(Snrurll ^aui irlinnl Slibraty Cornell University Library KO 2020.B78 A digest of the law of agency / 3 1924 022 400 364 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022400364 A DIGEST OF THB LAW OF AGENCY. BY WILLIAM BOWSTEAD, OF THE MIDDLE TEMPLE, BAEBISTEE-AT-LAV ; Formerly Bolder of Studentship and First Certificate of Honour of the Council of Legal Fducation ; Constitutional Law and Legal History Pritsemcin ,- Senior Seal Property Scholar of the Middle Temple. LONDON: SWEET & MAXWELL, Ltd., 3, CHANCERY LANE, Sato fttHi^^S; — 1 MANCHESTER: MEREDITH, RAY & LITTLER; DUBLIN: HODGES, FIGGIS & Co., Ltd., and E. PONSONBT; MELBOURNE Aim SYDNEY : C. F. MAXWELL. 1896 lONBON : PEINTBI) BY 0. P. EOVOETH, OBEAT NEW STEEET, FETTEE LANE, E.C. PREFACE. My object in -writing this Digest has been to reduce the English Law of Agency to a concise statement of definite rules and principles, illus- trated by decided cases. While I have thus attempted by the form of the Work to facilitate the study of the law, I have at the same time endeavoured, by referring to practically all the reported cases bearing on the subject, and by appending a full and comprehensive Index, to render the Work useful to practitioners for purposes of reference. W- BOWSTEAD, TempiBj January., 1896. TABLE OF CONTENTS. Peeface Table of Oases PAGE - iii - XV CEAF. I. — Peeiiminart ------ 1 II. — ^Implied Agency or Maeeied Women, &o. - - 13 m. — Appointment of Agents - - - - 29 IV. — The Docteine of Ratification - - - - 34 Y. — Authority of Agents - - - - 50 VI.— Duties of Agents - - - - - 88 Vil. — Liabilities of Agents to theie Peincipals - 126 Vin. — Eights of Agents against theie Peincipals - - 149 IX. — Eelations between the Peincipal and Thied Peesons ------ 205 X.^-Eelatjons between Agents and Thied Persons - 270 XI. — Deteemination of Agency - - - - 319 Appendix. — ^Factoes Act, 1889 - - - - -335 CHAPTBE I. Peeliminaey. AST. l.„Deflnitions - - - - - - 1 2. Del credere agency - - - - - - 2 3. Capacity to act as principal - - - - 4 4., Capacity to act as ^.gent - - - - - 5 5.,Por what purposes an agent may be appointed - - 7 6.,. Coragente ,---- --8 7». How the relation of agency arises - - - 10 8. Doctrine of holding out - , - - - - 12 Tl TABLE OF CONTENTS. CHAPTER n. Implied Agenct of Maeeied Women, &o. AET. PAOB 9. Presumption of authority from cohabitation. - - 14 10. Implied authority as housekeeper - - - - 16 11. Prima /aae, no authority where separated - - 17 12. ~Where separated by mutual consent - - - - 18 13. Where lining apart without the husband's consent - 21 i4. Where Hving apart in consequence of husband's miscon- duct, &o. - - . . -, - - - 21 15. Bflect of adultery by the wife 24 16. Implied authority to acknowledge debts for necessaries - 26 17. Husband not liable imless credit given to him - - 26 18. Authority implied from cohabitation as man and wife - 27 19. Child no implied authority to pledge parents' credit - 28 CHAPTER m. Appointment of Agents. 20. Authority to execute a deed - - - - 29 21. Appointment in other cases - - - - - 29 22. Appointment by corporations - - - - 31 CHAPTER IV. The Docteine of Ratification. 23. Ratification equivalent to previous authority - - 84 24. What acts may be ratified - - - - _ 35 25. Who may ratify - - - - - 37 26. Circumstances under which, and within what time, an act may be ratified - - - - _ _ 39 27. Conditions necessary for ratification - - - 41 28. How an act may be ratified - - - . _ 43 Ratification by companies - - - - 44 29. Effect of ratification - - - - . . 45 TABLE OF CONTENTS. iVll CHAPTER V. AUTHOEITY OF AGENTS. AET. PAGE 30. Authority cannot exceed powers of principal - - 50 31. Construction of authority given in general terms - - 51 32; Authority conferred in ambiguous terms - - - 53 33. Construction of powers of attorney - - - - 54 34. Construction of authority not giyen under seal - - 56 IMPLIED AUTHORITY. 35. To do what is necessary for or incidental to effective execu- tion of express authority - - - - - 5-7 36. Implied authority of general agents - - - 59 37. Implied authority where employed in course of busiaess as agent - - - - - --62 38. Authority implied from special customs - - - 65 Implied Authority of particular classes of Agents as incidental to tTieir employment'. (1) Factors 68 (2) Brokers- - -- - - - - 69 (3) Auctioneers - - - - - 71 (4) Counsel 72 (5) Solicitors - - - - - - '^3 (6) Shipmasters - - - - - - 74 39. Delegation of authority - - - - - 80 40. Principal and sub-agent - - - - - 83 CHAPTER VI. Dtjties of Agent. 41.. Duty to perform his undertakiag - - - - 88 42. Duty to obey instructions, or act according to usage and for principal's benefit - - - - - 88 43. Duty to keep principal's property separate, and to preserve correct accounts - - - - - 91 viii TABLE OF CONTENTS. Chapter VI. — Duties oe Agent — continued. AET. FAOE 44. Duty to exercise due skill, care and diligence - - - 9d 45. Duty to pay over money received to use of principal - 96 46. Jlstopped from denying principal's title - - - 99 Duties arising from the Fiduciary Character of the Relationship. 47. Duty to make full disclosure wtere any personal interest 102 48. Agent -vpiio purchases property, as such, in own name, is a - ^ trustee - - - - 106 49. Duty to make full disclosure 'where lie deals with the principal ' ' - - - - - - 107 50. Duty to account in equity - - - --111 61. Duty to account foi^aU secret profits - - 114 Special Duties of Particular Classes of Agents. (1) Factors - - - - - - 120 (2) Brokers - - - - - - 121 (3) Shipmasters - - - - - 122 (4) Auctioneers - - - - - - 122 (5) SoUoitors - 123 CHAPTEE VII. " Liabilities -of Agents to their Peincipais. 52. In respect of contracts entered into on behalf of the prin- cipal - - - ... _ 126 53. Liability on bills of exchange signed without qualification 127 54. LiabUity for negligence and other breaches of duty - 128 55. Measure of damages for negligence or other breach of duty 137 56. Liability of agents accepting bribes . _ _ 139 57. Where liable to pay interest - . . 141 58. Liability to attachment - . . _ _ 142 69. Liability for acts of sub-agents - . . . 143 60. Eights of principal on agent's bankruptcy - - 144 TABLE OF CONTENTS. . IX: CHAPTER Vni. EiaHTS OF Agents against their Principals. Section 1. RIGHT OF REMVNERATION. AET. PAGE 61. Pounded on an express or implied contract - - - 149 62. Commission only on transactions directly resulting from the agency _-___. 152 63. Remuneration may be payable ttough the principal ac- quires no benefit - - - - - - 156 64. Principal liable in damages if he •wrongfully prevents agent from earning remuneration - _ _ - 159 65. No remuneration in. respect of illegal or wagering trans- actions - - - - - - - 164 66. No remuneration in cases of misconduct or breach of duty 166 Section 2. RIGHTS OF REIMBURSEMENT AND INDEMNITY. 67. Indemnity from all liabilities, and reimbursement of aU expenses, incurred in course of agency - - - 169 68. Liabilities incurred under rules or usages of particular markets - - - - - - - 172 69. No indemnity or reimbursement in respect of illegal, ■wagering, or unauthorized transactions, or of liabilities or expenses incurred in consequence of awn default - 175 Section 3. RIGHT OF LIEN. 70. ' Definitions of particular and general possessory liens - 180 71. Possessory lien of agents - - - 180 72. Confined to rights of principal, except ia the case of money . or negotiable securities ----- 188 73. -Lien of-sub-agents - - - - - -, 191 Solicitor's oliarging lien on property recovered or preserved through his instrumentality - - - - 193 Shipmaster's lien - - - - - - 197 74. Ho-w lien extinguished - - - - - 198 TABLE OF CONTENTS. Section 4. BiaHT8 OF STOPPAGE IN TEANSITU, INTERPLEADER, AND ACGOUNT. Ann. PAaB 15. Eight of stoppage m transitu - . . - 200 76. Eight to interplead - - - - - - 201 77. Eight to an acooiint _ _ _ _ 203 78. No right to sue principal on contracts entered into on his behaH - - .... 204 CHAPTER IX. EeLATIONS BETWEEIT THE PuiNCIPAl AND ThIED PERSONS. Section 1. WE AT ACTS OF AGENTS BIND THEIR PRINCIPALS. 79. Acts within scope of apparent authority - - 205 80. Not bound by acts beyond scope of authority, or not done in course of employment - - - 208 81. Dealings with money and negotiable securities - 212 82. DeaUngs protected by the Factors Act, 1889 - - 213 83. Lien of consignee for advances to apparent owner of goods 217 84. No unauthorized act binding with respect to persons with notice - - - - - . . 218 85. Holding out another as agent .... 219 Section 2. RIGHTS AND LIABILITIES OF THE PRINCIPAL ON CONTRACTS MADE BY AGENT. 86. May sue or be sued in own name - - - - 222 87. Foreign principals ..... 224 88. Deeds - - - - - - - 225 89. BiLLs, notes and cheques ..... 226 90. Broker's bought and sold notes - - - - 228 91. Effect of particular customs or usages - . - 229 92.- Effect on right to sue the principal of giving credit to or obtaining judgment against the agent - - - 230 TABLE OF CONT£NTS> Xl: Chap. XI. — continued. AST. PASS 93. How far right of recourse to principal affected by a settle- ment between principal and agent . - - 233 94. EigM of undisclosed principal to sue in own name - - 235 95. Fraud, misrepresentations, or knowledge of agent maybe set up in an action by the principal _ - - 236 96. How far principal bound by payment to, or settlement with, or set-off against agent - - - - 238 Section 3. LIABILITY OF THE PBINGIPAL FOB TORTS OF AGENT. 97. Principal liable for all agent's torts in course of employ- ment on his behalf _ - _ . _ 245 98. Money, &c., misappropriated by agent - - - 250 99. Principal not liable for wrongs outside course of employ- ment on his behalf - - - - - 251 100. How far Haljle for intentional wrongs by agent - - 255 101. How far liable for misrepresentations believed by agent to be true ------ 258 102. Not liable for misrepresentations by agent as to credit, &c., of third persons - - - - - 260 Section 4. ADMISSIONS BY AND NOTICE TO AGENT. 103. How far agent's admissions evidence against the prin- cipal - - - - - - - 260 104. Doctrine of constructive notice - - - - 264 Constructive Notice to Purchasers for Value. - 267 105. Eights of principal where agent bribed - - - 268 Xll TABLE OF CONTENTS.- CHAPTER X. ' Eelations between Agents and Thied Peesons. Section 1. LIABILITIES OF AGENTS IN BESPEGT OF CONTRACTS MADE BT THEM. AET. PAGE 106. Public agents not liable on contracts made as such. - 270 107. _ Agent liable if he contracts personally, but not if he contracts merely as an agent - - - - 272 108. Liability on contracts under seal - - - - 277 109. Liability on bUla of exchange, promissory notes and cheques - - - - - - - 278 110. Other written contracts ----- 281 111. Admissibility of parol evidence of intention - - - 285 112. Verbal contracts - - - - - - 287 113. Liable if shown to be the real principal - - - 288 114. Liability when no principal in existence - - - 289 115. Implied warranty of authority - - - - 289 116. Measure of damages for breach of warranty of authority - 293 Section 2. ■ LIABILITIES OF AGENTS IN RESPECT OF MONEYS RECEIVED BY THEM. 117. Money paid by third persons - - - 297 118. Money received to use of third persons - - - 301 Section 3. BIGHTS OF AGENTS AGAINST THIRD PERSONS. 119. Eight of agent to sue in own namo on contracts made by him - . . - _ 303 120. Effect of intervention of or settlement with the principal - 307 121 . Defences available where agent sues in own name - 310 122. Eight of agent to sue for money paid by mistake, &c. 310 123. No right of action for promised bribes - - - 311 TABLE OP CONTENTS. XUl Chap. X. — continued. Section 4. LIABILITIES OF AGENTS IN RESPECT OF TOETS COMMITTED ON PRINCIPAL'S BEHALF. AET. PAGE 124. Agent personally liable for all -wrongs committed by TiiTn 311 125. Conversion by innocent agent - - - - 314 126. Agents not liable for torts of co-agents or sub-agents - 318 CHAPTEE XI. Determination of Agency, 127. Determination by effluxion of time, &c. - - - 319 128. How agent's authority may be determined - - - 320 129. Wben autbority irrevocable . _ _ _ 320 130. Powers of attorney irrevocable in favour of purchasers for value - - - - - - - 324 131. Eevocation of authority by death or insanity - - 326 132. Eevocation of authority by bankruptcy of principal - - 327 133. Determination of authority by notice of revocation or renunciation ______ 329 134. "When notice of revocation to third persons necessary - 332 135. Protection of agent acting under power of attorney without notice of revocation _ - - . . 333 TABLE OF CASES. Abbott, Ex parte, 263. Abel V. Sutton, 51, 211. Aberdeen Bail. Co. v. Blakie, 103. Abraiam v. Deakia, 253. Acey V. Femie, 60, 209. Adams, Ex parte, 195. V. HaU, 288. Adamson v. Jarvis, 1Y7. Adansonia Fibre Co., Ee, 228. Addison v, Gandassequi, 231. Aggs V. Nicholson, 228, 281. Alder v. Boyle, 159. . Alexander v. Gibson, 58. : V. Mackenzie, 218. V. Sizer, 281. V. Soutbey, 318. Alfred, The, 76. Allan v.. Miller, 280. Allen V. IJenstone, 261. - — : ■». L. & S. W. Bail. Co., 62, 263. Alley i^.Hotson, 321. , AHkins v. Jupe, 165, 176. , Alson V. Sylvester, 126. Ancona v. Marks, 36. Anderson v. Sanderson, 262. V. Watson, 48, 313. Anglo-Maltese Hydraulic Dock Co., Ee, 189. Angus V. Maclachlan, 199. Antrobus v. Wickens, 156. Appleton V. Binks, 277. Archer's case, 114, 118. Armstrong v. Stokes, 234. Arnold v. Mayor of Poole, 32. Amofc V. Biscoe, 313. Arthur v. Barton, 75, 76. Ashbury Carriage Co. v. Eiche, 36. Aste V. Montague, 333.~ Atkins V. Carwood, 15. Atkjms V, Amber, 308. V, Pearce, 25. Atlantic Marine Ins. Co. v. Huth, 79. Attenborough v. L. & St. Eath. Docks, 201. Att.-Gen. v. Chesterfield, 85. V. Corp. of Leicester, 313. V. London, 100. V. Jackson, 209. V. Middle, 245. ■ V. Siddon, 245. " V. Trueman, 188. V. Walmsley, 188. Attwood V. Manniags, 55, 209, 218. August, The, 74. Austin V. Chambers, 106. V, Guardians of Bethnal Green, 32. Australia, The, 36, 44, 78. Australian Steam Nav. Co. v, Morse, 79. Auty V. Hutchinson, 272. XVI TABLE OF CASES. Badman, Ex parte, 41, Baemeister v. Fenton, 287. Bagnall v. Carlton, 117. Bailey v. Ohadwick, 152. Baines v. Ewing, 211. Baker V. Keen, ^28._' _" ;, ', V. Langhorn, 126, 'l27. V. Sampson, 22, 24. Baloli V. Symes, 185. Baldry v. Bates, 58. Balfe V. West, 88. Bamlord v. Shuttleworth, 299. Bank of Bengal v. Fagan, 56. V. M'Leod, 56. New South. Wales v. Owston, 61, 254. Scotland v. Watson, 58. Banque Jacques Cartier v. Banque D'Epargne, 35, 41. Barber v. Taylor, 89. Barford v. Stuckey, 225. Baring v. Oorrie, 2, 68, 70, 121, 181, 240, 241. '■ — V. Stanton, 119, 150. Barkers. Furlong, 315, 316, 317. V. Greenwood, 52, 244. V. Harrison, 116. Barlow v. Browne, 303. Barnett v. Crystal Palace Co., 247. V. South London Tram Co., 211, 263. Baron v. Husband, 303. Barrett V. Deere, 222.^ Barron v. Fitzgerald, 178. Barrow v. Dyster, 287. Barry v. Stevens, 112. Bartlett v. Pentland, 53, 245. V. Pickersgill, 31, 106. Barton's Hill Coal Co. v. M'Guire, 246. Barton's HiU Coal Co. v. Eeid, ■ 246. Barwick v. English Joint Stock Bank, 258. Bateman v. Mid- Wales Eail. Co., 4. Bates V. Pilling, 248. Battams v. Tompkins, 149. Bauerman v. Eadenius, 310. Bawden v. London, Edin. & Glas. Insr Co., 237, 264. Bay ley v. M. S. & L. Eail. Co., 249. V. Wilkins, 57, 173. BaylifEe v. Butterworth, 173. Baylis v. Watkias, 23, 124. Bayntun v. Cattle, 97. Bazeley v. Forder, 22. Beal V. South Devon Eail. Co., 93, 129. Beale, Ee, 154. V. Arabin, 19. Beall, Ex parte, 189, 190. Bear v. Stevenson, 318. Beattie v. Ebury, 291. Beauchamp v. Poley, 134. Beaufort v. Neeld, 57, 206. V. Taylor, 57, 206. Beaumont v. Boultbee, 112, 166. Beldon v. Campbell, 75, 76. BeU V. Auldjo, 70. V, Nisan, 9. Benham v. Batty, 43. Bennett v. Bayes, 312. Benson v. Duncan, 77, 79. V. Heathom, 105, 142. Bentley v. Craven, 104. V. Grifan, 26, 231. Berkeley v. Hardy, 29, 91, 226. Berrie (or Berry) v. Howitt, 196. Bertram v. Godfray, 54, 88, 89, 137. Best V. Heys, 202. Betham v. Benson, 261. Betteley v. Eeed, 101. Betts V. Gibbins, 177. V. De Vitre, 246. Bexwell v. Christie, 89, 90, 123, lolt TABLE OF CASES. XVll Beyer v. Adams, 98. Bickerton v. Burrell, 304. Biddle v. Bond, 100, 102. Biffin V. Bignell, 19. Bigg V. Strong, 43. Biggs V. Bree, 123. V. Gordon, 149. V. Head, 124. V. Lawrence, 238, 262. BUbee v. Hasse, 156. Bingiam v. Allport, 207. Bird, Ex parte, 274. V. Boulter, 6, 11. V. Brown, 34, 39, 40, 46, 48. V. Jones, 18. Birmingham Banking Co., Ex partej 82. Bishop, Ex parte, Ee Pox, 171. Blackburn v. Haslam, 237. V. Mason, 52, 68, 85, 172, 245. V. Soholes, 238, 319. V. Vigors, 267. Blackstone v. WUson, 263. Blades v. Free, 326, 333, Blain, Ex parte, 212. Blore V. Sutton, 81, 84. Bloye's Trust, Ee, 104. Blyth V. Eladgate, 136. V. Wbiffin, 112, 201, 203. Bock V. Gorrisson, 181. Boden, Ex parte, 146. V. Prench, 53. Bold Buccleugh, The, 197. Bolton Partners v. Lambert, 41. Bone V. Ekless, 97. Bonita, The v. The Charlotte, 41, 46, 78. Bonzi V. Stewart, 99. Boorman v. Brown, 70, 122, 131. Borries v. Imp. Ottoman Bank, 240. Bosanquet, Ex parte, 41. B. Bostock V. Jardine, 67, 70, 105, 121. Boston Deep Sea, &o. Co. v. Ansell, 140, 142. Bottomley v. Pisher, 281. Bousfield V. Oresswell, 95. V. Wilson, 98. Bowen v. European Bank, 202. V. Morris, 307. Bower v. Jones, 151. Bowes, Ee, 185. Bowker v. Austin, 188. Bowlby V. BeU, 178. Bowles, Ee, 55. 0. Orr, 113. V. Stewart, 255. Boyle V. Atty, 76. Brace v. Oalder, 161. Bracey v. Carter, 168. Braddiok v. Smith, 203. Bradley v. Eiohes, 265. Brady t). Todd, 1, 2, 58. Bramble v. Spiller, 305. Brandeo v. Barnett, 181, 185, 186, 190. Bray v. Chandler, 152. Brazier v. Kemp, 220. Breming v. Mackie, 51, 244. Brewer v. Sparrow, 45, 48. Bridger v. Savage, 98. Bridges v. Garrett, 51, 244. Bright, Ex parte, 4, 147, 333. Briscoe v. Briscoe, 195. Bristow V. Taylor, 330. V. Whitmore, 44, 197. British Mutual Banking Co. v. Charnwood Porest EaU. Co., 255. Broad v. Thomas, 160, 162, 159, 161. Broadbent v. Barlow, 148. Brocklesby v. Permanent Tem- perance Bldg. Society, 207. h XVlll TABLE OF CASES. Bromley v. Holland, 329, 330. Brook V. Hook (or Hoop), 36. Brookman v. Eothsohild, 103, 104, 122. Brooks V. Hassell, 58. Broomiead, Ee, 181, 185, 199. Brown v. Aokroyd, 23, 24, V. Andrew, 8, 9. V. Byers, 56. V. Kennedy, 111, 150. V. Powell Dufiryn Steam Coal Co., 80. V. Southouse, 142. V. Staton, 72, 123. Browning v. Prov. Ins. Co. of Canada, 222. Brunswick v. Orowl, 164. Bryans v. Nix, 183. Bryant v. Flight, 150. V. La Banque du Peuple, 54, 55. V. Quebec Bank, 54. Buchanan v. Pindlay, 187. Buck, Ex parte, 145, 182. Buckley, Ex parte, 228, 279. Bulkeley v. Dunhar, 312. V. WiKord, 137. Bull V. Price, 159. Buller V. Harrison, 300. Burdett v. Willett, 146. Burdick v. Garrick, 92, 114, 142. Burgoine v. Taylor, 137. Burgon'i;. Sharpe, 79. Burmester v. Norris, 61. Burn V. Brown, 187. Burnes v. Pennell, 253. Burnett v. Bouch, 150. Buron v. Denman, 35, 47, 312. Burrough v. Skinner, 123, 299. Burt V. Palmer, 262, 263. Butler V. Knight, 63, 73, 74, 123, 130, 206, 319. Oaine v, HorsefaU, 149. Oalder v. Dobell, 223, 232. Callan, Ex parte, 31. CaUen, Ee, 187. Calvert, Ex parte, 199. Oammell v. Sewell, 78. Oampanari v. Woodbum, 167, 326, 331. Campbell v. HasseU, 66, 70, 239. V. Larkworthy, 169. Cape Breton Co., Ee, 105, 119. Oapel V. Thornton, 57. Capital Eire Ins. Asson., Ee, 189, 190. Capp V. Topham, 179. Oargill V. Bower, 318. Cargo V. Galam, 197. V. The Sultan, 77. Carlow, Ex parte, 146. Oarr v. HinchcUfle, 240; V. Jackson, 288. Carriage Co-op. Supply Asson., Ee, 118. Carter v. Palmer, 115. Cartwright v. Hateley, 85. Caruthers v. Graham, 158. Cary v. Webster, 297, 298. Cass V. Eudele, 277. • V. Spurr, 223. Cassaboglou v. Gibbs, 93, 137. Castlegate, The, 197. Castrique v. Buttigieg, 128. Catlin V. Bell, 82. Catterall v. Hindle, 244. Cave V. Cave, 265. V. Mackenzie, 31. Cavendish-Bentinck v. Penii, 106, 120. Oella, The, 198. Chadburn v. Moore, 65, 91, 210. Chapleo, v. Brunswick Building Society, 251, 292. Chapman, Ee, Ex parte Ed- wards, 300. TABLE OF CASES. XIX Ctapman v. Shepherd, 174. V. Van Toll, 135. Charles Amelia, The, 197. Charleston v. London Tram. Co., 253. Charter v, Trevelyan, 107. Chartered Bank of Australia v. "White, 181, 185. Ched-worth v. Edwards, 141 . Oherryv. Colonial Bani of Aus- tralasia, 290, 291. Chesterfield and Mid Silkstone Colliery Co. v. Hawkins, 225. Chinnock v. Sainsbury, 321. Cholmondeley v. Clinton, 124. ChristofEerson v. Hansen, 277. Church i;. Imp. Gaslight Co., 32. City Bank v. Barrow, 64. Clack V. Wood, 158. Clarke v. Perrier, 43, 48. V. Tipping, 89, 91, 92, 112, 120. Clifford V. Laton, 15, 18, 21. Clutterhuck i;. Coffin, 271. Coaks V. BosweU, 110. Coates V. Lewes, 240. V. Pacey, 175, 176. Cobb V. Becke, 87. Cobequid Mariae Lis. Co. v. Barteaux, 78. Cochran v. Mam, 69, 71, 82, 120. Cochrane v. EymUl, 315, 317. Cockbum v. Edwards, 110, 125. Coe V. Wise, 247. Coggs V. Bernard, 88, 121, Cohen v. Ettell, 134. V. Paget, 150. Cole V. North Western Bank, 214. Coleman v. Baches, 256. Coles V. Bristow, 67. V. Trecothick, 30, 81, 82, 83, 122. Oollen V, Gardner, 60, 218. V. Wright, 290, 296. Collins V. Griffin, 143. Collyer v. Dudley, 92. Colmer v. Ede, 188. Combe's case, 81, 91. Comber v, Anderson, 89, 129, 133. Commonwealth Land, &c., Co., Ee, 73. Connelly v, Lawson, 21. Consolidated Co. v. Curtis, 316. Cooke, Ex parte, 146. V. Eshelby, 241. V. Wnson, 282, 305. Coombe's case, 4. Cooper V. De Tastet, 99, 201. ■ V. Lloyd, 25. Cope V. Eowlands, 164. V. Thames Haven Dock, &c., Co., 32. Copeland v. Stein, 189. Coppin V. Craig, 309. V. Walker, 309. Oormack v. Digby, 254. Oornfoot v. Powke, 237, 258, 259. Cornwall v. Wilson, 45, 48. Cortis V. Kent Waterworks Co., 9. Cotton V. James, 212. Oousia's Trusts, Ee, 267. Coutourier v. Hastie, 3. Cowdry v. Day, 109. CoweU V. Betteley, 196. V. Simpson, 181, 198. Cowley V. Sunderland, 247. Cox V. Leech, 168. V. Midland Counties Eail. Co., 59, 61. V. Prentice, 300. Craddock u. Eogers, 110. Cranch v. WHte, 313. Crantz v, GiU, 28. Crawley's claim, 170, 174. J2 XX TABLE OF CASES. Crawsliay v. Thornton, 201. Croft V. Alison, 256. Cropper v. Cook, 67, 171. Crosskeys v. Mills, 123. Crossley ■;;. Magniae, 243. Crowe V. BaUard, 109. Crowfoot V. Gurney, 302, 322, 324. Crowl, Ee, 164. Orowther v. Elgood, 123, 143. CuUen V. Queensberry, 220. V. Thompson, 7, 312. Ounningham, Ee, 210. V. CoUier, 271. Curlewis v. Birkbeck, 205, 238, 332. Curling V. Stuttleworth, 299. Curtis V. Barclay, 58, 171. V. Nixon, 154. V. WiUiamson, 233. Cutter V. Powell, 152. Dadswell v. Jacobs, 92. Dale and Plant, Ee, 38. V. Humfrey, 287. Dallow V. Garrold, 195. Dalton V. Irwin, 168. Danby v, Coutts, 55. Daniel v. Adams, 64, 72. Dantra v. Stiebel, 139. DartnaU v. Howard, 135. Daubigny v. Duval, 218. Daun V. Simmons, 63, 210. Davies, Ex parte, Ee Sadler, 100, 102, 201. V. Clough, 124. V. Jenkins, 313, 314. V. Lowndes, 194. Davis V. ArtingstaU, 317. V. Howard, 175. Davison v. Donaldson, 234, 235. Dean and Gilbert's claim, 162. Deare v. Soutten, 22. Debeniam v. MeUon, 14, 15, 16. De Bouobout v. Goldsmid, 56. De Bussche v. Alt, 80, 81, 83, 84, 106, 110, 116. De Comas v. Prost, 323. De la Ohaumette o. Bank of England, 191. De Mattos v. Benjamin, 98. Denew v, DevereU, 168. Dennys v. Sargeant, 18. Dent V. Dunn, 234. Derry v. Peek, 258, 259. Deslandes v. Gregory, 284. Devala Prov. Gold Miniag Co., Ee, 263. Deverell v. Bolton, 30. Dicas V. Stockley, 193, 199. Dickinson v. LUwall, 320. V. Naul, 304, 307. V. Valpy, 61. Die Elbinger Action GeseUsobaf t V. Olaye, 224, 273. Diggle V. Higgs, 331. Dingle v. Hare, 57, 66, 69. Dinwiddle v. Bailey, 203. Dixon, Ex parte, Ee Henley, 68, 205, 238, 240. V. Broomfield, 12. V. Ewart, 328. V. Hammond, 97, 99. V. HurreU, 21. V. Stansfield, 184. Dodsley v. Varley, 221, 333. Doe d. Lyster v. Goldwin, 40. Mann v. Warlters, 40. Willis V. Martin, 255. V. Eobinson, 82, 84. Donelly v. Popbam, 49. Dooby V. Watson, 135. Doorman v. Jenkins, 134. Douglas, Ee, 327, 329. V. Ewing, 215. Dowman v. Williams, 283. TABLE OF CASES. XXI Dramburg v. Pollitzer, 224, 273. Dresser v. Norwood, 241, 265. Drew V. Nimn, 4, 326, 333. Drinkwater v. Goodwin, 69, 183, 243, 308, 324. Druce v. Levy, 175. Drum Slate Quarry Co., Ee, 119, 142. Ducarrey v. Gill, 228. Dudley, Ee, 143. Duero, The, 248. Dufresne v. Hutchinson, 131. Dumas, Ex parte, 146. Duncan v. Beeson, 179. V. Benson, 77, 79. V. HjU, 179. V. Skipwith, 134. Dunn V. Newton, 231. Dunne v. English, 105. Durrant, Ex parte, 154. Durrell v. Evans, 6, 57. Dutton V. Marsh, 280, 282. Dyas V. Cruise, 89, 205. Dyer v. Munday, 250. V. Pearson, 220. Dyster, Ex parte, 121, 204. Eaglesfield v. Londonderry, 291, 312. East Lidia Co. v. Henchman, 89, 103, 139, 268. V. Hensley, 209. V. Tritton, 299. Eastern Counties Eail. Co. v. Broom, 36, 47, 250. Eastland v. Burchell, 18, 20. Eccossaise SS. Co. v. Lloyd, 143. Eden v. Eidsdale Lamp, &c. Co., 118. Edgar v. Fowler, 331. Edge, Ee, 143. EdgeU V. Day, 92, 125. Edmunds v. Bushell, 60, 206. Edwards.'Exparte, Ee Chapman, 300. Johnson, 86, 87, 193. V. Havill, 76. V. Hodding, 299. V. L. & N. W. Ey. Co., 41, 62, 254. V. Mid. EaU. Co., 247. V. Towels, 18. EHza Cornish, The, 78. Elkington v. Hurter, 292. EUiott V. Tuxquand, 329. ElKs V. Goulton, 299. V. Turner, 256. Elsee V. Gatward, 88, 134. Emery v. Emery, 24. Emma SUver Mining Co. u. Grant, 117. Emma Silver Mining Co. v. Lewis, 117. Emmens v. Elderton, 161. Emmerson v. HeeUs, 6, 11, 71. Emmett U.Norton, 16, 17, 20,25. Empress Engineering Co., Ee, 38. English and Scottish Marine Lis. Co., 163. Entwistle v. Dent, 57. Erlanger v. New Sombrero Phosphate Co., 117. EsdaUe v. La Nauze, 55. Espin V. Pemberton, 266. Bssery v. Cobb, 276. Etna Lis. Co., 166. Evans v. Nichol, 101. V. Smallcombe, 45. Eairlie v. Penton, 304, 306, 307. V. Hastings, 261. Ealt V. Fletcher, 200. Panny, The, 75, 79. Parebrother v. Ansley, 169. V. Simmons, 5. Farley v. Turner, 146. xxu TABLE OF CASES. Farmer v. Eobinson, 330. V. Eussell, 98. Parrer v. Lacy, 90. Parro-w v. Wilson, 326. Paveno v. Bennett, 238. Paviell V. Eastern Counties Eail. Co., 33, 63, 73. Pawoett V. WMtehouse, 116. Pawous, Ee, 145, 182. Pawkes v. Lamb, 307. Peise V. Wray, 200. Pell V. Brown, 128. V. Parkin, 234. Penn v. Harrison, 58, 209. Perguson v. Carrington, 44, 46. Peronia, The, 198. Perrars v. Robins, 90, 122, 131. Piddey, Ee, 194. Pielding v. Kymer, 69, 121. Pilmer v. Lynn, 221. Pirbank v. Humpbreys, 290, 291, 294. Pisb V. Kempton, 241. Pisber v. Drewitt, 157, 158. V. Marsb, 303. V. Miller, 321. V. Smiti, 186, 192. V. Val de Travers Co., 137. Fitzgerald v. Dressier, 209. Pitzmaurioe v. Bayley, 43. Fitzroy Bessemer Steel Co., Ee, 265. Flanagan v. G. W. EaU. Co., 109. Fleet V. Murton, 287. Plemyng v. Hector, 220. Flint V. Woodin, 104. Pinker v. Taylor, 113. Foley V. Hill, 113. Foreman v. G. W. Eail,, 6, 207. Forristall v. Lawson, 21 . Poster V. Bates, 38, 326. V. Pearson, 89. Pox, Ee, Ex parte Bishop, 171. Pox V. Frith, 281. Foxcroft V. Wood, 182. Pranklyn v. Lamond, 122, 275. Pray v. Voules, 90, 123, 130. Freeman v. Appleyard, 213. V. Pairlie, 330. V. Eosher, 42, 246. Freestone v. Butcher, 15, 16. Frith u. Cartland, 148. V. Forbes, 187. Prixione v. Tagliafflerro, 44, 49, 171, 176. Prontin v. Small, 91. Frost V. Oliver, 76. Fry V. Fry, 141. Fuentes v. Montis, 206. Fuller V. Bennett, 266. V. Fames, 158. V. Wilson, 259. Pullwood V. Akerman, 149. Furlong v. South London Tram. Co., 249. Purnival v. Bogle, 72. Gaby v. Driver, 299. Gadd V. Houghton, 282, 284. Gaetano and Maria, The, 74, 75. Galland, Ee, 184. Gardner v. Baillie, 56. V. MoOutcheon, 103, 122. Garth V. Howard, 261. Gaskell v. Chambers, 117. Gatty i;. Field, 331. Gauntlett v. King, 42, 246. Gaussen v. Morton, 322. General Exchange Bank v. Hor- ner, 89, 118. George v. Olagett, 240. Georges v. Georges, 185. Gibbs V. Daniel, 109. Giblin V. MoMuHen, 134. Gibson v. Crick, 153. ■ V. Jeyes, 110. TABLE OF CASES. XXIU Q-ibson v. Minet, 301, 331. V. "Winter, 310. Gidley v. Palmerston, 270, 271. Gillu. Kymer, 69, 121. Gillaxd V. "Wise, 98. GiUett V. Peppercorne, 103. Gillow V. Aberdare, 57, 166, 320. Gilman v. Eobinson, 205, 208, 221. Glasgow, The, 78. Glover v. Langford, 282. Gobind Ohunder Siud v. Ryan, 215. Godefroy v. Dalton, 123, 136. V. Jay, 136. Godfrey v. Furzo, 146. Godin V. London Assurance Co., 181, 190. Godwin v. Francis, 297. Gofi V. G. N. Rail., 249. Gomme v. FranMin, 27. Goodland v. Blewitt, 207. Goodman v. Harvey, 212. Goodson V. Brooke, 64. Goodtitle v. Woodward, 40. Goodwin v, Eobarts, 213. Goom V. Aflalo, 229. Gordon v. Eolt, 255. Gosling's case, 264. Gosling V. Birnie, 101. Goupy V. Harden, 128. Govier v. Hancock, 25. Graham v. Aokroyd, 169. V. Musson, 12, 30. Grant v. Fletcher, 121, 228. V. Norway, 75, 79. V. "United Kingdom Switchback Rail. Co., 45. Gratitudine, The, 77, 79. Graves v. Legg, 264. V. Masters, 60, 209. Gray v. Gutteridge, 123, 299. V. Haig, 89, 91, 92, 166. V. Kirby, 87. Great Luxembourg EaU. Co. v. Magnay, 105. Great "Western Ins. Co. of New York V. Ounlifle, 113, 119. G. "W. Eail. V. "WiUis, 262. Green v. Bartlett, 155. V. Elgie, 314. V. Hopke, 282. V. London Gen. Omnibus Co., 256. V. Lucas, 157. ■ V. Maitland, 101. V. Mules, 151. Greenwood, Ex parte, 147. Gregory, Ex parte, 147. V. Parker, 26. V. Piper, 249. Qrice v. Kenrick, 309. Griffin V. "Weatherby, 301, 321. Griffiths V. ■Williams, 83. Grindley v. Barker, 9. Grogan v. Smith, 158. Groom v, Cheesewright, 194. Grove v. Dubois, 3, 127. Guerreiro v. Peile, 69, 91, 120. Guichard v. Morgan, 69. Gunn V. Eoberts, 41, 76. Gunnis v. Erhart, 71, 211. Gumey v. Gibb, 133. V. "Womersley, 298. Guthrie v. Armstrong, 9. Gny V. Churchill, 195. Gwatkin v. Campbell, 89, 108. Hadley v. Baxendale, 137. Hagedorn v. OUverson, 38. Hahn v. North German Pitwood Co., 282. Haines v. Bus!^, 165. HaU V. Fuller, 179. HaUett's Estate, Ee, 146. Hamburgh, The, 77. Hamer v. Sharp, 65, 91, 210. XXIV TABLE OF CASES. Hamilton v. Baker, 197. V. Young, 68, 106. Hammond v. Barclay, 183. V. Thorpe, 293. Hamond v. Holiday, 168. Hampden v. Walsh., 331. Hancock v. Hudson, 278. Hanson v. Eoberdeau, 275. Hardacre v. Stewart, 313. Hardie v. Grant, 25. Hardwicke v. Vernon, 140, 142. Hargreaves v. Eothwell, 266. Harington v. Hoggart, 142. Harker v. Edwards, 66, 67, 172. Harmer v. Bell, 197. V. Cornelius, 93. Harper v. Godsell, 55. Harrington v. Churchward, 203. V. Victoria Graving Dock Co., 311. Harris v. Morris, 22, 25. V. Nickerson, 275. V. Osbom, 125. V. Petherick, 149. V. Truman, 148. Harrison v. Grady, 14, 15, 21, V. Jackson, 29. , v., 332. Harsant v. Blaine, 92, 93, 141. Hart V. Frame, 136. Hartas v. Ribbons, 179. Hartop, Ex parte, 274, 288. Harvey v. Norton, 19, 27. Haselar v. Lemoyne, 42, 246. Hastings v. Pearson, 217. Hatch V. Hale, 63, 246. HatsaU v. Griffith, 98. Hawkes v. Dunn, 200. Hawkins v. Kemp, 7. Hawley v. Sentance, 43. Hawtayne v. Bourne, 61. Hay's case, 119. Hay V. Goldsmidt, 65. Hayes v. TindaU, 94. Haynes v. Poster, 71. Hazard v. TreadweU, 208. Heald v. Eienworthy, 234. Healey v. Storey, 281. Heard v. PiUey, 30, 31. Heath v. Chilton, 301. Heinrich, The, 195. V. Sutton, 194. Heisch v. Carrington, 244. Helgear v. Hawke, 51. Hemmings v. Pugh, 112. Henchman v. E. I. Co., 89, 103, 139, 268. Henderson v. Australian Steam Navign. Co., 31, 32, 33. V. BameweU, 71, 82. Henley, Ee, 68, 205, 238. Herald v. Connah, 278. Hem V. Nichols, 246. Hersey, The, 77. Heugh V. Abergavenny, 7. Heyman v. Neale, 228. Heyworth v. Knight, 205. Hibbert v. Bayley, 122, 132. Hick V. Tweedy, 282. Hiern v. MiU, 266. Higgins V. Senior, 285. Hilberry v. Hatton, 35, 43, 47. Hill V. Kitching, 158. Hinde v. Whitehouse, 6. Hindley v. Westmeath, 21. Hine v. SS. Ins. Syndicate, 245. Hobhouse v. Hamilton, 273. Hobler, Ee, 72. Hoby V. Built, 125, 132. Hockin v. Cooke, 29. Hodgkinson v. Fletcher, 20, 21. V. KeUy, 67, 174, 229. Hodgson V. Anderson, 301, 321. Hogg V. Snaith, 55. Hoggard v. Mackenzie, 184, Holder v. Cope, 20, TABLE OP CASES. XXV Holding V. Elliott, 285, 288. HoU V. Griffin, 101. HoUand v. Eiissell, 299. Hollington, Ex parte, 73. Hollins V. Eowler, 316. HoUis V. Claridge, 189. Hollman v. PuUin, 289, 304. Holmes v. Tutton, 310. Holt V, Brien, 17. ■;;. Ely, 311. Hood V. Eeeve, 263. Hooper, Ee, 124. V. TrefErey, 169. Hope, Tte, 198. Hopkinson v. Smith, 123, 167. Horford v. Wilson, 168. Hornby v. Lacy, 3, 126, 236, 241. Horsfall v. Fauntleroy, 233. Horwood V. Hefler, 24. Hough V. Manzanos, 282. Houghton V. Matthews, 69, 184, 273. Houliston v. Smyth, 21, 24, Hovil V. Pack, 44. Howard's case, 82. Howard v. BaOlie, 55, 56. V. Braithwaite, 74, 218. V. Chapman, 60. V. Patent Ivory Co., 38. V. Sheward, 58, 64, 206. V. Tucker, 261. HoweU, Ex parte, 57, 59. V. Batt, 302. Hubbard v. Phillips, 293. Hubbersty v. Ward, 79. Hudson V. Granger, 243, 324. Hugh V. Abergavenny, 7, 312. Hughes V. Greame, 292, 296. Hull V. PickersgiU, 35, 48, 313. Humble v. Hunter, 224. Humphrey v. Lucas, 229. Hunt V. De Blaqtiiere, 15. V. Maniere, 100. Hunter v. Atkins, 111. V, Belcher, 112. V. CaldweU, 136. V. Parker, 45, 78. Huntley v. Bulwer, 168. Hurry v. Eickman, 246. Hurst V. Holding, 166. Hussie V. Christie, 77. Hutcheson v. Eaton, 282. Hutchins v. Hutohins, 124. Hutchinson v. Tatham, 286. Huth, Ex parte, 104, 122, 269. Hutton V. Bullock, 65, 224, 273. Hyde v. Johnson, 8. V. Price, 20. Ida, The, 261. Imperial Bank v. L. & St. Kath. Docks Co., 200, 287. Mercantile Credit Co. V. Coleman, 108, 114. Wine Co., Ee, 163. Inchbaldi". Western Neilgherry, &c. Co., 162. Ingram v. Little, 26. Ireland v. Livingstone, 53, 54. V. Thomson, 78. Ireson v. Pearman, 135. Irvine v. Union Bank of Aus- traha, 36, 47. V. Watson, 234, 235. Iveson V. Conington, 272. Jacob V. Magnay, 143. James, Ex parte, 104, 144, 251. V. Eicknell, 64, 74. V. Smith, 30, 31, 106. Jarmain v. Hooper, 73, 248. Jeffrey v. Crawford, 152. Jenkins v. Betham, 95. V. Hutchinson, 276, 288. V. Morris, 227. Jenner v. Morris, 22. Jenny Lind, The, 198. XXVI TABLE OF CASES. Jessel V. Bath, 80. Jetley v. HiU, 221. Je-wesbury v. Newbold, 15, 27. Johns V. Simons, 76. Johnson, Ee, Ex parte Edwards, 86, 87, 193. V. Ogilby, 274, 288. Johnston's claim, 133, 137. Johnston v. Kershaw, 53. V. Usborne, 176. Johnstone v. Sumner, 18, 19, 21, 22.- Jolly V. Eees, 14, 16. Jones V. Bird, 247. V. Jackson, 279. V. Littledale, 285, 288. V. Peppercome, 181, 186, 190. V. Phipps, 59. Jonmenjoy Ooondoo v. Watson, 54, 56. Jordan v. Norton, 219. Joseph V. Nox, 79. Josephs V. Pehrer, 164, 176. Jourdaine v. Le Eevre, 181. Kahl V. Jahnsen, 261. Kaltenbach v. Lewis, 242. Karnak, The, 74. Eaye v. Brett, 239. Eeay v. Eenwiok, 43, 44, 48, 166. Kell V. Nainby, 223. Kelner v. Baxter, 38, 289. Kemeys v. Proctor, 71. Kennedy v. Gouveia, 284. Kidson v. Dilworth, 286. Kolgour V. Finlyson, 51, 211. Kimber v. Barber, 116, 120. King V. Anderson, 108. V. Eossett, 112. The V. Beeston, 9. V. Longnor, 4, 29. Kinloch v. Craig, 183. V. Sec. of State for India, 85, 271. Kirchner v. Venus, 172, 197. Kirkham v. Peel, 117. Kirkstall Brewery v. Fumess Eail., 262. Kirton v. Braithwaite, 207. Kleinwort v. Oassa Marittima de Genoa, 77. Knatchbull v. HaUett, 146. Knight V. Faith, 78. V. Fitoh, 165. V. Lee, 177. Knox V. Bushell, 14. Kruger v. Wilcox, 199. Kymer v. Suwercropp, 235. Kynaston v. Crouch, 328. Lacey v. Hill, Crawley's claim, 170, 174. V. , Scrimgeour's claim, 174. Ladywell Mini ng Co. v. Brooks, 120. Laidler v. Elliott, 135. Lambert v. Heath, 89, 95, 129. Lands Allotments Co., Ee, 114. Lane v. Cotton, 270. V. Ironmonger, 15. Langan v. G. W. Eail. Co., 59, 61. Langhom v. Allnutt, 264. Langton v. Waite, 229. Law V. Wilkins, 28. Lawrance, Ee, 188. Lawrence v. Fletcher, 193. Leadbitter v. Farrow, 280. Learoyd v. Bracken, 165. Lee V. Bayes andEobinson, 318. V. BuUen, 126, 127, 171, 304. TABLE OF CASES. XXVll Lee V. Everest, 276. V. Munn, 299. V. Walker, 95. Lees V. Nuttall, 106. Le Feuvre v. Lloyd, 128. Le Neve v. Le Neve, 265. Lennard v. Eobinson, 286. Levi V. Abbott, 73. Levy V. Barnard, 200. V. Eicliardson, 209. Lewis V. Nicholson, 276. V. Eamsdale, 56, 216. V. Eead, 42. V. Samuel, 179. Lickorisb., Ex parte, 110. Lidlow V. Wilmot, 20. LUley V. Doubleday, 130. Limpus V. L. G. 0. Co., 257. Lindus v. Bradwell, 227. Linford v. Prov. Horse, &o. Ins. Co., 69, 61, 210. Lissett V. Eeave, 229. Lister v. Stubbs, 141. Litcbfield v. Jones, 143. Litt V. Martindale, 219. Little V. Kingswood OoUy. Co., 124. V. Newton, 82. Llewellyn v. Winckwortb., 221. Lloyd V. Guibert, 76. V. Sigourney, 219. Lockwood V. Abdy, 86. V. Leviok, 158. Logan, Ex parte, 163. London Chartered Bank of Australia v. White, 185. London and Scottish Bank, Ee, 163. London Financial Association v. Kelk, 46. Long V. Miliar, 288. Lord V. HaU, 82. V. Kellett, 30. Loring V, Davis, 53. Lovegrove v. White, 64, 74. Lowe V. G. N. Eail. Co., 62, 250. Lowry v. Ghoildford, 136. Lowther v. Lowther, 104. Lucas V. Dorrein, 187. Lucey v. Ingram, 264. Luokie v. Bushby, 242. Luddy's Trustees v. Peard, 108, 125. Ludgater v. Love, 237, 259. Ludlow, Mayor of, v. Charlton, 32. Lumley v, Nicholson, 155, Lupton V. White, 92. LyeU V. Kennedy, 38, 46, 100. Lynch v. Coel, 72. Lyons v. Martin, 265. Lyster v. Goldwin, 40. Maanss v. Henderson, 192, 193. Macbeath^;. EUis, 319. V. Haldimund, 271. MaoOall v. Australian Meat Co., 320. McOaull V. Strauss, 229. McOlure v. Schemeil, 232, 235. MoCollin V. GUpin, 283. M'Oombie v. Davies, 218. MacDonnell, Ex parte, 329. Mace V. Cadell, 146. McEntire v. Potter, 317, 328. Macfarlanet/. Gianuacopulo, 233. V. Lister, 194, 197. M'Gillivray v. Simpson, 180. MoGowan v. Dyer, 209. McKay's case, 117. McKay v. Commercial Bank of New Brunswick, 257. Mackenzie v. Johnston, 113. V. Pooley, 75. Mackersy v. Eamsays, 144. Maclean v. Dunn, 34, 44. McLean v. Fleming, 76, 80, 261. XXVIU TABLE OF CASES. Maoleod v. Axtola, 151. V. Jones, 109. Maolure, Ex parte, 163. M'Manus v. Oriokett, 255. MoPherson v. Watt, 109. Madden v. Kempster, 184. Maester v. Atkins, 158. Magdalena Steam Navigation Co., Ee, 45. Magee v. Atkinson, 274, 288. Matonyn. East Holyford Mining Co., 222. V. Kekule, 282. Mainprice v. Westley, 276. Mainwaring v. Brandon, 138. V. Leslie, 18. Makepeace v. Eogers, 112. Malcolm V. Scott, 302. MaUough V. Barber, 94, 132. Maltby v. Ckristie, 94. Man V. Shiffner, 193. Mann v. Forrester, 181, 192, 239. ■ V. Warlters, 40. Mansell v. Clements, 155. Manser v. Back, 330. Manson v. Baillie, 151. Mare v. Charles, 279. Margaret Mitchell, The, 78, 330. Maria, The, 254. Markwick v. Hardingham, 10, 327. Marsh v. Jelf, 64, 72, 167. MarshaU v. Cliff, 263. V. Parsons, 149. Marten v. Eoche, 213. Martin v. Gibbon, 172. Martini v. Coles, 69, 121. Martinius v. Helmuth, 202. Mary Ann, The, 198. Mason v. Clifton, 49, 86. V. Hamilton, 202. V. Joseph, 81. Massey's case, 146. Massey v. Banner, 93, 94, 130. & Carey, Ee, 168. V. Davies, 104. Mather, Ex parte, 89, 176, 177. Matilda, The, 75, 79. Matthews v. Haydon, 143. Maund v. Monmouth Canal Co., 247. Maunder v. Conyers, 221. Maw V. Pearson, 85. May V. Skey, 22. Maydew v. Forrester, 132, 138. Mayhew v. Eames, 238. Meek v. Wendt, 295. Megaw V. MoUoy, 71. Melhado v. Porto Alegre, &c. Eail. Co., 38. Mel-nUe v. Doidge, 251. Mercer v. Graves, 195. Merryweather v. Nixan, '312. Mersey Docks Trustees v. Gibbs, 247. Messenger, Ee, 199. Metcalfe v. Clough, 321. V. Shaw, 26, 231. Metropolitan Asylum Board v. Kingham, 40. Bank v. Herron, 140. Meux's Executors' case, 261. Mews V. Carr, 11. Meyer v. Dresser, 80. Middleditch v. Sharland, 112. Middleton v. Welles, 111. Mildred v. Maspons, 242. Miles' Claim, 228. Miles V. Bernard, 129. V. Mcllwraith, 245. Miller v. Beale, 151. Milvan v. Perez, 277. Misa V. Currie, 181, 185, 190. Mitchell, Ee, 143. V. Crassweller, 254, TABLE OF CASES. XXIX Mitcliell V. Hayne, 202. V. Kahl, 295. Mitcheson v. Oliver, 73, Mizen v. Pick, 20. MofEatt V. Bateman, 93, 134. V. Parsons, 207. Mole V. Smith, 72. Molony v. Kernan, 107. Monet, Ex parte, 143. Monro v. De Chemant, 27. Montagu v. Benedict, 15. V. Norwood, 85, 192, 242. Montaignac v. Shitta, 207. Montesquieu v. Sandys, 110. Montreal Ass. Co. v, M'Gilliv- ray, 4, 49. Moody V, Spencer, 193. Moore v, MaxweU, 149. ■ V. Metropolitan Ey. Oo., 249. V. Mourgue, 89, 95, 129, 133. V. TJslier, 203. Morgan v. Blyth, 136. V. Ohetwynd, 15. V. Couchman, 233. V. Bllord, 139. V. Minett, 111. Morris v. Cleasby, 3, 126. V. Salberg, 73, 248. V. "Wilson, 223. Morrison, Ex parte, 196. V. Thompson, 114, 116. Mortimer v. Wright, 28. Mortlock V. BuUer, 30. Mostyn V. Mostyn, 74. Moxon V. Sheppard, 194. Muir V. Fleming, 185, Mullens v. Miller, 58, 237. Mulligan v, M'Donough, 128. Murphy v. Boese, 12. V. O'Shea, 109. Murray v. East India Co., 56. V. Mann, 99. Mutual Aid Permanent Building Society, Ee, 144, 251. Mynn v. Jolifie, 59. National Bolivian Navigation Oo. V. Wilson, 206. Ooffee Palace Oo., Ee, 295. Exchange Oo. of Glas- gow V. Drew, 257. Mercantile Bank v. Eynull, 317. Navulshaw v. Brownrigg, 112, 215. Nayler v. Tearsley, 156. Naylor v. Mangles, 181. Negus V. Forster, 18, 19. Neilaon v. James, 121, 138. Nelson v. Aldridge, 71. V. PoweU, 234. Neptune, The, 197. Nevill V. Fine Arts and General Ins. Oo., 247. New Zealand and Australian Land Oo. v. Watson, 84, 85, 192, 243. Newall V. Tomlinson, 300. Newlands v. Natnl. Employers' Accident Association, 252, Newson v. Thornton, 69. NichoUs V. Wilson, 125, 167. Nichols V. Diamond, 279. Nicholson, Ee, 199. NickaUs v. Merry, 229. Nickolson v. EJnowles, 96, 201. Nickson v. Brohan, 205, 332. Nobel's Explosives Oo. v. Jones, 312. Norfolk V. Worthy, 224. North's case, 143. North Australian Territory Co., Ee, 114, 118. XXX TABLE OF CASES. N. Eastern Eail. v. Jackson, 118. Northumberland Avenue Hotel Co., Ee, 38. Norton v. Pazan, 26. V. Herron, 283. Nurse v. Dumford, 293. Oates V. Hudson, 301. O'Brien v. Lewis, 111, 125. Odessa Tramways Co. ^). Mendel, 268. Ogden V. HaU, 282, 284. Oglesby v. Tglesias, 277. O'Grady v. OardweU, 271. Okell V. Charles, 227, 279. Olding V. Smith, 209, 261. Oliver V. Court, 104, 123. Onward, The, 77. Oom V. Bruce, 304. Ormerod v. Tate, 194, 196. Oshom V. GUlett, 246. O'SuUivan v. Thomas, 331. Ottaway v. Hamilton, 22, 23. Ottleif V. Gilby, 124. Oursell, Ex parte, 146. Overend, Gurney & Co. v, Gibb, 133. Owen V. Cronk, 298. V. Gooch, 274, 288. Owens, Ee, 166. Oxenham v. Smythe, 290. Oxford V. Crow, 44. Padwioki;. Hurst, 114, 203. V. Stanley, 113, 203. Page V. Defries, 249. Paice V. "Walker, 282, 284. Palethorp v. Furnish, 262. Palk V. Porce, 164. Palmer v. Day, 329. V. Goodwin, 166. V. Hutchinson, 270. Panama Telegraph Co. v. India Eubber, &o., Co., 268. Panmure, Ex parte, 295. Panthea, The, 198. Papa V. Westaoott, 52, 90, 131, 244. Papillon V. Brunton, 59. Pappa V. Eose, 96. Pariente v. Lubbock, 57, 88, 89, 129. Park V. Hammond, 132. Parker v. M'Eenna, 103, 114, 115. V, Winlow, 283. Parkins v. Hawkshaw, 263. Parsons v. Thompson, 165. Partington, Ee, Partington v. Allen, 136. V. Hawthorne, 232. Parton v. Crofts, 6, 69. Patent Eloor Cloth Co., Ee, 162. Paterson v. Gandassequi, 224, 231. V. Tash, 69. Patten v. Eea, 254. Pauli, Ex parte, Ee Trye, 147. Pavy's Patent Pelted Pabric Co. , Ee, 183. Paxton V. Courtnay, 172. Payne v. Leoonfield, 71. Pearce v. Eogers, 211. Pearse v. Boulter, 60. V. Green, 92, 141. Pearson's case, 118. Pearson v. Cardon, 202. V. Graham, 317, 328. V. Scott, 52, 68, 70, 229, 245. Pease, Ex parte, 147. Peers v. Sneyd, 59. Pelham v. Hilder, 66. Pemberton, Ex parte, 188. , Ee, 104, 122, 269. PenkivH v. ConneU, 280. Pepperoorne v. Clench, 173. Perkins v. Smith, 313. Perry v. Barnett, 175. V. Hoi, 64. TABLE OF CASES. XXXI Petoh V. Lyon, 263. Peterson v. Ayre, 273. Peto V. Hague, 261. Petty V. Anderson, 223. Phelps V. Prothero, 236. Phillips i;. Phillips, 112. Phillipson v, Hayter, 13, 15, 16, 17. Phosphate Sewage Co. v. Hart- mont, 139. Pickering's claim, Ee, 225. Pickering v. Busk, 220. PickemeU v. Jauherry, 79. Pigott V. Thompson, 307. Pike V. Ongley, 286. Pilot V. Craze, 220. Pinto V. Santos, 85. Pisani v, Gibraltar, 110, 125. Pitman v. Prancis, 135. Pitt V. Zalden, 135. Piatt V. Depree, 158. Pole V. Leask, 10, 12, 50, 57, 332. Polhill V. Walter, 226, 228, 278, 292. PoUock V. Stables, 66, 173. Portalis v. Tetley, 217. Portuguese Consolidated Copper Mines, Ee, 41. Pott V. Bevan, 44. Poulton V. L. & S. W. Eail. Co., 4, 50, 253. Pourier v. Morris, 63, 65. Po-w V. Dayis, 296. Power V. Butcher, 204. V. Power, 92, 114. Powles V. Page, 266. Precious v. Abel, 221. Prescott V. Plynn, 221. Price V. Taylor, 280. Prickett v. Badger, 160. Priestley v. Pemie, 232. Prince v. Clark, 44. Pristwick v. Poley, 73. Pritchard v. Eoberts, 194. Prosperino Palasso, The, 261. Prosser v. Allen, 270. Provincial Ins. Co. of Canada V. Leduo, 304. Pulteney v. Keymer, 180. Purves V, Landell, 135. Quebec and Eichmond Eail. Co. V. Quirni, 81. Queen of Spain v. Parr, 116, 169. Quinn, Ex parte, 199. Eabone v. Williams, 240. Eailton v. Hodgson, 288. Eainbow, The, 199. Ealeigh v. Atkinson, 322, 323. Eamozotti v. Bowring, 240. Eandell v. Trimen, 290, 296. Eanger v. G. W. Eail., 247. Eawlyns v. Vandyke, 19. Eayner, Ex parte, 226. V. Grote, 306. V. Mitchell, 254. V. Pearson, 261. Eead v. Anderson, 64, 177, 321, 324. V. Eann, 152, 159, 161. Eeaddy ^'. Prendergast, 110. Eeece v. Eigby, 136. Eeed v. Moore, 18. V. Norris, 115. Eeeve v. Conyngham, 20, 27. V. Palmer, 94. V. Eeeve, 151. Eeg. V. Cumberland, 33. V. Stephens, 245. Eeid V. Dreaper, 272. V. Teakle, 15. Eeneaux v. Teakle, 14. Eenpor, The, 76. Eeuter v. Electric Telegraph Co. , 44. xxxu TABLE OF CASES. Eeynolds v. Peapes, 2Y3, 282. ■;;. Smith, 172. Eiodes v. Forwood, 161, 319. V. Sugden, 195. Etosina, The, 24*7. Eice V. Chute, 271. V. Shepherd, 23. Eich V. Coe, 221. Eichards vM. Middlesex Water- works Co., 252. Eichardson v. Anderson, 64. V. Cartwright, 60. ■ V. Du Bois, 15. V. WiUiameon, 291, 295. Eimell v. Sampayo, 221. Eimmer v. Knowles, 159. Eingdoye, The, 198. Einquist v. Ditchell, 75. Eisbourg v. Bruckner, 48. Eobbins v. Fennell, 84, 86, 87. Eoberts, Ee, 110. V. Barnard, 160. . V. Ogilby, 10, 98, 99. V. Smith, 151. Eobertson v. Fauntleroy, 302, 321. Eobius V. Bridge, 276. Eobinsonw. Gleadow, 44. V. Mollett, 66, 67, 80, 106, 170. ■;;. Butter, 309. Eobson V. Kemp, 190, 324. Eooher v. Busher, 76. Eoe V. Birkenhead, &c. Eail. Co., 254. — d. Eochester v. Pierce, 34, 40, 46. Eogers, Ex parte, Ee Eogers, 170. V. Boehm, 141. Eolie V. Abbott, 28. Eolland v. Hart, 265. Eosewarne v. Billing, 178. Eoss V, Buxton, 194, 196. Eossiter v. Trafalgar Life Ass. Co., 81. Eotherham Alum and Chemical Co., Ee, 38. EothschUd V. Brookman, 103, 104, 122. Eowe V. London Pianoforte Co., 254. Eowles V. Senior, 314. Eoyal British Bank v. Turquand, 205. Eoyle V. Busby, 276. Eucker v. Lunt, 150. Euddock V. Marsh, 17. Euddy V. Mid G. W. EaU. Co., 262. Eumball v. Metropolitan Bank, 213. Eusby V. Scarlett, 211. Eussell V. Hankey, 93, 129, 131. V. Palmer, 136. Eyan v. Sams, 27, 332. Sadler, Ee, Ex parte Davies, 100, 102, 201. V. Leigh, 223, 307. Sainsbury v. Jones, 297. Salaoia, The, 276. Salford (Mayor of) v. Lever, 139, 269. Salisbury v. Metropolitan Eail. Co., 313. Salomans v. Pender, 105, 167. Samuel v. Eowe, 70. Sanderson v. GrifElth, 37. Sargent v. Morris, 305. Saunderson i;. Glass, 111. Savery v. King, 107, 110, 125. Sawers, Ee, 212. Saxon V. Blake, 273. Scarf V. Jardine, 332. Sohack V. Anthony, 225. TABLE OF CASES. xxxm Sotjott V. Sotjott, 293. Schmaling v. Tomlinson, 84, 85. Sotumack v. Lock, 261. Scott V. Dunbar, 109. V. Ebury, 38. V. Franklin, 181, 185. V. Manchester, 247. V. Suiman, 69, 146. ScrimgeoTir's Claim, 174. Seaber v. Hawkes, 274, 288. Seaton v. Benedict, 14. Sec. of State for India «. Ka- machee Boye Sababa, 35, 47. Segrave v. Kirwan, 125. Segreda, Tbe, 78. Selsey v, Ehoades, 108. Semenza v. Brinsley, 241. Sentance v. Hawley, 172. Seroka v. Eattenberg, 246. Service v. Bain, 176, 178. Seton V. Slade, 72, 320. Seymour v. Bridge, 175. V. Grreenwood, 250. . V. Pychlau, 204. Sballcross v. Oldbam, 117. Stand V. Grant, 299. Sharland v. Mildow, 7, 300, 312. Sbarman v. Brandt, 5, 306. Sbarpe v. Foy, 265. Sbaw V. Arden, 168. V. Port Philip Gold Mining Co., 256. V. Woodcock, 3. Shee V. Clarkson, 6, 99. Shelton V. Livius, 71, 211. V. Springett, 28. Shenstone v. Hilton, 315. Shepard v. Brown, 204. Shepherd v. Mackoul, 23. Sheridan v. New Quay Co., 102. Shiells V. Blackburne, 96, 134. Shipman v. Thompson, 326. Shippey v. Gray, 195. B. Shirreff's Claim, 163. Shoolbred, Ex parte, 255. Short V. Spaokman, 305. Sigourney v. Lloyd, 219. Simmons v. L. J. S. Bank, 213. Simons v. Patchett, 295. Simpson's Claim, 210. Sim.pson v. Lam.b, 160, 163, V. Swan, 176. Sims V. Brittain, 85. Sivewright v. Archibold, 228. Skinner v. Stocks, 223. V. Weguehn, 144. Smallpiece v. Dawes, 223. Smally v. Smally, 6. Smalz V, Avery, 306. Smart v. Sandaxs, 68, 88, 321, 323. Smethurst v. Mitchell, 230, 234. Smith, Ex parte, 146. , Be, Ex parte Bright, 147. V. Barton, 94. V. Birmingham Gas Co., 247. V. Blyth, 136. V. .Cologan, 43, 48. V. Gould, 77. V. Hammond, 202. ■ — ■ — V. Keal, 74, 248, 252. V. Lascelles, 89, 121, 130. V. Levaux, 203. V. Lindo, 170. V. Lyon, 310. V. M'Guire, 1, 2, 206, 218. V. North Met. Tram Co., 250. V. Plummer, 197. V. Price, 138. V. Eeynolds, 172. V. Sleap, 30L V. Sorby, 269. V. Troup, 63, 73, 206. V. Webster, 63, 65, 74. c XXXIV TABLE OF CASES. Smout V. Ilbery, 290, 293. Smytli V. Anderson, 224, 231. Snee v. Prescott, 231, 303. Snelgrove v. Ellringliam Oollry. Co., 161. SneU, Ee, 74. Snook V. Davidson, 181, 193. Snowball, Ex parte, 327, 329. Snowdon v. Davis, 300. Soames v. Spencer, 34, 40, 44. Sooiete Generate de Paris v. Tramways Union Co., 266. SoUy V. Eathbone, 69, 86, 192. Solomon v. Barker, 89, 90, 93, 121, 131. Solomons v. Bank of England, 191, 219. Solway, The, 261. Somerset, Ee, 5. South of Ireland Oollry. Co. v. Waddle, 31, 32, 33. Southampton v. Brown, 225. Southwell V. Bowditoh, 283. Sowerby v. Butcher, 280. Spackman v. Evans, 35, 42, 44. Spain, .Queen of v. Parr, 116, 169. Spears v. Hartley, 181, 199. Spedding v. Novell, 297. Speight V. Gaunt, 7. Spencer v. Topham, 110. Spiller V. Paris Skating Sink Co., 38. Spittle V. Lavender, 48, 281, 282. Spurr V. Cass, 223. Stackpole v. Erie, 165. Stafeord v. Clark, 146. Stagg V. Elliott, 218. Stainton v. Carron Co., 114. Standage v. Creighton, 261. Staveley v. Uzielli, 333- Stearine Co. v. Heintzmann, 139. Stein V. Cope, 64. Stephens v, Badcock, 85. Stevens v. BUler, 2, 186. V. ElwaU, 313. V. HiU, 302. — ■ V. Hinshelwood, 57, 61, 254. ■ V. Midland Counties Bail. Co., 247, 312. V. Woodward, 254. Stevenson v. Mortimer, 224, 311. Stewart v. Aberdein, 53, 245. • V. Fry, 303. Stocken v. Pattrick, 23. Stokes V. Trumper, 168. Stone V. Cartwright, 318. Stonehouse v. Grant, 76. Storey v. Ashton, 254. Strachan, Ee, 146. Strathmore v. Vane, 185. Strauss V. Francis, 63, 72, 205, 218. Stuart V. Haigh, 290. V. Welch, 202. Stubbing 1). Heintz, 211. SulHvan v. Pearson, 196. Summers v. Solomon, 251. Sunderland Marine Ins. Co. v. Kearney, 304. Sutton, Ex parte, 82. V. Gray, 3. V. Spectacle Makers' Co., 32. V. Tatham, 63, 66, 172. Sweet V. Pym, 200. Sweeting v. Pearce, 52, 53, 68, 229, 245. Swift V. Jewesbury, 8, 260, 312. Swinfen v. Swinfen, 72, 90. Swire V. Francis, 144, 251, 258. Sydney and Wigpool Iron Ore Co. V. Bird, 117. Sykes v. Giles, 52, 71, 122, 244. V. Howarth, 246. Symons v. Blake, 196. TABLE OP CASES. XXXV Taff Vale Eail. Co. v. Giles, 247. Tagart v. Marcus, 308. Tanner v. Christian, 283. • ■ — V. European Bank, 202. Taplin v. Barrett, 155. V. Florence, 323. Tardre-w v. HoweU, 197. Tasker v. Shepherd, 162, 326. Tate V. Hyslop, 267. Taylor, Ee, 199. V. Blacklo-w, 124, 132. V. Brewer, 151. V. Green, 257. V. Lendey, 331. V. Plumer, 147. V. Eobinson, 182. V. Salmon, 106. V. Sheppard, 233. V. Stray, 173. Teed v. Beere, 114. Tenant v. Elliott, 98. Tetley v. Shand, 122, 204. Thacker v. Hardy, 169, 176, 177, 321. V. Moates, 76. Thames, The, 248. Thickhroom, Ee, 147. Thomas v. Bishop, 278. V. Eialayson, 293. Thompson v. Bell, 250. V. Cartwright, 265. ; V. Davenport, 231. ■y.Gardiaer,6,70,228. : — V. Havelook, 122. V. Meade, 116. Thome v. Heard, 256. Thornton v. Meux, 230. Thynne v. St. Maur, 5. Tickel V. Short, 138. Tigress, The, 200. Todd V. Emly, 220. -. — V. Eeid, 53, 245. V. Eobiason, 205, 221. Tomson v. Judge, 111. Topham v. Braddiok, 121. Toplis V. Grane, 169, 176. Toppin V. Healey, 166, 167. Tottenham v. Green, 207. Touche V. Metropolitan Ware- housiag Co., 38. Toulmin v. Millar, 153, 166. To-wnend v. Drakeford, 229. Townsend v. Inglis, 208. Townson v. Wilson, 298. Tribe v. Taylor, 154. Trickett v. Tomlinson, 206. Trimble v. BjU, 331. Trueman v. Loder, 221, 332. TruetteU v. Barandon, 219. Trye, Ee, 147. TurnbuU v. Garden, 116. Turner v. Burkiashaw, 92, 142. V. Goldsmith, 161. V. Hockey, 315. V. Eooks, 23. V. Thomas, 242. Turpia v. Bilton, 88, 94, 132. TuireE v. Collet, 272. Twycross v. Dreyfus, 270. Twynam v. Porter, 194. Tyars v. Alsop, 111. Tyrrell v. Bank of London, 104, 142. UdeU V. Atherton, 257. Underwood v. Lewis, 125, 167. V. NichoUs, 52, 245. United Service Co., Ee, 133, 137. Unwin i). "Wolseley, 271. Van Omeron v. Dowick, 79. Van Sandauv. Browne, 125, 167. Van ToU v. Chapman, 135. Varden v. Parker, 126. Venning v. Bray, 330. Victor, The, 78. Viney v. Chaplin, 74. c2 XXXVl TABLE OF CASES. Wadsworth, Ee, 195. V. Marshall, 125. Waitliinaii v. Wakefield, 46. Wake V. Harrop, 286. Waldo V. Martin, 165. Walker v. Bircli, 181, 185. V. a. W. Bail. Co., 60. • V. Eostron, 302, 324. V. S. B. Bail. Co., 254. Wallace v. Woodgate, 199. Waller v. Drakeford, 205. V. Holmes, 86, 193. Wallis, Ee, 110. Walsh V. WMtoomb, 321. Walsham v. Stainton, 140. Walshe v. Provan, 184. Ward V. G. 0. Co., 256. V. Sharp, 107, 125. •(/. Stuart, 149. Waring v. Favenck, 231. Warlow V. Harrison, 123, 170, 275, 330. Warner v. M'Kay, 243. Warr v. Jones, 297. Wart V. Wolley, 134. Warwick v. Noakes, 129. V. Slade, 178, 331. Waters v. Shaftesbury, 107, 204. Watson V. King, 322. — V. Murrell, 272. ■ • V. Swann, 37, 38. V. Threlkeld, 27. Watteau v. Fenwick, 60, 208, 210. Waud, Ee, 226. Weary v. Alderson, 73, 83. Wehbi). Smith, 301. Webster v. Be Tastet, 134. V. Seekamp, 76. Weeks v. Propert, 292, 294. Weir V. Barnett, 255, 258, 318. Wellfield V. Adamson, 76. Welstead v. Levy, 310. Wenham, Ex parte, 72, 73. Wentworth v. Lloyd, 110, West London Commercial Bank V. Kitson, 291, 293. Westacott v. Bevan, 196. Western Bank of Scotland v. Addie, 236, 247, 255, 257. Westwood V. BeU, 181, 192. Whaley Bridge Calico Co. v. Green, 117. Whatman v. Pearson, 248. Whitcomb v. Minchin., 104. White, Ex parte, Ee NeTiU, 3, V. Baxter, 152. V. Bayley, 100. ■ V. Benekendorfi, 204. • V. Chapman, 166. V. Ouyler, 91. V. Lincoln, 167. V. Proctor, 6, 11, 71, 83. Whitecombe v. Jacob, 146. Whitehead v. Greetham, 96, 135. V. Lord, 125, 167, 326. V. Taylor, 36, 41, 48. V. Tuckett, 220. Whitehouse v. Abberly, 261. Whiteley v. Pepper, 248. Whiteman v. Hawkins, 138. Whitfield V. Brand, 146, 147. V. Despencer, 270. Whitley, Ee, 31. Wickham v. Wickham, 3. Wilde V. Gibson, 258. Wilkins V. Carmichael, 197. Wilkinson v. Alston, 152. • V. Coyerdale, 134. V. Martin, 153, 156. Wilks V. Back, 91. Williams V.Evans, 52, 71 ,90, 244. V. Everett, 302. V. Innes, 263. V. Gibbs, 136. V. Mason, 8, 260. V. Milhngton, 180, 275, 305. TABLE OF CASES. XXX Vll ■WiUiams v. North CHna Ass. Co., 35, 40. V. Potts, 101. V. Preston, 255. ■ V. Stevens, 115. ■ V. Trye, 112. Williamson v. Babour, 105, US- V. Barton, 274, 288. ■ — V. Page, 77. WiUis V. Martin, 255. Wilmot V. Smith, 207. Wilson V. Anderton, 313. V. Barthrop, 278. V. Brett, 93, 96, 135. V. Ford, 21, 22, 23. V. Glossop, 25. V. Hart, 223. V. Millar, 79. V. Poulter, 45, 48. V. Short, 105, 122. ■ V. Tunman, 34, 35, 37, 46. V. Turner, 263. V. West Hartlepool Ky. Co., 44, 222. WUtshire v. Sims, 51, 63, 70, 71, 90, 210. Wing V. Harvey, 208. Withington v. Herring, 53. Witt, Ee, 182. Wolfe V. Findlay, 141. WoM V. Horncastle, 35, 48. Wood, Ee, Ex parte Boden, 146. Wenham, 72, 73. V. Baxter, 275. V. Eowclifie, 217. Woodin V. Burford, 58. Woodley v. Coventry, 101. Woolle V. Home, 275. Woollen V. Wright, 37. WorraU v. Harford, 189. Wray v. Kemp, 83. Wren v. Kirton, 130. Wright V. Bigg, 205. V. Castle, 74. V. Dannah, 5. V. Proud, 111. Wyatt V. Hertford, 235. Wylde V. Eadford, 187. WyUie v. PoUen, 266. Xenos V. Wiokham, 65, 70. Yarborough v. Bank of England, 247. Yates V. Farebrother, 123. V. Freckleton, 63, 73. V. Hoppe, 322, 323. Young V. Cole, 63, 67, 174. V. Grote, 179. V. Schuler, 285. V. White, 239. V. Wright, 263. Zinck V. Walker, 147. Zulueta V. Vinent, 101, Zmlchenbart v. Alexander, 94, 122. A DIGEST THE LAW OF AGENCY. CHAPTER I. Preliminary, Article 1. DEFINITIONS. An agent is a person having express or implied autho- rity to represent or act on behalf of another person, who is called his principal. A general agent is an agent who has authority — (a) to act for his principal in all matters, or in all matters concerning a particular trade or busi- ness, or of a particular nature ; or (b) to do some act in the ordinary course of his trade, profession or business as an agent, on behalf of his principal; e.g.^ where a solicitor, factor or broker is employed, as such {a). A special agent is an agent who has only authority to do some particular act, or represent his principal in (o) See Brady v. ToM, 1861, 9 0. B. N. S. 592 ; 30 L. J. 0. P. 223; .7 Jur. N. S. 827 ; 4 L. T. 212 ; 9 W. E. 483 ; Smith v. M'Ouire, 1858, 3 H. & N. 554 ; 27 L. J. Ex. 465 ; 1 P. & F. 199. The distinction between general and special agents is only of importance in determining the nature and extent of the authority conferred. See Articles 35 to 38. B. B ^ 2 PRELIMINARY. some particular transaction, such act or transaction not being in the ordinary course of his trade, profes- sion, or business as an agent (a). A factor is a mercantile agent whose ordinary course of business is to sell or dispose of goods, of which he is intrusted with the possession or control by his prin- cipal (b). A broker is an agent whose ordinary course of busi- ness is to negotiate and make contracts for the sale and purchase of goods and other property, of which he is not intrusted with the possession or control (b). An auctioneer is an agent whose ordinary course of business is to sell by public auction goods or other property, of which he may or may not be intrusted with the possession or control. A mercantile agent, within the meaning and for the purposes of the Factors Act, 1889 (c), is a mercantile agent having, in the customary course of his business as such agent, authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise money on the security of goods (d). Article 2. DEL CREDERE AGENCY. A del credere agent is a mercantile agent who, in consideration of a higher rate of remuneration than is (a) See note {a), ante, p. 1. (6) See Baring v. Corrie, 1818, 2 B. & A. 137 ; 20 E. E. 383 ; Stevens v. Biller, 1883, 25 Oh. Div. 31 ; 53 L. J. Oh. 249; 50 L. T. 36; 32 W. E. 419, 0. A. (c) 52 & 53 Vict. o. 45. (The Act is set out in the Appendix.) [d) Ibid. s. 1. The expression goods includes wares and merchandise. DEL CEEDEEE AGENCY. 3 usually paid, guarantees that persons with whom he enters into contracts on behalf of the principal shall duly perform those contracts (e). Such an agent is said to act under a del credere commission. In effect, a del credere agent is a surety for the due perform- ance by the persons with whom he deals, of contracts made by him with them on his principal's behalf (e). But it has been held that an agreement by an agent to sell on a del credere commission is not a promise to answer for the debt, default, or miscarriage of another person, within the meaning of the 4th section of the Statute of Frauds (/), and it is not neces- sary that such an agreement should be in writing (/) . A del credere agency may be inferred from a course of conduct between the parties {g). Distinction between del credere agent and vendee. — Where goods were consigned by A. to B. for the purpose of sale, and it was agreed that B. should have the right to sell at such prices and on such terms as he thought fit, and that B. should pay an agreed price for the goods sold by him within a fixed period after the sale thereof, it was held that the relation between A. and B. was that of vendor and purchaser, not that of principal and agent {h) . But the mere fact that a person employed to sell goods is allowed by way of remuneration all the profit obtained by him over and above an agreed price, and that he guarantees the payment of that agreed price to the person employing him, does not prevent the relation between them (e) See Morris v. Olmsleij, 1816, 4 M. & S. 566 ; 14 E. E. 531 ; Eornly V. Lacy, 1817, 6 M. & S. 166; Grove y. Dubois, 1 T. E. 112. (/) 29 Car. II. c. 3; Ooutourier v. Hastie, 1852, 8 Ex. 40; 22 L. J. Ex. 97 ; SuUon v. Gray, (1894) 1 Q. B. 285 ; 9 Eep. 106. But see Wickham v. Wickham, 1855, 2 Eay & J. 487. {g) Shaw V. Woodcock, 1827, 7 B. & 0. 73 ; 9 D. & E. 889. (h) Exp. White, re Nevill, 1870, L. E. 6 Cli. 397 ; 40 L. J. Bk. 73; 24 L. T. 45 ; 19 W. E. 488. b2 4 PRELIMINAEY. being that of principal and agent, if it appears from the circum- stances as a whole that their intention was to establish a del credere agency («). Article 3. CAPACITY TO ACT AS PRINCIPAL. Capacity to contract or do any other act by means of an agent is co-extensive with the capacity of the principal to himself make the contract or do the act that the agent is authorized to make or do. Provided that, where capacity to do a particular act exists only by virtue of a special custom, the act cannot be done by means of an agent unless the custom warrants its being so done(y). Thus, an infant or lunatic is bound by a contract made by his agent with his authority, where the circumstances are such that he would have been bound if he had himself made the con- tract (A). On the other hand, a corporation or joint stock company has no capacity to appoint an agent for any purpose, or to do any act, beyond the scope of their charter or memorandum of association {I). (?;) Exp. Bright, re Smith, 1879, 10 Oh. Div. 566 ; 48 L. J. Bk. 81 ; 39 L. T. 649; 27 W. E. 385, 0. A. (y ) Gomhe's case, 9 Co. E. 75, wiere it was held that an infant had no power to appoint an attorney to make a feoffment on his behalf under the custom of gavelkind, though by virtue of the custom he had power to convey by feoffment himself. (&) See King v. Longnor, 1833, 4 B. & Ad. 647 ; 1 N. & M. 676 ; Brew T. Nunn, 1879, 4 Q,. B. D. 661 ; 48 L. J. Q. B. 591 ; 40 L. T. 671 ; 27 W. E. 810, 0. A. {I) Montreal Assurance Co. v. M'Qillivray, 1859, 13 Moo. P. 0. 0. 87; 8 W. E. 165, P. 0. ; Bateman v. Mid Wales Rail. Co., 1866, L. E. 1 C. P. 499 ; 35 L. J. 0. P. 205 ; 1 H. & E. 508 ; 14 W. E. 672 ; 12 Jur. N. S. 453 ; Poulton v. L. & 8. W. Mail. Co., 1867, L. E. 2 Q. B. 534 ; 36 L. J. Q. B. 294 ; 17 L. T. 11 ; 8 B. & S. 616. CAPACITY OF PAETIES. 5 Formerly, a married woman had no power to appoint an attorney, but the 40th section of the Conveyancing Act, 1881 (m), provides that a married woman, whether an infant or not, shall have power, as if she were unmarried and of full age, by deed to appoint an attorney on her behalf for the purpose of executing any deed or doing any other act which she might herself execute or do. Article 4. CAPACITY TO ACT AS AGENT. All persons of sound mind, including infants and other persons with limited or no capacity to contract on their own behalf, are competent to act and contract as agents. Provided that — (a) no married woman is competent to act as the next friend or guardian ad litem of an infant plaintiff or defendant {n) ; (b) no party to a contract is competent to sign the contract as the agent of another party thereto so as to satisfy the provisions, of the 4th section of the Statute of Frauds, or (pro- bably) of the 4th section of the Sale of Goods Act, 1893 (o); (c) the personal liability of the agent on the contract of agency, and upon contracts entered into by him with third persons, is (to) 44 & 45 Vict. c. 41. \n) Be Somerset, Thynne v. St. Maur, 1887, 34 Oh. Div. 465 ; 56 L. J. Ch. 733 ; 56 L. T. 145. (o) 29 Car. II. o. 3 ; 56 & 57 Vict. c. 71. See Sharman v. Brandt, 1871, L. E. 6 Q. B. 720; 40 L. J. Q. B. 312; 19 W. E. 936; Wright v. Dannah, 1809, 2 Camp. 203; 11 E. E. 693; Farebrother v. Simmons, 1822, 5 B. & A. 333, 6 PRELIMINARY. dependent on his capacity to contract on his own behalf (p). An act done by an agent, as such, is deemed to be the act of the principal who authorized it, the agent being looked upon merely as an instrument : hence the rule that a person having no capacity to contract on his own behalf is competent to con- tract on behalf of, and so as to bind, his principal. So, where an agent, who was unable to read, was authorized to enter into and sign a contract on his principal's behalf, it was held that the principal could not avoid a written contract made by the agent, on the ground of his inability to read it (q). The agent of one party to a contract is not incompetent to act as the agent of the other party thereto, where he can do so con- sistently with his duty to his principal. Thus, a broker frequently acts for both the buyer and the seller of goods, and an insurance broker |^r the assured as well as the underwriters (r). The signature of a broker employed by both buyer and seller, or of an auctioneer, to a contract of sale, operates as the signature of both parties within the meaning of the 4th or 17th section of the Statute of Frauds, or of the 4th section of the Sale of Groods Act, 1893 (s). And it has been held that a clerk or factor of one of the parties to a contract is competent to act as the agent of the other party for the same purpose (f) . [p) See Smally v. Smally, 1700, 1 Eq. Ab. 6. {q) Foreman v. O. W. Rail. Co., 1878, 38 L. T. 851. \r) See Shee v. Clarhson, 1810, 12 East, 507 ; 11 E. E. 473. (s) Parton y. Crofts, 1864, 16 C. B. N. S. 11 ; 33 L. J. 0. P. 189; 10 L. T. 34 ; 12 W. E. 553 ; Thompson v. Gardiner, 1876, 1 0. P. D. 777 ; Emmerson v. Heelis, 1809, 2 Taunt. 38; 11 E. E. 520; White v. Procter, 1811, 4 Taunt. 209; 13 E. E. 580; Hinde v. Whitehouse, 1806, 7 Bast, 658 ; 3 Smitli, 528 ; 8 E. E. 676. (t) Durrell v. Evam, 1862, 1 H. & 0. 174 ; 31 L. J. Ex. 337 ; 9 Jur. N. S. 104 ; 7 L. T. 97 ; 10 W. E. 665 ; Bird v. Boulter, 1833, 1 N. & M. 313; 4B. & Ad. 443. CAPACITY OF PARTIES. 7 Article 5. FOE WHAT PURPOSES AN AGENT MAY BE APPOINTED. An agent may be appointed for the purpose of exe- cuting any deed, or making any contract, or doing any other act on behalf of the principal, which he might himself execute, make, or do, except where the act is required by statute to be done by the principal in person, or is an act in pursuance of a power or authority conferred, or duty imposed, upon the prin- cipal personally, the exercise or performance of which involves personal discretion or skill (m). Provided, that the relationship of principal and agent cannot impose upon the agent any obligation to commit a wrongful act, or discharge him from any liability in respect thereof (v). Discretionary powers. — ^A person who is given a power or authority of a discretionary nature must, as a general rule, exercise it iu person. Thus, where the consent of a particular person was required for the execution of a power of appoint- ment, it was held that he had no power to appoint an agent to consent thereto in his place, the authority being one involving personal discretion {w). The rules as to delegation of authority by agents are founded upon the same principle («). (m) As to the employment of agents by trustees, see Trustee Act, 1893, s. 17. And see Speight v. Gaunt, 1883, 9 App. Gas. 1 ; 53 L. J. Oh. 419 ; 50 L. T. 330; 32 W. E. 435, H. L. (u) See GuUen v. Thompson, 1862, 4 Macq. H. L. Gas. 424, 432, H. L. ; Eeugh V. Abergavenny, 1874, 23 W. E. 40 ; Sharland v. Mildow, 1846, 5 Hare, 469; 15 L. J. (N. S.) Ok 434; 10 Jur. 771. {w) EawUm v. Kemp, 1803, 3 East, 410. \x) See Article 39. 8 PRELIMINARY. Statutes requiring personal performance. — Lord Tenterden's Act (y) requires that certain documents, in order to have legal effect, shall be signed by certain parties. It has been held that, to satisfy the provisions of that statute, the document must be signed by the party himself, and that the signature of an agent is insufficient, even if expressly ratified by the principal (s). Authoi-ity to commit a tort. — The relationship of principal and agent is recognized in tort for the purpose of charging the principal, but not for the purpose of discharging the agent. Where an agent commits a tort by the authority of his principal, the rule is that they are both personally responsible, and the agent has no right of indemnity from the principal (a). Article 6. CO-AGENTS. An authority given to two or more persons is, in the absence of a provision that they may execute it severally, presumed to be given to them jointly (b). Where a joint authority is of a private nature, all the co-agents must join in its execution, in order to bind the principal, unless it is provided that a specified number shall form a quorum {b) ; but where the autho- rity is of a public nature, it is sufficient, as a general (2/) 9 Geo. IV. c. 14, s. 6. (z) Williams v. Mason, 1873, 28 L. T. 232; 21 W. 'E. 386; 8wift v. Jeweshury, 1874, L. E. 9 Q,. B. 301 ; 43 L. J. Q. B. 56 ; 30 L. T. 31 ; 22 W. E. 319; Hyde v. Johnson, 1836, 3 Scott, 289; 2 Bing. N. C. 776; 2 Hodges, 94. The Mercantile Law Amendment Act, 1856 (19 & 20 Vict, c. 97), s. 13, renders tlie decision in this last case unimportant. (a) See Articles 97, 124, and 125. (6) Brown v. Andrew, 1849, 18 L. J. Q. B. 153; 13 Jur. 938; Illustra- tions 1 and 3. CO-AGENTS. rule, if it is executed by a majority of the persons in whom it is vested (c). Where an authority is given to two or more persons severally, any one or more of them may execute it without the concurrence of the other or others (t^). Ilhtstrations, 1. A provisional committee appointed eight specified persons to act as a managing committee on their behalf. Sis of such persons gave an order within the scope of the authority con- ferred. Held, that the provisional committee were not bound by the order (e). 2. It was provided by statute (9 Greo. I. c. 7), that the church- wardens and overseers of a parish, with the major part of the parishioners, should have authority to enter into contracts for iproviding for the poor. Held, that the contract of a majority of the churchwardens and overseers bound the others (/). 3. Two persons filled the office of clerk to the trustees of a road. Held, that they must contract jointly in order to bind the trustees (g). 4. A power of attorney was given to fifteen persons, " jointly or severally to execute such policies as they or any of them should jointly or severally think proper." Held, that a policy executed by four of such persons was binding on the prin- cipal (h). (c) Illustration 2. And see Orindley v. Barker, 1798, 1 B. & P. 229 ; 4 E. E. 787 ; Gortis v. Kent Waterworks Co., 1827, 7 B. & 0. 314. (^d) Illustration 4. (e) See note (6), ante, p. 8. (/) The King v. Beeston, 1789, 3 T. E. 592; 1 E. E. 777. (g) Bell v. Nixan, 1832, 9 Biiig. 393 ; 2 M. & Scott, 534. (h) Guthrie v. Armstrong, 1822, 5 B. & A. 628. 10 PKELIMINARY. Article 7. HOW THE RELATION OF AGENCY ARISES. The relation of agency exists, and can only exist, by virtue of the express or implied assent of both principal and agent (A). The assent of the principal is implied whenever another person occupies such a position that, according to the ordinary usages of mankind, he would be under- stood to have the principal's authority to act on his behalf (^'). The assent of the agent is implied whenever he acts or assumes to act on behalf of another person, and after having so acted or assumed to act he is not per- mitted, in an action by such person, to deny that the agency in fact existed, or that he acted on such per- son's behalf (y). The relationship of principal and agent may arise — (a) by express appointment by the principal (k) ; (b) by implication of law from the situation of the parties (l) ; or (A) See Markwick v. JSardingliam, 1880, 15 Ch.. Div. 349 ; Pole v. Leash, 1862, 33 L. J. Oil. 155 ; 8 L. T. 645 ; 9 Jur. N. S. 829. There is one exception to this rule, founded on the duty of a hushand to provide his wife -with necessaries suitable to her station. In certain cases the wife is said to be an agent of necessity, and has authority to pledge his credit, eyen if he expressly forbids her to do so. See Article 14 (Chapter II.). {i) See the judgment in Pole v. Leash, 1862, 33 L. J. Ch. 155 ; 8 L. T. 645 ; 9 Jur. N. S. 829. (y) See Eolerts v. Ogilhy, 1821, 9 Price, 269. {h) See Chapter III. {I) Illustration 1. As to the implied agency of married women, &c., see Chapter II. As to the implied agency of partners, see the Partnership EXPRESS AND IMPLIED AGENCY. 11 (c) by subsequent ratification by the principal of acts done on bis behalf (w). Where a person assumes to act on behalf of another, the assent of the person on whose behalf the act is done will not be implied from his mere silence or acquiescence, unless the situation of the parties is such as to raise a presumption that the act is done by his authority (w). Illustrations. 1. A. buys property at a sale by auction. Both the auctioneer and his clerk are implied agents of A. for the purpose of sign- ing the contract of sale on his behalf, so as to satisfy the requirements of the 4th section of the Statute of Frauds (o), or of the 4th section of the Sale of Goods Act, 1893 {p), it being understood that they, in the ordinary course of business, have authority to sign the contract on behalf of the highest bidder [q). Subsequently to the sale, B. buys certain unsold lots by private contract with the auctioneer. The auctioneer is not an implied agent of B. for the purpose of signing the contract on his behalf (r). 2. A. called at B.'s office and verbally agreed to be responsible for the price of certain goods to be supplied by B. to a third person. B.'s clerk, in A.'s presence, made and signed a memo- Act, 1890 (53 & 54 Vict. c. 39), ss. 5 to 16. Every partner is a genera,l agent of his firm and of his copartners for the purposes of the partnership business. (m) See Chapter IV. (m) Illustrations 2 and 3. (o) 29 Oar. II. c. 3. Ip) 56 & 57 Vict. c. 71. \q) Emmerson v. Eeelis, 1809, 2 Taunt. 38 ; 11 E. E. 520 ; White v. Procter, 1811, 4 Taunt. 209; 13 E. E. 580; Bird v. Boulter, 1833, 1 N. «& M. 313 ; 4 B. & Ad. 443. {r) Mews v. Garr, 1856, 1 H. & N. 484. 12 PEELIMINAEY, randum of the agreement. Held, that the clerk had no implied authority to sign as A.'s agent, and that there was not a sufficient memorandum in writing of the agreement to satisfy the 4th section of the Statute of Frauds (•?) . 3. A.'s traveller sold goods to B., and in B.'s presence wrote out two memoranda of the sale and put B.'s name upon them. One of the memoranda he handed to B., the other he retained. Held, that he had no implied authority to sign a memorandum of the contract as B.'s agent, and that the memorandum was not sufficient to satisfy the 17th section of the Statute of Frauds as against B. (^). Article 8. DOCTRINE OF HOLDING OUT. Where a person, by words or conduct, represents or permits it to be represented that another person is his agent, he will not be permitted to deny the agency with respect to any third persons dealing, on the faith of any such representation, with the person so held out as an agent, even if no agency existed in fact (m). (s) Dixon V. Broomfleld, 1814, 2 Chit. 205. See also Qraham v. Musson, 1839, 7 Scott, 769 ; 3 Bing. N. 0. 603 ; 3 M. & G. 368. (t) Murphy v. Boese, 1875, L. E. 10 Ex. 126 ; 44 L. J. Ex. 40 ; 32 L. T. 122 ; 23 W. E. 474. (m) See illustrations to Article 85. This is an iastance of tte principle of estoppel in pais : Pole t. Leask, 1862, 33 L. J. Oh. 155 ; 8 L. T. 645 ; 9 Jur. N. S. 829. ( 13 ) CHAPTER II. Implied agency of maeried women, etc. The implied authority of a wife to pledge tlie credit of her husband arises partly from her position as manager of his household, partly from his duty to keep her provided with necessaries suitable to her station in life, or to the style in which he permits her to live («). Formerly, where a wife carried on a separate trade with the permission of her husband, she had implied authority to pledge his credit for goods supplied for the purposes of such trade. But, since the passing of the Married Women's Property Act, 1882 (b), the presumption is that contracts made by a wife for the purposes of a separate trade or business carried on by her, are made on her own behalf in respect of her separate property, and her husband is not liable on any such contract, unless it is proved that credit was given to him, and that either he expressly authorized her to pledge his credit, or held her out as having such authority to the person with whom the contract was made. A wife's implied authority to pledge her husband's credit is now restricted to necessaries, either for herself or for the household, and it is not increased by the insanity or lunacy of the husband (c). The existence and nature of the authority depend upon whether she lives with her (a) See PhiUipson v. Hayter, 1870, L. E. 6 0. P. 38; 40 L. J. 0. P. 14; 23 L. T. 556; 19 W. E. 130. As to what are considered necessaries, see Morgan v. Ghetwynd, 1865, 4 F. & F. 451 ; Jewesbury v. Newhold, 1857, 26 L. J. Ex. 247 ; Hunt v. De Blaquiere, 1829, 5 Bing. 550. (6) 45 & 46 Vict. c. 75. (c) Richardson v. Du JBois, 1869, L. E. 5 Q. B. 51 ; 39 L. J. Q. B. 69 ; 21 L. T. 635; 18 W. E. 62 ; 10 B. & S. 830. 14 IMPLIED AGENCY hustand or not; and if not, upon what is the cause of the separation, and whether it is by mutual consent or otherwise. Article 9. PEESUMPTION OF AUTHOEITY FROM COHABITATION. Where a husband and wife live together, the mere fact of cohabitation raises a presumption that she has authority to pledge his credit for necessaries suitable to the style in which they live((/); but there is no presumption of authority to borrow money in his name, even for the purpose of purchasing necessaries for the price of which he would have been liable if they had been bought on his credit (e). The presumption of authority from the mere fact of cohabitation may be rebutted by proof — (a) that she had not in fact authority to pledge his credit (/) ; or (b) that she was already adequately provided with necessaries, or that he had made her a suffi- cient allowance therefor (y). Authority is confined to suitable necessaries. — The presumption of authority from cohabitation is confined to necessaries suitable (d) Harrison v. Grady, 1865, 12 Jur. N. S. 140 ; 13 L. T. 369 ; 14 W. R. 139 ; Jolly v. Bees, 1864, 5 0. B. N. S. 628 ; 33 L. J. 0. P. 177. (e) Knox v. Bushell, 1857, 3 0. B. N. 8. 334. (/) Jolly V. Eees, 1864, 5 0. B. N. S. 628 ; 33 L. J. 0. P. 177 ; Dehenham T. Mellon, 1880, 6 App. Oas. 24; 50 L. J. Q. B. 155; 43 L. T. 673; 29 W. E. 141, H. L. {g) Beaton v. Benedict, 1828, 5 Bing. 28 ; 2 M. & P. 66 ; Bebenham v. Mellon, supra; Reneaux v. Teahle, 1863, 8 Ex. 680; 22 L. J. Ex. 241; 17 Jut. 351. OF MAEEIED WOMEN, ETC. 15 to the style in which the hushand chooses to live (h). If the ■wife orders goods that are not suitable to his style of living {i), or if the orders are of an extravagant nature (A), or are exces- sive in extent (k), there is no presumption of authority, and the hushand is not liable, unless he is proved to have expressly authorized her, or held her out as having authority, to purchase the goods, or to have ratified the transactions. The question ■whether the goods are suitable necessaries is a question of fact for the jury, and the burden of proof lies on the person supply- ing them (/), except in the ease of such things as wearing apparel, "delivered at the joint residence (m), which are pre- sumed to be necessaries until the contrary is sho-wn {m). Effect of forhidding her to pledge his credit. — Even in the case of suitable necessaries, the presumption of authority may be rebutted by proof that she had no authority in fact. The question whether the wife acted as her husband's agent, and with his authority, in any particular transaction, is a question for the jury to decide, upon the evidence given (w), and the proper question to leave to them (if the goods were bought on his credit) is whether they were bought with his authority, not merely whether they were suitable necessaries (o). If they find that she did not intend to pledge his credit, but contracted (/i) PUlUpson V. Hayter, 1870, L. E. 6 0. P. 38; 40 L. J. 0. P. 14; 23 L. T. 556 ; 19 W. E. 130. {i) Harrison v. Orady, 1865, 12 Jur. N. S. 140; 13 L. T. 369; 14 W. E. 139 ; Montagu y. Benedict, 1825, 6 D. & E. 532 ; 3 B. & C. 631 ; AtUns v. Garwood, 1837, 7 0. & P. 756. (k) Dehenham Y. Mellon, supra, note (/); Lane v. Ironmonger, 1844, 13 M. & W. 368 ; 14 L. J. Ex. 35, Ex. Oh. ; Freestone v. Butcher, 1840, 9 0. & P. 643. [l) Phillipson v. Hayter, 1870, L. E. 6 0. P. 38 ; 40 L. J. 0. P. 14 ; 23 L. T. 656 ; 19 W. E. 130. (m) Jeweslury v. Newlold, 1857, 26 L. J. Ex. 247 ; Clifford v. Laton, 1827, 3 0. & P. 16 ; M. & M. 101. (m) Lane v. Ironmonger, 1844, 13 M. & W. 368 ; 14 L. J. Ex. 36, Ex. Ch. ; Freestone v. Butcher, 1840, 9 0. & P. 643. (o) Beid V. TeaUe, 1853, 13 C. B. 627 ; 22 L. J. 0. P. 161 ; 17 Jur. 841. 16 IMPLIED AGENCY in respect of her separate estate (p), or that, though she intended to pledge his credit, he had in fact forbidden her to do so (q), he is not liable, even if the person who supplied the goods had no notice that her authority had been revoked (q), unless the husband had invested her with an appearance of authority, or had done some act leading the plaintiff to suppose that she had his authority to purchase the goods (q). But if a husband, by words or conduct, holds his wife out as having authority, he is liable to any person dealing with her on the faith of such hold- ing out, notwithstanding a revocation of her authority, and though he had expressly forbidden her to pledge his credit, unless such person had actual notice of the revocation or pro- hibition (>•). Article 10. IMPLIED AUTHORITY AS HOUSEKEEPEE. Where a wife, who is living with her husband, has the management of the household, she is his general agent in all household matters, and has implied autho- rity to pledge his credit for all such things as are neces- sary in the ordinary course of such management (s). Every act done by a wife within the scope of her implied authority as manager of his household binds the husband, unless she has in fact no authority to do the particular act, and the person dealing with her {p) Freestone v. Butcher, 1840, 9 0. & P. 643. (q) Jolly Y. Bees, 1864, 5 0. B. N. S. 628 ; 33 L. J. 0. P. 177, Ex. Oli. ; Debenham, v. Mellon, 1880, 6 App. Oas. 24 ; 50 L. J. Q. B. 155 ; 43 L. T. 673 ; 29 W. E. 141, H. L. (r) See Jetley v. Hill, 1884, 1 0. & E. 239; Filmer v. Lynn, 1835, 4 N. & M. 559 ; 1 H. & W. 59 ; Debenham v. Mellon, supra. And see Article 10. (s) Emmett v. Norton, 1838, 8 0. & P. 506 ; Phillipson v. Hayter, 1870, L. E. 6 C. P. 38; 40 L. J. 0. P. 14 ; 23 L. T. 556 ; 19 W. E. 130. OF MAEKIED WOMEN, ETC. ] 7 has, at the time of the transaction, notice that she is exceeding her actual authority (t). Illustrations. 1. The wife of a labourer ordered provisions for tlie house. The husband was held liahle for the price, though he had sup- plied his wife with sufficient money to keep house, the person supplying the goods having had no notice of that fact (m). 2. A husband, during a temporary absence from home, made his wife a sufficient allowance for herself and the family. A tradesman supplied her with goods on credit, knowing that the husband had made her the allowance. Held, that the husband was not liable for the price of the goods («?). Where a wife occupies the position of her husband's house- keeper, he is deemed to hold her out to the world as having the usual authority of a housekeeper, and is bound by all acts within the scope of such apparent authority, unless the persons dealing with her know that her authority is expressly limited, and that she is acting in excess thereof («). Her implied authority as housekeeper is, however, confined to necessaries connected with the domestic department and suitable to the style in which the husband lives, and it does not extend to articles of luxury (y). The onus of proof that goods supplied on her orders are suitable necessaries lies on the person supplying them (y). Article 11. primI facie, no authority where separated. Where a wife is separated from her husband, she has, prima facie, no implied authority to pledge his (<) Illustrations 1 and 2. (m) Ruddock V. Marsh, 1857, 1 H. & N. 601. \v) Holt V. Brien, 1821, 4 B. & A. 252. {x) See note {a), ante, p. 16. {y) PUlUpaon v. Hayter, 1870, L. E. 6 0. P. 38; 40 L. J. 0. P. 14; 23L. T. 556; 19 W. E. 130. B. C 18 IMPLIED AGENCy credit, and the burden lies upon any person seeking to charge the husband on her contracts of proving that the circumstances of the separation are such as to raise a presumption of authority (0). Where a tradesman gives credit to a wife living apart from lier husband, he ought to make inquiries as to the cause of the separation ; and if he does not do so, he trusts her at his peril, and is not entitled to charge the husband, unless he proves that she is justified in living apart («). Where the husband was living abroad, and it was sought to charge him for necessaries supplied to his wife in England, it was held that the plaintifE must prove that she was not sufficiently provided for, and that it was necessary for her to pledge her husband's credit (J). Article 12. WHERE SEPARATED BY MUTUAL CONSENT. Where husband and wife are separated by mutual consent, and she has agreed to accept a specified allowance, she has no implied authority to pledge his credit so long as that allowance is regularly paid, whether it is adequate or not(c); but if the agreed allowance be not regularly paid, then she has implied (z) Ediuards v. Towels, 1843, 6 Soott N. E. 641 ; 5 M. & G. 624 ; 12 L. J. 0. P. 239 ; Johnstone v. Sumner, 1858, 3 H. & N. 261 ; 27 L. J. Ex. 341 ; 4 Jut. N. S. 462. (a) Mainwaring v. Leslie, 1826, 2 C. & P. 507 ; M. & M. 18 ; Beed v. Moore, 1832, 5 0. & P. 200; Clifford r. Zaton, 1827, 3 C. & P. 16; M. & M. 101. (b) Bird v. Jones, 1828, 3 M. & E. 121. See also Dennys v. Sargeant, 1834, 6 0. & P. 419. (c) Eastland v. Burchell, 1878, 3 Q. B. D. 432 ; 47 L. J. Q,. B. 500 ; 38 L. T. 563; 27 W. E. 290; Negus y. Forster, 1882, 46L. T. 675; 30W.E. 671, 0. A. OF MARRIED WOMEN, ETC. 19 authority to pledge his credit for necessaries suitable to her station in life (d). Where husband and wife are separated by mutual consent, and there has been no agreement by her to accept a specified allowance, she has implied authority to pledge his credit for necessaries suitable to her station in life, unless she has adequate separate means, or is provided with an adequate allowance, either by her husband or some other person (e). Where the wife is permitted to have the custody of the children, necessaries for them are deemed to be necessaries for her (/). Effect of the husband's misconduct, where separated by mutual consent. — In Biffin v. Bignell, 1862 (gr), the Exchequer Chamber laid down that, where a husband consents to a separation on condition that his wife shall accept a certain allowance, she has no implied authority to pledge his credit so long as the allow- ance is duly paid, even i£ it be inadequate, unless he has been guilty of such misconduct as to justify her in living apart without his consent ; because, by not fulfilling the conditions on which his consent was given, she is, in effect, Kving apart without his consent. But in Negus v. Forster, 1882 (A), where there had been an agreement for a separation with an allowance of 100/. a year, and the parties had res\imed cohabitation, and then again separated, and the wife had, subsequently, obtained {d) Beale v. Aralin, 1877, 36 L. T. 249. (e) Johnstone v. Simmer, 1858, 3 H. & N. 261 ; 27 L. J. Ex. 341 ; 4 Jur. N. S. 462 ; Ea/rvey v. Norton, 1840, 4 Jur. 42. (/) Rawlyns v. Vandyhe, 1800, 3 Esp. 250. Ig) 7 H. & N. 877; 31 L. J. Ex. 189; 8 Jur. N. S. 647 ; 6 L. T. 248; 10 W. E. 322, Ex. Oh. {h) 46 L. T. 675; 30 W. E. 671, 0, A. c2 20 IMPLIED AGENCY a judicial separation with alimony 180^. a year, on the ground of the husband's misconduct prior to the second separation, it was held by the Court of Appeal that, the 100/. a year having been regularly paid, the original separation deed was a good defence to an action for the price of necessaries supplied to the wife after the second separation but before the decree for judicial separation and alimony. And it would, therefore, seem that misconduct of the husband, combined with inadequacy of the wife's income, does not give her implied authority to pledge his credit, where the amount of such income has been expressly agreed upon, and is duly paid. The true principle seems to be that where, on a separation by mutual consent, the wife ex- pressly agrees to accept a certain allowance, she thereby estops herself from afterwards disputing the sufficiency thereof. It is quite clear, at all events, that where the wife consents to accept a certain income, the inadequacy thereof raises no presumption of authority to pledge her husband's credit (i) . Where amount of allowance not fixed. — Where there has been no agreement as to the amount of her allowance, the liability of a husband, who consents to his wife living apart, for the price of necessaries supplied to her on his credit, depends upon whether she is adequately provided for or not. If he pays her an adequate allowance, she has no implied authority to pledge his credit (k), and he is not liable for the price of goods supplied to her, even if the person supplying them has no notice of the allowance {l). So, he is not liable for goods supplied to her, if he can -show that she has adequate separate means (w), or that she receives adequate maiutenance from some source, whether (i) Eastland v. Burchell, 18Y8, 3 Q. B. D. 432; 47 L. J. Q. B. 500; 38 L. T. 563; 27 "W. E. 290; Hyde v. Price, 1797, 3 Ves. 445. (k) MizertY. Pick, 1838, 3 M. & W. 481; Holders. Cope, 1846, 2 0. & K. 437 ; Emmett v. Norton, 1838, 8 0. & P. 506 ; Hodghinson v. Fletcher, 1814, 4 Camp. 70; 15 E. E. 725. {I) Beeve v. Gonyngham, 1847, 2 0. & K. 444; Mizm y. Pick, 1838, 3 M. &"W. 481. (m) LidMo v. Wilmot, 1817, 2 Stark. 86 ; 19 E. E. 684. OP MAERIED WOMEN, ETC. 21 he supplies it or not (n). The question of adequacy is a question of fact for the jury. If they find that the allowance made by him is inadequate, and that she is not otherwise sufficiently provided for according to her station in life, she has implied authority to pledge his credit for suitable necessaries, though she may have acquiesced in the amount of the allowance (o) . Article 13. WHERE LIVING APART WITHOUT THE HUSBAND's CONSENT. Where a wife leaves her husband without his con- sent, or lives apart from him contrary to his wishes, she has no implied authority to pledge his credit, unless he has been guilty of such misconduct as to justify her in so leaving him or living apart (jt?). Article 14. WHERE LIVING APART IN CONSEQUENCE OF HUSBAND'S MISCONDUCT, ETC. Where a wife has been deserted by her husband (q), or has been turned away by him without adequate cause (r), or has left him in consequence of misconduct on his part justifying her in so leaving him (s), and is (m) GUfford v. Laton, 1827, 2 C. & P. 15 ; M. & M. 101 ; Dixon v. Ev^rell, 1838, 8 0. & P. 717. (o) Hodghinson v. Fletcher, 1814, 4 Camp. 70 ; 15 E. E. 725. {p) HindUy v. Weatmeath, 1827, 6 B. & 0. 200; 9 D. & E. 351 ; John- stone V. Sumner, 1858, 3 H. & N. 261 ; 27 L. J. Ex. 341 ; 4 Jur. N. S. 462. (q) Wilson v. Ford, 1868, L. E. 3 Ex. 63; 37 L. J. Ex. 60; 17 L. T. 605; 16 W. E. 482. (r) Harrison v. Grady, 1865, 13 Jur. N. S. 140; 13 L. T. 369; 14 W. E. 139 ; Forristall y. Lawson, Connelly v. Lawson, 1876, 34 L. T. 903. («) Houlisiony. Smyth, 1825, 3 Bing. 127; 10 Moore, 482; 2 C. & P. 22. 22 IMPLIED AGENCY living apart from Hm, it is an irrebuttable presumption of law that she has authority to pledge his credit — (a) for necessaries suitable to her station in life, unless she is adequately provided for ; (b) for costs reasonably incurred in taking pro- ceedings against him (t) ; and (c) where she has been given the custody of the children by reason of his misconduct, for their maintenance and education, even if they are living with her contrary to his wishes (u). Where a husband has deserted his wife, he is bound in equity to repay money lent to her for, and expended in, the purchase of necessaries (x). The authority referred to in this article is said to he an authority of necessity (y), and the husband is bound to pay for goods ordered by the wife in the exercise thereof, even if he gave the person supplying them express notice not to trust her (s). The fact that he makes her an allowance is no defence, if it is found by the jury to be inadequate (a). Costs of legal proceedings. — Where a wife is turned away by her husband, or is compelled to leave him in consequence of his {t) OUaway v. Hamilton, 1878, 3 0. P. D. 393 ; 47 L. J. 0. P. 725 ; 38 L. T. 925 ; 26 W. E. 783, 0. A. ; Wilson r. Ford, supra, note (q). (u) Bazeley v. Forder, 1868, L. E. 3 Q. B. 559 ; 37 L. J. Q. B. 237 ; 18 L. T. 756 ; 9 B. & S. 599. (x) Jenner v. Morris, 1861, 30 L. J. Oh. 361 ; 7 Jur. N. S. 375; 3 L. T. 871 ; 9 W. E. 391 ; Deare v. Soutten, 1869, L. E. 9 Eq. 151 ; 21 L. T. 523 ; 18 W. E. 203 : overruling May v. Skey, 1849, 16 Sim. 588 ; 18 L. J. Oi. 306; 13 Jur. 694. (y) See Johnstone v. Sumner, 1858, 3 H. & N. 261 ; 27 L. J. Ex. 341 ; 4 Jur. N. S. 462. (z). Harris v. Morris, 1801, 4 Esp. 41; 2 E. E. 786; and see Ai'tiole 15, Illustration 3. (a) Baher v. Sampson, 1863, 14 0. B. N. S. 383. OF MARRIED WOMEN, ETC. 23 violence, and it is necessary to take proceedings to oblige him to keep the peace, he is liable for the costs of such proceedings, as between solicitor and client, even if he allows her an adequate separate maintenance (6). So, a wife has implied authority to pledge her husband's credit for costs, as between solicitor and client, reasonably iuoun-ed in the institution and prosecution of proceedings for divorce (c) . And it has been held that he is liable for costs incurred by her in filing a petition for judicial separation, even if it be not proceeded with, provided there are reasonable grounds therefor (d). But in such oases the solicitor ought, before commencing proceedings, to make proper investi- gation and inquiry into aU the circumstances; and he is not entitled to recover the costs from the husband in the absence of success unless he can show that there was at least great proba- bility of success (e). In Wilson v. Ford {/), where a husband had deserted his wife without cause, and left her without means of subsistence, it was held that she had implied authority to pledge his credit for the costs — (a) of a suit for restitution of conjugal rights ; (b) of taking counsel's opinion as to- whether a verbal promise of a settlement made by the husband at the time of the marriage could be enforced in equity ; and (c) of consultations with her solicitor as to the best means of dealing with tradesmen who had supplied her with necessaries and were pressing her for money, and also with the landlord of a house in which she and her husband had Hved, who was threatening to distrain for rent, upon furniture which had been hers before marriage. (J) Shepherd v. Machoul, 1813, 3 Camp. 326 ; 14 E. E. 752 ; Turner v. Roohs, 1839, 2 P. & D. 294; 10 A. & E. 47. (c) Ottaway v. Hamilton, 1878, 3 0. P. D. 393 ; 47 L. J. 0. P. 725 ; 38 L. T. 925 ; 26 W. E. 783, 0. A. ; Stocken v. Pattrick, 1873, 39 L. T. 507. {d) Bice V. Shepherd, 1862, 12 0. B. N. S. 332 ; 6 L. T. 432 ; Brown v. Ackroyd, 1856, 5 El. & Bl. 819 ; 25 L. J. Q. B. 193; 2 Jux. N. S. 283. (e) Baylis v. Wathins, 1864, 33 L. J. Oh. 300; 10 Jur. N. S. 114; 9 L. T. 741 ; 12 W. E. 324. (/) 1868, L. E. 3 Ex. 63 ; 37 L. J. Ex. 60 ; 17 L. T. 605 ; 16 W. E. 482. 24 IMPLIED AGENCY W/iat degree of misconduct justifies a wife in leaving her hus- band. — It was decided in Sorwood v. Heffer (1811) {g) that no amount of ill-treatment, short of personal violence, or such as to induce a reasonable fear of personal violence, would entitle a wife to pledge her husband's credit after leaving his house with- out his consent. But in Souliston v. Smyth (1825) {h) it was laid down that such conduct as briuging a prostitute into the house, or threatening to confine the wife in a madhouse, was equivalent to turning her away. It is clear that such cruelty as renders it no longer safe for the wife to remain in the house («), or such violent conduct as causes a reasonable apprehension of personal violence {k), justifies her in leaving her husband, and living apart from him. Article 15. EFFECT OF ADULTERY BY THE WIFE. A husband is under no obligation to support his wife, and she has no implied authority to pledge his credit, whether they live together or not, and even if he has himself been guilty of misconduct, after she has committed adultery, unless he connived at or has condoned the offence (^). Provided, that if, being aware of her adultery, he continues to hold her out as his agent, he is liable to the same extent as if her au- thority had continued, with respect to any persons {g) 3 Taunt. 421. {h) 3 Bing. 127 ; 10 Moore, 482; 2 0. & P. 22. (i) Emery v. Emery, 1827, 1 T. & J. 501 ; Baker v. Sampson, 1863, 14 C. B. N. S. 383. {h) Brown v. Achroyd, 1856, 5 El. & Bl. 819; 25 L. J. Q. B. 193 ; 2 Jur. N. S. 283. [l) Illustrations 1 and 2. OF MAERIED WOMEN, ETC. 25 dealing with her on the faith of such holding out, with- out notice of the determination of her authority (m). Where a husband connives at or has condoned his wife's adultery, her implied authority is not affected thereby (n). Illustrations. 1. A hustand committed adultery ■with a woman whom lie brought to the house where he lived with his wife, and, after treating his wife with great cruelty, turned her out of doors. Then the wife committed adultery, after which she offered to return home, but her husband refused to receiYe her. Held, that the husband was not liable for necessaries supplied to her after her adultery (o). 2. A husband turns his wife away without cause. She com- mits adultery. He is not liable for goods supplied to her after the adultery, even if the person supplying them has no notice of the adultery (p), and the goods are absolute necessaries (q). 3. A husband connives at his wife's adultery, and then turns her away. She has implied authority to pledge his credit for necessaries, and he is liable for the price thereof, even if he gave express notice to the person supplying them not to trust her (r). The same rule applies if a husband condones his wife's adultery, and subsequently turns her away (s). 4. A husband, knowing of his wife's adultery, permitted her to continue living in his house with the children. Held, that (m) Illustration 4. (w) Elustratioii 3. (o) Govier v. Hancock, 1796, 6 T. E. 603; 3 E. E. 271. (^) EmmeU v. Norton, 1838, 8 C. & P. 506 ; Afkyns v. Pearce, 1857, 2 0. B. N. S. 763 ; 26 L. J. 0. P. 252 ; 3 Jur. N. S. 1180. (2) Bardie v. Orant, 1838, 8 C. & P. 512 ; Cooper v. Lloyd, 1859, 6 C. B. N. S. 519. (r) WiUon v. Olossop, 1888, 20 Q. B. D. 364 ; 57 L. J. Q. B. 161 ; 58 L. T. 707 ; 36 W. E. 296, 0. A. (s) Ha/rria v. Morris, 1801, 4 Esp. 41 ; 2 E. E. 786. 26 IMPLIED AGENCY he was liable for the price of necessaries supplied to her hy a tradesman who was ignorant of the eircumstances (t). Article 16. IMPLIED AUTHOEITY TO ACKNOWLEDGE DEBTS FOR NECESSAEIES. Whenever a wife has implied authority to pledge her husband's credit, she has also implied authority to acknowledge on his behalf a debt incurred in pur- suance thereof, and such an acknowledgment, if it is in writing and signed by her, interrupts the operation. of the Statute of Limitations (u). Article 17. HUSBAND NOT LIABLE UNLESS CEEDIT GIVEN TO HIM. No husband is liable for the price of necessaries supplied to his wife, whether they live together or not, where exclusive credit is given to the wife {x), or to some third person, by the person supplying them. Thus, where a wife, separated from her husband with his consent, lived with her uncle, and ordered necessaries from a tradesman who gave credit to the uncle, and whose former bills for goods supplied to her had been paid by the uncle, it was held that the husband was not liable, though he did not make his (<) Norton v. Fazan, 1798, 1 B. & P. 226; 4 E. E. 785. (a) Oregory v. Parher, 1808, 1 Oamp. 394 ; 10 E. E. 712 ; 9 Geo. IV. c. 14, s. 6 ; 19 & 20 Yiot. c. 97, s. 13. But see Ingram v. Little, 1883, 1 0. & B. 186. (cc) Bently v. Oriffin, 1814, 5 Taunt. 356; Metcalfe y. Shaw, 1811, 3 Oamp. 22 ; 13 E. E. 740. OF MARRIED WOMEN, ETC. 27 wife any allowance {y). But the mere fact that the goods are booked in the wife's name is not conclusive evidence of an in- tention to give credit to her alone. The jury must be satisfied that, at the time the contract was made, the person supplying the goods intended to give credit to her to the exclusion of her husband (s). Article 18. AUTHORITY IMPLIED FROM COHABITATION AS MAN AND WIFE. Where a man lives with a woman as his wife, she has implied authority to pledge his credit, during the continuance of the cohabitation, to the same extent as if she were legally married to him. Where there is no cohabitation, the mere fact that a man permits a woman to assume his name is not sufficient to raise a presumption of authority to pledge his credit (a). But if they live together as man and wife, he is liable for the price of necessaries supplied to her on his credit, even if the tradesman knew when he supplied the goods that they were not married (b). This" implied authority determines on a separation, and the mere fact that he had represented her to be his wife does not render him liable for the price of necessaries supplied to her after the separation (c). If, however, he held her out to third persons as his agent, they are entitled to deal with her as such, and to charge him accordingly, imtil they receive notice that the con- nection has determined {d). (y) Harvey v. Norton, 1840, 4 Jur. 42. See also Beeve y. ConyngJiam, 1847, 2 0. & K. 444. (z) Jeweabury v. Newbold, 1857, 26 L. J. Ex. 247. (a) Oomme v. Franklin, 1859, 1 P. & F. 465. (6) Watson v. Threlkeld, 1794, 2 Bsp. 637 ; 5 E. E. 760 ; Byan v. Bams, 1848, 12 a B. 460; 17 L. J. Q. B. 271 ; 12 Jur. 745. (c) Monro v. Be Chemant, 1815, 4 Camp. 215. {d) Ryan v. Sams, supra, note (i). 28 IMPLIED AGENCY OF MARRIED WOMEN, ETC. Article 19. CHILD NO IMPLIED AUTHORITY TO PLEDGE PARENT'S CREDIT. Children have no implied authority, as such, to pledge the credit of their parents, even for the supply of necessaries. In the absence of proof of an express or implied contract on Ms part, a father is no more liable than a stranger for debts incurred by his children without his authority ; and the obliga- tion to maintain his children affords no legal inference of a promise to pay for necessaries supplied to them (e). To render a parent liable for goods supplied to his child, the person sup- plying them must give some evidence of his authority or assent (/). Where a minor has ordered suitable necessaries, and some evidence of authority has been given, it is a question for the jury whether the circumstances of the case are such as to justify them in inferring that they were ordered with the father's authority (g). In such cases, slight evidence of autho- rity is sufficient to establish a case for the jury (g). (e) Shelton v. Springett, 1851, 11 C. B. 452 ; Mortimer v. Wright, 1840, 6 M. & W. 482 ; 4 Jur. 465; Granz v. Gill, 1796, 2 Esp. 471; 5 E. E. 746. (/) Ralfe v. AbhoU, 1833, 6 0. & P. 286. Ig) Law V. Wilkins, 1837, 1 N. & P. 697 ; 6 A. & E. 718 ; Baker v. Keen, 1819, 2 Stark. 501^ " ( 29 ) CHAPTER III. Appointment of agents. An agent may be appointed by a power of attorney, a formal instrument under seal ; by writing ; or merely by word of mouth. Article 20. AUTHOEITY TO EXECUTE A DEED. Where an agent is authorized to execute a deed on behalf of his principal, his authority must be given by an instrument under seal (a), except where the deed is executed in the name and presence of the principal and the authority is conferred at the time of its execution, in which case it may be given by word of mouth (b). So, a partner cannot bind his firm or the other partners by deed, unless expressly authorized under seal to do so (c), except where the deed is executed by the authority and in the presence of all the partners {d). Article 21. Except as provided in Article 22, an agent may be appointed either by deed, by writing, or merely by (a) Berkeley v. Hardy, 1826, 8 D. & E. 102 ; 5 B. & 0. 355. (&) The King v. Longnor, 1833, 4 B. & Ad. 647; 1 N. & M. 576. (c) Harrison v. Jackson, 1797, 7 T. E. 207; 5 E. E. 422. \d) HockiuY, Cooke, 1791, 4 T. E. 313. 30 APPOINTMENT word of mouth, for any purpose except the execution of a deed. Provided that, where an agent is verbally authorized to purchase land, and purchases and takes a convey- ance of the land in his own name, he becomes a trustee for the principal within the meaning of the 7th section of the Statute of Frauds (e), which requires that all trusts of land shall be proved by writing; and the statute may be pleaded by the agent as a defence to an action by the principal to compel him to perform the trust and transfer the land (/). An agent may be appointed by word of mouth, even where he is authorized to enter into a contract required by statute to be in writing, as in the case of contracts within the 4th section of the Statute of Frauds, or the 4th section of the Sale of Goods Act, 1893 (g). The first three sections of the Statute of Frauds expressly provided that agents appointed for the purposes of those sections should be authorized in writing, but the 8 & 9 Vict. c. 106, now requires a deed for those purposes, and it is therefore necessary that the agents should be appointed under seal. And those were the only purposes for which a written, as distinct from a verbal, appointment was necessary. So, it has been held that authority to subscribe the name of the principal (e) 29 Oar, II. c. 3. (/) James v. Smith, (1891) 1 Oh. Div. 384; 65 L. T. 544. Tlie statute must be specially pleaded, in order that it may be made available by way of defence. It is not necessary to plead the particular section, but where an agent pleaded the wrong section, he was not permitted to amend. Ibid. (g) MortlocJcY. Bulhr, 1804, 10 Ves. 311; IB,. E. 417; Coles y. Trecothick, 1804, 9 Ves. 234, 249a ; 1 Smith, 233 ; 7 E. E. 167 ; Deverall v. Boltmi, 1812, 18 Ves. 509 ; Graham v. Musson, 1839, 7 Scott, 769, 778 ; 5 Bing. N. 0. 603; Heard v. Pilley, 1869, L. E. 4 Oh. 548; 38 L. J. Oh. 718; 17 W. E. 750; 21 L. T. 68. And see Lord v. Kellett, 1833, 2 Myl. & K. l'. OF AGENTS. 31 to the memorandum of association of a joint stock company may be given verbally (A). Agent to purchase land. — ^A contract for the purchase of land made by an agent, as such, vests the equitable estate in the principal, and the contract may be enforced by the principal as against both the vendor and the agent, even if the agent was ap- pointed orally, provided that the legal estate has not been conveyed to him (*■). But if the land has been conveyed to the agent, so as to vest the legal estate in him, he is a trustee for the principal, and may take advantage of the 7th section of the Statute of Frauds, if the trust is not evidenced by •writing (A). This doctrine was criticised in Heard v. Pilley (1869) («), but was recognised as good law in James v. Smith (1891) {I). The statute provides that all declarations or creations of trusts or confidences of any lands, tenements, or hereditaments (including leaseholds for years), shall be proved by some writing, signed by the party who is by law enabled to declare such trust, or else they shall be whoUy void {m). Article 22. APPOINTMENT BY COKPOEATIONS. The appointment of an agent by a corporation must be under their common seal. Provided, that this rule does not apply to trading corporations {n) or joint (A) Re Whitley, ex p. Oallan, 1886, 32 Oh. Div. 337; 55 L. J. Gh. 540; 54 L. T. 912 ; 34 W. E. 505. (i) Heard v. Pilley, 1869, L. E. 4 Ch. 548 ; 38 L. J. Oh. 718 ; 17 W. E. 750; 21 L. T. 68; Cavey. Mackenzie, 1877, 46 L. J. Oh. 564; 37 L. T. 218. {h) Bartlett v. Pickersgill, 1785; 1 Cox, 15 ; 4 Bast, 577, n". ; 1 E. E. 1. ll) (1891) 1 Oh. 384; 65 L. T. 644. (m) 29 Oar. H. c. 3, s. 7. (ra) South of Ireland Colliery Co. y. Waddle, 1869, L. E. 4 0. P. 617; 38 L. J. 0. P. 338 : affirming L. E. 3 0. P. 463, Ex. Oh. ; Henderson v. 32 APPOINTMENT stock companies, nor in any case where its application would cause very great inconvenience, or tend to defeat the very purpose for which the corporation was created (o). A trading corporation may appoint an agent by parol for any purpose within the scope of the objects of incorporation, except the execution of a deed (/»). Thus, it has been held that the engagement, hy a board of guardians, of a clerk to the master of a workhouse, must be under seal, to bind the board of guardians (q) . So, the appoint- ment of a solicitor to a municipal corporation must be under seal, except where there is a local custom to the contrary (r). Where an attorney was retained by a municipal corporation to oppose a bill in parliament, it was held that, in the absence of a retainer under seal, he was not entitled to recover his costs (s). Exceptions. — The common law rule was that all contracts by corporations must be under their common seal. But it is now settled that corporations may bind themselves by parol, when- ever the acts in question are so frequently recurring, or so insignificant, that the afi&xing of the seal would be a great inconvenience (o). And that trading corporations are bound by their parol contracts, without reference to their frequency, or to the magnitude of the subject matter thereof, whenever the Australian Steam Navigation Go., 1855, 5 El. & Bl. 409 ; 24 L. J. Q. B. 322 ; 1 Jur. N. S. 830. (o) Church v. Imperial Gaslight Go., 1838, 6 A. & E. 846; 3 N. & P. 35 ; Mayor of Ludlow v. Gharlton, 6 M. & W. 815, 822. (p) See note (ra), ante, p. 31. (q) Austin v. Guardians of Bethnal Green, 1874, L. R. 9 0. P. 9] ; 43 L. J. 0. P. 100 ; 29 L. T. 807 ; 22 W. E. 406. See also Gope v. Thames Haven Dock, &c. Go., 1849, 3 Ex. 841 ; 18 L. J. Ex. 345 ; 6 Eailw. Cas. 83. (r) Arnold v. Mayor of Poole, 1842, 5 Scott, N. E. 741 ; 4 M. & G. 860; 12 L. J. C. P. 97. (s) Sutton v. Spectacle Makers Go., 1864, 10 L. T. 411 ; 12 W. E. 742. OF AGENTS. 33 contracts are within the scope of the objects of incorpora- tion (t). Molding out. — Where a corporation hold out or permit a person to appear as their agent, they are hound by his acts as such, ■with respect to persons dealing with him in good faith and without notice of any informality, though he has not been formally appointed. Thus, where an attorney, who had not been appointed under seal, appeared in an action for a corpora- tion to the knowledge of the directors, it was held that the corporation were bound by his acts as their attorney (w). (<) South of Ireland Colliery Co. v. Waddle, supra, note {n) ; Henderson V. Australian Steam Navigation Co., supra, note (m). See also Beg. v. Cumberland, 184S, 5 Eailw. Gas. 332 ; 6 D. & L. 431 ; 17 L. J. Q. B. 102; 12 Jut. 1025. (m) Faviell v. Eastern Counties Rail. Co., 1848, 2 Ex. 344 ; 6 D. & L. 54 ; 17 L. J. Ex. 297. And see Article 85, Illustrations 7 and 8. B. 34 DOCTEINE OF CHAPTER IV. The DOCTEINE OF EATIFICATION. Article 23. EATIFICATION EQUIVALENT TO PEEVIOUS AUTHOEITY. Wheee an act is done in the name or on behalf of a person without his authority by another person as- suming to act as his agent, the person in whose name or on whose behalf the act is done may, by ratifying the act, make it as valid and effectual, subject to the provisions of this chapter, as if it had been originally done by his authority, whether the person doing the act was an agent exceeding his authority, or was a person having no authority to act for him at all (a). Illustrations. 1. A. enters into and signs a written contract on behalf of B., without authority. B. subsequently ratifies the contract. A. is deemed to have been B.'s duly authorized agent within the meaning of the 4th and 17th sections of the Statute of Frauds, and of the 4th section of the Sale of Groods Act, 1893 (b). (a) See Wilson v. Tunman, 1 843, 6 M. & G. 236 ; 6 Scott, N. E. 894 ; Bird V. Brown, 1830, 4 Ex. TSB; 19 L. J. Ex. 155 ; 14 Jur. 132; Roe, d. Rochester v. Pierce, 1809, 2 Camp. 96; 11 E. R. 673. (J) Maclean T. Dunn, 1828, 1 M. & P. 761 ; 4 Bing. 722 ; Soames v. Spencer, 1822, 1 D. & E. 32. RATIFICATION. 35 2. An agent, without authority, insures goods on hehalf of his principal. The principal ratifies the policy. The policy is as vaM as if the agent had heen expressly authorized to insure the goods (c). 3. A government agent does an act in excess of his authority. The government ratifies the act. The act is deemed to be an act of state (d). Article 24. WHAT ACTS MAY BE RATIFIED. Every act, whether lawful or unlawful (e), which is capable of being done by means of an agent, except an act which in its inception is void(/), is capable of ratification by the person in whose name or on whose behalf it is done. Illustrations. 1. A., on B.'s behalf, but without his authority, purchases from 0. a chattel which C. has no right to sell, under such cir- cumstances that the purchase of the chattel is a conversion. B. ratifies the purchase. B. is guilty of conversion (g). 2. A., an agent of a corporation, assaults B. on their behalf. (c) Wolff V. Horncastle, 1198, 1. B. & P. 316; 4 E. E. 808 ; Williams v. North China Asa. Co., 1876, 1 0. P. D. 757 ; 35 L. T. 884, 0. A. (d) Buron v. Denman, 1848, 2 Ex. 167 ; Secretary of State for India v. Kamachee Boye Sahaba, 1859, 7 Moo. Ind. App. 476 ; 13 Moo. P. C. 22, P.O. (e) Illustrations 1, 2, and 5 ; Hull v. Pichersgill, 1819, 1 Brod. & B. 282 ; 3 Moore, 612 ; 21 E. E. 598 ; Wilson v. Tunman, 1843, 6 M. & G-. 236; 6 8cott, N. E. 894. (/) See illustrations 6 and 7 ; Spackman v. Evans, 1868, L. E. 3 H. L. 171 , 244, H. L. ; Banque Jacques Oartier v. Bangue JD'Epargne, 1887, 13 App. Gas. Ill ; 57 L. J. P. C. 42, P. 0. (g) Hilberry v. HaUon, 1864, 2 H. & 0. 822 ; 33 L. J. Ex. 190 ; 10 L. T. 39. d2 36 DOCTRINE OF The corporation ratify the assault. The corporation is civilly liable to B. for the assault [h). 3. A shipmaster unnecessarily, and without the authority of the owners, sells his ship. The owners may ratify the sale (»), which then will heeome valid and binding («). 4. A., a solicitor, at the request of B., the holder of a bUl of exchange, sues on the bill in the name of 0. without C.'s knowledge or authority. C. ratifies the action. A. is entitled to recover the amount of the bill {k). 6. A. distrains B.'s goods in the name of B.'s landlord, but without the landlord's authority. The landlord may ratify the distraint, and it is then deemed to have been done by his authority {I). 6. A. signs an instrument in B.'s name without his authority and with intent to defraud. B. cannot ratify the signature, because it is a forgery and is void in its inception {m). 7. The directors of a company enter into a contract which is not within the scope of the memorandum of association. The contract cannot be ratified by the company, even with the assent of every shareholder, because it is ultra vires, and therefore void [n) . But a contract which is intra vires entered into on a company's behalf by the directors, without authority, may be ratified by the company (o) . Qi) Eastern Counties Rail. Co. v. Broom, 1851, 6 Ex. 314 ; 6 Eailw. Oas. 743 ; 20 L. J. Ex. 196 ; 15 Jur. 297, Ex. Ch. (J) The Australia, 1859, 13 Moo. P. C. 0. 132 ; Swabey, 486. \k) Ancona v. Marks, 1862, 7 H. & N. 686 ; 31 L. J. Ex. 163 ; 8 Jur. N. S. 516; 5L. T. 753. (l) Wliitehead v. Taylor, 1839, 10 A. & E. 210 ; 2 P. & D. 367. (m) Brooh v. Hook, 1871, L. E. 6 Ex. 89 ; 40 L. J. Ex. 50 ; 24 L. T. 34 ; 19 W. E. 508. («) Aslibury Carriage Co. v. Riche, 1875, L. E. 7 H. L. 653 ; 44 L. J. Ex. 185 ; 33 L. T. 450, H. L. (o) Irvine v. Union Bank of Australia, 1877, 2 App. Cas. 366; 46 L. J. P. 0. 87 ; 37 L. T. 176, P. 0. RATIFICATION. 37 Article 25. WHO MAY EATIFY. The only person who has power to effectively ratify an act is the person in whose name or on whose behalf the act was done {p), and it is necessary that he should have been in existence {q) and capable of being ascer- tained (r) at the time that the act was done, but it is not necessary that he should be known, either person- ally or by name, to the person doing the act (s). Illustrations. 1. A sheriff, acting under a valid writ of execution, as an agent of the Court, wrongfully seizes goods which are not the property of the debtor. The execution creditor cannot, by becoming a party to an interpleader issue or otherwise, ratify the act of the sheriff so as to render himself liable for the wrongful seizure, because the act was not done by the sheriff on his behalf, but in performance of a public duty (t). 2. A. enters into an agreement professedly on behalf of B.'s wife and 0. B. cannot ratify the agreement so as to give him a right to sue upon it jointly with his wife and C. (u). 3. The promoters of a prospective company enter into a con- tract on behalf of the company before its incorporation. The company cannot ratify the contract, because it was not in exist- (p) Illustrations 1 and 2. (q) Uluetration 3. (r) Watson v. Swann, 1862, 11 C. B. N. S. 756; 31 L. J. U. P. 210. (s) ninstration 4. (t) Wilson v. Tunman, 1843, 6 M. & G. 236 ; 6 Scott, N. E. 894; Woollen . Wright, 1862, 1 H. & 0. 554 ; 31 L. J. Ex. 513 ; 7 L. T. 73, Ex. Oh. [u) Sanderson v. Griffith, 1826, 5 B. & 0. 909 ; 8 D. & E. 643. 38 DOCTRINE OF ence at the time the contract was made ix). The company may, of course, make a new contract on the same terms as the old (y), and it may incur an equitahle liability by reason of the percep- tion of a benefit under the contract (2), or on the doctrine of part performance («) ; but it cannot ratify the contract. 4. A. effects an insurance on goods on behalf, generally, of every person interested. Any person interested in the goods may subsequently ratify the insurance so far as concerns his interest, and the underwriters will then be bound by the policy to that extent {h) . So, a person may act on behalf of an heir, or an admiaistrator, or the owner of particular property, whoever he may be, though unascertained and unknown to him, and when ascertained, the person on whose behalf the act was done may ratify it (c), provided that he was capable of being ascertained, and was contemplated by the person doing the act at the time that it was done {d). {x) Kelner r. Baxter, 1866, L. E. 2 0. P. 174; 36 L. J. 0. P. 94; 15 L. T. 213; 15 W. E. 278; Be Empress Engineering Co., 1880, 16 Ch. Div. 125; 43 L. T. 742, 0. A. : overrulmg Spiller v. Paris Skating Sink Co., 1878, 7 Oh. Div. 368 ; 36 "W. E. 456. See also Me Northumberland Avenue Hotel Co., 1886, 33 Ch. Div. 16; 54 L. T. 777, 0. A. ; Be Hotherham Alum and Chemical Co., 1883, 25 Ch. Div. 103 ; 53 L. J. Ch. 290; 50 L. T. 219, C. A. ; ScoU V. Ebury, 1867, L. E. 2 C. P. 255 ; Be Dale and Plant, 1889, 61 L.T. 206; 5 T. L. E. 585; Melhado v. Porto Alegre, &c. Bail. Co., 1874, L. E. 9 C. P. 503 ; 43 L. J. 0. P. 253 ; 31 L. T. 57. (2/) Howard v. Patent Ivory Co., 1888, 38 Oh. Div. 156; 57 L. J. Oh. 878 ; 58 L. T. 395 ; 36 W. E. 801. (z) Touche V. Metropolitan Warehousing Co., 1871, L. E. 6 Oh. 671 ; Be Dale and Plant, supra, note (a;). {a) Howard v. Patent Ivory Co., supra ; Be Dale ajid Plant, supra. {b) Hagedorn v. Oliverson, 1814, 2 M. & S. 485; 15 E. E. 317. (c) Lyell V. Kennedy, 1889, 14 App. Oas. 437 ; 59 L. J. Q. B. 268 ; 62 L. T. 77 ; 38 W. E. 353, H. L. ; Foster v. Bates, 1843, 1 D. & L. 400 ; 12 M. & W. 226 ; 13 L. J. Ex. 88. {d) Watson v. Sivann, 1862, 11 0. B. N. S. 756; 31 L. J. 0. P. 210. RATIFICATION. 39 Article 26. CIRCUMSTANCES UNDER WHICH, AND WITHIN WHAT TIME, AN ACT MAY BE RATIFIED. Where an act depends for its validity upon being done within a certain time, it cannot be effectively ratified after that time has expired, so as to divest a right in rem which has in the meantime vested in a third person (e). Where an act is done which, if it be not authorized by the person on whose behalf it is done, is a tort, the person on whose behalf it is done, in order by ratifica- tion to justify the person doing it, must ratify the act at a time when he might legally do it himself (/); but the fact that before the ratification an action for tort has been commenced against the person doing the act does not affect the validity of the ratifica- tion {g). Where an offer is made to an agent, and is accepted by him without authority, the acceptance may be ratified by the principal, and the contract thereby be made binding on the person who made the offer, even if he has in the meantime given notice to the principal of the withdrawal of the offer (A). Where a contract is made without authority, it must be ratified within a reasonable time after it is made, (e) Illustrations 1 and 2. And see Article 29, Illustration 12. (/) Bird V. Brown, 1850, 4 Ex. 786 ; 19 L. J. Ex. 154 ; 14 Jur. 132. (5') Illustration 3. (A) Illustration 4. 40 DOCTRINE OF and certainly before the time fixed for the perform- ance of the contract to commence, in order to render it binding on the other contracting party («'). But the mere fact that the person on whose behalf a con- tract is made refuses at first to recognize it does not estop him from afterwards ratifying it (/ ). An insurance policy may be effectively ratified by the owner of the property insured, after the loss of the property, even if he has notice of the loss at the time of the ratification {k). Illustrations. 1. A., without the authority of the landlord, gives a tenant notice to quit. The notice cannot be made binding on the tenant by the landlord's ratification after the time for giving notice has expired (/). 2. The agent of a consignor of goods, without the authority of his principal, gave notice of stoppage in transitu on the principal's behalf. The goods afterwards arrived at their des- tination, and were formally demanded by the trustee in bank- ruptcy of the consignee. It was held that the consignor could not subsequently ratify the stoppage in transitu and so divest the property in the goods, which had in the meantime vested in the consignee's trustee in bankruptcy (rn) . {i) Metropolitan Asylum Board v. Kingham, 1890, 6 T. L. E. 217. (/) Soames v. Spencer, 1822, 1 D. & E. 32. (/c) Williams v. North China Assurance Co., 1876, 1 0. P. D. 757 ; 35 L. T. 884, 0. A. (?) Doe d. Mann v. Warlters, 1830, 10 B. & 0. 626 ; o M. & E. 357 ; Doe d. Lyster v. Qoldwin, 1841, 1 G. & D. 463 ; 2 Q. B. 143. The earlier case of Ooodtitle v. Woodward, 3 B. & A. 689, must, to this extent, be considered overruled. See, however. Roe d. Rochester v. Pierce, 2 Camp. 96; HE. E. 673. (m) Bird v. Brown, 1850, 4 Ex. 786 ; 19 L. J. Ex. 154 ; 14 Jur. 132 ; and see Article 29, illustration 12, RATIFICATION. 41 3. An agent, after the death of his principal, distrained in the principal's name for rent due. Held, that the executor might ratify the distress, and so justify the agent, although an action was at the time of the ratification pending against the agent for the trespass (m). 4. A. made an offer to B., the managing director of a com- pany, and it was accepted by him on the company's behalf. B. had no authority to accept the offer. A. then gave the company notice that he withdrew his offer, and the company subsequently ratified B.'s unauthorized acceptance. Held, by the Court of Appeal, that the maxim " omnis ratihabitio retrotrahitur et mandato prim-i cequiparatur" applied, and that the ratification related back to the time of the acceptance, rendering the withdrawal of the offer inoperative; specific performance decreed against A. (o). Article 27. CONDITIONS NECESSARY FOR RATIFICATION. No person is deemed to ratify an act done without his authority, unless at the time of the ratification he has a full knowledge of all the material circumstances under which the act was done(jo), except where it appears that he intends to ratify the act, and take the (ra) Whitehead v. Taylor, 1839, 10 A. & E. 210 ; 2 P. & D. 367. (o) Bolton Partners v. Lambert, 1888, 41 Oh. Div. 295 ; 58 L. J. Cli. 425 ; 60 L. T. 687, 0. A. THis case has been followed by tlie Court of Appeal in Be Portuguese Copper Mines, Limited, ex p. Badman, ex p. Bosanquet, 1890, 45 Ch. Div. 16 ; 62 L. T. 179, and must, therefore, be considered settled law ; but it seems a somewhat unfair, even if a logical, application of the doctrine of ratification. (p) Illustrations 1 and 2 ; Edwards v. L. & N. W. Rail. Co., 1870, L. E. 5 C. P. 445; 39 L. J. C. P. 241; 22 L. T. 656; 18 W. E. 834; Bangue Jacques Oartier v. Banque B'Epargne, 1887, 13 App. Gas. Ill; 57 L. J. P. 0. 42, P. 0. ; The Bonita v. The OharhUe, 1861, Lush. 252; 30 L. J. Adm. 145; 5 L. T. 141; Gunn v. Roherts, 1874, L. E. 9 0. P. 331; 43 L. J. C. P. 233 ; 30 L. T. 424 ; 22 W. E. 652. 42 DOCTKINE OP risk, whatever the circumstances may have heen(q). But it is not necessary that he should be aware of all the collateral circumstances which affect the nature of the act (r). Illustrations. 1. An agent wrongfully distrains certain goods without the authority of the principal, and pays over the proceeds to the principal. The principal is not deemed to have ratified the wrongful distress by receiving the proceeds, unless he received them with a full knowledge of the irregularity, or intended without inquiry to take the risk upon himself («) . So, a prin- cipal wiU not be deemed to ratify a voidable transaction unless he knows that it is voidable (t). 2. An agent, with authority to distrain for rent, wrongfully seized and sold a fixture, and paid the proceeds to the principal, who received them without notice of the illegality. Held, that the principal had not ratified the trespass (m) . 3. An agent, without authority, signed a distress warrant, and, after the distress, informed his principal, who said that he should leave the matter in the agent's hands. Held, that that was a ratification of the whole transaction, though there had been irregularities in levying the distress of which the principal had no knowledge (»). 4. An agent entered into an agreement on behalf of his principal. A letter from the principal, saying that he did not know what the agent had agreed to, but that he must support (2) Illiistrations 3 and 4. (r) Ulustration 5. (s) Lewis V. Mead, 1845, 13 M. & W. 834; 14 L. J. Ex. 295. (t) See Spackman v. Evans, 1868, L. E. 3 H. L. 171. (m) Freeman v. Bosher, 1849, 13 Q. B. 780 ; 18 L. J. Q. B. 340. See, however, Oauntlett v. King, 1857, 3 0. B. N. S. 59. (v) Haselar v. Lemoyne, 1858, 5 0. B. N. S. 530 ; 28 L. J. C. P. 103 ; 4 Jur. N. S. 1279. KATIFICATION. 43 him in all he had done, was held to he a sufficient ratification of the agreement, whatever it might he («) . 5. An agent purchased a chattel on his principal's hehalf from a person who had no right to sell it, and the principal ratified the purchase. Held, that the principal was guilty of conversion, though he had no knowledge at the time of the rati- fication that the sale was unlawful. Here, the circumstances rendering the transaction a conversion were collateral to and did not form part of the contract ratified (y). Article 28. HOW AN ACT MAY BE RATIFIED. The ratification by a person of an act or transaction done or entered into on his behalf may be express or impKed. It will be implied whenever his conduct is such as to show that he intends to adopt the act or transaction (0). Any act done by him with a full knowledge of the circumstances, in recognition of the act or transaction in whole or in part (a), is sufficient evidence of such an intention ; and where an agent exceeds his authority, a ratification of his acts may be implied from the mere silence or acquiescence of the (x) FUzmaurice v. Bayley, 1856, 6 El. & Bl. 868 ; 26 L. J. Q. B. 114 ; 3 Jut. N. S. 264. [y) Hilherry v. Haiton, 1864, 2 H. & 0. 822 ; 33 L. J. Ex. 190 ; 10 L. T. 39. (z) Illustrations 1 to 8. (a) Illustrations 2 to 4 ; Benham v. Batty, 1865, 12 L. T. 266 ; 13 W. E. 636 ; Hawley v. Sentance, 1863, 7 L. T. 74.7 ; 11 W. E. 311 ; Bigg v. Strong, 1858, 4 Jur. N. S. 983 ; 6 W. E. 536 ; Clarke v. Perrier, 1679, 2 Preem. 48 ; Keay v. Fenwich, 1876, 1 0. P. D. 745 ; Smith v. Gohgan, 1788, 2 T. E. 189. 44 DOCTEINE OF principal (^). The adoption of part of a transaction operates as a ratification of the whole (c). A written contract may be ratified verbally or by conduct, even where the contract is required by statute to be in writing (if), but it is doubtful whether a deed can be ratified otherwise than by deed (e). Ratification by companies. — An act or transaction done or entered into on behalf of a company may be ratified by the directors, if they have power to do or enter into such an act or transaction on behalf of the com- pany (/) ; and a ratification by the directors may be implied from part performance (/). Where the act or transaction is beyond the powers of the directors, it can only be effectively ratified by the shareholders (^). An act done by the directors in excess of their powers, but within the scope of the memorandum of associa- (J) Illustration 5 ; Prince v. Clarh, 2 D. & E. 266 ; 1 B. & 0. 186 ; Pott V. Bevan, 1844, 1 0. & K. 335 ; The Australia, 1859, Swab. 480 ; 13 Moo. P. 0. 0. 132, P. C; Mobinson v. Gleadow, 1835, 2 Bing. N. 0. 156; 2 Scott, 250 ; 1 Hodges, 245. (c) Illustrations 2 to 4 ; Sovil v. Pach, 1806, 1 East, 164 ; 3 Smith, 164 ; Ferguson v. Carrington, 1829, 9 B. & 0. 59 ; 3 0. & P. 457 ; Keay v. Fenwick, 1876, 1 C. P. D. 745, 0. A. ; Bristow v. Whitmore, 1861, 9 H. L. Gas. 391 ; 31 L. J. Oh. 467 ; 4 L. T. 622 ; 8 Jur. N. S. 291 ; 9 W. E. 621, H. L. ; Frixione v. Tagliafferro, 1856, 10 Moo. P. 0. 0. 175 ; 4'W. E. 373, P.O. {d) Maclean v. Dunn, 1828, 1 M. & P. 761 ; 4 Bing. 722 ; Soames v. Spencer, 1822, 1 D. & E. 32. (e) See Oxford v. Crow, (1893) 3 Oh. 535 ; 69 L. T. 228 ; 42 W. E. 200. (/) Wilson V. West Hartlepool, &c. Mail. Co., 1864, 2 De G., J. & S. 475 ; 34 L. J. Oh. 241 ; 11 Jui. N. S. 124 ; 11 L. T. 692 ; 13 W. E. 361 ; Beuter v. Electric Telegraph Co., 1856, 6 El. & Bl. 341 ; 26 L. J. Q. B. 46; 2 Jur. N. S. 1245. [g) Spackman v. Evans, 1868, L. E. 3 H. L. 171, H. L. RATIFICATION. 45 tion, may be ratified by ordinary resolution of the shareholders (Ji), and a ratification by the shareholders is implied if they acquiesce in such an act with a fuU knowledge of the circumstances (i). Illustrations. 1. A sliipniaster unnecessarily, and without authority, sells his ship. The owners receive the purchase-money with a full knowledge of the circumstances under which the ship was sold. The receipt of the purchase-money is a ratification of the sale {k). 2. A. is a bankrupt. B., at the request of A.'s wife, pur- chases certain bonds with A.'s money, and hands them to her. The trustee in bankruptcy seizes some of the bonds as part of A.'s estate. The trustee in bankruptcy has ratified the act of B., and thereby discharged him from liability (1). 3. A. is a bankrupt. B. wrongfully sells part of A.'s pro- perty. The trustee in bankruptcy accepts the proceeds, or otherwise recognizes B. as his agent in the transaction. B. is deemed to have been duly authorized by the trustee to sell the property (m) . 4. An agent purchases hemp on behalf of his principal at a price exceeding his Umit. The principal objects to the contract, but disposes of some of the hemp as his own. He is deemed to have ratified the contract, and is bound by it (w) . (h) Grant v. United Kingdom Switchback Sail. Co., 1888, 40 Ch. Div. 135. (i) London Financial Association v. Kelk, 1883, 26 Oh.. Div. lOV; Evans V. Smallcombe, 1868, L. E. 3 H. L. 249 ; 37 L. J. Oh. 793 ; 19 L. T. N. S. 207, H. L. ; Be Magdalena Steam Navigation Co., 1860, 29 L. J. Oh. 667; Johns. 690. (k) The Bonita v. The Charlotte, 1861, Lush. 252 ; 30 L. J. Adm. 145 ; 5 L. T. 141 ; Hunter v. Parker, 1840, 7 M. & W. 322. [1) Wilson V. PouUer, 1724, 2 Str. 859. (m) Brewer v. Sparrow, 1827, 7 B. & C. 310 ; 1 M. & E. 2. {n) Cornwall v. Wilson, 1750, 1 Ves. 510. 46 DOCTRINE OF 5. A wife purchases goods, wMcli are not necessaries, in the name of her hushand. The husband has control over the goods, and does not return them to the seller. He is deemed to ratify the contract, and must pay for the goods (o). 6. A party to a contract which is fraudulent and voidable as against him sues on the contract. He is deemed to ratify the entire contract {p). 7. The steward of a corporation gives a tenant notice to quit on their behalf. The corporation bring an action of ejectment against the tenant. The action is a sufficient ratification of the notice to quit to dispense with the necessity of proving that the steward was duly authorized to give such notice {q). 8. A. receives the rents of certain property for many years without the authority of the owner. The owner sues A. for possession, and for an account of the rents and profits. The action is a sufficient ratification to render A. the agent of the owner from the commencement {r). Article 29. EFFECT OP RATIFICATION. The effect of ratification is to invest the person on whose behalf the act ratified was done, the person who did the act, and third persons, with the same rights, duties, and liabilities in all respects as if the act had been done with the previous authority of the person on whose behalf it was done (s) ; provided, that (o) Waithman v. Wakefield, 1807, 1 Camp. 120; 10 E. E. 654. Ip) Ferguson v. Oarrington, 1829, 9 B. & C. 59 ; 3 0. & P. 457. (q) Roe d. Rochester v. Pierce, 1809, 2 Camp. 96 ; 11 E. E. 673. (r) LyeU v. Kennedy, 1889, 14 App. Cas. 437; 59 L. J. Q. B. 268; 62 L. T. 77 ; 38 W. E. 353, H. L. (s) See the judgments in Wilson v. Tunman, 1843, 6 M. & G. 236 ; 6 Scott, N. E. 894 ; and Bird v. Brown, 1850, 4 Ex. 786 ; 19 L. J. Ex. 154 ; 14 Jur. 132 ; and illustrations 1 to 11. RATIFICATION. 47 no ratification can operate to divest rights in rem vested in third persons at the time of the ratification [t). No ratification gives any new authority to the person whose act is ratified (w). Illustrations. 1. A British naval commander destroyed certain property and released certain slaves belonging to a Spanisli subject. The foreign and colonial Secretaries of State ratified the act of the commander. Held, that the ratification rendered the act an act of state, for which no action would lie at the suit of the Spanish subject {x). 2. A. purchases a chattel on behalf of B., under such circum- stances that the dealing with the property in the chattel is a conversion. B. ratifies the purchase. A. and B. are jointly and severally liable for the conversion (y). 3. A., an agent of a corporation, assaults B., for the Sup- posed benefit of the corporation. The corporation ratify the assault. They are liable to B. in an action for damages (s). 4. A., on B.'s behalf, but without his authority, distrains goods belonging to C. B. ratifies the distress. If B. had a right to distrain, A. is discharged from liabihty, the ratifica- tion having a retroactive effect, and rendering the distress lawful (<) Hiustration 12 ; and see Article 26, iUustration 2. (m) Irvine v. Union Bank of Australia, 1877, 2 App, Oas. 366 ; 46 L. J. P. 0. 87 ; 37 L. T. 176 ; 25 W. E. 682, P. 0. (x) Buron v. JDenman, 1848, 2 Ex. 167. See also Secretary of State for India v. Kamachee Boye Sahala, 1859, 7 Moo. Ind. App. 476 ; 13 Moo. P. 0. 22, P. 0. {y) Hilherry v. Hatton, 1864, 2 H. & C. 822; 33 L. J. Ex. 190; 10 L. T. 39. (z) Eastern Counties Rail. Go. v. Broom, 1851, 6 Ex. 314 ; 6 Eailw. Oas. 743 ; 20 L. J. Ex. 196, Ex. Ch. 48 DOCTRINE OF ab initio (a). If B. liad no right to distrain, A. and B. are jointly and severally liable as trespassers (b). 5. A. makes a contract on behalf of B. without his authority. B. ratifies the contract. B. is liable on the contract, and A. is discharged from KabUity unless he contracted personally (c). 6. An agent does an act in excess of his authority. The principal ratifies the act. The agent is not liable to the prin- cipal for having exceeded his authority (d). 7. A. converts the property of a bankrupt by selling or dis- posing of it without the authority of the trustee in bankruptcy. The trustee ratifies the sale or disposition by receiving the pro- ceeds or otherwise. A. is discharged from liability in respect of the conversion (e). 8. A factor contracts to purchase goods on his principal's behalf at a price exceeding his limit. The principal ratifies the contract. He must pay the factor the full price (/). 9. A. insures goods, in which he has no insurable interest, on behalf of B. B., who has an insurable interest in the goods, ratifies the insurance. A. is deemed to have had an insurable interest {g). 10. The managing owner of a ship sells her through his agent. His co-owners ratify the sale. The owners are jointly liable to the agent for his commission (A). So, if a principal (a) Whitehead v. Taylor, 1839, 10 A. & B. 210 ; 2 P. & D. 367 ; Hull v. Fichersgill, 1819, 1 Brod. & B. 282; 3 Moore, 612; 21 E. E. 598. (5) See Bird y. Brawn, 1850, 4 Ex. 786; 19 L. J. Ex. 154; 14 Jur. 132. (c) Spittle v. Lavender, 1821, 2 Brod. & Bing. 452; 5 Moore, 270. {d) Clarke v. Perrier, 1679, 2 Freem. 48; Smith v. Gologan, 1788, 2 T. E. 189 ; Aiideraon v. Watson, 1827, 3 0. & P. 214; Cornwall v. Wilson, 1750, 1 Ves. 510 ; Sislourg v. Bruckner, 1858, 3 0. B. N. S. 822 ; 27 L. J. C. P. 90. (e) Brewer v. Sparrow, 1827, 7 B. & C. 310 ; 1 M. & E. 2 ; Poulter, 1724, 2 Str. 859. (/) Cornwall v. Wilson, 1750, 1 Ves. 510. (g) Wolff Y. Horncastle, 1798, 1 B. & P. 316; 4 E. E. 808. (h) Keay y. Fenwick, 1876, 1 0. P. D. 745, 0. A. EATIFICATION. 49 ratifies the act of a sub-agent, he is liable to the sub-agent for his commission (i) . 11. An agent defends an action brought against him for breach of a contract entered into by him on behalf of his prin- cipal. The principal ratifies what he has done. The principal must indemnify the agent against the damages and costs reco- vered by the plaintiff in the action {7c). 12. A commodore ia the navy, without authority to do so, appointed a captain. The Crown ratified the appointment. Held, that the ratification did not give the captain the right to share, as such, in prizes taken before the date of the ratification, because at the time of the ratification the rights to the various shares in those prizes were already vested in others (l). (i) Mason v. GUfton, 1863, 3 P. & P. 899. {k) Frixione v. Tagliafferro, 1856, 10 Moo. P. 0. 0. 175 ; 4 W. E. 373, P. 0. (Z) Donelly v. Fopham, 1807, 1 Taunt. 1; 9 E. E. 687. 50 AUTHORITY CHAPTER V. AUTHOEITY OF AGENTS. The authority of an agent may be express or implied. Its nature and extent may be defined by a power of attorney, a formal instrument under seal, by writing not under seal, or by verbal instructions, or may be inferred from a course of dealing between the parties (a). Authority may be implied from the situation of the parties, the circumstances of the particular case, the usage of trade or business, or the conduct of the principal. Article 30. AUTHORITY CANNOT EXCEED POWERS OF PRINCIPAL. The authority, whether express or implied, of eyery agent is confined within the limits of the powers of his principal (b). Thus, an agent of a corporation cannot have any authority, express or implied, to do any act on behalf of the corporation which is ulh'a vires [b). (a) See Pole v. Leask, 1860, 28 Beav. 562 ; 6 Jur. N. S. 1104 ; 29 L. J. Oh. 888. (b) Montreal Assurance Co. v. M'GilUvray, 1859, 13 Moo. P. 0. 0. 87- 8 W. E. 165, P. 0. ; PouUon v. S. W. Bail. 1867, L. E. 2 Q. B. 534; 36 L. J. Q. B. 294 ; 8 B. & S. 616 ; 17 L. T. 11. OF AGENTS. 51 Article 31. CONSTRUCTION OP AUTHORITY GIVEN IN GENERAL TERMS. Authority conferred in general terms is construed as authority to act only in the usual way and ordinary course of business. Illustratiom. -1. A stockbroker is authorized to sell stock or shares. He has no authority to sell on credit, because it is not usual to sell stock or shares on credit (c). 2. A. is authorized to sell and warrant certain goods. He cannot bind his principal by a warranty given at any other time than at the sale of the goods {d). 3. On the dissolution of a partnership, authority is given to one of the partners by his co-partners — (1) to settle the partner- ship affairs (e), or (2) to receive all debts owing to, and to pay all debts owing by, the firm (/). In neither case has he autho- rity to draw, accept, or indorse bills of exchange in the name of the firm. Authority to receive payment of money. 4. A. is authorized to receive payment of money. He has no authority — (1) to receive payment before the money is due, and if his authority be revoked before that time, the debtor is not discharged by such a payment {g) ; (2) to receive payment by cheque, unless he can prove that in the particular business in which he is employed, it is usual to receive payment by cheque {h) ; (c) Wiltshire v. Sims, 1808, 1 Camp. 258 ; 10 E. E. 673. {d) Helyear v. Hawhe, 1803, 5 Esp. 72. (e) Ahel v. Swtton, 1800, 3 Esp. 108 ; 6 R. E. 818. (/) Kilgour v. Flnlayson, 1789, 1 H. Bl. 135. Ig) Breming v. Machie, 1862, 3 E. & P. 197. (A) Bridges v. Garrett, 1870, L. E. 5 0. P. 451 ; 39 L. J. 0. P. 251 ; 22 L. T. 448, Ex. Oh. e2 52 AUTHORITY the burden of proving any such custom lies on the person who seeks to establish the authority (i) ; or (3) to receive payment by way of set-off or settlement of accounts between himself and the debtor (k). 5. It is provided by the conditions at a sale by auction that the purchase-money for the goods sold shall be paid to the auctioneer. The auctioneer has no authority to receive a bill of exchange in payment, and if his authority to receive payment is revoked during the currency of the bill, such a payment does not discharge the purchaser (l). 6. An agent is authorized to receive payment of an account,^ and to retain part of the amount in discharge of a debt due to him from the principal. He has authority, to the extent of his debt, to settle in his own way with the debtor of his principal (m). 7. A. authorizes B., a stockbroker, to receive money due from C, also a stockbroker. B. has no authority to settle with C. by way of set-off, and such a settlement does not bind A.(«). 8. A. authorizes B., an insurance broker, to receive the amount due under a policy of insurance from the underwriters. The underwriters in good faith settle with B. by setting off a debt due to them from him, and their names are struck out of the policy. By a custom at Lloyds', a set-off is considered equivalent to payment as between broker and underwriter. If A. was aware of the custom when he authorized B. to receive payment, he is bound by the settlement. If he was not aware (i) Pape Y. WestacoU, 1893, 10 L. T. E. 51 ; (1894) 1 Q. B. 272 ; 63 L. J. Q. B. 222; 9 E. 55, C. A. {k) Underwood v. NichoUs, 1855, lY 0. B. 239; 25 L. J. 0. P. 79 Sweeting v. Pearce, 1859, 7 0. B. N. S. 449 ; 29 L. J. 0. P. 265. (I) Williams Y. Evans, 1866, L. E. 1 Q,. B. 352; 35 L. J. Q. B. Ill 13 L. T. 753 ; 14 W. E. 330; Stjkes v. Giles, 1839, 5 M. & W. 645. (m) Barker v. Greenwood, 1836, 2 Y. & 0. 414 ; 6 L. J. (N. S.) Eq. 54 1 Jur. 541. (w) Pearson v. Scott, 1878, L. E. 9 Oh. Div. 198 ; 47 L. J. Oh. 705 ; 38 L. T. .747; 26 W. E. 796; Blackburn v. Mason, 1893, 68 L. T. 510; 9 T. L. E. 286 ; 4 E. 297, C. A. OF AGENTS. 53 of the custom, he is not bound by the settlement (o) . Such a custom is considered unreasonable, and the principal is, there- fore, not deemed to have authorized the broker to follow it unless it was known to him (o). Article 32. AUTHORITY CONFEEEED IN AMBIGUOUS TEEMS. Where the authority of an agent is conferred in such ambiguous terms, or the instructions given to him are so uncertain, as to be fairly capable of more than one construction, every act done by him in good faith, which is vv^arranted by any one of those construc- tions, is deemed to have been duly authorized, though the construction adopted vpas not the one intended by . the principal (p). Illustrations. 1. An agent was instructed to sell goods at such a price as would realize 1 5s. per ton, net cash. He sold them at 15s. 6d. per ton, subject to two months' credit. Held, that the instruc- tions might fairly be construed as meaning either 15s. net cash, such a price as would eventually realize 15s. after allowing for interest, or a del credere commission; and that the sale at 15s. 6d., two months, was within the authority (q) . 2. A commission agent was authorized to buy and ship 500 (o) Sweeting v. Pearce, 1859, 1 0. B. N. S. 449 ; 29 L. J. 0. P. 265 ; Todd V. Beid, 1821, 4 B. & Aid. 210; Barthtt v. Pentland, 1830, 10 B. & C. 760 ; Steiuart v. Aberdein, 1838, 4 M. & W. 211 ; 1 H. & H. 284. (p) Ireland v. Livingstone, 1872, L. E. 5 H. L. 395 ; 41 L. J. Q. B. 201 ; 27 L. T. 79, H. L. ; Loring v. Davis, 1886, 32 Oh. Div. 625 ; 55 L. J. Ch. 725 ; 54 L. T. 899; Johnstone t. Kersliaw, 1867, L. E. 2 Ex. 82; 36 L. J. Ex. 44; 15 L. T. 485 ; 16 W. E. 354 ; and see Illustrations. (2) Boden v. French, 1851, 10 0. B. 886. 54 AUTHORITY tons of sugar (subject to a certain limit in price, to cover cost, freight, and insurance), 50 tons more or less of no moment, if it enabled him to secure a suitable vessel. Held, by the House of Lords, reversing the Exchequer Chamber, that a shipment of 400 tons was a good execution of the authority (r). 3. An agent undertook to sell and transfer certain stock when the funds should be at 85 or over. Held, that he was bound to sell when the funds reached 85, and had no discretion to wait until they went higher than that price (s). Article 33. CONSTRUCTION OF POWERS OF ATTORNEY. Powers of attorney must be strictly pursued, and are construed as giving only such authority as they confer expressly or by necessary implication (t). The following are the most important rules of construc- tion — (1.) The operative part of the deed is controlled by the recitals (w). (2.) Where authority is given to do particular acts, followed by general words, the general words are restricted to what is necessary for the proper performance of the particular acts(^'). (r) Ireland v. Livingstone, 1872, L. E. 5 H. L. 395 ; 41 L. J. Q.. B. 201 ; 27 L. T. 79, H. L. (s) Bertram v. Oodfray, 1830, 1 Knapp, 381, P. G. {t) Bryant v. La Banque du Peuple, Bryant v. Quebec Bank, (1893) A. 0. 170; 62 L. J. P. 0. 68; 68 L. T. 546; 41 W. E. 600, P. C; Jonmenjoy Ooondoo V. Watson, 1884, 9 App. Cas. 361; 53 L. J. P. 0. 80; SOL. T. 411, P. 0. ; and see Illustrations 1 to 7. (w) Illustration 1. {v) Ulustration 2 ; Perry t. HoU, 1860, 2 De G. P. & J. 38 ; 29 L. J. Oh. 677 ; 6 Jur. N. S. 661 ; 8 W. E. 570. OF AGENTS. 55 (3.) General words do not confer general powers, but are limited to the purpose for whicli the authority is given, and are construed as enlarging the special powers when necessary, and only when necessary, for that purpose (a;). (4.) The deed must be construed so as to include all medium powers necessary for its effective execution [y). Illustrations. 1. A power of attorney recited that the principal was going abroad, and the operative part gave authority in general terms. Held, that the authority subsisted only during the principal's absence abroad (s). 2. Power was given " to demand and receive all moneys due to the principal on any account whatsoever, and to use all means for the recovery thereof, to appoint attorneys to bring actions, and to revoke such appointments, and to do all other business." Held, that " all other business " must be construed to mean all other business necessary for the recovery of the moneys, or in connection therewith ; and that the power of attorney gave the agent no authority to indorse a bill of exchange received by him thereunder {a) . So, power " to demand, sue for, recover and receive, by all lawful ways and means, all moneys, debts ((b) Lewis V. Ramsdale, 1886, 55 L. T. 179; 35 W. E. 8; AUwood v. Mannings, 1827, 7 B. & 0. 278 ; Re Bowles, 1874, 31 L. T. 365; Harper v. Qodsell, 1870, L. E. 5 Q. B. 422 ; 39 L. J. Q. B. 185 ; 18 W. E. 954 ; Bryant v. La Banque du Peuple, Bryant v. Quelec Banh, supra, note {t). {y) Within gton v. Herring, 1829, 5 Bing. 442; Howard v. Baillie, 1796, 2 H. Bl. 618. (z) Danby v. Goutts, 1885, 29 Oh. Div. 500 ; 54 L. J. Oh. 577 ; 52 L. T. 401. (a) Hogg v. Snaith, 1808, 1 Taunt. 347 ; 9 E. E. 788. And see Hay r. Goldsmidt, 1804, 1 Taunt. 349 ; 2 Smith, 79 ; 9 E. E. 790 ; Esdaile y. La Name, 1840, 1 Y. & 0. 394. 56 AUTHORITY OF AGENTS. and dues whatsoever, and to give sufficient discharges, and to transact all business," was held to give no authority to indorse bills of exchange on behalf of the principal (b). 3. A resident director and manager of a mining company was authorized by deed "to direct the mine so as most effectually to promote the interests of the company, to employ workmen, provide needful implements, &c., but not to engage the credit of the company for more than 501. without the express authority in writing of the managing directors." Held, that he had no authority to bind the company by accepting bills of exchange (c). 4. An executor gave a power of attorney to transact in his name all the affairs of the testator. Held, that the agent had no authority to accept a bill of exchange in the name of the executor so as to bind him personally (d). 6. A power of attorney "from time to time to negotiate, make sale, dispose of, assign and transfer," gives no authority to "pledge "(e). But a power "to sell, indorse and assign," does authorize an indorsement to a bank as security for a loan to the agent ; such a power is construed as giving (1) authority to sell, (2) authority to indorse, and (3) authority to assign (/) . Article 34. CONSTRUCTION OF AUTHORITY NOT GIVEN UNDER SEAL. Where the authority of an agent is given by an instrument not under seal, or is given verbally, it is (6) Murray v. East India Co., 1821, 5 B. & Aid. 204. (c) Brown v. Byers, 1847, 16 M. & W. 252 ; 16 L. J. Ex. 112. (d) Gardner v. BaiUie, 1796, 6 T. E. 591 ; 1 Bos. & P. 32 ; 3 E. E. 531, 538. {Hoioard v. BailUe, 2 H. Bl. 618 ; 3 E. E. 531, yras decided on the ground of ratification.) (e) Jonmenjoy Coondoo v. Watson, 1884, 9 App. Cas. 561 ; 53 L. J. P. 0. 80 ; 50 L. T. 411, P. 0. ; Be Bouchout v. Goldsmid, 1800, 5 Ves. 211. (/) Bank of Bengal v. Madeod, 1849, 5 Moo. Ind. App. 1 ; BanJc of Bengal v. Fagan, 1849, 5 Moo. Ind. App. 27, P. 0. IMPLIED AUTHORITY. 67 construed liberally, having due regard to the object of the authority and to the usages of trade or busi- ness {g). IMPLIED AVTEOBITY. Article 35. TO DO WHAT IS NECESSARY FOE OR INCIDENTAL TO EFFECTIVE EXECUTION OF EXPRESS AUTHORITY. Every agent has implied authority to do whatever is necessary for or ordinarily incidental to the effec- tive execution of his express authority in the usual way {h). Illustrations. 1. A. is authorized to enter into a binding contract. He has implied authority to sign a memorandum thereof to satisfy the Statute of Frauds, or the Sale of Goods Act, 1893 {i). 2. A. is authorized to buy certain railway shares. He has implied authority to do everything in the usual course of busi- ness necessary to complete the bargain (k) . 3. A. is employed to get a bill of exchange discounted. He (g) See Pole v. Leask, 1860, 28 Beav. 562 ; 6 Jur. N. S. 1104 ; 29 L. J. Oh. 888 ; Entwisth v. Dent, 1848, 1 Ex. 812 ; 18 L. J. Ex. 138 ; Pariente V. LuUock, 1855, 5 De Gr. M. & G. 5; 20 Beav. 588; Gillow t. Aberdare, 1893, 9 T. L. E. 12; Exp. Howell, 1865, 12 L. T. 785. (A) Beaufort v. Neeld, 1845, 12 C. & E. 248 ; Pole v. Leash, 1860, 28 Beav. 562 ; 6 Jur. N. S. 1104 ; 29 L. J. Oh. 888 ; Dingle v. Hare, 1859, 7 0. B. N. S. 145; 29 L. J. 0. P. 143; 16 Jur. N. S. 679; 1 L. T. 38; Stevens v. Hinshelwood, 1891, 55 J. P. 341, 0. A. ; Capel v. Thornton, 1828, 2 0. & P. 352 ; and see lUustrations. (j) Durrell v. Evans, 1862, 1 H. & C. 174; 31 L. J. Ex. 337; 9 Jur. N. S. 104 ; 7 L. T. 97; lO'W. E. 665. (k) Bayley v. Wilkins, 1849, 7 C. B. 886 ; 18 L. J. 0. P. 273, 58 IMPLIED has implied authority to warrant it a good bill, but not to indorse it in the name of the principal (/). 4. A. is authorized to receive and sell certain goods, and to pay himself a debt out of the proceeds. He has implied autho- rity to bring an action against a third person wrongfully withholding possession of the goods (m). 5. An agent is employed to find a purchaser for certain property. He has implied authority to describe the property, and state to an intending purchaser any facts or circumstances which may affect its value {n) . 6. A horse-dealer or other person who is accustomed to buying and selling horses authorizes A. to sell a horse privately. A. has implied authority to give a warranty on the sale of the horse (o). 7. A., a person who is not accustomed to buying and selling horses, authorizes his servant to sell a horse privately. The servant has no implied authority to warrant the horse {p). 8. A., a person who is not accustomed to buying and selling horses, authorizes his servant to seU a horse at a fair or public market-place. The servant has implied authority to warrant the horse (q). 9. A. is authorized merely to deliver a horse. He has no implied authority to warrant it (r). 10. An agent is employed to find a purchaser and to contract (?) Fenn v. Harrison, 1791, 3 T. E. 757 ; 4 T. E. 177. (m) Curtis v. Barclay, 1826, 7 D. & E. 539 ; 5 B. & 0. 141. {n) Mullens v. Miller, 1882, 22 Oh. Div. 194 ; 52 L. J. Oh. 380 ; 48 L. T. 103 ; 31 W. E. 559. (o) Howard v. Sheward, 1866, L. E. 2 0. P. 148 ; 36 L. J. 0. P. 42 ; 12 Jur. N. S. 1015 ; Bank of Scotland v. Watson, 1813, 1 Dow. 45 ; 14 E. E. 11, H. L. ; Baldry v. Bates, 1885, 52 L. T. 620. Ip) Brady v. Todd, 1861, 9 0. B. N. S. 592 ; 30 L. J. 0. P. 223; 7 Jur. N. S. 827 ; 4 L. T. 212 ; 9 W. E. 483 : overruling Alexander v. Gibson, 1811 ; 2 Camp. 555 ; 11 E. E. 797. (q) Brooks v. Hassell, 1883, 49 L. T. 569. (r) Woodin v. Burford, 1834, 2 0. & M. 391 ; 4 Tyr. 264. AUTHORITY. 59 for tlie sale of an estate. He has no implied authority, as such, to receive the purchase- money (s). Article 36. IMPLIED AUTHORITY OF GENERAL AGENTS. Every agent who is authorized to conduct a parti- cular trade or business (t), or generally to act for liis principal in matters of a particular nature, or to do a particular class of acts (u) has implied authority to do whatever is incidental to the ordinary conduct of such a trade or business (t), or of matters of that nature, or is within the scope of that class of acts (u), and what- ever is necessary for the proper and effective perform- ance of his duties (a;); but not to do anything that is outside the ordinary scope of his employment and duties (y). Illustrations. 1. A. is the manager of an estate. He has implied authority to contract for the usual and customary leases (s), and to give and receive notices to quit to and from the tenants (a). (s) Mynn v. JoUffe, 1834, 1 M. & Bob. 326. (t) Illustrations 1 to 3. (m) I:x p. Howell, 1865, 12 L. T. 785 ; Peers v. Sneyd, 1853, 17 Beav. 151 ; Jones v. Fhipps, 1868, L. E. 3 Q. B. 567 ; 37 L. J. Q. B. 198 ; 9 B. & S. 761 ; 18 L. T. 813. For implied authority of shipmasters, see post, pp. 74 to 80. (a;) Illustrations 11 and 12 ; Langan v. Q. W. Rail. Co., 1874, 30 L. T. 173; 26L. T. 577, Ex. Oh. [y) Linford v. Provincial, &c. Ins. Go., 1864, 34 Beav. 291 ; 11 L. T. 330 ; 10 Jur. N. S. 1066 ; Cox v. Midland Counties Bail. Co., 1849, 3 Ex. 268 ; Illustrations 7 to 12. {z) Peers v. Sneyd, 1853, 17 Beav. 151. {a) Papillon v. Brunton, 1860, 5 H. & N, 518 ; 29 L. J. Ex. 265 ; Jones V. Phipps, supra, note [u). /^ 60 IMPLIED 2. A. is the manager of a beerhouse. He has implied autho- rity to order cigars for such beerhouse (b). 3. A. is the manager of a business which he carries on in his own name as apparent principal. Drawing and accepting bills of exchange are incidental to the ordinary conduct of such a business. A. has implied authority to accept a bill in the name in which the business is carried on {i.e., his own name), and the principal is liable on a bill so accepted (c). 4. A. is the general manager of a railway company. He has implied authority to order medical attendance for a servant of the company, on the company's credit (d) . 5. A. is the foreman of a saw-mill. He has implied authority to enter into a written contract for the sale of staves (e). 6. A. is a traveller for the sale of goods in the provinces on behalf of a principal in London. A. has implied authority to receive payment in money for the goods sold by him, but not to accept other goods by way of payment (/). 7. A. is a rent collector. He has no implied authority, as such, to receive notice to quit from a tenant (g). So, a steward has no implied authority, as such, to grant leases (h) ; nor the cashier of a picture engraver to sell his master's engravings («). 8. Insurance agents. — A. is the agent of an insurance com- pany, and has authority to receive the payment of premiums within fifteen days of their becoming due. He has no implied authority to accept payment after the expiration of that time [k) . So, a local agent of an insurance company has no implied (i) Watteau v. Fenwich, 1892, (1893) 1 Q. B. 346 ; 56 J. P. 839 ; 67 L. T. 831 ; 9 T. L. E. 133, 0. A. (c) Edmunds v. Bushell, 1865, L. E. 1 Q. B. 97 ; 35 L. J. Q. B. 20 ; 12 Jut. N. S. 332. (d) WalJeer v. (?. W. Rail. Co., 1867, L. E. 2 Ex. 228. (e) Richardson v. OartwrigM, 1844, 1 0. & K. 328. (/) Howard v. Chapman, 1831, 4 0. & P. 508. {g) Pearse v. Boulter, 1860, 2 F. & F. 133. (h) Collen v. Gardner, 1856, 21 Beav. 540. (i) Graves v. Masters, 1883, 1 0. & E. 73. {h) Acey v. Fernie, 1840, 7 M. & "W. 151. AUTHOKITY. 61 authority, as such, to grant, or contract to grant, policies on behalf of the company, that being outside the ordinary scope of his employment and duties (l). 9. A. is a station master. He has no implied authority, as such, to pledge the credit of the railway company for medical attendance to an injured passenger (m). 10. Directors and agents of unincorporated companies. — A. is the resident agent and manager of a mine for an unincorporated company. He has no implied authority to borrow money on the credit of the shareholders, however pressing may be the necessity for a loan («). So, directors of an unincorporated mining company have no implied authority to bind the members of the company by negotiable instruments, or to borrow money on their credit, either for the purpose of carrying on the mine or for any other purpose, however useful and necessary, the general rule being that directors of unincorporated companies have only such powers as are expressly or by necessary impli- cation conferred upon them by the members (o) . 11. Arresting offenders, Sfc. — ^A. is a bank manager. He has no implied authority to arrest or prosecute supposed offenders, on behalf of the bank (p) . Authority to arrest or give persons into custody is only implied when the duties of the agent would not be efficiently performed without such authority (p). Thus, a servant has implied authority, as a general rule, to give persons into custody when such a step is necessary for the protection of his master's property, but not merely for the purpose of punishing a supposed wrongdoer (q). (l) Linford v. Provincial, &a. Im. Oo., 1864, 34 Beav. 291 ; 11 L. T. 330; 10 Jur. N. S. 1066. (m) Cox V. Midland Counties Bail. Co., 1849, 3 Ex. 268. Compare Langan v. G. W. Rail. Co., 1874, 30 L. T. 173 ; 26 L. T. 577, Ex. Ch. (n) Hawtayne v. Bourne, 1841, 5 Jur. 118 ; 7 M. & W. 595. (o) Dickinson v. Valpy, 1829, 5 M. & E. 126; 10 B. & 0. 128; Burmester V. Norris, 1851, 6 Ex. 796; 21 L. J. Ex. 43. {p) Bank of Neiu South Wales v. Owston, 1879, 4 App. Cas. 270 ; 48 L. J. P. 0. 25 ; 40 L. T. 500, P. 0. And see Illustration 12.. (q) Stevens y. Hinshelwood, 1891, 55 J. P. 341, 0. A. And see Illustra- tion 12. 62 IMPLIED 12. Servants of railway companies. — The servants of a railway company have implied authority to remove passengers from carriages in which they are misconducting themselves or travel- ling without having paid the fare (r), and to do whatever else is necessary for the enforcement of the company's bye-laws (s). They have, therefore, implied authority to arrest persons in- fringing the bye-laws, where that remedy is prescribed by statute (s). So, a railway booking clerk, part of whose duty is to keep in a till under his charge money belonging to the company, has implied authority to do all acts necessary for the protection of such money ; but he has no implied authority to give into custody a person whom he suspects of having attempted to steal from the till, after the attempt has ceased and there is no further danger to the property of the com- pany {t). In Edwards v. L. §• N. W. Rail. Co. {u), it was held that a foreman porter, who was in charge of a station in the absence of the station master, had no implied authority to give into custody a person whom he suspected to be stealing the company's property, because such an act was not within the ordinary scope of his employment or duties. Article 37. IMPLIED AUTHOEITY WHERE EMPLOYED IN COUESE OF BUSINESS AS AGENT. Every agent who is authorized to do any act in the course of his trade, profession, or business as an agent, has implied authority to do whatever is usually inci- (r) Lowe y. 0. N. Bail. Co., 1892, 62 L. J. Q. B. 524 ; 9 T. L. E. 516. (s) Edwards y. L. & N. W. Bail. Co., 1870, L. E. 5 0. P. 445; 39 L. J. C. P. 241 ; 22 L. T. 656; 18 W. E. 834. {t) Allen Y. L. & 8. W. Bail. Go., 1870, L. E. 6 Q. B. 65 ; 40 L. J. Q. B. 55 ; 23 L. T. 612 ; 19 W. E. 127. {u) See ante, note (s). AUTHORITY. 63 dental, in the ordinary course of such trade, profession, or business, to the execution of his express authority (a;), but not to do anything which is unusual in such trade, profession, or business, or which is neither necessary for nor incidental to the execution of his express authority [y). Illustrations. 1. A solicitor is authorized to sue for a debt. He has implied authority to receive payment thereof (z). 2. A solicitor is authorized to appear in an action. He has implied authority to refer the subject-matter to arbitration {a), or to enter into a compromise on behalf of his client (&). 3. Counsel is employed to conduct a case. He has implied authority to do everything belonging to the conduct of the case that he thinks best for the client (c). 4. A bailiff is authorized , to distrain for rent. He has implied authority to receive the rent and expenses due, and a tender thereof to him operates as a tender to the principal {d). (cc) Toung v. Ode, 1837, 3 Bing. N. 0. 724 ; 4 Scott, 489 ; 3 Hodges, 126; SuUon y. Tatham, 1839, 10 Ad. & E. 27; Illustrations 1 to 7. See, also pp. 68 to 80 for implied authority of factors, brokers, auctioneers, solicitors, &c. {y) Wiltshire y. Sims, 1808, 1 Camp. 258; 10 E. E. 673; Daun y. Simmons, 1879, 41 L. T. 783; 28 W. E. 129; 44 J. P. 264, C. A.; Fourier y. Morris, 1853, 3 El. & Bl. 89; 22 L. J. Q. B. 313; Smith y. Webster, 1876, 3 Oh. Div. 49 ; 45 L. J. Oh. 528 ; 35 L. T. 44 ; 24 W. E. 894, 0. A. ; lUustrations 8 to 14. See, also, pp. 68 to 80. (z) Tates y. Freckleton, 1781, 2 Doug. 623. (a) Faviell v. Eastern Counties Bail. Co., 1848, 2 Ex. 344 ; 6 D. & L. 54 ; 17 L. J. Ex. 297 ; Smith y. Troup, 1849, 6 D. & L. 679 ; 7 0. B. 757 ; 18 L. J. 0. P. 209. (6) Butler y. Knight, 1867, L. E. 2 Ex. 109; 36 L. J. Ex. 66 ; 15 L. T. 621 ; 15 "W. E. 407. And see p. 73. (c) Strauss y. Francis, 1866, L. E. 1 Q. B. 379 ; 35 L. J. Q. B. 133 ; 12 Jur. N. S. 486 ; 14 L. T. 326 ; 14 W. E. 634. And see p. 72. (d) Hatch V. Hale, 1850, 15 Q. B. 10 ; 19 L. J. Q. B. 289 ; 14 Jur. 469. 64 IMPLIED 5. An insurance broker is authorized to subscribe a policy for an underwriter. He has implied authority to adjust a loss arising thereunder (e), and to refer a dispute about such a loss to arbitration (/). 6. A horse-dealer is authorized to sell a horse. He has implied authority to warrant it (g) . 7. A commission agent is authorized to make a bet in his own name on behalf of his principal. He has implied authority to pay the bet if he loses' it (A) . (No action now lies, however, for the recovery from the principal of any amount so paid, in consequence of the provisions of the Gaming Act, 1892 («).) 8. An auctioneer is employed to sell goods by auction. He has no implied authority to sell them by private contract, even if the public sale proves abortive, and proof of a custom amongst auctioneers, to sell privately in such an event, is inadmis- sible (k) . 9. A. is employed as a general agent for the sale of goods intrusted to his possession. He has no implied authority to pledge the goods (/). 10. A solicitor is authorized to sue for a debt. He has no implied authority to interplead, or agree to postpone execution, after judgment for his client (m). 11. A solicitor is authorized to send a draft contract for perusal and approval. He has no implied authority to sign a (e) Richardson v. Anderson, 1805, 1 Camp. 43, n. ; 10 E, E. 628, n. (/) Qoodson V. Brooke, 1815, 4 Camp. 163. {g) Howard v. Sheward, 1866, L. E. 2 0. P. 148 ; 36 L. J. 0. P. 42 ; 12 Jur. N. S. 1015. (A) Read v. Anderson, 1884, 13 Q. B. D. 779 ; 53 L. J. Q. B. 532 ; 51 L. T. 65 ; 49 J. P. 4 ; 32 W. E. 950, 0. A. {%) 55 Viot. 0. 9. See post. Article 69. {h) Daniel v. Adams, 1764, Ambl. 495 ; Marsh v. Jelf, 1862, 3 F. & F. 234. See, towever. Stein v. Cope, 1883, 1 0. & E. 63. (i!) City Bank v. Barrow, 1880, 5 App. Gas. 664 ; 43 L. T. 393, H. L. {m) James v. Bicknell, 1887, 20 Q. B. D. 164 ; 57 L. J. Q. B. 113 ; 58 L. T. 278; Lovegrovey. White, 1871, L. E. 6 0. P. 440; 40 L. J. 0. P. 253; 24 L. T. 554; 19 W. E. 823. AUTHORITY. 65 memorandum of the contract, for the purpose of satisfying the 4th section of the Statute of Frauds (n). 12. A broker is authorized to effect a policy. He has no implied authority, after having effected the policy, to cancel it, it not being part of a broker's ordinary authority or duty to cancel contracts once completely and validly made (o). 13. A commission agent is authorized to buy goods in England on behalf of a foreign principal. It is not usual to pledge the credit of the foreign principal in such cases. The agent has no implied authority to pledge the principal's credit, and the fact that they have agreed to share the profit and loss does not affect this rule (p). 14. An estate agent is instructed to find a purchaser for certain property. He receives an offer, -which he submits to his principal. The principal then instructs him to withdraw part of the property, and names the lowest price for the remainder. He has no implied authority to enter into a contract for the sale of the property, though the price is specified, because it is not usual for estate agents to enter into contracts on behalf of their principals, unless expressly authorised to do so, their duty being merely to submit to their principals any offers which may be made to them (q). Article 38. AUTHORITY IMPLIED FROM SPECIAL CUSTOMS. Every agent has implied authority to act, in the execution of his express authority, according to the (n) Smith v. Wehster, 1876, 3 Cli. Div. 49 ; 45 L. J. Ch. 528 ; 35 L. T. 44, C. A. (o) XenosY. Wichham, 1866, L. E. 2 H. L. 296; 36 L. J. 0. P. 313; 16 L. T. 800 ; 16 W. E., 38, H. L. {p) Button v. BuUocli, 1874, L. E. 9 Q. B. 572 ; 30 L. T. 648 ; 22 W. E. 956, Ex. Oil. ; Fourier v. Morris, 1853, 3 El. & Bl. 89 ; 22 L. J. Q. B. 313; 17 Jut. 1116. (y) Chadburn v. Moore, 1893, 61 L. J. Oh. 674; 67 L. T. 257; 41 W. E. 39 ; Earner v. Sharp, 1875, L. E. 19 Eq. 108 ; 44 L. J. Oh. 53 ; 31 L. T. 643. B. F 66 IMPLIED usage and customs of the particular place or business in which he is employed (r), except where the usage or custom is illegal or unreasonable (s), or changes the in- trinsic character of the contract of agency {t). Where the usage or custom is unreasonable, or changes the in- trinsic character of the contract of agency, the agent has no implied authority to act in accordance there- with, unless the principal had at the time that he gave the agent authority to act on his behalf notice of the existence of such usage or custom (u). lUustratiom. 1. A. is authorized to sell manure. The jury find that it is customary to seE manure with a warranty. A. has implied authority to give a warranty on a sale of the manure {x). 2. A. is authorized to sell a certain class of goods. It is customary to sell goods of that class on credit. A. has implied authority to seE. the goods on credit (y). 3. A share broker is employed to transact business at a particular place. He has implied authority to act in accordance with the reasonable usages of that place (s). 4. A broker, a member of the Stock Exchange, is authorized to sell certain bonds. He has implied authority, if the bonds (r) Illustrations 1 to 6 ; Sutton v. Tatham, 10 Ad. & E. 27 ; Sarker v. Edwards, 1887, 57 L. J. Q. B. 147, 0. A. (s) lUustration 9 ; Camphell \. Hassell, 1816, 1 Stark. 233. (<) lUustrations 7 and 8. {u) Pollock Y. Stables, 1848, 5 Eailw. Gas. 352 ; 12 Q. B. 765 ; 17 L. J. Q. B. 352; 12 Jur. 1043; Robinson v. MolleU, 1874, L. E. 7 H. L. 802; 44 L. J. 0. P. 362 ; 33 L. T. 544, H. L. ; lUustrations 7 to 9. (x) Dingle v. Rare, 1859, 7 0. B. N. S. 145; 29 L. J. 0. P. 143; 6 Jur. N. S. 679; IL. T. 38. (2/) Pelham v. Hilder, 1849, 1 Y. & CoU. 0. 0. 3. (z) PoUocJc V. Stables, supra, note (m). AUTHORITY. 67 turn out not to be genuine, to rescind the sale and repay the purchaser the price, in accordance with the usage of the Stock Exchange (a). 5. A broker is authorized to sell shares on the Stock Ex- change. He has implied authority to sell under the rules and regulations there in force, except so far as they are unreasonable and unknown to the principal (b), 6. A broker is authorized to buy wool in the Liverpool market. By a custom of that market, a broker so authorized may buy either in his own name or in the name of the principal without giving his principal notice whether he has bought in his own name or not. Such a custom is not unreasonable, and the priacipal is bound by a contract made in the name of the broker, though he had no notice of the custom or of the fact that the contract was made by the broker in his own name (c). 7. A broker is authorized to buy 50 bales of cotton. It is customary in the cotton trade for a broker to make a single contract in his own name for the purchase of a sufficiently large quantity of cotton to supply the orders of several principals, and to parcel it out amongst them. The broker has no implied authority to purchase a larger quantity than 50 bales and allo- cate 50 bales thereof to the principal, unless the principal was aware of the custom at the time that he gave the authority, because the effect of such a custom is to change the intrinsic character of the contract of agency by turning the agent into a principal, and thus giving him an interest at variance with his duty (d). (a) Toung v. Cole, 1837, 3 Bing. N. 0. 724; 4 Scott, 489; 3 Hodges, 126. (6) Harher v. Edwards, 1887, 57 L. J. Q. B. 147, 0. A. ; Hodghinson v. Kelly, 1868, 37 L. J. Cli. 837; L. E. 6 Eq. 496; 16 W. E. 1078; Coles v. Bristowe, 1868, L. E. 4 Oh. 3 ; 38 L. J. Oh. 81 ; 19 L. T. 403 ; 17 W. E. 105. (c) Cropper v. CooTc, 1868, L. E. 3 0. P. 199; 16 "W. E. 596. (d) Bostock Y. Jardine, 1865, 3 H. & 0. 700 ; 34 L. J. Ex. 142; 11 Jur, N. S. 586 ; 12 L. T. 677 : followed by the House of Lords in EoUmon v. f2 68 IMPLIED 8. A broker is authorized to sell stock. A custom of tli9 Stock Exchange, whereby he is himself permitted to take over the stock at the price of the day if he is unable to find a purchaser, is unreasonable, and such a transaction is not binding on the principal unless he is proved to have been aware of the custom (e). 9. An insurance broker is authorized to receive from the under- writers payment of money due under a policy. A custom at Lloyds' whereby the broker may settle with the underwriters by way of set-off is unreasonable, and the priucipal is not bound by such a settlement unless he was aware of the custom when he authorized the broker to receive payment (/). The same rule applies to stockbrokers settling with agents {g). Implied authority of particular classes of agents, as inci- dental to their employment. 1. Factors. Where goods are intrusted to a factor for sale, he has implied authority — 1. To sell them in his own name {h). 2. To sell at such times and for such prices as he thinks best («■). Mollett, 1874, L. E. 7 H. L. 802 ; 44 L. J. 0. P. 362 ; 33 L. T. 544, where a similar custom in the tallow market was rejected on the same ground. (e) Hamilton v. Young, 1881, L. E. Y Ir. 289. (/) Sweeting v. Pearce, 1859, T 0. B. N. S. 449; 29 L. J. 0. P. 265. See, also, cases cited under Article 31, Illustration 8. {g) Pearson v. Scott, 1878, 9 Chi. Div. 198 ; 47 L. J. Oh. 705 ; 38 L. T. 747 ; 26 W. E. 796; Blachhurn v. Mason, 1893, 68 L. T, 510; 9 T. L. E. 286 ; 4 E. 297, 0. A. (7i) Baring v. Gorrie, 1818, 2 B. & A. 137 ; 20 E. E. 383 ; Exp. Dixon, re Henley, 1876, 4 Oh. Div. 133; 46 L. J. Bk. 20; 35 L. T. 644; 25 W. E. 105, 0. A. (i) Smart v. Sandars, 1846, 3 0. B. 380 ; 16 L. J. 0. P. 39 ; 10 Jur. 841. AUTHORITY. 69 3. To sell on reasonable credit (/«). 4. To warrant the goods sold, if it is usual to warrant that class of goods (^). 5. To receive payment of the price, if he sells in his own name {m). A factor has no implied authority, as such — 1. To delegate his authority, whether acting under a del credere commission or not (w). 2. To barter (o) or pledge goods {p), or the bill of lading for goods iq), intrusted to him for sale ; even if he has accepted bills drawn by the principal to be provided for out of the proceeds of the goods, he has no implied authority to raise money by pledging the goods for the purpose of meeting the bills (r). 2. Brokers. A broker has implied authority — 1. Where he has entered into a contract, to sign an entry in his book, or to sign bought and sold notes, on behalf of both buyer and seller, as a memorandum of the contract for the purpose of satisfying the provisions of the 4th section of the Sale of Goods Act, 1893 («). (ifc) Houghton v. Matthews, 1803, 3 B. & P. 485, 489; 1 E. E. 815; Scott V. Surman, Willes, 406. {J) Dingle v. Hare, 1859, 7 0. B. N. S. 145 ; 29 L. J. 0. P. 143 ; 6 Jur. N. S. 679 ; 1 L. T. 38. (m) Drinhwater v. Ooodwin, 1775, Oowp. 251. In) Cochran v. Irlam, 1814, 2 M.' & S. 301 ; 15 E. E. 257 ; BoUy v. Bathhone, 1814, 2 M. & S. 298. (o) Guerreiro v. Peile, 1820, 3 B. & A. 616; 22 E. E. 500. (_p) Martini Y. Coles, 1813, 1 M. & S. 140; Paterson v. Tash, Str. 1178. See, however, Article 82 as to the rights of third persons dealing with him in good faith. {q) GuichardY. Morgan, 1819, 4 Moore, 36; NewsonY. Thornton, 1805, 6 East, 17 ; 2 Smith, 207 ; 8 E. E. 378. (r-) Gill Y. Kymer, 1821, 5 Moore, 503 ; Fielding v. Kymer, 1821, 2 B. & B. 639. (s) Parton v. Crofts, 1864, 16 0. B. N. S. 11; 33 L. J. 0. P. 189; 10 70 IMPLIED 2. To sell on reasonable credit, where there is no usage to the contrary (t). 3. Where he sells for an undisclosed principal, to receive payment of the price in accordance with the terms of the contract (;/) . 4. To act in accordance with the usage, and the rules and regulations of the market in which he deals, except so far as the usage, rules or regulations are illegal or unreasonable, or alter the intrinsic nature of- the contract of agency («). 5. To close his account with the principal, but not to close part of it only, if the principal fails to duly pay differ- ences («/). A broker has no implied authority, as such — 1 . To contract in his own name (z) . 2. To cancel contracts made by him (a). 3. To pay total or partial losses on behalf of his under- writers (5). 4. To include the orders of several principals in one con- tract (c). 5. To receive payment for an undisclosed principal otherwise than in accordance with the terms of the original contract, or to receive payment by way of set-off (d). L. T. 34 ; 12 W. E. 553 ; Thompson v. Gardiner, 1876, 1 C. P. D. 777. See other cases cited under Article 90. (i) Soorman v. Brown, 1842, 3 Q. B. 511 ; 2 G. & D. 793; 11 0. & F. 1 ; Wiltshire v. Siitis, 1808, 1 Camp. 258; 10 E. E. 673. (m) Campbell v. Hassell, 1816, 1 Stark. 233. {x) See cases cited under Article 38. (y) Samuel v. Bowe, 1892, 8 T. L. E. 488. (z) Baring v. Oorrie, 1818, 2 B. & A. 137. (a) Xenos v. Wichliam, 1866, L. E. 2 H. L. 296; 36 L. J. 0. P. 313; 16 L. T. 800 ; 16 W. E. 38, H. L. (6) Bell V. Auldjo, 1784, 4 Doug. 48. (c) Bostock V. Jardine, 1865, 3 H. & 0. 700; 34 L. J. Ex. 142 ; 11 Jur. N. S. 586 ; 12 L. T. 577. {d) Campbell v. Hassell, 1816, 1 Stark. 233; Pearson v. Scott, 1878, 9 Oh. Div. 198 ; 47 L. J. Oh. 705 ; 38 L. T. 747 ; 26 W. E. 796. AUTHOEITY. 71 6. To delegate his authority, whether acting under a del credere commission or not (e). 7. To pledge a bill intrusted to him to get discounted (/). 8. To sell stock or shares on credit, even if he considers it for the principal's benefit {g). 3. Auctioneers. An auctioneer has implied authority at a sale by auction to sign a contract or memorandum thereof on behalf of both vendor and purchaser, and his signature is a sufficient com- pliance with the provisions of the 4th section of the Statute of Frauds, or of the 4th section of the Sale of Goods Act, 1893, in an action against either party either for specific performance or for damages for breach of contract (/»). An auctioneer has no implied authority, as such — 1. To rescind a sale made by him (^). 2. To warrant goods sold by him {k). 3. To make any verbal declarations which are inconsistent with the written conditions {V) . 4. To take a bill of exchange in payment, where it is pro- vided that the price shall be paid to him {m). 5. To sign the vendor's name to any contract except the contract of sale (m). (e) Henderson t. Barnewdl, 1827, 1 Y. & J. 387 ; Cochran v. Irlam, 1814, 2 M. & S. 301 ; 15 E. E. 257. (/) Haynes v. Foster, 1833, 2 0. & M. 237 ; 4 Tyr. 65. {g) Wiltshire v. Sims, 1808, 1 Camp. 258 ; 10 E. E. 673. \h) Kemeys v. Proctor, 1820, 1 Jac. & Walk. 350; 3 Ves. & B. 57; Shelton v. Livius, 1832, 2 0. & J. 411; 2 Tyr. 420; Emmerson v. Eeelis, 1809, 2 Taunt. 38; 11 E. E. 520; White v. Proctor, 1811, 4 Taunt. 209; 13 E. E. 580. (i) Nelson v. Aldridge, 1818, 2 Stark. 435; 20 E. E. 709. {h) Payne v. Leconfield, 1882, 51 L. J. Q. B. 642; 30 W. E. 814. (?) Gvnnis v. Erhart, 1789, 1 H. Bl. 290; 2 E. E. 769; Shelton v. Livius, 1832, 2 0. & J. 411 ; 2 Tyr. 420. (m) Williams v. Evans, 1866, L. E. 1 Q. B. 352 ; 35 L. J. Q. B. Ill ; 13 L. T. 753 ; 14 W. E. 330 ; Sykes v. Giles, 1839, 5 M. & W. 645, (n) Megaw v. Molloy, 1878, L. E. 2 Ir. 530. 72 IMPLIED 6. To sell by private contract, even if the public sale proves abortive and he is offered more than the reserve price (o) . 7. To deliver goods sold, without payment, or to allow a set- oflE due from the vendor to the purchaser (p). 8. To deal, after sale, with the terms on which a title shall be made {q). He is an agent for sale only {q). 4. Counsel. Where counsel is employed to conduct a case, he has implied authority — 1. To consent to a nonsuit (r), or to the withdrawal of a juror (s). 2. To compromise or abandon the claims of his client, or give an undertaking on his behalf, in respect of all matters within the scope of the suit or matter (t). 3. To enter into an agreement with the counsel on the other side as to the subject-matter of the suit or matter, or as to costs (u). 4. To consent to an order (x). 5. Generally, to do all other things appertaining to the con- duct of the case, according to his absolute discretion (y) . (o) Marsh v. Jelf, 1862, 3 F. & F. 234 ; Daniel v. Adams, 1764, Ambl. 495. (jo) Srown v. Staton, 1816, 2 Oldt. 353. (g) Seton V. Blade, 1802, 7 Ves. 276 ; 6 E. E. 124. (/) Lijnch Y. Coel, 1865, 12 L. T. 548; 13 W. E. 846. (s) Strauss v. Francis, 1866, L. E. 1 Q. B. 379 ; 35 L. J. Q. B. 133 ; 12 Jur. N. S. 486 ; 14 L. T. 326 ; 14 W. E. 634. (<) Se Wood, ex p. Wetiham, 1872, 21 W. E. 104. {u) Strauss v. Francis, supra; Bwinfen v. Swinfen, 1858, 2 De G. & J. 381 ; 3 Jut. N. S. 1109 ; 4 Jur. N. S. 774 ; 27 L. J. Ch. 35, 491. (a;) Mole v. Smith, 1820, 1 Jac. & Walk. 673 ; Be Eohler, 1844, 8 Beav. 101 ; Furnival v. Bogle, 1827, 4 Euss. 142. (?/) Stratiss V. Francis, supra, note (s) ; Lynch v. Ooel, supra, note '!>)• AUTHORITY. 73 5. Solicitors. A solicitor has implied authority — 1. To reeeiye payment of a deht for which he is instructed to sue (z). 2. To receive the consideration for a deed upon its production duly executed and contaiaing a receipt for such consideration by the person entitled to give a receipt therefor (a). 3. Where he is authorized to appear in an action — (a) to compromise (6), or refer the subject-matter thereof to arbitration (c) ; (b) to abandon the claims of his client, provided that they are within the scope of the action, but not where they are collateral thereto {d) ; (c) to enter into an undertaking in reference to the subject- matter thereof (e). 4. Where he is authorized to proceed to satisfaction — (a) to issue and indorse a writ of Ji. fa., and do all other acts necessary to obtain the fruits of the judgment (/) ; (b) to order the sheriff to withdraw from possession under a vnitoifi.fa. (g) ; (z) Tafes v. Frechleton, 1781, 2 Doug. 623. Also the solicitor's London agent wto issues and indorses the writ : Weary v. Alderson, 1837, 2 M. & Eob. 127. (a) Conveyancing Act, 1881, s. 56; Trustee Act, 1893, s. 17, extending the principle to solicitors of trustees. (6) Butler v. Knight, 1867, L. E. 2 Ex. 109 ; 36 L. J. Ex. 66 ; 15 L. T. 621 ; 15 "W. E. 407 ; Pristwick v. Foley, 1865, 18 0. B. N. S. 806 ; 34 L. J. 0. P. 189 ; 11 Jur. N. S. 583 ; 12 L. T. 390. (c) Faviell v. Eastern Counties Bail. Co., 1848, 2 Ex. 344 ; 6 D. & L. 54 ; 17 L. J. Ex. 297 ; Smith v. Troup, 1849, 6 D. & L. 679 ; 7 0. B. 757 ; 18 L. J. 0. P. 209. {d} Be Wood, ex p. Wenham, 1872, 21 W. E. 104. (e) Be Commonwealth Land, &c. Co., ex p. Hollington, 1873, 43 L. J. Ch. 99 ; 29 L. T. 502 ; 22 W. E. 106. (/) Jarmain v. Sooper, 1843, 1 D. & L. 769 ; 6 M. & G. 827; 13 L. J. 0. P. 63 ; 8 Jur. 127 ; Morris v. Salberg, 1889, 22 Q. B. D. 614 ; 61 L. T. 283, 0. A. {g) Levi v. Ablott, 1849, 4 Ex. 588 ; 19 L. J. Ex. 62. 74 IMPLIED (c) to compromise, after judgment {h) . A solicitor has no implied authority, as such — 1. To interplead or agree to postpone execution after a judg- ment in his client's favour, he being then functus officio, unless authorized to proceed (i). 2. To direct the sheriff to seize particular goods, when issuing a writ of fi.fa., or otherwise to interfere with the sheriff in the performance of his duties (/«). 3. To institute any action or suit {I). 4. To sign a memorandum of a contract of which he is in- structed to prepare a draft, so as to satisfy the provisions of the Statute of Frauds {m). 5. To receive the purchase-money for an estate (except on production of a deed, as above («).) 6. To pledge the credit of his client to counsel for fees (o). 7. To take special journeys, or go to foreign parts, on his client's behalf {p). 6. Shipmasters. The extent of a shipmaster's authority to sell or hypothecate the ship or cargo {q), or to bind his principals personally by eon- {h) Butler v. Knight, 1867, L. E. 2 Ex. 109 ; 36 L. J. Ex. 66 ; 15 L. T. 621; 15 W. E. 407. (») James Y. Bichnell, 1887, 20 Q,. B. D. 164; 57 L. J. Q. B. 113; 58 L. T. 278; Lovegrove v. White, 1871, L. E. 6 0. P. 440; 40 L. J. 0. P. 253 ; 24 L. T. 554 ; 19 W. E. 823. (k) Smith V. Keal, 1882, 9 Q. B. D. 340; 47 L. T. 142; 31 W. E. 76. (l) Wright v. Castle, 1817, 3 Meriv. 12 ; 17 E. E. 3. (m) Howard v. Braithwaite, 1812, 1 Ves. & B. 202; Smith v. Webster, 1876, 3 Ch. Div. 49 ; 45 L. J. Cli. 528 ; 35 L. T. 44 ; 24 W. E. 894. (n) Viney v. Chaplin, 1858, 2 De G. & J. 468 ; 27 L. J. Oh. 434 ; 4 Jur. N. S. 619. (o) Moatyn v. Moatyn, 1870, L. E. 5 Oh. 457 ; 39 L. J. Oli. 780 ; 22 L. T. 461 ; 18 W. E. 657. {p) Re Snell, 1877, 5 Oh. Div. 815; 36 L. T. 534; 25 W. E. 736. \q) The Earnak, 1869, L. E. 2 P. 0. 505 ; 38 L. J. Adm. 57 ; 21 L. T. 159; 6 Moo. P. 0. 0. (N. S.) 136, P. C; The Gaetano and Maria, 1882, 7 P. D. 137; 51 L. J. Ad. 67; 46 L. T. 835; 4 Asp. M. 0. 470, 0. A.; The August, (1891) P. 328 ; 60 L. J. P. 57 ; 66 L. T. 32. AUTHORITY. 75 • tract (r), is determined by the law of the country to which the ship belongs (s), and the ship's flag operates as notice to all the world that the master's authority is limited by the law of that flag(r). Thus, if an English cargo be hypothecated by the master of an Italian ship,- the validity of the bond is governed by Italian law, and if found to be valid by that law, it will be enforced by the English Courts, although the conditions required for its validity by English law were not fulfilled (t). A shipmaster is appointed for the purpose of conducting the voyage on which the ship is engaged to a favourable termina- tion, and has implied authority to do aU things necessary for the due and proper prosecution of that voyage (ti). He has also implied authority to enter into contracts in respect of the usual employment of the ship (v). But he can only bind personally those owners who appointed him or were privy to his appoint- ment (a?) . The mere fact that a person is a registered owner of the vessel is not sufficient to render him liable on the master's contracts; it must appear that the master is or has been held out as his agent (») . The master of a British ship has implied authority — 1. To contract for the conveyance of merchandise according to the usual employment of the ship («/) . 2. To enter into a charter-party on behalf of the owners when he is LQ a foreign port and there is difficulty in communicating with the owners (z) . (r) Lloyd v. Ouibert, 1865, 6 B. & S. 100; 33 L. J. Q. B. 241; 35 L. J. Q. B. 74; 10 Jut. N. S. 949; 10 L. T. 570; 6 B. & S. 120. (s) See note {q), supra, p. 74. (<) The Oaelano and Maria, supra, note (g). (m) Arthur v. Barton, 1840, 6 M. & W. 138; Beldon v. Camphell, 1851, 6 Ex. 886. (v) Grant r. Norway, 1851, 10 C. B. 665; 20 L. J. 0. P. 93; 15 Jur. 296; McLean v. Fleming, 1871, 2 H. L. So. App. 128; 25 L. T. 317, H. L. (a;) Mackenzie v. Pooley, 1856, 11 Ex. 638; 25 L. J. Ex. 124; Mitcheson V. Oliver, 5 B. & B. 419. [y) Binquist v. Ditchell, 3 Esp. 64. (z) The Fanny, The Matilda, 5 Asp. M. 0. 75 ; 48 L. T. 771 ; Grant v. Norway, supra, note {v). 76 IMPLIED 3. To enter into reasonable towage agreements (a). 4. To enter into salvage agreements, if necessary for the owners' benefit ; but not merely for the purpose of saving the lives of the master and crew without regard to saving the owners' property. A salvage agreement operates as a charge on the property saved, and is only binding to the extent of the value of that property {b). 5. To pledge the owners' credit, at home or abroad, for fit and proper repairs and stores necessary for the equipment of the vessel on her voyage, and such as a prudent owner himself would order (c), provided that it is reasonably necessary to obtain them on the owners' credit (d). 6. To borrow money on the owners' credit, at home or abroad, if the advance is necessary for the prosecution of the voyage, communication with the owners is not practicable, and there is no solvent agent of the owners on the spot (e). To render the owners liable for such an advance, the lender must prove — (1) that there was a reasonable necessity, according to the ordinary course of prudent conduct, to borrow on the owners' credit (d) (this is a question of fact for the jury (e) ) ; (2) that the amount was advanced expressly for the use of the ship (/) ; and (3) that the money was expended on the ship (g). There is no implied authority to pledge the credit of the owners when they can reasonably be communicated v^ith (e), or for the purpose of pay- ing for services already rendered (e), or when there is a solvent (a) Wellfieldr.Ada'mson{TheAlfred),188i, 5 Abt^.'M..0.2U; 60L.T.511. (5) The Benpor, 1883, 8 P. D. -115 ; 52 L. J. P. 49 ; 5 Asp. M. 0. 98. (c) Frost v. Oliver, 1853, 1 0. L. E. 1003 ; 22 L. J. Q. B. 353 ; 18 Jur. 166 ; Webster v. Seehamp, 1821, 4 B. & A. 352. (d) Ounn v. Roberts, 18Y4, L. E. 9 0. P. 331 ; 43 L. J. 0. P. 233 ; 30 L. T. 424; 22 W. E. 652; Edwards v. Havill, 1853, 14 0. B. 107; 2 0. L. E. 1343; 23 L. J. C. P. 8; 17 Jur. 1103. (e) Arthur y. Barton, 1840, 6 M. & W. 138; Beldon v. Oamphell, 1851, 6 Ex. 886 ; Stonehouse v. Grant, 1841, 2 Q,. B. 431 ; Johns v. Simons, 1842, 2 a B. 425; Edwards v. Havill, 1853, 14 C. B. 107; 2 0. L. E. 1343, 23 L. J. C. P. 8; 17 Jur. 1103; Bocher v. Busher, 1815, 1 Stark. 27; 18 E. E. 742. (/) Thacher v. Moates, 1831, 1 M. & Eob. 79. {g) Boyle v. Atty, 1818, Gov, 60. AUTHORITY. 77 agent on the spot {h). But the state of accounts between the owners and the master does not affect his implied authority to borrow on their credit {i). 7. To hypothecate the ship, cargo, and freight (bottomry) when communication with the respective owners is impractic- able (y), and it is necessary to obtain supplies or repairs in order to prosecute the voyage, and impossible to obtain them on personal credit, or in any other way than by hypothecation {k) . But there is no impKed authority to hypothecate either ship or cargo for necessaries abeady siipplied {k), or without communi- cating with the respective owners where practicable (/), or for the purpose of obtaining personal freedom from arrest {I), or where it is possible to obtain supplies in any other way {k) . Where ship and cargo are hypothecated for repairs, the shipowners are bound to indemnify the owners of the cargo from liability under the bond (m). 8. To hypothecate the cargo alone (respondentia), when it is necessary for the benefit of the cargo or for the prosecution of the voyage (n), and communication with the owners is im- practicable (o). The master has no implied authority to hypothecate or do any act seriously affecting the value of the cargo without first communicating, if practicable, with the owners thereof (o). (A) See note {d), supra, p. 76. (i) Williamson v. Page, 1844, 1 0. & E. 581. [j] Kleinwort v. Cassa Marrittima Genoa, 1877, 2 App. Cas. 156; 36 L. T. 118; 25 W. E. 608, P. 0. {h) The Heraey, 1837, 3 Hagg. Ad. 404; Eussie v. Christie, 1807, 13 Yes. 599 ; 9 East, 426 ; 9 E. E. 585. {I) Smith v. Oould, 1842, 4 Moo. P. C. 0. 21 ; 6 Jur. 543, P. 0. (m) Duncan v. Benson, 1849, 1 Ex. 537 ; 17 L. J. Ex. 238. Affirmed sub nom. Benson v. Duncan, 3 Ex. 644 ; 18 L. J. Ex. 169, Ex. Oh. (n) Cargo Y. Sultan, 1859, 5 Jur. N. S. 1060; Swa. 504; The Gratitudine, 1801, 3 Eob. 240. (o) The Onward, 1873, L. E. 4 Ad. 38 ; 42 L. J. Ad. 61 ; 28 L. T. 204; 21 W. E. 601 ; The Hamburgh, 1863, 2 Moo. P. 0. 0. (N. S.) 289 ; 33 L. J. Ad. 116; 10 Jur. N. S. 600; 10 L. T. 206; 12 W. E. 628, P. 0. 78 IMPLIED 9. To sell the ship, in eases of ahsolute or urgent necessity, when it is not practicable to communicate with the owners (p). The master is justified in selling the ship only in cases of urgent necessity, and the burden of proof lies on the party seeking to uphold the sale (q). It must be such a necessity as leaves him no alternative as a prudent and skilful man, acting in good faith for the best interests of all concerned, and with the best judgment that can be formed under the circumstances, except to sell the ship as she lies. If he sells hastily, either without sufficient examination into the condition of the ship, or without having previously made every exertion in his power with the means then at his disposal to extricate her, the sale is invalid, even if the danger at the time appeared exceedingly imminent (r). But i£ in con- sequence of damage it is impossible to prosecute the voyage, or there is no prospect of completing it (s), or if the ship is in a foreign port, and cannot be repaired except at such a cost as no prudent person would venture to incur, the master has implied authority to sell her (t). 10. To sell part of the cargo — but not the whole — where repairs are absolutely necessary for the prosecution of the voyage, and communication with the owners of the cargo is imprac- [p) The Auatralia, 1859, Swa. 480 ; 13 Moo. P. 0. 0. 132, P. 0. ; The Margaret Mitchell, 1858, Swa. 882; 4 Jur. N. S. 1193. {q) Gohequid Marine Ins. Co. v. Barteaux, 1875, L. E. 6 P. 0. 319 ; 32 L. T. 510; 23 W. E. 892 ; Knight v. Faith, 1850, 15 Q. B. 649; 19 L. J. Q. B. 509 ; 14 Jur. 1114 ; Oammell v. Sewell, 1860, 5 H. & N. 728 ; 29 L. J. Ex. 350 ; 6 Jur. N. S. 918 ; 8 W. E. 639, Ex. Ch. Held necessary in The Glasgow, 1856, Swa. 145 ; The Victor, 1865, 13 L. T. 21 ; The Australia, 1859, Swa. 480; 13 Moo. P. 0. 0. 132, P. 0. ; Ireland v. Thomson, 1847, 4 0. B. 149 ; 17 L. J. 0. P. 241. Sale set aside as unnecessary in The Bonita v. The Charlotte, 1861, 30 L. J. Ad. 145; 5 L. T. 141; Lush. 253 ; The Eliza Cornish, or The Segreda, 1863, 1 Spinks, 36 ; 17 Jur. 738. (r) Cobequid Marine Ins. Co. v. Barteaux, supra. (s) Ireland r. Thomson, 1847, 4 0. B. 149 ; 17 L. J. 0. P. 241 ; Hunter V. Parker, 1840, 7 M. & W. 322. (*) The Australia, 1859, 13 Moo. P. 0. 0. 132 ; Swa. 480, P. 0. AUTHORITY. 79 ticable (u) . But it is only in eases of extreme necessity, and only after lie lias done everything in his power to carry the cargo to its destination, that he has implied authority to sell any portion thereof (x). He has no implied authority, in any case, to stop the voyage and sell the whole of the cargo in a foreign port, even if it is impossible to prosecute the original voyage, and the sale is most beneficial for the owners under the circum- stances (x). The master of a British ship has no implied authority — 1. To vary any contract made by the owners (y). 2. To agree for the substitution of another voyage in place of that agreed upon between the owners and freighters, or make any contract outside the scope of that voyage (z). 3. To hold out any person as an agent to charter the vessel (a) . 4. To sign a bill of lading for goods not actually received (5), or for a greater quantity than are actually received on board (c), or at a lower freight than the owners contracted tov{d). His authority is limited to signing for goods actually received on board, and all persons taking a bill of lading, by indorsement or otherwise, are deemed to have notice that his authority is so limited (c). The 3rd section of the 18 & 19 Yict. c. Ill- providing that every bill of lading, in the hands of a consignee («) The Oratitudine, 1801, 3 Eob. 240; Australian Steam Navigation Co V. Morse, 1872, L. E. 4 P. 0. 222 ; 27 L. T. 357 ; 20 "W. E. 728 ; 8 Moo, P. 0. C. (N. S.) 482, P. 0. ; Duncan v. Benson, 1849, 1 Ex. 537; 17 L. J. Ex. 238 : afllnned suh nam. Benson v. Duncan, 3 Ex. 644 ; 18 L. J. Ex, 169, Ex. Ok. (x) Atlantic Marine Ins. Co. v. Suth, 1879, 16 Ch. D. 474; 44 L. T. 67 29 W. E. 387, 0. A. ; Wilson v. Millar, 1816, 2 Stark. 1 ; 19 E. E. 670 Joseph V. Knox, 1813, 3 Camp. 320 ; Van OmeronY. Dowich, 1809, 2 Camp, 42; HE. E. 656. {y) Grant v. Norway, 1851, 10 0. B. 665; 20 L. J. 0. P. 93; 15 Jur, 296. (z) Burgon v. Bharpe, 1810, 2 Oamp. 529 ; 11 E. E. 788. (a) The Fanny, The Matilda, 5 Asp. M. 0. 75 ; 48 L. T. 771. (6) Grant v. Norway, supra, note {y). (c) EuUersty v. Ward, 1853, 8 Ex. 330; 22 L. J. Ex. 113. {d) Pickernell y. Jauherry, 1862, 3 P. & F. 217. 80 DELEGATION or indorsee for valuable consideration, representing goods to have been shipped on board a vessel, shall be conclusive evidence of such shipment against the master or other person signing the same, notwithstanding such goods or part thereof may not have been shipped — applies only as against the persons who have actually signed the bill of lading (e), and does not make the master's signature conclusive evidence against the owners (/). The master's signature is prima, facie evidence against the owners that the goods were put on board {g), but they are permitted to prove that in fact they were not (/). Article 39. DELEGATION OF AUTHORITY. No agent has power to delegate his authority to a sub-agent, or to appoint a deputy or substitute to do any act on behalf of the principal, except with the express or implied authority of the principal. The authority of the principal is implied — (1) Where the employment of a sub-agent is justified by the usage of the particular trade or busi- ness in which the agent is employed, pro- vided that such usage is not inconsistent with the express terms of the agent's autho- rity or instructions {K) . (e) Je&id V. Bath, 1867, L. E. 2 Ex. 267 ; 36 L. J. Ex. 149 ; 15 W. E. 1041. (/) Meyer v. Bresmr, 1864, 16 C. B. N. S. 646; 33 L. J. 0. P. 289; 10 L. T. 612; 12 W. E. 983; Brown r. Powell Duffryn Steam Coal Co., 1875, L. E. 10 0. P. 562 ; 44 L. J. 0. P. 289 ; 32 L. T. 621 ; 23 W. E. 549. {g) M'Lean v. Fleming, 1871, 2 H. L. Sc. App. 128; 25 L. T. 317, H. L. {h) JJeBusscheY. Alt, 1877, 8 Oh. Div. 286 ; 47 L. J. Oh. 381 ; 38 L. T. 370, 0. A. OF AUTHORITY. 81 (2) Where the principal knows, at the time of the agent's appointment, that the authority will be executed by a substitute (i). (3) Where, from the conduct of the principal and agent, it may reasonably be presumed to have been their intention that the agent should have power to delegate his authority (k). (4) Where, in the course of the agent's employment, unforeseen emergencies arise which impose upon him the necessity of appointing a sub- stitute (k). (5) Where the authority conferred is of such a nature as to necessitate its execution by means of a deputy (^'). (6) Where the act done is purely ministerial, and does not involve confidence or discretion (I). The maxim "Delegatus non potest delegare " is founded on the confidential character of the contract of agency, and whenever authority is coupled with a discretion or confidence, it must, as a general rule, be executed by the agent in person {rn). Thus, {i) Quebec and Richmond Rail. Co. t. Quinn, 1858, 12 Moo. P. 0. 0. 232, P.O. (k) Be Bussche v. Alt, supra, note {li). {I) Mason v. Joseph, 1804, 1 Smitli, 406; Rossiter v. Trafalgar Life Assurance Co., 1859, 27 Beav. 377; Coles v. TrecotUch, 1804, 9 Ves. 234; 1 Smith, 233 ; 7 E. E. 167. ^^ (m) Combe's case, 9 Co. E. 75 (vol. 5, p. 135) ; Blore v. Sutton, 1816, 3 Meriv. 237 ; 17 E. E. 74. B. G 82 DELEGATION OF AUTHORITY. auctioneers (w), factors (o), directors (/>), liquidators (j), brokers (r), arbitrators (s), &c., have, in general, no implied authority to act through sub-agents. So, where a shipmaster was authorized to sell certain goods, it was held that he had no implied authority to send them on to another person for sale, though he was unable himself to find a purchaser (t). So, it was held that four liquidators had no power to autho- rize one of their number to accept bills of exchange on behalf of them all, but that they might authorize him to accept a par- ticular bill on their behalf («*). The execution of the former authority required discretion ; the latter was an authority to do a purely ministerial act. So, where a tenant for life had a power to lease, and a memorandum of a contract for a lease was signed by his agent's clerk with the approval of the agent and in the ordinary course of business, it was held that the memorandum was not sufficient to satisfy the provisions of the 4th section of the Statute of Frauds, not having been signed by a didy autho- rized agent, within the meaning of that statute (x). On the other hand, authority to draw bills of exchange in the principal's name may be exercised through the agent's clerk (y), and an authority to indorse a particular bill in the principal's name may be delegated (z), because such acts are purely ministerial and involve no discretion. (n) Coles Y. TrecotUck, 1804, 9 Ves. 234 ; 1 Smitli, 233 ; 7 E. E. 167. (o) Cochran v. Mam, 1814, 2 M. & S. 301 ; 15 E. E. 257 ; Catlin v. Sell, 1815, 4 Camp. 183. [p) Howard's case, 1866, L. E. 1 Oh. 561. {q) JSx p. Birmingham Banking Co., 1868, L. E. 3 Oh. 651. (r) Henderson v. Barnewell, 1827, 1 T. & J. 387; Cochran v. Irlam, 1814, 2 M. & S. 301; 15 E. E. 257. (s) Little Y. Newton, 1841, 2 M. & G. 351 ; 2 Scott, N. E. 159. {t) Catlin V. Bell, 1815, 4 Camp. 183. (m) Ex p. Birmingham Banking Co., supra. {x) Blore v. Sutton, 1816, 3 Meriv. 237 ; 17 E. E. 74. And see Doe v. Bohinson, 1837, 3 Bing. N. 0. 677. (y) Ex p. Sutton, 1788, 2 Cox, 84. (z) Lord Y. Hall, 1848, 2 C. & K. 698. PBINCIPAL AND SUB-AGENT. 83 Acquiescence of principal. — Where the highest bidder at a sale by auction was an agent, and the auctioneer entered his name as buyer without objection by the principal, who was present at the sale, it was held that such entry was a sufficient memorandum of the contract to satisfy the Statute of Erauds as against the principal, on the ground of his acquiescence in the appointment of the auctioneer as a sub-agent [a). Solicitors^ town agents. — A country solicitor has implied autho- rity to act through his London agent when necessary or usual in the ordinary course of business, and the acts of such agent in reference to the matters intrusted to him bind the client [b). But a solicitor cannot delegate his entire employment to his London agent so as to make the agent his client's solicitor (c). Article 40. PEINCIPAL AND SUB-AGENT. Where an agent delegates his entire employment to a substitute, with the knowledge and consent of the principal, privity of contract may arise between the principal and the substitute, so as to render the sub- stitute responsible to the principal for the proper performance of his duties [d). But there is no privity of contract between a principal and sub-agent, as such, whether the sub-agent was appointed with the autho- (a) White v. Proctor, 1811, 4 Taunt. 209; 13 E. E. 580; Coles y. TrecotUck, 1804, 9 Yes. 234 ; 1 Smith, 233 ; 7 E. E. 167. (6) Griffiths v. Williams, 1787, 1 T. E. 710; Weary v. Alderson, 1837, 2 M. & Eob. 127. See Article 40, Illustrations 7 and 8. (c) Wray v. Kemp, 1883, 26 Ch. Div. 169; 53 L. J. Oh. 1020; 50 L. T. 552. {d) BeBussche v. Alt, 1877, 8 Ch. Div. 286; 47 L. J. Oh. 381 ; SSL. T. 370, 0. A. ; Illustration 1 . It is not easy to reconcile this decision with the cases cited in Illustrations 2 and 3. G 2 84 PKIXCIPAL rity of the principal or not, and the rights and duties arising out of the contracts between the principal and agent and between the agent and sub-agent respec- tively, are only enforceable by and against the imme- diate parties thereto (e) . Where a sub-agent is appointed without the autho- rity, express or implied, of the principal, the principal is not bound by his acts(/). Illmtrations. 1. A ship was consigned to A., an agent in China, for sale, a minimum price being fixed. A., with the knowledge and consent of the principal, employed B. to sell the ship. B., being unable to find a purchaser, bought the ship himself at the minimum price, and subsequently resold her at a large profit. It was held that privity of contract existed between the princi- pal and B., and that B. was liable to account to the principal for the profit made on the re-sale (g) . 2. A factor was employed to sell goods on a del credere com- mission. The factor, with the principal's authority, employed a broker on an ordinary commission to sell the goods. The broker sold the goods and received the proceeds, and made pay- ments on account to the factor from time to time. While the balance of the proceeds was still in the hands of the broker, the factor, being then indebted to the broker in respect of other inde- pendent transactions, became bankrupt. Held — (1) that there (e) New Zealand and Australian Land Co. v. Watson, 1881, 7 Q. B. D. 374 ; 50 L. J. Q. B. 433 ; 44 L. T. 675 ; 29 W. E. 694, 0. A. ; Bobbins v. Fennell, 1847, 11 Q. B. 248; 17 L. J. Q. B. 77; 12 Jur. 157; Schmaling V. Tomlinson, 1815, 6 Taunt. 147 ; 1 Marsh. 500; Ulustrations 2 to 8. (/) See Boe v. Robinson, 1837, 3 Bing. N. 0. 677; Blore v. Sutton, 1816, 3 Meriv. 237. {g) Be Bussclie v. Alt, 1877, 8 Oh. Div. 286 ; 47 L. J. Ch. 381 ; 38 L. T. 370, 0. A. Compare witli Illustration 2. AND SUB-AGENT. 85 was no privity of contract between the principal and the broker; (2) that the broker was not liable to account to the principal for the proceeds of the goods sold ; (3) that the principal was not entitled to recover the balance of the proceeds from the broker in the factor's name without allowing the amount due from the factor to the broker in respect of other transactions to be set off, though the broker had reason to believe that the factor was acting as an agent (h). 3. An agent appointed a sub-agent to manage the principal's affairs. The sub-agent took over the entire management thereof, and communicated with the principal direct. Held, that the sub-agent was not liable to render an account of his agency to the principal («). The general rule is that sub-agents must account to the agents employing them, and the agents to their principals (k). An agent is only liable to account to his own principal (l) . 4. A. employs B. to transport goods to a foreign market. B., without A.'s knowledge or consent, delegates his entire employment to C. There is no privity of contract between A. and C, and A. is not liable to C. for his charges, even if he has not paid B. for the services rendered (m). 5. A. employs B. to procure a loan on usual terms. B. em- ploys 0., who obtains a loan on terms which are unusual. A. is (h) New Zealand and Australian Land Oo. v. Watson, 1881, 1 Q. B. D. 374 ; 50 L. J. Q. B. 433 ; 44 L. T. 675 ; 29 W. E. 694, C. A. See, how- ever, Blackburn v. Mason, 1893, 68 L. T. 510 ; 9 T. L. E. 286 ; 4 E. 297, 0. A. (i) Lockwood v. Aidy, 1845, 14 Sim. 437; 9 Jur. 267. And see Oart- wri'ght v. HateUy, 1791, 1 Ves. jun. 292 ; 3 Bro. C. 0. 238. {k) Stephens v. Badcock, 1831, 3 B. & Ad. 354; Sims v. Brittain, 1832, 1 N. & M. 594 ; 4 B. & Ad. 375 ; Montagu v. Forwood, (1893) 2 Q. B. 350 ; 69 L. T. 371 ; 9 T. L. E. 634 ; 42 W. E. 124 ; 4 E. 579, 0. A. [1) AU.-Gen. v. Chesterfield, 1854, 18 Beav. 596; 18 Jur. 686; 2 W. E. 499 ; Pinto v. Santos, 1814, 1 Marst. 132 ; 5 Taunt. 447. See also Kinloch V. Secretary of State for India, 1882, 7 App. Gas. 619 ; 61 L. J. Oh. 885 ; 47 L. T. 133 ; 30 W. E. 845, H. L. ; Maw v. Pearson, 1860, 28 Beav. 196. (m) Schmahng v. Tomlinson, 1816, 1 Marsh. 600 ; 6 Taunt. 147. 86 PRINCIPAL not liatle to C. for commission, unless he ratifies the terms of the loan and recognizes O.'s employment (n). 6. A factor delegates his employment without the authority of the principal. The sub-agent has no lien for duties, &c., paid by him, as against the principal (o). Solicitors' toion agents. 7. The London agent of a country solicitor, in the ordinary course receives, as such, the proceeds of a cause in which he is engaged. There is no privity of contract between the client and the London agent, and the client cannot recover the proceeds from him as money received to the client's use {p) . So, a London agent, in the ordinary course, gives credit to the country solicitor and not to the client, and has no remedy, except his lien, against the client for costs, and such lien, as against the client, is limited to the amount due from the client to the country solicitor {q) . The Court may, however, in exercise of its summary jurisdiction over its own officers, order a London agent to pay over to the client money received, the agent claiming to retain the amount in satisfaction of a debt due to him from the country solicitor {q), or having received it without the authority of either the country solicitor or the client (r). 8. A client gives money to his solicitor to pay a debt and costs. The solicitor remits the amount, by means of his own cheque, to his London agent for the purpose of paying such debt and costs. The agent retains the amount in satisfaction of a debt due to him from the solicitor. The agent is not liable to the client in an action for money had and received to (n) Mason v. Clifton, 1863, 3 F. & F. 899. (o) Solly V. Bathbone, 1814, 2 M. & S. 298. Ip) Bobbins v. Femiell, 1847, 11 Q. B. 248; 17 L. J. Q. B. 77 ; 12 Jur. 137. (?) Ex p. Edwards, re Johnson, 1881, 7 Q. B. D. 155; 8 Q. B. D. 262; 51 L. J. a B. 108; 45 L. T. 578, C. A.; Waller v. Holmes, 1860, 1 Johns. & H. 239; 30 L. J. Oh. 24; 6 Jur. N. S. 1367. [r) Bobbins v. Fennell, supra. AND SUB-AGENT. 87 the client's use (s). So, if a London agent receives money improperly, the remedy of the client is against his own solicitor, not against the agent (t). (s) Colh V. BecJce, 1845, 6 Q. B. 930 ; 14 L. J. Q. B. 108 ; 9 Jur. 439. See, however, Exp. Edwards, supra, note (g). if) Gray v. Kirly, 1834, 2 D. P. 0. 601. See, towever, Bobbins v. Fennell, supra, note {p). 88 DUTIES CHAPTER VI. Duties of Agents. Article 41. DUTY TO PERFORM HIS UNDERTAKING. Every agent who enters into an undertaking for valuable consideration is bound to perform the under- taking (a) ; but no agent is bound to perform what he has undertaken to do gratuitously (J). Every agent must act in person, unless he is expressly or impliedly authorized by the principal to delegate his duties (c). Article 42. DUTY TO OBEY INSTRUCTIONS, OR ACT ACCORDING TO USAGE AND FOR THE PRINCIPAL'S BENEFIT. It is the duty of every agent to strictly pursue the terms of his authority and obey the instructions of his principal (d), except where the instructions are (a) Turpin v. BiUon, 1843, 5 Man. & G. 455 ; 6 Scott, N. E. 447 ; 12 L. J. C. iP. 167 ; 7 Jur. 950. (b) Coggs v. Bernard, 2 Ld. Eaym. 909 ; Smith, L. 0. (Pth ed.), 201 ; Balfe V. West, 1853, 13 C. B. 466 ; 22 L. J. 0. P. 175 ; Elsee v. Gatward, 1793, 5 T. E. 143. (c) See Article 39. (d) Illustrations 1 to 4. Smart v. Bandars, 1846, 3 0. B. 380; 16 L. J. C. P. 39 ; 10 Jur. 841 ; Pariente y. Luhhock, 1855, 20 Beav. 588 ; 5 De G. M. & G. 5 ; Bertram v. Oodfray, 1830, 1 Knapp, P. 0. 0. 381. OF AGENTS. 89 illegal (e) ; and, in the absence of express instructions, to act according to usage (/), or where there is no special usage, and in all matters left to his discretion, to act in good faith to the best of his judgment solely for the benefit of the principal [g). Illustrations. 1. An agent is instructed to sell certain shares when the funds reach 85 or more. He is bound to sell when the funds reach 85, and has no discretion to wait until they go higher (/«). 2. A. by letter requests B. to purchase 150 bales of cotton and forward a bill of lading, in exchange for which A. under- takes to accept B.'s draft. B. accepts the commission. B. is bound to forward the bill of lading as soon as possible, and is not entitled to retain it until A. gives security for payment. If he does so retain it, A. is justified in refusing to accept the cotton («). 3. A foreign merchant sends a bill of lading to his correspon- dent in England with instructions to insure the goods. If the correspondent accepts the bill of lading he is bound to insure {k). 4. A solicitor, retained to conduct an action, is expressly in- (e) Illustration 5. Bexwell v. Christie, 1776, Cowp. 395; Ex p. Mather, 1797, 3 Ves. 373. (/) Illustrations 6 to 9. Lambert y. Heath, 1846, 15 M. & "W. 486; Solomon v. Barker, 1862, 2 F. & P. 726; Foster v. Pearson, 1835, 1 0. M. & E. 849 ; 5 Tyr. 255 ; Moore v. Mourgue, 1776, Cowp. 479. (g) Oray v. Haig, 1854, 20 Beav. 219 ; General Exchange Bank v. Horner, 1869, L. E. 9 Bq. 480 ; 39 L. J. Oh. 393 ; 22 L. T. 693 ; 18 W. E. 414 ; Henchman v. East India Co., 1791, 1 Ves. jun. 289 ; Owatkin V. Campbell, 1854, 1 Jur. N. S. 131 ; Pariente r. Lubbock, 1855, 20 Beav. 588 ; 5 De G. M. & G. 5 ; Clarke v. Tipping, 1846 ; 9 Beav. 284 ; Comber V. Anderson, 1808, 1 Oamp. 523 ; Byas v. Cruise, 1845 ; 2 J. & L. 460 ; 8 Ir. Eq. E. 407. (h) Bertram Y. Godfray, 1830, 1 Enapp, P. 0. 0. 381, P. 0. (»■) Barber v. Taylor, 1839, 5 M. & W. 527. (A) Smith V. Lascelles, 1788, 2 T. E. 187 ; 1 E. E. 457. 90 DUTIES struoted by the client not to enter into any compromise. It is his duty to obey his client's instructions, even if the counsel engaged in the case advise a compromise (l). 5. An auctioneer, at a sale without reserve, is instructed by the vendor not to sell for less than a certain sum. Such instruc- tions are illegal, and it is the duty of the auctioneer to accept the highest bond fide bid even if it be less than the sum men- tioned {m). 6. A stockbroker is instructed to sell certain shares. It is his duty to sell for ready money, according to usage, in the absence of special directions to the contrary (m). 7. It is the duty of an auctioneer, in the absence of special instructions, to sell for ready money only (o), but he may take a cheque in lieu of cash in payment of the deposit, according to the usual custom {p). An agent ought not, however, to accept a cheque in lieu of cash that he has been authorized to receive, unless it is customary to do so in the particular business in which he is employed {q). 8. Groods are intrusted to a broker for sale. It is usual in the particular trade to send an estimate of the value to the principal, in order that he may fix a reserve price. It is the broker's duty to send such an estimate to his principal (r) . 9. It is the duty of a house or estate agent, where he is (i!) Fray v. Voules, 1859, 1 El. & El. 839 ; 28 L. J. Q. B. 232 ; 5 Jur. N. S. 1253; 33 L. T. 0. S. 133; 7 W. E. 446. And see Sivinfen v. Swinfen, 1858, 2 De G. & J. 3S1 ; 4 Jur. N. S. 774; 27 L. J. Oh. 491, as to tlie duty of counsel to act according to his client's wishes. (to) Bexwell v. Christie, 1776, Oowp. 395. [n) Wiltshire v. Sivis, 1808, 1 Camp. 258 ; 10 E. E. 673. (o) Ferrars v. RoUns, 1835, 2 0. M. & E. 152; 1 Gale, 70; 5 Tyr. 705; Williams v. Evans, 1866, L. E. 1 Q. B. 352 ; 35 L. J. Q. B. Ill ; 13 L. T. 753 ; 14 W. E. 330. {p) Farrer v. Lacy, 1885, 31 Oh. Div. 42 ; 55 L. J. Oh. 149 ; 53 L. T. 515 ; 34 W. E. 22, 0. A. {q) Pape v. Westacott, 1893, (1894) 1 Q. B. 272; 63 L. J. Q. B. 222 ; 9 E. 55 ; 10 T. L. E. 51, 0. A., where a house agent accepted a cheque and was held liable for breach of duty. (r) Solomon v. Barker, 1862, 2 F. & F. 726. OF AGENTS. 91 instructed to find a puroliaser for property at a minimum price, to submit any offers which may be made to him to his principal, and not to enter into a contract for the sale of the property imless the principal has expressly authorized him to do so («). Execution of deeds under powers of attorney. — It was formerly necessary, in order to render a deed executed under a power of attorney binding on the principal, or to entitle him to sue thereon, that the deed should be executed in his name {t). But the Oonyeyancing Act, 1881 (44 & 45 Yict. c. 41), s. 46, pro- vides that the donee of a power of attorney may, if he thinks fit, execute or do any assurance, instrument, or thing, in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donoi: of the power ; and every assurance, instrument, and thing so executed and done shall be as effectual in law, to all intents, as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof. Article 43. DUTY TO KEEP PRINCIPAL'S PROPERTY SEPARATE, AND TO PRESERVE CORRECT ACCOUNTS. It is the duty of every agent — (a) to keep the money and property of his principal separate from his own and that of third persons (u) ; (b) to preserve and be constantly ready with cor- (s) Chadburne v. Moore, 1893, 61 L. J. Oh. 674; 67 L. T. 257; 41 W. E. 39; Earner v. Sharp, 1874, L. E. 19 Eq. 108; 44 L. J. Oh. 53; 31 L. T. 643. (t) See WMie y. Ouyler, 1795, 6 T. E. 176; 1 Esp. 200; 3 E. E. 147; Willcs v. Bach, 1802, 2 East, 142 ; 6 E. E. 409 ; Berkeley v. Hardy, 1826, 8 D. & E. 102 ; 5 B. & 0. 355 ; Frontin v. Small, 1726, 2Ld. Eaym. 1419 ; 2 Str. 705 ; Oomhe's case, 9 Co. E. 75. (m) Oray v. Haig, 1854, 20 Beav. 219; Glarlce v. Tipping, 1846, 9 Beav. 284; Guerreiro v. Peile, 1820, 3 B. & Aid. 616; 22 E. E, 500, 92 DUTIES rect accounts of all his dealings and transac- tions in the course of his agency (x) ; (c) to produce to the principal, or to a proper person appointed hj the principal, all docu- ments in his hands relating to the principal's affairs (?/); and (d) to pay over to the principal, on request, money received in the course of the agency to the use of the principal (s). Where an agent is permitted to retain for invest- ment money belonging to his principal, he is in the position of, and is under the same duties and liabilities as, a trustee (a). Where an agent fails to keep and preserve correct accounts, and is called upon for an account of his agency, everything will he presumed against him that is consistent with established facts (S). So, if he mixes the property of the principal with his own, everything not proved to be his own will be deemed to be the principal's (e). Where an agent pays his principal's money into his own {x) Gray v. Haig, 1854, 20 Beav. 219; Clarhe v. Tipping, 1846, 9 Beav. 284; Pearse v. Oreen, 1819, 1 Jao. &W. 135; 20 E. E. 258 ; Turnery. Burldnshaw, 1867, L. E. 2 Oh. 488 ; 15 W. E. 753 ; GoUyer v. Dudley, 1823, T. &E.421. {y) Dadswdl v. Jacobs, 1887, 34 Ch. Div. 278; 56 L. J. Oh. 233; 55 L. T. 857 ; 35 W. E. 261, 0. A. (The principal cannot call upon him to produce documents, &c., to an improper person, such as a rival or unfriendly person. Ihid.) (z) Harsant v. Blaine, 1887, 56 L. J. Q. B. 511, 0. A. ; Pearse v. Qreen, 1819, IJac. &W. 135; 20E. E. 258; EdgellY.Day, 1865, L. E. 1 0. P. 80; 35 L. J. 0. P. 7 ; 12 Jur. N. S. 27 ; 13 L. T. 328 ; H. & E. 8. (a) Burdich v. Garrich, 1870, L. E. 5 Oh. 233; 39 L.J. Ch. 369; 18 W. E. 387 ; Power v. Power, 1884, L. E. 13 Ir. 281. (6) Gray v. Haig, supra. (c) Liipton V. Wliite, 1808, 15 Ves. 432 ; 10 E. E. 94. OF AGENTS. 93' banking account, he is responsible for the amount, in the event of the failure of the banker, even if acting gratuitously {d). An agent who improperly refuses to pay over money on request is chargeable with interest from the date of the request (e). Article 44. DUTY TO EXERCISE DUE SKILL, CARE AND DILIGENCE (/), Every agent acting for reward is bound to exercise such skill, care, and diligence in the performance of the undertaking for which he is paid as is usual or necessary in or for the ordinary or proper pursuance of the profession or business in which he is em- ployed {g). Every agent acting gratuitously is bound to exercise such skill as he actually possesses, and such care and diligence as he would exercise in his own affairs {h) ; and if he has held himself out for the careful and skilful performance of a particular undertaking, then such care and skill as might reasonably be expected from one so holding himself out (i). (d) Massey v. Banner, 1820, 1 Jao. & W. 241 ; 4 Madd. 413 ; 21 E. E. 150. (e) Harsant v. Blaine, 1887, 56 L. J. Q. B. 511, 0. A. (/) See also Article 54, and illustrations thereto. {g) Beal v. South Devon Bail. Co., 1864, 3 H. & 0. 337 ; 11 L. T. 184; 12 W. E. 1115, Ex. Ct. ; Cassahoglou v. Oibhs, 1882, 9 Q. B. D. 220; 51 L. J. Q. B. 593; 47 L. T. 98: affirmed 11 Q. B. D. 797, 0. A.; Solomon V. Barker, 1862, 2 P. & F. 726 ; Bussell v. Hankey, 1794, 6 T. E. 12 ; 3 E. E. 102 ; Harmer r. Cornelius, 1858, 5 0. B. N. S. 236; 4 Jur. N. S. 1110. And see Illustrations 1 to 11, in all of which the agent was acting for reward. (h) MoffaU V. Bateman, 1869, L. E. 3 P. 0. 115; 22 L. T. 140; 6 Moo. P. 0. 0. (N. S.) 369, P. 0. ; Wilson v. Brett, 1843, 12 L. J. Ex. 264 ; 11 M. & W. 113 ; Illustrations 12 to 14. (i) Bealy. South Devon Rail. Co., supra; Illustration 14. 94 DUTIES Every agent is bound to take as much care in look- ing after the property and money of his principal as a reasonable degree of diligence would induce him to take in looking after his own property or money {k). Illustrations. 1. A house agent is employed to let houses, and is paid a commission of 5 per cent. He is bound to use reasonable care to ascertain the solvency of the tenants {I). 2. An insurance broker undertakes to effect a policy. He is bound to use due diligence to perform what he has undertaken within a reasonable time (w) . 3. An agent is employed to purchase a public-house. It is his duty to examine the takings, &c., and the fact that the principal has himself examined them on the advice of the agent does not exonerate him from liability for a breach of that duty (m). 4. An insurance broker is employed to insure from a par- ticular point. It is his duty to insert in the policy all the clauses usually inserted in an insurance from that point (o). 5. A broker is employed on commission to purchase and ship scrap iron. He is not bound to inspect the iron for the purpose of ascertaining whether it is of the quality bought, because it is not part of a broker's ordinary business to inspect goods bought by him, as such {p). {h) Massey v. Banner, 1820, 1 Jao. & W. 241 ; 4 Madd. 413 ; 21 E. E. 150 ; Maltby y. Christie, 1795,1 Esp. 340 ; Reeve v. Palmer, 1858, 5 0. B. N. S. 91 ; 28 L. J. 0. P. 168; 5 Jur. N. S. 916 ; lUustrations 12 to 14. (?) Hayes v. Tindall, 1861, 1 B. & S. 296 ; 2F. & P. 444; 30 L. J. Q. B. 362 ; 4 L. T. 403. (to) Turpin v. Bilton, 1843, 6 Man. & Gr. 455; 6 Soott, N. E. 447 ; 12 L. J. 0. P. 167 ; 7 Jur. 950. (n) Braith v. Barton, 1866, 15 L. T. 294. (o) Mallough v. Barber, 1815, 4 Camp. 115. Ip) Zwilchenlart v. Alexander, 1860, 1 B. & S. 234 ; 30 L. J. Q, B. 254; 7 Jur. N. S. 1157; 4 L. T. 412; 9 W. E. 670, Ex. Oh. OF AGENTS. 95 6. An insurance broker is instructed in general terms to insure certain goods. He insures them " free from particular average " in the usual way. He is not Uahle to the principal merely because the insurance might have been effected on better terms (q). 7. A share broker is employed to buy certain railway scrip. He buys on the market, in the ordinary course of business, what is usually sold as such scrip. He is not responsible to the prin- cipal because the scrip turns out not to be genuine, having had no notice that it was not genuine, and having bought it in the ordinary course' of business (r). 8. An insurance broker retains in his own hands a policy effected by him. He is bound to use due diligence to procure a settlement and payjjaent of a loss arising thereunder (s) . 9. A. acts as a patent agent. He is bound to know the law relating to the practice of obtaining patents, and is responsible to his principal for injury caused through his ignorance of such law. Every person who acts as a skilled agent is bound to bring reasonable skill and knowledge to the performance of his duties (t). 10. A. acts as a valuer of ecclesiastical property. He is bound to know the general rules applicable to the valuation of dilapi- dations, but is not expected to have an accurate and precise knowledge of the law relating thereto (m). 11. A broker was employed to sell certain goods "to arrive," of " fair average quality in the opinion of the selling broker." A dispute having arisen, the broker inspected the goods and reported that they were not of fair average quality. Held, that he was not bound to exercise any skill in order to form a correct (q) Moore v. Mourgue, 1776, Cowp. 479. (r) Lambert v. Heath, 1846, 15 M. & W. 486. \s) BouajieU v. Oresswell, 1810, 2 Camp. 545 ; 11 E. E. 794. («) Lee T. Walker, 1872, L. E. 7 0. P. 121 ; 41 L. J. C. P. 91 ; 26 L. T. 70. (m) Jenkins v. Betham, 1854, 15 C. B. 168; 24 L. J. 0. P. 94; 1 Jtir. N. S. 237. 96 DUTIES opinion, it not being part of the ordinary business of a broker to act as an arbitrator (x). 12. A. rides a horse gratuitously for the purpose of exhibiting it. He is bound to exercise such skill as he actually possesses, and is responsible to his principal for any injury caused by his neglect to do so. Whether he in fact exercised such skill or not is a question for the jury(y). 13. A general merchant undertakes, without reward, to enter a parcel of A.'s goods with a parcel of his own. He enters both parcels, by mistake, under a wrong denomination, and the goods are seized. He is not responsible to A. for the loss, having taken the same care of A.'s goods as of his own (z). 14. A. offers, without reward, to lay out 700/. in the purchase of an annuity, and undertakes to obtain good security. He is bound to use due care to lay out the money securely {a) . Article 45. DUTY TO PAY OVER MONEY RECEIVED TO USE OF PRINCIPAL, Every agent who receives money to the use of his principal is bound to pay over or account for such money to the principal, notwithstanding claims made by third persons in respect thereof (5), even if the money was received under a void(c) or illegal ((?) con- tract. Provided that, where money is obtained by an agent wrongfully, or is paid to him under a mistake of (cc) Pappa V. JRose, 1872, L. E. 1 0. P. 32, 525 ; 41 L. J. C. P. 11, 187 ; 25 L. T. 468 ; 27 L. T. 348 ; 20 W. R. 62, 784, Ex. Uh. (y) Wilson v. Brett, 1843, 11 M. & W. 113 ; 12 L. J. Ex. 264. (z) SJiiells V. BlacTchurne, 1789, 1 H. Bl. 158; 2 E. E. 750. (a) Whitehead y. Greetham, 1825, 2 Bing. 464; M'Olel. & T. 205; 10 Moo. 183, Ex. Oh. (6) Nicholson y. Knmvles, 1820, 5 Madd. 47 ; 21 E. E. 276 ; Illustratioiis 1 and 2. (c) Illustration 5. [d) Illustration 4. OF AGENTS. 97 fact or for a consideration which fails, he may show that he has repaid it to the person from whom he so obtained it or who so paid it to him (e) ; and where money is paid to him in respect of a voidable contract, he may show that the contract has been rescinded, and the money repaid, even if the contract was rescinded solely on the ground of his own fraud (/). "When an agent is accounting for money received to the use of his principal, he is entitled to take credit for any sums expended by him with the consent or subsequent acquiescence of the principal, even if they were expended for an illegal purpose ((/) ; but authority to deal with money in an illegal manner may be revoked at any time before the money has been actually paid away (h). Illustrations. 1. A ship which is the property of A. is transferred to B. as security for a debt. B. insures the ship for and on behalf of A. & Company, and charges them with the premiums. The ship is lost, and B. receives the insurance money. B. must pay over the money, after deducting the amount of his debt, to A. & Company, and cannot set up A.'s title, having insured for and on behalf of A. & Company (<). So, an insurance broker who receives money under a policy cannot dispute the claim of his principal on the ground that other persons are interested in the subject-matter of the insurance, their claims being a matter (e) See Article 117. (/) Illustration 6. (g) Bayntun v. CaUle, 1833, 1 M. & Eob. 265. {h) Bone v. BUess, 1860, 5 H. & N. 925; 29 L. J. Ex. 438. (») Dixon V. Hammond, 1819, 2 B. & A. 310. B. 98 DUTIES between them and the assured, with which the broker has nothing to do (k) . 2. A. sells a ship as agent for three joint owners. He must account to his principals jointly for the proceeds, and cannot be compelled to pay one of them the amount of his share without the consent of the others (/). 3. A. deposits bank notes with his banker, who sends them to the issuing bank and receives credit for the amount. That is equivalent to actual payment, and A.'s banker must account to A. for the amount, though he never actually received payment of the notes, in consequence of the failure of the issuing bank (in). 4. An agent receives money on his principal's behalf under an illegal contract. The agent must account to the principal for the money, and cannot set up the illegality of the contract, which the other contracting party has waived by paying the money (n). 5. A turf commission agent is employed to make bets. He must pay over to the principal the amount of any winnings actually received by him in respect of such bets, though the bets themselves are void by statute (8 & 9 Vict. c. 109), and though, in consequence of the provisions of the Graming Act, 1892, he would not be able to recover from the principal the amount of any losses paid in respect of the bets (o) . 6. An agent sells a horse and receives the purchase-money. The sale is subsequently rescinded on the ground of the agent's fraud, and the purchase-money is repaid. The agent is not (Jc) Boberts v. Ogilby, 1821, 9 Price, 269. (Z) Hatsall v. Griffith, 1834, 2 U. & M. 679 ; 4 Tyr. 487. (to) Gillard v. Wise, 1826, 7 D. & E. 523 ; 5 B. & 0. 134. (m) BousfieU v. Wilson, 1846, 16 M. & W. 185 ; 16 L. J. Ex. 44 ; Farmer v. Bussell, 1798 ; 1 B. & P. 296 ; Tenant v. Elliott, 1797, 1 B. & P. 3; 4E. E. 755. (o) De Mattos v. Benjamin, 1894, 63 L. J. Q,. B. 248 ; 70 L. T. 560 ; 10 E. 103 ; Bridger v. Savage, 1885, 15 Q. B. D. 363 ; 54 L. J. Q. B. 464 ; 63 L. T. 129 ; 33 W. E. 891, C. A. : overruling Beyer v. Adams, 1857, 26 L. J. Oh. 841. As to tlie Gaming Act, 1892, see post, Article 69. OP AGENTS. 99 liable to the principal for the amount of the purchase- money (jo). 7. An insurance broker receives notice that the assured under a policy is entitled to the return of a portion of certain premiums held by the broker. The broker is entitled to deduct such portion in an action by the underwriters for the full premiums, because he is a common agent acting for both parties {q). 8. A factor raises money by wrongfully pledging the goods of his principal. The principal may, if he thinks fit, adopt the transaction, and treat the money raised as money had and received to his use (r). Article 46. ESTOPPED FEOM DENYING PRINCIPAL'S TITLE. "Where a person is in possession of property as an agent, his possession, as evidence of title, and for the acquisition of title by prescription, is deemed to be the possession of the principal (s). No agent is permitted to deny the title of his principal, or to set up the title of any third person in opposition to that of the principal, to any goods in- trusted to him by, or which he has agreed to hold on behalf of, the principal (^), except where the goods were wrongfully obtained by the principal from a third person, who claims them from the agent, and of whose claim the agent had no notice at the time that they were so intrusted to him, or that he so agreed to {p) Murray v. Mann, 1848, 2 Ex. 538 ; 12 Jur. 634 ; 17 L. J. Ex. 256. \q) Shee v. Clarkson, 1810, 12 East, 607,- 11 E. E. 473. (r) Bonzi v. Stewart, 1842, 4 M. & G. 295 ; 5 Scott, N. E. 1, 26. (s) lUustrations, 1 to 3; Cooper y. De Tastet, 1829, Tamlyn, 177. (i) Illustrations 4 to 8; Diocon v. Hammond, 1819, 2 B. & A. 310; BobertsY. Ogilhy, 1821, 9 Price, 269. h2 100 DUTIES hold them, in which case he may set up the title of that third person (u). Provided that the agent may in all cases show that he has been compelled to deliver up the goods to a person who had a good title thereto as against the principal (a;). Illustrations. 1. An agent is allowed, for the convenient performance of his duties, as such, to occupy premises belonging to his principal. The agent cannot acquire any estate therein, by reason of such occupation, even if he is permitted to use the premises for an independent business of his own (y) . No agent can acquire an adverse title to his principal unless he can distinctly show that the acts upon which he relies were done in respect of his title, and not of his agency (2) . 2. A. receives the rents of certain properties as an agent, and pays them into a separate account at his own bank. The principal dies intestate. A. continues to receive the rents for more than twelve years after the death of the principal, stating to several of the tenants that he is acting for the heir, whoever he may be. Subsequently, within a reasonable time after the heir is ascertained, his assignee brings an action against A., claiming possession of the property and an account of the rents and profits. A. claims the property as his own, and pleads the Statute of Limitations. The plaintiff is entitled to possession of the property, and an account of all the rents and profits received by A. since the principal's death (a). {u) Biddle v. Bond, 1865, 6 B. & S. 225; 34 L. J. Q. B. 137; 11 Jur. N. S. 425; 12 L. T. 178 ; 13 W. E. 561 ; Exp. Davis, re Sadler, 1881, 19 Oil. Div. 86 ; 45 L. T. 632 ; 30 W. E. 237, 0. A. ; Illustrations 9 and 10. {x) Biddle v. Bond, supra; Hunt y. Maniere, 1864, 11 Jur. N. S. 28, 73 ; 34 L. J. Ot. 142 ; 13 W. E. 363 ; 11 L. T. 723. {y) White v. Bayley, 1861, 10 0. B. N. S. 227 ; 30 L. J. C. P. 253; 7 Jur. N. S. 948. (z) A.-G-.Y. Corporation, of London, 1845, 2 Mac. & G. 247; 2 H. & Tw. 1 ; 19 L. J. Oh. 314 ; 14 Jur. 205. (a) Lyell v. Kennedy, 1889, 14 App. Oas. 437 ; 59 L. J. Q. B. 268 ; 62 L. T, 77; 38 W. E. 353, H. L. OF AGENTS. 101 3. A. receives the rents of certain property as B.'s agent for more than twelve years, and duly pays them over to B. B. ^thereby acquires a good prescriptive title to the property, in the absence of fraud, even if A. was the true owner {b). Possession by an agent, as such, does not preserve his adverse rights (6). 4. A. makes advances for the purposes of a mine, in order to obtain the ore, which he consigns to B. for sale, B. undertaking to account to him for the proceeds. B. cannot set up any para- mount title to the ore, or dispute A.'s right to the proceeds on the ground that there are rights of third persons existing inde- pendently of the contract between A. and B. (c). 5. A. buys goods on B.'s behalf, and delivers them to carriers fi,t B.'s risk. A. is estopped from disputing B.'s title to the goods (d). 6. The servant of a wharfinger gives a receipt for certain goods, in which there is an undertaking to deliver the goods to A. The wharfinger will not be permitted to deny A.'s title to the goods on their arrival (e). 7. A wharfinger agrees to hold certain goods, described in a delivery order, on behalf of the transferee of such order. In an action by the transferee against the wharfinger for conversion of the goods, it is no defence that the goods in question were not separated from the bulk, and that therefore the property in the goods had not passed to the plaintiff (/) . A wharfinger is an agent for the person in whose name he holds the goods, and is not permitted to set up the title of any other person (g). 8. A. delivers goods to a carrier, consigned to B. The pro- (b) Williams v. Potts, 1871, 12 L. E. Eq. 149 ; 40 L. J. OH. 775. (c) Zuliteta V. Vinent, 1851, 1 De G. M. & G. 315. {d) Green v. Maitland, 1842, 4 Beav. 524. (e) Hvans v. Mchol, 1841, 4 Scott, N. E. 43; 3 M. & G. 614; 5 Jur. 1110. (/) Woodley v. Coventry, 1863, 32 L. J. Ex. 185 ; 9 Jur. N. S. 548 ; 8 L. T. 249; 11 W. E. 599. See Gosling v. Birnie, 1831, 7 Bing. 339; 5 M. & P. 160. {g) Betteley r. Reed, 1843, 3 G. & D. 561; 4 Q. B. 511 ; 12 L. J. Q. B. 172; 7 Jur. 507 ; Holl v. Griffin, 1833, 10 Bing. 246; 3 M. & Scott, 732. 102 DUTIES perty in the goods has not, in fact, passed to B. A. counter- mands his instructions, and the carrier re-delivers the goods to him. The carrier may set up A.'s title, in an action by B., carriers not being, as such, agents of their consignees {K) . 9. A. wrongfully distrains B.'s goods and delivers them to C, an auctioneer, for sale, C. having at the time no knowledge of B.'s adverse claim. B. subsequently gives notice of his title to C, and claims the proceeds. 0. may set up the title of B., in an action by A. for the proceeds («). The estoppel of a bailee ceases when the bailment on which it is founded is determined by title paramount or its equivalent (,/). 10. A. sells goods as B.'s agent, having at the time that the goods are intrusted to him notice that G. claims them. A. cannot, in an action by B. for the proceeds, set up the title of C, even if C. was wrongfully deprived of the goods by B., A. having elected to act as B.'s agent for the sale of the goods after receiving notice of C.'s adverse claim (k). DUTIES ABISINa FBOM THE FIDVOIABT OHABAGTEB OF THE BE LA T ION SHIP. Article 47. DUTY TO MAKE FULL DISCLOSURE WHERE ANY PERSONAL INTEREST. No agent is permitted to enter, as such, into any transaction in which he has a personal interest in con- flict with his duty to his principal, unless the principal, with a full knowledge of all the material circumstances, and of the exact nature and extent of the agent's (7i) Sheridan v. New Quaij Co., 1858, 4 0. B. N. S. 618 ; 28 L. J. 0. P. 68 ; 5 Jur. N. S. 248. (i) See note (J), supra, p. 101. (j) Biddle v. Bond, 1865, 6 B. & S. 225 ; 34 L. J. Q. B. 137 ; 11 Jur. N. S. 425 ; 12 L. T. 178 ; 13 W. E. 561. {h) Ex p. Dixon, re Sadler, 1881, 19 Oh. Div. 86; 45 L. T. 632; 30 W. K. 237, 0. A. OP AGENTS. 103 interest, consents (/). Where any transaction is entered into in violation of this principle, the principal, when the circumstances come to his knowledge, may repu- diate the transaction, or may adopt it and claim an account of the profit made by the agent (m). Illustrations. 1. A stockbroker was employed to purchase certain shares. He purchased the shares from his own trustee without informing the principal of the fact. The transaction was set aside, after an interval of many years, without inquiry whether a fair price was charged or not (m). 2. A director of a company enters into a contract on hehalf of the company with a firm of which he is a member. The contract is voidable in equity by the company, quite apart from the question of its fairness or unfairness (o). It is the duty of a director to promote the interests of the company, and he cannot be permitted to enter into engagements in which his own interest is in conflict with that duty (o). 3. A solicitor entered into an arrangement under which he was to receive a share of certain property, and also a share of the profit arising from the sale of such property. He subse- quently acted as solicitor in purchasing a large portion of the property, without disclosing his interest therein to the client for whom he so acted. Held, that he was a trustee for the oUent for a proportionate part of the share taken by him, and that he {I) BotliscMldY. Broohman, 1831, 5 Bli. N. S. 165; 2 Dow. & CI. 188, H. L. ; Parker v. McKenna, 1874, L. E. 10 Oh. 96 ; 44 L. J. Oh. 425 ; 31 L. T. 739 ; 23 W. E. 271 ; O-ardner v. McCutcheon, 1842, 4 Beav. 534 ; Menchman v. E. I. Co., 1791, 1 Ves. jun. 289. And see Illustrations, and cases there cited. (m) Rothschild v. BrooJcman, supra. And see Illustrations to this Article and to Article 51. (w) Gillett V. Peppercorne, 1840, 3 Beav. 78. (o) Aberdeen Bail. Co. v. Blakie, 1854, 2 Eq. E. 1281, H. L. 104 DUTIES must account for the full amount of the profit made by him upon the sale, with interest at the rate of 6 per cent. {p). 4. An auctioneer who was employed to sell an estate, pur- chased it himself. The transaction was set aside, after an interval of thirteen years {q). No agent for the sale of goods is permitted to purchase them himself, and no agent to pur- chase is permitted to buy his own goods on the principal's behalf, unless he makes full disclosure to the principal ; and the fact that he pays or charges a fair price is immaterial in the application of this rule {>•). So, an agent of a trustee for sale cannot purchase the property sold («) ; and a solicitor who conducts a sale of property must not purchase it without a full explanation to the vendor {t). But the auctioneer is not deemed to be an agent of the purchaser at a sale by auction, for this purpose, and may (probably) sell his own property at such a sale without disclosing that he is the owner (m). 5. A broker is employed to sell goods. He sells them, ostensibly to A., really to A. and himself jointly. WhUst the goods are still in the possession of the broker, he becomes bankrupt, A. also being insolvent. The principal may repudiate the contract and recover the goods specifically from the trustee in bankruptcy of the broker {x). 6. A firm of brokers were authorized to purchase iron. They delivered bought notes to the principal, which purported to be notes of a contract of which the brokers guaranteed performance, but which did not disclose the sellers. The principal paid the {p) Tyrrell v. Bank of London, 1862, 10 H. L. Oas. 26; 31 L. J. Ch. 36& ; 6 L. T. 1 ; 8 Jur. N. S. 849 ; 10 W. E. 359, H. L. {q) Oliver v. Court, 1820, Dan. 301 ; 8 Price, 127 ; 22 E. E. 720. (r) Lowther v. Loivther, 1806, 13 Ves. 95, 102 ; Maasey v. Davies, 1794, 2Ves. jun. 317; 2 E. E. 218; Bentley v. Graven, 1853, 18 Beav. 75; Rothschild v. Broohman, 1831, 5 Bli. N". S. 165 ; 2 Dow. & 01. 188, H. L. (s) Whitcomh v. Mifichin, 1820, 5 Madd. 91. (<) BeBloye's Trust, 1849, 1 Mao. & G. 488; 2 H. & Tw. 140; 19 L. J. Oh. 89 ; 14 Jur. 49 ; Exp. James, 1803, 8 Ves. 337 ; 7 E. E. 56. ((() Flinty. Woodin, 1852, 9 Hare, 618; 16 Jur. 719. {x) Exp. Euth, re Pemherton, 1840, Mont. & Oh. 667; 4 Dea. 294, OF AGENTS. 105 brokers their commission and a deposit, and subsequently dis- covered that one of the brokers intended to perform the contract himself. The principal was held to be entitled to repudiate the contract, and the brokers were ordered to repay the deposit and commission, with interest {y). No agent can become a principal and deal on that footing without full and fair disclosure (s) . 7. An agent for sale sells to a company of which he is a director or shareholder. The sale is not binding on the prin- cipal {a). Where an agent for sale takes any interest in a purchase negotiated by him, he must fully disclose all the material facts, and the exact nature and extent of his interest. It is not sufficient to merely disclose that he has an interest, or to make such statements as would put the principal on inquiry {b). 8. A director of a railway company purchased, on the com- pany's behalf, the concession of a line of which he was the concealed owner. Held, that the company might repudiate the transaction (c). So, where a director sold a vessel to his company as from a stranger, it was held that he must account to the company for the profit made by him, with interest (d). In such cases, the principal may rescind the transaction, or may affirm it and claim the profit made, at his option (e) . 9. Special customs inconsistent with this Article are unreasonable. — ^A broker is authorized to sell certain shares and pay himself certain advances out of the proceeds. A custom whereby he {y) Wilson Y. Short, 1847, 6 Hare, 366; 17 L. J. Ch. 289 ; 12Jur. 301. (z) Ibid. ; Williamson t. Babour, 1877, 9 Cli. Div. 529 ; 50 L. J. Oh. 147 ; 37 L. T. 698 ; Bostock v. Jardine, 1865, 3 H. & C. 700; 11 Jur. N. S. 586; 34 L. J. Ex. 142; 12 L. T. 577 ; 13 W. E. 970. (a) Salomans v. Pender, 1865, 3 H. & C. 639 ; 34 L. J. Ex. 95 ; 11 Jur. N. S. 432; 12 L. T. 267; 13 W. E. 637. (6) Dunne v. English, 1874, L. E. 18 Eq. 524; 31 L. T. 75. (c) Gt. Luxemburg Bail. Co. v. Magnay, 1858, 25 Beav. 586 ; 4 Jur. N. S. 839. id) Benson v. HeatJwrn, 1842, 1 T. & Col. 0. 0. 326. (e) Be Cape Breton Co., 1884, 26 Oh. Div. 221 ; 29 Oh. Div. 795, 0. A. ; Cavendish Bentinck v. Fenn, 12 App. Oas. 652. And see Article 51, and Illustrations thereto. 106 DUTIES may himself take over the shares at the price of the day in the event of his heing unable to find, a purchaser at an adequate price is unreasonable, and such a transaction is not binding on the principal unless he was aware of the custom at the time that he gave the broker the authority, even if it is proved that a forced sale of the shares would certainly have realised less than the price given by the broker (/). So, a custom whereby an agent for sale may purchase at the minimum price if he cannot find a purchaser is illegal (g) . Every usage which converts an agent into a principal, or otherwise gives him an interest at variance with his duty, is unreasonable, and is not binding on persons who are ignorant of it (/«). Article 48. AGENT WHO PURCHASES PEOPEETY, AS SUCH, IN OWN NAME, IS A TEUSTEE. Where an agent who is employed to purchase pro- perty purchases it in his own name or on his own behalf, and it is conveyed or transferred to him, he is a trustee thereof for the principal (^'). (/) Hamilton v. Toung, 1881, 1 L. E. Ir. 289. {g) De Bussche v. AU, 1877, 8 Ch. Div. 286 ; 47 L. J. Ch. 381 ; 38 L. T. 370, 0. A. (70 EoUnson v. Mollett, 1874, L. E. 7 H. L. 802 ; 44 L. J. 0. P. 362; 33 L. T. 544, H. L. (i) Lees y. Nuttall, 1834, 2 Myl. & K. 819 ; Austin v. Ghamhers, 1837, 6 CI. & F. 1, H. L. ; Bartlett v. Pickersgill, 1 Cox, 15 ; 4 East, 577 ; 1 E. E. 1 ; James v. Smith, (1891) 1 Ch. 384 ; 65 L. T. 544. See Article 21, as to tlie right of the agent to plead the 7th section of the Statute of Frauds, where verbally appointed to purchase land. See also Taylor r. Salmon, 1838, 4 Myl. & Or. 139. OF AGENTS. 107 Article 49. DUTY TO MAKE PULL DISCLOSURE WHERE HE DEALS WITH THE PRINCIPAL. Where an agent enters into any contract or trans- action with his principal, or with his principal's repre- sentative in interest, he must deal with him at arm's length, and make a full and fair disclosure of all the material circumstances, and of all his knowledge re- specting the subject-matter of the contract (Jc), Where any question arises as to the validity of any such transaction, or of any gift made by a principal to his agent, the burden of proving that no advantage was taken by the agent of his position, or of the confi- dence reposed in him, and that the transaction was entered into in perfectly good faith and after full dis- closure lies upon the agent (k). Where a principal desires to set aside a contract or transaction entered into with his agent, on the ground of want of full disclosure or good faith, he must take proceedings for that purpose within a reasonable time after he becomes aware of the facts on which he relies (?). Illustrations. 1. A manager of a bank, who was permitted to cany on a separate business on bis own account, made advances for the {k) Molony v. Kernan, 1842, 2 Dr. & War. 31 ; Waters v. Shaftesbury, 1866, 12 Jur. N. S. 311 ; 14 L. T. 184 ; 14 W. E. 572 ; Charter v. Trevel- yan, 1842, 11 01. & P. 714; 8 Jur. 1015, H. L. ; Savery Y.King, 1856, H. L. Oas. 627 ; 2 Jur. N. 8. 503 ; 25 L. J. Ch. 482, H. L. ; Ward v. Sharp, 1883, 53 L. J. Ch. 313; 50 L. T. 557, And see Illustrations 1 to 12. {I) See Illustration 11. 108 DUTIES purposes of such business, upon bills which he had not indorsed. The drawers and acceptors of the bills became insolvent. Held, that the manager was bound to make good the loss. He ought not to grant himself any accommodation or acquire any personal benefit in the course of his agency, Avithout bringing the whole circumstances most fully and fairly before the directors (m). 2. An agent for the management of trust property purchases part of such property from the cestui que trust. The agent, to support the transaction, must show, not only that he gave full value, but also that he dealt at arm's length, and fully disclosed everything that he knew which tended to enhance the value of the property («). 3. A steward contracts with his employer for a lease. He must show that he is giving as high a rent as it would have been his duty to obtain from a third person, and that his employer was fully informed of every circumstance tending to demonstrate the value of the property which was, or ought to have been, within the steward's knowledge (o). 4. A director proposes a contract to his company, it being provided by the articles of association that directors may con- tract with the company on disclosing their interest. It is his duty to declare the full extent and exact nature of his interest, not merely that he has an interest (p). 5. A solicitor purchases property from his client's trustee in bankruptcy. He must make a full disclosure of all the know- ledge acquired by him respecting such property during the time that he was acting as solicitor for the bankrupt (q). 6. A solicitor purchased property from a former client, and concealed a material fact. The transaction was set aside, although there was another solicitor acting on behalf of the (m) Owatkhi v. Campbell, 1854, 1 Jur. N. S. 131. (ra) King v. Anderson, 1874, 8 Ir. E. Eq. 147. (o) Selsey v. Bhoades, 1824, 2 S. & S. 41. (p) Imperial and Mercantile Credit Co. v. Coleman, 1873, L. E. 6 H. L. 189 ; 42 L. J. Oh. 644; 29 L. T. 1, H. L. (q) Luddy's Trustees v. Peard, 1886, 33 Ot. Div. 500; 55 L. J. Ch. 884; 55 L. T. 137. OF AGENTS. 109 plaintiff (r) . But the rule that an agent must disclose know- ledge acquired by him, as such, does not, in general, apply ■where the agent has ceased to act, and there is another agent, ■with equal means of kno-wledge, acting for the principal in the transaction (s). 7. An agent purchases his principal's property in the name of a third person. The transaction -will he set aside -without inquiry as to the adequacy of the price. An agent may pur- chase property from his principal, provided that he deals at arm's length and fully discloses all that he knows respecting the pro- perty; but if any underhand dealing or concealment appears, the transaction -will at once be set aside on the application of the principal (i). 8. A director of a railway company contracted with the com- pany to take refreshment rooms. The Court refused to decree specific performance of the contract against the company {ti). 9. A solicitor takes a mortgage from his client. The Court will not enforce any unusual stipulations in the mortgage dis- advantageous to the client («), and -will restrain the solicitor from exercising his rights as mortgagee in an unfair or inequit- able manner («/). Where a power of sale exerciseable at any time was inserted in such a mortgage without the usual proviso requiring iaterest to be in arrear or notice to be given, and the solicitor sold the property under the power, he was held liable to the client in damages as for an improper sale, it not being shown that he had explained to the client the unusual nature of {r) GilbsY. Daniel, 1862, 4 Gifl. 1; 9 Jur. N. S. 636; 10 W. E. 688; 1 L. T. 27. (s) Scott V. Dunbar, 1828, 1 Moll. 442. [t) McPherson v. Watt, 1877, 3 App. Cas. 254, H. L. ; Murphy v. O'SJiea, 1845, 2 J. & L. 422 ; 8 Ir. Eq. Eep. 329 ; Crowe v. Ballard, 1790, 2 Cox, 253; 1 Ves. jun. 215; 3 Bro. 0. 0. 117; 1 E. E. 122. (m) Flanagan v. &. W. Bail. Co., 1868, 19 L. T. 345. \x) Gowdry v. Day, 1859, 1 Giff. 316 ; 5 Jur. N. S. 1199 ; 29 L. J. Oh. 39. {y) McLeod v. Jones, 1883, 24 Oh. Di-^. 289 ; 53 L. J. Oh. 145, 0. A. 110 DUTIES tlie power (z). Prior to the Mortgagees Legal Costs Act, 1895 (58 & 59 Vict. c. 25), if the solicitor himself prepared the mort- gage deed, he was only permitted to charge out of pocket expenses, unless there was an express agreement to the con- trary (a) ; hut that Act provides that he shall be entitled in such a case to his usual remuneration as a solicitor. 10. A solicitor purchases property from his client. He must show that the price was adequate, that he took no advantage of his position, and that the sale was as advantageous to the client as any that the solicitor could have obtained, with the exercise of due diligence, from a third person (b). 11. A bill to set aside the purchase of property by an agent was dismissed, with costs, on proof that the principal had distinct notice, at the time of the transaction, that the agent was one of the beneficial purchasers, no proceedings having been taken to set it aside for more than six years, and the property having advanced in value in the meantime (c). Gifts to agents. 12. A client, who had recovered certain property after pro- tracted litigation, shortly afterwards conveyed, by deed of gift, a valuable portion of such property to the counsel engaged on (z) Beaddy v. Prendergast, 1887, 56 L. T. 790, 0. A. ; Oochhurn v. Ed- wards, 1881, 18 Ch. Div. 449; 51 L. J. Oh. 46, 0. A. ; Craddocky. Rogers, 1884, 53 L. J. Oh. 968 ; 51 L. T. 191. (a) Be WalHs, ex p. Lickorish, 1890, 25 Q. B. D. 176; 59 L. J. ft. B. 500 ; 62 L. T. 674 ; 38 W. E. 482 ; 6 T. L. E. 291, 0. A. ; Be Boberts, 1889, 43 Ch. Div. 52 ; 59 L. J. Ch. 25 ; 62 L. T. 33 ; 38 W. E. 225. (6) Savery v. King, 1856, 5 H. L. Gas. 627 ; 2 Jur. N. S. 503; 25 L. J. Oh. 482, H. L. ; Pisani v. Gibraltar, 1874, L. E. 5 P. 0. 516, P. 0. ; Spencer v. Topham, 1856, 22 Beav. 573; 2 Jur. N. S. 865; Oibsonr. Jeyes, 1801, 6 Ves. 266 ; 5 E. E. 295; Montesquieu v. Sandys, 1811, 18 Ves. 313; HE. E. 197; OoahsM. Boswell, 1886, 11 App. Oas. 232; 55 L.J. Oh. 761; 55L. T. 32, H. L. (c) Wentworth v. Lloyd, 1864, 10 H. L. Oas. 589 ; 10 Jur. N. S. 961 ; 32 Beav. 467, H. L. See De Busschey. Alt, 1877; 8 Oh. Div. 286; 47 L. J. Oh. 381 ; 38 L. T. 370, 0. A. OF AGENTS. Ill his behalf, in consideration of services, &c. rendered in connec- tion with its recovery. The deed was set aside on the ground of want of independent advice (d). A solicitor is not permitted to bargain with his client for any benefit beyond the amount of his legal remuneration, and during the time he is acting as solicitor for the client, is incapable of accepting any gift or reward besides such remuneration, even if there is no suspicion of any fraud, misrepresentation or undue iafluence (e). A promise by a client to give his solicitor a large sum, in the event of success in an action, is void, and for any gift from the client to be permitted to stand, there must be a previous sever- ance of the confidential relationship, as well as an absence of all suspicion of undue influence (e). The executor of a deceased client was held to be entitled to have a gift from the deceased to her solicitor set aside, although the deceased, after the con- fidential relationship had ceased, had expressed her intention to abide by the gift, the circumstances not being such as would have debarred her, at the time of her death, from having it set aside (/). But, except in the case of solicitor and client, the general rule is that a gift from principal to agent is valid if the agent proves that there was no undue influence on his part (g). Article 50. DUTY TO ACCOUNT IN EQUITY. It is the duty of every agent to render just and true accounts of his agency to the principal, and in (d) Brown v. Kennedy, 1864, 4 De G. J. & S. 217 ; 33 L. J. Oh. 342 ; 10 Jut. N. S. 141 ; 13 0. B. N. S. 677 ; 32 L. J. C. P. 137. (e) Morgan Y.Minett, 1877, 6 Oh. Div. 638; 36 L. T. 948; 25 W. E. 744 ; O'Brien v. Lewis, 1863, 32 L. J. Oh. 569 ; 9 Jur. N. S. 528 ; 8 L. T. 179 ; 11 "W. E. 318 ; Wright v. Proud, 1806, 13 Ves. 138 ; Tomson v. Judge, 1855, 3 Drew. 306 ; 1 Jui. N. S. 583 ; 24 L. J. Ch. 785 ; Middleton V. Welles, 1785, 4 Bro. P. 0. 245, P. 0. ; Saunderson v. Glass, 1742, 2 Atk. 297. (/) Tyars v. Alsop, 1888, 59 L. T. 367; 37 W. E. 339. (g) Hunter v. Atkins, 1832, 3 Myl. & K. 113. 112 DUTIES cases of general agency of a fiduciary character the principal has a right to have an account taken in a court of equity (^). In the case of a single agency transaction untainted with fraud (^), or where the agency is not of a fiduciary character, the agent is not bound to render an account in a court of equity, unless the accounts are so complicated that they cannot be properly investigated in an action at law {k). No principal has a right to have settled accounts re-opened unless the agent has been guilty of fraud, but he may be given leave to surcharge and falsify them (Z ). Where the agent has been guilty of fraud, his accounts will be re-opened from the commence- ment of the agency, and in such a case the Statute of Limitations does not constitute a defence (m). The illegality of a transaction between principal and agent is not necessarily a bar to an action in the Chancery Division for an account thereof (n). The right of a principal to have an account taken in equity (7i) Makepeace v. Rogers, 18G5, 4 De G. J. & S. 649; 34 L. J. Oh. 396; 11 Jur. N. S. 215; 12 L. T. N. 8. 12, 221 ; 13 W. E. 450, 566; Hemmings V. Pugh, 1863, 4 Gifl. 456 ; 9 L. T. 283 ; 9 Jur. N. S. 1124 ; 12 W. E. 44. (»;) Navulshaiv v. Browiirigg, 1852, 2 De G. M. & G. 441 ; 21 L. J. Oh. 908; 16 Jur. 979; Phillips v. Phillips, 9 Hare, 471 ; 22 L. J. Oh. 141. {h) Barry Y. Stevens, 1862, 31 Beav. 258; 31 L. J. Cli. 785; 10 W. E. 822; 6 L. T. 568; Eemmings v. Pugh, supra, note (A) ; King v. Rossett, 1827, 2 Y. & J. 33; BlythY. WMffin, 1872, 27 L. T. 330. {I) Hunter v. Belcher, 1864, 2 De G. J. & S. 194. (m) Beaumont v. Boulthee, 1802, 7 Ves. 599 ; 5 Ves. 485 ; 4 E, E. 244 ; Clarke v. Tipping, 1846, 9 Beav. 284; Middleditch v. Sharland, 1799, 5 Ves. 87. (m) WilUams v. Trye, 1854, 23 L. J. Ch. 860 ; 18 Jur. 442. OF AGENTS. 113 rests upon the trust and confidence reposed in the agent (o), and in all oases of general agency, the fiduciary character of the relationship is sufficient to support an action for an account, ■whether the accounts are compKcated or not, and even if the receipts and payments are all on the one side (p). Thus, where an agent is employed to sell property, he may be compelled to account in equity for the proceeds {q). But the bare relation- ship of principal and agent is not sufficient, in the absence of fraud, where the agent is not employed in a fiduciary capacity, and the transaction can be fairly and properly investigated in a common law action (r). Thus, bankers are not bound to account in equity to their customers, unless the accounts in question are intricate and complicated (s). So, it was held that a person who was occasionally employed as a clerk by a solicitor was not bound to account in equity, though there had been mutual receipts and payments (t). Damages for neglect of duty cannot be passed in taking an account, the proper remedy for such damages being an action at law (m) . Fraud. — In oases of fraud, accounts long since settled will be reopened from the commencement of the agency. Proof of one fraudulent overcharge has been held sufficient to entitle the principal to have the agent's accounts reopened for a period of twenty years («). So, where there were incorrect entries, and amounts ujiexplained and unaccounted for, in the accounts of a deceased agent of a company, who was also a large shareholder (o) Padwick v. Stanley, 1852, 9 Hare, 627 ; 16 Jur. 586. {p) See note (A), supra. {q) Mackenzie v. Johnston, 1819, 4 Madd. 373. (r) See note [h), supra. (s) Foley v. Hill, 1844, 1 Ph. 399 ; 13 L. J. Ch. 182 ; 8 Jur. 347 ; Bmules v. Orr, 1835, 1 T. & OoU. 464. (<) Fluker v. Taylor, 1855, 3 Drew. 183. {u) a. W. Ins. Go. of New Yorky. Ounliffe, 1874, L. E. 9 Oh. 525; 43 L. J. Ch. 741 ; -30 L. T. 661. (■y) Williamson v. Babour, 1877, 9 Oh. Div. 529; 50 L. J. Ch. 147; 37 L. T. 698. «. I 114 DUTIES in the company, his accounts were reopened after his death, for a period of twenty-five years (u). Statutes of Limitations. — Formerly, where an agent was sued in a fiduciary capacity, he was not permitted to plead the Statutes of Limitations («), but by vii'tue of the 8th section of the Trustee Act, 1888, he may now plead and is entitled to the benefit of the statutes, except where he is sued for property intrusted to him as an agent, or for the proceeds or value of any such property converted by him to his own use, or where he has been guilty of fraud (y). Article dl. DUTY TO ACCOUNT FOE ALL SECRET PEOFITS, No agent is permitted to acquire any personal benefit in the course of his agency without the know- ledge and consent of the principal (0). Every agent must account to the principal for every benefit, and pay over to the principal every profit, acquired by him in the course of the agency without the consent of the principal (0), even if, in acquiring the benefit or profit, the agent incurred a possibility (m) Stainton v. Carron Go., 1857, 24 Beav. 346 ; 27 L. J. Cli. 89; 3 Jur. N. S. 1235. {x) Teed v. Beere, 1859, 28 L. J. Oh. 782; 5 Jur. N. S. 381 ; Padwick V. Hurst, 1854, 18 Beav. 575 ; 18 Jur. 763 ; 23 L. J. Oh. 657 ; Burdich v. Garrich, 1870, L. E. 5 Ch. 233 ; 39 L. J. Oh. 369 ; 18 W. E. 387 ; Power V. Power, 1884, 13 L. E. Ir. 281. [y) See Re Lands Allotments Co., (1894) 1 Ch. 616 ; 63 L. J. Oh. 291 ; 70 L. T. 286; 7 E. 115, 0. A. (z) Parher v. McKenna, 1874, L. E. 10 Oh. 96 ; 44 L. J. Ch. 425 ; 31 L. T. 739 ; 23 W. E. 271 ; Morrison v. Thompson, 1874, L. E. 9 Q. B. 480 ; 43 L. J. Q. B. 215 ; 30 L. T. 869 ; 22 W. E. 839 ; Re North Australian Territory Go., Archer's case, (1892) 1 Ch. 322 ; 65 L. T. 800, 0. A.; Imp. Mercantile Credit Co. v. Coleman, 1873, L. E. 6 H. L. 189 ; 42 L. J. Oh, 644; 29 L. T. 1, H. L. ; Illustrations 1 to 12. OP AGENTS. 115 of loss(«), and the principal suffered no injury thereby (b). Where the principal is aware that the agent is paid for his services by third persons, but is under a mis- apprehension as to the extent of the remuneration, such remuneration is not a benefit or profit acquired without the consent of the principal within the meaning of this Article, unless the agent misinformed or inten- tionally misled the principal as to the extent thereof (c). Illustrations. 1. An agent pureliases a debt due from his principal to a third person. He is only entitled to recover from his principal the amount he actually paid for the debt (d) . 2. A barrister who was employed as a legal adviser and confidential agent, having acquired a knowledge of his client's property and liabilities, purchased certain charges on the client's estates for less than their nominal value, after he had ceased to act for the client. Held, that he was only entitled to recover from the client the amount actually paid for the charges, with interest, he having purchased them without the consent of the client (e). The employment of a person in such a capacity disables him from purchasing any such charges, or otherwise obtaining a personal benefit in the course of his employment, except with the principal's permission, and the disability continues for so long after the fiduciary relation has ceased as the reasons on which it is founded continue to operate (e). 3. A. consigned a ship to B. Jor sale at a minimum price. (a) Williams v. Stevens, 1866, L. E. 1 P. 0. 352; 36 L. J. P. 0. 21; 4 Moo. P. C. 0. (N. S.) 235 ; 15 W. R. 409, P. 0. (6) Parker v. McKenna, supra, note (z). (c) lUustration 13. \d) Reed v. Norris, 1837, 2 M. & 0. 361, 374 ; 1 Jur. 233. (e) Garter v. Palmer, 1841, 8 CI. & F. 657, H. L. l2 116 DUTIES B., with A.'s consent, employed C. to sell the ship. 0., being unable to find a purchaser, bought the ship hinaself at the minimum price without the consent of A., and subsequently resold her at a large profit. Held, that 0. must account to A. for the profit (/). So, where a broker is instructed to buy shares at a certain price, he must account for the profit if he obtains the shares at less than that price (g). Where an agent makes a secret profit in the course of his employment, and there are no accounts remaining to be taken between him and his principal, he is bound to pay over such profit as money had and received to the use of the principal (A). 4. A partner, in negotiating the transfer of a lease on behalf of the firm, stipulated for a personal benefit. Held, that he must account to the firm for the benefit received (^). 5. A., having bought certain shares at 21. each, and knowing that B. desired to purchase some, represented that he could obtain them at 3^. or less, and asked B. to authorize him to buy at 3/. B. gave him the authority. A. then transferred his own shares to B. at 31. each, representing that 0. was the vendor. Held, that A. must account to B. for the profit of 1^. per share (k). 6. A. requested B. to provide an outfit for A.'s son. B. did so, and obtained certain discounts, but charged A. the full prices. The discounts were disallowed, although B. did not charge any commission as an agent (1) . 7. A shipmaster, being authorized to employ his vessel to the best advantage, and being unable to procure remunerative (/) De Bussche v. Alt, 1877, 8 Ch. Div. 286 ; 47 L. J. Ok 381 ; 38 L. T. 370, 0. A. And see Barker v. Harrison, 1846, 2 Coll. 546. {g) Thompson v. Meade, 1891, 7 T. L. E. 698. {h) Morrison v. Thompson, 1874, L. E. 9 Q. B. 480 ; 43 L. J. Q,. B. 215; 30 L. T. 869; 22 W. E. 859. (i) FawcettY. Whiiehouse, 1829, 1 Euss. & JM. 132; 4 L. J. Oh. 64; 8 L. J. Oh. SO. (k) Kimher v. Barher, 1872, L. E. 8 Oh. 56 ; 27 L. T. 526 ; 21 W. E. 65. [T) Tiirnbull v. Garden, 1869, 20 L. T. 218. See Queen of Spain y. Parr, 1869, 39 L. J. Oh. 73. OF AGENTS. 117 freight, loaded her with a cargo of his own. Held, that he must account to the owners for the profit made hy the sale of the cargo, and not merely for reasonable freight (m). 8. Commission agents, who are also merchants, are employed to ship and sell goods ahroad. They do so, and purchase other goods with the proceeds. They are not bound to account for the profit on the sale of the goods bought with the proceeds, because such profit is not made in the course of the agency. They are only bound to account for the proceeds of the goods sold on the principal's behalf («). 9. The vendor to a company gives the secretary 600 fully paid up shares. The secretary must account to the company for the highest value of the shares during the time that he is the holder thereof (o). Directors of companies (o) . 10. The directors of a company, on the transfer of the busi- ness to another company, receive from the transferees, without the knowledge of the transferors, a large sum by way of com- pensation. They must pay over such sum to the first-mentioned company {p). Neither directors nor ofiicers of a company are permitted to retain any pecuniary benefits acquired in the eon- (m) Shallcross v. Oldham, 1862, 2 Johns. & H. 609 ; 5 L. T. 824 ; 10 W. E. 291. (n) Kirhham y. Peel, 1881, 44 L. T. 195 ; 43 L. T. 171 ; 28 W. E. 941, C. A. (o) McKay's case, 1875, 2 Oli. Div. 1 ; 45 L. J. Cli. 148 ; 33 L. T. 517, 0. A. Promoters of a company are not allowed to make secret profits in their dealings with the company. See Erlanger v. Nevj Sombrero Phos- phate Co., 1878, 3 App. Cas. 1218; 48 L. J. Ch. 73; 39 L. T. 269; 27 W. E. 65, H. L. ; Bagnall y. Garlton, 1877, 6 Ch. Div. 371 ; 47 L. J. Ch 30 ; 26 W. E. 243 ; 37 L. T. 481, 0. A. ; Sydney and Wigpoollron Ore Go V. Bird, 1886, 33 Ch. Div. 85; 55 L. J. Oh. 875; 55 L. T. 558, 0. A. Emma Silver Mining Co. v. Lewis, 1879, 4 0. P. D. 396; 48 L. J. C. P 257 ; 40 L. T. 168 ; 27 "W. E. 836 ; Same v. Grant, 1877, 11 Ch. Div. 918 40 L. T. 804 ; Whaley Bridge Galico Co. v. Green, 1879, 5 Q. B. D. 109 49 L. J. Q. B. 326; 41 L. T. 674 ; 28 W. E. 351. ( p) Gaskell v. Chambers, 1858, 26 Beav. 360 ; 5 Jur. N. S. 52 ; 28 L. J Oh. 385. 118 DUTIES duct of the company's business, unless the particulars of such benefits are fully explained to, and are approved of by, the shareholders {q). So, a solicitor-director is not permitted to receive any remuneration for his services, professional or other- wise, unless such remuneration is sanctioned by resolution of the shareholders (r). 11. A. agreed to become a director of a company on conditioli that the promoters indemnified him in respect of the amount paid for qualification shares. A. afterwards resigned, and the promoters, in pursuance of the agreement, purchased the shares (which had become valueless) from him at the original price. Held, that A. must account to the company for the value of the indemnity constituted by his secret agreement with the pro- moters — i.e., for the original price of the shares (s). 12. The first five directors of a company, being bound to each hold twenty qualification shares, accepted that number from the promoter with the knowledge and approval of each other. Held, that the directors were jointly and severally liable to pay to the liquidator of the company the original value of such shares [t). Every director who receives a gift from the promoters of his company is bound to account to the company either for the gift or for its highest value during the time it is held by him, at the option of the company (u). Thus, where a director received his qualification shares from the promoter, and the company was afterwards wound up, it was held that he must account to the liquidator for the nominal value of the shares (x) ; where a {q) General Exchange Bank ^. Horner, 1869, L. E. 9 Eq. 480; 39 L. J. Oh. 393 ; 22 L. T. 693 ; 18 W. E. 414. (r) N. E. Bail. Go. v. Jackson, 1870, 19 W. E. 198. (s) In re North Australian Territory Co., Archer s case, (1892) 1 Oh. Div. 322 ; 65 L. T. 800, 0. A. (i) In re Carriage Cooperative Supply Association, 1884, 27 Oh. Div. 323; 51 L. T. 286 ; 53 L. J. Oh. 1154; 33 W. E. 411. (a) Eden v. Sidsdales Lamp, &c. Co., 1889, 58 L, J, Q. B. 579 ; 61 L. T. 444, 0. A. (a;) Pearson's case, 1877, 5 Oh, Div. 336 ; 46 L. J. Oh. 339; 25 W. E. 618, 0. A, OF AGENTS. 119 director received the money to pay for his qualification shares, it was held that he must account for the amount received, with interest from the date of its receipt (y) . 13. Misapprehension as to extent of remuneration. — It is usual for underwriters to allow insurance brokers, for punctual pay- ment of premiums, ten per cent, cash discount, or twelve per cent, calculated on the yearly profits, in addition to the ordinary commission of five per cent, on each re-insurance. A company, having made no inquiry as to the remuneration paid by the underwriters, and not being aware of the twelve per cent, allow- ance, employed an insurance agent to negotiate its business. After the agent (who received no remuneration from the com- pany) had been paid the usual allowance of twelve per cent, for more than eight years, the company discovered it and claimed to have it paid over to them- as secret profit. It was held that they were not entitled to recover (s) . This decision has been followed by the Court of Appeal in a later case, on the ground that every person who employs another as his agent with the knowledge that the agent receives his remuneration from third persons, and who does not choose to inquire what the charges of the agent will be, must allow all the usual and customary charges of such an agent, and is not entitled to dispute them on the ground that he is a foreigner and was not aware of the extent of the remuneration usually received by such agents {a). In Re Oape Breton Co. {b), the Court of Appeal, affirming the decision of Pearson, J., held that where an agent secretly sells to his principal goods which were the property of the agent before the commencement of the agency, and the principal declines to rescind the contract, or rescission has become impos- {y) Bay's case, 1875, L. E. 10 Oh. 593 ; 33 L. T. 466; 44 L. J. Oh. 721; In re Drum Slate Quarry Co., 1883, 55 L. J. Oh. 36; 53 L. T. 250. (z) Great Western Insurance Co. of New York v. Ounliffe, 1869, L. E. 9 Oh. 625; 30 L. T. 661 ; 43 L. J. Oh. 741, Oh. App. (a) Baring v. 8tanton, 1876, 3 Oh. Div. 502; 35 L. T. 652 ; 25 W. E, 237, 0. A. (6) 1884, 26 Oh. Div, 221 ; 29 Oh. Div. 795, 0. A. 120 DUTIES sible, the agent cannot, in the ahsence of fraud, he called upon to account for the profit made by him upon the transaction, or for the difference between the contract price and the market value. On appeal to the House of Lords (c) this doctrine was disapproved, but the decision was affirmed upon another ground. The doctrine appears to be irreconcilable with Kimber v. Barber (d) ; but the Court of Appeal have followed it in a later case (e), the judges remarking that, as the former decision had not been definitely overruled, it was binding upon them (e). Where it is clear that an agent has acquired a profit by secretly selling his own goods to his principal, it is difficult to see why the fact that the goods belonged to him before the commence- ment of the agency should entitle him to retain such profit, especially if rescission of the contract became impossible before the principal acquired a knowledge of the circumstances. SPECIAL DUTIES OF PARTICULAR CLASSES OF AGENTS. 1. — Factors. It is the duty of a factor — (1) to give his principal the free and unbiassed use of his judgment and discretion (/) ; (2) to act in person, unless authorized to delegate his autho- rity {g) ; (3) to keep and render just and true accounts (/) ; ^ (4) to keep the property of the principal separate/ from his own and that of others (/) ; (5) to keep each sale distinct and separate from other trans- actions {h) ; (c) Sah nomine Cavendish Bentinck v. Fenn, 12 App. Oas. 652. {d) 18Y2, L. E. 8 Ch. 56; 27 L. T. 526; 21 W. E. 65, Oh. App.; ante. Illustration 5. (e) Ladywell Mining Go. v. Brooks, 1887, 35 Ch. Div. 400 ; 56 L. J. Ch. 684 ; 56 L. T. 677 ; 35 "W. E. 785, 0. A. (/) Clarhe v. Tipping, 1846, 9 Beav. 284. {g) Cochran v. Irlam, 1814, 2 M. & S. 301 ; 15 E. E. 257. And see Article 39. (/i) Guerreiro v. Peile, 1820, 2 B, & Aid. 616 ; 22 E. E. 500, OF AGENTS. 121 (6) to account for goods sold, pay over the proceeds, and deliver unsold goods to the principal on demand («') ; (7) to keep goods intrusted to him for sale with as much care as would be taken by a prudent man in respect of his own goods {j), and not to barter {k) or pledge them il) unless expressly authorized to do so ; (8) to insure goods consigned to him, if instructed to do so, or if he has been in the habit of doing so {m) . 2. — Brokers. It is the duty of a broker — (1) to contract in the name of the principal, subject to any special instructions or usage to the contrary («) ; (2) to execute contracts in such a way as to be legally binding on both parties (o), and so as to give each party a right to sue thereon (p) ; (3) to comply with statutory provisions, in entering into contracts, notwithstanding a custom amongst brokers to disregard such provisions (q) ; (4) to make a careful estimate of the value of goods which he is instructed to seU, so that he may not sell them for less than their value (r) ; (5) to exercise his skill, and fairly communicate his opinion to his principal (s) ; (i) Topham v. Braddich, 1809, 1 Taunt. 572 ; 10 E. E. 610. {j) Coggs v. Bernard, 2 Ld. Eaym. 909, 918. (k) See note (A), supra. \t) Martini v. Coles, 1813, 1 M. & S. 140 ; Gill v. Kymer, 1821, 5 Moo. 503; Fielding v. Kymer, 1821, 2 B. & B. 639. (m) Smith v. Lascelles, 1788, 2 T. E. 187 ; 1 E. E. 457. («) Baring v. Corrie, 1818, 2 B. & A. 137 ; 20 E. E. 383. See Article 38, lUust. 6. (o) Grant v. Fletcher, 1826, 5 B. & 0. 436. (p) Bostoc]cy.Jardine,1665, 3B.. &C. 100; 34L. J.Ex. 142; 12L.T.577. (2) E.g., Leeman's Act (30 Vict. c. 29); Neilsony. James, 1882, 9 Q. B. D. 546 ; 51 L. J. Q. B. 369 ; 46 L. T. 791, C. A. (r) Solomon v. Barker, 1862, 2 F. & F. 726. (s) Exp. Dyster, 1816, 2 Eose, 349. 122 DUTIES (6) not to deliver goods sold hj him, except in accordance •with the terms of sale (t) ; (7) not to sell his own goods to his principal, nor huy the principal's goods himself, without full and fair disclo- sure {u). It is not part of his duty, in the absence of a special contract or custom, to examine goods bought by him, for the purpose of ascertaining whether they are of the quality bought («). 3. — Shipmasters. It is the duty of a shipmaster to give the whole of his time to the service of his principal, and therefore not to trade on his own account (y), nor give any portion of his personal services to another (z). A custom for shipmasters to trade on their own account is, apparently, illegal (y). 4. — Auctioneers. It is the duty of an auctioneer — (Ij to act in person (a) ; (2) to sell for ready money only, in the absence of instructions to the contrary (b) ; (3) to disclose his principal (c) ; (4) to see that the deposit is duly paid {d), and, if it be paid (t) Boorman v. Srown, 1842, 2 G. & D. Y93; 3 Q.. B. 511 ; 11 0. & F. 1. (m) Wilson, v. Short, 1847, 6 Hare, 366 ; 17 L. J. Ch. 289 ; 12 Jur. 301 ; Tetley v. Shand, 1872, 25 L. T. 658 ; 20 W. E. 206 ; Rothschild v. Brovk- man, 1831, 2 Dow. & 0. 188 ; 5 BK. N. S. 165, H. L.; JEx p. Huth, re Pemberton, 1840, Mont. & Oh. 667; 4 Dea. 294. (ce) Zioilchenhart v. Alexaiider, 1860, 1 B. & S. 234 ; 30 L. J. Q. B. 254 ; 7 Jur. N. S. 1157; 4 L. T. 412, Ex. Ch. {y) Gardner v. M'Cutcheon, 1842, 4 Beav. 534. (z) Thompson v. Raveloch, 1808, 1 Camp. 527 ; 10 E. E. 744. (a) Coles v. Trecothick, 1804, 9 Ves. 234 ; 1 Smith, 233; 7 E. E. 167. (6) Ferrars v. Bobbins, 1835, 2 0. M. & E. 152 ; 1 Gale, 70 ; 5 Tyr. 705 ; Sykes v. Giles, 1839, 5 M. & W. 645. (c) Franklyn v. Lanwnd, 1847, 4 C. B. 637; 16 L. J. 0. P. 221 ; 11 Jur. 780. [d) Hihhert v. Bayky, 1860, 2 P. & F. 48. OF AGENTS. 123 to him, to hold it as stakeholder until the completioii of the transaction (e) ; (5) to sell to a third person (/) ; (6) to accept the highest bond fide bid, where he sells without reserve, notwithstanding express instructions from his principal to the contrary (cj) ; (7) to account for the proceeds of goods sold, to the person from whom he received them (A) ; (8) not to deliver goods sold until paid for, nor allow any deduction from the price, unless authorized' to do so by the principal (;') ; (9) if appointed to conduct a sale by the Court, to pay into Court any money received by him (A). 5. — Solicitors. It is the duty of a solicitor — (1) to obey the express instructions of his clients notwith- standing counsel's advice to the contrary (/) ; (2) to give his clients his personal superintendence and judg- ment {m) ; (3) to know and observe the rules of practice and procedure in the Courts {n) ; (e) Gray v. Gutteridge, 1827, 3 0. & P. 40 ; Tatea v. Farebrother, 1819, 4 Madd. 239 ; Burruugli v. Shinner, 1770, 5 Burr. 2639. (/) Oliver v. Court, 1820, Dan. 301 ; 8 Price, 127 ; 22 R. E. 720. {g) Warlow v. Harrison, 1858, 1 El. & El. 309 ; 29 L. J. Q. B. 14 ; 6 Jur. N. S. 66, Ex. Ch. ; Bexwell v. Christie, 1776, Cowp. 395. (A) Crossheys v. Mills, 1834, 1 0. M. & E. 298; Crowther y. Elgood, 1887, 34 Oh. Div. 691 ; 56 L. J. Gh. 416 ; 56 L. T. 415 ; 35 W. E. 369, 0. A. (i) Brown v. StatOn, 1816, 2 Chit. 353. {h) Biggs v. Bree, 1882, 51 L. J. Oh. 64, 263 ; 45 L. T. 648 ; 46 L. T. 8 ; 30 W. E. 132, 278, 0. A. {I) Frayy. Voules, 1859, 1 El. & El. 839; 28 L. J. Q. B. 232; 5 Jur. N. S. 1253; 7 W. E. 446; Butler y. Knight, 1867, L. E. 2 Ex. 109; 36 -L. J. Ex. 66 ; 15 L. T. 621 ; 15 W. E. 407. (m) Hopkinson v. Smith, 1822, 1 Bing. 13. (w) Godefroy v. Daltun, 1830, 6 Bing. 460, 124 DUTIES (4) to check useless litigation (o), and before instituting pro- ceedings, especially on behalf of a wife against her husband, to carefully ascertain the facts of the case, and whether there is a reasonable prospect of suc- cess ( p) ; (5) to keep secret all confidential communications made to him by his client, and all information and knowledge of his client's affairs acquired ia the course of his employment {q) ; (6) not to act for the opponent of his client, or of a former client, in any matter in which such client or former client has an interest (r). An injunction will be granted to restrain a solicitor from acting for the opponent of a former client, whenever the transaction in reference to which the injunction is sought so flows out of or is connected with that in which he acted for the former client, that the same matter of dispute may probably arise (s). "Where a solicitor had acted for the executor and devisee of a deceased client, he was at their instance restrained from acting for a creditor of the estate, although such creditor had been a client of his before he had acted for the deceased (t) . In the application of this principle it is quite immaterial whether the solicitor was discharged by his former client, or ceased to act for him voluntarily (r). (o) Ottleifv. Oilhy, 1845, 8 Beav. 602 ; 14 L. J. (N. S.) Oh. 177. [p) Re Hooper, Baijlis v. WatUns, 1864, 33 L. J. Ch. 300; 10 Jur. N. S. 114; 9 L. T. 741 ; 12 W. E. 324. (?) Davies v. Clough, 1836, 8 Sim. 262 ; 6 L. J. (N. S.) Oh. 113 ; Biggs v. Bead, 1837, San. & So. 335; Taylor v. SlacMow, 1836, 3 Scott, 614; 3 B. N. 0. 235 ; 2 Hodges, 224. (r) Little v. Kingswood Colliery Co., 1882, 20 Ch. Div. 733; 52 L. J. Ch. 56; 47 L, T. 323; 21 W. E. 178, C. A. ; Hutchins v. Hutchim, 1825, 1 Hog. 315 ; Davies v. Cloug}i{c\iedi in last note) ; Cholmondeley y. Clinton, 1815, 19 Ves. 261 ; 13 E. E. 183 ; Biggs v. Head, 1837, Sau. & So. 335, and cases reported in notes thereto. (s) Little V. Kingswood Colliery Co., supra. (t) Biggs v. Head, supra. OF AGENTS. 125 (7) to continue, until its termination, the conduct of any cause undertaken by him, unless there is good reason to abandon it [e.g., the failure of the client, after reason- able notice, to supply him with funds for out of pocket expenses), and when there is such good reason, to give his client reasonable notice of his intention to abandon the cause {n) ; (8) not to bargain for nor accept any gift or reward from his client during the continuance of his employment, be- yond the amount of his proper professional remunera- tion ix) ; (9) if he prepares a deed in which he takes a personal inte- rest, to insert all the usual clauses and fully explain to the cKent the effect of the deed {y) ; (10) if he contracts with a client, to fully explain the trans- action and make a full and fair disclosure of everything known to him respecting the subject matter (s) ; (11) if he receives the deposit at a sale by auction, to pay it over to his client on demand, and not retain it as a stakeholder {a). (m) NicholU v. Wilson, 1843, 2 D. N. S. 1031 ; 11 M. & W. 106 ; 12 L. J. Ex. 266; Harris v. Oslorn, 1834, 2 0. & M. 629; 4 Tyr. 445; Whitehead r. Lord, 1852, 7 Ex. 691; 21 L. J. Ex. 239; Van Sandau T. Brown, 1832, 9 Bing. 402 ; 2 M. & Scott, 543 ; 1 D. P. 0. 715 ; Sobt/ V. Built, 1832, 3 B. & Ad. 350 ; Wadsworfh v. Marshall, 1832, 2 C. & J. 665; Underwood v. Lewis, (1894) 2 Q. B. 306; 64 L. J. Q. B. 60; 70 L. T. 833 ; 9 E. 440, 0. A. (cc) O'Brien v. Lewis, 1863, 32 L. J. Ch. 569 ; 9 Jur. N. S. 528 ; 8 L. T, 179 ; 11 W. E. 318. See Article 49, illustration 12. (y) CockhurnY. Edwards, 1881, 18 Oh. Div. 449; 51 L. J. Oh. 46, O.A. This principle applies also to counsel : Segrave v. Kirwan, 1828, Beat. 157. (z) Pisani y. Gibraltar, 1874, L. E. 5 P. 0. 516, P. 0. ; Savery v. King, 1856, 5 H. L. Oas. 627 ; 2 Jur. N. S. 503 ; 25 L. J. Oh. 482, H. L. ; Wardy. Sharp, 1883, 53 L. J. Oh. 313; 50 L. T. 557; Luddt/ v. Peard, 1886, 33 Oh. Div. 500; 55 L. J. Oh. 884; 55 L. T. 137. See Article 49, Illustrations, 5, 6, 9, and 10. (a) Edgell v. Bay, 1865, L. E. 1 0. P. 80; 35 L. J. 0. P. 7; 12 Jur. N. S. 27 ; 13 L. T. 328 ; 14 W. E. 87 ; H. & E. 8. 126 LIABILITIES OF CHAPTER VII. Liabilities of Agents to their Principals. Article 52. IN RESPECT OP CONTRACTS ENTERED INTO ON BEHALF OF THE PRINCIPAL, Except in the case of insurance Ibrokers, who are, by usage, personally liable to the underwriters for pre- miums payable under policies effected by them (a), no agent incurs any personal liability to his principal in respect of any contract entered into by him on the principal's behalf, and in pursuance of his authority, unless he was acting under a del crec^e^-e commission (b). Where an agent enters into a contract under a del credere commission, he is personally responsible to the principal for the due performance of the contract by the other contracting party (c). Right of set-off hy insurance brokers. — It has been held that ■wbere an insurance broker is sued by the trustee of a bankrupt {a) Baker Y. Langhorn, 1816, 6 Taunt. 519; 4 Camp. 396; 2 Marsh. 215; 16 E. E. 662 ; Lee v. BuUen, 1858, 27 L. J. Q. B. 161 ; 8 El. & Bl. 692, n. ; 4 Jur. N. S. 557. (b) Vardeny. Parker, 1799, 2 Esp. 710; Ahony. Sylvester, 1823, 1 0. & P. 107. (c) Hornly T. Lacy, 1817, 6 M. & S. 166; 18 E. E. 345; Morris y. Cleashy, 1816, 4 M. & S. 566; 16 E. E. 544. AGENT TO PRINCIPAL. 127 underwriter for premiums due to tlie bankrupt, the broker has a right to set off the amount of a loss which occurred prior to the bankruptcy under a policy underwritten by the bankrupt, and effected by the broker in his own name under a del credere commission, even if the bankrupt was not aware that the broker was acting under a del credere commission, on the ground that such transactions are mutual dealings within the meaning of the Bankruptcy Acts {d). It was laid down by Lord Mansfield in Grove v. Dubois, 1 T. El. 112, that an agent who sold goods under a del credere commission was liable in the first instance to the principal for the price, but it is now settled that such an agent is in the posi- tion of a surety, and only becomes liable on the purchaser's default (e). Article 53. LIABILITY ON BILLS OF EXCHANGE SIGNED WITHOUT QUALIFICATION. Where an agent, in the course of his employment, signs a ]bill of exchange in his own name, without qualification, as drawer or indorser, the question whether he is personally liable to the principal, as the holder of the bill, depends upon what was the real intention of the parties. If the agent intended to bind himself, or if, by signing without qualification, he led the principal to believe that such was his intention, and to act in a way in which he would not have acted but for such belief, the agent is liable to the holder on the bill, even if the principal is the holder thereof. {d)-Lee v. Biillen, 1858, 27 L. J. Q. B. 161 ; 8 El. & Bl. 692, n. ; 4 Jur. N. S. 557, Hmiting the eflect of Baker v. Langlwrn, 1816, 6 Taunt. 519 ; 16 E. E. 664. (e) See note (c) supra. 128 LIABILITIES OF Otherwise the agent is not liable to the principal on the bill (e). Thus, where a broker, who had no authority to draw bills on behalf of the principal, was employed to sell goods, and sold them for a bill at a given date, and drew on the purchaser for the amount, he was held liable to the principal on the bill, on the ground that his signature, as drawer, might have misled the principal, and prevented him from making inquiries as to the solvency of the purchaser (e) . So, if an agent who is instructed to purchase foreign bills for his principal, indorses such bills, intending to guarantee them, or indorses and sends his own bills in execution of the order, he is liable to the principal on the indorsement (e) . But, where it is not intended that the agent shall be bound, the mere fact that he signs a bill without quali- fication does not render him liable to the principal, but only to third parties who become holders thereof in due course (e). Article 54. LIABILITY FOR NEGLIGENCE AND OTHER BREACHES OF DUTY. Except in the case of counsel, who are under no legal liability to their clients for negligence or other breaches of duty in the course of their employment, as such(/), every agent is liable to make good any legal damage suffered by his principal as a reasonable or probable consequence of the agent's negligence, (e) Oastrique v. Buttigieg, 1855, 10 Moo. P. 0. 0. 94, P. 0. ; Ooupy v. Harden, 1816, 2 Marsh. 454; 7 Taunt. 159; Holt, 342; 17 E. E. 478; Le Feuvre v. Lloyd, 1814, 1 Marsh, 318 ; 5 Taunt. 749 ; 15 E. E. 644. (/) Fell v. Brown, 1791, 1 Peake, 131; 3 E. E. 663; Mulligan v. M'Donough, 1860, 2 L. T. 136; 5 Ir. Jur. N. S. 101. AGENT TO PRINCIPAL. 129 want of due skill, or other breach of duty in the course of his employment. Provided that — (a) where an agent is clearly authorized to do a particular act, he is not liable to the prin- cipal for injurious consequences arising from the imprudent or improper nature of that act(^); (b) where an agent strictly follows the instructions of the principal (/^), or, in the absence of express instructions, acts in accordance with usage and in the ordinary course of busi- ness (i), or upon the best advice he can obtain under the circumstances (k), or uses his best judgment in a matter of pure discre- tion (^), he is not liable to the principal for any damage resulting therefrom. Actionable negligence, in the case of an unpaid agent, is neglect to exercise such skill as he actually possesses, or has held himself out to possess, and such care and diligence as he would exercise in regard to his own affairs (jn). Actionable negligence, in the ( g) Illustration 12. \h) Pariente\. LuUock, 1855, 8 De G. M. & G. 5 ; 20Beav. 588; War- wick V. Noakea, 1790, 1 Peake, 98 ; 3 E. E. 653. (0 Russell Y. Sankey, 1194:, 6T. E. 12; 3 E. E. 102; Lambert y. Heath, 1846, 15 M. (feW. 486; Moore v. Mourgue, 1776, Cowp. 479; Illustra- tions 8 and 11. {h) Miles V. Bernard, 1795, 2 Peake, 61. {I) Oomher Y. Anderson, 1808, 1 Camp. 523. (m) See Article 44, and cases tkere cited. Beal v. South Devon Bail. Co., 1864, 3 H. & 0. 337; 11 L. T. 184; 12 W. E. 1115, Ex Oli; lUus- tration 16. B. K 130 LIABILITIES OF case of a paid agent, is neglect to exercise such skill, - care, and diligence as is usual in the ordinary and proper course of the particular business in which he is employed (n). Illustrations. Disobedience to instructions. 1. A solicitor enters into a compromise on behalf of his client, notwithstanding express instructions from the client not to do so. He is liable to the client for damages, though the com- promise was reasonable, and was entered into in good faith for the benefit of the client, and on the advice of the counsel engaged in the case (o) . 2. An agent was instructed, and undertook, to warehouse certain goods at a particular place. He warehoused a portion of such goods at another place, where they were destroyed, without negligence. Held, that the loss of the goods was a natural consequence of the agent's disobedience to instructions, and that he was liable to the principal for their value {p). 3. An agent is instructed to insure certain goods, which he neglects to do. He is liable to the priucipal for the value of the goods, in the event of their beiug lost (j). Other breaches of dutij. 4. An agent pays his principal's money into his own account at the bank, it being his duty to pay it iuto a separate account. He is responsible for the failure of the banker, though acting gratuitously (r). (ra) See Article 44, and cases there cited. As to liability of solicitors for negligence, see_posi, p. 135. (o) BatUr v. Knkjlxt, 1867, L. E. 2 Ex. 109; 36 L. J. Ex. 66; 15 L. T. 621 ; 15 W. E. 407; Fray v. Voules, 1859, 1 El. &E1. 839; 28 L. J. Q.B. 232 ; 5 Jur. N. S. 1253 ; 7 W. E. 446. (j)) Lillnj V. Doulhday, 1881, 7 Q. B. D. 510; 51 L. J. Q. B. 310; 44 L. T. 814, C. A. {q) Smith v. LasceUes, 1788, 2 T. E. 187 ; 1 E. E. 457. {r) WreiiY. Kirton, 1805, 11 Ves. 377; 8 E. E. 174; Massey Y.Banner, 1820, 1 Jac. & Walk. 241 ; 4 Madd. 413 ; 21 E. E. 150. AGENT TO PRINCIPAL. 131 5. A broker was authorized to sell and deliver certain goods. He contracted to sell them for cash on delivery. It then became his duty not to deliver the goods without payment. Held, that he was liable to the principal in damages for having delivered the goods without payment (s). 6. A broker is authorized to sell goods at a certain price. He sells them at a lower price. He is liable to the principal in damages for the breach of duty {t) . So, a broker who sold goods by auction at much below their real value, not having made an estimate of the value in accordance with usage, was held liable in an action for negligence (u). But an auctioneer is not liable to his principal for accepting the highest bond fide bid at a sale without reserve in opposition to the principal's express instructions, because such instructions are illegal, and it is not his duty to obey them («). 7. An auctioneer takes a bill of exchange in payment of the price of goods sold by him. He is Kable to the principal for the amount, if the bill be dishonoured («/). So, an estate agent who accepts a cheque in lieu of cash is liable to the principal for the amount, in the event of the cheque being dishonoured {z). 8. A London banker receives biUs from a correspondent in the country, to be presented for payment. He gives up the bills to the acceptor, in exchange for a cheque for the amount, that being the usual and ordinary course amongst bankers. The cheque is dishonoured. The banker is not liable in an action for negligence, having acted in the ordinary course of business and in accordance with usage («). 9. A solicitor, employed to procure a mortgage, discovers a defect in his client's title, which he afterwards discloses to (s) Boorman v. Brown, 1842, 2 G. & D. 793 ; 3 Q. B. 511 ; 11 0. & P. 1. {t) Dufresne v. Hutchinson, 1810, 3 Taunt. 117. \u) Solomon v. Barker, 1862, 2 F. & F. 726. (x) Bexwell v. Christie, 1776, Oowp. 395. \y) Ferrars v. Rollins, 1835, 2 0. M. & E. 152 ; 1 Gale, 70 ; 5 Tyr. 706. (z!) Pape V. Westacott, (1894) 1 Q. B. 272; 63 L. J. Q. B. 222; 70 L. T. 18 ; 42 W. E. 131 ; 9 E. 55 ; 10 T. L. E. 51. (o) Russell V. Hankey, 1794, 6 T. E. 12 ; 3 E. E. 102. k2 132 LIABILITIES OF another client, causing damage to the first-mentioned client. He is liable for the damage caused hy his breach of duty {b) . . So, where a solicitor without reasonable cause, or without giving his client reasonable notice of his intention to do so, abandons the prosecution or defence of an action, he is liable to the client for any loss occasioned thereby (c). .10. An auctioneer sells property under conditions requiring the payment of an immediate deposit. He is liable in an action for negligence, if he permits the highest bidder to go away without paying the deposit (d). JVegligence. 11. An insurance broker was employed to insure certain goods from a particular point in the voyage. He insured them " at and from that point, beginning the adventure from the loading thereof on board." Held, that he had been guilty of actionable negligence, for the consequences of which he was liable to his principal (e) . Actions for negligence against in- surance brokers have also been held to lie — (a) for not effecting a policy within a reasonable time (/) ; (b) for an omission to insert a clause usually inserted when insuring from the particular point {g) ; and (c) for an omission to communicate a material letter to the underwriters, in consequence of which the principal failed in an action on the policy (h). But, where a broker acts in good faith and in accordance with usage in effecting a policy, the mere fact that the insurance might possibly have been effected on better terms is not sufficient to render the broker (6) Taylor v. SlacUow, 1836, 3 Scott, 614; 3 B. N. C. 235 ; 2 Hodges, 224. (c) Soly T. Built, 1832, 3 B. & Ad. 350. (d) ffilhert t. Bayley, 1860, 2 F. & F. 48. (e) Park v. Hammond, 1816, 6 Taunt. 495; 2 Marsh. 189; 4 Camp. 344; Holt, 80; 16 E. E. 658. (/) Turpin Y. Baton, 1843, 5 Man. & G. 455 ; 6 Scott, N. E. 447 ; 12 L. J. 0. P. 167 ; 7 Jut. 950. (g) Mallough v. Barter, 1815, 4 Camp. 150. {h) Maydeiu v. Forrester, 1814, 5 Taunt. 615; 15 E. E. 597. AGENT TO PRINCIPAL. 133 liable to the principal for damages. To render him liable, it must appear that he has been guilty of negligence or of some breach of duty («). 12. Act in itself imprudent. — The directors of a limited com- pany whose object was to purchase a certain business were authorized by the articles of association " to purchase or acquire the said business as it then stood, upon such terms and under such stipulations as might be agreed upon." Held, that the directors were not liable, in the absence of proved gross negli- gence on their part, for the consequences of so carrying out the object of the company, the business, in fact, being in a state of insolvency at the time, they being clearly authorized to purchase the business as it stood, which was an act in itself imprudent (/c) . 13. Damage must not he too remote. — Certain bankers who were employed to receive the dividends on certain shares for a customer, for which they charged him a small commission, negligently allowed their manager to have the key of the safe where the certificates of the shares were kept. The manager fraudulently sold the shares, and forged the customer's name to a transfer thereof. Held, that although the bankers would have been liable to the customer for any loss occasioned to him as a reasonable or probable consequence of their negligence, the costs of an action to recover the shares from the transferee were too remote a consequence, for which they were not liable [1). 14. Damage m,ust be legal damage. — A. employs B., a turf commission agent, to make bets on his behalf. B. undertakes the commission, and neglects to make the bets. A. has suffered no legal damage, because the bets would have been void, and A. would not have been able to recover them by action, even if B. had duly made them on his behalf. A. therefore cannot main- (») Moore v. Mourgue, 1776, Oowp. 479; Comber v. Anderson, 1808, 1 Camp. 523. {h) Overend, Gurney & Co. v. Qihh, 1872, L. E. 5 H. L. 480 ; 42 L. J. Oh. 67, H. L. (Z) In re United Service Co., Johnston's claim, 1870, L. E. 6 Oh. 212 ; 40 L, J. Oh. 286 ; 24 L. T. 115 ; 19 W. E. 457. 134 LIABILITIES OF tain an action against B. for breach of duty, though it may he customary to pay such bets without action {m). So, where an agent who was instructed to insure certain slaves neglected to do so, it was held that he was not liable to his principal in an action for negligence, although it was customary for under- writers to pay in respect of such a policy, because, by reason of its illegality, the principal would have been unable to recover upon the policy at law (w). 15. Nominal damages, tJioiigh no actual loss. — An agent is instructed to present a bill for acceptance. He neglects to do so. The principal is entitled to recover nominal damages for the breach of duty, though he suffered no actual loss thereby, the bill having been paid by other parties thereto. In such a case legal damage is presumed (o). 16. Negligence of gratuitous agent. — A customer deposited certain securities with his hankers for safe keeping, the bankers receiving no reward for taking care of them. The securities were stolen by a clerk in the bankers' employ. Held, that the bankers, having acted gratuitously, were not liable, unless they had been guilty of gross negligence {p). A gratuitous agent is liable for gross negligence in the course of his employment iq) ; but not for mere want of skill (r), unless he is in a situation from which skill may be implied (s). But an omission to exercise such skill as he actually possesses, or has held himself out to possess, or such skill as may reasonably be implied from (m) Cohen v. Kittell, 1889, 22 Q. B. D. 680 ; 58 L. J. Q, B. D. 241 ; 60 L. T. 932 ; 37 W. E. 400. {n) Webster v. De Tastet, 1797, 7 T. E. 157 ; 4 E. E. 402. See, also, Duncan v. Skipimth, 1809, 2 Oamp. 68. (o) Wart V. Wolley, 1830, M. & M. 520. (p) GilliiiY. McMullen, 1869, L. E. 2 P. 0. 317; 38 L. J. P. 0. 25, P.O. {q) ElseeY. Oatioard, 1793, 5 T. E. 143; Wilkinson v. Coverdale, 1793, 1 Esp. 75; BeamhampY. Powley, 1831, 1 M. & Eob. 38; Doorman\. Jenkins, 1834, 2 A. & E. 256; 4 N. & M. 170. (r) Moffatt Y. Bateman, 1869, L. E. 3 P. 0. 115 ; 6 Moo. P. 0. 0. (N. S.) 369; 22L. T. 140, P. C. (s) SMelh v. Blackhurne, 1789, 1 H. Bl. 158 ; 2 E. E, 750. AGENT TO PRINCIPAL. 135 his profession or employmeat, or to exercise suoli care and diligence as he is in the habit of exercising in regard to his own affairs, is deemed to be gross negligence, for the consequences of which he is responsible to the principal {t). Liability of Solicitors for Negligence. A solicitor is not liable to his client for negligence in the performance of his duties, as such, unless he has been guilty of gross negligence or gross ignorance (?/). Where, however, there is any evidence at all of negligence, the question whether there has been gross negligence or not ought to be submitted to the jury (*). A lessee consulted a solicitor in reference to the build- ing of a certain wall, to the erection of which the lessor objected. The lease was shown to the sohcitor, who, without making any inquiries as to whether there was any obstacle other than what might be contained in the lease, advised that the lessee might build the wall, there being, in fact, a restrictive covenant in favour of the original vendors. Held, that there was no evidence of negligence for the jury {y) . So, a solicitor is not liable merely because he has made a mistake, or has given his client erroneous or bad advice (s) ; or has misinterpreted a rule of Court, the meaning of which is obscure (a). Nor is he liable for an error of judgment upon a point of new' occurrence, or of nice or doubtful construction, or in respect of a matter such as is usually {t) Wilson V. Brett, 1843, 11 M. & W. 113; 12 L. J. Ex. 264; Dartnall V. Howard, 1825, 4 B. & 0. 345 ; 6 D. & E. 438 ; Whitehead v. Oreeiham, 1825, 2 Bing. 464; 10 Moo. 183 ; M'Clel. & Y. 205, Ex. Oh. (m) Purves v. Landell, 1845, 12 0. & P. 91, H. L. ; Chapman v. Van Toll, Van Toll v. Chapman, 1857, 8 E. & B. 396 ; 27 L. J. Q,. B. 1 ; 3 Jur. N. S. 1126; Doohy v. WaUon, 1888, 39 Ok Div. 178; 57 L. J. Oh. 865 ; 58 L. T. 943 ; Lowry v. Ouildford, 1832, 5 0. & P. 234 ; Pitt v. Zalden, 4 Burr. 2060. [x) Ireson v. Pearman, 1825, 3 B. & 0. 799 ; 5 D. & E. 687. (y) Pitman v. Francis, 1884, 1 0. & E. 355. (a) Purves v. Landell, supra. la) Laidler v. UllioU, 1825, 3 B. & 0. 738. 136 LIABILITIES OF intrusted to counsel (b). But he is liable for the consequences of his ignorance or non-observance of the rules of practice; for want of reasonable care in the preparation of a cause for trial, or for neglecting to attend at the trial with his witnesses ; or for the mismanagement of so much of the cause as is usually intrusted to his department (S). Thus, where a solicitor was employed to take proceedings against certain apprentices for misconduct, and proceeded on the section of the statute relating to servants, he was held liable for the damages and costs incurred by reason of the error (c). So, where a solicitor allowed a case to be called on without ascertainiug whether a material witness, whom his client had promised to bring, was in Court, that was held sufficient evidence of want of reasonable care to go to the jury(rf). Where a solicitor allowed judgment to go against his client by default, it was held that the solicitor must show that there was no defence, in order to rebut the inference of negligence, and that it was not necessary for the client to prove that he had a good defence (e) . Solicitors have been held liable in actions for negligence — (1) for lending money on insufficient security (/) ; (2) for suing where the Court had no juris- diction (g) ; (3) for not duly filing certain writs, in accordance with the practice of the Court {h) ; (4) for not using due diligence to obtain satisfaction of a judgment («') ; (5) for investing trust moneys in improper securities (k) ; and (6) for missing a case which had been transferred to another judge, without the (J) aodefroy v. Dalton, 1830, 6 Bing. 460. (c) Hart v. Frame, 1839, 6 01. & F. 193 ; Maol. & E. 695, H. L. {d) Reece v. Righy, 1821, 4 B. & A. 202. (e) Godefroy v. Jay, 1831, 7 Bing. 413; 5 M. & P. 284. (/) In re Partington, Partington v. Allen, 1887, 57 L. T. 654. ((/) Williams v. Oihhs, 1836, 5 Ad. & E. 208 ; 6 N. & M. 788 ; 2 H. & W. 241. {h) Hunter ^r. Caldwell, 1847, 10 Q. B. 69, 83; 12 Jur. 285; 16 L. J. Q. B. 274, Ex. Oil. (i) Russell V. Palmer, 1767, 2 Wils. 325. [ic] Blyth V. Fladgate, Morgan v. Blyth, Smith v. Blyth, (1891) 1 Oh. 337; 60 L. J. Oh. 66; 63 L. T. 546; 39 W. E. 422. AGENT TO PEINCIPAL. 137 solicitor's knowledge, by order of the Lord Chancellor (/). If property comes to a solicitor in consequence of his ignorance, or of a breach of duty on his part, he is a trustee thereof for the persons who would have been entitled if he had known and done his duty. No solicitor is permitted to take advantage of his own ignorance or breach of duty {m). Article 55. MEASURE OF DAMAGES FOE NEGLIGENCE OE OTHEE BEEACH OP DUTY. The measure of damages in an action by a principal against his agent for negligence or any other breach of duty in the course of the agent's employment is the loss actually sustained by the principal as a reasonable or probable consequence of such negligence or breach of duty (n). Illustrations. 1. A commission agent in Hong Kong was instructed to pur- chase a quantity of a certain kind of opium. He purchased and shipped to his principal opium of an inferior kind. Held, that the proper measure of damages was the loss actually sustained by the principal in consequence of the opium not being of the description ordered, and not the difference between the value of the description ordered and of that shipped (o). {I) Burgoine v. Taylor, 1878, 9 Cli. Div. 1 ; 47 L. J. Oh. 542 ; 38 L. T. 438 ; 26 W. E. 568, 0. A. (m) BulTceley v. Wilford, 1834, 2 01. & P. 102; 8 Bli. N. S. Ill, H. L. (w) In re United Service Co., Johnston's claim, 1870, L. E. 6 Oh. 212; 40 L. J. Ch. 286; 24 L. T. 115 ; 19 W. E. 457, Ch. App. ; Gassahoglou v. Gihb, 1882, 9 Q. B. D. 220; 51 L. J. Q. B. 593; 47 L. T. 98 ; 11 Q. B. D. 797; 52 L. J. Q. B. 538; 48 L. T. 850, 0. A. ; Fishery. Val de Travers Co., 1876, 1 0. P. D. 511; 45 L. J. 0. P. 479; 35 L. T. 366; Hadley r. Baxendale, 1854, 9 Ex. 341; 23 L. J. Ex. 182; Bertram y. Oodfray, 1830, 1 Knapp P. 0. C. 381, P. 0. And see Illustrations. (o) Caseaioglou v. Oibb, supra. 138 LIABILITIES OF 2. An agent is instructed to insure his principal's goods, and wilfully or negligently omits to do so. He is liable to the same extent as the underwriters would have been if the goods had been duly insured [p). 3. An insurance broker, in effecting a policy, omitted to dis- close a material letter, the consequence being that his principal failed in an action against the underwriters on the policy. Held, that the broker was liable for the actual loss sustained by the principal in consequence of the omission, including the costs of the action against the underwriters [q). 4. A. employs B. to buy tobacco of the best quality. B. delegates his employment to C, who buys an inferior quality. A. recovers damages from B. for the breach of duty. B. is entitled to recover from C. the full amount of the damages and costs incurred by him in the action by A. (r). 5. A solicitor, employed to effect a mortgage, neglected to ascertain that a third person had an equitable charge thereon to the extent of 46/. The client had to pay the amount of the charge, on a sale of the property, to enable him to convey it to the purchaser. Held, that 46/. was the proper measure of damages for the negligence, in the absence of evidence reducing the amount (s). 6. A stockbroker, employed to sell joint stock bank shares, omitted to insert in the contract the number of the shares, or the name of the registered proprietor thereof, as required by Lee- man's Act, the omission rendering the contract void. Held, that the principal was entitled to recover, as damages for the breach of duty, the amount he would have obtained for the shares if they had been validly sold {t) . {p) Smith V. Price, 1862, 2 F. & F. 748 ; Tickel v. Short, 1750, 2 Ves. 239. {q) Maydew v. Forrester, 1814, 5 Taunt. 615 ; 15 E. E. 597. (r) Mainwaring v. Brandon, 1818, 2 Moore, 125 ; 19 E. E. 497. (s) Whiteman v. Hawkins, 1878, 4 0. P. D. 13 ; 39 L. T. 629 ; 27 W. E. 262. it) Neilson v. James, 1882, 9 Q. B. D. 546 ; 51 L. J. Q. B. 369 ; 46 L. T. 791, 0. A. AGENT TO PEINCIPAL. 139 7. An agent was instructed not to part witli the possession or control of certain goods until they were paid for. He parted with them, and the purchaser failed to pay the price. Held, that the measure of damages was the value of the goods, which the principal had lost in consequence of the breach of duty {u). 8. An agent, acting under a power of attorney, wrongfully transferred to himself certain shares belonging to his principal, in satisfaction of a claim which the principal partly admitted and partly disputed. Held, that the principal was entitled to recover the full value of the shares (x). Article 56. LIABILITY OF AGENTS ACCEPTING BEIBES. Where an agent accepts any money or property in the course of his agency by way of a bribe, he is liable to account for and pay over the amount or value thereof, as money received to the use of the principal, with interest from the date of its receipt ; and if he has been induced by the bribe to depart from his duty to the principal, he is also liable, jointly and severally with the person who bribed him, to make good any loss suffered by the principal in consequence of such departure from duty, without taking into consideration the amount of the bribe so accounted for or paid over to the principal (y). The claim of a principal in respect of a bribe received (m) Stearine Co. v. Heintzmann, 1864, 17 0. B. N. S. 56 ; 10 Jur. N. S. 881 ; 11 L. T. 272. (k) Bantra v. Stieiel, 1863, 3 P. & F. 951. (V) Mat/or ofSalford v. Lever, 1890, (1891) 1 Q. B. 168 ; 60 L. J. Q. B. 39; 63 L. T. 658, 0. A.; Morgan v. Elford, 1876, 4 Ch. Div. 352 ; Phos- phate Sewage Co. v. Hartmont, 1875, 5 OH. Div. 394, 457, 0. A. ; E. I. Co, V. Henchman, 1 Ves. jun. 289. 140 LIABILITIES OF by his agent is barred by the Statute of Limitations, in equity as well as at law, after the expiration of six years from the time when the principal became aware of the bribery (s). The principal is justified in dismissing without notice any agent who accepts a bribe in the course of his agency (a). Illustrations. 1. An agent, in consideration of a bribe, induces his principal to contract with the person bribing him. The principal is entitled to recover from the agent the amount of the bribe, as money received to his use, and from the agent and the person bribing him, jointly and severally, any loss incurred through having been so induced to contract (6). 2. A director of a company, who was a shareholder in two other companies, accepted bonuses from such other companies, in consideration of his giving them orders for goods on behalf of the first-mentioned company. The articles of association provided that the directors might contract with the company. Held, that the bonuses were bribes, and that the director must account to the company for them, with interest. Held, further, that the bribery justified the dismissal of the director, though the bribery was not discovered until after the dismissal, and had taken place several months prior thereto (a). 3. An agent, who was employed to purchase goods, accepted large sums from the vendor by way of bribery, and invested part of the amount. The principal claimed to follow the money, and prayed for an injunction to restrain the agent from dealing (z) Metropolitan Bank v. Herron, 1880, 5 Ex. Div. 319, C. A. But tlie Statute of Limitations is no defence in case of fraud : Wahham v. Stain- ton, 1863, 12 W. E. 63, Cli. App. ; Hardwicke v. Vernon, 1808, 14 Ves. 504 ; 9 E. B. 329. (a) Boston Deep Sea Go. v. Ansell, 1888, 39 Oil. Div. 339 ; 59 L. T. 345, C. A. (6) Salford v. Lever, supra, note («/). AGENT TO PRINCIPAL. 141 ■with the investment, and an order directing him to bring the amount into court. Held, that the relation between the parties was that of debtor and creditor, not that of trustee and cestui que trust, and that the plaintifE was not entitled to follow the money (c). Article 57. WHERE LIABLE TO PAY INTEREST. No agent is liable to pay interest upon money re- ceived by bim to the use .of his principal, except where be receives or deals with the money improperly, and in breach of his duty [d), or refuses to pay it over to the principal on demand (e). Where he refuses to pay it over on demand, he is liable to pay interest from the date of the refusal (e). Illustrations. 1. An agent, at the request of his principal, retained large sums of money in his hands, and duly accounted for the same. Held, that he was not liable to pay interest, though he had made use of the money for his own purposes (/). But, in general, where an agent applies the principal's money to his own use, he is bound to pay interest thereon, it being his duty to act in the agency solely for the principal's benefit {g) . 2. A solicitor was authorized by power of attorney to sell certain property and invest the proceeds. He paid the proceeds (c) Lister v. Sfubhs, 1890, 45 Oh. Div. 1 ; 59 L. J. Oh. 570; 62 L. T. 654, 0. A. (d) Wolfe v. Findlatj, 1847, 6 Hare, 66 ; 16 L. J. Oh. 241 ; 11 Jur. 82 ; Fry v. Fry, 1864, 10 Jur. N. S. 983 ; Illustrations 1 to 6. (e) Harsant v. Blaine, 1887, 56 L. J. Q. B. 511, 0. A. ; Pearse v. Qreen, 1819, 1 Jac. & W. 135. (/) GJiedworth v. Edwards, 1802, 8 Ves. 48 ; 6 E. E. 212. {g) Rogers v. BoeJim, 1799, 2 Bsp. 704. 142 LIABILITIES OF into the account of Ms firm, who made use of the money. Held, that he must pay interest at the rate of five per cent, (h) . 3. An agent, who undertook to invest his principal's money in the funds, kept large balances in his hands. Held, that he must pay interest on such balances (»'). 4. An agent had the entire management of his principal's affairs for many years without being called upon for an account. Errors were then discovered, and upon a bill being filed for an account, a large sum was found to be due. Held, that, in the absence of fraud, the agent was not liable to pay interest upon the balances in his hands (A). 5. A stakeholder is not liable to' pay interest, even if he uses, and himself obtains interest on, the money. Thus, where an auctioneer received a deposit, and invested and obtained interest upon the amount, it was held that he was not liable to pay over the interest, on the completion of the sale. In this respect, there is an essential difference between an agent and a stakeholder (l). 6. An agent is bound to pay interest upon bribes (?»), and profits made in the course of his agency without the principal's knowledge («), and in all cases of fraud or wilful conceal- ment (o). Article 58. LIABILITY TO ATTACHMENT. Where an agent is ordered by a court of equity to pay over money received by him in a fiduciary (7j) BurdicJcY. Garrich, 1869, L. E. 5 Oh. 233; 39 L. J. Oh. 369; 18 W. E. 387, Oh. App. (i) Broion v. Southhouse, 1790, 3 Bro. 0. 0. 107. Ik) Turner v. Burhinshaw, 1867, L. E. 2 Cli. 488; 15 "W. E. 7o3, Ch. App. (?) JSarington v. Boggart, 1830, 1 B. & Ad. 577. (m) In re Brum SMe Quarry Co., 1885, 55 L. J. Ch. 36; 53 L. T. 250; Boston Beep Sea Fishing Co. v. Ansell, 1888, 39 Ch. Div. 339; 59 L. T. 345, 0. A. ()i) Benson v. Heathorn, 1842, 1 T. & Coll. 0. 0. 326 ; Tyrrell v. Bank of London, 1S62, 10 H. L. Cas. 26; 8 Jur. N. S. 849; 31 L. J. Ch. 369; 10 W. E. 359 ; 6 L. T. 1, H. L. (o) Hardwiche v. Vernon, 1808, 14 Yes. 504 ; 9 E. E. 329. AGENT TO PRINCIPAL. 143 capacity, he is liable to attachment, on default in such payment, though he may have parted with the money, and become a bankrupt or insolvent (p). Article 59. LIABILITY FOR ACTS OF SUB-AGENTS. Where an agent employs a sub-agent, the agent is liable to the principal for money received by the sub- agent to the principal's use (q), and is responsible to the principal for the negligence and other breaches of duty of the sub-agent in the course of his employ- ment (r). Illustrations. 1. A solicitor was held liable to his client for the negligence of his town agent (s). 2. A banker was employed to obtain payment of a bill of exchange. His agent obtained payment, and became bankrupt before handing the money over. Held, that the banker was (p) Debtors Act, 1869, sect. 4, sub-sect. 3; CrowtherY. Elgood, 1887, 34 Oh. Div. 691 ; 56 L. J. Ob. 416 ; 56 L. T. 415 ; 35 W. E. 369, 0. A. (auctioneer attacbed for not paying over tbe price of goods sold by bim) ; Litchfield v. Jones, 1887, 36 Cb. Diy. 530 ; 57 L. J. Cb. 100; 58 L. T. 20 (town agent, in an action for an account of bis agency by country soli- citor). See, also, Be Edge, 1891, 63 L. T. 762; 39 W. E. 198 ; 7 T. L. E. 183; In re Dudley, exp. Monet, 1883, 12 Q. B. D. 44; 53 L. J. Q. B. 16 ; 49 L. T. 737 ; 32 W. E. 264, 0. A. ; Jacol y. Magnay, 1842, 12 L. J. Q. B. 93 ; 7 Jur. 326, as to tbe attacbment of solicitors for breacb of tbeir duty as officers of tbe court. As to tbe criminal liability of an agent wbo fraudulently appropriates or deals witb money or goods iatrusted to bim, as sucb, see 24 & 25 Vict. c. 96, ss. 75—79. (2) Matthews v. Hay don, 1796, 2 Esp. 509; In re Mitchell, 1884, 54 L. J. Cb. 342 ; 52 L. T. 178. (r) Lord North's case, Dy. 161a; Eccossaise S.S. Co. v. Lloyd, 1891, 7 T. L. E. 76 ; Illustrations 1 to 4. (s) Collins T. Griffin, Barnes, 37. 144 BANKRUPTCY liable to, his customer for the amount (t) . The general rule o£ law, that an agent is responsible for the acts of a sub-agent employed by him, is not confined to cases where the principal supposes that the agent wiU act in person (t), but applies even where the sub-agent is appointed with the principal's know- ledge (m). 3. A. employs B., as an agent, to make advances upon goods. B. employs C. to make the advances, and authorizes him to draw upon A. for the amounts. C. fraudulently draws upon A. for an amount which he has not advanced. B. is liable to A. for the fraudulent act of 0. in the course of his employment («■). 4. Moneys are handed, with the approbation of the secretary of a company, to the secretary's private clerk, who is not an officer of the company. The clerk misappropriates the money. The secretary is liable to the company for the amount so misap- propriated (y). Article 60. EIGHTS OF PRINCIPAL ON AGENt's BANKRUPTCY. On the bankruptcy of an agent the principal is entitled, as against the trustee in bankruptcy and creditors of the bankrupt, to any money intrusted by him to the bankrupt for application in a particular way and still in the hands of the bankrupt (s), and to all goods and securities in the possession of (a), and all («) Mackersy v. Bamsays, 1843, 9 0. & F. 818, H. L. (m) Skinner v. Weguelin, 1882, 1 0. & E. 12. (a;) Swire v. Francis, 1877, 3 App. Oas. 106 ; 47 L. J. P. 0. 18 ; 37 L. T. 554, P. 0. (?/) In re Mutual Aid Permanent Building Society, ex p. James, 1883, 49 L. T. 530. (z) Illustration 1. (a) Illustrations 2 to 5. OF AGENT. 145 outstanding debts due to, the bankrupt, as his agent (b), subject to any lien of the bankrupt thereon. Provided, that this principle does not extend to goods, or debts due or growing due to the bankrupt in the course of his trade or business, which are, at the commencement of the bankruptcy, in the possession, order, or dis- position of the bankrupt in his trade or business, by the consent and permission of the true owner, under such circumstances that the bankrupt is the reputed owner thereof (c). Where an agent misapplies money intrusted to him for application in a particular way, or fraudulently converts the property of his principal into some other form, the principal is entitled, as against the agent and his trustee in bankruptcy and creditors, to the proceeds of such money or property, of whatsoever nature they may be, provided that they can be clearly traced ((^). Where an agent fraudulently mixes the money or property of his principal with his own, the principal is entitled, as against the agent and his trustee in bankruptcy and creditors, to a first charge on the mixed fund or property, or on the proceeds thereof, provided that they can be clearly traced (e). (5) niusfcrations 2 to 5. (c) Baniniptcy Act, 1883 (46 & 47 Vict. c. 52), s. 44. See Be Fawcus, ex p. Buck, 1876, 3 Ch. Div. 795; 34 L. T. 807. And see Illustrations 5 and 7. {d) Illustrations 6 and 7. (e) Illustrations 8 and 9. B. I. 146 BANKRUPTCY Illustrations. 1. Money is paid to a broker by his priacipal for application in a particular way. The broker pays the money into his own account at a bank, and becomes bankrupt before applying it as directed. The principal is entitled to the money, as against the broker's trustee in bankruptcy (/). If, in such a case, the agent has drawn on the account, the principal has a charge on the balance in the banker's hands, the amounts so drawn being deemed to be drawn out of the agent's own moneys, whenever they were paid in (tt Y. Manchester, 1857, 2 H. & N. 204 ; 26 L. J. Ex. 406 ; 3 Jur. N. S. 590, Ex. Ch. ; Cowley v. Sunderland, 1861, 6 H. & N. 565 ; 30 L. J. Ex. 127 ; 4 L. T. 120 ; Mersey Bocks Trustees v. Gibbs, 1864, L. E. 1 H. L. 93; 12 Jur. N. S. 571; 14 L. T. 677, H. L.; Coe y. Wise, 1866, L. E. 1 Q. B. 711; 37 L. J. Q. B. 262; 14 L. T. 891; 7 B. & S. 831; Jones y. Bird, 1822, 1 D. & E. 497; 5 B^. & A. 837; TheBhosina, 1885, 10 P. Div. 131 ; ' 54 L. J. P. 72 ; 53 L. T. 30 ; 33 W. E. 794 ; 6 Asp. M. 0. 460, C. A. 248 PRINCIPAL AND THIRD PERSONS. sheriff. Held, that the client was liable for the wrongful seizure, it being part of the solicitor's duty, in the ordinary- course of his employment, to indorse the writ (b). Otherwise, where a solicitor, in issuing a writ, verbally directed the sheriff to seize particular goods which were not the debtor's pro- perty (c). 6. A. employed B., a solicitor, to sue for a debt. 0., who was B.'s agent, issued execution after the debt had been paid to B., 0. being ignorant of such payment. Held, that both A. and B. were liable for the trespass (d). 7. A carman was permitted by his employer to take an hour for dinner, but was not permitted to go home to dine, nor to leave his horse. He left his horse unattended, and went home to dinner. The horse bolted, and caused damage. Held, that the jury were justified in finding that the damage was caused by the negligence of the carman in the course of his employ- ment, for which the employer would be liable (e). So, where a carman left a coal-shoot open in the highway, his employer was held liable for injury resulting therefrom (/). So, a shipowner is liable for damage caused by a collision in consequence of the negligence or unreasonable navigation of the master, subject to a statutory limitation on the liability, based on the tonnage of the vessel (g). 8. A. sent a barge under the management of his lighterman to be loaded at a wharf. The foreman at the wharf directed (6) Morris V. Salherg, 1889, 22 Q. B. D. 614 ; 61 L. T. 283, 0. A. ; Jar- main V. Hooper, 1843, 1 D. & L. 769 ; 6 M. & G. 827 ; 8 Jur. 127. (o) Smith V. Keal, 1882, 9 Q. B. D. 340 ; 47 L. T. 142 ; 31 W. E. 76, 0. A. (d) Bates v. Pilling, 1826, 6 B. & 0. 38 ; 9 D. & E. 44. (e) Whatman v. Pearson, 1868, L. E. 3 0. P. 422. Comp. witt lUus- trations 9 and 10 to Ajticle 99. (/) Whiteley v. Pepper, 1876, 2 Q. B. D. 276; 46 L. J. Q,. B. 436; 36 L. T. 588 ; 25 W. E. 607. {g) The Thames, 1805, 5 Eob. 345. See 57 & 58 Vict. c. 60. Liability for damage to cargo depends on the bill of lading ; see The Duero, 1869, L. E. 2 Adm. 393; 38 L. J. Adm. 69. LIABILITY FOR WEONGS BY AGENT. 249 the Kgliterman to move another baa-ge out of his way, and the lighterman did so, causing damage to such other barge. Held, that A. was liable to make good the damage {h). 9. A master told his servant to lay rubbish near a neighbour's wall, but so as not to touch the wall. The rubbish ran against the wall. Held, that the master was liable for the trespass («). 10. An inspector of a railway company gave a passenger into custody on a charge of refusing to give up his ticket or pay his fare, and thereby defrauding the company. Held, that the company, having power to arrest passengers committing such a fraud, were liable in an action for false imprisonment, the inspector being their representative at the station in ques- tion, and having made a mistake in arresting the plaintiff (/). So, where a tram conductor, who had authority to seize anyone seeking to avoid payment of his fare, gave a passenger into custody for tendering what the conductor thought was bad money, the company were held liable {k). 11. A porter, in the erroneous belief that a passenger was in the wrong train, violently pulled him out of the railway car- riage, and the passenger was injured. It was the duty of the porter, as far as possible, to prevent passengers from going by wrong trains, but not to remove them from carriages. Held, that the jury were justified in finding that it was an act done by the porter in the course of his employment, for which the company would be liable. He simply did in an improper manner what he was employed to do (/). {h) Page V. Defries, 1866, 7 B. & S. IST, overruling Lamh v. Palk, 1840, 9 C. & P. 629. (i) Gregory v. Piper, 1829, 9 B. & 0. 591 ; 4 M. & E. 500. (/) Moore Y. Metropolitan Rail. Co., 1872, L. E. 8 Q. B. 36; 42 L. J. Q. B. 23; 27 L. T. 579; 21 W. E. 145; (7o/v. (?. N. Pail., 1861, 3 El. & El. 672 ; 30 L. J. Q. B. 148 ; 3 L. T. 850. Comp. -witli Illustrations 6 and 7 to Article 99. (k) Furlong v. South London Tramways Co., 1884, 48 J. P. 329; 1 0. & E. 316. Comp. with Illustration 5 to Article 99. \l) Bayley v. M. S. & L. Pail., 1873, L. E. 8 0. P, 148; 42 L. J. 0. P. 250 PRINCIPAL AND THIRD PERSONS. 12. A tram conductor negligently and brutally pushed a passenger ofE the tram because he refused to pay his fare. The company were held liable for the assault and injury (m). Soj where a passenger who misconducted himself was carelessly and with unnecessary violence dragged from a tram by the con- ductor and thrown to the ground, the employer was held liable for the injury (n). Article 98. MONET, ETC. MISAPPROPRIATED BY AGENT. Where the money or property of a third person is received by an agent while acting within the scope of his apparent authority, or by the principal, and is misapplied by the agent, the principal is liable to make good the loss. Illustrations. 1. A local manager, acting as agent for a bank, induced a lady to invest money in paying off a certain mortgage. The money was paid to him for that purpose, and he misappro- priated it. Held, that he was acting within the scope of his apparent authority in receiving the money, which must there- fore be deemed to have been received by the bank, and that the bank was liable to repay it (o) . 78 ; 28 L. T. 366, Ex. Cli. ; and see Lmve v. G. N. Bail., 1893, 62 L. J. Q. B. 524 ; 5 E. 535. (m) Smith v. NortJi Met. Tram. Co., 1891, 55 J. P. 630; 7 T. L. E. 459, C. A. See also East. Counties Rail. Co. v. Broom, 1851, 6 Ex. 314 ; 20 L. J. Ex. 196 ; 15 Jur. 297. The fact that the agent has been con- victed and criminally punished for the assault does not afieot the liability of the principal : Dijer v. Mimday, (1895) 1 Q. B. 742 ; 64 L. J. Q. B. 448 ; 73 L. T. 12 ; 43 W. E. 657 ; 11 T. L. E. 282, 0. A. (ra) Seymour v. Oreemvood, 1861, 30 L. J. Ex. 327 ; 7 H. & N. 355 ; 9 W. E. 785, Ex. Ch. (o) Thompson Y. Bell, 1854, 10 Ex. 10; 2 0. L. E. 1213; 23 L. J. Ex. LIABILITY FOK WRONGS BY AGENT. 251 2. An agent, acting apparently in the ordinary course of business, sent an account to A., representing that certain ad- vances had been made on his account, and drew on him for the amount. It was within the scope of the agent's authority to make advances of that kind, hut he had, in fact, misappro- priated the money, and had not made the advances. A. accepted and paid the bill. Held, that the principal was liable to A. for the amount {p). 3. The directors of an unincorporated company held out the secretary as having authority to receive, as agent for the company, loans in excess of the company's borrowing powers. The sec- retary borrowed in excess of the company's powers, and ap- propriated the money to his own use. Held, that the directors were personally liable for the amount so borrowed in excess {q). (The company were not liable, because the act was ultra vires.) 4. A., the manager of a shop belonging to B., had for several years ordered goods in B.'s name from 0., and B. had duly paid for them. A. absconded, called on C. and bought goods in B.'s name, and took them away. Held, that B. was liable for the price of the goods (r) . Article 99. PRINCIPAL NOT LIABLE FOR WRONGS OUTSIDE COURSE OF EMPLOYMENT ON HIS BEHALF. No principal is liable for any wrongful act or omission of his agent while acting, without the prin- cipal's authority, outside the ordinary course of his 321. See also Meluilh v. Doidge, 1848, 6 0. B. 450; 18 L. J. 0. P. 7; 12 Jur. 922 ; Mutual Aid, dec, Society, Exp. James, 1883, 49 L. T. 530. {p) Siuire v. Francis, 1877, 3 App. Gas. 106 ; 37 L. T. N. 8. 554, P. 0. (j) Chapleo v. Brunswick Building Society, 1881, 6 Q. B. D. 696; 50 L. J. Q. B. 372 ; 44 L. T. 449, 0. A. (r) Bummers v. Solomon, 1857, 26 L. J. Q. B. 301 ; 3 Jur, N. S. 962. ' 252 PRINCIPAL AND THIED PERSONS. employment (s), or while acting otherwise than on the principal's behalf (t). Illustrations. 1. A bailiff, who is employed to levy a distress for water rates, commits an unnecessary and unauthorized assault in levy- ing the distress. His employer is not liable for the assault (m). 2. A solicitor, when issuing a writ of fieri facias, verbally directs the sheriff to seize particular goods, without the client's authority. The client is not liable for the wrongful seizure, because it is not in the ordinary course of a solicitor's employ- ment to interfere with the sheriff in the performance of his duties (v). 3. The secretary of a company fraudulently, and without the knowledge of the directors, represented to A. that if he took certain shares he would be appointed solicitor to the company, and subsequently that he had been so appointed. A., on the faith of the representations, applied for the shares, and they were allotted to him in the usual way. Held, that A. was bound by the contract to take the shares, the representations being quite outside the scope of the secretary's employment. The duties of a secretary are prima facie clerical and ministerial only, and it is not within the ordinary course of his employment to induce persons to take shares, nor to make any bargains or conditions as to taking shares {w). 4. A company declared dividends which were not warranted by its financial condition. A law agent (who was also a member) of the company mentioned the dividends to A. as proof of the (s) Illustrations 1 to 8. (t) Illustrations 8 to 11. («) Bicharis v. West Middlesex Waterworks Co., 1885, 15 Q,. B. D. 660 ; 54 L. J. Q. B. 551 ; 33 W. E. 902 ; 49 J. P. 631. {v) Smith T. Keal, 1882, 9 Q. B. D. 340; 47 L. T. 142; 31 W. E. 76, 0. A. {w) Neiulands v. National Employers Accident Association, 1885, 54 L. J. Q. B. 428 ; 53 L. T. 242 ; 49 J. P. 628, 0. A. LIABILITY FOR WRONGS BY AGENT. 25S flourisliing condition of the company, and on the faith of his representations A. purchased shares. Held, that A. was bound by his contract to take the shares, it not being in the ordinary course of a law agent's employment to make representations as to the financial state of the company (x). 5. A tram conductor detained and gave into custody a pas- senger on a charge of having passed bad money, she having already paid her fare and received the change. Priated instruc- tions were issued to the conductors not to give persons into custody without the authority of an inspector or timekeeper. Under the Tramways Act, the officers and servants of the com- pany had authority to detain anyone defrauding the company of the fare. Held, that the Act must be construed as applying only to officers and servants appointed for the purpose, and that the company were not liable for the detention or wrongful im- prisonment of the passenger (y). 6. A station-master detained a person for not having paid the fare for his horse, the railway company having no power to arrest in such cases. Held, that the company were not liable, because it was beyond their powers to authorize the detention (s), 7. A barman gave a person into custody for attempting to pass bad money, the bad money having been returned and good money paid. Held, that the employer was not liable («) . So, where a booking clerk gave a person into custody for attempting to steal from the till, after the attempt had ceased, the railway company were held not liable (b). The liability of a principal [x] Burnes v. Pennell, 1849, 2 H. L. Cas. 497, H. L. {y) Charleston v. London Tram. Co., 1888, 36 W. E. 367. Comp. with Illustration 9 to Article 97. (z) Poulton v. L. & 8. W. Rail. Co., 1867, L. E. 2 Q. B. 534; 36 L. J. Q. B. 294; 17 L. T. 11 ; 8 B. & S. 616. Comp. with lUustration 10 to Article 97. (a) Abraham y. JDeakin, (1891) 1 Q. B. 516 ; 60 L. J. Q. B, 238 ; 63 L. T. 690 ; 39 W. E. 183 ; 55 J. P. 212; 7 T. L. E. 117, 0. A. (J) Allen V. L. «ri«««