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though he describe himself as agent, and though the principal be known. Where an agent employed to wind up the concerns of a person deceased, gave an undertaking to a creditor of the deceased to furnish money to meet an acceptance which such creditor had given, in furtherance of an arrangement for delaying payments, in hopes that funds might be forthcoming, he was held liable on such undertaking, though he was merely a clerk, and had no interest in the goods sold by the creditor, nor had received any funds: Maud v. Waterhouse, 2 C.S. P. 579. Where A. employs B. to sell goods for him, and C., as B.'s broker, procures a purchaser, and draws a bill for the amount, payable to A., which is accepted by the purchaser, but dishonoured: it was held that C. is answerable to A., as drawer of the bill: Lefevre v. Lloyd, i Marsh, 318; 5 Taunt. 749, s. C. An agent to a country bank, to whom plt. sent a sum of money, in order to procure a bill upon London, drew, in his own name, for the amount, upon the firm in London, the two firms being the same : held, that the agent was liable, as drawer, although plt. knew that he was agent, and supposed that the bill was drawn by him as such, and on account of the country bank to which the *agent paid [*737 over the money; Leadbitter v. Farrow, 5 M. 8. S. 345. And if an agent expressly stipulate by a written agreement, or under seal, though he describes himself as an agent, and acting on behalf of another, whom he mentions, he will be liable. Therefore, where an agent, by a written agreement, expressed to be made by himself, on behalf of A. B. of the one part, and the plt. of the other, stipulated to execute a lease of certain premises to the plt., he was held to be personally liable; and it was said by Best, C. J., that there was no distinction between agreements of this nature by parol or by deed : Norton v. Herron, R. & M. 229; 5 Moo. 278. And, where attorneys gave the following written undertaking, “We, as solicitors to the assignees, &c., undertake to pay the landlord his rent, provided it does not exceed the value of the effects distrained,” they were held personally liable: Burrell v. Jones, 3 B. 8. A. 47. And, if an attorney personally undertakes to withdraw a record, he 'will be liable: Iveson v. Conington, 1 B. &. C. 160; 2 D. 8. R. 307; 3 D. &. R. 503: Spittle v. Lavender, 5 Moo. 270; R. 8. M. 229; post, “Attorneys." And where, by deed, an agent covenants " for himself, his heirs,” &c., for the act of another, he is personally liable, although he describe himself as agent: Appleton v. Bincks, 5 East, 148. But the liability must clearly appear from the whole context of the instrument; therefore, where A., an auctioneer, being employed to sell an estate of B.'s, signed an agreement with C. for the purchase, in his own name, as agent of B., and B. himself shortly afterwards signed it, adding, “I hereby sanction this agreement, and approve of Ai's having signed it on my behalf,” it was held that A. was not personally liable, as the agreement by A. and ratification by B. formed but one transaction, and showed that it was the understanding of all parties that A. should not be liable: 5 Moo. 270. Where the seller of goods, with the assent of the agent, chooses to give a distinct credit to such agent, knowing him to be such, the agent alone can be sued: Paterson v. Gandasequi, 15 East, 62; Leggatt v. Reed, i C. 8. P. 16. As to evidence in defence, post, 75,
In an Action where the Principal was unknown.] The plt. may show the deft.'s liability on a contract, by reason of his having entered into it without disclosing his principal, and though it be known that the agent acts in a representative character. Therefore, where an auctioneer does not disclose the name of his principal at the time of sale, he is liable for the non-completion of the contract: Hanson v. Roberdeau, Peak. Rep. 163; Mitchison v. Hewson, 7 T. R. 350; M Brain v. Fortune, 3 Camp. 317; 15 East, 62; Paley, 293; 5 Moore, 270. And, where an agent residing in this country enters into a contract for another residing abroad, he will be personally liable; De Gaillon v. L'Aigle, i B. & P. 368; 15 East, 69. A master of a ship is generally liable for necessaries furnished abroad, Cowp. 639, Westerdeli v. Dale, 7 T. R. 312; and in this country, unless they were furnished by the credit of the owner, either he or the owners may be sued, Thompson v. Finden, 4 Carr. 8. Payne, 159.
In an Action where there was no responsible or apparent Principal, the agent is liable. Thus, where the acting commissioners under a navigation act entered into an agreement with an engineer to complete a certain work, it was held that they were liable, though they had no funds: Ambl. 769, 772. So, where A, agreed with B. and C. to pave certain streets, and they, on behalf of the parish, agreed to pay, they were held liable: Hard. 205; 1 Bro. C. C. 101; Paley, 293. So, where commissioners, under an inclosure act, drew drafts on their bankers, it was held that they were personally responsible to the banker for the sums paid by them on such drafts: Eaton v. Bell, 5 B. & A. 35; Burrell v. Jones, 3 B. & A. 47. So, where parishioners at a vestry
make an order, authorizing the churchwardens to repair a church, *74) the churchwardens are alone *responsible: Lanchester v. Trick
er, 1 Bing. 201; Same v. Frewer, 2 Bing. 361. Commissioners and churchwardens, or others, the agents, who employ or enter into a contract with another, or for whom an agent acts, are, in general, liable, when they have a power of reimbursing themselves at the time of the contract; and on this principle the cases in 1 Bro. C. C. 101, Eaton v. Bell, 5 B. &. A. 34, and Brooke v. Guest, cited in 3 Bing. 481, were decided. And on the same principle, in Higgins v. Longton, there also cited, it was held, that commissioners of a turnpike were personally liable to persons employed about the construction and repairs of a road; and in Brooke v. Guest, a church warden was held personally liable to a person whom he had employed to draw plans of a church; and, as we have before seen, it is clear such agents are liable, if they personally contract; ante, 78. In Sprot v. Powell, 3 Bing. 478, it was held, that vestrymen, who signed a resolution, ordering the parish surveyor to take steps for defending an indictment for not repairing a road, were not liable to the attorney employed by the surveyor; they having no power at that time to reimburse themselves, the surveyor should have been sued. Bụt the agents of government, acting for the public, are not liable to be sued upon contracts made with them on behalf of government. So the governor of a colony has been held not to be liable: M Beath v. Haldimand, i T. R. 172; Unwin v. Wolsey, ib. 674. And an action does not lie against a public officer (as the secretary at war), by individuals, for sums which, as a public officer, he is authorized to pay them, although he may have received the money applicable to that purpose: Gidley v. Lord Palmerston, 3 B. & P. 275.
In an Action where the Agent has exceeded his Authority, so that the Principal is not liable, or acted under an Authority which he knows the Principal has no right to give, he will be liable; as, where an agent sell property under a notice that it does not belong to his principal, and in which case the plt. should prove such notice : Cowp. 566; 4 Bur. 1984; B. N. P. 133; Fenn v. Harrison, 3 T. R. 757: Greenway v. Hurd, 4 ib. 553. The plt. should, in an action against an agent for exceeding his authority, be prepared to prove the agency. See “ Principal and Agent." ..
In Action for Money had and received.] The proofs in this action will, for the most part, be found post, “ Money Had and Received.” The plt. must, as a general rule, prove the receipt of the money, for the purpose of being paid over to the plt., and the deft.'s engagement so to pay it over: Williams v. Everett, 14 East, 590; 2 Roll. R. 441; Firbank v. Bell, i B. L. A. 36; 1 Moore 74. Where the action is to recover money received by an agent for another, who has no right to it, plt. must prove the payment of the money, and the purpose for which it was paid; and he should also prove it has not been paid over, Cox v. Prentice, 3 M. L. S. 344, Cowp. 565; or else that the receipt of the money was obviously illegal, or that the agent's authority was wholly void: Townson v. Wilson, i Camp. 396, 564; Lovell v. Simpson, 3 Esp. Rep. 153. As to stakeholders, post, “ Money Had and Received."
In Actions for Torts, an agent is considered liable for all torts and wilful trespasses, though done by the authority of his master, and in the assertion of his master's rights, 12 Mod. 448, 6 ib. 212, 2 ib. 242, 1 Wils. 328, 6 East, 450; trover lies against him, ib. Stevens v. Elwell, 4 M. 8. S. 261; post. The plt. should, therefore, prove that the tort was done wilfully; proof of a mere neglect or nonfeasance will not suffice: 1 Chit. Pl. 72. He need not adduce any proof as to the agency. And, where a coachman loses a parcel, the master is the proper person to be sued: 6 Moore, 47. An agent is never liable for the negligence of sub-agents, *but recourse must be had against the prin- [*757 cipal, or the person actually committing the injury: Stone v. Cartwright, 6 T. R. 411; Bush v. Steinman, 1 B. & P. 405; Bromley v. Coxwell, 2 ib. 438.
Evidence for Defendant.
In an Action against an Agent contracting on his own Account, he should endeavour to prove the contrary, and that he contracted in the capacity of an agent, which was known to the plt. at the time of the contract, and that the deft, had authority from his principal to make the contract: 12 Ves. 352; Paterson v. Gandasequi, 15 East, 62, 66 ; Paley, 246; 3 P. Wms. 277, 279.
In an Action against an Agent because the Principal was unknown at the time of making the contract, the deft. should endeavour to disprove the fact, either from reputation, or, which is preferable, from the plt.'s own knowledge.
In an Action against an Agent for exceeding his Authority, so that the Principal was not liable, or for acting under an Authority which he knows the Principal had no right to give deft. should be prepared to show the contrary, and prove the authority he had from his principal, or that the principal had such right.
In Action for Money had and received.] If the action be for not paying over money paid to the agent for the plt., deft. may show that the plt., by his conduct, did not consider the deft. as holding the money on plt.'s account; and that deft. appropriated the money properly to other purposes, before the plt. called on him for it: Stewart v. Fry, Holt, 372. In an action to recover money received by an agent for another, who had no right to it, he may prove in answer that he has paid it over to his principal: 1 Str. 480; Cowp. 69; 1 Vern. 136; Greenway v. Hurd, 4 T. R. 553. The payment, however, must be an actual payment; therefore, the mere passing of such money in account with his principal, or making a rest without any new credit given, fresh bills accepted, or a further sum advanced, is insufficient: Cox v. Prentice, 3 M. S. S. 344; Cowp. 565; 1 Moore, 74; 1 Str. 480. See the case as to stakeholders, and when an agent is liable for money bad and received, to be paid over to a third person: post, “ Money Had and Received."
In Actions for Torts, deft. should be prepared to show that the tort was done through mere negligence, and as the mere agent of another, and by his authority: he should strictly prove the agency.
See “ ASSUMPSIT,” “HANDWRITING,” “SECONDARY EVIDENCE," “PAROL EVIDENCE," and the various titles of defences.
How Defendant may avail himself of Defence of Plaintiff's being one. The deft. may avail himself of a defence of this nature under the
general issue, if the plt. was an alien enemy at the time of the *767 plea *pleaded : Doug. 749, n.; 6 T. R. 24 ; 13 Ves. 71. Yet,
if the disability accrued by war after the contract was made, the
same should be pleaded specially, 3 Camp. 152-3-4, 15 East, 260, 8 T. R. 166, 6 T. R. 24, 1 B. 8. P. 222; and, if a neutral become an alien pending the suit, this should be pleaded in abatement, as it only suspends the action : 3 Camp. 152. This plea of alien enemy cannot be pleaded with any other plea, 12 East, 206, 1 B. 8. P. 222, n.; for which reason it may be advisable to plead it in abatement, when it can be so. As to the defence of husband or wife being an alien, ante, “Abatement, Coverture."
and destingland wiea the
Form of Plea, &c.] As this plea is not favoured in law, the greatest degree of certainty is requisite in framing it; and deft. must state that plt. not only was or is an alien, but that he came to England without letters of safe conduct from the king: 8 T. R. 167. To this plea the plt. may either deny the fact, or, if true, may reply a license, &c., to reside in this country : 43 Geo. 3, c. 155. See “Pleas," "Replications.”
Precedents.] Pleas of this nature are so rare, that it is not considered requisite to give the form of one. See a form of plea, 3 Chit. Pl. 910-1; of a replication of license, 1148; of plea in abatement, 1 Went. 7, 42, 51, Lil. Ent. 1.
Evidence.] The evidence must necessarily depend on the fact put in issue by the replication. If the plt. deny his being an alien, the proof of the negative lies on plt. If he deny he was an enemy, the deft. will be bound to prove he was, by proving the war between this country and that of which the plt. was a subject : post, “War.” If the plt. replies a license, he will be bound to prove it: post, “Public Documents."
ALTERATION OF CONTRACT.
How Defendant may avail himself of.] Deft. may avail himself of this defence in assumpsit or debt, on simple contract, under the general issue, Hodgson v. E. Ind. Comp., 8 T. R. 280; and in debt on a deed, or in covenant, under the plea of non est factum: 5 Co. 23, 119; B. N. P. 172; 1 Chit. Pl. 425, 8.
Evidence for Defendant.
Effect of Alteration.] If a contract, either by specialty or parol, be once entered into, any subsequent alteration thereof by a party interested, without the consent of the other party, in any material part, will render the contract wholly invalid at common law, as against the party not consenting to such alteration; and, in such case, he is not bound to perform the contract, even in its original terms, on account of the fraud attempted to be practised on him, and the jealousy of the law to prevent fraud : Com. D. Fait. Cro. E. 626 ; Master v. Miller, 4 T. Ř. 320;