done 
 before. If a man sells goods acting as broker, the moment the 
 sale is completed he is functus officio. The terms of the contract 
 cannot then be altered, except by the authority of the princij^al (e). 
 
 {c) Blackburn v. Scholes (1810), 2 Camp. 341.
 
 PEINCIPAL AND AGENT. 
 
 CHAPTEE I. 
 
 INTRODUCTORY. 
 
 The Law of Principal and Agent, the mutual rights and 
 duties of the principal and agent towards each other, and 
 the j)Osition of third parties towards them, are of ever-in- 
 creasing importance ; as in our modern civilization com- 
 paratively little business is done between the two principals 
 themselves. 
 
 Story defines a principal as a person who, being com- Definition 
 petent and sui juris to do an act for his own benefit, ^p^^ipai" 
 employs another person to do it. The person who is thus "agent," 
 
 11 -. 1 • .^ • • 1 • 1 1 1 j_- ^ "authority.' 
 
 employed, and brmgs the prmcipaL m legal relations to a 
 
 third person, is an agent. The relation between the two r' 
 
 parties, viz., the principal and the agent, is termed agency. 
 
 The power thus delegated is called in law the authority [a). 
 
 It is not easy at first sight to say who is and who is not Other defi- 
 an agent, though there is little difficulty in saying who is <. ao-ent." 
 a principal. In Smith's Mercantile Law an agent is 
 defined as " a person authorized to do some act or acts in 
 the name of another." The expression " in the name of 
 another" seems also to imply that whatever an agent does 
 he does in a representative capacity for someone else. A 
 large class of agents, however, such as factors, notoriously 
 never act in the name of their principals, but always in 
 their own names, though on behalf of others. This 
 
 («) Story on Agency, sect. 3. 
 W. B 
 
 ^
 
 <> PRINCIPAL AND AGENT. 
 
 definition seems therefore to be unsatisfactory. If, on the 
 other hand, we define an agent to be " a person authorized 
 to do some act or acts for another," then we include 
 servants, who, though they may be agents for the purpose 
 of making the owner of property liable for tort, are not 
 usually employed as agents in the sense that the word is 
 Suggested used in works on the law of Principal and Agent. The 
 word agent is used, in works on the law of Principal and 
 Agent, only of a person employed for the purpose of bring- 
 ing the principal in legal relation with a third party ; 
 whether that agency be an abiding condition or a tem- 
 porary one depends on what the business of the person is. 
 Some persons' occupation (as that of a solicitor, factor, 
 broker, or house agent) consists in bringing about such 
 legal relationship ; with others their agency is of a more 
 fugitive character. 
 
 The principal may emjaloy a servant as an agent, but an 
 agent is not necessarily a servant. A person is in the 
 position of a servant when he does work on the terms that 
 not only the object or end of his work is prescribed for 
 him, but he is also either du-ected, or is liable to be 
 directed, as to the means or method of doing it, i.e., when 
 his employer retains the power of controlling the work [h) . 
 When a person is employed to bring his employer in legal 
 relations with a third person, he is an agent. If he is not 
 under the control, as above described, he is not a servant 
 but an agent only. 
 
 As an agent is a person employed to bring the principal 
 in legal relations with a third party, it is absolutely neces- 
 sary, in order to carry out the contract of employment 
 between the agent and his principal, that there should be 
 a tliird party with whom the princij)al is to be brought 
 into relation (r). Tlie contract between the principal and 
 
 (i) See Pollock on Torts, Srd cd. (c) See Robinson v. AroUett (1874), 
 
 p. 72. 7 E. & I. Ap. 802 ; aud sec Brett, J., 
 
 at p. 820.
 
 INTRODUCTORY. 3 
 
 agent is primarily a contract of employment, and a person 
 selling bis own property or goods cannot be an agent ; or, 
 if be is one, be is tbereby violating tbe contract witb tbe 
 principal and bimself, and attempting to substitute a 
 different rolationsbip between tbem, viz., tbat of vendor 
 and purcbaser. An agent is appointed to make tbe best 
 bargain for bis employer, and to protect bis interests in 
 relation to tbe subject-matter of tbe agency. He is cbosen 
 usually on account of tbe bigb opinion bis employer bas 
 of bis trustwortbiness and discretion ; and for tbis reason 
 be is allowed to liave no interest in tbe subject-matter 
 unknown to bis employer, lest bis judgment sbould tbereby 
 be affected {d). "Wben it is once realized clearly wbat 
 tbe nature of tbe rolationsbip between tbe principal and 
 agent is, viz., employment for tbe purposes of bringing 
 tbe former in legal relationsbip witb a tliird party and 
 creating privity of contract between sucb tbird party and 
 tbe principal, it is obvious tbat it is improper for tbe agent 
 to sell bis own goods to tbe principal, to bave any interest 
 in tbe subject-matter of tbe agency adverse to tbe princij)al, 
 or to receive any remuneration from tbe tbii'd party. Tbe 
 neglect of tbe maxim " Tbat no man can serve two masters," 
 bas led to most of tbe frauds of agents, wbo eitber seek 
 to palm off tbeir own goods on tbe principal wbile at 
 tbe same time cbarging bim a commission for procuring 
 tbe goods at tbe lowest price on tbe market, as if tbere 
 were a tbird party, c.r. (/)•., tbe agent in liohlnson v. MoIIetf, 
 or else tbey try to get a commission from botli tbe principal 
 and tbird party, as in The Panama and South Pacific Tele- 
 graph Co. V. Tlie India Riihbcr Works Co., and so render 
 tbemselves unable to exercise an unbiassed judgment for 
 tbeii' employer. 
 
 In commercial matters, wbere tbe real relationsbip is Relation of 
 tbat of vendor and purcbaser, persons are sometimes purchaser dis- 
 
 {d) Fdiiama and South Facijic Tel. Co. v. India Euhber Co. (1875), 10 Ch. 
 015. 
 
 b2
 
 PRINCIPAL AND AGENT. 
 
 tinguislied called agents when, as a matter of fact, their relations 
 principal and ^^^ ^^^ those of principal and agent at all, hut those 
 agent. of vendor and purchaser. If the person called an "agent" 
 
 is entitled to alter the goods, manipulate them, to sell 
 them at any price that he thinks fit after they have 
 been so manipulated, and is still only liable to pay for 
 them at a price fixed beforehand, without any refer- 
 ence to the price at which he sold them, it is impos- 
 sible to say that the relation of principal and agent 
 exists (e). A purchaser has not to account to his vendor; 
 his only duty is to pay him ; and all the other rights and 
 duties which exist between principal and agent do not 
 exist between vendor and purchaser (./'). 
 
 In practice it is not always easy to distinguish the 
 position of the parties, and to know whether the parties 
 were vendor and purchaser or principal and agent. If 
 the relation between the parties is that of vendor and 
 pm"chaser, each party takes upon himself the risk of the 
 fall and rise in price of the article bargained for, and 
 they are at arms' length. The seller binds himself to 
 supply the goods. In the other case, if the parties are 
 principal and agent, then the agent only undertakes, when 
 he accepts the duty, to use due diligence in trying to 
 fulfil the order, and for his trouble is paid by way of 
 commission on the work done. He does not take upon 
 himself any part of the risk or profit which may arise 
 from the fall in prices {g) . 
 
 In this work prominence is given principally to the two 
 great classes of mercantile agents — Factors, who are in 
 j)ossession of goods for their principals, and who sell or buy 
 in their own names ; and Brokers, who only negotiate the 
 sale or purchase, without being in possession. The most 
 
 Different 
 kindH of 
 agent. 
 
 (e) Ex parte White, In re Nevill White, In re Nevill (1871), 6 Ch. 
 
 (1871), 6 Ch. 397, at p. 400. 397. 
 
 (/) Ex parte Jlrit/ht, In re Smith {y) Irclnndv. Livinijstoiic {1871), 5 
 
 (1879), 10 Ch. Div. 5GG ; Ea- imrte E. & I. Ap. 395, at pp. 407, 408.
 
 INTRODUCTORY. 
 
 important kinds of agents after the above are — masters of 
 shijas, who, to a certain extent, occupy the position of 
 principal and agent rolled into one ; stockbrokers, whose 
 dealings are confined to one particular class of com- 
 mercial security, shares and stocks ; house agents, whose 
 importance has been growing, on account of the very 
 much larger amount of business done by them ; and com- 
 mission agents generally. 
 
 The law of principal and agent is only a branch of the Law of prin- 
 law of contract ; but in so far as it deals with the reciprocal a^c?ent^brauch 
 rights and duties of persons who are in a confidential of law of 
 position towards one another, it is considerably affected by 
 doctrines similar to the equitable principles affecting trusts 
 and trustees. The subject naturally falls under two heads: Falls natur- 
 first, the contract between the principal and the agent, contracts ^-'^^ 
 whereby the agency arises, and next the contract made by ijetween prin- 
 the agent by virtue of the contract of agency. Under the aoeut', and 
 first head, we will consider the appointment of the agent, between prm- 
 the rights and duties of the principal and agent to one tliii-d party. 
 another, and the termination of the agency ; under the 
 second, the rights of the principal and his agent against 
 the third party, and such third party's rights against the 
 principal and agent respectively. 
 
 Whenever a person does an action in his own right he What can be 
 can delegate its performance to an agent, except in a few ^n a^^cnt "^ 
 cases which are of a personal nature, such as homage, or 
 the exercise of a bare power {//). If a public duty or trust 
 is imposed on anyone, he cannot delegate this j)ower, but 
 must perform it himself. So a railway company whicli, 
 practically under the guise of giving running powers, 
 transferred its line to another company, was held incapable 
 of doing so, and the Court refused to enforce the agree- 
 ment. V.-C. Turner, in such a case(/), said: "In form 
 
 (A) 9 Coke, 7-6a. 837 ; and see Gardner v. Z. C. d,- D. 
 
 \i) G. N. By. Co. v. The Eastern Rij. (1867), 2 Ch. 201. 
 Comties Ei/. (1851), 21 L. J. Ch.
 
 O PRINCIPAL AND AGENT. 
 
 it is declared that the instrument shall not operate as a 
 lease or an agreement ; it amounts in substance either to 
 one or the other. It is framed in total disregard of the 
 obligations and duties which attach to these companies, 
 and is an attempt to carry into effect, without the inter- 
 vention of Parliament, what cannot lawfully be done except 
 by Parliament in the exercise of its discretion with refer- 
 ence to the interests of the public. ... I think it is the 
 duty of this Coui't to withhold its interference when called 
 upon to aid agreements of such a natui'e." 
 What cannot Where a man has no authority himself to do a thing, he 
 to an a?ent ^^^ ^^ course not give another authority to act. It is well 
 settled that a corporation established for a specific pur- 
 pose cannot bind itself by a contract entirely unconnected 
 with the purpose of its incorporation ; for example, a rail- 
 way company cannot accept bills (k). This principle was 
 approved of by Lord Cairns, and adopted as to companies {I). 
 In order to ascertain what sort of agents a company can 
 appoint, one must look to the memorandum of association. 
 The persons who can exercise the powers are those fixed 
 by the articles of association. As no man has a right to 
 commit a crime, a WTongdoer cannot set up as a defence 
 that he acted merely as the agent of someone else : each 
 wrongdoer being personally liable {»i). 
 
 As to the liability to compensate or indemnify an agent 
 who commits a tort in pursuance of a command of his 
 principal, and thinking he has a right to do the act, and it 
 being apparently lawful, see " Liability of Agent to Third 
 Party." 
 
 (/r) See Erie's, C. J., judgment and Mcrsci/ Marine Insurance Co., 
 
 in JSatcman v. Mid-TFaks liij. Co. (18G7), 2 Ch. 617. 
 
 (1860), L. R. 1 C. P. 499. (;«) Hugh v. Abergavc7uvj (1875), 
 
 (/) Pcrnvian Rg. Co. v. Thames 23 W. R. 40.
 
 CHAPTEE II. 
 
 WHO MAY HE PRI>X'IPAL AND WHO AGENT. 
 
 Any person wlio is sni jitn's is capable of becoming a prin- Who may be 
 cipal and an agent. Infants, married women, idiots, lunatics, 
 and other persons not being siii Juris are eitlier wliolly 
 or partially incapable of being principals. As a principal 
 appoints or employs someone to act for liim, he must be 
 capable of acting himself, and be capable of entering into 
 a contract. 
 
 Infants are, by the Infants' Relief Act, 1874 (a), in- Infant cannot 
 capable of entering into contracts for the repayment of ^ principa . 
 money lent or for goods supplied, unless they are neces- 
 saries, and all accounts stated with them are void. They 
 are incapable of appointing an agent (i). In IlaMon v. 
 White, Mr. Justice Buller is reported to have said that 
 Lord Mansfield had laid it down as a general principle 
 that if an agreement were for the benefit of an infant at 
 the time it would bind him. Sir Greorge Jessel (c) doubted 
 the accuracy of the report, and Mr. Simpson, in his book 
 on Infants, suggests that the meaning of the supposed rule 
 is not that an infant can bind himself by a beneficial con- 
 tract, as he can for necessaries, but that if it becomes 
 necessary to decide the question, the Court may decree 
 such an agreement to be binding (d). 
 
 Infants are, therefore, generally incapable of being 
 principals, their contracts being voidable at their option, 
 
 (a) 37 & 38 Vict. c. 62. (c) Martin v. Gale (1870), 4 C. D. 
 
 (4) Dofid.nomasY.Jioberts{lSi'), 431. 
 16 M. & W. 778, (d) Simpson on Infants, 2ucl ed, 
 
 p. 100,
 
 PRINCIPAL AND AGENT. 
 
 Lunatics 
 incapable 
 of being- 
 principals. 
 
 except contracts for necessaries. An infant can, however, 
 employ servants suitable to his station and condition in 
 society (e) ; but he would probably not be held liable in 
 tort as principal for their negligence or carelessness while 
 in his employment (,/). He would, however, be liable for 
 a tort committed by an agent in his presence, and by his 
 order (^7) , for that would be his direct act. It has, how- 
 ever, been held that though on the principle qui facit i^er 
 alium, facit jjer se the master is liable for the negligent acts 
 of his servants {//) , yet that the liability does not make the 
 direct act of the servant the direct act of the master. 
 
 An infant may carry on a trade, but a man dealing 
 with him trusts to his honour, and to the fact that it is to 
 his advantage when carrying on a trade to pay (/). 
 
 Lunatics are incapable of being principals ; though in 
 one case, where a person had contracted with a lunatic in 
 ignorance of his state of mind, and the contract was fair, 
 the Courts refused to upset it or declare it void, as it was 
 no longer executory, but executed, and the parties could 
 not be placed in the same position {k). If a jDerson were 
 to act as agent for a lunatic after he knew of his lunacy 
 and his incompetency to act, he would be liable to be sued 
 for a breach of warranty of authority by anyone who had 
 been misled thereby (/). As to the effect of the prin- 
 cipal's becoming a lunatic during the agency, see chapter 
 on the " Termination of the Agency." 
 
 A lunatic or his estate may be liable quasi ex contractu 
 for necessaries supplied to him in good faith, and this 
 applies to all expenses necessarily incurred for the pro- 
 tection of his person or estate, such as the costs of lunacy 
 
 (e) Chappie v. Coojier (1844), 13 
 M. &W. '2;5'2. 
 
 (/) lioborts and Wallace on 
 The Duty and Liability of Em- 
 ployers, .'Jrd cd. p. 50. 
 
 (V) JtHrnnrd v. Jlagyls (18G3), 14 
 C. B. N. S. 45. 
 
 (;() Hharrod v. Z. S; N. 11'. liy. 
 
 (1849), 4 Ex. 580. 
 
 (i) Ex parte Jones, In re Jones 
 (1887), 18 C. D. 109. 
 
 (/■) Moulton V. Camroux (1849), 
 4 Ex. 17 ; Bcarcn v. McBonnell 
 (1853), 9 Ex. 309. 
 
 (/) Drew V. Nunn (1879), 4 Q. 
 B. D. 601.
 
 WHO MAY BE PRINCIPAL AND AVIIO AGENT. 9 
 
 proceedings (;;i). If a person of sound mind, who is a 
 principal, becomes a lunatic, the agency determines, except 
 as to persons who have dealt in good faith in ignorance 
 of the insanity (ii). 
 
 A married woman is at common law unable to enter Married 
 into a contract at all (o). By the Married Women's '^""'^^^ ^°°^: 
 
 ^ ^ -^ pable, except 
 
 Property Act, 1882 (45 & 46 Vict. c. 75), s. 1, sub-ss. 2, 3, sofar assepa- 
 and 4, she can now bind herself only if she has sepa- 
 rate estate at the time of entering into the contract (p) 
 which is free from restraint upon anticipation, and the 
 separate property free must be such as she could fairly 
 be said to contract as to. The mere fact of having 3/, 
 or 41. when she entered into a covenant to repay 400/. 
 would not enable her to contract (r/), and judgment can 
 only be enforced against her for the amount of separate 
 estate, if any, as to which there is no restraint on anti- 
 cipation (r). The Act does not enable her by means of 
 a contract entered into at a time when she has no existing 
 separate property to bind any possible contingent property 
 she may subsequently acquire (s) . Nor is the Act retro- 
 spective in the sense of rendering after-acquired separate 
 estate liable to be taken in execution on a contract made 
 by a married woman after the Act came into force (/). 
 By the same Act a married woman can now be made 
 liable in tort to the extent of her separate property. It 
 woidd therefore seem to follow that she can only acquire 
 the legal position of a principal to the extent that she had 
 sejDarate property. 
 
 The Married Women's Property Act of 1893 {ii), which Married 
 
 Women's 
 
 (»«) Pollock on Contracts, otli ed. (5) B)-ai<)istcinv. Zcivis {IS91), 60 
 
 p. 88. L. T. 449. 
 
 («) Brew v.Mmn (1879), 4 Q. B. {>■) Scott v. Morley (1888), 20 Q. 
 
 D. 661 ; 48 L. J. Q. B. 591. B. D. 120. See also HUly. Cooper, 
 
 (0) FairhurslY. Liverpool AdelpM (1893) 2 Q. B. 85. 
 Loan Association (1854), 9 Ex. 422, (4) Ln re Shakespeare, Deakin v. 
 
 at p. 429. Lakin (1885), 30 C. D. 169. 
 
 (p) Talliscr v. Giiriici/ (1887), 19 (0 Conolan v. Leyland (1884), 27 
 
 Q. B. D. 519; Everett v. I'axton C. D. 632. 
 (1891), 65 L. T. 383, («) 56 & 57 Vict. c. 63.
 
 10 
 
 PRIXCIPAL AND AGENT. 
 
 Property Act, 
 1893. 
 
 Divorce or 
 judicial sepa- 
 ration enable 
 a married 
 •woman to bo 
 a principal. 
 
 came into effect on the 5tli December, 1893, considerably 
 alters the law. By sect. 4 it repeals sub-sects. 3 and 4 of 
 sect. 1 of the Married Women's Property Act, 1882 ; and 
 by sect. 1 it enacts that " Every contract hereafter entered 
 into by a married woman, otherwise than as agent — 
 
 (a) shall be deemed to be a contract entered into by 
 
 her with respect to and to bind her separate pro- 
 perty, whether she is or is not in fact possessed of 
 or entitled to any separate property at the time 
 when she enters into such contract ; 
 
 (b) shall bind all separate property which she may at that 
 
 time or thereafter be possessed of or entitled to ; and 
 
 (c) shall also be enforceable by process of law against 
 
 all property which she may thereafter while dis- 
 covert be possessed of or entitled to ; 
 Provided that nothing in this section contained shall render 
 available to satisfy any liability or obligation arising out 
 of such contract, any separate property which at that time 
 or thereafter she is restrained from anticipating." 
 
 Sect. 2 enacts, " In any action or proceeding now or 
 hereafter instituted by a woman or by a next friend on 
 her behalf, the Court before which, such action or proceed- 
 ing is pending shall have jurisdiction by judgment or 
 order from time to time to order payment of the costs of 
 the opposite party out of property which is subject to a 
 restraint on anticipation, and may enforce such payment 
 by the appointment of a receiver and the sale of the pro- 
 perty or otherwise as may bo just." 
 
 By the Divorce and Matrimonial Causes Act she is 
 restored to the position of a non-married woman if she has 
 been divorced, judicially sejiarated, or has obtained a pro- 
 tection order (v) . 
 
 Under the 41st section of the Conveyancing Act, 1881, 
 a married woman, whether an infant or not, can appoint 
 
 {v) 20 & 21 Vict. 0, 85.
 
 WHO MAY UK rRIN(MPAL AND WHO AGENI', 11 
 
 by deed an agent to execute a deed or do any otlier act 
 slie could do herself {iv) . 
 
 There is, however, one position in which both married Married 
 women and infants can act as principals, which seems of ^"^^tor^" ^ 
 somewhat an exceptional nature : they can both be execu- 
 tors ; but on the principle of the case above alluded to (.r), a 
 married woman would seem only to be personally liable to 
 the extent of her separate property, and an infant would 
 not seem to be liable at all personally {//). An executor 
 is, however, not a real exception, since there he is " a 
 person put in the stead of the deceased person, and acting 
 in a semi-representative capacity," and not in his own 
 right. 
 
 Aliens are under no disability, and can therefore be Aliens or con- 
 principals. Convicts, however, cannot, as they are unable 
 to contract, except while at liberty, lawfull}^ (z). 
 
 In considering who may be an agent a different set of Anyone may 
 considerations arise. As the contract of the agent is not ^°^^ ' 
 his contract but that of the principal, there is no need for 
 his being sid j>iri>i, and married women and infants may 
 be agents. But a lunatic, probably, could not be an 
 agent, because the exercise of a sound judgment and dis- 
 cretion seems to be required for the exercise of the autho- 
 rity. Sir William Anson, therefore, lays it down broadly 
 that anyone may be an agent {<(). If, however, a person 
 takes up a position inconsistent with his being agent 
 the contract will not be enforced [h) ; and he will not be 
 allowed commission as being in the position of agent [c). 
 This branch of the subject will be dealt with under the 
 head of the duties of an agent {d). 
 
 [iv) 44 & 45 Vict. 0. 41. {b) Taiiama and South Facijic Tel. 
 
 (.(•) Ill re Shakespeare, Deakui v. Co. v. India Rubber, ^-c. Works Co 
 
 lakin (1885), 30 C. D. 1G9. (1879), 10 Ch. 515; and see liar- 
 
 {il) HindmarshY. South gate [1^21). rlnqton v. Victoria I)oc/c Co. (1878) 
 
 3 Rus. 324. 3 Q. B. D. 549. 
 
 f^) 33 & 34 Vict. c. 23. (c) Eobinson v. MoUett (1874), 7 
 
 [a) Anson on Contracts, p. 327, H. L. 802. 
 6th ed, id) Infra, See Duties of Agent,
 
 12 
 
 PRINCIPAL AND AGENT. 
 
 Exceptions. There are, however, some few exceptions to the general 
 
 rule that anyone may be an agent. Only persons autho- 
 rized to act under written authority of the County Court 
 judge can act as agents for levying distress {f). An 
 infant cannot he an attorney to prosecute a suit (,/') ; nor 
 can a married woman, probably since it has been considered 
 that she is only capable of being sued in matters relating 
 to herself personally {g). A man may also have made 
 himself incapable of acting as agent for a certain person 
 by his position with respect to the subject-matter : as, for 
 instance, a man cannot sign a contract as agent for one 
 party if he himself is the other party (A) ; for one of the 
 parties cannot be agent of the other for the purpose of 
 signing the contract. 
 
 Some agencies Although anj'one may act as agent, yet there are a number 
 
 require special » . . , . , j i i • ^^ 
 
 qualifications. ^^ agencies in which a man cannot act unless specially 
 qualified : as, for instance, a solicitor or stockbroker ; and 
 in others, he must have taken out a special licence of some 
 kind. No person is allowed to act as solicitor unless he has 
 been admitted and enrolled a solicitor (/), and anyone doing 
 so is guilty of an indictable offence (J) and of contempt of 
 Court, and liable to a fine of 50/. for every such offence (/.•). 
 Not only is he incapable of recovering any fees or disburse- 
 ments, but a person employing such an uncertificated 
 person is unable to recover any costs or disbursements 
 wliicli the other side would otherwise have to pay him (/). 
 Sometimes questions of fact arise as to whose agent a 
 person was, as in Glhhoiis v. Proctor (m), v^here the whole 
 question as to whether the plaintiff was entitled to a 
 reward depended on whether the persons to whom he gave 
 
 Question may 
 arisi- us to 
 who is ageut'.s 
 principal. 
 
 (c) DiHtrcss Amendment Act, 
 1888, 8. 7. 
 
 (/) marc V. Grccnbank (17-19), 3 
 Atk. G!)"), at p. 710. 
 
 (/•/) TInpmc V. St. Maiir (1887), 
 34 Ch. D. 465. 
 
 (h) Wrifjht V. Dannah (1813), 3 
 Camp. 203 ; lilMrmati v. Brandt 
 
 (1871), L.R. 6 Q. B. 720. 
 
 («■) G & 7 Vict. c. 73, s. 2. 
 
 (/) R. V. Buchannan (1846), 8 Q. 
 B. 883. 
 
 [k) 23 & 24 Vict. c. 127, s. 26. 
 
 [I) Fowler V. 31 o)nunHt li shlrc Canal 
 Co. (1879), 4 Q. B. D. 334. 
 
 (;») (1891), G4 L. T. 694.
 
 WHO MAY BE PRINCIPAL AND WHO AGENT. 13 
 
 certain information were liis agents to give information 
 to the defendant, or agents of the defendant to receive 
 information. If they were the plaintiff's agents, then 
 the information had been given after the offer of a re- 
 ward. If they were the agents of the defendant, then it 
 had been given before the offer, and he was not entitled 
 to claim under it, as he had done nothing in consequence 
 of the offer.
 
 14 
 
 PRINCIPAL AND AGENT. 
 
 Joint princi- 
 pals partners. 
 
 Joint ad- 
 venturers. 
 
 Provisional 
 committee. 
 
 CHAPTER III. 
 
 JOINT PRINCIPALS AND JOINT AGENTS. 
 
 Jo'uit Prii/cqxds. 
 
 In a partnersliip every partner is a principal, and is also 
 the agent of his co-partners in any firm business, within the 
 authority vested in him either by the partnership deed or by 
 law. 
 
 Persons without entering into partnership may make 
 themselves jointly liable, and by permitting someone to 
 act for them all, make him their joint agent. Thus per- 
 sons who give an agent authority to order things are 
 jointly liable for goods supplied to him. Mr. Justice Field 
 held, in Fi/ot v. Craze, that when persons are engaged in 
 one common object each and every one is responsible for 
 the acts of the other done in pursuance of the common 
 object (r/). 
 
 When a person allows his name to go down on a com- 
 mittee or a provisional committee, that of itself amounts 
 to no more than a promise that he would act with the 
 other persons for the purpose of carrying out the parti- 
 cular scheme (b). It makes no difference in point of law 
 whether the object of the scheme is gain or cliarity : though, 
 as Chief Baron Pollock pointed out, the result may be prac- 
 tically very different, exciting an improper prejudice in the 
 minds of a jury. If the names are circulated in a pro- 
 spectus witli other matter the liability depends on the 
 question what inference ought a reasonable man to draw 
 
 («) (1885), 52 J. p. 311; Sleek 
 V. O'oiirlc;/ (188G), 3 Times, 772; 
 tut Bce JIau:/.e v. Coh (1890), G'2 
 
 L. T. 658. 
 
 (Ij) liii/nell v. lewis {I8i6), 15 M. 
 &W. 517.
 
 JOINT PRINCIPALS AND JOINT AGENTS, 15 
 
 from the contents of that paper. If a person allows himself Members of 
 to he appointed a member of a committee, hears their 
 arrangements, attends meetings, and allows his name to be 
 used, he renders himself liable for all that the secretary or 
 the committee do in pursuance of the purposes of the com- 
 mittee, if anyone contracts with the committee or secretary 
 on the faith of his name amongst the others, and looking to 
 the committee for payment and not the possible funds (c) ; 
 the liability of a member of a committee depends on 
 whether he did not take part in giving the orders. As to 
 this class of cases, see " Liability of Agents." 
 
 The joint ownership of land or a chattel, with a separate Joint owner- 
 and distinct, though possibly undivided, interest in it, does Lvolve^bei'm-- 
 not make such ioint owner liable for the acts of one of the a joint in-in- 
 other joint owners, or make such joint owner his agent ((/). 
 It has, indeed, been decided that notice to quit by one 
 joint tenant is sufficient to determine the lease; but ihai 
 is not because the joint tenant who has given the notice 
 is agent for the rest, but owing to the nature of the estate 
 and interest they all have in the land, holding it per mie d 
 per toui {e). In order to constitute persons joint prin- How persons 
 cipals there must be an agreement to join together, and jj^^wi?.*^^"— *^v- 
 either authorize one of their number to act for the others principals. 
 or else appoint some outsider as their agent : for the words 
 " joint principals" imply that several principals have jointly 
 given an authority to one or more agents to act for their 
 common purposes. 
 
 The joint ownership of land or a chattel is not necessarily Joint owner- 
 the result of any agreement, and one of the co-owners can, tiu^mslied. 
 without the consent of the other owners, transfer his interest 
 to a stranger, so as to put him in the same position as he him- 
 self was in. A co-owner has no lien on the thing owned in 
 common for outlays or expenses, nor for what may be due 
 from the others as their share of the common debt. If 
 
 (r) Bailey v. Macaulay (1849), 13 [e] Doe v. Somerset (1830), 1 B. 
 
 Q. B. 815, at p. 826. & A. 135. 
 
 (f/) Story, \ 38.
 
 16 
 
 PRINCIPAL AND AGENT. 
 
 Tenants in 
 common. 
 
 Joint owners 
 of sliijis, how 
 far joint 
 principals. 
 
 Not joint 
 principals 
 UTiloss have 
 appointed a 
 managing 
 owner. 
 
 several people buj something in common, and agree to 
 sub-divide it among themselves, they need not necessarily 
 be joint principals, for one may buy the goods as prin- 
 cipal and not as agent, and then divide the article 
 amongst the others. In this case the others will not be 
 liable to the vendor for the price, or even their share of 
 it {(j) . If several co-owners of a thing combine and sell, 
 or authorize the sale of that whole thing, the authority 
 they confer is an authority given by them all collectively, 
 and not several authorities given by them separately, and 
 they will be all liable under it {h) . 
 
 One of several tenants in common has no power as such 
 to appoint an agent for the rest. Story says that there is 
 some peculiarity in the law as to part owners of ships, 
 growing out of the necessary adaptations of it to the 
 requirements and convenience of commerce, and that 
 though they are tenants in common holding distinct and 
 undivided interests, yet each is deemed the agent of the 
 others as to the ordinary repairs, employment, and busi- 
 ness of the ship in the absence of any known dissent. 
 The case he refers to does not seem quite to bear this 
 out (?) , for Mr. Justice Erskine held that the plaintiff, who 
 had done the repaii's, was bound to show that the other 
 co-owner had authority to pledge the defendant's, the other 
 co-owner's credit, and said that a managing owner would 
 have implied authority ; and Mr. Justice Coltman, with ap- 
 proval, quotes from a judgment of Mr. Justice Bayley (Jc) 
 the following : " Where a ship is under the management of 
 the master, and the owners divide the profits, the master 
 is prima facie agent for them all, but the mere legal 
 ownership does not make any person liable for a ship's 
 debts." And Mr. Justice Coltman held that the owner of 
 a share in a ship who had been appointed managing 
 
 {g) Cooper v. IJp-e (1788), 1 H. 
 Bl. 37 ; Bco also Iloare v. Dawes 
 (1780), 1 Doug. 371. 
 
 (A) Kray v. Fcnwick (187G), 1 C. 
 r. \). 745, at 7.02. 
 
 (i) CurlUnj v. Rohcrtson (1844), 7 
 M. & Gr. 336. 
 
 (/•) Ih-iqgs V. Wilkinson (1827), 7 
 B. & C. 30.
 
 JOINT PRINCIPALS AND JOINT AGENTS. 17 
 
 owner by the owners of the other shares, " would have 
 implied authority to bind those who had a beneficial inte- 
 rest in the ship, in the absence of any dissent on their 
 part ;" and the reason of this exception is plain, as a 
 managing owner has by agreement been made the agent 
 of all the co-owners in the management of their property — 
 the ship. 
 
 In B rod te y: Howard {I), Chief Justice Jervis said that 
 the authority of a part-owner to charge the credit of the 
 others for necessary repairs exists, and continues only 
 until countermanded. He is entitled, until he has notice 
 to the contrary, to assume that he has authority to bind 
 them ; and a tradesman to whom a part-owner has been held 
 out as having authority may in like manner assume it to 
 continue until he has express notice that the authority has 
 ceased. That case was also a ease of orders given by a 
 managing owner, or rather a co-owner who always acted as 
 managing owner. The co-owner who was sued had told 
 the managing owner in June that he did not wish to 
 employ the ship any more. The managing owner, how- 
 ever, ordered the repairs to the ship, which were com- 
 menced on the 29th of August. The defendant gave no 
 notice to the shipwright that he would not be responsible 
 for them until the 10th of September, and yet the Court 
 held he was not liable, and that the re^^airs must be con- 
 sidered as ordered on the credit of the managing owner 
 alone. 
 
 The cases in which the rule, as stated by Mr. Justice 
 Bayley; has been recognized, are all cases where the co- 
 owner was also the managing owner or ship's husband (;;«), 
 In Abbott's Merchant Shipping the rule is, however, simi- 
 larly laid down, except that the words "unless their lia- 
 lity (the co-owners') be expressly guarded against" are 
 
 (0 (1855), 17 C. B. 109. {m) See Chappell y.Bray (1860), 
 
 30 L.J. Ex. 24. 
 
 W. C
 
 IS 
 
 PRINCIPAL AND AGENT. 
 
 Effect of 
 judgment 
 against one 
 of several 
 joint con- 
 tractors. 
 
 Usually all 
 joint agents 
 must concur 
 in acts. 
 
 Authority of 
 joint agents 
 does not sur- 
 
 added (y^). A co-owuer is, however, not liable for insur- 
 ance of a ship unless he has given express authority (o), 
 or for the expenses of a lawsuit (^;) . 
 
 A judgment against one of several joint contractors is, 
 even without satisfaction, a bar to an action against any 
 other joint principal sued alone (q). 
 
 Joint Agents. 
 
 Story lays it down as a general rule of the common law 
 that where an authority is given to two or more persons 
 to do an act, the act is valid to bind the principal only 
 when all of them concur in doing it; for the authority is 
 construed strictly, and the power is understood to be joint 
 and not several. Coke (r) says, if A. makes letter of 
 attorney to B., C, and D., conjiinctim et dirisim (jointly 
 and severally) , to make livery. If only two make livery it is 
 void, because it is neither conjunctim nor dirisim; but if one 
 makes livery in one parcel and another in another parcel 
 it is good. But if two make livery in the presence of the 
 third, he not saying anything, it seems good, on the principle 
 that when a person is present and he allow^s a thing to be 
 done by a third party, the person doing it is regarded as 
 acting only as the instrument or tool of the other. 
 When any of the joint agents die the authority does not 
 survive to the survivors, for Coke says («) , where a naked 
 power (one not clothed with any beneficial interest) is 
 vested in two or more nominatim without any reference to 
 his office in its natm^e liable to survivorship, as an executor- 
 ship is, it, without doubt, would be a contradiction of the 
 
 (m) Abbott on Merchant Ship- 
 ping, 13th cd. p. 9G. 
 
 (o) French v. Backhouse (1771), 
 6 Bur. 2727. 
 
 {p) The .ncHcairn (ime), 5 Asp. 
 Mar. Law Cas. (N. S.) 582 ; and sec 
 cases referred to in Abbott on Mer- 
 chant Sliippiiig. 
 
 (^) Kendall v. Uamillon (1869), 
 4 Ap. Cas. 504. See, also, Cambe- 
 fort V. Chapman (1887), 56 L. J. 
 Q. B. G39; 19 Q. B. D. 229. 
 
 (;•) ^ 42 ; Coke upon Littleton, 
 62 (b), n. 2. 
 
 (s) 113a, n. 2.
 
 JOINT PRINriPAT.S AND JOINT AGENTS. 19 
 
 general rule to allow the power to survive. Therefore, 
 when authority has been given to two or more persons 
 jointly to act as agents, their acts are only binding on tlie 
 principal wlien all concur. And when a power was given 
 jointly and severally, the older cases showed that it has to 
 be executed by one or by all, unless the donor of the power 
 clearly showed he intended the execution to be good if it 
 were executed by some one of them ; as, for instance, by 
 using the words " or any of them," after giving the joint 
 and several power. 
 
 Coke (/) points out there is a difference as to sur- Whenautho- 
 vivorship between " authorities created by the party for piirpose it 
 private causes and authorities created by the law for the survives. 
 execution of justice," and gives as an example a direc- 
 tion by the sheriff to four persons jointly to arrest a 
 person which could be executed by two, because it is for 
 the public benefit and should therefore be more " favour- 
 ably expounded than when it is only for private ; " 
 and this distinction has been applied to public bodies 
 and public power generally, and, therefore, a distress 
 warrant which was a joint warrant and not a joint and 
 several one, was held to be well executed by one of the 
 persons it was addressed to {u) . In the case of public 
 authorities, therefore, the common law rule is not so 
 strict in several cases, and it has been held that the 
 authority could be exercised by a majority. In one of 
 the cases, Atfornoj-Gencral v. Davcy [.>), the question arose 
 wliether the majority of a body incorporated by charter 
 could elect a chaplain, and it was held they could ; and, 
 similarly, in WithncU v. Garthan {ij), where the same 
 question arose as to the appointment of a schoolmaster, 
 it was held that the majority could appoint; in Ki)ig v. 
 Beeston, it was decided that it was not necessary that 
 
 (0 Coke upon Littleton, 181b. (y) (1795), 6 Term Eep. 388; 
 
 («) Lee V. Veseij (1856), 1 H. & King y. Beeston {\l'dQ),ZTevm.'Re^. 
 
 N. 90. 592. 
 {x) (1741), 2 Atk. 212. 
 
 c2
 
 2Q 
 
 PRINCIPAL AND AGENT. 
 
 A majority or 
 quorum can 
 exercise a 
 joint autho- 
 rity for a 
 public 
 purpose. 
 
 Directors of 
 companies. 
 
 all the dmrchwardeus and overseers should concur in a 
 contract for providing food for the poor. 
 
 A case (:;) came before Chief Justice Eyre as to whether 
 four out of six tryers (inspectors) of tanned leather, ap- 
 pointed under an Act of Parliament to prevent badly pre- 
 pared leather being sold in the market, could exercise the 
 powers of the Act. In his judgment, Chief Justice Eyre, 
 speaking of the general rule of law as to bodies of men 
 entrusted with public powers, says : " I think it is nowpretty 
 well established that where a number of persons are entrusted 
 with powers not of mere private confidence, but in some 
 respects of a general nature, and all of them are regularly 
 assembled, the majority will include the minority, and 
 their act will be the act of the whole." The cases of 
 corporations go farther : there it is not necessary that the 
 whole body should meet ; it is enough if notice be given 
 to all the members ; a majority, or a lesser number, 
 according as the charter may be, may meet, and when 
 they have met they become just as competent to decide as 
 if the whole had met. 
 
 Directors of companies are the agents of the com- 
 panies they belong to, and questions have often arisen 
 as to whether powers could be exercised by only some 
 of them. Lord Justice Lindley says : " Speaking generally, 
 it is clear that if a person appoints six others to be 
 his agents jointly, he is not bound by the acts of any 
 five, four, tliree, two, or one of them. Therefore, if the 
 aifairs of a company are entrusted to the management 
 of not less than a fixed number of directors, it is prima 
 /c;c'/c not bound by the acts of a fewer number "(r/). He 
 then gives cases where acts done by less than the whole 
 number were held invalid, and says it must not, however, 
 be supposed that the majority of a duly convened and duly 
 constituted board of directors cannot act for the whole 
 
 (:;) Grindley 
 B. & P. 229. 
 
 V. Barker (1798), 1 
 
 (a) Lindky on Companies, 5th 
 cd. pp. 155, 15G.
 
 JOINT PRINCIPALS AND JOINT AGENTS. 21 
 
 board. Business could not be carried on if such a rule 
 were to prevail. Company law not being- within the scope 
 of this work, the reader is referred to the Lord Justice's 
 learned work for further information. 
 
 The latest case as to the j)ower of a less number than Primd facie 
 the wliole of the joint agents to bind tlie fjrincipal is one only valid if 
 decided in 1849 (/>). That was a case where the provisional *^?,^°^^^.'^ .^^ 
 
 ^ ; ^ ^ all the joint 
 
 committee of a railway company delegated their powers to agents. 
 
 a managing body of eight. This was done by way of a 
 resolution, which decided that the eight persons (naming 
 them) should be the managing committee for the company, 
 and that they should take "the most energetic measm'cs to 
 further the interests " of the company. Six out of the 
 eight gave an order to the plaintiff, and on the strength of 
 the order it was sought to make a member of the pro- 
 visional committee liable. Counsel for the plaintiff argued 
 that the execution by six was a good exercise of the autho- 
 rity, and relied on tlie statement in Story that, though the 
 common law was so strict, yet it was not inflexible, and 
 admitted of a more liberal interpretation in favour of 
 trade and also on an underwiiting case (c), in which a 
 shipowner had given authority to fifteen persons jointly 
 and severally to underwrite policies of insurance for him, 
 where it had been held that, owing to the inconvenience 
 of the rule it would be extended no further, and that an 
 execution by four out of the fifteen was sufficient. Lord 
 Denman, C. J., however, held that in the absence of evidence 
 as to the constitution of the railway company, an authority 
 given to eight could not be executed by six, although it 
 was very probable that a majority of the managing com- 
 mittee were intended to act. 
 
 Chief Justice Abbott in Guthrie v. ^Iryy?.s7roy?^ (r/), Queiy, where 
 decided that the execution by four of the power of to mercantile 
 
 jency. 
 
 {h) BroicH V. Andrew (1849), 13 (c) Guthrie v. Armstrone/ (1822), 
 
 Jur. 938, 5 B. & Aid. 628. 
 
 {(l) Ubi supr(U
 
 22 
 
 PRINCIPAL AND AGENT. 
 
 Clubs. 
 
 Agent liable 
 who has no 
 principal. 
 
 attorney given to fifteen was good ; and he based kis 
 decision on what he held to be the true construction of 
 the power given by the principal in that case, which, after 
 naming the persons, constituted them "his true and lawful 
 attornies, jointly and separately for him and in his name, to 
 sign and underwrite all such policies of insurance as they, 
 his said attornies, or any of them, should jointly and 
 separately think proper." This decision, and a decision of 
 Chief Justice Wilmot in Godfrey v. Saunders [e), that a 
 person who consigned goods to two factors jointly, by 
 doing so imjolied that one could trust the other to sell 
 alone, though both were responsible to the consignor, are 
 quoted in text-books as showing that in commercial trans- 
 actions the strict common law does not apply, thus 
 forming a second exception to the common law rule. 
 
 Members of clubs, although the club is owned by the 
 general body of members, are not joint principals, nor are 
 the committee joint agents for the club ; for a club is 
 neither a partnership nor a corporation (/'), and is a body 
 whose existence is not legally recognized {g) . Although a 
 member can be sued for his subscription, he is not liable 
 to creditors of the club, unless he personally pledged his 
 credit for goods supplied. A tradesman has therefore 
 only the credit of the person ordering to rely on. 
 
 In some cases, persons contracting apparently as joint 
 agents have been held liable as joint principals, because 
 there was no other resp)onsible principal to whom recourse 
 could be had. These were cases of persons acting judicially 
 in some public official character, as magistrates, commis- 
 sioners, enclosure commissioners, overseers, &c. As to 
 these cases, see the Chapter on the " Liability of Agents." 
 
 (<■) (17G8), SWils. 9-1, atp. 114. {y) Crosuman v. Granville Club 
 
 (/) Flcnupuj V. Hector (1837), 2 (1884), 77 L. T. Newspaper, 48. 
 M. & W. 172.
 
 23 
 
 CHAPTER IV. 
 
 APPOINTMENT OF AGENT. 
 
 There is no necessity for any formal aj^pointment of an Agent, how 
 
 agent in most cases. An agent can be appointed by word 
 
 of mouth or by writing, and mere acquiescence in the acts 
 
 of a person who assumes to act as agent may, by estoppel, 
 
 render the principal liable to third persons for such person's 
 
 acts (a). 
 
 A principal cannot adopt a bare act the effect of which An unautho- 
 
 would be to raise a duty towards and subject a third cannot be 
 
 party to damages for its non-performance. Such an act adopted whicli 
 • p I'ln 1 n 11 gives rise to a 
 
 can never, ii unauthorized at first, be confirmed by any duty by a 
 recognition e.v post facto ; for instance, a demand for pro- party, 
 
 perty in order to found an action for trover must be 
 made by an agent pre^dously authorized (A). 
 
 If the agent has to do anything by deed, his authority When agent's 
 to sign and seal the instrument must be given by deed (r) . ^ ^"^ ^^^^^ 
 Sales of real property and leases beyond a certain time ^e appointed 
 have, by the Act to Amend the Law of Real Property, 
 1845 {(I), and other Acts, to be by deed. There is an 
 apparent exception to this rule, viz., that an appointment 
 by deed is not necessary when the principal is present and 
 the act done before him. When the principal is present 
 the agent is, however, not really acting as an agent ; but is 
 merely acting as the tool by which the principal carries 
 out his intentions. This is clear Avhen the grounds of the 
 
 {a) See Story, § 47. Camp. 478, n. 
 
 \b) See Smith's Mercantile. Law, (r) In ro IFIiUley Fart/icrs (1SS6), 
 
 p. 165 ; Coore v. C'allowai/ (1794), 32 G. D. 337. 
 
 1 Esp. 115; Coles v. Bell (1809). 1 {d) 8 & 9 Vict. c. 106.
 
 24 
 
 PRINCIPAL AND AGENT. 
 
 Agent must 
 be appointed 
 in writing 
 where the 
 authority 
 must be 
 exercised in 
 writing br 
 the Statute 
 of Frauds. 
 
 Distinction 
 between 
 trading and 
 non-trading 
 coi-porations. 
 
 Non- trading 
 corporations. 
 
 decision of the case (e) cited in support of tlie exception 
 are examined. It was a case in which a father and a son 
 (neither of whom was able to write) asked a third party 
 to sign, seal and deliver an indenture of apprenticeship. 
 Under such circumstances the Court held the deed to be 
 that of the father and son. 
 
 Lord Eldon, in Mortloeh v. B idler (/), held that it would 
 be a most mischievous evasion of the Statute of Frauds if 
 it were permitted to appoint an agent by word of mouth 
 or give him verbally authority to do something which the 
 statute required him to do in writing ; for the same difficulty 
 would arise in ascertaining what the verbal authority was 
 as the statute was designed to obviate and avoid in the 
 agreement itself, and thus the difficulty would be reintro- 
 duced. Agents to execute powers, therefore, under the 
 1st, 2nd and 3rd sections of the Statute of Frauds, have 
 to be appointed in writing. 
 
 The law as to the appointment of an agent by a corpo- 
 ration differs according as to whether the corporation is a 
 trading corporation or a non-trading corporation. 
 
 As to the latter, the rule is that a corporation cannot 
 act except by deed {g) . Lord Denman pointed out, in 
 Chuych V. Tlie Imperial Gas Light Co. (/?), the only excep- 
 tions to this rule so far as non-trading corporations are 
 concerned. He says : " The general rule of law is that 
 a corporation contracts under its common seal; as a 
 general rule it is only in that way that a corporation can 
 express its will or do any act. That general rule has from 
 the earliest traceable period been subject to exceptions, the 
 decisions as to which furnish the principle on which they 
 have been established, and are instances illustrating its 
 application, but are not to be taken as so prescribing in 
 terms the exact limit that a mere circimistantial difference 
 
 {c) Ball V. Bunstcrvillc (1791), 4 
 T It 313. 
 '(/) (l«*^^)i lOVcs. 291,ntp.310. 
 
 {g) Maijor of Ludlow v. Charlton 
 (1841), G iVI. & W. 815. 
 {h) (1838), 6 Ad. & E. 846.
 
 APPOINTMENT OF AGENT. 25 
 
 is to exclude from the exception. This principle seems to 
 be convenience amountiufj almost to neccssit//. Wlierever to 
 hold the rule applicable would occasion very great incon- 
 venience, or tend to defeat the very object for whieli the 
 corporation was created, the exception has prevailed; 
 hence, t/ie retainer bi/ parol of an inferior servant, and the 
 doing of acts very frequcnthj recurring, are established cxcep- 
 tionsP In that case the company, being formed for the 
 supply of gas, it would have seriously impeded the corpo- 
 ration in its purposes to hold that it was necessary that a 
 contract for such supply should be under seal. 
 
 In Arnold v. Tlie Mayor of Poole {i), the Court held that 
 the appointment of a solicitor to conduct important suits 
 affecting the rights of the Corporation of Poole could not 
 be considered a trifling matter, nor was it of such frequent 
 occmTcnce or of such immediate urgency as to render it 
 inconvenient to postpone it until the seal of the corpora- 
 tion could be affixed to the retainer. And Chief Justice 
 Tindal held it could not be said that the retainer of an 
 attorney fell within the principle of the decisions relating 
 to contracts made by corporations established for trading 
 purposes. Baron Eolfe said, in holding that a municipal 
 corporation could not be sued on a parol contract for labour 
 in pulling down a house and altering the roadway (/.•), 
 " a corporation which has a head may give a personal 
 command and do small acts, and it may retain a servant. 
 It may authorize another to diive away cattle damage 
 feasant, or make a distress, or the like. These are all 
 matters so constantly recurring, or of so small importance, 
 or admitting of so little delay, that to require in every 
 such case a previous affixing of the seal would be greatly 
 to obstruct the every-day convenience of the body corpo- 
 
 (i) (1842), 4 M. & G. 860 ; and T. N. S. 411. 
 see Cope v. Thames Ilavcn Lock Co. {k) Mai/or of Ludlow v. Charlton 
 
 (1849), 3 Ex. 841; Sution v. (1841), 6M. & W. 815. 
 Sjpectacle Makers Co. (1864), 10 L.
 
 26 PRINCIPAL AND AGENT. 
 
 rate without any adequate object. In such matters the 
 head of the corporation seems from the earliest time to 
 have been considered as delegated by the rest of the 
 members to act for them." 
 
 In JFells V. The Mayor of Kingston-ttjion-HuUil), it 
 appeared that the Corporation of Kingston were in the 
 habit of letting a graving dock verbally to any shipowners 
 who required its use; vessels being admitted in the order of 
 their application for the use of the dock. In an action by 
 a shipowner for not letting his ship in in its tm'n, the cor- 
 poration raised the defence that the contract was not under 
 seal, but the Court of Common Pleas, composed of Lord 
 Coleridge, Baron Huddleston, and Mr. Justice Denman, 
 held that as the admission of a ship was a matter of 
 frequent occurrence, and in some cases might be a matter 
 of urgency admitting of no delay, it came well within the 
 description given in 'ChurcJi v. Imperial Gas Light Com- 
 pauy {m) of the kind of acts which might be done by a 
 corporation without their seal. 
 
 If a solicitor has acted for a corporation in an arbitra- 
 tion without being appointed under seal, the award could 
 probably not be enforced against it ; but if the corporation 
 attempts to set an award aside only on the ground that the 
 arbitrator has exceeded his jurisdiction, it will not be able 
 to raise the point {n). 
 Localboards Under the Public Health Act, 1875, s. 174, "every 
 PuWic Health contract made by a local board, or by an urban sanitary 
 Act, when autliority, whereof the value or amount exceeds 50/., shall 
 necessary. be in writing, and sealed with the common seal of such 
 authority;" it was therefore held in IIiDit v. Wimbledon 
 Loeal Board that the board were not liable to pay an 
 architect for plans that ho had made under verbal direc- 
 tions from the board's surveyor (o). This 50/. limit may, 
 
 [I) (lfi75), L. R. 10 C. r. 402. Co. (1848), 2 Ex. 344. 
 
 m) (1838), G A. & E. 84G. {(>) Sec, also, JInnt v. Wimbledon 
 
 n) Faviell v. Eastern Co. Rail. Local Board (1878), 4: G. V. B. iS.,
 
 Ari'Ul>TJME^T OF AGENT. " 27 
 
 perhaps, be taken as some kind of guide as to what matters 
 in the case of other corporations are so trivial that they 
 need not be by deed. This Act came before the House of 
 Lords in a case {p) where the corporation was a municipal 
 corporation, but in the transaction which was sued on 
 was acting as a board of health. The House of Lords 
 confii'med the decision in IIiDit v. Wimhlcdon Local Board, 
 but expressly refrained from deciding whether the plaintiff 
 could sue under the contract for goods supplied if the 
 municipal body had been acting under its ordinary powers, 
 and had not been under a statutory limitation to contract 
 only under seal, where the value of the goods or subject- 
 matter of the contract was over 50/. The judges ex- 
 pressed their opinion that it was for the protection of the 
 public that contracts of corporations should be under seal, 
 for they could not then slip through unobserved, and 
 there was less chance of a public body being defrauded 
 by its servants, who might enter into all sorts of obliga- 
 tions for it. In Nicholson v. Bradfield Union {q), the Court 
 of Queen's Bench held a union liable to pay for goods ; 
 as the goods had actually been supplied to and accepted 
 by the corporation, and were such as had necessarily to 
 be from time to time supplied for the many purposes for 
 which the body was incorporated, and also were supplied 
 under a contract in fact made by the managing body of 
 the corporation. 
 
 In the case of tenancies of land where possession has Tenancies of 
 
 been taken, the Courts have enforced the contract for l"^^^ where 
 ' , lease not 
 
 a lease, although it was not under seal, thus the Court under seal. 
 of Exchequer hold, in Ecclesiastical CoDiuiissionos v. 
 Merra/, that a tenant who had been in i:iossession, but 
 whose lease was not under seal, was under an obligation 
 to repair. They did this on the authority of IFood v. 
 Tate (r), which decided that though a lease by a corpora- 
 
 (p) Young <?• Co. v. Mayor of {q) (1866), L. R. 1 Q. B. 620. 
 
 Leami7igton (1883), 8 App. Gas. 517. \r) (1806), 2 B. & P. N. R. 247.
 
 28 PRINCIPAL AND AGENT. 
 
 tion was void because it was not executed under their 
 common seal, yet if the tenant was allowed to enter into 
 possession, and both parties acted as if there was a binding 
 tenancy, an implied obligation arose on the part of the 
 corporation to do everything that is to be found in the 
 usual annual lease, and that a correlative obligation was 
 on the tenant to pay the rent and perform the ordinary 
 stipulations. In Loice v. London and North- Western Rail- 
 icay (.s), a corporation was held liable for the use and occu- 
 pation of land they had occupied, although the lease was 
 not under seal. Both in the cases of Tlte Ecclesiastical 
 Cou/missionersY. Merral and in Nicholson v. Bradficld Union 
 the Courts seem to recognise the distinction between an 
 agreement not under seal which is executory and one which 
 is executed, enforcing the latter to avoid doing an injustice: 
 the first case was decided by Chief Baron Kelly and Barons 
 Bramwell, Pigott and Cleasby, and the other by Mr. Jus- 
 tice Blackburn. Mr. Evans, in his work on Principal and 
 Agent (/), however, says the distinction is exploded, though 
 the cases he refers to do not appear to the present writer 
 to bear out that view. 
 Trading cor- A trading corporation is an exception to the rule that 
 pora ions. ^ corporation can only contract by deed. Where the 
 contracts relate to the objects and pm-poses for which the 
 corporation has been formed, a deed is not necessary. 
 Chief Justice Bovill, in South of Ireland Colliery Co. v. 
 Waddle [u], explained the exception thus : he says — 
 *' Originally all contracts by corporations were requii*ed to 
 be under seal. From time to time certain exceptions 
 were introduced, but these for a long time had reference 
 only to matters of trifling importance and frequent occur- 
 rence, such as the hiring of servants, and the like. But 
 in progress of time, as new descriptions of corporations 
 came into existence, the Courts came to consider whether 
 
 (.») (18.52), IE. & B. 632. («) (18G8), L. R. 3 C. P. 463; 
 
 (4 2n(l cd. p. 23. affirmed (1809), 4 C. P. 619.
 
 APPOINTMENT OF AGENT. 29 
 
 these exceptions ought not to be extended in the case of 
 corporations created for trading and other jiui-poses. At 
 first there was considerable conflict, and it is impossible 
 to reconcile all the decisions on the subject. But it seems 
 to me that the exceptions created by recent cases are too 
 firmly established to be questioned by the earlier decisions, 
 which, if inconsistent with them, must be held not to be 
 law. These excejitions apphj to all contracts by trading cor- 
 2)orations entered into for the purpose for tchich they are 
 incorporated. A company can only carry on business by 
 agents — managers and others, and if the contracts made 
 by these persons are contracts which relate to the objects 
 and purposes of the company, and are not inconsistent 
 with the rules and regulations which govern their acts, 
 they are valid and binding on the company, though not 
 under seal. It has been urged that the exceptions to the 
 general rule are still limited to matters of frequent occur- 
 rence and small importance. The authorities, however, do 
 not sustain that argument. It can never be that one rule 
 is to obtain in the case of a contract for 50/. or 100/., and 
 another in the case of a contract for 50,000/. or 100,000/." 
 The Chief Justice distinguished the case of The London 
 Jjock Co. v. Sinnott (.r), on the ground that the contract 
 there was not of a mercantile character. In that case the 
 Dock Company, who were a trading corporation, made a 
 contract quite outside the ordinary course of their business, 
 and not of a mercantile nature, as the Com-t held, for 
 scavenging the dock and selling old wood hoops, and it 
 was held that the Dock Company had no power to make 
 such a contract by parol. 
 
 A joint-stock company can act under their common seal, Joint-stock 
 or by signature of its directors — which may have the how^a^enta 
 same effect as their seal — or possibly by resolution of appointed, 
 the board. An agent cannot, however, claim to be ap- 
 
 (.r) (1857), 8 E. & B. 347 ; 27 Mines Co. v. Fox (1851), 16 Q. B. 
 L. J. Q. B. 129; and see Co2)per 229.
 
 30 
 
 PRINCIPAL AND AOENT. 
 
 Who can 
 affix seal. 
 
 Agent may- 
 be appointed 
 verbally 
 though autho- 
 rity executed 
 by writing. 
 
 pointed if there is simply an agreement between other 
 parties to appoint liim. If, for instance, the articles of 
 association of a company — which are the statement of the 
 arrangements between the shareholders — provide that a 
 certain person is to be solicitor to the company, the soli- 
 citor in question cannot sue on such a proviso or article, 
 as he is no party to it {y) . 
 
 Questions sometimes arise as to who can use the seal 
 of the company. It seems that whoever as a matter of 
 practice manages the affairs of a trading corporation 
 must of necessity be able to use the seal for those acts he 
 is authorized to perform. Therefore, where neither an 
 Act of Parliament nor the memorandum of association 
 prescribed any formalities as to the method of affixing it, 
 an affixing the seal by the directors and the secretary of a 
 company was held sufficient {z). 
 
 If an agent contracts by deed when he was only autho- 
 rized to do so by writing, and the deed is unnecessary for 
 the carrying out of the contract, it is good against the 
 principal as a writing {a) . An agent may be appointed by 
 word of mouth to do something, although that something 
 may have to be performed by writing, as by affixing his 
 (the agent's) signature, provided always that a statute 
 like the Statute of Frauds does not require the authority 
 to be in writing : for example, an agent may, by a verbal 
 authority, or an implied authority, sign and indorse a pro- 
 missory note. And it was therefore held, in JEIeij v. 
 Positive Government Assurance Co., that an agent who had 
 only been verbally authorized, could sign the memorandum 
 of association of a company, altliough it was made by 
 Act of Parliament equivalent to signing and sealing. Mr. 
 Justice Blackburn laid down the rule as follows, in a 
 judgment which was cited witli approval in the Court of 
 
 (y) Per Lord CairnH, Elcy v. 
 JPoiitive Government Life Assurance 
 Co. (1870), 1 Ex. Div. 88. 
 
 (z) In re Barned'H liankinrj Co., 
 
 E-v parte The Contraet Corporation 
 (18G8), 3 Ch. 105. 
 
 (rt) Hunter y. I'arker {\%\\), 7 M. 
 & W. 322, at p. 344.
 
 APrOlNTMENT OF AGENT. 31 
 
 Appeal (/*) : "At commou law, where a person autliorizes 
 another to sign for him, the signature of the person so 
 signing is the signature of the person authorizing it. 
 Nevertheless, there may be cases where the statute requu-es 
 a personal signature. The common law rule, quifacit per 
 aVium, facit per se, will not be restricted except where a 
 statute renders personal signature necessary." 
 
 An agent is only required to be duly authorized to There cannot 
 make an acknowledgment of debts to bar the Statute of for'the pm-- 
 Limitations (c) ; but an a^ent cannot bind his principal, Pose of 
 whether he be authorized by deed or otherwise, by making sentation as to 
 a representation concerning the character, conduct, credit, ^'^^^^'^t'^'^- 
 ability, trade or dealing of any other person, for the 
 purpose that such other person may obtain credit, money, 
 or goods ; for such a representation, to make a person 
 liable, must be made in writing signed by the person 
 himself {d). In Su-ift v. Jeu-><hur//, a bank manager made 
 a representation as to the credit of a customer, and,' as 
 the Court held, in his personal capacity. If he had signed 
 the bank's name, and been authorized to do so, the bank 
 would still not have been bound according to the decisions 
 in the case. To bind the bank, the directors, or persons 
 authorized by the articles of association, would have had 
 to put the company's seal, and doing this would only have 
 bound the bank if the articles of association gave them 
 authority to make such a representation. 
 
 A solicitor ought to be appointed in writing, and ought Solicitor 
 to obtain a written authority from his client before lie appointed ^ 
 commences a suit. If circumstances are urgent, and he is ^ writing, 
 obliged to commence proceedings without such authority, 
 he should obtain it as soon afterwards as he can. An 
 authority may, however, be implied where the client 
 
 (/;) Eeff. V. Justices of Kent (c) 19 & 20 Vict. o. 97, s. 13. 
 
 (1873), L. E,. 8 Q. B. 305 ; and see (d) Swift v. Jctvsbiiri/ (187-1), L. 
 
 Mey V. Positive Government, ^-c, H. 9 Q. B. 301. 
 ubi supra.
 
 32 
 
 PRINCIPAL AND AGENT. 
 
 Writing 
 necessary 
 ■where agency 
 for more than 
 a year. 
 
 Power of 
 attorney. 
 
 Agent of 
 necessity. 
 
 acquiesces in and adopts the proceedings ; but if the soli- 
 citor's authority is disj)uted, it is for him to prove it, and 
 if he has no wiutten authority, and there is nothing but 
 assertion against assertion, the Court will treat him as 
 unauthorized, and he must abide the consequences of his 
 neglect (e). If the business is not to be performed within 
 a year, or where a person guarantees costs on behalf of 
 another, under the 4th section of the Statute of Frauds, a 
 retainer in writing is necessary (/). 
 
 Where the authority is given formally by deed, it is 
 called a power of attorney. Where agents have to execute 
 legal documents, or to represent their principal abroad, or 
 in a general capacity, the agent is usually appointed by 
 power of attorney : in some of the Colonies these must be 
 witnessed by two witnesses. 
 
 The relationship of principal and agent will not be 
 implied to exist from the necessity of the thing {g). 
 In a case where a doctor brought an action against the 
 Midland Railway for services he had rendered to persons 
 inim-ed in an accident, it was argued that the station 
 master, who had him sent for, was from the necessity of 
 the case authorized to employ him. The Com't, however, 
 held there was no such power, the employer of an agent 
 for a particular purpose gives only the authority that is 
 necessary for that agency under ordinary circumstances (//) . 
 
 In Eastland v. Burchell {i), Justices Lush and Mellor 
 held that a wife became an agent of necessity to supply 
 her wants on her husband's credit when he neglected liis 
 duty ; but that only was so because the law imposed upon 
 him the duty of maintaining her. 
 
 Sir Montague Smitli, in giving judgment in Bank of 
 Neiv South Walcn v. Oivston, said : — " An authority to be 
 
 (c) Allen V. Bone (1841), 4 Beav. 
 493. 
 
 (/) Tomlinson v. Cell (1837), 6 
 Ad. & E. 664. 
 
 ((/) Cox V. Midland Rail. Co. 
 (1849), 3 Ex. 2G8. 
 
 {h) iSco, also, Jraictaijne v. Bourne 
 (1847), 7 M. & W. 695. 
 
 (i) (1878), 3 Q. B. D. 432.
 
 APPOINTMENT OF AGENT. 33 
 
 exercised only in cases of emergency is evidently a limited 
 one, and before it can arise a state of facts must exist 
 which shows that such exigency is present, or from which 
 it might reasonably be supposed to be present. If a 
 general authority is proved, it is enough to sliow com- 
 monly that the agent was acting in what he did on behalf 
 of his principal. But in the case of such a limited autho- 
 rity as that referred to (viz., the authority of a clerk of a 
 bank to arrest a forger in the act of presenting a forged 
 cheque), the question whether the emergency existed or 
 might reasonably have been supposed to exist arises for 
 decision, and that question raises issues beyond the mere 
 fact that the agent acted on behalf of, and in the supposed 
 interests of, the principal. Were it otherwise, the special 
 authority would be equivalent to the general one." In 
 that case the Court held that the principals (the bank) 
 were not responsible for the acting bank manager having 
 authorized criminal proceedings to be taken against a 
 merchant in a good position, in order to obtain more 
 quickly from him a bill the bank claimed, and held the 
 act of the manager without authority (a). 
 
 {a) (1879), 4 Ap. Cas. 270, at Chapter on " The Aiithority of the 
 p. 290. See also the cases cited in Agent " as to authority to arrest. 
 
 I)
 
 i34 . PRINCIPAL AND AGENT. 
 
 CHAPTER V. 
 
 RATIFICATION. 
 
 By ratifica- We have considered hitherto the appointment of the agent 
 becomes^^^^^ ^^^ ^^^ authority given to him by such appointment, 
 responsible for '\\[q j^qw have to consider the doctrine of ratification, 
 acts. whereby the principal may make himself responsible for 
 
 contracts and acts of his agent outside his authority, and 
 also adopt as his own the acts or contracts of a person 
 Foi-m of who was not at the time of doing them his agent. The 
 
 ratification may either be verbal, by letter, or inferred 
 from mere acquiescence ; but if the act of the person 
 who purported to act as agent was under seal, the ratifi- 
 cation must also be so ; for, as Mr. Justice Story points 
 out, the ratification cannot in this respect stand upon 
 higher ground than an original 'authority {a). To make 
 Knowledge of ^ ratification good as an adoption of the agent's acts by 
 necessary. the principal, it must have been done with a knowledge 
 of all the circumstances {b), or else with an intention 
 to take upon himself, without inquiry, the risk of any 
 irregularity which the agent has committed, and to adopt 
 all his acts (c). 
 Only act of Only the acts of an agent, or a person assuming to act as 
 
 ■would-}>c such, can be ratified, and the principal cannot ratify an 
 rutTfied^"^'^ ^^^ dono by someone either on behalf of liimself or on 
 behalf of a third party. Chief Justice Tindal, in holding 
 that an act done by an agent on behalf of A. could not be 
 
 (a) § 242. (e) Lewis \. Ecad{\Mi), 13 M. & 
 
 \b) ISmith V. Cologan (178G), 2 T. W. 834 ; Freeman v. lioslier (1849), 
 B., note, p. 188. 13 Q. B. 780.
 
 RATIFICATION. 35 
 
 ratified lay B. {d), took this distinction, and said : "Tliat an 
 act done for another by a person not assuming to act for 
 himself, bnt for such other person, thougli without any pre- 
 cedent authority whatever, becomes the act of the principal 
 if subsequently ratified by him, is the known and established 
 rule of law. In that case the principal is bound by the 
 act, whether it be for his detriment or his advantage, and 
 whether it be founded on a tort or a contract, to the 
 same extent as by, and with all the consequences which 
 follow from, the same act done by his previous authority. 
 Such was the precise distinction taken in the Year Book, 
 7 Henry 4, fo. 35 a, that if the bailiff took the heriot, 
 claiming the property in himself, the subsequent agree- 
 ment of the lord would not amount to a ratification of his 
 authority as bailiff at the time ; but if he took it at tlie 
 time as the bailiff of the lord, the subsequent ratification 
 by the lord made him bailiff at the time. The same 
 distinction is also laid down by Anderson, C. J., in 
 Grodbolt's Rejiorts, 109 (b), 'If one have cause to distrain 
 my goods, and a stranger of his own doing, without any 
 warrant or authority given him by the other, takes my 
 goods, not as bailiff or servant to the other, and I bring 
 an action of trespass against him, can he excuse himself 
 by saying that he did it as his bailiff or servant ? Can he 
 also father his misdemeanor upon another? He cannot, 
 for once he was a trespasser, and his intent was manifest.'" 
 Lord Justice Thesiger, in Jones v. Uo^je and others {e), 
 explained this principle. In that case the plaintiff sued 
 the commanding officer of a regiment and the other officers 
 on a contract for clothing. First, a contract with the 
 corps was set up ; but the Court held there coidd be no 
 such contract, as there was no such legal entity. The 
 plaintiff then set up a contract with the colonel personally, 
 
 {d) Wilson V. Tuniman (1843), 6 [c) (1886), 3 Times Rep. p. 247, 
 
 M. & G. 236. n. ; Rawke v. Cole (1890), 62 L. T. 
 
 658. 
 
 d2
 
 36 
 
 PRINCIPAL AND AGENT. 
 
 There must 
 be an actual 
 principal in 
 existence at 
 the time of 
 making the 
 contract to 
 ratify. 
 
 and sued the officers as having ratified this second con- 
 tract, although it was admitted that the original contract 
 had not been made on theii' behalf. Lord Justice Brett 
 held the colonel had never contracted personally, and said, 
 "It escaped notice at this trial — notwithstanding the length 
 of it, as it seems to me — that whichever of the two con- 
 tracts was made with Colonel Durnford, the question of 
 ratification could not arise ; because if Colonel Durnford 
 had made a contract binding himself personally, that was 
 a contract which did not assume to be made on behalf of 
 any one of the other defendants, and therefore whatever 
 they said or did could not be a ratification. They coidd 
 not ratify a contract which did not assume to be made on 
 their behalf. They might have made a new contract ; but 
 the case put was that they ratified that contract. Now 
 they could not do it " (/). 
 
 Not only must the agent be professing to be acting as 
 agent, but there must be an actual principal in existence ; 
 otherwise there can be no ratification. It was therefore 
 held, that where a contract was signed by one professing to 
 be signing as agent, but who had no principal in existence, 
 he was liable himself on the contract, and that a stranger 
 could not, by subsequent ratification, relieve him from his 
 liability (g) . The case in which this was decided was one 
 in which a person was acting as promoter for a company 
 that was intended to be got up, and " contracted on behalf 
 of the company " on the 27tb January ; the company 
 not being incorporated until the 20th February follow- 
 ing. Chief Justice Erie, in giving judgment, said: " The 
 cases referred to in the course of the argument fully bear 
 out the proposition that where a contract is signed by one 
 who professes to be signing ' as agent,' but who has no 
 principal existing at the, time, and the contract would be 
 altogether inoperative unless binding upon the person who 
 signed it, he is bound thereby, and a stranger cannot by 
 
 (/) Sec, alHO, SfitoKhrson v. ^''rif- 
 filhs (1820), 5 B. & C. y09. 
 
 iff) Kchier v. Bax/er (1867), 2 C. 
 P. 174.
 
 RATIFICATION. 37 
 
 a subsequent ratification relieve him of the responsibility. 
 When the company came afterwards into existence, it 
 was a totally new creature, having rights and obligations 
 from that time, but no riglits and obligations by reason of 
 anytliing which might have been done before. It was 
 once, indeed, thought that an inchoate liability might be 
 incurred on behalf of a proposed company which would 
 become binding on it when subsequently formed ; but that 
 notion was manifestly contrary to the principles upon 
 which the law of contract is founded" (A). Lord Coleridge, 
 in MeUtado v. Port Akgree Rail. Co. (i), adopted this prin- 
 ciple, and said : " Kelncr v. Baxter is a distinct autho- 
 rity to show that the company could not ratify such a 
 contract, as it was not in existence. It has, however, been Principal 
 decided that where a company has got all the benefits and benefit of ° 
 advantages from the contract they will not be allowed to promoter's 
 
 ., -ji i • J 11 J T contract wilh- 
 
 enjoy them without carrying out the arrangements and out carryino- 
 contracts of the promoter "(/.■) . The contract must, how- o^tJ^isar- 
 
 '^ ' , . rangements. 
 
 ever, be warranted by the terms of incorporation of the 
 company (/). 
 
 Mr. Justice Kay (mHon-ardv. Patent Ivory Co. (;;?), which 
 is referred to with approval by Lord Justice Lindley in his 
 book (?a) ) quotes Sir Greorge Jessel's judgment in The 
 Empress Engineering Co. (o), where he said : " The contract 
 between the promoters and the so-called agent for the 
 company, of course was not binding on the company by 
 ratification : because it has been decided, and it appears 
 to me well decided, that there cannot in law be an effectual 
 ratification of a contract which could not have been made 
 binding on the ratifier at the time it was made, because 
 
 (/() See, also, In re Nortlmmher- {!) Caledonian, &;c. Etj. v. The 
 
 land Avenue Hotel (188G), 33 C D. Magistrates of HcUensburgh (1855), 
 
 16. 2 M'Q. 391. 
 
 (i) (1874), 9 C. P. 503. (;«) (1888), 38 C. D. 156, at p. 
 
 {k) Edicards v. Grand Junction 164. 
 Rail. Co. (1836), 1 M. & Cr. G50 ; {n) Lindley on Companies, p. 
 
 see, also, cases quoted in Fry on 177. 
 Sp. Perf. 3rd ed. p. 110. (o) (1881), 16 C. D. 128.
 
 38 PRINCIPAL AND AGENT. 
 
 the ratifier was not then in existence." Mr. Justice Kay 
 adds this : "It does not follow from that, that acts may 
 not be done by the company after its formation which 
 make a new contract to the same effect as the old one ; 
 but that stands on a different principle. That is to say, 
 recognizing entu-ely the well-settled law that a company 
 is bound by acts of part performance, and that when you 
 find a company in possession of the property of another 
 person you are bound, if you can, to refer that possession 
 not to trespass, but to contract ; and — as Turner, L. J., 
 said(^;), in the words I have quoted," [viz., that it would 
 be a fraud if an individual kept possession of property of 
 another person, and alleged there was no agreement, and 
 therefore the Court ought to discover what the agreement 
 was, and that it was the same in the case of a company] 
 "to find out, if you possibly can, what that contract is. 
 The Master of the Eolls excepts from his judgment, which 
 he is giving, cases of tlie kind where there have been acts 
 of a company from "v^•hich you can infer, and from which 
 you ought to infer, that there was a contract by the com- 
 pany after its formation." Mr. Justice Kay, therefore, in 
 the case before him, holding the company had, in fact, 
 adopted the promoters' contract, enforced it against the 
 company. 
 Acqmescence. "We have said ratification may be by acquiescence. If, 
 for instance, the person is an agent, acquiescence will 
 bo presumed if the princijial does not notify his repudia- 
 tion of the act of the agent within a reasonable time after 
 he is aware of what the agent has done. Thus, it has been 
 held, in the case of the purchase of goods abroad, that 
 where tlie agent told the principal what ho had done in 
 May, and the principal did not repudiate it until the August 
 following, that was too late to do so {q). The principal 
 has no right to pause and await the fluctuation of the 
 
 {p) Wilson V. IFesi JIarllcpool {'j) Frince v. Clarlc 1182Z), I B. & 
 
 Ml. Co. (1853), 2 D. J. & S. 470, 0. 186.
 
 KATIFICATION. 39 
 
 market in order to ascertain whether the purchase or sale 
 is likely to be beneficial or prejudicial. 
 
 If the agent has exceeded the price allowed to him, wtatacts 
 and the principal, although he knows it, accepts the goods am^s*cence 
 and disposes of them as his own, he will be held to have 
 ratified the act of his agent {>•). If, however, having 
 abeady advanced money on them, the principal for his own 
 protection acts as factor for his own agent towards them, 
 such a course of dealing does not amount to a ratification. 
 Taking interest on money which an agent had lent with- 
 out authority has been held evidence of ratification («) ; and 
 in another case, where the sale of goods was a fraud upon 
 the seller, and he could have recovered them in an action 
 of trover, he was held to have ratified the contract of sale 
 by bringing an action for the price (t). 
 
 Mr. Justice Story says that where an agency actually Acquiescence 
 exists, mere acquiescence of the principal will give rise to g^denfe^f 
 
 the presumption of an intentional ratification of the act ; ratification 
 T . 1 . • c 1 J 1 1 where person 
 
 but such acquiescence is lar less cogent where no such ^ot an ao-ent. 
 
 relationship exists (ii). In an action by a third party 
 
 against the principal, one of the judges held that it would 
 
 be very unsafe to say that, because there was a strong 
 
 probability of the existence of a state of things from which 
 
 a ratification might be inferred, a jury would be warranted 
 
 in acting upon it as if there were strict legal proof ; and 
 
 the other judge thought, to establish a case of authority 
 
 by ratification, there must be some substantial proof, and 
 
 it must not rest upon probability or conjecture (;r). In 
 
 Scntance v. Hawley {//), which was an action by an agent 
 
 against his principal for moneys paid on his behalf and 
 
 for his benefit, the Court required only slight evidence of 
 
 ratification, as the relation of principal and agent existed. 
 
 (r) Comical v. JTihon (1750), 1 9 B. & C. 59. 
 Ves. 509. (w) Story on Agency, § 2',":. 
 
 (s) Clarke v. Ferrier (1679), 2 (.r) Fitzgerald v. Drm/e;- (1860), 
 
 Freem. 48. 7 C. B. N. S. 374. 
 
 {t) Ferguson V, Canington (1829), (y) (1863), 13 0, B. N, S, 4o8,
 
 40 PRINCIPAL AND AGENT. 
 
 In that case certain goods had been paid for by the agent, 
 in order to get the benefit of a discount for himself, 
 before the payment was due. By this means the pro- 
 perty in the goods, which were at a warehouse, became 
 vested in the principal, and remained at his risk. A fire 
 took place ; the goods were burnt. The principal then 
 refused to pay for the goods ; but the Court held, that 
 although the prepayment was mthout his instructions, yet 
 as the principal had given the agent since the prepayment 
 another order, and had not objected to the prepayment 
 when giving such order, he had ratified the agent's act. 
 Wtat In Froze// v. BacJi-Jioufte {z), it was held a sufficient ratifi- 
 
 rSSratlon. nation by the principals that when told by their ship's 
 husband that he had insiu-ed the ship they had not 
 objected. In Bigg v. Strong {a), a son sold his own and 
 his father's interest in a piece of land ; the son usually 
 acted as agent for his father, but had not been autho- 
 rized to sell the land in question. In an action by 
 the purchaser for specific performance, the Yice-Chan- 
 cellor, in decreeing specific performance on the ground 
 of ratification, said, " The plaintiff's right to specific 
 performance must depend on his establishing a case of 
 previous authority by the father to the son, or a subse- 
 quent recognition by the father. There is no sufficient 
 evidence of previous authority ; therefore the real question 
 is, whether there was sufficient recognition by subsequent 
 conduct of the father. It is clearly established tliat the 
 father had full notice of the agreement, if not immediately, 
 or on the same day, yet certainly within five days after 
 it was signed. It cannot be considered tliat any express 
 act on his part, such as signature of the agreement by him- 
 self, or any other solemnity by him after he became privy 
 to the act done by his son on liis behalf, was essentially 
 necessary. Subject to his right to a reasonable opportunity 
 
 (;) (1771), 5 Bur. 2728. (a) (1857), 3 Sm. & Gif. o92.
 
 RATIFICATION. 41 
 
 to express his dissent, every additional day and hour of 
 silence after he became privy to the contract operates as a 
 tacit acquiescence, and raises the presumption of assent. 
 It cannot he said that tacit recognition is insufficient, for 
 if in perfect silence he accepted the price to wliicli he 
 knew he was entitled according to the agreement, it could 
 not be said that the assent and recognition were not suffi- 
 ciently binding. On the other hand, had he silently refused 
 to accept the price, it might have raised a presumption of 
 dissent." In the case before him, it was arranged the 
 purchase-money should be paid by forgiving a debt the 
 father owed. In Fothergill v. PJiillipH (b), Lord Ilatherley 
 took a similar view, holding that an agreement for sale 
 could not be objected to on the ground of non-concurrence, 
 although the brother who sold both his and his brother's 
 interest had not been authorized to make the sale, and did 
 not usually act as his brother's agent. " As at jiresent ad- 
 vised," Lord Ilatherley said, " I am of opinion that it was 
 the duty of John Phillips, if he dissented, to express his 
 dissent as soon as he was informed of what his brother had 
 done, and that if there were nothing more in the case he 
 must have been taken to have ratified the agreement." 
 
 The cases of FrccnuDi v. Hos/ier (r) and IlUho'i/ v. Where act of 
 Hatton (d) illustrate the kind of ratification the Courts P^iicipal not 
 
 ^ ' necessarily an 
 
 require. In the first, a landlord was sued for trespass and adoption of 
 r -i- j-j.TL,i ••>•!_•• agent's act, 
 
 conversion because bis agent, the broker, in distraining ^q ratifiea- 
 
 had removed a fixtiu'e. The landlord had given no special ^^°^- 
 
 instructions, and the evidence of ratification was merely 
 
 receipt of the proceeds of the sale of the fixture in one 
 
 sum with the proceeds of the distress. The Court held, 
 
 that as the principal had no knowledge a trespass had 
 
 been committed, and received the proceeds in the belief 
 
 that the warrant had been lawfully executed, he was not 
 
 liable as having ratified his agent's acts. In Ililhevy v. 
 
 (J) (1871), 6 Ch. Ap. 770. {d) (18641, 2 H. & C. 822. 
 
 (c) (1849), 13 Q. B. 789.
 
 42 PRINCIPAL AND AGENT. 
 
 Hatton, tlie agent in Africa bought a ship which was 
 ■wrongfully sold ; the principals in England adopted the 
 act, though without any knowledge of the unlawful 
 selling, by giving directions as to what he was to do with 
 the hulk, and the principals were yet held liable for a 
 conversion. In the first case, it was only the excess of 
 authority that was unlawful, and the principal did not 
 know of it ; in the second, the act of the agent in inter- 
 meddling at all with a third party's property was ah initio 
 wrong, and the principal by adopting it made himself 
 responsible. 
 Company ^ company is bound by the acts of persons who take 
 
 of persons upou themselves, with the knowledge of the directors, to 
 purporting to g^^^ |qj, ^q company, provided such persons act within the 
 
 act tor com- _ _ l j ^ i. i. 
 
 pany with limits of their apparent authority, and a person dealing 
 
 of^dh-ectors. ^0)10, fide with such persons has a right to assume they 
 
 are duly appointed (e) . The shareholders of any company 
 
 can ratify any contract which comes within the powers of 
 
 the company in the memorandum of association (/). 
 
 Eatification A ratification is in law treated as an equivalent to a 
 
 ^t within ^^ previous authority, and it follows that as a general rule a 
 
 principal's person or body of persons who are not competent to autho- 
 
 power, •••. ... 
 
 rize an act cannot give it validity by ratifying it {g) . It 
 is competent for the majority of shareholders present at 
 an extraordinary meeting convened for that object, and 
 of which object due notice has been given, to ratify an 
 act previously done by the directors in excess of their 
 authority, but within the articles. But if the object of 
 the meeting is to give the directors an extended autho- 
 rity beyond what is given by the articles, then that 
 can only be done by a meeting held in accordance 
 witli the articles, at which the number provided thereby 
 
 (e) Smith v. JMl Glass Co. (1849), pp. 139, 140. 
 8 0. B. 6G8 ; (1852), 11 0. B. 897. (ff) Per Sir Barnes Peacock in 
 
 (/) Grant v. United Ki)irj(Join Irrine v. Union Bank of Australia 
 
 Switchback Rail. Co. (1889), 40 Ch, (1877), 2 Ap. Cas. 3GG, at p. 374, 
 Uiv, 136, per Lindley, L. J,, at
 
 IIATIFICATIOX. 43 
 
 vote. The ratification of a particular act in excess of Ratification of 
 authority does not extend the power of the directors to not authorize 
 do similar acts in future ; for there is a wide distinction similar acts. 
 between ratifying a particular act which has been done in 
 excess of authority and conferring a general power to do 
 similar acts in future. Lord Justice Lindley (//) says, " A Ratification 
 ratification to be imputable to a company must be made n^st ^e'done 
 directly by the shareholders or indirectly through their ^J share- 
 agents acting within the limits of their real or apparent 
 authority, and in order that the ratification by the share- 
 holders or their agents may be proved it must be shown : 
 (1) that the parties alleged to have ratified the contract Two con- 
 knew what it was, or having had their attention drawn to ratifi^^tl 
 it did not choose to inquire into it ; (2) that they have in 
 some way recognized it and adopted it" (/). 
 
 In Grants. United Kingdom Sicitchhack EaUicay Co. (/•), 
 the shareholders ratified, at an ordinary general meeting, 
 an agreement of the directors which was outside their 
 authority, but within the objects of the company. It was 
 contended that such a ratification amounted to an altera- 
 tion of the articles, and coidd only be made by special 
 resolution ; but Lord Justice Bo wen held it was not so, 
 as the company did not purport to alter the limits of the 
 authority given generally to the directors, and that there 
 was nothing in them to prevent the company fi-om giving 
 special power to the directors in a particular case as to a 
 particular contract ; and that if the company adopted the 
 agreement that was a ratification of an una.uthorized act, 
 and not an alteration of the articles. 
 
 It has been decided that for the purposes of the Statute of Ratification 
 Frauds, the ratification of the principal relates back to the Jhe makTn^of 
 time when the agent made the contract (/), and need not the contract. 
 
 {h) Lindley on Companies, Cas. 111. 
 p. 177. {k) (1889), 40 0. D. 13o. 
 
 (i) See Banque Jacques C'ttrlier v, (l) Maclean v, Diai/i (1828), i 
 
 Banque (V Espagne (1888), 13 Ap. Bing. 722.
 
 44 
 
 PRINCIPAL AND AGENT. 
 
 be in writing. It is also so when the ratification is of the 
 variation in the performance of one of the terms of the 
 contract. Mr. Justice Blackburn said, " I cannot see why 
 the assent to a substituted mode of performance of a con- 
 tract need be in writing, and may not be by parol, though 
 the original contract must have been in writing. They are 
 quite different things — the proof of a substituted contract, 
 and the proof of a ratification or approval after performance 
 of the substituted mode of performance." 
 Onus prolandi. If there is any dispute as to the position of the person 
 alleged to be an agent, the third party must prove that 
 the person purporting to act as agent was either so in fact 
 or was held out as such. If it is a question whether the 
 agent was authorized to affix the principal's name to a 
 document, he must prove that the principal either autho- 
 rized or assented to the agent's so doing [m). 
 
 The ratification to be good must be a ratification of what 
 is lawful, not of something that is illegal. Lord Fitz- 
 gerald said, "Acquiescence and ratification must be founded 
 on a full knowledge of the facts ; and further, it must be 
 in relation to a transaction which is valid in itself, and 
 not illegal, and to which effect may be given as against 
 the party by his acquiescence in the adoption of the trans- 
 action " {n). 
 
 There can be no ratification of an indictable offence, or 
 an act contrary to public policy (o) . It was therefore held 
 by the Court of Exchequer, where a man had agreed to 
 recognize a promissory note which had been forged as his 
 own, that he could not by ratification make it his note {p). 
 Chief Baron Kelly, in delivering tlie judgment of the 
 majority of the Court, viz., Channell and Pigott, BB., 
 Martin, B., dissenting, in Brooh v. Hool:, said : — " Many 
 
 An illegal 
 act cannot 
 be ratified. 
 
 Forgery. 
 
 (»i) Sec Lord Sclbomc in Macken- 
 zie V. British Linen Co. (1881), 6 
 Ap. Cas. at p. 82. 
 
 («) Jianque Jacques Cnrtier v. 
 La Manque (V Enpar/nc {\9i%?i), 13 Ap. 
 
 Cas. Ill, at p. 118. 
 
 (o) Smith on Mercantile Law, 
 10th ed. Vol. I. p. 164. 
 
 {p) Brook V. Uook (1871), L. R. 
 G Ex. 89.
 
 RATIFICATION. 45 
 
 cases have been cited to show that where one sued upon 
 a bill or note has declared or admitted the signature is 
 his own, and has thereby altered the condition of the 
 holder, to whom the declaration or admission has been 
 made, he is estopped from denying his signature upon an 
 issue joined in the action upon the instrument. But here 
 there was no such declaration or admission ; on the con- 
 trary, the defendant distinctly declared and protested 
 that his alleged signature was a forgery, and although in 
 the paper signed by the defendant lie describes the bill as 
 bearing his signature and Jones', I am of opinion that 
 the true effect of the paper, taken together with his 
 previous conversation, is that the defendant declares to 
 the plaintiff, ' If you forbear to prosecute Jones for the 
 forgery of my signature, I admit and will be bound by 
 the admission that the signature is mine.' " This question 
 came up again in Mackenzie v. Britiah Linen Co. [q] as to 
 how far a forged instrument could be ratified. The forger 
 there had had no business relations with the person whose 
 name he forged. Lord Blackburn says : — " If I thought 
 it were satisfactorily proved that Mackenzie, before Eraser 
 uttered the bills with his name upon them, knew that 
 Fraser was going to do so, and took no steps to hinder 
 him, I should not have much hesitation in drawing the 
 inference that he did authorize him. But even though it 
 was not made out that the signatures were authorized 
 originally, it still would be enough to make Mackenzie 
 liable if, knowing that his name had been signed without 
 authority, he ratified the unauthorized act. Then the 
 maxim ' Omnis ratihabitio retrotraJdtur ct mandato priori 
 (equiyaratur ' would apply. I Avish to guard against being 
 supposed to say that if a document with an unauthorized 
 signature was uttered under such circumstances of intent 
 to defraud that it amounted to the crime of forgery, it is 
 
 (j) (1881), 6 Ap. Cas. 82.
 
 46 PRINCIPAL AND AGENT. 
 
 in the power of the person whose name was forged to 
 ratify it, so as to make a defence for the forger against a 
 criminal charge. I do not think he could. But if the 
 person whose name was without authority used chooses 
 to ratify the act, even though known to be a crime, he 
 makes himself civilly responsible just as if he had origi- 
 nally authorized it." In the case before the House of 
 Lords, it was not proved that the appellant whose name 
 was forged knew of the existence of the bill sued on, and 
 it appeared the bank had discounted the bill before the ap- 
 pellant could have told them that it was forged ; the House 
 of Lords therefore gave judgment for the appellant. The 
 case of Brook v. Hook does not seem to have come before 
 their lordships' notice, or been cited in argument. It is 
 submitted, as the result of these two cases, that if a docu- 
 ment is forged, and both the third party and the principal 
 know it is, it cannot be ratified ; but that if the principal 
 by his conduct induces the third party to beHeve it is a 
 genuine document, and the third party alters his position, 
 the principal is civilly liable as having ratified the signa- 
 ture. See also Freeman v. Cooke (r). 
 
 It was contended before the Court of Appeal in another 
 case, that a board of directors of a bank had by their con- 
 duct acquiesced in the appropriation of certain assets to 
 tlie payment of a personal debt of its late manager ; but 
 the Court of Appeal held that such acquiescence, if it had 
 existed, would have been illegal, and a breach of duty by 
 tlie directors, and that under such circumstances no ratifi- 
 cation was possible («) . 
 An :u-t wliich It is also clcar that when an act is altogether beyond the 
 piim'i riL powcrs of the principal, it cannot be ratified (/), as where 
 ■would be uKra a Company purported to assent to a contract which related to 
 be ratified.^ Something altogether outside the memorandum of associa- 
 
 (>•) (18'18), 2 Ex. 654. (C) Ashhury Railway Carriage Co. 
 
 \h) lla)iqac Jacqnvn Cartier v. v. Itiche (1874), L. E. 7 H. of L. 
 La lianque (C Espagnc, ubi nupra. G53.
 
 RATIFICATION. 47 
 
 tion (wliich defines the objects of the company), the Court 
 held that, even if every member consented to such ratifica- 
 tion, it was bad ; for the twelfth section of the Companies 
 Act of 1862 only allows companies to alter the memo- 
 randum for the purpose of increasing the capital, altering 
 the division of shares, and similar objects. In the case 
 of The Aslihiiry Raihcay Carriage Company v. Rivhe, the 
 company, being constituted to make railway carriages, &c., 
 purported to contract to supply the contractors with funds 
 to build a railway abroad. Lord Cairns said, " The ques- 
 tion is not as to the legality of the contract, but the question 
 is as to the competency and power of a company to make 
 the contract. Now I am clearly of opinion that this contract 
 was entirely beyond the objects in the memorandum of 
 association. If so, it was thereby placed beyond the 
 powers of the company to make the contract. If so, my 
 Lords, it is not a question whether the contract ever was 
 ratified or was not ratified. If it was a contract void from 
 the beginning, it was void because the company could not 
 make the contract. If every shareholder of the company 
 had been in the room, and every shareholder had said that 
 is a contract which we desire to make, which we authorize 
 the directors to make, to which we sanction the placing of 
 the seal of the company, the case would not have stood in 
 any different position from that in which it stands now. 
 The shareholders would thereby, by unanimous consent, 
 have been attempting to do the very thing which by Act 
 of Parliament they were prohibited from doing " {i(). 
 
 The thing that the principal jjurports to ratify may The ratifica- 
 either be a contract entered into by his a^ent or an act ^^f ? ^^^ ^\ 
 
 , , " 01 (a) au act, 
 
 done by him. As we have seen, if it is a contract it must (b) contract of 
 have been entered into on the principal's behalf, and be <= ^^ »• 
 within his powers, and not be for an illegal purpose nor 
 one contrary to public pohcy. 
 
 {t() See also Jrdwe T. Union Bank of AustraUa (1877), 2 Ap. Cas. 3G6, 
 at p. 374.
 
 48 
 
 PRINCIPAL AND AGENT. 
 
 Ratification 
 must be of the 
 whole trans- 
 action, and 
 not of j)art. 
 
 Lawful act 
 cannot be 
 made un- 
 lawful by 
 ratificatiou. 
 
 The principal can, however, only ratify the contract 
 or the act of the agent wholly, and not in part, and 
 he cannot adopt part and repudiate the rest. Lord 
 EUenborough (x) : " If you adopt a man as your agent 
 on your hehalf you must adopt him throughout and take 
 his agency cum onere." In Bristow v. WJiitmore {y) the 
 master of a ship without authority entered into a charter- 
 party by which he was put to expense. The plaintiff 
 wished to reap the profits of the charter-party without 
 paying these expenses. Lord Cran worth, in giving judg- 
 ment, said, " The principle which must, I think, govern 
 this case is one of universal application, namely, that where 
 a contract has been entered into by one man as agent for 
 another, the person on whose behalf it has been made 
 cannot take the benefit of it without bearing its burthen. 
 The contract must be performed in its integrity. Here 
 the appellant, as agent for the owner, now represented by 
 the respondents, stipulated for certain benefits in considera- 
 tion of certain burthens which he undertook to bear and 
 certain labours which he undertook to perform. If he had 
 authority to enter into such a contract, the principal is of 
 course bound. If he had not authority, then the j)riucipal 
 may repudiate the contract ; but he cannot take that part 
 of it which is beneficial to him without performing that 
 which is onerous." 
 
 As to acts of the agent which are not contracts. It 
 depends to a great extent what the natm-e of the act of 
 the agent or the person purporting to act as agent is as to 
 whether it can be ratified. Mr. Justice Story says, " If the 
 act done by such person would, if authorized, create a 
 right to havQ some act or duty performed by a third 
 person, so as to subject him to damages or losses for the 
 non-performance of the act or duty, or would defeat a 
 right or estate abeady vested in the latter, then subse- 
 
 (,/•) lIovU V. rack (180G), 7 East, 
 104. 
 
 (y) (1861), 
 
 p. 401. 
 
 9 II. of L. 391, at
 
 RATIFICATION. 
 
 49 
 
 quent ratification or adoption of tlie unauthorized act by 
 the principal will not give validity to it so as to bind such 
 third person to the consequences." And the Editors of 
 Smith's Commercial Law (s) lay down the rule that " An 
 estate once vested cannot be divested, and an act lawful 
 at the time of the performance cannot be rendered un- 
 lawful by the application of the doctrine of ratification." 
 
 There is a difference between the principal's right to An act which 
 adopt a contract and a bare act, the effect of which would ^q^^j '^y^ 
 be to raise a duty towards him from the third party, and rise to a duty- 
 subject that third party to damage for its non-performance, rati^ed ex post 
 Such an act can never, if unauthorized at first, be con- f^"'^°- 
 firmed by any recognition ex post facto. For instance, 
 in an action for non-payment of goods, the plaintiff could 
 not prove that he had ever demanded their payment, and 
 it appeared that the only demand for payment which had 
 been made was made by a clerk of the solicitor, who 
 had not been authorized to make it by the plaintiff, 
 but only by his master, the solicitor. The demand was 
 held to be bad and the plaintiff non-suited, ratification not 
 being possible (a). Similarly, in the case of a stoppage 
 in transitu of goods a subsequent ratification was held 
 bad {h) . The transit us of goods ends when they have 
 arrived at their destination, and when the person to whom 
 they are consigned demands them, tendering the freight. 
 In Bird V. Brown, unauthorized persons purported to stop 
 the goods on the 4th May ; on the 11th May the consignees 
 demanded them, tendering the freight. On the loth May 
 the principal ratified the unauthorized stoppage, and it was 
 held such ratification was too late, and could not alter the 
 property of the goods, which had vested on the 11th May, 
 when the consignees demanded the goods. 
 
 In Lord Audlcy^s case [c) a fine with a proclamation was 
 
 (s) Vol. I. p. 164. {h) Bird r. Brown (1819), 4 Ex. 
 
 {a) Coore v. Calloway (1794), 1 78(5. 
 Esp. 115. ((•) Cro. Eliz. 561. 
 
 W. E
 
 50 
 
 PRINCIPAL AND AGENT. 
 
 Hatification of 
 such an act 
 giving rise to 
 a duty, good 
 as between 
 principal and 
 agent. 
 
 Katification 
 may be too 
 late. 
 
 levied of certain land, and a stranger within five years 
 afterwards, in the name of him who had right, entered to 
 avoid the fine. After the five years, but not before the 
 party who had the right ratified and confirmed the act of 
 the stranger, this was held to be inoperative, though such 
 a ratification within five years would probably have been 
 held to be good. So a notice to quit must be such as a 
 tenant may act upon with safety, that is, one which is, 
 in fact, binding on the landlord (d) ; and therefore, if an 
 unauthorized person gives a notice to quit, the landlord 
 cannot ratify it afterwards (e) . 
 
 Although the principal cannot ratify, as between himself 
 and third parties, an act which if authorized would give 
 rise to a duty, yet he may do so as between himself and 
 the agent. For instance, where a person claimed rents 
 from tenants on behalf of the real owner, and received 
 them from the tenants, and the twelve years afterwards 
 ran out in which the real owner could assert his title to 
 the land, the agent was not allowed to set up the Pre- 
 scription Act against the owner, and it was held that his 
 acts as such agent, though unauthorized, might be ratified 
 (as between himself and the owner) by the true owner, 
 and that they were so ratified by the principal bringing 
 his action within a reasonable time after he discovered his 
 title. The accumulated rents and profits were also directed 
 to be handed over by the agent, who was held to have 
 made himself a trustee of them on behalf of the owner (/). 
 
 The ratification may be too late. Thus, in Waiter v. 
 James, an agent, without being authorized, paid a sum 
 on behalf of the principal to the plaintiff Walter, to 
 whom his principal owed money, and then, finding he 
 was not authorized to pay it, received it back from him. 
 
 (cl) Jonrs V. r/iipps (18G8), L. R. 
 3 Q. B. r)G7. 
 
 (c) But HOC llu/ht V. CutJid 
 (1804), 5 Eaat, 491 ; GoocUUlc v. 
 
 Woodward (1820), 3 B. & Aid. 689. 
 (/) Lyell V. Kennedy (1889), 14 
 Ap. Can. 437.
 
 RATIFICATION. 51 
 
 "Walter then brouglit an action for it against the principal, 
 who j)lca(led that his agent had already paid it. But the 
 Court held that it was too late for hira after the repay- 
 ment to ratify or adopt the act of the agent {g). 
 
 But a person may ratify a contract of insiu*ance after Contract of 
 the loss had happened. This is an exception to the rule, ^^c^e'^mayTe' 
 and is explained by Chief Justice Cockhiu-n as being so ratified after 
 because the loss insured against is very likely to haj)pen 
 before ratification, and it is taken that the insurance so 
 effected involves that possibility as the basis of the contract. 
 Thus, it was held, where a policy of marine insurance was 
 made by one person on behalf of another without autho- 
 rity, it might be ratified, after the loss of the thing insured, 
 by the party on whose behalf it is made, though he knows 
 of the loss at the time of ratification {h). 
 
 The case of Bolton, v. Lambert (i) is difiicult to su2:)port Bolton v. 
 on the ground of absolute justice. There the defendant ^^"^"^''^• 
 made an offer to buy some sugar works to an authorized 
 agent. The offer was accepted, though there was no 
 authority to do so. The defendant then withdrew his offer, 
 and it was not until some days after the offer had been 
 withdrawn that the principal ratified the acceptance of his 
 agent. It was contended for the defendant that this rati- 
 fication was too late ; but the Court of Appeal held it was 
 not. Lord Justice Lindley, in his judgment, said : " The 
 question is, what is the consequence of the withdrawal of 
 the offer after acceptance by the assumed agent, but before 
 the authority of the agent has been ratified ? Is the with- 
 drawal in time ? It is said, on the one hand, that the 
 ordinary principle of law applies, viz., that an offer may 
 be withdrawn before acceptance. The proposition is, of 
 course, true. But the question is — acceptance by whom ? 
 It is not a question whether a mere offer can be withdrawn, 
 
 [fj) Walter v. James (1871), L. K. (A) Williams v. Korth China In- 
 
 6 Ex. 124. surayice Co. (1876), 1 C. P. D. 757. 
 
 (j) (1889), 41 C. D. 295. 
 
 e2
 
 52 PRINCIPAL AND AGENT. 
 
 but the question is wiietlier, when there has been in fact an 
 acceptance which is in form an acceptance by the prin- 
 cipal through his agent — though the person assuming to 
 act as agent has not then been so authorized — there can or 
 cannot be a withdrawal of the offer before ratification of 
 the acceptance ? I can find no authority in the books to 
 warrant the contention that an offer made and in fact 
 accepted by a principal, through an agent or otherwise, can 
 be withdrawn. The true view, on the contrary, appears to 
 be that the doctrine as to the retrospective action of rati- 
 fication is applicable. If we look at Mr. Brice's (the 
 counsel who argued for the defendant) arguments closely, 
 it will be found to turn on this : that the acceptance was 
 a nullity, and unless we are prepared to say that an ac- 
 ceptance of the agent's was absolutely a nullity, Mr. Brice's 
 contention cannot be accepted. That the acceptance by 
 the assumed agent cannot be treated as going for nothing, 
 is apparent from Walter v. James (/.•). I see no reason to 
 take the case out of the application of the general principle 
 as to ratification." As to this, it is submitted that it seems 
 inequitable that a person making an offer to a person he 
 believes authorized, should be bound by such unauthorised 
 person's acceptance, while the principal is not bound. 
 It is submitted that the only effect of such an acceptance 
 is to make the person giving it liable for breach of war- 
 rant of autliority. 
 
 If the principal ratifies an act of the agent which is a 
 
 tort, lie makes himself liable for it (/). 
 
 Ratification, Jf tlio agcnt is acting for a disclosed principal, the ratifi- 
 
 a^'ont's iia- cation of the contract by the principal will relieve the agent 
 
 ^iiity. h'om all liability with respect to it {i»). If the principal is 
 
 undisclosed, ratification will not protect the agent from 
 
 liability, but only give the third party an option as to 
 
 (/■:) mi supra. (1819), 13 Q. B. 7cS0. 
 
 (/) JJi/buri/ V. JTaiton (1864), 2 {m) Spittle v. Lavender (1821), 2 
 
 II. & C. 822 ; Freeman v. liosher Brod. & Biug. 452.
 
 RATIFICATION. 63 
 
 wliom he is to sue. Lord Cairns says, "I take it to 
 be clear that where an agent contracts in his own name 
 for an undisclosed principal, the person with whom he 
 contracts can sue the agent, or he may sue the prin- 
 cipal" (it). (See " Liability of Agent to Third Party.") 
 
 If the act of an agent is a tort the agent is liable. It 
 was therefore held that a clerk was liable for conversion, 
 who had forwarded to his master goods to which the latter 
 had no title ; for a person is guilty of conversion who inter- 
 meddles with another person's property and disposes of it ; 
 and it is no answer that he acted under the authority of 
 another who had no authority to dispose of it. And the 
 Court is governed by principles of law, and not by the hard- 
 ship of any particular case. For what can be more hard than 
 the common case in trespass, where a servant has done some 
 act in assertion of a master's right, that he shall be liable 
 not only jointly with the master, but if the master cannot 
 satisfy it, for every penny of the whole damage, and his 
 person also shall be liable for it ; and what is more, that he 
 shall not recover contribution (o), for there is no contri- 
 bution between joint tort feasors. 
 
 By the 2nd section of the Infants' Relief Act, 1874, it Ratification 
 is enacted that no action shall be brouglit whereby to ^ ^^ *^ • 
 charge any person upon any promise made after full age 
 to pay any debt contracted during infancy or before any 
 ratification made after full age of any provision or contract 
 made during infancy, whether there shall or shall not be 
 any new consideration for such promise or ratification after 
 full age. 
 
 («) Kendall v. Hamilton, 4 Ap. (o) Fer Lord EUenborough in 
 
 Cas. 501 ; 48 L. J. C. P. 704 ; 41 Stephens v. Elwell (1815), 4 M. & S. 
 L. T. 418. 258.
 
 54 
 
 rillNCIPAL AND AGENT. 
 
 CHAPTEE VI. 
 
 THE AUTHORITY OF AN AGENT. 
 
 Agent's 
 authority — 
 as between 
 timself and 
 principal ; 
 as between 
 principal and 
 third party ; 
 
 as between 
 principal and 
 agent. 
 
 The authority of an agent may be considered from two 
 points of view. The authority which, as between himself 
 and his principal, he is invested with, and the authority 
 which, as between the third party and the principal, the 
 principal will be estopped in denying that his agent 
 possesses. 
 
 Let us first consider the agent's authority as between 
 himself and his principal ; in this case the amount of 
 authority the agent has depends on the actual authority 
 the principal has actually in fact given the agent. If we 
 divide agents according to the authority given to them, 
 there are three kinds of agents — universal agents, general 
 agents, and particular agents. A universal agent is an 
 agent for all purposes. Such an agency very seldom, if ever, 
 exists ; but very large powers are occasionally given to 
 agents when the principal is about to go abroad and wishes 
 someone at home to represent him. A general agent 
 has rather more limited powers ; he is usually a person to 
 Avliom the princij)al has entrusted the management of a par- 
 ticular business, such as an estate agent. The third class of 
 agent is a particular agent, i. e., an agent sent to deliver a 
 particular message or buy a particular thing on one occasion. 
 As between tlie agent and principal, when a question arises 
 as to whether the agent has exceeded his authority or not, 
 tlio answer to it will depend on what was the authority 
 actually given. If tlie agent is a universal agent, it 
 is hardly possible to conceive that he could exceed his 
 authority, thougli lie might abuse it, and so be held liable 
 for a l)roach of duty. If the agent is a general agent, the
 
 THE AUTHORITY OF AN AGENT. 55 
 
 test wlietlier the authority has been exceeded, depends, 
 first, on the construction of the particular document by 
 which it was given if the authority is in writing, and 
 next, on what in the ordinary course of business would be 
 the authority of an agent in the particular employment. 
 For instance, if a stockbroker were authorized to buy 
 shares, and a question arose as to whether he had exceeded 
 his authority, the first question would be, What were his in- 
 structions ? and next, Did he act according to the custom of 
 the Stock Exchange ? for he would be held justified in acting 
 according to the ordinary course of the Stock Exchange, 
 unless he had been expressly forbidden to adopt a particular 
 course {a) ; and an insurance agent would not, in the usual 
 course of business, have authority to adjust a loss. 
 
 An agent must adhere strictlj'' to the authority he has 
 been given — thus, if he is employed by the holder of a 
 bill to receive payment of it from the acceptor, he cannot 
 receive payment clogged with a condition ; and the agent 
 cannot treat such conditional payment as absolute payment, 
 and cancel the bill before he has received the principal's 
 assent to the condition [li). 
 
 If a principal gives dii-eetions to his agent in such uncer- Ambiiruity of 
 tain terms as to be susceptible of two different meanings, ^^^ "^^^-^ ' 
 and the agent hona fitle adopts one of them and acts upon 
 it, it is not competent to the principal to repudiate the 
 act as unauthorized because he meant the order to be read 
 in the other sense of which it was equally capable [c). 
 
 An authority must include all the means necessary to Autlioritj 
 be used in order to accomplish the object of the authority, "^'^^^'^'^^ ^"^ 
 
 ■■- . •' _ J necessary 
 
 For instance, where the object of the authority is to settle means of 
 the accounts of an executorship, it may include an autho- ^^^^^ ^° ^ ' 
 rity to sue and to institute an action in Chancery id). 
 Thus an authority to sell a business would probably include 
 
 {a) Co?csv.i?r)s^oere (1869), 4 Ch. [c) Ireland v. Livingston (1871), 
 
 Ap. 3. 5 E. & I. Ap. 395, at p. 416. 
 
 (b) Bank of Scotland X. Bominion {d) Iloicardv. Jiaillie (1796) 2H 
 
 Bank, (1891) Ap. Cas. 592. Bl. G28.
 
 66 
 
 PRINCIPAL AND AGENT. 
 
 Incidental 
 
 powers. 
 
 TSTiat powers 
 incidental : 
 mixed 
 question of 
 law and fact. 
 
 Authority 
 interpreted 
 by usages of 
 trade. 
 
 a power to sell it subject to a eonclition that the vendor 
 would not commence a snnilar business (c/) . 
 
 Not only has an agent the authority which includes all 
 the means necessary to be used in order to accomplish the 
 authority, but there are always a certain number of 
 incidental or minor powers which are attached to the 
 general authority ; as, for example, generally an agent 
 authorized to sell has power to receive payment (f), though 
 it is not so in the case of auctioneers, and qmere whether 
 it is so as to brokers (/). "What these powers are must 
 depend to a great extent on the nature of the agency and 
 the circumstances ; for instance, a farm bailiff has not, as 
 such, authority to draw bills of exchange for his master (^). 
 
 It is a mixed question of law and fact what these powers 
 are which is deduced from the particular business, employ- 
 ment, or character of the agents themselves. If an agent 
 has authority to subscribe a policy, he may also adjust 
 it (//), or refer it to arbitration (/). But the insm-ance 
 broker is not the agent of the under^Titer to pay a loss, 
 and if he does so it is an officious payment, and he cannot 
 recover it. " To bind one man by a payment made by 
 another, there must either be a request before, or an assent 
 afterwards ; otherwise no man behind my back can make 
 me his debtor" (/.•). 
 
 The authority is construed to be given subject to the 
 known usages of the trade or the business the subject- 
 matter of the agency, and they become exponents of the 
 implied powers of the agent ; for instance, an authority to 
 an insurance agent to insure includes an authority to refer 
 the amount of the loss to arbitration, and to settle it 
 generally, since that is the habit of insurance agents (/) ; 
 
 {d) Ilawksley v. Ouiram, (1892) 3 
 Ch. 359. 
 
 [e) Capel V. Thornton (1828), 3 
 Car. & r. 352. 
 
 (/) Miinn V. Joliffc (1834), 1 M. & 
 Rfjb. 32(";, //«-Littiedalc, J., p. 327. 
 
 (</) I)avahon v. Stanley (1841), 
 2M. & G. 721. 
 
 (/;) Itichardsonv. Anderson (1805), 
 1 Camp. 42, note. 
 
 (t) Uoodmn V. Brooke (1815), 4 
 Camp. 163. 
 
 (/■•) Per Buller, J., Bell v. Auldjo 
 (1784), 4 Doug. 48. 
 
 (/) Goodson V. Brooke (1815), 4 
 Camp. 163.
 
 THE AUTHORITY OF AN AGENT. 57 
 
 "but an insurance broker cannot cancel a policy without 
 express instructions. The third X)arty, the insuring com- 
 pany, has a right to consider him as having authority to 
 do all which a broker can do in discharge of his duty in 
 effecting a policy, and they might safely settle with him 
 in case of a loss if that be the ordinary mercantile usage : 
 but there is no suggestion that it is part of the ordinary 
 duty or power of a broker to cancel agreements once 
 validly and completely entered into (m) . It is an elemen- Though cus- 
 tary proposition that a custom of trade may control the J^^e'cS per^- 
 mode of performance of a contract but cannot change its formance, 
 
 . . . . , , Tj ^ 1 1 • • ^ 1 • ^oes not alter 
 
 intrinsic character. It may regulate as extrinsic what is character of 
 done in the market where the contract does not provide contract, 
 otherwise. It cannot overrule what is agreed upon between 
 the parties, whether intrinsic or extrinsic. The agent 
 may perform the business he is engaged for according to 
 the usages of the market in matters of detail, although 
 the principal is not aware of such usage, because every 
 authority to do a thing, not specifying the way, implies 
 authority to do it in a reasonable way, which the usual 
 -way jjriind facie is. But no usage unkno"UTi to the prin- 
 cipal can justify a broker in converting himself into a 
 principal seller (;?). If the agent is a stockbroker the stock Ex- 
 authority is construed as being subject to the rules and ^^^^o^ rules, 
 customs of the Stock Exchange and interpreted by them, so 
 far as they are reasonable. It has been held a reasonable 
 custom that a stockbroker should have a right to close his 
 principal's account if the balance of differences in the 
 broker's favoiu' has not been paid him by the pay-day of 
 the current settlement, provided the broker has given his 
 principal notice of the amount of the balance before the 
 pay-day (o) . The custom that the jobber is only liable until 
 he gives the names of persons who are unobjectionable and 
 
 (w) Xeiios V. Wickham (1867), 646, at p. 656 ; see also 7 C. B. S4 : 
 
 L. R. 2 H. of L. 286, p. 321. (1875) L. R. 7 E. & I. Ap. 812. 
 
 (w) Fer Willis and Keating, JJ., (o) Davis cj- Co. v. Ifoward (1890), 
 
 ^obuum V. Mollett (1874), 5 C. P. 24 Q. B. D. 69L
 
 58 PRINCIPAL AND AGENT. 
 
 capable of contracting {2)), and the purcliaser is liable to tbe 
 third party {ff) , has been held to be good. The custom of 
 the Stock Exchange also settles when the contract has been 
 completed between the agent and third party, who there- 
 fore takes any incidental liability arising out of it (r). 
 
 Custom must ^\^q custom must, however, be a reasonable one. If 
 be reasonable. . . 
 
 it is an unreasonable one, such as to give the go-by 
 
 to provisions of an Act of Parliament, the principal will 
 
 not be bound by the custom. For example, on the 
 
 Stock Exchange it is usual not to specify the numbers 
 
 of the shares bought, although by Leman's Act (.s) it 
 
 is enacted that any contract for the sale of shares which 
 
 does not specify the numbers of the shares shall be void. 
 
 An agent who was a stockbroker tried to recover the 
 
 price of shares he had paid for, the numbers of which were 
 
 not specified, from his principal, and the Court of Appeal 
 
 held that the custom of the Stock Exchange to recognize 
 
 such contracts as valid was not reasonable and did not 
 
 bind persons who did not know of it (/) . If the principal 
 
 knows, however, of an unreasonable custom, and contracts 
 
 with his agent with reference to it, he may be bound by 
 
 it {11) ; but the agent must prove, if he desires to bind his 
 
 principal by a custom that has been declared unreasonable, 
 
 or is so in fact, first, that the principal knew of the custom ; 
 
 and, secondly, that he consented to be bound by it (r) . 
 
 Lord Cairns pointed out, in Coles v. Bristoivc, that no 
 
 private instructions given by a stockbroker can limit the 
 
 general authority which, by employing him as broker on 
 
 the Stock Exchange, the principal gives to soil according to 
 
 the custom of the Exchange (?r), and this principle applies 
 
 ( p) Niclcalh v. Merry (1874), 7 E. (,«) 30 & 31 Vict. c. 29. 
 
 & I. Ap. 530; Coles v. Bristoive {t) Ferry v. Bimiclt (1885), lo 
 
 (ISG'J), 4 Ch. Ap. 3, pp. 10, 11. Q. B. D. 388. 
 
 iq) Lorinrj v. Davis (188G), 32 C. («) Seymour v. Bridyc (1885), 14 
 
 D. G25. Q. B. D. 4G0. 
 
 (>•) Coles V. Bristoive, idn supra; {v) Coo]ce\. Eshelby [\2>%1),\2 At^. 
 
 Bora-inffv. dhrpherd {IHTl), L. R. G Cas.271 ; B/acAbiir>iv. Mason [ISO'S), 
 
 Q. B. 309. 9 TiincH, 28G. 
 
 [tv) Coles v. Bristoive, ubi supra.
 
 THE AUTHORITY OF AIs' AGENT. 59 
 
 to all trade or busiuess agencies ; and so true is the doctrine 
 that the authority is subject to the ordinary usages of trade, 
 that if the agent adheres to them, and loss is caused to the 
 principal in consequence, he will not be liable (./■) . 
 
 But if the custom when applied would enable the broker Custom can- 
 or agent to earn his commission without making the con- nature "of 
 tract he has agreed to, as when instead of buying for the contract _ 
 principal on the market he sells his own goods to him, it cipal and 
 will not be supported, for it would do away with the one ^&^^*- 
 thing that the agent is required to do, and would change 
 the intrinsic character of the contract of employment, 
 changing its nature altogether {y) . 
 
 When the authority is given by power of attorney it is Authority 
 construed strictly {z), that is to say, that when an act pur- p^^^j, J^ 
 porting to be done under a power of attorney is challenged attorney, how 
 as being in excess of the authority conferred by the power, 
 it is necessary to show that on a fair construction of the 
 whole instrument the authority in question is to be found 
 within the four corners of the instrument, either in express 
 terms or by necessary implication {a). An authority to 
 sell a business as a going concern probably gives a power 
 to insert a clause in the contract restraining the vendor 
 from carrying on business within a certain distance {b). 
 
 In construing general words in powers of attorney it Construction 
 must be remembered that they do not confer upon the 8"eneral 
 
 •^ i words m a 
 
 agent powers at large, but only such powers as may be power of 
 necessary, in addition to those previously specified, to ^ °^^J- 
 carry into effect the declared purposes of the power of 
 attorney (c) ; for these instruments only give the general 
 powers necessary to carry the purposes of the special 
 powers into effect ; for instance, a power of attorney to 
 receive debts due does not authorize the agent to indorse 
 
 (.(•) EmseU v. Uaul^nj (1794), 6 (1893) Ap. Cas. 170. 
 T. R. 12. [b) Fir Lindley, L. J., Hawlslcy 
 
 {y) Robinson v. MoUctt (1874), 7 v. Outram, (1892) 3 Ch. 359, at p. 
 
 E. & I. Ap. 802. 375. 
 
 [z] Athrood \. ]\[n)nii»(jf: (1827), (<') Bninnt v. Banqnc dit Peuplc, 
 
 7 B. & C. 278, at p. 283. (1893) Ap. Cas. 170 ; Withingtvn 
 
 («) Bryant v. Banque dti Feuple, v. Herring (1829), 5 Bing. 442.
 
 60 
 
 PRINCIPAL AND AGENT. 
 
 Custom can- 
 not increase 
 or vary au- 
 thority given 
 in power of 
 attorney. 
 
 and negotiate a bill (c) ; nor can lie negotiate or indorse a 
 bill Tvlien the power gives bim autborit y to receive all salaries 
 and money belonging to tbe principal (d). So also wbere 
 a man bad two businesses, one of wbicb belonged entirely 
 to bim, and tbe otber was a partnersbip business, it was 
 beld tbat a power of attorney wbieb be gave to one of 
 bis partners to accept bills " for bim and on bis bebalf " 
 must be confined to accepting bills in tbose cases wbere it 
 was rigbt for tbe agent to accept tbem in tbe donor of tbe 
 power's individual capacity, /. e., for tbe purpose of bis 
 private business. And it was beld tbe power did not 
 autborize tbe partner accepting bills for tbe joint business, 
 for no power of attorney was requisite as to partnersbip 
 transactions, for partners migbt bind tbe firm by tbeir 
 acceptance (e). In Kihjour v. Finlyson (/) an equally 
 strict construction was put on an autbority in •^Titing 
 wbieb was contained in a notice of dissolution of part- 
 nersbip, tbe Court bolding tbat tbe agent bad not tbe 
 autbority to indorse a bill of excbange altbougb tbe 
 autbority to tbe agent was as follows : — " All demands 
 upon tbe above firm will be paid by Tbomas Finlyson, 
 of Bow Cbui'cbyard, wbo is empowered to receive and 
 discbarge all debts due to tbe said partnersbip." A power 
 of attorney in furtberance of partnersbip pm-poses does not 
 extend to give a power to dissolve tbe partnersbip {g) . 
 
 If eitber tbe agent or a tbird person relies on a power 
 of attorney or a written document for sbo"«dng tbat tbe 
 principal bas autborized tbe act, be cannot give evi- 
 dence of custom to vary tbe written autbority (/c), tbe 
 usages of trade being only admissible for tbe purpose 
 of interpreting tbe powers (/). So a power to sell goods 
 
 (c) Murray v. East India Co. 
 (1821), 5B. & Aid. 204. 
 
 {d) Hogg V. Snaith (1808), 1 
 Taunt. 347. 
 
 (e) Attuood V. Munnings (1827), 
 7 B. & C. 278. 
 
 {f) (1789), 1 H. Bl. 156, 
 
 [g) Harper v. Godsell (1870), 
 L. R. 5 Q. B. 422. 
 
 {h) Hogg\.S}iaith[\im),\Tsimii. 
 347. 
 
 (i) See ante, Howard v. BailiU 
 (1796), 2 H. Bl. 618.
 
 THE AUTHORITY OF AN AGENT. 61 
 
 did not authorize the agent to barter (/.•) or pledge (/) ; 
 and a fortiori not for his own debt when the third party 
 has notice that the agent is not the owner {m). 
 
 But the agent's authority, although in writing, may Written 
 have been either verbally or tacitly extended by the ^"thoritymay 
 
 •^ ^ ''bo extended. 
 
 principal, and then, of course, the agent will not be verbally or 
 limited to the four corners of the document, but be able to '^°^ •*"' 
 show that he had authority aliunde {n). For the maxim 
 " exprcssKDi facit ccsmre tacitum^^ as applied to WTitten 
 authorities, only holds good when the whole authority 
 grows out of the writing (o). This is only consistent 
 with common sense, for if a man by his conduct leads 
 third parties to believe that he has given his agent a 
 larger authority than he has given him by a document 
 in writing or actual words, it would be manifestly unfair 
 for him to be able to avoid responsibility by asking it to 
 be proved that the agent was given authority in w^riting 
 or verbally to do the act. 
 
 As has been pointed out, the authority of an agent Holdino- out 
 as between principal and third party is the authority °* agent, 
 which the principal held the agent out to have, or, in 
 other words, the authority which the principal led the 
 third party to think he gave the agent, i.e.^ his appa- 
 rent or ostensible authorit}^ If a person was employed 
 only once to buy an article, and he is not an agent 
 by trade or occupation, the authority which the princijial 
 gave the agent, and that which the principal would be 
 estopped by law from denying the agent had, are practi- 
 cally and to all purposes the same. If the agent exceeded 
 his authority under such circumstances, the third party 
 would only have a right of action against him for breach 
 of warranty of authority, and has no remedy against the 
 principal. But if the person who was employed to buy 
 
 (/•) (?M«r>Yiro V. Pei/e (1820), 3 B. (;«) T)e Bouchout v. Goldsmid 
 
 & Aid. 616. (1800), 5 Ves. 210 ; see also Kalten- 
 
 {I) McComhic V. Bavies (1805). 7 bach v. Lewis (1885), 10 Ap. Cas. 
 East, 5 ; and see Cole v. L. cj- N. IF. G17. 
 Bank (1875), L. R. 10 C. P. 354. (h) Story, ^ 79. 
 
 (o) Sect. 79.
 
 62 
 
 PRINCIPAL AND AGENT. 
 
 Authority of 
 wife. 
 
 Authority of 
 agent, as 
 between prin- 
 cipal and 
 third party, 
 is his osten- 
 sible autho- 
 rity. 
 
 was a stockbroker, a factor, or any kind of well-known 
 agent, whose powers are well known, both by persons in 
 business and those dealing with them, then, although the 
 principal may have employed the broker, &c., as the case 
 may be, only once, yet if he employed him in that capa- 
 city, the principal is estopped from denying that he had 
 not the powers which such an agent in the like circum- 
 stances would usually have. 
 
 The agent may, however, be in such a relation to the 
 principal that if authority is given on one occasion, it may 
 require very little evidence to raise a presumption that 
 he or she is a general agent, and so estop the principal 
 from denying the authority : for example, if the agent 
 is in such a relation to the principal, as the relation 
 of a wife to her husband. But it has been held that 
 the fact that a wife lives with her husband does not 
 alone entitle tradesmen to presume that the husband has 
 given authority to pledge his credit so as to preclude him 
 fi'om denying it. And if the tradesman only knows 
 that she is a married woman he must show that the 
 husband either gave her authority to pledge his credit 
 or had so acted as if he ostensibly or apparently gave her 
 authority {p). 
 
 Hitherto we have been dealing with the extent and 
 nature of an agent's authority principally as between him- 
 self and his principal. As between the principal and third 
 parties the principal may be liable and bound much beyond 
 what he actually authorized his agent to do, unless the 
 tliird party knew of the limitation of the agent's authority. 
 And though an agent will be liable to his principal for 
 any act done outside or in broach of his authority (see 
 chapter on Liability of Agent to Principal), yet the prin- 
 cipal is liable to the third party who deals bond fide with 
 the agent not knowing of the want of authority, not 
 merely to the extent of the actual authority, but to the 
 extent of the ostensible authority he allowed the agent to 
 
 {)>) Jhhcnhnm v. McUf,» (ISRO), G Ap. Cas. 24.
 
 THE AUTHORITY OF AX AGE>JT. 63 
 
 assume, and wliicli it was usual for an agent to have in 
 the particular business (y) ; for example, if the servant 
 of a private gentleman without authority warranted a 
 horse, his master would not be bound (r) ; but if the 
 servant of a horse-dealer warrants, although he has ex- 
 press instructions not to warrant, the master is bound; 
 because the servant of a dealer having general authority 
 to sell is in a condition to warrant, and the master has not 
 notified to the world that the general authority is circum- 
 scribed. In the latter case there is an ostensible authority 
 to do that which is usual in the conduct of the business 
 of a horse-dealer (.s) . 
 
 The principal is bound only if the agent does the act in Agent must 
 the usual way or manner in which business is done, and ao-encyinthe 
 not if he does it in an unusual manner ; for instance, ^^^i^^ ^'^^Y- 
 where the agent sold the stock upon credit instead of 
 for ready money, the principal was held not bound to 
 transfer (t). 
 
 If an authority purports to be derived from a written What inquhy 
 instrument, and the agent executes his authority in prlcwritio>f^' 
 writing and signs "per j^rocuration" the other party P^* ''>■ t^>""<l 
 dealing with the agent is bound to take notice that there 
 is a written authority and to ascertain if the act is agree- 
 able to the authority given {u). In Smith v. McGuire (.r), 
 Chief Baron Pollock, having adverted to the fact that 
 judges' language is not generally to be taken as an accurate 
 statement of the law, but is to be interpreted as apply- 
 ing to the particular case before them, held that the 
 expression ^^cr 2)roci( ration does not always necessarily 
 mean that the act is done under procuration. All that it 
 
 ((?) Withington v. Herring (1829), Camp. 257 ; Saictai/ne v. Bourne 
 
 5Bing.442; Fenn^. Harrison [ll^ii), (1841), 7 M. & W. 595. 
 
 3 Term R. 757, at pp. 761, 762. (m) Atttvood v. Muunings (1827), 
 
 (r) Brady v. Todd (1861), 9 C. B. 7 B. & C. 278, p. 284. See also 
 
 N. S. 592. Alexander v. Mackenzie (1848), 6 C. 
 
 («) Howard \. Sheicard (18G6), B. 7G6, and Staqc/ y. Fllioit {IS62), 
 
 L. R. 2 C. P. 148. 12 C. B. N. S. 373. 
 
 (i) Willshirc V. Sims (1808), 1 (.*;) (1859), 3 H. & N. 554.
 
 64 PRIXCIPAL A>'D AGEXT. 
 
 in reality meant was, " I am an agent not having an autho- 
 ritj of my own," and, speaking of commercial cases, and 
 with reference to the inquiiy it put the third party upon, the 
 Chief Baron said : "I think that the holder of a bill is not 
 bound to go to the acceptor and say, ' have you a power 
 of attorney or other authority to accept this bill ? ' When 
 he has ascertained that the person who accepted the bill as 
 agent or by procuration is a clerk to the bearer, and in the 
 course of his employment has from day to day accepted 
 bills of that sort, that is enough, and he need not ask for 
 his power of attorney or authority, nor whether the par- 
 ticular bni is on account of the firm." In the case before 
 him, as the agent was a general mercantile agent, and was 
 acting within the apparent scope of his authority, the Chief 
 Baron held the principal was liable, although the agent 
 had signed the charter-party "per pj-o.," and was, in fact, 
 acting outside his actual authority. 
 
 Wheneyer the yery act of the agent is authorized by the 
 terms of the power — that is, wheneyer by comparing the act 
 done by the agent with the words of the power the act is in 
 itself warranted by the terms used — such act is binding on 
 the principal as to all persons dealing in good faith with the 
 agent, and such persons are not bound to inquire into the 
 facts aliunde ; the apparent authority is the real authority, 
 so far as third persons are concerned, and where an agent 
 abuses it it does not affect a person dealing bona fide with 
 him(y). 
 Tests of In cases of general agency, where there is no T\-riting, 
 
 authorUv in *^^ where the agent acts as a particular kind of mer- 
 comtncrcial cautilc agent, as a factor, the nature and extent of the 
 authority usuall}' depends entirely on the authority a 
 person has usually in such a position ; and, to ascertain 
 whether the agent had authority, three tests should be 
 applied: (1) was such authority actually given? (2) was 
 
 (.v) Bri/ant v. Banque ciit Peupk, (1892) Ap. Cas. 170; Montaignae t. 
 Shitta (1890), 15 Ap. Cae. 357. 
 
 agency.
 
 THE AUTHORITY OF AN AGENT. 65 
 
 it necessary that the agent should have the particular 
 power (which is the subject-matter of inquiry) for the 
 purpose of carrying out the agency, /. c, must the power 
 have been given by necessary implication ? (3) was acting 
 as the agent did usual in the ordinary course of business ? 
 Borrowing (s) and giving a promissory note as security for 
 an advance have been held not within a general manager's 
 authority («) ; but the general manager of athletic sports 
 was held entitled to pledge the committee's credit for 
 things necessary for the sports, as tents, &c, {h). 
 
 In the case of factors, who are agents for the sale of goods. Factor's 
 and which they have in their possession, certain powers are ^^*^o"*7- 
 given them by Act of Parliament (c) ; and a third person 
 deahng with them bond fide can deal with them when they 
 have been in fact entrusted with goods by the owner with 
 perfect security within the limits of such powers.- These 
 powers have been given them for the benefit of trade and 
 the greater convenience of carrying it on. The authority 
 may arise from mere employment in a particular business, 
 such as an insurance agent or a factor. 
 
 It must be remembered that in most cases, i.e., where Authority 
 the authority of the particular class of agent has not been ii^te^^iion^of 
 defined by custom, the authority of the agent depends on parties where 
 the intention of the parties when creating the agency ; and usac^e of 
 the authority must be implied from facts which occurred ^^smess. 
 during the agency, and not from arguments of general 
 utility and convenience ((/) ; for instance, the rules of clubs 
 do not generally authorize the committee (which acts as 
 agent for the members) to deal on credit and to pledge 
 the credit of the members individually (e), although argu- 
 ments of general convenience might be urged. The club 
 
 {z) Mawtayne v. Bourne (1841), 7 {c) Factors Act, 1889 (52 & 63 
 
 M. & W. 595. Vict. c. 45). 
 
 {a) Re. Caningham ^- Co. (1887), {d) Story, § 87. 
 
 36 C. D. 532. \e) Flemi/ing v. Hector (1857), 2 
 
 {b) Pilot V. Craze (1885), 52 J. P. M. & W. 172, 
 311. 
 
 W. F
 
 66 PRINCIPAL AND AGENT. 
 
 itself is not a legal entity known to the law(/). The 
 
 authority of an agent may be gathered from the way he 
 
 usually does his principal's business 'with his principal's 
 
 assent ; in other words, from the usual course of business 
 
 as known or acquiesced in by the principal. 
 
 Whether the If the agent does not observe the authority, and goes 
 
 cile of the ' outside it (and the priacipal does not happen to be estopped 
 
 authority can i^y lia^ino: held out the affent as havings the authority to 
 
 he good as to / ° . . ^ ^ . ° ■; . , 
 
 part and bad do as he did), it depends upon whether the contract which 
 as to part. j-^^^g been made is entire or divisible ; whether the exercise 
 of any part of it which may be within the authority will 
 be held good (g) . Thus, where an insurance broker was 
 authorized to underwrite for his principal up to 100/., and 
 he underwrote a ship for 150/., the contract did not bind 
 the principal even for 100/. 
 How principal The principal may hold out his agent as having authority 
 agent as ^0 deal with goods either by intrusting a person, whose 
 
 ^^fh^°> business it usually is to sell, with his property, or by placing 
 
 it in a place where things are only sent for sale. Lord 
 EUenborough said, " Strangers can only look to the acts of 
 the parties and to the external indicia of property, and not 
 to the private communications which may pass between a 
 principal and his broker; and if a person authorize another 
 to assume the apparent right of disposing of property in 
 the ordinary course of trade, it must be presumed that the 
 apparent authority is the real authority. I cannot subscribe 
 to the doctrine that a broker's (who is a known agent) 
 engagements are necessarily, and in all cases, confined to 
 his actual authority, the reahty of which is afterwards to 
 be tried by the fact. It is clear that he may bind the 
 principal within the limits of his authority, with which he 
 has been apparently clothed by the priucij^al, in respect of 
 
 (/) Steele V. Gottrhtj (188G), 3 {(/) Bai»cs v. Eivhiff (1866), I L. 
 
 Times, 119, 772; CVo.Mw/awv. &>•««- R. Ex. 320; 4 H. & C. 511; 
 
 fi//e C/!/6 (1884), Law Times News- Alexander v. Alexander (1755), 2 
 
 paper, vol. 77, p. 84 ; Jlanlc v. Ves. sen. 640. 
 Cole (1890), 02 L. T. 6.58.
 
 THE AlITIIOlllTY OF AN AGENT. 67 
 
 the subject-matter, and there would be no safety in mer- 
 cantile transactions if he could not. 
 
 If the principal send his commodity to a place where it By sending 
 is the ordinary business of the person to whom it is con- fuction^room 
 fided to sell, it must be intended that the commodity was ?r l>y entmst- 
 sent thither for the jiurpose of sale. If the owner of a an°ao-ent 
 horse send it to a rei^ository of sale, can it be implied that "^^o«e ^usi- 
 
 •L ' 1 ' 1 c 1 ni r\ ^^^^ ^^ selling. 
 
 he sent it thither for any other pur[iose than of sale ? Or, 
 if one send goods to an auction room, can it be supposed 
 that he sent them thither merely for safe custody? When 
 the commodity is sent in such a way and to such a place as 
 to exhibit an apparent purpose of sale, the principal will 
 be bound and the purchaser safe "(//). Ag-ain, the very 
 fact of intrusting goods to a man r/s a factor, with right 
 to sell them, is prima facie authority from the principal to 
 the factor to sell in his own name (?)• 
 
 Whenever the authority given to an agent is to transact Authority to 
 
 T . (• ;i • • 1 • £ • J -L '^^ T ^o business 
 
 business lor the principal m a foreign country, it will be j^ forei<m 
 presumed, in the absence of evidence to the contrary, that country. 
 it included authority to transact it in the form and manner 
 required by the law of such country (/.•). 
 
 This is the rule as laid down by Story and approved by 
 Mr. Foote in his treatise on private international law. In 
 support of it, he referred to Lord Lyndhurst's judgment in 
 Pattison v. Milk (l), where he says: "If I, residing in 
 England, send down my agent to Scotland and he makes 
 contracts for me there, it is the same as if I myself went 
 there and made them." This, Mr. Foote says, shows that 
 the legal relations would be governed by the law of the 
 foreign country {/n). 
 
 Where the principal has by his conduct led third "Whenprin- 
 
 , ,. 1 , ,1 JIT j_i -L 1 • cipal has held 
 
 parties to believe that the agent had authority, he is, out agent aa 
 
 [h] FicJcerviff v. Busk (1812), 15 {k) § 86. 
 
 East, 38. [l) (1828), 1 Dow. & CI. at p. 
 
 (i) £x p. Dixon, In re Henley 342. 
 
 (1878), 4 C. D. 133, p. 133. ('») 2nd ed. p. 448. 
 
 f2
 
 68 PRl^'CIPAL AND AGENT. 
 
 having autho- on tliG principle of holding out, prevented from showing 
 rity, estopped |^^ ^^ ^ authority was, as he has, by his action 
 
 from snowing "^''"- *- ^ -^ ' _ . . 
 
 -what real and conduct, misled third parties deahng with the agent, 
 a^^ on y ^\^s principle applies also if the acts have been done 
 by a stranger, if the principal's conduct has been such 
 as to give rise to the reasonable belief that the acts were 
 authorized by him(>?). So it was held in a case (o) 
 where goods belonging to the plaintiff were sold by the 
 sheriff under an execution against somebody else, while the 
 plaintiff stood by and made no objection, that it was a 
 question that ought to be left to the jury whether he 
 had not assented to the sale. Lord Esher said {p) : 
 " If a man, whatever his real meaning may be, so con- 
 ducts himself that a reasonable man would take his 
 conduct to mean a certain representation of facts, and 
 that it was a true representation, and that the latter was 
 intended to act upon it in a particular way, and he, 
 with such a behef, does act in that way to his damage, the 
 first is estopped from denying that the facts were as repre- 
 sented." 
 Principal may In another case, the House . of Lords held that if a 
 by stan^o- principal knows that a stranger is dealing with his agent 
 by when under the belief that all statements made by the agent 
 
 dealing with were warranted by the principal, and so knowing, allows 
 his property, ^^le stranger to expend money in that belief, the Court 
 would not allow the principal to set uj) the want of autho- 
 rity in the agent. It must, however, be proved that the 
 principal knew that the thu'd party was thus acting (q). 
 Limited com- In some cases, the contract being, as far as the principal 
 Sokfoutagent is concemed, ultra vires, he cannot be estopped denying the 
 as having authority. Thus, if the principal is a limited company (its 
 beyond powers being limited by the memorandum of association), 
 
 («) Story, §§ 91 and 92. (18S1), G Ap. Cas. 82. 
 
 (o) I'lckard v. ISeurs (1837), 6 Ad. ' {p) Carry. L. S; X. TV. Rail. Co. 
 
 &. El. 4G9; and «ee Freeman v. (1875), L. R. 10 C. P. at p. 317. 
 
 Cooke (1848), 2 Ex. 654 ; and (y) liamsden v. Dyson (1866), 
 
 Mackenzie v. British Linen Co. L. K. 1 H. of L. 129.
 
 THE ATJTHOllITY OF AN AGENT. 69 
 
 any contract made by an agent for it, as, for example, by memorandum 
 
 Tj (.,, ,, 1 • ^ T T • 1-1 of association. 
 
 a director oi the company, upon a matter not included m the 
 memorandum, is iilfra vires of the company and is not 
 binding on it (r) . And such a company cannot hold out an 
 agent as having authority to do something which it is itself 
 not authorized to do {s). 
 
 On the doctrine of holding out, the powers of directors Directors 
 of companies would be held to be much larger than they limited by 
 generally are in fact : if they were only limited by the articles of 
 
 , association. 
 
 purpose for wliich the company was formed; for they are 
 
 general agents, and have implied authority to carry out 
 the general business of the company in the usual way of 
 business. It is, however, usual to limit these powers by the 
 articles of association. If these articles are registered under 
 the Companies Acts they are accessible to the public, and it 
 has been settled that, under such circumstances, the company 
 is only liable (apart from ratification) for the acts of the 
 directors done within the powers given them by the regu- 
 lations (f). 
 
 By sect. 56 of the Conveyancing Act of 1881, it has Receipt in 
 been enacted that, " Where a solicitor produces a deed ^iQ^ge^^ autho- 
 having, in the body thereof or indorsed thereon, a receipt rity for pay- 
 for the consideration money or other consideration, the deed solicitor, 
 being executed, or the indorsed receipt being signed, by 
 the person entitled to give a receipt for that consideration, 
 the deed shall be sufficient authority to the person liable to 
 pay or give the same for his paying or giving the same 
 to the solicitor, without the solicitor producing any separate 
 or other direction or authority in that behalf from the person 
 who executed or signed the deed or receipt." This section 
 is not retrospective. This was supposed always to be the 
 law, but doubts arose about it owing to a dictum in Vinci/ v, 
 
 (>•) Ashburi/ Carriage Co. v. Eichc {t) Lindley on Companies, 5th 
 
 (1874), 7 E. & S. Ap. 653. ' ed. p. 165 ; Balfour\. Ernest (1859), 
 
 (s) Chaplco V. JJrunstcick Ferma- 5 C. B. N. S. 601 ; Chaplco v. 
 
 nent Bmldbig Society (1881), 6 Q. Brunswick Building Society (1881), 
 
 B. D. 696. 8 Q. B. D. 696.
 
 70 
 
 PRINCIPAL AND AGENT. 
 
 Act of agent 
 must be done 
 for principal's 
 benefit, and 
 within his 
 authority, to 
 make prin- 
 cipal liable. 
 
 Servant 
 implied au- 
 thority to do 
 ■what is neces- 
 sary for pro- 
 tection of 
 master's 
 property. 
 
 CJiapUn (ii). It lias been decided that the solicitor pro- 
 ducing the deed must he acting for the party to whom the 
 money is expressed to he paid, /. e., the person who signed 
 the receipt therein, and he must produce the deed and not 
 merely have it in his possession (.r). 
 
 To bring an act within the implied authority of an agent, 
 so as to make the principal liable, it must be done for the 
 benefit of the principal and in the ordinary course of busi- 
 ness (y) . It was therefore held that as the ordinary business 
 of a foreman porter who has general superintendence of a 
 station-yard is not to protect and watch the property, he 
 has no authority to order the arrest of a person whom he 
 thinks stealing goods. He would have had a right to 
 aiTest a person disobeying a byelaw ; and the person 
 appointed to protect the goods would have authority to 
 order the arrest of a person he thought stealing, so as to 
 make the principal liable (::). The decision in Edicards v. 
 L. 8^' N. W. Ey., it is submitted, would hardly be followed 
 in a similar case, though the principle laid down may be 
 right, as it sm-ely is a servant's duty to protect his master's 
 property and to arrest the person stealing if he could not 
 otherwise protect it. He would not be justified in alloT\ing 
 someone to walk off with it. After the attempt to steal 
 had ceased, and it was no longer necessary for the pro- 
 tection of the principal's property, there is clearly no 
 authority. 
 
 The implied authority is to do all things which are 
 necessary for the protection of the property intrusted to 
 the agent, or for the purpose of fulfilling the duty that he 
 has to perform {a). For instance, where a company have, 
 under a byelaw, a power to arrest a man if he does not pay 
 his fare, the primary object of the byelaw is to enforce pay- 
 
 (m) (1858), 2 Do G. & J. 4G8. 
 
 {x) l)ay V. H'oolwich Equitable 
 Buikltng Society (1889), 40 C. D. 
 491. 
 
 (y) Edwards v, L. % X. IV. liy. 
 
 (1870), 5 C. P. 445. 
 
 {z) See also Walker v. iS. E. Bail. 
 Co. (1870), 5 C. P. 640. 
 
 {a) Allen v. X. ^- S. W. Bail. Co, 
 (1871), L. R. 6 Q. B. 65.
 
 THE AUTHORITY OF AN AGENT. 71 
 
 ment of fares to the company and to protect their interest, 
 and it has been rightly held that when a company leave a 
 servant in charge of a station, he has no implied authority 
 to decide whether the byelaw shall or shall not he enforced. 
 But if the servant in charge of the station does an act in 
 no way connected with the business of the company, there 
 would be no implied authority for the act and the company 
 would not be liable {b). 
 
 Sir Montague Smith, in the Bajik of New South Wales v. Authority of 
 Oicsfon (e) (where criminal proceedings, which were held afreet ° 
 to be unnecessary, were instituted by an acting bank 
 manager for the purpose of getting possession of a bill), 
 thus summed up these decisions : " The result of the 
 decisions in all these cases is, that the authority to arrest 
 offenders was only implied where the duties which 
 the officer was employed to discharge could not be effi- 
 ciently performed for the benefit of his employer unless he 
 had the power to apprehend offenders on the spot ; though 
 it was suggested that possibly a like authority might be 
 implied in the supposed cases of a servant in charge of his 
 master's property arresting a man who he had reason to 
 believe was attempting to steal or had actually stolen it. 
 In the latter of these cases, it is part of the supposition that 
 the property might be got back by the arrest, but in such 
 a case, the place and opj)ortunity of consulting the employer 
 before acting would be material circumstances to be con- 
 sidered in determining the question of authority." 
 
 Wheu are payments to the agent in law payments to the Payment to 
 
 principal ? The general rule of law was laid down b}' Lord '^^it^o^'i^^*! 
 
 Tenterden in IiKssien v. BnugJeij, as follows : — If a creditor tliseharges 
 
 employs an agent to receive money of a debtor and the but^iiot^Lt^ 
 
 affent receives it, the debtor is discharged as against the prin- tlemeut in 
 . . . . . account. 
 
 cipal ; but if the agent, instead of receiving money, A^Tites 
 
 (S) Per Blackburn, J., in Alien Co. (18G7). L. R. 2 Q. B. .53i, 
 V. L. ^- S. W. Hail. Co., uU supra ; {c) (1879), 4 Ap. Cas, 270, 
 
 gee also Poulton v. L. ^ S, TF, Rail,
 
 72 
 
 PRIISICIPAL AKU AGENT. 
 
 Reason of 
 rule. 
 
 Custom can 
 alter rule if 
 reasonable. 
 
 Insurance 
 broker an 
 exception to 
 rule. 
 
 off money due from him to tlie debtor, then the latter is not 
 discharged. An authority given by a principal to receive 
 money cannot be construed into an authority not to receive 
 money, but to allow the debtor (the third party) to write 
 off so much as may be due from the agent to him : unless 
 the principal expressly authorizes him to do so {c). The 
 reason of the rule being that " if the agent receives the 
 money in cash, the probability is that he will hand it over 
 to the principal. But if he is allowed to receive it by 
 means of a settlement of account between himself and the 
 debtor, he might not be able to hand it over. At all 
 events, it would very much diminish the chance of his 
 principal ever receiving it ; and upon that principle it has 
 been held that the agent, as a general rule, cannot receive 
 it in anything else but cash. Unless, therefore, there is a 
 usage to control it, payment to the agent must be made in 
 money " (f/). 
 
 The custom must, however, be a reasonable custom. 
 Lord Esher held the custom on the London Stock Ex- 
 change unreasonable, by which a London stockbroker, who 
 is employed directly by a country broker, has a right to 
 treat the country broker as his principal, and to set off any 
 claim against him when paying over the proceeds of shares ; 
 and pointed out that a principal can only be bound by an 
 unreasonable custom when at the time of dealing the 
 custom was made known to him, and he agreed to be 
 bound by it (c) . 
 
 But " where an insurance broker or other mercantile 
 agent has been employed to receive money for another in 
 the general course of his business, and where the knou-n 
 general course of business is for the agent to keep a 
 running account with the principal, and to credit him with 
 
 (c) Bartlett v. Tmtlund (1830), 
 10 B. k C. 7G0 ; Vnthrwood v. 
 NichoUs (1860), 17 C. B. 239. 
 
 {(l) BylcH, J., in Sweeting v. Pearce 
 (18G0), 7 C. B. N. S. 449, at p. 485 ; 
 
 sec also (18G1), 9 C. B. N. S. 534. 
 
 {(') Blachhurn v. Mason (1893), 9 
 Times, 28G; Cooke \. Eshelby {\mi), 
 12 Ap. Can. 271.
 
 THE AUTHORITY OF AN AGENT. i< 
 
 the sums wMcli he may have received by credits in account 
 with the debtors, with whom he also keeps running accounts, 
 and not merely with money received, the rule in those 
 cases " (/. c, BartJctt v. Pentland and Tlndencood v, 
 Nic/iok) " cannot properly be applied ; but it must be 
 understood that where an account is bond fide settled 
 according to the known usage, the original debtor is dis- 
 charged, and the agent becomes the debtor according to 
 the meaning and intention and with the authority of 
 the principal" (,/'). In insurance business, the usual course 
 of business is that "the broker is the debtor of the 
 underwi'iter for the premiums, and the underwriter the 
 debtor of the assured for loss. If the usage relied upon 
 were to prevail, it would have the effect of making the 
 broker (the agent), and not the underwriter, the debtor to 
 the assured (the principal) for the loss. Such a usage, 
 however, can only be binding on those who are acquainted 
 with it and have consented to be bound by it "(//). 
 Therefore the principal must be proved to have consented 
 to his agent receiving payment by setting off accounts. 
 This usage, as Lord Tenterden pointed out, would have 
 the effect of making only the agent liable to the prin- 
 cipal solely, and not the third party; but it has been 
 decided both in Stock Exchange cases, where the different 
 brokers infer se treat one another as principals, and in 
 insurance cases, that the principal has a right to sue the 
 real third party {//). 
 
 It has been decided in two cases (/), that payment by a Payment by 
 bill of exchange is not a valid payment. In the latter of \'^^ °^ ^^"^ 
 
 " . change not 
 
 these cases ( Williams v. Evans), Mr. Justice Blackburn says, valid pay- 
 " If the payment had been made by cheque ; then it might 
 be a question for the jury — since it is the custom to pay by 
 
 (/) Per "Lovi. Ahin^ev \n Steivart {h) See "Liability of Third 
 
 V. Aberdein (1838), 4 M. & W. 211. Tarty." 
 
 {g) Lord Tenterden in Scott v. (i) Si//ccs v. Giles (1839), 5 M. & 
 
 Irvinff (1830), 1 B. & Ad. 605. W. 645 ; Williams v. Evans (1866), 
 
 L. R. 1 Q. B. 352. 
 
 ment.
 
 74 PRINCIPAL AND AGENT. 
 
 cheques — whether the payment would be good or not." In 
 Thorokl v. Smith {k), where a payment was made in the 
 city by a goldsmith's note to a servant sent by his master 
 to receive money, Holt, C. J., said " he thought it more a 
 matter of evidence than of law, and any jwcy in Gruildhall 
 would find payment by a bill to be a good payment, it being 
 Validity of the common practice in the city." In Bridges v. Garrett (/), 
 payment by j^^ question aiose as to a cheque. The deputy steward of 
 
 cneque to ^ . . 
 
 agent. a manor, who had authority to receive payment of fines, 
 
 was paid a fine and his own fees in a cheque crossed payable 
 at his own bankers. His account happened to be over- 
 drawn and the bank retained the amount of the cheque. 
 It was contended that such payment was not good. 
 C. J. Cockburn, in holding that it was good, said, " There is 
 no doubt that where an agent is authorized to receive 
 money for his principal, he cannot allow it to be set ofip in 
 accounts between the payer and himself ; he must receive it 
 in money. If, however, payment is made by a cheque and 
 the cheque is duly honoured, that is a payment in cash. 
 There is nothing in the circumstance of a cheque being 
 given which invalidates the payment ; the present case, 
 however, is a little complicated by the fact of the cheque 
 having been crossed. It appears that the defendants, at 
 Craig's (the deputy steward's) request, crossed the cheque 
 with the names of Craig's bankers. These bankers got the 
 cheque cashed and carried the amount to the credit of 
 Craig's account with them. If Craig had not been over- 
 drawn, he would have had the money. The cheque 
 therefore was, in point of fact, money. It was the same 
 thing as if the defendant had paid the amount to Craig in 
 cash and Craig had paid in cash to his account with his 
 bankers, and had forwarded ]iis own cheque to the lord or 
 to the steward and tlie bankers had, in consequence of the 
 balance being against him, declined to honour his cheque. 
 If Craig was authorized to receive the money, I think the 
 
 (A) (1705), 11 Mod. 87. (/) (1870), 5 C. P. -lol.
 
 THK AUTHORITY OF AN AGENT. 75 
 
 payment to him was a payment to the plaintiff, and that 
 there was nothing to take the case out of the ordinary 
 rule." 
 
 Mr. Justice Blackburn concurred in Chief Justice 
 Cockburn's judgment, and pointed out that, though the 
 general rule of law was that where a creditor's agent is 
 bound to pay the whole amount over to the principal, he 
 must receive it in cash from the debtor ; and that a person 
 who pays such agent, and who wishes to be safe, must see 
 that the mode of payment enables the agent to perform 
 that duty, yet that this rule only applied in its strictest 
 sense to a clerk or servant n-Jto //a.s to hand over the ))ioiiei/ 
 as he received if. 
 
 It seems — provided there is a payment in fact, and 
 not a mere setting off — that payment by cheque, whether 
 crossed or not, is good. Mr. Justice Blackburn says : 
 " Where the authority given is to receive the money, and 
 then not to hand it over in specie, but to pay over an 
 equivalent sum, the case is very different. If a servant 
 intrusted with his master's money becomes bankrupt, the 
 money would not belong to his creditors. But where an 
 attorney or commercial agent is employed to receive money 
 to be paid over to the principal the next day, it would, I 
 think, in the event of the bankruptcy of the attorney or 
 agent whilst the money remained in his hands, form part 
 of his general assets." He therefore thought that there 
 was a good payment of the fine, the deputy steward 
 having the second kind of authority. It is just in cases 
 of this second kind of authority that payment in money, 
 for the reason given by Mr. Justice Byles, has been in- 
 sisted upon (/>?). 
 
 In Farrer v. Lac// {n), an auctioneer took payment by Payment of 
 
 cheque of a deposit. The cheque was afterwards dis- ^^P^^it ^y , 
 ■^ -* ■"■ cheque good, 
 
 {m) RiissellY.Banfflei/ (1821), iB. (w) (1884), 25 C. D. 636; see 
 
 & Aid. 395 ; Bartlett v. Pentland also Charles v. BlacJcwell (1877), 2 
 
 (1830), 10 B. & C. 760; Scott v. C. P. D. lh\, per C. J. Cockburn, 
 
 Irving (1830), 1 B. & Adol. 605. at page 158.
 
 Garrett 
 discussed 
 
 76 PRINCIPAL AND AGENT. 
 
 honoured, but tlie Court held there was no negligence 
 in him in taking a cheque for a dcpout^ hut that it was a 
 proper proceeding according to the usual practice of auc- 
 tioneers. It is submitted, that if in all cases a cheque 
 crossed to the agent's bankers were held payment, it 
 might result in the mischief that the rule as to payment 
 in cash was made to avoid, viz., that " the debtor might 
 not be able to hand it over " ij) ; as the third party might 
 wish the banker's overdraft to be paid, and so cross it to 
 secure this effect. 
 Bridges v. Bridges V. Garrett («?) came before Mr. Justice Fry, in 
 
 Pearson \. Scott (n), and while dealing with it he says: 
 *' The short effect of the decision of the Court of Exchequer 
 Chamber is, that they thought there was evidence for the 
 jury, and refused to disturb their finding. They thought, 
 moreover, that, seeing that the cheque given by the sur- 
 renderee was good, and that it was an ordinary course 
 of business to make payments by cheque, it might be con- 
 sidered that that cheque so given, when cashed, became a 
 payment in cash to the agent." 
 
 In Pape v. Westacott {o) , the principal sued the agent for 
 negligence in taking a cheque in payment of arrears of 
 rent from a tenant, and the Court of Appeal held he was 
 entitled to recover. The facts were as follows : — A tenant 
 held a house under a lease which had a proviso against 
 assigning without the landlord's licence. The tenant wished 
 to assign. The landlord directed the agent not to give 
 the licence until the arrears of rent due were paid. The 
 agent jiarted witli the licence on receiving a cheque, which 
 was subsequently dishonoured. The cheque was drawn 
 in favour of the ngcnt, and included a simi for his ser- 
 vices. Lord Justice Lindley, after referring to sect. 202 
 of Story, where it is stated that a payment is good if 
 
 {!) Sco Bylcs, J., in Sweelun/ v. (w) L. R. 5 C. T. 451. 
 
 Pcarce (18G0), 7 C. B. N. S. 449, (w) (1878), 9 C. D. 198. 
 
 at p. 486. [o) (1893), 10 Times, 51.
 
 THK AUTHORITY OF AN AGENT. 77 
 
 received in the usual manner of conducting similar busi- 
 ness transactions, such as taking a cheque from a person 
 in good credit, says : " I assume it to be the same if the 
 agent receives money in a way in which it is ordinarily 
 paid in this country, and a cheque is sometimes an ordi- 
 nary way. I do not say a cheque is always a proper way 
 of receiving money. Take the case of a solicitor entrusted 
 with deeds of title for the purpose of carrying out a trans- 
 action of sale of real property : would a cheque in such a 
 case be a proper mode of receiving payment on the sale ? 
 He might receive a cheque in payment of the deposit, 
 but it would not be an ordinary mode of business if he 
 were to accept a cheque for the purchase-money on com- 
 pletion, and part with the title-deeds before it was cashed ; 
 so that it cannot be said an agent is always justified in 
 accepting payment by cheque from a person in good 
 credit." Lord Justice Davey referred to the fact that the 
 cheque was made payable to the agent, and included fees 
 due to him, and held that there was no cheque ever given 
 which belonged to the principal. 
 
 Where the principal has ordered something to be done. If principal 
 and he does not expressly forbid its being done in a par- ^^ent^ as t^^^ 
 ticular way, if the agent does it in that way, it is held to method of 
 be within the authority the principal gave him. Thus, authority'lie 
 where a principal employed an agent to get a bill dis- ™Y "^® ^^ 
 counted, and for the purpose of doing so the agent war- 
 ranted it to be good, the principal was liable (p). 
 
 A broker or agent employed to sell h.a,s p)'i/jidf(icie no Broker must 
 authority to receive payment otherwise than in money, ^l^^*^ ^^^' 
 according to the usual coiu'se of business, and it is equally money. 
 clear that, if instead of paying money the third party 
 writes off a debt due to him from the agent, such a trans- 
 action is not payment as against the princif)al, who is no 
 party to the agreement, though it may have been agreed 
 to by the agent. Such an agreement amounts to no more 
 
 (p) Fmn V. Harrison (1790), 4 Feu. 177.
 
 ra 
 
 PRINCIPAL A^'D AGENT. 
 
 Clerk in busi- 
 ness prima 
 facie authority 
 to receive 
 payment. 
 
 Prima facie 
 house agent 
 no authority 
 to sign con- 
 tract. 
 
 Solicitor's 
 authority 
 in action. 
 
 than tlie debtor seeking to discharge his debt to the prin- 
 cipal by writing oif a debt due to him by the agent, which 
 he has no right to do {(]) . 
 
 Prima facie where there is a place of business and a 
 person conducting that business, such person has authority 
 on behalf of the principal to accept a tender of money (r) ; 
 but if he says he has no authority to receive it, the tender 
 is bad (i) ; whether it is so if he simply says he has no 
 instructions, is questionable {f). 
 
 The mere fact of giving a house agent instructions to 
 procure a purchaser for property, with a few details as 
 to the nature of the property and the price, is not an 
 authority authorizing him to sign a contract for the sale 
 of the property (?0. 
 
 " It is well established that the general authority to con- 
 duct a cause gives the attorney authority to compromise. 
 The reason why the compromise is held to be binding upon 
 the client is because the attorney is his general agent for 
 that purpose. I think Lord Campbell said, in Fray v. 
 Voules{i('), * An attorney retained to conduct a cause is 
 entitled in the exercise of his discretion to enter into a 
 compromise if he does so skilfully and bond fide ; provided 
 always that his client has given no express directions to 
 the contrary ; but where these directions have been given, 
 such a step, though perhaps binding as between him and 
 third parties, is ultra vires as between him and his client,' 
 and he therefore held that an attorney who makes a compro- 
 mise, in defiance of the express directions of his client not 
 to do so, is guilty of a breach of duty. The other judges 
 in that case held that it depended upon the contract in each 
 particular case whether an attorney has authority to com- 
 promise, and decided against the attorney on the ground 
 
 (7) See also Russell v. Bangley 
 (1821), -1 B. & Aid. 395; fhitlcrall 
 V. lluidk (ISf.G), 2 C. P. 386. 
 
 (»■) Finch V. Jhning (1879), 4 C. 
 P. I). 143. 
 
 (*) IHmjham v. Allport (1833), 1 
 
 Nev. & M. 398. 
 
 (/■) FiHch V. Boning, ubi supra. 
 
 (m) Jfamcr v. SJiarp (187r)), 19 Eq. 
 108; Chadburn v. J/owy- (1892), 61 
 L. J. Ch. 674. 
 
 {x) (1839), 1 Ellis & Ellis. 839.
 
 THE AUTHORITY OF AN AGENT. 79 
 
 that lie liad been expressly forbidden to comj^romise, whicli 
 would seem to imply that if there had not been an express 
 prohibition, the compromise would have been a lawful act 
 on his part" (//). 
 
 The client, and not the attorney, is domimiH litis, and if 
 the latter is prohibited from making a compromise and 
 does so nevertheless, an action lies for breach of duty. 
 
 There is no implied authority in an agent to borrow Power to 
 money, except in the case of the master of a ship. In bo^'^o^- 
 the case of the master, the law, which generally provides 
 for ordinary events, and not for cases which are of rare 
 occurrence, considers how likely and frequent are accidents 
 at sea, when it may be necessary, in order to have a vessel 
 repaired, or to provide the means of continuing the voyage, 
 to pledge the credit of her owners : and therefore it is that 
 the law invests the master with power to raise money, 
 and by an instrument of hypothecation to pledge the ship, 
 if necessary (z). 
 
 An agent has no authority to pledge the goods of his Power to 
 principal at common law. And it was held that not even ^ ^ ^^' 
 an agent for sale, who has authority to sell the goods out 
 and out, had authority to pledge them ; and that if he did 
 so, his pledge was not good against the principal, even for 
 the amount of any lien he had against his princij^al (a). 
 It was found necessary for the jiurpose of business that 
 factors should have powers of pledging goods, and powers 
 have therefore been given to them under the Factors Acts 
 enabling them to do so. These Acts have now been 
 repealed and consolidated by the Factors Act, 1889 (52 & 53 
 Yict. c. 45). 
 
 If an agent is, however, entrusted with negotiable in- Effect of 
 struments by his principal, as a sale in good faith of them ^^*^^/*^"il 
 is good against the principal, so a pledge of them is valid negotiable 
 
 instruments. 
 
 (y) Per Erie, C. J., in Chown v. M. & W. 59o. 
 Tarrott (1863), 14 C. B. N. S. 74. (a) McCombie v. Bavics (1805), 7 
 
 {z) Hawtaijnc v. Bourne (1841), 7 East, o.
 
 80 PRINCIPAL AND AGENT. 
 
 against the principal, and lie cannot recover tliem without 
 paying the amount for which they are pledged. It makes 
 no difference that the third party knew that the agent was 
 pledging his principal's securities : if he does not know 
 that the authority was limited as to amount or that there 
 was no authority {h) . 
 Scrip. In Goodwin v. Roharts (r), the principal employed a 
 
 stockbroker to purchase foreign scrip, and left it after it 
 had been purchased in the broker's hands to dispose of 
 as he should hereafter direct. The broker fraudulently 
 pledged the scrip for an advance to himself at his banker's. 
 In an action of trover brought by the principal to recover the 
 scrip from the bank, Lord Cairns, in finding for the bank, 
 said : " The plaintiff bought in the market scrip which, from 
 the form in which it was prepared, virtually represented that 
 the paper would pass from hand to hand by delivery only, 
 and that anyone who became bond fide the holder might 
 claim for his own benefit the fulfilment of its terms from 
 the foreign government. The plaintiff might have kej)t 
 this scrip in his own possession, and if he had done so no 
 question could have arisen. He preferred, however, to 
 place it in the possession and under the control of his 
 broker or agent, and although it is stated that it remained 
 in the agent's hands for disposal or to be exchanged for the 
 bonds when issued as the plaintiff should du'ect, those into 
 whose hands the scrip would come could know nothing of 
 the plaintiff's title or of any private instructions he might 
 have given to his agent. The scrij) itself would be a rej)re- 
 sentation to anyone taking it — a representation that the 
 plaintiff must be taken to have made or have been a party 
 to — that if the scrip were taken in good faith and for value 
 the person taking it would stand to all intents and jiur- 
 poses in the place of the previous holder. Let it be assumed 
 for the moment that the instrument was not negotiable, 
 
 (//) London Slock Hunk v. Simmons, sclioU's ju(]f,^ineiit ut pp. 21G, 217. 
 (1892) A. C. 201 ; bcc Lord Her- (c) (I87G), 1 Ap. Cas. 476.
 
 THE AUTHORITY OF AN AGENT. 81 
 
 and that no right of action was transferred by delivery, 
 still the plaintiff is in the position of a person who has 
 made a representation on the face of his scrip that it would 
 pass with a good title to anyone on his taking it in good 
 faith and for value, and who has put it in the power of 
 his agent to hand over the scrip with this representation to 
 those who are induced to alter their position on the faith 
 of the representation so made. I am of opinion that on 
 doctrines well established the plaintiff cannot be allowed 
 to defeat the title which the defendants have acquii'ed." 
 
 If the thii'd party, however, knows that the securities Money-lender 
 are not the agent's, and that from the nature of the busi- ^.^th client's 
 ness — as that of a money-lender — they are only given to secm-ities. 
 secure advances, then the third party can only hold them 
 for the amount of the advance for which the agent received 
 them (<?) . 
 
 It has, however, been decided that where a stockbroker's " Contango." 
 transactions with his client are on " contango," he has a 
 right to pledge the stock, for the stocks are not the client's, 
 but the broker's. The client's right is only to insist on 
 the broker re-selling him, not the same, but similar, 
 stock ((/). 
 
 Finally, there may be an authority to be exercised only Authority for 
 in an emergency, and derived from the exigency of the emergency or 
 
 o J ^ .... ^ . necessity. 
 
 occasion ; such an authority is a limited one, and before it 
 can arise a state of facts must exist which shows that such 
 exigency is present, or from which it might reasonably be 
 supposed to be present. If a general authority is proved, 
 it is enough to show commonly that the agent was acting 
 in what he did on behalf of the principal, but in the case 
 of such a limited authority, the question whether the 
 emergency existed, or might reasonably have been sup- 
 posed to exist, arises for decision, and that question raises 
 
 (c) Sheffield {Earl of) v. London [d) Bentinck y . London Joint Stock 
 
 Joint Stock Bank {l88S),lZA^.Cas. Bank, (1893) 2 Ch. 120; 68 L. T. 
 
 333; and see Foster v. Pearson N. S. 315. 
 (1831), 1 C. M. & R. 849.
 
 82 
 
 PRINCIPAL AKD AGENT. 
 
 issues beyond the mere fact that the agent acted on behalf 
 of, and in the supposed interest of the principal. Were it 
 otherwise, tlie special authority would be equivalent to a 
 general one (e). 
 
 We will now deal with the authority of particular kinds 
 of agents. 
 
 Auctioneers. 
 
 Auctioneer's 
 authority. 
 
 An auctioneer has authority to sue the third party (/) . 
 Lord Loughborough said, " An auctioneer has a possession, 
 coupled with an interest, in goods which he is employed to 
 sell, not a bare custody, as a servant. There is no difference 
 whether the sale be on the premises of the owner or in 
 a public auction room ; for on the premises of the owner an 
 actual possession is given to the auctioneer and his servants 
 by the owner, not merely an authority to sell. I have said 
 a possession coupled with an interest ; but an auctioneer 
 has also a special property in him, with a lien for the 
 charges of the sale and commission and the auction 
 duty, which he is bound to pay. In the common course 
 of auctions there is no delivery without actual payment ; if 
 it be otherwise, the auctioneer gives credit to the vendee 
 entu'ely at his own risk ; " and Mr. Justice Heath, in the 
 same case, said, "though he is an agent for some purposes, he 
 Whose agent, is not SO in all. He is an agent for each party in different 
 things, but not in the same thing ; when he prescribes the 
 rules of bidding and the terms of sale, he is agent for 
 the seller ; but when he puts down the name of the buyer, 
 he is agent for him only." 
 
 An auctioneer has no authority to warrant anything 
 lie sells at a sale, and if he does so, he will be liable 
 personally (f/). 
 
 Auctioneer's 
 authority to 
 warraut. 
 
 (e) Per Montague Smith, Bank 
 ofNewSoxth Walcsv. Owston (1879), 
 4 Ap. Cas. 270, at p. 291. 
 
 (/) Willmna v. Millivyton (1788), 
 
 1 H. Bl. 80 ; see also Eobinson v. 
 Mutter (1855), 4 El. & Bl. 954. 
 
 {</) I'a>inc V. Lcconfidd (1882), 51 
 L. J. Q. B. G42.
 
 THE AUTHORITY OF AN AGENT. 83 
 
 The extent of the authority of an auctioneer, in the Authority 
 absence of any proof of general authority, must depend conditions 
 upon the conditions of sale(//). The moment after the sale "* ^^^^• 
 the auctioneer is no longer the agent for sale of the owner 
 of the goods. He has no authority to make any arrange- 
 ment for the payment of the remainder of the purchase- 
 money after he has received the deposit. The extent of 
 his authority, in the absence of proof of general authority, 
 depends upon the conditions of sale. The principal is not 
 liable for his statements after the sale (i*"). The result of 
 this is, that he cannot sign a memorandum to satisfy the 
 17th section of the Statute of Frauds so as to bind the 
 purchaser after the auction. 
 
 If the sale takes place after the auction is over, it must Ceases to be 
 be treated as any ordinary sale, and no custom of trade will buyer after 
 avail to get out of the statute ; for although there is no ®^^®- 
 doubt that an auctioneer at the sale is agent for both 
 seller and buyer, the moment the sale is over the same 
 principle does not apply, and the auctioneer is no longer 
 the agent of both parties but of the seller only, and the 
 signature of the seller or his agent cannot bind the buyer {k) . 
 Though the auctioneer at the sale is the agent of both 
 seller and buyer, so as to bind them by his signature, 
 if he brings an action himself he cannot rely on the entry 
 by himself or his clerk in the book which is usually kept 
 by auctioneers as a sufficient memorandum to bind the 
 purchaser within the Statute of Frauds, for the signature 
 must be of some third person and not of the person 
 suing (/). 
 
 If the memorandum by the auctioneer does not state 
 tlie sale was by sample when it was in fact so, it omits a 
 material term in the contract, and is not a good memo- 
 
 (/() Sykes V. Giles (1839), 5 M. & (/.•) Fcr C. B. Pollock in Mews v. 
 
 W. 645. Can- (1856), 1 H. & N. 48-1. 
 
 (0 J]re(t V. Chivser (1880), 5 C, (f) FarebrotJier v. Simmons {1822), 
 
 P. D. 376 ; and see Sykes v. Giles, 5 B. & Aid. 333 ; Wriyht v. Batmah 
 
 vH supra. (1813), 3 Camp. 283. 
 
 g2
 
 81 
 
 PRINCIPAL AND AGENT. 
 
 Authority to 
 protect goods 
 from distress. 
 
 After sale no 
 authority to 
 protect goods 
 from distress. 
 
 Effect of ad- 
 vortisemcnt. 
 
 randum within the Statute of Frauds (m) . Lord Eldon, 
 speaking of an auctioneer, says, " He was an agent only to 
 sell, not to deal with the terms upon which a title was to 
 be made. If any authority for anything subsequent to 
 that is set up, it must be proved "(;;). If the auctioneer 
 sells without disclosing his principal's name at the time of 
 sale, although he only sells " as auctioneer," he is person- 
 ally liable (o), although it is plain he acts as agent only. 
 
 An auctioneer is justified in protecting the goods he has 
 to sell from distress by paying it out ; but if he has sold 
 them, and the property has passed to the purchasers, he has 
 no authority to do so ; for, as we have seen, after the sale 
 he is agent solely for the seller and has no authority, either 
 express or implied, from the buyer ( p) . 
 
 After the fall of the hammer the property in goods 
 passes to the purchaser subject to the vendor's lien, the 
 auctioneer has therefore no authority to do anything to 
 protect them on behalf of the vendor. Thus, it was 
 held that, after the sale, the auctioneer had no authority 
 to promise on behalf of the tenant, the vendor, that the 
 rent would be paid out of the proceeds of the sale. 
 Mr. Justice Blackburn, in giving judgment, said, " I may 
 observe that if the threat to distrain had been uttered 
 before the sale, I should be very much inclined to think 
 that the auctioneer would have been acting within his 
 authority in making such a contract, to prevent the loss 
 which the distress would have caused to his client ; but as 
 it happened after the sale, I am of opinion that he had no 
 such authority at all." 
 
 If an auctioneer advertises in good faith the sale of 
 property and then does not sell it, he is not liable to an 
 
 (w) McMuUan v. JMbi/ (1879), 
 L, R. Ir. G Q. B. D. 4G3. 
 
 (n) Per Lord Eldon in Scion v. 
 Sladc (1802), 7 Vcs. 204, at p. 27G. 
 S(^(', also, JfaiisoH v. Jtobirdcan 
 (1792), Tcakc, 163; and, as to the 
 
 effect of signing " as agent," Gadd 
 V. llonyhlon (1876), 1 Ex. Div. 367. 
 
 (o) Fr<i)>kli/n v. Lamond (1847), 4 
 C. B. 037, at p. 644. 
 
 (;;) SurcUin/ v. Turner (1872), L. 
 K. 7 Q. B. 310.
 
 THE AUTHORITY OF AN AGENT. 85 
 
 action by some one who has gone to expense in attending 
 the proposed sale. The advertisement is only a declaration 
 of intention and affords no ground of action {q), the Coiu't 
 holding that the statement that he was liable under such cir- 
 cumstances was a proposition entirely destitute of authority, 
 and that it would be introducing a very inconvenient rule 
 of law to say that an auctioneer is bound to give notice of 
 the withdrawal, or to be held liable to everybody attending 
 the sale. It was impossible to say that there was a contract 
 with everybody attending the sale, and that the auctioneer 
 is to be liable for their expenses if any single article is 
 withdrawn. If the auctioneer announced that the sale is 
 to be without reserve, the highest bond fide bidder at an 
 auction may sue the auctioneer as upon a contract that the 
 sale shall be without reserve ; for the auctioneer who puts 
 up projDerty for sale upon such a condition pledges himself 
 that the sale shall be without reserve, or, in other words, 
 contracts that it shall be so, and that this contract is made 
 with the highest hond fide bidder, and in ease of breach of 
 it he has a right of action against the auctioneer (r). 
 
 The owner may at any time before the contract is legally Eevocation of 
 completed interfere and revoke the auctioneer's authority, authority. 
 but he does so at his peril; and if the auctioneer has con- 
 tracted any liability in consequence of his employment 
 and the subsequent revocation or conduct of the owner, he 
 is entitled to be indemnified (s). 
 
 It is stated in all works on Principal and Agent that an Query autho- 
 auctioneer has no right to sell by private contract. This private treaty, 
 seems to be so, but the cases cited in support of it in Evans 
 on Principal and Agent {f), and by Bateman on Auctions, 
 do not seem to be authorities in point (?f). The head-note 
 
 ((?) Harris v. Nickerso)/ (1873), {() Evans on Principal and 
 
 L. R. 8 Q. B. 286. Agent, 2nd ed., p. 144. 
 
 ()•) JFarloiv v. Harrison (1858), 1 {ii) Wilkes v. Ellis (1795), 2 H. 
 
 E. & E. 295, at pp. 316, 317. Bl. 655 ; and Marsh v. Jdf (1862), 
 
 («) Warluw V. Harrison, uhi 3 E. & F. 234. 
 supra.
 
 86 
 
 rKINClPAL AND AGENT. 
 
 Cannot 
 
 delegate 
 
 authority. 
 
 to Marsh v. Jelf is to the following effect: — "On an 
 emploj^ment of an auctioneer to sell by auction, there is no 
 employment to sell by private contract if the public sale 
 proves abortive, and evidence of a custom to that effect 
 among auctioneers is inadmissible." An auctioneer has 
 no authority to rescind a contract after the sale ; if he thus 
 deviates from the usual course of his business he will have 
 to show that he had authority (x). 
 
 Coles V. Trecothivk {[/) is cited in all the books as an 
 authority showing that an auctioneer cannot delegate his 
 authority, even to one of his clerks. 
 
 JSroJcers. 
 
 Broker, defi- ^ broker is an agent employed to make a bargain for 
 
 another, and receives a commission on the transaction, 
 
 which is usually called brokerage, for so doing {z). A 
 
 broker is distinguished from an auctioneer by the fact that 
 
 his business is not only to sell but also to buy. A 
 
 broker has neither the custody nor the possession of the 
 
 goods {a) . 
 
 Broker is Brokers are usually employed by both buyer and seller 
 
 tioneer, agent — ^J the seller to sell and by the buyer to buy for him, 
 
 for both Qj^^ ^]^Q terms are arranged by them as the common 
 
 parties. . . 
 
 agents of both parties. Story points out, however (J), 
 
 that primarily a broker is deemed merely the agent of 
 
 the party by whom he was originally employed ; and 
 
 he becomes the agent of the other party only when 
 
 the bargain is definitely settled as to terms by the 
 
 principals; his agency for the other party being of the 
 
 same nature as the auctioneer's, merely to fix the contract 
 
 once made in writing, and put its terms in writing for the 
 
 purposes of the Statute of Frauds. 
 
 [z) NeUon v. Aldridge (1818), 2 
 Stark. 435. 
 
 iy) (1804), 9 Ves. 234. 
 ;) I'er C. J, Tiudul in Pott v, 
 
 Tur)icr (1830), 6 Bing. 702. 
 
 (rt) Baring w. Corrie (1818), 2 B. & 
 Aid. 137. 
 
 (*) Ml.
 
 THE AtJTIIOlHTY OF AN AGENT. 87 
 
 And it would be a fraud, as Story sliows, iu a "broker to Broker cannot 
 
 ."Tji ,. ,.,. „ (. act for both 
 
 act lor both parties, concealing his agency lor one ironi parties if 
 
 the other, in a case where he was intrusted by both with S}'^'^^^ discre- 
 disoretion as to buying and selling, and wbere his judg- 
 ment was relied on. 
 
 Brokers have authority to sign bought and sold notes, and Authority to 
 such signature is a sufficient memorandum of the bargain randum of " 
 to satisfy the requirements of the Statute of Frauds (c) . contract. 
 
 Although the broker is agent for both parties, and as such Must sign an 
 may bind them if he signs an identical contract on behalf ^j.^^^ f^j, i^q^,^^ 
 of buyer and seller, yet if he does not sign the sai/ie con- 
 tract, i.e., if the "bought" and "sold" notes do not agree, 
 neither party is bound. It has been decided accordingly, 
 that where the broker delivers a different note of the 
 contract to each of the contracting parties, there is no 
 valid contract. The entry in the broker's book is, properly 
 speaking, the original, and ought to be signed by him. 
 The bought and sold notes delivered to the parties ought to 
 be copies of the entry in the broker's book. A valid contract 
 may probably be made by perfect notes signed by the 
 broker and delivered to the parties, although the book be 
 not signed, but if the notes are imperfect, an unsigned 
 entry in the book will not supply the defect. It is the 
 duty of the broker to make the contract so as to be binding 
 on both parties (c/). In T!io)upson v. Gardiner (e), a broker, 
 acting for the plaintiff, made a contract for a sale of goods 
 to the defendant and sent a note to each party, but only 
 signed that which he sent to the seller (the plaintiff) . He, 
 however, entered the contract in his book, in which he 
 signed both bought and sold notes. The defendant kept 
 the note which was sent without objection until he was 
 called upon to accept the goods. He then repudiated the 
 contract on the ground that the note sent to him was not 
 
 ((!) Parton v. Croffs (1855), 10 C. (d) Grant v. Fletcher (182G\ 5 B, 
 
 B. N. S. 11 ; and Chapman v. Far- & C. 43G. 
 tridge{nQb), 5 Esp. 256. [e) (1876), 1 C. P, D. 777.
 
 88 
 
 PRINCIPAL AND AGENT. 
 
 Broker may 
 not sell in his 
 own name ; 
 
 unless there 
 is a custom 
 to do so. 
 
 Insurance 
 broker. 
 
 signed. The Court, however, held that the fact that the 
 defendant had kept the note amounted to an admission 
 that the broker had authority to make the contract for 
 him, and the signature of the broker to the sold note 
 therefore bound him. A signed memorandum in the 
 broker's book of the bargain is sufficient to satisfy the 
 Statute of Frauds (/) . 
 
 The employment of an agent as a broker does not au- 
 thorize him to sell in his own name. If, therefore, the 
 agent sells in his own name, he acts beyond the scope of 
 his authority, and the principal is not bound {g) . It has 
 been, however, held that a broker need not sell in his 
 principal's name where it is proved that there is a usage 
 the other way, as, for instance, in the wool trade in Liver- 
 pool, where a broker employed to buy wool may either 
 contract in the name of his principal, or may, at the 
 request of the seller (without communicating the fact to 
 his principal) make himself personally responsible for the 
 price by contracting in his own name [h) . 
 
 An insurance broker may also effect a policy in his own 
 name. This is enacted by a statute of 28 Greo. III. c, 56, 
 and was decided by Lord Kenyon in Dc Vignier v. Sican- 
 son (/), where the defendants objected that the plaintiffs 
 had no cause of action, because it was not stated that the 
 policy was taken out as agent, and Lord Kenyon held 
 there was nothing in the objection. There is also a 
 similar usage on the Stock Exchange, where the contracts 
 are made in the stockbroker's own name until the name 
 day, when they have either to take the stock or shares, as 
 the case may be, or give the name of their client. The 
 members of the Stock Exchange deal among themselves 
 always as principals. 
 
 (/) Thompson v. Gardiner, iihi 
 supra. 
 
 iff) 7'«-AT)bott,C.J.,atp.l42; and 
 per llolroyd, J., in Jlar'uif/ v. (,'urric 
 (1818), 2 J3. & Aid. 137, at p. 148. 
 
 {h) Cropper v. CooA- (1868), 3 C. P. 
 194. 
 
 (0 (1798), 1 Bos. & Pul. 346, 
 note (0).
 
 THE AUTHORITY OF AN AGENT. 89 
 
 A principal employs a broker from the opinion he enter- Broker cannot 
 tains of his personal skill and integrity, and a broker has authority. 
 no right without notice to turn his principal over to another 
 of whom he knows nothing (/). If the broker does so, 
 there is no privity of contract between the sub-broker and 
 the principal, unless there is a usage of trade authorizing 
 the broker to put the goods of his employer into the hands 
 of a sub-broker to seU and to divide the commission. 
 
 It frequently happens that the same person does busi- 
 ness as factor and as broker, and he may in one trans- 
 action be acting as broker, and in another be selling as 
 factor. This is most frequent in the case of brokers of 
 goods, or merchandize brokers, such as wool, corn, cotton, 
 &c.; and in ascertaining the rights of the parties, one 
 has first to ascertain in what capacity the particular busi- 
 ness was undertaken. The various brokers who are men- 
 tioned by Story are shipbrokers, exchange and money 
 brokers, stockbrokers, merchandize brokers, insurance 
 brokers. 
 
 A broker can sell on credit if that is the usual manner ; Broker can 
 but it is not usual for a stockbroker to take a promissory if cu^tom*^ f 
 note, and therefore the principal will not be bound (k) . the trade. 
 
 It is not the duty of the broker, unless there are words Payment and 
 importing ho has to perform such a duty, to see to the ^ ^^^^' 
 delivery of the goods or the payment of the price ; but 
 it may be the duty of the broker, under the employment 
 he undertakes, to see to the delivery of the goods, and to 
 take care that the price is paid (/). 
 
 Lord Denman, in Booiman v. Brouit, as reported in the 
 Queen's Bench Reports [in), held that it was not part of 
 the duty of the broker to keep the goods consigned until 
 paid for. In most cases, as the broker only makes the 
 
 (,/) Fer Lord Ellenborongh in (/) rer Lord Campbell in Boor- 
 
 Cockran v. Irlam (1814), 2 M. & man \. Broivn {lM^),ll C\. k'Ein. 
 
 Sel. 300. 1, at p. 44. 
 
 (A-) Wiltshire v. Sims (1808), 1 {m) (1844), 3 Q. B. at p. 515. 
 Camp. 257.
 
 90 rRlNClPAL AND AGENT, 
 
 "bargain, and the principal lias the goods, it is the prin- 
 cipal's own fault if he hands over the goods before they 
 are paid for. It seems to depend on the custom of the 
 particular trade whether a broker is authorized to receive 
 payment (n), but he has clearly no power to vary the 
 terms of payment (o). Lord Ellenborough, in Coafes v. 
 Leicis {])), held, " a broker after ha^ong made a contract of 
 sale cannot vary the terms of it to the disadvantage of his 
 principal." A shipbroker ought to make the freight 
 payable according to the ordinary mercantile usage to the 
 owners, and if he, in breach of that duty, enters into a 
 charter-party by which he reserves payment to himself, it 
 is a fraudulent act, and he will be accountable to the persons 
 who have sustained loss through his misconduct {q) . 
 'VThen prin- If the principal employs the broker to sell w^hat is repre- 
 
 presents*facts rented to be good stock, and it tm-ns out to be worthless, 
 to broker, the broker has a right to rescind the contract he has made 
 
 Ijittcr 11*18 
 
 right to wdth the third party, and repay him his money. When 
 
 rescind con- ^|^q principal employs a broker he gives him implied 
 authority to act as all brokers do ; that is, to rescind a 
 contract if the article tui^ns out not to be the article 
 Person that it was represented to be (r) . A person employing 
 
 ^to^kbr^er ^^® ^^° ^^ notoriously a stockbroker must be taken to 
 authorizes authorize his acting in obedience to the rules of the Stock 
 accoKlin^to Exchange, or, if he is not a stockbroker, as other brokers; 
 
 rules of Stock i^^^ ^ broker in another kind of business, to give him 
 Exchange. . . ii-ii 
 
 authority to act as other brokers m such busmess do act. 
 
 It does not matter whether he himself is acquainted with 
 
 the rules by which brokers are governed (.s) ; and so, if 
 
 tlie principal by mistake tells his broker to sell 2o0 shares 
 
 (m) See Mijnn v. Jolife (1834), 1 {g) Wahhc y. rroran (1853), 8 
 
 M. & Eob. 326; Jackson v. Jacob Ex. 843, at p. 851. 
 
 (1837), 5 Scott, 79, at p. 86; Camp- (r) Young v. Cole (1837), 4 Scott, 
 
 bell V. lIa,sHcll (1816), 1 Starkie, 489, at p. 497. 
 
 233. (*) Sutton V, Tatham (1839), 10 
 
 (o) Campbell v, Haasell, uhi supra. A, & E, 27. 
 p) (1808), 1 Camp. 444.
 
 TIJE AUTIIOIUIY OF AN AGENT. 91 
 
 instead of fifty, and in consequence the broker contracts to 
 sell the whole number, and is unable to carry the contract 
 out, and has to pay the difference of price which the other 
 broker to whom he contracted to sell them has had to pay 
 in procuring them elsewhere, the principal must indemnify 
 his broker {f) . But the custom must be a reasonable one, 
 not such as to give the go-bye to a statute : see Boicring v. 
 Shepherd {u). 
 
 A broker lias authority to carry out the order with Broker must 
 reference to the state of the market, and if that does not reference to 
 allow him to carry out the order of his principal exactly, the market. 
 he has authority to do the next best for him (,r) . 
 
 A broker cannot sue in his own name upon a contract Cannot sue 
 made by him as broker. Chief Baron Kelly said: "The i^m^g."^^ 
 numerous cases cited to us show that in certain contracts 
 the agent may himself sue as principal ; but in none docs it 
 appear that a broker has successfully maintained an action 
 on a contract made by him as broker. He may, no doubt, 
 frame a contract in such a way as to make himself a party 
 to it and entitled to sue ; but when he contracts in the 
 ordinary form, describing and signing himself as broker 
 and naming his principal, no action is maintainable by 
 him"(y). 
 
 A bill broker is an agent to procure the loan of money Bill broker, 
 on customers' bills. It is his business to procure the loan 
 on each person's bill sejDarately. If there is a custom to 
 raise money by pledging the bills of different proprietors 
 for one entire advance, there is nothing unreasonable in 
 such a practice. Though, on the one hand, it is attended 
 with inconvenience, because one person may have to answer 
 for the non-payment of another's bill, yet, on the other 
 hand, it gives facilities to the raising of money on nego- 
 
 it) Sutton V. Tatham, ubi stupra. Kershaw (1867), L. R. 2 Ex. 82, 
 (m) (1871), L. K. 6 Q. B. 309. (//) Fairlie v. Fenton (1870), L. R. 
 
 (j) Ireland \. Livingstano (1871), 5 Ex, 169, 
 $£).&!. Ap. 3y5 ; . Johmton v,
 
 92 
 
 PRINCIPAL AND AGENT. 
 
 Cannot 
 pledge client's 
 securities for 
 his own 
 purposes. 
 
 tiable paper ; for a large capitalist would advance money 
 in that way, but would not discount each particular 
 hill(:;). Prima facie, he has no right to deposit the bills 
 of his principal as security for an antecedent debt of his 
 own, unless he can prove a custom to that effect («), and 
 unless the principal knows of the custom and assents to it. 
 
 Factors- 
 
 buy and sell 
 in their own 
 
 may sell on 
 credit. 
 
 Factors. 
 
 Factors are agents who are put in possession of goods or 
 the documents of title to them, and are employed to sell or 
 pui'chase them on commission, but not to barter them ih). 
 "Where, for an extra commission, they guarantee the pay- 
 ment by the purchaser, they act under a del credere com- 
 mission. Factors, as distinguished from brokers, buy and 
 sell in their own names, and are intrusted with the posses- 
 sion, management, and control of goods (c). A factor is 
 called a home factor when he resides in the same country as 
 his principal ; when he resides in a different country, he is a 
 foreign factor. If the cargo of a ship is consigned for sale 
 to a person who travels with it, he is called a supercargo. 
 
 There is no doubt of the authority of a factor to sell 
 upon credit, though not particularly authorized by the 
 terms of his employment {d). The purchaser of goods 
 from a factor has a right to pay him in money and be 
 discharged {c) . And as a factor is an agent employed out 
 of reliance in his personal skill and integrity, he cannot 
 hand over Ids duties to another (,/') ; nor does he appear to 
 have authority to compound a debt {(j). Factors have an 
 
 {z) Foster v. Pearson (1834), 1 
 C. M. & R. 849. 
 
 («) Jlaynes v. Foster (1833), 2 
 C. & M. 237 ; and sec also Foster 
 v. I'earson, uhi supra. 
 
 (Ij) Gucrrciro v. Feile (1820), 3 B. 
 & Aid. 616. 
 
 (c) Jtarui!/ v. Carrie (1818), 2 B. 
 & AM. 148 ; Johnson, v. Usborne 
 (1841), 11 Ad. & E. 649. 
 
 {(J) Per Chambre, J., in Houghton 
 V. Mathews (1803), 3 Bos. & Pul. 
 485. 
 
 (e) Per Lord Mansfield in Brink- 
 water V. Goodwin (1775), Cowp. 
 251. 
 
 (/) Coch-nn v. Irlam (1814), 2 
 M. & Sol. 300. 
 
 {g) Jloward v. Chapman (1831), 4 
 C. & P. 508.
 
 THE AUTHORITY OF AN AGENT. 93 
 
 insurable interest in the goods confided to tliem, and can 
 recover in resjoect of an insurance effected by them {h) . 
 
 F-actors being in possession of goods and selling or buy- Factor can 
 ing them in their own name practically have all the powers own name, 
 of an owner when dealing with them in the ordinary course 
 of business, and when the person who takes them is acting 
 in good faith and without any knowledge of a breach of 
 duty, or that the factor is not the true owner. The 
 common law gave the factor all the powers that might 
 naturally be implied from the fact that he was an agent 
 for sale and could sell in his own name, but did not allow 
 him to pledge the goods, as that was not a necessary 
 power for carrying out the object of his employment as 
 agent. In the course of business the power of pledging 
 was found both necessary and convenient, and the law as 
 to factors' powers was settled by the Factors Act, 1889 (/). 
 
 Partners. 
 Partners are persons who have entered on a business in 
 common with a view to profit — the business not being a 
 company or incorporated by Act of Parliament or charter. 
 By the relation of partnership every partner is an agent 
 for the rest for the pm-pose of the business ; and his acts in 
 the usual way of business, therefore, bind the firm, unless 
 the person dealing with him knows he has no authority (/.•). 
 The legal relations arising out of the contract of partner- 
 ship do not properly come under the head of agency, and 
 the reader is therefore referred to books dealing with the 
 subject, such as Pollock on Partnership. 
 
 £ank Managers. 
 The authority of bank managers is regulated by custom, Managers of 
 and also, in the case of joint stock banks, by the articles ^.'['^^^i autho- 
 
 (/*) Waters v. Monarch Life Ass. [i) 52 & 53 Vict. c. 45. 
 
 (1848), 5 El. & Bl. 870; Craufurd \k] Ilawken v. Bourne (1841), 8 
 
 V. Hunter (1798), 8 T. Rep. 13, at M. & W. 703, at p. 710. 
 p. 25.
 
 94: 
 
 PRINCIPAL AND AGENT. 
 
 Effect of frau- 
 dulent repre- 
 Hent.'ition as 
 to credit f)f 
 customer by 
 manager. 
 
 of association. The duties of a bank manager would 
 usually be to conduct banking business on behalf of his 
 employers ; and, when he is so acting, what is done by 
 him in the way of ordinary banking transactions may be 
 presumed to be, until the contrary is shown, within the 
 scope of his authority, and his employers would be liable 
 for his mistakes, and, under some circumstances, for his 
 frauds in the management of the business ; but the arrest 
 and still less the prosecution of offenders is not within the 
 ordinary routine of banking business ; and when the 
 question of a manager's authority in such a case arises, it 
 is essential to inquire carefully into his position and duties ; 
 these may, and in practice do, vary considerably. In the 
 case of a chief or general manager invested with the 
 general supervision and power of control, such an autho- 
 rity in certain cases affecting the property of the bank 
 might be presumed from his position to belong to him, at 
 least, in the absence of the directors. The same presump- 
 tion might arise in the instance of a manager conducting 
 the business of a branch bank at a distance from the head 
 office and the board of directors (/). In the case of The 
 Bank of New South Wales v. Ousfon, the Privy Council 
 held that a sub-manager had no power to arrest anyone 
 on behalf of the bank. It has been held to be within the 
 scope of a manager's general authority to make inquiries 
 as to the solvency and commercial credit of persons with 
 whom the bank intends to have pecuniary transactions, 
 and also for a manager to reply to such questions (m). 
 
 It has been held, however, that if a manager fraudu- 
 lently misrepresents the credit of a customer, the bank 
 is not liable unless it has profited thereby ; for to charge 
 any person upon or by reason of any representation or 
 
 (/) Per Sir Moniafjuo Smitli in 
 J](nik of New South Wales \. Uirston 
 (1879), 4 Ap. Ca.«. 270, at p. 289. 
 
 [m) Swift V. TFintcrbottom (1873), 
 L. R. 8 Q. B. 244 ; sec the case on 
 appeal, Swift v. Jeicsbcrry (1874) ^ 
 L. R. 9 Q. B. 301.
 
 THE AUTHORITY OF AN AGENT. 95 
 
 assurance made or given concerning or relating to the 
 conduct, credit, ability, trade, or dealing of any other 
 person, to the intent or purj)Ose that such other person 
 may obtain credit, money or goods thereupon, such repre- 
 sentation must be in writing signed by the party to be 
 charged therewith (;?). To make the bank liable, it is 
 necessary to prove an express authority in writing, such 
 as a resolution of the board, authorizing the fraudulent 
 representation (o) . 
 
 If the bank or corporation has gained by the fraud or if manager 
 misrepresentation thereby, it is liable, but not otherwise ; fp™^^ j^ ^ 
 for, as Lord Selborne says in his judgment in Ilouhhicorth exercise of 
 V. City of GI((s(jow Bcnik (p), quoting Lord Cran worth, priuciiial' 
 " An attentive consideration of the cases has con- ^^^^^^^ to the 
 
 ..,.,, extent to 
 
 vmced me that the true principle is, that these corporate which ho 
 bodies, through whose agents so large a portion of the ^^^ 
 business of the country is now carried on, may be made 
 responsible for the frauds of those agents to the extent to 
 which the companies have profited by those frauds, but 
 that they cannot be sued as wrongdoers by imputing to 
 them the misconduct of those whom they have employed. 
 A person defrauded by directors, if the subsequent acts 
 and dealings of the parties have been such as to leave him 
 no remedy but fraud, must seek his remedy against the 
 directors personally." In S/rift v. Jc/cshcrri/, only the bank 
 manager was held liable, for the bank had not profited or 
 taken advantage of their manager's fraud. Lord Coleridge, 
 in giving judgment, said, " Justice points out and autho- 
 rity supports justice in maintaining that when a corpora- 
 tion takes advantage of the fraud of their agent they 
 cannot afterwards repudiate the agency, and say that that 
 which has been done by the agent is not an act for which 
 they are liable." Sir Montague Smith, in Mackay v. Tlie 
 
 («) 9 Geo. IV. c. 14, s. 6. {p) (1880), 5 Ap. Cas. 317 ; see 
 
 (o) Stvift V. Jcirsherrt/ (1874), L. also Bancick v. English Joint Stock 
 R. 9 Q. B. 301, at p. 3"l2. Bcoik (18G7), L. R. 2 Ex. 259.
 
 9<5 
 
 PRINCIPAL AXD AGENT. 
 
 "Whether an 
 action for 
 deceit lies 
 against a 
 company. 
 
 Authority of 
 manager to 
 discount bills. 
 
 Commercial Banh of New Brunswick (q), held the bank liable 
 for the fraud of its manager, as he had been acting within 
 the scope of his authority, and it had received a benefit 
 from the fi-aud. There a manager, whose duty it was to 
 obtain the acceptance of bills of exchange in which the 
 bank was interested (but without the knowledge of the 
 president or directors of the bank), by a fraudulent repre- 
 sentation induced a customer to accept a bill in which the 
 bank was interested. 
 
 Sir Montague Smith in that case held that an action of 
 deceit would lie against the comj)any ; this Lord Selbome 
 explained (>•) to mean that there might be cases on which 
 to work out the appropriate remedy against a principal 
 who had profited by the fraud of his agent, the form of 
 action, technically called an action of deceit, might be 
 either necessary or convenient. 
 
 As a manager has power to discount bills and make 
 advances to the customers of the bank, any loss from so 
 doing will have to be borne by the bank, unless bad faith 
 is proved. And although a manager may have shares in 
 a company whose bills he discounts, he is not liable for 
 any loss on the bills, unless bad faith is proved against 
 him, for such discounting is in the ordinary course of his 
 authority (.s). 
 
 Masters of 
 ships. 
 
 Authority to 
 contr;u;t for 
 employment 
 of ship. 
 
 Masters of Ships. 
 
 "The authority of the master of a ship is large, and ex- 
 tends to all acts that are usual and necessary for the use 
 and enjoyment of the vessel ; but it is subject to several 
 well-known lunitations. He may make contracts for the hire 
 of the ship for carrying, or he may vary that which the 
 owner has made : he may take up money in foreign ports, 
 and under certain circumstances at homo for necessary 
 
 (7) (1874), 5V. C. 394. 
 [)■) Jfoiilcisuorlh V. (Jill/ of Glnx- 
 (joiv JSuhIc (1880), 6 Ap. Ciis. 317, 
 
 at p. 328. 
 
 {k) The Bank of Upper Canada v. 
 Bradshaw (18G7), 1 V. C. 479.
 
 THE AUTHORITY OF AN AGENT. 97 
 
 disbursements for repair, and bind the owner for repay- 
 ment : but his authority is limited by the necessity of the 
 case, and he cannot make them responsible for money not 
 actually necessary for those purposes, although he may 
 pretend that it is. He may make contracts to carry goods 
 on freight, but cannot bind the owner to carry freight 
 free. So with regard to goods put on board, he may sign 
 the bill of lading, and acknowledge the nature and quality 
 and condition of the goods. Constant usage shows that 
 the master has a general authority, and if a more limited 
 authority is given, the party not informed of it is not 
 affected by such limitation. The master is general General agent 
 agent to perform all things relating to the ship, and the thin^^ con- 
 authority of such an agent to perform all such things nectedwith 
 usual in the line of business in which he is emploi/cd cannot 
 be limited by any private orders not known to the party 
 in any way dealing with him" (/). He cannot bind the Cannot make 
 owners to a charterparty before the ship arrives in port, as before'ship^ 
 his authority only arises when he is in a foreign port, arrives. 
 and there is a difficulty in communicating with the 
 owners (ti) . 
 
 The master may borrow on the credit of the owners ; May borro-w 
 
 T j_ ' .-p 1 • • ^ • •)• L iij when he can - 
 
 and to justiiy mm m borrowmg it is not necessary that notcommuni- 
 
 the occasion should arise in a foreign country, but the ^^te with 
 
 owner, 
 
 case must be one where the necessity is pressing, and the 
 master and the owner cannot communicate without great 
 prejudice and delay. It has been held that being separated 
 from the owner by eleven miles is not a sufficient distance 
 to justify his borrowing (r). The master's borrowing 
 powers depend on the difficulty of communication entirely; 
 and in countries where he can obtain supplies by telegraph, 
 these powers will be very small. 
 
 (0 Tcr Jervis, C. J., Grant v. (f) Johns v. Simons (1842), 2 Q. 
 
 Norway (1851), 10 C. B. GGo. B. 425. 
 
 («) The Fanny (1883), 6 Asp. 75. 
 
 W. H
 
 98 
 
 PRINCIPAL AND AGENT. 
 
 Master has 
 authority to 
 do what pru- 
 dent owner 
 would have 
 done in 
 owner's 
 absence. 
 
 May mort- 
 gage ship, 
 
 In a case (x) before Chief Justice Abbott, it was con- 
 tended that the power of the master to bind the owner 
 was confined to what was absolutely necessary for the 
 use and enjoyment of the ship, and the Chief Justice 
 said : "I think that rule too narrow, for it would be 
 extremely difficult to decide, and often impossible in many 
 cases, what is absolutely necessary. If, however, the jury 
 are to inquire only what is necessary, there is no better 
 rule to ascertain that than by considering what a prudent 
 man if present would do under the circumstances in which 
 the agent in his absence is called upon to act" (//). It has 
 been held that the liability of a vessel to arrest was such a 
 necessity. For the general interests of all parties con- 
 cerned in the adventure in which the ship is engaged ; and 
 for the protection and preservation of their property, the 
 master may, in case of necessity when he cannot com- 
 municate with the owner, of his own authority hypothecate 
 the ship, freight and cargo (z) . 
 
 The master is, as has been seen, the general agent of 
 the shipowner ; he is not the agent of the owners of the 
 cargo. He may become such, however, by the necessity of 
 the case. Lord Kingsdown said, " The character of agent 
 for the owners of the cargo is imposed upon the master 
 by the necessity of the case, and by that alone. If in 
 the circumstances something must be done, and there is 
 nobody present who has authority to decide what is to 
 be done, then the master is invested by presumption of 
 law with authority to give directions, on the ground that 
 the owners have no means of expressing theu" wishes. But 
 when such means exist, when communication can be made 
 to the owners, and they can give their own orders, the 
 character of agent is not imposed upon the master because 
 
 (z) Wchlcr V. Seckamp (1833), 4 
 B. & Ad. 3r,2. 
 
 (y) The Karnal- (18C9), L. R. 2 
 
 r. C. 505. 
 
 {z) The Bonaparte (1851), 8 Moo, 
 P. C. 459.
 
 THE AUTHORITY OF AN AGENT. 99 
 
 the necessity does not arise "(r/). As the power to hypo- and cargo, 
 thecate the cargo only arises from necessity, and if the 
 master cannot communicate with the cargo owners for 
 directions, a person taking a bottomry bond without 
 inquiries as to both the necessity and the impossibihty of 
 raising the money on credit is liable to have the bond held 
 bad if there was in fact no such necessity or impossibility 
 of communication (b) . 
 
 The amount for which the bond is found to be good 
 depends on the question how much was in respect of 
 necessaries. The question of ho)ia fides affects only the 
 primary question whether the bond is valid at all ; but if 
 the bond has been pronounced to be valid, then the case is 
 referred to the registrar and the merchants to say how 
 much of it is in respect of necessaries, and it will be bad 
 as regards each item to the extent by which such item 
 exceeds the amount that was actually necessary (c). 
 Bottomry bonds have now gone almost out of use, and 
 the master has a lien, under the Merchant Shipping Act, 
 1889, s. 1, for his disbursements. 
 
 A master has no primd facie authority to sell the ship ; May sell ship 
 the authority only arises when he is compelled to do so necessity, 
 by necessity, the onus prohandi that there was such a 
 necessity depends upon the purchaser {d) . In the case of 
 The Atlantic Mutual Insurance Co. v. Hutk (<'), the question 
 arose as to whether a master of a ship which has been 
 wrecked has power to sell the cargo while on the vessel, and cargo. 
 and the Court of Appeal said : "In our opinion purchasers 
 of cargo from a master cannot justify the sale, unless it is 
 established that the master used all reasonable eiforts to 
 have the goods conveyed to theii- destination, and that he 
 
 {a) The Hamburgh (1864), Br. & {c) Per Brett, M.R., The Tonlida 
 
 Lush. 253. (1884), 9 P. D. 177. 
 
 (J) Heathorn v. jDarling (1836), 1 {d) The Australia (1844), Swa 
 
 Moo. P. C. 5, at p. 14, and The 480, at p. 484. 
 Bonaparte (185.1), 8 Moo. P. C. (e) (1880), 16 C. D. 474. 
 
 459. 
 
 h2
 
 100 
 
 PRINCIPAL AND AGENT. 
 
 No authority 
 to sign bill of 
 lading for 
 goods not 
 shipped. 
 
 Can delegate 
 authority. 
 
 could not, by any means available to him, carry the goods 
 or procm'e the goods to be carried to their destination as 
 merchantable articles, or could not do so -u'ithout expendi- 
 ture clearly exceeding their value after their arrival at 
 their destination." In that case the cargo was tin, and 
 was practically uninjured by being wrecked. The captain, 
 although the ship was wrecked only fifty miles away from 
 a port, made no effort to procure funds to save the cargo, 
 but sold it. The Court held the sale was bad under the 
 circumstances. Lord Justice Cotton commented strongly 
 on the fact that perishable and non-perishable goods were 
 all sold in one mass ; and said it was difficult to see how 
 the master could under any circumstances justify such a 
 proceeding. 
 
 A master, from his position, derives no authority to sign 
 a bill of lading for goods not actually shipjied ; and a per- 
 son taking a bill of lading for goods which never have been 
 put on board is bound to show the particular authority 
 given to the master to sign it (/). 
 
 The master of a ship has a power of delegating his 
 authority, and the owner will be responsible for such 
 substitute's acts {rj). 
 
 Authority of 
 counsel. 
 
 Counsel. 
 
 It having been suggested that retainer as coimsel only 
 implied the exercise of power of argument and eloquence, 
 Mr. Justice Blackbrn^n {h) described counsel's authority 
 as follows : " Counsel have far higher attributes, namely, 
 the exercise of judgment and discretion in emergencies 
 arising in the conduct of a cause, and a client is guided 
 in his selection of counsel by his reputation for honoiu", 
 skill and discretion. Counsel, therefore, being ordinarily 
 
 (/) Per Jervis, C. J., in Grant v. 
 Norway (1851), 10 C. B. 665. 
 
 {if) Abbott's Merchant Shipping, 
 p. 85. 
 
 (A) Strauss v. Francis (1866), L. 
 R. 1 Q. B. 376, at p. 381 ; see also 
 Itumscij V. King (1876), 33 L. T. 
 728.
 
 THE AL'THORITY OF AN AGENT. 101 
 
 retained to conduct a cause without any limitation, 
 the apparent authority with which he is clothed when 
 he appears to conduct the cause is to do everything 
 which, in the exercise of his discretion, he may think 
 best for the interests of his client in the conduct of the 
 cause ; and if within limits of this apparent authority 
 he enters into an agreement with the opposite counsel, 
 in every principle this agreement should be held binding; 
 and a barrister had authority to make an admission of a 
 fact"(/). But a barrister only represents his client when 
 speaking for him in Court, and not at other times. A 
 solicitor, on the contrary, represents him throughout the 
 cause {J). 
 
 Solicitors. 
 Solicitors, who are officers of the Supreme Coui't, are per- Solicitors not 
 sons who conduct legal business for others. They are not the fctents. 
 general agents of the person who employs them generally, 
 but only for the particular business they have received a 
 " retainer," or authority to act. Solicitors are not, as such, 
 general agents for legal purposes of the person who happens 
 to employ them, no more than a doctor is of the person 
 employing his skill ; a notice to them does not affect the 
 client. Lord Justice James said : " A solicitor is not an 
 agent for the purpose of receiving notice of an incumbrance 
 created by a cestid que trust because he was the solicitor 
 employed to invest the moneys, or even because after- 
 wards he for convenience received from the mortgagor the 
 interest, and handed it, by du-ection of the trustees, to the 
 different persons entitled to receive it " ; and in the same 
 judgment said : " I have had occasion several times to express 
 my opinion about the fallacy of supposing that there is such 
 a thing as the office of a solicitor, that is to say, that a man 
 has got a solicitor not as a person whom he employs to do 
 
 (i) Colledge v. Horn (182.5), 3 ( /) Richarchon v. Pt'to (1810), 1 
 
 Bing. 119; Rallery. Worman (1S61), M. ct G. 89G. 
 3 L, T. 741.
 
 102 PKINCIPAL AND AGENT. 
 
 some work for liim, . . . but as an official solicitor, and 
 tliat because the solicitor lias been in the habit of acting for 
 him, or has been employed to do something for him, that 
 solicitor is his agent to bind him by anything he says, or 
 to bind him by receiving notices or information. There is 
 no such officer known to the law. A man has no more a 
 solicitor, in that sense, than he has an accountant, or baker, 
 or butcher. A person is a man's accountant, or baker, or 
 butcher, when the man chooses to employ or deal with him, 
 and in the matter so employed" (A-). And Lord Justice 
 Cotton, commenting on the above, said : " But where a 
 man employs a solicitor as to a particular property, the 
 solicitor has a general authority not to do acts which bind 
 the client without communication with him, but to enter 
 into negotiations on his behalf" (/). The principal who 
 employs such attorney is bound by every act done by the 
 solicitor in the ordinary coui'se of business, and within the 
 scope of his employment ; so he may compromise a suit, 
 provided he acts bona fide and reasonably, that is unless he 
 has instructions to the contrary (;w) . 
 Solicitor has It was agued in Prestwich v. Poleij that a solicitor had 
 
 "■eneralautho- i ji -j j • ;• i 
 
 rity to com- ^0 general authority to compromise an action, even where 
 promise an ]^g ^yg^g j^q^ forbidden to do so, but the Court held he had. 
 
 action. . .... 
 
 Chief Justice Erie, in giving judgment, said : " It is clear 
 that there was no express prohibition to the attorney to 
 compromise, and the question for us to determine is 
 whether the general retainer as attorney gave authority 
 
 to compromise tlie action in this way I am unable 
 
 to say that the plaintiff's attorney has in any respect gone 
 out of the ordinary and proper course of his duty in the 
 arrangement he has effected." Mr. Justice Bylos said : 
 " I am of the same opinion. No authority has been cited 
 before us to show that an attorney who has the legal 
 
 {k) Hnffron WaUrn Ttnildiiirj So- D. 307 at p. G16. 
 cieli/ V. Ji(n/)>er (l.SSO), 14 C. D. ')0G. (in) IW.slivich v. Folri/ (1865), 18 
 
 (l) lleslcr V. IlcsUr (1««7), 31 C. C, B. N. S. 806.
 
 THE AUTHORITY OF AN AGEN'J'. 103 
 
 management of tlie cause has not power in tlie bond fide 
 exercise of reasonable care and skill to compromise an 
 action in any manner lie may find may be for the interest 
 of his client." 
 
 The general appointment of a solicitor gives him autlio- Appointment 
 rity to defend an action, though not to commence it(;^). authorizes 
 It is desirable that if possible there should be a written f^^f ending-, 
 
 ^ ^ ^ _ but not m- 
 
 retainer. Lord Eldon said, " It is settled that if the stituting an 
 plaintiff denies and the solicitor asserts authority to have 
 been given, and there is nothing but assertion against 
 assertion, the Court will say that the solicitor ought to 
 have secured himself by having an authority in writing, 
 and that not having done so he must abide by the conse- 
 quences of his neglect. There must be a special authority 
 to institute, though a general authority is sufficient to 
 enable the solicitor to defend a suit. " The authority extends 
 to everything that is necessary for the accomplishment of 
 the work for which the solicitor is retained or employed (o). 
 
 If the solicitor is to bring an action he must have a Special autho- 
 special authority to do so. He continues, when appointed, for commenc- 
 to have authority until judgment is satisfied. A solicitor ii^g action, 
 ought to have a special authority if he is going to put his 
 client to any exceptional expense. Speaking of foreign Special autho- 
 journeys which a solicitor wished to charge for, the late "eys abroad' 
 Master of the EoUs, Sir Greorge Jessel, said : " A solicitor necessary. 
 has no right to take special journeys, or go to foreign 
 countries at the expense of his client without specific 
 instructions, nothing really is better settled ; otherwise the 
 unfortunate client in giving a retainer to a solicitor would 
 thereby authorize him to travel all over the world at his 
 expense." The Court of ' Appeal, on the special facts, 
 reversed the judgment, but specially endorsed the Master 
 of the Rolls' statement of the rule {p) . 
 
 (h) 7rn>/i<v. (7«s)'/e(18l7),3Mer. {p) Reg. v. Lichfield (1817), 16 
 
 12; Wi(jgins v. Tcppm, 2 Beav. L. J. Q. B. 333. 
 403. {p) In re Snell (1877), 5 C. D. 
 
 Slo.
 
 104 PRINCIPAL AND AGENT. 
 
 CHAPTER YII. 
 
 DELEGATION. 
 
 Agent can In most text-books on agency the rule is laid down that 
 gate his ' delegatus non potest delegare^ and then the exceptions to 
 authority. -j-j^g p^j^g are given. As the rule is more honoured in the 
 breach than the observance, it seems that the nile ought 
 perhaps to be given the other way. and ought rather to be 
 — an agent can delegate the subject-matter of the agency 
 to others unless he has undertaken, expressly or imphedly, 
 to perform it himself {a). 
 
 Lord Justice Thesiger explains the rule thus {h) : — " As 
 a general rule, no doubt, the maxim delegatus non potest 
 delegare applies so as to prevent an agent from establishing 
 the relationship of piincipal and agent between his own 
 principal and a third person; but this maxim, when analysed, 
 merely imports that an agent cannot, without authority 
 from his principal, devolve upon another obhgations to the 
 principal which he has himself undertaken personally to 
 fulfil ; and that inasmuch as confidence in the particular 
 person employed is at the root of the agency, such authority 
 cannot be implied as an ordinary incident in the contract. 
 But the exigencies of business do, from time to time, 
 render necessary the carrying out of instructions of a 
 principal by a person other than the agent originally 
 instructed for the purpose, and where that is the case 
 
 (a) Smith's Mercantile Law, 10th (*) Be Buachf v. Alt (1878), 8 C. 
 
 ed. p. 116. D. 286, at p. 310.
 
 DELEGATION. 105 
 
 the reason of the thing requires that the rule should be 
 
 relaxed, so as on the one hand to enable the agent to 
 
 appoint what has been termed a ' sub-agent ' or substitute ; 
 
 and on the other hand to constitute, in the interests and 
 
 for the protection of the principal, a direct privity of 
 
 contract between him and such substitute. And we are 
 
 of opinion that an authority to the effect referred to may 
 
 and should be implied, where from the conduct of the 
 
 parties to the original contract of agency, the usage of As where 
 
 trade, or the nature of the particular business which is the usa^e^oflrade. 
 
 subject of the agency, it may reasonably be presumed 
 
 that the parties to the contract of agency originally 
 
 intended that such authority should exist, or where, in 
 
 the course of the employment, unforeseen emergencies 
 
 arise which impose upon the agent the necessity of the 
 
 employing a substitute ; and that when such authority 
 
 exists and is duly exercised, privity of contract arises 
 
 between the principal and the substitute, and the latter 
 
 becomes responsible to the former for the due discharge of 
 
 the duties which his employment casts upon him as if 
 
 he had been appointed agent by the j^rincipal himself." 
 
 Sometimes commercial usage requires an agent to Privity of 
 appoint a substitute, without creatiog privity of contract ^"^^^'^^^ ^®". 
 between the principal and the sub-agent ; and that in pal and sub- 
 other cases there is an authority not only to appoint a ° 
 substitute, but also to create privity between him and the 
 principal. 
 
 Whether there is such privity or not seems to depend, 
 as Lord Justice Thesiger points out, (1) on the original 
 contract of agency, (2) the usage of the trade, and (3) the 
 natm-e of the subject-matter of the agency. Where the 
 agent is authorized to employ a sub-agent and create 
 privity of contract between the principal and the sub- 
 agent, the agent will not be liable for the acts and 
 omissions of the sub-agent appointed or employed by him, 
 unless in the appointment or substitution he is guilty of
 
 106 
 
 PRINCIPAL AND AGENT. 
 
 Master of sliip 
 can delegate 
 signing of 
 charter-party. 
 
 Agent liable 
 for acts of 
 sub -agent if 
 no privity 
 of contract 
 between him 
 and the 
 principal. 
 
 fraud or gross negligence, or improperly co-operates in 
 the acts or omissions (b) . 
 
 In the case of The Fanny [c), Sir Robert Phillimore held 
 that a master of a ship could delegate his authority to sign 
 a charter-party for tlie owner to a shipbroker, when that 
 was the most convenient way of conducting business ; and 
 that by doing so privity of contract was created between 
 the shipbroker and the owner. 
 
 If the principal refuses to allow the agent to delegate 
 his authority the latter remains solely liable to the principal. 
 Thus, in Meycrstein v. The Eastern Agency Co.{d), the 
 defendants, the agents, contended that they were not liable 
 for the price of certain goods which had been consigned to 
 them for the purpose of getting them sold by a sub-agent 
 in China, and insisted that the sub-agent in China was 
 alone liable. It appeared that the principals refused from 
 the very beginning to look to the sub-agent, and said they 
 would hold the defendant company alone responsible. 
 Baron Huddleston, under these circumstances, held that 
 there was no privity of contract, and that being so, " it was 
 clearly established that where there was no privity of con- 
 tract between the principal and the sub-agent, or substituted 
 agent, that the intermediate was liable to the principal for 
 the sub-agent." The House of Lords, in MacJicrsy v. 
 RaniHayH (e) , held that it did not necessarily follow because 
 the princiiial knew the agent would have to employ a 
 sub- agent, that he had authority to establish privity of 
 contract so as to escape liability. 
 
 Lord Campbell said, " The general rule of law that an 
 agent is liable for a sub- agent employed by him, is not 
 confined to cases where the principal has reason to suppose 
 that the act may be done by the agent himself without 
 employing a sub-agent " (/). 
 
 {h) Story, sect. 201. 
 
 {c) (1883), 5 Asp. 74. 
 
 [d) (1884), 1 Times Rep. 695. 
 
 M (1843), 9 C. & F. 818. 
 (/) At p. 845 ; see, also, Jfuc- 
 douald V. Macdonald (1781), Hume's
 
 DELEGATION, 107 
 
 It would seem, from first principles, that even where the 
 agent had authority to establish privity of contract and 
 did not take care to appoint a proper sub-agent, he would 
 be liable to the principal for such breach of duty, and any 
 loss resulting to him from such appointment (see "Liability 
 of Agent to Principal "). 
 
 Whether the sub-agent is liable to the principal depends Privity of 
 upon whether there was privity of contract between him between sub- 
 and the principal. Where the sub-agent is employed by agent and 
 the agent to act only for him the sub-agent is not liable 
 to the principal. In The New Zealand Land Co. v. 
 Watson (g), the principal sued the sub-agent for a sum 
 of money which the latter had received as the price of 
 goods : the sub-agent denied that there was any privity 
 of contract, and claimed to be entitled to set off the 
 liability of the agent against the price of the goods. 
 It appeared, that while the principal employed an agent 
 on one set of terms, the latter employed a sub-agent 
 on different terms. The judge asked the jury two 
 questions, first — whether the sub-agent was employed 
 by the principal, and whether he accepted that employ- 
 ment ? to which the jury replied in the negative. 
 Next, whether the sub-agent knew the agent was acting 
 for the principal? This question the jury answered in 
 the affirmative. On these findings the Court of Appeal 
 held there was no privity of contract. It does not seem 
 to follow that there is no privity of contract between 
 the principal and sub-agent in every case vv^here the sub- 
 agent is employed by the agent on different conditions, 
 and does not know for whom he is acting as sub-agent ; 
 the question in each case is, had the agent authority to 
 establish the relation of principal and agent between his 
 principal and the sub-agent ? (A). 
 
 Collection of Cases; M'Vicl-ar v. (-7) (1881), 7 Q. B. D. 374. 
 
 MacGre(jor (1781), Hume's CoUec- (//) See Lord Bramwcll in /u?/(;fin- 
 
 tion of Cases ; Sc/tDiahng v. Thorn- bach v. Lewis (1S84), 10 Ap. Cas. 
 
 linson (1815), 6 Taunt. 147. 617, at p. 636.
 
 108 
 
 PRINCIPAL AND AGENT. 
 
 Authority to 
 do an illegal 
 act cannot be 
 delegated. 
 
 Authority 
 •where con- 
 fidence is re- 
 posed cannot 
 be delegated. 
 
 A judicial 
 authority 
 cannot be 
 delegated. 
 
 It is needless to point out tliat there can be no delega- 
 tion to a sub-agent of power to do anything that is illegal 
 or criminal, for any contract to tempt a man to transgress 
 the law and do that which is injurious to the community 
 is void at common law (/), and the law will defeat any 
 contract which is to do something which is a inalum iit sc, 
 or to omit doing something that is a duty, or which would 
 tend to encourage crime, and this without regard to the 
 circumstances, as it is concerned to remove all temptations 
 and inducements to crimes (/.•). 
 
 The first rule as to non-delegation of power by an agent 
 is that he cannot delegate the authority when personal 
 confidence is reposed in his skill and honesty. Therefore 
 in CocJcram v. Irlam (/) Lord Ellenborough held that a 
 broker could not hand over his principal to a third party. 
 The same principle is adopted in Chancery in cases as to 
 powers ; for instance, where a power has been given to 
 a father to appoint among his children, a delegation of this 
 power to his wife has been held bad {m). The mere fact 
 that a fiduciary agent, as a trustee, discusses how he ought 
 to exercise his discretion vdih. third parties has not been 
 held a delegation of his authoritj' if he has exercised his 
 discretion [n) ; and the same train of reasoning apphes 
 equally to commercial agencies. 
 
 An agent whose authority is of a judicial character can- 
 not delegate it. 
 
 In Little v. Xeufox (o) two lay arbitrators had deferred 
 their decision to a third, who was a barrister, on a point 
 of law. The Court held they had no power to do so. 
 Tindal, C. J., said : " There is no principle of law that 
 we are aware of which will authorize any such delegation 
 
 (.) ColliM V. Blantern (1767), 2 
 Wils. 341. 
 
 {k) Per C 3. V&rker inMitchclx. 
 ReytwlcU (1711), Smith's Leading 
 Ca^cs 9th ed. vol. 1, p. 430, and 1 
 P. WmH. 181. 
 
 (/) (1814), 2 M. & S. 300. 
 
 (;/i) Chester t. Chadwick (1842), 
 13 Sim. 102. 
 
 («) Fraser v. Murdoch (1881), 6 
 Ap. Cas. 855, at p. 864. 
 
 {'A (1841), 2 Scott, N. R. 509, at 
 p. 519.
 
 DELEGATION. 109 
 
 of the judicial authority conferred upon the three, and it 
 is impossible to say that if the determination of the legal 
 arbitrator had been disclosed to either of the other arbi- 
 trators before the signature of the award some argument 
 or observation might not have been made which would 
 have led to a different conclusion." 
 
 In another case of an award by arbitrators (p), it was 
 decided that they might consult the umpire, but could 
 not give up their own opinions to be bound by him. 
 Lord Cranworth said, as to Mr. Southern (one of the 
 arbitrators) : — " It appears not tliat he consulted Mr. 
 Peacock (the umpii^e), and was satisfied by him of the 
 land being worth 400/. an acre, but that he consulted 
 Mr. Peacock, and, finding that he said 400/. was the value, 
 he (Mr. Southern), although he did not think it worth 
 200/., concurred in the award because he thought it no 
 use differing. That is not a course which referees have 
 a right to pursue, and an award so made was not one by 
 which the persons (the principals) who had agreed to take 
 the reference were bound. They were entitled to have the 
 unbiassed judgment of the umpire ; not in a loose way 
 giving an opinion, but dealing judicially with that upon 
 which it was his duty to decide "((/). 
 
 So, again, where (r) a judge, instead of exercising his 
 discretion in appointing a liquidator, dii-ected he should 
 be appointed on the nomination of a third party without 
 approving of the nomination first. The Court of Aj)peal 
 held such a delegation of authority was bad. 
 
 Merely subsidiary acts, which involve no discretion, Authority to 
 may be delegated. So, where a principal gave a power acts m-T'^be^ 
 of attorney to his agents to draw bills in his name, it delegated, 
 was held that where the agents might themselves have 
 drawn the bills they could authorize their clerks to draw 
 
 [p) Ends V. TJ'ilUams (1854), 4 Do 9 L. T. 730. 
 G. M. & G. 674. [r] Re Great Southern Mysore Co. 
 
 [q) See also Mr. Justice Shea's (1883), 48 L. T. 11. 
 judgment in Ellison v. Bra>j (1864),
 
 no 
 
 PRINCIPAL AND AGENT. 
 
 Where no 
 discretion or 
 skill required 
 in agent he 
 may delegate 
 authority. 
 
 Steward of 
 manor may 
 delegate. 
 
 them, the act of drawing being merely ministerial (s). 
 It lias been held that the signing of a bought-and-sold 
 note by a broker's clerk is not a sufficient signing by an 
 agent within the Statute of Frauds, the broker having 
 no authority to delegate such a duty to his clerk {i). 
 
 Where no personal skill or discretion is requisite, an 
 agent can delegate his authority. Mr. Justice Willes 
 says (u): "If a person is appointed to some function, or 
 selected for some employment to which peculiar personal 
 skill is essential — as a painter engaged to paint a portrait 
 — he cannot hand it over to someone else to perform ; but 
 when the thing to be done is one which any reasonably 
 competent person can do equally well, or when any dis- 
 cretion to be exercised is in respect of a merely ministerial 
 act, a deputy may be appointed " ; and held the acts to be 
 done by a sexton fell within the latter class. 
 
 The steward of a manor may appoint a deputy to act 
 as steward, and the deputy may do all that the steward 
 himself could have done (r). 
 
 Where from the nature of business it is necessary that 
 the authority should be delegated, the agent may dele- 
 gate it. 
 
 Lord Fitzgerald said (;r) : "I accept it, then, as settled 
 law that although a trustee cannot delegate to others the 
 confidence reposed in himself, nevertheless he may in the 
 administration of a trust fund avail himself of the agency 
 of third parties, such as bankers and others, if he does so 
 from a moral necessity, or in the regular course of busi- 
 ness. If a loss to the trust fund should be occasioned 
 thereby, the trustee will be exonerated, unless negligence 
 or default of his led to the result." 
 
 («) Ez parte Sutton (1788), 2 Cox, 457 
 
 84. 
 
 (t) Henderson v. JJarneivell {1827), 
 1 Y. & J. 387. 
 
 («) 67. Margnrct''a Burial Board 
 V. Thompson (1871), L. R. 6 C. P. 
 
 {v) Parker v. Kett (1701), 1 Ld. 
 Raymond, 658. 
 
 [w) Speight V. Gaunt (1883), 9 
 Ap. Cas. 1 at p. 29.
 
 DELEGATION. Ill 
 
 It will be seen from the foregoing that an agent cannot 
 delegate bis powers unless the custom of business required 
 it ; and the authority does not require for its exercise any 
 personal confidence or skill to be reposed in the agent, and 
 the authority is not iudicial. Hence it has been held that I>ii'ectors of a 
 
 . company can- 
 
 the directors of a company cannot delegate their powers of not deie-j-ate 
 allotting shares to any of their number (.r). S^sw""^^ 
 
 Where two railway companies made an agreement which Where 
 the Court held was a practical delegation by one of them pfS^y Lff!'' 
 of all the powers that Parliament had given it, the Court rity cannot 
 refused to enforce the agreement {>/) . Yice-Chancellor o^'^ '^ • 
 
 Turner said : " I think there lies at the root of this case a 
 question of public policy which precludes the interference 
 of the Court. It is impossible to read the agreement 
 between the plaintiffs and the East Anglian Eailway 
 Company without being satisfied that it amounts to an 
 entire delegation to the plaintiffs of all the powers con- 
 ferred by Parliament upon the East Anglian Railway 
 Company. All the stock of that company is to be taken 
 by the plaintiffs without any obligation to restore it ; the 
 plaintiffs are to manage and regulate the railways of the 
 East Anglian Railway Company for the pm'poses of the 
 agreement ; and although in form it is declared that the 
 instrument shall not operate as a lease or an agreement, 
 it amounts in substance to either one or the other. It is 
 framed in total disregard of the obligations and duties 
 which attach to companies, and is an attempt to carry into 
 effect without the intervention of Parliament what cannot 
 be lawfully done except by Parliament in the exercise of 
 its discretion with reference to the interests of the public." 
 
 {x) In re the Leeds Banking Co., (>/) G. N. Ry. v. Eastern Counties 
 
 Howard's case (1866), 1 Ch. Ap. E>j. (1851), 21 L. J. 837. 
 561.
 
 112 
 
 PRINCIPAL AND AGENT. 
 
 CHAPTER YIII. 
 
 THE DUTIES OF AN AGENT. 
 
 Duties of 
 agent : — 
 
 1. Mode of 
 performance ; 
 
 2. Diligence 
 in execution ; 
 
 3. Incidental 
 acts required 
 by law. 
 
 Duty to make 
 a contract 
 binding in 
 law. 
 
 If under seal 
 ought to 
 execute it in 
 principal's 
 name. 
 
 Story considers the duties and obligations of an agent and 
 his principal under three heads. What is the proper mode 
 of executing the authority ? What degree of diligence 
 is required of an agent ? What are the incidental acts 
 required of him by law? In the Chapter on *' Delegation " 
 we have dealt with the limits which the law puts upon his 
 delegating his duties to another. We have seen that if a 
 broker delegates the signing of bought and sold notes to a 
 clerk, there is no sufficient memorandum in writing to satisfy 
 the Statute of Frauds {a). And it was doubted whether 
 an auctioneer's clerk could sign a binding memorandum {b). 
 The first duty of an agent clearly is, if he is making a 
 contract, to make one which will be legally binding, and 
 on which the principal can sue. 
 
 If the contract, therefore, is by deed, the agent ought to 
 sign it in the principal's name, and not in his own, or it 
 will not be binding on the principal, as a contract under 
 seal can bind none but those who sign and seal it (c), 
 i.e., the parties executing the deed. But it has been held 
 that the mere fact of the seal to the contract being that 
 of the principal will not make him liable if, on tlie con- 
 struction of the document, it appears the liability is one 
 undertaken by the agent (f/). 
 
 («) Henderson \. Jiarneurll {\827), 
 2 Youngo and Jcrvis, 387. 
 
 (/y) Coles V. Trecolhivk (1H04), 9 
 VcH. 23'). 
 
 (r) Beckham v. Brake (1841), 9 M. 
 & W. 79, ut p. 95 ; Combe's case 
 
 (1G14), 9 Co. Rep. 77; Frontin v. 
 .Vwr//'/(l72G), 2 Ld. Raymond, 1419; 
 ]^ut sec sect. 4G of Conveyancing 
 Act, 1881—44 & 45 Vict. c. 41. 
 
 [d) iMton y. Marsh (1874), L. R. 
 9 Q. B. 3G1.
 
 THE DUTIES OF AN AGENT. 113 
 
 Similarly, in the case of bills of exchange, each person 
 who receives the bill is making a contract with the parties 
 upon the face of it, and with no other party whatsoever. 
 For the case of bills of exchange stands upon the law mer- 
 chant, and so do promissory notes, as they are placed on 
 that footing by a statute of Queen Anne. In neither of 
 these can any but the parties named in the instrument by 
 their name or firm be made liable to an action (r) , But 
 it was held in Lindus v. Bradtcell that if the principal 
 authorized another to accept a bill in that other's name, 
 that will bind him, though his own name does not 
 appear (/') ; there it appeared that a husband authorized 
 his wife to endorse a bill of exchange in her name, and he 
 was accordingly held liable. 
 
 When the contract is not by deed, but parol, the prin- Not necessary 
 cipal is bound, even if he is not mentioned. Lord Abinger ^Xact not 
 said : " There is no question that a contract in writing by ^y <ieed. 
 an agent, signed by himself, will bind his principal when 
 the other contracting party discovers the principal, although 
 the contract was made without his knowing who the prin- 
 cipal is ; as, for instance, in the case of a bill of lading 
 signed by the master, where the action is brought against 
 the owners. It is also the case of every charter-party which 
 is signed by the owner, where the owner is rendered liable 
 by the acts of the master, because the master is his agent. 
 So it is in a vast variety of other cases which frequently 
 occrn^ all establishing one principle, that the parties really 
 contracting are the parties to sue in a court of justice, 
 although the contract be in the name of another. I say 
 the parties really contracting, because it is possible that an 
 agent meaning to contract in his own name is the party to 
 sue"(j7). 
 
 {e) Beckham v. Drake (1841), 9 M. (/) LimlHS v. Bradmll (1848), 5 
 
 & W. 79, at p. 96 ; Fox v. Frith C. B. 583 ; see also Edmunds v. 
 
 (1842), 10 M. & W. 131 ; Emly v. Bmhell (18Go), L. R. 1 Q. B. 97. 
 
 Lye (1817), 15 East, 7. {</) Beckham v. Drake, ubi supra. 
 
 W. I
 
 114 
 
 PRINCIPAL AND AGENT. 
 
 No difference 
 at common 
 law between 
 verbal con- 
 tract and a 
 written con- 
 tract not 
 under seal. 
 
 Same prin- 
 ciple applies 
 to chartor- 
 parties. 
 
 Cliief Justice Cockburn sums up the authorities thus : 
 " The effect of the authorities is clearly then that where 
 parties, in making a promissory note or accepting a bill, 
 describe themselves as directors or by any similar form of 
 description, but do not state on the face of the document 
 that it is on account or on behalf of those whom they 
 might otherwise be considered as representing — if they 
 merely describe themselves as directors, but do not state 
 that they are acting on behalf of the company, they are 
 individually liable. But, on the other hand, if they state 
 they are signing the note or the acceptance on account of 
 or on behalf of some company or body of whom they are 
 the directors and representatives, in that case, as the case 
 of Lindus v. Melrose iji) fully establishes, they do not make 
 themselves liable when they sign their name, but are taken 
 to have been acting for the company, as the statement on 
 the face of the document represented" (/). 
 
 It must be always borne in mind that there is no differ- 
 ence, except when a difference is made by statute — there is 
 no difference at common law between a contract by word 
 of mouth and a contract in writing not under seal (A'). 
 It is the well-established rule of law that where a con- 
 tract not under seal is made with an agent in his own 
 name for an undisclosed principal, either the agent or the 
 principal may sue upon it ; the defendant, in the latter 
 case, being entitled to be placed in the same situation at 
 the time of the disclosure of the real principal as if the 
 agent had been the contracting party (/). 
 
 The same principle applies to charter-parties where, as 
 in every other contract, if the agent chooses to make him- 
 self a contracting party, the other contracting party may 
 either sue the agent who has himself contracted, though 
 
 [h) (1858), 3H. &N. 177. 
 
 (i) LiUton V. Marsh (1874), L. R. 
 G (i. 13. .'i()l ; Dcslandes v. Grrgon/ 
 (18G0), 2 El. & El. G02. Sec, how- 
 over, (j'add V. lloiiyhton (1S7G), 1 
 Ex. Div. ;i57. 
 
 (/.) Per Willes, J., in Calder v. 
 Bobcll (1871), G L. R. C. P. 486. 
 
 (/) Sec L. C. J. Dcnman in Sims 
 V. liond (1833), 6 B. & Ad. 389, at 
 p. 393.
 
 THE DUTIES OF AN AGENT. 115 
 
 on belialf of another, or lie may sue the principal who has 
 contracted through his agent, and this whether the prin- 
 cipal was known at the time or not, or whether it was or 
 was not known that there was a principal {in). 
 
 It was held that a person who executed a deed for No form of 
 another under a power of attorney had to execute it in the sary if act 
 name of his principal ; but if that be done it mattered not '^^^'^ }^ .^^™® 
 
 7 1 • m 1 A 1 1 °^ principal. 
 
 m what words the execution was effected. As by the 
 46th section of the Conveyancing Act, 1881, an attorney 
 may execute it in his own name for his principal, the 
 essential matter seems now to be in what capacity he 
 executed the deed, whether for himself or his principal. 
 Mr. Justice Lawrance, in IFilks v. Backi^n), said, "No 
 doubt in point of law the act done must be the act of the 
 principal, and not of the attorney who is authorized to do 
 it. The whole argument has turned upon an assumption 
 of fact that this was the act of the attorney, which is 
 not well founded." [The agent Wilks, one of partners, 
 had signed a submission to arbitration of himself and 
 his co-partner thus — Mathias Wilks (l.s.) for James 
 Browne, Mathias Wilks (l.s.).] "This is not like the 
 case in Lord Eaymond's Eeports, where the attorney 
 had demised to the defendant in her own name, which 
 she could not do, for no estate could pass from her, 
 but only from her principal. But here the bond was 
 executed by Wilks for and in the name of his prin- 
 cipal, and this is distinctly shown by the manner of 
 making the signature. Not even this is necessary to be 
 shown, for if Wilks had signed and sealed and delivered 
 it in the name of Browne that would have been enough 
 without stating he had so done. . . . There is no par- 
 ticular form of words required to be used, provided the act 
 be done in the name of the principal" (o). 
 
 (;h) Fev Blackburn, J., Chrid- [n) (1802), 2 East, 140. 
 
 qfcrson y. Hansen (1872), L. E. 7 [o) Sec also Downhainx. TFilliams 
 
 Q. B. 509. (1845), 7 Q. B. 103. 
 
 i2
 
 116 
 
 PRINCIPAL AND AGENT. 
 
 FrimA facie 
 agent signing 
 without quali 
 fication con- 
 tracts per- 
 sonally. 
 
 Signing as 
 agent, not 
 liable. 
 
 The mere fact, liowever, that the third party has, after 
 knowing that there is a principal and knowing his name, 
 insisted on the agent's name being put down in the 
 contract, does not relieve the principal from liability (|;). 
 
 The question whether the person actually signing the 
 . contract is to be deemed to be contracting personally or as 
 agent only, depends upon the intention of the parties as 
 discoverable from the contract itself ; and it may be laid 
 down as a general rule that where a 23erson signs a contract 
 in his oicn name uithout qualification he is 2)rimd facie to be 
 deemed a person contracting personally, and in order to 
 prevent the liability from attaching it must be apparent 
 from other portions of the document that he did not 
 intend to bind himself as principal {(j). 
 
 The Courts at first showed a tendency, as evidenced 
 by a large number of decisions, to regard the words " as 
 agent " as merely descriptive, and also the word "director" 
 when used after a director's name, although he was signing 
 a document in which the company were alone interested, 
 see Button v. MarsJt (r). 
 
 The Court of Appeal in more recent cases, however, 
 seems to be more inclined to hold, in accordance with the 
 manifest intention of the parties signing " as agents," that 
 these words were put expressly to avoid liability (s). Sir 
 George Jessel, in Southwell v. Bou-ditch, quoted Mr. Justice 
 Blackburn's decision in Fleet v. Murton (t), in which he said 
 that a broker, as such, merely dealing as broker and not as 
 purchaser, makes a contract, from the very nature of things, 
 between the buyer and the seller, and ho is not himself either 
 buyer or seller ; and consequently when the contract says 
 "sold to A. 13.," or "sold to my principals," and the 
 
 (p) Cahlcr v. Bohell (1871), L. R. 
 6 C. P. 4.SG. 
 
 {>l) II irk V. Tirmh) (1890), 63 L. 
 T. 70') ; '2 Siiiith'B Leading Caaes, 
 9th 0(1. p. 420. 
 
 (r) VH mpra ; Take v. irdker 
 
 (1871), L. R. 5 Ex. 173 ; Weidner 
 V. lloffgctt (1876), 1 C. P. D. 533. 
 
 (a) Southwell V. BouHlitch (1876), 
 1 C. P. I). 374, and daddv. Hough- 
 ton (1870), 1 Ex. Div. 357. 
 
 {t) (1871), L. R. 7 Q. B. 126.
 
 THE DUTIES OF AN AGENT, 117 
 
 broker signs himself simply as broker, lie does not make 
 himself by that either purchaser or seller. And the late Agent con- 
 Master of the Eolls held, therefore, {ii) that in those cases broker not^ 
 in which the contract said " sold by your order and for your liable, 
 account " and " to my principals," there was nothing to 
 show that the agent intended to act otherwise than as 
 broker, he was not liable. Sir George Jessel said, " No 
 doubt it does not absolutely follow from a person appearing 
 in the contract to be a broker that he is not liable as 
 principal ; there are two ways in which he might be so 
 liable : first, intent io)) on the face of the contract making 
 the agent liable as well as the principal ; secondly, usage." 
 Lord Justice James, in Gadd v. Houghton (r), said, "When 
 a man says he is making a contract on account of ' some 
 one else ' it seems to me that he uses the very strongest 
 terms the English language aifords to show that he is not 
 binding himself, but is binding his principal. As to Pake 
 v. W(dl<ev{x), I cannot conceive that the words 'as agents' 
 can be properly understood as implying merely a descrip- 
 tion. The word ' as ' seems to exclude that idea. If that 
 case were now before us I should hold that the words ' as 
 agents ' in that case had the same effect as the words ' on 
 account of ' in the present case, and that the decision in 
 that case ought not to stand. I do not dissent from the 
 principle that a man does not relieve himself from liability 
 upon a contract by using words which are intended to be 
 merely words of description, but I do not think the words 
 * as agents ' were words of description." 
 
 Verbal evidence may be given to show in what capacity Where the 
 a document has been signed where the signature is ambi- ^o^^tful* ^^ 
 guous. Thus, in Young v. Scd/u/er (?/), the defendant, who verbal evi- 
 had a power of attorney to sign a contract on behalf of be°o?iven."^ 
 another, also intended to c-uarantee its fulfilment personally, ^'^ ^'^V^* , 
 
 ' ° i. J 7 capacity the 
 
 (?() SoHfJurcUv. Bomlitch (1876), (.c) (1871), L. E. 5 Ex. 173. 
 
 1 C. P. D. 374. lu) YoioKj v. Schukr (1883), 11 
 
 {v) (1876), 1 Ex. Div. 357. Q. B. D. 651.
 
 118 PRINCIPAL AND AGENT. 
 
 signature but Only signed the contract once. The Court admitted 
 
 ■was put. verbal evidence to prove that he signed the contract in 
 
 both capacities. The signatui-e was as follows : — " P.P.A., 
 John Abraham & Co., J. Otto Schuler." Lord Esher said : 
 " Looking at the document alone this is doubtful, and if 
 there were no evidence on the subject I should say Schuler 
 signed only for Abraham & Co. But the questions whether 
 a person has signed his name at the foot of a document, and, 
 if so, for what purpose, are questions of evidence, and any 
 evidence on the subject which does not contradict the 
 document is admissible "(?/). 
 
 Duty of agent An agent ought to adhere to the terms of the authority. 
 
 to observe j| ]^g travels outside the authority (apart from any ques- 
 
 terms oi j \ i. j l 
 
 authority. tion of estoppel), the assumed exercise of authority may 
 be absolutely bad, or may be only bad as to the part which 
 is outside the authority. Thus, if he is given power to 
 receive payment of a bill, he cannot receive payment 
 clogged -with a condition without the assent of the prin- 
 Where the cipal, nor cancel the bill as paid {z) . Whether the exercise 
 authority is °^ authority is altogether bad, or bad only as to part, de- 
 indivisible pends on whether the contract made by the agent is in its 
 the whole ' nature entu-e and indivisible, or severable. Thus, it was 
 is bad. j^gj^j ^^Q^ ^Yi_e exercise of the authority was altogether bad 
 
 in Baines v. Eicing (a), where a broker to an underwriter, 
 who had been told not to underwiite any loss beyond 
 100/., underwrote one for 150/. As to the effect of the 
 exercise of a power outside the authority in Chancery, see 
 Farwell on Powers, and lioe v. Frideaux (b), and Alexander 
 V. Alexander {e). 
 If the autho- As the agent's duty is to obey the instructions of his 
 carded the principal, if he disobeys the terms of his authority he 
 agent is ^jj^ ]^q responsible for any loss that occurs, and will be 
 
 responsible for ^ ^ ' 
 
 any damage 
 
 that ensues. (y) Youh// v. Schxlcr (1883), 11 Hurl, .fc G. 511. 
 
 Q. B. D. Gol. (i) (1808), 10 East, 158. 
 
 (c) JSank of Scotland v. Dominion [c) (1755), 2 Ves. p. G40, at 
 
 Sank; (1891) 1 Ap. Cas. 592. p. G44. 
 
 (a) (18GG), 1 L. R. Ex. 320 ; 4
 
 THE DUTIES OF AN AGENT, 119 
 
 SO liable whether lie has taken reasonable care or not(r/). 
 
 The agent will not be allowed to set wp that there was 
 
 no natural connection between the breach of duty and the 
 
 loss, for no wrongdoer can be allowed to apportion or 
 
 qualify his own wrong, and cannot set up as an answer 
 
 the bare possibility of a loss if his wrongful act had never 
 
 been done (e) . It might be otherwise if he could show that 
 
 the loss would have happened in any case (/). 
 
 If the agent substantially obeys the instructions, though It is sufficient 
 
 technically he disobeys them, and he is acting for his nty L^s^b"" 
 
 principal's best interests, the Court will enforce the con- stantially 
 f ^ / , ' followed, 
 
 tract [(/). 
 
 Thus, if when he is directed to buy lUO bales of 
 cotton, and owing to the difficulty of procuring them he 
 only gets eighty-four, it was held that the principal's 
 orders were substantially complied with, and he could not 
 refuse to pay for the bales {/i) . Mr. Justice Blackburn, in 
 Ireland V. Livingstone {i), says "the agent must take care 
 in executing the order that the aggregate of the sums 
 which his principal will have to pay does not exceed the 
 limit prescribed by the order ; if it does, the principal is 
 not bound to take the goods. If by due exertions he 
 can execute the order within those limits, he is bound 
 to do so as cheaply as he can, and to give his principal 
 the benefit of the cheapness." Of course, if the principal 
 gives ambiguous instructions, he cannot complain if he 
 suffers loss through the agent's placing on them an inter- 
 pretation which he did not mean them to bear, if the 
 instructions are capable "of bearing the interpretation the 
 agent put upon them, and he did so honestly (y). 
 
 {d) LiUi/y. BoHhkday (1881), 7 Q. Ves. 510. 
 
 B. D. 510. See also Caffrmj v. (A) Johnston v. Eershaiv (1867), 
 
 Darby (1801), 6 Ves. 488, at L. R. 2 Ex. p. 82. 
 
 p. 495. (i) (1872), L. R. 6 H. of L. 395, 
 
 ((') LUhj V. Donbleday, uhi supra. at p. 408. 
 
 (/) Davis V. Garrutt (1830), 6 [j) Ireland v. Livingstone, ubi 
 
 Bing. 716. supra. 
 
 {g) Cormval v. Wilson (1750), I
 
 120 
 
 PRINCIPAL AND AGENT. 
 
 Agent re- 
 quired to use 
 reasonable 
 skill and 
 dilio'ence. 
 
 The agent is bound to use reasonable skill and ordinary 
 diligence, and is liable for any damage resulting to the 
 principal through want of such skill and for negligence. 
 
 Chief Justice Tindal, in an action (/.•) against an insurance 
 broker for not effecting a policy with a deviation clause, 
 said : " The action is brought for want of reasonable and 
 proper care, skill, and judgment shown by the defendant, 
 under certain circumstances, in the exercise of his employ- 
 ment as a policy broker. The point, therefore, to be deter- 
 mined is, not whether the defendant arrived at a correct 
 conclusion upon reading the letter, but whether upon the 
 occasion in question he did or did not exercise reasonable 
 and proper care, skill, and judgment. This is a question 
 of fact, the decision of which appears to me to rest upon 
 the further inquiry, viz., whether other persons exercising 
 the same profession or calling, and being men of experience 
 and skill therein, would or would not have come to the 
 same conclusion as the defendant — for the defendant did 
 not contract that he would bring to the performance of his 
 duty on this occasion an extraordinary degree of skill, but 
 only a reasonable and ordinary proportion of it." 
 
 If he neglects to insure the proper risk, as when, instead 
 of insuring all the goods from Gibraltar to Dublin, he only 
 insures such goods as were put on board at Gibraltar, and 
 the goods shipped before Gibraltar was reached are lost, 
 he is liable for gross negligence (/) ; similarly, if he 
 neglects to put in a usual deviation clause, or to disclose 
 all the facts, so that the insurance is bad (ni). 
 
 But as Lord Hatherley said in Orerciid, Giii-nci/ 8f Co. v. 
 Gihbs («) : " It would be extremely wrong to import into the 
 consideration of tlie case of a person acting as a mercantile 
 agent in the purchase of a business concern those principles 
 
 (/■) Chupman v. IJ'allun (1833), 
 10 ]'>iiif,'. <J7. Soo alHo Comber v. 
 A>it/er.soH (1808), 1 Camp. 623. 
 
 {I) I'ark V. Uammond (1810), G 
 Taunt. 49.3. 
 
 (w) MiiUoHiih V. Barber (1815), 4 
 Camp. 150 ; Maifdew v. Forester 
 (1814), 6 Taunt.' 016. See also 
 Wake V. Att>i (1812), 4 Taunt. 493. 
 
 («) (1872)" L. K. 5 H. of L. 480.
 
 THE DUTIES OF AN AGENT. 121 
 
 of extreme caution wliicTi might dictate tlie course of one 
 who is not inclined to invest his property in any ventures 
 of such a hazardous character," and he held that directors 
 were not liable for anything short of gross negligence. 
 
 To maintain an action against the agent the principal 
 must he prepared to prove either breach of orders, gross 
 negligence, or fraud (o). 
 
 Common carriers are an exce2:)tion to the rule, since Liability 
 they are liable in every case for loss, except when the loss carrier™"'^ 
 is the act of God, the Queen's enemies, contributory negli- 
 gence of the principal, or the inherent vice of the thing 
 carried ; unless the article comes under those mentioned in 
 the Carriers Act, 1830. 
 
 Best, C. J., in Riley v. Home {jn), said: "From his 
 liability as an insurer the carrier is only relieved by two 
 things, both so well known to all the country when they 
 happen, that no person would be rash enough to attempt to 
 prove they had happened when they had not, namely, the 
 the act of God and the King's enemies." 
 
 And if the work done is useless the agent is entitled to Work done by 
 nothing. Thus, in a case {q) where an auctioneer, who ^°f^ °^" j* 
 had been guilty of gross negligence in not inserting a 
 usual condition of sale. Lord Ellenborough said: " Where 
 there is a special contract for a stipulated sum to be paid 
 for the business done by the plaintiff, it has been usual to 
 leave the defendant to his cross- action for any negligence 
 he complains of ; but where the plaintiff proceeds as here 
 upon a quantum meruit, I have no doubt that the just 
 value of his services may be appreciated, and that if they 
 are found to have been wholly abortive he is entitled to no 
 compensation" (r). 
 
 If an insurance broker undertakes to effect an insur- If undertakes 
 ance, according to special instructions, a part of the duty *° ™,^^"'5' 
 
 (o) P«- Lord Mansfield, J/oore V. (y) Deuc±v v. BavercU (1813), 3 
 
 Mourgue (1776), Cowp. 479. Camp. 4ol. 
 
 {p) (1828), 5 Bing. 217. (>■) See also Jfoneijpennij y. Hart- 
 
 land (1824), 1 C. & P. 352.
 
 122 
 
 PRINCIPAL AND AGENT 
 
 the principal 
 if unable to 
 do so. 
 
 Rule as to 
 
 effecting 
 
 insurance. 
 
 Result of 
 disobeying 
 order to 
 
 Duty to keep 
 accounts. 
 
 is the giving notice to the employer in the case of failure, 
 and an actual promise to do so need not be proved (s) ; 
 for the undertaking arises either out of the nature of the 
 case or the relation in which the parties stood to each 
 other. '\Miether the expectation arises from previous deal- 
 ings, or from an undertaking to insure in a particular 
 instance makes no difference. 
 
 It is now settled as clear law that there are three 
 instances in vrhieh an agent must obey an order to insure. 
 First, where a merchant abroad has effects in the hands of 
 his correspondent here, he has a right to expect that he 
 will obey an order to insure, because he is entitled to call 
 his money out of the other's hands when and in what 
 manner he pleases. The second class of cases is where, 
 although the merchant abroad has no effects in the hands of 
 liis correspondent, yet if the course of dealing between 
 them has been such that the one has been used to send 
 orders of insurance and the other to comply with them, the 
 former has the right to expect that his orders for insurance 
 will be obeyed, unless the latter give notice to discontinue 
 that com'se of dealing. Thu'dly, if the merchant abroad 
 send bills of lading to his correspondent here, he may 
 engraft on them an order to insm-e as the implied condition 
 on which the bills of lading shall be accepted, which the 
 other must obey if he accept them, for it is one entire 
 transaction {t). 
 
 If the agent does not insure when directed to do so by 
 his principal, he will be considered an insurer himself, 
 and be liable for a loss {u). 
 
 It is the duty of an agent when he is in a position 
 of trust to keep regular accounts of all his transactions 
 on behalf of his principal. Lord Eldon said (r), "It is 
 
 («) Callandar v. Oelrichs (1838), 
 5 Bin;;. N. C. .50. 
 
 (<) Buller, J., in Smith v. Las- 
 ceUca (1788), 2 Term Rep. 187. 
 
 {k) Ticket V. Short (1750), 2 Ves. 
 Sen. 239. 
 
 (r) Vhedworth v. Edwards (1802), 
 8 Ves. 47.
 
 THE DUTIES OF AN AGENT. 123 
 
 one of the first duties of an agent certainly to keep a 
 clear account, and to communicate the contents of it " to 
 his principal ; and in another case (cc) he said, spealdng of 
 a person who was both executor and agent, " If he had 
 not been executor and trustee, an obligation was imposed 
 upon him by his character as agent, during the life of the 
 Duke .... namely, the duty of protecting the estate 
 against his own demand, to the extent of the protection 
 that could be given by a precise and regular account of all 
 his transactions with the Duke in his lifetime." 
 
 A commission agent is not bound to keep separate A commission 
 accounts at his banker's, for he is not a fiduciary agent, f ^^"^Vf °^°* 
 and the moneys he receives are his own ; since, by the bave separate 
 custom of trade, he only is liable as debtor to his em- banker's? 
 ployer for the amounts received, and he often makes 
 advances in anticipation of receiving the proceeds of sale. 
 "A commission agent is liable to the consignor of the 
 goods for the amount received, and in the ordinary course 
 of business he makes advances to the consignor, for which 
 he charges interest and debits himself with the amount 
 received when they are received, and credits («/<•) (//) himself 
 with interest on the other side of the account ; so that the 
 real transaction between the parties is for the consignor to 
 treat such consignee as creditor for his advances and in- 
 terest, and to regard him as debtor for the amount received 
 and interest" (~). 
 
 In Kirkhron v. Peel the plaintiff, having 100/. worth of 
 goods to sell, went to a firm in Manchester and arranged 
 that the defendants should advance 85/. on the goods, and 
 take the sale of them at Bombay for a three per cent, del 
 credere commission, the defendants taking on themselves 
 the whole risk of the goods. When the defendants 
 
 {x) White V. Zincohi (1803), S account. 
 Ves. 369. (s) Per Jessel, M. E., Kirkham 
 
 {y) Query, debits himself with x. Feel (1880), 43 L. T. 171; aff. 
 
 interest on the same side of the (1881), 44 L. T. 195.
 
 124 PRINCIPAL AND AGENT. 
 
 received tlie proceeds they were to account to the plaintiff, 
 and credit or debit him according as the goods sold for 
 more than the 85/. or less. The defendants' course of 
 business was to send the goods to their Bombay house 
 and sell them, and they then credited the plaintiff in Man- 
 chester with the proceeds. For the convenience of their 
 business and to avoid the loss in exchange, instead of 
 actually remitting the proceeds by bills or in specie to the 
 Manchester house, they bought otlier goods. The plaintiff 
 sought for an account of profits of these investments of 
 the proceeds of his goods sold at Bombay. Lord Justice 
 James, in refusing the account, said : "To my mind it is 
 totally unheard of that any gentleman can say I shall not 
 be satisfied with an account of what you have received 
 or might have received for the goods, but I ask you to 
 tell me what you did, not with my possible balance of 
 15/., but with the whole sum you received and have in- 
 vested. If he is a factor or a mortgagee he has to account 
 for the balance ; but subject to that, such proceeds of sale 
 are as much his moneys as any other moneys that he has 
 in his possession or under his control. There was no bar- 
 gain that he would not mix them with his own moneys. 
 lie was under a distinct obligation to keep distinct accounts, 
 and was to show what was ultimately due to or from him ; 
 but that was all. lie dealt with the goods in the ordinary 
 course of business, and that is how it would have stood if 
 no accounts had been rendered." 
 Duties of del A del ore/ere agent, like any other agent, is to sell 
 credere agent, according to the instructions of his principal, and to make 
 such contracts as he is authorized to make for his principal, 
 and he is distinguished from other agents simply in this, 
 tliat lie guarantees that those persons to whom he sells 
 shall perform the contracts which he makes with them ; 
 and therefore if he sells at the pricje at which he is autho- 
 rized by the principal to sell, and upon the credit wliicli 
 ho is authorized by his principal to give, and the customer
 
 THE DUTIES OF AN AGENT. 125 
 
 pays him according to his contract, no doubt he is bound, 
 like any other agent, as soon as he receives the money, to 
 hand it over to the principal (;:). 
 
 But with regard to factors. Lord Langdale said: Bouudtohave 
 " Among the most important duties of a factor are those advett^e'to* 
 which require him to give to his principal the free and principal, 
 unbiassed use of his discretion and judgment, to keep and 
 render just and true accounts, and to keep the property 
 of his principal unmixed with his own, or the property of 
 other persons " (a). 
 
 The agent ought, in the absence of instructions to the Duty to act 
 contrary, to conform to the ordinary usages of trade (b), usao-e of trade, 
 and if he does so and acts bond fide and with ordinary 
 diligence he will not be resj)onsible for any loss which 
 happens. 
 
 If the agent is a servant of his principal, and has en- If whole time 
 gaged to devote the whole of his time and services to his cannorsue' 
 employer, he will not be able to sue for services which he '^'^^ services 
 has rendered to a third person while in his master's em- other parties. 
 ploy, as the remuneration will belong to his master ic) . 
 Lord Ellenborough therefore held a ship's captain could 
 not sue for the price the third party had agreed to pay 
 for his personal services. 
 
 It is the duty of an agent not only to account to his Duty to hand 
 principal, but also to hand over any profits which he may °^^^ ^"^^ ^ ^* 
 have made in the course of his principal's business. 
 
 Cockburn, L. C. J., says, \n.3Io)'ison v. Thompson (r/), " In 
 our judgment the result of these authorities is, that whilst 
 an agent is bound to account to his j)rincipal or employer 
 for all profits made by him in the coui'se of his employ- 
 ment or service, and is compelled to account in equity, 
 there is, at the same time, a duty — which we consider a 
 
 [z) Per Mellish, L. J., Ex parte Term R. 12; Comber v. Anderson 
 
 White, Re Xevill (1871), 6 Ch. 397. (1808), I Camp. 523. 
 
 {a) Clarke v. Tipping (1846), 9 (c) T/wmpson v. Uavelock (1808), 
 
 Beav. 284. 1 Camp. 527. 
 
 {b) Russell V. Eatikey (1794), 6 [d) (1874), L. E. 9 Q. B. 486.
 
 126 
 
 PRINCIPAL AND AGEXT. 
 
 Interest on 
 principal's 
 money be- 
 longs to tim. 
 
 Duty usually 
 to act in 
 principal's 
 name. 
 
 Agent ought 
 to have no 
 interest 
 adverse to 
 principal. 
 An agent to 
 buy for him- 
 self, holds 
 property as 
 trustee for 
 principal. 
 
 legal duty — clearly incumbent upon him, whenever any 
 profits so made have reached his hands, and there is no 
 account in regard to them remaining to be taken and 
 adjusted between him and his employer, to pay over the 
 amount as money absolutely belonging to his employer." 
 
 Interest made by an agent of his principal's money 
 belongs to the princiiDal, and may be recovered by him in 
 an action for money received {e) . 
 
 An ordinary agent should not sell in his own name, 
 though he may if he is a factor (/). 
 
 Chief Justice Abbott says : " The distinction between a 
 broker and a factor is not merely nominal, for they differ 
 in many important particulars. A factor is a person to 
 whom goods are consigned for sale by a merchant residing 
 abroad, or at a distance from the place of sale, and he 
 usually sells in his own name, without disclosing that of 
 his principal ; the latter, therefore, with full knowledge of 
 the circumstances, trusts him with the actual possession of 
 the goods, and gives him authority to sell in his own name. 
 But the broker is in a different position : he is not trusted 
 with the possession of goods, and he ought not to sell in 
 his own name. The principal has a right to expect that 
 he will not sell in his own name. 
 
 An agent ought not to have any interest adverse to his 
 principal, and if he has cannot bind such principal. 
 
 In Lees v. Xuttall {(i), the agent to buy a proj)erty for 
 his principal bought it for himself, and the Court ordered 
 him to hold it as trustee for his principal. 
 
 In another case (//), where the principal had employed the 
 plaintiff as his agent to sell some land at lO.s. a yard, and the 
 plaintiff did so, to a company in which he held shares, the 
 Court of Exchequer refused to admit that the agent had 
 
 (e) Rogers v. Bochm (1799), 2 Esp. 
 702. 
 
 (/) Baring v. Currie (1818), 2 B. 
 & Aid. 143. 
 
 Cv) (1289), 1 R. & M. 53. 
 (A) Salomons v. Fender (1865), 
 H. & C. 639, 645.
 
 THE DUTIES OF AN AGENT. 127 
 
 any claim to commission, although the principal elected to 
 abide by the sale; and Baron Martin quoted Story on 
 " Agency," where he says, " agents cannot act so as to 
 bind their principals where they have an adverse interest 
 in themselves ;" and the learned Baron continued : " This 
 rule is founded upon the plain and obvious consideration 
 that the principal bargains in the employment for the 
 exercise of the disinterested skill, diligence and zeal of 
 the agent for his own exclusive benefit." 
 
 Lord Wynford, in giving judgment (/) in the House of 
 Lords, said : "I take it to be a general principle of law 
 and equity that a man cannot be a seller for one and a 
 buyer of that property himself. ... If any man who is 
 to be trusted places himself in a condition in which he has 
 an opportunity of taking advantage of his employer, by 
 placing himself in such a situation, whether acting fairly 
 or not, he must suffer the consequence of his situation." 
 [Here all the transactions were set aside.] " Such is the 
 jealousy which the law of England entertains against any 
 such transactions." 
 
 In Glllctt V. Peppercorn (/.•) the broker, who had been 
 employed to buy shares, sold to his principal his own 
 shares. Lord Langdale, in setting the transaction aside, 
 said : "If a person employed as an agent on account of 
 his skill and knowledge is to have in the very same trans- 
 action an interest directly opposite to that of his employer, 
 it is evident that the relation between the parties then 
 becomes of such a nature as must inevitably lead to con- 
 tinued disappointment, if not to the continued practice of 
 fraud." 
 
 Sir Eichard Arden laid down the same principle equally 
 clearly in Masscy v. Davies (/): — "Where a man undertakes 
 to buy for me in the most beneficial manner what my 
 colliery shall want, can it be possible that I can trust him 
 
 (i) Rothschild Y.Broohnan [I'm), ilc) (1839), 3 Beav. 78. 
 
 5 BUgh, N. S. 165, at p. 192. (Z) (179i), 2 Ves. Juu. 317.
 
 128 
 
 PRINCIPAL AND AGENT. 
 
 Duty to 
 disclose any 
 interest. 
 
 
 Only iipplies 
 to profits in 
 agency. 
 
 If fails in 
 efi'ectin;^ 
 object of 
 agency, duty 
 to inform 
 principal. 
 
 to sell those articles to me himself ? The clearest evidence 
 is necessary to show consent. It is opening a door to 
 monstrous fraud." 
 
 If an agent has any interest in the subject-matter of 
 the agency, he is hound to disclose to his principal not 
 merely the fact that he has an interest, or to make such 
 statements as will put the principal on inquiry ; but he 
 is bound to disclose the exact nature of his interest, and 
 the burden of proof that he has done so lies on him {m). 
 
 In K'lmher v. Barber (n) an agent agreed with his prin- 
 cipal to obtain him shares in a company at 3/. per share. 
 The agent then procured the shares for 21. for himself, 
 and sold them to his principal at the agreed sum. Lord 
 Selborne ordered him to refund to his principal 1/. per 
 share. An agent is, however, not bound to account for 
 profits he made before he became agent, although made 
 out of the person who afterwards became his principal. 
 Thus, where a promoter of a company had contracts with 
 the firm which it was proposed to make into a company, 
 he was only held liable to account for profits he made on 
 the contracts made after the date of the incorporation of 
 the company, and not profits on those made before (o). 
 
 An agent employed to sell for different persons ought 
 to keep separate accounts for each principal. 
 
 If an agent cannot make the contract, or get the goods 
 the principal has commissioned him to buy, it is his duty 
 to inform him as soon as possible (p). Thus, where agents 
 were commissioned to buy opium in India of a particular 
 quality, and it could not be procured, it was held to be 
 their duty to inform the principal, and that they were 
 liable for any damage resulting to him from their not 
 having done so. 
 
 (w) Burdick v. OarrlcJc (1870), 6 
 Ch. Ap. 233. See also IJunne v. 
 Em/lish (1874), 18 Eq. .O'iS, atp. 633; 
 I>e"yyMc//rv.^///fl878),8 C. D. 286. 
 
 (w) (1873), 8 Ch. Ap. 66. 
 
 (o) Albion Slcelirire Co. Y. Martin 
 (187')), 1 C. D. 580. 
 
 {p) (;as!«iho(jl,m V. Gibbs (1883), 11 
 Q. B. D. 797 ; CaUandar v. Oelricha 
 (1838), 6Bing. N. C. 68.
 
 THE DUTIES OF AN AGENT. 129 
 
 If, however, the principal does not pay the agent him- Agent entitled 
 self, but allows the agent to be paid by a commission or fromThM^'^^ 
 percentage from other persons, he cannot claim that pay- P^^'^y ^/ 
 ment as a secret profit which is due to liim. This is principal. 
 equally true whether the principal knows or does not 
 kn(5w of the custom. Lord Justice Mellish said {q) : " If 
 a person employs another who he knows carries on a large 
 business to do certain work for him a's his agent with 
 other persons, and does not choose to ask him what his 
 charge will be, and, in fact, knows he is not to be remune- 
 rated by him, but by other persons — which is very common 
 in mercantile business — and does not choose to take the 
 trouble of inquu-ing what the cost is, he must allow the 
 ordinary costs which agents are in the habit of charging." 
 See also Bavituj v. Staiito)i {>•). 
 
 If an agent received money for his principal, it ought Principal's 
 to be deposited in the name of the principal, and not in not to be de- 
 
 his own name at a banker's (.s'). posited m 
 
 ^ ' _ agent s name. 
 
 A receiver was, therefore, charged with a loss by the if so depo- 
 
 failure of the banker, having' made remittances to his own sit<-'<i, respon- 
 ' '^ sible tor loss. 
 
 credit and use, and not to a separate trust account (/). 
 
 It is the duty of an agent to keep his principal a^^prised Duty of agent 
 of all his doings, and give notice of all facts which it may J^i iufo?^d^' 
 be important for his interests to know. Thus, it is the ^^ *? agency 
 duty of captains and ship-agents to keep their employer 
 duly informed of all casualties encountered by the ship {/(), 
 and if they do not perform the duty faithfully it vitiates 
 the contract of insurance he may make, Avhether they 
 wilfully or unintentionally fail in their duty to their 
 employer (.r). And when an agent to insure contracts 
 with the third party for an insm'ance, he does so on the 
 
 {q) Great Western Insurance Co. Ves. 377. 
 V. CunUffe (1874), L. R. 9 Cli. 525. [ti) Per Lord "Watson in Blach- 
 
 (»•) (1877), 3 C. D. 505. burn v. Vigors (1887), 12 Ap. Cas. 
 
 (.s) Massoj V. Banner (1820), 1 531. 
 J. & W. 241. (.r) See alsoFroudfoot V. Montejtore 
 
 {t) Wren v. Kirton (1805), 11 (1867), L. R. 2 Q. B. 511. 
 
 W. K
 
 130 
 
 PRINCIPAL AND AGENT. 
 
 Duty of 
 captain to 
 protect goods 
 shipped. 
 
 Duty of bill- 
 broker. 
 
 Duty of 
 
 managing 
 
 owners. 
 
 Duty of 
 solicitors. 
 
 footing that every material circumstance witliin his per- 
 sonal knowledge is to be disclosed, whether known to the 
 principal or not (?/). 
 
 There is a duty on the master of a ship, as representing 
 the owner, to take reasonable care of the goods entrusted 
 to him, not merely in doing what is necessary to preserve 
 them on board the ship during the ordinary incidents of 
 the voyage, but also in taking active measures, where 
 reasonably practicable under all the cu'cum stances, to 
 check and arrest the loss and deterioration resulting from 
 accidents ; although the shipowner is not liable for the 
 necessary and immediate consequences, owing to the excep- 
 tions in the bill of lading. For the neglect of this duty 
 by the master the shipowner is liable to the shipper (s). 
 
 A person to whom a bill is remitted on commission as a 
 bill broker ought first to endeavour to jorocure acceptance ; 
 secondly, on refusal, to protest the bill for non-payment ; 
 thirdly, to advise any third person who is concerned. To 
 what extent he will be obliged to do these things depends 
 on the usage of the trade {a). 
 
 A paid agent is bound to discharge all those duties, 
 multifarious or other, which the terms of the agency cover. 
 It is one of the duties of managing owners to procure 
 charters, and therefore they are not entitled to make any 
 charge or commission in respect to such work (b). 
 
 Lord Westbury, in Tf/rrcil v. Bank of LoiidoN (c), said: 
 " The relation of solicitor and client involves, of com'se, the 
 relation of principal and agent. The duties of the first 
 include all those of the second, and something more. A soli- 
 citor shall not in any way whatever, in respect of the sub- 
 ject of any transactions, in the relations between him and 
 his client, make gain to himself at the expense of his client 
 
 (y) Sec lilaekhiirn v. Vigors, nhi 
 Hupra ; ]ilackhurn v. Haslam (1888), 
 21 Q. B. D. 114. 
 
 {z) jltlnnt'w MiitKnl Insurance Co. 
 V. y/MM(1881), IG C. D. 474. 
 
 (rt) Bcawes, Lex Merc. p. 430 ; 
 Story, ^ 209. 
 
 {b) Williamson v. IIi»e, (1891) 1 
 Ch. 390. 
 
 {c) (1862), lOH. of L. C. 39.
 
 THE nTJTIES OF AN AGENT. 131 
 
 beyond the cost of his just and fair professional remunera- 
 tion to which he is entitled." In this case a solicitor, whose 
 duty it was to advise his clients — a bank — allowed them to 
 purchase certain premises in which he was jointly interested 
 without telling them he was so interested, and he made a 
 profit on the purchase. Lord Westbury, in ordering him to 
 stand trustee for the amount of his profit for the bank, said : 
 " In my view, it is only necessary to ascertain that at the 
 time the solicitor agreed to take from Mr. Read (the other 
 person who was jointly interested) one-half of his purchase, 
 he (the solicitor) was acting in the capacity of solicitor to 
 the bank, and that he had advised, or intended to advise, 
 his clients to pm'chase that part of the property which was 
 ultimately bought by his clients. It is, I think, immaterial 
 whether a solicitor had before his contract advised his 
 client to buy, and the client had agreed to act under such 
 advice, or whether the solicitor intended only to give such 
 a recommendation, if in the result we find the client buy- 
 ing the projierty whilst under the advice of the solicitor." 
 
 k2
 
 132 
 
 PRINCIPAL AND AGENT. 
 
 CHAPTEE IX. 
 
 EIGHTS OF THE PRINCIPAL AGAINST HIS AGENT. 
 
 Remedies of 
 principal. 
 
 Breach of 
 contract. 
 
 If agent make 
 an unenforce- 
 able contract, 
 the principal 
 can recover 
 moncjy paid to 
 agent. 
 
 We have now considered the duties of the various kinds 
 of agents towards their principals, and propose, in the 
 present Chapter, to consider the rights and remedies of the 
 principal against his agent, if he either neglects those 
 duties, travels outside of them, or acts in breach of good 
 faith towards his employer. 
 
 If the agent does not carry out the instructions of the 
 principal, the first remedy the principal has is an ordinary 
 action for breach of contract. Thus, where an agent, in 
 breach of his instructions, handed over goods of the prin- 
 cipal to a third party before they were paid for, the Court 
 held that he was liable to compensate the principal for 
 their value {a) . 
 
 The agent ought to make a contract which the principal 
 can sue on and enforce. If he makes one which the prin- 
 cijial cannot enforce, the principal can recover any money 
 back which has been paid the agent in the belief that the 
 agent had made the contract as directed. 80 it was held {b) 
 that where the principal told his agents, some cotton brokers, 
 to buy him fifty bales of cotton, and they bought instead 
 (500, being employed by other persons, and intending to 
 appropriate fifty of them to the principal, the Court held 
 tliat the agents were bound to return the 800/. paid on 
 account of them. Baron Martin, in giving judgment, 
 
 {(i) Stcnrine Co. v. Jfcbitzmann {//) lio^fock v. 
 
 (1804), 17 C. B. N. S. .00; Jlruivti II. &. C. 700. 
 y.lioorman (1844), 11 CI. & Fiu. I. 
 
 Jardine (1860), 3
 
 RIGHTS OF THE TRINCIPAL AGAINST HIS AGENT. 133 
 
 said : " It is clear that there was no such contract as the 
 defendants (the agents) Avere authorized to make, because 
 the contract which they made through Messrs. Marriott & 
 Co. was a contract for 300 hales of »Surat cotton. Suppose 
 the defendants had become bankrupt, and the plaintiff had 
 attempted to enforce the contract against Messrs. Marriott, 
 I think he would have failed at common law, because 
 there was no contract for a purchase of fifty bales of cotton, 
 but a contract to purchase 300 ; but even assuming that 
 the plaintiff could have sued upon the contract at common 
 law, it is evident that under the 17th section of the Statute 
 of Frauds he must have failed. Therefore the defendants 
 never gave the plaintiff any consideration whatever for 
 the money, because no contract was ever made by the 
 defendants as the plaintiff authorized them to make." 
 
 Where the agent violates his duties or obligations to A<?ent bound, 
 his principal, he is bound to indemnify the principal, j^j^ ^^^^'i ^^^^ 
 whether the loss arises to the principal through damage to indemuify 
 his own property or from the fact that he has to compen- sequences, 
 sate a third party for negligence or acts of his agent (r). 
 Thus, if the agent was instructed to negotiate a sale only 
 for ready money, and he allows the principal to deliver the 
 goods without their having been paid for, he is liable for 
 any loss that results from so doing {d). 
 
 Mr. Justice Grove said, in Lillcy \. DouhI<'day{(): "If 
 a bailee elects to deal with property entrusted to him in 
 a way not authorized by the bailor, he takes upon liim- 
 self the risks of so doing, except when the risk is inde- 
 pendent of his acts and interest in the property itself." 
 And so, in another case, it was held that where trustees had 
 been negligent they must be held responsible for any loss 
 in any way to the property ; for, whatever might be the 
 
 {c) Story, sect. 217 c; Cassabog- 141. 
 
 lou V. Gibbs (1883), 11 Q. B. D. {c) (1881), 7 Q. B. D. 510. See 
 
 797. also Lavis v. Garratt (1830), 6 Bing. 
 
 [d) J:i(^«?v..ffo>-e (1884), 2 Times, 716.
 
 134 
 
 PRINCIPAL AND AGENT. 
 
 Sufficient if 
 damag'e 
 natural result. 
 
 Not bound to 
 indemnify if 
 loss merely 
 possible. 
 
 Amount of 
 damages. 
 
 Agent failing 
 to hand over 
 money is 
 liable for 
 amount and 
 interest, not 
 loss of credit 
 arising to 
 principal. 
 
 immediate cause, the property "would not liave "been in a 
 situation to sustain that loss if it had not heen for their 
 negligence (/'). 
 
 The loss or damage need not he directly or immediately 
 caused by the act which is done or omitted to he done. It 
 ■s^ill be sufficient if it be fairly attributable to it as a natural 
 result or a just consequence. But it vnR not be sufhcient 
 if it be merely a remote consequence or an accidental mis- 
 chief, for in such a case, as in many others, causa proxima 
 non rcmota specfafto'. It must be a real loss or actual 
 damage, not merely a probable or possible one. Where 
 the breach of duty is clear, it "s\'ill be presumed that the 
 party has sustained a nominal damage (y). 
 
 The damages may vary according to the time when the 
 action is brought ; for instance, if the neglect of duty is 
 non-insurance, they may vary fi'om a nominal simi, where 
 the thing which ought to have been insured can still be 
 insured at the same rate, up to the amount of the value of 
 the property, less the premiums, when the loss has hap- 
 pened {//). So, where the agent had not invested funds of 
 his principal in paper and tiles, as directed, but altogether 
 in paper, the Court held the measure of damages was the 
 price of tiles at the port of destination, but not the profits 
 that might have been made on them (/). Where an agent 
 is directed to invest by his principal in a particular stock, 
 and he does not do so, and the stock rises, the principal is 
 entitled to recover the increased value ; and if the agent 
 improperly withholds money of the principal, he is liable 
 for interest and the expense of remitting it ; but he is not 
 responsible for remote consequences, such as loss of credit 
 or suspension of business, caused by the delay (/.). So, if 
 
 (/) Cafra;/ v. Darby (1801), 6 
 Ves. 490, at p. 495. 
 
 (ff) Story on Agency, sect. 217 c. 
 
 (/i) C/iar/cs V. Jltin (1854), 15 C. 
 B. 46 ; SCO judgments of C. J. Jervis 
 and Mr. Justice Maule. 
 
 (i) Sell V. Cunningham (1830), 3 
 Peters, 69 ; Mayne on Damages, 
 4th ed. p. 513. 
 
 {k) Short V. Skiptcith, 1 Brock. 
 Cir. 103; Story on Agency, sect. 
 220.
 
 RIGHTS OF THE PRINflPAL AGAINST HIS AC;ENT. 135 
 
 the agent has bought goods for the principal of a descrip- 
 tion he was not authorized to huj, and has been paid for 
 them, the principal can recover from the agent the price 
 he has paid for them, and any loss he may have sustained 
 by the breach of duty ; such, for example, as having had 
 to compensate a customer for the difference in quality, and 
 all incidental expenses he may have been j^ut to. The 
 principal cannot, however, recover from the agent the profits 
 he would have earned if the agent had fulfilled his con- 
 tract (/) . For although a commission agent abroad is bound 
 to pay the foreign seller for the goods, and is therefore iu 
 the position of a quasi vendor for the 2:)urpose of stoppage 
 in trausifu, he is not so for the purpose of damages. 
 
 If the agent can, however, show that no benefit could If no damage 
 • 111 • , 1 ^ L L\ • could resiilt 
 
 possibly under any circumstances nave accrued to tne prm- ^^^^ violation 
 
 cipal by his order liaviug been obej^ed, the principal will of duty, agent 
 
 have no right of action ; a fortiori, where the principal 
 
 would have sustained a loss or damage if his orders had been 
 
 obeyed [m) ; but as long as damage might have resulted, 
 
 though no damage actually is done, the principal has a 
 
 right to nominal damages {it). But if no loss could have 
 
 happened to the principal by the neglect of the agent, as 
 
 if he did not insm-e when the principal had no insm^able 
 
 interest, the agent is not liable. Although the agent 
 
 may have disobeyed his principal's orders and not insured 
 
 the ship, he is not liable for such disobedience if the insui'- 
 
 ance would have been useless, as where the shijD had 
 
 deviated from her voyage, or the voyage was illegal ; the 
 
 damage must be the necessary result of the agent's neglect 
 
 of duty (o). 
 
 If the agent effects an improper insiu'ance, or one without Agent liable 
 
 a proper deviation clause, he will be liable to make good o-encer 
 
 [l) C'assaboqIoH Y. Gihb (1883), 11 («) Marzeiti v. WiUiams (1830), 
 
 Q. B. D. 797. 1 B. & Ad. 427 ; Van Jf'art v. 
 
 {m) Mayne on Damages, 4tli ed. Woollo/ (1830), 1 M. & M. 620. 
 p. 515. (o) Webster v. Be TasUt (1797), 
 
 7 T. K. 157.
 
 136 
 
 PRTNCTPAL AND AGENT. 
 
 Agent not 
 liable where 
 loss occurred 
 through a 
 mistaken but 
 not wrong 
 exercise of 
 judgment. 
 
 Paid agent 
 must exercise 
 care of skilled 
 person. 
 
 If authorized 
 to do impru- 
 dent act, not 
 liable for 
 consequences. 
 Damage must 
 be necessary- 
 result. 
 
 the loss to tlie principal {p). As to what skill he ought to 
 show, see Chapman v. Walton {q), where it was held that 
 the skill required from the agent was that which other 
 persons exercising the same profession or calling, and being 
 men of experience and skill therein, would have shown, 
 and whether the agent acted rightly or wronglj depended 
 on whether such persons would have come to the same 
 conclusion ; for instance, an agent is liable for a loss 
 occurring to the principal through his accepting a cheque 
 in payment when he ought to have taken cash only(y). 
 
 But where a loss occurs to a principal, not through 
 negligence or fraud, but which might have been avoided if 
 the agent had done the work in a different way, he is not 
 liable, provided he has acted to the best of his judgment; 
 as where an agent might have insured a cargo without a 
 particular average clause, and so prevented his principal 
 suffering any loss, but had been given no instructions how 
 to insure her (s). 
 
 A person who undertakes to do some work for reward 
 must exercise the care of a skilled person, and the absence of 
 care in him is negligence (f). Thus, if a client is compelled 
 to pay off an incumbrance owing to his solicitor's negligence 
 in examining the title, the solicitor will be liable (a). 
 
 If the agent is authorized to do an act which is in itself 
 an imprudent one, and which the principal ought never to 
 have authorized to be done, the agent cannot be made liable 
 when loss is occasioned by his having done it {x) . The 
 agent is only liable for the damages which necessarily 
 resulted from his negligence or disobedience of orders. 
 Thus, where an agent did not give the information he 
 
 {p) Malloiigh v. Barber (1815), 4 
 Camp. 150 ; Park v. Hammond 
 (181G), 4 Camp. 344. 
 
 (q) (1833), lOBing. 57. 
 
 (>■) I'apu V. Westacotl (1893), 10 
 Times, 61. 
 
 (») Moore v. Morgue (1776), 
 Cowp. 479. 
 
 {t) Grill V. Gen, Iron Screw Col. 
 Co. (1868), L. R. 3 C. P. 476; 
 (186G), L. R. 1 C. P. GOO, atp. 612. 
 
 [>() Whitiman v. Ilawkins (1869), 
 4 C. P. D. 13. 
 
 (.(•) Vcr Lord Chelmsford in Orer- 
 cnd, Gurney S; Co.\. Gibb (1872), L. 
 R. 5 H. of L. 480.
 
 RIGHTS OF THE PRINCIPAL AGAINST HIS AGENT. 137 
 
 ought to have given to the underwriter in effecting an 
 insurance, and the insurance was bad, it was held tliat the 
 principal could not recover both the amount of the policy 
 and the costs of an unsuccessful action against the under- 
 writer, but only the amount of the policy, unless he could 
 show that the agent wished him to bring the action against 
 the underwriter ( //) . 
 
 The agent may also be sued in tort, for wherever there Principal may 
 is a contract and something to be done in the course of the tort. ° 
 employment which is the subject of that contract, if there 
 is a breach of duty in the course of that employment, the 
 party injured may recover either in tort or in contract (s). 
 
 If the principal has not undertaken to pay the agent he Gratuitous 
 cannot bring an action against him for not doing what he iif bie for non- 
 undertook to do. Common carriers and porters are in a performance, 
 different position, because they are entitled by law to re- 
 compense. No action lies for the non-performance of work 
 where there is no consideration, unless there is a custom or 
 legal obligation to compel a person to do the work, in 
 which case there is a corresponding liability to pay for it 
 without any express undertaking to pay. But an action 
 lies against a gratuitous agent in the same way as against 
 any stranger for misfeasance or performing the work 
 badly (a) . But a barrister, whose office is jDurely honorary 
 and gratuitous, cannot be sued even for doing work badly. 
 Thus, Lord Kenyon held he could not be held liable for 
 unskilfully and negligently settling a bill (b) ; nor can an 
 action be brought against counsel to recover a fee given 
 to him for arguing a case if he neglects to do so and does 
 not attend the hearing (c) . 
 
 (y) 5V?to-v.77'o)-/.- (1801), Marshall (/>) Fell v. Urown (1795), Peake, 
 
 on Ins. 4tli cd. p. 243. 96 ; I'erring y. Rebutter (1837), 2 M. 
 
 {z) Per Lord Campbell, Brown v. & Rob. 429. 
 
 ^oomrm (1845), 11 CI. & Fiu. 1. (r) Turner v. Fhilips (1795), 
 
 (a) Flsee \. Gativurd {179'3), 6T. Peake, 122; see also Mtillan v. 
 
 E. 143. M'Bonaqh, Q.C. (1860), 5 Ir. Jur. 
 
 N. S. 101 ; 2 L. T. N. S. 136.
 
 138 
 
 rRlXClPAL AND AGENT. 
 
 Generally 
 
 gratuitous, 
 agent only 
 liable for bad 
 faitb. 
 Liable for 
 conTersion of 
 principal's 
 property. 
 
 Interest, 
 •wben agent 
 liable for. 
 
 Trustee. 
 
 Commercial 
 asent. 
 
 Nor is a gratuitous agent liable in the same way as a 
 skilled person ; lie is only liable if he acts with want of 
 good faith, and if he acts in such a way as would be 
 careless in a person in his position (r/). But acting in 
 good faith will not protect a gratuitous agent if he hands 
 over property of the principal to a third party without 
 authority, for then he viiR become liable for conversion (c). 
 
 Interest made by an agent of his principal's money 
 belongs to the principal, and may be recovered by him in 
 an action for money had and received (/). Even if the 
 agent only keeps his principal's money in his possession 
 and does not use it, he is liable for interest, unless there 
 was some reason for doing so (g) ; a fortiori if he chooses 
 to employ it for his own purposes, in which case he will 
 be either charged interest at a higher rate or the prin- 
 cipal can claim what profit the agent made on it (//). 
 
 The above cases were cases in which executors kept 
 money without paying it over, and were decided by Lord 
 Loughborough in 1792 and 1784 respectively. Lord 
 Ellenborough, however, in an action against a commercial 
 agent, held (/) that to establish a claim to interest upon 
 money of the principal in the agent's hands, it was neces- 
 sary that there should be either a specific agreement to that 
 effect or something should appear from which a promise 
 to pay interest might be infei-red, or else proof should be 
 given that the money, in fact, had been or was being 
 used. Lord Chelmsford, in Turner v. BurhinsJiaic (J), seems 
 to think that a demand is enough to make interest payable 
 from the date of the demand. This seems the more 
 consonant rule to ordinary practice. He says, "If no 
 demand is made uj^on the agent it is a simple case of an 
 
 {(T) Skids V. Blackburne (1789), 1 
 H. Bl. 159. 
 
 [e) WiUiams v. Shee (1813), 3 
 Camp. 469. 
 
 (/) Rogers v. Boehm (1799), 2 Esp. 
 702. 
 
 {g) FraiikUn v. Frith (1792), 3 
 Brown, C. C. 433. 
 
 {h) Treves v. Toiatshend (1784), 1 
 Brown, C. C. 3S4. 
 
 ((•) ll.iviUand v. Bowcrhank (1807), 
 1 Camp. 49. 
 
 (» (1867), 2 Ch. Ap. at p. 492.
 
 IMOIITS OF IIIK IMlINCirAL AGAINST HIS AGENT. 139 
 
 agent retaining money wliieh lie ouglit to pay over, but 
 which he has not been required to pay; and there is no 
 case of which I am aware where, under such circumstances, 
 without any more, the agent has been made to pay 
 interest." 
 
 Lord Hatherley made a solicitor who had been acting Solicitor- 
 as agent pay five per cent., as there was evidence that he " 
 had used it in his business ; there being no evidence he 
 had made more on it (/.■). 
 
 It seems where an agent, all of whose time belongs to the Principal can 
 principal, earns money from a third party, that money monty^eamed 
 belongs to the principal (/) ; and if he makes a bargain in employ of 
 with the third party so that he will also receive pay for ^'^^ ^' 
 
 his services and some of the profits belong to him, he 
 cannot sue for it, as it is the principal's, and the Court 
 regards such an arrangement as tending to prevent him 
 acting to the best of his abilities for his principal {ui). 
 
 The agent is not allowed to make a secret profit out of ^rrincipal cau 
 his principal; and if the principal authorizes him to pay a gecr t 'Tfit*'^ 
 certain price for goods or shares, and he gets them cheaper, as money had 
 the agent is not allowed to pocket the difference ; but the 
 principal can recover the profit either in an action for 
 money had and received (n), or else on the Chancery side 
 by obtaining a declaration ordering the money to be paid 
 over to him. The same principle applies to company 
 promoters ; but a person who has been supplying goods to 
 a firm before it was turned into a company, and making a 
 profit, will not, by becoming a dii'ector and promoting the 
 company, be obliged to account for the profits made on 
 contracts which were entered into before the company was 
 formed and continued by them, but only on those entered 
 into after the incorporation (o) . 
 
 {k) Burdlck v. Gairick (1870), 5 1 Camp. 527; Dip!ock y. JBIackburn 
 
 Ch. 241 ; see also Lomdale v. Church (1811), 3 Camp. 43. 
 
 (1794), 3 Brown, C. C. 40. [n] Morhon v. Thompson (1874), 
 
 {I) Dennis v. £arbci- (1703), G L. R. 9 Q. B. 480. 
 
 Mod. 69. (o) Albion Steel and Wire Co. v. 
 
 (m) Thompson v. Eavelock (1808), Martin (1875), 1 C. D. 580.
 
 140 
 
 PRINCIPAL AND AGENT. 
 
 Agent not 
 liable for 
 profit in 
 certain cases. 
 
 Principal's 
 right to dis- 
 miss agent. 
 
 A commission agent who sells goods for his principal 
 •svill have to account for the proceeds of the sale ; but if for 
 some reason, as owing to the difficulty of exchange, while 
 crediting the principal with the money, he actually uses it 
 to buy goods and sends them home, he is not account- 
 able to the principal for any profits he may make on 
 them (p). 
 
 If an agent takes a commission from a third party it 
 entitles his principal to dismiss him, and if the principal 
 dismisses him for a cause he cannot substantiate, and then 
 discovers the agent has taken a commission, that will 
 justify the previous dismissal (q). Lord Justice Cotton 
 said: "If a servant or a managing director, or any person 
 who is authorized to act and is acting for another in the 
 matter of any contract, receives as regards the contract any 
 sum, whether by way of percentage or otherwise, for the 
 person with whom he is deaKng on behalf of his principal, 
 he is committing a breach of duty. It is not an honest 
 act, and in my opinion it is sufficient to show that he 
 cannot be trusted to perform the duties which he has 
 undertaken as servant or agent. He has a temptation, 
 especially where he is getting a percentage on expenditure, 
 not to cut down the expenditure, but to let it be increased, 
 so that his percentage may be larger. I do not, however, 
 rely upon that ; but what I say is this, that where an agent 
 entering into a contract on behalf of his principal, and 
 without knowledge or assent of the principal, receives 
 money from the person with whom he is dealing, he is 
 doing a wrongful act ; he is misconducting himself as 
 regards the agency, and, in my opinion, gives to his 
 employer, whether a company or an individual, and 
 whetlier the agent be a servant or a managing director, 
 power and authority to dismiss him from his employment 
 
 (p) Kirhham v. Ted (1880), 43 
 L. T. 171 ; uffirmed on appeal 
 (1881), 44 L. T. 195. 
 
 {q) Boston Beep Sea, ^-c. Co. v. 
 AmiU (1888), 39 C. D. 339, at 
 p. 3o7>
 
 RIGHTS OF THE PRINCIPAL AGAINST HIS AGENT. 141 
 
 as a person who by that act is shown to be incompetent of 
 faithfully discharging his duty." 
 
 In the Court below, Mr. Justice Kekewich had held that, One act of 
 as only an isolated act, the company had no legal right to sufficient. 
 dismiss their managing director, and it was also urged that 
 it happened long ago. As to this, Lord Justice Cotton 
 said : " It was urged before us that it was a long time ago, 
 and it was said, Suppose this happened eight years ago — 
 supposing the act had been done eight years ago — would 
 that in law have justified the employer in discharging him ? 
 In law, I say yes. It is very true that if an employer was a 
 reasonable man, and found that a servant who had served 
 him faithfully some eight years had in the early time of 
 his employment done an act which was wrongful and 
 justified his dismissal, probably he might have said : ' This 
 is a man who has been in my employ for years, and he 
 has always behaved himself honestly in the discharge of 
 his duties except in regard to this one transaction which 
 took place such a long time ago, and therefore I do not 
 insist upon my legal right.' But although a man would 
 ordinarily act in that way, yet, in my opinion, that has no 
 effect on the question whether the act is not of such a 
 character as to justify the employer in dismissing him 
 when he finds it out." Of course, if he knows of the act, 
 and still continues to employ him, it might be held to be 
 condoned. 
 
 The principal has a right to interest on all moneys so The rate of 
 obtained from the time the agent received them, at the dparcntUled 
 rate of five per cent, per annum (/•). to. 
 
 If the agent, however, is not remunerated by the prin- Where prin- 
 cipal for his work, but gets his remuneration from the pay, a°ent^° 
 third party by bringing the principal's work to him, the cannot recover 
 principal cannot recover this money. Lord Justice Mellish 
 thus states the principle : "If a person emi:)loys another, 
 who he knows carries on a large business, to do certain 
 work for him as his agent with other persons, and does not 
 
 (>•) Boston Deep Sea Fishing Co. v. Ansell (1888), 39 C. D, 339, at p. 353.
 
 142 
 
 PRINCIPAL AM) AGENT. 
 
 Principal can 
 have agent 
 for purchase 
 Tiolating duty 
 declared 
 trustee. 
 
 Principal lias 
 right against 
 agent either 
 to his goods 
 or to f ollo'^s- 
 the proceeds 
 of them. 
 
 clioose to ask wliat his charge will he, and in fact knows 
 he is to he remunerated not hv him hut hj other persons — 
 which is very common in mercantile husiness — and does 
 not choose to take the trouble of inquiring what the 
 amount is, he must allow the ordinary amount which 
 agents are in the habit of charging " (-s). 
 
 Where an agent employed to purchase an estate instead 
 of buying for the principal buys for himself, the principal 
 can have him declared trustee for him {f) ; and where the 
 agency extends only to part of the lands included in a 
 purchase, and there is uncertainty as to which were 
 intended, a reference may be directed to ascertain them, 
 and also the price to be paid {>(). A person acting as 
 agent for another who has an interest in a lease cannot 
 renew it for his own benefit (r). 
 
 Both at common law and in equity the principal has a 
 right as owner of property to follow it or its j^roduce into 
 the hands of any person into whose possession he can trace 
 it : unless the principal is estopped from doing so by 
 having held out the person who has dealt with the property 
 as the owner, or the pai'ty in possession is protected by the 
 Factors Acts. If the agent is in a fiduciary position (.r), the 
 principal can in equity, if the sale was rightful, take the 
 proceeds of the sale if he can identify them. If the sale 
 was wrongful, he can still take the proceeds, in a sense 
 adopting the sale for the pui'pose of taking the proceeds 
 if he can identify them. There is no distinction between 
 a rightful and a wrongful disposition of the property, so 
 far as regards the right of the beneficial owner to follow 
 the proceeds. It very often happens that the principal can- 
 
 («) Great IFestcrn Insurance Co. 
 V. Cunliffe (1874), 9 Ch. Ap. 525; 
 Bee also Daring v. Stanton (1876), 
 3 Ch. Div. 502 ; Wilhamson v. 
 Barbour (1878), 9 C. D. 529. 
 
 {() Lccs V. Nuttall (1829), 1 Rus. 
 & My. 53. 
 
 (m) Chattock V. MuUa- (1878), 8 
 C. D. 177 ; and see the cases rc- 
 
 feiTcd to in Fox\. Mackreth (1788), 
 W. & T. L. C. Eq. 
 
 (r) Edtcards v. Lercis (1747), 3 
 Atk. 538 ; and see Keech v. Sand- 
 ford (1726), and cases there col- 
 lected, W. & T. L. C. Eq. 
 
 {x) Xew Zealand Land Co. v. 
 Watson (1881), 7 Q. B. D. 374, 
 per L. J. Brarawell, at p. 382.
 
 RIGHTS OF THK PKINCirAL AGAIXST HIS AGENT. 143 
 
 not identify the proceeds, as tlioy may liave been invested 
 together with the fiduciary agent's in a purchase : as, for 
 instance, in land or chattels. If the purchase is clearly 
 made with the principal's money, he has a right to elect 
 either to take the property purchased or to hold it as a 
 security for the amount of his money laid out in the pur- 
 chase. If the fiduciary agent has mixed his principal's 
 money with his own money in making the purchase, the 
 principal has a right to a charge on it for the amount 
 of his money which the agent had in his hands, provided 
 a substantial amount of it has been thus invested, abso- 
 lutely independent of the fact what the actual amount 
 thus invested by the agent was (//). 
 
 There is no distinction in equity between an express No distinction 
 trustee or an agent, or a bailee, or a collector of rents, so |^/'*^"^*'^„^ 
 
 o ' ' ' between ex- 
 
 far as regards the right of the beneficial owner to follow press trustee 
 
 the proceeds. Their rights are founded on the same prin- ° 
 
 ciples because the beneficial ownership is the same wherever 
 
 the legal ownership may be. Thus, if goods are bargained 
 
 and sold to a man upon trust to sell and hand over the 
 
 proceeds to another, that other is the beneficial owner. If 
 
 instead of being bargained and sold, so as to vest the legal 
 
 ownership in the trustee, they are deposited with him to 
 
 sell as agent, so that the legal ownership remains in the 
 
 beneficial owner, the rights of the beneficial owner are the 
 
 same in both cases (;:;). 
 
 If the agent has acted with want of good faith to his Agent acting 
 principal, either by concealing some material fact, as if he p^ncipaf ^' 
 is an agent to buy, he sells his own property without saying right to elect 
 it is so, or by making a secret profit, the principal can, contract or 
 at his option, elect to take the property and pay no more take secret 
 for it than the agent has paid, or else rescind the conjtract. 
 
 In the case of The Emma Silver Mining Co. v. Grant (a), 
 
 (2/) He JTaUcit's Estate, Knatch- (c) Enatchbull v. Ilalldt (1880), 
 
 huUy.Hallctt (1880), 13 C. D. 69C ; 13 C. D. C96. 
 42 L. T. N. S. 421. («) (1879), 11 C. D. 918.
 
 144 
 
 PRINCIPAL AND AGENT. 
 
 Wlien fidu- 
 ciary relation- 
 ship com- 
 mences. 
 
 Lorfl Justice 
 
 Lindloy's 
 
 opinion. 
 
 one of the promoters took a secret profit of 20 per cent, on 
 the capital. In an action hy the company against him 
 he was obliged to repay and ordered to be accountable for 
 it to the company. In his judgment, Sir George Jessel 
 quotes Lord Justice James with approval, as follows : — 
 " A promoter is, according to my view of the case, in a 
 fiduciary relation to the company which he promotes or 
 causes to come into existence. If that promoter has pro- 
 perty which he desires to sell to the company, it is quite 
 open to him to do so ; but upon him, as upon any other 
 person in a fiduciary position, it is incumbent to make full 
 and fair disclosure of his interest and position with respect 
 to that property. I see no difference in this respect 
 between a promoter and a trustee, steward or agent." 
 
 There have been some cases (b) in which a distinction 
 has been made between persons who have bought outright 
 a property and then re-sold it afterwards at a profit to the 
 company of which they were promoters, on the ground that 
 at the time of their original j)urchase they were not agents of 
 the company or in a fiduciary position towards it, and that, 
 though they ought to have disclosed their interest, yet, as 
 the company was unable or unwilling to ask for rescission 
 of the contract, the company had no right to ask such 
 promoters to repay it the profit obtained on the re-sale. 
 These cases seem to be at variance with the principle that the 
 principal has the option of either rescinding the contract or 
 taking the property at the price at which the agent obtained 
 it, and also to open the door to fraud on tlie part of agents. 
 Lord Justice Lindloy, in his book on Companies (r), says : 
 "The distinction here {i.e., in the above cases) drawn 
 between a company contemplated by the buyers, but not 
 yet in process of formation, and a company the formation 
 of which has commenced, is very fine ; the more so as it has 
 been conceded that the comj)any ultimately formed may 
 
 (i) f'f'pe Jinton Co. (1884), 26 C. 
 D. 221 ; Ladijwell Mining Co. v. 
 
 Broolex (1887), 35 C. D. 400. 
 ic) Lindlcy ou Companies, 359.
 
 RIGHTS OF THE PRINCIPAL AGAINST HIS AGENT. 145 
 
 have been very different from that the promoters were 
 endeavouring to form when they became purchasers them- 
 selves ;" and he adds, " Notwithstanding the present state 
 of the authorities, the writer ventures to submit that it is 
 a breach of duty on the part of the seller to the company, 
 and it is the resulting application of the company's money 
 which gives rise to the right to relief in these cases ; and 
 he submits that when a promoter sells his own property to 
 a company at a profit, without disclosing the fact that 
 what he is selling is his projDerty, the company can, at 
 its option, either rescind the sale or keep the property, 
 paying only its fair value, and such further allowances, if 
 any, as may be just, and recovering back from the pro- 
 moter the difference between such value and the allowances, 
 if any, and the sum he has managed to extract from the 
 company." 
 
 As has been pointed out in the Chapter on " The Duties Agent's duty 
 of an Agent," the agent is bound to disclose not merely exact nature 
 the fact that he has an interest in the subject-matter of the °^ interest, 
 agency, but to disclose the exact nature of his interest, and 
 the bm-den of proof that he has done so lies on him (d). 
 Thus, where the princij)al brought an action to recover the 
 extra profit made by the agent, Sir Greorge Jessel said {o) : 
 " It is not enough for an agent to tell the principal that 
 he is going to have an interest in the purchase, or to have 
 a part in the purchase ; he must tell him all the material 
 facts. He must make a full disclosure," and then quotes 
 Lord St. Leonards' judgment in Murphy v. 0' Sltca ( /') : 
 "If, in a transaction between principal and agent, it appears 
 that there has been any underhand dealing by the agent, 
 ex. gr., that he has purchased the estate of the principal in 
 the name of another person instead of his own, however 
 fair the transaction may be in other respects, it has no 
 
 {d) Burdick v. GarrkJc (1870), 5 {c) Dunne v. English (1874), 18 
 
 Ch. Ap. 241. Eq. 524, at 533. 
 
 (/) (1845), 2 J. & L. at p. 422. 
 
 VV. L
 
 146 PRINCIPAL AND AGENT. 
 
 validity in a Comi of Equity." Sir Greorge Jessel then 
 goes on : "■ Now, wliat is the meaning of knowledge which 
 lie himself possessed ? Full disclosure of that he knows. 
 Is it sufficient to say that he has an interest ? Is it suffi- 
 cient to put the principal on inquiry? Clearly not." 
 Where asrent The agent may set up that the principal has ratified or 
 closed in-''" adopted what has been done after learning the true facts, 
 terest prin- or clsc that the principal, knowing the facts all along, 
 right of acquiesced, and is therefore estopped from complaining ; 
 
 action, unless ^^^^ ^j^g ^^^^g j-^g ^^ ^]^g agent of proving" this. As the 
 
 acquiescence " r & 
 
 or accord and principal has a right of action, the agent must show that 
 
 satisfaction .■, . . t . , , , , ,■, • 
 
 proved. ^he principal is estopped, or else must prove something 
 
 in the nature of accord and satisfaction. 
 
 In Be Bussche v. AH (g), Lord Justice Thesiger says: 
 "It is competent, no doubt, to a principal to ratify or 
 adopt the act of his agent in purchasing that which 
 such agent has been employed to sell, and to give up the 
 right which he would otherwise be entitled to exercise of 
 either setting aside the transaction or recovering from the 
 agent the profits derived from it, and the non-repudiation 
 for a considerable length of time of what has been done 
 would at least be evidence of ratification and adoption, or 
 might possibly, by analogy to the Statute of Limitations, 
 constitute a defence ; but before the principal can properly 
 be said to have ratified or adopted the act of his agent, or 
 waived his right of complaint in respect of such acts, it 
 should be shown that he has full knowledge of its nature 
 and circumstances ; in other words, that he has had pre- 
 sented to his mind proper materials upon which to exercise 
 his power of election, and it by no means follows that 
 because .... he does not repudiate the whole 
 transaction after it was completed, he has lost a right 
 actually vested in him to profits derived by his agent from 
 it." To estop the principal complaining, ho must have 
 
 iff) (1878), 8 C. D. 286.
 
 RIGHTS OF THE PRIXCIPAL AGAINST HIS AGENT. 147 
 
 stood by in such a manner as really to induce the person 
 committing the act, and who might otherwise have ab- 
 stained from it, to believe that he assents to its being 
 committed. 
 
 When once the wrongful act has been done, without 
 knowledge or assent of the principal, the matter is to be 
 determined on many different legal considerations. A 
 right of action has been vested which cannot be divested 
 without accord and satisfaction or release under seal. 
 Even an express promise not to take legal proceedings 
 would not constitute a bar to an action, for the promise 
 would be without consideration, and therefore not bind- 
 ing (Z^. 
 
 In an action between principal and agents impeaching 
 the agents' account, actual knowledge of antecedent fraud 
 in the agents by one who subsequently became a member 
 of the firm of the principal will not be a good plea in bar 
 of a claim for an account (/). 
 
 An agent cannot dispute the title of his principal unless Agent cannot 
 he does so on the authority and right of a person having cipai's^ltl™' 
 a superior title to his principal. In Dixon v. Hamond (/r) 
 an agent insured a ship, and accounted for premiums on 
 behalf of and to a partnership, although the ship belonged 
 only to one of the partners. On the ship being lost, and 
 the other partner suing the agent for the insurance money 
 which he had received, the agent tried to set up that such 
 other partner had no interest in it. Chief Justice Abbott, 
 in gi^'ing judgment, said : " The right of the plaintiff to 
 recover here depends on a settled rule of law, that an agent 
 shall not be allowed to dispute the title of his principal, 
 and, receiving money in that capacity, afterwards say that 
 he did not do so, and did not receive it for the benefit of 
 his principal, but for that of some other person. Here 
 the defendant has received the money as agent for the 
 
 (A) See per Lord Justice The- (i) WUllamson v. Barhour (187S), 
 
 siger, Be Bimche v. Alt, ubi su;pra, 9 Ch. D. 529. 
 p. 314. {k) (1819), 2 B. & Aid. 310. 
 
 l2
 
 148 PEINCIPAL AND AGENT. 
 
 partnership, and he cannot now be permitted to say that 
 he received it for the benefit of Flowerdew alone." See 
 also Kieran v. Sandan {/). 
 Exceptions. If, however, an agent has received goods to sell from a 
 
 person to whom they do not belong, and he receives direc- 
 tions from the real owner to hold the money for him, he 
 may set up his title {)n). Mr. Justice Blackburn, in deliver- 
 ing the judgment of the Court, said : " A bailee can set 
 up the title of another only if he dej)ends upon the right 
 and title, and by the authority of that person. Thus 
 restricted, we think the doctrine is supported both by 
 principle and authority, and will not be found in practice 
 to produce any inconvenient results." The agent may 
 also set up an adverse title where his principal's possession 
 arose out of fraud (;?). 
 Agent know- But if an agent, knowing of the adverse title, still chooses 
 claim and ^0 ^^t as agent, he cannot set up the right of the adverse 
 accepting claim as against his principal (o). Lord Justice Lush, 
 
 agency cannot pi • t p •• 
 
 dispute title, speakmg of such a person, said : "I am of ojDinion that 
 when a person in such a position, knowing of two adverse 
 claims to goods, elects to take the part of one of the 
 claimants, and to sell the goods as his, he is estopped from 
 afterwards denying that claimant's title." 
 In -what Court The principal has a right to an account against his 
 action^fo/ agent (see Chapter on " Duties of Agent ") ; but prior to 
 account lies, the Judicature Acts this right to an account only existed 
 on tlie Chancery side in two cases : namely, where the 
 relation of principal and agent had imposed a trust upon 
 the agent {i. c, where the agent was in a fiduciary posi- 
 tion), or else where the accounts were complicated so that 
 an adequate remedy could not be obtained in the Common 
 Law Courts, which had no machinery for taking compli- 
 cated accounts (y^*). There has been held to be no such 
 
 (l) (1837), 6 Ad. & Ell. 515. (o) Ex parte Davies, In re Sadler 
 
 {>») Jiiddh: V. Bond (18G5), 34 L. (18H1), 19 C. D. 86, p. 93. 
 
 J. Q. B. 137, at p. 140. (/;) Mahrpicre v. Itogers (1865), 
 
 (n) Ilardman v. WiUcock (1832), 34 L. J. Ch. 396 ; King v. Eossett 
 
 9 Bing. 382, n. (1827), 2 Younge & J. 33.
 
 RIGHTS OF THE PRINCIPAL AGAINST HIS AGENT. 149 
 
 fiduciary relationsliip between the following parties, viz., 
 between master and servant {q), between a banker and 
 his customer (r) ; nor does it exist in cases of contract, 
 where the parties have made payments according to the 
 work done («). 
 
 At common law there was a writ of account against Action for 
 
 ji-ip -XT J.T' • account at 
 
 two kmcls 01 persons, i.e., those standmg m a quasi common law. 
 fiduciary position, as farm bailiffs, receivers, executors, 
 and guardians in socage, and by merchant against mer- 
 chant, judgment being given in the form of the order 
 quod conqmtit. A master could also have a writ of account 
 against his servant. The account was taken before audi- 
 tors appointed by the Court, and then there was final 
 judgment for what was found due. The form of the 
 writ against the former directed the sheriff " that you, 
 justice A., that justly and without delay, he do render 
 to B. his reasonable account for the time in which he was 
 his bailiff in N., and the receiver of the money of him the 
 said B. as he can reasonably show that he ought to render 
 to him, that we may hear no more clamoiu' thereupon for 
 want of justice " (/). The writ as between merchants was 
 also directed to the sheriff, and was as follows: — ""\Ve com- 
 mand you that you, justice A., merchant, that justly, &c., 
 he render to B., merchant, a reasonable account for the time 
 in which he was receiver of the money of him, the said B., 
 for whatever cause and contract coming to the common 
 profit of the said A. and B., as by the law merchant he 
 can reasonably show that he ought to render him"(;^). 
 This writ does not seem to be expressly abolished ; but by 
 sect. 34, sub-s. 3 of the Judicature Act, "the dissolution 
 of partnerships or the taking of partnership or other 
 accounts," has been assigned to the Chancery Division. 
 
 [q) Smith V. Leveaitx (1863), 2 D. Eogers (1865), U L. J. Ch. 396. 
 
 J. & S. 1. (0 Haynes on Equity, 4 Eq. 
 
 (»•) Foley V. Hill (1851), 2 H. L. p. 255. 
 
 C. 28. {u) Eitzherbert, Natiira Brevium, 
 
 (s) Moxon V. Bright (1869), 4 Ch. 116, R. P. ; and see p. 119. 
 Ap. 292 ; and eee Makepiece v.
 
 150 PRINCIPAL AND AGENT. 
 
 Under Ord. III. r. 8, a writ of summons may be in- 
 dorsed "with a claim tliat an account may be taken. The 
 forms given under the Act and Daniel's Chancery Forms 
 simply give the endorsement as " The plaintiff claims 
 that an account may be taken of [say what]." In a 
 recent unreported action in the Queen's Bench Division, 
 Bore V. Hooion {ic), the writ was endorsed for an account 
 simply, the plaintiff being the owner, and the defendant 
 the manager of a public-house. It was clear that at the 
 price at which the beer was sold, and from the amount con- 
 sumed, the defendant ought to have handed over more 
 to the plaintiff ; but as the plaintiff had not asked for an 
 account against the defendant on the footing of wilful de- 
 fault, i.e., what he ought to have received, as is usual in 
 the Chancery Division in such a case, the Court of Appeal 
 held that the defendant could not be held liable, except for 
 what he had been shown to have actually received. 
 Arbitratimi Matters of account may be referred under sect. 14 of the 
 
 ' * Arbitration Act, 1889 (,r) , which says, " The Court or a judge 
 may at any time order the whole cause or matter, or any 
 question or issue of fact arising thereon, to be tried before a 
 special referee or arbitrator respectively agreed on by the 
 parties, or before the special referee or officer of the Court." 
 Ord. XV. r. 1, evidently contemj)lates accounts being 
 taken on the Queen's Bench side, since it says " that an 
 order for the proper accounts, Avith all necessary inquiries 
 and directions now usual in the Chancery Division in 
 similar cases, shall be forthwith made." Mr. Justice Field 
 under it ordered an account where it was alleged that the 
 j)laintiff and defendant jointly bought some old buildings 
 for the purpose of pulling down and selling the materials {y) ; 
 under wliich circumstances as appears, from Moxon v. Bright 
 and iSiiii/h v. Levcaitx, no order would have been made in 
 the Chancery Division. 
 
 (»/-■) Ililfiry Term, 1893, Mr. {x\ 52 & 53 Vict. c. 40. 
 
 Artliur Powell was counsel for (y) Yorky. Slowers {iM'i),^^,^. 
 
 ))liiii:tiff and Mr. A. II. Siiokcs for 174. 
 defendant.
 
 EIGHTS OF THE PRINCIPAL AGAINST HIS AGENT. 151 
 
 If the agent has accounted but the principal discovers Principal's 
 fraud or errors in the account, it can be opened up. a<?ent'sac- 
 If there is one mistake in the account, the principal is count wrong 
 allowed to surcharge or falsify. Where an account is 
 opened up the whole of it may be unravelled, and the 
 parties will not be bound by deductions agreed upon 
 between them on the taking of the former account (~) ; 
 but where a party has liberty to surcharge and falsify, the 
 onus 2)roh(uuU is always on the party having the liberty; 
 for the Court takes it as a stated account and establishes 
 it, but if the party can show an omission for which there 
 ought to be credit it will be added (which is a surcharge), 
 or if any wrong charge is inserted it will be deducted 
 (which is a falsification) . This, however, must be done by 
 proof on his side {a). 
 
 Sir Greorge Jessel, in Gething y. KcifjJttlei/ (Jj), laid down E,ig-ht to 
 the rule as to when liberty to surcharge and falsify a or^faisify-! 
 settled account would be given as follows : — " In order to 
 induce the Court to make a decree that the plaintiffs are 
 to be at liberty to surcharge and falsify accounts, it is 
 necessary that there should be established in the progress 
 of the suit some one mistake with respect to an item in 
 the accounts. It is not necessary for that purpose to 
 establish more than one mistake, it being the view of the 
 Court a reasonable inference that if there be one mistake 
 there may be many mistakes, and the plaintiJEf, therefore, 
 ought to have the liberty of entering fully into those 
 accounts with a view of proving other mistakes." 
 
 Sir George Jessel said (e) : "Where an account is be- When prin- 
 tween persons in a fiduciary relation, and the person who rig-ht to open 
 occupies the position of an accounting party — that is, a ^^^ account, 
 trustee or agent — is the defendant, it is easier to open the account^. 
 
 (z) Osborne v. WUliams (1811), IS Practice, 6th ed. p. 485. 
 Ves. 379, 382. {b) (1878), 9 Ch. D. 547. 
 
 (ff) Fit X. Cholmondeley (1754), 2 (c) Williamson v. Barbour (1887), 
 
 Ves. Sen. 566; see also Dan. Ch. 9 (J. D. 529.
 
 152 
 
 PRINCIPAL AND AGENT. 
 
 Principal not 
 liable to pay 
 agent if not 
 kept account. 
 
 Fiduciary 
 agent cannot 
 
 account tlian it is in cases where the persons do not occupy 
 that position — that is to say, that a less amount of error 
 •will justify the Court in opening the account. Then I 
 have one other observation to make, which is, that where 
 you show a single fraudulent entry in the case of persons 
 occupying the position of principal and agent, or trustee 
 and cestui que trust, the Court has actually opened an 
 account extending over a greater number of years and 
 closed for a much longer period than the account I have 
 before me " (viz., extending over nineteen years, and 
 closed for some time ; it does not aj^pear from the report 
 how long). "I mean the case of AJlfrey v. Atlfrey [c], 
 before Lord Cottenham. "We therefore have this as a sort 
 of guide, without laying down any general rule, because 
 every case must depend on its o^tl circumstances, that 
 where accounts have been shown to be erroneous to a con- 
 siderable extent, both in amoimt and in the number of 
 items, or where fiduciary relations exist and a less number of 
 errors are shown, or where the fiduciary relations exist and 
 one or more fraudulent omissions or insertions in the account 
 are shown, then the Court opens the account, and does not 
 thereby surcharge and falsify." 
 
 An agent who ought to keep an account cannot charge 
 the principal for his services if he has not kept one. Lord 
 Eldon held, with respect to a man who had been the 
 auditor, steward, and solicitor of another, as follows: "A 
 man standing in a relation imposing a duty to keep 
 regular accounts cannot be permitted to make a demand 
 for work and labour in that character with reference to 
 which he has kept no account, which is justified by a 
 principle that ought to be loudly publislied, that a receiver 
 who does not pass liis accounts regularly ought not to be 
 allowed any poundage " {d). 
 
 An agent who stands in a fiduciary relation to his prin- 
 
 (c) (184'J), 1 Mac. & G. 87. 
 
 {d) White V. L. of Lincoln (1803), 
 8 Ves. 363, at p. 370.
 
 RIGHTS OF THE PRINCIPAL AGAINST HIS AGENT. 153 
 
 cipal cannot plead the Statute of Limitations against his plead Statute 
 principal if he has been fraudulent or party to a fraud, tio^g™^*'^" 
 Unless, however, there is some abuse of the confidential 
 relation, or some intentional imposition, or deliberate con- 
 cealment of facts, he is protected (r-) . In Bimfick v. 
 Gan'ick (/), which was a case in which a solicitor who 
 had a power of attorney from his principal to sell land 
 and invest the proceeds tried to set up the statute. 
 Lord Hatherley, in giving judgment, said : " It would 
 be, indeed, a strange thing if this Court would be obliged 
 to hold that if a person, for instance, were to deposit 
 plate and jewels with his bankers, intending to be ab- 
 sent from home for a great nimiber of years, and those 
 chattels were converted by the bankers to their own use 
 in fraud of the owner, and the owner were to come 
 back after the end of seven or eight years, he is utterly 
 remediless, either in the shape of an action at law or 
 a suit in this Court, because the deaUng with his property 
 has been in the nature of an agency. I apprehend that the 
 true ride applicable to these cases is to be found in Foley v. 
 Sill (g), where it is clearly stated by Lord Cottenham, who 
 distinguishes between the confidence reposed in a factor 
 or agent and the confidence reposed in a person who is 
 merely in the position of banker. A mere banker who 
 takes charge of his customer's money is not in any fidu- 
 ciary relation whatever to him in respect to the particular 
 coins or notes deposited, because it is the ordinary course 
 of trade to make use of them for his own profit. He does 
 make use of them, and he invests the money deposited 
 with him, and his customer does not require from him the 
 very coins or Exchequer bills he deposited with him. 
 But in the present case we have an agent who is intrusted 
 with those funds not for the pm-pose of being remitted 
 
 {e) Trustee Act, 1888 (51 & 52 (1740), 2 Eq. Cas. Ap. 579. 
 Vict. c. 59), ss. 8 aud 12 ; and see (/) (1870), 5 Ch. Ap. 233. 
 
 Dean v. Thwaite (1855), 21 Beav. (y) (1851), 2 H. L. C. 35. 
 
 261, and Lewellin v. Mackworth
 
 154 PRINCIPAL AND AGENT. 
 
 when received to the principal, but for the purpose of 
 being employed in a particular manner in purchase of 
 land and stock, and which moneys the factor or agent is 
 bound to keep totally distinct and separate from his own 
 money, and in no way whatever to deal with or make 
 use of them. How a person who is intrusted with funds 
 under such circumstances differs from one in an ordinary 
 fiduciary position I am unable to see. That being so, the 
 Statute of Limitations appears to me to have no applica- 
 tion to the case I do not say that in every case 
 
 in which a bill might be filed against an agent the Statute 
 
 of Limitations would not apply ; but in all cases where 
 
 the bill is filed against an agent on the ground of his 
 
 being in a fiduciary relation I think it would be right to 
 
 say the statute has no application." 
 
 In actious for In a case where the relationship between the agent and 
 
 statute runs ^^^^ principal is not fiduciary, but the agent is bound to 
 
 from demand, account, as where goods are consigned to a factor for sale 
 
 on commission, as an action does not lie for not accounting 
 
 till after a demand of an account, the statute does not 
 
 begin to run until an account has been demanded. After 
 
 a reasonable time has elapsed, in the absence of evidence 
 
 to the contrary, a demand will, however, be presumed (A). 
 
 Arbitrator not There is no right of action against a person who is 
 
 oTsldll"^ ^^ ^" appointed to act, and is acting, as an arbitrator, for not 
 
 having exercised reasonable care and skill in coming to a 
 
 decision ; for an arbitrator does not enter into an implied 
 
 promise to bring to the performance of the duty intrusted 
 
 to him a due and reasonable amount of skill. It was 
 
 therefore held that a broker who was alleged not to have 
 
 exercised reasonable skill in determining whether goods 
 
 wore of the rpiality contracted for was not liable (/). 
 
 Principal may If a foreign factor exceeds his authority by buying goods 
 act as factor 
 
 (h) Tophnm v. Braddkk (1809), 1 (/) Pappa v. Rose (1871), L. R 
 
 Taunt, h'i'2, ; Hce also Collins v. 7 0. 1*. 32 and 52o. 
 Jimnimj (1700), 12 Mod. 444.
 
 KIGIIIS OF THE PllIXCirAL AGAINST IIIS AGENT. 155 
 
 he ought not to buy, or buys at a higher price, and the for agent who 
 principal has made advances on the goods, the principal orders, 
 has an interest in the goods as seciu'ity, and may act in 
 respect to them as a factor for the person who broke his 
 instructions. The principal may, as such, insiu'e them, and 
 sell them in the same way as a factor would have been 
 justified in doing (/.•) ; but he must repudiate the transac- 
 tion, and give notice of such repudiation within a reason- 
 able time, else he will be held to have adopted it and be 
 liable for any loss. The j)rincipal did this in Cassa- 
 hogJou V. Gibhs {/), and the Court held he was right in 
 doing so. 
 
 In Siiiout V. Ilberri/ ())i), it was held that the agent was Eevocationof 
 not liable to a third party if, unknown to him, his autho- authority by 
 rity had been revoked by the death of the principal ; and death. 
 in Blades v. Free («), it was held that the estate of the 
 principal was not liable from the time of the death for 
 anything done in pursuance of an authority w^hich had 
 been done since the revocation by death, although it was . 
 unknown to both the agent and the third party. But 
 the agent still remained liable to the representatives of 
 his principal for anything done in pursuance of the poAver 
 after its revocation. Section 26 of Lord St. Leonards' 
 Act (o) was passed to protect trustees under such circum- 
 stances. This protection was extended to all agents by 
 the 47th section of the Conveyancing Act, 1881, which 
 enacts, "Any person making or doing auy payment or act 
 in good faith in pursuance of a power of attorney shall 
 not be liable in respect of a payment or act by reason that 
 before the payment or act the donor of the power had died, 
 or become a lunatic of unsound mind, or bankrupt, or had 
 revoked the power, if the fact of the death, lunacy or un- 
 soundness of mind, bankruptcy, or revocation was not at 
 
 (A-) Comwal y. Wihon (1750), 1 (m) (1842), 10 M. & W. 1. 
 
 Ves. 509. («) (1829), 9 B. & Cres. 167. 
 
 {I) (1883), 11 Q. B. D. 187. (o) 22 & 23 Vict. c. 35.
 
 156 PRINCIPAL AND AGENT. 
 
 the time of the payment or act known to the person 
 making or doing the same. 
 
 " (2) But this section shall not affect any right against 
 the payee of any person interested in any money so paid, 
 and that person shall have the like remedy against the 
 payee as he would have had against the payee if the pay- 
 ment had not been made by him." 
 
 This section applies onl}' to pajTnents and acts made 
 and done after the commencement of the Act (/. e., 31st 
 December, 1881). 
 Eight of The principal has a right to dismiss his agent at any 
 
 dismiss time, unless the agency is for a fixed period, the con- 
 
 agent, tract of agency being one which is revocable at the 
 
 will of the principal. (See chapter on " Termination of 
 Agency") {p), 
 
 {p) Henry v. Loivson (1885), 2 Times, 199.
 
 157 
 
 CHAPTEIi X. 
 
 KIGHTS OF AGENT AGAINST THE PRINCIPAL — REMUNERATION. 
 
 An agent lias, broadly, three rights against a principal. Agent three 
 First, his right to remuneration ; next, a right to an in- pif^cipaf^"^ 
 demnity or to be reimbursed for any advances or expenses ; 
 and, thii'dly, a lien on his principal's goods and papers in 
 respect of the first two. 
 
 Whether a sub-agent has any rights against the prin- Rights of 
 cipal depends on there being privity of contract between a^^ainft ^ 
 himseK and the principal. Where the agent has no autho- principal, 
 rity to appoint a sub-agent, the principal will not be liable 
 to him, as there is no privity of contract. It has been held 
 that there is no privity of contract between a solicitor's 
 town agent and his client, and that therefore the town 
 agent cannot maintain an action for his fees against the 
 client, nor can the client sue the town agent for negli- 
 gence {a). 
 
 Most agencies are not gratuitous, but for some valuable 
 consideration. Commercial agents are usually paid by a 
 commission on the goods sold or the value of the work 
 done, as the method of payment gives them a direct interest 
 in the pushing their employer's business. An agent may 
 leave the remuneration to be whatever his principal may 
 think right, but this may mean he is to be paid nothing {b) ; 
 or else he may arrange that it shall be a reasonable re- 
 muneration, without fixing any rate of payment. The 
 
 {a) Cobb V. BecJce (1845), 6 Q. B. (b) Taylor v. Breiver (1813), 1 M. 
 
 930. & Sel. 290. But sec Bryant v. 
 
 Flight (1839), 5 M. & W. 114.
 
 158 
 
 PRINCIPAL ANT) AGENT. 
 
 Del credere 
 commission. 
 
 Eemtmera- 
 tion not due 
 until work 
 done. 
 
 Work must 
 be done in 
 reasonable 
 time; 
 
 amount is usually fixed by the custom of the place or 
 trade (c) . And if an agent is paid for doing work in one 
 capacity, he cannot claim remuneration besides for the 
 work done as an agent ; thus, if an agent is paid for doing 
 work as a managing owner, he cannot also claim com- 
 missions for doing the work — which is part of a managing 
 owner's duty — of procuring charter-parties {d). 
 
 If there is a special arrangement that the agent is to 
 guarantee the solvency or punctuality of the firms with 
 whom business is done, he is paid a higher commission, 
 which is called a del credere commission, and he is called a 
 del credere agent. 
 
 Before the agent can sue for his remuneration he must 
 have done the work he undertook to do. He is not entitled 
 to commission unless he has done what the principal re- 
 quired him to do ; as, for instance, if he is employed to 
 get money on certain terms, it will not do to get it on 
 other terms {e) ; or if he is to procui'e a house, the title to 
 which is to be approved of by his princij)al's solicitor, he 
 has not earned the commission unless he shows that it has 
 been so approved (/) ; or to procure a partner, until deeds 
 of partnership have been exchanged (/y). 
 
 If the contract of employment between the principal and 
 agent fixes no time within which the work shall be done, 
 it must be done within a reasonable time. It was there- 
 fore held that where, in the month of February, 1883, the 
 owner of a public- house had agreed to pay the plaintiff a 
 commission on the valuation of his stock-in-trade upon his 
 sub-letting it " at any future date," the plaintiff was not 
 entitled to his commission when the house was sold in 
 November, 1884, and not through his intervention {h). 
 
 (c) Cohen V. rarjet (1814), 4 Camp. 
 9C. 
 
 {(t) Williamson v. Uine, (1891) 1 
 Ch. 390. 
 
 (c) Mason \. CUflon (18G3), 3 F. 
 & F. 899. 
 
 [f) Clark V. Wood (1882), 9 Q. 
 B. b. 276. 
 
 _(r/) Martin v. Tucker (1884), 1 
 Times, G.)5. 
 
 (/() HoHc/hion V. Orgar (1884), 1 
 Times, 653.
 
 RIGHTS or AGENT AGAINST THE PRINCIPAL — REMUNERATION. 159 
 
 The principle as to remuneration is, tliat there is nothing unless it 
 due to the agent until he has done his work ; hut if the und(?ne is 
 
 contract is not fulfilled because of the default of the prin- principal's 
 
 . . fault. 
 cipal, then the claim against him for work or commission is 
 
 a good one(?") ; for the principal is equally bound, whether 
 
 the contract is unfulfilled through his refusing to go on 
 
 with it or through his letting the third party off {k) . 
 
 The agent must either prove that the (1) business was What agent 
 done, or (2) that there was a binding contract to do it, or ^"^ nX^ to 
 (3) that it was prevented from being a binding contract commission. 
 only by reason of the default of the principal in refusing 
 to make the agreement valid and binding (/). 
 
 An architect is not entitled to charge commission on the Arcliitoct's 
 estimated cost of a building never erected ; such a charge ^ '^^ocs. 
 being both improper and unfair, since he has not had the 
 superintending of it to do. In such a case he is only en- 
 titled to fair charges for work done, such as plans, draw- 
 ings, and specifications (;;?). 
 
 The agent must have done the work as work. For in- Work must 
 stance, if an agent who has been employed either to sell jjo^g ^s work 
 a ship or let a house, introduces his principal, not in the ^^ *^^ agency. 
 way of business, but over a dinner-table, or for some other 
 pirrpose outside the agency, to someone who eventually 
 comes to terms with the principal, no commission will 
 be due. In one case where the agent having failed to get 
 anyone to do what the principal required, introduced the 
 principal to another agent on the chance that the second 
 agent might be more successful ; the second agent pur- 
 chased himself, and the Court held that under such circum- 
 stances the principal was not hable to pay commission (>/) . 
 
 (i) See L. J. Bi-amwell in Fisher Times, 132; and see Jie Sovereign 
 
 T. DreiviU (1878), 39 L. T. 253 ; life Insurance Co. (1890), 7 Times, 
 
 also Inchhall v. Western NeHqherry G02. 
 
 Rail. Co. (1865), 17 C. B. N. S. {m) Burr v. Eideout, Times, 22 
 
 733. Fob. 1893; Fart /miff v. Tonkins, 
 
 {k) Harford t. Wilson (1807), 1 Times, 5 July, 1893. 
 Taunt. 12. (w) Harnett v. Isaacson (1887), 4 
 
 (?) Grogan v. Smith (1890), 7 Times, 645.
 
 160 PRINCIPAL AND AGENT. 
 
 Agent must It is not Sufficient for the agent to sliow that lie 
 
 tracT between introduced the principal to the person who eventually 
 principal and Ijecame bujer, in order to entitle him to commission, he 
 brought about must prove that he brought about the relation of buyer, 
 by bim. hirer, lender, &c., which the principal instructed him to 
 
 bring about (o). 
 Contract be- He must show that the contract which has been entered 
 pafand third i^to by his principal and the third party was brought 
 party must about bv his exertious directly. It is not sufficient if in 
 
 be direct, not "^ I'-i; 
 
 remote, result some remote degree he had contributed to bring it about. 
 
 efforts^* ^ -^^^^ ^-^^ question whether he is entitled to his commis- 
 sion turns on the question whether the business was the 
 result of the agent's negotiations. If an agent employed 
 to get a loan introduces the matter to a person who 
 refuses to entertain the idea himself, but nevertheless 
 mentions it to another,, and that other person advances the 
 money, and negotiates direct with the principal, the agent 
 is not entitled to commission ; for, as Lord Chief Justice 
 Cockburn pointed out {])), that " commission was not due 
 merely because in some way or other the loan followed 
 casually, indirectly, and as a remote consequence. It 
 must appear that the advance was by or through their 
 agency" (q). So it is not enough for a house agent to 
 prove that he gave a card to view the house ; he must show 
 that he has done something which materially brought 
 about the contract between the thii'd party and the prin- 
 cipal {r). If the person when introduced as a purchaser 
 refuses to come to terms, but afterwards buys at a public 
 auction, the agent is not entitled to commission (.s). It 
 does not matter through how many sub-agents the matter 
 went, if these persons were in fact acting as sub-agents 
 
 (o) JJlilte V. mdkcr (1884), 1 4 F. & F. 291; Gibson v. Crick 
 
 Times, G03 ; Jcfrc)/ v. Crawford (18G2), 31 L. J. Ex. 304. 
 
 (1890), 7 Times, G18. (c) Zo/ts v. JSourke (1884), 1 
 
 (;>) jru/ccn.son v. Martin (1837), Times, 58. 
 
 8 C. & P. 1. (v) Tapiin v. Darreit (1889), 6 
 
 (7) Anlrobiia v. Wickena (1865), Times, 30.
 
 RIGHTS OF AGENT AGAINST THE PRINCIPAL — REMUNERATION. 161 
 
 for the agent, and were buying to enable him to earn his 
 commission {t) ; but though an agent may be entitled to be Agent entitled 
 
 • TP ,, 1 ,1 ., 1 ^ ^ to remuneia- 
 
 paid lor work done by anotJier person, it must be clear tion if con- 
 that person was acting as sub-agent, and the agent must tract effected 
 have been the link between the principal and himself, agent, 
 otherwise, as Chief Baron Pollock pointed out, a claim for 
 remuneration was absurd. He says, "If a broker gives 
 to the principal the name of another person, who names 
 another, who alludes to another, and so on, and the prin- 
 cipal employs the last named — that the broker should have 
 any claim on the principal in such a case is simjily prepos- 
 terous, even though a custom can be alleged in support of 
 such a claim "(?^). In that case the principal had a 
 number of ships for which he wished charters, and they 
 had been passed on from one broker to another, and so 
 eventually got chartered. Such a result is too remote. 
 
 Whether the agent is entitled to his commission turns on Contract with 
 the question whether the business really was the result of ^lust be du-ect 
 the agent's negotiations. If an agent employed to get a ^o* remote 
 loan introduces the matter to a person who refuses to en- of agency, 
 tertain the loan, but happens to discuss it with another 
 person, and that other person advances the money and 
 negotiates direct with the princij^al, the agent is not 
 entitled to commission {x) . 
 
 Where several brokers or agents are negotiating, the AATiere there 
 one who first introduced the party through whom the ao-ents. 
 business is done, is entitled to the commission (//). Where 
 there are several agents, and there is a question of fact as 
 to which agent brought about the bargain, the safest course 
 for the principal appears to be to interplead and pay the 
 money into Court (s). 
 
 [t) TrUkinson v. Alston (1879), 41 (y) Ter Erie, C. J., in Ciinard v. 
 
 L. T. 394. Van Oppen (1859), 1 F. & F. 716 ; 
 
 («) Gibso7i V. Cricic (1864), 31 L. see also the Chief Baron in Prickett 
 
 J. Ex. 804. V. Badger (1856), 1 C. B. N. S. 296, 
 
 [x) WilkimoH V. Martin (1837), at p. i^l. 
 
 8C. &P. 1. [z) Barnett v. Broivn (1889), 6 
 
 Times, 463. 
 
 W. M
 
 162 
 
 PRINCIPAL AND AGENT. 
 
 When agent 
 entitled to 
 commission 
 on a renewal 
 of a lease. 
 
 Toll! in in v. 
 Millar. 
 
 Not entitled 
 to commisHion 
 on partiicr- 
 fihij), although 
 he introduced 
 originally 
 now partner 
 aa lender. 
 
 Agents often claim commission when a house for which 
 they have procured a tenant is re-let to the same person. 
 This is generally held to be too remote a result of the 
 agents' exertions to entitle them to remuneration. It has 
 heen held, however, that the agent can claim remuneration 
 for the re-letting if it was owing to an express term in the 
 contract, allowing an option to renew, that this happened ; 
 for the agent's remuneration depends on his showing that 
 the work has been done in consequence of his services. He 
 is not entitled, as has been already pointed out, to casual 
 results of his labours, which were not foreseen or intended. 
 The agent's claim must be as a commission on rent ob- 
 tained as a proximate consequence of his action. Whether 
 it was the proximate consequence depended on the agree- 
 ment entered into between the landlord and tenant at the 
 time of the original letting (a). 
 
 It has been held that the mere fact that the agent put on 
 the paper he handed to the principal containing his terms of 
 doing business, a note that when a property which was let 
 to a tenant, and was afterwards bought by the tenant, a 
 commission would be charged on the selling, less the 
 amount received for letting, did not bind the principal 
 unless he had it brought to his notice ; for in order to 
 found a legal claim to a commission, there must not only 
 be a consent, there must also be a contractual relation be- 
 tween the introduction and the ultimate transaction of 
 sale (h) . So where the agent had, under the arrangement 
 he made with the principal, procm-ed a loan of 10,000/., 
 and a year and a quarter afterwards the lender became 
 partner in the principal's business, advancing another 
 4,000/. ; the Court hold that, though in one sense, in conse- 
 quence of the original introduction, the principal obtained 
 the further sum, the question was whether the subsequent 
 
 {(i) Curtis V. Nixon (1871), 21 L. 
 T. 706. 
 
 (h) Per Lord Watson, Toulmin 
 . Millar (IHSQ), 3 Times, 83G.
 
 RIGHTS OF AGENT AGAINST THE PRINCIPAL REMUNERATION. 163 
 
 partnership was the result of the introduction, or of an 
 independent negotiation between the principal and the 
 lender ? The question was not what was the causa 
 2}roxi/iia ; the agent must show that some act of his was 
 the causa causaiis; and it being admitted that the subse- 
 quent advance was not contemplated at the time of the 
 original advance, the agent failed to establish his right 
 to commission on it(c). In White v. Baxter {d), the 
 question left by Mr. Justice Williams to the jury under 
 similar circumstances was also whether the business was 
 contemplated at the time of the introduction. Even 
 if the business has been contemplated at the time, if 
 the person who subsequently purchases, and who has 
 been introduced by the agent, does not purchase for a 
 long time afterwards, it is a question whether, in doing 
 so, this was the result of the original introduction {e), 
 and if they decide it is not, the principal is not liable 
 for commission. If a commission agent stipulates that 
 he is to have a commission on all futiu'e orders from any 
 person he introduces, he is entitled to such commission, 
 though he may have left the principal's service, unless 
 it appears that the future orders were not traceable to his 
 efforts (/). 
 
 The work for which the agent claims remuneration must Work done 
 have been within the scope of his employment or authority ^i^Hn gcope^ 
 to render the principal liable ; in other words, it must have of agency, 
 been authorized. It is not enough for the agent to prove 
 that the principal has gained some advantage by his 
 services, if those services were not within the scope of the 
 agency. For instance, if an agent is employed to let, and 
 the premises instead of being let are sold, he is entitled to 
 
 (c) Tribe V. Taylor (1876), 1 C. P. W. R. 71G. 
 
 D. 505. (/) Bilhce v. Easse cj- Co. (1888), 
 
 {d) (1883), 1 Cab. & Ellis, 199. 5 Times, 677 ; Boyd v. Tovil Fapcr 
 
 (e) Lumleij v. Nicholson (1886), 34 Co. (1887), 4 Times, 332. 
 
 m2
 
 164 
 
 PRINCIPAL AND AGENT. 
 
 Principal can- 
 not slig-htly 
 alter the con- 
 tract between 
 himself and 
 third party to 
 make it out- 
 side agency. 
 
 Work must 
 be properly 
 done to earn 
 commission. 
 
 Mere taking 
 trouble does 
 not entitle 
 agent to 
 remuneration. 
 
 What agent's 
 work may be 
 completed by 
 introduction 
 only. 
 
 notliirig {(j) . In many cases, it is a question wliat the 
 real authority was, whetlier it was a particular authority 
 to do a particular thing, as to get a tenant ; or a general 
 authority to do whatever was practicable, as to sell or let, 
 whichever might turn out possible or most advantageous. 
 
 The principal will not be allowed to cheat the agent by 
 slightly altering the nature of the business so as to make 
 it outside the agent's authority. If the business done is 
 substantially that which the agent was authorized to get 
 done, he T\ill be entitled to his commission (//) ; thus, 
 where the agency was to sell land, the principal cannot, 
 by contracting to give a long lease for 999 years to the 
 third party, avoid paying the commission. 
 
 The work must be properly done. If a broker negotiates 
 a charter-party he must make it in intelligible terms, for 
 if the terms are not clear his charge is made practically 
 for introducing confusion, and leading the parties into 
 law suits, the question for the Court in such cases is 
 whether the principal has derived advantage from the acts 
 of the agent (/), or whether the work, through the careless 
 or negligent way it has been done, is useless. 
 
 The mere fact of incurring trouble, while the work has 
 been useless to the principal, does not make it a subject- 
 matter for remuneration, which word implies that it is a 
 reward for useful labour. If there is any doubt as to its 
 usefulness, or that it was necessary for accomplishing the 
 principal's object, that is a question for the juiy {k). 
 
 Sometimes the only duty of the agent is to introduce 
 the parties, and when that has been done he has completed 
 his i^art of the transaction, and if business ensues, /. c, the 
 
 iff) Toulmm v. MiUar (1886), 58 
 L. T. 00; 12 App. Cas. 746. 
 
 (/() iSinijmn v. Zamb (1850), 17 
 C. J3. :\X 603 ; Grijin v. Cheese- 
 wrifjhl (1885), 2 Times, 99. 
 
 (0 llamond v. Holiday (1824), 1 
 
 Car. & Pay. 384 ; as to auctioneer 
 doing ■work badly, see I'eirce v. 
 Co^-/ (1879), L. R. 9 Q. B. 210. 
 
 ('/•) 7/(7/ V. F(ihcri>tu>il,au(ih[\%Z\), 
 7 Bing. 569 ; Shaw v. ^rdm (1832), 
 9 Bing. 287.
 
 RIGHTS OF AGENT AGAIXST THE PRINCIPAL REMUNERATION. 165 
 
 contract is completed, he is entitled to his commission (/) ; 
 and it is not necessary that the actual sale should have 
 been negotiated by him if the relation of buyer and seller 
 was the result of his introduction (m). 
 
 In Beahle v. Dickerson (n) the principal instructed the Agent must 
 agent to sell for him certain bank shares, by auction or executed Ms* 
 otherwise ; the agent advertised the shares, and the bank, authority to 
 not liking to see their shares hawked about, wrote to the sion. 
 agent offering to procure a purchaser ; the agent accepted 
 the offer and the shares were sold by the bank. The agent 
 claimed a commission on the sale ; but it was held that he 
 was not entitled to any, as he had voluntarily chosen to 
 divest himself of his authority by handing over the sale to 
 the bank, who had no interest in getting the best possible 
 price for them. 
 
 If the principal makes a representation on which basis If through 
 the agent proceeds to do the business, and succeeds in fau°t contract 
 
 getting the work done, but afterwards, owing to the goes oif, 
 
 ... ,. , ., ,^. ao-ent entitled 
 
 representation being untrue, the whole business falls to 
 through, he will still be entitled to his commission (o) . 
 
 As regards the class of cases where the business goes Where no 
 off where there is no default in the principal, the cases contract "-oes 
 are very conflicting. They are decided mostly on the <^^- 
 wording of the particular contract. In Peacock v. Free- 
 man (/)), Lord Justice Lindley said, "A principal does not 
 warrant to the auctioneer that he has a title to sell which 
 could be forced on a purchaser"; but that case was decided 
 on the ground that the particular contract there was 
 construed to make commission only payable on a completed 
 sale. In another case {q), the thuxl party refused to com- Unknown 
 
 flaw in title 
 
 (?) TJ'iiIker v. WaR-er, Donald S^- (o) Green v. Lkcus (1875), 31 L. 
 
 Co. (1884), 1 Times, 603; and see -Ke T. N. S. 731; (1876), 33 L. T. 
 
 Beale, Ex parte Durnutt (1888), 5 584. 
 
 Mor. Bank. 37. {p) (1888), 4 Times, 541.^ 
 
 (w) Green v. BartUtt (1863), 14 (-/) 6'm« v.iw«s (1876), 63L. T. 
 
 C. B. N. S. 681. 584 ; see also Lockivuod v. Levick 
 
 («) (1884), 1 Times, 654. (1860), 8 0. B. N. S. 603. 
 
 commis- 
 sion.
 
 166 PRINCIPAL AND AGENT. 
 
 causing plete becausG of a defect in title, whicli neither party 
 
 complete! knew of at tlie time the contract was made by the principal 
 with the agent. In that case Lord Cairns said, *' It appears 
 to me that the plaintiffs (the agents) had done everything 
 which agents in this kind of work are bound to do, and it 
 woiild be forcing their liability if they were held answer- 
 able for what happened after. If the contract afterwards 
 were to go off from the caprice of the lender, or from 
 the infirmity in the title, it would be immaterial to the 
 plaintiffs (the agents)"; and later in his judgment he 
 puts the following dilemma : " Either it (the flaw in 
 title) was a sufficient reason in refusing to go on with the 
 loan or it was not. If they (the third parties) were not 
 justified, the defendant (the principal) ought to have pro- 
 ceeded against them, and if they were justified then the 
 failure of the loan was owing to the defendant's own 
 default or the failure of the security he had j^roposed." 
 Lord Justice Bramwell (r) said : " Now the current of 
 modern opinion is to the effect that those who bargain to 
 receive commission for introductions have a right to their 
 commission as soon as they have completed their portion 
 of the bargain, irrespective of what may take place subse- 
 quently between the parties introduced. Why should the 
 right to be paid for work depend on what takes place 
 between other parties outside the contract ?" and he treats 
 the bargain going off through some default in title or 
 failure to comply with a reasonable requisition, as if it 
 were tlie principal's default. 
 Trinoipal not Tlic principal is not liable to pay commission if he 
 ar'f'opt cUs- ■'^^^ refused a charter because its terms were unfair («). 
 advautageous Chief Justice Tindal in that case said : " If the defendant 
 was right in rescinding the contract, that will be an 
 answer also to the claim for expenses. The question, 
 therefore, will be whether, when the charter-party was 
 
 (>•) Fisher v. Drcwett (1878), 39 {») Dalton v. Invin (1830), 4 C. 
 
 L. T. 253, and 48 L. J. 33. & V. 289. 
 
 torma.
 
 RIGHTS OF AGENT AGAINST THE PRINCIPAL REMUNERATION. 167 
 
 presented to liim for signature, lie had a justifiable cause 
 for refusing to sign it, saying, ' this is not the contract I 
 was entitled to expect,' for if he had then the plaintiff 
 cannot recover, even for the expenses "(/) . Shipbrokers 
 are by custom not entitled to recover anything, even for 
 expenses, if their labours have resulted in nothing {><). 
 
 If the agent acts rather in the interest of a third party Ag-ent not 
 than in that of his principal, he cannot recover for his f ^ ^-incLal 
 services (.r) ; and if he earns money for a third party vrlien cannot re- 
 his whole services (as in the cai=e of a master of a ship) 
 belong to his principal, he cannot recover it (//), but ou 
 the contrary, can be restrained by the principal from 
 receiving anything he may have earned while in his 
 service, as, for example, the profits of private trading (s) . 
 But if a principal employs an agent and does not state 
 what his remimeration is to be, and the agent goes and 
 transacts business on that footing, the principal, knowing 
 that the agent is to receive his remuneration from the 
 other persons with whom he deals, and not choosing to ask 
 what the amount is, is bound by the custom and cannot 
 recover it (a). 
 
 If the agent's interests in the contract are on the side of Agent int5- 
 the third party, as he cannot properly be an agent at all third party 
 (see chapter II., " "Wlio may be Principal and who not entitled to 
 Agent," p. 9), so he is not entitled to commission; as 
 where a person acts as agent for a vendor and sells the 
 property to a company in which he has shares. Chief 
 Baron Pollock, in such a case (/>), said: "No autho- 
 rity has been adduced for a departure from the general 
 principles governing such a case, and the argument has 
 
 (t) See also Bead v. Rami (1830), [y) Thompson v. Uavchck (1808), 
 
 10 B. & C. 438. 1 Camp. 527. 
 
 {>/) JDalton V. Irwin, uhl supra; {z) Gardner v. JiPCuicheon {lS-i2), 
 
 Broad v. Thomas (1830), 7 Bing-. 4 Beav. 534. 
 
 99 ; Jicad v. Rann (1830), 10 B. & {a) Great TTcstern Insura'i-c Co. v. 
 
 C. 438. Ci/nlife (1874), 9 Ch. 525. 
 
 (,r) Hurst v. EoUing (1810), 3 [b) Salomons v. Fender (1865), 3 
 
 Taunt. 31. H, & C. 639, 
 
 commission.
 
 168 
 
 PRINCIPAL AND AGENT. 
 
 No comrais- 
 sion on illegal 
 contract ; 
 
 Nor on void 
 contracts. 
 
 Insanity of 
 tMrd paity. 
 
 Stockbroker 
 contracting 
 •vrithout send- 
 ing contract- 
 note. 
 
 When agent 
 can recover on 
 quantum 
 meruit. 
 
 failed to convince me tliat a person can in the same trans- 
 action buy in the character of principal and at the same 
 time charge the seller as his agent. I cannot agree that 
 because a seller has chosen to abide by the sale he is there- 
 fore to be held to have acknowledged the claims of the 
 plaintiff both as agent and purchaser." 
 
 If the contract is illegal the agent will not be entitled 
 to commission (<?) or to be paid, as he will also not be 
 able to sue for an indemnity (see j^ost). But if the 
 principal sets up such a defence he will have to make 
 out that the contract was necessarily illegal, and it will 
 not do to prove that if carried out in a certain way 
 it was illegal {d). If the contract relates to betting or 
 gaming, although not illegal, but only void, he will not 
 be able to recover any commission {(). 
 
 If the agent makes a contract with a person who though 
 sane afterwards becomes insane, as the contract is enforce- 
 able against his rej)resentatives, he is entitled to his 
 commission, unless it is a contract which, owing to the 
 insanity, could not be carried out. Thus it is no defence 
 to a claim for commission on the sale of a yacht that the 
 purchaser has become insane (./'). 
 
 Stockbrokers are by sect. 17 of the Inland Eevenue Act, 
 1888, directed to make and execute a contract-note of the 
 transaction — i. e., a bought or sold note, as the case may 
 be. It is, however, no defence to an action for commis- 
 sion tliat no such note has been sent {[/). 
 
 Unless the contract is so worded that the agent is 
 entitled to nothing unless he succeeds, he may sue on a 
 fjuaiit/D/i )))(')'uit, and recover remuneration in proportion to 
 the work he has done (//). But where there is an express 
 
 (c) Josephs V. Pebrer{\^2h), 3 B. 
 & C. 639 ; Bcndey v. Bignold (1822), 
 5 B. & Aid. 335. 
 
 {il) Haines v. Busk (1814), 5 
 Taunt. 521 ; Ler>/ v. Yales (1838), 
 8 Adol. & Ell. 129. 
 
 {e) 55 Vict. c. 9, s. 2. 
 
 (/) Piatt V. Bcpree, (1893) 9 
 Times, 191. 
 
 (-/) Lcaroi/d V. Bracken, (1893) 
 10 Times, CI; (1894) 1 Q. B. 114. 
 
 {h) Story on Agency, § 329.
 
 EIG HTS OF AGENT AGAINST THE PRINCIPAL — REMUNERATION. 169 
 
 contract there can be no implied contract, and therefore 
 the agent cannot, where the contract is express, and sajs 
 nothing about a quroifioii meruit, sue on an implied con- 
 tract to pay a quantum meruit for his services (/). Lord 
 Esher, in Burnett v. Isaacson (/r), said, to " entitle a person 
 to sue on a quantum meruit the rule was, that if the plain- 
 tiff relied on the acceptance by the defendant of some- 
 thing he had done, he must have done it under circum- 
 stances which led the defendant to know that if the 
 defendant accepted what had been done it was on the 
 terms that he should pay for it." If the principal and 
 agent chose to make a bargain by which the right to 
 commission was to be dependent upon a condition, such 
 as the introduction on the one side and the acceptance 
 by the other of a partner who would bring money into 
 the principal's business, the agent cannot claim on a 
 qua)ituin meruit, because they had chosen to tie them- 
 selves down by the express terms of an agreement (/). 
 
 If the principal does the work himself or revokes the Principal may 
 authority the agent is not entitled to commission, but self, 
 the principal will have to pay for the labour and trouble 
 incurred by the agent up to the time of revocation (;;?). 
 
 If the work has been done already the principal can- Principal can- 
 not escape paying the remuneration by saying he has pay^r^om- 
 revoked his authority (^/). (As to when the authority mission if 
 can be revoked, see Chapter on " Termination of the ^r^ 
 
 1 • • When prm- 
 
 Agency. ) In some cases the prmcipal is not entitled cipal cannot 
 to do the work himself, as where he has appointed him self^°^ ^' 
 a sole agent to sell in a certain district, gi\'ing him a 
 commission on all goods sold in such district, for doing so 
 would be revoking pro tanto his authority (o). ' 
 
 (i) Zott V. Onthu-aite, (1893) 10 {m) Simpson v. Lamb (1856), 17 
 
 Times, 76. C. B. N. S. 603. 
 
 [k] (1887), 4 Times, 645. («) TTilkinson v. Alston (1879), 
 
 [l) Martin r. Tucker (1884), 1 41 L T. 394. 
 Times, 655. (o) Sne/r/rove x. Ellriiiaham (ISSl), 
 
 45 J. P. 408.
 
 170 
 
 PRINCIPAL AND AGENT. 
 
 When remu- 
 neration pay- 
 able. 
 
 Building 
 land. 
 
 Agent can 
 sue for com- 
 mission in 
 principal's 
 bankruptcy. 
 
 A question sometimes arises as to the time when the 
 remuneration is payable, whether when the work is done 
 or when the principal reaps the result. This is to a great 
 extent decided by custom. House agents, where the rent 
 is paid through them, usually deduct the commission 
 before paying the rent over, and if the rent is payable in 
 two instalments, as in the case of a furnished house, deduct 
 half in the first instalment and half in the second. If the 
 commission is payable on the sale of the property, it is not 
 due until the conveyance is completed (75). 
 
 In the case of land let as building property, the agent's 
 commission does not accrue until the ground rents begin 
 to come in, that is usually after the houses have been 
 built (5'). Mr. Justice Byles, in Lam v. I£i/l{r), said: 
 " There are four epochs at which commission may be pay- 
 able. First, at the time of the adjustment of the terms 
 of the sale ; or, secondly, at the time stij)ulated in the 
 contract; or, thirdly, at the time stipulated for the com- 
 pletion of the purchase ; or, fourthly, at the time of the 
 actual payment of the j)urchase-money." 
 
 When the agent has done his work, he is entitled to 
 his commission, although no benefit may have resulted 
 to the principal or his estate from his labours owing to 
 tlio principal's bankruptcy, and he has a right to prove 
 for the amount against his estate (-s). 
 
 (/;) Teacoch \ . Freeman (1888), 
 Times, 541. 
 
 {q) Kirk V. Evans (1889), 
 Times, 9. 
 
 (r) (1863), 15 C. B. N. S. io. 
 (.s) Re Jiealc, Ex parte Durrant 
 (1888), 5 Mor. Bank. Cas. 37.
 
 171 
 
 CHAPTER XI. 
 
 INDEMNITY. 
 
 The next riglit of the agent against the principal is to he 
 indemnified against any loss or injury in carrying out the 
 agency. The rule is thus laid down : Where an act has 
 been done by the plaintiff, under the express directions of 
 the defendant, which occasions an injury to the right of 
 third persons ; yet, if such an act is not apparently illegal 
 in itself, but is done honestly and bond fide in compliance 
 with the defendant's directions, he shall be bound to 
 indemnify the plaintiff against the consequences thereof. 
 
 In Adamson v. Jarvis (a), which was an action by an 
 auctioneer against a person who had induced him to sell 
 certain things under the representation that he was the 
 owner, and so made him liable to an action for conversion 
 by the true owner, Chief Justice Best, in answer to an 
 argument that there was no contribution between joint 
 tort feasors, said : " It was certainly decided in Mcrri/- 
 KCfdher v. Nixon that one wrongdoer could not sue another 
 for contribution. Lord Kenyon, however, said that the 
 decision would not affect cases of indemnity, where one 
 has employed another to do acts not unlawful in themselves 
 for the purpose of asserting a right." This principle seems 
 to have been laid down so early as James I.'s reign, in 
 Fletchc)' V. Harcot {h), and was approved of in Bugdcde v. 
 Lovering {c). In Fletcher v. Hareot an innkeeper brought 
 an action against a certain Harcot, who had told him 
 
 {a) (1827), 4Bmg-. 72. (0 (1875), L. E. 10 C. P. 196, 
 
 \b) (1623), Hutton, 55, by Brett and Grove, JJ.
 
 172 
 
 PRINCIPAL AND AGENT. 
 
 Right to in- 
 demnity 
 where act 
 apparently 
 lawful. 
 
 Agent's right 
 to be re- 
 imbursed 
 expenses. 
 
 Eight arises 
 out of con- 
 tract of 
 emplojTnent. 
 
 Costs of 
 action. 
 
 he had lawfully arrested one Battersley, and asked him 
 to be kept safely in the inn for a night. In conse- 
 quence of doing so the innkeeper had an action for false 
 imprisonment brought against him, and had to pay 10/. 
 Harcot's counsel argued in his defence that it did not 
 appear that Harcot had properly arrested Battersley, and 
 that the plaintiff could not recover for the results of an 
 illegal act. But Lord Hobart distinguished the case where 
 a man gave an indemnity for doing an action which was 
 cleai'ly unlawful from the case before him, where the action 
 appeared to be lawful, and gave judgment for the plaintiff, 
 the innkeeper. The rule that wrongdoers cannot have 
 redress or contribution against each other is therefore con- 
 fined to cases where the person seeking redress must be 
 presumed to have known he was doing an unlawful act (c) . 
 An agent is entitled to be reimbursed all expenses he is 
 put to in caiTying out his principal's instructions, and he 
 is entitled to be indemnified against any loss or damage 
 which may accrue to him in carrying out the lawful 
 instructions of his principal, and in protecting his prin- 
 cipal's interests (f/). The right to indemnity arises out of 
 the original contract of employment. Every man who 
 employs another to do an act which the employer appears 
 to have a right to authorize him to do, undertakes to in- 
 demnify him for all such acts as would be lawful, if the 
 employer had the authority he pretends to have. There- 
 fore, if the agent is made liable to an action, or defends an 
 action for his principal, he has a right to be indemnified 
 against the costs incurred therein. If, however, he defends 
 an action of his own wrong, and without authority, he is 
 not entitled to call upon his principal to pay the costs, as 
 they were incrn'red without his consent (e). 
 
 (c) See Belts v. Gibbins (1834), 2 
 A. & E. 57 ; and Adamson v. Jar vis 
 (1827), 4 Bing. G6. 
 
 [d] Curtis V. Barclay (1826), 5 B. 
 & C. 141. 
 
 {e) Per Lord EUenborough, Spur- 
 rier T. Elderton (1803), 5 Esp. 1.
 
 INDEMNITY. 173 
 
 If the agent pays money on behalf of his principal, Agent cannot 
 which the principal was not liable to pay, and which the proper pay- 
 agent, therefore, ought not to have paid, he cannot recover ments. 
 it back from the principal, or retain an amount against him 
 for such pui'pose (./). 
 
 If an action is brought by an agent against his principal If damages 
 to recover the amount of damages sustained by hini in a ^Irent Mhat 
 suit which he defended on behalf of the principal, he must ™>i«t be 
 show, in order to entitle him to recover : first, that the loss cover from 
 arose from the fact of the agency ; secondly, that he was Pi'"icii3al. 
 acting within the scope of his authority ; and thirdl}', that 
 the fault was not attributable to any laches on his part {(/) . 
 
 If the loss happens through the agent's own default. Principal not 
 as, for instance, where stockbrokers, owinf? to their bank- ^ouud to m- 
 
 ' ' ' o demuify 
 
 ruptcy, had to close shares and sell them at a loss, the agent against 
 principal is not liable to indemnify him for such a loss (//) . q^^j^ default 
 Mr. Justice Blackburn, in giving judgment, said: "It must ^•^'-.tisuegli- 
 be admitted that for any loss incurred by an agent by reason bankruptcy, 
 of his having entered into such contracts according to such 
 rid.es (the Stock Exchange Eules), unless they are wholly 
 unreasonable, and where the default is without any personal 
 default of his own, he is entitled to be indemnified by his 
 principal upon an implied contract to that effect (/). But 
 it is argued that where the agent, as in this case, is sub- 
 jected to loss not by reason of his having entered into the 
 contracts he was authorized to enter into by his principal, 
 but by reason of a default of his own, that is to say, as in 
 this case, by reason of his insolvency brought on by want 
 of means to meet his other primary obligations, it cannot 
 be said that he has suffered loss by reason of his having 
 entered into the contracts made by him on behalf of 
 his principal, and, consequently, there is no promise 
 
 (/) Howard v. Tuclccr (1831), 1 [h) Duncan v. mil (1873), L. R, 
 
 B. & Adol. 712. 8 Exch. 242. 
 
 {q) Frixione V. Taffliafciro {lS5(j), (i) Ilarker y. Edwards {18S7), 57 
 
 10 Moore, P. C. 175. L. J. Q. B. 147.
 
 174 
 
 PRINCIPAL AND AGENT. 
 
 If bantrupt 
 stockbroker 
 gives client 
 option of 
 carrying out 
 contract with 
 jobber, client 
 still liable to 
 indemnify for 
 loss. 
 
 Principal not 
 bound to in- 
 demnify 
 against loss 
 by unreason- 
 able custom. 
 
 whicli can be implied on the part of his principal to 
 indemnify him ; and, in the present case, there is cer- 
 tainly no express promise to that effect. These allegations 
 
 both as to fact and law seem to me coiTcct 
 
 The plaintiffs' insolvency was, as regards the defendants, 
 entirely the result of their own default. We think there 
 is no implication of law to force upon the defendants an 
 obligation to indemnify the plaintiffs in such a case." 
 
 If, however, the agent gives the principal the choice of 
 having his original contract carried out, and deal liimself 
 with the jobbers, or elect to ratify what was done, and 
 have it closed at the official prices, and the principal elects 
 the latter, he will have to indemnify the agent {j ) , for the 
 loss is then not occasioned by the bankruptcy, but is the 
 result of the principal's own act. Therefore, to establish 
 an obligation to indemnify, the agency must be the cause, 
 and not merely the occasion, of the loss (/.■). 
 
 In Canijjbell v. Larhcorthy [I) an agent undertook when 
 going to Australia to deliver an ice machine to persons to 
 whom the principal had agreed to sell it for shares in a 
 company ; the arrangement being that the agent should 
 receive a certificate of the shares in his own name and so 
 become a shareholder, and to keep the certificate to hand 
 over to the principal. The agent did so. Subsequently, 
 a call was made on the shares, and the agent being the 
 registered holder was obliged to pay it. Under these 
 circumstances it was held that he was entitled to an 
 indemnity from his principal. 
 
 The agent is bound to do the work he is employed to 
 do in accordance with the custom of his trade or business, 
 and the principal must indemnify him against any loss 
 incurred in carrying out his directions according to such 
 customs. If the loss is incurred owing to an unreason- 
 able custom, as for instance, to hold a contract binding 
 
 (/) Hartas v. liibbuns (1889), 22 
 Q. B. D. 264. 
 
 (k) Story, § 3-11. 
 
 (/) (1893) 9 Times, 528.
 
 INDEMNITY. 175 
 
 wliicli is not binding in law, the principal is not obliged 
 to indemnify liis agent. Thus, it was decided that, 
 as against strangers, the custom of the Stock Exchange 
 to disregard Leman's Act {>n) (which provides that con- 
 tracts for shares shall specify their numbers) was an un- 
 reasonable custom and not binding, and that therefore 
 a principal, not knowing of it, was not bound to in- 
 demnify a broker who made a contract which was good 
 by the custom of the Stock Exchange, but void in 
 law {n). Lord Bowen, in his judgment, said : " The 
 question is narrowed to this — Is a man who employs a 
 broker to deal in a particular market bound to know a 
 usage there to make an iuvalid instead of a valid contract, 
 and a usage according to which, when he has ordered one 
 thing, he is expected to take another thing ? It would 
 not be reasonable, I think, to hold that a person is bound 
 by such a usage, unless beforehand he was told or had 
 knowledge of it." 
 
 A principal may be bound by an imreasonable custom Otherwise if 
 if he knows of it. Thus, in Seymour v. Bridge (o) the knows'T'^^^^^ 
 principal was held bound by the contract, although it did 
 not comply with Leman's Act. It has, however, been held 
 that to bind him it must be proved that he knew of the 
 custom and consented to be bound by it at the time he 
 made the bargain {j)) . 
 
 But a custom to close the account if a balance of Custom to 
 
 TPfi •iiiijp 1 1 ^ • ^ close account 
 
 Qinerences m the broker s favour has not been paid if differences 
 him by his principal upon the pay day of the cui-rent ^°* P-'^^'h 
 settlement, provided that the broker has given his prin- 
 cipal notice of the amount beforehand, has been held 
 good. The agent therefore has a right to close his prin- 
 cipal's account with the jobber, and require his principal 
 
 (m) 30 & 31 Vict. 0. 29, s. 1. (p) Cooke v. Eshelhy (1887), 12 
 
 («) Perry v. Barnett (1885), 15 Ap. Cas. 271 ; Blackburn v. Mason, 
 
 Q. B. D. 388. (1893) 9 Times, 286. 
 (o) (1885), 14 Q. B. D. 4G0.
 
 176 PRINCIPAL AND AGENT. 
 
 to indemnify him for any difPerences lie lias paid for 
 him {q) . By the custom of the Stock Exchange the stock- 
 broker is res]3onsible for the genuineness of the documents 
 until the shares have been registered by the pmx'haser, and 
 even after registration if a Court of law decides that the 
 purchaser has no title to be registered is a good custom. 
 Hence, if the stockbroker has in either of these cases got 
 to pay the price of them back, the principal must indemnify 
 him {/•). 
 Court will not It is an established principle that the Comi will not lend 
 nity ^here ' ^^^ ^^^ ^^ Order to cuf orce a contract entered into with a 
 contract yicw of carrying into effect anything which is prohibited 
 
 °' ' by law. The question in such a case is, whether the 
 
 persons who seek to enforce a contract know its object (s). 
 So it was held in Lanrjfon v. Hughes it), that if the agent 
 knew that his principal's intention was to break the law, 
 as, for instance, that he required the goods to convey them 
 in a smuggling transaction he could not sue on the contract. 
 Lord Justice Lindley, in Thacher y. Hardy {u), which was 
 an action for differences due on gambling transactions 
 on the Stock Exchange, discusses the right of an agent to 
 an indemnit3^ He first says : " On general principles an 
 agent is entitled to an indemnity from his principal against 
 liabilities incurred by the agent in executing the orders of 
 his princijial unless those orders are (1) illegal ; or (2) un- 
 less the liabilities are incurred in respect of some illegal 
 conduct; or (3) by reason of his default." He then dis- 
 cusses whether gaming and wagering are illegal, and says 
 if they were he would be of opinion that the illegality of 
 the transactions in which the plaintiff and defendant were 
 engaged would have tainted, as between themselves, what- 
 ever had been done by the agent in furtherance of such 
 
 {q) Daiis 4- Co. V. Howard (1890), («) Laiigton v. Hughes (1813), 1 
 
 24 Q. B. D. G91. M. & Sel. 593. 
 
 (>•) Smiih V. Rapiolds (1892), 66 (0 Ubi .supra. 
 
 L. T. 808; and (1893), 9 Times, («) (1«79), 4 Q. B. D. 685. 
 
 494.
 
 INDEMNITY. 177 
 
 designs, and would preclude him from claiming in any 
 Court of law any indemnity in respect of them. 
 
 Then, in answer to the argument that a contract by the Otherwise if 
 agent which was void could not be made the foundation of ^^^17 void. 
 an implied promise to indemnify. Lord Justice Lindley 
 says : "It appears to me sufficient to say that an obliga- 
 tion to indemnify is created whenever one person employs 
 another to do a lawful act which exposes him to liability," 
 and he held, therefore, that as the contract the agent was 
 emj)loyed to carry out was only an unenforceable and not 
 an illegal one, the agent was entitled to be indemnified. 
 In Read v. Anderson (r), the plaintiff, the agent, was under 
 no legal liability to pay, but at the same time he would 
 have been ruined in his business as a bookmaker if he did 
 not pay the debts, and the Court held that the principal 
 must be considered to have impliedly contracted to in- 
 demnify him from the consequences which would ensue in 
 the ordinary course of the agent's business of making bets 
 for him ; i.e., that the agent would have to j)ay them or be 
 turned out of Tattersall's. In other words, that the 
 principal was liable to indemnify his agent, not only 
 against the legal liabilities which resulted from that 
 agency, but the unpleasant consequences resulting from 
 the carrying out his instructions, if they were not foreseen 
 when making the contract and provided for in the re- 
 muneration. In Thaclcer v. Havdij, as Lord Justice Brett 
 pointed out, the agent was under a legal liability to the 
 third party to pay. 
 
 By the Gaming Act, 1892, which was passed on the No action for 
 20th May, 1892 (.r), '■'• Any promke, express or implied, !^amin^^TOn^ 
 to pay any person any sum of money paid by him under tract can be 
 or in respect of any contract or agreement rendered null 
 and void by the 8 ^^ 9 Victoria, chapter 9, or to pay 
 any sum of money by way of commission, fee, reward, or 
 
 (r) (1884), 13 Q. B. D. 779. {x) 55 Vict. c. 9. 
 
 W. N
 
 gaming. 
 
 178 PRINCIPAL AND AGENT. 
 
 othcndse in respect of any such conireict, or of tiny 
 services in relation thereto or in connection thereivith, shall 
 he null and void, and no action shall be brought or main- 
 tained to recover any such sum of moneyP The 8th 
 section of the 8 & 9 Yict. c. 109, enacts that all contracts 
 or agreements, whether by parole or in writing, by way of 
 gaming or wagering shall be null and yoid. It would 
 therefore seem that though the principles laid down in 
 Thacher v. Hardy and Read v. Anderson are not impugned, 
 yet so far as they apply to gaming or wagering, whether 
 on the Stock Exchange or on horse racing, they are no 
 longer law. 
 No indemnity In Tatam V. Beevc {y), which was decided since the Act, 
 mentln re- ^^® principal wrote to his agent the following letter : — 
 spect of '< Dear Mr. Tatam, — Kindly settle the enclosed account 
 
 for me as I don't know where to catch all the men, and I 
 have to catch an early train to Henley. Yours truly, 
 H. Beeve." The account inclosed purported to show that 
 Mr. Reeve was indebted to four people to the amount of 
 148/., but not how the debts arose. The agent said that 
 he paid them simply on the principal's request contained 
 in the letter, and that they were not in respect of bets 
 made by him on behalf of his principal. On these facts a 
 Divisional Court, composed of Lord Coleridge and Mr. 
 Justice Wills, held that the agent was not entitled to an 
 indemnity. Lord Coleridge, in giving judgment, said : 
 "All the sums of money were, as a matter of fact, due for 
 bets which the defendant had made and lost. It was 
 argued that they were not paid in respect of bets within 
 the meaning of the Act of Parliament. I cannot feel any 
 doubt or licsitation in coming to the conclusion that they 
 were paid ' in respect of a contract made null and void by 
 8 & 9 Yict. c. 109,' and I agree that they were not paid 
 ' under ' such a contract or agreement because there was 
 
 (y) (1893) 1 Q. B. 44.
 
 INDEMNITY. 170 
 
 no contract of betting or gaming between the plaintiff 
 and tlio defendant, but the money was paid in respect of 
 gaming debts whieli the defendant owed to the persons to 
 whom the plaintiff paid it, and it was paid in order to 
 discharge those debts. Except that the defendant owed 
 the money to those persons he would not have given the 
 plaintiff the order to pay it ; how can it be said it was not 
 paid in respect of those debts ? I decide this case with less 
 hesitation that I think the plaintiff was not an ignorant 
 person in the transaction." Mr. Justice Wills, in giving 
 judgment, said : " The Act was passed with the express 
 purpose of getting rid of the decision in Read v. Ander- 
 son" [z). The Act, however, has been held not to be retro- 
 spective {((). 
 
 Where the betting agent has received money for the 
 principal in respect of a bet, he must account for it to him, 
 and the Gaming Act is no defence {b) . 
 
 (z) Ubi supra. [b) Be Mattos\. Benjamin {l^'^i), 
 
 (r?) Ju»y(<v.Zp6', (1893)1Q.B.41. 10 Times, 221. 
 
 n2
 
 180 
 
 PRINCIPAL AND AGENT. 
 
 CHAPTER XII. 
 
 LIEN AND STOPPAGE IN TRANSITU. 
 
 Particular 
 lien. 
 
 General lien. 
 
 The third right wliicli the agent has against his prin- 
 cipal is the right to a lien. A lien is the right in one 
 man to retain that which is in his possession, belonging to 
 another, till certain demands of his, the person in posses- 
 sion, are satisfied {a). In the present chapter the cases 
 are discussed in which this right of retainer arises. There 
 are two kinds of liens ; a general lien and a particular 
 lien. A particular lien is a right to retainer of a thing for 
 some charge or claim growing out of, or connected with, 
 that identical thing. The claim may arise for labour 
 expended, or by express contract, on an advance on a 
 particular account. 
 
 A general lien gives a right to retain a thing, not only 
 for such charges and claims, but also for a general balance 
 of accounts between the parties in respect to other dealings 
 of a like nature. A general lien arises either by express 
 contract or by custom of trade. 
 
 Factors {b), bankers (c), insurance brokers (c/), stock- 
 brokers (e), packers (/), and wharfingers («/) have a general 
 lien on their principal's property ; a broker has only a 
 special or particular lien (h) . 
 
 (a) Ilamtnond v. liarclay (1802), 
 2 EaHt, 226. 
 
 {!,) Walker v. Birch (1795), 6 
 T. K. 2.08. 
 
 {(-) lirandao v. Barnctt (1846), 3 
 
 C. «. 6:n. 
 
 [d) Westwo'jd V. BcU (1816), 4 
 Cunip. 348. 
 
 {c) Jones V. Feppercorn (1859), 28 
 L. J. Ch. 158. 
 
 ( /■) lie Witt, Ex parte Shubrook 
 (187G), 2 Ch. Div. 489. 
 
 {(/) Kayhr v. Mangles (1794), 1 
 Esp. 109. 
 
 (//) Thompson v. Bcatson (1823), I 
 Biuf?. 145.
 
 LIEN AND STOPPAGE IN TRANSITU. 181 
 
 To acquire a lien there must be a sum due on a general How Hen 
 balance of account, or else money advanced on the particular ''^'^1^^''° • 
 thing detained. The lien may also be in respect of bills 
 to fall due (/), and may include interest (/•). 
 
 An agent can only claim a lien (whether it is a banker's, Lien only 
 factor's or other lien) if the goods came into his possession toodsreceh^ed 
 in that capacity. Chief Justice Jervis said (/) : " A man ^^ agent, 
 is not entitled to a lien because he happens to fill a cha- 
 racter which gives him such a right, unless he has received 
 the goods or done the act in the particular character to 
 which the right attaches." The agent must have obtained 
 possession as agent to claim a lien, so that if he has obtained 
 possession tortiously he cannot claim a lien (n/). 
 
 The lien only attaches in the property of the person for Only attaches 
 whom the work or advance is made, and property cannot ° principal s 
 be held for a debt due to another person {n) . An in- When other- 
 surance broker may, however, hold the proceeds of an ^^®®' 
 insurance for the cost of his general lien against the 
 j)erson for whom he effected the insurance, if he thought 
 that he was making the insurance on his behalf at the 
 time ; because it is such an agent's practice to make 
 advances on the credit of the policies (o). After the 
 insurance broker has notice that some other person is 
 interested in the policy, what remains over after satisfying 
 the lien belongs to the person on whose behalf the policy 
 was really effected. Liens on negotiable instruments are 
 another apparent exception to this rule, and that is only 
 because the person in possession is the owner, since the 
 property passes by delivery (^j). 
 
 As an agent's lien is a possessory lien, he cannot have a Lien depends 
 lien except when he is in possession actually or construe- °^ possession. 
 
 (j) Montaarue on Liens, 19; Ham- W. 15. 
 moiid V. Barclay (1802), 2 East, 22G. («) Turnery. Beanc (1849), 3 Ex. 
 
 (A-) Exp. Kensington (1835), 1 p. 838. 
 Deac. 58. («) Mann v. Forrester (1814), 4 
 
 (/) Lixon V. Sianjicld (1850), 10 Camp. 60. 
 C. B. 398. [p) Brandao v. Barnett (1846), 3 
 
 (w) Bruce v. Wait (1837), 3 M. & C. B. 519.
 
 182 
 
 PRINCIPAL AND AGENT. 
 
 If agent 
 agrees to apply 
 proceeds in 
 particular 
 way, he can- 
 not set up 
 lien. 
 
 Lien cannot 
 be claimed 
 ■where goods 
 entrusted for 
 custody oiily. 
 
 When lien 
 can be 
 realized. 
 
 tively {q) . It has been held, in Bryant v. Nix^ that where a 
 a person advances money on particular goods, and those 
 goods have been appropriated to him, the property in them 
 has passed to him, and he can maintain an action for 
 trover (/•). This case is referred to in text-books as showing 
 that under certain circumstances possession is not neces- 
 sary to have a lien ; but it appears that the transaction was 
 rather in the nature of a purchase or pledge than a lien. 
 
 If the agent, however, accepts possession with express 
 directions to apply the property in a particular way he 
 cannot set up a lien in opposition to those directions, only 
 what remains after answering the particular directions can 
 become subject to the lien (s). A lien is good although 
 the claim for which it is held is barred by the Statute of 
 Limitations if). 
 
 If a document has been left merely for a particular 
 purpose for safe custody and not as security in the hands 
 of an agent, he cannot claim a lien on it for advances {ii)^ 
 nor if he has obtained possession for a particular pur- 
 pose {x). 
 
 When the goods are deposited as a pledge to secure an 
 advance, the factor or other agent seems to have a right to 
 realize if the debt is not paid (y) ; with this exception, the 
 only way the lien can be enforced is to retain possession ; 
 for, although advances made by a factor confer a lien on the 
 goods in his favour, they do not create a pledge {z) . If a 
 factor sells, as he can under the powers in the Factors 
 Act, to a person who does not know that he has no authority 
 to sell, he confers a good title, but he is liable to an 
 
 [q) Uutton V. Bragg (1816), 7 
 Taunt. 15. 
 
 (r) Brgans v. Nix (1839), 4 M. & 
 W. 775. See, also, l-kans v. 
 Nichols (1841), 4 Scott, N. R. 43. 
 
 («) Frith V. Forbes (1862), 32 L. J. 
 Ch. 10. 
 
 (0 Madden v. Kempstcr (1807), 1 
 Camp. 12; Spcarsv. Ilartlci/ (1800), 
 3 Esp. 81. 
 
 {u) 3Ii<ir V. Fleming (1822), D. & 
 R. N. P. C. 29. 
 
 (.»•) Burn V. Bone (1817), 2 Stark. 
 272. 
 
 (y) Donald \. Sxclding (1866), 
 L. "R. 1 Q. B. 585 ; llalliday v. 
 Ifohiaic (18GS), L. R. 3 Ex. 299, at 
 p. ;i02. 
 
 [z) See Smith's Mercantile La"w, 
 10th ed. p. 126.
 
 LIEN AND STOPPAGE IN TRANSITU. 183 
 
 action for breacli of liis authority {(t) . It has been held When factor 
 that a factor, although his principal is indebted to him ^'^^ ^^ ' 
 and has made default in repaying those advances, has no 
 right to sell, though he does so in the exercise of a sound 
 discretion (r^r). Mr. Eussell(6) points out that though a 
 factor who is agent for sale may sell and thus realize his 
 lien, as he has a lien on the proceeds, a factor who is agent 
 to purchase cannot do so unless there were some special 
 custom allowing him, such as was proved in one case where 
 the factor proved a custom that, if the principal became 
 bankrupt before the time for taking delivery came, the 
 agent was entitled to sell ((;) . 
 
 As the hen depends on possession, if the agent gives up Lien lost with 
 possession either to the princij)al personally or to his P^^^^^*'^^^- 
 agent {d), it is lost. If he pledges the goods tortiously, 
 the owner's riglit to possession revives, and he may 
 maintain an action of trover for them (c). If the principal, Exception. 
 however, gets the goods back by fraud, the lieu is not 
 lost(/). 
 
 As has been pointed out, a lien is destroyed if the 
 person entitled to it gives up his right to the possession of 
 goods, and this is so even if the only way he has given 
 up possession is by having them taken in execution at 
 his own suit and sold to him. Chief Justice Best said : 
 " If another person had sued out execution, the lien might 
 have been insisted upon, but when the person claiming the 
 lien himself calls upon the sheriff to sell, he sets up no 
 title to the lien, for, in order to sell, the sheriff must have 
 had possession {g) , but after he had possession from Messer 
 (the agent), and with his assent, Messer's subsequent 
 
 (ff) Smart v. Sandars (1848), 5 {e) Scott v. Neicington (1833), 1 
 
 C. B. 895. M. ife Rob. 252. 
 
 (A) Russell on Mercantile Agency, (/) Wallace y. Woodgate (1824), 
 
 172. IC. &P. 575. 
 
 (c) Lieuard v. Dressier (1864), 3 (g) Fcr C. J. Best, in J.^obs v. 
 
 F. & F. 212. Latour (1828), 5 Bing. 130, 
 
 {d) Sweet v. Pyw (1800), 1 East, 4.
 
 184 
 
 PRINCIPAL AND AGENT. 
 
 Lien lost by 
 agent setting 
 up inconsis- 
 tent claim. 
 
 Lien revived 
 by re-posses- 
 sion. 
 
 Lost by tak- 
 ing security. 
 
 Auctioneers' 
 lien. 
 
 possession must liave been acquired under the sale and not 
 by vii'tue of his lien." 
 
 A lien will be lost if the person having a right to it sets 
 up a claim totally inconsistent with it, such as denying the 
 plaintiff's title to the goods at all {//) ; but if a lien is 
 claimed on two grounds, only one of which is tenable, the 
 untenable claim does not make it unnecessary to tender the 
 amount due on the good claim (/). If a lien is lost by 
 losing possession, if re-possession is given, it will revive {J). 
 ■^Tien security is taken for the amount of the lien, the lien 
 is gone {k) ; but if possession is kept and the security turns 
 out to be bad, the lien revives (/). 
 
 Auctioneers have much larger rights than ordinary 
 agents. The actual delivery of goods is intrusted to them, 
 and they have a lien on goods for the charges, and their 
 possession of goods is complete till delivery (w?). "Where 
 the goods are paid for by the buyer, the lien is transferred 
 from the goods on to the purchase money, for he has a lien 
 as well on the proceeds of the sale as the thing sold {u). 
 An auctioneer has a possession coupled with an interest in 
 goods which he is employed to sell, not a bare custody like 
 a servant or shopman. There is no difference whether the 
 sale be on the premises of the owner or in a public auction 
 room, for on the premises of the owner an actual pos- 
 session is given to auctioneer and his servants by the 
 owner, not a mere authority to sell. An auctioneer has 
 also a special property in him, with a lien for the charges 
 of the sale, the commission, and the auction duty, which 
 he is bound to pay (o) . 
 
 (/j) Dirls V. Eichards (1842), 5 
 Scott, N. R. 534. 
 
 ((■) Scarfcv. Morgan (1838), 4 M. 
 & W. 270. 
 
 (/) Levy V. Barnard (1818), 8 
 Taunt. 149. 
 
 (/r) Jlcwison v. GuUirie (1836), 3 
 Scott, 298. 
 
 (0 Stevenson v. BlaMoelc (1813), 
 1 M. & Sel. 53.5. Sec, also, The 
 ^imlah (1852), 15 Jur. 865. 
 
 [m) Woolfe V. Home (1877), 2 Q. 
 B. D. 355. 
 
 (w) Jiubiiison V. Eitttcr (1855), 4 
 El. & Bl. 954. 
 
 (o) inUiams v. milhiffton (1818), 
 1 H. Bl. 81.
 
 LIEN AND STOPPAGE IN TRANSITU. 185 
 
 Bankers most undoubtedly have a general lien on all Bankers' lien 
 securities deposited with tliem as bankers by a customer ijgn ° 
 unless tbere be an express contract or circumstances that 
 show an implied contract inconsistent with lien (|^), such 
 as treating particular securities as only deposited to secure 
 certain overdrafts and accounts {q), or taking a memo- 
 randum from a customer expressly pledging the title 
 deeds of only one of two properties, the title deeds to both 
 of which were deposited simultaneously. But between 
 banker and customer, whatever number of accounts are 
 kept in the books, the whole is really but one account, and 
 it is not open to the customer in the absence of a special 
 contract to say that securities which he dejjosits are only 
 applicable to one account. It lies on him to make out 
 that there has been either one course of dealing or one 
 special agreement to exclude the general rule that a banker 
 has a general lien (r). Bankers have, however, no lien 
 on plate, boxes, &c., committed to their charge for safe 
 custody («) . 
 
 Bankers have also no lien if the projoerty is trust pro- -No lien on 
 perty, and deposited in breach of trust to secure a balance, ^''^.* property 
 although they have had no notice of the trust ; but the pledged. 
 trust is preferred (/"), unless the cestui que trust has been 
 guilty of such negligence that he is estopped from com- 
 plaining (^^). A lien similarly attaches to the property 
 of a third person if he has carelessly allowed it to get 
 into the hands of a person w^ho could deal with it as his 
 own as, e.g., when the owner of scrip transferable by 
 delivery intrusts it to his broker, who deposits it as secu- 
 rity for an overdraft of his own (r). 
 
 {p) Brandao v. Barnett (1846), 3 Bank Claim (1872), 8 Cli. 41. 
 
 C. B. 531 ; approved London Char- (s) Leese v. Martin (1874), 17 Eq. 
 
 tered Bank of Australia v. White 224. 
 
 (1879), 4 Ap. Cas. 413, at p. 422 ; {t) Manningfordx. Tolcman{\US), 
 
 Yandersce v. Willis (1789), 3 Bro. 1 Col. 670 ; Murray v. Binkett 
 
 C. C. 21. (1846), 12 C. &F. 764. 
 
 {q) London Chartered Bank of [a) Stackhouse\.Countess of Jersey 
 
 Australia v. White (1879), ubi sup. (1861), 30 L. J. Ch. 421. 
 
 (>•) In re European Bank, Agra (r) Goodwin v. Roharts (1876), 1
 
 186 
 
 PRINCIPAL AND AGENT, 
 
 Solicitor's 
 two different 
 liens. 
 
 Only arises 
 on property 
 received qua 
 solicitor. 
 
 Loudon 
 agent's lien. 
 
 A banker cannot realize his lien by sale (.r) unless the 
 property or deeds were deposited with him by way of 
 pledge. 
 
 A solicitor has two different liens : one for costs incurred 
 in a suit for which he has a charge on the fund recovered. 
 This lien he can actively enforce. The other lien is the 
 ordinary common law lien on documents and papers of his 
 client for his general costs, and he can only keep this lien 
 by retaining them. The first lien is a special lien, and the 
 second a general lien {//). The sohcitor's special lien on 
 property recovered or preserved is regulated by the 28th 
 section of the Solicitors Act, 1860, which allows the Coui't 
 or judge before whom the action or proceeding has come 
 to declare the solicitor entitled to a charge, the effect of 
 which is to charge the property and give the solicitor a 
 right to payment out of it. The Court can order the 
 money to be raised and paid out of the property in any 
 way it thinks best. The solicitor who actually is the 
 solicitor in the action at the time when judgment is 
 recovered has the first charge, and then any solicitor who 
 may have acted at first, but was afterwards discharged (s) . 
 The general lien which a solicitor has is only in respect of 
 papers, &c., he has received in that capacity (a). If there 
 is a dispute as to what capacity he received the documents 
 in he will not be compelled to give them up without secu- 
 rity for his lien being given {b). If the solicitor gets deeds 
 from third parties without the authority of his client he 
 has no lien on them (c). 
 
 As to London agent's lien. As against the country 
 attorney the agent's lien is general ; as against his client 
 it is particular. In other words, as between the country 
 
 Ap. Cas. 47G ; Ritmhall v. Mclro- 
 polUan Bank (1877), 2 Q. B. D. 191. 
 
 {x) Donald v. Stickling (18GG), 
 L. R. 1 Q. B. 585. 
 
 (y) Jioz'jH V. Jiolland (1839), 4 M. 
 & Cr. 364. 
 
 (=) In re Wadsworth (1885), 29 
 
 Ch. Div. 517. 
 
 {a) Champernown v. Scott (1821), 
 6 Mad. 93. 
 
 {h) Kcunnqton Local Board y, 
 Eldrldgc (1879), 12 C. D. 349. 
 
 ((■) Uibson V. May (1853), 4 De G. 
 M. & G. 612.
 
 LllON AND STOri'AGE IX TRANSITr. 187 
 
 attorney and the agent the latter's lien extends to all costs 
 for all agency business and disbursements due to him from 
 the former, but as between the client and the agent tlie 
 latter's lien only extends to the costs of the particular 
 suit(^/). If a party discharges his solicitor by his own Change of 
 arbitrary act he cannot obtain from that solicitor even an gggc^ on lien 
 inspection of papers in his hands, much less delivery of 
 them up for the purposes of the cause, without paying the 
 solicitor's bill. If, on the other hand, the solicitor dis- 
 charges the client, it is unquestionably clear that the client 
 has a right to have inspection of the pajiers to an extent 
 necessary to enable him to carry on the action with the 
 same ease and celerity, to use Lord Elclon's expression in 
 CoJcgvam v. Manic ij (c), as if the solicitor had not dis- 
 charged him (/) ; and the solicitor is bound to hand over 
 the papers to the new solicitor on an undertaking as to lien 
 and re-delivery after the hearing. Sometimes an under- 
 taking to prosecute the action diligently is required {(/). 
 
 The master of a ship has a maritime lien. for wages and Master of 
 disbursements. A maritime lien does not depend, like a ^^"P> "maritime 
 lien at common law, upon possession. It is the right 
 to enforce by action in the Admiralty Com-ts a claim 
 against the ship and its freight. A maritime lien travels 
 with the thing, into whosoever possession it may come (//). 
 
 The 191st section of the Merchant Shipping Act, ISol, 
 gives the master the same remedies for wages as a seaman. 
 It is stated in Williams and Bruce's Admiralty Practice (/), 
 that the 191st section gives the master very little claim 
 against the ship, because a master's wages are always 
 fixed by special contract, and in such cases a seaman had 
 no lien on the ship, and that the right to a lien is solely 
 
 (d) Lawrence v, Fletcher (1879), {g) Cauev. Martin {\^iO),'l'&cn.Y. 
 12 C. D. 858. 684. 
 
 (e) (1823), T. & R. 400. {li) The Bold Bucckiigh (1850), 7 
 (/) Fer Wigrani, V.-C. in Moore, P. C. 267. 
 
 Griffiths V. Griffiths (1843\ 12 L. J. (;) (1886), 2nd edit. 
 
 Ch. 397.
 
 188 
 
 PRINCIPAL AND AGENT. 
 
 Disburse- by Virtue of the lOtli and 35th sections of the Admiralty 
 Court Act, 1861. The House of Lords having decided (/.), 
 in opposition to earlier cases, that a master had no lien 
 for disbursements, the effect of the decision was altered 
 by an Act wliich gives the master " the same rights, liens, 
 and remedies for the recovery of disbursements properly 
 made by him on account of the ship, and for liabilities 
 properly incurred by him on account of the ship, as a 
 master of a ship now has for the recovery of his wages" (/). 
 
 ^topparjc in Transitu. 
 
 When an agent purchases goods for the principal, and 
 is himself liable for the price, he has the right, if he has 
 not been paid for them by the principal, and so long as his 
 lien is unsatisfied on them, to stop the goods while in 
 transit to his principal, just as if he were an unpaid 
 vendor (w^). This right exists until the goods have come 
 into the hands of the principal, or of some one who ware- 
 houses them for him when the fran^iius is over (;?). If the 
 agent is indebted to the principal, and consigns goods to 
 him in payment of the debt, he cannot stop while in 
 transitu (o). No particular form or mode of stoppage is 
 necessary, and the vendor is justified in getting back his 
 goods by any means not criminal. All that is required is 
 some act or declaration of the vendor countermanding 
 delivery, the usual mode being simjole notice to the earner. 
 If, after the vendor has delivered the goods out of his own 
 possession, and put them in the hands of a carrier for de- 
 livery, he discovers the buyer is insolvent, he may retake 
 possession, if he can, before they reach the buyer's hands. 
 
 It is enough to claim tlio goods from the carrier or 
 any person in possession, whose possession is not the con- 
 
 (/•) JI<imiH<i» V. lUdrr, The Sara ()i) irciiUroyth v. Outhwaite 
 
 (1889), 14 Ap. CiiH. 209. (1812), 10 M. & W. 436. 
 
 [1) h'l & .0;j Vict. c. 4G, H. 1. [u) Bcctive v. Jewell (1814), 4 
 
 \m) Fcise v. Wray (1802), 3 East, Camp. 31. 
 93.
 
 LIEN AND STOPPAGE IN TRANSITU. 189 
 
 signee's {p). If the goods are delivered by mistake after Delivery by- 
 notice to the carrier, the consignee gets no title or property 
 in them {q), for the sale is rescinded, and the vendor may 
 bring trover for them against the person in possession. 
 The notice must be given in sufficient time to allow the 
 carrier to act upon it. For example, it is not sufficient to 
 give a notice to a carrier in America, if he cannot, by due 
 diligence, communicate it in time to his servants who have 
 the actual custody, so as to prevent them handing the 
 goods over (>■) . 
 
 Lord Ellenborough says that a mere surety has not this Siirety no 
 right («) ; so that if the agent merely gives his name as Yiftran'sUti!^^ 
 security, he will not have the remedy ; but Sir Greorge 
 Jessel held that the agent can, by paying the person from 
 whom he bought on behalf of his principal, put himself in • 
 that person's shoes, and acquire his rights (f). 
 
 The authorities show that this right of stoppage in 
 transitu exists until the goods are actually got home into 
 the hands of the purchaser, or of someone wlio receives 
 them in the character of his servant or agent. When the 
 vendor knows that he is delivering the goods to someone 
 as carrier, and who is receiving them in that character, he 
 delivers them with the implied right, which has been esta- 
 blished by law, of stopping them so long as they remain 
 in the possession of the carrier as carrier [u). 
 
 When goods remain in the custody of the carrier, the 
 question sometimes arises as to the capacity in which he 
 holds them, whether he holds them for the agent or the 
 principal {x) ; and even when they are in the hands of the 
 
 {p) Kortheij v. Field (1798), 2 {t) See Imperial Bank v. London 
 
 Esp. 613. and St. Katharine Docks Co. (1877), 
 
 (r?) Litt V. Coidey (1816), 7 5 C. D. 195; and 19 & 20 Vict. 
 
 Taunt. 169. c. 97, s. 5. 
 
 (r) IFhitckcad y. Anderson {I8i2), (u) Eosevear v. China Clay Co. 
 
 9M. &W. 518. (1879), 11 C. D. 560. 
 
 (s) Slffkin V. Wray (1805), 6 East, {x) Whiteheads. Anderson (1842), 
 
 371. 9 M. & W. 519, at p. 529 ; Edwards 
 
 V. Brewer (1837), 2 M. & W. 375.
 
 190 
 
 PRIXCIPAL AND AGENT. 
 
 principal, a question may arise as to the capacity in which 
 he took them, as a vendee knowing himself in difficulties 
 may refuse to take them except on behaK of the agent (y) . 
 In the same way, if the goods are not appropriated, the 
 agent may stop in transitu (s). 
 Wiat notice To make a notice of stoppage in transitu effective, it 
 to^stop o-^o^s! Diust he given to the person actually in custody of the 
 goods, or, if given to that person's employer, it must be 
 given at such time and under such circumstances that the 
 employer, by the exercise of reasonable diligence, may 
 communicate it to the servant in time to prevent delivery 
 to the consignee ; and Baron Parke said, where he was 
 asked to hold a notice sufficient given to a shipowner 
 when the goods were at sea, that to do so would be the 
 height of injustice, for it would render the employer liable 
 in trover for a subsequent delivery by his servants to the 
 vendee, when it was impossible for him, owing to the 
 distance and want of means of communication, to prevent 
 delivery {a). 
 How right of This right of the agent to stop the goods while in transitu 
 ^rc^^itT^Q. can be defeated in one way only, and that is, by the 
 feated. principal transferring the documents of title representing 
 
 the goods to a third person for value. If the transfer 
 is only by way of pledge, then the right of stoppage 
 in transitu remains subject to the pledge, and when it 
 is paid off, the person entitled to the right of stoppage 
 and exercising it stands in exactly the same position as to 
 everybody else as if there had been no security, and no 
 pledge, and no indorsement [b) . 
 
 Except under the circumstances mentioned above, agents 
 have no right of stoppage in transitu, but only a lien, which 
 is lost when they cease to have possession (r). 
 
 (y) James v. Griffin (1837), 2 M. & ticad v. A)iderso», ubi supra. 
 W. G21. (4) I^cmp T. Falk {ISSl), 7 Ap. 
 
 (r) Swamcickx. Sothern (1839), 9 Cas. p. 577. 
 A. & E. 895. {c) Einloch v. Craig (1789), 4 Bro. 
 
 (a) Per Baron Parke, in White- P. C. 47 ; 3 T. R. 119, 783.
 
 LIEN AXD STOPPAGE IN TRANSITU. 191 
 
 As to the lien of a sub-agent, wliere no privitj exists Sub-agent's 
 between the sub-agent and the principal, he has only a lien 
 for his disbursements {d), and not the general lien which 
 his business might give him. If the agent with whom the 
 sub-agent is dealing is a factor, and the sub-agent does 
 not know of any principal, he has the ordinary rights of a 
 person dealing with a factor under the Factors Act. He 
 has the lien of his kind of agency, whether that involves 
 a general or special lien, and he can set up against the 
 principal the lien he has against the agent {c) . A sub- 
 agent has no general lien upon the property of the prin- 
 cipal on account of any balance due to him from the 
 immediate agent who employs him, when he knows, or 
 has reason to believe, that the latter is acting for another 
 person at the time of his sub-agency (/) . 
 
 (d) LaiiyoH v. Blancliard {ISll), (/) Story on Agency, § 389 ; and 
 2 Camp. 597. see 3Iaans v. Henderson (1801), 1 
 
 [e) Weshvood v. Bell (1815), 4 East, 334 ; Man y. Skijher {im2), 
 Camp. 349. 2 East, 522.
 
 192 PRINCIPAL AND AGENT. 
 
 terminable 
 at will. 
 
 CHAPTER XIII. 
 
 TERMINATION OF THE AGENCY. 
 
 Agency ter- The agency may come to an end in two different ways — 
 mmated— either by act of the parties or by act of law. 
 
 (1) by act of -^ . 
 
 party ; (2) by The agency can terminate by act of the parties, as 
 ac o AW. follows : the principal may dismiss the agent, the agent 
 may renounce the agency, or else the agency terminate by 
 mutual agreement. The agency terminates by act of law 
 when the capacity of either the principal or the agency 
 terminates, as by the death, bankruptcy, insanity, and also 
 by the completion of the object of the agency. 
 Agency The general rule is, that the principal can revoke his 
 
 authority at any time, and so terminate the agency, unless 
 there is some contract express or implied to the contrary {c<). 
 The fact that the principal has given the agent authority 
 for a definite time, does not prevent him revoking the 
 authority before the time. Thus, it was held that the fact 
 that a principal had authorized an agent to collect debts 
 for him at a commission for five years, did not prevent him 
 from revoking the authority at any time, nor does an ap- 
 pointment of an agent for a similar period as managing 
 owner of a sliip prevent the principal from revoking such 
 appointment (b) . 
 Authority can Thus, wliore a principal authorized a broker to sell some 
 bo revoked at |jrimstone, and the agent in consequence arranged to 
 
 fore oxerciaed. 
 
 (n) Sniitli'H Mercantile Law, {!>) Doward t^" Co. v. IFiUiams ^• 
 
 10th ed. p. 1;)9 ; Story on Agency, Co. (1889), G Times, 316. See also 
 
 ^ 403; Kainj v. Lowsun (188o), 2 Taskcr \. Shepherd, (1861) 5 H. & 
 
 Times, l'J9. N. 575.
 
 TERMINATION OF THE AGENCY. 103 
 
 sell it to a third party, but before tbe sale note bad been 
 made out the principal countermanded the authority, Lord 
 Ellenborough held, that no action lay for breach of con- 
 tract by the purchaser, for the authority of the broker 
 could be countermanded at any time before the memo- 
 randum of sale had been signed (<?). In Warwick v. 
 Slade{d) the same learned judge held that, until a bind- 
 ing contract had been entered into, the authority might 
 be revoked by the principal. There a slip had been made 
 out by underwriters on the instructions of the agent, but 
 the principal repudiated the action of the agent before 
 the stamped policy had been made out or signed. The 
 agent thought himself bound in honour to go on with the 
 insurance under the cu-cumstance, and paid the premiums, 
 and then brought an action to recover the money so 
 paid, but was nonsuited on the ground that the authority 
 had been revoked before he had made a binding contract. 
 Lord Ellenborough laid down the rule broadly thus : When 
 the authority is not coupled with any interest it is re- 
 vocable, unless the agent has done some act which pre- 
 cludes the revocation of the authority {e) . 
 
 Though the principal can revoke the agency at any Principal may- 
 time before there is a binding contract, and is not com- pg^satg a°<^nt 
 pelled to allow the agent to go on with his work so as for termi- 
 to earn his commission, if it appears that the revocation pioyment." 
 of the authority is a trick to deprive the agent of his 
 commission after the employer has derived the advantage 
 of his services, the agent has a right to sue for damages, 
 though not for commission (/). 
 
 It has been held that the employment of a commission 
 agent can be determined on either side without notice {(/) ; 
 
 (c) Farmer v. Robinson (1805), 2 (e) Bristoiv v. Taylor (1817), 2 
 
 Camp. 339, note. Stark. 50. 
 
 ((^) (1811), 3 Camp. 127. See (/) iVo«/t v.Oeww (1885), 2 Times, 
 
 also The Vindobala (1889), 14 P. D. 364. 
 
 50 ; 6 Asp. Mar. Cas. 376. (jg) Alexander v. Davis (1885), 2 
 
 Times, 142. 
 
 w. o
 
 194 
 
 PRINCIPAL AND AGENT. 
 
 Notice to 
 agent of revo- 
 cation. 
 
 Authority 
 partly exer- 
 cised. 
 
 Public agent. 
 
 Time from 
 which revoca- 
 tion operates. 
 
 As between 
 principal and 
 agent. 
 
 and in Henry v. Lowson ( r/), the rule is laid down broadly 
 that a contract of agency may be revoked at the will of 
 the principal. 
 
 It is the duty of the principal to give the agent notice 
 of the revocation of his authority, and if he does not do so, 
 the agent is entitled to assume that his authority is not 
 revoked [h). 
 
 When, however, the authority has, in fact, been exer- 
 cised, it cannot be revoked in respect of the acts done in 
 exercise of it, and they are binding on the principal, for 
 the interests of others are affected. If the authority has 
 been in part executed, and the authority admits of sever- 
 ance, it can be revoked as to the unexecuted part, but not 
 as to that executed. But if the authority is disseverable, 
 and damage may happen to the agent through its revoca- 
 tion, the principal cannot revoke the authority without 
 indemnifying the agent. When the authority of the 
 agent is revoked the authority of the sub-agent termi- 
 nates also, as he is only acting as substitute for the 
 agent (/). 
 
 In the case of a public agent who is acting as deputy 
 or sub-agent, it is generally an-anged that his authority 
 does not cease at the same time as the agent's. A 
 mate's authority, too, does not terminate by the dismissal 
 of the captain or termination of his authority, although he 
 is often ajipointed by him and acts as his deputy. 
 
 The revocation of the authority of the agent by 
 dismissal takes place from the time the agent knows of it 
 as between himself and his employer ; except in the case 
 of his having an interest (of which presently) . Mr. Justice 
 BuUer, referring to a question put in argument in Salte 
 
 iff) (1885), 2 Times, 199. 
 (h) (1884), In re Oriental Bank, 
 Ex parte Guillemin, 28 Ch. D. 664, 
 
 at p. C40. 
 
 (i ) Bristow v. Taylor, ubi supra.
 
 TERMINATION OF THE AGENCY. lOj 
 
 V. Field (j), as to whetlier tliose acts done by an agent before 
 he knows of the revocation of his authority are good, says, 
 " I think that the principal in such a case could not avoid 
 the acts of his agent done hojid fide if they were to his dis- 
 advantage ; but he might consent to avoid those for his 
 benefit." 
 
 When the authority is revoked by act of party, such As between 
 revocation only affects third parties from the time the third party, 
 revocation is known to them, and not before. Chief 
 Justice Holt, in deciding a case where an agent who 
 had authority to draw bills drew several after he was 
 dismissed, said, *' If he drew bills in so little time after 
 that the world cannot take notice of his being out of 
 service, or if he were a long time out of his service, but 
 that was kept so secret that the world cannot take notice 
 of it, the bill in those cases would bind the master "(/.■) . 
 For the principal is estopped from denying the authority 
 •where he has led third parties to believe the agent had 
 authority, and has not informed them of the revoca- 
 tion (/). 
 
 The authority may be revoked by the principal either How autho- 
 expressly or impliedly, as, for instance, where he appoints ^^*^ ^^^^ ^ ' 
 another person to do the same thing instead of the agent. 
 This presumption, of course, only arises where there is a 
 necessary incompatibility in both persons acting as agents. 
 
 An agent's authority cannot be revoked by the principal When autho- 
 as it may please him : if, as the result of doing so, the agent cLble"^^^''" 
 would be exposed by law to loss or suffering {m) . The case Gambling 
 in which this principle is illustrated is no longer good law, agencies. 
 because all contracts as to gambling debts are made void {)i) ; 
 but the principle still applies to non-gambling contracts. 
 
 (/) (1793), 6 T. R. 211, at • {m) Read \. Anderson [1%U), IZ 
 
 p. 215. Q. B. D. 781. 
 
 [k) A)iomjinonsy. Harrison {\Q>%?,), («) Gaming Act, 1892 (55 Vict. 
 
 12 Mod. 346. c. 9). See Taiham v. Reeve, (1893) 
 
 {I) Hazard \. Treadwell (1721), 1 1 Q. B. 44. 
 Strange, 506. 
 
 o2
 
 196 PRINCIPAL AND AGENT. 
 
 Lord Esher, in Read v. Anderson, thought that an authority 
 should only be irrevocable in " those cases in which the 
 agent upon revocation would suffer what the law considers 
 an injury," and that social stigma should not entitle 
 the agent to sue for an indemnity ; but the Court, in Read 
 V. Anderson, held otherwise, and that case was followed (o), 
 and a principal forced to indemnify a broker against the 
 consequences (viz., being declared a defaulter) of not 
 carrying out a contract which was void because it did not 
 conform to Leeman's Act ( p) by giving the numbers, but 
 which, nevertheless, the Stock Exchange enforces. In a 
 later case, the Court of Appeal held, however, that if the 
 principal did not know of the custom of ignoring Lee- 
 man's Act on the Stock Exchange, since such a custom 
 was unreasonable, the principal was not bound to in- 
 demnify the agent against the consequences of such a 
 custom, and distinguished Seymour v. Bridge by saying 
 that in that case it was held as a fact that he knew 
 of the custom, and had authorized his agent to give 
 the go-by to the statute {q) . It seems, therefore, that 
 unless the principal knows of the unreasonable custom, 
 and authorizes the agent to conform to it, he is held to 
 bargain with the agent that he shall make a contract which 
 will be binding in law, and, if the agent does not do so, 
 the principal can revoke his authority at any time before 
 the agent has made a legal contract. The result of the 
 principles laid down in Read v. Anderson appears to be 
 that the principal's authority is irrevocable where revoking 
 it would put the agent to serious inconvenience, or ex- 
 pose him to pain and suffering. But pain and suffering 
 or loss arising to the agent from a custom which is un- 
 reasonable is not sufficient to make the authority irrevo- 
 cable, unless the agent can show that the principal knew 
 
 [o) Seymour v. Bridge (1885), 14 {r/) Fern/ v. Barneti (1885), 15 
 
 Q. B. D. 4G0. Q. 13. D. 388. Seo the judgment 
 
 (;;) 30 & 31 Vict. c. 29. of Lord Justice Bowen.
 
 TERMINATION OF THE AGENCY. 197 
 
 of the custom, and consented when he employed liim 
 to he hound hy it (/•). And it would also appear that the 
 principal is liahle to indemnify an agent against any loss 
 or suffering which would follow from not carrying out a 
 contract he had entered into, although such loss was not 
 a legal consequence. Gambling contracts are an exception 
 to this rule. 
 
 Although, in general, powers of attorney and other Authority 
 authorities are revocable, this is not so where a power of fojf dett'^ ^ 
 attorney is part of a security for money, as where a man 
 transfers a debt, and gives a power of attorney to collect it 
 in his (the creditor's) name, there it is not revocable. So, 
 where a power of attorney was given to levy a fine as part 
 of a security, it was held not revocable. This principle is 
 applicable to every case where a power of attorney is 
 necessary to effectuate any security (*■). Where an agent Authority 
 
 1-1 TxTT-i- ••li. 1 coupled with 
 
 nas been directed by iiis principal to pay money over to a interest, 
 third party and he has promised to do so to the thii'd 
 party, the authority to pay over is not revocable (^). 
 Again, where a power of attorney to sell lands is given to 
 a CREDITOR to pay his debt out of the proceeds of the sale, 
 the power is irrevocable {u) ; for the power of attorney or 
 authority is given for valuable consideration (,r). 
 
 In S/nart v. Saiidars (//), it was contended that a factor Tobeirrevo- 
 who had advanced money on goods had an irrevocable rft Hi^i^^ia^'e 
 authority to sell. Chief Justice Wilde, in holding such hcen given for 
 an authority was not irrevocable, although the agent had sideration. 
 an interest in the subject-matter, explained the rule as 
 follows : " It is said a factor for sale has an authority as 
 such (in the absence of special orders) to sell, and when he 
 afterwards comes under advances, he thereby acquires an 
 
 {)■) Blackburn v. Mason, (1893) 9 («) Gaussen v. Morton (1830), 10 
 
 Times, 286; Cookev. Eshelby (1887), B. & C. 731. 
 12 Ap. Cas. 271. {x) Bromley v. Holland (1802), 7 
 
 is) /fcr Lord Keuyon, IJ'alsh v. Ves. 3, at p. 28 ; a.iiA see Metcalfe y. 
 
 Whitcomb (1797), 2 Esp. 564. Clough (1828), 2 M. & Ry. 178. 
 
 {t) Hodgson v. Anderson (1825), (y) (1848), 5 C. B. 895-. 
 
 3 B. & Cres8. 842.
 
 198 
 
 PRI>XIPAL AND AGENT. 
 
 C. J. "Wilde's 
 definition of 
 irrevocable 
 authority, or 
 authority 
 coupled with 
 interest. 
 
 interest ; and having thus authority and an interest, the 
 authority becomes thereby in'evocable. The doctrine here 
 implied, that whenever there was in the same person an 
 authority and an interest the authority is irrevocable, is 
 not to be admitted "without qualification. In the case of 
 Ealeigh v. Afl-iiison (s), goods had been consigned to a 
 factor for sale with a limit as to price. The factor had a 
 lien on goods for advances, and the principal, in considera- 
 tion of those advances, agreed with the factor that he 
 should sell the goods at the best market prices, and realize 
 thereon against advances ; the Court held that this autho- 
 rity was revocable on the ground that there was no 
 consideration for the agreement. Now, in that case, there 
 was an authority given, and one which the principal was 
 at full hberty to give ; the party to whom it was given had 
 an interest in it, yet the authority was held to be revocable. 
 The effect of the decision was attempted in argument to 
 be eluded by referring to the circumstance that the factor 
 received the goods originally with a limit as to price of 
 sale. But we do not think that circumstance material, 
 since the limitation originally imposed was done away 
 with by the authority afterwards given to sell at the best 
 price. Such an authority requires no consideration to 
 support it. An authority is, in its nature, revocable by 
 the donor of it {Vyniorh Case (a)) ; it is only when it is 
 sought to make it irrevocable that a consideration is 
 required to give that effect." The Chief Justice then 
 quotes Lord Kenyon's judgment in Wahh v. WIntcomb (b), 
 and, after referring to some other cases, says : " The 
 result appears to be that where an agreement is entered 
 into on a sufficient consideration, whereby an authority is 
 given for the purpose of securing some benefit to the 
 donee of the authority, such an authority is irrevocable. 
 That is what is meant by an authority coupled with an 
 
 {z) (1840), 6 M. & W. G70, at p. 
 676. 
 
 {a) 8 Co. Rep. 82 a. 
 {h) (1797), 2 Esp. 665.
 
 TERMINATION OF THE AGENCY. 199 
 
 interest, and which is commonly said to be irrevocable. 
 We think this doctrine applies only to cases where the 
 authority is given for the purpose of being a security, or, 
 as Lord Kenyon expresses it, as a part of the security, not 
 to cases where the authority is given independently, and 
 the interest of the donee of the authority arises afterwards 
 
 and incidentally only The making of such an 
 
 advance (by the factor) may be a good consideration for an 
 agreement that the authority shall be no longer revocable, 
 but such an effect will not, we think, arise independently 
 of agreement." 
 
 By sect. 8 of the Conveyancing Act of 1882, which came Conveyancing 
 into effect on the 1st January, 1883, it is enacted — ^ ' """ 
 
 " (1.) If a power of attorney, given for valuable con- irrevocable 
 sideration, is in the instrument creating the power expressed authority, 
 to be irrevocable, then in favour of a purchaser — 
 
 " (i.) The power shall not be revoked at any time, 
 either by anything done by the donor of the power 
 without the concurrence of the donee of the power, 
 or by the death, marriage, lunacy, unsoundness of 
 mind, or banlo-uptcy of the donor of the power ; and 
 " (ii.) Any act done at any time by the donee of the 
 power in pursuance of the power, shall be as valid 
 as if anything done by the donor of the power, 
 without the concurrence of the donee of the power, 
 or the death, marriage, lunacy, unsoundness of 
 mind, or bankruptcy of the donor of the power, 
 had not been done or happened ; and 
 " (iii.) Neither the donee of the power nor the purchaser 
 shall at any time be prejudicially affected by notice 
 of anything done by the donor of the power with- 
 out the concurrence of the donee of the power, or 
 of the death, marriage, lunacy, unsoundness of 
 mind, or bankruptcy of the donor of the power. 
 " (2.) This section applies only to powers executed after 
 the commencement of this Act."
 
 200 PRI^'CIPAL AND AGENT. 
 
 Sect. 9. "9. — (I) If a power of attorney, whether given for 
 
 Authority valuable consideration or not, is in the instrument creating 
 
 HTCVOCS-biG 
 
 during certain the power expressed to be irrevocable for a fixed time 
 tune. therein specified not exceeding one year from the date of 
 
 the instrument, then in favour of a purchaser — 
 
 "(i.) The power shall not be revoked for and during 
 that fixed time, either by anything done by the 
 donor of the power without the concurrence of the 
 donee of the power, or by the death, marriage, 
 lunacy, unsoundness of mind, or bankruptcy of the 
 donor of the power ; and 
 " (ii.) Any act done within that fixed time by the 
 donee of the power in pursuance of the power 
 shall be as valid as if anything done by the donor 
 of the power without the concurrence of the donee 
 of the power, or the death, marriage, lunacy, 
 unsoundness of mind, or bankruptcy of the donor 
 of the power, had not been done or happened ; and 
 " (iii.) Neither the donee of the power nor the purchaser 
 shall at any time be prejudicially affected by 
 notice either during or after that fixed time of 
 anything done by the donor of the power during 
 that fixed time without the concurrence of the 
 donee of the power, or of the death, marriage, 
 lunacy, unsoundness of mind, or bankruptcy of the 
 donor of the power within that fixed time. 
 *' 2. This section applies only to powers of attorney 
 created by instruments executed after the commencement 
 of this Act." 
 Definition of By sub-s. 8 of sect. 2, " purchaser" is defined to include, 
 and purchase, unloss a contrary intention appears, a lessee or mortgagee, 
 and an intending pm^cliaser, lessee, or mortgagee, or other 
 person, who, for valuable consideration, takes or deals for 
 any property; and "purchase," unless a contrary inten- 
 tion appears, has a meaning corresponding witli that of 
 purchaser ; but sale only means a sale properly so called*
 
 TERMINATION OF THE AGENCY. 201 
 
 The agency may also determine by tlie agent refusing Agent re- 
 to act or resigning. If the agency is founded upon ^^^^^ ° ^° * 
 valuable consideration, the agent will be liable to the prin- 
 cipal for any damages that may result from such refusal. 
 In all cases he ought to give notice to the principal of his 
 intention to cease acting, if he has accepted the appoint- 
 ment as agent (c). If before the time appointed for 
 performing the contract one party gives notice to the 
 other of his intention not to perform it, he may be charged 
 in an immediate action as for a breach, and in that action 
 damages may be claimed prospectively, subject to any 
 circumstances which may operate to mitigate them (d). 
 
 The agency may determine by operation of law. The Determina- 
 
 , , o 11 o 11 • i • tion by opera- 
 
 contract oi agency may nave been periormed by expu-ation tion of law. 
 
 of the time for which it was to exist, the performance of 
 
 the object of the agency, or the determination of the 
 
 subject-matter. Thus, if a man has a coUiery, on selling 
 
 it the agency for it would, ipso facto, determine unless 
 
 there were some special provision that it should last a 
 
 certain time (c). Again, an auctioneer is an agent to sell, 
 
 and when he has sold the agency is terminated, so that 
 
 he cannot any longer represent the principal ; for, as 
 
 Lord Eldon said, he is then no longer the agent of the 
 
 seller, and cannot, therefore, negotiate terms (/). But if 
 
 a party enters into an arrangement that can only take 
 
 effect by the continuance of a certain existing state of 
 
 circumstances, there is an implied engagement on his part 
 
 that he shall do nothing of his own motion to put an end 
 
 to that state of circumstances under which the law alone 
 
 can be operative (//). Therefore, Cliief Justice Cockburn 
 
 held that where an insurance company had induced the 
 
 plaintiff to pay the debt of a Mr. Seton, on condition that 
 
 (c) story, § 476. (/) Seton v. Slade (1802), 7 Ves. 
 
 (rf) lIoch>.ter v. Be la Tour (1853), 264, at p. 276. 
 2 E. & B. 678. (r/) Per Cockburn, C. J., Stirling 
 
 (e) Modes v. Forwood (1876), v. Maitland (1864), 5 B. & S. 840. 
 I Ap. Cas. 256.
 
 202 PRINCIPAL AND AGENT. 
 
 Seton should remain their agent at Glasgow at a salary, 
 out of which the j)laintiff was to recoup his loan, that the 
 company had, by selling their business, displaced Seton as 
 theu" agent, and the plaintiff was entitled to have a return 
 of his money. 
 
 It is difficult to lay down a rule as to whether in a 
 contract it is an implied term that the agency should 
 continue when a definite term has not been fixed (Ii). 
 There must Unless there is a distinct agreement to employ the agent, 
 
 be contract to,, n i i> • ii^i iiii j p 
 
 employ ao-ent the mere tact 01 agreeing that ne sliouia be agent tor a 
 otherwise certain number of years does not s'ive the a^ent a riffht to 
 
 principal not . . 
 
 Kable for not be employed, and to damages, if, owing to a change of 
 ^P oymg circumstances, it is impossible for the principal to employ 
 him. Thus, in RJwdes v. Foricood, a colliery owner agreed 
 with some merchants in Liverpool, to make them for 
 seven years the sole agents for his coal in Liverpool, 
 which they were to sell upon certain terms of commis- 
 sion. Before the seven years were over the colUery owner 
 sold the colliery, and the agents then brought the action 
 for damages for breach of contract. It was admitted by 
 the plaintiffs that there was no clause in the agreement 
 obHging the defendant " to do business at Liverpool at 
 all, and that he had a right to close the colliery for 
 strikes, if he wished, or other causes. On these facts the 
 House of Lords held that the defendant was not liable. 
 Lord Penzance says: "A principal who wants a portion of 
 his business transacted in any town, in which he himself 
 does not manage it, engages an agent, and they enter in a 
 mutual bargain, the one that he will employ no other 
 agent, the other that he will act for no other principal. 
 They enter into other stipulations as to prices, commission, 
 and so forth, but that is the substance of the agreement. 
 Upon such an agreement, unless there is some special term 
 
 (A) Burton v. G. N. Ri/. (1854), 5 Q. B. 685; Elderton v. Emmens 
 9 Ex. 507 ; Jupdcn v. Austin (1844), (1852), 4 H. of L. Cas, 624. 
 5 Q. B. 671 ; JJunn v. Sai/les(l8i4),
 
 TERMINxVTION OF THE AGENCY. 203 
 
 in the contract that the principal shall continue the 
 business, it cannot for a moment be implied as a matter 
 of obligation on their part that, whether the business is a 
 profitable one or not, and whether for his own sake he 
 wishes to carry it on or not, he shall be bound to carry it 
 on for the benefit of the agent and the commission that he 
 may receive. In a contract of that kind there ought to 
 be some special obligation, otherwise the natural reading of 
 such a contract would be that, as long as the principal 
 chooses to carry on his business, and as long as he chooses 
 to carry on that particular portion of the business in the 
 town of wliich he has appointed the agent sole agent, he 
 shall be bound to employ the person with whom he 
 agreed as agent for such sales, but that he shall be at 
 liberty, when he likes to put an end to the business, to 
 doso"(/). 
 
 If there is a distinct contract to employ the agent, the Principal 
 principal is liable for breach of contract in not employ- tracted to°°' 
 ing him, even if he ceases to carry on the business for employ agent, 
 the purpose of which he engaged him. Thus, where a 
 person was appointed traveller for five years to sell goods 
 manufactured or sold by the defendant, it was held that it 
 was no defence to say that the manufactory was burnt 
 down and that the business was not going to be con- 
 tinued (y ) . Lord Justice Lindley pointed out that in 
 Rhodes V. Foncood there was no express contract to employ 
 the agent, and that such a contract could not be implied. 
 But a distinction must be di-awn between merely giving 
 authority for a certain time and a contract to employ 
 during that time (/>•). 
 
 The power of constituting an agent is founded upon the Right to have 
 right of the principal to do the business himself, and when on^ri^hrto^do 
 
 (i) See Lord Penzance's judg- (./) Turner v. Goldsmith, (1891) 
 
 ment in Rhodes v. Forwood (1876), 1 Q. B. 544. 
 
 1 Ap. Cas. 256. (/.) Doward ^- Co. v. Williams ^ 
 
 Co. (1889), 6 Times, 316.
 
 204 
 
 PRINCIPAL AND AGENT. 
 
 subject- 
 matter on 
 own account. 
 
 Married 
 woman. 
 
 Death of 
 principal. 
 
 tliat right ceases, the right of appointing or of continu- 
 ing the appointment of an agent already made must 
 cease also. By marriage, a woman, under the old common 
 law, lost all her power of contracting, and therefore her 
 power of appointing an agent (/). But if a woman 
 has separate property, and so long as she has, such mar- 
 riage no more acts as a revocation of her authority than 
 in the case of a man (m). The fact of a mortgagee 
 taking possession of the business of the mortgagor is 
 equivalent to a dismissal of the servants; and as this would 
 occur by the default of the mortgagor, it would be equiva- 
 lent to a "v\Tongful dismissal and give a right of action. 
 Similarly, the result of the appointment of a receiver by 
 the Court is to discharge the servants from their service to 
 theii" original employer, and an action for wrongful dis- 
 missal lies (ii). 
 
 The death of the principal revokes the authority of the 
 agent, and after his death the agent can no longer act in his 
 name (o). Unlike a revocation of the authority by act of 
 party, the estate of the principal is not bound until the 
 third party, or the agent, knows of the revocation, but the 
 authority is revoked from the moment of the death. Thus, 
 where a man gave authority to a TNoman, who passed as his 
 wife, to get what was necessary for the wants of the house, 
 and left this country leaving her in charge of his house, the 
 Court held his estate was only liable up to the day of his 
 death, and not up to the time when it became known to her, 
 which was eight months afterwards (p). The agent who 
 acts under the belief that his jorincijial is alive, is not liable 
 on contracts made after tlie principal's death (q) . At the 
 
 (/) Charnley\. Winstanlcy (ISOl), 
 5 East, 26G. 
 
 [m) McQueen's Husband and 
 Wife, ard edit., p. 30. 
 
 [ti) Jicid V. I'Jxplosives Co. (1887), 
 10 U. 13. D. 2G4. 
 
 (o) irul/ace V. Coo/c (1804), 5 Esp. 
 UG; ]J'atson v. King (1815), 4 
 Camp. 272. 
 
 [p) Blades V. Free (1829), 9 B. & 
 C. 1G7. 
 
 (f/) Smoitt V. liOcri/ (1842), 10 M. 
 &\V. 1.
 
 TERMINATION OF THE AGENCY. 205 
 
 same time, the Court intimated that if there had been an 
 express contract by which the principal had bound himself, 
 his estate would have been liable (>•) . Lord Justice Brett, in 
 Dreiv V. Nnnn^s), seems to think that the principal's estate 
 should be liable in such a case until the fact of his death 
 were known to the person to whom he had made a repre- 
 sentation. But as it was not necessary for the purposes 
 of the case before him he refrains from deciding it. He 
 says: "The defendant (the principal) cannot escape from 
 the consequences of a representation which he has made 
 (when he has held a person entitled to act generally for 
 him). He cannot withdraw the agent's authority without 
 giving notice of withdrawal. The principal is bound, 
 although he retracts the agent's authority, if he has not 
 given notice, and the latter wrongfully enters into a contract 
 in his behalf. . . A difficulty may arise in the appli- 
 cation of a general principle such as this is. Suppose that 
 a person makes a representation which, after his death, is 
 acted upon by another, in ignorance that his death has 
 happened ; in my view, the estate of the deceased will be 
 bound to make good any loss which may have occurred 
 through acting upon that representation. It is, however, 
 unnecessary to decide that point to-day." 
 
 Mr. Justice Story is of opinion that the rule which 
 applies to the revocation of an authority by dismissal, 
 namely, that the authority is binding on the principal 
 until the third party knows of it, and is binding as 
 between principal and agent until the latter knows of 
 the revocation, applies to revocation by death, in the case 
 of all authorities where the act to be done is one which 
 may lawfully be done in the sole name of the agent — such 
 as a factor, supercargo, master of a ship — and that the 
 authority should be binding on the estate of the principal, 
 as between his executors and the agent, until the latter 
 
 (r) Blades v. Free, ubi supra. («) 4 Q. B. D. 661.
 
 206 PRIXC'IPAL AND AGEXT. 
 
 knows of the death, and as between tliird parties, until they 
 know of it. In KnoicJes v. Luce{f), Chief Baron Manwood 
 held the acts of an understeward, after the death of his 
 principal and before his death was known, valid, as they 
 were done under colour of authority; and Lord Ellen- 
 borough, in the case of The King v. The Corporation of 
 Bedford Level (?/), admitted the force of the reasoning. 
 Owing to the uncertainty of the law as to the time from 
 which the revocation takes effect in the case of death, and 
 the cases of TTallace v. Cool- (.r) and Watson v. King [y), in 
 which Lord Ellenborough decided that the authority was 
 revoked from the death, the practice of conveyancers has 
 been to have the purchase-money of an estate deposited 
 until it was ascertained that the vendor sm^ived the date 
 of execution of the deed by his attorney. 
 
 Where a solicitor was entitled to receive moneys in an 
 action, and his employer had allowed him to apply them 
 to the payment of certain costs, it was held that, although 
 he had received the moneys after the principal's death, he 
 was not bound to pay them over, but only to account for 
 them {z). A broker cannot set off the amount of returns 
 of premiums which, as under's\-riter's agent, he was autho- 
 rized to deduct, unless the returns of premiums have been 
 actually adjusted in account between himself and his 
 principal before his death [a). 
 Revocation The revocation by death, insanity, or bankruptcy {b) 
 
 does ^ot affect of an authority does not apply to one couj^led with an 
 
 power coupled interest (("). 
 
 Conveyancing ^J ^^^^- ^^ *^^ ^^® Conveyancing Act, 1881, which came 
 Act, sect. 47. into effect on the 31st December, 1881 — 
 
 " (1) Any person making or doing any payment in good 
 
 {t) (1579), Moore, 109, at p. Ch. 245. 
 
 112. («) Houston V. Robertson (1816), 6 
 
 (m) (1805), 6 East, 356. Taunt. 448. 
 
 (x) (1804), 5 Esp. 116. {b) Alley v. Hotson (1815), 4 
 
 (V) (1815), 4 Camp. 272. Camp. 325. 
 
 \z) Jeyes v. Jcyes (1876), 45 L. J. (t) Story, \ 483.
 
 TERMINATION OF THE AGENCY. 207 
 
 faith, in 2'>u)'siiancc of a power of attorney, shall not be liable 
 in respect of the payment or act by reason that, before the 
 jjayment or act, the donor of the power had died or become 
 a lunatic, of unsound mind, or bankrupt, or had revoked 
 the power, if the fact of death, lunacy and unsoundness of 
 mind, bankruptcy, or revocation was not, at the time of the 
 payment or act, known to the person making or doing the 
 same. 
 
 " (2) But this section shall not affect any right against 
 the payee of any person interested in the money so paid, 
 and that person shall have the like remedy against the 
 payee as he would have had against the payer if the pay- 
 ment had not been made by him. 
 
 " (3) This section applies only to payments and acts 
 made and done after the commencement of this Act." 
 
 It will be noticed that this section only applies to acts 
 done in pursuance of a power of attorney, and does not 
 affect the ordinary mercantile transactions where there 
 usually is no power of attorney given. 
 
 The bankruptcy of the principal operates as a revocation Bankruptcy 
 of the authority of the agent touchiuf? any rig-hts of pro- ^^ pnuapal. 
 
 . . D ./ o 1 revocation ot 
 
 perty, of which he is divested by the bankruptcy ; but any authority. 
 act of duty which passed no property may be exercised by 
 attorney notwithstanding the bankruptcy [d). The title 
 of the trustee in bankruptcy relates back to the act of 
 bankruptcy. As a general rule, a power of attorney, 
 except as provided for by the 47th section of the Con- 
 veyancing Act {e), is revoked by bankruptcy. The 
 House of Lords, in Elliott v. Turquand, approved of the 
 following statement of the law by Lord Justice Mellish 
 in Ex parte Snowba/l : " We are of oj)inion that 
 though no doubt a power of attorney must be treated 
 as revoked by an act of bankruptcy committed by the 
 
 (d) Dixon v. Ewart (1817), Buck. (e) As to commission when prin- 
 
 94. cipal bankrupt, see p. 170.
 
 208 PRINCIPAL AXD AGENT. 
 
 giver of tlie power, still, if before the adjudication pro- 
 perty is conveyed under the power to a bond fide pur- 
 chaser who has no notice of the act of bankruptcy, the 
 purchaser may hold the property as against the trustee. 
 It is obvious that a power of attorney is not revoked for 
 all purposes by an act of bankruptcy committed by the 
 giver of the power, because, if no adjudication follows, a 
 sale under the power is binding on the giver himself ; and 
 wherever a sale would be binding on the bankrupt if no 
 adjudication followed, it is binding on the trustee under a 
 subsequent adjudication, if the purchaser had no notice of 
 an act of bankruptcy having been committed by the seller 
 at the time of the sale " (/). Where an authority had been 
 given previous to an act of bankruptcy by the principal to 
 the agent, in the course of mutual dealings, to receive the 
 purchase- money of an estate, and to place it to account, 
 and such authority was acted on before notice of an act of 
 bankruptcy, it was held that the authority was not re- 
 voked, and that the payment by the third party was a 
 good payment, that it became an item in the account 
 between the agent and the principal, the agent being able 
 to set it off in an action by the trustee against a debt due 
 by the bankrupt's estate (r/). It must depend upon the 
 circumstances of each case at what time an account of 
 mutual dealings and transactions is to stop, but it ought 
 at least to be taken up to the time the person claiming the 
 benefit of the clause with reference to the mutual dealings 
 and credits had notice of the act of bankruptcy. 
 Foreign Mr. Justice Chitty held that a contract entered into by 
 
 bunk'' ° ^^® officers of a foreign branch of a bank on behalf of the 
 
 bank, without notice of winding-up, proceed, as their 
 authority was not revoked until they had such notice {h). 
 
 . if) Per MolliHh, L. J., Ex parte Ap. Cas. 79. 
 
 Snoivhall, In re Douglas (1872), 7 (/') In re Oriental Bank Corpora- 
 
 Ch. f)M. tion, Ex parte Ouillemin (1885), 28 
 
 (</) Elliott V. Tiirquand (1881), 7 C. D. 634.
 
 TERMINATION OF THE AGENCY. 203 
 
 In the course of his judgment, he said : " The cases of 
 revocation by bankrujotcy and death stand on a peculiar 
 footing. Bankruptcy, for instance, divests the property, 
 but neither the presentation of the winding-up petition, 
 nor even the winding-up order itself, divests the company's 
 property." 
 
 Lord EUenborough held that an insurance broker who Insurance 
 acted as agent for an underwriter who had become bank- power to 
 rupt, was not entitled to settle losses which had accrued ^^^^^^^ loss 
 out of the premiums in his hands belonging to the under- ruptcy! 
 writer ; and inasmuch as, after the bankruptcy, the bankrupt 
 was not competent to pay or ajiply this fund himself in 
 satisfaction of these claims of the assured, it followed as a 
 consequence that he could not authorize his broker to do 
 so, otherwise the derivative and implied authority would 
 be stronger and more extensive than the original and 
 princij)al authority of the party himself. The conse- 
 quence is that the authority of the agent (the broker) was 
 virtually countermanded and extinct by the act of bank- 
 rujjtcy, by which the bankrupt's own original power over 
 the subject-matter ceased, and became transferred to 
 others (/). 
 
 But where the agent is a factor, and has a lien on Factor, 
 goods or the price of them, although his principal be- 
 comes bankrupt, he has a right to receive the price of 
 them, and give a discharge for it in satisfaction of his 
 lien (J). Lord Mansfield said : " We are all most clearly 
 of opinion that a factor has a lien on the price of goods in 
 the hands of the buyer ; and in this case, though he had 
 not the actual possession of them, yet as he had a power 
 of giving a discharge or bringing an action, he had a 
 right to retain the money in consequence of his lien as 
 much as a mortgagee has by the title deeds of an estate 
 in his hands, though not in possession." 
 
 {{) Parker v. Smith (1812), IG {J) Brinlcivaterx. Goodwin {I'lb), 
 
 East, 382. Cowper, 251.
 
 210 PRIXCLPAL AND AGENT. 
 
 Agent's When tKe principal becomes bankrupt, and his assignees 
 
 bankniptcv. s^^ the agent for any money of the principal in his hands, 
 he has a right of set-off. The principle upon which the 
 bankruptcy law acts is, that where two persons have dealt 
 with each other on mutual credit, and one becomes bank- 
 rupt, the account shall be settled between them, and the 
 balance alone jtaid on either side. The claim, of set-off 
 must be made by the party in his own right, and not as 
 trustee for others. The object of the mutual credit section 
 beinff not merelv to avoid cross-actions, but to do substan- 
 tial justice between the parties, where a debt is really due 
 from the bankrupt to a debtor to his estate, and therefore 
 the right to set off depends upon beneficial interest ; hence, 
 in bankruptcy, where a debt, though legally due by the 
 bankrupt, is due to the creditor, not for his own benefit, 
 but as trustee for another, the light to set off will not 
 arise (Jc). 
 Insurance Thus, in the case of an insurance broker, he is agent for 
 
 of set off. the assured and also for the underwriter. As agent for 
 the assured, he effects the policy and settles losses. For 
 the underwriter, he receives the premium. If the under- 
 writer should become bankrupt, the insurance broker 
 cannot set off any loss that may be due on the policy 
 against a claim for the premiums by the trustee in bank- 
 ruptcy, for such claim is as trustee for the assured, and does 
 not" come within the scope of the principle of set-off above 
 explained (/). He can, however, set off the amount 
 he will have to pay on losses, if, by an adjustment before 
 bankruptcy between himself and the underwriter, he has 
 become authorized to detain the money to pay these debts. 
 Where the insurance broker is under a del credere com- 
 mission with the assured, so that he is liable personally for 
 
 (*) Fair T. Mclvor (1812), 16 808. 
 East, 130; and .see Ex parte Cle- {I) Mi net t t. Forrester (1812), 4 
 
 land, In re Darie* (1867), 2 Ch. Taunt. 541.
 
 TERMINATION OF THE AGENCY, 211 
 
 tlie losses, he can set them off {)>/). So, also, A\hore he has 
 made out the policies in his own name {>/). 
 
 In Minett v. Forrester [o), the assignees of a bankrupt 
 imclerwriter brought their action against an insiu-ance 
 broker for premiums due on two policies of insurance. 
 The broker claimed to set off returns of premium for short 
 interest. It appeared that the events which entitled the 
 broker to make this deduction had occurred in the one 
 policy before the bankruptcy, and in the other policy not 
 till after that event, but that no adjustment had been 
 made on either policy. The Court held the agency of the 
 insurance broker had been determined by the bankruptcy 
 of the underwriter, he was not therefore entitled to set off 
 either on one policy or the other. He could have no right 
 of set off except on the ground of some authority to make 
 adjustments, and that authority had been revoked by the 
 bankruptcy. 
 
 The 38th section of the Bankruptcy Act of 1883 is as Sect. 38 of 
 follows : — " Where there have been mutual credits, mutual j^^ i883°^ 
 debts, or other mutual dealings between a debtor against 
 ■whom a receiving order shall be made under this Act, and 
 any other person proving or claiming to prove a debt 
 under such receiving order, an account shall be taken of 
 what is due from the one party to the other in respect of 
 such mutual dealings, and the sum due from the one party 
 shall be set off against any sum due from the other party, 
 and the balance of the account, and no more, shall be 
 claimed or paid on either side respectively ; but a person 
 shall not be entitled, under this section, to claim the bene- 
 fit of any set-off against the property of the debtor in any 
 case where he had, at the time of the giving credit to the 
 debtor notice of an act of bankruptcy committed by the 
 debtor and available against him for adjudication." 
 
 {m) Lee V. Bullen (1857), 8 El. & («) rarhcr v. BcasJeij (1814\ 2 M. 
 
 Bl. 692, note. & S. 422. 
 
 [o) (1812), 4 Taunt. 541. 
 
 p2
 
 212 
 
 PRINCIPAL AND AGKNT. 
 
 What pro- 
 perty of 
 bankrupt 
 vests in 
 trustee. 
 
 Lunacy of 
 principal. 
 
 The proj)erty of a bankrupt vests on his bankruptcy 
 in his trustee, and is divisible among his creditors ; the pro- 
 perty thus di\dsible comprises inter alia the capacity to exer- 
 cise, and to take proceedings for exercising, all such powers 
 in, or over, or in respect of property, as might have been 
 exercised by the bankrupt for his own benefit at the com- 
 mencement of the bankruptcy (7;). And also all goods 
 being chattels at the commencement of the bankruptcy in 
 the possession, order, or disposition of the bankrupt in his 
 trade or business by the consent and permission of the true 
 owner, under such circumstances that he is the reputed 
 owTier thereof : provided that things in action other than 
 debts due or growing due in the course of his trade or 
 business, shall not be deemed to be goods within the 
 meaning of this section. 
 
 The effect of the lunacy of the principal upon the 
 authority of the agent w^as discussed in Drew v. Nunn [q). 
 In that case the plaintiff was a tradesman, and the 
 principal, the defendant, had given his wife authority 
 to deal with him, and had held her out as his agent and 
 entitled to pledge his credit. Afterwards the principal 
 became insane, and w^hilst the malady lasted, his wife 
 ordered goods from the plaintiff, which were supplied. At 
 the time the goods w^ere supplied the plaintiff was un- 
 aware that the principal had become insane. Afterwards 
 he recovered, and refused to pay for the goods. Lord 
 Justice Brett in giving judgment said : " Upon this state 
 of facts two questions arise. Does insanity put an end to 
 the authority of the agent ? One w^ould expect to find that 
 this question has been long decided on clear principles; 
 but on looking into Story on Agency, Scotch authorities, 
 Pothier and other French authorities, I find that no satis- 
 factory conclusion has been arrived at. If such insanity 
 
 [p) Sect. 44 of Bankruptcy Act, 
 1883. 
 («/) (1878), 4 Q. B. D. G61. As 
 
 to the lunacy of the third party, 
 see rUUt V. Deprce (1893), 9 Times, 
 194.
 
 TERMINATION OF THE AGENCY. 213 
 
 as existed liere did not put an end to the agent's authority, 
 it would be clear tliat the plaintiff is entitled to succeed ; 
 but, in my opinion, insanity of this kind does put an end 
 to the agent's authority. It cannot be disputed that some 
 cases of change of status in the principal put an end to the 
 authority of the agent ; thus, the bankruptcy and death of 
 the principal, the marriage of the female j^rincipal, all put 
 an end to the authority of the agent. It may be argued 
 that this result follows from the circumstance that a 
 different principal is created. Upon bankruptcy the 
 trustee becomes the principal ; upon death, the heir or 
 devisee as to realty, the executor or administrator as to 
 personalty ; and upon the marriage of a female principal, 
 her husband takes her place. And it has been argued that, 
 by analogy, the lunatic continues liable until a fresh prin- 
 cipal, namely, his committee, is appointed. But I cannot 
 think that this is the true ground ; for executors are, at 
 least in some instances, bound to carry out the contracts 
 entered into by their testators. I think that the satisfac- Unless there 
 tory principle to be adopted is, that where such a change j^oiain^'^^out 
 occm's as to the principal that he can no longer act for agency ceases 
 himself, the agent whom he has appointed can no longer 
 act for him. ... It seems to me that an agent is liable to 
 be sued by a third person if he assumes to act on his prin- 
 cipal's behalf after he has knowledge of his principal's 
 incompetency to act. In a case of this kind he is acting 
 wrongfully. . . . The second question then arises, what 
 is the consequence where a principal who has held out 
 another as his agent subsequently becomes insane, and a 
 tliii'd person deals wdth the agent without notice that the 
 principal is a lunatic ? Authority may be given to the 
 agent in two ways. First, it may be given by some 
 instrument which of itself asserts that the authority is 
 thereby created, such as a power of attorney ; it is of itself 
 an assertion by the principal that he may act for him. 
 Secondly, an authority may also be created from the 
 
 with lunacy.
 
 214 
 
 PRINCIPAL AND AGENT. 
 
 Ceases as 
 between prin- 
 cipal and 
 agent with 
 lunacy. 
 
 Death of 
 agent. 
 
 holding out the agent as entitled to act generally for 
 him. The agency in the present case ■was created in the 
 manner last mentioned. As heticeen the defendant and 
 his icife, the agenci/ expired upon his becoming to her know- 
 ledge insane ; but it seems to me that the person dealing 
 Tvith the agent without knowledge of the principal's 
 insanity has a right to enter into a contract with 
 him, and the principal, although a lunatic, is bound so 
 that he cannot repudiate the contract assumed to be made 
 on his behalf." Lord Justice Brett then discusses the 
 reason of the rule and says : " The holding out of another 
 person as agent is a representation upon which, at the time 
 when it was made, thii^d parties had a right to act, and if 
 no insanity had supervened, would still liave had a right 
 to act. . . . The defendant cannot escape from the conse- 
 quences of the representation he has made ; he cannot ■vvith- 
 draw the agent's authority as to third parties without giving 
 notice of withdrawal. The principal is boimd, although 
 he retracts the agent's authority, if he has not given 
 notice and the latter \\Tongfully enters into a contract on 
 his behalf. The defendant became insane and was unable to 
 withdrawthe authority which he had conferred upon his wife. 
 He may be an innocent sufferer by her conduct, but the 
 plaintiff who dealt witli her bona fide is also innocent, and 
 where one of two innocent persons must suffer by the 
 •WTongful act of a third person, that person making the 
 representation which, as between the two, was the original 
 cause of the mischief, must be the sufferer and bear the 
 loss." 
 
 Up to this we have dealt witli tlie authority terminating 
 by operation of law, so far as tlie I'^rincijial was concerned, 
 i.e., by his death, marriage, bankruptcy, or lunacy. We 
 now turn to the same events happening to the agent. 
 
 Death. This terminates the autliority of the agent, for, 
 as we have seen, that authority is a personal one and 
 depends upon the trust and confidence reposed in him.
 
 TERMINATION OF THE AGENCY, 215 
 
 The authority of any sub- agent he may have appointed 
 will also terminate on the death of the agent himself, 
 except where by privity of contract between the principal 
 and sub-agent other conditions for terminating the agency 
 have been arranged or implied ; or the protection of the 
 property requires otherwise, as in the case of a ship, where 
 the mate's authority is not terminated by the death of the 
 master. 
 
 Marriage of a female agent does not incapacitate her Marriage of 
 
 ,. ,, 11 1-1 -11 female agent. 
 
 from being an agent, though her husband might possibly 
 prohibit her acting if it interfered with her duty to her 
 family (r) . How far he could enforce such a prohibition 
 is doubtful. Chief Justice Holt gave leave to enter 
 judgment where an authority had been given to a feme 
 sole to confess judgment, who afterwards married, on the 
 ground that the authority could not be deemed to be 
 revoked by marriage, because it was for her husband's 
 advantage («) . 
 
 By the insanity of the agent the agency must naturally Insanity of 
 determine, for no principal could intend anything done by ° 
 such an agent to bind -him, since, as we have seen, he relies 
 on his skill, knowledge, and trustworthiness [t). 
 
 The bankruptcy of the agent operates as a countermand Banki-uptcy 
 of his authority to receive money on account of his prin- ' ° 
 cipal ; but it does not destroy his right to receive money 
 on his own account in respect of a lien [u). 
 
 As we have seen, by bankruptcy, under the 44th 
 
 section of the Bankruptcy Act, all the property of the 
 
 bankrupt in which he has a beneficial interest passes 
 
 to the trustee and is divisible among his creditors, with 
 
 a few trifling exceptions, such as tools of his trade, 
 
 bedding, &c. 
 
 A bankrupt trustee is a person unfit to act within the Bankrupt 
 
 trustee. 
 
 (r) Story, § 485. {() Story, \ 487. 
 
 («) Anon. (1702), 1 Salk. 117. (w) Hudson v. Granger (1821), 5 
 
 See, also, Mardcr v. Lee (1764), 3 B. & Aid. 27. 
 Bur. 1469.
 
 216 PRINCIPAL AND AGENT. 
 
 meaning of the 31st section of tlie Conveyancing Act, 1881, 
 and such a trustee is bound to retire if requested. Sir 
 George Jessel, in Re Barker^ s Trusts (.r), said : " It is the 
 duty of the Court to remove a bankrupt who has trust 
 money to receive or deal '^^■ith so that he can misappropriate 
 it. There may be exceptions under special circumstances 
 to that general rule. And it may also be that where a 
 trustee has no money to receive he ought not to be removed 
 merely because he has become bankrupt ; but I consider 
 the general rule to be as I have stated. The reason is 
 obvious. A necessitous man is more likely to be tempted 
 to misappropriate than one who is wealthy, and besides a 
 man who has not shown prudence in managing his own 
 affairs is not likely to be successful in managing those of 
 other people. A bankrupt trustee may be removed under 
 the 147th section of the Banki'uptcy Act, 1883, which pro- 
 vides for another trustee being api^ointed in his place {y). 
 Goods in Xot only the goods of the bankrupt pass to the trustee, 
 
 controfof ^^^ ^-^ ^^ goods being at the commencement of the 
 bankrupt bankruptcy in the possession or in the order and disposi- 
 tion of the bankrupt in his trade or business by the 
 consent and permission of the true owner under such 
 circumstances that he is the reputed owner thereof (~). 
 Factors and other agents have very often property of their 
 principal in their possession ; therefore it is material to 
 consider this sub-section. It used to be considered that 
 factors were not within this clause («), but that it applied 
 only to goods which a person allowed a trader to sell as 
 his own ; and accordingly, goods which had been forwarded 
 to a factor or agent in this country for sale upon com- 
 mission, were held not to pass to the assignees upon the 
 bankruptcy of the agent, and as they were sold he was 
 
 {x) (1875), 1 C. D. 43. 41 (2) iii. 
 
 (v) J^e Adamn'' Trust (1879), 12 [a) See Lord Mansfield in Mace 
 
 CD. C.34 ; i?c iJfWmir (1869), 4 v. Cadell (1774), Cowper, 232; 
 
 Ch. 783. Yate-Lee's Bankruptcy, 3rd ed. 
 
 {z) Bankruptcy Act, 1883, sect. p. 404.
 
 TERMINATION OF THE AGENCY. ' 217 
 
 entitled to their proceeds less the charges paid on them by 
 the agent (h). 
 
 Whether goods are in the order and disposition of Depends on 
 the agent so as to make them or their proceeds belong ^0*0^^5^*7 ^i 
 
 ^ ^ ••■ " tact 01 agency 
 
 to the trustee in bankruptcy, seems to depend on the whether 
 notoriety of the fact of the agent acting as agent. Thus, fr'^stee^or ° 
 in a case where it was notorious that the bankrupt was bankrupt 
 an agent, tlie chief judge held that not only the goods 
 of the principal, but book debts owing to the agent 
 on behalf of the principal, did not pass to the trustee in 
 bankruptcy (c) . And in Kr parte Bright, lie Smith {(t), Sir 
 Greorge Jessel held that the creditors had notice sufficient 
 to exclude the operation of the reputed ownership clause 
 where the agent had a brass plate up outside his place of 
 business describing himself as " merchant's and manu- 
 facturer's agent." But if the owner of goods allow the 
 agent to carry on business as if it were apparently his 
 own, the goods will come under the reputed ownership 
 clause, and belong to the agent's trustee in bank- 
 ruptcy (^')- 
 
 Lord Selborne in Ex parte Turquand {/) said : " There Lord Selbome 
 seemed to be a misapprehension of the doctrine of reputed °^ reputed 
 
 , . p . . ownership 
 
 ownership when the existence of a custom notorious in a clause. 
 
 particular trade or business is proved, the effect of which is 
 
 that everyone who knows the custom knows that articles to 
 
 which it is applicable, and which are in the place where 
 
 the trade is carried on, may or may not be the property of 
 
 the person carrying on the trade or business — may or may 
 
 not be held by him for other persons — then the doctrine of 
 
 reputed ownership is absolutely excluded as to all articles 
 
 which are within the scope of the custom " {(j). 
 
 {b) He Eullberg (1863), 12 W. R. {e) In re Fawcus, Ex parte Buck 
 
 137. See, also, Taylor v. Flumer (1876), 3 C. D. 795. 
 
 (1815), 3 M. & S. 562. (/) (1885), 14 Q. B. D. 636. 
 
 (e) Ex parte Bouden, Re Wood \q) See, also. Ex parte Reynolds 
 
 (1873), 28 L. T. N. S. 174. (1884), 15 Q. B. D. 169. 
 
 {d) (1879), 10 C. D. 566.
 
 218 
 
 PRINCIPAL AND AGENT. 
 
 Appropria- 
 tion before 
 bankruptcy. 
 
 Again where property or proceeds of property have been 
 appropriated to a specific purpose before bankruptcy, effect 
 will be given to the appropriation. In such cases the 
 property is clothed with a trust or quasi trust which 
 excludes the right of the trustee in bankruptcy ; as when 
 proceeds of certain cargo are appropriated to the payment 
 of particular acceptances, the proceeds will not go to the 
 trustee {h). 
 
 (h) Ex parte Flower (1835), 4 Doac. & C. 449 ; Ex parte Smith (1834), 
 4 Deac. & C. 579.
 
 219 
 
 CHAPTER XIV. 
 
 LIABILITY OF THIRD PARTIES TO PRINCIPAL. 
 
 Third parties may become liable to the principal (1) tlii'ougli How third 
 the contract made by his agent with them, (i2) and by com- become Hable. 
 mitting torts or injuries to his property, and (3) by tam- 
 pering with his agent. The principal has also a right of 
 following his goods or the produce of them into the hands 
 of a third party who has wrongfully obtained possession 
 of them {a). 
 
 First, as to the rights acquired by the principal against Liability by- 
 third parties by contract. The contract may be made by ^o^*^^'^*- 
 the agent, as agent, in the principal's name. The prin- 
 cipal is, in this case, the only party who can sue on the 
 contract and enforce it{b). He takes, however, the con- 
 tract subject to all the burdens, counterclaims, and defences 
 that the third party may have arising, owing to the repre- 
 sentations made by the agent while making the contract. 
 Thus, for instance, if the agent has committed any fraud 
 in making the same by misrepresentation or otherwise, 
 such fraud or misrepresentation is an answer to any action 
 by the principal on the contract. 
 
 The principal is only bound by the statements of his How far 
 agent about the subject-matter of the contract, if they are ageXbrnr^ 
 made during the course of negotiating it (c). At any principal, 
 other time they are no more binding on him than the 
 
 (ff) New Zealand Land Co. \. Wat. 5 Ex. 169. 
 
 son (1881), 7 Q. B. T>. 374 ; Kalten- [c) Barwick v. English Joint Stock 
 
 bach V. Lewis (1885), 10 Ap. Cas. Bank (1867), L. R. 4 Ex. 259; 
 
 617. See Lord Bramwell's judg- ILouldsicorthY. City of Glasgow Bank 
 
 ment. (1880), 5 Ap. Cas. 317; Smith's 
 
 {b) Fairliev.Fenton (1870), L. R. Commercial Law, 10th cd. p. 152.
 
 220 
 
 PRINCIPAL AND AGENT. 
 
 Reason of 
 principal's 
 liability for 
 agent's fraud. 
 
 Exception 
 to rule. 
 Principal not 
 liable for 
 agent's repre- 
 sentation as 
 to character. 
 
 representations of a stranger (r/) . For instance, when an 
 agent is selling a horse, what he says at the time of the 
 sale as jiart of the transaction of selling respecting the 
 horse, is evidence against the principal, but not what he 
 says about it at another time {e) ; in the same way, what 
 an auctioneer says at the sale binds the principal, but not 
 at another time (/). 
 
 The ground of the rule being variously put that " every 
 person who authorizes another to act for him in the making 
 of a contract, undertakes for the absence of fraud in that 
 person in the execution of the authority he has given, as 
 much as he undertakes for its absence in himself when he 
 makes the contract " {g) ; or the master is liable for every 
 such wrong of his servant or agent as is committed in the 
 course of his service, because he has put the agent in his 
 j)lace to do that class of acts, and he must be answerable 
 for the manner in which the agent has conducted himself 
 in doing the business which it was the act of the master 
 to place him in {//). 
 
 There appears, however, to be one exception to the rule 
 that a principal is liable for representations made by his 
 agent, viz., he is not liable for representations as to pecu- 
 niary character, for by the 6th sect, of the 9 Geo. IV. c. 14, 
 it is enacted that, in order to make a person liable on such a 
 representation, it must be in writing signed by the person 
 against whom the action is brought. The 6th section is as 
 follows : — " No action shall be brought whereby to charge 
 any person upon or by reason of any representation or 
 assurance made or given concerning or relating to the 
 character, conduct, credit, ability, trade or dealing of any 
 other person, to the intent and purpose that such other 
 
 (d) SnotvhaU v. Goodricke (1833), 
 4 B. & Ad. .')41. 
 
 (t) lldycar v. Ilaulcc (1803), 5 
 Esp. 71. 
 
 ( f) lirctt V. Clowscr (1880), 5 C. 
 P. b. 376. 
 
 {ij) Per L. J. Bramwell in Weir 
 V. Bell (1878), 3 Ex. D. 238, at 
 p. 245. 
 
 [It) Per "NVilles, J., in Banviek v. 
 Piiff/ish Joint Utock Bank (1867), L. 
 K. 2 Ex. 2.59.
 
 LIABILITY OF THIRD PARTIES TO ]'KINCIPAL. 221 
 
 person may oLtaiii credit, money or goods upon (.s/r), 
 unless such representation or assurance be made in writing 
 signed by the party to be charged therewith." 
 
 Baron Bramwoll, in Sicift v. JeicHbemj [i), said, "In 
 my opinion the effect of the statute is this : that a man 
 should not be liable for a fraudulent representation as to 
 another person's means, unless he puts it down in writing 
 and acknowledges his responsibility for it by his own 
 signature. He is neither to have the words proved by 
 word of mouth, nor the authority given to an agent, for 
 whose act it is sought to make him responsible, proved by 
 word of mouth." In that case, a bank ;vas sought to be 
 made liable for a representation made by its manager as 
 to the credit of a customer, and the Court held it was not 
 liable. It was argued by Mr. Day (now Mr. Justice Day), 
 that there must be some exception put to the statute to 
 meet the necessity of the case. To this Baron Bramwell 
 replied : "If this were a necessary thing for the piu-pose 
 of a banking company carrying on business it might be 
 otherwise ; but it is not a necessary thing for the carrying 
 on of their business, it is no part of their business, it is a 
 thing which can be done, and it is done, by bankers and 
 their officers, individually and personally, therefore there 
 is no such necessity as Mr. Day's proposition would 
 assume." 
 
 If the principal adopts the contract of his agent Principal 
 
 -, -Li i- J i. 'i. i J must accept 
 
 and sues on it he must adopt it cum onerc or not at contract with 
 
 all. Baron Wilde lays down the principle as follows : turclena or 
 " Whatever his previous authority to the agent, what- 
 ever his innocence, he must, as it seems to me, ado]3t the 
 whole contract, including the statements and representa- 
 tions which induced it, or repudiate the contract altogether. 
 There are, no doubt, many frauds committed by agents 
 which could not bind their principals, but I hold that the 
 
 (i) Swift V. Jeicsherry (1874), L. R. 9 Q. B. 301.
 
 222 
 
 PRINCIPAL ANJ) AGEXT. 
 
 Rule applies 
 to company 
 dii-ectors. 
 
 Principal 
 emijloying 
 ignorant 
 agent liaLlo 
 for his Htatc- 
 ments. 
 
 statements of the agent wliicli are involved in the contract 
 as its foundation or inducement are, in law, the statements 
 of the principal "(/) . The principal will have to adopt 
 the whole contract or reject it altogether ; he cannot adopt 
 one part and repudiate the other. Lord Cranworth, in a 
 case where an agent had acted without authority, and the 
 principal wished to adopt the contract only so far as it was 
 beneficial to him, said, " Where a contract has been en- 
 tered into by one man as agent for another, the person on 
 whose behalf it has been made cannot take the benefit of 
 it without bearing its burthen " (/;^). 
 
 The same rule aj)plies to directors of companies. A 
 company is bound by the acts of its directors, provided the 
 acts are within the limit of the directors' ajjparent or real 
 authority, and the person dealing with them is acting bond 
 fide and has no notice of any irregularity of their proceed- 
 ings. The power of the directors to bind the company is 
 not affected by any irregularity in their appointment, if 
 the person dealing with them acted bond fide and without 
 notice of any irregularity, although such irregularity may 
 prevent the company from enforcing what they have pur- 
 ported to do as agents of the company (;;). 
 
 If a principal purposely employs an agent ignorant of 
 the truth, in order that the agent may make a false state- 
 ment, believing it to be true, and may so deceive the party 
 with whom he is dealing, the representation by the agent 
 becomes a misrepresentation by the principal, so as to 
 vitiate the contract. Thus, where an agent was employed 
 to sell some sheep, and the principal did not tell him that 
 tliey were affected with rot, " because he was not such a 
 fool," and the agent, being in ignorance of the fact that 
 the sheep were so affected, said they were all right, the 
 contract was held to be vitiated (o). 
 
 (;) Udall V. Jthrrhm (IHOl), 7 
 IT. &N. 172, at p. 184. 
 
 (/«) Jlristoncv. I r/i it 1)1 ore (18G1), 
 9 H. L. 391. 401. 
 
 («) Garden, Gnlhj S; Co. v. 
 M'Lhtcy (1875), 1 Ap. Ca.s. 39. 
 
 [n) Ludgatery. Love (1881), 44 L. 
 T. G94.
 
 LIABILITY OF THIRD PARTIES TO PRINCirAL. 223 
 
 111 the same way if tlie agent conceals something he Affected by 
 knows and which he ought to tell his principal, that know- dTsclosure of 
 ledge is imputed to the principal, and if the effect of im- material 
 puting the knowledge of the agent to the principal is to 
 make the contract a fraudulent one, then the contract is 
 vitiated. 
 
 Lord Halsbuiy, in Blackburn v. Vi<jo}->i (p), discusses the Ivuowledge 
 proposition that knowledge of the agent is the knowledge of tnowledo-e 
 the principal, and said : " Some agents so far represent the of principal, 
 principal that in all respects their acts and intentions and 
 their knowledge may truly be said to be the acts, inten- 
 tions and knowledge of the principal. Other agents may 
 have so limited and narrow an authority, both in fact and 
 in the common understanding of their form of employment, 
 that it would be quite inaccurate to say that such an agent's 
 knowledge or intentions are the knowledge and intentions 
 of his principal, and whether his acts are the acts of the 
 principal depends upon the specific authority he has received. 
 .... Where the employment of the agent is such that in 
 respect to the particular matter in question he really does 
 represent the principal, the formula that the knowledge of ' 
 the agent is his knowledge is correct ; but it is obvious that 
 formula can only be applied when the word ' agent ' and 
 ' principal' are limited in their application ; for to lay down 
 as an abstract proposition that every agent, no matter 
 how limited the scope of his agency, would bind any prin- 
 cipal even by his acts, is obviously and upon the face of it 
 absurd ; and yet it is upon the fallacious use of the word 
 agent that plausibility is given to reasoning which requii-es 
 the assumption of some such proposition." "Wlien a person 
 is the agent to know, his knowledge does bind the prin- 
 cipal : therefore it has been held that knowledge of a 
 captain (q) in charge of goods, and knowledge of the con- 
 
 (p) (1887), 12 Ap. Cas. 531, at (q) Troudfoot v. Moniejiore {IS66), 
 
 p. 537. L. R. 2 Q. B. 511; Gladstone v. 
 
 King (1813), 1 M. & S. 35.
 
 224 
 
 PRINCIPAL AND AGENT. 
 
 Lord Mac- 
 
 naghten's 
 
 view. 
 
 Blachbiiin v. 
 Tigors, facts 
 of. 
 
 signer (;■), was knowledge of the principal ; but tlie know- 
 ledge of an insurance agent who, though he had attempted 
 to insure, had not acted as the agent who procured the 
 insurance, is not the knowledge of the principal («) . Lord 
 Macnaghten expressed himself adverse to extending the 
 doctrine of constructive notice, and said that though there 
 was nothing unreasonable in imputing to a shipowner who 
 effects an insurance on his vessel all the information with 
 regard to his own property which the agent to whom the 
 management of the property is committed possessed at the 
 time, but it was different when the agent whose knowledge 
 it is sought to impute to the principal is not the agent to 
 whom the principal would look for information. 
 
 In Bl((d;hurn v. Vigors, the principal employed a broker 
 to insure. Before the broker effected the insurance mate- 
 rial facts came to his knowledge which affected the risk. 
 These facts he did not communicate to the principal. The 
 principal afterwards effected an insurance through another 
 broker, and it was held that he was not affected by the 
 knowledge of the first broker. Lord Halsbury asked : 
 " How is it possible to suggest that the assured could rely 
 upon the communication of every piece of information 
 acquired by an agent through whom the assured has un- 
 successfully attempted to procure an insurance ? " In Black- 
 hum V. Haslam, the brokers entered into the negotiations 
 for the insurance without knowing of anything beyond 
 that the ship was overdue. After they had made the offer 
 they received information that she was in fact lost ; they 
 did not communicate this fact to the principal. They 
 then accepted the proposal of the underwriters in the 
 principal's name. Under these circumstances the know- 
 ledge of the brokers was held to be the knowledge of the 
 principal. 
 
 (r) Filzherbcrt v. Mather 
 1 T. R. 12. 
 
 (1785), («) Blackburn y. Vigors {\S87), 12 
 
 Ap. Cas. 531 ; sec also Blackburn v. 
 Jlasltim (1888), 21 Q. B. D. 144.
 
 LIABILITY OF THIRD PARTIES TO PRINCirAL. 226 
 
 In Bawden v. London, Edinhurgh, 8fc. AHHurance Co. (t), Knowledge of 
 the knowledge of the insurance agent was held the know- compaiiy's 
 ledge of the j)rincipals. There the insui-ance proposal, agent. 
 which was against accidents, contained a statement that 
 the insured had no physical infirmity ; and it was con- 
 tended for the assurance company that this was the basis 
 of the contract. It appeared, however, that the insured 
 could not read and write, and that the agent knew the 
 fact that the insured had only one eye, but did not tell 
 the company. Nearly three years afterwards, the insurer 
 lost his second eye, and claimed for a permanent total 
 disablement. The Court held that the proposal must be 
 construed to have been negotiated and settled by the 
 agent with a one-eyed man, and held the insiu-ance com- 
 pany were liable. 
 
 A person who has been induced to give more for property Unauthorized 
 that he otherwise would have by a representation made misi-epresen- 
 by an agent is entitled to compensation if he complains tation. 
 before completing the contract ; but after the contract is 
 executed he has no remedy against the principal (u). 
 
 In JBrett v. Clowscr (.r) an auctioneer, being misled by a 
 plan innocently, while selling a public-house, represented 
 there was a right of way from it to Hampstead Heath. 
 The purchaser did not take any action against the vendor 
 (the principal) until after the completion of the purchase, 
 and it was then held too late. 
 
 As the principal is liable to the thii'd party for the fraud Liability of 
 
 of his agent, so the third party is liable to the principal when contract 
 
 for any fraud or misrepresentations which induced the "l'^*^® ^^ name 
 . . . 01 agent. 
 
 agent to enter into the contract on behalf of his prin- 
 cipal. 
 
 The contract may be made in the name of the agent. Deed executed 
 When the contract is by deed, and purports to be the i/sol^nname. 
 deed of the agent, then the principal cannot sue upon 
 
 (t) (1892) 2 Q. B. 534. P. T>. 376. 
 
 («) JBrett V. Cloivscr (1880), 5 C. (.i) Ubi supra. 
 
 W. Q
 
 226 
 
 PRINCIPAL AND AGENT. 
 
 General rule. 
 
 Principal 
 must prove 
 lie was real 
 
 it at law, by reason of the teclinical rule that those 
 persons only can sue or be sued upon an indenture who 
 are named and described in it as parties («) . See, how- 
 ever, the 46th section of the Conveyancing Act, 1881, 
 which allows the donee of a power of attorney to execute 
 a deed in his own name, and which provides that it shall 
 be as effectual to all intents as if it had been executed or 
 done by the donee of the power in the name and with the 
 signature of the donee thereof. 
 
 Sir Montague Smith said {b) : "■ Speaking generally, an 
 undisclosed principal may sue or be sued upon mercantile 
 contracts made by his agent in his own name, subject to 
 any defences or equities of which notice may exist against 
 the agent {Higgins v. Senior (c) ; Caldcr v. DohcU [d)). 
 There seems no sufficient ground for making a distinction 
 in the case of a marine policy of insurance, especially 
 when, having regard to the ordinary course of business, 
 it must be known that they are commonly made by 
 agents." In the case before him, the actual policy had 
 not been issued, but only a certificate of insurance, which 
 stated that the agent (mentioning his name) had effected 
 the insurance, and which certificate had not the ordinary 
 words, " I, A. B., as well in my own name as for and in 
 the names of all or every other person or persons whom 
 the same doth, may, or shall appertain, in part, or in all ;" 
 the Court held that thougli these words were not contained 
 in the certificate, it ought to be construed with regard to 
 the proved usage, viz., to treat such a document as provi- 
 sional, and entitling to a policy in the common form, and 
 that the principal could therefore sue. 
 
 Lord I)onman, in Sims v. Bo)id {<), said, "It is a well 
 establislicd rule of law that where a contract not under 
 
 {a) Beckham v. Brake (1811), 9 
 M. & W. 79, at p. 95. 
 
 (Ji) Brov:mv(j v. The Trov. Insur- 
 ance Co. of Canada (1875), L. R. 6 
 
 P. C. 2G3, at p. 272. 
 
 ((■) (1841), 8M. & W. 834. 
 (f/) (1871), L. R. G C. P. 486. 
 ((•) (1833), 5 B. & Ad. 389.
 
 LIABILITY OF TIIllU) rAllTlES TO TIllNCirAL. 227 
 
 seal is made with an ageut in his own name for an undis- party to 
 closed principal, either the agent or the principal may sue 
 upon it, the defendant in the latter case being entitled to 
 be placed in the same situation at the time of the dis- 
 closure of the real principal as if the agent had been the 
 
 contracting jiarty But where money is lent by 
 
 another in liis own name, the plaintiff, who alleges that 
 he was in reality the lender, must prove the fact dis- 
 tinctly and clearly. lie must show that the loan, though 
 nominally that of another, was really intended to be his 
 own ( /') . 
 
 If the agent has contracted as principal, the principal When agent 
 cannot sue, as it is not his contract, and there is no ppj^cfpai' ^^ 
 privity (g) . So, also, w^here the sub-agent who has not 
 been appointed with the principal's authority makes a 
 different kind of contract with the third party, the prin- 
 cipal cannot sue on it (//) ; the fact that he has done so 
 being evidence that the agent contracted as principal. 
 
 If the agent has commenced an action, the principal can If ag-ent com- 
 . -n . , , , T j-j. 1 • • i i." i-1 menced action 
 
 still intervene at any stage, and after his intervention the principal can 
 right of the agent to sue ceases {I) , unless the principal is intervene, 
 indebted to the agent, or the agent has a lien on the goods 
 or th^ir proceeds, in which case the agent's right is supe- 
 rior (/.•). 
 
 The principal can sue the third party, either in his own Principal can 
 name or in that of the agent. If he sues in that of the ^ j^fg ^^.^ 
 ag-ent he is liable to have a defence set up which may be name or in 
 
 ~ ao"ent s. 
 
 good only as against the agent, and so he may be defeated. 
 Thus, where a principal sued in the name of his insur- 
 ance broker for the amount of a loss, a settlement in 
 account between the broker and the thu-d party was held 
 
 (/) See also Cooker. Seek!/ [ISiS), (i) SacUery. Leiffh{lSl5), i Cam]^. 
 
 2 Ex. 746. 195. 
 
 iff) Eumhle V. Hunter (1848), 12 (/■) nudson v. Granger (1821), 5 
 
 Q. B. 310. B. & Aid. 27 ; Driu/cwater v. Good- 
 
 (h) New Zealand Land Co. v. ivin (1775), Cowp. 251. 
 Watson (1881), 7 Q. B. D. 374. 
 
 q2
 
 2-2 S 
 
 PRINCIPAL AND AGENT. 
 
 Foreign 
 principal 
 suing in 
 agent's name 
 can be forced 
 to give dis- 
 covery. 
 
 Principal in 
 action caunot 
 dispute 
 agent's ap- 
 parent autho- 
 rity. 
 
 a good defence. C. J. Denman said: "The plaintiff, though 
 he sues as trustee of another, must, in a court of law, be 
 treated in all respects as a party in the cause ; if there is a 
 defence against him, there is a defence against the cestui 
 que trust (the principal), who uses his name, and the 
 plaintiff cannot be permitted to say, for the benefit of 
 another, that his own act (the settlement in account) is void 
 which he cannot say for himself " («). 
 
 If a foreign principal sues in his agent's name, and the 
 agent has been treated as making the contract only as 
 agent, then the action brought in the agent's name will be 
 stayed unless the principal gives discovery (/.•). The 
 present Master of the Rolls, Lord Esher, said : "I am 
 prepared to decide that, where it is known to the Court 
 that there is a foreign principal residing abroad, who is 
 the real plaintiff in the action, and is only suing through 
 his agent here, and that agent was dealt with by the other 
 side as agent, and not as principal, then, in order to 
 prevent palpable injustice, the Court, by reason of its 
 inherent jurisdiction, will insist that the real plaintiff shall 
 do all that he ought to do for the purposes of justice, as if 
 his name were on the record. It is true the Court cannot 
 make an order on him such as is here asked for (discovery), 
 but it can say that the nominal plaintiff shall not proceed 
 with the action till the real plaintiff has done that which, 
 had he been a party to the action, he might have been 
 ordered to do." 
 
 As against third parties, the agent has the authority that 
 the principal hold him out to have. Therefore, if the prin- 
 ci[)al is suing the third party, he will be estopped from 
 disputing that the agent had the authority that he was 
 apparently held out to have. Tims, a person entrust- 
 ing goods to an auctioneer, as such, will not be allowed to 
 dispute his right to do what comes within the ordinary 
 
 (t) OibKon V. Winter (1833), 5 B. 
 & Adol. 96 ; hco also Dnkc oj Norfolk 
 V. Worthy (1808), 1 Camp. 337. 
 
 {k) Wi/lis c\- Co. 
 (1892) 2 Q. B. ;32-l. 
 
 V. Baddeletf,
 
 LIAlilLITY OF TJriRU PAKTIES TO PRINCIPAL. 229 
 
 business of an auctioneer (/). And a person employing 
 a stockbroker on the Stock Exchange authorizes him to 
 act according to the ordinary rules of the Stock Ex- 
 change (ill). 
 
 Mr. Justice Blackburn explains the law as follows (ii) : — 
 " At common law a person in possession of goods can- 
 not confer on another, either by sale or pledge, any better 
 title to goods than he himself had. To the general rule 
 there was an exception of sales in market overt, and an 
 apparent exception where the person in possession had a 
 title defeasible on account of fraud. But the general rule 
 was, that to make either a sale or a pledge valid against 
 the owner of goods sold or pledged, it must be shown that 
 the seller or pledger had authority from the owner to pledge 
 or sell, as the case might be. If the owner of the goods 
 had so acted as to clothe the seller or pledger with appa- 
 rent authority to sell or pledge, he was at common law 
 precluded against those who were induced bo>iu fide to act 
 on the faith of that apparent authority from denying that 
 he had given such authority, and the result as to this was 
 the same as if he had really given it." 
 
 If the principal so acts that the third party thinks the Principle of 
 person dealing with goods or property has a right to do '^'' °^'^*^ ' 
 so, he will be estopped from denying that the person had 
 authority, or from proving the act was without authority, 
 if the third party has altered his position in consequence. 
 Thus, where a person (o) who liad a mortgage on goods, 
 allowed them to be sold without saying anything about it, 
 he was held not entitled to recover them back. Lord 
 Denman said : " The rule of law is clear, that where one 
 by his words or conduct wilfully causes another to believe 
 the existence of a certain state of things, and induces him 
 to act on that belief so as to alter his own previous posi- 
 
 {l) rickcruiff V. £i(sk (1812), 15 («) Cole v. London and Xorth 
 
 East, 38. Western Bank (1875), 10 C. P. 354. 
 
 {m) Marker v. Edwards (1887), (o) Fickard v. Sears {1837), 6 Ad. 
 
 67L. J. Q. B. 147. &E1. atp. 469.
 
 230 
 
 PRINCIPAL AND AGENT. 
 
 Payment to 
 agent, when 
 good. 
 
 Estoppel in 
 mercantile 
 
 agent. 
 
 Protects 
 purchaser, 
 though factor 
 violated 
 authority. 
 
 tlon, tlie former is concluded from averring against the 
 latter a different state of things as existing at the time. . . . 
 "We think the plaintiff's conduct, in standing by and 
 giving a kind of sanction to the proceedings under the 
 execution, was a fact of such a nature that the opinion of 
 the jury ought, in conformity with Heane v. Rogers (p), 
 and Graves v. Key (q), to have been taken whether he had 
 in fact ceased to be owner." 
 
 If the third party relies on a payment to the agent, he 
 must show that the agent had authority to receive pay- 
 ment, and that the payment was made in such a way that 
 it could be handed over by the agent, and not by way of 
 set-off, or by a cheque which included payments to the 
 agent (;•). 
 
 In mercantile agency, the principle of estoppel works 
 very large and far-reaching results, for some agents, being 
 entrusted by the owners of goods with the possession of 
 them, or the documents of title relating to them, are able 
 to appear to third parties as if they were the actual owners 
 of the goods in their possession. Factors, in the usual 
 course of their business, are entrusted with goods of others, 
 and sell in their own name. If a princijial therefore 
 employs a factor to sell goods, and entrusts him with his 
 goods, or the documents of title, the principal is estopped 
 from denying the factor's authority, although he may 
 have violated his instructions, and sold them at prices not 
 authorized, provided always, that the sale were one which 
 the factor might have made while acting in the ordinary 
 course of business (s). On the same principle, it lias been 
 held that a person with authority to sell goods has implied 
 authority to receive payment for them (/), and that where 
 a factor sells goods, although he is known to be acting as 
 
 {p) (1829), 9 B. &C. 577. 
 
 (q) (1832), ;5 B. & Ad. 313. 
 
 (r) Sco "Authority of Agent," 
 p. 72 and following, and I'cnrson 
 V. 6't'(/«, (187«), C. IJ. 108; Papv 
 
 V. Westacott (1893), 10 Times, 51. 
 
 (s) rickcrwg v. Busk (1812), 15 
 East, 28. 
 
 [t) Capel V. TJinrnton (1828), 3 
 Cur. & Payuo, 352.
 
 LIABILITY OF THIRD TARTIES TO TRINCIPAL. 231 
 
 agent, payment to liim is good, even if made before pay- 
 ment is due {/(). 
 
 The next result of tlie principle of estoppel is to allow a Gives pur- 
 purchaser from a factor, if he believes the agent is the owner of ^et-off" 
 of the goods, to set off a debt that the agent may owe him 
 when paying for the goods. For he may have chosen to 
 make a purchase from the factor (whom he believed to be 
 a principal) merely for the sake of trying, by setting off 
 the price of the goods he has purchased, to obtain payment 
 of a debt which the factor owed him. And it is felt that it 
 would be unjust if, after he had done this, the principal 
 could intervene and insist upon payment in full. It was, 
 therefore, decided that where a purchaser has dealt with a 
 factor in the belief that he is principal, and for the pur- 
 pose of setting off against the price of the goods a debt 
 of the factor's to him, he can use the set-off against the 
 principal in an action for the price of the goods (v). The 
 right to set off only arises where the purchaser believed at 
 the time of the pm-chase that he was dealing with a 
 principal ; if he has notice that the goods are not the 
 seller's own goods, but that of some one else, the right to 
 set off does not arise (.^■). 
 
 Before the Factors Act of 1889 was passed the third Before 
 party setting up the right to set off had to prove that 1889° had to 
 the factor had been entrusted with the goods by the prin- prove factor 
 
 . ,.,. ., p, . , J, ^ -re had possession 
 
 cipai m his capacity as lactor, ?. c, agent lor sale, li as factor, 
 the entrusting had been in any other capacity, as for 
 instance as warehouseman, the right to set off did not 
 arise (i/). The effect of this was, that in many cases 
 persons dealing with factors on the faith of their a2:)parent 
 position of owners were defrauded, and obliged either to 
 return the goods or pay for them a second time. 
 
 (u) Fish V. Kempton (1849), 7 C. (.r) Ex parte Dixon, In re Tlaxleij 
 
 B. 6S7. (1878), 4 C. D. 133. 
 
 (r) George v. Claqett (179G), 2 (y) Cole v. London i- N. W. Bank 
 
 Smith's Leading Cases, 9 ed. p. 130, (1875), L. R. 10 C. P. 354.
 
 232 
 
 PRINCIPAL AND AGENT. 
 
 "WTiat pur- 
 chaser must 
 prove now. 
 
 Factor no 
 right to 
 pledge at 
 common law. 
 
 When factor 
 has right 
 now. 
 
 XoTV, bv the Factors Act, 1889, a person dealing with 
 a mercantile agent, who in the ordinary course of his 
 business has anthority to sell goods, is protected provided 
 the factor or mercantile agent is in the possession of the 
 goods with the consent of the owner, and is acting in the 
 ordinary course of his business. 
 
 Mr. Justice Blackbrnn, in the account he gives of the 
 law of estoppel in Cole v. London ^ North Western Bank (s), 
 assimies a case where the owner of goods might have so 
 acted as to clothe the pledger with apparent authority to 
 pledge, and would therefore, at common law, be precluded 
 from denying such authority. The writer has found no 
 case in which it has been held that the owner of goods 
 had so acted as to clothe an agent with apparent authority 
 to pledge. In the case of a factor who is agent to sell, it 
 might have been assumed that an authority to do the 
 greater, viz., to sell, would have included an authority to 
 do the less — to pledge. But although it is constantly 
 necessary for factors to pledge the goods entrusted to 
 them for the purposes of their employers, it was held at 
 common law that an agent having general authority to 
 sell has no authority to pledge {a), and that if he pledge 
 the goods as his own the act was so tortious as not to 
 transfer to the pledgee even the lien which the factor 
 himself had for advances on the goods {h). 
 
 To obviate the inconvenience of these decisions, and to 
 facilitate mercantile transactions, the Factors Act of 1842 
 (5 & 6 Vict. c. 39) was passed, which gave factors an 
 implied authority to pledge. This right to pledge has 
 been am}»lified and imj)roved by the Factors Act, 1889, 
 which repeals all the other Factors Acts. 
 
 Tlie law is thus stated by Lord Chief Justice Wilde {c) : 
 " Wliere goods are placed in the hands of a factor for sale, 
 
 {z) Uhi supra. {b) McCombie v. Davies (1805), 7 
 
 (/?) J'aterson t. Task (1742), 2 East, 5. 
 Strange, 1178. (r) Fish v. Kempton (1849), 7 C. 
 
 B. G87.
 
 LIABILITY OF THIRD PARTIES TO PRINCITAL. 233 
 
 and are sold by him under circumstances that are calcu- 
 lated to induce and do induce a purchaser to believe that 
 he is dealing with his own goods, the principal is not per- 
 mitted afterwards to turn round and tell the vendee that 
 the character that he himself has allowed the factor to 
 assume did not belong to him. The purchaser may have 
 bought for tlie express piu-pose of setting off the price of 
 the goods against a debt due to him from the seller. But 
 the case is different where the purchaser has notice at the 
 time that the seller is acting merely as the agent of 
 another." 
 
 It would seem from the principle of estoppel, that it Extent to 
 ought to be necessary for the third party to show that he extends. 
 would not have made the contract if he had known the 
 agent was not a principal, or that he had been otherwise 
 damnified by the principal's conduct in holding out the 
 agent as the owner of the goods. The mere fact of the 
 agent having acted in his own name and being in posses- 
 sion of goods, ought not to enable the third party to pay 
 himself with the principal's money or goods. It does, 
 however, not seem necessary to prove either the one or the 
 other : if a person appears to act as principal, a person 
 who bond fide enters into an)/ contract with him as prin- 
 cipal may set off any demand he may have on him as 
 against a claim on the contract, and this principle does not 
 apply only to contracts for sale or purchase of goods, but 
 to any contract {d) . 
 
 To establish this right of set off, the third party must What third 
 prove that the agent or person with whom he contracted p^o^e ^o^^ 
 was given the goods by the principal ; that the person sold establish 
 them as his own goods in his own name as principal, with off. 
 the authority of the real principal ; and thirdly, that the 
 third party dealt with him and believed him to be prin- 
 
 {(l) Montagu v. Forwood (1893), 9 Times, 634 ; (1893) 2 Q. B. 350.
 
 234 
 
 nUXCIPAL AND AGENT. 
 
 Set-off at 
 common law 
 of mutual 
 claims. 
 
 Effect of 
 entrusting 
 agent with 
 negotiable 
 instruments. 
 
 cipal in the transaction, and that, before the third party 
 was undeceived in that respect, the right accrued (e). 
 
 At common law there was no right of setting up a set- 
 off as a defence, unless there was some agreement between 
 the parties to that effect ; but by usage of some traders 
 set-offs were binding as part of the contract. By two Acts 
 of 2 Geo. II. c. 22, s. 13, and 8 Geo. II. c. 24, s. 4, mutual 
 debts might be set off apart from any agreement. These 
 Acts have now been repealed by the 24th section of the 
 Judicature Act, which now allows the Court to grant 
 any relief that the defendant claims in his pleading which 
 the Coui't could have granted if the defendant had brought 
 an action for that purpose. 
 
 "Where negotiable instruments are entrusted to an agent 
 for sale, the third party can refuse to give them up with- 
 out being paid the amount he has advanced on them in 
 good faith {/). If, however, the third party knows that 
 they are given to the agent only as secmity for money, he 
 can only hold them for the amount of the money secured 
 on them, whatever that may be (g) . 
 
 The third party, in order to come within the principle 
 of George v. Ckigetf{//), — that a bond fide purchaser from an 
 agent has a right of set-off — in those cases to which the 
 Act does not apply (/.^., where the agent has not posses- 
 sion of the goods or the documents of title to them with 
 consent of the owner), has to show that he believed the 
 agent (who was allowed to hold himself out as principal 
 by the real owner of the goods) was a principal, and he 
 dealt witli him as such ; but the third party is not bound 
 to show that he had no means of knowledge that the seller 
 
 {e) Scmenza v.' Brinslerj (1865), 18 
 C. B. N. S. 467, at p. 477. 
 
 (/) London Joint Stock Bank v. 
 Simmons, (1892) Ap. Cas. 201; 
 BOO Lord Ilcrscholl's judgment, 
 pp. 214 — 217. Seo also Goodwiny. 
 
 Eobaris, 1 Ap. Cas. 476. 
 
 {(j) ShcfUeld V. London Joint Stock 
 Bank (1888), 13 Ap. Cas. 333. 
 
 (//) (1796), Smith's Leading- 
 Cases, 'Jth ed. 130.
 
 LIAIULITY OF Tllllin PARTIES TO ^RT^XT^AL. 235 
 
 was an agent (/). If he knows the agent is not a principal, 
 it does not matter how he acquired that knowledge. 
 
 Knowledge, however obtained, that goods were not the 
 property of the person dealing as principal prevents the 
 advancer from having a lien for advances made after such 
 knowledge, because it is unjust, with knowledge, to take 
 one man's goods to pay another's debt (j). 
 
 As we have seen, a broker is not like a factor in posses- Broker, 
 sion of goods, and does not usually sell in his own name : 
 he only negotiates sales (/.■). Therefore the principal is 
 not held to have given him such a large authority, and is 
 not estopped in the same way. 
 
 To establish this right of set-off, where the agent is a Ignorance of 
 broker, it is not sufficient for the third party to prove a^^itnot™^ 
 that he acted in ignorance as to whether the agent was a sufficient, 
 principal or not, or with no belief one way or other ; he 
 must prove that at the time he liad a positive belief that 
 he was dealing with a principal. 
 
 Thus, in Coo/;c v. Eshclhy [1), where the third party What third 
 could not go further than saying that he did not know to es^aMsh 
 for whom the agent was acting, it was held that was not ^''^^^t of set- 
 enough; that to acquire the right of set-off he must have a "-cnt broker. 
 believed the agent was a princij)al ; it is not sufficient to 
 contract having no opinion one way or otlier. Lord 
 Watson said : " A sale by a broker in his own name 
 to persons having that knowledge " (/. e., that he was 
 a broker) " does not convey to them an assurance that 
 he is selling on his own account ; on the contrary, it 
 is equivalent to an exj)ress intention that the cotton is 
 either his own property or the property of a principal 
 who has employed him as an agent to sell. The piu-- 
 chaser who is content to buy on these terms cannot, 
 
 (i) Borries v. Imperial Ottoman [k) Bnriiiffv. Conic {IS18), 2^. & 
 
 Bank (1873), 9 C. P. 38. Aid. 137. 
 
 {j) Mildred V. Ma^jmis (1883), 8 (/) (1887), 12 Ajx Ca,.s. 271. 
 
 Ap. Gas. 885.
 
 236 PRINCIPAL AND AGENT. 
 
 when the real principal comes forward, allege that the 
 broker sold cotton as his own. If the intending purchaser 
 desires to deal with a broker as a princij)al, and not as an 
 agent, in order to secure a right of set-off, he is put upon 
 his inquiry. Should the broker refuse to state whether he 
 is acting for himself or for a principal, the buyer may 
 decline to enter into the transaction. If he chooses to 
 purchase without inquiry, or notwithstanding the broker's 
 refusal to give information, he does so with notice that 
 there may be a piincipal for whom the broker is acting as 
 agent, and should that ultimately prove to be the fact, he 
 has, in my opinion, no right to set off his indebtedness to 
 the principal against debts o"«dng to him by the agent." 
 Lord Watson then commented on the cases, and con- 
 tinued : " These decisions appear to me to establish con- 
 clusively that in order to sustain the defence pleaded by 
 the appellants {i.e., that they had a set-off against the 
 agent) it is not enough to show that the agent sold in his 
 own name. It must be shown that he sold the goods as 
 /lis oicu, or, in other words, that the circumstances attend- 
 ing tlie sale were calculated to induce, and did induce in 
 the mind of the purchaser, a reasonable belief that the 
 agent was selling on his 0"wti account and not for an 
 undisclosed principal ; and it must be shown that the 
 agent was enabled to appear as the real contracting party 
 by the conduct or by the authority, express or implied, of 
 the principal. The rule thus explained is intelligible and 
 just, and I agree with Lord Justice Bowen that it rests 
 upon the doctrine of estoppel." 
 Set-off of On the same principle, it was held that a bank which 
 
 advances to had dealings with a money-lender, and knew the securities 
 money-lender. -vY'liic}! \iq pledged were probably not his own but his 
 client's, could not hold them for more than what the 
 money-lender had advanced on them {m). 
 
 (w) Sheffield v. London Joint Stock London Joint Stock Bank v. Sim- 
 Bank (1868), 13 Ap. Cas. 333; »io««, (1892) Ap. Cas. 201.
 
 LIABILITY OK THIRD PARTIES TO PIllXCIPAL. 237 
 
 Except where the third party knows the deeds or docu- Owner of 
 ments are not the agent's, the principal can only re- l^ecfi^ who has 
 cover them subject to paying what the agent has pledged only recover 
 them for. So it has been held that if the legal owner of Tclvr/cr''*''* 
 deeds intrusts them, or the control of them, to an agent in 
 order that he may receive money on them, he cannot in 
 equity recover them from a person who has bond fide 
 advanced money on them without notice of anj^thing 
 wrong except upon terms of paying what that person has 
 advanced on the security of the deeds handed over to 
 him (;/). And, therefore, the Court of Appeal held that if 
 an owner of deeds has placed them under the control of 
 another, and has authorized him to pledge them for a 
 certain sum, and the agent has pledged them for more 
 with a person dealing ho)id fide and without notice of the 
 limits of his authority, the owner of the deeds cannot 
 redeem them without paying the full amount advanced on 
 them (o). 
 
 The right of the third party to set off a debt of the if third party 
 agent against the price of goods only arises if he believes before ad- 
 at the time of the adrance to the agent that he was deal- of true owner- 
 ing with a principal ; and it follows tliat if before making off or Uen^*^" 
 the advance he knows the fact that he is dealing with an 
 agent, cessante ratione eessrit ipsa lex (j)). Lord Justice 
 Lindley, in Maspons v. Mildred {(j), states the law thus : 
 " According to our law the right of the defendants to a lien 
 or set-off depends on a question of fact, viz., whether the 
 defendants did or did not know that Demestre & Co. were 
 acting for an undisclosed principal before the defendants' 
 alleged lien or right of set-off accrued." Lord Watson 
 laid down the rule thus (>•) : " The purchaser from an 
 
 («) Northern Counties Fire Insur- (p) Smith's Mercantile Law, 
 
 mice Co. V. Whipp (1884), 26 C. D. 10th ed. p. 166. 
 
 492, 493, 494. (q) (1832), 9 Q. B. D. at p. 543 ; 
 
 (o) Brockleshy v. The Temperance affirmed 8 Ap. Gas. 874. 
 
 Building Society (1893), 9 Times, (;■) Kaltenbach v. Lcivis (1884), 
 
 561. 10 Ap. Cas. 617, atp. 626.
 
 238 
 
 PRINCIPAL AND AGENT. 
 
 No set-off of 
 pledge to 
 secure ante- 
 cedent debt. 
 
 Goods must 
 have come 
 into posses- 
 sion of agent, 
 qua agent, to 
 create set-off. 
 
 agent selling in his own name for an undisclosed principal 
 transacts, or is presumed to transact, on the faith of his 
 having the right to set off the price payahle hy him 
 against dehts owing to him hy the seller, jet he cannot 
 avail himself of such set-off arising after notice of the true 
 ownership." (Since that decision the word " liahility " 
 has been included in the new Factors Act, which would 
 slightly alter the decision in this case, though not the 
 above principle.) It seems, where a third party buys for 
 the pui'pose of having a set-oS, the right of set-off accrues 
 directly on the contract. Where having bought, as he 
 thought, from a principal he then learns that he was 
 dealing with an agent, and he afterwards makes advances, 
 the advances, except so far as they were for the principal's 
 benefit, cannot be set off against the price of the goods or 
 what represents them, such as insurance money (-s-). 
 
 If the agent has pledged the goods or documents of 
 title thereto for an antecedent debt, or a liabihty due 
 by him before the time of the pledge, it will give the 
 person who receives them in pledge no further title to 
 the goods than the agent had at the time of the pledg- 
 ing {t) ; for the third party has not been induced to 
 act differently by the principal's conduct than he other- 
 wise would have, since he gave the agent credit not on 
 faith of his being owner of the goods. 
 
 If the goods have come into the possession of the agent 
 in some other capacity than as agent, unless the agent is a 
 mercantile agent (see j). 232), the principalis not estopped 
 from claiming them or their value. For example, if a 
 furnished house is let to one who carries on the busi- 
 ness of an auctioneer, he is intrusted as tenant with the 
 furniture, being, in fact, auctioneer. It never was the 
 common law, and could not bo intended to be enacted, 
 that if ho carried the furniture to his auction room and 
 
 (.v) Mildred v. Maspons (1883), 8 
 Ap. Gas. 874 ; see also Maanss v. 
 Henderson (1801), 1 East, 335. 
 
 (0 Mildred V. Maspons (1883), 8 
 Ap. Gas. 874, at p. 885.
 
 LIABILITY OF THIRD PARTIES TO PRI^"CTPAL. 239 
 
 there sold it, lie could confer any better title on the pur- 
 chaser than if he had as auctioneer acted for some other 
 tenant who committed a similar larceny as a fraudulent 
 bailee ; nor, to come nearer the present case, that a ware- 
 houseman or wharfinger who as such is intrusted with 
 the custody of goods, if he happens also to pursue the 
 trade of a -factor, can give him a better title by the sale 
 of goods than he could if they had been intrusted to some 
 other warehouseman who employed him to sell {ii). 
 
 The Factors Act begins by defining tlie kind of agents Factors Act, 
 it applies to — mercantile agents — " a mercantile agent viet. c^io)! 
 having in the customary course of his business as such What agents 
 agent authority either (a) to sell goods; (b) to consign ^ ^Pi^'*^" 
 goods for purpose of sale ; (c) or to buy goods ; (d) or to 
 raise money on the security of goods " {v). Under the old Not to clerk. 
 Acts, a clerk who had authority to sign delivery orders in 
 his employer's name and receive dock warrants in his 
 own name was decided not to be within the Factors Act ; 
 since, as Crompton, J., pointed out (x), the establishment 
 of the relation of principal and agent was contemplated, 
 and fell short of including the relationship of master and 
 servant (i/), and the same reasoning applies to the present 
 Act. The policy of the Acts, however, extends to agents 
 who are not factors strictly speaking, as is clear from the 
 definition clause, although it does not to persons in the rela- 
 tionship of master and servant to one another. Mr. Justice 
 Mathew decided, in Hastings v. Pearson, that the Act did 
 not apply to a person employed to hawk about and sell 
 goods on commission (;:). After reading the definition 
 clause, he said : "It was plain that the Act applies only 
 to persons of the class ordinarily carrying on the business 
 of mercantile agents, and that it has no reference to a 
 
 (m) Per Lord Blackburn in Cole v. Sicainson (1SG2), 32 L. J. Q. B. 
 
 V. L. ^- N. JF. Bank (1875), 10 C. 281, per Crompton, J., at p. 288. 
 P. 369. {i/} For definition of agent, see 
 
 (f) Sect. 1, sub-s. 1. pp. 1, 2. 
 
 {z) Lamb v. Attcnhorough (1862), {z) Hastings v. Pearson, (1892) 1 
 
 1 B. & S. 831, 83o; and see Babies Q. B. 62.
 
 240 
 
 PRINCIPAL AND AGENT. 
 
 What kind of 
 
 possession 
 
 necessary. 
 
 What are 
 documcuts of 
 title. 
 
 man in sucli a position as Brooke (tlie agent wlio hawked 
 jewellery) was. There is no such business as that of an 
 agent to pledge with pawnbrokers small articles of jewel- 
 lery for the purpose of raising money for the employer of 
 the agent." This case and the definition in the Act both 
 seem to point to the conclusion that a third party dealing 
 with a person employed for the first time to do a particular 
 kind of business which was not his ordinary business is 
 not entitled to the benefit of the Act. Wharfingers and 
 others who receive goods only for safe custody are clearly 
 not within the Act {a) . 
 
 The Act next defines "possession," and enacts that "a 
 person shall be deemed in possession of goods or of docu- 
 ments of title to goods where (a) the goods or documents 
 are in his actual custody, (b) are held by any other 
 person (1) subject to his control; or (2) for him; or (3) on 
 his behalf." Under the similar section in the Act of 1842 
 this was held to include the kind of possession a mort- 
 gagor has who has pledged goods for less than their full 
 value (b). 
 
 Documents of title are defined to include (1) " any bill 
 of lading ; (2) dock warrants ; (3) warehouse-keeper's 
 certificates ; (4) warrant or order for delivery of goods ; 
 (0) and any other document used in the ordinary course 
 of business as proof (a) of the possession, (b) or control 
 of goods ; or (G) authorizing or purporting to autho- 
 rize, either (a) by endorsement or (b) delivery, the 
 possessor of the document to transfer or receive goods 
 tliereby represented." A document certifying only where 
 goods are is not included {c) ; but warrants for goods 
 deliverable to A. B., or to his assigns by indorsement, are 
 within tlio Act (d). 
 
 (it) Monk V. WhiUenhury (1831), 2 
 B. k. Ad. 481. 
 
 [h) J'ortansv. Tetlcy{l%(ol),L.\l. 
 5 Ec]. MO. 
 
 {(•) Gioni V. 
 Cli. Ap. 491. 
 
 {(I) Merchant Banking 
 Phoenix, ^-c. Co. (1877), 
 205. 
 
 Bolckow (1875), 10 
 
 Co. V. 
 i C. D.
 
 LIABILITY OF THIRD PARTIES TO PRINCIPAL. 241 
 
 " Pledge " shall " iucliide any contract pledging or pledge. 
 giving a lien or security on goods, whether in considera- 
 tion of an original advance or of any further or con- 
 tinuing advance, or of any pecuniary liability." 
 
 " Person " is defined as including any body, whether Person, 
 corporate or not. 
 
 The Act then provides that " where a mercantile agent When disposi- 
 is with the consent of the owner in possession of goods, or ^^^^ ^°° 
 of the documents of title to goods," then any " sale, Sect. 2, 
 pledge, or other disposition of the goods made by him 
 w/toi acting in the ordinary course of business of a mercantile 
 agent, shall, subject to the provisions of this Act, be as 
 valid as if he were expressly authorized by the owner of 
 the goods to make the same : provided that the person intrusting 
 taking under the disposition acts (a) in good faith, and ^^^^^ ^ ^^ 
 (b) has not at the time notice that the person making 
 the disposition has not authority to make the same " (^/'). 
 Mr. Justice Blackburn (e) , when dealing with the old 
 Acts, pointed out what it is submitted is equally true 
 under the present one, namely : "It must be intended to 
 apj)ly only to cases in which the infru^sting is in the course 
 of that kind of agency so as to create the relation of prin- 
 cipal and agent between the intrustor and the intrusted 
 
 For example, if a furnished house be let to one 
 
 who carries on the business of an auctioneer, he is in- 
 trusted as tenant with the furniture, being, in fact, an 
 auctioneer ; but it never was the common law, and could 
 not be intended to be enacted, that if he carried the furni- 
 ture to his auction room, and there sold it, he could con- 
 fer any better title on the purchaser than if he had as 
 auctioneer acted for some other tenant who committed a 
 
 similar larceny as a fraudulent bailee ; nor that 
 
 a warehouseman or wharfinger who as such is intrusted 
 with the custody of goods, if he happens also to pm-sue 
 
 {d) Sect. 2. (c) Cole v. North- Western Bank 
 
 (1875), L. R. 10 C. P. 369. 
 
 W. R
 
 242 
 
 PRINCIPAL AND AGENT. 
 
 What notice 
 of principal 
 destroys 
 Bet-off. 
 
 the trade of a factor, can give a better title by sale of the 
 goods than he could if they had been intrusted to some 
 other warehouseman who employed him to sell." It has 
 abeady been pointed out that the " disposition " must 
 have been in the ordinary course of his business (/) . If 
 the principal did, in fact, intrust the agent as an agent, 
 though induced to do so through stating untruly that he 
 wanted to sell them to a particular person, or by a fraud, 
 it is immaterial so far as thii'd parties are concerned {g). 
 If a person taking under the disposition learns or has 
 notice that the mercantile agent is only an agent, and 
 knows the particular " disposition " is for the agent's own 
 j)ersonal benefit, and not for his principal, he could, it is 
 submitted, not be acting in good faith, and would only 
 take what interest the agent had, or to the extent that he 
 had himself a claim, which would be good as against the 
 principal, such as premiums, stamps, and commission, and it 
 seems, under the circumstances, he would have notice that 
 the agent was acting without authority. The distinction 
 between notice and knowledge which Lord Blackburn 
 raised in Mildred v. Maspons [h) would hardly arise under 
 the present Act, since if a person had knowledge he could 
 hardly act in " good faith." 
 
 Lord Blackburn held then that it was not necessary 
 that there should be notice of the name of the person 
 having an interest, but only that there is a person having 
 such an interest. On the other hand, it is submitted that 
 it would not be sufficient to prevent the disposition being 
 valid (in a case to which the Act applies) to prove that 
 the person dealing with the agent knew that the agent 
 sometimes acted as agent, and that the third party never 
 asked or considered in what capacity the agent was acting 
 
 (/) Hastings v. Tearson, (1892) 1 
 Q. B. C,2. 
 
 {//) Jla'uicn V. Sirainson (1862), 32 
 L. J. Q. B. 281 ; fihcppnrd v. Union 
 Hank (18G1), 31 L. J. Ex. 154 ; see 
 
 also Eingsford v. Merry (1856), 26 
 L. J. Ex. 83 ; JIardman v. Booth 
 (18G2), 32 L. J. Ex. 105. 
 (/() (1883), 8 Ap. Cus. 885.
 
 LIABILITY or TTITRD PARTIES TO PRIXCIPAL, 213 
 
 at the time of the disposition, Coolie v. E^helby not being 
 decided under the Factors Acts (/). 
 
 " Where a mercantile agent has, with the consent of the Disposition of 
 owner, been in possession of goods or documents of title withstanding 
 to goods, any sale, pledge, or other disposition which revocation ot 
 would have been valid if the consent had continued shall Sect. 2, 
 be valid notwithstanding tlie determination of the consent, 
 provided that the person taking under the disposition has 
 not at the time thereof notice that the consent has been 
 determined." 
 
 This sub-section makes valid a disposition where a 
 person has dealt in good faith with a mercantile agent 
 who still remains with the goods or documents of title 
 to goods in his possession at the time of the disposition, 
 although his original authority has been withdrawn by 
 his principal. At common law the disposition, whatever 
 it was, would, under such circumstances, have been invalid, 
 and the owner of the goods entitled to recover them or 
 their proceeds (/i) . 
 
 " Where a mercantile agent has obtained possession of Sect. 2, 
 any documents of title to goods by (a) reason of his being. Definition of 
 or having been with the consent of the owner, in posses- possession 
 sion of goods represented thereby, (b) or of any other of owner, 
 documents of title to the goods, his possession of the 
 first-mentioned documents shall, for the purposes of this 
 Act, be deemed to be with the consent of the owner." 
 The object of this section, which is only a re-enactment 
 of sect. 4 of the Act of 1842, is to further protect a person 
 dealing bond fide with a mercantile agent. For example, 
 the agent may have been entrusted with goods for sale 
 and thereby have obtained dock-warrants, or else may 
 have been entrusted with the bill of lading and so have 
 got the dock-warrants to the goods made out in his name, 
 
 (i) (1887), 12 Ap. Cas. 271. Johnson v. Credit Lyonnais (1877), 3 
 
 {k) Fuentcsy. Montis {1868), L. R. C. P. D. 32. 
 3 C. P. 268 ; (1869), 4 C. P. 93 ; 
 
 r2
 
 244 PRINCIPAL AND AGENT. 
 
 and tlien liave pledged the dock-warrants to a person 
 acting bond fide as security for an advance. In both of 
 these cases the Court, by narrowly construing the original 
 Factors Act, held, that as it did not appear that the principal 
 intended the agent to get hold of the dock-warrants, and 
 had not intrusted them to the agent, the third party, 
 although he dealt bond fide with the agent, was not pro- 
 tected by the Factors Acts, and that accordingly the 
 principal was entitled in an action for trover to recover 
 his goods (/) . 
 Sect. 2, " For the purposes of this Act the consent of the owner 
 
 shall be presumed in the absence of evidence to the 
 contrary." 
 Sect. 3. "A pledge of the documents of title shall be deemed to 
 
 documents is ^^ a pledge of the goods." This extends the efPect of the 
 pledge of ^ct^ an(j makes it apply not only to pledgors of goods 
 themselves, but makes the pledging of the documents to 
 have the same effect as a pledge of the goods. 
 Sect. 4. " Where a mercantile agent pledges goods as security for 
 
 antefeden^t ^ ^^^ °^ ^ liability due from the pledgor to the pledgee 
 debt gives no before the time of the pledge, the pledgee shall acquire no 
 against owner further right than could have been enforced by the pledgor 
 of the goods, at the time of the pledge." 
 
 Where the third party had allowed the debt or liability 
 to be incurred by the agent before the goods or documents 
 of title were pledged, it could not, of course, be said that 
 the principal had so acted as to induce the persons dealing 
 with the agent to believe he was the owner of the goods 
 and thus give him credit. If an agent then pledged 
 goods under such circumstances, it has only the effect of 
 transferring the lien he himself may have in the goods as 
 against the owner [ni) , and the pledging is only good up 
 to tliat amount as against the owner. Liability means 
 
 {I) IlatficM V. ThiUps (1845), 14 IFulmcs (1837), 2 Moo. & Rob. 22. 
 M. & W. GG5 ; rhillips v. Ifuth (w) See (^milter on Rights of 
 
 (1840), G M. & W. 572 ; Close v. Agctit against Principal.
 
 LIABILITY OF THIRD PARTIES TO PRINCIPAL. 245 
 
 sometliing that has not yet develoioed into a debt, as a 
 claim the amount of which is not ascertained, or a lia- 
 bility on a bill which is still running. The old Act had 
 not this word in it, and consequently the House of Lords, 
 in a case under it, held that the pledge for the amount of 
 a liability which the agent had incurred to the third party 
 was good as against the owner of the goods (»). 
 
 " The consideration necessary for the validity of a sale. Sect. 5. 
 pledge, or other disposition of goods in pursuance of this sideration'for 
 Act, may be either (1) payment in cash, (2) or the de- disposition of 
 livery, (3) or transfer of other goods, (4) or a document of 
 title to goods, (5) or of a negotiable security, (6) or any 
 other valuable consideration ; but where goods are pledged 
 by a mercantile agent in consideration (a) of the delivery 
 or transfer of other goods, or (b) of a document of title to 
 goods, or (c) a negotiable security ; the pledgee shall 
 acquire no right or interest in the goods so pledged in 
 exces>i of the value of the goods, documents, or securitjj, ichen 
 so delivered or transferred in exchange." 
 
 This section facilitates loans and overdrafts by bankers Object of 
 and others to mercantile agents, since it allows the sub- facuTtate' 
 stitution of the security of another set of documents to loans by 
 goods, or of goods themselves, for those in their possession. 
 Although the original advance was not made on the 
 secm-ity of the substituted documents or goods, yet it will 
 be good to the extent of the value of the goods, &c. on 
 which the original loan was made. It would seem that 
 the onus of proving their value will lie on the person 
 supporting the transaction. 
 
 " For the purposes of this Act an agreement made with Sect. 6. 
 a mercantile agent through a clerk or other person autho- ^^^i^ clerks, 
 rized in the ordinary course of business to make contracts '^''• 
 of sale, or pledge on his behalf, shall be deemed to be an 
 agreement with the agent." 
 
 («) Kaltcnhach v. Lewis (1884), 10 Ap. Cas. 617.
 
 246 
 
 PRINCIPAL AND AGENT. 
 
 Sect. 7, 
 bub-s. 1. 
 Provisions as 
 to consigTiors 
 and con- 
 siniees. 
 
 Sect. 7, 
 8ub-8. 2. 
 
 Sect. 8. 
 DLsposition 
 by seller 
 remaining in 
 possession. 
 
 " TVTiere the OKner of goods has giyen possession of the 
 goods to another person (a) for the purpose of consignment 
 or sale, (b) or has shipped the goods in the name of 
 another person, and the consignee of the goods has not 
 had notice that snch person is not the o"mier of the goods, 
 the consignee shall, in respect of advances made to or for 
 the use of such person, have the same lien on the goods as 
 if such person were the OTvner of the goods and may 
 transfer any such lien to another person." 
 
 This section protects persons, dealing with an agent in 
 two cases, although such agent may not be a " mercantile 
 accent" within the definition clause of the Act : first, where 
 the owner has given the agent possession for the purpose 
 of consignment or sale ; and the second, where the owner 
 has shipped the goods in the name of the agent. In both 
 these cases the second party dealing without notice is put 
 in the same position as if the agent were the owner. It 
 does not appear that under this Act the shipment need 
 have been for the purpose of consignment or sale as under 
 the previous Act(o). 
 
 " Xothing in this section shall hmit or affect the validity 
 of any sale, or pledge, or disposition, by a mercantile 
 agent." 
 
 There will, therefore, be any additional protection that 
 may be gained under the foregoing part of the Act if the 
 agent happen to be a mercantile one vdthin the meaning 
 of the Act. 
 
 " "Where a person having sold goods continues or is in 
 possession of the goods, or of the documents of title to the 
 goods, the delivery or transfer by that person, or a mcrcan- 
 tilf Gijcnt actbifj for him, of the goods or document of title 
 under any sale, pledge, or other disposition thereof, or 
 under any agreement for sale, pledge, or other disposition 
 thereof to any person receiving the same in good faith, 
 
 (o) Johmn v. Credit Lyonmit (1877), L. B. 3 G. P. D. 32.
 
 LIABILITY OF TIIITIU TARTIES TO PRINCIPAL. 247 
 
 without notice of the previous sale, shall have the same 
 effect as if the person making the delivery or transfer 
 were expressly authorized by the owner of the goods to 
 make the same." This section does not, strictly speaking, 
 deal with the law of agency or factors. It protects the 
 least blameworthy of two innocent parties. If a person 
 chooses to buy " goods " and then leaves the documents 
 of title thereto in the seller's hands, he is put in the same 
 position, when any other person lends money on them or 
 buys them in good faith, as if the seller had been autho- 
 rized to re-sell or pledge them. 
 
 " Where a person, having bought or agreed to buy goods. Sect. 9. 
 obtains, with the consent of the seller, possession of the by buyer 
 
 s'oods or the documents of title to the ffoods, the delkcni or obtaining 
 '^ . ' . possession. 
 
 transfer by that person, or by a mercantile agent acting 
 
 for him, of the goods or documents of title (a) under any 
 sale, pledge, or other disposition thereof, or (b) under any 
 agreement for sale, pledge, or other disposition thereof, to 
 any person receiving the same in good faith, and without 
 notice of any lien or other right of the original seller in 
 respect of the goods, shall have the same effect as if the 
 j)erson making delivery or transfer were a mercantile 
 agent in possession of the goods or documents of title with 
 the consent of the owner." 
 
 This section, also, does not deal with the law of Prin- 
 cipal and Agent. It provides for the converse ease to 
 that in the last section : namely, where the purchaser and 
 not the vendor acts fraudulently. This section, like the 
 last, is intended to protect a third party dealing ho)ul fide 
 with a person who is in possession of goods with the 
 consent of the true owner. The tliird party is not obliged 
 to investigate into the circumstances under which posses- 
 sion has been obtained. The thii'd party is safe in dealing 
 with the person in possession of the goods or documents 
 if the owner has put such person in possession of them, 
 either under an arrangement that the latter is to buy them 
 himself, or for the purpose of their being sold, pledged, or
 
 248 
 
 PRINCIPAL AND AGENT. 
 
 Sect. 10. 
 Effect of 
 transfer of 
 
 otherwise disposed of. This section and the last were 
 passed because the other Factors Acts were construed only 
 to apply to cases between principal and agent, and in 
 neither the case of the fraudulent buyer nor seller could 
 they be said to be intrusted with the goods or documents 
 as agents. The purchaser in good faith of goods from the 
 person to whom they have been hired under a hire and 
 purchase agreement is protected under this section (o) . 
 
 " Where a document of title to goods has been lawfully 
 transferred to a person as a buyer or owner of the goods, 
 documents on and that person transfers the document to a person who 
 
 VGndor's liGn 
 
 or right of ' takes the document in good faith and for valuable conside- 
 stoppage in ration, the last-mentioned transfer shall have the same 
 
 transitu. \ _ 
 
 effect in defeating ani/ vendor's lien or right of stoppage in 
 transitu as the transfer of a bill of lading has for defeating 
 the right of stoppage in transitu." 
 
 A vendor's lien is a right to retain the goods, &c. until 
 he is paid. Stoppage in transitu is a right to retake the 
 goods, &c. by an unpaid seller when he finds the buyer is 
 insolvent, if the latter has not already assigned the goods, 
 &c. to a person for valuable consideration and without 
 notice. The Com-ts have held that this right of stoppage 
 in transitu can only be defeated by an assignment of a bill 
 of lading to a person without notice, and refused to extend 
 it to other documents of title, as shipping notes and delivery 
 orders {p) . 
 
 The editors of the tenth edition of Smith's Mercan- 
 tile Law, and Messrs. Neish and Carter, are of opinion 
 that this section is redundant, and only enacts what is 
 already effected by the previous section (y). The section 
 is practically a re-enactment of sect. 5 of the Factors 
 Act, 1877. Up to that time a vendor's lien still sub- 
 sisted after ho had given a delivery order ; and therefore 
 
 (o) Let V. Jiidlcr, (1893) 02 L. J. 
 Q. B. 691 ; 69 L. T. 370 ; 9 Times, 
 031. 
 
 {p) Alccrmnn v. Ifionplnry (1823), 
 
 1 C. & P. 53. 
 
 (7) Smith's Mercantile Law, 
 10th cd. vol. i. p. 148 ; Neish and 
 Carter's Factors Act, 44.
 
 LIABILITY OF THIRD PARTIES TO I'RINCIPAL. 249 
 
 an indorsee of a delivery order for value got no better 
 title than the indorser. A person lending money on such 
 a document of title was not protected until he had the 
 goods in his possession : the indorsement of which, there- 
 fore, differed in effect from the indorsement of a bill of " 
 lading (;•). The negotiation of all the documents of title 
 in sub-sect. 1 is made as effective for defeating the vendor's 
 lieu as the negotiation of a bill of lading. They have 
 not, however, been made negotiable instruments. 
 
 "For the purposes of this Act the transfer of a docu- Sect. ii. 
 ment may be by iiidorseinoit, or, where the document is by transferrina- 
 custom or by its express terms transferable by delivery, or documents, 
 makes the goods deliverable to the bearer, f/teii hij <h'U- 
 veryP 
 
 " (1) Nothing in this Act shall authorize an agent to Sect. 12. 
 exceed or depart from his authority as between himself laying rights 
 
 1 1 • • • 1 1 • p T 1 -I- • -1 true owner. 
 
 and his principal, or exempt him from any liability, civil 
 or criminal, for so doing." 
 
 " (2) Nothing in this Act shall prevent the owner of goods Sect. 12, 
 from recovering the goods from an agent or his trustee in ^^ '^' ' 
 bankruptcy at any time before the sale or pledge thereof ; 
 or shall prevent the owner of goods pledged by an agent 
 from having tJie right to r«('^f;;? the goods at anytime before 
 the sale thereof, on satisfying the claim for which the 
 goods were pledged and paying to the agent, if by him 
 required, any money in respect of which the agent would 
 be by law entitled to retain the goods or the documents of 
 title thereto, or any of them, by way of lien, as against 
 the owner ; or from recovering from any person with whom 
 the goods had been pledged (oti/ balance of monen remain- 
 ing in his hands, as the produce of the sale of the goods, 
 after deducting the amount of his lien." 
 
 This sub-section defines the circmnstances under which 
 the principal may either (a) recover the goods themselves 
 from the agent or his trustee in bankruptcy ; (b) redeem 
 
 (r) Benjamin on Sales, 4th ed. 2 H. L. Cas. 309 ; Griffiths v. Ferry 
 p. 827 ; M'JEwan v. Smith (1849), (1859), 1 E. & E. 680.
 
 250 PRINCIPAL AND AGENT. 
 
 them if pledged ; or (c) recover the balance of any money 
 representing the goods which remains after satisfying the 
 lien on them. A factor is regarded as a trustee in respect 
 of goods in his hands as factor, and therefore the property 
 in them will not on his bankruptcy pass to the trustee in 
 bankruptcy, but will remain in the principal {s) . By the 
 44th section of the Bankruptcy Act, 1883, property of a 
 bankrupt divisible among his creditors is to comprise " all 
 goods being at the commencement of the bankruptcy in the 
 possession, order, or disposition of the bankrupt in his trade 
 or business by the consent of the true owner under such 
 circumstances that he is the reputed owner thereof;" and 
 the Act expressly, by an earlier part of the same section, 
 excludes " property held by the bankrupt in trust for any 
 other person." It does not, therefore, seem clear whether 
 goods in the hands of a bankrupt factor belong to the 
 principal or are divisible among creditors. In a case (t) 
 decided by the late Master of the Eolls, Sir George Jessel, 
 under the 15th section of the Act of 1869, which for this 
 pui'pose is identical with the Act of 1883, the learned 
 judge seems not to have decided in favour of the principal 
 on the ground that the property was held by the factors 
 as trustees, but on the ground that the goods were not in 
 their order, &c. under such circumstances that they were 
 reputed owners thereof, since they described themselves as 
 " merchants' agents." It was argued that the doctrine of 
 reputed ownership did not apply to factors, since they 
 were trustees, but this view does not appear to have com- 
 mended itself to the Master of the Rolls, if the principal 
 had allowed the agent to hold himself out as owner. 
 See below, however, as to the rights of jmncipal to follow 
 the goods or their produce. 
 ^^- ^2, "Nothing in this Act shall prevent the owner of goods 
 
 sold by an agent from recovering from the buyer the price 
 
 {*)Copeman v. Gallant (1716), 1 {t) Ex parte Bright, In re Smith 
 
 P. W. 314; Robson on Bank- (1879), 10 C. D. 566. 
 ruptcy, 5th cd. p. 517.
 
 on conversion. 
 
 LIABILITY OF TIIIKD TARTIES TO PRlNCirAL. 251 
 
 agreed to be paid for tlie same, or any part of tliat price, 
 subject to any right of set-off on the part of the buyer 
 against the agent." 
 
 This section simply preserves the rights of the principal 
 against the third party to sue on the contract of the agent, 
 although it may have been unauthorized (ii). 
 
 " The provisions of this Act shall be construed in ampli- Sect. 13. 
 fication, and not in derogation, of the powers exerciseable common law 
 by an agent independently of this Act." powers of 
 
 The remaining sections 14, 15, 16, and 17 are of no * 
 importance, and therefore are not treated here. See 
 Appendix. 
 
 In some cases the principal can bring an action against Principal 
 the third party to recover possession of his goods or their foUo^o- Us 
 produce where the agent himself cannot so do. For at property, 
 common law and also in equity, the owner of goods has a for proceeds 
 right to follow them into the hands of any person into 
 which they have come mala fide, if he can identify them, 
 unless they have been sold in market overt, or he is 
 estopped by having given the person who has disposed 
 of them apparent authority to deal with them, or by the 
 Factors Act, which, as has been pointed out, protects these 
 parties by logically carrying out the principle of estoppel 
 where the agent is put in the position of dealing as owner ix) . 
 Thus, it was held where the plaintiff's clerk embezzled and 
 converted the plaintiff's money, and paid it to the defendant 
 for the purpose of some lottery tickets, that the plaintiff 
 could sue for the identical notes and money paid to the 
 defendants (y) . Lord Ellenborough held, in Taylor v. 
 Flumcr (s), that the principal had a right to follow his 
 property if the agent had abused his authority, notwith- 
 standing any change which that property might have 
 undergone, so long as it was capable of being identified 
 
 (m) George v. Claggett (1796), 7 iac/t v.Z«fis(1885), 10 Ap.Cas.617. 
 
 T. R. 359. (y) Clarke v. Shee (1774), Cowp. 
 
 (.r) Cole V. London % X. W. Bank 197, at p. 200. 
 
 (1875), 10 C. P. 354 ; see Black- [z] (1815), 3 M. & S. 562. 
 burn, J., at p. 362 ; and see Xalten-
 
 252 PRINCIPAL AND AGENT. 
 
 and distinguislied from all other property. " An abuse of 
 trust can confer no right on the party abusing it, nor on 
 those who claim in priority with him. The argument that 
 the property of the principal continued only so long as the 
 authority of the principal was presumed in respect to the 
 order and disposition of it, and that it ceased when the 
 property was tortiously converted into another form for 
 the use of the agent himself, was a mischievous argument 
 in principle, and supported by no authorities in law." 
 Lord Ellenborough pointed out that the difficulty which 
 arose as to following it when it was turned into money 
 was only a difficulty of fact, and not of law, /. c, the 
 Eule when difficulty of distino'uishinff the actual money. The prin- 
 
 agent becomes ... 
 
 bankrupt. cipal is entitled to recover property he has entrusted to a 
 factor from the assignees of the factor, in the event of such 
 factor becoming bankrupt, just as if it ^^•as recoverable 
 from the factor himself. Such property does not vest in 
 the assignee. Mr. Yate-Lee (a) points out, however, that 
 the fact that the business of the agent was an agency busi- 
 ness must be notorious ; for the 44th section of the Bank- 
 ruptcy Act, 1883, makes all property divisible among the 
 creditors of the bankrupt which is "at the commencement 
 of the bankruptcy in the possession, order or disposition of 
 the bankrupt in his trade or business, by the consent and 
 permission of the true owner, under such circumstances 
 that he is the reputed owner thereof." It was held that 
 where the agent had on his door " Manufacturers' Agent," 
 the goods did not vest in the trustees in bankruptcy of the 
 agent, for the agent had never held himself out as the 
 owner of the goods at all, and they were not in the 
 possession of the bankrupt under circumstances that he 
 was the reputed owner thereof (^). But where the 
 agent had been originally in business for himself, and 
 changed the nature of Ids business into an agency 
 witliout the outside world knowing anything of the 
 
 (a) Yato-Lco on Bankruptcy. {b) Ex parte Bright, In re Smith 
 
 (1879), 10 C. D, 66G.
 
 LIABILITY OF THIRD PARTIES TO PRINCIPAL, 253 
 
 change, the goods were held to be divisible among the 
 creditors ; for, under the circumstances, his possession was 
 that of a reputed owner (<?) . 
 
 If the owner of goods has been induced to part with Where fraud, 
 them by fraud, he has a right to follow them or their ^^ obtaiued to 
 produce wherever he can find them, unless they have been goods. 
 sold in market overt. Every person dealing with them in 
 a way that he could not justify if he were the finder is 
 liable to the principal for conversion. Thus, wliere an 
 agent had been induced by a fraudulent representation to 
 part with cotton to a person who sold it to a firm of 
 commission agents, and these agents resold the cotton to a 
 firm of cotton spinners, the House of Lords held that the 
 owner was entitled to follow his goods or their produce 
 into the hands of the commission agents, and they were 
 liable to him for a conversion, because they had dealt with 
 the property in a way they could not justify if they were 
 finders of it, that the commission agents were also liable 
 for a conversion, and therefore for the value of the goods 
 to the owner of the goods {(/). 
 
 A factor is a person in a fiduciary position, and it has Factor 
 been held, as regards property disposed of by persons in ao-ent?^ 
 such a position, that the owner can, if the sale is rightful, 
 take the proceeds of the sale if he can identify them. If 
 the sale is wrongful, he can still take tlie proceeds of the 
 sale, in a sense adopting the sale for the purpose of taking 
 the proceeds if they can be identified. There is no dis- 
 tinction, therefore, between a rightful and wrongful dispo- 
 sition of the property, so far as regards the right of the 
 beneficial owner to follow the proceeds (c). In another 
 case (/) , a stockbroker sold his client's securities, and paid 
 
 (c) Jie Fawciis, Ex parte Buck {e) Knatchbull v. Hallett (1879), 
 
 (1876), 3 C. D. 795. 13 C. D. 696, at p. 706, per Jessel, 
 
 {d) Holliius V. Fow/cr (1874), L. R. M.R. 
 7 H. of L. 757. (/) Fx parte Cooke, In re Strachan 
 
 (1876), 4 C. D. 123.
 
 254 
 
 PRINCIPAL AND AGENT. 
 
 Principal can 
 only follow 
 his own 
 money, not 
 that obtained 
 by agent by 
 fraud from 
 third parties. 
 
 Test whether 
 money can be 
 followed. 
 
 Principal's 
 right of action 
 
 the proceeds into Lis bank. It was clear that the balance 
 in the bank was the proceeds of the sale of the principal's 
 securities, and the Court made an order that such part of 
 the balance as arose from the proceeds should be paid to 
 the principal, following the decision in Taylor v. Plumer (g) . 
 The right of an owner to follow his goods or their produce 
 does not depend on priority of contract, as was pointed 
 out in Kaltenhach v. Lewis {h). In a number of cases, as 
 we hare seen, the Factors Act gives, for the convenience of 
 business, the agent with which it deals large powers (not 
 given br the principal) for the piu'pose of protecting third 
 parties dealing with him on the faith of his apjiarent 
 ownership. T\Tiere the Act applies it prevents an owner 
 following his goods or their proceeds, and his only remedy 
 is against his agent if his instructions have been violated, 
 Where the Act does not apply, or the third party does not 
 come within its protection by having notice that he is 
 dealing with an agent who is exceeding his authority, the 
 owner may follow his goods. 
 
 If the money sought to be recovered from the agent 
 is money which he has obtained by a breach of duty or 
 fi'aud from third parties, the principal has only a right 
 to make him account for it as a debt due to him ; 
 but he has no right to follow it into the hands of third 
 parties; that is a right which he only has if he is 
 seeking to recover money or property which was his own 
 before the wrongful act. In the first case he can only 
 have an account or sue for money had and received to his 
 use — the true test as to the right to follow being thus the 
 case of a principal seeking to recover money which was 
 his own before any act was wrongfully done by the 
 agent (/), 
 
 "Where an agent has by mistake paid money to a third 
 
 (y) (1815), 3 M. & S. 562. 
 (/)) Sec KalUnbach v. icMM(1885), 
 10 Ap. Caa. 617, 
 
 (i) Lister v. Stubbs (1890), 45 C. 
 D. i ; Melropoliian Bank v. Heiron 
 (1880), 5 Ex. Div. 319.
 
 LIABILITY OF THIim PARTIES TO PRI^'CIPAL. 255 
 
 party, tlie principal has a right to bring an action to against third 
 recover it. For where a man pays money by his agent mouey paid 
 which ought not to have been paid, either the agent or ^^ mistake, 
 the principal may bring an action to recover it back. The 
 agent may from the authority of the principal, and the 
 principal may as proving it to have been paid by his 
 agent. Thus, where the master of a ship had paid exces- 
 sive dues to a custom-house officer. Lord Mansfield held 
 that the shipowner could bring an action to recover the 
 excess (/»•) . 
 
 If a third party persuade the agent to leave the prin- Principal can 
 
 1) -i-xi'Ti. p... ,. sue third 
 
 cipai s service lor the indirect purpose oi mj urmg him or party for 
 of benefiting himself at the expense of the principal, it is enticing- 
 
 ,.. ,,.,.., T • 1 ^ away his 
 
 a malicious act, wnicn is m law and m fact a wrong, and agent, 
 therefore a wrongful act, and therefore an actionable act 
 if injury ensues from it (/). There the defendant induced 
 an agent who, it was held, was not a servant, to desert the 
 plaintiff's service, so that he might have the benefit of his 
 knowledge and experience in making bricks. Similarly, 
 if he slander the principal's agent so as to cause damage 
 to his business {»i). Generally, it is clearly actionable to 
 conspire maliciously to prevent persons from contracting 
 with a particular individual if damage is proved {ii) ; and 
 this applies to all contracts, whether for personal service 
 or not, and also to inducing persons not to enter into 
 future contracts (o) . 
 
 Lord Justice James laid down the law thus as to a third Principal has 
 party's tampering with the agent: "According to my view thirlTparty^^ 
 of the law of this Court any suiTeptitious dealing between ^o^' <^oiTupting 
 one principal and the agent of the other principal is a ° 
 fraud on such other principal cognizable in this Court. 
 
 (A-) Stevenson v. Mortinier (1778), Div. 91. 
 Cowper, 805. («) Mogul Steamship Co. v. Mac- 
 
 {l) Bowen v. Ball (1881), 6 Q. B. gregor, (1892) Ap. Cas. 25. 
 D. 333, at p. 338. (o) Tcmperton v. Russell, (1893) 1 
 
 {in) Riding v. Smith (1876), 1 Ex. Q. B. 715.
 
 25(3 
 
 PRINCIPAL AND AGENT. 
 
 Remedies of 
 principal 
 where agent 
 has been 
 bribed. 
 
 That I take to be a clear proposition, and state it accord- 
 ing to my view to he equally clear that the defrauded 
 principal, if he comes in time, is entitled at his option to 
 have the contract rescinded, or, if he elects not to have it 
 rescinded, to have such other adequate relief as the Court 
 may think right " (p). 
 
 The principal may recover from the agent the amount of 
 the bribe which he has received (q), and he may recover 
 damages against the third party for the conspiracy (r). 
 
 If the principal chooses to affirm the contract where the 
 third party has succeeded, by bribing the agent, in getting 
 him to enter into a disadvantageous bargain, he has the 
 two distinct and cumulative remedies. He may recover 
 from the agent the amount of the bribe which he has 
 received, and he may also recover from the agent and the 
 person who has paid the bribe, jointly or severally, damages 
 for any loss which he has sustained by reason of his having 
 entered into the contract, without allowing any deduction 
 in respect of what he has recovered from the agent under 
 the former head, and it is immaterial whether the principal 
 sues the agent or the third party first. " The agent has 
 been guilty of two distinct and independent frauds ; the 
 one in his character of agent, the other by reason of his 
 conspiracy with the third person with whom he has been 
 dealing. Whether the action by the principal against the 
 third person was the first or the second must be wholly 
 immaterial. The third person was bound to pay back the 
 extra price, and he could not absolve himself or diminish 
 the damages by reason of the principal having recovered 
 from the agent the bribe he had received " (s). 
 
 (/>) Panama, ^-c. Telegraph Co. v. 
 India Jtuhbir, (|-c. IVurks Co. (1875), 
 10 Ch. Ap. 515 ; hvm also Lister v. 
 SlHljhx (1890), 4 5 C. D. I ; Smith v. 
 tiwhij (lh75), 3 Q. B. D. 552, n. 
 
 ('/) See Mayor of Sal ford v. Jjerer, 
 uhi Kupra, per Lord E.slicr, p. IG'J. 
 
 {r) See also Jfarrington v. Victoria 
 Graving Bock (1878), 3 Q. B. D. 
 549. 
 
 (.v) Per Lord Eshor in Mayor of 
 Sal ford v. Lever, (1891) 1 Q. B. 
 1G8.
 
 LIABILITY OF THIRD PARTIES TO PRINCIPAL. 257 
 
 There is a settled rule tliat if there are two joint tort 
 feasors, and the person to whom the wrong has been 
 done releases one of the two, he cannot afterwards sue the 
 other. Therefore, if the principal absolutely released the 
 agent he has no remedy against the third party, but it 
 must be an absolute release, and not merely an agreement 
 to suspend action against him {f) . 
 
 {() Mayor of Salford v. Hunter, uhi supra. 
 
 W.
 
 258 PRINCIPAL AND AGENT. 
 
 CHAPTEE XY. 
 
 THE LIABILITY OF THE PRINCIPAL TO THIRD PARTIES. 
 
 Principal "^Ve have now to consider under wliat circumstances the 
 contract to principal becomes liable to thii'd parties. He may he, 
 third party, first, liable by contract to the thii'd party. If he authorizes 
 an agent to make a contract on his behalf, and the agent 
 acts -within the authority, he is liable on it, and the con- 
 tract in law is considered as made by him personally, and 
 it is equally so if the contract, though originally with- 
 out authority, is ratified by him. The doctrine rests 
 upon this principle — that the act of the agent was the 
 act of the princijDal, and the subscription of the agent was 
 the subscription of the principal. And he is liable for any 
 frauds or misrepresentations of his agent when making 
 it (a). But it has been held in the case of the sale of 
 real property, that if the agent innocently makes a mis- 
 representation, which has induced the third party to give 
 more than he would otherwise have given outside his 
 authority, the principal is not bound to compensate the 
 thii-d party for it after the conveyance has been executed (b). 
 It has been held that if the principal authorizes an 
 agent to receive money for him, the agent's receipt of the 
 money is the same as if he had himself received it (c). 
 Agents who are authorized to sell goods have an implied 
 authority to receive payment for them (d). 
 
 {a) See Liability of Third Parties (c) Jfafhews \. Ha i/don {1796), 2 
 
 to Agent, p. 308. Esp. 610. 
 
 (i) JJrett V. Clou-ser (1880), 5 C. {d) Capel v. Thornton (1828), 3 
 
 P. D. 370. C. & P. 362.
 
 THE LIABILITY OF THE PRINCIPAL TO THIRD PARTIES. 2-50 
 
 The i^rincipal is also liable to the third party where he Liable on 
 has held out a person as his agent and that agent does hoid'iug^out 
 something which is within the apparent scope of his autho- *° the extent 
 rity. And this is so although the agent has been privately apparent 
 instructed not to do a certain thing. Thus, where an ^'ithority. 
 agent had general authority to arrange terms on which 
 land should be exchanged, and the principal instructed 
 him only to exchange wood for wood, the principal was 
 held bound to the contract, although the agent neglected 
 these instructions. Lord Cottenham said (f), in giving 
 judgment, " Did not the paper signed by the Duke (the 
 principal), hold out to all who might associate with Mr. 
 Wedge (the agent), or the commissioner, reason to believe 
 that the Duke was willing to take any land that might be 
 agreed upon in exchange for Dunley Gorse ? Having given 
 them general authority, can he be heard to say that the 
 authority was limited by private instructions, of which 
 those who dealt with the agent knew nothing ?" 
 
 In W/iife/tead v. Tuchett{f), where a principal had given Broker's 
 his brokers special instructions as to how and to whom to ^ °^^ ^" 
 sell goods. Lord Ellenborough said, referring to the terms 
 of the private instructions given to the agents, " If these 
 expressions are to be construed into so many restrictions of 
 the power of the brokers, it will follow that they were not 
 only limited as to price, but also as to the terms of sale, 
 which, according to the latter, were to be ' the best ' : and 
 as to the purchasers, who were to be ' safe men,' and if in 
 either of these respects the contract made by them should 
 fail, their princij)al would have a right to reject it. But if 
 this could be done, in what a perilous predicament would 
 the world stand in respect of dealings with persons who 
 have secret communications with their princij^al ! Such 
 communications must not be taken as limitations of their 
 
 (c) Buke of Beaufort v. Kcehl (/) (1812), 15 East, 400 ; see also 
 
 (1845), 12 CI. & Fin. 248, at p. P/-mo?« v. ^We (1794), I Esp. 350. 
 290. 
 
 S2
 
 260 
 
 PRINCIPAL AND AGENT. 
 
 Principle 
 applies also to 
 cases where 
 strictly uo 
 holding out 
 as agent. 
 
 Tenant of 
 I)ublic-housc. 
 
 power, however wise they may be as suggestions on the 
 part of the principal." 
 
 The principal may also be liable to third parties for an 
 agent's acts although he has not held him out as his agent, 
 and as having authority. Thus, where the principal puts 
 an agent in such a position over his property that he 
 appears to the world as owner, he is liable for his acts, 
 although strictly there has been no "holding out," since 
 the principal was unknown. For the principal "v\ill not 
 only be liable for the acts of his agent, within his apparent 
 authority where he has held him out as an agent ; but he 
 is also liable where he has put another in such a position 
 that the world would be led to believe from the fact 
 that a man occupied such a position that he must have 
 power to act, whether in fact he was an agent or not. 
 Thus, where a principal put an agent called Bushell into 
 a business, as his manager, and directed him to carry it 
 on as Bushell & Co., it was held he thereby held him out 
 as owner. And although the principal had given the 
 agent no authority to draw or accept bills, still he was 
 liable on bills drawn by Bushell for the purposes of the 
 business ; for the agent must be taken to have had 
 authority to do whatever was necessary or incidental to 
 carrying on the business, and drawing and accepting bills 
 was incidental to it. The agent could not be divested of 
 the apparent authority as against third persons by a secret 
 authority (ry) . 
 
 In Watt can v. Foucick (h), a firm of brewers put in an 
 agent as manager of a tied house belonging to them, and only 
 gave him authority to buy bottled ales and mineral waters. 
 The house had originally belonged to the agent, but he had 
 sold it to the principals, the brewers, some years before 
 the action was brought. The plaintiffs, the third parties, 
 gave credit to the agent only, but on finding out the 
 
 (f/) JCdniDnds v. Bunhcll (1865), 
 L. it. 1 Q. B. 97. 
 
 (//) (1893) 1 Q. B. 346.
 
 THE LIABILITY OF THE PRINCIPAL TO THIRD PAHTIES. 261 
 
 brewers owned the house, brought an action against them 
 for the price of goods which the manager had ordered in 
 contravention of his authority, Mr. Justice Wills, in a 
 judgment in which the Chief Justice, Lord Coleridge, con- 
 curred, held the brewers liable, and said, " The principal 
 is liable for all the acts of the agent which are within the 
 authority usually confided to an agent of that character, 
 notwithstanding limitations, as between the principal and 
 the agent, put upon that authority. It is said that it is Principal 
 so only Avhere there has been a holding out of authority, ^i^^ „i 
 which cannot be said of a case where the person supplying third party 
 the goods knew nothing of the existence of a principal ; of existence!^ 
 but I do not think so. Otherwise, in every case of an 
 undisclosed principal, or, at least, in every case where the 
 fact of there being a principal was undisclosed, the secret 
 limitation of authority would prevail and defeat the action 
 of the person dealing with the agent and then discovering 
 that he was an agent and had a principal. But in the case Sleeping 
 of a dormant partner, it is clear law that no limitation of P^^'t^*5i'- 
 authority as between the dormant and active partner will 
 avail the dormant partner as to things within the ordinary 
 authority of a partner. The law of partnership is, on such 
 a question, nothing but a branch of the general law of 
 principal and agent, and it appears to me to be undisputed 
 and conclusive on the point now under discussion." This, 
 it is submitted, is the true principle, where the principal 
 either goes to an agent who has priiiid facie certain powers 
 as a factor or auctioneer, or where he puts the agent into 
 a position to which certain powers naturally belong. 
 
 Again, if the principal stands by and allows a person to Where 
 assume ownership of his property, he will not be able to aUous'thirJ 
 recover it from a third party, to whom it has been sold (/). V^^'^J to 
 
 tlSSTllllG 
 
 In Picanl v. Sears the plaintiff, who had a mortgage on the ownership. 
 property, allowed it to be sold by an execution creditor of 
 
 (J) Fickard v. Sears (1837), 6 Ad. & El. 469; see Liability of Thii-d 
 Party to Principal,
 
 262 
 
 PRINCIPAL A>'D AGENT. 
 
 Wliere 
 exclusive 
 credit given 
 to agent 
 principal not 
 liable. 
 
 the mortgagors to the defendant without making any claim 
 on the property. After the sale he brought an action for 
 trover against the defendant. Lord Denman said : " The 
 rule of law is clear that where one by his words or conduct 
 wilfully causes another to believe the existence of a certain 
 state of things, and induces him to act in that behef so as 
 to alter his own previous position, the former is precluded 
 from averring against the latter a different state of things 
 as existing at the same time, aud the plaintiff in this case 
 might have parted with his interest in the property by 
 verbal gift or sale without any of those formalities which 
 throw technical obstacles in the way of legal evidence. 
 And we think his conduct, in standing by and giving a 
 kind of sanction to the proceedings under the execution, 
 was a fact of such a nature that the opinion of the jury 
 ought, in conformity with Heane v. Rogers (/.•) and Graves 
 V. Key (/), to have been taken whether he had not in point 
 of fact ceased to be owner." Similarly, the rights of third 
 persons will be protected where they have dealt with an 
 agent supposing him to be a principal {m) . 
 
 If a third person has entered into a contract with another, 
 who is in fact an agent, although he has never heard of the 
 principal, yet he can sue him on the contract, unless, after 
 hearing of the fact of there being a principal, he has elected 
 to give exclusive credit to the agent. "A seller who knows 
 who the principal is, and, instead of debiting that principal, 
 debits the agent, is considered, according to the authorities 
 which have been referred to \_Paterson v. Gandascqid (n), 
 Addition v. Gandascqid {o), Marniss v. Henderson [p)'\, as 
 consenting to look to the agent only, and is thereby pre- 
 cluded from looking to the principal " (ry) . But the mere 
 fact that the third party has, after knowing there was a 
 
 (/.) (1829), 9 B. & C. 58G. 
 {/) (1832), 3 B. & Ad. note a. 
 hn) See Liability of Third Party 
 to Principal. 
 
 («) (1812), 16 East, 62. 
 
 (o) (1812), 4 Taunt. 574. 
 
 \p) (1801), 1 East, 335. 
 
 {</) Fer Bailey, J., in Thomson v, 
 Davenport (1829), 9 B. & C. 78, p. 
 89.
 
 THE LIABILITY OF THE PRINCIPAL TO THIRD PARTIES. 2G3 
 
 principal, insisted upon the agent's name being put down 
 in the contract does not relieve the principal from lia- 
 bility(.). 
 
 Where the agent makes a contract in his own name, the Third party- 
 third party can elect whom he will sue. What constitutes ^hom*^to sue 
 election is a matter of fact to be decided by a jury. The whether the 
 demand of payment is an equivocal act if it is made agent. ' Can- 
 from the agent, as it may have been made upon him on ^^^ ^"® ^°^^" 
 behalf of the principal (.s) . "The very expression, that 
 where a contract is so made, the contractee has an elec- 
 tion to sue the agent or princij)al, supposes he can only 
 sue one of them, that is to say, to judgment. For it may 
 well be that an action against one might be discontinued 
 and fresh proceedings be taken against the other "(/). 
 And Lord Tenterden, in Thomson v. Davenport (ti), said : 
 "If at the time the seller knew not only that the person who 
 is nominally dealing with him is not principal, but agent, 
 and also knows who the principal is, and, notwithstanding 
 that knowledge, chooses to make the agent his debtor, 
 then, according to Addison v. Gandasequi and Paterson v. 
 GcDulascqui, the seller cannot afterwards, on failure of the 
 agent, turn round and charge the principal, having once 
 made his election at the time when he had the power of 
 choosing between one and the other." 
 
 In Kendall v. HaniUton (r), Lord Cairns said : " Now I 
 take it to be clear that where an agent contracts in his own 
 name for an undisclosed princijial, the person with whom 
 he contracts may sue the agent or he may sue the principal : 
 but if he sues the agent and recovers judgment, he cannot 
 afterwards sue the principal, even although the judgment 
 does not result in satisfaction of the debt. If any autho- 
 rity for this proposition is needed, the case of Priestley v. 
 
 (s) CaMer v. Bobell (1871), L. R. L. J. Ex. 173. 
 
 6 C. P. 4S6. ('0 (1829), 9 B. & C. 78. 
 
 (0 /"cr Lord Bram well in PriV«^/'fy [v) 1879), 4 App. Cas. 504. 
 V. Fernie (18G5), 3 H. & C 977 ; 34
 
 264 PRINCIPAL AND AGENT, 
 
 Fernie (.<•) may be mentioned. But the reasons why this 
 must be the case are, I think, obvious. It would be clearly 
 contrary to every principle of justice that the creditor who 
 had seen and knov^Ti and dealt with and given credit to 
 the agent should be driven to sue the principal if he does 
 not ^\-ish to sue him ; and, on the other hand, it would be 
 equally contrary to justice that the creditor, on discovering 
 the principal who really has had the benefit of the loan, 
 should be prevented from suing him if he wished to do so. 
 But it would be no less contrary to justice that the creditor 
 should be able to sue first the agent and then the principal 
 when there was no contract, and when it never was the 
 intention of any of the parties that he should do so. 
 Again, if an action were brought and judgment recovered 
 against the agent, he (the agent) would have a right of 
 action for indemnity against his principal, while, if the 
 principal were liable also to be sued, he would be vexed- 
 with a double action." The House of Lords therefore 
 held that judgment, even \s-ithout satisfaction, against 
 either principal or agent, was a bar to an action against 
 the other party. 
 Principal not This rule is subject, however, to a qualification, which 
 Sed^ ^^^ ^^^s stated by Mr. Justice Bayley in Tlwmson v. 
 
 accounts "vrith Davoiport {//). " The principal shall not be prejudiced by 
 being made personally liable if the justice of the case is 
 that he should not be personally liable. If the principal 
 has paid the agent, or if the state of the accoimts between 
 the agent here and the principal would make it unjust that 
 the seller should caU in his principal, the fact of payment 
 or such state of accounts would be an answer to the action 
 brought by the seller where he had looked to the responsi- 
 bility of the agent. 
 
 This statement of the exception was objected to as too 
 wide by Baron Parke, who, in Ilaild v. Kcnicorthyiz), held 
 
 (x) (18G5), 3 H. & C. 977. Anderson (1849), 7 C. B. 21. 
 
 (y) Ubi supra; see also Smi/ih v. (2) (1855), 10 Ex. 739.
 
 THE LIABILITY OF THE PRINCIPAL TO THIRD PARTIES. 265 
 
 that if a person orders an agent to make a purchase for him, 
 he is bound to see that the agent pays the debt ; and the 
 giving the agent money for that purpose does not amount 
 to payment unless the agent pays it accordingly. 
 
 In Armstrong v. Stokes {a), a distinction was drawn be- Tme rule as 
 tween such agents as would be naturally expected by the principal who 
 third party or seller to have principals, in dealing with ^^^^ settled 
 whom he would know that lie had another person liable to agent. 
 him beyond the agent, though he did not know who that 
 other person was, and the class of agents as to whom the 
 seller or third party would consider it a " godsend," in 
 Mr. Justice Blackburn's words, if he found on their failure 
 or insolvency that there was a principal behind who was 
 also liable. For instance, in every case where the sale is 
 to a broker, the vendor knows that there is or ought to be 
 a principal between whom and himseK there is established 
 privity of contract, and whose security he has in addition 
 to that of the broker ; and the principal also knows that 
 the vendor is aware of this, and to some extent trusts to his 
 liability. Where, however, the agent is a commission mer- 
 chant, or a merchant dealing on his own account, the seller 
 or third party may think that he is dealing with a prin- 
 cipal. As to the latter class of agent, it was decided that 
 a seller who has given credit to an agent, hclieruici him to 
 he a principal, cannot have recourse against the undisclosed 
 principal if the principal has hond fide paid the agent at a 
 time when the seller still gave credit to the agent and 
 knew of no one else {l)) . 
 
 It has been questioned in Irvine v. Watson whether the Lord Bram- 
 distinetion should turn on the seller's belief as to whether he ^^^^^ pHn-^^ 
 was dealing with a principal or on the natiu^e of the agent's ^^ip^^- 
 business, from which the principal would be justified in in- 
 ferring that the third partj^ or seller relied on the agent 
 alone, and it is submitted the latter is the true test. Lord 
 
 (a) (1872), L. E. 7 Q. B. 598. (i) See Bowen, J., in Irvine v. 
 
 WaUon (1879), 5 Q. B. D. 102.
 
 266 
 
 PRINCIPAL A>-D AGENT. 
 
 Justice Bramwell (c) said, he did not understand how the 
 mere fact of the vendor (the third party) knowing or not 
 knowing that the agent has a principal behind him could 
 aif ect the liability of that principal, and thought the liability 
 would depend upon what the principal himself knew, that is 
 to say, whether he knew that the vendor or third party had 
 a claim against him and would look to him for payment 
 L. J. Brett, in the agent's default ; and Lord Justice Brett thought 
 it depended, first, on the fact that the seller dealt with the 
 agent as sole principal, and that, secondly, the nature of 
 the agent's business was such that the principal ought to 
 have believed that the third party would so deal with 
 bim ; for in such a case it would be unjust to allow the 
 seller to recover from the principal after he had j)aid the 
 agent ; the principle being, that where exclusive credit 
 was given by the thu^d party or seller to the agent, the 
 principal, by paying the agent, reheves himself of all 
 responsibility to the third party. 
 
 Let us take first the case where the agent belongs to the 
 first class of agents, where the third j)arty knows there is a 
 principal, as for instance, brokers ; there the third party 
 knows that there is a principal from the nature of the 
 broker's employment, and the form of the contract in the 
 bought and sold notes, though he may not know who the 
 principal is. It has been decided in such a case that the 
 principal is not discharged by payment to the agent, 
 unless the third party has done something which would 
 make it inequitable that he should be asked to pay over 
 again to the third party. This must be something arising 
 out of the conduct of the thii'd party which induced the 
 principal to believe that a settlement had already been 
 made with the agent. Sir George Jessel stated the 
 principle as follows (d) : '* All the judges are agreed in 
 laying down that where the seller knows that there is a 
 
 (c) Ircine v. Watson (1879), 5 Q, (d) Davison v. Donaldson (1882), 
 
 B. D. 414. 9 Q. B. D. 623, at p. 628.
 
 THE LIAIJILITY OF THE nilNCIPAL TO THIRD PARTIES. 267 
 
 principal behind the person with whom he is dealing, he 
 must be shown to have done something which raises an 
 equity against him, otherwise the principal is not dis- 
 charged." 
 
 The question then arises, what conduct on the part of Wliether 
 
 1 1 . T -n 1 • • 1 • • third party s 
 
 the third party \\ill be sufficient to raise this equity delay in 
 against him ? Will delay in obtaining payment from the a^^s^° 
 agent or applying to the principal estop the third party principal 
 claiming against the principal ? In Irvine v. Watson [c) estoppel. 
 Mr. Justice Bo wen thought the delay, in order to work an 
 estoppel, must be such as reasonably led the principal to 
 infer that the seller no longer requires to look to the 
 principal's credit, such a delay, for example, as leads to 
 the inference that the debt is paid by the agent, or to 
 the inference that though the debt is not paid, the seller 
 elects to abandon his recourse to the principal and looks to 
 the agent alone {/). In Davison v. Donaldson, he says : 
 " I do not say that in very special circumstances mere delay 
 may not amount to misrepresentation ; it may be conduct 
 misleading the defendant (the principal). But that can 
 only be when there is something in the original contract, 
 or in the conduct of the parties, which renders the delay 
 misleading." In Ifvine v. Watson {g), Lord Justice Bram- 
 well suggests a case where from something in the contract 
 delay would be misleading — /. e., where there was an in- 
 variable custom in a trade to insist upon prepayment ; in 
 such a case, non-insistance on prepayment might discharge 
 the buyer (the principal) if he paid the broker on the faith of 
 the seller having already paid; and Sir George Jessel said (//), 
 "I am far from saying that there may not be special cases 
 in which mere delay on the part of the plaintiif would be 
 held to be sufficiently misleading conduct ; it may amount 
 
 {e) (1879), 5 Q. B. D. 102, at {g) (1879), o Q. B. D. 414, at 
 
 p. 107. p. 416. 
 
 (/) (1882), 9 Q. B, D. 623, at (A) Baiisoyi v. Donaldson (1882), 
 
 p. 631, 9 Q. B. D. 623.
 
 268 PRINCIPAL AND AGENT. 
 
 to a representation that lie has heen paid." The case of 
 Smethurst v. Mitchell [i) is an authority that where goods 
 are not to be delivered till the account is paid, and yet the 
 goods are delivered, whether the seller takes a bill of 
 exchange or not, the seller cannot afterwards come upon 
 the principal. 
 
 In Irvine v. Watson {k) the seller sold the goods on the 
 terms cash on or before delivery, but there was no invari- 
 able custom not to deliver -oithout cash. The defendants 
 (the 23rincipals) paid the agent, but he became bankrupt, and 
 did not pay the third party. The agent informed the seller 
 that he was buying for princijials, but not who they were. 
 Under these circumstances the Court held that the fact 
 of the principal having paid the broker did not preclude 
 the seller recovering the price. In JDariso/i v. Doiiatdsoii 
 goods were supplied to the managing owner of a ship in the 
 summer of 1877. The seller did not apply to the principals 
 for payment until February, 1881. The principal settled 
 accounts with his agent in December, 1877, but was not 
 induced to settle this account owing to the seller's delay. 
 The Court held that the seller was entitled to be paid by 
 the principals on the ground that there was no misleading 
 conduct. In this case, the principals were co-owners of 
 the ship, and the late Master of the Eolls said partners 
 ought not to settle with their co-partners without satisfy- 
 ing themselves that the payments have been actually 
 made ; and on this ground Lord Justice Lindley held the 
 plaintiff was in a better position than he would have been if 
 he had only the option of suing the agent, or the undisclosed 
 principal, as he could for that reason sue them jointl}-. 
 Where When the i")rincipal, however, is a foreign principal, he 
 
 forei>S^ '■'" * gives the commission agent, as a rule, no authority to 
 principal, pledge liis credit or to establish privity of contract between 
 
 prima facte i • ■, i i • i ti- -l ±-\ j. 
 
 not liable on him and the third party. In this case it seems the agent 
 
 (0 (1869), 28 L. J. Q. B. 241. (k) Ubi supra.
 
 THE LIABILITY OF THE PRINCIPAL TO THIRD PARTIES. 269 
 
 is not a true agent, but is really to a certain extent a agent's con- 
 principal, since he does not establish privity of contract 
 between the principal and a third party. The owner's of 
 the goods only right is to sue the agent for their price less 
 the commission. It was originally only a question of fact 
 whether there was privity of contract ; but Lord Blaekbm-n 
 says the inconvenience of holding that j)rivity of contract 
 was established between a Liverpool merchant and the 
 grower of every bale of cotton which is forwarded to him 
 in consequence of an order to a London commission 
 merchant is so obvious and well known that one is justified 
 in treating it as a matter of law, and saying that, in the 
 absence of evidence of express authority to that effect, the 
 commission agent cannot pledge his foreign constituent's 
 credit (/) . In such a case, therefore, the third party cannot 
 sue the principal at all, as there is no contract with him. 
 We have seen that, in the case of an agent who has a 
 foreign principal, it is altogether a question of fact whether 
 he has made himself liable on the contract he makes for a 
 foreign principal when he contracts as agent (see "Liability 
 of Agent to Third Parties"). Unless the agent warranted 
 his authority to establish privity of contract, if he merely 
 bought on behalf of the foreign principal as agent, it seems 
 neither the foreign principal nor yet the agent could be 
 made liable. 
 
 When the principal is not a foreign principal, and the Frlmd facie 
 contract is made by an agent other than a broker, Lord tho^i*^ ^^' 
 Blackburn thinks that prima facie authority is given to establish 
 establish privity of contract. But if the contract is so contr^t so 
 
 made that the third party does not know that the ag-ent is ^^^^^ ^^^^ 
 
 . . . . psirty can sue. 
 
 not a principal, but takes him for the principal, supposing 
 
 at the time he was dealing with a principal, then, as we 
 
 {I) See also Lord Blackburn's in Montgomerie v. United Kingdom 
 
 judgment in £lbi/ii]ier Actioi GeseU- Mutual SS. Assoc, (1891) 1 Q. B. 
 
 schaft V. Clai/e (1873), L. R. 8 Q. 370, at p. 372; mdton v. Bullock 
 
 B. 313, at p. 317 ; and Wriglit, J., (1873), L. R. 8 Q. B. 331.
 
 270 PRINCIPAL AND AfiENT. 
 
 have seen (;;?), if the principal lias settled accounts and paid 
 the agent, the third party cannot recover against him {n). 
 Principal may The principal may, from the form of the contract made 
 contract not by the agent, not be liable to the third party. Thus, •\\-here 
 be liable. ^]^g contract is by deed, and he is not a party to it, under 
 the common law he could not be made liable, as no one 
 could be sued on a deed except a party thereto (o). But 
 the 46th section of the Conveyancing Act, 1881, novf 
 allo^v5 the donee of a power of attorney to sign his own 
 name and execute a deed in his own name, and makes it 
 equally effective, so that in cases where there is a power of 
 attorney it would seem that even if not a party to the deed 
 the principal could be sued on it. 
 Bill of ex- In Beckham v. Brake (j)), Baron Parte says that bills of 
 
 ° ' ' exchange and promissory notes are an exception to the 
 general rule that the principal is liable on the contract of 
 the agent. " The case of bills of exchange is an exception 
 which stands upon the law merchant, and promissory notes 
 another, for they are placed upon the same footing by the 
 statute of Anne. In neither of these can any but the 
 parties named in the instrument by their name or firm 
 be made liable to an action upon it." This is also the 
 rule stated by the Editors of Byles on Bills (q) ; and 
 Mr. Justice Wright, in Montgomcvie v. United Kingdom 
 Sfcams/iij) Association (;•), mentions it also as a case where 
 tlie principal is not liable. He says : " If a person who is an 
 agent makes himself a party in writing to a bill or note a 
 principal cannot be added." In Edmunds y. Biis/ic/I (s), 
 the principal was held liable on a bill signed Bushell & 
 Co., on the ground tliat the agent Bushell had authority 
 
 («i) Page 264. bott's Merchant Shipping, 13th ed. 
 
 (n) Armstrong v. Stokes (1872), 7 pp. 220—223. 
 
 Q. B. 598, at p. GIO. {p) (1841), 9 M. & W. 79. 
 
 {o) Bcckhamv. Drake (1841), 9 M. (<?) loth ed. p. 44. 
 
 & W. 79 ; In re International Con- [r] (1891) 1 Q. B. 370; see also 
 
 tract Co., Pickrrhiff^s claim (1871), 6 Leadbetter v. Farrow (1816), 5 M. & 
 
 Ch. 525. Ah to the old law aa to S. 345. 
 
 charter-parties by deed, see Ab- («) (1805). L. R. 1 Q. B. 97.
 
 THE LIABILITY OF THE PRINCIPAL TO TTITKD PARTIES. 271 
 
 to sign it this way when carrying on as manager the 
 business bdonging to the plaintiff, which was known as 
 "Bushell&Co." 
 
 By sect. 23 of the Bills of Exchange Act, 1881 (/), no ^^'^^^ ^i Ex- 
 
 . . . . chaDf-e Act. 
 
 person is liable as drawer, indorser or acceptor of a bill 
 
 who has not signed it as such ; provided that (1) where a 
 person signs a bill in a trade or assumed name he is liable 
 thereon as if he had signed it in his own name. (2) The 
 signature of the name of a firm is equivalent to the signa- 
 ture by the person so signing of the names of all persons 
 liable as partners in that firm. 
 
 Again, the principal is not liable to the third party if I* t^ird party 
 the agent and he so contract as only to look to one another, sue agent, 
 and to exclude the right of the principal to sue the third C''^?"'?^ ^"^ 
 
 '=' . . . i^rmcipal. 
 
 party or the third party's right to sue the princij)al; for 
 the right to sue and be sued is reciprocal. 
 
 This was the case in two mutual insurance cases (?^), Insm-ance 
 where steamship owners formed themselves into a club to 
 mutually insure their ships, and, by one of the articles of 
 association, ]3rovided that all claims in respect of insurance 
 or protection shall be made and enforced against the asso- 
 ciation only, and not against any member thereof, but the 
 association shall not be liable to any member or other person 
 for the amount of any loss, claim or demand, except to the 
 extent of the funds which the association is able to recover 
 from members liable for the same, and which are applicable 
 to that purpose. The agent, who was a member of the 
 club, became bankrupt, and the association then sued the 
 principal for the amount of a contribution due by him in 
 respect of the ship of the principal's he had insured. Lord 
 Esher said, in giving judgment : " As regards any action 
 against a person alleged to be an undisclosed principal of 
 a member by other members, it would be impossible to 
 
 {t) 45 & 46 Vict. 0. 6L Q. B. D. 110 ; Montc/omerie v. United 
 
 {u) United Kingdom Mutual Steam- Kinqdom Steamship Ass. Assoc, 
 ship Ass. Assoc, v. Kevill (1887), 19 (1891) 1 Q. B. 370.
 
 272 
 
 PRINCIPAL AND AGENT. 
 
 Principal 
 liable for acts 
 of agent where 
 authorized. 
 
 Principal 
 liable rf orders 
 agent to do 
 unlawful act. 
 
 allege that a person is an undisclosed principal in respect 
 of the contract unless the parties who allege that he is a 
 party to the contract as undisclosed principal could be sued 
 by him as well as he by them. I do not think that he is a 
 party to the contract as an undisclosed principal, although 
 he may be a cestui que trust in respect of the proceeds the 
 member may receive. Not being a party, he cannot sue 
 or be sued on the contract." 
 
 The principal may also become liable to a third party 
 through the act of his agent. Thus, if his agent receives 
 money for him, he is liable to the third party for it. 
 Lord Kenyon said, where a person authorizes another to 
 receive money for him, payment to the party so authorized 
 is payment to the principal ; and if this was the money 
 of a third party, it is sufficient to charge him with the 
 receipt (.r) . In the same way, the receipt of goods by the 
 agent is a delivery to the master {//) . 
 
 The principal is in every case liable where he commands 
 an agent to do something which is unlawful, and he cannot 
 raise the defence that the act was done by an independent 
 contractor. So, where a principal employed a contractor to 
 do what was a nuisance, and which he had no right to do — 
 breaking up a road — he was held liable ; Lord Campbell 
 saying it w^ould be monstrous if the party causing another 
 to do a thing were exempted from liability for that act 
 merely because there was a contract between him and the 
 person immediately causing the act to be done (z). So it 
 was held, in Barker v. Norwood, that the jjrincipal who had 
 procured a false imprisonment was personally liable (a), 
 and that a trespasser may be not oniy he who does the act, 
 but who commands it or procures it to be done, who aids 
 or assists in it, or who assists afterwai'ds. 
 
 [x) Mathcivs V. Uaydon (179G), 2 
 Esp. 509 ; see also Canj v. Webster 
 (1721), 1 Strange, 480. 
 
 [y) Staples v. Alden (1678), 2 
 Mod. rjOO ; Taylor v. (1702), 
 
 2 Lord Raymond, 792. 
 
 (;) Ellis V. Sheffield Gas Co. (1853), 
 2 El. & B. 767. 
 
 {a) (1772), 2 W. El. 865 ; see also 
 Bates V. Filling {IS2&J, G B. & C. 38.
 
 THE LIABILITY OF THE PRINCIPAL TO THIRD PARTIES. 273 
 
 The princij)al is liable to third parties for the frauds, Principal 
 
 1 -i 1 J. • J. i.' J. J. T liable also for 
 
 deceits, concealments, misrepresentations, torts, negligences, f^aud of 
 and other malfeasances or misfeasances, and omissions of servant in 
 duty of his agent in the course of his employment, although empioyment. 
 the principal did not authorize or justify, or participate in, 
 or indeed know of such misconduct, or even if he forbade 
 the acts or disapproved {/>) ; but although he is thus liable 
 for the torts and negligences of his agent, yet we are to 
 understand the doctrine with its just limitations, that the 
 tort or negligence occui's in the course of the agency (r) . 
 If the wrong to the third party does not arise out of any con- 
 tract, and the relation of master and servant does not exist 
 between the principal and the agent, then (as Mr. Green, the 
 learned editor of the eighth edition of Story on Agency, 
 points out, in a note to section 451) the principal is only 
 liable for the torts of the agent which arise out of the sub- 
 ject-matter of the agency : such as when the subject-matter 
 of the agency involves a tort, as a trespass, or xin illegal act, 
 or the agent commits a fraud for the purpose of carrying 
 it out. The principal is liable for torts which arise out of 
 the manner in which the agency is transacted only when 
 the additional relation of master and servant exists between 
 him and his agent [d). 
 
 The fraud must have been done for the benefit of the prin- But fraud 
 cipal. Thus, where the managing director of a company ^een for 
 fraudulently obtained payment of a sum of money to him- principal's 
 self, it was held that the company was not liable, for the 
 fraud was perpetrated by the managing director for his own 
 benefit, and not in the course of his employment (e) ; and 
 so, too, in another case (./), where it was sought to make a 
 company liable for fraudulent misrepresentations made by 
 
 {b) Story, ij 452. this work. 
 
 (c) Story, § 456. (e) J/'6^ottw v.i)y«- (1873),L. E. 
 
 {d) Story on Agency, 8th ed. 8 Q. B. 141. 
 
 sec. 451, note ; Cuthbcrtsony. Par- (/) British Mutual Banking Co. y. 
 
 swis (1852), 12 0. B. 304; Ellis \. Charnuood Forest Rail. Co. (1887), 
 
 Sheffield Gas Consumers'' Co. (1853), 18 Q. B. D. 714. 
 
 2 El. & Bl. 767 ; and see p. 277 of 
 
 W. T
 
 274 PRINCIPAL AND AGENT. 
 
 their secretary, who had fraudulently, for his own pui'- 
 poses, first issued debentures in excess of the amount the 
 company were authorized to issue, and then given frau- 
 dulent answers to the plaintiffs, who inquired of him 
 whether the debentures were good. Lord Justice Bowen 
 said : "It was argued on behalf of the plaintiffs in the 
 present appeal that the defendant company, although they 
 might not have authorized the fraudulent answer given by 
 .the secretary, had nevertheless authorized the secretary to 
 do ' that class of acts ' of which the fraudulent answer, it 
 was said, was one. This is a misapplication to a wholly 
 different case of an expression which, in Barwick v. English 
 Joint Stock Bank {g), was perfectly appropriate with regard 
 to the circumstances there. In that case the act done, 
 though not expressly authorized, was done for the master's 
 benefit. With respect to acts of that description, it was 
 doubtless correct to say that the agent was placed there to 
 do acts of 'that class.' Transferred to a case like the 
 present, the expression that the secretary was placed in his 
 office to do acts of ' that class ' begs the very question at 
 issue, for the defendant's proposition is, on the contrary, 
 that an act done, not for the master's benefit, but for the 
 servant's own private ends, is not an act of that class which 
 the secretary either was or could possibly be authorized to 
 do. It is said that the secretary was clothed ostensibly 
 with a real or apparent authority to make representations 
 as to the genuineness of the debentures in question ; but 
 no action of contract lies for a false representation unless 
 the maker of it or the principal has either contracted that 
 the representation is true or is estopped from denying that 
 he has done so. In the present case the defendant com- 
 pany could not in law have so contracted, for any such 
 contract would have been outside their corporate powers. 
 And if tluiy cannot so contract, how can they be estopped 
 
 iff) (18G7), L. R. 2 Ex. 259.
 
 THE LIABILITY OF THE PRINCirAL TO TIllRD PARTIES. 275 
 
 from denying tliat they liad done so ? The action against 
 them, therefore, to be maintainable at all, must be an 
 action founded on deceit and fraud. But how can a 
 company be made liable for a fraudulent answer given by 
 their officer, for his own private ends, by which they could 
 not have been bound if they had actually authorized him 
 to make it (because the debentures were in excess of the 
 amount the company were authorized to issue, and there- 
 fore any contract as to them would have been ultra rives), 
 and promised to be bound by it ? The question resolves 
 itself, accordingly, into a dilemma. The fraudulent 
 answer must either have been within the scope of the 
 agent's employment or outside it. It would not be 
 within it, for the company had no power to bind them- 
 selves to the consequences of any such answer. If it is 
 not within it, on what grounds can the company be made 
 responsible for an agent's act done beyond the scope of his 
 employment, and from which they derived no benefit." 
 It was argued that the answering such question was 
 within the scope of his employment, as he had a duty to 
 answer them about transfers generally; but the Court held 
 that the argument was fallacious, for the reasons above 
 given. 
 
 Where, however, a fraud is perpetrated by the agent for Principal 
 the benefit of his principal, in the scope of his employment, .^^[g^'^ per^-^° 
 the principal is liable. In Bancich v. The English Joint Stock petrates fratid 
 Bcoili (h), the manager of a bank, in order to induce a third benefit, 
 party to supply goods to a customer (which were required 
 for the purpose of fulfilling a contract), promised that the 
 goods should be paid for out of the money coming from 
 the contract in priority to any other payment "except to 
 the bank." The manager knew that such a guarantee was 
 fallacious, as the customer owed the bank 12,000/., and 
 the money payable under the contract was only 2,676/. 
 
 {h) (1867), L. R. 2 Ex. 259. 
 
 t2
 
 276 
 
 PRINCIPAL AND AGENT. 
 
 When 
 principal a 
 corporation, 
 similarly 
 liable. 
 
 Shareholder 
 cannot sue 
 company for 
 fraud. 
 
 The Com-t held the bank liable, as the fraud was perpe- 
 trated in order to benefit it, for by the contract being carried 
 out it would obtain payment of the 2,676/. In holding the 
 bank liable for the fraud, Mr. Justice Willes said : " "With 
 respect to the question whether a principal is answerable 
 for the act of his agent in the course of his master's business 
 and for his master's benefit, no sensible distinction can be 
 drawn between the case of fraud and any other wrong. 
 The general rule is that the master is answerable for every 
 such wrong of the servant or agent as is committed in the 
 course of the service, and for the master's benefit, though 
 no express command or privity of the master can be 
 proved." 
 
 This statement of the law was cited with approval by 
 Lord Selborne in Houhlin-orth v. City of Glasgou- Bank {h) ; 
 and there, sjoeaking of the liability of corj)orations for frau- 
 dulent agents, he quotes Lord Cranworth in. Addie's case («), 
 who says, " An attentive consideration of the cases has 
 convinced me that the true principle is, that these corporate 
 bodies, through w^hose agents so large a portion of the 
 business of the country is now carried on, may be made 
 responsible for the frauds of those agents to the extent to 
 which the companies have profited by those frauds, but that 
 they cannot be sued as wrongdoers personally by imputing 
 to them the misconduct of those whom they have emj)loyed. 
 A person defrauded by du-ectors, if the subsequent acts 
 and dealings of the parties have been such as to leave him 
 no remedy but an action for the fraud, must seek his 
 remedy against the directors personally." 
 
 It was held in Houldsicorth v. City of Glasgoiv Ban]:, that 
 a person who took shares in a company by a fraudulent 
 representation cannot, on finding out the fraud, elect to 
 keep the shares, to rescind the contract, and get damages 
 for tlie misrepresentation ; his only remedy is to have the 
 
 (A) (1880). 3 Ap. Cas. 317. 
 
 (0 (1867), L.R. IH. L. Sc. 146.
 
 THE LIABILITY OF THE PRINCIPAL TO THIRD PARTIES. 27^ 
 
 contract rescinded, and to recover any money he has paid 
 or damages he has sustained ; but while he is a member of 
 the company he can bring no action of damages against 
 it in respect of the shares, and after the company was 
 wound up he cannot rescind. 
 
 In the case of a cliattel, if the agent has deceived the 
 third party, the person so deceived may, on finding out the 
 fraud, retain the chattel and bring an action for any 
 damage he has suffered, or can insist upon being restored 
 .to his original position (/>•), 
 
 The liability of principal for the acts, negligence, Principal only 
 misfeasances, &c. of an agent is confined to those cases a^ent's'^ne"-!!- 
 where the agent is a servant. This is very clearly put gence when 
 by Sir Frederick Pollock, in his work on Torts (/) : " The servant, 
 relation of master and servant exists only between persons 
 of whom the one has the order and control of the work 
 done by the other. A master is one who not only pre- 
 scribes to a workman the end of the work, but directs the 
 means also, or, as it has been put, ' retains the power of 
 controlling the work,' and he who does work on those 
 terms is, in law, a servant, for whose acts, neglects, and 
 defaults to the extent to be specified, the master is liable. 
 An independent contractor is one who undertakes to pro- 
 duce a given result, but so that in the actual execution of 
 the work he is not under the order or control of the person 
 for whom he does it, and may use his discretion in things 
 not sj)ecified beforehand. In the acts or omissions of such 
 a one about the performance of his undertaking, his em- 
 ployer is not liable to strangers, no more than the buyer of 
 goods is liable to a person who may be injured by the 
 careless handling of them by the seller or his men in the 
 course of delivery. If the contract, for example, is to 
 build a wall — and the builder has a right to say to the 
 employer ' I will agree to do it, but I shall do it after my 
 
 (/t) Eouldsicorlh v. City of Glas- [I) Pollock ou Torts, 3rd ed. 
 
 gow Bank (1880), iibi supra. p. 72.
 
 278 
 
 PRINCIPAL AND AGENT. 
 
 How injury 
 to third party- 
 may arise. 
 Firstly, 
 consequence 
 of master's 
 orders. 
 
 Secondly, 
 careless carry- 
 ing out of 
 master's 
 orders. 
 
 own fashion : I shall begin the wall at this end and not at 
 the other.' There the relation of master and servant does 
 not exist, and the employer is not liable. In ascertaining 
 who is liable for the act of the wrongdoer, you must look 
 to the wrongdoer himself, or to the first person in the 
 ascending line, who is the employer and has control over 
 the work. You cannot go further and make the employer 
 of that person liable {))i) : that is, of course, if the person 
 employing the contractor has employed him to do a lawful 
 act, for if the act itself is wrongful the employer is re- 
 sponsible for the wrong so done by the contractor or his 
 servants "(;^). 
 
 Sir Frederick Pollock then shows the injmy for which 
 the master may be liable may be caused in four ways : — 
 
 First. Where it is the natural consequence of the prin- 
 cipal's orders ; there the principal is liable. In Gregory v. 
 Fiper, the principal told the agent to heap rubbish near 
 the plaintiff's wall, and in the natm-al course of events it 
 came against the plaintiff's wall. If, in the execution of 
 the order, it was the necessary or natural consequence of 
 the act ordered to be done, that the rubbish should go 
 against the wall, the master is liable in trespass. 
 
 Secondly. Where the servant carelessly conducts his 
 master's business, as in the ordinary running down case, 
 where he drives over a person in the road while doing his 
 master's business. But if he goes off on someone else's 
 busLuess, or on some pleasure of his own, the principal is 
 not liable. In Storeij v. Ashton (o), a carman, instead of 
 doing his principal's business, went off in a different direc- 
 tion to fetch something for a friend, and while doing so 
 ran over the plaintiff. Under the circumstances the prin- 
 cipal was not held liable. Chief Justice Cockbrn-n said : 
 " The true rule is, that the master is only responsible so long 
 
 (>») Per WUles, J., Mun-r)!/ v. 
 Currie (1870), L. R. G 0. P. 24. 
 
 («) i:ins V. Sh(J^i.chl Gas Co. (1853), 
 2 E. & 13. 707. 
 (o) (IHGD), L. R. 4 Q. B. 476.
 
 THE LIABILITY OF THE PRINCIPAL TO THIRD PARTIES. 279 
 
 as the servant can be said to be doing the act in the doing 
 of which he is guilty of negligence in the course of his 
 employment as a servant. I am far from saying if the 
 servant, when going on his master's business, took a some- 
 what longer road, that, owing to the deviation, he would 
 cease to be in the employment of the master, goes to 
 divest the latter of all liability : in such cases it is a ques- 
 tion of degree, as how far the deviation could be considered 
 a separate journey." 
 
 It has, however, been held that the fact of the servant In contract of 
 acting outside the scope of his employment, unless the act principal may 
 was malicious, was no defence to an action on a contract ^® liable. 
 of bailment, for that the bailee undertook to take care of 
 the thing bailed, and if it got injured by an act of a 
 servant, although it was outside the scope of his employ- 
 ment, the principal was liable {p) . 
 
 Thirdly. The servant may make a mistake in the Thirdly, 
 execution of his authority. As to the cases where he ^'.f^J^iJL^^..^. 
 ordered the third party to be arrested, see the chapter on orders. 
 "Authority of the Agent." In Baijley v. Mauchcder, 
 Shi'ffiehl and LincolnsJdre Baihcay (q), a porter, thinking 
 that the plaintiff was in a wrong train, pulled him out, 
 and, as the train was in motion, he was hm-t. The com- 
 pany were held liable. Mr. Justice Blackburn said : "The 
 law is clear that where a servant, acting within the scope 
 of his employment, does an act negligently or with 
 excessive violence, the master is responsible for the conse- 
 quences. In the case of Seymour \. G ire ii /rood {>•), there 
 was great excess of violence used by the servant, and yet 
 the master was held responsible, because the servant was 
 acting within the scope of his employment, however 
 outrageous and improper the manner in which he did it 
 might be. The question here, therefore, is whether there 
 
 (j») Coupe Co. V. Maddh'l-. (1S91) {q) (1872), L. R. 7 C. P. 415. 
 
 2 Q. B. 413; but see Tilling v. (r) (1861), 6 H. & N. 359; and 
 
 Balmain (1892), 8 Times, 517. (1861), 7 H. & N. 355.
 
 ,280 
 
 }'RIXCirAL AND AGENT. 
 
 Fourthly, 
 deliberate 
 ■vrrong for 
 master's 
 benefit. 
 
 Doctrine of 
 
 common 
 
 employment 
 
 was evidence that tlie porter in what he did was acting 
 within the scope of his employment. If he were so acting, 
 then, however much he may have ahused his authority, 
 however improperly and blunderingly he may have acted, 
 the defendants are liable." 
 
 Fourthly. The principal may be liable for deliberate 
 wrongs. 'We have dealt with frauds when considering 
 whether the act be within the scope of the employ- 
 ment. The principal is liable for the illegal act of his 
 servant, even if wilful, provided it was ^^ithin the scope 
 of the servant's employment, and in the execution of the 
 service for which he be engaged. Therefore, where an 
 omnibus driver, in racing another rival 'bus, pulled across 
 the road and thereby forced it on a bank and overturned 
 it, the company were held liable (v). But if the servant 
 did the act not to fmther his master's interests, or in the 
 course of his employment, but to satisfy some private 
 spite, and with the object of injming the other, the master 
 is not responsible. 
 
 An exception has been made by decisions on the rule 
 that the principal is liable to a third party for the negli- 
 gence of his servant, namely, that he is not so where that 
 third person is a fellow-servant of the person who has in- 
 jured him. A servant, when he engages to serve a master, 
 undertakes, as between himself and his principal, to run 
 all the ordinary risks of the service, including the risk of 
 negligence upon the part of a fellow- servant when he is 
 acting in the discharge of his duty as servant of him who 
 is common master of both (t). 
 
 Some exceptions were made as to the generality of 
 this rule by the Employers' Liability Act, 1880, but the 
 subject belongs ratlier to the law of master and servant 
 than principal and agent. 
 
 («) Limpus V. London General Om- 
 nibus Co. (1862), 1 11. & C. 626, 
 and see Blackburn's judgment. 
 
 (0 Erie, C. J., in Tioinei/v. Mid- 
 land Rail. Co. (1866), L. R. 1 C. P. 
 291.
 
 THE LIABILITY OF THE PRINCIPAL TO THIRD PARTIES, 281 
 
 "Where a pilot is by compulsion of law employed on Principal not 
 board a vessel he cannot be regarded as the servant of the of compulsory 
 owner, and the owner is not liable for his negligent acts, 1'^^°*- 
 and, therefore, if the owner can prove that the ship was 
 managed according to the pilot's directions, and the crew 
 did not contribute to the accident by their acts, he is not 
 liable (ii). 
 
 The Merchant Shipping Act, 1854 (.r), enacts that no Merchant 
 owner or master of any ship shall be answerable for any ^PP"^^ ^ • 
 loss or damage occasioned by the fault or incapacity of 
 any qualified pilot acting in charge of a ship, within any 
 district where the employment of the pilot is conij)ulsory 
 by law. To establish this exemption, as above-mentioned, 
 it is not enough to prove that a pilot whose employment 
 was compulsory was in charge, evidence must be given to 
 prove that it was the pilot's fault or incapacity that occa- 
 sioned the collision. In the case of the Ion(i (//), it was 
 held that the owners must also prove to the satisfaction of 
 the Court which has to try the question, that there was no 
 default wliatever on the part of the officers and crew of 
 their vessel, or any one of them, that might have been in any 
 degree conducive to the damage. On this Lord Chelmsford 
 remarked (:;) : "If instead of saying ' they must prove,' the 
 learned Vice- Chancellor had said ' it must be proved that 
 there was no fault on the part of the officers and crew,' 
 he would have been perfectly correct. The condition of 
 exemption that the owners should prove that the accident 
 arose entirely from the fault of the pilot is one which 
 must be fairly interpreted. The owners having proved 
 fault on the part of the pilot sufficient to cause, and in 
 fact causing, the calamity, must, therefore, in the absence 
 of proof of contributory fault, be held to have satisfied the 
 
 (k) The Hallcii (1868), L. R. 2 P. {>j) (1867), L. R. 1 P. C. 426. 
 
 C. 193; The Hibernian (1872), L.R. [z] Ch/de Xavigation Co. -y. Barclaw 
 
 4 P. C. 511. (1876), "l Ap. Cas. 790. 
 
 {x) Sect. 388.
 
 282 PKINCIPAL AND AGENT. 
 
 condition on which the exemption depends, and are not 
 called upon to adduce proof of a negative character to ex- 
 clude the mere possibility of contributory fault. It may be 
 that in the course of the evidence of the owners to fix the 
 responsibiUty solely upon the pilot, certain acts or omis- 
 sions on the part of the crew may come out, and it will 
 then be incumbent on the owners to show satisfactorily 
 that those acts or omissions in no degree contributed to the 
 accident."
 
 283 
 
 CHAPTER XVI. 
 
 LIABILITY OF AGENT TO THIRD PARTIES. 
 
 As a general rule, an agent acting within his authority, Ajyent genc- 
 and only as agent, is not liable to the party he contracts Uable^to third 
 with personally. The rule is also stated thus : — When a parties ; 
 man is known to be acting merely as agent of another who 
 is also known, and acts within his authority, he is not 
 liable at all to third parties. 
 
 Lord Erskine said : — " No rule of law is better aseer- wliere he 
 tained or stands upon a stronger foundation than this : pr^ckiaL 
 that where an agent names his princijial, the principal is 
 responsible, not the agent ; but for the application of that 
 rule the agent must name his principal as the person to be 
 responsible " (a). 
 
 Therefore, if an agent executes a deed or other instru- 
 ment in the name of his principal, he is not bound thereby ; 
 nor is he liable if he makes a contract by letter or verbally 
 if he at the same time names his principal ; for no credit 
 is, under such circumstances, given to the agent, but to the 
 principal. Where no credit has been given to the agent 
 he is in no way liable. 
 
 There may be a custom, however, that the agent is ^^it agent 
 liable althougli he names his princijoal, as on the Stock by custom. 
 Exchange, or the custom that obtains between soKcitors, 
 where the Cornet has held that the attorney who does 
 business universally gives credit to the attorney who 
 employs him, and not to the client for whose benefit it 
 
 («) Ex. parte Hartop (1806), 12 Ves. 349.
 
 284 
 
 TRINCIPAL AND AGENT. 
 
 Liable if no 
 authority or 
 exceeds it. 
 
 Chief Justice 
 Jervis' state- 
 ment of the 
 law. 
 
 Agent liable 
 for misrepie- 
 Benting his 
 authority. 
 
 is done(i). Where the agent makes a verbal contract, 
 and the evidence is contradictorv, it is a question for the 
 jury to decide to -vrhom credit has been given. But the 
 agent is liable if he does not possess any authority, or if 
 he exceeds the authority given to him. 
 
 In BandeU \. Trimen {c), Chief Justice Jervis adopts the 
 following propositions as stated in Smith's Leading Cases. 
 The agent is personally responsible — '' "Where the agent 
 makes a fraudulent representation of his authority with in- 
 tent to deceive. Where he has no authority and knows it, 
 but nevertheless makes the contract as having such authority. 
 Where, not having in fact authority to make the contract 
 as agent, he yet does so under the honu fide belief that such 
 authority is vested in him, as in the case of an agent acting 
 under a forged power of attorney which he believes to be 
 genuine, and the like." The agent being responsible in 
 all these cases for misrepresentation [d). 
 
 The principle was also very clearly stated in CoUen v. 
 Wriglif {e), where !Mr. Justice Willes gave a judgment, in 
 which all the barons of the Court of Exchequer concurred, 
 and which has since been followed, deciding that an agent 
 who acts without authority is liable on an implied warrant 
 of authority. He says : "A person who induces another to 
 contract with him as the agent of a third party by an 
 unqualified assertion of being authorized to act as such 
 agent, is ansAverable to the person who so contracts for any 
 damages which he may sustain by reason of the assertion 
 of authority being untrue. . . . The fact that the professed 
 agent honestly thinks he has authority affects the moral 
 character of the act ; but his moral innocence, so far as the 
 person whom he has induced to contract is concerned, in no 
 
 [b) Scracc v. Ifhitlbigton (1823), 
 2 B. & Cress. 1 1 ; and Iveson v. 
 Conington (1823), 1 B. & Cress. 
 160. 
 
 {c) (185C), 18 C. B. 786. 
 
 [d) FoUtill V. Walter (1832), 3 
 B. & Ad. 114. 
 
 {e) (1857), 8 El. & Bl. 647, at 
 p. 657.
 
 LIA15IMTY OF AGENT TO THIRD PARTIES. 285 
 
 way aids such person or alleviates the incouveuience and 
 
 damage which he sustains." 
 
 The misrepresentation of authority must be misreijresen- ^S'^J^^}^ ^ 
 (, pp , r. PIP liable lor mis- 
 
 tation of a matter or fact, and not of a matter of law ; for representiug 
 
 instance, if both parties have seen or know what the autho- musrhave"^^ 
 rity is, if the agent interprets it to give him larger legal made a mis- 
 powers than it actually does, he will not be liable to the as to a fact 
 third party who may have acted on such inter23retation. ^^^ ^^ ^^ ^^'^• 
 Lord Justice Mellish, discussing the cases where an agent 
 has been held liable, says (,/) : "If the cases are examined 
 it will be found in all of them there was a misrej^re- 
 sentation in point of fact as to the agent having power to 
 bind his principal ; and though I have not found any case 
 in Courts of law on the question, I have no doubt, myself, 
 that it would be held that if there is no misrepresentation 
 in point of fact, but merely a mistake or misrepresentation 
 in point of law ; that is to say, if the person who deals with 
 the agent is fully aware in point of fact what the extent 
 of the authority of the agent is to bind his principal, but 
 makes a mistake as to whether that authority is sufficient 
 in point of law or not, under those circumstances, I have no 
 doubt, the agent would not be liable. For instance, supposing 
 when an agent comes and professes to make a contract on 
 behalf of his principal, instead of trusting to his represen- 
 tation that he has power to bind his principal the person 
 dealing with the agent were to ask to see his authority, 
 and a power of attorney executed by the principal were 
 shown to him, and he took the opinion of his lawyer as to 
 whether the power of attorney was sufficient to bind the 
 principal, and was advised that it was sufficient to bind the 
 principal, and then after that a contract was made, it turned 
 out that the power of attorney was insufficient. ... I am 
 clearly of opinion that there would be no warranty on the 
 part of the agent that the power of attorney was good in 
 
 (/) Ileatiie v. Lord Ebiirij (1872), on appeal (1874), L. R. 7 H. of L. 
 7 Cli. 777, at p. 800; and same case 102.
 
 286 PRINCIPAL AND AGENT. 
 
 point of law." In that case tliree directors of a company 
 had sent the following note to the bankers of the company : — 
 
 " Watford and E-ickmansworth Railway. 
 " Grentlemen, 
 
 " Please to honom- the cheques of this company, 
 signed by two of the directors, and countersigned by 
 the secretary," 
 
 and then followed the directors' signatures. The account 
 having been overdrawn, the bankers tried to hold the 
 directors liable. The question to be decided was, whether 
 the directors were personally liable on that letter as an 
 untrue representation that they had power to overdraw. The 
 Cornet held that the letter only represented that there was 
 such company in existence, that they were directors of it, 
 and had the powers of ordinary directors, and that if there 
 were a misrepresentation as to their powers (which the 
 Court was inclined to think there was not) it was a mistake 
 of law for which they were not liable. In another case, 
 where the directors indorsed a bill of exchange for and on 
 behalf of their company, which had no power to accejDt bills, 
 the directors were held personally liable on the ground 
 that such indorsement amounted to a misrepresentation of 
 a matter of fact — namely, that the company had power to 
 accept, a representation which was untrue — and that it 
 was a misrepresentation to the person in whose hands the 
 bill had come without knowledge of the limitation in the 
 company's powers ((/). 
 Wlicro both Where both the third party and the agent enter into a 
 
 fr!'^\^ uikI contract under a mistaken impression, intending to bind 
 
 til lid piuty ^ \ o _ 
 
 muko contract tho principal when he cannot be made liable, the agent will 
 takofiit'oi'iT' not be liable on the contract (h). Thus, where in an action 
 not liaijle. brouglit by a solicitor for legal services rendered to a 
 
 {(/) Wcsl London Commercial Bank (A) /o«e« v. ifojijc (188G), 3 Times 
 
 V. KUnon (188:5), 12 Q. B. D. IT)?, L. E,. p. 238 (note) ; and .see Jlawke 
 
 at p. IGl ; ailirincd (1884), 13 Q. v. Cok (1890), 02 L. T. 658. 
 B. D. 3G0.
 
 LIABILITY OF AGENT TO THIRD PARTIES. 287 
 
 volunteer corps agaiust tlie commanding officer of a volun- 
 teer regiment, it appeared that the plaintiff and defendant 
 both mistook the law, and, thinking the corps was an entity- 
 recognised by the law, and could contract, intended to 
 make a contract with the corps, it was held that the de- 
 fendant, who was contracting as agent, was not liable. 
 The Master of the Rolls said : " Where [the person with 
 whom the contract was supposed to have been made knows 
 all the circumstances just as much as the agent himself — 
 knows the agent is not authorized — and then chooses to 
 take the credit of the person when he knows the agent is 
 not authorized to pledge it, in such a case I cannot think 
 that an action would lie. But that is not the case here at 
 all. Here the defendant and the plaintiff both knew, or 
 assumed, that this contract was being made with the cordis, 
 and neither of them knew that no such contract could be 
 binding on any of them. . . . Well, there is no contract 
 with Colonel Durnford, and judgment ought to be entered 
 for Colonel Durnford." 
 
 Where the agent signed a charterparty, " per telegraphic ^^^^} ^^ ^°^- 
 authority," evidence was admitted to prove that such form "telegraphic 
 of signatm'e was commonly adopted in order to negative ^^^ °" ^' 
 the implication of any further warranty than that he had 
 received a telegram which, if correct, authorized the 
 charterparty that was signed ; and the agent was there- 
 fore not held liable for a mistake in the telegram as to the 
 rate of freight offered (i). 
 
 The agent is liable to the third party where he assumes Agent liable 
 to act for a principal who is insane and incapable of giving insane. 
 an authority. Lord Justice Brett said, in Dreir v. JSFioin (k) : 
 " It seems to me that an agent is liable to be sued by a 
 third person if he assumes to act on his principal's behalf 
 after he had knowledge of his principal's incompetency to 
 act. In a case of that kind he is acting -wTongfuUy. . . . 
 
 (0 lilki/ V. Snwies, (1892) 1 Q. (Z) (1879), 4 Q. B. T>. 661. 
 
 B. 456.
 
 288 PRINCIPAL AND AGENT. 
 
 In my opinion if a person who lias not been held out as 
 agent assumes to act on beliali of a lunatic, the contract is 
 void against the proposed principal, and the pretending 
 agent is liable to an action for misleading an innocent 
 person." 
 Measure of The damages to be recovered against the agent are what 
 
 ao^inlt ao-ent. "^^^ lost to the third party by not having the valid con- 
 ti'act which the agent warranted he had ; and thus if the 
 principal were solvent the damages would be the amount 
 of the profit lost by the thii-d party ; if the principal were 
 not solvent it would only be a nominal sum (/). 
 
 In Collcn V. Wright [m) the agent represented he had 
 authority to make an agreement for a lease. The prin- 
 cipal refused to give the lease, and then the thii'd 
 party brought an action for specific performance'. In his 
 defence the principal set up that the agent had no authority 
 to make the agreement. The third party gave the agent 
 notice of the defence, and that he would proceed with the 
 action unless the agent gave him notice not to do so, and 
 claim the costs of it against the agent. The agent did 
 not take any notice, and the action proceeded. Specific 
 performance was refused on the ground of want of autho- 
 rity. The third party then brought a second action against 
 the agent, and the Court gave him as damages both the 
 amount he had expended on the improvements of the farm, 
 in the belief that he was entitled to a lease, and also the 
 costs of the Chancery action. On appeal, this decision was 
 affirmed in the Exchequer Chamber, and it was approved 
 of in Rkhanhon v. Williamson [n) by Lord Blackburn, 
 and in Beattic v. Lord Ehury{o). In Re The National 
 Palace Co. (p), brokers who, by mistake, applied for shares 
 in a company were held liable to the liquidator of the 
 company for the full value of the shares, as the brokers' 
 
 (/) Simons V. Patchelt (1857), 7 (o) (1872), 7 Ch. 777, at p. 805; 
 
 El. «& Bl. 568. and same case on appeal (1874), 7 
 
 (m) (1857), 7 El. & BI. 301 ; 8 E. & I. Ap. 102. 
 
 El. & Bl. 647. (p) (1885), 24 Ch. D. 367. 
 
 (w) (1871), L. R. G Q. B. 276.
 
 LIABILITY OF AGEMT TO THIRD PARTIES. 289 
 
 client was a solvent person. And in Meek v. Wendt (q), 
 where agents, thinking they had authority, settled a claim 
 under a judgment for 300/., they were held liable for the 
 whole amount and the costs of the negotiations, as that was 
 the amount they had warranted the third party, and he 
 lost through the negotiations falling through. The agents' 
 principals being foreigners with no assets in the jurisdic- 
 tion, and the judgment therefore worthless. The measure 
 of damages being what the plaintiff actually lost by losing 
 the particular contract which was to have been made by 
 the alleged principal if the agent had the authority he 
 professed to have. 
 
 The agent is also personally liable to third parties if he Agent L'able 
 has no principal in existence ; although he pm-ports only to no^principal'' 
 sign as agent. Thus, where an agent signed a contract for 
 the purchase of some wine as agent for a company which had 
 not come into existence. Chief Justice Erie said {>■) : " The 
 cases refeiTed to in the course of the argument fully bear 
 out the jDroposition that where a contract is signed by one 
 who professes to be signing ' as agent,' but who had no 
 principal existing at the time and the contract would be 
 altogether inoperative, unless binding upon the person who 
 signed it, he is bound thereby, and a stranger cannot by a 
 subsequent ratification relieve him from responsibility." 
 
 Where there is no resjionsible principal whom the tliu'd Agent of club. 
 party can sue, the agent will be held liable (6'), unless it can 
 be shown that no credit was given to him, and that the third 
 party relied solely on some fund for payment. A club is 
 no legal entity ; therefore the executive committee who have 
 acted for it are held prima facie liable personally {f). 
 
 As the agent is held liable where he has no principal, Navigation 
 although he purport to contract only as agent, so he is also ^°™^^^" 
 
 sioners, 
 
 [q] (1888), 21 Q. B. D. 126. (1886), 3 Times L. R. 348. 
 
 (r) Kilnerv.Sazter [1867], L.R. {t} Steele v. Gourky (1886), 3 
 
 2 C. P. 174. Times L. R. 118, 772; see also 
 
 (s) Kehicr Y. Baxter {l^&l),!^.^,. Draper v. Earl Manvers (1893), 9 
 
 2 C. P. 174 ; but see Jones v. l£o2)c Times, 73. 
 
 W. U
 
 290 
 
 PlllNClPAI, AND AGENT. 
 
 cliurcli- 
 
 wardens, tSrc. 
 
 Exception. 
 
 Agent liable 
 when exclu- 
 sive credit 
 given him. 
 
 Agent liable 
 if he contracts 
 as principal. 
 
 liable where he purports to contract for a principal who is 
 incapable of contracting. It is on the above principle that 
 commissioners for making a river navigable, and inclosure 
 commissioners, have been held to be personally liable (/(). 
 In Furnival v. Coomhes[v) the chui-chwardens and overseers 
 of a parish entered into a covenant to pay for the repair 
 of the parish chm^ch, and provided in the deed that they 
 should not be personally liable ; but the Court held that 
 they were personally liable, and rejected the proviso as 
 inconsistent with the covenant. 
 
 But if the agent can prove or it can be shown clearly (x) 
 that it was well known that the agent did not intend to 
 bind himself, and that the third party did not rely on his 
 credit, but only on some fund, as sometimes happens in 
 the case of charitable societies, no one will be liable {y) . 
 
 Again, the agent may be personally liable, because 
 exclusive credit was given to him : thus, in the words 
 of Mr. Justice Bayley, *' The seller who knows who the 
 principal is, and, instead of debiting that principal, debits 
 the agent, is considered, according to the authorities which 
 liave been referred to, as consenting to look to the agent 
 only, and is thereby precluded from looking to the prin- 
 cipal" (::). 
 
 An agent is also liable if, at the time of making the 
 contract with the third party, he does not disclose the fact 
 of his agency and treats with the third party as principal. 
 Evidence may be given by the third party to show that 
 the agent was an agent so as to make the principal liable 
 also ; but the principal will remain bound all the same, and 
 cannot give parol evidence to relieve himself of liability. 
 
 Lord Denman said : " There is no doubt that evidence 
 is admissible on behalf of one of the contracting parties to 
 
 (m) 7^»-.s7(?»/v.7W/(1778), IBrown, 
 Ch. 101 (note) ; Eatony. Jk'll {1^21), 
 b B. ic AM. ;31. 
 
 (v) (18i;5), r> Man. & Gran. 73C. 
 
 (x) I'iiik V. Hcudamorc (1831), 6 
 C. &P. 71. 
 
 (//) Ovcrfon v. IlnrUl (188G), 3 
 Tiirics, 24G ; Jones v. Jlo/>e (188(3), 
 Il>i((.; lUtwke v. Cole (1890), G2 
 L. T. G.58. 
 
 (.-) Thumso)! V. Daroiport (1829), 
 B. & C. 78. at p. 89.
 
 L1A151L1TY OF AOENT TO TIHRI) PARTIES. 291 
 
 show that the other was agent only, though contracting in 
 his own name, and so to fix the real principal ; but it is 
 clear that if the agent contracts in such a form as to 
 make himself personally responsible he cannot afterwards, 
 whether his principal were or were not known at the time 
 of the contract, relieve himself from the responsibility " (r/) . 
 
 But if the agent had become a party to the contract in 
 his own name, on an understanding that he should not be 
 liable on it, the Court has allowed evidence of such under- 
 standing to be given. Thus, in IFaliC v. IIarrop{I)), where 
 the agents signed a charterparty as agent, but bound 
 themselves personally as freighters in the body of the 
 document, they were allowed to prove that it was agreed 
 between themselves and the third party that they were 
 not to be liable on the charterparty as principals. 
 
 The principle that an agent is liable if he contracts in Agent licable 
 
 ■, . . 1 1 • n n ij_*j_i i" if he contracts 
 
 ms own name is most strictly aanered. to m the case oi ^s principal, 
 deeds. For no one can sue on a deed except a party f^P*^^'^^!^^ ^ 
 thereto, and it is only binding on the parties thereto (c). 
 In TFiilcs V. Back (c/), it was decided that one who executes 
 a deed for another under a power of attorney must execute 
 it in the name of his principal ; but if that be done, it 
 matters not in what form of words ; such execution is 
 denoted by the signatm-e of the words. The 46tli section 
 of the Conveyancing Act makes the rule less strict ; but 
 Prideaux in his Precedents of Conveyancing (c) says that 
 it is still the proper way to execute a power of attorney in 
 the name of the principal, and this must clearly be so, for 
 otherwise it is not clear who are the real parties. Messrs. 
 Hood and Cliallis, in their work on the Conveyancing 
 Acts, also think that the principal, and not the attorney, 
 ought to be named. 
 
 {a) Jones V. Littledale (1837), 6 (o) Storj-, § 147. See, however, 
 
 Ad. & Ell. 486, at p. 490. Sunderland Marine Insurance Co. v. 
 
 {b) (1861), 6 H. & N. 768; and Kearney (1851), 16 Q. B. 925. 
 (1862), 1 H. & C. 202. [d) (1802), 2 East, 140. 
 
 [e) loth ed. vol. ii., p. 777.
 
 292 
 
 PRINCIPAL AND AGENT. 
 
 Eule modified The 4Gtli section of the Conveyancing Act, 1881, which 
 ancing Act, Came into operation immediately after the 31st December, 
 sect. 46. 1881, enacts that " the donee of a power of attorney may, 
 
 if he thinks fit, execute or do any assurance, instrument or 
 thing in and with his own name and signature, and his 
 own seal, where sealing is required, by the authority of 
 the donor of the power ; and every assurance, instrument 
 and thing so executed and done shall be as effectual in law 
 to all intents as if it had been executed or done by the 
 donee of the power in the name and with the signature 
 and seal of the donor thereof. 
 
 " This section applies to powers of attorney created by 
 instruments executed either before or after the commence- 
 ment of the Act." 
 
 Lmcrie v. Lees (/), decided before the Act, was a 
 case in which an action was brought against the principal 
 and not against the agent as in Wahe v. Havvop {g). The 
 third party sought to have a lease declared binding on the 
 -principal which had been executed by his agents. For the 
 principal it was contended that agents (who were acting as 
 committee of a lunatic) had not properly executed a deed 
 so as to bind their principal, because they had signed and 
 sealed it in their own names, as follows: — "In witness 
 whereof the parties to these presents have set their hands 
 and seals " ; but the Court held that it was a good exe- 
 cution of theu' authority, and that it bound the principal, 
 and not the agents. 
 
 In the case of commercial agency, if the principal is 
 named, it has been decided that a broker is not a con- 
 cipal named ; tracting party (//) at all, and he therefore cannot be sued. 
 In such a case, Baron Pigott said, " on the plain construc- 
 tion of the contract, the plaintiff (tlie agent) is no party to 
 it, but only signs, as broker, bought and sold notes for 
 the respective parties." The contract before him was 
 as follows: — "I have this day sold you on account of 
 
 Commercial 
 ag'eiit not 
 liable if prin 
 
 (/) (1881), 7 Ap. Cas. 19. 
 (y) (1862), 1 H. & C. 202. 
 
 (h) Fairlie v. Fcnton (1870), L. R. 
 .5 Ex. 169.
 
 LTARILITY OF AGENT TO THIRD PARTIES. 293 
 
 Mr. Timmins, &c. E. Fairlie, broker." Chief Justice 
 Cockbm-n (/), commenting on that decision, says: "I am 
 of opinion that the same principle would apply where the 
 principal is not named, so long as it appears on the face 
 of the contract that the broker is contracting as broker 
 for a principal, and not for himself as principal ; and in 
 that case also the broker would not be liable on the 
 contract if the principal failed to fulfil his contract." 
 
 This non-liability of the agent may be altered, if by By custom of 
 custom brokers in the particular business make themselves agent may be 
 liable. Thus, the Cliief Justice in the same case con- liable, 
 tinues : "But I think, nevertheless, that the evidence of 
 the custom was admissible, and that after that evidence 
 had been given, the brokers were properly held liable on 
 the contract. For although, where a party contracts as 
 agent, there would not, independently of some further 
 bargain, be any liability on him as principal, yet if a man, 
 though professing on the face of the contract to contract 
 as agent for another, and to bind his principal only, and 
 not himself, chooses to qualify the contract, he himself 
 will incur the same liability as his principal." In the par- 
 ticular case, a custom was proved that in the London fruit 
 market a broker was liable unless he gave the name of 
 his principal. In another case (/i ) , evidence was received 
 of a custom by which, if the principal's name was not 
 disclosed within a reasonable time, the agent was held 
 liable. Again, in PUxC v. OngIei/{I), where the contract 
 was as follows : — "Sold by Ongley and Thornton to Messrs. 
 Pike, for and on account of the owner, 100 Hallertau 
 Bavarian hops " ; and evidence was given to show that, by 
 the custom of the hop market, when the principal is not 
 disclosed at the time of making the contract, the broker is 
 in fact regarded as principal, and held liable. Lord Eslier 
 
 (J) Fleet V. Murton (1871), L. R. [k) Eutchinsonx. Tatham (1873), 
 
 7 Q. B. 126, L. R. 8 C. P. 482. 
 
 (0 (1887), 18 Q. B. D. 708,
 
 294 
 
 PRINCIPAL AXD AGENT. 
 
 Custom, when 
 necessary to 
 prove and 
 how proved. 
 
 But where 
 ag'cnt con- 
 tracts in his 
 own name, 
 without quali- 
 fication, he is 
 liable. 
 
 Effect of 
 signing 
 •'as agent." 
 
 said : "In this case, the defendants (the agents) are clearly 
 not liable upon the contract itself. If they were selling 
 as agents for an owner and in the absence of trade usage, 
 no liability would attach to them. The evidence of the 
 witnesses who were called to prove custom came to this, 
 that if the name of the owner was not given in or at the 
 time of making the contract, the buyer might sue either 
 the principal or the broker. . . . The meaning of the 
 custom is that, where the principal's name is not disclosed 
 in or at the time the contract is made, the buyers reserve 
 to themselves the right of suing the broker or factor ;" and 
 he held that though the brokers were not liable on the 
 contract, they were so by reason of the custom, evidence 
 of which might be properly admitted. 
 
 Lord Esher, in Ex parte Rei/nolds, In re Barrett (m), 
 discusses how a custom ought to be proved, and when 
 judicial notice will be taken of a custom. "It is," he says, 
 " a question of fact whether a particular habit or custom 
 does or does not exist in a particular business, and whether 
 it is generally known among the persons who deal with 
 the particular class of traders. The question must at first 
 be tried upon the evidence in the particular case. It must 
 certainly be tried in this way more than once (/. e., than at 
 one trial), but if the thing is proved several times in the 
 Courts, and is adopted by the Superior Coirrts, the Court, 
 after that, will take judicial notice of it, and will not require 
 it to be proved again in any subsequent case. 
 
 Where an agent contracts in liis own name without any 
 qualification, he is personally liable {)i). 
 
 In a number of cases where a contract was signed " as 
 agent," tlie Courts decided that tlie words " as agent " 
 were merely Avords of description, and that the agent was 
 personally bound (o) . It seems now, however, established 
 
 (;m) (1884), 15 Q. B. D. 1G9, at T. 37;3. 
 p. 184. (o) See Taice v. Walker (1871), 6 
 
 («) mds V. Tared'/ (1890), 03 L. Ex, 173.
 
 LIABILITY OF AGENT TO THIRD PARTIES. 295 
 
 law, that siicli words are to be construed as meaning that 
 the agent signs only as agent and is not personally liable. 
 Lord Justice James, in Gadd^. HoiKjliton (j)), the case that 
 altered the law, said, " The rafio decidendi in Faiee v. Walker 
 was that, having regard to the contract and all the circum- 
 stances of the case, the words 'as agents' must be considered 
 as merely describing or intimating the fact that the defen- 
 dants were agents, and did not amount to a statement that 
 they were making a bargain ' on account of ' another per- 
 son. Those are the very words used in the present case. 
 "When a man says that he is making a contract 'on account 
 of some one else, it seems to me that he uses the very 
 strongest terms the English language affords to show that 
 he is not binding himself but is binding his principal. As 
 to Pa ice v. Walker, I cannot conceive that the words ' as 
 agent ' can be properly understood as implying merely a 
 description. The word 'as' seems to exclude that idea. If 
 that case were now before us, I should hold ' as agents ' in 
 that case had the same effect as the words ' on account of ' 
 in the present case, and that the decision in that case ought 
 not to stand. I do not dissent from the principle that a 
 man does not relieve himself from liability upon a contract 
 by using words which are intended to be merely words of 
 description, but I do not think ' as agents ' were words of 
 description " (^). 
 
 As we have seen, where the agent contracts on behalf of When third 
 an unknown principal, or by a custom in which the third elect whom 
 party can hold him liable, the third party has a right to *° ®^^' 
 elect whom he will sue, whether the principal or the agent. 
 When he has once elected to sue the principal the agent 
 will no longer be bound. The third party does not elect 
 bindingly until he knows who the principal is. 
 
 Lord Tenderden states the rule thus : " I take it to be a How long 
 
 1 •(■ n 1 / • I l^ third party 
 
 general rule that if a person sells goods (supposmg, at the can elect. 
 
 {p) (1876), I Ex. Div. 3o7. P. D. 374 ; and Mr. Justice Charles 
 
 [q) See also Sir G. Jessel in in Glover v. Lonqford (1892), 8 
 Southwell V. Bowdach (187G), I C. Times, C28.
 
 296 PRINCIPAL AND AGENT. 
 
 time of the contract, he is dealing \sith a principal), but 
 afterwards discovers that the person with whom he has been 
 dealing is not the principal in the transaction but agent for 
 a third party, though he may in the meantime have debited 
 the agent with it, he may afterwards recover the amount 
 from the real principal, subject, however, to this qualifica- 
 tion, that the state of the account between principal and 
 agent is not altered to the prejudice of the piincipal." 
 
 He then deals with the case before him, which was 
 
 one where the third party knew that the agent was an 
 
 agent but did not know who the principal was, and held 
 
 that the third party is not deemed to have made any 
 
 election so as to bind him to have elected to have given 
 
 the exclusive credit to the agent until he knows who the 
 
 principal is (;•). Story states (-s) the rule thus: "When 
 
 acting as a known accent he does not disclose the name of 
 
 his principal ; then, though credit is given to the agent, it 
 
 is not deemed to be exclusive credit. On the contrary, 
 
 when the principal is discovered he also will be deemed 
 
 responsible as well as the agent." 
 
 Fr'tmd facie Prima focic an agent when contracting for an undisclosed 
 
 thoa<^h ^' principal is personally liable although he is known to be 
 
 kno-R-n as such an agent ; for it is unlikely that credit should be given to 
 
 undisclosed. ^ person whose name is altogether unkno^^Ti. It is also 
 
 unlikely that where the principal is a foreigner and outside 
 
 the jurisdiction of the Com*t, a person would prefer to 
 
 trust him, rather than look to the agent in England whom 
 
 he knows and can sue. 
 
 If named At one time it was considered that there was a universal 
 
 cipajfmattcr imderstanding among merchants and all persons in trade 
 
 of evidence that when the principal was a foreigner, credit was given 
 
 agent liable. ^0 the agent and not to the principal, and that the agent 
 
 was liable ; but it now seems that there is no presumption 
 
 either way, and that it is always a question as to what was 
 
 (r) Thomson v. Daicnport (1829), cipal to Third Party, p. 230. 
 9 B. & C. 78 ; and see cases cited («) § 291. 
 
 in Chapter on Liability of Prin-
 
 LIABILITY OF AGENT TO TIIIKD PARTIES. 237 
 
 the intention of the parties (/). In GJorer v. Langford {n), 
 Mr. Justice Charles — after first pointing out that though 
 in the earlier cases signing "as agent" would not have 
 prevented the agent heing held liahle, the true rule is now 
 laid down in Gadd v. Houghton (.r), where the Court of 
 Apjieal held that the words "on account of" were sufficient 
 to show that the agent did not intend to make himself 
 liable on the contract, and overruled Puke v. Walher (//) — 
 says : "I must look at the contract to find out the ques- 
 tion of agency — and that alone, and not the previous 
 dealings of the parties. The principals of the defendant 
 were Messrs. Young & Co. of Riga, and the plaintiff knew 
 this by March, as the defendant had in a specification told 
 them so. (The contract was worded thus : ' Bought by 
 Messrs. C. H. Glover & Co. of Hatcham, of Messrs. John 
 E. Young & Co. of Riga, through the agency of Mr. J. 
 B. R. Langford.') I must read the contract to mean 
 Messrs. Young & Co. will supply the goods, and the plain- 
 tiffs knew therefore that they were entering into a contract 
 with Langford for a foreign principal. Then it is said by 
 a rule universally acted upon, and which has become a 
 rule of laAV, there can be [not ?] the relation of principal with 
 the English agent under such circumstances, and I was 
 referred to Mr. Justice Blackbm'n's decision in Armstrong 
 V. Stokes (z). It is therefore said Mr. Langford ought 
 to be charged as principal. In referring to the other 
 cases, it appears that i)i jwint of law there is no distinetion 
 as to t/te tiabiliti/ of an agent acting on behalf of an English 
 or a foreign ^jrlncijxd ; it is always a question of fact, 
 and no doubt the circumstance that an Englishman is 
 acting for a foreigner is a circumstance of great weight. 
 On the other hand, when he is acting for a foreign prin- 
 
 (t) Green v. Eopke (1856), 18 C. («) (1892), 8 Times L. R. 62S. 
 
 B. 549 ; HaJm v. North German [x) (1876), 1 Ex. Div. 357. 
 
 Fitivood Co. (1892), 8 Times L. R. [y) (L871), L. R. 5 Ex. 173. 
 
 537. (;) (1S72), L. E. 7 Q. B. 598.
 
 298 
 
 PRINCIPAL AND AGENT. 
 
 Broker's 
 contract. 
 
 Some agents 
 act in double 
 capacity of 
 agent and 
 principal. 
 
 eipal, that ought to be remembered. In Green v. Kopke (a), 
 the judgment has the following sentence : — ' In any ease 
 it is a matter of intention to be gathered from the contract 
 itself and the surrounding eiix-umstances.' The case is not 
 an authority for the defendant, but lays dowTi it is a ques- 
 tion of intention." His lordship then gave judgment for 
 the agent — the defendant. 
 
 It seems, however, only f au- that, in accordance with the 
 older cases, the onus should be on the agent of a foreign 
 principal to show he is not liable {h) : unless there is some- 
 thing in the nature of the contract and the agent's interest 
 in its performance that showed it was highly unlikely that 
 it could have been intended that he should be personally 
 bound. 
 
 Unless the agent happens to be a broker, the fact that he 
 makes the contract in his own name will make him liable 
 on the contract (<?), the reason being that by the form of 
 the contract he has made himseK a direct personal party 
 to it. 
 
 According to the ordinary coui'se of trade certain agents 
 are, though onl}- agents, liable as principals. On the 
 Stock Exchange the stockbroker deals with his principal as 
 principal, and in the same way, insurance agents are not 
 only agents but principals. Mr. Justice Bayley then de- 
 scribed the insurance agent's j)osition [d). According to 
 the ordinary course of trade between the assm'ed, the 
 broker, and the underwriter, the assured does not in the 
 first instance pay the premium to the broker, nor does the 
 latter to the underwriter ; but as between the assured and 
 the underwriter the premiums are considered as paid. The 
 underwriter, to whom in most instances the assured are 
 unknown, looks to the broker for payment, and he only to 
 
 (a) (1856), 18 C. B. 549. 
 
 (b) Thomson v. Davenport (1829), 
 9C. B. 78; Mahony v. A'ekule {1854:), 
 14 C. B. 390. 
 
 {c) Norton v. Ilerron a825), 1 C. 
 & P. 648. 
 
 [(1) rower V. Butcher (1829), 10 
 B. & C. 329.
 
 LT.VniLirV OF AGKNT TO THIRD PARTIES. 299 
 
 the assured. The latter pays the premiums to the broker 
 only, who is a middleman between the assured and the 
 underwriter. 13ut he is not merely an agent ; he is a 
 principal to receive the money from the assured and pay 
 it to the underwriters. 
 
 The liability of an agent may also arise by implication 
 from his own acts with reference to a contract to which he 
 was not originally a party. 
 
 By the fost section of the Bills of Lading Act, 1855 {e), Agent may 
 
 ., . p , 1 • 1 -n i? 1 T 1 make himself 
 
 " every consignee oi goods named m a bill oi lading, and ijabie by 
 
 every indorsee of a bill of lading, to whom property in the ^^.*^°^^.^'^5 ^^ 
 
 goods mentioned therein shall pass upon, or by reason of 
 
 such consignment or indorsement shall have transferred to 
 
 him all rights of suit, and be subject to the same liabilities 
 
 in respect of such goods as if the contract contained in the 
 
 bill of lading had been made by himself." 
 
 And it has been held that whoever receives goods under a 
 bill of lading as consignee or assignee, contracts by impli- 
 cation to pay the freight due on them (./') . 
 
 Mr. Justice Cave, dealing with this right in Allen v. 
 Coltai't{g), says : "As far back as 1811, it was held in Cock 
 V. Taylor, that where the master of the sliip had contracted 
 by bill of lading with the shippers to deliver goods to 
 certain persons or their assigns, he or they parang freight 
 for the same, the demanding and taking of such goods from 
 the master by a purchaser and assignee of the bill of lading 
 without freight having been paid, was evidence of a new 
 agreement by him, as the ultimate appointee of the shippers 
 for the purpose of delivery to pay the freight due for the 
 carriage of such goods, the' delivery of which was stipulated 
 to be made to the consignees named in the bill, or their 
 assigns, he or they paying freight for the said goods. It 
 
 {e) 18 & 19 Vict. c. 111. 3 Biug. 383. 
 
 (/) Cock V. Taylor (1811), 13 {g) (1883), 11 Q. B. D. 782. 
 
 East, 399; DoKgal v. Kvmbh (1826),
 
 300 PRINCIPAL AND AGENT. 
 
 is true that tliat decision only extends to payment of 
 freight, but that is because that was the only condition 
 of delivery in the bill of lading then under consideration. 
 The ground of the decision is, that where goods are deliver- 
 able to the holder of a bill on certain conditions being 
 complied with, the act of demanding delivery is evidence of an 
 offer on his part to comply with those conditions, and the 
 delivery by the master is evidence of his acceptance of that 
 oifer (/?). Thus, when the bill of lading stipulates on the 
 face of it for the payment of demurrage, it was held 
 that the taking of goods under it by the indorsee was 
 evidence of an agreement to pay demurrage, see Stindt v. 
 Eoherts (/)." 
 
 If an agent puts his name on a bill, all the legal con- 
 sequences of the act attach as much as on any other party 
 whose name is thereon : so if a broker employed to sell 
 goods, sells them for a bill of two months drawn on the 
 buyer for the amount, he is answerable on the bill, even to 
 the principal (/.'). 
 
 It is very difficult to say in some contracts whether the 
 
 agent is bound, and whether the form imports a personal 
 
 liability on behalf of the agent. The question has been 
 
 discussed at some length in the chapter on the " Duties of 
 
 an Agent" as to what the form of the contract should be 
 
 if he is not to be liable on it. 
 
 By a custom There may be a custom for the agent to be held 
 
 party may responsible, and then, though the principal may be well 
 
 hold the af,'(mt J^nown, the asfcnt is liable f/). This is what happens on 
 
 liable, though Y tit it 
 
 he knows the stock exchange among stock brokers, and between a 
 pnncipa ; solicitor and his London agent, though perhaps the rela- 
 tion between a solicitor and his London agent is better 
 
 (/;) See also Wilson v. Kymcr (/•) Lrfcvrc v. Lloyd (1814), 5 
 
 (1813), 1 M. & Sol. l.*)?; Mollir v. Tauut. 749; and see ISimpson v. 
 Yomn/ (1855), 25 L. J. Q. B. 94. Swan (1812), 3 Camp. 291. 
 
 (i)"(1848), 5 D. 6: L. 4G0. (/) Scracv v. Whittitigton (1823), 
 
 2 13. & C. p. 13.
 
 LIABILITY OF AGENT TO THIRD PARTIES. 301 
 
 explained on the ground of a sub-agency, "which created 
 no privity of contract between the sub-agent and the 
 principal. 
 
 Masters of ships are always personally liable on contracts c-g-, masters 
 for necessaries and repairs, wages, &c., for their sliips, unless ^ ^ * 
 by express terms the credit is confined to the owner alone {))i) : 
 as to the liability of the owners, see the chapter dealing 
 with the "Liability of the Principal to Third Parties." 
 
 Where an agent receives money for his principal he Agent cannot 
 cannot be sued for it by the third party, as there is no third party 
 
 privity of contract between them. Thus, if a third party ™r money 
 y- J J L J paid liim on 
 
 paid a deposit to the agent on the purchase of a property behalf of the 
 or goods, he cannot bring an action against him for it, thereTs\o 
 whether he frames his action in contract, trover, or detinue, privity of con- 
 
 . . . . OT • •!• 1 tract between 
 
 An agent so receiving money is m no nduciary position to him and the 
 the third party {ii). And this is so even where the agent "^^d party, 
 has not handed over the money to his principal, but re- 
 couped himself out of it for outlays for the principal. 
 Lord Eslier said, in such a case where the third party sued 
 the agent to recover a deposit: "Here the deposit was paid 
 to the vendor's solicitor on account of, and as agent for, the 
 vendor, for the purpose of handing it over to the vendor. 
 That was a payment to the vendor through his agent. 
 The plaintiff, therefore, paid the deposit to the defendant, 
 Jackson, as agent for Groulton. The title not being made 
 out, the purchaser was entitled to the return of the deposit ; 
 Jackson never was in the relation of agent to the pur- 
 chaser. He was acting solely as agent for the vendor. 
 There never was any relation between him and the pur- 
 chaser. There was, therefore, no fiduciary relationship 
 between them. In all the cases referred to, the distinction 
 has been pointed out between a stakeholder, who could be 
 
 {>») Abbott's Merchant Shipping, v. TFortJti/ (1808), 1 Camp. 337 ; 
 
 13th ed. p. 131. Mffeil y. Day (1865), L. E. 1 C. P. 
 
 («) Mlis V. Goidton, (1893) 1 Q. 80. 
 B. 350 ; and see Bulie of Norfolk
 
 302 PRINCIPAL AND AGENT. 
 
 an agent for both parties, and a person wlio was agent 
 only for one " (o) . It is immaterial whether he has paid 
 the money over or not ; the moment the money was in the 
 agent's hands, it is virtually in the principal's {p), and the 
 third party's only remedy is against him. 
 
 In Sfep/io/s V. Badcoch (q), a parishioner paid his tithes 
 to the defendant, an attorney's clerk, who received them by 
 his master's order. The attorney was acting as agent for 
 the rector, and absconded, and then the action was brought 
 by the rector against the clerk to recover the amount paid 
 for tithes to hira. The tithes did not appear to have been 
 paid over by the clerk to his principal, the solicitor, as he 
 had absconded before the date of the payment to the clerk, 
 who thought he was only away on business. Lord Tenterden 
 held, nevertheless, that the action did not lie, as there was 
 no privitj' of contract between the plaintiff and defendant. 
 But agent can It is different when the agent is a stakeholder ; but there 
 fitakeholde/^^ ^^ ^^^ presumption of law when the solicitor for the vendor 
 receives a deposit from the purchaser, that he receives it as 
 stakeholder (;-). 
 
 The principle that an agent is liable if he pays over 
 money to his principal after notice not to pay it, seems 
 only to apply to agents who are in the position of stake- 
 holders, such as auctioneers, who receive the deposit as 
 stakeholders for both parties (s). At least, the writer has 
 been unable to find any other case where such a principle 
 has been acted on ; and Mr. Justice Coleridge, in Bamford 
 V. SImftlcirortJi {f), lield it ^^■as quite immaterial, when once 
 the money liad been handed to the agent, whether it had 
 been handed over as the agent's possession or as that of the 
 principal. 
 
 (o) EUis V. GouHon, (1893) 9 [r) EdgcU v. Bay (1865), 1 C. P. 
 
 TiincH, 223 ; see, also, Sadler v. 80. 
 
 Evans (170G), 4 Bur. ll)84. (s) Edward v. Hoddbiy (1814), 5 
 
 (;>) Jlam/'ord v. ShiUlUivorth Taunt. 81'). 
 
 (1840), 11 Ad. & Ell. 026. {t) (1840), 11 Ad. & El. 926. 
 
 (r/) (1832), 3 B. & Ad. S.H.
 
 IJAHILITY OF AGENT TO THIRD PARTIES. 303 
 
 If tlie money Las Leen paid to tlie agent on an illegal Illogallj' 
 claim on his part, as by a jailer for the price of a room (it), money no 
 or to avoid an illegal distress, it is no defence that he has defence that 
 
 • 1 • • • • !• 1 1 • 1 • •^^ P^'*-^ over, 
 
 paid it over (,r) , nor is it if he has paid it over illegally, as 
 
 an auctioneer, who is a stakeholder, paying over a deposit 
 
 to the vendor before the title was made out (//). 
 
 Mr. Story says, that if the illegality of the demand is 
 not known to the agent, and no objection on that ground 
 is made before the money is paid over, the agent is not 
 liable (c). 
 
 It has also been held that the third party cannot sue the If money of 
 agent to enforce a claim he has to money deposited by deposUedin 
 the principal in the agent's hands without joining the agent's hands, 
 principal as a party to the action (c/). Money had been sued by third 
 deposited in the hands of the ao-ent-ffeneral of a colonial P'^^''^-7 "^'itiiout 
 
 •^ -PIP maknig prin- 
 
 government as security for the performance of a contract, cipal party 
 The contract had been performed, and a lien on the money **^ "^tion ; 
 was then given by the contractors to their bankers. The 
 agent-general having withdrawn the money from the bank 
 and paid it to his colonial government, the bankers who 
 asserted a lien on the money sued the agent-general, upon 
 the footing that he had constituted himself a trustee for 
 the contractors. The Court, however, held that he could 
 not be sued in the absence of his principal, the colonial 
 government, and said it is not a mere question of formal 
 parties, it was really an attempt to enforce this contract 
 between the colonial government and Firbank (the con- 
 tractors) without having the colonial government here. 
 
 If, however, money has been paid to an agent from a unless the 
 piu-e mistake of fact on behalf of the principal, and the been ixiid to 
 agent had not paid over the money to his principal and *^.^ agent by 
 nothing else has been done by him to change his cu-cum- 
 
 (?<) jVilkr V. Aris (1800), 3 Esp. (y) Edward v. Hodding (1814), 
 
 230. 5 Taunt. 815. 
 
 (.»■) Snoicdeu v. Denis (1808), 1 {z) Story, ^^ 301. 
 
 Taunt. 358. («) Tfriffht v. Jlilla (1890), 63 L. 
 
 T. 186.
 
 304 
 
 PRINCIPAL AND AGENT. 
 
 But where 
 agent not 
 merely an 
 agent, but in 
 some sense a 
 principal, 
 money paid 
 can be re- 
 covered from 
 asrent. 
 
 stances the agent is, according to Cox v. Prentice {h), liable 
 to tlie third party for money had to his use. In that ease 
 the third party paid the agent 88/. at so much an ounce, 
 on the assumption that a particular bar, as tested by an 
 assay, contained so many ounces of silver, and then 
 brought the action to recover what he had overpaid, on 
 it turning out that the bar did not answer the assay. 
 How far that case is still law, however, is questionable, 
 unless it is to be supported on the ground that as the agent 
 was acting for a foreign principal he was personally liable. 
 In two cases where the agent was not merely an agent 
 but in some sense a principal, money was held to be re- 
 coverable from the agent which had been paid to the agent, 
 and to which the principal had no title. In the first case, 
 Buller V. Harrison [c), the agent (the defendant) was an 
 insurance broker, and the money sought to be recovered 
 was paid by the plaintiff, the underwriter, in discharge of 
 a loss which turned out to be a " foul loss," and the Court 
 held that, as there had been no payment over to the princi- 
 pal, the agent was liable. There had been a settlement in 
 account, but this had caused no alteration, as the Court 
 found, in the situation in which the agent and his principal 
 stood to one anotlier ; there had been in consequence no 
 new credit opened, no acceptance of new bills, no fresh 
 bills bought, or money advanced. As Mr. Justice Bay ley 
 pointed o\\i{(/), the position of insurance broker is not 
 that of an agent pm-e and simple, for the underwriter 
 looks to the broker alone, and he is unknown to the prin- 
 cipal. " The principal pays the premium to the broker 
 only, wlio is a middleman between the assured and the 
 underwriter. But lie is not merely an agent ; lie is a prin- 
 cipal to receive money from the assured and to pay it to the 
 underwriter." In the second case, JVeiral/ v. ToniIin.soii{e), 
 
 {h) (181.5), 3 M. & Sfl. 344. 
 fc) (1777), 2 Cowp. 6G.5. 
 
 {d) Tower V. Jliitchc)- (1829), 10 
 B. & C. 329. 
 
 {c) (1871), L. E. G C. P. 405.
 
 LIABILITY OF AGENT TO THIRD PARTIES. 305 
 
 the plaintLffs were cotton brokers, and bought of the 
 defendants, who were also cotton brokers, seventy-four 
 bales of cotton. Both plaintiifs and defendants were 
 acting for undisclosed principals, according to the usage of 
 the market; each treated the other as principals. By a 
 mistake on the part of the defendants in adding up the 
 weights, the plaintiffs paid too much. Before finding out 
 this mistake the defendants allowed the sum in their 
 accounts to the principals. The Court held that the 
 plaintiffs were entitled to recover the money on the 
 ground that the defendants were not mere agents and 
 did not receive the money to their principals' use but to 
 their own. 
 
 It will be noticed that in both these cases the money 
 had not been paid over, and the agents were not agents 
 pure and simple, but acting by virtue of the custom of 
 trade as principals. In the latter, again, the agents' own 
 mistake led to the payment of the money which was sought 
 to be recovered, and it was clearly not right that the agents 
 should profit by it. But it is different where the money 
 had been paid over before the third party made any claim 
 for its repayment. 
 
 In Holland v. Russell {/) , the agent, an insurance broker, If money- 
 was sued to recover money paid to him by the underwriter p|!ijij,°pai 
 under a voidable insurance. He had settled the amount agcut not 
 with his principal before he knew the policy was to be repay, 
 disputed. Chief Justice Cockburn found for the defen- 
 dant ; while recognizing the authority of Cojn v. Prentice 
 and Buller v. Harrison, he distinguished the case before 
 him on the ground that in those cases the account between 
 the parties was still open, and the position of the agent 
 was not prejudiced by having to refund the money, while 
 here it was a settled account. In affu'ming that decision. 
 Chief Justice Erie said, " The defendant having been 
 
 (/) (1861), 1 B. & S. 424 ; affirmed (1863), 4 B. & S. 14. 
 W. X
 
 306 
 
 PRl^-C•lPAL AND AGENT, 
 
 altogether an agent in the matter, is there anything which 
 takes him out of the ordinary protection to which an agent 
 is entitled who pays money to his piineipal before he 
 received notice not to pay it, and before he knew there 
 was no legal duty on him to do so?" This case was 
 followed in Shand v. Grant {g). 
 
 A person will not be allowed voluntarily, and when 
 under no mistake, to pay money to an agent, and then try 
 the principal's right to the money in an action against the 
 
 Third party 
 cannot, 
 having 
 Toluntarily 
 
 to trr^ght agent, but is obliged to bring an action against the prin- 
 against (-.jp^i himself (//). Only the person who pays the money 
 
 principal. ^ ^ ' ,1 • 1 , 1 • 
 
 Only payee of to the agent appears to have the right to prevent him pay- 
 money can 
 prevent 
 payment to 
 principal. 
 
 Agent assent- 
 ing to hold 
 money wliich 
 he has to 
 third party's 
 use liahle. 
 
 ing it over to his principal. A person with whom the 
 acent has no contractual relations, and who is merely 
 interested in the money (/), has no such right. 
 
 An agent may also make himself liable to a third party 
 if he receives directions from his principal to hold money 
 in his, the agent's hands to the use of the third party, and 
 contracts to carry out the principal's directions, and then 
 refuses to pay it over. He is not bound, however, to assent 
 to such appropriation, and, if he does not, will not be liable 
 to the third party, as there is then no privity between 
 them (A-). Until the agent agrees TS'ith the third party to 
 pay it over the principal can revoke the authority to do 
 60. When the agent has once consented to hand over 
 the money to the thii-d party, he is bound to do so, and 
 can be sued for it (/) . It is a question of fact whether 
 the letters, &c. of the agent amount to an agreement to 
 pay over the money. 
 
 If the agent's authority has determined by his principal's 
 
 the 
 agent will be liable for any dealing with it, however 
 
 Agent dealing 
 
 after prind^ jiroperty in the subject-matter of the agency ceasin 
 
 pal's owner- 
 ship ceased, 
 
 (g) (1863), 15 C. B. N. S. 324. 
 
 (A) Sadler v. Evans (1766), 4 
 Biirr. 1084 (Lady "Windsor's Case). 
 
 (i) Slrphrns v. Badcock (1832), 3 
 B. k Ad. 354. 
 
 (A-) iniliams V. Ivereit (1811), 14 
 East, 582. 
 
 {!) Malcolm t. Scott (1850), 5 
 Esp. 601.
 
 LIABILITY OF AGENT TO THIRD PARTIES. 807 
 
 innocent, wliich he cannot justify against the new owners, liable for 
 Thus, where a principal became bankrupt, and after his ■°"^'-'^''^°^- 
 property had vested in his assignees in bankruptcy, the 
 agent, on his principal's request, paid money to the prin- 
 cipal, he was held liable to the assignees for the money he 
 had so paid, although he made the payment innocently to 
 the principal, not knowing of the bankruptcy (m). 
 
 As has been already j^ointed out, an agent is, as a rule. Non-feasance 
 when he has contracted as agent for a known principal, crfvef no rio-ht 
 not liable on the contract. Hence he is not liable for any »* action 
 
 , , . . .. , , ,T • 1 -PI- • • T to thii-d party. 
 
 neglect m carrying it out to third persons it his principal 
 has entrusted him with that duty, but is liable to his 
 principal alone. Non-feasance and omissions of duty do 
 not give rise to any action by third parties against him ; 
 because they arise only out of the contract. With respect 
 to acts of misfeasance or positive wrongs which are torts 
 he is, however, liable ; for no authority whatsoever from a 
 principal can furnish to anyone a just defence for his own 
 jpositive torts and trespasses, as no man can authorize 
 another to do a wrong (;;). In Lane v. Sir li. Cotton it 
 was sought to make a deputy postmaster liable for the 
 loss of some letters. Chief Justice Holt says (o) : " For 
 neglect in him they (the plaintiffs) can have no remedy 
 against him, for they must consider him only as a servant, 
 and then his neglect is chargeable on his master or prin- 
 cipal, for a servant or deputy quatemts such cannot be 
 charged for neglect, but his principal only shall be charged 
 for it ; but for a misfeasance an action will lie against a 
 servant or deputy, but not qnafcnus a deputy or servant, 
 hut as a icrongdoer. A fortiori, no action will lie against him 
 either for the negligences and misfeasances of sub-agents 
 whom he is authorized to employ, and who are therefore 
 the agents of the principal, unless, perhaps, he had par- 
 
 (m) 3fcEntire v. Potter (1889), 22 (o) Lmie v. Sir £. Cotton (1700), 
 
 Q. B. D. 438. 12 Mod. p. 488. 
 
 («) Story, § 309. 
 
 x2
 
 308 
 
 PRINCIPAL AND AGENT. 
 
 Master of 
 sliip excep- 
 tion to riile. 
 
 Public aarents. 
 
 Agent assist- 
 ing in breach 
 of trust liable. 
 
 Agent liable 
 for personal 
 negligence. 
 
 ticularly ordered the acts to be done from whicli tlie 
 damage ensued " (^j). 
 
 There is one important exception to this rule, namely, that 
 of the master of a ship, which arises from the fact that he is 
 not merely an agent, but a principal, according to maritime 
 law, and who is, therefore, in the latter capacity liable for 
 the non-feasances and neglects of duty of the crew {q) . 
 
 Public agents of a government are, however, liable for 
 their own misfeasances, as their principal is not liable (r) ; 
 but they are not liable for those of their employees, pro- 
 vided they have employed persons of suitable skill and 
 ability. The maxim of resjmndeat superior applies in the 
 ' case of agency unless the agent has wilfully done the 
 wrong. This maxim " is bottomed on the principle that 
 he who expects to derive advantage from an act which is 
 done by another for him must answer for any injury 
 which a third person may sustain from it " (s). 
 
 An agent assisting in a breach of trust is personally 
 liable together with the trustees, his principals (/). 
 
 An agent is also liable in tort to third parties, and it is 
 no defence for him to allege his principal's orders : a 
 man who has done a wrong is responsible for it. And this 
 is so although he acts bona fide, and believing his principal 
 has a right to give him the directions {it) . 
 
 Tlie law is thus laid down in Addison on Torts (.r) : — 
 " The person who actually inflicts the injuiy through his 
 own negligence is of course always responsible for the 
 injurious consequences of his default." And in Bates v. 
 rUlhig {//) it was held that both principal and agent might 
 be sued jointly for damages. Mr. Bevan (z) points out 
 
 (p) See, also, iSione v. CartwriglU 
 (I7'J5), 5 Term Rep. 411. 
 
 {(/) Nicholson V. Mounseij (1812), 
 15 East, 384. 
 
 (r) IFhitJield v. Lc Bespencer 
 (1778), Cowper, 754. 
 
 (*) I'cr Best, C. J., in Uall v. 
 fimith (1824), 2 Bing. 156. 
 
 {t) Attorney-General v. Corpora- 
 tion of Leicester (184G), 9 Bcav. 546. 
 
 («) Milly. Ilaivker (1876), L. R. 
 10 Ex. 92 ; Bates v. rUling (1826), 
 6 B. & C. 38. 
 
 (.r) Cth cd. p. 116. 
 
 (y) Ubi supra. 
 
 \z) Law of Negligence, p. 412.
 
 LIABILITY OF AGENT TO THIRD PARTIES. 309 
 
 that the obligations which the law imposes on all persons 
 independently of contract cannot be affected by the con- 
 stitution of relations [such as those of principal and agent] 
 to which the injured person is not a consenting party ; and 
 as a person is liable for any injury he may do to the 
 person or property of another by force of his position as a 
 member of the community and one subject to its laws ; so 
 his own act in putting himself in relations of subordination 
 to another will, not excuse him from answering for the 
 consequences of acts or omissions he would otherwise have 
 been bound to. Lord Mansfield (r/) , in Whitfield v. Lord 
 Le Dcspfiicer, held that an agent is always liable for his 
 own default. He says : "As to an action on the case 
 lying against the party really offending, there can be no 
 doubt of it ; for whoever does an act by which another 
 person receives an injury he is liable in an action for the 
 injury sustained. If the man who receives a penny to 
 carry the letters to the post office loses any of them he is 
 answerable ; so is the sorter in the business of his depart- 
 ment ; so is the postmaster for any fault of his own." 
 
 An asrent thus runs the risk of being liable to third How agent 
 
 ..„, Til •! ^^^ safeguard 
 
 parties for an act of conversion ir the goods he has received himself 
 
 from his principal do not belong to that principal. His JJ^^I.^^Vcr-^'^^ 
 
 only course to safeguard himself is to either get an siou. 
 
 indemnity from his principal or only so to deal with the 
 
 goods that his act would be justifiable if his principal were 
 
 merely tlie finder of the goods. 
 
 Conversion has been defined by Mr. Justice Blackburn What is 
 
 to be such an interference with the property which would 
 
 not, as against the true owner, be justified or at least 
 
 exercised, in one who came lawfully in possession of the 
 
 goods {b). He says, in IloUins v. Fowler: "I think it is 
 
 clear law that if there has been what amounts in law to a 
 
 conversion of the plaintiff's goods by anyone, however 
 
 {a) (1778), Cowp. 754, at p. 765. ib) HoUins v. Fowler (1874), 7 
 
 H. L. 764.
 
 310 TRIXCirAL AND AGENT. 
 
 innocent, that person must pay the value of the goods to 
 
 the real owner On principle, one who deals 
 
 with goods at the request of the person who has actual 
 custody of them, in the bond fide behef that the custodier 
 is the true owner, or has the authority of the true owner, 
 should he excused for what he does if the act is of such a 
 natm-e as would be excused if done by the authority of a 
 person in possession, if he were a finder of the goods, or 
 intrusted with their custody." The agent will only be 
 liable for the negligence of a thii'd party in the performance 
 of a contract, if he has bound himself by the contract. 
 Lord Chelms- ^-q agent, therefore, is liable in an action for conversion 
 
 f ord^ s view of 
 
 what amounts of goods, on the principle " that any person who, however 
 to conversion. ij^^Locently, obtains possession of goods of a person who 
 has been fraudulently deprived of them, and disposes of 
 them, whether for his own benefit or that of any other 
 person, is guilty of a conversion " (c) ; unless his act is 
 either one which he would be justified in performing if 
 the person who gave him possession, or he himself, were a 
 mere finder — the case dealt with by Lord Blackburn — or 
 the act is one by which the agent exercised and intended 
 to exercise no dominion over the goods, and only was a 
 mere intermediate or conduit pipe between the person who 
 had fraudulently deprived the real owner and the seller : 
 the latter class of case being the one referred to by Lord 
 Cau-ns in his judgment. 
 
 The act of packing being one which an agent might do 
 clearly for a finder [d), a packer was held not thereby 
 to be liable for conversion. The distinction, then, between 
 the exercising a dominion over the goods and merely 
 acting as intermediate, is illustrated clearly by two recent 
 cases. In the one, an auctioneer who sold the goods in 
 the ordinary course of liis business was held liable, though 
 lie did so innocently, for conversion, the act being an 
 
 (o) Per Lord Chelmsford, Jfollins (d) Grecmcay v. Fisher (1824), 1 
 
 V. Fowler, ubi siijjra, C. & P. 190,
 
 LIABILITY OF AGENT TO THIRD TARTIES. 311 
 
 exercise of dominion (r), in the other (/), a cattle dealer 
 was held not liable, as he had only allowed the person 
 who was fraudulently selling a cow to put it into his pen, 
 and had afterwards only taken an offer for it, but had 
 not himself sold the animal. The seller afterwards accepted 
 the offer, and the cow was transferred to the buyer, without 
 the cattle dealer doing more than allow the money to be 
 paid into his account. 
 
 The test appears to be whether there is an intention to Test sug- 
 
 , . ffC'Sted by 
 
 interfere in any manner with the title or ownership of the Mr. Justice 
 chattel, not merely the j^ossession of it ; and therefore auc- '^^^^ Collins, 
 tioneers who sold furniture by the direction of the giver of 
 a bill of sale were held liable for conversion, although they 
 sold at a private house and without notice of a bill of sale, 
 since the sale was their act and interfered with the owner- 
 ship (g). 
 
 An agent is, of course, liable for fraud personally, al- ^o^^* ^^^^^^ 
 though he may have committed it as agent, and for the 
 benefit of his principal. Lord Westbury says {/i) : " All 
 persons directly concerned in the commission of a fraud are 
 to be treated as principals. No party can be permitted to 
 excuse himself on the ground that he acted as the agent or 
 servant of another; and the reason is plain, for the contract 
 of agency or of service cannot impose any obligation on the 
 agent or servant to commit or assist in the committing of 
 fraud." He then considers whether agents are liable only 
 when they have committed the fraud themselves, or also 
 when they have joined in it, and continues thus: "Another 
 question of law remains, namely, whether the remedy for false 
 and fraudulent representations made to the public is limited 
 to the persons who have avowedly made those representa- 
 tions, or whether persons who have joined in preparing and 
 
 (e) Turner v. Hoclccy (1879), 40 {g) Consolidated Co. v. Curtis ^• 
 
 L T 744. aSow, (1892) 1 Q. B. 495; Ttarkerv. 
 
 '(/) CocJcrane v. Epnill (1887), 56 l-)n-/oni/,{\Sdl) 2 Cla. 172, at p. 183. 
 L J 301, (A) Cttllen v. T/ionipson (1862), 4 
 
 MacQueen H, of L, 424, at p. 433.
 
 312 
 
 PRINCIPAL AND AGENT. 
 
 Whether 
 third party- 
 should sue 
 agent or 
 principal. 
 
 manufacturing such false representations are liable to the 
 parties injured, although their names did not appear and 
 were unknown to the parties. Upon principle I think it 
 right that in cases of fraud the remedy should be co- 
 extensive with the injury, and that a right of action should 
 be given to the party injured by the fraud against all 
 persons who joined in committing it, although the con- 
 currence of some of these persons might be unknown to 
 the injured party at the time of the injury." 
 
 In considering whom the third party proposes to sue, 
 whether the principal or the agent, he must remember that 
 a judgment against the agent, even if fruitless is, until it 
 is set aside (/), an answer in action against the principal, 
 for the principle nenw debet his vexari applies not only to 
 the case of an individual being sued twice for the same 
 cause of action, but also to the case of two actions being 
 brought on the same contract {k) . 
 
 (i) rartington v. Haivthorne 
 (1888), 52 J. P. 807. 
 
 {k) Camhefort v. Chapman (1887), 
 
 19 Q. B: D. 229 ; 56 L. J. 639 ; 
 Kendal v. Kamilton (1869), 4 Ap. 
 Cas. 504.
 
 313 
 
 CHAPTER XYII. 
 
 LIABILITY OF THE THIKD PARTY TO THE AGENT. 
 
 As we have seen, where an agent makes a contract as agent Where agent 
 for a known principal, he is not liable on the contract to tiates contract 
 third parties. Beinff a mere negotiator between the parties, ^^^ principal 
 
 •■■ . _ '-' ° _ ■■■ ' known cannot 
 
 he can neither sue nor be sued ; for he is not a party to sue third 
 the contract. Th-e Court of Exchequer therefore nonsuited ^^^ ^' 
 a broker who sued the third party for non-acceptance in a 
 contract made by bought and sold notes signed by himself, 
 on the ground that he was not a party to the contract. 
 Chief Baron Kelly said he (the broker) may no doubt frame 
 a contract in such a way as to make himself a party to it 
 and entitled to sue ; but when he contracts in the ordinary 
 form, ddscribing and signing himself as a broker and 
 naming his principal, no action is maintainable by him (a) . 
 
 If the agent, however, has an interest in the contract, as Agent can 
 where his principal is under advances to him, he can sue gubject^-^^ °^ 
 (Fai)iie v. Fenton) (b). In that case a woodbroker, who matter of 
 
 contmct * 
 
 had made advances to his principal, sold, as agent, a cargo 
 of wood to the defendant on behalf of his principal, and 
 sued the defendant for the price. The defendant pleaded 
 that the cargo belonged to the principal, and a set-off. It 
 was proved that the agent in delivering the cargo asked 
 the defendant if the principal owed the defendant any- 
 thing, and he said not. Chief Justice Eyre held that 
 under the circumstances, although the sold note showed it 
 
 (a) (1870), L. E. 5 Ex. 169. (b) Atkyns v. Amber (1796), 2 
 
 Esp. 492.
 
 314 ' PRINCIPAL AND AGENT. 
 
 ■was a sale for the principal, the broker had a right to sue, 
 as he had a special property in the timber. So it was also 
 held that an auctioneer whose charges had not been paid 
 could sue, though his principal was known, because he has 
 a Hen on the goods for his charges (c). 
 
 An agent for a consignee of goods who has made 
 adyances for fi-eight and insurance in respect of them on 
 behalf of his principal, cannot sue the consignor for damage 
 done to them at sea until he has had possession of them, 
 for he has no lien or interest in them until he has had 
 possession (d) . 
 but he can Jf the agent contracts in his own name he can sue ; for 
 
 tract -where it IS a well estabKshed rule of law, that where a contract 
 
 prmcipal ^ under seal is made with an agent in his own name for 
 
 undisclosed; ... 
 
 an undisclosed principal, either the agent or the principal 
 
 may sue on it, the defendant in the latter case being en- 
 titled to be placed in the same situation at the time of the 
 disclosure of the real principal, as if the agent had been a 
 contracting party (e). 
 
 Evidence is admissible to show that an agent is not really 
 an agent, but the principal; so as on one hand to allow the 
 third party to sue the agent or principal (/'), or the agent to 
 sue the third party as principal ([/). In SchmaUz v. Avery, 
 the agent had contracted as if for undisclosed j)rinciimls, 
 and then sued as principal. The Court in holding he could 
 do so, said, " If the contract had been wholly imperformed, 
 and one which the plaintiff by merely proving himself to 
 be real principal was seeking to enforce, the question 
 might admit of some doubt. In many such cases, such as 
 for instance the case of contracts in which the skill or 
 solvency of the person irho is named as 2)ri)icij)al may 
 reasonably be considered as a material ingredient in the 
 
 (<?) miluims Y. Millinff ton {178S), Ad. 389. 
 
 1 H. Bl. 81. (/) Carr v. Jaclson (1852), 7 Ex. 
 
 {(f) Sargent v. Morris (1820), 3 382. 
 
 B. A: Aid! 277. {9) SchmaUz v. Avery (1851), 16 
 
 {e) Sim V. Bond (1833), 5 B. & Q. B. Ooo.
 
 LIAlilLlTY OF THK TIIIUD PARTY TO TIIEACIKNT. 315 
 
 contract, it is clear that the agent cannot then sliow 
 himself to he the real principal and sue in his own name ; 
 and perhaps it may: he fairly urged that this, in all 
 executory contracts if wholly unperformed or if partly 
 performed without the knowledge of who is the real 
 principal, may be the general rule ; hut it is plain that it 
 is applicable only to cases where the supposed principal 
 is named in the contract. If he be not, it is impossible 
 that the other party can have been in any way induced to 
 enter into the contract by any of the reasons suggested. 
 
 But this is subject to the limitations that the agent can- but agtnt 
 
 . 1 . . . , . , i i J 1 J 1 1 1 cannot sue his 
 
 not sue his own principal on the contract that he has made own principal. 
 
 for him, as he is not allowed to change his character ; for 
 
 it is an axiom of the law of principal and agent, that a 
 
 broker employed to sell cannot himself become the buyer, 
 
 nor can a broker employed to buy become himself the 
 
 seller without distinct notice to the principal, so that the 
 
 latter can object if he think proper : a different rule would 
 
 give the broker an interest against his duty {h). 
 
 Although, as has been already pointed out, the agent Agent can 
 can neither sue nor be sued if he contracts as agent for a principal" 
 known principal, yet, if the third party knows the a2:ent named, if third 
 
 1 ••11 11- 1 • party knew 
 
 IS the real principal and accepts part delivery from him as agent was the 
 such, he cannot turn round and say the agent is not a party ^ principal, 
 to the contract it). Baron Alderson, in giving judgment in 
 an action brought by an agent under such circumstances, 
 said, "At the time when this contract was made the plaintiff 
 was himself the real principal in the transaction, and al- 
 though the contract, on the face of it, appeared to have 
 been made by him as agent for another j)arty, there was 
 evidence at the trial tending strongly to show that when 
 the first parcel of the goods was delivered to and accepted 
 by the defendants, the name of the plaintiff as the prin- 
 
 [h) Robinson v. Molleit (1874), Q,. B. 720. 
 L. R. 7 H. of L. 80'2; see also (i) Itaijncr v. Grote (184G), lo 
 
 Sharman v. Brandt (1871), L. B. 6 M, & W. 359.
 
 316 
 
 PRINCIPAL AND AGENT. 
 
 An insurance 
 broker may- 
 sue though 
 principal 
 named. 
 
 Action on 
 deed poll. 
 
 cipal was then fully known to the defendants. . . . This 
 contract has been in part performed, and that part per- 
 formance accepted by the defendants, with full knowledge 
 that the principal was not agent but the real principal. 
 If so, we think the plaintiff may, after that, very properly 
 say that they cannot refuse to complete that contract by 
 receiving the remainder of the goods and paying the stipu- 
 lated price for them. If the contract the agent sought to 
 have enforced were wholly executory, he would probably 
 be nonsuited {k) . If the contract represents a party to be 
 agent for a named principal, evidence is not in general 
 admissible to show that he is the real principal in order to 
 entitle him to sue as such in contradiction of the written 
 contract (/). 
 
 Insurance brokers can both sue and be sued by third 
 parties ; and an insurance broker who insures for another 
 may sue in his own name (;;?). 
 
 In Sunderland Marine Inanrance Co. v. Kearney (n), 
 Mr. Justice Erie cited the following passage from Arnould 
 on Marine Insurance with approval: " As, generally speak- 
 ing, policies in this country are effected by brokers in their 
 own name for the benefit either of a named principal or of 
 whom it may concern, the general rule is that the action on 
 the policy so effected may be brought either in the name 
 of the principal for whose benefit it was really made, or of 
 the broker who was immediately concerned in effecting it ; 
 it is treated in fact as the contract of the principal as well 
 as of the agent." 
 
 The insurance wliich was the subject-matter of the 
 litigation in Sn)idcrl(in<l Marine In^nranee Co. v. Keantcij, 
 was effected by a deed poll, in which the insurance 
 company, wlioso deed it was, only recited tliat one of 
 the plaintiffs w^as interested. It was, therefore, argued 
 
 {k) Rayner v. Grote, uhi supra. 
 
 (/) Jlumhlc V. Jhinlvr (1818), 12 
 Q. U. :510 ; lied path v. W'ujg (18G6), 
 L. R. 1 Ex. 335. 
 
 (w?) Provincial Insurance Co. of 
 Canada v. Zcduc (1874), G P. C. 
 224. 
 
 (w) (1861), 16 Q. B. 925.
 
 LIABILITY OF THE THIRD PARTY TO THE AGENT. 317 
 
 that the other plaintiff had no right to sue. Lord Camp- 
 bell, who delivered judgment, said, that there was no 
 reported decision on the point, for the objection had never 
 been taken before. " The treatises upon marine insurance 
 laid down that the action upon a policy effected by a broker 
 might either be brought in the name of the broker imme- 
 diately concerned in effecting the policy, or in the names 
 of the parties interested for whose benefit it was effected, 
 and did not state any exceptions as to policies in the form 
 of a deed poll under the seal of an incorporated comiDany, 
 although a very considerable portion of English policies for 
 more than a century have been by deed poll under the 
 seal of the Royal Exchange Assurance Company or of the 
 Crown Assurance Company. Upon such policies effected 
 by brokers, many actions have been brought in the names 
 of the parties interested without any objection being made 
 or thought of respecting the rights of the parties interested 
 to sue. . . . The plaintiffs were, at the time of the 
 loss, . . . jointly interested in the freight . . . 
 to the amount of the money by them insured or caused to 
 be insured thereupon. The plaintiffs, therefore, show that 
 the Sunderland Insurance Comj^any covenanted to pay 
 them the 300/. in the event that has happened, and, there- 
 fore, that they are entitled jointly to bring this action 
 though the name of one of them only is mentioned as 
 having effected the policy." 
 
 If the agent is suing on behalf of his principal on a '^'^ <3efence to 
 contract made for him, it is no answer to an action which plaintiff an 
 he brings to allege he is an agent unless it can be shown ^oe^t. 
 that he is prohibited bringing the action by the principal 
 on whose behalf the contract was made (o). 
 
 When the principal has agreed to consider the third If Principal 
 
 •'■■'■ ^ sues third 
 
 party as his debtor, and has taken steps to recover the debt party, agent 
 from him, the right of the agent to sue ceases. After the ^^^^° ^^^' 
 
 (o) Fer Bayley, J., in Sargent v. Morris (1820), 3 B. & Aid. 277 at 
 p. 288.
 
 318 
 
 PRIXCIPAL AND AGENT. 
 
 Unless prin- 
 cipal under 
 advances, in 
 whicli case 
 lie cannot 
 intervene. 
 
 Or agent dtl 
 credere asrent. 
 
 Whether 
 agent of 
 foreign prin- 
 cipal can sue 
 on contract 
 where he 
 signed "as 
 agent." 
 
 Agent can 
 sue for money 
 paid by mis- 
 take. 
 
 intervention of the principal, tlie right of the factor to sue 
 is gone {})). 
 
 But if the factor or agent has advanced money to the 
 principal on the security of goods, the principal cannot 
 intervene and get payment to himself, but the agent has a 
 right to sue ; for, as Lord Mansfield put it, there is no 
 case in law or equity where a factor having money due to 
 him (from the principal) to the amount of the debt in 
 dispute, was ever prevented fi'om taking the proceeds of 
 the sale into his hands {q) . 
 
 If the agent is a del credere agent, it seems open to 
 doubt whether the principal can, by intervening, stop the 
 agent's right to sue. If he does so, it might be evidence 
 that the agent would no longer be held to his del credere 
 commission guaranteeing the solvency of the third party (r). 
 
 It is well established that unless it is shown that the 
 foreign principal authorized the agent to establish privity 
 of contract between him and the third party, that the 
 foreign principal is not liable on the contract made by the 
 agent (-s). There was, therefore, stated to be a presump- 
 tion that the agent was liable. It has been held, however, 
 in the more modern cases that there is no presumption 
 either way as to the agent's liability, although the fact 
 that his principal is abroad will be a circumstance of weight. 
 Contracting, however, " as agent " he will not be hable on 
 the contract. In such a case it would appear, therefore, 
 he cannot sue either. 
 
 The agent also acquires a right to sue a third party if he 
 has paid him money by mistake for his principal : Qnifacit 
 per (iliu))),J(i^it per sc. Where a man pays money by an agent 
 which ought not to have been paid, either the agent or prin- 
 cipal may bring an action to recover it back; the agent may, 
 
 {p) Per Lord Ellcnborough in 
 .Sadler v. Leif//t (1815), 4 Camp. 194, 
 at p. 195. 
 
 ((/) Drinhvatcr y. Goodtiin (1776), 
 Cowper, 251 ; yll/.i/ns v. Amber 
 
 (1796), 2 Esp. 492. 
 
 (>•) Sadler v. Leigh, uhi nupra. 
 
 (.-») Hut ton V. 'Bullock (1873), 
 L. R. 9 Q. B. 572.
 
 LIABILITY OF THE TIIIKD PAllTY TO THE AGENT. 319 
 
 from the autliority of the principal, and the principal may 
 as proving it to have been paid by his agent (f). 
 
 The agent is also entitled to sue to recover money paid Agent en- 
 
 titlccl to rC" 
 
 under an illegal contract if he did not know of its illegality cover money 
 at the time. Thus, where an agent insured the goods of P'?^'^ lender 
 
 ; y , ° illegal con- 
 
 an alien enemy, without knowing of the breaking out of tract if 
 hostilities, he was held entitled to a return of the pre- ine°ality 
 mium (k). 
 
 Any surreptitious dealing between one j^rincipal and Agent cannot 
 the agent of the other principal is a fraud on such prin- contract with 
 cipal, and if the agent makes a contract by which he is to ^S^^^ o* third 
 receive a commission from the third party for super- 
 intending the work done by the third party for the prin- 
 cipal, it is a corru23t contract on which he cannot sue ; for 
 the tendency of such an agreement must be to bias the 
 mind of the agent or other person employed, so as to lead 
 him to act disloyally to his principal (.r) . 
 
 In the same way, if the agent's time is, by agreement Cannot sue 
 with his principal, all his principal's, he cannot sue for ration if time 
 work done (y). ^P P"ii- 
 
 If the agent sues the third party, any defence may be ^-^^^ ao-ent 
 set up against the agent that may be available as against sues, a defence 
 him personally, and it will be an answer to the action, ao^'ainst him- 
 Therefore, it was held that where an insurance broker ?eif personally 
 sued for money due on a loss, a plea that the defendants 
 had paid him by crediting him with the amount of the 
 loss as against premiums due by him to them was a good 
 plea (z) . 
 
 On the other hand, it must be remembered, if the agent Defence good 
 has a lien on goods the subject-matter of the action, a cipaTnoWood 
 defence which would be good against the principal is no "gainst agent 
 
 ° '=' ^ ^ if lieu. 
 
 {t) Stevenson v. Mortimer (1778), Co. v. The India Rubber Works Co. 
 
 Cowper, 805. (1875), 10 Ch. Ap. 515. 
 
 [u) Oom Y.Bniee (1810), 12 East, (v) Thompson v. Haveloch (1808), 
 
 224. 1 Camp. 527. 
 
 {x) HarrvngtoH v. Victoria Grav- (z) Gibson v. Winter (1833), 5 B. 
 
 ing Dock Co. (1878), 3 Q. B. D. & Ad. 96. 
 549 ; Panama and South Pacific Tel.
 
 320 
 
 PRINCIPAL AND AGENT. 
 
 Agent can 
 bring action 
 for trover. 
 
 What kind of 
 agent may- 
 bring trover. 
 
 answer (a) when he is suing for his own benefit. If the 
 agent sues merely as trustee on behalf of his principal, it is 
 a good defence (h). 
 
 Any agent who has a right to the possession of goods 
 may bring an action of trover for their conversion (c). So 
 an agent may sue for the conversion of his principal's pro- 
 perty, if he is in possession of it. Lord Campbell said : 
 " I am of opinion that the law is that a person possessed 
 of goods as his property has a good title as against every 
 stranger, and that one who takes them from him, having 
 no title in himself, is a wrongdoer, and cannot defend 
 himself by showing that there was a title in some third 
 person against a wrongdoer " (f/). 
 
 A factor to whom goods have been consigned, and who 
 has never received them, may bring trover for them(e); 
 and even a person to whom property has been lent has a 
 right to bring an action for damage done to it (/). In 
 Anderson v. C/ark it was held that appropriating goods to 
 the factor, and putting them in the hands of a third person 
 on his account, is sufficient to enable the person to whom 
 they are appropriated to maintain trover (g), but unless 
 there was an advance on the particular goods, the right 
 of the factor to the goods would not override the unpaid 
 vendor's right of stoppage in transitu {h). 
 
 {a) Robinson v. Ruttcr (1855), 4 
 E. & B. 954. 
 
 {h) Grice V. Kenrick (1870), L. E,. 
 5 Q. B. 340. 
 
 (c) Ikr Baron Parke in Lcr/g v. 
 Evans (1840), 6 M. & "\V. at p. 41. 
 
 {d) jcfries v. Great irestvrn Rail. 
 Co. (1S5C), 5 E. & B. 802. 
 
 {(•) Per Eyre, C. J., in Fowler v. 
 Down (1797), 1 B. & P. 44, at p. 47. 
 
 (/■) Rooih V. Wilson (1817), 1 B. 
 & Aid. 59. 
 
 [<j) (1824), 2 Bing. 20; see also 
 Bri/ant v. jSIx (1839), 4 M. & W. 
 775. 
 
 (/») Ratten V. Thompson (181G), 5 
 M. & S. 350.
 
 321 
 
 CHAPTER XVIII. 
 
 PUBLIC AGENTS. 
 
 Agents who act on behalf of the public, or on behalf of No action 
 the Grovernment, are public agents {a) . An action will not a^-enTon wn- 
 lie against a public agent for anything done by him in his ti'act. 
 public character or employment, although the act may be 
 alleged to be a breach of such employment and constituting 
 a particular and personal liability {h) ; nor can he bring 
 any action on such a contract {c) . This is so on principles 
 of public policy, for the liability to an unlimited multi- 
 plicity of suits would prevent any prudent person accepting 
 a public situation at the hazard of such peril. In any case 
 where a man acts as agent for the Government, and treats 
 in that capacity, there is no pretence of saying he is per- 
 sonally liable, unless he himself contracts to be so liable. 
 
 The remedy of a person who has contracted with a Eemedy by 
 public ofEcer of the Crown is by petition of right {d). no-ht.*^^ ^ 
 
 If a public agent goes out of his way to give orders which Liable on 
 it is not part of his duty to give, and he gives such orders *^° ^side his 
 on his own responsibility, without having authority to con- public duty. 
 tract upon the credit of any person or fund, he will, how- 
 ever, be personally liable (e). 
 
 It does not seem clear whether a public agent, if he has Whether 
 received money for the purpose of paying a third party, can can be^ued 
 
 [a) Story ou Agency, § 302. [c] Boiven v. Morris (1810), 2 
 
 [b) Gidley v. Palmcrsion (1822), 3 Taunt. 373. 
 
 Brod. & Bing. 275 ; Macbcath v. {d) Thomas v. The Queen (187-1), 
 
 Haldimand (1786), 1 T. R. 172; L. R. 10 Q. B. 31. 
 Unwin v. Wolseletj (1787), 1 T. R. ■ (e) Autifv. Uuichmson (18-18), 17 
 
 674. L. J. 0. P. 304. 
 
 W. Y
 
 322 
 
 PRINCIPAL AND AGENT. 
 
 for money had 
 and received. 
 
 Public agents 
 liable for 
 nep'lio'ence. 
 
 be sued by siicli a person for money liad to his use. In one 
 case (/), wliere a yeomanry captain was sued for forage 
 supplied to the use of liis troop, Lord Kenyon said : " I 
 cannot conceive how the captain of a troop can be per- 
 sonally responsible for forage furnished to the troop, 
 whether he have received money for that purpose or not. 
 ... It is notorious to all parties that he does not contract 
 as an individual, but on behalf of the Grovernment." In 
 Rice V. Everett, which will be found in the notes to Rice v. 
 Chute, the Court, however, refused to set aside a verdict 
 against the colonel of the same regiment, as he happened 
 to be indebted to the pajTnaster of the regiment, who had 
 absconded with the money intended to be devoted to the 
 expenses of the regiment, and was also the surety of the 
 paymaster to the Grovernment. 
 
 The Grovernment are not liable for the negligence or 
 torts of their employee, but the employees are liable 
 themselves for their 0"^"n negligence {g). If public agents 
 performing a duty under an Act of Parliament act accord- 
 ing to the best of their skill and diligence they are not 
 liable for any damage that may ensue (//) ; but if they do 
 not exercise proper skill (/), or if they exceed their autho- 
 rity, they are liable (A) . 
 
 In Hall y. Smith (/) an action was brought against the 
 clerk of certain lighting commissioners by a person who 
 was injured by falling into an unlit ditch. The commis- 
 sioners had employed a firm of contractors to excavate the 
 ground, and it was through the negligence of the con- 
 tractors' servant that there was no light. The contractors 
 were held liable for their servant's negligence ; but it was 
 
 (/) Rice V. Chute (ISOl), 1 East, 
 678. 
 
 O7) Story on Agency, ^ 318 ; 
 Lane v. Cotton (1701), 1 Ld. Raym. 
 GIG, p. 648 ; Whitftcld v. Despencer 
 (1778), Cowpcr, 764. 
 
 (/() lioulton V. Croivthcr (1824), 2 
 B. & C. 703. 
 
 (t) Jones V. Bird (1822), 5 B. & 
 Aid. 837. 
 
 {k) Leader y.Moxon (1774), 2 "W. 
 Bl. 924. 
 
 (/) (1824), 2 Bing. 156 ; see also 
 Duncan v. Findlater (1839), 6 CI. & 
 Fin. 894 ; and Ward v. Lee (1857), 
 7 El. & Bl. 426.
 
 PU15LIC AGENTS. 3^3 
 
 attempted to make the commissioners personally liable 
 also. Chief Justice Best, in giving judgment, said : " If 
 commissioners under an Act of Parliament order some- 
 thing to be done which is not within the scope of their 
 authority, or are themselves guilty of negligence in doing 
 that which they are empowered to do, they render them- 
 selves liable to an action ; but they are not answerable for 
 the misconduct of such as they are obliged to employ. If Principle 
 
 the doctrine of respondeat superior were apiilied to such '>'^^P°"'^^'^^ 
 
 ■'■ -^ ■>■■'■ superior does 
 
 commissioners, who would be hardy enough to undertake not apply to 
 any of those various offices by which much valuable, yet ^^ ^ ^°^^ ^' 
 unpaid, service is rendered to the country ? . . . Such 
 commissioners will act no longer if they are to make 
 amends from their own fortunes for the conduct of such as 
 must be employed under them. . . . The maxim of 
 respondeat superior is bottomed on this principle — that he 
 who expects to derive advantage from an act which is done 
 by another for him must answer for any injury which a 
 third person may sustain from it." If the commissioners 
 therefore do not exceed their jurisdiction, and the Act 
 under which they are constituted gives no remedy, the 
 party is remediless {in) . 
 
 The captain of a ship of war, and it seems also the Liability of 
 captain of any ship, who does not appoint his own officers, man-of-war. 
 is not liable for their negligence {n). In a case where the 
 plaintiff attempted to make the captain of a warship liable 
 for a collision which occurred when he was not on deck or 
 managing the ship, but the first lieutenant, Lord Ellen- 
 borough said : " Captain Mouncey is said to be liable for the 
 damages awarded in this case by considering him in the ordi- 
 nary character of the master of the vessel by means of which 
 the injury was done to the plaintiff's property. But how 
 was he master ? He had no power of appointing the officers 
 
 (?h) Governors of Cast Plate Mann- («) NicJiolson v. Mouncey (1812), 
 
 facturcrs v. Meredith (1792), 4 T. R. 15 East, 384. 
 794. 
 
 y2
 
 324 PRINCIPAL AND AGENT. 
 
 or crew on board ; lie was no volunteer in tliat particular 
 station merely by having originally entered into the naval 
 service, but was compellable to take it when appointed to 
 it, and had no choice whether or not he would serve with 
 other persons on board, but was obliged to take such as he 
 found there and make the best of them. He had no power 
 of appointment or dismissal over them. The case is, there- 
 fore, not at all like that of an owner or master who, accord- 
 ing to the principle laid do^Ti by Lord Chief Justice Eyre 
 in Bush V. Steinman (o), is answerable for those whom he 
 em2)loys for injuries done by them to others within the 
 scope of theu' employment. 
 Not liable for An agent of the Crowu appears, in no case, to be liable 
 by govern- for a tort if the act has been subsequently ratified by the 
 ^^°*- Crown. 
 
 Baron Parke, in Bnron v. Benman {])), says, "If the 
 Crown ratifies an act, the character of the act becomes 
 altered; for the ratification does not give the party injui'ed 
 the double option of bringing his action against the agent 
 who committed the trespass or the principal who ratified it, 
 but a remedy against the Crown only (such as it is), and 
 actually exempts from all liabilities the person who commits 
 the trespass." 
 
 (o) (1799), 1 Bos. & Tul. 404. {p) (1848), 2 Ex. 167, at p. 189.
 
 325 
 
 APPENDIX. 
 
 FACTOES ACT, 1889. 
 52 & 53 YicT. c. 45. 
 
 All Act to amend and consolidate the Factors Acts. 
 
 [2Gtli August 1889.] 
 
 Be it enacted by tlie Queen's most Excellent Majesty, by and 
 with the advice and consent of the Lords Spiritual and Tem- 
 poral and Commons, in this present Parliament assembled, 
 and by the authority of the same, as follows : 
 
 Preliminary. 
 
 1. For the purposes of this Act — Definitions. 
 
 (1.) The expression "mercantile agent" shall mean a 
 mercantile agent having in the customary course 
 of his business as such agent authority either to sell 
 goods, or to consign goods for the purpose of sale, or 
 to buy goods, or to raise money on the security of 
 goods : 
 
 (2.) A person shall be deemed to be in possession of goods 
 or of the documents of title to goods, where the 
 goods or documents are in his actual custody or are 
 held by any other person subject to his control or 
 for him or on his behalf : 
 
 (3.) The expression " goods " shall include wares and mer- 
 chandise : 
 
 (4.) The expression "document of title" shall include any 
 bill of lading, dock warrant, warehouse-keeper's 
 certificate, and warrant or order for the delivery 
 of goods, and any other document used in the 
 ordinary course of business as proof of the posses- 
 sion or control of goods, or authorising or purport- 
 ing to authorise, either by endorsement or by
 
 326 
 
 APPENDIX. 
 
 delivery, tlie possessor of the document to transfer 
 
 or receive goods thereby represented : 
 (o.) The expression ''pledge" shall include any contract 
 
 pledging, or giving a lien or security on, goods, 
 
 ■svhether in consideration of an orginal advance or of 
 
 any further or continuing advance or of any pecu- 
 
 niaiy liability : 
 (6.) The expression "person" shall include any body of 
 
 persons corporate or unincorporate. 
 
 Powers of 
 mercantile 
 agent with 
 respect to 
 disposition of 
 goods. 
 
 Effect of 
 pledges of 
 documents of 
 title. 
 
 Pledge for 
 antecedent 
 debt. 
 
 Dispositions hy Mercantile Agents. 
 
 2. — (1.) "Where a mercantile agent is, with the consent 
 of the owner, in possession of goods or of the documents of 
 title to goods, any sale, pledge, or other disposition of the 
 goods, made by him when acting in the ordinary course of 
 business of a mercantile agent, shall, subject to the provisions 
 of this Act, be as valid as if he were expressly authorised by 
 the owner of the goods to make the same ; provided that the 
 person taking under the disposition acts in good faith, and 
 has not at the time of the disposition notice that the person 
 making the disposition has not authority to make the same. 
 
 (2.) Where a mercantile agent has, with the consent of the 
 owner, been in possession of goods or of the documents of 
 title to goods, any sale, pledge, or other disposition, which 
 would have been valid if the consent had continued, shall be 
 valid notwithstanding the detei-mination of the consent : pro- 
 vided that the person taking under the disposition has not at 
 the time thereof notice that the consent has been determined. 
 
 (3.) "Where a mercantile agent has obtained possession 
 of any documents of title to goods by reason of his being 
 or having been, with the consent of the ovm.ev, in possession 
 of the goods represented thereby, or of any other documents 
 of title to the goods, his possession of the first -mentioned 
 documents shall, for the purposes of this Act, be deemed 
 to be with the consent of the owner. 
 
 (4.) For the purposes of this Act the consent of the owner 
 shall be presumed in the absence of evidence to the contrary. 
 
 3. A pledge of the documents of title to goods shall be 
 deemed to be a pledge of the goods. 
 
 4. "WTiere a mercantile agent pledges goods as security for 
 a debt or liability duo from the pledgor to the pledgee before 
 the time of the pledge, the pledgee shall acquire no further 
 right to the goods than could have been enforced by the 
 pledgor at the time of the pledge.
 
 FACTORS ACT, 1889. 327 
 
 5. The consideration necessary for the validity of a sale, Eights 
 pledge, or other disposition, of goods, in pursuance of this acquired by 
 Act, may be either a payment in cash, or the delivery or exchange of 
 transfer of other goods, or of a document of title to goods, or fQcu^g^+g 
 of a negotiable security, or any other valuable consideration ; 
 
 but where goods are pledged by a mercantile agent in 
 consideration of the delivery or transfer of other goods, or of 
 a document of title to goods, or of a negotiable security, the 
 pledgee shall acc^uire no right or interest in the goods so 
 pledged in excess of the value of the goods, documents, or 
 security when so delivered or transferred in exchange. 
 
 6. For the purposes of this Act an agreement made with a Agreements 
 mercantile agent through a clerk or other person authorised *^^°^5\ 
 in the ordinary course of business to make contracts of sale or ^ ^^ ^' °' 
 pledge on his behalf shall be deemed to be an agreement with 
 
 the agent. 
 
 7. — (1.) Where the owner of goods has given possession of Provisions as 
 the goods to another person for the purpose of consignment or to consignors 
 sale, or has shipped the goods in the name of another person, '^^ °°^' 
 and the consignee of the goods has not had notice that such ° 
 person is not the owner of the goods, the consignee shall, in 
 respect of advances made to or for the use of such person, 
 have the same lien on the goods as if such person were the 
 owner of the goods, and may transfer any such lien to another 
 person. 
 
 (2.) Nothing in this section shall limit or affect the validity 
 of any sale, pledge, or disposition by a mercantile agent. 
 
 Disposifio)is hy Sellers and Buyers of Goods. 
 
 8. Where a person, having sold goods, continues, or is, in Disposition 
 possession of the goods or of the documents of title to the ^7 ^^]^^J^ . 
 goods, the delivery or transfer by that person, or by a mer- po^gcl^jof."^ 
 cantile agent acting for him, of the goods or documents of 
 
 title under any sale, pledge, or other disposition thereof, or 
 under any agreement for sale, pledge, or other disposition 
 thereof, to any person receiA-ing the same in good faith and 
 without notice of the previous sale, shall have the same eifect 
 as if the person making the delivery or transfer were expressly 
 authorised by the owner of the goods to make the same. 
 
 9. Where a person, haAang bought or agreed to buy goods. Disposition 
 obtains with the consent of the seller possession of the goods ^J huycr 
 or the documents of title to the goods, the delivery or transfer, pQgggg""^^ 
 by that person or by a mercantile agent acting for him, of the 
 
 goods or documents of title, under any sale, pledge, or other
 
 328 
 
 APPENDIX. 
 
 Effect of 
 tiansfer of 
 dociiments on 
 vendor's lien 
 or right of 
 stoppage in 
 transitu. 
 
 disposition thereof, or under any agreement for sale, pledge, 
 or otlier disposition thereof, to any person receiving the same 
 in good faith and without notice of any lien or other right of 
 the original seller in respect of the goods, shall have the same 
 effect as if the person making the delivery or transfer were a 
 mercantile agent in possession of the goods or documents of 
 title with the consent of the owner. 
 
 10. "Where a document of title to goods has been lawfully 
 transferred to a person as a buyer or owner of the goods, and 
 that person transfers the document to a person who takes the 
 document in good faith and for valuable consideration, the 
 last-mentioned transfer shall have the same elf ect for defeating 
 any vendor's lien or right of stoppage in transitu as the 
 transfer of a bill of lading has for defeating the right of stop- 
 page in transitu. 
 
 IVlode of 
 
 transferring 
 
 documents. 
 
 Saving for 
 rights of 
 true owner. 
 
 Saving for 
 common law 
 
 Supplemental. 
 
 11. For the purposes of this Act, the transfer of a document 
 may be by endorsement, or, where the document is by custom 
 or by its exj)ress terms transferable by delivery, or makes the 
 goods deliverable to the bearer, then by delivery. 
 
 12. — (1.) Nothing in this Act shall authorise an agent to 
 exceed or depart from his authority as between himself and 
 his principal, or exempt him from any liability, civil or 
 criminal, for so doing. 
 
 (2.) Nothing in this Act shall prevent the owner of goods 
 from recovering the goods from an agent or his trustee in 
 bankruptcy at any time before the sale or pledge thereof, or 
 shall prevent the owner of goods pledged by an agent from 
 having the right to redeem the goods at any time before the 
 sale thereof, on satisfying the claim for which the goods were 
 pledged, and paying to the agent, if by him required, any 
 money in respect of which the agent would by law be entitled 
 to retain the goods or the documents of title thereto, or any of 
 them, by way of lien as against the owner, or from recoveriug 
 from any person with whom the goods have been pledged any 
 balance of money remainiug in his hands as the produce of 
 the sale of the goods after deducting the amount of his lien. 
 
 (3.) Nothing in this Act sliall prevent the owner of goods 
 sold by an agent from recovering from the buyer the price 
 agreed to bo paid for the same, or any part of that price, 
 subject to any 'right of set off on the part of the buyer against 
 the agent. 
 
 13. The provisions of this Act shall bo construed in ami^li-
 
 FACTORS ACT, 1889. 
 
 329 
 
 fication and not in derogation of the powers exercisable by an powers of 
 agent independently of this Act. agent. 
 
 14. The enactments mentioned in the schedule to this Act Repeal, 
 are hereby rejiealed as from the commencement of this Act, 
 
 but this repeal shall not affect any right acquired or liability 
 incurred before the commencement of this Act under any 
 enactment hereby repealed. 
 
 15. This Act shall commence and come into operation on Commence- 
 tho first day of January one thousand eight hundred and ment. 
 ninety. 
 
 16. This Act shall not extend to Scotland. 
 
 17. This Act may be cited as the Factors Act, 1889. 
 
 Extent of 
 Act. 
 
 Short title. 
 
 SCHEDULE. 
 
 Enactments Eepealed. 
 
 Section 14. 
 
 Session and Chapter. 
 
 4 Geo. 4, c. 83 
 
 6 Geo. 4, c. 94 . 
 
 Title. 
 
 5 & 6 Yict. c. S9 . . 
 40 & 41 Vict. c. 39 
 
 An Act for the better protection of 
 the property of merchants and 
 others who may hereafter enter 
 into contracts or agreements in 
 relation to goods, wares, or 
 merchandises entrusted to factors 
 or agents. 
 
 An Act to alter and amend an Act 
 for the better protection of the 
 property of merchants and others 
 who may hereafter enter into 
 contracts or agreements in re- 
 lation to goods, wares, or mer- 
 chandise entrusted to factors or 
 agents. 
 
 An Act to amend the law relating 
 to advances bona fide made to 
 agents entrusted with goods. 
 
 An Act to amend the Factors Acts. 
 
 Extent of Repeal. 
 
 The whole Act. 
 
 The whole Act. 
 
 The whole Act. 
 The whole Act.
 
 330 
 
 APPENDIX. 
 
 GAMINQ ACT, 1892. 
 
 55 YicT. c. 9. 
 
 A)i Act to amend the Act of the chjhtli and ninth Victoria, 
 chapter one hundred and nine, intituled " An Act to 
 amend the Law concerning Gaines and Wagers.''^ 
 
 [20tli May 1892.] 
 
 Be it enacted by the Queen's most Excellent Majesty, by and 
 with the advice and consent of the Lords Spiritual and 
 Temporal, and Commons, in this present Parliament as- 
 sembled, and by the authority of the same, as follows : 
 
 1. Any promise, express or implied, to pay any person any 
 sum of money paid by him under or in respect of any contract 
 or agreement rendered null and void by the Act of the eighth 
 and ninth Victoria, chapter one hundred and nine, or to pay 
 any sum of money by way of commission, fee, reward, or 
 otherwise in respect of any such contract, or of any services 
 in relation thereto or in connexion therewith, shall be null 
 and void, and no action shall be brought or maintained to 
 recover any such sum of money. 
 
 Short title. 3. This Act may be cited as the Gaming Act, 1892. 
 
 Promises to 
 repay sums 
 paid under 
 contracts 
 void by 
 8 & 9 Vict. 
 c. 109, to be 
 null and void. 
 
 Effect of 
 contracts by 
 married 
 "wumoii. 
 
 MARRIED WOMEN'S PEOPERTY ACT, 1893. 
 
 56 & 57 YicT. c. 63. 
 
 An Act to amend the Married Womcnh Properti/ Act, 1882. 
 
 [5th December 1893.] 
 
 Bh it enacted by the Queen's most Excellent Majesty, by 
 and witli the advice and consent of the Lords Spiritual and 
 Temporal, and Commons, in this present Parliament as- 
 sembled, and by the authority of the same, as follows : 
 
 1. Every contract hereafter entered into by a married 
 woman, otherwise than as agent, 
 
 (a) shall bo deemed to be a conti'act entered into by lior 
 with respect to and to bind her separate property 
 wlietlior she is or is not in fact possessed of or en- 
 titled to any separate property at the time when she 
 outers into such contract ;
 
 MAllllIED women's PROPERTY ACT, 1893. 331 
 
 (b) shall Lind all separate property whicli slie may at tliat 
 
 time or thereafter be possessed of or entitled to ; 
 and 
 
 (c) shall also bo enforceable by process of law against all 
 
 property which she may thereafter while discovert bo 
 
 l)ossessed of or entitled to ; 
 
 Provided that nothing in this section contained shall render 
 
 available to satisfy any liability or obhgation arising out of 
 
 such contract any separate property which at that time or 
 
 thereafter she is restrained from anticipating. 
 
 2. In any action or proceeding now or hereafter instituted Costs may be 
 by a woman or by a next friend on her behalf, the Court be- ordered to be 
 fore which such action or proceeding is pending shall have property ° 
 jurisdiction by judgment or order from time to time to order subject to 
 payment of the costs of the opposite party out of property restraint on 
 which is subject to a restraint on anticipation, and may anticipation, 
 enforce such payment by the appointment of a receiver and 
 
 the sale of the property or otherwise as may be j ust. 
 
 3. Section twenty-four of the "Wills Act, 1837, shall apply Will of 
 to the will of a married woman made during coverture married 
 whether she is or is not possessed of or entitled to any woman, 
 separate property at the time of making it, and such will 
 
 shall not require to be re-executed or republished after the 
 death of her husband. 
 
 4. Sub-sections (3) and (4) of section one of the Married Eepcal. 
 Women's Property Act, 1882, are hereby repealed. 
 
 5. This Act may be cited as the Married Women's Property Short title. 
 Act, 1893. 
 
 6. This Act shall not apply to Scotland. Extent.
 
 332 APPENDIX. 
 
 SALE OF GOODS ACT, 1893. 
 
 56 & 57 YicT. c. 71. 
 
 An Ad for codift/ing the Law relating to the Sale of Goods. 
 
 [20th February 1894.] 
 
 Be it enacted by the Queen's most Excellent Majesty, by and 
 with the advice and consent of the Lords Spiritual and Tem- 
 poral, and Commons, in this present Parliament assembled, 
 and by the authority of the same, as follows : 
 
 PAET I. — FOEilATION OF THE CoKTRACT. 
 
 Contract of Sale. 
 
 Sale and 1, — (1.) A contract of sale of goods is a contract whereby 
 
 agreement to ^q seller transfers or agrees to transfer the property in goods 
 
 to the buyer for a money consideration, called the price. 
 
 There may be a contract of sale between one part owner and 
 
 another. 
 
 (2.) A contract of sale may be absolute or conditional. 
 
 (3.) Where under a contract of sale the property in the 
 goods is transferred from the seller to the buyer the contract 
 is called a sale ; but where the transfer of the property in 
 the goods is to take place at a future time or subject to some 
 condition thereafter to be fulfilled the contract is called an 
 agreement to sell. 
 
 (4.) An agreement to sell becomes a sale when the time 
 elapses or the conditions are fulfilled subject to which the 
 property in the goods is to be transferred. 
 
 Capacity to 2. Capacity to buy and sell is regulated by the general 
 
 buy aud kcU. law concerning capacity to contract, and to transfer and 
 acquire property. 
 
 Provided that where necessaries are sold and delivered to 
 an infant, or minor, or to a person who by reason of mental 
 incapacit}^ or drunkenness is incompetent to contract, he must 
 pay a reasonable price tlLorcfor. 
 
 Necessaries in this section mean goods suitable to the con- 
 dition in lifo of such infant or minor or other person, and to 
 his actual requirements at ilic time of the sale and delivery.
 
 SALE OF GOODS ACT, 1893. 333 
 
 Formalities of the Contract. 
 
 3. Subject to tlio provisions of this Act and of any statute Contract of 
 in that behalf, a contract of sale may be made in writing '^^^*l' ^^^ 
 (either with or without seal), or by word of mouth, or partly ™^'°- 
 in writing and partly by word of mouth, or may be implied 
 from the conduct of the parties. 
 
 Provided that nothing in this section shall affect the law 
 relating to corporations. 
 
 4. — (I.) A contract for the sale of any goods of the value Contract of 
 of ten pounds or upwards shall not be enforceable by action ^^^^ ^"^ ^'^ 
 unless the buyer shall accept part of the goods so sold, and P°^i°^'^^^<l 
 actually receive the same, or give something in earnest to 
 bind the contract, or in part payment, or unless some note or 
 memorandum in writing of the contract be made and signed 
 by the party to be charged or his agent in that behalf. 
 
 (2.) The provisions of this section apply to every such con- 
 tract, notwithstanding that the goods may be intended to be 
 delivered at some future time, or may not at the time of such 
 contract be actually made, procured, or provided, or tit or 
 ready for delivery, or some act may be requisite for the 
 making or completing thereof, or rendering the same fit for 
 delivery. 
 
 (3.) There is an acceptance of goods within the meaning 
 of this section when the buyer does any act in relation to 
 the goods which recognizes a pre-existing contract of sale 
 whether there be an acceptance in performance of the con- 
 tract or not. 
 
 (4.) The provisions of this section do not apply to Scot- 
 laud. 
 
 Suhject-niatter of Contract. 
 
 5. — (1.) The goods which form the subject of a contract of Existing or 
 sale may be either existing goods, owned or possessed by the future goods, 
 seller, or goods to be manufactured or acquired by the seller 
 after the making of the contract of sale, in this Act called 
 " future goods." 
 
 (2.) There may be a contract for the sale of goods, the 
 acquisition of which by the seller depends upon a contingency 
 which may or may not happen. 
 
 (3.) AVhere by a contract of sale the seller purports to 
 effect a present sale of future goods, the contract operates as 
 an agreement to sell the goods. 
 
 6. Where there is a contract for the sale of specific goods, Goods wliich 
 
 and the goods without the knowledge of the seller have ^^^^ 
 
 perished.
 
 334 
 
 appendix: 
 
 Goods 
 perislimg" 
 before sale 
 but after 
 agreement to 
 seU. 
 
 Ascertain- 
 ment of price. 
 
 Agreement to 
 sell at valua- 
 tion. 
 
 perished at the time when the contract is made, the contract 
 is void. 
 
 7. Where there is an agreement to sell specific goods, and 
 subsequently the goods, without any fault on the part of the 
 seller or buyer, perish before the risk passes to the buyer, the 
 agreement is thereby avoided. 
 
 The Price. 
 
 8, — (1.) The price in a contract of sale may be fixed by the 
 contract, or may be left to be fixed in manner thereby agreed, 
 or may be determined by the course of dealing between the 
 parties. 
 
 (2.) Where the price is not determined in accordance with 
 the foregoing provisions the buyer must pay a reasonable 
 price. AVhat is a reasonable price is a question of fact de- 
 pendent on the circumstances of each particular case. 
 
 9. — (1.) Where there is an agreement to sell goods on the 
 terms that the price is to be fixed by the valuation of a third 
 party, and such third party cannot or does not make such 
 valuation, the agreement is avoided ; provided that if the 
 goods or any part thereof have been delivered to and appro- 
 priated by the buj'er he must pay a reasonable price therefor. 
 
 (2.) Where such third party is prevented from making the 
 valuation by the fault of the seller or buyer, the party not in 
 fault may maintain an action for damages against the party 
 in fault. 
 
 Stipulations 
 as to time. 
 
 When con- 
 dition to bo 
 treated as 
 •warranty. 
 
 Conditions and Warranties. 
 
 10. — (1.) Unless a different intention appears from the 
 terms of the contract, stipulations as to time of payment are 
 not deemed to be of the essence of a contract of sale. Whether 
 any other stipulation as to time is of the essence of the con- 
 tract or not depends on the terms of the contract. 
 
 (2.) In a contract of sale "month" means primd facie 
 calendar month. 
 
 11. — (1.) In England or Ireland — 
 
 (a) Where a contract of sale is subject to any condition to 
 
 bo fulfilled by the seller, the buyer may waive the 
 condition, or may elect to treat the broach of such 
 condition as a breach of Avarranty, and not as a 
 ground for treating tlio contract as repudiated. 
 
 (b) AVliotlior a Klipulati<m in a contract of salo is a con- 
 
 dition, tho brencli of whicli may give rise to a right
 
 SALE OF GOODS ACT, 1893. 335 
 
 to treat the contract as repudiated, or a warranty, 
 
 the breach of which may give rise to a claim for 
 
 damages hut not to a right to reject the goods and 
 
 treat the contract as repudiated, depends in each 
 
 case on the construction of the contract. A stipuLa- 
 
 tion may be a condition, though called a warranty 
 
 in the contract : 
 
 (c) Where a contract of sale is not severable, and the buyer 
 
 has accepted the goods, or part thereof, or where 
 
 the contract is for specific goods, the property in 
 
 which has passed to the buyer, the breach of any 
 
 condition to be fulfilled by the seller can only be 
 
 treated as a breach of warranty, and not as a ground 
 
 for rejecting the goods and treating the contract as 
 
 repudiated, unless there be a term of the contract, 
 
 express or implied, to that effect. 
 
 (2.) In Scotland, failure by the seller to perform any 
 
 material part of a contract of sale is a breach of contract, 
 
 which entitles the buyer either within a reasonable time 
 
 after delivery to reject the goods and treat the contract as 
 
 repudiated, or to retain the goods and treat the failure to 
 
 perform such material part as a breach which may give rise 
 
 to a claim for compensation or damages. 
 
 (3.) Nothing in this section shall affect the case of any con- 
 dition or warranty, fulfilment of which is excused by law by 
 reason of impossibility or otherwise. 
 
 12. In a contract of sale, unless the circumstances of the Implied 
 contract are such as to show a different intention, there is — undertaking 
 
 (1.) An implied condition on the part of the seller that in ^^^° ^^'•^'^' ^^' 
 the case of a sale he has a right to sell the goods, 
 and that in the case of an agreement to sell he will 
 have a right to sell the goods at the time when the 
 property is to pass : 
 
 (2.) An implied warranty that the buyer shall have and 
 enjoy quiet possession of the goods : 
 
 (3.) An implied warranty that the goods shall be free from 
 any charge or encumbrance in favour of any third 
 party, not declared or known to the buyer before or 
 at the time when the contract is made : 
 
 13. Where there is a contract for the sale of goods by Sale by 
 description, there is an implied condition that the goods shall description. 
 corresjDond with the description ; and if the sale be by sample, 
 
 as well as by description, it is not sufficient that the bulk of 
 the goods corresponds with the sample if the goods do not 
 also correspond with the description.
 
 336 APPENDIX. 
 
 Implied con- 14, Subject to the provisions of tliis Act and of any statute 
 *^''^?^^^ ^'^ i^ ^^^t behalf, there is no implied warranty or condition as 
 fitness °^ ^° ^^^ quality or fitness for any particular purpose of goods 
 supplied under a contract of sale, except as follows : — 
 
 (1.) "WTiere the buyer, expressly or by implication, makes 
 known to the seller the particular purpose for which 
 the goods are required, so as to show that the buyer 
 rehes on the seller's skill or judgment, and the goods 
 are of a descrijDtion which it is in the course of the 
 seller's business to supply (whether he be the manu- 
 facturer or not), there is an implied condition that 
 the goods shall be reasonably fit for such purpose, 
 provided that in the case of a contract for the sale of 
 a specified article under its patent or other trade 
 name, there is no implied condition as to its fitness 
 for any particular purpose : 
 (2.) Where goods are bought by description from a seller 
 who deals in goods of that description (whether he 
 be the manufactiu-er or not), there is an implied 
 condition that the goods shall be of merchantable 
 quality ; provided that if the buj-er has examined 
 the goods, there shall be no imphed condition as 
 regards defects which such examination ought to 
 have revealed : 
 (3.) An implied warranty or condition as to equality or 
 fitness for a particular purpose may be annexed by 
 the usage of trade : 
 (4.) An express warranty or condition does not negative a 
 warranty or condition implied by this Act unless 
 inconsistent therewith. 
 
 Sale ly Sample. 
 
 Sale by 15. — (1.) A contract of sale is a contract for sale by sample 
 
 sample. where there is a term in the contract, cxjiress or implied, to 
 
 that effect. 
 
 (2.) In the case of a contract for sale by sample — 
 
 (a.) There is an implied condition that the bulk shall 
 
 correspond with the sample in quality : 
 (b.) There is an implied condition that the buyer shall have 
 a reasonable ojiportunity of comixaring the bulk with 
 the sample : 
 (c.) Tliere is an implied condition tliat the goods shall be 
 free from any defect, rendering them unmerchantable, 
 which would not be ajipuront on reasonable exami- 
 nation of tlio sample.
 
 SALE OF GOODS ACT, 1893. 337 
 
 PART II. — Effects of the Contract. 
 
 Transfer of Property as between Seller and Buyer. 
 
 16. "Where tliei-e is a contract for the sale of unascertained Goods must 
 goods no property in the goods is transferred to the buyer |j>e a^cer- 
 luiless and until the goods are ascertained. ^^"^^ ' 
 
 17. — (1.) Where there is a contract for the sale of specific Property 
 or ascertained goods the pi-operty in them is transferred to passes when 
 the buyer at such time as the parties to the contract intend it ^i^teiided to 
 to be transferred. ^ 
 
 (2.) For the purpose of ascertaining the intention of tlie 
 parties regard shall be had to the terms of the contract, the 
 conduct of the parties, and the circumstances of the case. 
 
 18. Unless a different intention appears, the following are Rules for 
 rules for ascertaining the intention of the parties as to the ascertaining 
 time at which the property in the goods is to pass to the "^t^^^^o^- 
 buj^er. 
 
 Eule 1 . — Where there is an unconditional contract for the 
 sale of specific goods, in a deliverable state, the proj^erty 
 in the goods passes to the buyer when the contract is 
 made, and it is immaterial whether the time of payment 
 or the time of delivery, or both, be postponed. 
 Eule 2. — Where there is a contract for the sale of specific 
 goods and the seller is bound to do something to the 
 goods, for the purpose of putting them into a deliverable 
 state, the property does not pass until such thing be 
 done, and the buyer has notice thereof. 
 Eule 3. — AVhere there is a contract for the sale of specific 
 goods in a deliverable state, but the seller is bound to 
 weigh, measure, test, or do some other act or thing with 
 reference to the goods for the purpose of ascertaining the 
 price, the property does not pass until such act or thing 
 be done, and the buyer has notice thereof. 
 Rule 4. — When goods are delivered to the buyer on 
 approval or "on sale or return" or other similar terms 
 the property therein passes to the buyer : — 
 
 (a.) When he signifies his approval or acceptance to 
 the seller or does any other act adopting the 
 transaction : 
 (b.) If he does not signify his approval or acceptance 
 to the seller but retains the goods without giving 
 notice of rejection, then, if a time has been fixed 
 for the return of the goods, on the expiration of 
 such time, and, if no time has been fixed, on 
 
 w. z
 
 338 
 
 APPENDIX. 
 
 Eesorvation 
 of right of 
 disposal. 
 
 Ili.Mk prinid 
 facie pasKOH 
 ■yv'itli pro- 
 P'-'ty. 
 
 the expiration of a reasonable time. What is 
 a reasonable time is a question of fact. 
 Eule 5. — (1.) Where there is a contract for the sale of un- 
 ascertained or future goods by description, and goods of 
 that description and in a deliverable state are uncondi- 
 tionally appropriated to the contract, either by the seller 
 with the assent of the buyer, or by the buyer with the 
 assent of the seller, the property in the goods thereupon 
 passes to the buyer. Such assent may be express or 
 implied, and may be given either before or after the 
 appropriation is made : 
 (2.) Where, in pursuance of the contract, the seller delivers 
 the goods to the buyer or to a carrier or other bailee or 
 custodier (whether named by the buyer or not) for the 
 purpose of transmission to the buyer, and does not reserve 
 the right of disposal, he is deemed to have uncondition- 
 ally appropriated the goods to the contract. 
 
 19. — (].) Where there is a contract for the sale of specific 
 goods or where goods are subsequently appropriated to the 
 contract, the seller may, by the terms of the contract or appro- 
 priation, reserve the right of disposal of the goods until 
 certain conditions are fulfilled. In such case, notwithstanding 
 the delivery of the goods to the buyer, or to a carrier or other 
 bailee or custodier for the purpose of transmission to the 
 buyer, the property in the goods does not pass to the buyer 
 until the conditions imposed by the seller are fulfilled, 
 
 (2.) Where goods are shijiped, and by the bill of lading 
 the goods are deliverable to the order of the seller or his 
 agent, the seller is prima facie deemed to reserve the right of 
 disposal. 
 
 (3.) Where the seller of goods draws on the buyer for the 
 price, and transmits the bill of exchange and bill of lading to 
 the buyer together to secure acceptance or payment of the bill 
 of exchange, tlio buyer is bound to return the bill of lading 
 if ho docs not honour the bill of exchange, and if he wrong- 
 fully retains the bill of lading the property in the goods does 
 not pass to him. 
 
 20. Unless otherwise agreed, the goods remain at the 
 seller's risk until tlio pro2)crty tliercin is transferred to the 
 buyer, but wliou the pro^ierty therein is transferred to the 
 buyer, tlie goods are at tlio buyer's risk whether delivery has 
 been made or not. 
 
 I'njvidcd that where delivery has be(m delayed ilirough the 
 f;iiilt of oillior buyer or seller tlio goods are at the risk of tlio 
 paily ill fault as regards any loss which might not have 
 occurred but for such fault.
 
 SALE OF GOODS ACT, 1893. 339 
 
 Provided also that nothing in this section shall affect tho 
 duties or liabilities of either seller or buyer as a bailee or 
 custodier of tho goods of the other party. 
 
 Transfer of Title. 
 
 21. — (1.) Subject to the provisions of this Act, where goods Sale by 
 are sold by a person who is not the owner thereof, and who person not 
 does not sell them under the authority or with the consent of t'^*^ owner, 
 tlio owner, the buyer acquires no better title to tho goods than 
 the seller had, unless the owner of the goods is by his conduct 
 precluded from denying the seller's authority to sell. 
 
 (2.) Provided also that nothing in this Act shall affect — 
 (a.) The provisions of the Pactors Acts, or any enactment 
 enabling the apparent owner of goods to dispose of 
 them as if he were the true owner thereof ; 
 (b.) The validity of any contract of sale under any special 
 common law or statutory power of sale or under the 
 order of a Court of competent jurisdiction. 
 
 22. — (1.) AVhere goods are sold in market overt, according Market overt, 
 to the usage of the market, the buyer acquires a good title to 
 the goods, provided he buys them in good faith and without 
 notice of any defect or want of title on the part of the seller. 
 
 (2.) Nothing in this section shall affect the law relating to 
 the sale of horses. 
 
 (3.) The provisions of this section do not apply to Scotland. 
 
 23. When the seller of goods has a voidable title thereto, Sale \miov 
 but his title has not been avoided at the time of the sale, the voidable title 
 buyer acquires a good title to the goods, provided he buys 
 them in good faith and without notice of tho seller's defect of 
 title. 
 
 24. — (1.) Where goods have been stolen and the offender Revesting of 
 is prosecuted to conviction, the property in the goods so stolen property iu 
 revests in the person who was the owner of the goods, or his ^^t'^^^u g-oods 
 personal representative, notwithstanding any intermediate of' o° fender"'^ 
 dealing with them, whether by sale in market overt or other- 
 wise. 
 
 (2.) Notwithstanding any enactment to the contrary, wliere 
 goods have been obtained by fraud or other wrongful means 
 not amounting to larceny, the property in such goods shall 
 not revest in the person who was the owner of the goods, or 
 his personal representative, by reason only of the conviction 
 of the offender. 
 
 (3.) The provisions of this section do not apply to Scotland.. 
 
 z2
 
 340 
 
 APPENDIX. 
 
 Seller or 
 buyer in 
 
 possession 
 after sale. 
 
 Effect of 
 ■writs of 
 execution. 
 
 Dalies of 
 seller and 
 buyer. 
 
 25. — 1.) "Wliere a person having sold goods continues or is 
 in possession of the goods, or of the documents of title to the 
 goods, the delivery or transfer by that person, or by a mer- 
 cantile agent acting for him, of the goods or documents of 
 title under any sale, pledge, or other disposition thereof, to 
 any person receiving the same in good faith and without 
 notice of the previous sale, shall have the same effect as if 
 the person making the delivery or transfer were expressly 
 authorized by the owner of the goods to make the same. 
 
 (2.) "Where a person having bought or agreed to buy 
 goods obtains, with the consent of the seller, possession of 
 the goods or the documents of title to the goods, the delivery 
 or transfer by that person, or by a mercantile agent acting 
 for him, of the goods or documents of title, under any sale, 
 pledge, or other disposition thereof, to any person receiving the 
 , same in good faith and without notice of any lien or other 
 right of the original seller in respect of the goods, shall have 
 the same effect as if the person making the delivery or 
 transfer were a mercantile agent in possession of the goods 
 or documents of title with the consent of the owner. 
 
 (3.^ In this section the term "mercantile agent" has the 
 same meaning as in the Factors Acts. 
 
 26. — 1. A writ of fieri facias or other writ of execution 
 against goods shall bind the property in the goods of the 
 execution debtor as from the time when the writ is delivered 
 to the sheriff to be executed ; and, for the better manifesta- 
 tion of such time, it shall be the duty of the sheriff, without 
 fee. upon the receipt of any such writ to indorse upon the 
 back thereof the hour, day, month, and year when he re- 
 ceived the same. 
 
 Provided that no such writ shall prejudice the title to such 
 goods acquired by any person in good faith and for valuable 
 consideration, unless such person had at the time when he 
 acquired his title notice that such writ or any other writ by 
 virtue of which the goods of the execution debtor might be 
 seized or attached had been delivered to and remained un- 
 executed in the hands of the sheriff. 
 
 (2.) In this section the term " sheriff " includes any officer 
 charged with the enforcement of a writ of execution. 
 
 (3.) The provisions of this section do not apply to Scot- 
 land. 
 
 IWET III. — Perfobmaxce of the Coxteact. 
 
 27. It is the duty of the seller to deliver the goods, and of 
 the buyer to accept and pay for them, in accordance with the 
 terms of the contract of sale.
 
 SALE OF GOODS ACT, 1893, 341 
 
 28. Unless otherwise agreed, delivery of the goods and TaymcLt and 
 payment of the price are conciirrcmt conditions, that is to delivery aro 
 say, the seller must bo ready and willing to give possession coucurrent 
 of the goods to the buyer in exchange for the price, and the 
 buyer must be ready and willing to pay the price in exchange 
 for possession of the goods. 
 
 29. — (1.) Whether it is for the buyer to tate possession of Rules as to 
 the goods or for the seller to send them to the buyer is a delivery, 
 question depending in each case on the contract, express or 
 implied, between the parties. Apart from any such contract, 
 express or implied, the place of delivery is the seller's place of 
 business, if he have one, and if not, his residence : Provided 
 that, if the contract be for the sale of specific goods, which 
 to the knowledge of the parties when the contract is made 
 are in some other place, then that place is the place of 
 delivery. 
 
 (2.) Where under the contract of sale the seller is bound 
 to send the goods to the buyer, but no time for sending them 
 is fixed, the seller is bound to send them within a reasonable 
 time. 
 
 (3.) Where the goods at the time of sale are in the posses- 
 sion of a third person, there is no delivery by seller to buyer 
 unless and until such third person acknowledges to the buyer 
 that he holds the goods on his behalf ; provided that nothing 
 in this section shall affect the operation of the issue or trans- 
 fer of any document of title to goods. 
 
 (4.) Demand or tender of delivery may be treated as 
 ineffectual unless made at a reasonable hour. What is a 
 reasonable hour is a question of fact. 
 
 (5.) Unless otherwise agreed, the expenses of and inci- 
 dental to putting the goods into a deliverable state must be 
 borne by the seller. 
 
 30. — (1.) Where the seller delivers to the buyer a quantity Delivery of 
 of goods less than he contracted to sell, the buyer may reject wroii<? 
 them, but if the buyer accepts the goods so delivered he quantity, 
 must pay for them at the contract rate. 
 
 (2.) Where the seller delivers to the buyer a quantity of 
 goods larger than he contracted to sell, the buyer may accept 
 the goods included in the contract and reject the rest, or 
 he may reject the whole. If the buyer accepts the whole of 
 the goods so delivered he must pay for them at the contract 
 rate. 
 
 (3.) Where the seller delivers to the buyer the goods he 
 contracted to sell mixed with goods of a different description 
 not included in the contract, the buyer may accept the goods
 
 342 
 
 APPENDIX. 
 
 Instalment 
 deliveries. 
 
 Delivery to 
 carrier. 
 
 Risk wlierc 
 j,''nodH are 
 delivered at 
 ditttant place. 
 
 wliich are in accordance with the contract and reject the rest, 
 or he may reject the whole. 
 
 (4.) The provisions of this section are subject to any usage 
 of trade, special agreement, or course of dealing between the 
 parties. 
 
 31. — (1.) Unless otherwise agreed, the buyer of goods is 
 not bound to accept delivery thereof by instalments. 
 
 (2.) Where there is a contract for the sale of goods to be 
 delivered by stated instalments, which are to be separately 
 paid for, and the seller makes defective deliveries in respect 
 of one or more instalments, or the buyer neglects or refuses to 
 take delivery of or pay for one or more instalments, it is a 
 c[uestion in each case depending on the terms of the contract 
 and the circumstances of the case, whether the breach of 
 contract is a repudiation of the whole contract or whether it 
 is a severable breach giving rise to a claim for compensation 
 but not to a right to treat the whole contract as repudiated. 
 
 32. — (1.) Where, in pursuance of a contract of sale, the 
 seller is authorized or required to send the goods to the buyer, 
 delivery of the goods to a carrier, whether named by the buyer 
 or not, for the j)urpose of transmission to the buyer is prima 
 facie deemed to be a delivery of the goods to th« iDuyer. 
 
 (2.) Unless otherwise authorized by the buyer, the seller 
 must make such contract with the carrier on behalf of the 
 buj'or as may be reasonable having regard to the nature of the 
 goods and the other circumstances of the case. If the seller 
 omit so to do, and the goods are lost or damaged in course of 
 transit, the buyer may decline to treat the delivery to the 
 carrier as a delivery to himself, or may hold the seller respon- 
 sible in damages. 
 
 (3.) Unless otherwise agreed, where goods are sent by the 
 seller to the buyer by a route involving sea transit, under cir- 
 cumstances in which it is usual to insure, the seller must give 
 such notice to the bu3'er as may enable him to insure them 
 during their sea transit, and, if the seller fails to do so, the 
 goods shall bo deemed to be at his risk during such sea transit. 
 
 33. Where the seller of goods agrees to deliver them at his 
 own risk at a place other than that where they are when sold, 
 tlie buyer must, nevertheless, unless otherwise agreed, tako 
 any risk of deterioration in the goods necessarily incident to 
 the course of transit. 
 
 Buyer's ripht 34. — (1.) Where goods are delivered to the buyer, which 
 of exiimiiiiiig ]^o has not previously examined, he is not deemed to have 
 the goodH. accepted tlioiu unless and until lie has had a reasonable op-
 
 SALE OF GOODS ACT, 1893. 343 
 
 portunity of examining tlicm for the purpose of ascertaining 
 whetlier tliey are in conformity with the contract. 
 
 (2.) Unless otherwise agreed, when the seller tenders do- 
 liver}^ of goods to the buyer, he is bound, on request, to afford 
 the buyer a reasonable opportunity of examining the goods 
 for the purpose of ascertaining whether they are in conformity 
 with the contract. 
 
 35. The buyer is deemed to have accepted the goods when Acceptance, 
 he intimates to the seller that he has accepted them, or when 
 
 the goods have been delivered to him, and he does any act in 
 relation to them which is inconsistent with the ownership of 
 the seller, or when after the lapse of a reasonable time, he 
 retains the goods without intimating to the seller that he has 
 rejected them. 
 
 36. Unless otherwise agreed, where goods are delivered to Buyer not 
 the buyer, and he refuses to accept them, having the right so ^ound to 
 to do, he is not bound to return them to the seller, but it is ^'''^^^^^°'j 
 suthcient if he intimates to the seller that he refuses to accept ° 
 them. 
 
 37. When the seller is ready and willing to deliver the Liability of 
 goods, and requests the buyer to take delivery, and the buyer buyer for 
 does not within a reasonable time after such request take ^^ ^efusin^ 
 delivery of the goods, he is liable to the seller for any loss delivery of 
 occasioned by his neglect or refusal to take delivery, and also goods. 
 
 for a reasonable charge for the care and custody of the goods. 
 Provided that nothing in this section shall affect the rights of 
 the seller where the neglect or refusal of the buyer to take 
 delivery amounts to a repudiation of the contract. 
 
 PAET IV. — Eights oy Unpaid Seller agaiis^st the Goods. 
 
 38. — (1.) The seller of goods is deemed to be an " unpaid Unpaid seller 
 seller " within the meaning of this Act— defined. 
 
 (a) When the whole of the price has not been paid or 
 
 tendered ; 
 
 (b) When a bill of exchange or other negotiable instrument 
 
 has been received as conditional payment, and the 
 condition on which it was received has not been 
 fulfilled by reason of the dishonour of the instrument 
 or otherwise. 
 (2.) In this part of this Act the term " seller" includes any 
 person who is in the position of a seller, as, for instance, an 
 agent of the seller to whom the bill of lading has been in- 
 dorsed, or a consignor or agent who has himself paid, or is 
 directly responsible for, the price.
 
 344 
 
 APPENDIX. 
 
 L'npaid _ 39, — (1.) Subject to the provisions of this Act, and of any 
 
 seller's rights, statute in that behalf, notwithstanding that the property in 
 the goods may have passed to the buyer, the unpaid seller of 
 goods, as such, has by implication of law — 
 
 (a.) A lien on the goods or right to retain them for the 
 
 price while he is in possession of them ; 
 (b.) In case of the insolvency of the buyer, a right of 
 stopping the goods in transitu after he has parted 
 with the possession of them ; 
 (c.) A right of re-sale as limited by this Act. 
 (2.) Where the property in goods has not passed to the 
 buyer, the unpaid seller has, in addition to his other remedies, 
 a right of withholding delivery similar to and co-extensive 
 with his rights of lien and stoppage in transitu where the 
 property has passed to the buyer. 
 
 40. In Scotland a seller of goods may attach the same while 
 in his own hands or possession by arrestment or poinding ; 
 and such arrestment or poinding shall have the same opera- 
 tion and effect in a competition or otherwise as an arrestment 
 or poinding by a third party. 
 
 Attactment 
 by seller in 
 Scotland. 
 
 Unpaid Seller^ s Lien. 
 
 Seller's lien. 41. — (1.) Subject to the provisions of this Act, the unpaid 
 
 seller of goods who is in possession of them is entitled to 
 retain possession of them until payment or tender of the price 
 in the following cases, namely: — 
 
 (a.) Where the goods have been sold without any stipula- 
 tion as to credit ; 
 (b.) Where the goods have been sold on credit, but the 
 
 term of credit has expired ; 
 (c.) Where the buyer becomes insolvent. 
 (2.) The seller may exercise his right of lien notwithstand- 
 ing that he is in possession of the goods as agent or bailee or 
 custodier for the buyer. 
 
 Part delivery. 42. AVhere an unpaid seller has made part delivery of the 
 goods, he may exercise his right of lien or retention on the 
 remainder, unless such paii; deliverj' has been made under 
 such circumstances as to show an agreement to waive the 
 lien or right of retention. 
 
 Termination 43. — (1.) The unpaid seller of goods loses liis lien or right 
 of lien. Qf retenticni thereon — 
 
 (a.) When ho delivers the goods to a carrier or other bailee 
 or custodier for the purjiose of transmission to the
 
 SALE OF GOODS ACT, 1893. 345 
 
 buyer without reserving the right of disposal of the 
 goods ; 
 (b.) When the buyer or his agent lawfully obtains posses- 
 sion of the goods ; 
 (c.) By waiver thereof. 
 
 (2.) The unpaid seller of goods, having a lien or right of 
 retention thereon, does not lose his lien or right of retention 
 by reason only that he has obtained judgment or decree for 
 the price of the goods. 
 
 Stoppage in Transitu. 
 
 44. Subject to the provisions of this Act, when the buyer Right of 
 of goods becomes insolvent, the unpaid seller who has parted stoppage m 
 with the possession of the goods has the right of stopping ^'■""*' "• 
 them in transitu, that is to say, he may resume possession of 
 the goods as long as they are in course of transit, and may 
 retain them until payment or tender of the price. 
 
 45. — (1.) Goods are deemed to be in course of transit from Duration of 
 the time when they are delivered to a carrier by land or transit, 
 water, or other bailee or custodier for the purpose of trans- 
 mission to the buyer, until tlie buyer, or his agent in that 
 behalf, takes delivery of them from such carrier or other 
 bailee or custodier. 
 
 (2.) If the buyer or his agent in that behalf obtains de- 
 livery of the goods before their arrival at the appointed desti- 
 nation, the transit is at an end. 
 
 (3.) If, after the arrival of the goods at the appointed 
 destination the carrier or other bailee or custodier acknow- 
 ledges to the buyer, or his agent, that he holds the goods on 
 his behalf, and continues in possession of them as bailee or 
 custodier for the buyer, or his agent, the transit is at an end, 
 and it is immaterial that a further destination for the goods 
 may have been indicated by the buyer. 
 
 (4.) If the goods are rejected by the buyer, and the carrier 
 or other bailee or custodier continues in possession of them, 
 the transit is not deemed to be at an end, even if the seller 
 has refused to receive them back. 
 
 (5.) When goods are delivered to a ship chartered by the 
 buyer it is a question depending on the circumstances of the 
 particular case, whether they are in the possession of the 
 master as a carrier, or as agent to the buyer. 
 
 (6.) Where the carrier or other bailee or custodier wrong- 
 fully refuses to deliver the goods to the buyer, or his agent in 
 that behalf, the transit is deemed to be at an end. 
 
 (7.) Where part delivery of the goods has been made to the
 
 346 
 
 APPENDIX. 
 
 How stoppage 
 in transitu is 
 effected. 
 
 buyer, or his agent in that behalf, the remainder of the goods 
 may be stoj)ped in transitu, unless such part delivery has been 
 made under such circumstances as to show an agreement to 
 give up possession of the whole of the goods. 
 
 46. — (1.) The unpaid seller may exercise his right of stop- 
 page in transitu either by talcing actual possession of the goods, 
 or by giving notice of his claim to the carrier or other bailee 
 or custodier in whose possession the goods are. Such notice 
 may be given either to the j)erson in actual possession of the 
 goods or to his principal. In the latter case the notice, to be 
 effectual, must be given at such time and under such circum- 
 stances that the principal, by the exercise of reasonable dili- 
 gence, may communicate it to his servant or agent in time to 
 prevent a delivery to the buyer. 
 
 (2.) When notice of stoppage in transitu is given by the 
 seller to the carrier, or other bailee or custodier in possession 
 of the goods, he must re- deliver the goods to, or according to 
 the directions of, the seller. The expenses of such re-delivery 
 must be borne by the seller. 
 
 by buyer. 
 
 He-sale by Buyer or Seller. 
 
 Effect of sub- 47. Subject to the provisions of this Act, the unpaid seller's 
 sale or pledge I'ight of lien or retention or stoppage in transitu is not affected 
 by any sale, or other disposition of the goods which the buyer 
 may have made, unless the seller has assented thereto. 
 
 Provided that where a document of title to goods has been 
 lawfully transferred to any person as buyer or owner of the 
 goods, and that person transfers the document to a person 
 who takes the document in good faith and for valuable con- 
 sideration, then, if such last-mentioned transfer was by way 
 of sale tlie unpaid seller's right of lien or retention or stoppage 
 in transitu is defeated, and if such last-mentioned transfer 
 was by way of pledge or other disposition for value, the unpaid 
 seller's right of lien or retention or stoppage in transitu can 
 only be exorcised subject to the rights of the transferee. 
 
 iSale not 
 generally 
 re.sciiidf'd by 
 lien or stop- 
 page in 
 transitu. 
 
 48. — (1 .) Subject to the provisions of this section, a contract 
 of sale is not rescinded by the mere exercise by an unpaid 
 seller of liis right of lien or retention or stoppage in transitu. 
 
 (2.) AVhero an unpaid seller who has exercised his right of 
 lion or retention or stoppage in transitu re-sells the goods, tho 
 buyer acquires a good title thereto as against the original 
 buyer. 
 
 (3.) Whoro tho goods are of a perishable nature, or where 
 the unpaid sfdlor gives notice to tho buyer of his intention to 
 re-sell, and tho >)uyor docs not witliin a reasonable time pay
 
 SALE OF GOODS ACT, 1893. 347 
 
 or tender the price, the unpaid seller may ro-sell the goods 
 and recover from the original buyer damages for any loss 
 occasioned by his breach of contract. 
 
 (4.) Where the seller expressly reserves a right of re-sale 
 in case the buyer should make default, and on the buyer 
 making default, re-sells the goods, the original contract of 
 sale is thereby rescinded, but without prejudice to any claim 
 the seller may have for damages. 
 
 PAET V. — Actions tor BREAcn of the Contract. 
 Ilemedies of the Seller. 
 
 49. — (1.) "Where, under a contract of sale, the property in Action for 
 the goods has passed to the buyer, and the buyer wrongfully price, 
 neglects or refuses to pay for the goods according to the terms 
 of the contract, the seller may maintain an action against him 
 for the price of the goods. 
 
 (2.) Where, under a contract of sale, the price is payable 
 on a day certain irrespective of delivery, and the buyer wrong- 
 fully neglects or refuses to pay such price, the seller may 
 maintain an action for the price, although the j)roperty in the 
 goods has not passed, and the goods have not been appro- 
 priated to the contract. 
 
 (3.) Nothing in this section shall prejudice the right of the 
 seller in Scotland to recover interest on the price from the 
 date of tender of the goods, or from the date on which the 
 price was payable, as the case may be. 
 
 50. — (1.) Where the buyer wrongfully neglects or refuses Damages for 
 to accept and pay for the goods, the seller may maintain an non-accept- 
 action against him for damages for non-acceptance. ance. 
 
 (2.) The measure of damages is the estimated loss directly 
 and naturally resulting, iu the ordinary course of events, from 
 the buyer's breach of contract. 
 
 (3.) Where there is an available market for the goods in 
 question the measure of damages is prima facie to bo ascer- 
 tained by the difference between the contract price and the 
 market or current price at the time or times when the goods 
 ought to have been accepted, or, if no time was fixed for 
 acceptance, then at the time of the refusal to accept. 
 
 jRemedies of the Buyer. 
 
 51. — (1.) Where the seller wrongfully neglects or refuses Damages for 
 to deliver the goods to the buyer, the buyer may maintain an non-ddivcry. 
 action against the seller for damages for non-delivery.
 
 348 
 
 ArPEXDIX. 
 
 Specific per- 
 formance. 
 
 (2.) The measure of damages is the estimated loss directly 
 and naturally resulting, in the ordinary course of events, 
 from the seller's breach of contract. 
 
 (3.) AVhere there is an available market for the goods in 
 question the measure of damages is prima facie to be ascer- 
 tained by the difference between the contract price and the 
 market or current price of the goods at the time or times 
 when they ought to have been delivered, or, if no time "was 
 fixed, then at the time of the refusal to deliver. 
 
 52. In any action for breach of contract to deKver specific 
 or ascertained goods the Court may, if it thinks fit, on the 
 application of the plaintiff, by its judgment or decree direct 
 that the contract shall be performed specifically, without 
 giving the defendant the option of retaining the goods on 
 payment of damages. The judgment or decree ma}' be un- 
 conditional, or upon such terms and conditions as to damages, 
 payment of the price, and otherwise, as to the Court may 
 seem just, and the application by the plaintiff may be made 
 at any time before judgment or decree. 
 
 The provisions of this section shall be deemed to be supple- 
 mentary to, and not in derogation of, the right of specific 
 implement in Scotland. 
 
 53. — (1.) Where there is a breach of warrant}- by the seller, 
 or where the buyer elects, or is compelled, to treat any breach 
 of a condition on the part of the seller as a breach of warranty, 
 the buyer is not by reason ouh' of such breach of warranty 
 entitled to reject the goods ; but he may 
 
 (a) set up against the seller the breach of warranty in 
 
 diminution or extinction of the price ; or 
 
 (b) maintain an action against the seller for damages for 
 
 the breach of warranty. 
 
 (2.) The measure of damages for breach of warranty is the 
 estimated loss dirccth' and naturally resulting, in the ordinary 
 course of events, from the breach of warranty. 
 
 (3.) In the case of breach of Avarranty of cpmlity such loss 
 is prima facie the difference between the value of the goods 
 at the time of delivery to the buyer and the value they would 
 have had if they had answered to the warranty. 
 
 (4.) The fact that the buyer has set up tlie breach of 
 warranty in diminution or extinction of the price does not 
 prevent him from maintaining an action for the same breach 
 of warranty if he lias suflercd further damage. 
 
 (5.) Nothing in this section shall prejudice or affect the 
 bii3'er's right of rejection in Scotland as declared by this Act. 
 
 Interest and 54. Nothing in this Act shall afi'ect the right of the buyer 
 
 Eemedy for 
 breach of 
 wan-anty.
 
 SALE OF GOODS ACT, 1893. 349 
 
 or the seller to recover interest or special damages in any case special 
 where by law interest or special damages may be recoverable, damages. 
 or to recover money paid where the consideration for the pay- 
 ment of it has failed. 
 
 PAET VI. — Supplementary. 
 
 55. Where any right, duty, or liability would arise under Exclusion of 
 a contract of sale by implication of law, it may be negatived implied tenns 
 or varied by express agreement or by the course of dealing ^P^ condi- 
 between the parties, or by usage, if the usage be such as to ^°°®' 
 
 bind both parties to the contract, 
 
 56. Where, by this Act, any reference is made to a reason- Reasonable 
 able time the question what is a reasonable time is a question ti^^e a ques- 
 of fact. tio^ "^ f^'^*- 
 
 57. Where any right, duty, or liability is declared by this Rights, (SL-c. 
 Act, it may, unless otherwise by this Act provided, be enforced enforceable 
 by action. " ^^ ^^t^^'^- 
 
 58. In the case of a sale by auction — Auction sales. 
 (1.) Where goods are put up for sale by auction in lots, 
 
 each lot is prima facie deemed to be the subject of a 
 separate contract of sale : 
 (2.) A sale by auction is complete when the auctioneer 
 announces its completion by the fall of the hammer, 
 or in other customary manner. Until such announce- 
 ment is made any bidder may retract his bid : 
 (3.) Where a sale by auction is not notified to be subject 
 to a right to bid on behalf of the seller, it shall not 
 be lawful for the seller to bid himself or to employ 
 any person to bid at such sale, or for the auctioneer 
 knowingly to take any bid from the seller or any 
 such person : Any sale contravening this rule may 
 be treated as fraudulent by the buyer. 
 (4.) A sale by auction may be notified to be subject to a 
 reserved or upset price, and a right to bid may 
 also be reserved expressly by or on behalf of the 
 seller. 
 Where a right to bid is expressly reserved, but not other- 
 wise, the seller, or any one person on his behalf, may bid at 
 the auction. 
 
 59. In Scotland where a buyer has elected to accept goods Payment into 
 which he might have rejected, and to treat a breach of con- Court in 
 tract as only giving rise to a claim for damages, he may, in Scotland 
 
 ,. 1 ?? 'ii s! 4.1 • 1 • 1 • ii T wlien breach 
 
 an aciion by the seller tor the price, be required, in the dis-
 
 350 
 
 APrEN])lX. 
 
 of warranty 
 alleo-ed. 
 
 Eepeal. 
 
 Saving's. 
 
 Interpreta- 
 tion of 
 tcrma. 
 
 cretion of tlie Court before -u-liich the action depends, to con- 
 sign or pay into Court the price of the goods, or part thereof, 
 or to give other reasonable security for the due payment 
 thereof. 
 
 60. The enactments mentioned in the schedule to this Act 
 are hereby rejDealed as from the commencement of this Act to 
 the extent in that schedule mentioned. 
 
 Provided that such repeal shall not affect anything done or 
 suffered, or any right, title, or interest acquired or accrued 
 before the commencement of this Act, or any legal pro- 
 ceeding or remedy in resi^ect of any such thing, right, title, 
 or interest. 
 
 61. — (1.) The rules in bankruptcy relating to contracts of 
 sale shall continue to apply thereto, notwithstanding any- 
 thing in this Act contained. 
 
 (2.) The rides of the common law, including the law 
 merchant, save in so far as they are inconsistent with the 
 express provisions of this Act, and in particidar the rules 
 relating to the law of principal and agent and the effect of 
 fraud, misrepresentation, diu'ess or coercion, mistake, or other 
 invalidating cause, shall continue to apply to contracts for 
 the sale of goods. 
 
 (3.) Nothing in this Act or in any rej)eal effected thereby 
 shall affect the enactments relating to bills of sale, or any 
 enactment relating to the sale of goods which is not expressly 
 repealed by this Act. 
 
 (4.) The provisions of this Act relating to contracts of sale 
 do not apply to any transaction in the form of a contract of 
 sale which is intended to operate by way of mortgage, pledge, 
 charge, or other security. 
 
 (5.) Nothing in this Act shall prejudice or affect the land- 
 lord's right of hypothec or sequestration for rent in Scotland. 
 
 62. — (1.) In this Act, unless the context or subject-matter 
 otherwise requires, — 
 
 "Action" includes counter-claim and set-off, and in Scot- 
 land condescendence and claim and compensation : 
 
 " Bailee " in Scotland includes custodier: 
 
 "Buyer" means a person who buys or agrees to buy 
 goods : 
 
 " Contract of sale" includes an agreement to sell as well as 
 a sale : 
 
 "Defendant" includes in Scotland defender, respondent, 
 and claimant in a multipleiwinding: 
 
 "Delivery" means voluntary transfer of possession from 
 one person to another :
 
 SALE OF GOODS ACT, 1893. 351 
 
 "Document of title to goods" lias the same meaning as it 
 has in the Factors Acts : 
 
 " Factors Acts " mean the Factors Act, 1889, the Factors 52 & .53 Vict. 
 (Scotland) Act, 1890, and any enactment amending or '^- '^'^- 
 substituted for the same : ^^^^ ^^ ^ '^*- 
 
 " Fault " means wrongful act or default : 
 
 "Future goods" mean goods to be manufactured or ac- 
 quired by the seller after the making of the contract 
 of sale : 
 
 "Goods" include all chattels personal other than things 
 in action and money, and in Scotland all corporeal 
 moveables except money. The term includes emble- 
 ments, industrial growing crops, and things attached 
 to or forming part of the land which are agreed 
 to be severed before sale or under the contract of 
 sale : 
 
 " Lien " in Scotland includes right of retention : 
 
 "Plaintiff" includes pursuer, complainer, claimant in a 
 multiplepoinding and defendant or defender counter- 
 claiming : 
 
 " Property " means the general property in goods, and not 
 merely a special property : 
 
 " Quality of goods " includes their state or condition : 
 
 "Sale" includes a bargain and sale as well as a sale and 
 delivery : 
 
 "Seller" means a person who sells or agrees to sell 
 goods : 
 
 "Specific goods" mean goods identified and agreed upon 
 at the time a contract of sale is made : 
 
 "Warranty" as regards England and Ireland means an 
 agreement with reference to goods which are the 
 subject of a contract of sale, but collateral to the main 
 purpose of such contract, the breach of which gives 
 rise to a claim for damages, but not to aright to reject 
 the goods and treat the contract as repudiated. 
 
 As regards Scotland a breach of warranty shall be deemed 
 to be a failure to perform a material part of the contract. 
 
 (2.) A thing is deemed to be done " in good faith " within 
 the meaning of this Act when it is in fact done honestly, 
 whether it be done negligently or not. 
 
 (3.) A person is deemed to be insolvent Avithin the meaning 
 of this Act who cither has ceased to pay his debts in the 
 ordinary course of business, or cannot pay his debts as they 
 become due, whether he has committed an act of bankruptcy 
 or not, and whether he has become a notour banla'upt or nut. 
 
 (4.) Goods are in a "deliverable state" within the mean-
 
 352 
 
 APPENDIX. 
 
 ing of this Act wlien they are in such, a state that the buyer 
 vould under the contract be bound to take delivery of them. 
 
 Commence- 63. This Act shall come into operation on the first day of 
 
 ment. January one thousand eight hundred and ninety-four. 
 
 Short title. 64. This Act may be cited as th.e Sale of Groods Act, 1893. 
 
 Section 60. SCHEDULE. 
 
 This schedule is to be read as referring to the revised 
 edition of the statutes prepared under the direction of the 
 Statute La-^ Committee. 
 
 ExACTilE^TTS IiEPEAI-ED. 
 
 Session and Chapter. 
 
 Title of Act and Extent of EepeaL 
 
 1 Jac. 1,0. 21 An Act against brokers. 
 
 The whole Act. 
 
 29 Cha. 2.0. 3 An Act for the prevention of frauds and perjuries. 
 
 In part ; that is to say, sections fifteen and 
 sixteen.* 
 
 9 Greo. 4, c. 11 An Act for rendering a written memorandum 
 
 necessary to the validity of certain promises 
 and engagements. 
 In part ; that is to say, section seven. 
 19 & 20 Vict. c. 60 . . The Mercantile Law Amendment (Scotland) Act, 
 1856. 
 I In part ; that is to say, sections one, two, 
 
 three, four, and fire. 
 19 & 20 Yiet. c. 97 . . i The Mercantile Law Amendment Act, 1856. 
 
 j In part ; that is to say, sections one and two. 
 
 * Commonly cited as sections sixteen and seventeen.
 
 INDEX. 
 
 Acceptance of Bill, 
 
 agent, liability on, 270, 271. 
 
 bankruptcy, effect of appropriating proceeds of cargo to meet, 
 
 218. 
 principal authorizing, liable, 113. 
 
 Acceptance op Goods, 
 
 agent's liability by, 299, 300. 
 
 wben implied, 343. 
 damages for non-, 347. 
 seller, right of, in case of non-, 347. 
 
 Accident, 
 
 agent liable if he disobeys orders, 118. 
 carrier, liability for, 121. 
 
 Accord and Satisfaction, defence, as, for agent against principal, 
 147. 
 
 Account, 
 
 action for, Chancery, 148. 
 
 Queen's Bench, 149, 150. 
 agent, duty to keep, 122—124, 153. 
 Ai'bitration Act, provision as to, 150. 
 commission agent, what, ought to keep, 123. 
 commission, agent not keeping, no right to, 152. 
 dispute, right of principal to, 151. 
 duty of agent to keep, 122—124, 152. 
 falsify, right to, 151. 
 fiduciary, duty to keep, 122 — 124. 
 knowledge of fraud in, when not bar to action, 147. 
 Limitations, Statute of, runs fi-om demand of, 154. 
 mistake in, remedy for, 123, 124. 
 payment of agent dependent on keeping, 152. 
 W. A A
 
 354 INDEX. 
 
 ACC0U>"T — continued. 
 
 Queen's Bench, action for, 150. 
 reference, power of, as to, 150. 
 settled, right to open, 151, 152. 
 settlement of, by principal with agent, effect of, on rights of 
 
 third party, 265—268. 
 sui'charge, right to, 151. 
 what ought to be kept, 123, 124. 
 
 Acquiescence, 
 
 appointment of agent, when implied from principal's, 23. 
 
 defence to agent, when, 146, 147. 
 
 dii-ectors, by, in illegal act, effect of, 46. 
 
 illegal act, effect of principal's, 46. 
 
 principal, of, in acts of agent, 147. 
 
 ratification by, 41. 
 
 Action, 
 
 authority to bring, what required, 103. 
 
 barrister represents principal when in Coui't, 101. 
 
 bringing, when, ratification of agent's act, 39. 
 
 commencement of action, what authority required, 103. 
 
 compromise, when solicitor can, 103. 
 
 costs of, agent when liable for, 288. 
 
 general appointment as solicitor, authority to defend, 103. 
 
 indemnity, right of agent to, who has brought or defended, 172. 
 
 judgment, proceeding to, evidence of election, 263. 
 
 notice of, when good, if given to solicitor, 101. 
 
 ratification of act of agent by bruiging, 39. 
 
 solicitor represents principal in action, 101. 
 
 special authority required to commence, 103. 
 
 Action by Agent against Peincip^vl, 
 
 commission, for, 157 — 170. See Remuneration. 
 
 contract with third party, cannot sue as principal in, 313, 315. 
 
 damages for being prevented earning commission, 193. 
 
 indemnity, 171 — 179. See Indemnity. 
 
 Queen's Bench, in, 149, 150. 
 
 remuneration, for, 157 — 170. 
 
 title of principal, cannot dispute, in, 147, 148. 
 
 Action by Agent against Third Pabty, 
 bill of exchange, on, 271. 
 contract on, lien, 313. 
 
 when princiiial disclosed, 315. 
 
 when principal undisclosed, 314.
 
 INDEX. 355 
 
 Action by Agent against Third Party — contiinud, 
 corrupt contract, cannot sue on, 319. 
 defence to, what is, 319. 
 del credere agent can sue, 318. 
 foreign i^rincipal, when, 318. 
 illegal contract, 319. 
 insurance broker can sue, 31G. 
 mistake, if paid money by, 318. 
 
 remimeration, cannot sue for, if time principal's, 319. 
 trover, can bring, 320. 
 
 Action by Principal against Agent, 
 account, 149, 150. See Account. 
 accord and satisfaction, defence to, 14. 
 Arbitration Act, reference of, by, 150. 
 Chancery Division, 148. 
 contract, breach, of, for, 132. 
 conversion, for, 138. 
 credit, no action for loss of, 134. 
 damages against, 134 — 136. 
 declaration that agent is trustee, 139, 142. 
 disobedience to orders, 136. 
 election, principal, right of, to rescind contract or take secret 
 
 profit, 141. 
 gratuitous agent, 137, 138. 
 
 indemnity, right to, for violation of duty, 133, 134. 
 interest on money in agent's hands, 134, 138, 141. 
 judgment, agent not liable for wrong exercise of, 136. 
 Limitations, Statute of, defence of, 158. 
 mistake, no action for, 136. 
 money had and received for, 139. 
 negligence, 133, 135. 
 nonfeasance, 136. 
 Queen's Bench Division, 149, 150. 
 secret profit, 139. 
 skill, want of, 156. 
 trustee, rights against, 138. 
 
 Action by Principal against Third Party, 
 antecedent debt cannot bo set off, 238. 
 contract, on, 219, 220. 
 conversion, action for, 251. 
 
 A A 2
 
 356 INDEX. 
 
 Action by Principal against Third Party — continued. 
 deed, -when contract by, 225, 226. 
 defences to, estoj)pel, 229. 
 
 payment to agent, 230. 
 detinue, 221. 
 discovery in, 228. 
 estoppel, 229. 
 
 evidence, statements of agent, when, 220. 
 form of, 227. 
 
 follow goods, right to, 251 — 254. 
 hawker, powers of, 239. 
 ignorance of agent, effect of, 222. 
 intervention in action by agent, 227, 318. 
 intervention of principal in action of agent, 227, 318. 
 knowledge of agent, effect of, 223 — 225. 
 lunacy of principal, effect of, 199, 200, 212—214. 
 mercantile agent, when, 241. 
 misrepresentation, innocent, effect of, 225. 
 powers of, under Factors Act, 239 — 251. See Factors Act. 
 representations of agent, 219, 220, 273—276. 
 trover, 229. 
 
 Action by Third Party against Agent, 
 
 agent not generally liable to, where jjrincipal known, 283. 
 
 " as agent," effect of signing, 116, 117, 294. 
 
 authority of representation, as to, 284. 
 
 bill of lading, endorsement of, 299, 300. 
 
 broker, liability of, 298. See Broker. 
 
 charity, agent of, 290. 
 
 churchwardens, liability of, 289. 
 
 club, agent of, 289. 
 
 construction of power of attorney, liability for, 285. 
 
 contract, fonn of, liability of agent, 112—218, 300. 
 
 conversion, liability of agent for, 307, 309 — 311. 
 
 Conveyancing Act, 1881, s. 46 . . 294, 295. 
 
 custom, liability of agent by, 293. 
 
 damages, measure of, against agent, 288. 
 
 deed, liability of agent on, ] 12, 283, 294. 
 
 delivery under bill of lading, effect of, 300. 
 
 election, when to sue, 295, 296. 
 
 evidence of custom, 294. 
 
 foreign piincipal, liability of agent, 296, 297. 
 
 fonu of contract, liability of agent by, 300.
 
 INDEX. 357 
 
 Action by TmRD Party aqainst AQEyT— continued. 
 fraud for, of agent, 284, 311. 
 
 fund, agent not liable if third party relies on, 290. 
 indorsement of bill, effect of, 113, 271, 28G, 299, 300. 
 insanity of principal, liability of agent, 287. 
 insurance agent, liability of, 298, 304. 
 intei-yention in, of j)rincipal, 227, 318. 
 judgment against agent, effect of, 312. 
 kno-rni imncipal, agent not liable, 283, 293. 
 lading, bill of, endorsement of, 299, 300. 
 master of ship, 301. See Master. 
 mistake, liability of agent for, 286, 287. 
 mistake, payment to agent by, 303. 
 navigation commissioners' liability, 289. 
 negligence, 301 . 
 
 no principal, liability of agent, 289. 
 nonfeasance, liability of agent for, 307. 
 packer, liability for conversion, 310. 
 payment to agent, liability to third party, 301 — 303, 306. See 
 
 Payment to Agent. 
 princii^al, right of intervention in, 227, 318. 
 repayment by agent, when liable to, 302, 304, 305. 
 representation by agent, liability for, 284 — 286. 
 
 as to a fact, 285. 
 
 as to law, 285. • 
 
 signature of agent, when liable, 294, 295. 
 stakeholder, liability of, 302. 
 
 stockbroker, liability of, 300. See Stock Exchange. 
 telegraphic authority, effect of, 287. 
 trust, breach of, liability for, 301. 
 unknown principal, agent liable, 292, 296. 
 warrant of authority, 284, 285. 
 
 Action by Third Party against Principal, 
 acts of agent, liability of principal for, 272. 
 apparent authority, principal liable for agent's, 259, 261. 
 arrest by agent, 70, 71, 94, 279. 
 bailment, liability of principal, 279. 
 character, principal not liable for representations of agent as 
 
 to, 220, 221. 
 common employment, doctrine of, 281. 
 company cannot bo sued by shareholder for fraud, 276. 
 compulsory pilot, liability for, 281, 282.
 
 358 INDEX. 
 
 Action by Thihd Party against Principal— co/<i«"7i?(fcZ. 
 
 corporation, liability of, for agents, 276. 
 
 credit, unless exclusiye, given to agent, principal liable, 262. 
 
 deed, liability of jirincipal under, 270. 
 
 defences of principal, exclusiye credit to agent, 263. 
 
 delay in suing, effect of, 367. 
 
 elect, must, wbetber sue agent or principal, 263. 
 
 estopi^el, 367. 
 
 foreign princij^al, liability of, 268. 
 
 fraud, i)rincipal liable for agent's, 220, 273 — 277. 
 
 holding out, liability of principal tbrough, 260. 
 
 insui'ance club, liability of principal, 271. 
 
 judgment against agent, defence to principal, 18, 53, 264, 312. 
 
 judgment against agent, 18, 53, 264, 312. See Judgment. 
 
 manager of business, liability for acts of, 276. 
 
 mistake, liability of principal for agent's, 279. 
 
 negligence, 277, 278. 
 
 ovmer, where agent apparent, principal liable for acts, 261. 
 
 partner, sleeping, liability of, 261. 
 
 pilot, liability for, 281, 282. 
 
 privity of contract, when principal liable owing to, 105, 106, 
 107, 269. See Suh-Agent and Delegation. 
 
 promissoiy note, liability of principal for agent's, 270. 
 
 public-house, principal liable for act within manager's appa- 
 rent authority, 260, 261. 
 
 secret instructions cannot resti-ict principal's liability, 259. 
 
 settlement of account with agent, effect of, 265 — 268, 270. 
 
 shareholder cannot sue conqiany, 276. 
 
 sleeping partner, liability of, 261. 
 
 sue, no right to, principal, if ho has sued agent, 263. 
 
 Admiralty Court Act, 1861, gives lien to master, 188. 
 
 Admissioxs of Agent, when, bind principal, 219. See Be^resenta- 
 tions of Agent. 
 
 Advance of Agent, 
 
 factor no right of sale to rcpaj', 183. 
 
 gaming pui-poso cannot recover, 176 — 179. 
 
 illegal purpose, where agent knows of, cannot recover, 176. 
 
 improper, cannot recover, 175. 
 
 lion, agent has, in respect of, 181. 
 
 pledge gives no right of, 182,
 
 INDEX. 359 
 
 Advance of Agent — continued. 
 
 principal cannot intervene in action where there is, 227. 
 sale, when agent has right to, for, 183. 
 stoppage in transitu, gives agent right to, 1S8. 
 
 Adverse Interest, 
 
 agent having, can be declared trustee, 126. 
 cannot claim commission, 1 1 . 
 concealment of, by agent, gives princi^Dal right of election of 
 
 rescinding contract or recovering secret profit, 143. 
 contract negotiated by agent having, not enforced, 11, 127. 
 disclosure of, what, necessary, 145, 146. 
 duty of agent not to have, 125. 
 
 to disclose, 128, 143. 
 election, right of principal if agent has, 143. 
 factor, duty not to have, 125. 
 
 Agent, 
 
 account, duty to keep, 122 — 124, 152. And see Account. 
 
 action by or against. See Action. 
 
 admissions by, 219, 220. 
 
 adverse interest. See Adverse Interest. 
 
 appointment of, 23 — 33. And see Appointment. 
 
 by deed, 23, 24, 25. 
 
 by writing, 30—32. 
 arrest by, 70, 71. 
 
 articles of association, appointment by, 30. 
 auctioneer, 82—86. See Auctioneer. 
 authority of, 54 — 103. And see Authoritij. 
 bank, 93—96. 
 
 bankruptcy of agent, 215—218, 249—252. 
 bill broker. See Bill Broker. 
 borrowing, 65, 79, 97. And see Loan. 
 breach of trust, 301. 
 broker. See Broker. 
 
 commission, 120, 154. And see Commission and Remunera- 
 tion. 
 crimes of, 48. And see Illegality. 
 damages against, right of principal to, 134 — 136. 
 
 right of thii'd party to, 288. 
 death of, 214. 
 del credere, 92, 124, 158, 210, 318, See Del Credere,
 
 360 INDEX. 
 
 Agent — con tin u ed. 
 
 delegation by, 101 — 112. See Delegatimi. 
 
 delivery to, 89. 
 
 dismissal of, 156, 192, 193, 
 
 duties of, 112 — 131. And see Duties. 
 
 emergency, 32, 33, 81. 
 
 estoppel, 68, 69, 230—233. And see Estoppel. 
 
 evidence, 219, 220, 284, 294, 314. 
 
 factor, 227, 228. See Factor. 
 
 Factors Act, 239 — 251, and app. 325 — 329. And see Factors 
 
 Act and Tahle of Statutes. 
 fiduciary, 119, 139—141, 149, 150, 152, 253. 
 foreign, 67, 154. 
 forgery, 44. And see lUegality. 
 
 fraud, 96, 273—277, 311. And see Fraud and lUegality. 
 Frauds, Statute of, 24, 30, 32, 83, 87, 112, 133. And see Table 
 
 of Statutes. 
 gambling, 176 — 179. And see Gambling and Gaming. 
 Gaming Act, 177, 330. And see Tc(ble of Statutes. 
 gratuitous, 137, 138. 
 bawker is not mercantile agent, 239. 
 holding out, 64 — 68. And see Holding Out. 
 house, agent, 78. And see Commission and Remuneration. 
 implied powers of, 55. 
 
 incapacity for, and of, 12. See Adverse Interest. 
 indemnity of, 171 — 179. And see Indemnity. 
 independent contractor, 277. 
 infant, 11. 
 insanity of, 215. 
 insurance. See Insurance. 
 interested. See Adverse Interest. 
 joint agency, 18 — 22. 
 
 judgment against, 312. And see Judgment, 
 knowledge imputed, 222 — 225. 
 
 liability of principal to, 132—156. ^\jid see Liability, and 
 Principal. 
 third party to, 282 — 312. And see Liability, and 
 Third Party. 
 lion, 180—188. And see Lien. 
 Limitations, Statute of, 31, 152—154, 182. See Limitations, 
 
 Statute of, and Table of Statutes. 
 liquidator, 109.
 
 INDEX. 
 
 361 
 
 Agent — continued. 
 
 loan by, 32. And see Borrow and Loan. 
 loan to, Go. 
 lunacy of, 215. 
 manager, bank, 93 — 96. 
 marriage of, 215. 
 married woman, 11. 
 master of ship. See Ship. 
 
 mercantile, 239, 325. And see Factor and Factors Act. 
 misfeasance of, 137, 307, 308. 
 misrepresentation by, 225, 258, 284, 285. 
 mistake, 286. And see Mistake. 
 municipal. And see Corporation. 
 negligence, liability to principal, 120, 121, 136, 137. 
 of principal for, 277, 281, 282. 
 to tbird party, 307, 309. 
 negotiable instruments, effect of possession, 79 — 81. 
 nonfeasance, 307, 308. 
 onus of proof of negligence, 281, 282. 
 payment to, 301 — 305. See Payment and Autlioritij. 
 pilot, compulsory. See Pilot. 
 pledge by. See Autlioriiy ; Master f/ Bhii> ; and Mercantile 
 
 Agent. 
 powers of, 54—103. See Authority. 
 possessory lien, 180—188. See Lien. 
 public agent, 194, 320—324. 
 quantum meruit, rigbt to, 168, 169. 
 
 ratification of contract or act of agent. See Ratification. 
 remuneration of. See Remuneration. 
 revocation of authority. See Termination of Agency. 
 rights of agent against principal, 157, 190. 
 indemnity, 171 — 179. See Indemnity. 
 lien, 180—188. See Lien. 
 remuneration, 157 — 170. See Remuneration. 
 stoppage in transitu, 188—191, 298. See Factors Act, 
 s. 10 . . 328 ; Sale of Goods Act, 345, 346 ; Stoppage 
 in transitu, 
 right of principal against agent, 132 — 156. See Rights of Prin- 
 cipal against Agent ; Sale of Goods Act ; and Table of Statutes. 
 right of agent against third parties. See Right of Agent 
 
 against Third Parties. 
 right of third parties against agent. See Lialility of Agent to 
 Third Parties.
 
 362 INDEX. 
 
 Agext — cordin ued. 
 
 sale by, 170. See Authority anii Remuneration. 
 
 sale by mercantile agent. See Mercantile Agent. 
 
 servant distinguisliecl from, 2, 75, 273, 277, 278. See Servant. 
 
 set-ofi, -^hen arises, 231—233. 
 
 set-ofP, •^•lien available against principal, 235 — 238, 242. 
 
 signature by, 63, 113—118, 287, 297, 318. 
 
 special, distinction between general and special, 54. 
 
 stoppage in transitu, rigbt to, 188 — 191, 248. See Factors Act, 
 
 328 ; Sale of Goods Act, 345, 346. 
 sub-agent, liability to. See Addendum. 
 telegrapbic authority, effect of, 287. 
 tort of, when agent liable for, 53, 307—309, 311. 
 principal liable for, 277 — 280. 
 
 Alien, can be principal, 11. 
 
 ALLOTME^'T OF Shaees, caunot be delegated. 111. 
 
 AiTBIGUOrS, 
 
 authority, effect of giving, 55. 
 
 signature, evidence admitted to explain^ 117. 
 
 A>t?ecedext, 
 
 debt, pledge to secure, gives no right to third party, 238, 244. 
 liability, pledge to secure, gives no right to third party, 244, 
 245. See Factors Act, s. 4. 
 
 ApPAEEXT ArTHOEITY, 
 
 agent apparent owner, liability of princijial, 260. 
 
 holding out, liability of principal, where there was, 61, 62. 
 
 where there was not, 261, 262. 
 principal bound by acts within, oo, 56, 61, 62, 66, 68, 228, 
 259—262. 
 
 Appeaeaxce, solicitor as general agent entitled to enter, for 
 principal, 103. 
 
 Appoetion, no right of agent to apportion damages, resulting from 
 wrong, 119. 
 
 Appeextice, 
 
 acceptances, proceeds of cargo to meet, 218. 
 
 assent of agent, effect of, 306. 
 
 remuneration of, 167. 
 
 time of, belongs to masj^er, and cannot suo for seryices, 125, 319.
 
 INDEX. 363 
 
 Appropriation, 
 
 bankruptcy in, effect of, 218. 
 
 cargo, of, to meet acceptances, 218. 
 
 factor can bring trover if there has been an, 320. 
 
 goods, if there has been, effect of, 1320. 
 
 sale of goods, effect on, 337. See Sale of Goods Act, s. 18, 
 
 rule 5. 
 trover, factor can bring, if there has been, 320. 
 
 Arbitration, insurance agents have power to refer to, 56. 
 
 Arbitration Act, 1889... 150. 
 
 accounts can be referred under, 150. 
 
 Arbitrator, 
 
 delegate, cannot, duties, 108, 109. 
 skill, not liable for want of, 154. 
 
 Architects, 
 
 British, Institute of, rules of, effect of. See Addendum. 
 commission of, 159. 
 
 Arrest, 
 
 bank, sub-manager of, no authority to, 94. 
 
 principal liable for, when within scope of agent's authority, 
 
 71, 279. 
 principal not liable, when not within scope of agent's authority, 
 
 70, 279. 
 
 Articles of Association, 
 
 agent cannot sue on appointment, by, 30. 
 effect of, 69. 
 
 " As Agent," effect of signing, 116, 117, 294, 295. 
 
 Atilletic Sports, authority of general manager of, 6o. 
 
 Attorney, Power oe, 
 
 act done in pui'suanco of, when not affected by banla-uptcy of 
 
 principal, 207. 
 construction of, 59, 60. 
 Conveyancing Act, pro-\asions as to, 199, 200, 206, 207, 226, 
 
 291. 
 death of donor, when does not affect, 207. 
 evidence in, to vary, not admissible, 60. 
 joint eft'ect of, 18. 
 
 lunacy of donor, when does not affect, 207. 
 married women, appointment of agent by, 11,
 
 364 INDEX. 
 
 Attorney to prosecute action, infant and married ■woman cannot 
 be, 12. 
 
 Attorney. See SoUcitor. 
 
 Auction, 
 
 effect of advertising, 84, 85. 
 
 provisions as to, 3-49. See Sect. 58 of Sale of Goods Act. 
 
 Auctioneer, 
 
 agent for botli parties, 82. 
 
 autliority depends on conditions of sale, 83. 
 
 cheque, may take, 75 — 77. 
 
 cheque, may receive payment of deposit by, 75. 
 
 commission, when not entitled to, 121. 
 
 conditions of sale, effect of, 83. 
 
 contract, can sue on, 82. 
 
 conversion, liability for, 311. 
 
 credit, no right to give, 82. 
 
 delegation of authority, 86. 
 
 deposit, power to receive, 75. 
 
 distress, when authority to protect goods from, 8-1. 
 
 effect of entrusting, 228, 229. 
 
 entrusting, what is, 241. 
 
 estoppel, entrusting goods to act as, 228. 
 
 indemnity, entitled to, against principal, 171. 
 
 what must be proved, 173. 
 interest in goods, 82, 184. 
 liability of, to thii'd party, 84. 
 lien of, 82, 184. 
 memorandum of sale, what necessary, 333. See Sects. 3 and 4 
 
 of Sale of Goods Act. 
 negligence of, 121. 
 
 negotiation of terms, no authority, 201. 
 payment, when not entitled to, 121. 
 private treaty, power to sell by, 85. 
 property in goods, 82. 
 protection of goods, authority to, 84. 
 
 when ceases, 84. 
 revocation of authority, effect of, 85. 
 sample, necessity for, 333. Seo Sects. 3 and 4 of Sale of Goods 
 
 Act. 
 Statute of l-'rauds reiiciilod. See Schedule to Sale of Goods Act, 
 
 352.
 
 INDEX. 365 
 
 A.VCT10NEEH— continued. 
 sue, can, S2. 
 
 termination of authority, 201. 
 title, no authority to deal with terms as to, 84. 
 warrant, no authority to, 82. 
 
 written memorandum, when necessary, 333. Sec Sects. 3 and 4 
 of Sale of Goods Act. 
 
 Auction Eoom, effect of sending goods to, 67, 241. 
 
 Authority of Agent, 
 
 action, to commence, 103. 
 
 compromise, 78, 102. 
 defend, 103. 
 ambiguous, effect of, 55. 
 
 reference to, 56. 
 arbitrator, 108, 109. 
 arrest, 70, 71, 94, 279. 
 articles of association, effect on, 69. 
 attorney, power of, construction of, 59, 60. 
 auctioneer, 82 — 86. See Auctioneer. 
 bailiff, 56. 
 
 bank, manager of, 93 — 96. 
 barrister, of, 100, 101. 
 bill-broker, of, 93. 
 bill of exchange, to draw, 56. 
 
 take payment by, 73. 
 borrow, none, 79, 97. 
 broker of, to receive payment, 77. 
 
 sell in own name, 86 — 92. See Brol-er. 
 
 cheque, to take, 74 — 77. 
 
 clerk of, to receive payment, 78. 
 
 company, 68. 
 
 compromise action, 78. 
 
 construction of, 55, 56, 59. 
 
 " contango," dealing in, 81. 
 
 contract, to rescind, 57, 90. 
 
 counsel, of, 100, 101. 
 
 criminal proceedings, to take, 7 1 . 
 
 custom, effect on, 57, 58, 60. 
 
 delegate, 104 — 112. See DeJegati'on. 
 
 deposit, form in which to bo received, 75, 77. 
 
 domiiins litis, 79.
 
 366 ixDEX. 
 
 AriHORITT OF AGE^T — continued. 
 director, of, 69. 
 discretion to use, 77. 
 emergency, owing to, 81, 82. 
 entrusted with negotiable iastruments, 79. 
 
 scrip, SO. 
 estoppel Ly, 68. 
 extension of, 61. 
 factor, 65, 92, 93. See Factor. 
 foreign country, 67. 
 holding out, effect of, 61, 67. 
 house agent, of, 78. 
 indivisible exercise of, effect of, 118. 
 insurance agent, of, 56. 
 
 insurance broker, authority of, to make settlement, 72, 88. 
 intention of pai-ties, how affects, 65. 
 journey, to take, 103. 
 judgment, to use, 77. 
 law, when question of, oQ. 
 loss, settlement of, 56. 
 master of ship, of, 96 — 100. See Master. 
 
 charter, to sign, 97. 
 
 make contracts for employment of ship, 96. 
 
 sell ship, 99. 
 
 to borrow, 97. 
 memorandum of association, effect on, 69. 
 mercantile agent. See Factors Act and Mercantile Agent. 
 money lender, of, 81. 
 necessity, owing to, 81. 
 negotiable instruments, to deal with, 79, 80. 
 none, to sell in own name, 88. 
 pay third party, 56. 
 pajTuent, form of, by biU of exchange, 73. 
 
 cheque, 74 — 77. 
 paj-ment, to receive, rule as to, 72. 
 per procuration, inquiry puts third party upon, 63, 64. 
 pledge to, 79. 
 porter, of, 70. 
 
 power of attorney, construction of, 59, 60. 
 principal, as between, 62. 
 private instructions, 58, 259. 
 private treaty, to sell by, 85.
 
 INDEX. 367 
 
 AUTHOEITY OF Agent — continued. 
 promissoiy note, to take, 89. 
 protection of principal's property, 70. 
 ratification of, 34 — 53. 
 receipt, to give, 69. 
 receive payment, 71 — 77. 
 refer to arbitration, 56. 
 rescind contract, 57, 90. 
 revocation of, 192 — 218. See Eevoccdiort. 
 scrip, to (leal with, 80. 
 sell, to, negotiable instruments, 79. 
 private treaty, by, 85. 
 scrip, 80. 
 servant of, 70. 
 
 rule as to payment to, 75. 
 settlement, to make, in account, 71. 
 ship, master of, 96 — 100. See Master. 
 signature, per procuration, effect of, 63. 
 sign contract, house agent, not, 78. 
 solicitor, of, 69, 78, 101—103. 
 stockbroker, 57. 
 
 country, 72. 
 Stock Exchange, rules of, 57. 
 
 stoppage in transitu, 33, 188—191, 2-18, 328, 3-15, 346. 
 termination of, 192 — 218. See Revocation, 
 tests of, 64. 
 
 to be paid by thii-d party, 71 — 77. 
 thii'd party, as regards, 62. 
 ultra vires, when it is, 68. 
 wife, 62. 
 written authority, extension of, 6. 
 
 Bailiff of County Court, must be appointed by County Coui-t 
 judge, 12. 
 
 Bailment, liability of bailee, 279. 
 
 Bank, 
 
 advance by, to agent, right of set-off, 236. 
 arrest, liability for, 71 — 94. 
 character, representations as to liability of, 94. 
 deceit, liability for, 96.
 
 368 INDEX. 
 
 B^VJ^K — continued. 
 
 deed, lien on, 186. 
 
 exchange of securities for loan, effect of, 245, 327. 
 
 fiduciary relationsMp, not between customer and, 149. 
 
 foreign branch, bow affected by winding-up order, 208. 
 
 fraud of manager, liability for, 96. 
 
 general lien, 180, 185, 
 
 realization of, when possible, 186. 
 lien on securities, 185. 
 
 bow affected by exchange of securities, 245, 327. 
 realization of, 186. 
 lien of, 180, 185. 
 manager, authority of, 
 arrest, 71, 94. 
 discount bills, 96. 
 
 liability for representations of, 94, 95. 
 money lender, lien for advance to, 236, 237. 
 plate, no lien on, if deposited for safe custody, 185. 
 pledge, tortious, no lien, 185. 
 
 property of, how affected by winding-up order or petition, 209. 
 safe custody, no Hen on articles deposited for, 185. 
 scrip, lien on, for advances upon, 185. 
 set-off, right of, 80, 185. 
 
 shares, sale of, when agent not entitled to commission on, 165. 
 tortious pledging, no lien, when, 185. 
 winding-up order, effect on foreign agent, of, 208. 
 
 Banker, no fiduciary relationship exists between customer and, 149. 
 
 Bankruptcy of Agent, 
 
 appropriation before, effect of, 218. 
 
 authority to receive money for principal terminated by, 215. 
 
 Bankruptcy Act, 1883, s. 44.. .215. 
 
 indemnity, no right to have against consequences of, 173, 174. 
 
 mutual credit in, 210, 211. 
 
 property of agent passes to trustee, 215. 
 
 principal passes to trustee if agency not notorious, 
 217. 
 removal of, 215, 216. 
 reputed ownership, doctrine as to, 217. 
 set-off, right of, in, 210. 
 
 trustee, removal of , Slstacctionof Conveyancing Act, 1881... 215. 
 147t]i section of Bankruptcy Act, 1883... 216.
 
 INDEX. 369 
 
 Bankruptcy of Prixcipai>, 
 
 act dono in pursuance of power of attorney, wlicn not affoctod 
 
 by, 207. 
 authority of agent revoked by, 207. 
 commission agent entitled to prove in, 170. 
 del credere agent, right to set off in, 210. 
 insurance broker cannot settle losses after, 209. 
 lien of agent, effect on, 209. 
 mutual credits in, 211. 
 
 power of attorney, when act done under not affected by, 207. 
 property of principal, what vests in trustee, 212. 
 revocation of authority by, 207. 
 settlement of losses by insurance broker after, 209. 
 
 Barrister, 
 
 authority of, 100, 101. 
 gratuitous agent, 137. 
 negligence, not^liable for, 137. 
 nonfeasance, not liable for, 137. 
 
 Bill Broker, 
 
 antecedent debt of, right to pledge principal's bills for, 92. 
 
 definition of, 91. 
 
 duties of, 130. 
 
 pledge, right to, 91, 92. 
 
 Bill of Exchange, 
 
 acceptor, HabiHty of , 113, 114, 300. 
 
 payment by, clogged with condition, 55. 
 agent may not take in payment, 73. 
 
 when authority to draw, 56, 113. 
 attorney, power of, when authorized, making and accepting, 
 
 GO, Gl. 
 authority of agent to receive payment clogged with condition, 
 55. 
 does not include power of negotiating, 60. 
 bailiff, farm, no authority to draw, 56. 
 bill broker, duties of, as to, 130. 
 Bill of Exchange Act, sect. 23... 271. 
 clerk, di-awn by, 110. 
 company, when liable on, 114. 
 when can accept, 6. 
 contract by, with whom, 113, 271- 
 W. B B
 
 370 
 
 I>'DEX. 
 
 Bill of Exchange — cordinv.ed. 
 delegation of signing, 110. 
 director, liability on, 114. 
 farm bailiff, no authority to draw, 56. 
 general powers, wben include power to draw or accept, 59, 60, 
 
 260. 
 indorsement, effect of, 113. 
 liability of agent on, 113, 270, 271, 300. 
 lien in respect of, 181. 
 
 manager of business, right to draw or accept, 260. 
 negotiation of, authority to receive payment does not authorize, 
 
 60. 
 partner, liability on, 60. 
 payment by, when bad, 73. 
 
 clogged with condition, 55. 
 power of attorney, when authorizes negotiation of, 61. 
 railway company cannot accept, 6. 
 signature of clerk, when sufficient, 110. 
 wife, drawn by, liability of husband on, 113. 
 
 Bill of Ladixg, 
 
 agent indorsing, liable, 299. 
 
 assignee of, receiving goods under, liable for freight, 299. 
 
 Bill of Lading Act, 1855 . . 299. 
 
 consignee receiving goods under, liable for fi-eight, 291. 
 
 demand of delivery, evidence of contract to comply with terms 
 
 of, 300. 
 disposition by mercantile agent, 243, 326. 
 document of title, 240. 
 
 fi-eight, person accepting goods under, liable for, 299. 
 liability of master for goods, in spite of exception in, 130. 
 lien on bill falling due, 181. 
 
 master no authority to sign, unless goods shipped, 100. 
 mercantile agent, pledge by, 243, 245. See Factors Act, s. 2, 
 
 sul-s. 2... 326; s. 10... 248, 328. 
 negotiation of, 249. 
 pledge by mercantile agent, 243, 245. See Factors Act, 
 
 88. 2, 3. ..326. 
 possession of , by mercantile agent, effect of, 243. See Factors 
 
 Act, 8. 2... 326. 
 stoppage in traimtu, defeated by transfer of, 190, 248. See 
 
 Hah of Goods Act, ss. 44, 45... 345, 346. 
 transfer of, effect of, 248, 190.
 
 INDEX. 371 
 
 BonX fide Dealing, what is, 242. 
 
 BORKO'W, 
 
 agent has no authority to, G4, 79. 
 manager of business no authority to, Qb. 
 master of ship may, 97. 
 
 Bottomry Bond, 
 cargo on, 98. 
 
 creature of necessity, 98, 99. 
 clerk, signature by, 110. 
 freight, on, 98. 
 master, authority to give, 98. 
 ship, 98. 
 validity of, 99. 
 
 Bought and Sold Notes, 
 
 broker's book, entry in, 89. 
 
 commission, stockbroker's right to, though not sent, 168. 
 
 conflict between bought and sold notes, 89. 
 
 delegation of signature, 110. 
 
 disagreement of, effect of, 87. 
 
 entry in broker's book, original, 89. 
 
 Inland Eevenue Act, provision as to, 168. 
 
 Sale of Goods Act, provision as to, sects. 3, 4... 333. 
 
 signature of, 110. • 
 
 Branch Bank, winding-up order on head office, effect on, 208, 209. 
 
 Breach of Trust, liability of agent for, 308. 
 
 Bribing Agent, 
 
 principal can elect whether to rescind contract or sue for bribe, 
 
 143. 
 remedies of principal, 256. 
 right of action against person, 255, 256. 
 
 Broker, 
 
 action against, 88, 91, 117, 316. 
 
 action by, against third party, 91, 313, 316. 
 
 agent, of whom, 86. 
 
 B B 2
 
 372 
 
 INDEX. 
 
 Broker — contin ued. 
 
 authority of, cannot sell in his own name, 88, 126. 
 cannot delegate, 89, 110. 
 cannot vary terms of payment, 90. 
 to act according to custom of market, 90, 91. 
 to receive payment, 90. 
 to sign bought note, 87. 
 to carry out instructions cy pres, 91. 
 bill broker, 91, 92, 130. 
 bought and sold note, duty as to, 87. See Bought and Bold 
 
 Note. 
 business of, 4, 86. 
 
 clerk cannot sign bought or sold note, 110. 
 commission of, 86. 
 
 cannot take from third party, 3, 265. 
 
 exception, 129. 
 principal's right to dismiss, if takes, from third 
 party, 140. 
 contract, liability on, 91, 117. 
 
 note of, must execute, 168. 
 rescission of, 87. 
 variation of terms of, 87. 
 country broker, set-ofi against, 72. 
 credit, may sell on, 89. 
 custom, effect on contract of, 88, 90, 91. 
 delegation by, 89, 110. 
 delivery of goods, duty as to, 89. 
 dismiss, principal may, if takes bribe, 140, 
 duty of, 86, 87, 89, 130. 
 employment by, when, 86. 
 factor distinguished from, 126. 
 kinds of — 
 
 bill broker, 91, 92, 130. 
 
 corn broker, 89. 
 
 insurance broker, 89. See Insurance. 
 
 ship broker, 90, 107. 
 
 stock broker, 88, 89. 
 
 set-off against country broker, 72, 235, 236. 
 wood broker, 313. 
 wool broker, 88. 
 liability on contract, 88, 91, 117, 316. 
 lion of, 180, 313.
 
 INDEX. 373 
 
 Beoker — continued. 
 
 money, duty to receive payment in, 89. 
 particular lien, 180. 
 payment, duty as to, 89, 
 
 authority to receive, 90. 
 
 variation of terms of, 90. 
 l^ossession, has not, 4, 126. 
 promissory note, no authority to take, 89. 
 rescission of contract by, 90. 
 
 revenue laws, broker must execute contract note by, 168. 
 sale on credit, 89. 
 set-off, 72, 235, 236. 
 ship broker, duty of, 90. 
 
 sold note, duty as to, 87. See Bought and Sold Notes. 
 variation of contract, no right to, 90. 
 when can. See Addendum. 
 
 Becker's Book, 
 
 conflict between bought and sold note, 89. 
 
 entry in, 89. 
 
 signature of entry not essential, 89. 
 
 Building Lease, 
 
 authority to sell, what includes, 59. 
 
 principal liable for act of agent if apparent owner of, 260 — 262. 
 right of action for injury to, by slander of agent, 255. 
 when commission payable in case of, 170. 
 
 Buyer, 
 
 breach of contract, remedy for, 348. 
 damages, when entitled to, 347. 
 definition of, 350. 
 delivery, definition of, 350. 
 
 refusal of, 347. 
 disposition when in possession, 347, 348. 
 Factors Act, s. 10... 247— 328. 
 
 pledge by, 346. See Sale of Goods Act, s. 47... 346. 
 possession, effect of, 247, 328. 
 remedies of, 
 
 breach of warranty, 348. 
 
 damages, 347, 348. 
 
 special, 349. 
 
 specific performance, 348.
 
 374 INDEX. 
 
 Buyer — contin ued. 
 resale by, 
 
 Factors Act, s. 10... 247, 328. 
 Sale of Goods Act, s. 47... 346. 
 See Seller. 
 Scotland, proTision as to, 349. 
 
 Captaix of ]\r.A\-or-WAE, not liable for negligence of cre-vr, 323. 
 Captain- of Ship, authority of, 96 — 100, 130. See Master, 
 
 Caego, 
 
 appropriation of proceeds of, effect of, 218. 
 
 mode of selling, 100. 
 
 mortgage, right of master to, 99. 
 
 right of master to sell, 99. 
 
 Bupercargo, person in charge on ship of, 92. 
 
 Cashiee, 
 
 custody for, effect of, 1S9. 
 delivery to, effect of, 342. 
 
 by mistake, effect of, 1S9. 
 HabiUtyof, 121. 
 
 Sale of Goods Act, ss. 45, 46... 345, 346. 
 stoppage in trciimtu, eff'ect of, possession by, ISS, 159, 345, 346. 
 
 Causa Causaxs, agent must be, to entitle to commission, not 
 causa proximo , 160, 163. 
 
 Ceeteficate of Waeehousekeepee, not document of title, 240. 
 
 Chaplain', can be appointed by majority, 19. 
 
 Chaeacter, Eeprese>tatioxs as to, 
 agent cannot bind principal by, 31. 
 bank, not liable for manager's, 220, 221. 
 principal, not liable for agent's, 220. 
 See 9 Geo. 4, c. 14, s. 6. 
 
 CnARITY, 
 
 liability of agent for, 290. 
 
 committee of, 14.
 
 INDEX. 375 
 
 Charter-Paety, 
 
 commission in procuring, whon agent entitled to, 158, 161, 
 164, 166. 
 
 managing owner, duty to procure, 130. 
 commission on, 158. 
 
 master can delegate signature of, 106. 
 
 skipbroker not entitled to commission unless lie procures, 
 166, 167. 
 
 signature of, 114. 
 
 unintelligible, no commission on, 164. 
 Cheque, 
 
 agent, wben may take, 73. 
 
 auctioneer may take, for deposit, 75. 
 
 deeds ought not to be parted vdth. for, 77. 
 
 deposit may bo paid by, 75 — 77. 
 
 deputy steward, authority to take crossed, 74. 
 
 form of cheque, 77, 230. 
 
 liability of agent for taking, 136. 
 
 payment by, when good, 230. 
 
 sale of land, payment for, ought not to be taken by, 77. 
 
 solicitor, when ought not to take, 77. 
 See Payment. 
 Clerk, 
 
 agreement with, is agreement with mercantilo agent, 246, 327. 
 
 authority to receive payment, 78. 
 
 Factors Act, s. 6... 246, 327. 
 
 mercantile agent is not, 239. 
 
 agreement with clerk of, 246, 327. 
 
 payment to, effect of, 78. 
 
 Club, 
 
 agent of, liability of, 289. 
 
 committee, liability of, 14, 15, 65, 289. 
 
 credit, dealing on, 65. 
 
 legal position of, 22, 66. 
 
 liability of members of, 22. 
 
 not partnership, 22. 
 
 rules of, 65. 
 
 Commerce, 
 
 relaxation of rule that joint authority must be executed by all 
 
 for benefit of, 21. 
 trade corporations, rule as to appointment of agent, 28, 29.
 
 376 
 
 INDEX. 
 
 Commission, 
 
 adverse interest, agent haying, not entitled to, 1G7. 
 
 agent, wliat, must prove to entitle himself to, 159. 
 
 building land, when commission payable, 170. 
 
 del credere, 124, 155, 158, 210, 313, 318. 
 
 failure of agent, when due to principal, does not deprive agent 
 
 of commission, 159, 165. 
 future orders, when entitled to, on, 163. 
 gaming contract, no commission on, 177 — 179. 
 house agent cannot bind principal by handing paper, 162. 
 illegal contract, no commission on, 168. 
 introduction, when commission due on, 164, 165. 
 orders, future, when entitled to, on, 163. 
 paper handed by house agent does not bind piincipal, 162. 
 payment of, when due, 158, 170. 
 renewal of lease, when commission on, 162. 
 ship's broker only entitled to, when successful, 162. 
 
 not entitled if charter-party unintelligible, 164. 
 unfair contract, no commission on, 166. 
 unintelligible charter-j^arty, no commission on, 164. 
 when earned, 
 
 agent not entitled to commission on charter-party procured 
 
 through others, not sub -agents, 161. 
 agent must have done his best, 167. 
 
 agent must have been causa causans, not causa proxima, 161. 
 agent must prove brought about result, 160. 
 hinding, contract must be, 159. 
 business must have been done as work, not as casual act, 
 
 159. 
 introduction of pui-chaser, who afterwards buys at auction, 
 
 160. 
 loan on different terms, 158. 
 partnership articles exchanged, 158. 
 partnership resulting from loan, 162. 
 result too remote, 
 
 card-giving to view hoiise, 160. 
 
 re-letting of house, if not owing to renewal clause, 
 162. 
 shares on sale of, if not sold through liim, 165. 
 where object of agency effected through casual conversation 
 
 by third party, 161. 
 work must have been done by agent himself or sub-agent, 161.
 
 INDEX. 377 
 
 Commission — continued. 
 
 when earned — continued. 
 
 work must liavo been done within scope of agency, 
 
 agent employed to let cannot claim on sale, 163, 164. 
 And see Oillott v. Lord Aherdare, 1892, 9 Times, 12. 
 principal cannot bring work outside agency to cheat 
 agent of, 164. 
 work must have been done properly, 
 
 no commission on casual introduction at dinner, 159. 
 on introduction to another agent after failui-e, 159. 
 taking trouble not sufficient to entitle to, 164. 
 unintelligible charter no commission on, 164. 
 work must have been completed, &c., 1. 
 
 loan must have been procured on terms requested, 158. 
 partnership articles must have been signed, 158. 
 title of house must have been approved of, 158. 
 work must be done in reasonable time, 158. 
 
 no commission on public-house sold year and a-half 
 after, and not through agent, 158. 
 
 Commission Agent, account of, 123. 
 
 Commissioners, Navigation, liability of, 289. 
 
 Committee, 
 
 athletic club, liability of, 65. 
 
 charity, of, 14, 290. 
 
 executive, of club, 289. 
 
 liability of, 14, 15, 65, 289. 
 
 provisional, 14. 
 Common Employment, doctrine of, 280. 
 
 Company, 
 
 act of agent, liability for, 42. 
 
 deceit, 95, 96. 
 action against shareholders, when cannot bring, 276, 277. 
 appointment of agent, 28, 29. 
 arrest by several, liability for, 71, 94, 279. 
 Articles of Association, effect of, 69. 
 
 provision as to use of seal, 30. 
 bill, when can accept, 6. 
 
 liability on, 114. 
 debentures, liability for unauthorized issue of, 274, 275. 
 deceit action, 95, 96. 
 delegation of powers, 5, 6, 111.
 
 378 INDEX. 
 
 CoirPA>-T — continued. 
 
 directors, powers of, 69. 
 
 ratification of acts of, 42, 43. 
 
 representations of, 222. 
 fraud, liability for, 95, 96, 273, 277. 
 holding out by, 42, 69. 
 
 knoTvledge of agent, ■when binds, 224, 225, 243. 
 Memorandum of Association, effect of, 69, 
 
 provision as to sealing, 30. 
 promoter, 
 
 fiduciary relationship of, 144, 145. 
 
 ratification of contract of, 36, 37, 
 railway, 
 
 acceptance of bill, 6. 
 
 arresting servant, liability for, 71, 279. 
 
 delegation of powers, 5, 111. 
 ratification by, 36, 37, 47. 
 
 shareholder, 42, 43. 
 representative of director, when bound, 222. 
 
 secretary, 274, 275. 
 seal, who can afiB.x, 30. 
 secretary, representations by, 274. 
 shareholder, when cannot sue, 276, 277. 
 
 ratification by, 43. 
 t'.lfra vires, what is, 5, 69, 111, 275. 
 
 CoiTPEXSATiox, when principal liable to pay, for representation of 
 agent, 225. 
 
 CoMPXJLSORY Pilot, liability of principal for, 281, 282. 
 CoNCEALiiEXT OF Agen'T, effect of, on right of principal, 129. 
 
 COXDITIOXS, 
 
 breach of, may be treated as breach of warranty, 334. 
 
 remedy for, depends on construction of contract, 335. 
 time, as to, not essence of contract unless made so, 334. 
 warranty, when, for breach of which gives right to damages, 
 335. 
 
 CoxDino'S OF S.VLE, test of auctioneer's authority, 83. 
 CoxDUCT, ratification by, 34 — 11.
 
 INDEX. 379 
 
 Consideration, 
 
 necessary for validity of pledge or sale, Factors Act, s. 5... 243, 
 327. 
 delivery of document of title, 245. 
 goods, 245. 
 
 negotiable security, 245. 
 pledge good up to amount of consideration, 245, 327. 
 
 Consignee, 
 
 agent for, when can sue, 314. 
 delivery to, by mistake, transfers no title, 189. 
 lien for advances to consignor, 246. 
 stoppage in transitu, 188, 189, 345, 346. 
 
 CONSIGNOB, 
 
 lien for advances to, 246, 327. 
 
 possession by, effect of, 246, 327. 
 
 sldj)ment by owner in name of, effect of, 246, 327. 
 
 OONSPIEACY, principal's right of action against third party if, pre- 
 vents agent's acting for him for, 255. 
 
 CONSTRTTCTION, 
 
 ambiguous signature, 55, 56, 89, 118. 
 attorney, power of, 59, 60. 
 authority, 55. 
 signatui-e, 
 
 agent in his own name, 116. 
 
 as agent, 116, 117, 294, 295. 
 
 per prociu'ation, 63. 
 
 Constructive Knowledge, 129, 224, 225. 
 
 Contango, right of stockbroker when transactions are on, 81. 
 
 Contract, 
 
 agent, when can sue on, 
 
 advances, when made, 318. 
 custom by, 293. 
 del credere, agents, when, 318. 
 foreign principal, where, 318. 
 illegal, 319. 
 lien, ha-sdng, 313. 
 principal, disclosed, 315, 
 principal, undisclosed, 314.
 
 380 INDEX. 
 
 Contract — continued. 
 
 as agent, effect of signing, 116, 117, 294, 295. 
 auctioneer can sue on, 82. 
 broker, right to sue on, 87, 91, 117, 168. 
 coiTupt, no action under, 319. 
 deed, by, vbo can sue on, 225, 226, 291, 292. 
 factor can sue, 93, 318. 
 illegal, 319. 
 
 insurance broker can sue on, 316. 
 lien, baying, can sue on, 313. 
 married woman, power of making, 10. 
 note of, broker must execute, 168. 
 person "svbo signs p?'/m« /ac/e liable, 116. 
 principal, wben, can sue on, deed by, 225, 226, 270. 
 
 wben in bis name, 219. 
 cannot sue on, if agent contracted as prin- 
 cipal, 220, 291, 292. 
 public, agent of, bow enforced, 316. 
 representation of agent, 219, 220. 
 stockbroker can sue on, 298. 
 
 CONTBACTOE, iKDEPElOiENT, 
 
 liabiUty of, 277, 278. 
 
 unlawful act of, wben principal liable for, 278. 
 
 CoxTEOL, test of relation of master and servant, 278. 
 
 CONVERSIOIf, 
 
 agent, wben liable to principal for, 138, 253. 
 
 wben liable to owner of goods for, 367. 
 
 rigbt to bring action for, 320. 
 auctioneer, liability for, 311. 
 definition of, 253, 309. 
 packer not liable for, 310. 
 
 possession, agent in, entitled to bring action for, 320. 
 principal, rigbt to sue for, 251. 
 test of, 311. 
 
 Conveyance, receipt in, authority to solicitor to receive pay- 
 ment, 69. 
 
 Conveyancing Act, 1881, 
 
 attorney can execute deed in his own name, sect. 46... 226, 291. 
 married woman can appoint agent to execute deed, 11. 
 roccii)t in deed, solicitor in-oducing, sect. 56... 69. 
 revocation of power, sect. 47... 206, 207.
 
 INDEX. 381 
 
 Conveyancing Act, 1882, 
 ii-revocable, sect. 8... 199. 
 
 for a fixed time, sect. 9... 200. 
 
 Convict cannot be principal, 11. 
 
 Co-owner, 
 
 (listinguislied from joint principal, 15, 16, 17. 
 liability of, for acts of other owners, 17. 
 
 for act of managing owner, 16, 17. 
 
 Conviction, offender, of, revests property in owner, 339. 
 
 Co-partner, 15. 
 
 Corporation, 
 
 action for deceit, when lies, 96. 
 
 appointment of agent by, non-trading, 24 — 27. 
 
 trading, 28, 29. 
 contract by, 28. 
 
 fraud of agent, liability for, 95, 27'4— 276. 
 Public Health Act, provision as to, 26. See Company. 
 
 Corrupting Agent, principal right of action for, 255, 256. 
 
 Costs of Action, 
 
 agent, when can recover, from principal, 172. 
 principal, when can recover, from agent, 136, 137. 
 third party, when can recover, from agent, 288. 
 
 Counsel, 
 
 authority of, 100, 101. 
 gratuitous agent, 137. 
 negligence, liability for, 137. 
 non-feasance, not liable for, 137. 
 
 Country Broker, Loudon broker cannot set off debt of, against 
 principal, 72. 
 
 Credit, 
 
 auctioneer no right to give, 82. 
 
 broker may sell on, 89. 
 
 conxmittee of club no authority to deal on, 65. 
 
 exclusive credit given to agent, effect of, 262. 
 
 factor may sell on, 92. 
 
 Cross Claims, set off of, 234.
 
 382 INDEX. 
 
 Custom-, 
 
 agent may be liable by, 293, 294. 
 
 liable to principal if, does not adhere to, 63. 
 
 not liable if, adheres to, 59. 
 alteration of contract cannot alter, 59. 
 authority not varied by, 60. 
 commission, amount of, fixed by, 158. 
 Leeman's Act, of ignoring, effect of, 59, 196. 
 mode of performance of contract, bow affects, 57. 
 
 foreign courts, of, authority to conform to, 67. 
 
 fruit market, 294. 
 
 hop market, of, 294. 
 proof of, 294. 
 reasonable, must be, 59. 
 solicitor, 283. 
 stockbroker, 57, 58, 283. 
 Stock Exchange, closing accounts, 175. 
 
 genuineness of documents, 176. 
 Leeman's Act, of ignoring, 196. 
 unreasonable, how far binding on principal, 174, 173, 196. 
 ■warrant, when agent right to, by, 63. 
 wool trade, of, 88. 
 
 Damages, 
 
 agent liable for, to principal, 
 
 costs of unsuccessful action, 137. 
 
 measure of, 134, 135. 
 
 refusing to act, 201. 
 
 violation of duty, 133. 
 agent liable to third party, 
 
 breach of authority, 288. 
 
 costs of action, 288. 
 
 measure of damages, 288. 
 buyer, when entitled to, 347 — 349. 
 gratuitous agent, not liable for, 137. 
 principal liable to agent, 
 
 by revocation of authority, 193, 204. 
 
 by non-oraploymcnt, 202, 203. See Indemnity. 
 seller, when entitled to, 347. 
 
 Deatji of Agent, effect on sub-agont, 194, 215.
 
 INDEX. 383 
 
 Death of Principal, 
 
 agent not liable for exercise of authority before knowledge of, 
 
 204. 
 authority coupled with interest, not affected by, 206, 207. 
 Conyeyancing Act, 1881, s. 47, protects agent, 155. 
 
 1882, ss. 8 and 9, irrevocable power, 199, 
 200. 
 irrevocable power not aSected by, 199, 200. 
 Lord St. Leonards' Act, protection of trustees, 155. 
 power coupled with interest, not affected by, 206, 207. 
 princiiml's estate not liable for act done after, by agent, 155, 
 
 204—206. 
 Story's opinion as to liability of principal, 205. 
 
 Debiting Agent, effect of, 262, 263. 
 
 Deceit, 
 
 corporation, where liable to action for, 95, 96. See Fraud, 
 covu'se of emplojTiient, efEect of, 225, 273 — 275. 
 
 Declarations of Agent, 
 
 liability of agent for, 284—286. 
 
 principal for, 219, 220, 225, 273—275. 
 servant of horse-dealer, 63. 
 
 Deeb, 
 
 agent to execute, married women, when can appoint, 11. 
 
 appointment of agent by, when necessary, 23. 
 
 contract, when must be by, 23, 24—26, 28. 
 
 Conveyancing Act, 1881, s. 10, married women may appoint 
 
 agent to execute, 11. 
 corporations, non-trading, must appoint agent by, 24 — 26. 
 
 trading, need not, 28, 29. 
 execution by agent in his own name, 112, 292. 
 liable on, who is, 225, 226, 270. 
 
 local board can only contract by deed if contract over 50/... 26. 
 mode of execution by agent, 112, 292. 
 poll, who can bring action on, 316. 
 principal, liability on, 225, 226, 270. 
 sealing, 30. 
 
 Defamation, liability of third party to principal for, 255.
 
 384 INDEX. 
 
 Default of principal, liability for commission, 159, 165. See 
 Revocation of Authority and Damages. 
 
 DEFEIfCES TO ACTIOX, 
 
 of third party against agent, 319. 
 
 principal, 229, 230. See Action. 
 Delay, 
 
 repudiation of, ratification assumed fi'om, 38 — 41. 
 when prevents thii'd party suing principal, 267. 
 
 Del Csedeee Ao'Eyr, 
 
 authority of, 210, 211. 
 
 commission, what is, 158. 
 
 definition of, 92. 
 
 duties of, 124, 125. 
 
 insurance broker, authority of, 210, 211. 
 
 principal suing, releases, 318. 
 
 release by principal suing, 318. 
 
 right of set-off, 210. 
 
 Delegatio^t, 
 
 allotting of shares cannot be subject matter of. 111. 
 
 arbitrator cannot, lOS, 109. 
 
 auctioneer cannot, 86. 
 
 authority, when can be, 104. 
 
 bought note, signing of, cannot be, 110. 
 
 clerk, power to sign bought note, 110. 
 
 company, allotment of shares in, cannot be. 111. 
 
 discretion, where power cannot be, 110. 
 
 discussion of exercise of authority, not, 109. 
 
 fiduciary agent cannot, 108. 
 
 illegal act, power to do, cannot be, 108. 
 
 judicial authority, cannot be, 109. 
 
 liquidator, appointment of, cannot be, 109. 
 
 master of ship, can, 100. 
 
 can delegate signing of charter-party, 106. 
 ministerial acts may be, 109. 
 powers that may be, o. 
 privity of contract, when created, 105 — 107. 
 railway company, 5, 111. 
 shares, allotment of, cannot bo, HI. 
 Bold note, signing of, cannot be, to clerk, 110. 
 trustee, how far can, 110.
 
 INDEX. 385 
 
 Delivery, 
 
 buyer, by, effect of, 247. See sect. 9 Factors Act, 327. 
 
 duty as to returu of goods, where tboro is, 343. 
 buyer, to, effect of, 343. 
 
 acceptance, when becomes, 343. 
 remedy for non-delivery, 347. 
 rights of, as to, 340—342. 
 carrier, to, for custody, 189. 
 
 effect of, 342. 
 damages for not accepting, 347. 
 delivering, 347. 
 distant place, at whose risk, 342. 
 document authorizing, is document of title, 240, 325. 
 instalments, by, rights of buyer, 342. 
 liability of buyer for refusal of, 343. 
 order for, document of title, 240, 325. 
 packing, for, whose duty, 341. 
 payment, concurrent condition with, 341. 
 quantity, how affects, 343. 
 greater quantity, 341. 
 less quantity, 341. 
 refusal of, effect of, 343. 
 
 when buyer, right to, when goods greater in quantity, 341. 
 
 less in quantity, 341. 
 rules as to, 341. 
 seller, duty as to, 341. 
 
 remedy for non-acceptance, 347. 
 by, effect of, 246. See Factors Act, sect. 8... 327. 
 tender of, when bad, 341. 
 time of, 341. 
 warrant for, document of title, 240, 325. 
 
 Demand, to support action, cannot be ratified after action brought, 
 49. 
 
 Demurrage, demand of goods, when evidence of agi'eement to 
 pay, 300. 
 
 Description, 
 
 sale of goods by, 335. 
 
 sample, correspondence with, not enough, 335. 
 w. c c
 
 386 INDEX. 
 
 Determination or Agency, 
 act of law — 
 
 bankruptcy of agent, 215 — 218. See Bankruptcy. 
 
 principal, 207—212. 
 Conveyancing Act, provisions as to, 199, 200. 
 death, of agent, 214. 
 
 principal, 204, 205. See Death. 
 determination of ownersHp of principal, 203, 204. 
 
 subject-matter, 201. 
 expiration of time, 201. 
 lunacy of agent, 215. 
 
 principal, 212, 213. See Lunacy, 
 marriage of agent, 215. 
 act of party — 
 
 appointment of receiver is, 204. 
 
 authority coupled ■with interest cannot be, 197. 
 
 may be revoked until binding contract with, third 
 party, 193. 
 commission agent's authority may be revoked without 
 
 notice, 193. 
 compensation for, agent, when entitled to, 193. 
 Conveyancing Act, 1882, provisions as to, 199, 200. 
 dismissal by, what is, 204. 
 irrevocable, when, 195 — 197. 
 master, determination of authority of, 205. 
 mode of, 195. 
 
 mortgagee taking possession is, 204. 
 notice of, when principal must give, 194, 195. 
 possession by mortgagee is, 204. 
 public agents, of, does not terminate sub-agents, 194. 
 receiver, appointment of, is, 204. 
 refusal of agent to act, 201. 
 sub-agent's, determined by agent's, 194. 
 
 unless agent is public agent, 194. 
 time from which, takes effect between agent and principal, 
 194. 
 between principal and third party, 195. 
 gambling agency, 195. 
 notice of agent, when entitled to, from principal, 194. 
 
 third party, when entitled to, from principal, 195. 
 thii'd party, how affected by, 192, 193, 195.
 
 INDEX. 387 
 
 Deviation, 
 
 agent liable for, 120, 183. 
 negligence in not inserting, 135. 
 
 ship, by, agent not liable for non-insurance, if owing to care- 
 less, 195. 
 
 DlRECTOKS, 
 
 acquiescence in illegal act, effect of, 40. 
 acts, HabiUty for, 120—126. 
 allotment of shares cannot be delegated. 111. 
 articles of association, effect of, on, 69. 
 authority of, 20. 
 
 not affected by irregularity of appointment, 222. 
 bill, liability of directors on, 6, 286. 
 dishonesty, liability for, 140. 
 dismissal of, 140, 141. 
 fiduciary agent, 140. 
 fraud, liability for, 46. 
 
 holding out, how far directors can be, 42, 68, 69. 
 illegal act, effect of acquiescence by, 46. 
 irregularity of appointment, how affects company's power to 
 
 sue, 222. 
 liability on bill, 6, 286. 
 
 for negligence, 120, 121. 
 managing director, dismissal of, 140, 141. 
 memorandum of association, effect of, on powers, 47, 69. 
 negligence, liability for, 120, 121. 
 profits before, director not bound to account for, 139. 
 ratification of act of, 
 
 conditions of, 43. 
 
 when possible, 42. 
 
 when not possible, 46, 47. 
 representations by, effect of, 222, 286. 
 shares, allotment cannot be delegated. 111. 
 
 Disability of Agent, 11, 12. 
 
 Disbursements, 
 
 agent, when may sell to reimbiu'se himself, 183. 
 
 right to indemnity for, 172. 
 gambling, cannot recover, 176, 177, 178. 
 improper, cannot recover, 176. 
 c c2
 
 388 INDEX. 
 
 DiSBJms-EMENTS— continued. 
 lien of master for, 188. 
 lien of sub-agent for, 191. 
 sub-agent, lien of, 191. 
 
 DlSCOITN'T, 
 
 distress of bill broker as to, 91, 92, 130. 
 manager of bank, authority to, 90. 
 warrant, wben power to, 77. 
 
 Discovery, foreign principal suing in agent's name, must give, 
 228. 
 
 Discretion, 
 
 agent, where can use, 77. 
 
 cannot be delegated, 108 — 110. 
 
 counsel of, 101. 
 
 factor, under advances, no discretion as to selling, 183. 
 
 liability for wrong exercise of, 120, 136. 
 
 DiSHOXESTY OF Agent, right of principal to dismiss for, 140, 141. 
 
 DiSOBEDIEXCE OF ORDERS, 
 
 rights of principals, 118, 119. 
 to insure, effect of, 122. 
 
 DisposiTiOiV OF Goods, 
 by buyer, 247, 327. 
 by seller, 246, 327. 
 
 effect of, by mercantile agent, 241 — 244, 326. 
 fiduciary agent, by, right of principal to follow, 142. 
 hiring agreement, by, effect of, 248. 
 
 Distress, 
 
 agent liable for claim under illegal, 303. 
 auctioneer, when diity to protect from, 84. 
 bailiff to levy, 12. 
 joint warrant for, how executed, 19. 
 
 DrvoRCE, effect of, 10. 
 
 Divorce and Matrimonial Causes Act, 10. 
 
 Dock Warrants, docviment of titlef 240, 32 j.
 
 INDEX. 389 
 
 Documents of Title, 
 
 - disposition by buyer of, 247, 327. 
 
 by mercantile agent of, 241, 242, 326. 
 by seUor, 246, 327. 
 indorsement of, effect of, bill of lading, 299. 
 onus of proof on owner to show agent not in possession with 
 
 consent, 244, 326. 
 stoppage ia transitu by transfer of, 190, 248, 328. 
 transfer of, effect of, by mercantile agent, modes of, 328. 
 
 Duties of Agent, 
 
 accounts, to keep, 122 — 124. 
 adverse iaterest, not to have, 126. 
 authority, to observe, 128. 
 
 substantial observance of, sufficient, 1 19. 
 bill broker, 90, 91, 130. 
 casualty to ship, to iriform principal of, 129. 
 contract, to make binding, 112. 
 Conveyancing Act, execution of power, 115. 
 deed, as to signature of, 112. 
 del credere agent, 124. 
 deposit-money in principal's name, 129. 
 disclose any interest, 128, 145, 146. 
 inform principal, 128, 129. 
 insurance broker, 121, 122. 
 managing owner of, 130. 
 profits, to hand over, 125. 
 
 property of principal, not to mix with his own, 125 — 129. 
 receiver, duty of, 129. 
 skill, to use, 120, 136. 
 soHcitor of, 129, 130. 
 time to give to principal, 125. 
 usage of trade to act, 125. 
 
 Ejectment, notice to quit cannot be ratified after given, 50. 
 
 Election, 
 
 fiHng proof in bankruptcy not conclusive evidence of {Curtis v. 
 
 Williamson, 1875, L. E. 10 Q. B.), 57. 
 foreign principal, circumstance to be considered in deciding if 
 
 there has been, 297.
 
 390 INDEX. 
 
 Election — continued. 
 
 principal rigM to rescind contract or take secret profit, 143, 
 
 256. 
 tHrd party, right to, 263, 295. 
 
 cannot if principal settled "with agent, 264 — 268. 
 
 Emergency, 
 
 authority derived from, 32, 33, 81. 
 
 master authority to act for cargo-owners in, 98. 
 
 Employer, liability of, 278—280. 
 
 Employment, of agent, when agent bound to, 202, 203. 
 
 Estate Agent, 
 
 acquiescence, when works, 146, 147. 
 conduct by, 
 
 delay in exercising right, 267. 
 permitting execution, 68, 262. 
 
 permitting stranger to spend money, as authorized repre- 
 sentative of agent, 68. 
 duty to keep accounts, 123. 
 
 Estoppel, 
 
 possession of buyer, when is, 247, 307. 
 
 mercantile agent, 241 — 244, 326. 
 
 seller, 246, 327. 
 principal, when estopped, 62, GO,. 
 pnncii)lo of, 67, 68, 228— 2o(». 
 
 Evidence, 
 
 admissible to show agent and principal, 324. 
 
 admission of agent, when, 219, 220. 
 
 agency, of, when necessary, 44. 
 
 ambiguous signature, to exi^luin, 117, 118. 
 
 custom of variation of written authority by, not admissible, 
 
 60, 293, 2iH. 
 exclusive credit of, 202. 
 interpret, powers to, admissible, 60. 
 onus of proof of negligence, 121, 282. 
 pilotage, compulsory, of, 281. 
 presumption, of i)ossession, by consent, 244, 326.
 
 INDEX. 391 
 
 Evidence — co n tinued. 
 
 ratification of, what is, 39. 
 representation of, when agent, 219, 220. 
 signatui-o of contract for agent, wlien necessary, 44. 
 variation of authority by custom, not admissible, 60. 
 
 ExcH^iNGE, right acquired under, by mercantile agent, 245, 327. 
 
 Exclusive Credit, 
 
 contract with agent as principal, 227. 
 principle of, 262. 
 
 what constitutes giving evidence for jury, 263, 290. 
 See Election. 
 
 Factor, 
 
 accounts, duty to keep, 125, 
 advances, under, exclusive right to sue, 318. 
 agent to buy, rights of, 190. 
 sell, rights of, 183. 
 agreement with clerk of, 245, 327. 
 antecedent debt, pledge for, effect of, 244, 326. 
 authority of, 65, 126. 
 banki-uptcy of, 
 
 appropriation before, 218. 
 
 effect of, 216, 217. 
 can sell in his own name, 126. 
 clerk of, agreement with, 245, 327. 
 credit, may sell on, 92. 
 delegation of authority, not allowed, 92. 
 determination of authority, when, takes effect, 205. 
 disposition of goods by, 241, 326. 
 distinguished from bi'oker, 92, 126. 
 ejnployment of, effect of, 230. 
 entrusting with goods, what is, 241. 
 
 effect of, 67. 
 estoppel in case of, 230. 
 exchange, power to make, 245, 327. 
 fiduciary agent, 92. 
 general lien, 180. 
 insxirable interest in goods, 93. 
 lien of, 180. 
 mercantile agent is, 239, 326.
 
 392 INDEX. 
 
 Factor — continued. 
 
 payment, rigM to receive, 92, 230. 
 
 pledge, right of, 232. 
 
 pledge by, validity of, 241, 244, 326. 
 
 possession by, vrbat is, 220, 325. See Addendum, 
 
 possession, entrusted -with, 126. 
 
 principal, rights of, against, preserved, 250, 251, 328. 
 
 right to act as, to agent, 154, 155. 
 revocation of authority, effect on, 205, 209. 
 set off, in sale by, 231—233. 
 sue, right to, 
 
 if principal under advances, 313. 
 
 if contracted in his own name, 314. 
 supercargo, ■when, 92. 
 
 Factors Act, 1889... 239— 251, 325—329. 
 
 False Impeisoxment, 
 
 agent, liability of, for, 308. 
 agent, right to indemnity for causing, 171, 172. 
 bank manager, liability for, 94. 
 
 principal liable for, ■when within agent's authority, 71, 279. 
 principal not liable ■where not ■within agent's authority, 70, 
 279. 
 
 Farm Bailiff, no authority to dra^w bills, 56. 
 
 Fello^w Servant, liability of principal for negligence of, 280. 
 
 Fiduciary Agent, 
 
 account, opening of, 151. 
 
 accounts, duty to keep, 122, 123, 125, 153. 
 
 bailee, 143. 
 
 banker is not, 149. 
 
 broker is a, 89. 
 
 collector of rents, 143. 
 
 commencement of relationship as, 144. 
 
 delegation, cannot, 89, 108, 110. 
 
 director of company, 111. 
 
 disclosure of interest, dutj' to, 145, 146. 
 
 disposition of property by, effect of, 142. 
 
 factor is, 92. 
 
 following of goods, right of principal to follow, in case of, 142. 
 
 Limitations, Statute of, 153, 154.
 
 INDEX. '393 
 
 FiDUCiAEY Aqieiht— continued. 
 
 promoter, rights of principal against, 143 — 145. 
 servant is not, 149. 
 solicitor, 130, 131. 
 trustee, 110. 
 
 Fieri Facias, writ of, when binds goods, 340. 
 
 Fine, levy of, witliin what time can be ratified, 50. 
 
 Follow Goods, Eight to, 
 limit of right, 254. 
 principal, when right to, 142, 143, 251, 252. 
 
 Foreign Country, authority to do business in, what includes, 67. 
 
 Foreign Factor, rights of principal against, 154, 155. 
 
 Foreign Government, agent of, not liable to action, 303. 
 
 Foreign Principal, 
 
 agent of, whether liable personally, 296, 297. 
 
 no privity of contract between third party and, 269. 
 
 Forgery, ratification in case of, 44 — 46. 
 
 Formality of Contract, under Sale of Goods Act, 333. 
 
 Fraud, 
 
 agent's fraud, liability of agent for, 307 — 309. 
 
 liability of princij^al for, 95, 220, 273 — 275. 
 company not liable to shareholder for, 276, 277. 
 concealment by agent, liability of principal for, 223. 
 corporation, liability for agent's fraud, 95, 96, 276. 
 possession taken by, does not destroy agent's Hen, 183. 
 principal liable when fraudulently employs ignorant agent, 222. 
 See Knowledge of Agent. 
 
 Frauds, Statute of, 
 
 appointment of agent, when in writing, 32. 
 
 when need not be in writing, 30. 
 memorandum under 17th section, 83, 86, 87, 133. 
 
 See Sale of Goods Act, sect. 4, p. 333, and Schedule.,
 
 394 INDEX. 
 
 Freight, 
 
 demand good, evidence of, contract to pay, 299. 
 
 master, duty as to, 97. 
 
 ehipbroker, duty as to, 90. 
 
 tender of, at destination, ends transitus, 49. 
 
 Fruitless Efforts, 
 
 agent entitled to commission if it was the principal's fault, 165. 
 sliipbroker not entitled to payment for, 167. 
 taking trouble does not entitle to commission, 164. 
 
 Future Orders, agent, wben entitled to commission on, 163. 
 
 Gambling Contracts, 
 
 agent not entitled to commission on, 177. 
 
 indemnity no right in respect of, 176, 178. 
 
 principal can sue for bets paid to agent, 179. 
 
 Stock Exchange, on. See Universal Stock Exchange v. Stevens, 
 
 66 L. T. 612. 
 unenforceable, 177, 178. 
 
 Gaming Act, 1892. ..177, 178, 330. 
 
 General Agent, 
 authority of, 54. 
 
 cannot be trusted by secret instructions, 259. 
 master of ship is, 54. 
 powers of, 61, 62. 
 solicitor, to what extent, 101. 
 
 General Lien, 
 
 agents entitled to, 180. 
 definition of, 180. 
 solicitor of, 186. 
 
 General "Words, constmction of, 59. 
 
 Goods, recovery of, from agent by principal, 249, 328. 
 
 Gratuitous Agent, 
 
 barrister, liability of, 137. 
 liability for bad faith, 138. 
 non-pcrformanco by, effect of, 137. 
 skill, not liable for want of, 137, 138.
 
 INDEX. 395 
 
 Hawker not mercantilo agent, 239. 
 
 Hire and Purchase Agreement, sale by hirer, effect of, 248. 
 
 Holding Out, 
 
 company, by, 68, 69. 
 definition of, 61, 254. 
 effect of, 67, 68. 
 lunatic, by, 213. 
 ways of, 
 
 auction room sending goods to, 67. 
 entrusting agent with possession of goods, 66. 
 
 of negotiable instrument, 
 79, 80, 234. 
 solicitor giving deed with endorsed receipt, 69. 
 standing by, 68. 
 
 Homage cannot be delegated to agent, 5. 
 
 Home Factor, definition of, 92. 
 
 Horse Dealer, authority of servant, by warrant, 63. 
 
 House Agent, 
 
 authority of, cannot sign contract, 78. 
 commission of, on reletting house, 161. 
 
 proof of giving card to view does not entitle to, 160. 
 employed to let, cannot claim commission on sale, 163, 164. 
 
 And see Gillott v. Lord Aherdare, 1892, 9 Times, 12. 
 payment to, in what form valid, 76. 
 
 Hypothecation, master of ship, right of, 98, 99. 
 
 Ignorance of Agent, when principal Hablo for, 222, 223 — 225. 
 
 Illegal Act, 
 
 agent cannot be ajipointed to do, 6. 
 agent liable for, 303, 307. 
 delegation cannot be the subject of, 108. 
 ratified, cannot be, 44, 45, 46. 
 
 Illegal Claim, agent liable if makes, 303. 
 
 Illegal Contract, 
 
 agent can recover money paid imder, if ignorant of illegality, 
 
 319. 
 commission on, agent not entitled to, 168. 
 indemnity of, agent right to, 176.
 
 396 INDEX. 
 
 INCAPACITY TO BE PEIXCIPAX, 
 alien, 11. 
 convict, 11. 
 infant, 7, 8. 
 lunatic, 8. 
 married woman, 9, 10. 
 
 IxCTDEXTAL PowEES, what are, 56. 
 
 IxDE}kEX'iTY, right of agent to, 
 
 bankruptcy, no right to, where loss caused by, 173, 174. 
 
 call on shares, 174. 
 
 cost of action, when right to, 172. 
 
 custom, loss occasioned by, 174. 
 
 unreasonable query, 175. 
 expenses, for, 172. 
 gaming contract, 177, 17S. 
 illegal contract, in respect of, 176, 177. 
 laches, disentitled to, 173. 
 negligence, no right in respect of, 173. 
 payments, improper, no right in respect of, 173. 
 principle of, 172. 
 right of principal to, where agent violates his instructions, 133, 
 
 134. 
 shares, call on, 174. 
 social stigma, 196, 197. 
 stockbroker, right to, 173, 174. 
 
 unlawful act, where agent does not know it is, 171, 172. 
 unreasonable custom, loss occasioned by agent, if principal 
 knew of and consented, 175. 
 
 1m)EPE>T)E>t CojrrRACTOE, liability of, 278. 
 I>'T)iCTABLE Offexce Cannot be ratified, 44 — 46. 
 
 InT)0ESE3£EXT, 
 
 of biUof, effect of, 113. 
 transfer of goods by, 249. 
 
 Ixf^o'T, 
 
 agent can be, 11. 
 
 attorney to prosecute suit cannot be, 1 2. 
 
 principal cannot be, 7, 8. 
 
 ratification bv, 53.
 
 INDEX. 
 
 397 
 
 Inland Eevenue Act, broker bound to give contract note, 168. 
 
 Insanity, 
 
 of agent, terminates agency, 11, 215. 
 
 of principal, revokes agent's authority, 213, 21-4. 
 
 of third party does not disentitle agent to commission, 168. 
 
 Instructions, 
 
 damage for neglect of, 119, 134 — 137. 
 duty of agent to obey, 118. 
 secret, effect of, 55, 259. 
 
 Insurance, 
 
 bankruptcy of underwriter, effect of, 210, 211. 
 broker, can both be sued and sue, 316. 
 
 insurance, can effect in his owti name, 88. 
 co-owner not Liable for, unless dii'ected, 18. 
 deed-poll, person interested can sue on, though not party to, 
 
 316, 317. 
 deviation clause, improper effect of, 135. 
 disclosure of all material facts necessaiy for, validity of, 129. 
 factor can sue on, 95. 
 
 knowledge of agent when affects validity of, 223 — 225. 
 negligence in effecting, 135. 
 ratification of, can be after loss known, 57. 
 valid only when any material fact disclosed, 120. 
 
 Insurance Broker, 
 
 arbitration, authority to refer to, 56. 
 
 authority of, 56, 66. 
 
 bankruptcy of principal, no authority to settle losses after, 
 
 209, 210. 
 defence against action for premiums by, 319. 
 duty to disclose every material fact, 120, 129, 130. 
 exercise of authority when bad, 06. 
 improper insurance, liability for effecting, 66, 135. 
 insure, when duty to, 122. 
 
 knowledge of, when affects principal, 223 — 225. 
 liability to third party, 304, 305. 
 lien on, 180. 
 losses, cannot settle, 56. 
 
 after bankruptcy of principal, 209. 
 negligence of, liability for, 120, 135.
 
 398 INDEX. 
 
 Insurance Broker — continued. 
 set-off, right to, 72, 73. 
 
 bankruptcy of principal, effect on, 209, 210. 
 settlement, to make, 56. 
 sue, liable to be sued and can, 316. 
 underwriter, liable to, 304. 
 
 Insurance Club, 
 
 liability to non-members, 225. 
 non-members, liability to, 225. 
 
 Insurance Company, 
 
 affected by knowledge of agent, 225. 
 Intention, 
 
 custom, evidence of, 293, 294. 
 
 liability of agent, when has foreign principal, question of, 297, 
 298. 
 
 rules to ascertain, when property passes, 337. 
 
 Interest, Authority coupled with, what is, 197. 
 
 Conveyancing Act, 1882, sect. 8, provision as to, 199. 
 irrevocable, 197. 
 
 Interest, 
 
 action for, when principal may bring, 126. 
 
 agent's liability for, where uses principal's money, 126, 138. 
 
 demand by principal of his money, enough to make interest 
 payable, 138. 
 
 duty of agent to disclose any interest ho may have to principal, 
 128, 145, 146. 
 
 fraudulent conduct of agent, principal entitled to interest, 141. 
 
 solicitor employing principal's money liable to pay, 139. 
 
 time for which, runs, 130. 
 Intermediate Agent, liability of. Sco Addendum. 
 Interplead, when principal ought to, IGl. 
 
 Intervention of Principal in Action, 
 
 cannot, if indebted to agent, or when agent has lien, 227. 
 
 circumstances under which principal can, 227. 
 
 del credere agent where, principal cannot intervene, 318. 
 
 Introduction, 
 
 business must have been in course of, 189. 
 commission, when payable on, 164 — 166. 
 
 not payable if third party refuses teims and after- 
 wards buys at auction, 160.
 
 INDEX. 399 
 
 Irrevocable Authority, 
 
 authority coupled -vritli interest, 197, 
 
 given for good consideration, 197, 199. 
 Conveyancing Act, 1882, sects. 8 and 9, provisions as to, 199, 
 
 200. 
 time authority given, for definite, not exceeding a year, 200. 
 
 Jobber, 
 
 liability of, 57, 58. 
 
 principal liable for loss of closing, if given choice of carrying 
 out contract with, 174. 
 
 Joint Authority, 
 
 directors, authority of, 20. 
 
 does not survive, 19. 
 
 execution of, 21. 
 
 exercise of, 18. 
 
 liabiUty of, where no principal, 22. 
 
 majority, when can exercise, 19, 20. 
 
 survival of, does not survive, 19. 
 
 exception for public purpose, 20. 
 
 Joint Principals, 
 
 adventurers, what are, 14. 
 
 agreement necessary to constitute, 15. 
 
 committee, liability of, 15. 
 
 joint ownership does not constitute, 15, 16. 
 
 judgment against one, bar to action against remainder, 18. 
 
 managing owner, position of, 16, 17. 
 
 partners, are, 14. 
 
 ship, co-owners of, are not, 17. 
 
 Joint Stock Company, 
 
 appointment of agent by, 29. 
 
 articles of association only agreement inter se of shareholders, 
 
 and not contract with third party, 30. 
 seal of, who can afl&x, 80. 
 
 Joint Tenant, 
 
 not joint principal, 15. 
 notice to quit by, good, 15. 
 
 Journey, authority of solicitor to undertake, 103.
 
 400 INDEX. 
 
 Jtjdgmext, 
 
 against one joint principal, bar to action against other, 18. 
 agent not responsible for wrong exercise of, 136. 
 evidence of election, 53, 264, 312. 
 wben agent may use his, 77. 
 
 JXTDICIAI, ArTHOEITY, 
 
 arbitrator cannot delegate power, 108. 
 cannot be delegated, 108, 109. 
 
 Knowledge, 
 
 agent's, when that of principal, 223 — 225. 
 
 fraud of, not bar to account, 147. 
 
 principal's, may make contract by agent fraudulent, 222. 
 
 third party's, of goods being principal's, prevents lien, 235, 237. 
 
 set-off, 242. 
 when not bar to account, 147. 
 
 Laches, agent seeking indemnity against principal, must not have 
 been guilty of, 173. 
 
 LEEiiAN's Act, 
 
 number of shares must be insei'ted, 58. 
 Stock Exchange, habit to ignore, 58, 196. 
 principal, how far bound by, 175, 196. 
 
 Libelling of Agent, principal has right of action against third 
 party damaging business by, 255. 
 
 Lien of Agent, 
 
 acquired, how, 181. 
 
 agent having, can sue third party, 313. 
 
 attaches, when, 181. 
 
 to what, 181. 
 auctioneer's, 184. 
 banker's, 180, 185. 
 broker's, 180. 
 
 claim barred by statute, lien for, good, 182. 
 custody, where goods entrusted only for, no, 182. 
 general, 180. 
 
 inconsistent claim, lost by making, 184. 
 insurance broker's, 1 80.
 
 INDEX. 401 
 
 Lien of Agent — continued. 
 kinds of lien, 180. 
 London agents, 186. 
 lost by losing possession, 183. 
 
 making inconsistent claim, 184. 
 
 taking security, 184. 
 master of ship, 187. 
 packers, 180. 
 particular, 180. 
 possession depends on, 181. 
 
 fraudulent retaking by principal does not affect, 183. 
 realization of, 182. 
 security, taking, desti'oys lien, 184. 
 solicitor's, 186. 
 stockbroker's, 180. 
 
 Lien of Thied Party for advance to agent, only arises if in belief 
 agent true owner, 237. 
 
 Lien of Unpaid Seller, 
 bow lost, 344, 345. 
 wben he has lien, 344. 
 
 Limitations, Statute of, 
 
 acknowledgment by agent prevents running of, 31. 
 action for account, when begins to run, 154. 
 defence of, by agent, 153. 
 
 Loan, 
 
 by agent, ratified by taking interest, 39. 
 
 to agent, agent no authority to borrow, 65, 79, 97. 
 
 master of ship has authority to, 97. 
 to principal, commission on, 158. See Commission. 
 
 Local Board, 
 
 authority to appoint agent, 26. 
 to contract, 26, 27. 
 
 Lord St. Leonards' Act, protection of ti-ustees by, 155. 
 
 Loss, 
 
 agent not liable for, if he adheres to usage of trade, 59. 
 insui'ance can be ratified after known, 51. 
 insurance broker no right to pay, 56. 
 AV. D D
 
 402 INDEX. 
 
 LrxATic, 
 
 agent becoming, terminates agency, 11, 215. 
 contract witli, when fair and executed, uplield, 8. 
 liability of agent acting for, wlien knows fact, 8, 215. 
 princijial becoming, revokes agent's authority, 213, 215. 
 third party becoming, does not disentitle agent to commission, 
 168. 
 
 Majority, public authority well executed by, 19, 20. 
 
 Manager op Bank, 
 
 acceptances of bills, duty to obtain, 96. 
 
 authority of, 94—96. 
 
 bank, when liable for fraud of, 95, 275, 276. 
 
 character, reisresentations as to, no authority to make, 94. 
 
 discount bills, has authority to, 96. 
 
 Manager of Business, 
 
 borrow, no authority to, 65. 
 tender to, when good, 78. 
 
 Managing Owner, 
 
 charter-parties, commission on, 158. 
 
 duty of, 130. 
 
 liability of co-owners to, 16, 17. 
 
 Manor, Steward of, 
 
 authority to receive payment, 74, 76. 
 delegation, by, 110. 
 
 Marine Insurance, undisclosed principal can sue on, though not 
 mentioned in deed, 316, 317. 
 
 Maritime Lien, master has, 99, 187. 
 
 Marriage of Agent, effect on agency, 215. 
 
 Married Woman, 
 
 appointment of agent by, 11. 
 common law, position of, 9. 
 contract, power to, 10. 
 divorce, cfloct on, 10. 
 executor, can bo, 11. 
 payment of costs by, 10.
 
 INDEX. 403 
 
 Master of Ship, 
 
 authority of, 96—100. 
 
 bill of lading, to sign if goods on board, 97. 
 
 not if not on board, 87, 100. 
 borrow, to, 97. 
 delegate, to, 100, 10(5. 
 emplojTnent of skip, 90. 
 fi-eight, contracts as to, 96. 
 pledge, cargo, 99. 
 
 ship, 98. 
 protect goods, 130. 
 sell cargo, 99. 
 sell ship, 98. 
 duty of, to procure funds to save cargo, 100. 
 
 protect goods, 130. 
 liability of, necessaries, 301. 
 
 nonfeasances and neglect of crew, 308. 
 repair, 301. 
 wages, 301. 
 lien of, for disbursements, 99, 187, 188. 
 
 wages, 99, 187, 188. 
 revocation of authority, 205. 
 
 Measure of Damages, 
 
 in action against agent by principal, 134, 135, 201. 
 third party, 288. 
 
 Memorandum of Association, acts outside, ultra vires, 69. 
 
 Mercantile Agent, 
 
 agreement with clork of, 245. 
 
 antecedent debt or liability, pledge for, effect of, 244. 
 clerk of, agreement with, 245. 
 consideration for disposition, when good, 245. 
 definition of, 239. 
 
 disposition of goods by, when good, 241. 
 documents of title, definition of, 240. 
 estoppel after revocation of authority, 243. 
 exchange of securities by, 245. 
 interest transferred by pledge, 244. 
 owner, right of, against, 249, 250. 
 pledge by, when good, 245. 
 
 pledge of documents same as pledge of goods, 244. 
 possession, definition of, 240; and Addendum. 
 D D 2
 
 404 INDEX. 
 
 Mercantile Agent — continued. 
 
 possession, of documents of title, effect of, 243. 
 
 vitli consent of OTmer, definition of, 243. 
 rights of owner against, 249, 250. 
 transfer of documents of title, mode of, 249. 
 validity of pledge by, 241, 246. 
 of sale by, 241, 246. 
 of sale, disposition of goods by, 241. 246. 
 
 Meechaat Shipping Act, 1SS9, master, lien for disbursements, 
 
 99, ISS. 
 
 Ministerial Acts, may be delegated, 109. 
 
 Misfeasance, 
 
 gratuitous agent, liability for, 137. 
 liability of agent for, 307. 
 
 Misbepeesentation, 
 
 liability of agent for, 284. 
 authority of, 284. 
 fact of, liable for, 285, 286. 
 land, not liable for, 285, 286. 
 principal, when bound by, 219, 220, 225. 
 
 third party, when entitled to compensation against principal 
 for, 225. 
 
 Mistake. 
 
 agent not liable for mistake of law, 286. 
 broker liable for mistake to third party, 288. 
 goods delivered by, give consignee no title, 189. 
 money paid by agent in, can be recovered fi'om third party, 318. 
 to agent in, can be recovered by third party, 303. 
 mutual, agent not liable, 286. 
 principal can recover money paid by agent by, 318, 319. 
 
 liable for mistake of agent, 277, 279. 
 
 liable to agent for mistake, 90, 91. 
 stoppage in transitu, right of, not affected by delivery by, 189. 
 third party can recover money paid by, 303, 304. 
 
 Money, 
 
 improperly paid by agent, no right of retainer or indemnity 
 
 for, 173. 
 mistake, paid by, right of agent and principal to recover, 318. 
 retained, of principal, agent liable for interest on, 138, 139. 
 
 dismissal for. 141.
 
 INDEX. 405 
 
 Money Lender, authority of, 81, 236. 
 
 MOETGAGE, 
 
 authority of master to, 98. 
 
 possession by mortgagee determines agency, 204. 
 
 Municipal Corporation, 
 
 appointment of agent by, 24, 25. 
 
 contracts of, 26, 27. 
 
 solicitor, appointment of, 25, 26. 
 
 Mutual Credit, 
 object of, 210. 
 set-off, under Bankruptcy Act, 211. 
 
 Navigation Commissioners, liability of, 289. 
 
 Necessity, 
 
 agent, of, 32. 
 
 authority derived from, 32, 33, 81. 
 
 bottomry bond, creature of, 99. 
 
 cargo, sale of, in case of, 99, 100. 
 
 master, authority to act for cargo owner in, 98, 99. 
 
 ship, sale of, in case of, 99. 
 
 Negligence, 
 
 agent's, liability to third party, 307, 308. 
 auctioneer, of, what is, 121. 
 carrier, liability of, 120. 
 cheque, in taking, 136. 
 
 compulsory pilot, liability of principal for, 281, 282. 
 deviation clause, by inserting improper, 120, 135. 
 gratuitous agent, liability for, 137, 138. 
 insurance broker, of, 120. 
 
 in effecting, 135, 137. 
 master, liability for, 308. 
 onusof proof, 281, 282. 
 paid agent, what is, in, 135, 136. 
 principal, liability for agent's, 277, 278. 
 public agent, liability for, 322. 
 servant's, liability of principal for, 277. 
 solicitor, of, 136. 
 sub-agent, liability for, 106. 
 
 agent, liability for, 307. 
 
 public agent, liability for, 323,
 
 406 INDEX. 
 
 Negotiable Ixsteumext, entrusting agent with, effect of, 79, 80, 
 234. 
 
 N0>TEASAIS-CE, 
 
 agent not liable for, to thii'd party, 307. 
 
 master of sliip liable for, 308. 
 
 non-insiirance, agent's liability for, to principal, 121. 
 
 Notice, 
 
 advance at time of, prevents set-off, 237. 
 agency, of, prevents set-off, 237. 
 authority, want of, how affects third party, 242, 
 broker, notice of principal, not necessaiy to prevent set-ofi, 235. 
 commission agent, not entitled to notice of revocation of autho- 
 rity, 193. 
 custom, unreasonable, principal not bound xinless has, 175. 
 name of principal not necessary, 242. 
 
 principal, of, effect on set-off, 237. 
 revocation of authority, agent right to, 194. 
 
 commission agent not entitled to, 193. 
 
 to thii-d party, when ought to be given, 195. 
 set-off, none after notice of agency, 237. 
 solicitor, to, effect of, 101. 
 
 Notice to Quit, 
 
 cannot be ratified, 50. 
 
 joint tenancy, determines lease, 15. 
 
 Oycrs OF Proof, 
 
 agency, of, on whom, 44. 
 
 negligence of crew, on whom, 281. 
 
 want of consent of owner to possession, 232, 244, 326. 
 
 Ostensible Authority, 
 
 agent ostensible owner, liability of principal, 2G0. 
 
 principal bound by acts within, 55, 56, 61, 62, 66, 68, 228, 
 
 259—262. 
 principal liable to extent of, 
 where holding out, 61. 
 where not holdiag out, 261, 262. 
 
 Ow^^:n of Goods, 
 
 following goods or produce, right to, 251, 252. 
 
 no right whore no privity of contract, 107, 219.
 
 INDEX. 407 
 
 Ownership of Property, effect of owner permitting agent to 
 assume, 260, 261. 
 
 Order III. r. 8, summons for account, 149, 150. 
 
 Order XV. R. 1, accounts in Queen's Bencli Division, 150. 
 
 Packer, 
 
 conversion, liability for, 310. 
 Hen of, 180. 
 
 Parliamentary Powers cannot be delegated, 5, 111. 
 
 Parol Contract, 
 
 corporation, appointment of agent by, 25. 
 local board by, 26. 
 principal, liability on, 113. 
 trading corporation may, 29. 
 wbat is a, 114. 
 
 Parol Evidence, 
 admissible, 
 
 ambiguous signature to explain, 117. 
 agent to sbow principal, 314, 315. 
 authority given partly verbally, 6. 
 
 Particular Agent, definition of, 54. 
 Particular Lien, definition of, 180. 
 
 Partner, 
 
 definition of, 93. 
 joint principal, 14. 
 sleeping, liability of , 261. 
 
 Part Ovtner, 
 
 agent, HabiHty of, by, 301—304. 
 
 agent to, when defence to action against principal, 264—267. 
 
 attorney, power of, under payer protected, 155. 
 
 authority to sell includes authority to receive, 230. 
 
 not liable as such for acts of other part owners, 16, 17.
 
 408 INDEX. 
 
 Payment, 
 
 authority of agent to receive, 71 — 77. 
 
 bankruptcy of agent, revocation of power to receive, 215. 
 
 principal, agent no right to make, 209. 
 bill of exchange, by, 73. 
 broker, authority to receive, 89, 90. 
 cheque by, 74—77, 136, 230. 
 clerk, authority to receive, 78. 
 Conveyancing Act, protection of payment, 55. 
 defence to action, when, 230. 
 factor, authority to receive, 92, 230. 
 freight, to shipbroker, 90. 
 insurance broker no right to make, 56. 
 mistake as to effect of, 303, 304. 
 
 person in charge of business has authority to receive, 78. 
 principal, when bound by, 56. 
 servant, rule as to, 75. 
 solicitor, payment to, when good, 69, 70. 
 stakeholder, rule as to, 303. 
 
 Person, definition of, in Factors Act, 241. 
 
 Per Peocubatiox, effect of signing contract, 63, 64. 
 Petition of Eight, remedy against public officer, 321. 
 
 Pilot, Compulsoey, shipowner's liability for negligence of, 281, 
 282. 
 
 Pledge, 
 
 antecedent debt or liability for, by mercantile agent, 244. 
 
 bill broker, no authority to, 92. 
 
 buyer, by, effect of, 249. 
 
 consideration for, when good, 245. 
 
 definition of, under Factors Act, 241. 
 
 documents of title, effect of, 244. 
 
 factor's authority to, 93, 232. 
 
 lien does not give authority to, 183. 
 
 morcantUo agent, by, effect of, 241, 243, 244. 
 
 eeller, by, effect of, 249. 
 
 Policy of Insurance, principal may sue on, though not men- 
 tioned, 316, 317.
 
 INDEX. 409 
 
 Possession, 
 
 consent of owner to, by agent, 244. 
 
 conversion when taking possession is, 310, 311. 
 
 broker has not, 4, 126. 
 
 buyer, by, effect of, 247, 327. 
 
 definition of, under Factors Act, 240. And see Addendum. 
 
 agent, with possession, 79. 
 factor has, 126. 
 
 intrusting, mercantile agent with, what is, 241, 242. 
 lien depends on, 183. 
 mercantile agent by, authorizes disposition by, 241, 242. 
 
 exchanges by, 243. 
 negotiable instrument, of, 79, 234. 
 principal taking, by fraud does destroy lien, 183. 
 
 Post Master, liability for negligence of, 307. 
 
 Power of Attorney, 
 
 construction of, 59, 60. 
 definition of, 32. 
 
 Power, 
 
 coupled with interest, what is, 197. 
 Conveyancing Act, provisions as to, 199, 200. 
 delegation of, 108. 
 revocation of, 206. 
 
 Premium, agent, when entitled to return of, 319. 
 
 Presumption, 
 
 consent of owner to possession, 244. 
 foreign principal not liable, 296. 
 
 Price, 
 
 action for, 347. 
 
 delivery of goods and pajinent of, concurrent conditions, 341. 
 
 how fixed, 334. 
 
 third party refusing to fix, avoids contracts, 334. 
 
 Principal, 
 
 alien cannot be, 11. 
 
 convict cannot be, 11. 
 
 definition of, 1. 
 
 employment of agent, limits of, 5. 
 
 infant cannot be, 7.
 
 410 INDEX. 
 
 Pri^'Cipal — continued. 
 lunatic cannot be, 8. 
 married woman cannot be, 8, 9. 
 person wbo can be, 7. 
 rigbts against agent, 
 
 account, 122—124, 148—154. See Account. 
 
 compensation to, 134, 135. 
 
 conversion for, 138. 
 
 credit, no action for loss of, 134. 
 
 damages, 134, 136. 
 
 declaration that agent, a trustee, 139, 142. 
 
 disobedience to order, remedies, 133 — 136. 
 
 dismiss, to, 140, 141, 156. 
 
 election to rescind contract or take secret profit, 143. 
 
 factor, rigbt to action, 154, 155. 
 
 gratuitous agent, 137, 138. 
 
 indemnity for violation of duty, 133, 134. 
 
 interest of money in agent's bands, 134, 138, 141. 
 
 limitations, defence of, 158. 
 
 mistake, no action for, 136. 
 
 mixing principal's property witb agent's, 125, 129. 
 
 money bad and received, 139. 
 
 money paid -svitbout authority, to recover, 135. 
 
 negligence, 133, 135. 
 
 non-feasance, 136. 
 
 Queen's Bench Division, 149, 150. 
 
 secret profit, for, 139. 
 
 skiU, want of, 136. 
 
 trustee, declaration that agent was, 139, 142. 
 
 violation of duty by agent, effect of, 135, 139. 
 liability to agent, 
 
 commission for, 157, 170. See Commission. 
 
 damages for preventing agent earning commission, 193. 
 
 indemnity, 171 — 179. See Indemnity. 
 liability to third party, 
 
 account, settlement of, with agent, effect of, 265, 268, 270. 
 
 acts of agent, 261, 272. 
 
 apparent authority of, agent, 259, 261. 
 
 apparent owner, where agent is, 261. 
 
 arrest by agent, 70, 71, 94, 279. 
 
 bailment, by, 279. 
 
 character, representations as to, 220, 221.
 
 INDEX. 411 
 
 Peincipal — contin ued. 
 
 liability to tliird party — continued. 
 
 compulsory pilotage, for, 281, 282. 
 
 contract on, 258. 
 
 credit to agent, effect of, 262. 
 
 deed, liability of principal under, 270. 
 
 defence, seller, against, 
 election, 263, 312. 
 exclusive credit to agent, 263. 
 judgment against, 18, 53, 264, 312. 
 
 delay of third party in suing, effect of, 367. 
 
 election, effect of, 197, 263, 295. 
 
 foreign principal, by, 268. 
 
 fraud of agent for, 220, 273, 277. 
 
 holding out, by, 260. 
 
 insui-ance club, to, 371. 
 
 judgment against agent, defence, 18, 53, 264, 312. 
 
 manager of business for, 276. 
 
 mistake of agent, for, 279. 
 
 negligence of agent, 277, 278. 
 
 owner, wbere agent, apparent, 261. 
 
 partner, sleeping, of, 261. 
 
 pilot, compulsory, where, 281, 282. 
 
 privity of contract, owing to, 105 — 107, 269. See Buh- 
 Agent ; Deler/ation. 
 
 promissory note of agent, for, 270. 
 
 public-bouse manager, act of, 260, 270, 271. 
 
 receipt by agent of goods or money, 272. 
 
 representation of agent by, 219. 220. 
 
 revocation of authority, 195, 243. 
 
 secret instructions cannot limit, 259. 
 
 settlement of accoimt with agent, effect of, 265 — 268, 270. 
 
 shareholder cannot sue, 276. 
 
 slandering agent, 255. 
 
 sleeping partner, of, 261, 
 
 unlawful act of agent, for, 272. 
 
 warranty on, by, 63. 
 
 wiKul wi'ongs of agent, for, 280. 
 rights against third party, 
 
 action, form of, against, 227. 
 
 antecedent debt or liability of agent cannot be set-off, 238. 
 
 bribing agent, for, 256.
 
 412 INDEX. 
 
 Peincipal — continued. 
 
 rights against third party — continued. 
 contract, on, 219, 220. 
 conversion, for, 251. 
 detinue, by, 228. 
 discovery, in action against, 228. 
 disposition by mercantile agent, 241 — 243. 
 earnings of agent, to sue for, 139. 
 enticing away agent, 255. 
 foreign princij)al, 209, 228. 
 follow goods, to, 142, 143, 251, 252. 
 hawker, not mercantile agent, 239. 
 ignorance of agent, effect of, 223. 
 intervention of principal, 227, 318. 
 knowledge of agent, effect of, on, 223, 225. 
 libelling agent, for, 255. 
 
 lunacy of principal, how affects, 199, 200, 212—214. 
 mercantile agent, when disposition by, 241 — 243. 
 misrepresentations, effect on, 225. 
 none for, 229. 
 representation of agent, effect on, 219, 220, 273—276. 
 
 Peivate Contract, auctioneer, authority to sell by, 85, 86. 
 
 Private Purpose, authority for, does not survive, 18. 
 
 Privity of Contract, when exists between sub-agent and prin- 
 cipal, 105—107. 
 
 Profits, Secret, 
 
 agent Uablo to account for, 138, 139. 
 agent not liable to account for, 141, 142. 
 
 before agency commenced, 159. 
 duty to disclose, 128, 145, 146. 
 
 hand over to principal, 125. 
 election, principal can take or rescind contract, 141, 143. 
 follow, principal, cannot, 254. 
 jn'omotor's liability, as to, 143—145. 
 
 Promissory Note, 
 
 agent's right to take, 89. 
 duty of agent, as to, 113. 
 liability, a rule as to, 270.
 
 INDEX. 413 
 
 Promoter, 
 
 company, liability on contracts of, 37. 
 
 duty of, 143—145. 
 
 position of, 143. 
 
 ratification of contracts of, 36. 
 
 Proof, 
 
 admissible to sbow agent is principal, 314. 
 
 agency, of, wlien necessary, 44. 
 
 consent to possession by owner, 244, 326. 
 
 custom, 293, 294. 
 
 of negligence, onus of, 281. 
 
 ratification, 39. 
 
 representation by agent, 219, 220. 
 
 signature of contract, wben necessary, 44. 
 
 Public Agent, 
 
 contract cannot be sued on, 321. 
 
 money had and received, whether, can be sued for, 321, 322. 
 
 negligence, liable for, 322. 
 
 not liable for acts of subordinates, 308, 323. 
 
 ratification of act of, effect of, 324. 
 
 revocation of authority of, 194. 
 
 tort, liabiHty for, 322, 324. 
 
 Public Authority, 
 
 cannot be delegated, 5, 111. 
 revocation of, 194. 
 survivorship of, 19. 
 
 Public Body, liabiHty of, 322, 323. 
 
 Public Health Act, contracts over 50?. must be by deed, 26. 
 
 Public House, 
 
 liability of owner of, for acts of manager, 260. 
 misrepresentation of auctioneer as to right of way to, 225. 
 
 Quantum Meruit, when agent a right to, 168, 169. 
 
 Quit, Notice to, 
 
 cannot be ratified, 50. 
 joint tenant can give, 15. 
 
 Quod Comfutit, old writ of, 149.
 
 414 INDEX. 
 
 Railway Company, 
 
 arrest by agent, liability for, 70, 71. 
 building of, contract to, wben tiltra vires, 47. 
 delegation by, running powers of, 5, 111. 
 
 Eeal Peopeety Act, for amendment of law as to, 23. 
 
 Eatification, 
 
 acceptance by agent of offer can be, after withdrawal, 51, 52. 
 
 acquiescence, by, 38, 39, 41. 
 
 action by bringing, 39. 
 
 acts of, only of agent can be, 34, 35. 
 
 wben cannot be, 48. 
 agent, effect on, liability of, 52. 
 agent liable for tort in spite of, 53. 
 charter-party, when can be, 48. 
 company, by, 42, 43. 
 conditions necessary to, 34, 36, 43. 
 contract of, 
 
 altogether or not at all, 48. 
 
 when may be, 47. 
 conversion, of a, what is, 41, 42. 
 delay in objecting, when amounts to, 38, 41. 
 duty, acts giving rise to, cannot be, 49, 50. 
 effect of, 43. 
 
 election, when gives third party, 53. 
 evidence may be slight where relation of principal and agent 
 
 exists, 39. 
 fine, levy of, when can be, 49, 50. 
 forgery, 44 — 46. 
 form of, 34 
 illegal sale, receipt of proceeds, when amounts to, 42. 
 
 does not amount to, 41. 
 infant, by, when has power to, 53. 
 insui'ance of, when can, after loss, 51. 
 interest, taking, when amounts to, 39. 
 late, when too, 49. 
 
 lawful acts cannot be made unlawful by, 48, 49. 
 principal must bo in existence, 36. 
 probability, must not rest on, 39. 
 receipt of proceeds of illegal sale,, not necessarily, 41. 
 sale of land, of, what amounts to, 40, 41. 
 Bale, illegal, what amounts to, 41, 42.
 
 INDEX. 415 
 
 Eatific ATION — CO n tinued. 
 sharelioldors, by, 42, 43. 
 similar acts of, what is, 43. 
 stoppage in transitu, when cannot be, 49. 
 stranger, act of, what amounts to, 39, 40. 
 third party, right of election by, 53. 
 time from which takes effect, 43. 
 
 when too late, 49, 50, 51. 
 tort, agent liable for, in spite of, 53. 
 
 principal's liability for, by, 41, 42. 
 ultra vires, act which is, cannot bo, 46, 47. 
 unauthorized person, not agent, of acts of, 39, 40. 
 
 Eeady Moxey, 
 
 auctioneer, duty to take, 82. 
 broker need not sell for, 59. 
 committee of club ought to pay, 65. 
 factor need not sell for, 92. 
 
 Eeceipt, 
 
 agent by, when discharge, 71. 
 
 authority to sell, includes authority to give, 230. 
 
 bankruptcy of agent revocation of power to give, 215. 
 
 broker, duty as to, 77. 
 
 cheque by, effect of, 74, 77. 
 
 clerk, when authority to give, 78. 
 
 deed, on, is authority to pay, 69. 
 
 discharge, when is, 71, 264, 267. 
 
 factor, authority to give, 92, 230. 
 
 money ought to bo in, 77. 
 
 servant, rule as to, 75. 
 
 set-off is not, 71, 72. 
 
 stakeholder, by, effect of, 303. 
 
 Eeimbttrsement, 
 
 agent, when power to sell in order to, 183. 
 
 master, right of, 188. 
 
 sub-agent, right of, 19. See Tndemnit// and Dishiirsonotfs, 
 
 Eelease, agent guilty of dishonesty must prove, 147. 
 
 Ee-letting, commission, when jiayable on, 162.
 
 416 INDEX. 
 
 Eemoteness of Eesult, 
 
 causa causans, agent must be, to entitle to commission, 160, 
 
 163. 
 cliartering of ship, 161. 
 damages, wlien too, 134. 
 introduction, 163. 
 
 loan, agent, wlien not entitled to commission on, owing to, 162. 
 partnership, 163. 
 renewal of lease, 162. 
 sale after letting, 163. 
 
 work, agent not entitled to remuneration, owing to, 161, 162. 
 See also OiUoiu v. Lord Aherdare, (1892) 9 Times, 12. 
 
 Eemuneration, 157 — 170. See Commission, 
 
 Eenunciation of Agency, 
 
 damages, when principal entitled to, by, 201. 
 duty of agent in case of, 201. 
 
 Eepaiks, 
 
 authority of master of ship, to borrow to do, 97. 
 
 to order, 97. 
 liability of co-owner for, 16, 17. See also Tyneside Engine 
 Works Co. V. Ooldsmith, 8 Times, 478. 
 m.aster of ship, for, 301. 
 
 Eepresentation of Aqext, 
 character as to, 220, 221. 
 liability of principal for, 219, 220, 225. 
 
 Eescission of Contract, 
 agent's right to, 90. 
 
 bribing agent gives principal right to, 256. 
 broker, no authority to, 57. 
 
 when has right to, 90. 
 fraud gives right to, 222, 223. 
 principal, when can, 143, 256. 
 shareholder, right to, 276, 277. 
 
 Eetainer, solicitor when ought to have, 31, 32, 103. 
 
 Eevenue Act, broker must execute contract note by, 168.
 
 INDEX. ^ 417 
 
 Eevocation of Authoeity, . 
 act of law, 192. 
 act of party, 192. 
 
 appointment of receiver, acts as, 204. 
 attorney, power of, effect of, 206, 207. 
 bank, winding-up, has effect of, after notice, 208. 
 bankruptcy of agent, 215. 
 
 principal, 207, 211. 
 commission agent not entitled to notice of, 193, 204. 
 commission, jDayment of, cannot be avoided by, 169. 
 compensation for, 193. 
 
 contract may be, until binding contract, 193. 
 Conveyancing Acts, provisions as to, 199, 200, 206, 207. 
 damages, wben agent entitled to, owing to, 193, 204. 
 death of agent, 214, 218. 
 
 principal, 204, 205, 
 debt, security for, cannot be, 197. 
 definite time, authority given for, when irrevocable, 200. 
 
 revocable, 192. 
 del credere agent, of, 210, 211. 
 determination of subject-matter, acts as, 201. 
 employment, contract of, effect on, 202, 203. 
 factor with lien, not affected by, 205, 209. 
 fixed time, authority given for, when not revocable, 200. 
 
 revocable, 192. 
 holding out, effect of on, 213, 214. 
 ignorance of, effect on agent, 204, 205. 
 
 principal, 195, 205. 
 indemnity, 169. 
 
 insurance brokers, effect of, 209. 
 ii-revocable, when, 193, 195, 199, 200, 206. 
 losses, settlement after, 209. 
 lunacy of agent, 215. 
 
 principal, 212, 213. 
 master of ship, of, 205. 
 mercantile agent of, 243, 326. 
 mode of, 195. 
 
 mortgagee taking possession, acts as, 204. 
 mutual consent, 192. 
 notice of, agent entitled to, 194. 
 
 commission agent not entitled to, 193. 
 
 third party, entitled to, 195, 205, 214. 
 
 W. E E
 
 418 INDEX. 
 
 Ee VOCATION OF Authority — continued. 
 
 ownership, deteiTnination of, acts as, 204. 
 
 partly exercised authority, wlien can be, 194. 
 
 payment after, 207. 
 
 power coupled with, interest cannot be, 193, 199, 200, 206. 
 
 definition of, 197. 
 premiums, set-off after, 206. 
 principal doing work sometimes is, 169. 
 public agent of, 194. 
 
 sale can be before binding contract of, 193. 
 security for debt, authority cannot be, 19. 
 thii-d party, effect of, on, 195, 205, 213, 214. 
 time of, 193, 194, 
 
 given for definite time, may be, 192. 
 validity of acts done after, 206, 209. 
 will, at, authority, can be, 194. 
 winding-up, has effect of, after notice, 208, 209. 
 years, authority given for, may be at any time, 192. 
 
 not be, when, 200. 
 
 Eight, against principal cannot be tried by voluntary pajTnent to 
 agent, 306. 
 
 ETrx^'ryG Accou^tt, 
 
 acceptance, what is, on, 343. 
 
 agent to buy cannot sell to himself, 3, 126, 127. 
 
 for, cannot buy, 272. 
 agreement to, 332. 
 
 buyer, title by, when seller not owner, 21. 
 effect of, 72. 
 
 Sale, 
 
 capacity, to, 332. 
 
 commission on, 162. 
 
 conditional, effect of, 338. 
 
 conviction of thief revests property in spite of intermediate sale, 
 
 339. 
 delivery, rules as to, on, 341. 
 fitness, conditions implied as to, 336. 
 formalities of contract, 333. 
 future goods, of, 333. 
 instalments, delivery by, 342.
 
 INDEX. 
 
 419 
 
 Sale — continued. 
 
 intermediate sale, voided by, 339. 
 
 market overt, in, effect of, 339. 
 
 mercantile agent, by. See Mercantile Agent. 
 
 payment, rule as to, 341. 
 
 perishable goods, of, 333, 334. 
 
 price, action for, 347. 
 
 property, wben passes by, rules as to, 337. 
 
 quality, conditions implied, as to, 336. 
 
 rejection of goods, duty of buyer, 343. 
 
 remedies of buyer, 347, 348. 
 
 of seller, 347. 
 sample, conditions as to, 336. 
 specific performance, 348. 
 time, conditions, as to, 334. 
 valuation, by, 334. 
 voidable title under, effect of, 339. 
 warranty, 
 
 breach of, effect of, 348. 
 
 condition, when is, 334. 
 
 Sale or Eetuen, property in goods, when passes, sent on, 337. 
 
 Sample, 
 
 description, goods sold by, must not only correspond to, 335. 
 sale by, rules as to, 336. 
 
 Scope of AuinoEiTY, 
 
 admission to bind principal must be -witliin, 62, 63. 
 " class of acts," within, liability of principal for, 274. 
 commission not payable unless work within, 163, 164. 
 company, liability for agent's acts within, 273, 274. 
 principal liable for acts of agent within, 55, 56, 61, 62, 66, 68, 
 
 228, 259, 260. 
 representations of agent to bind principal must be within, 219, 
 
 220, 
 
 Seal, 
 
 company, of, who can affix, 30. 
 contract, when, must be under, 23. 
 
 when, must be by, 23—26, 28. 
 corporations, non-trading, can only act under, 24 — 26. 
 
 trading for trade purposes, can act without, 28, 29. 
 local board can only make contract on 50/. under, 26. 
 See Deed. 
 
 E E 2
 
 420 IISDEX. 
 
 Secret Instructions, 
 effect of, 259. 
 stockbroker, to, 58. 
 
 Secret Profit, liability of agent to hand over to principal, 139. 
 Secretary, liability of company for acts of, 273 — 275. 
 
 Security, 
 
 banker taking deed for, has no lien, 185. 
 taking, forfeits Hen, 184. 
 
 Sell, 
 
 agent to, has power to receive payment, 230. 
 mercantile agent has authority to, 241. 
 
 Servant, 
 
 common employment, doctrine of, 280. 
 
 course of employment, principal liable for acts of, done within, 
 
 273, 278, 279. 
 distinguished from agent, 2. 
 duty of, 70, 71. 
 
 horsedealer's, authority of, 63. 
 negligence of, liability of principal for, 277. 
 payment, how, ought to be made to, 75. 
 
 Set-off, 
 
 agent's right of, in principal's bankruptcy, 210. 
 
 antecedent debt or liability of, 244. 
 
 banker, authority to, 79 — 81. 
 
 broker, when third party dealing with, 235, 236. 
 
 conditions of, 233, 234. 
 
 country broker, sot-off, 72. 
 
 extent of right to, 233. 
 
 insurance broker, right of, 
 
 against trustee in banki'uptcy, 210. 
 usually, right of, 72, 73. 
 moans of knowledge that there was, jirincipal not sufficient 
 
 to prevent, 234. 
 money-lender, of, advance to, 236. 
 mutual claims, right to, 234. 
 
 notice that tliore is a principal, destroys right, 235, 237, 242. 
 third party dealing with agent, when right of, 231.
 
 INDEX. 421 
 
 Settle Losses, 
 
 bankruptcy of principal revokes authority to, 209. 
 iusui-anco agent, when authority to, uG. 
 
 Settlement between Principal and Agent, when, destroys 
 third party's right of election, 264 — 268. 
 
 Sexton, may employ depu.ty, 110. 
 
 Shareholdee, 
 
 action by, against company, cannot bring, 276, 277. 
 director's acts, ratification of, 68, 69, 222. 
 promoter's contract, ratification of, 36, 37. 
 ratification by, 42, 43, 47. 
 
 Shipbroker, 
 
 charter-party, signing of, may be delegated to, 106. 
 unintelligible, no commission on, 164, 
 commission of, when entitled to, 164, 167. 
 freight, duty as to, 90. 
 
 Shipowner, 
 
 custom dues paid by mistake, may recover, 255. 
 entitled to profits made by captain, 125, 139. 
 
 Skill, 
 
 agent liable for want of, 136. 
 
 what skill duty to have, 136. 
 arbitrator not liable for want of, 154. 
 delegate, skilled agent cannot, 108. 
 gratuitous agent not liable for want of, 137, 138. 
 public agent, liable for want of, 322. 
 
 Sole Agent, 
 
 principal agreeing to employ as, 
 
 if acts himself, liable to agent, 169. 
 if does no business, not liable, 202, 203. 
 
 Solicitor, 
 
 action, in, represents client, barrister only in Court, 101. 
 
 institution of, no authority, 103. 
 appointment of, in articles of association, 30. 
 authority in action, 78. 
 change of, effect of, 187. 
 clerk of, demand by, 49. 
 payment to, 302.
 
 422 INDEX. 
 
 Solicitor — continued. 
 
 commencement of action by, no authority to, 103. 
 
 compromise of action, authority of, 102. 
 
 Conveyancing Act, provision as to payment to, 69, 70. 
 
 demand of pajinent by clerk of, 49. 
 
 deposit, liability to repay, 301, 302. 
 
 duties of, 131. 
 
 fiduciary agent, 130, 131. 
 
 general agent, 78, 101. 
 
 indictable offence of, not to act as, 12. 
 
 interest, liability to pay, 139. 
 
 journey by, authority to make, 103. 
 
 lien of, 186, 187. 
 
 London agent's lien, 186. 
 
 Hability of principal to, 283, 28-1, 300, 301. 
 negligence, what is, in, 136. 
 notice to, efiect of, 101. 
 payment to, of deposit, 302. 
 
 when authorized, 69. 
 penalty for acting as, if not, 12. 
 principal, liability to London agent, 283, 284. 
 receipt on deed, authorizes payment to, by, 70. 
 retainer, ought to be in wi'iting, 32, 103. 
 stakeholder, no presumption that is, 302. 
 
 Special Peoperty, auctioneer has, in goods entrusted to him, 82. 
 
 Specific Perfoem^^'ce, buyer's right to, 348. 
 
 Stakeholder, agent liable for money paid to, when, 302. 
 
 State of Accounts, between principal and agent, when bar to 
 action against i^rincipal, 264 — 268. 
 
 Stated Account, when principal may open, 151, 152. 
 
 Statutes generally. See Talk of Statutes, p. xxxvii. 
 
 Statute of Frauds, 
 
 appointment of agent, when in writing, 32. 
 memorandum under 17th section, 83, 86, 87, 133. See Sale of 
 Goods Act, s. 3, 2^' 333, and Schedule. 
 
 Statute of Limitations, 
 
 account, action for, when begins to run, 154. 
 dufcuco of, by agent, 152, 153. 
 
 Steward, liability of, Ml.
 
 INDEX. 423 
 
 Stockbroker, 
 
 authority of, 55, 57, 90. 
 
 bankruptcy of, liability of principal in event of, 173, 174. 
 
 bought note, ought to make, 168. 
 
 close account, when right to, 57, 175. 
 
 contango, when dealing in, can pledge, 81. 
 
 contract, when completed, 58. 
 
 credit, may deal on, 89. 
 
 custom, liable for genuineness of documents, 176. 
 to ignore Leeman's Act, effect of, 58. 
 
 differences, non-payment, authorizes closing of account, 57, 
 175. 
 
 documents, genuineness of, liability for, 176. 
 entrusting negotiable instruments to, effect of, 79, 80. 
 gambling, liability of principal, 177, 178. 
 indemnity, right to, 173, 175, 177. 
 
 bankruptcy, in, 176. 
 Inland Eevenue Act, 168. 
 jobber, liability of, 57, 58, 175. 
 Leeman's Act, custom to ignore, effect of, 58. 
 liability for genuineness of documents, 176. 
 lien of, 180. 
 
 mistake of principal, effect of, 90. 
 name day, liability until, 89. 
 option, when must give principal, 174. 
 pledge, no power to, 79. 
 
 exception, 81. 
 principal not bound by unreasonable custom, unless knows of 
 
 it and assents, 58. 
 principals inter se, 3, 298, 300. 
 promissory note, may not take, 89. 
 pui'chaser, liability to third party, 58. 
 remuneration, entitled to, though has not made contract note, 
 
 168. 
 scrip, effect of entrusting to, 79, 80. 
 set-off, right of, against country broker, 72. 
 Stock Exchange, rules of, 57, 90, 91. 
 sue, principal can sire stockbroker of third party, 73. 
 undisclosed principal can sue, 73. 
 unreasonable custom, effect of, 58, 175, 
 indemnity against, 176.
 
 424 INDEX. 
 
 Stoppage in Tiiansitu, 
 
 agent, wlien. right of, 188 — 190. 
 
 Sale of Goods Act, provisions as to, 345, 346. 
 
 surety, no right to, 189. . 
 
 Sub-Agent, 
 
 agent's liability for, 105, 106, 
 
 to. See Addendum. ' 
 appointment of, when right to. See Delegation, 104 — 111. 
 authority of, determination of, 194. 
 
 commission agent, entitled to,. if work done through, 160, 161. 
 disbursement of lien for, 191. 
 London agent is, 301. See London Agent. 
 privity of contract between, and principal, 107. 
 public agent of, determination of authority, 194. 
 public officers, not liable for acts of, 323. 
 
 Supercargo, 
 
 definition of, 92. 
 
 determination of authority of, 205. 
 
 Surcharge and Falsify, principal's right to agent's accounts, 
 151. 
 
 Surety, no right to stoppage in transitu, 189. 
 
 " Telegraphic Authority," per, effect of agent signing, 287. 
 
 Tenant in Common, not joint principal, 16. 
 
 Tender, when good to agent, 78. 
 
 Termination of Agency. See Determination of, 198 — 218. 
 
 Title, 
 
 free from incumbrance, 335. 
 
 right to soil, 335. 
 
 right, quiet possession, 335. 
 
 sale of goods, imj)licd warranty as to, 335. 
 
 Title of Principal, 
 
 agent cannot dispute, 147. 
 
 commission, agent when right to, if loan falls through owing 
 to fiaw in, 165, 166. 
 
 Title Deeds, entrusting agent with, estops principal recovering 
 thorn without paying loan of third party on thorn, 237.
 
 INDEX. 425 
 
 Tort, 
 
 agent liable for his, 307, 308. 
 
 commissioners, lighting, liability for, 323. 
 
 contribution between tort-feasors, 53. 
 
 conversion, liability of agent for, 309. 
 
 government, liability for, 322. 
 
 indemnity, agent when right to, for committing, 171, 172. 
 
 master of ship, liability for crew's, 308. 
 
 principal, liability for agent's, 281. 
 
 ratification of agent's, 52. 
 principal may sue agent for, 137. 
 public agent liable for his own, 308. 
 
 unless ratified by government, 324. 
 
 not liable for those of subordinates, 323. 
 ratification of, 35, 41, 42, 52. 
 servant's, liability of principal for, 273, 277, 280. 
 
 Tort-Feasors, 
 
 agent personally liable, 307, 308. 
 contribution between, 53. 
 indemnity, when have right to, 171, 172. 
 public agent liable, who is, 308. 
 
 Trading Corporation, 
 
 can contract without seal for trade piu-pose, 28. 
 must use seal for other purposes, 29. 
 
 Transfer, 
 
 documents, effect on right of stoppage in transitu, 190, 248. See 
 
 also Sect. 47 of Sale of Goods Act, 346. 
 mercantile agent, by, 241 — 243. See Disposition. 
 modes of, 249. 
 
 Trespass, 
 
 agent, liability for, 307, 308. 
 principal's liability for agent's, 287. 
 
 by ratification of agent's, 52. See Tort. 
 
 Trust Property, principal right to follow, 142, 143, 251 — 254. 
 
 Trustee, 
 
 agent to buy, buying for self, will be declared trustee, 126. 
 
 bankrupt, removal of, 215, 216. 
 
 delegation by, 110. 
 
 payment by, protection of, 155. 
 
 W. F F
 
 426 INDEX. 
 
 Ultha Vires, 
 
 company cannot ratify act whicli is, 46, 47, 69. 
 exercise of authority, partly, ho-w far good, 118. 
 
 Unauthorized , 
 
 act, acquiescence in, effect of, 68. 
 
 principal liable, if within apparent authority, 64. 
 authority, exercise of, when good, 118. 
 contract, agent's liability on, 52. 
 
 ratification of, can be ratified by principal after third 
 party withdraws from, 51. 
 payment, agent cannot recover, 173. 
 services, principal not liable to pay for, 163. 
 tort, principal when liable on, 52. See Ratification ; and see 
 Tort. 
 
 Under WHITER, 
 
 banki-uptcy of, effect of, 210, 211. 
 custom of, 298, 299. 
 insurance broker liable to, 304. 
 
 not liable to, 305, 306. 
 
 not agent of, to pay loss, 56. 
 
 Undiscxosed Principal, 
 agent of, liable, 52, 296. 
 broker of, not liable, 293. 
 custom may make broker of, Hable, 293, 294. 
 deed on, liability of, 270. 
 insurance club, of, when protected, 271. 
 liability of, 260—262. 
 
 exception, settlement of account with agent, 263. 
 ratification by, does not alter agent's liability, 52. 
 settlement of account with agent, when protects, 263 — 266. 
 
 Universal Agent, definition of, 54. 
 
 Unreasonable Custom, liability of principal by, 174, 175, 176, 196. 
 
 Usage, 
 
 agent, whon liable by, 293, 294. 
 
 liable to principal, if does not adhere to, 63. 
 not liable, if adheres to, 59. 
 authority of agent by, 56 — 58. 
 
 cotton market, Liverpool. See Coohe v. EsheUnj, 12 Ap. Cas. 
 271.
 
 INDEX. 427 
 
 Usage — cori^inued. 
 
 commission fixed by, 158. 
 
 contract cannot bo altered by, 59, 60. 
 
 evidence of, when necessary, 294. 
 
 foreign country, of, authority to conform to, 67. 
 
 fniit market, 293. 
 
 hop market, 294. 
 
 shipbroker, of, as to commission, 167. 
 
 solicitor, London agent liable to, 283. 
 
 Stock Exchange, governs authority of stockbroker, 57, 58, 283. 
 
 closing accounts, 175. 
 
 genuineness of documents, 176. 
 
 Leeman's Act, of ignoring, 196. 
 trade, of, admissible in evidence to interpret powers, 60. 
 unreasonable, principal not bound by, 174, 196. 
 
 unless knows and assents, 175. 
 variation of authority by, cannot be, 60. 
 ■wool trade, 88. 
 warrant, agent when authority to, by, 63. 
 
 Useless Woiik, 
 
 agent not entitled to commission for, 164. 
 broker not entitled to commission for, 164. 
 jury decide whether work is, 161. 
 
 Vakiation, 
 
 between bought and sold note, effect of, 89. 
 broker, authority to make, 90. See Addendum. 
 custom, cannot make, in authority, 60. 
 
 Vendor, 
 
 definition of, in Sale of Goods Act, 343. 
 
 remedies of, 347. 
 
 re-sale by, effect of, 346. 
 
 rights of, 344. 
 
 trover, right to bring action for, 189. 
 
 unpaid, right of stoppage in transitu, 188. 
 
 Vendor and Purchaser, relation between, distinguished from 
 that between principal and agent, 4. 
 
 Violation of Duty, agent must indemnify principal for, 133.
 
 428 INDEX. 
 
 Void Contract, 
 
 agent has no right to commission on, 168. 
 betting contracts are, 177 — 179. 
 
 Wages, 
 
 bookmaker cannot sue on contract relating to, 178. 
 
 must pay money received from, 179. 
 
 cannot recover if pay, 178. 
 master of ship has lien for, 187. 
 
 Warehouse Keeper, 
 
 certificate, document of title, 240. 
 
 possession as, not an entrusting as mercantile agent, 239. 
 
 Warrant, 
 
 auctioneer no right to, 82. 
 
 bill, when agent right to, 77. 
 
 dock, document of title, 240. 
 
 goods, for, document of title, 240. 
 
 horse, of, servant of horsedealer has authority to, 63. 
 private servant no right to, 63. 
 Warranty, 
 
 distinction between, and conditions, 334, 335. 
 
 implied, what are, in sale of goods, 336. 
 
 remedy for, breach of, 348. 
 
 title, as to, 335. 
 
 Wharfinger, 
 
 custody of, efiect of, 239, 240. 
 Hen of, 180. 
 
 Wife, 
 
 authority of, 62. 
 
 bill of exchange, indorsement by, effect of, 113. 
 
 Wilful Act, liability of principal for, 280. 
 
 Writing, when agent must bo appointed by, 24, 32. 
 
 Wrongdoer, agent, when, cannot apportion injury, 133.- 
 
 Wrongful Dismissal, action for, when lies, 193, 202, 204. 
 
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