Commission.

The amount is either regulated by a particular
contract in each particular case (b), or determined
by the usage of trade (c), or settled by particular
acts of parliament (d). Where there is a particular
agreement, it controls the usage of trade; for the
maxim is, conventio vincit legem (e); and if by the
terms the amount of the commission is to be left
to the principal's discretion, the agent cannot sue
the principal for any compensation whatever (f).
No commission can be recovered where the trans-
action in which the agent was employed was ille-
gal, as in bargaining for the sale of an office (g),
or for the sale of shares in an illegal joint-stock
company (h).
But if the adventure be subse-
quently legalized, the agent will not be barred
from recovering his commission (i). Where the
agent has been guilty of gross negligence in the
execution of his authority, he can support no claim

(b) See Paley Pr. & A. 101.

(c) See Eicke v. Meyer, 3 Campb. 412; Cohen v. Paget, 4 Campb. 96; Roberts v. Jackson, 2 Stark. N. P. C. 225; Chapman v. De Tastet, 2 Stark. N. P. C. 294; Broad v. Thomas, 7 Bingh. 99.

(d) See 12 Ann. st. 2. c. 16. s. 2; 31 Geo. II. c. 10, s. 30; 17 Geo. III. c. 26.

(e) Bower v. Jones, 8 Bingh. 65. See 6 T. R. 262.

(f) Taylor v. Brewer, 1 M. & S. 290.

(g) Stackpole v. Earle, 2 Wils. 133. Supra.

(h) Josephs v. Pebrer, 3 B. & C. 639; see Holland v. Hall, 1 B. & A. 53.

(i) Haines v. Busk, 5 Taunt. 521; S. C. 1 Marsh. 191.

sion.

against the principal for commission (k); as, where, Commisthrough default on the part of the agent, his employer derives no benefit from the transaction(); or, where he wilfully acts contrary to the interests of the principal (m).

agent.

Thirdly, The agent is entitled to a lien upon all Lien of property of the principal in his hands (n), and the lien is either general or particular (o). It was formerly doubted whether factors and other agents were entitled to any lien for a general balance of account due in respect of prior dealings with the principal; it is now, however, clearly decided that they have such general lien (p); but the lien must be claimed in respect of similar dealings between the agent and principal, and not in respect of dissimilar and collateral transactions (q). And the debt, in respect of which the lien is claimed by a factor or other agent, must be due to him in his

(k) White v. Chapman, 1 Stark. N. P. C. 113; White v. Lady Lincoln, 8 Ves. Jun. 371.

(1) Denew v. Daverell, 3 Campb. 451; Hammond v. Holiday, 1 C. & P. 384.

(m) Hurst v. Holding, 3 Taunt. 32; Thompson v. Havelock, 1 Campb. 527.

(n) See Paley Pr. & A. 127.

(0) Vid. supra, p. 181. 16 Ves. Jun. 280, per Lord Eldon, Ch. (p) Kruger v. Wilcox, Ambl. 252; Man v. Shifner, 2 East, 523; Curtis v. Barclay, 5 B. & C. 141.

(q) Weldon v. Gould, 3 Esp. 268, per Lord Kenyon, C. J. Houghton v. Matthews, 3 B. & P. 494, 5, per Heath, J.

Lien.

Agreement not to claim

lien.

When the

lien attaches.

own right and not as agent for another (r). A sub-agent is not entitled to a lien against the principal (s).

If, by the terms of the contract between the principal and agent, the lien is relinquished, the agent cannot afterwards insist upon it; as, where the goods were to be sold for the benefit of a particular creditor of the owner (t), or, where it was expressly stipulated, that, in the event of the goods remaining unsold, they should be returned to the consignor (u). In order to entitle the agent to a lien, he must have been in possession of the goods (r); and the possession must have been obtained by the direction and authority of the principal (y). But the intermediate death of the principal, after the consignment and before the arrival, will not divest the factor's lien (z). As soon as the agent has parted with the possession of the goods, he is deemed to have given up his lien (a); as, by shipping the

(r) Houghton v. Matthews, 3 B. & P. 485.
(s) Maans v. Henderson, 1 East, 335; Snook
Campb. 218; Solly v. Rathbone, 2 M. & S. 298.
(t) Weymouth v. Boyer, 1 Ves. Jun. 416.

(u) Walker v. Birch, 6 T. R. 258.

V.

Davidson, 2

(x) Kinloch v. Craig, 3 T. R. 119, 783; 1 East, 4; Heywood v. Waring, 4 Campb. 291.

(y) Taylor v. Robinson, 2 B. Moore, 730, per Eyre, C. J.; 3 T. R. 787. See Nichols v. Clent, 3 Price, 547.

(z) Hammonds v. Barclay, 2 East, 227.

(a) Per Lord Hardwicke, Ch., Kruger v. Wilcox, Ambl. 254. Per Lord Mansfield, C. J., Godin v. London Ass. Company, 1 Burr.

goods to the principal or his order (b). So, it is a Lien.
constructive waiver of the lien, if delivery of the
goods be demanded, and the goods be claimed to
be retained on some other ground (c).

lien.

As the power of a factor is a power to sell the Transfer of goods entrusted to him, he has strictly no power to pledge them; and at common law the transfer to a bona fide pledgee was ineffectual to transfer any right or interest whatever, even to the amount of the factor's lien against his principal (d). But by statute (e), an alteration has been introduced.

There are three distinct classes of cases relating to the right which the statute gives to a factor to pledge the goods of his principal. The first is, where certain (enumerated) documents for the delivery of goods are deposited or pledged, without notice by the document or otherwise that the holder is not the owner of the goods described therein. The second is, where goods are taken in pledge for a pre-existing debt, without notice. The third is, where goods are deposited for advances, with notice. In the first case, the pledgee acquires a right proportioned to the whole amount of his advances. In the second and third cases, he acquires only such right as the factor possessed at the time of the

(b) Sweet v. Pym, 1 East, 4.

(c) Boardman v. Sill, 1 Campb. 410, n.

(d) See above, p. 295, 6.

(e) 6 Geo. IV. c. 94, ss. 2, 3, 5. (The Factor's Act).

Lien.

deposit; or, in other words, the lien of the factor is transferred to the pawnee. (f).

It is further provided (g), that the true owner may recover the goods from the factor or agent before a sale, deposit, or pledge, or from the assignees of the factor or agent in the event of his bankruptcy.

General

rule.

SECTION II.-Rights of Vendor in respect of
Vendee's Agent.

The general rule is, that where the principal is known, and there is no express engagement with the agent, the latter is not personally liable on the contract (h). But it is laid down that the agent may become liable in three cases (i).

First, where the principal is not known.

Secondly, where there is no responsible principal.

Thirdly, where the agent binds himself personally.

(f) This subject seems more properly to belong to a preceding chapter, as the question, though relating to the factor's power of pledging the goods and transferring his lien thereon, is in effect between the owner and the transferree. See above, Book II. Part 1, Chap. iv. (pp. 295-302,) where the Factor's Act is more fully considered.

(g) 6 Geo. IV. c. 94, s. 6.

(h) Owen v. Gooch, 2 Esp. 567; Goodbaylie's case, Dyer, 230 b. Ex parte Hartop, 12 Ves. 352; Graham v. Stamper, 2 Vern. 146; De Gaillon v. L'Aigle, 1 B. & P. 368.

(i) Paley Pr. & A. 371.