P.

sion, may sue a purchaser where the p 46. An agent who executes a deed factor has not paid his principal; point under a power of attorney, cannot be reserved. Hudson v. Grainger. Ellen- examined with respect to the contents of borough, C. J. Sittings after Michas. such deed, unless the power of attorney Term, 1817. be produced. Johnson v. Mason, 1 Esp. 40. Order to one firm to effect in-89. Kenyon, C. J. 1794. surance, held well executed by another! 47. In an action against the master firm, if the firms have one or more mem- for the price of goods which have come bers in common. Dickson v. Lodge, to his use, it is no defence, that by a 1 Stark. 226. Ellenborough, C. J. 1816. private agreement between the master 41. A transfer made by a factor who and the servant to whom the articles sells under a letter of advice from the were delivered, such articles were to be consignor without the bill of lading, is provided by the servant. Precious v. valid against an indorsee of the bill of Abel, 1 Esp. 351. Kenyon, C. J. 1795. lading who has notice of the factor's au- Acc. Rich v. Coe, Cowper, 636. thority to dispose of the property. Dick v. Lumsden, Peake, 189. Kenyon, C. J.

1794.

And see Wright v. Campbell, 4 Burr, 2046, 51. S. C. 1 Bla. 658; Newson v. Thornton, 6 East, 17, 39, 42; S. C. 2 Smith, 207; Cuming v. Brown, 9 East, 516; Pickering v. Busk, 15 East, 38, 42; Martini v. Coles, 1 M and S. 140.

48. A. directs B, to receive money for him, and B. employs C., who sends his clerk for it. Payment to the clerk is sufficient to charge B. in an action for money had and received to A.'s use. Matthews v. Haydon, one, &c., 2 Esp. 509. Kenyon, C. J. 1796.

And see Cary v. Webster, 1 Stra. 408. 49. Where a factor sells goods in his 42. Where a special agent employed own name, the vendee has a right to to purchase an article of a particular consider him as principal; and in an quality, buys it of a different quality, action brought by the real vendor, the the principal is not bound. East India vendee may set off a debt owing to him Company v. Hensley, 1 Esp. 112. Ken- from the factor. George v. Claggett and yon, C. J. 1794. Pratt, 2 Esp. 557.

And see Fenn v. Harrison, 3 T..R. 757, 61, and 4 T. R. 177. Beawes Lex Merc. 50.

And the court of K. B. discharged a rule for a new trial. Ibid, and 7 T. R.

359.

N. For the distinction between a spe- S. P. Rabone v. Williams, 7 T. R. cial and general agent, see Whitehead v. 360, n. Tuckett, 15 East, 400, 8.

43. Where A. has usually subscribed policies for B., the latter is bound by a policy signed by A. in his name, without direct proof of the authority. Neal v. Erving, 1 Esp. 61. Kenyon, C. J.

1793.

And see Rex v. Bigg, 3 P. Wms. 419, 427.

44. An agent who underwrites and settles losses, has an implied authority to refer a dispute about a loss to arbitration. Goodson and another v. Brooke, 4 Campb. 163. Gibbs, C. J. 1815.

45. If after acts of supercargo contended to have been illegal, and consequent seizure of the vessel, the owners proceed in the admiralty court to recover possession, they adopt his acts, and are. responsible for stores supplied up to the seizure. Mitchell v. Glunie, 1 Stark. 230. Ellenborough, C. J. 1816.

And see Scott v. Surman, Willes, 400. 50. A power of attorney to call in debts, when given as part of a security for money, is not revocable. Walsh v. Whitcomb, 2 Esp. 565. Kenyon, C. J. 1797.

Acc. Bromley v. Holland, 7 Ves. 28. But see Lepard v. Vernon, 2 Ver. B. 51. And see Odes v. Woodward, 2 Lord Raym. 849, 50. post, § 66, &c.

51. Where a ship is put up at the Royal Exchange by the broker, as a general ship warranted to sail with convoy, and hand-bills are distributed to the same effect, the owner is bound by such representation, though made without his authority. Runquist v. Ditchell, 3 Esp. 64. Kenyon, C. J. 1799.

S. C. Abbott on Shipping, part 2, cap. 2. s. 8, 2 Campb. 556. n.

52. And he is liable to an action on the case at the suit of shippers, who, in

consequence of the sailing without con- tified, though no notice has been given voy, are prevented from recovering upon to discredit the porter. Pocock v. a policy of insurance containing a war-Sparrow. Ellenborough, C. J., Guildranty. Ibid. hall, December, 1810. MSS. N. It was said by Gibbs, C. J., that 59. An attorney who is retained to do there was not in this case, as had been a particular act, but who is also directed supposed, an express warranty, the to do the needful, has authority to take broker having merely inserted in the such steps as have immediate relation to advertisement a clause purporting that the act. Dawson v. Sir Robert Lawley, the ship would sail with convoy, 4 bart., 4 Esp. 65. Kenyon, C. J. 1801. Campb. 55 n. And see Snell v. Marryatt. 60. If an agent directed to buy at a Abbott's Law of Shipping. certain price, consider himself not to be 53. So a servant employed to sell a absolutely limited to that price, his enhorse, has an implied incidental au-gagement, though exceeding the directhority to give a warranty of soundness; tion, will bind the principal. Hicks v. such a warranty being now usual. Alex- Hankin, 4 Esp. 114. Heath, J. Hertford, ander v. Gibson, 2 Campb. 555. Ellenborough, C. J. 1811.

S. P. Pickeringv. Bush, 15 East, 38, 45. Sed vide Truswell v. Middleton, 2 Roll. Rep. 269, 70, cont.

And see Sohde v. Dyson, 1 Smith, 400. 54. And therefore in an action on the warranty it is sufficient to prove that the horse was sold, and warranted by the defendant's servant, without calling the servant or shewing that he had a special authority for giving the warranty. Ibid.

1802.

61. Where a servant, without the privity of his master, employs a tradesman to repair his master's carriage, the master is not liable. Hiscox v. Greenwood, 4 Esp. 174. Ellenborough, C. J. 1802.

62. A master who furnishes his servant with money before hand for the purchase of goods is not liable for goods taken up on credit. Rusby v. Scarlett, 5 Esp. 76. Ellenborough, C. J. 1803.

Acc. Boulton v. Arlsden, 3 Salk. 234.

63. But where the master advances money on account generally, and does not always keep the servant in cash, he gives the servant a right to pledge his credit. Ibid.

55. A., to whom sugars are consigned for sale, deposits them with B. a broker, who advances money and accepts bills for A. B. may retain the sugar against C., the owner, unless the latter will Acc. Sir Robert Wayland's case, 3 repay the advances, and give a full in- Salk. 234; Boulton v. Arlsden, ibid; demnity against the acceptances. Pul-Hazard v. Treadwell, 1 Stra. 506. teney, bart. v. Keymer, et alt. 3 Esp. 182. 64. The declaration of a servant emKenyon, C. J. 1800. ployed to sell a horse, is evidence to 56. And B. is not bound to take the charge the master with a warranty, if counter acceptances of C. as an in-made at the time of sale; if made at demnity. Ibid. any other time, the facts must be proved by the servant himself. Helyear v. Hawke, 5 Esp. 72. Ellenborough, C. J. 1803.

57. If a tradesman trust a servant without any previous dealing upon credit, sanctioned by the master, the mastee is only liable for so much as comes to his use. Pearce v. Rogers, 3 Esp. 14. Eldon, C. J. 1800.

And see 27 lib. Ass, Fitz. Abr. Trespass, 230 F. N. B. 120 G. Holden v. Newman, 13 East, 161; Stephens v. Derry, 16 East, 147.

And see Biggs v. Lawrence, 3 T. R.

454.

65. A servant authorized to warrant a horse sound, may warrant him young, unless expressly restricted from so doing. Ibid.

And see Fenn v. Harrison, 3 T. R. 58. Defendants were in the habit of 757; 4 T. R. 177. Strode v. Dyson, sending their porter to the plaintiff for 1 Smith, 401; Grammar v. Nixon, 1 goods with written orders, in the hand-Stra. 657.

writing of one of their four clerks-The 66. Death is a revocation of a power of porter is discharged, and afterwards ob- attorney; though coupled with an intains goods on an order in the same terest. Watson and wife, administratrix -form-The hand-writing must be iden-of Maxwell v. King, 4 Campb. 272,

I Stark. 121. 1818.

Ellenborough, C. J.

And see Co. Litt. 52, b; Roby v. Twelves, Styles, 424.

S. P.Shipman v. Thompson, Willes, 105. N. Although the act were appointed to be done after the death of the principal; Roll. Abr. Feffments, S. 1. And see Tatt v. Hilbert, 2 Ves. 118; Wynne v. Thomas, Willes, 565; 1Bac. Abr. Authority, E.

72. Goods are bought by a broker in his own name. Before the time of payment he becomes insolvent, and discloses his principal. The latter cannot set off any demand upon his broker against the price of the goods. Waring and others v. Favenck and others, 1 Campb. 85. Ellenborough, C. J. 1807. And see Paterson v. Gandasequi, 15 East, 62.

73. And semble, that the principal 67. And a payment to the attorney, would not be discharged by a payment made after the death of the principal, to his own broker, if made before the is bad. Wallace, administrator, v. Cook, stipulated day. Kymer and others v. 5 Esp. 117. Ellenborough, C. J. 1804. Suwercropp, 1 Campb. 109, 180. EllenN. By the civil law, payment before borough, C. J. 1807, and K. B. 1808. the death of principal can be known, is S. P. Speering v. Degraves, 2 Vern. valid. Dig. 17, 1, 26, 1. And see Dig. 17, 1, 58. Pothier Traité du Contrat de Change, part 1. chap. 6. art. 1. § 168.

And see dict. per Bayley J. in Snaith v. Mingay, 1 M. and S. 95; LIEN, A. 9; 2 Ves. 118; 5 T. R. 215; 18 Ves. 142, 146.

643.

74. Secus, if the vendor suffer the day of payment to pass without a demand: in which case the principal would be justified in supposing that the vendor meant to rely on the credit of the broker. Ibid.

75. And where the vendor permits his broker to deal with goods as if he were the owner, payment to him, though before the stipulated time, will discharge. the vendee. Coates and another v. Lewes and another, 1 Campb. 444. Ellenborough, C. J. 1808.

Acc. De Leira v. Edwards, 1 M. and S. 147.

And see Favenc v. Bennett, 11 East,

68. A. being indebted to B. on going abroad, leaves a general power of attorney with him, and sends an order to C., to whom he had consigned goods, to remit the proceeds on his account to B.; C. sells the goods, and remits the proceeds to B. Afterwards, and before B. receives the money, A. becomes bankrupt; B. may apply the proceeds in satisfaction of the debt due to him from A. Alley and others, assignees of Jameson, a bankrupt, v. Hotson, 4 Campb. 76. After a sale through brokers, 525. Ellenborough, C. J. 1815. without disclosing the principal upon a 69. In an action on a policy sub-certain credit, payment to the brokers scribed by an agent under a power of upon other terms of credit, although attorney, it is sufficient proof of the equivalent in the usage of trade, is not agency, that the defendant is in the available against assignees of the prinhabit of paying losses upon policies so cipal. Campbell and another assignee v. subscribed, without producing the power. Uassell, 1 Stark. 233. Ellenborough, Haughton v. Ewbank, 4 Campb. 88. C. J. 1816. Ellenborough, C. J. 1814.

70. An agent authorized to underwrite a policy, may adjust the loss. Richardson v. Anderson, 1 Campb. 43. n. Ellenborough, C. J. 1805.

71. One partner possesses no general authority under a power of attorney granted to his co-partner. Edmiston v. Wright, bart., 1 Campb. 88. Ellenborough, C. J. 1807.

And see Parker v. Kett, 1 Salk. 96; S. C. 1 Lord Raymond, 658; Comber's case, 9 Rep. 76. a; Warner v. Hargrave, 2 Roll. Rep. 393, 2 Ch. Cases, 202.

36.

77. But if a broker deliver a bought note and a sold note which materially differ, the contract cannot be enforced. Cumming v. Roebuck, Holt. 172. Gibbs, C. J. 1806.

78. Where it appears that an agent is directed generally to sell, it will be presumed that he is authorized to sell only in the usual way of business. If, therefore, he agree to give credit upon a sale of stock, which is constantly sold for ready money, the principal is not bound. Wiltshire v. Sims, 1 Campb. 2:8. ÉL lenborough, C. J. 1808.

Acc. Anon. 12 Mod, 514. per Holt, C. J.
Semb. cont. Anon. Dyer, 39, a.

send and others v. Inglis, Reid, Irving and Co. Holt. 278. Gibbs, C. J. 1816. 79. A. is employed by B. to sell his 87. A factor has no power to pledge, horse; A. sells B.'s horse, and another even where he accepts bills on account belonging to C. at an entire price to D., of the consignors, and is directed by them and warrants both horses sound; D. can- to deal with the goods according to his not sever the contract and bring his ac-discretion. Graham and others v. Dyster, tion upon the warranty against A. in re-2 Stark. 21. Ellenborough, C.J. 1816. spect of the unsoundness of his horse. And the court of K. B. granted a new Symonds v. Carr, 1 Campb. 361. El-trial after a nominal verdict for the delenborough, C. J. 1808. fendant. Ibid.

88. An insurance broker has no gene

S. P. Hort v. Dixon, Selw. 98. 80. Where a candidate has generally ral lien upon a policy effected for a barecognized the acts of his committee, the lance due to him from the agent who orchairman possesses an implied authority ders the insurance, though such agent to make any contract for the candidate represent that he has authority to indorse 'connected with the election. Honey- the bill of lading. Lanyon v. Blanchard, wood v. Sir William Geary, 6 Esp. 119. 2 Campb. 597. Ellenborough, C. J. Mansfield, C. J. 1808.

81. And semble, that the authority extends to each member of the committee individually. Ibid,

82. Where a factor sells goods without mentioning the name of any principal, but before the whole quantity is delivered, the vendee is informed who is the real vendor by the factor's clerk, the vendee cannot set off any demand which he may have upon the factor against the price of the goods. Moore v. Clementson and others, 2 Camp. 22. Ellenborough, C. J. 1809.

And see Drinkwater v. Goodwin, Cowp. 251, 5, 6.

1811.

89. Debtor's agent offers to pay the creditor's agent in bank notes, and the latter requests to have a cheque as more convenient to himself. If the cheque be dishonoured the debtor is not discharged, as the cheque of the agent must be considered as his own. Everett v. Collins, 2 Camp. 515. Ellenborough, C. J.

Sed vide dict. per Lord Kenyon in Tapley v. Martens, 8 T. R. 453,

And see post, Ship, D.

99. So in covenant on a charter party, it is no defence that the plaintiff received the freight in a bill drawn by the defendant's agent, although the defendant 83. Where a broker sells goods as his was not informed of the transaction until own, the vendee is justified in paying after the failure of the drawer and achim in a different manner from that pre-ceptor. Marsh v. Pedder, Holt. 72. scribed by the original terms of the pur- Gibbs, C. J. 1815. chase. Blackburn v. Scholes and an- 91. An usage that where goods are other, 2 Campb. 243. Ellenborough, sold by a broker, by bill, the seller reC. J. 1810. tains the power of annulling the con

And see Favenc v. Bennett, 11 East, 36. tract, if he doubt the credit of the pur84. And the circumstance of the ven- chaser, is reasonable and valid. But dor's being described in the sale cata-the rejection must be intimated as soon logue as a sworn broker, is not sufficient as the seller has had time to inquire into to charge the vendee with notice that the the solvency of the purchaser; and five former effected the sale as agent of an days appeared to the court and jury to undisclosed principal. Ibid. be too long a period: Hodgson v. Da85. But if a man sell goods expressly vies, 2 Campb. 530. Ellenborough, C. in the character of a broker, the terms of J. 1810. the contract cannot be afterwards varied 92. In avoidance of a sale made by a without the authority of the principal. broker, it may be shewn, that by the Ibid.

86. Where, however, the principal has on some occasions authorised his broker to draw bills in his own name, he cannot, after the insolvency of the broker, object to such a mode of payment. Town

custom of the trade the authority to sell expires with the day on which It is given. Dickenson v. Lilwall and others, 4 Campb. 279; 1 Stark. 128. Ellenborough, C. J. 1815.

93. A broker empowered to dispose

AGENT.

THIRD PERSONS.

of goods at his discretion, cannot pledge D. RIGHTS OF PRINCIPAL AGAINST
them without an express authority to
that effect to meet bills accepted by him
to the amount of the consignment. Gra-
ham and others v. Dyster, 2 Stark. 24.
Ellenborough, C. J. 1816.

And the court set aside a nominal verIbid. dict for the pawnee.

C. (b) Liability of principal for tort of agent.

(And see post D, 106.)

may

100. A. employs B. to effect an inhold surance; B. employs C., without notice, that he is acting for A. C. the policy against A. for a general balance due to him from B. Westwood v. Bell and another, 4 Campb. 349; and Holt. 122. Gibbs, C. J. 1815.

101. A., as factor for B., residing in Holland, procures a bill of exchange from C., in favour of B. Before the 94. A person who contracts with a customary days for giving value for the tradesman to pay him ready money, and bill are elapsed, A. becomes bankrupt; gives his servant the amount weekly, B. cannot sue C. Puget de Bras v. which is at first regularly paid over, is Forbes and Gregory, 1 Esp. 117. not liable if the servant afterwards em- Loughborough, C. J. 1792. bezzle the money. Stubbing v. Heintz, Peake, 47. Kenyon, C. J. 1791. Contra. Boulton v. Arlsden, 3 Salk, 234.

Sed vide S. C. 1 Lord Raym. 225. 95. But where the master employs a servant to buy on credit, he is liable to whatever extent the servant may pledge his credit. Ibid.

96. A. having purchased goods of B. on credit, gives notice to B.'s servant that in future he shall always pay for the goods as he receives them. A. accordingly pays the servant who embezzles the money. A. is not discharged, unless he shew that the notice reached B. land v. Freeman, 3 Esp. 85. Eldon, C. J. 1800.

102. If A. employ B., supposing him to be a proctor, though in fact he is merely a clerk to C., A. is liable to C. for the work done, unless the amount have been actually paid to B. Brown v. Brooks, widow, 1 Esp. 388. Kenyon, C. J. 1795.

N. So if B. were apprentice to C; Barber v. Dennis, 1 Salk. 68; S. C. 6 Mod. 69.

And see Co. Litt. 117 a, n. (161); 2 Saund. 479.

103. A servant employed to deliver goods is a competent witness to prove the delivery. Adams v. Davies, 3 Esp. Grat-48. Eldon, C. J. 1799.

97. The proprietor of a newspaper is answerable criminally as well as civilly for the misconduct of the editor. Rex v. Walter, 3 Esp. 21. Kenyon, C. J. 1799.

104. It might perhaps be otherwise, if it could be shewn that it was usual for the servant to receive payment from the customer. Ibid.

And see EVIDENCE, K. 2.

105. Where an agent makes a deposit 98. A. draws a bill on B. and forges on a treaty for a purchase as for himself, B.'s acceptance; B. pays the bill when the principal may, upon the default of due. A. draws a similar bill and again the vendor, sue for the amount in his forges B.'s acceptance; B. is liable as own name. Duke of Norfolk v. Worthy, acceptor. Barber v. Gingell, 3 Esp. 60.1 Camp. 337. Ellenborough, C. J. and K. B. E. 1808. Kenyon, C. J. 1799.

And see post, E, 110. 99. A. contracts for the laying of pipes 106. The master of a vessel freighted in a highway with B., who contracts with C. A. is liable for an injury oc- to A. delivers the cargo at B., at which casioned by the negligence of C. Mat-place the cargo is accepted by the thews v. West London Water Works, 3 freighter. This is not such a substitution Campb. 403. Ellenborough, C. J. 1813. of B. for A. as will entitle the owner to S. P. Bush v. Steinman, 1 Bos. and sue for the freight stipulated by the

'ul. 405.

And see Flower v. Adam, 2 Taunt. 314; Nicholson v. Mounsey, 15 East, 384; post, PENAL ACTION, A. (g).

charter-party, unless the master had express authority to alter the voyage. Burgon v. Sharpe and others, 2 Campb 529. Ellenborough, C. J. 1810.