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against the principal for commission (A:); as, where, commisthrough default on the part of the agent, his em- slon' ployer derives no benefit from the transaction (/); or, where he wilfully acts contrary to the interests of the principal^).

Thirdly, The agent is entitled to a lien upon all Lien of property of the principal in his hands (n), and the age"" 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. S71.

(f) 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.

(/») See Paley Pr. & A. 127.

(o) 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 Kenyan, C. J. Houghton v. Matthews, 3 B. & P. 494, 5, per Heath, J.

i>n. own right and not as agent for another(r). A

sub-agent is not entitled to a lien against the principal (s).

Agreement if by the terms of the contract between the prin

not to claim * A

'wn. cipal 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 (0, or, where it was expressly stipulated, that, in the event of the goods remaining unsold, they shoidd be returned to the consignor (u). when the In order to entitle the agent to a lien, he must ladies. have been in possession of the goods (x); and the possession must have been obtained by the direction and authority of the principal^). But the intermediate death of the principal, after the consignment and before the arrival, will not divest the factor's lien (2). 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.

(*) Manns v. Henderson, 1 East, 335 ; Snook v. Davidson, 2 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.

(*) 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, Arab]. 254. Per Lou] Mansfield, C. J., Godinv. London Ass.Company, 1 Burr.

goods to the principal or his order (£). 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).

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, (y).

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.

Section II.—Rights of Vendor in respect of
Vendee's Agent.

General 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 (A). 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. 116; De Gaillon v. L'Aigle, 1 B. & P. 368.

(i)Paley Pr. & A. 371.

First, where the principal is not known.

In all cases where a factor buys or sells goods, Agent not without declaring that he acts as agent, and dis- principal, u closing the name of the principal, he may be sonaity. considered the principal, and is in all respects liable as such (A:). It is not sufficient that the agent was known to act in the character of agent, if the real principal was not disclosed (7). And the notification must take place at the time of the contract, in order to discharge the agent (m).

Secondly, where there is no responsible princi- where pal to resort to, the agent is personally liable (n). responsible But an exception is made in the case of public pnncipa' agents; the Governor of Quebec was held not personally liable for goods supplied for the use of the settlement (o); so, a commissary general is not liable for forage supplied by his orders(jo); nor a commanding officer, present with his troop, for necessaries furnished to the men^).

(k) Blackburn v. Sc/ioles, 2 Campb. 343; Seaber v. Hawkes, 5 M. & P. 549.

(I) Hanson v. Roberdeau, Peake, 120.

(m) Morgan v. Corder, Paley Pr. & A. 372; Palerson v. Gaudassequi, 15 East, 62.

(n) Horsley v. Bell, Ambl. 769; Myrielv, Hymondsold, Hardr. 205; Burls v. Smith, 7 Bingh. 705; Doubleduy v. Muskett, 7 Bingh. 110.

(o) M'Beath v. Haldimand, 1 T. R. 172. See Unwin v. Wolsely, 1 T. R. 674.

(p) Lutterloh v. Halsey, cited 1 T. R. 180.

(q) Myrtle v. Beaver, 1 East, 135; Rice v. Chute, id. 579; Rice v. Everitt, id. 583, n.; Thompson v. Pearce, 1 B. & B. 25.

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