to take a specific parcel of copper halfpence in payment, a delivery of the halfpence will prevent the seller's supporting an action for the price of the goods, though the larger number of the halfpence prove counterfeit (i).

We will next consider under what circumstances payments to factors, agents or servants, will be held to bind their principals. If a man send his servant to receive money for him, the servant has no authority to take a note instead of money; but a subsequent assent by the master will be equivalent to a precedent authority (k).

Where a master sent his servant, who was accustomed to transact affairs of that nature for him, on Saturday morning, with a note drawn on Sir Stephen Evans, with orders to get from Sir Stephen either bank-bills or money, and change them for exchequerbills, but the servant, to save himself the trouble of going to Sir Stephen Evans, went to B. and prevailed on him to give him a bank-bill for the note on Sir Stephen, and then purchased the exchequer-bills with it, and Sir Stephen Evans having failed on the following Monday, a question came before the Court whether the loss of the note on Sir Stephen should fall on the master, or on B., the Court held that the loss should fall on the master, on the ground that the servant had a general authority; and they said, that if this general authority should be liable to be determined for a time, by any particular instructions

(i) Alexander v. Owen, 1 T. R. 225.

(k) Ward v. Evans, 2 Lord Raym. 928; 2 Salk. 442;

1 Com. 138; and 6 Mod. 36. See also Thorold v. Smith, 11 Mod. 87.

Where a factor sells the goods of his principal in his own name, and makes the buyer debtor to himself, he has a right to receive the price; he may support an action for it against the buyer; and it will De no defence to such action for the buyer to say that the principal is indebted to him in more money, except in cases where nothing is due from the principal to the factor; and where a factor who had become surety for his principal, for money borrowed by him, upon an engagement by the principal to send the factor all the goods he should make of the money borrowed, sold goods in his own name, but the goods were marked with the name of the principal, and the purchaser knew that the seller sold the goods as factor, and after an act of bankruptcy committed by the principal, and notice by his assignees to the purchaser not to pay the price of the goods to the factor, the purchaser did nevertheless pay it to the factor, the Court of King's Bench held him warranted in so doing (m).

If the owner of goods allow his broker to sell them as a principal, the purchaser will be discharged by paying the price of the goods to the broker (n). And if the principals, on some occasions, allow their brokers to draw bills in their own name for goods which they have sold on their account, they are bound by a payment made to the brokers by a purchaser (0).

(1) Nickson V. Brohan, 10 Mod. 109.

(m) Drinkwater v. Goodwin, Cowp. 251.

(n) Coates v. Lewes, 1 Campb.

444.

(o) Townsend v. Inglis, Holt N. P. C. 278.

And where goods are sold by a broker for a principal not named, upon the terms of " payment in one month, money;" which terms are specified in the bought-and-sold notes, handed over to the respective parties by the broker, a payment made to the broker within the month, by a bill of exchange, accepted by the buyer, and discounted by him within the month, is good; but the buyer being also indebted to the same broker for another parcel of goods belonging to other persons, and accepting the bill for a larger sum than either of the parcels of goods alone amounted to, though not for a sum large enough to cover both demands, and there being no specific appropriation of the payment to either of the debts, it was held, that on the broker stopping payment the payment for the goods ought to be equitably apportioned between the several owners of the goods sold, and that they were respectively entitled to recover the difference from the buyer (p). In this case the Jury were of opinion that the stipulation in the contract of "a month, money," meant, in the understanding of commercial men, payment at any time within a month, and that the payment in question within the month to the brokers, with whom the defendant had dealt, without the knowledge of their principal, was a good payment to bind their principal.

If a creditor take the security of the agent of his debtor in payment of the debt, unknown to the principal, and give the agent a receipt as for the money due from the principal, in consequence of which the principal deals in any manner differently with the

(p) Faven v. Bennett, 11 East, 36.

agent on the faith of the receipt, the principal is discharged though the security fail. But the principal is not exonerated from the payment if he cannot show that he was injured by means of such false voucher, and the omission of the party to inform him of the truth in time (q).

A tender of money to an agent authorized to receive payment is as good as a tender to the creditor in person (r). The demand of a debt to do away the effect of a tender must be made by some one authorized to give the debtor a discharge (s).

The plaintiff, a farmer in the country, sent oats to London, consigned to his factor. The custom of the trade had formerly been that the factor had 4 d. per quarter for selling, and gave immediate notice to the farmer of the name of the buyer, and of the price; but it had for many years been customary for the farmer to allow 2 d. per quarter more, upon the factor taking upon himself the risk of the debts, since which time they had ceased to inform the buyers. The oats in the present case were sold, but the factor failing, the plaintiff (before payment) gave notice to the defendant (the buyer) not to pay the factor, which he did notwithstanding, and thereupon the action was brought. Lord Chief Justice Lee thought that this new method had not deprived the farmer of his remedy against the buyer, provided there was no payment to the factor; that the only reason of advancing 2d. per quarter was, to have both at stake,

(q) Wyatt v. The Marquis of Hertford, 3 East, 147.

(r) Goodland v. Blewith,

(s) Coles v. Bell, 1 Campb.

478.

1 Campb. 477.

R

and here being notice before actual payment, there could be no harm done; therefore he directed the Jury in favour of the plaintiff. The Jury, however, found for the defendant, and a new trial being afterwards granted, the cause came on to be tried before a special Jury. The Chief Justice declared to the Jury, that a factor's sale does by the general rule of law create a contract between the owner and the buyer. The Jury, notwithstanding, found for the defendant; and being asked their reason, declared, that from the circumstances no credit was given as between the owner and buyer, and that the latter was answerable to the factor only, and the factor only to the owner (t). It seems impossible to reconcile the finding of the Jury in this case, either with the direction of the learned Judge, or with the general current of authorities upon the subject. It is indeed stated in Buller's Nisi Prius (u), that perhaps under some particular circumstances the general rule may not take place; as, where the factor sells the goods at his own risk (i. e. is answerable to the owner for the price, though it never be paid), for in such case he is debtor to the owner, and not the buyer. It is, however, very difficult to understand how the circumstance of a factor, having a del credere commission (a) from his employer, can in any way affect the rights or liabilities of third persons in respect of either the principal or the factor; and though some of the cases do seem to attribute an effect to a del credere commis

(t) Scrimshire v. Alderton, mium, insures to his principal Str. 1182.

the solvency of the person to whom he sells the principal's goods, this is called a commission del credere.