perty will pass by the sale to the vendee; and it makes no difference that the wharfinger was accustomed to sell the same sort of goods from the wharf (u).

An agent selling the property of two principals for one entire price will be liable to the buyer as a principal. Thus, where an agent sells a horse belonging to A., and another to B. for one price, with a warranty, A. is not liable in an action by the seller, on a breach of the warranty, but the agent only is answerable (x).

Though it is laid down in Brooke's Abridgment (y), that if a servant sell false stuff an action on the case will not lie against the master, unless he sold it through his covin, or by his command; yet it seems, from a later decision, that a man may be held answerable civilly for the fraudulent acts of his agent. That was an action on the case for deceit, in the sale of silk bought by the plaintiff, of the defendant, which was stated to have been bought as silk of one sort, and to be in fact of another sort; it appeared in evidence that there was no deceit in the defendant who was a merchant, but that it was in his factor beyond sea, and the doubt was, if this deceit would charge the defendant. Lord Chief Justice Holtthought him answerable for the deceit of the factor; for seeing somebody must be a loser by this deceit, it was

(u) Wilkinson' v. King,

2 Campb. 335.

(x) Symonds v.Carr, 1 Campb.

(y) Action on the Case,

pl. 8.

more reasonable that he who employed and trusted the deceiver should be a loser, than a stranger (≈).

The authority which a factor has to sell the goods of his principal does not authorize him to barter them for other goods; and if he in point of fact barter the goods, and deliver them, and receive other goods in exchange, no property passes by the delivery, and the owner of the goods may maintain an action of trover for them against the person to whom they are bartered and delivered, though he did not know that he had been dealing with a person who was merely a factor. But it seems that if it had been a sale in market overt, it would have bound the seller (a).

CHAP. XI.

Of Payments.

THE investigation of the law relative to the sale of personal property, in the order which seemed most natural and perspicuous, has at length brought us to the last subject which we propose to consider, namely, the time and manner in which payment for the goods is to be made.

The vendee is in general bound to pay for goods in money at the time of taking them away; but both

(z) Hern v. Nichols, 1 Salk. 289; 3 Atk. 47, accord.; Jones v. Hart, 2 Salk. 441, accord.

(a) Guerreiro v.Peile, 3 Barn. & Ald. 616.

the mode and time of payment are subject to whatever particular stipulations the parties may choose to agree upon; and it is very usual for the vendor to give the vendee credit for a certain time, and to agree to receive in payment bills of exchange, either drawn or accepted by the vendee, and payable at a particular time. Where goods are to be paid for by a bill of exchange, and the vendor directs the vendee to send a bill by the post, and the bill is so transmitted by the vendee, he will be discharged, though the bill should happen to fall into bad hands, and the amount of it should be received by a third person at the banker's where it was to be paid; and even if there had been no particular direction from the vendor, the law would have been the same, this being the usual way of transacting such business (b). But where a person in London is directed to remit money by the post, he ought either to put it into the postoffice in Lombard Street, or deliver it at one of the receiving-houses appointed by the post-office; and if he give it to a bellman in the street he will be answerable in case of its miscarriage (c).

Many questions have arisen in our courts of law respecting payments made for goods in bills of exchange or promissory notes, and the circumstances under which such payments shall bind the party receiving the bills or notes. It is laid down in an old case, that where a bill is taken in payment at the time of the sale it will be an absolute payment; but where there is a precedent debt, the giving of a bill or note is

(b) Warwicke Peake, 67. a.

V. Noakes,

(c) Hawkins v. Rutt, Peake, 186.

only a conditional payment, that is to say, payment, if the bill or note should be duly honoured; it seems, however, now to be understood, that unless the person to whom the payment is made agree to take the notes as money, and to run the risk of their being paid, it will not be considered a payment unless the notes be afterwards paid. If the party receiving a note keep it by him an unreasonable length of time, and the person who was to pay it becomes insolvent, he that received it must bear the loss (d).

A. sold goods to B., for which the latter was to pay in three months by a bill at three months; a few days after the expiration of three months B. gave to A. a cheque on his bankers (who were also the bankers of A.) requiring them to pay A. on demand in a bill at 70 days, and A. paid the cheque into the bankers hands, and took no bill from them, but the amount was transferred in the bankers books from B.'s account to A.'s, with the knowledge of both ; the bankers having failed before the time when the bill which was originally intended to be given would have become due, a question arose whether A. could recover the value of the goods against B., and the court of King's Bench held that it was a valid payment, and that A. could not recover (e).

(d) Ward v. Evans, 2 Lord Raym. 928; 2 Salk. 442; 1 Com. 138; and 6 Mod. 36. Owenson v. Morse, 7 T. R. 64. See Str. 415, 16. 508. 550. 6 T. R. 52. 8 T. R. 451. 2 Bos. and Pul. 518.

(e) Bolton v. Richard, 6 T. R. 139. See Bolton v. Reichard, 1 Esp. 106, which seems to be a report of the same case at

Nisi Prius; Lord Kenyon is there stated to have ruled, that where a person in payment of goods gives an order to pay the bearer the amount in good bills on London, and the party takes bills for the amount, he does it at his own risk. Quære; for this doctrine does not seem consistent with the cases stated above.

In general, if a creditor prefer a bill of exchange, accepted by a third person, to ready money, from his debtor, he must abide by the hazard of the security; but if an agent of the debtor offer the creditor payment in cash, or by a cheque on his banker, and the creditor prefer the cheque, this will not discharge the debtor if the cheque be dishonoured, although the agent failed with a balance of his principal in his hands to a larger amount (ƒ).

By stat. 3 & 4 Ann. c. 9, s. 7, "if any person accept a bill of exchange in satisfaction of any former debt it shall be accounted a full payment of such debt, if such person accepting of such bill do not take his due course to obtain payment of the bill by endeavouring to get it accepted and paid, and making his protest for non-acceptance or non-payment thereof." This statute applies only to persons whose names are on the bills; therefore where the seller of goods, with the consent of the purchaser, drew a bill of exchange for the price of the goods upon a third person, who was indebted to the purchaser, which bill was accepted, but when it was presented for payment was dishonoured, the purchaser was not entitled to notice of the dishonour of the bill (g).

Taking a bill in payment from the ostensible partner in a firm, which bill is afterwards dishonoured, will not prevent the creditor from suing an unknown partner for the debt when he is discovered (h). Where goods are delivered under an agreement