t bills, &c.), and generally to act for him, as he might do if he were The words "per procuration" are an express intimation of a spe- An authority is often implied from circumstances; as if the agent has formerly been in the habit of drawing, accepting or indorsing for his principal, and his principal has recognised his acts. Thus, to an action against an acceptor of a bill, the defence was, that the drawer had forged the acceptor's signature, in answer to which it was proved that the defendant had previously paid such acceptances; and this was held proof of authority to the drawer.(k) "It may be admitted," says Tindal, C. J., "that an authority to draw does not import in itself an authority to indorse bills; but still (f) Attwood v. Munnings, 7 B. & C. 278; 1 Man. & R. 78. (9) Fearn v. Filica, 14 L. J. 15, C. P.; 7 M. & G. 513, S. C. (h) Ibid. (i) Alexander v. McKenzie, 6 C. B. Rep. 766; 18 L. J. 94, C. P., S. C. (k) Barber v. Gingell, 3 Esp. 60; Lewellyn v. Winckworth, 13 M. &. W. 598; the evidence of such authority to draw is not to be withheld from the jury, where they are to determine on the whole of the evidence, whether an authority to indorse existed or not."(1) And therefore, from the facts that the defendant's confidential clerk had been accustomed to draw checks for them, that in one instance they had authorised him to indorse, and in two other instances had received money obtained by his indorsing in their name, a jury was held warranted in inferring that the clerk had a general authority to indorse.(1) The acceptance of a bill drawn by procuration *is an ad[*24] mission of the agent's authority to draw, but no admission of his authority to indorse, though the indorsement were on the bill at the time of acceptance.(m) : An agent who exceeds his authority, in negotiating a bill, cannot, in any case, convey a title to it, if overdue at the time and a party who takes a bill from an agent under such circumstances that his title is affected by the wrongful act of the agent, is liable to refund to the principal, money which he may receive in discharge of the bill from the previous parties; or, if in lieu of money, he take a substituted bill, such second bill belongs to the principal, and the principal may countermand payment. For neither in the first bill, nor in the fruit of it, the second bill, or in money received on either has he any greater interest than his indorser could convey, viz. the interest of an agent, and a principal has a right to countermand payment to his agent.(n) If an agent indorse, without authority, a bill payable only to order, such indorsement conveys no right of action, except against the party indorsing.(0) But the unauthorized delivery of bills or notes payable to bearer, gives a bona fide holder a claim on the other parties.(p) But in any case, if the transferee know that the transferrer has no right to pass the bills, he can acquire no property in them. Thus, where the plaintiff indorsed bills to A. B. specially in this form, "Pay A. B. or order, for account of plaintiffs," and A. B. pledged the bills with defendant for his private debt, it was held that the defen (7) Prescott v. Flinn, 9 Bing. 19; 2 Moo. & Sc. 22, S. C. (m) Robinson v. Yarrow, 7 Taunt. 455; 1 Moo. 150. See the Chap. an Acceptance. (n) Lee v. Zagury, 8 Taunt. 114; 1 Moo. 556. (0) See Fearn v. Filica, 7 M. & G. 513; 14 L. J. 15, C. P., S. C. (p) Bayley, 106; Miller v. Race, 1 Burr. 452; Lawson v. Weston, 4 Esp. 56. See Chap. xi. on Transfer. dant took them with sufficient notice that they did not belong to A. B., and that defendant was liable to plaintiffs in action of trover.(g) An agent who receives a bill for the purpose of getting it discounted, has no right to pawn it for a sum smaller than the amount of the bill, minus the discount, for his employer may, by the pawnees detention of the bill, or by his change of residence, or by its future negotiation, be prevented from raising on the bill its full value, and yet be exposed to pay its full amount to "a subsequent bona fide [25] holder. An agent, or bill broker, intrusted to discount, has no right to pledge the bill as a security for money previously due from himself.(r) And it is very doubtful whether an usage entitling him to do so, would be legal (s). Prima facie, a bill broker has no right to pledge the bills of his different customer in one mass, for that might subject a bill to lien beyond the amount advanced upon it.(t) But the usage of a particular district may enlarge the authority of a bill broker, and give him a right to pledge the bills of different customers in one mass.(u) Such is the usage of bill brokers in the city of London, and it is not an unreasonable one, for although it may occasionally be attended with inconvenience, yet on the other hand, the bill broker may often raise money on a large scale on better terms than on a small one, or discount with other bills, bills which alone could not be discounted at all.(v) If an offer to accept be made by an agent, the holder may and should require the production of his authority, and, if satisfactory authority be not produced, may treat the bill as dishonoured. "A person taking an acceptance importing to be by procuration," says Mr. Justice Bayley, "ought to exercise due caution, for he must take it upon the credit of the party who assumes the authority to accept, and it would be only reasonable prudence to require the production of that (q) Treuttell v. Barandon, 8 Taunt. 100; 1 Moo. 543, S. C. See the subject of restrictive indorsement more fully treated in the Chapter on Transfer. (r) Haynes v. Foster, 2 C. & M. 237. (8) Foster v. Pearson, 1 C., M. & R. 849; 5 Tyr. 255, S. C. (t) Haynes v. Foster, 2 C. & M. 237. (u) Foster v. Pearson, 1 C., M. & R. 849; 5 Tyr. 255, S. C. (e) “A bill broker is not a person known to the law with certain prescribed duties, but his employment is one which depends entirely on the course of dealing." Ibid. Foster v. Pearson, 1 C. M. & R. 849. authority."(w) 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.(x) The authority of agent will be presumed to continue till due notice of its revocation has been given; and such notice should be, as to [*26] strangers, by publication in the Gazette; and as to customers and correspondents, by express individual *communication.(y) A mere agent cannot delegate his authority, unless specially authorised so to do.(2)(1) An agent will be personally liable on his drawing, indorsing, or accepting, unless he either sign his principal's name only, or expressly state in writing his ministerial character; "unless" to use the words of Lord Ellenborough, (a) "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. 507., value received, which place to the account of the Durham Bank, as 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.(b) 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.(e) A bill for 2007. was drawn upon the defendant by the description of "Mr. H. (w) Attwood v. Munnings, 7 B. & C. 278; 1 Man. & R. 78. (x) See Coore v. Callaway, 1 Esp. 115; Chitty, 283. (y) See Newsome v. Coles, 2 Camp. 617. (z) Combe's case9 Coke, 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 presLord v. Hall, 9 L. J. 147, C. P.; see also Ex parte Sutton, 2 Cox, 84. (a) Leadbitter v. Farrow, 5 M. & Sel. 345; Sowerby v. Butcher, 2 C. & M. 368 ; 4 Tyr. 320, S. C. ence. (b) Ibid.; Goupy v. Harden, 7 Taunt. 160; 2 Marsh. 454. (c) Lefevre v. Lloyd, 5 Taunt. 749; 1 Marsh. 318. (1) An agent with power to give notes cannot delegate that power. Brewster v. Hobart, 15 Pick. 302. Emerson v. Providence Manufacturing Co. 12 Mass. 237. Bishop, Cashier of the York Buildings Company, at their house in Winchester Street, London ;" and the bill directed him to place the 2001. 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.(d) [*27] The rule of law as to simple contracts in writing, other than bills and notes, is, that parol evidence is admissible to charge unnamed principals, and so it is to give them the benefit of *the contract ;(e) but is inadmissible for the purpose of discharging the agent who signs in his own name. In the two former cases the evidence is consistent with the instrument, for it admits the agent to be entitled or bound by it, but in the latter case it is inconsistent with the terms of it.(f) But it is conceived that the law as to negotiable instruments is in one respect different, and that where the principals' name does not appear, he is not liable on a bill or note.(g) (1) (d) Thomas v. Bishop, 2 Stra. 955; Rew v. Pettet, 1 Ad. & E. 196; 3 Nev. & M. 456, S. C., nom. Crew v. Pettet, ante. As to agent's remedy, see Huntley v. Sanderson, 3 Tyr. 469; 1 C. & M. 467, S. C. (e) As to the cases in which a man who signs himself agent may come forward and sue as principal, see Bickerton v. Burrell, 5 M. & S. 383, and Rayner v. Grote, 16 L. & J. Ex. 82; 15 M. & W. 359, S. C. (f) Higgins v. Senior, 8 M. & W. 834. (g) See an American case, Story on Agency, 125, n., and the observations of Lord Ellenborough and Mr. J. Holroyd, in Leadbitter v. Farrow, 5 M. & S. 349; Bult v. Morrell, 12 Ad. & E. 750. But see Lindus v. Bradwell, 5 C. B. Rep. 583, where a bill drawn on the principal, accepted by the agent in the agent's name, was held binding on the acceptor. (1) Deeds by an agent or attorney must be executed in the name of the principal to bind him, but it is otherwise in case of simple contracts. New England Marine Ins. Co. v. De Wolf, 8 Pick. 56. In contracts not under seal, if the agent intend to bind his principal and not himself, it will be sufficient if it appear in such contract that he acts as agent. Andrews v. Estes, et al. 2 Fairfield, 267. Shotwell v. McKown, 2 Southard, 828. It is not sufficient to charge the principal or protect the agent from personal responsibility, merely to describe himself as agent, if the language of the instrument imports a personal contract on his part. But when the name of the principal appears on the face of the instru ment or contract, and it is evident that the agent did not intend to bind himself |