woman may act as agent of her husband, and as such, with his consent, bind him by her contract, or other act; or she may act as the agent of another in a contract with her own husband, but it is by no means clear that she could act as the agent of a third party against the express dissent of her husband (a). And even a person non compos mentis, who is nevertheless apparently of sound mind, and not known by the other contracting party to be otherwise, if he enters into a contract for the purchase [or pawn] of property, which is fair and bona fide, and which is executed and completed, and the property, the subject matter of the contract, has been paid for and fully enjoyed, and cannot be restored so as to put the parties in statu quo, such contract cannot afterwards be set aside (b). But so far as regards Pawnbrokers, minors can only act as agents for pawnor or pawnee when they have attained the ages specified in the Pawnbrokers' Acts, as mentioned in the preceding section. There may, however, be cases in which the pawnee will lose his right to the pawn, even though the pawnor be a person under none of these disabilities. After much litigation, it was determined that a factor or agent, who pledged the goods of his principal, must prima facie be taken to have acted in excess of his authority, and therefore the principal was held not bound by his agent's acts, unless the pawning took place under the express authority of the principal. The usual

(a) Story On Agency, sec. 7.

(b) Broom's Commentaries, 2nd edit., 588, citing Molton v. Camroux, 4 Ex. 17, affirming judgment in S. C. 2 Ex. 487.

employment of a factor being to sell, it was repeatedly decided that he could not pledge the goods entrusted to him (a), and that the mere circumstance of a principal's drawing bills on his factor to whom goods were consigned, to be provided for out of the proceeds of such goods, would not authorize the factor to pledge them for the purpose of raising money to meet such bills (b). Hence, when a factor had become bankrupt, and a person to whom he had pawned goods sold them, the principal recovered the entire proceeds of the sale in an action for money had and received, though the factor had appropriated part of the money advanced by the pawnee, to the payment of one of the bills drawn by the principal on his agent the pawnor. And this rule was upheld, even when the advances had been made on a bill of lading in the factor's favour, by a person who did not know that he was not the owner of them (c). Where a factor had pledged the goods of his principal, the latter might recover the value of them in trover against the pawnee, on tendering to the factor what was due to him, without any tender to the pawnee (d); and after demand and refusal, he might maintain trover, without tendering the duplicate (e). Nor could the pawnee retain

(a) Smith's Mercantile Law, 6th edit., 140, and cases

there cited.

(b) Gill v. Kymer, 5 Moore, 503, Fielding v. Kymer, 2 B. & B., 639.

(c) Martin v. Coles, 1 M. & S., 140, see also Barton v. Williams, 5 B & A., 395, S.C., in error Williams v. Barton, 3 Bng., 139, 10 Moore, 596.

(d) Daubigny v. Duval, 5 T. R., 604.

(e) Peet v. Baxter, 1 Stark, 472.

the goods for the amount of the broker's lien, because such a lien was personal, and not transferable by the tortious act of the broker (a).

This Common Law doctrine, being found injuriously to affect credit, was altered by the 4 Geo. 4, cap. 83, amended by 6 Geo. 4, cap. 94, commonly called the Factors' Act, and also by 5 & 6 Vict., cap. 39, from which three statutes, and from the cases which have arisen under them, the Law on the subject must now be collected. The first-named statute provided (b) that persons intrusted, for the purpose of sale, with any goods or merchandise, or by whom such goods should be shipped in their own names, should be deemed the owners, so as to entitle consignees to a lien thereon for money or negotiable securities advanced by the latter to the former. And taking goods or bills of lading in pledge, from the consignee thereof was rendered lawful (c), but the consignee could not thereby give any better or greater right to the goods than he himself possessed. The next act (d), or the Factors' Act, as it is commonly called, refers in its preamble to the former Act, and (e) declares that factors or agents intrusted with goods or merchandise, and who shall have shipped such goods, &c., in their own names for the purpose of consignment or of sale, shall be deemed to be the true owners, so as to entitle consignees to a lien thereon in respect of money, &c., advanced to or for the use of the agent, bond fide and without notice, on the faith of such property. And the agent's possession (a) McCombie v. Davies, 7 East, 5, 3 Smith, 3. (c) By sec. 2. (d) 6 Geo. 4, cap. 94.

(b) Sec. 1.

(e) Sec. 1.

shall be taken to have been for the purpose of consignment or sale, unless the contrary be made to appear by bill of discovery or otherwise. Section 2 gives similar protection to persons dealing bona fide and without notice with persons entrusted with bills of lading, India warrants, dock warrants, or similar instruments. But if the depositing or pledging were for an antecedent debt, the depositee or pledgee should take no further right or interest in the goods or documents than was possessed by the agent (a). Section 4 made it lawful to contract with known agents in the ordinary course of business, or out of that course if within the agent's authority, notwithstanding notice of agency, but not when the pawnee, &c., has notice that the agent has no authority to sell the goods, or to receive the purchase money. And the next section made valid a pledge by a known agent, as against his principal, but limited its effect to the amount of the agent's interest in the goods, &c., at the time of making the pledge. This section was held not to apply unless the transaction were made expressly as one of pledge, and not as a sale (b). Where the principal drew on his agent, on account of the goods sent him, and the agent accepted the bills so drawn, but did not pay them at maturity, and afterwards pledged the goods with C., but did not inform

(a) Sec. 3, see Taylor v. Trueman, 1 M. & M., 453, where the pledge was for an antecedent debt. The Court held that the defendants (pawnees) could not hold the proceeds against the real owner, but that in estimating the damages they were entitled to credit for any balance due from the owner to the factor.

(b) Thompson v. Farmer, 1 M. & M., 48.

his principal of the transaction, it was held that, not having paid his own acceptances, the agent had no lien upon the goods which he could transfer to C., who had, consequently, no right to retain them as against the principal, for the agent could only transfer such right as he had, which was a right to be indemnified against the bills he had accepted, and the principal having satisfied those bills, was entitled to have back his goods from the pawnee, without paying the amount for which they were pledged (a). Like the former statute, the Factors' Act saved the owner's right to follow his goods while in his agent's hands, or in those of his assignees in Bankruptcy (b). It also contained other provisions affecting the agents themselves, with which we are not now concerned. The last section expressly saved the rights of parties to their equitable remedies.

The factor's right under the 5th section of this Act to pledge the goods of his principal, depends on the question whether on the face of the whole account between them, the principal is indebted to the factor. Therefore where a factor kept both a joint and separate account with his principal, and upon the two accounts was indebted to him, but on the separate account, against which the draft was drawn, the balance was in the factor's favour, it was held that the factor had no right to pledge, and that the pledgee could not retain the goods against the principal (c), even though the principal for

(a) Fletcher v. Heath, 1 Man. & Ry., 335, 7 B. & C., 517. (b) 6 Geo. 4, cap. 94, sec. 6.

(c) Robertson v. Kensington, 5 Man. & Ry., 381.

D