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v. Harrison, Peake, 194, and 1 Esp. 48. JA. had stated, that he proposed opening Kenyon, C. J. 1793. an account with C. as a general customer.

81. Or if there had been a conspiracy

74. A person engaged by the manager Ibid. of a theatre as a public singer, is beaten, and is thereby prevented from perform-to defraud A., by paying for the first ing. The manager cannot sue for the parcel of goods. Ibid. remote injury which he sustains. Taylor v. Neri, 1 Esp. 386. Eyre, C. J. 1795.

B. (d) Misrepresentations of solvency. (And see WITNESS C. (n.) 16.)

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82. To support this action, the sentation must be fraudulent as well as false. Ashlin v. White, Holt. 387. Gibbs, C. J. 1816.

S. P. Haycraft v. Creasy, 2 East, 92. 75. An action will not lie upon a mis-And see Vernon v. Keys, 12 East, 632; representation of the circumstances of a S. C. 4 Taunt. 488. customer, unless it be shewn that the

83. The person whose solvency has been

defendant intended to impose on the misrepresented is a competent witness. plaintiff individually; and also that the Smith v. Harris, 2 Stark. 47. Ellenplaintiff acted upon his information. borough, C. J. 1817. Scott and another v. Lara, Peake, 226. Kenyon, C. J. 1794.

And see Ibbottson v. Rhodes, 2 Vern. 554.

76. No action therefore will lie upon a misrepresentation, if the plaintiff or his agent had notice of the insolvency of such customer. Cowen et alt. v. Simpson, 1 Esp. 290. Kenyon, C. J. 1795.

77. In an action for a misrepresentation of the solvency of a customer, evidence of a similar misrepresentation made to a third person is admissible, to shew the fraudulent connexion between the defendant and the customer. Beal v. Thatcher, 3 Esp. 194. Kenyon, C. J. 1800.

78. If a creditor arrests his debtor upon a suspicion of misconduct which he afterwards finds to be unfounded, he is not bound to disclose the transaction to a person who applies for information respecting the character and credit of such debtor. Wood v. Wain, 1 Esp. 442. Kenyon, C. J. 1796.

B. (e) Deceit in sales.

collateral agreement, to exchange the 84. This action lies, notwithstanding a article if disliked. Wallace v. Jarman, Ellenborough, C. J.

2 Stark. 162.

1817.

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86. An action will lie against a witness who falsely denies his having possession of a paper which he has been subpoenaed to produce. Amey v. Long, 1 Campb. 16. Ellenborough, C. J. 1807.

79. A. is referred to B., by C., for his character; B., upon being interrogated 87. The party injured is not compelled generally, without reference to the qua-to proceed criminally for the perjury. lities of the goods, or the proposed mode And the court of K. B. refused a rule of dealing, makes a deceitful representa- to set aside nonsuit. Ibid. tion of C.'s circumstances. No action Cont. 1 Roll. Ab. 33, 1. 33, Aier v. will lie against B., if C. pays for the Redgwit, S. C. Palmer, 142. And see goods which it was originally in con- Westbrooke v. Strutville, 1 Stra. 79; templation to sell; although C. become Bull. N. P. 21; 1 Vin. Abr. Actions, C. insolvent within a few months, indebted (a); F. N. B. 115 E.; ibid. 116 D.; to A. for a subsequent parcel of goods. Fitz. Abr. Proces 20; Acc. Hamper's De Graves v. Smith, 2 Campb. 533. case, 2Leon. 211. Ellenborough, C. J. 1810.

80. It might have been otherwise, if, as in Hutchinson v. Bell, 1 Taunt. 558,

'Acc. Y. B 27 H. 8, 27; 5 Co. 73. And see Vaughan, 340; Russell v. Men of Devon, 2 T. R. 667.

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89. It is not sufficient that from the situation of the plaintiff's premises, he must have been particularly affected by the obstruction. Ibid.

Contra Rose v. Miles, M. & S. 101, and see Iveson v. Moor, 1 Lord Raym. 486; S. C. 12 Mod. 262; Willes, 74, n.

94. But where the injury complained of is the erection of a wall, whereby the plaintiff's window is generally darkened, the action cannot be maintained, if it appear that the plaintiff can preand that the light now admitted is suffiscribe only for a window to a malthouse, cient for the original purpose. Martin and another v. Goble, 1 Campb. 322. Macdonald, C. B. Horsham, 1808. And see East India Company v. Vincent, 2 Atk. 83.

C. (c) Nuisance to watercourses.

95. An action for putting plaintiff's wheel in back water was held not to be maintainable, where it appeared that the 90. Or that the plaintiff was obliged to wheel had been widened within twenty carry his goods by a circuitous and in-years, though it anciently stood deeper in convenient way. the water, and would in that state have been still more affected by the obstruction. Burrough, J. Salisbury, 1817.

Ibid.
Acc. Paine v. Patrick, Carth. 191, 4;
Rex v. Incledon, 1 M. and S. 268.
Sed vide Hart v. Basset, T. Jon. 157;
Chichester v. Lethbridge, Willes, 71.

C. (b) Obstruction of windows. 91. An adverse enjoyment of windows for twenty years, or perhaps less, is a sufficient title in an action for an obstruction. Cotterell v. Griffiths, 4 Esp. 69. Kenyon, C. J. 1801.

And see Darwin v. Upton, 2 Saund. 175. a. n.; Lewis v. Price, ib. S. C. Esp. D. N. P. 636; Daniel v. North, 11 East, 372.

92. Where an ancient window has been shut up for above twenty years, it loses its privilege. Lawrence, widow, v. Obee, 3 Campb. 514. Ellenborough, C. J.

1814.

But the court of K. B. granted a rule for a new trial in Michaelmas term. And see ante pl. 90; Bealey v. Shaw, 6 East, 208.

C. (d) Negligence in enclosing buildings.

96. The occupier of a house is bound to fence in a dangerous area, though it has immemorially remained open. Coupland v. Hardingham, 3 Campb. 396. Ellenborough, C. J. 1813.

97. And is answerable for the negligence of a person working for him under

a sub-contract. Matthews v. West London Water Works, 3 Campb. 403. Ellenborough, C. J. 1813.

Acc. Bush v. Steinman, 1 Bos. and Pul. 404. And see Flower v. Adam, 2

Taunt. 314.

And see Lord Guersney v. Rodbridges, 98. A corporate body, entrusted with Gilb. Eq. Rep. 3; Com. Dig. Temps. G. a power from which mischief may result 93. Where an ancient window is en-to the public, are bound to exercise it as larged and heightened, the owner of the innocently as possible in the day time, adjoining premises is not at liberty to and with especial caution at night. cover any part of the space occupied by Weld v. Gas Light Company, 1 Stark. the original window, though the unob-189. Ellenborough, C. J. 1816. structed part of the new window be larger

than the old window, and though the C (e) Injury to reversionary interest. party have no other means of reducing the window to its former size. Chandler v. Thompson, 3 Campb. 80. Ellenborough, C. J. 1811.

And see Cherrington v. Abney, 2 Vern. 646. But see post C. (c) 1. 93.

99. Landlord may bring either case or trespass for voluntary waste committed after the expiration of a notice to quit. Burchell v. Harnsby, 1 Campb. 360. Ellenborough, C. J. 1808.

AGENT.

A. RIGHTS OF PRINCIPAL AGAINST
AGENT.

B. RIGHTS OF AGENT AGAINST

PRINCIPAL.

202; Harding v. Carter, Park, 4; Smith v. Cologan, 2 T. R. 188. n. Mal. 86; Beawes, L. M. 50; 2 Ves. 239.

5. An army agent is responsible for the price of a commission sold by him for an officer on foreign service. Sturdy v. Ross, 1 Esp. 450. Kenyon, C. J.

C. LIABILITY OF PRINCIPAL TO THIRD 1795.

PERSONS.

(a) On contract of agent.

(b) For tort of agent.

D. RIGHTS OF PRINCIPAL AGAINST

THIRD PERSONS.

E. LIABILITY OF AGENT TO THIRD
PERSONS.

F. RIGHTS OF AGENT AGAINST
THIRD PERSONS.

A. RIGHTS OF PRINCIPAL AGAINST

AGENT.

(And see INSURANCE Q. (b).)

1. Where a person who is requested to collect debts, remits the amount by post, he is not answerable for the safe arrival of the remittance. Warwicke v. Noakes, Peake, 67. Kenyon, C. J. 1791. S. P. said to have been decided in chancery forty years before, ibid.

6. An agent who pays the money of his principal into his banker's hands, generally, and uses it as his own, is liable for interest. Rogers, assignee of Stokes, v. Edmund Boehm, Henry Nantes, and John Taylor, 2 Esp. 702. Kenyon, C. J. 1798.

S. P. as to assignees, Trevers v. Townsend, 1 Bro. Cha. Ca. 384; and as to executors, Franklin v. Frith, 3 Bro. Cha. Ca. 433.

7. Semble, that where an agent is employed to sell goods on credit, and he receives part only of the price, the principal cannot sue the agent for such part, but must wait until the whole be received, unless the payment be delayed by the default of the agent. Varden, executor of Johnson v. Parker, 2 Esp. 710. Buller, J. 1798.

1815.

9. Goods are delivered to A. to be sold by him in a particular place, which he is unable to sell there; he has no right to send them elsewhere under the care of another person. Ibid.

8. In an action for not accounting for goods delivered to the master of a ship, 2. Agent consignee abroad on del cre- to be sold by him abroad, it is no defence dere commission being applied to by con- that they were exported without paying signor to advance on proceeds, remits duties, unless this evasion were part of bills purchased by consignee, which turn the agreement. Catlin, spinster v. Bell, out unproductive; Quære, upon whom 4 Campb. 183. Ellenborough, C. J. shall the loss fall? And decided, by a jury of merchants, to whom it was left that it shall fall on the consignee. Lucas and others, Assignees v. Groning and others, 1 Stark. 391. Gibbs, C. J. 1816. And see Russel v. Hankey, 6 T. R. 12; Belchier v. Parsons, Ambl. 218. 10. A rider may solicit his employer's 3. A party who gratuitously under-customers to give their orders to himtakes to procure a policy of insurance in self when he shall have set up business, a particular form, and effects the insur- provided the orders which he takes at ance in a different manner, is liable for the time are to be executed by his ema loss arising from his mismanagement. ployer. Nichol et alt. v. Martyn, 2 Esp. Wilkinson v. Coverdale, 1 Esp. 75. 732. Kenyon, C. J. 1799. 75.732. Kenyon, C. J. 1793.

4. S. P. said to have been ruled in Wallace v. Tellfair, 1 Esp. 76. Buller, J. 1786.

S. C. not S. P. 2 T. R. 188. n. ; S. P. Seller v. Work, Eldon, C. J. Marshall, 299.

As to the extent of the agent's liability, see Delaney v. Stodart, 1 T. R.

11. A consignor is bound to advise the consignee of the shipment of the goods, except where in former transactions between the parties the consignee has acquiesced in the omission of advice. Goom v. Jackson, 5 Esp. 112. Lawrence, J. 1804.

12. A person who agrees generally to give up his time and attention to the

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concerns of his employer, cannot hire mium on the exchange. Held, that he premium ;

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Thompson v. Havelock, 1 Campb. 527. principal, notwithstanding an improper Ellenborough, C. J. 1808. usage for the master under these circumstances to be allowed the advantage arising from the state of the exchange. Diplock and others, executors, &c. v. Blackburn, 3 Campb. 43. Ellenborough, C. J. 1811.

13. And if such contract be in fact entered into, and the consideration stipulated to be paid for such service find its way into the hands of the employer, no action will lie at the suit of the servant to recover the amount. Ibid.

Acc. Brown v. Litton, 1 P. Wms. 141. S. P. Curtis v. Bridges, Comb. 250; 19. Where a servant has usually acBarber v. Dennis, 1 Salk. 68; 6 Mod. counted with her master for monies 69; 12 Mod. 415, S, C. And see Co. received to his use, without any written Litt. 117. a. n. (1) Truswell v. Middle-vouchers, it is not sufficient to charge ton, 2 Roll. Rep. 269; Cro. Jac. 653. S. C. the servant, to shew that particular sums

14. Plaintiff employed the defendant have come to her hands; it must be to receive money for him at Paris, and proved that she has not paid them over, directed the amount to be remitted to Evans v. Winifred Birch, 3 Campb, 10, him at Fredericksburgh. Defendant re- Ellenborough, C. J. 1811, mitted the money to A. at Baltimore, in 20. If factors remit to their principal bills payable to plaintiff's order, Held, a bill or note for the balance of the price that the defendant could not be called upon to repay the amount in an action for money had and received. Duncan v. Skipwith, 2 Campb. 68, Ellenborough, C. J. 1809.

of goods sold, without mentioning the terms of the sale, or the name of the vendee, they cannot, upon the insolvency of such vendee, throw the loss upon their employer. Simpson and another v. Swan, 3 Campb. 291. Ellenborough, C. J. 1812.

15. Merchants receive a bill of lading from a stranger, who requests them to effect insurance; declining the transaction, 21. Money cannot be recovered from they indorse the bill of lading to a friend a party who would afterwards be enof the consignor, who fails-The mer-titled to claim the amount from the chants are liable for the value. Corlett plaintiffs, for damages occasioned by v. Gordon and another, 3 Campb. 472. their negligence as agents in the parti Ellenborough, C. J. 1813. cular transaction. Ibid.

16. If a factor acting without a del credere commission, chooses to indorse a bill, which he is directed to procure for his principal, he is liable to the latter as an indorser. Goupy and others v. Harding and others, Holt. 342. Gibbs, C. J. 1816.

17. The plaintiff having drawn a cheque on the defendant, tore it in four pieces. The fragments being pasted together were presented by a stranger to the defendants, who paid the amount, though the paper was soiled and the rents were quite visible. Held, that the defendants could not take credit for the amount. Scholey v. Ramsbottom and others, 2 Campb. 485. Ellenborough, C. J. 1810.

Acc. Pothier, Traité du Contrat de Change, partie 1, chap. 4, sect. 99, et seq. 18. The master of a vessel draws a bill from the Cape of Good Hope on his owner in England, and obtains a pre

And see ASSUMPSIT, B.

22. A sworn broker, employed by a purchaser, may, for the purpose of making himself personally liable to the seller, become an intermediate purchaser; and his principal cannot repudiate a contract in this form, where he has previously acquiesced in a similar arrangement. Kemble and others v. Atkins and ano ther, Holt. 427. Dallas, J. 1816.

And the court of C. P. refused a rule for a new trial. Ibid.

23. It is no breach of a London broker's bond that he refuses to allow his employer to inspect his contract book, if he add that it shall be produced at the proper time, and it is, in fact, produced the next day before an investigating court of aldermen. Lord Mayor of London v. Brandon, 1 Holt. 438, Ellen borough, C. J. 1816.

And the court of K. B. refused a rule to set aside the nonsuit. Ibid, C

24. Or, if he employ a person, not being a sworn broker, to act with him, but not under him. Ibid.

32. But in a subsequent case, commission of five per cent, on the sum laid out allowed to a surveyor on a quantum 25. Or if he grossly mistate the quan- meruit. Chapman and others v. De Tastet, tity of goods purchased by him for ex- 2 Stark. 291. Ellenborough, C. J. 1817. portation, although such mistatement 33. Ship-broker held entitled to five be productive of great loss to his em- per cent. on the gross freight on a voyage ployer, but is unconnected with any to Rio Janeiro, though part of the pecuniary benefit to himself. Ibid. freight depended on the contingency of 26. An agent who, on remitting bills the arrival. Roberts and others v. Jackdrawn by his employer in payment, son and others, 2 Stark. 225. Ellenwrites, "I promise to see the bills ho-borough, C. J. 1817. nored," is bound by such promise; the accepting of the bills in payment by the promisee being a sufficient consideration. Morris v. Stacey, Holt. 153. Gibbs, C. J. 1816.

B. RIGHTS OF AGENT AGAINST

PRINCIPAL.

And see Insurance 2 (a),

And see AUCTION, post.

34. On a sale of colonial produce in London, the broker is entitled to one-half per cent. from the buyer, though originally employed by the seller. Eicke v. Meyer, 3 Campb. 412. Ellenborough, C. J. 1813.

35. Where B. by the direction of his employer A. ships the property with which he was entrusted to the address

27. A deputy, who, on his principal's of C.; after which B. pays a sum of appointment to an additional office, per-money to redeem the property from forms the duties of the new office, is seizure, B.'s agency being expired, this not entitled to an increase of salary with- is a voluntary payment for which A. is out an express contract. Bell v. Drum-not liable. Edmiston v. Wright, bart. mond, executor, &c. Peake, 45, Ken-1 Campb. 88. Ellenborough, C. J. 1807. yon, C. J. 1791. And see Child v. Morley, 8 T. R. 610.

28. A, employs B. a salesman, to sell 36. A factor grossly misconducting himhis cattle. C. a book-keeper and sub-self is not entitled to commission. White agent employed by B. enters the cattle v. Chapman, 1 Stark. 113. Ellenborough, in the name of A. and receives the price; C. J. 1815. C. cannot set off the amount against a debt owing to him from B. notwithstanding an usage for such book-keeper to credit the salesman for the price of cattle sold. Good v. Jones, Peake, 176. Kenyon, C. J. 1793.

29. A London broker chartering a ship to the Baltic, is entitled to 51. per cent. on the freight, Cohen v. Pages, 4 Campb. 96, 1814,

30, Assumpsit by a broker on contract to receive brokerage on signing an agreement, and held that a written and signed agreement alone will enable plaintiff to recover. Edjar y. Blick, 1 Štark. 464. Ellenborough, C, J. 1806.

31. A surveyor declaring against his employer on a quantum meruit, is to be compensated for his labour; but cannot recover a per centage on the money paid to the tradesman whose bills he looks over and whose work he measures, notwithstanding an usage amongst surveyors to that effect. Upsdell v. Stewart, Peake, 193, Kenyon, C. J, 1793,

C. LIABILITY OF PRINCIPAL TO
THIRD PERSONS.

C. (a) On contract of agent.

37. A memorandum, made by the vendor's broker, with the bought and sold notes copied therefrom and delivered to and accepted by each party, will bind both. Rucker v. Cammeyer, 1 Esp. 105. Kenyon, C. J. 1794.

38. And semble, that the bought and sold notes without an original entry are sufficient. Dickenson v. Lilwal, 1 Stark. 128. Ellenborough, C. J. 1815.

S. P. Hinde v. Whitehouse, 7 East, 559, 69. S. C. 3 Smith 528, 36.

And see Simon v. Metivier, 1 Bla. 599. S. C. 3 Burr, 1921. Cooper v. Smith, 15 East, 105, 8; Blagden v. Bradbear, 12 Ves. 466, 72; Buckmaster v. Harrop, 13 Ves. 456, 72, 3.

39. Qu. whether assignee of a bankrupt factor, taking del credere commis

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