V. CHAPTER authority to accept, and it would be only reasonable prudence to require the production of that authority" (x)." It has been doubted whether, in any case, a holder is bound to acquiesce in an acceptance by an agent, on the same principle that it has been held that a purchaser is not bound to accept a conveyance to be executed by a power of attorney, viz. that it will multiply the proofs necessary to sustain his title (y). How determined. Delegated. Effect of notice to an agent. Personal liability of an persons. The authority of an agent will be presumed to continue till due notice of its revocation has been given; and such notice should be, as to strangers, by publication in the Gazette; and, as to customers and correspondents, by express individual communication (z). A mere agent cannot delegate his authority, unless specially authorized so to do (a). The effect of notice to an agent of an infirmity in the title to a bill of exchange which he receives for his principal will be discussed in the Chapter on CONSIDERATION. An agent will be personally liable to third persons on his drawing, indorsing or accepting, unless he either sign agent to third his principal's name only, or expressly state in writing his ministerial character, and that he signs only in that character; "unless," to use the words of Lord Ellenborough (b)," he states upon the face of the bill that he subscribes it for another; unless he says plainly, 'I am the mere scribe."" Thus, where the defendant, agent of a banker, drew the following bill: "Pay to the order of A. B. 50l., value re (x) Code, s. 25; Attwood v. Munnings, 7 B. & C. 278; 1 M. & R. 78; Alexander v. Mackenzie, 6 C. B. 766; 18 L. J., C. P. 94; Stagg v. Elliot, 31 L. J., C. P. 260; 12 C. B., N. S. 373. But the Court of Exchequer seem to have adopted a different rule in the case of a charter-party signed P. P. The words are usually abbreviated and run thus, "Jones & Co. per proc. John Smith." (y) See Coore v. Callaway, 1 Esp. 115; Chitty, 283. (2) See Newsome v. Coles, 2 Camp. 617. (a) Coombe's case, 9 Rep. 75; Palliser v. Ord, Bunb. 166. But an authority to indorse may imply an authority to indorse by the hand of another in the agent's presence. Lord v. Hall, 9 L. J., C. P. 147; 8 C. B. 627; see also Ex parte Sutton, 2 Cox, 84. (b) Leadbitter v. Farrow, 5 M. & S. 345; Sowerby v. Butcher, 2 C. & M. 368; 4 Tyr. 320; Alexander v. Sizer, L. R., 4 Ex. 105; 37 L. J., Ex. 59. Merely adding the word agent (or executor) is not sufficient; he must expressly decline personal responsibility. Code, s. 26 (1). The usual phrase is sans recours,' " V. ceived, which place to the account of the Durham Bank,.as CHAPTER advised," and subscribed his own name, it was held that the defendant was personally answerable and he alone, though the plaintiff, the payee, knew that he was only agent (c). So, if a broker draws upon the buyer of goods which he has sold for his principal in favour of the latter, to whom he indorses the bill, he is liable, as drawer, to his principal (d). A bill for 2007. was drawn upon the defendant by the description of "Mr. H. Bishop, Cashier of the York Buildings Company, at their house in Winchester Street, London ;" and the bill directed him to place the 2007. to the account of the company. The letter of advice from the drawer of the bill was sent to the company, and by their direction the defendant accepted it, in this form, "Accepted, 13th June, 1732, per H. Bishop." He was held responsible, the Court considering the addition to his name as merely descriptive, the order to place the sum to the account of the company as a direction how to reimburse himself, and the letter of advice inadmissible to superadd to the terms of the bill, as against the plaintiff, an indorsee (e). And a bill directed to W. C. for value received in machinery supplied to the adventurers in Hayter and Holme Moor Mines, and accepted as follows: "Accepted for the companies, payable at the Union Bank, &c., W.C., Purser," was held to create a personal liability (ƒ). evidence to The rule of law as to simple contracts in writing, other Inadmissithan bills and notes, is, that parol evidence is admissible bility of parol to charge unnamed principals, and so it is to give them the discharge benefit of the contract (g); but it is inadmissible for the him. purpose of discharging the agent, who signs as if he were principal in his own name (h). And the rule of law is (e) Ibid.; Goupy v. Harden, 7 Taunt. 160; 2 Marsh. 454. (d) Lefevre v. Lloyd, 5 Taunt. 749; 1 Marsh, 318. (e) Thomas v. Bishop, 2 Stra. 955; Rew v. Pettet, 1 A. & E. 196; 3 Nev. & M. 456, nom. Crew v. Pettet, ante. As to an agent's remedy, see Huntley v. Sanderson, 3 Tyr. 469; 1 C. & M. 467. (f) Mare v. Charles, 25 L. J., Q. B. 119; 5 E. & B. 978. See post, as to officers of a public company signing in their own names. (g) As to the cases in which a man who signs himself agent may come forward and sue as principal, (h) As to cases in which an V. CHAPTER reasonable, for in the two former cases the evidence is consistent with the instrument, for it admits the agent to be entitled or bound; but in the latter case such evidence would be inconsistent with the terms of the instrument (i). No one liable on a bill unless his name appears. Where an agent signs without authority. Yet it is conceived that the law as to negotiable instruments is different in one respect, to wit, that where the principal's name does not appear, he is not liable on a bill or note as a party to the instrument (k). An agent who makes a contract as agent thereby impliedly undertakes that he has authority, and he and his executors are liable in an action ex contractu, if he really had no authority (l). Therefore, if an agent, having no authority so to do, write, without a fraudulent intent, another man's name as acceptor of a bill, that is a fraud in law for which such agent is responsible, even to a subsequent indorsee (m); but no one can be liable as acceptor but the real drawee, unless he be acceptor for honour. And where a man assuming to act as agent is really not so, in consequence of a revocation, by the death of his principal, unknown to the agent, so that there is no fault in the agent, the agent is not liable (n), nor the executors of the deceased principal (0). An agent who has received for his principal money which the principal is bound to refund, is not liable to the owner (i) Higgins v. Senior, 8 M. & W. 834. (k) Code, ss. 23 and 53. See an American case, Story on Agency, 125, n. See also Pentz v. Stanton, 10 Wend. 271; Conro v. Port Henry Iron Company, 12 Bau, 551; and the observations of Lord Ellenborough and Mr. J. Holroyd, in Leadhitter v. Farrow, 5 M. & S. 349; Bult v. Morrell, 12 A. & E. 750. But see Lindus v. Bradwell, 5 C. B. 583, where a bill drawn on the principal, accepted by the agent (the wife) in the agent's name, was held binding on the principal as acceptor. See also Gurney v. Evans, 27 L. J., Exch. 166; 3 H. & N. 122; Edmunds v. Bushell, 35 L. J., Q. B. 91. (1) Lewis v. Nicholson, 18 Q. B. 509; Randall v. Trimen, 18 C. B. 786; Collen v. Wright, 7 E. & B. 301; 26 L. J., Q. B. 147; 8 E. & B. 647; 27 L. J., Q. B. 215; Kelner v. Baxter, 36 L. J., C. P. 94; 2 L. R., C. P. 174; Scott v. Lord Ebury, 36 L. J., C. P. 151; 2 L. R. 255; West London Bank v. Kitson, 12 Q. B. D. 157; 53 L. J., Q. B. 345. (m) Polhill v. Walter, 3 B. & Ad. 114. If he had signed the drawer's name without authority, quare, whether he would not have been personally liable on the bill as drawer. Wilson v. Barthrop, 2 M. & W. 863. (n) Smout v. Ilberry, 10 M. & W. 1. (0) Blades v. Free, 9 B. & C. 167. of the money after he has paid it over to his principal in CHAPTER due course and without notice (p). V. A safe and proper mode in which an agent may indorse, How avoided so as to avoid personal responsibility, is by adding the in indorsewords, sans recours, or without recourse to me (q). ments. An agent or servant, who joins with his principal or Liability of master in the commission of a fraud, is liable to an action, an agent for fraud. even although the principal be an incorporated company. Thus a director, manager or assistant manager of a jointstock bank may be personally responsible for a fraudulent report. For the relation of agency or service cannot oblige to the commission of a fraud (~). If a man hold a bill or note as agent for another, and Rights of an the circumstances be such that the principal cannot recover, agent against third persons. the infirmity of the principal's title infects the agent's title, and the agent cannot recover. M. & Co., residing at Middleburgh, remitted to the plaintiff, in London, a Bank of England note for 500l., informing him that they should draw upon him for the amount at some future period. The plaintiff presented it for payment, but the bank detained it on the ground that it had been obtained by means of a forged draft from a previous holder. In trover by the plaintiff it was held, that the plaintiff was identified with his principals, and that, as there was no evidence of their having given full value for it, he could not recover (s). So where O. & Co., in Paris, being indebted to the plaintiff in London, to the amount of 1,300, remitted to him a Bank of England note for 500l., and the bank detained it because it had been stolen some time before, it was held in trover by the plaintiff against the bank, that though the plaintiff had a demand on O. & Co. for more than the amount of the note at the time when he received it, yet, as no farther advances had been made, or credit given by him on account of the note, he must be considered as their agent, and prove that his principals, O. & Co., gave full value for it (t). From this case, it might seem to follow as a general rule, that wherever a bill or note, payable on demand, is remitted to a creditor in liquidation of an existing debt only, and no fresh credit (p) Holland v. Russell, 32 L.J., Q. B. 297; 4 B. & S. 14. (q) Vide post, Chapter XI. (r) Cullen v. Thompson, Dom Proc. 1863. (s) Solomons v. The Bank of England, 13 East, 135; 1 Rose, 99. (t) De la Chaumette v. The Bank of England, 9 B. & C. 208. V. CHAPTER is given or advances made by the creditor on the faith of the instrument, he may be treated by the parties liable on it as the agent of the debtor from whom he received it. A doctrine which, while it cannot injure the creditor (for if he cannot recover, still he is but where he was before he received the remittance), would, no doubt, tend to prevent gratuitous, fraudulent, or felonious holders of paper from obtaining its value by paying it away to their creditors (u). But it is conceived that in general a pre-existing debt due to the transferee of a bill entitles him to all the rights of a holder for value (x), whether the bill be payable on demand Liability of agent to his principal. Rights of principal against third persons. or not. An agent who fraudulently negotiates or deposits bills is guilty of a misdemeanor, under the 24 & 25 Vict. c. 95, ss. 75 and 76, and is punishable with seven years' penal servitude. If an agent, employed to present a bill, fails to make a due presentment, or to give due notice of dishonour, he is liable to an action at the suit of his principal (y), who may recover nominal damages, though he have sustained no actual loss. As a principal is bound by his agent's contracts, so he may take advantage of them; but he is, if undisclosed at the time of the contract, subject to any defence, partial or complete, on which the defendant could have relied against the agent. A drawer delivered a bill to his agent to be discounted, the agent indorsed the bill as his own to the defendant, a bill broker, who procured it to be discounted, but handed over to the agent only a portion of the proceeds. The drawer, being afterwards obliged to take up (u) This doctrine was much discussed in the case of Kinnersley v. Somers, Exch. M. T. 1832, in relation to Serjeant Onslow's Act, 58 Geo. 3, c. 93. The Court appeared inclined to support the rule deducible from De la Chaumette v. Bank of England, but no judgment was given, and the cause was afterwards settled. But see Perceval v. Framplin, 3 Dow, 752; Foster v. Pearson, 1 C., M. & R. 849; 5 Tyr. 255. It is to be recollected that a bill or note, payable at a future day, suspends till its maturity the remedy for the antecedent debt. There may, therefore, in this respect be a difference between an instrument payable on demand, and one payable at a future day. See the Chapter on CONSIDERA TION. (a) It has been solemnly so held by the Supreme Court of the United States, Swift v. Tyson, 16 Peters, 97; and so held in the most recent case on the subject, Curric v. Misa, L. R., 10 Ex. 153. See, too, the Chapter on CONSIDERATION, post. Code, s. 27 (b). (y) Van Wart v. Woolley, R. & Moo. 4; 3 B. & C. 439; 5 D. & R. 374; 1 M. & M. 520; Van Diemen's Bank v. Victoria Bank, L. R., 3 Pr. C. 526; 40 L. J., Pr. C. 28. |