his own name, for an indorsed principal, either the agent or the principal may sue upon it; the defendant, in the case where the principal sues, being entitled to be placed in the same situation at the time of the disclosure of the real principal, as if the agent had been the contracting party. This is a well established rule of law, frequently acted upon in sales by factors, agents, or partners, but it may equally be applied to other cases.-Sims v. Bond, 2 Nev. and Mann. 616. If goods are bought by a brokert, who does not mention the name of his principal until he (the broker) has become insolvent, the principal cannot set off the price of the goods against a debt due to him from the broker, but is still liable to the vendor. But where a factor, acting under a del credere commission", sells goods as his own, and the buyer does not know of any principal, the buyer may, in an action brought against him by the principal, set off a debt due to him from the factor (3). There is, however, a distinction between a factor and a broker. A factor is a person to whom goods are consigned for sale by a merchant residing abroad or at a distance from the place of sale, and he usually sells in his own name, without disclosing that of his principal; the merchant, therefore, with full knowledge of these circumstances, trusts him with the actual possession of the goods, and gives him authority to sell in his own name. But the broker is in a different situation, he is not trusted with the possession of the goods, and he ought not to sell in his own name.

t Waring v. Favenck, 1 Camp. 85.
u George v. Claget, 7 T. R. 359. See
Morris v. Cleasby, 1 M. and S. 576.

Blackburn v. Scholes, 2 Campb. 343. and Carr v. Hincliff, 4 B. and C. 551. Wynen v. Brown, B. R. E. T. 7 G. 4.

(3) Where a factor to a person beyond sea buys or sells goods for the principal in his own name; an action will lie against him or for him, in his own name; for the credit will be presumed to be given to him in the first case, and in the last the promise will be presumed to be made to him, and the rather so, as it is so much for the benefit of trade. Gonzales v. Sladen, T. 1 Ann. London Sittings, Salk. MSS. Bull. N. P. 130. "Where the principal resides abroad, he is presumed to be ignorant of the circumstances of the party with whom his factor deals, and therefore the whole credit is considered as subsisting between the contracting parties." Per Chambre, J. in Houghton v. Matthews, 3 Bos. and Pul. 490. "There may be a particular course of dealing with respect to trade in favour of a foreign principal, that he shall not be liable in cases where a home principal would be liable." Per Bayley, J. 15 East, 69.

VOL. II.

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K

The principal who trusts a broker has a right to expect that he will not sell in his own name. Hence where an action was brought by a merchant to recover the price of his own goods, and the demand was resisted on the ground that the defendants, who were buyers of the goods, did not purchase them of the plaintiffs, but of Coles and Co. and that they had a counter demand against Coles and Co. which they were entitled to set off against the price of the goods; it was holden that the defendants had not any right of set off; for the plaintiffs had not enabled Coles and Co. to appear as proprietors of the goods; and although Coles and Co. had not disclosed the name of their principal, and were merchants as well as brokers, yet in this case they had delivered to the plaintiffs a sold note, in the proper form, supposing them to have sold in their character of brokers, and they had delivered to the defendants a bought note, and they had not taken any counter note from the defendants; there was enough, therefore, to have raised a strong presumption in the minds of the defendants that the sale was in the character of brokers. Coles and Co. did not say they sold the goods as their own; the defendants did not ask any questions; and further it appeared that the delivery order had been signed by the plaintiffs. A bill broker who receives a bill merely for the purpose of procuring it to be discounted for his customer, has no right to mix it with bills of his other customers, and to pledgey the whole mass as an advance for the security of money. Parke, B. delivering judgment and commenting on the foregoing case in Foster v. Pearson, 5 Tyrw. 265, observed, that in the absence of evidence as to the nature of such an employment, a bill broker must be taken to be an agent to procure the loan of money on each customer's bills separately, and that he had therefore no right to mix bills together, and pledge the mass for one entire sum. In truth a bill broker is not a person known to the law with certain prescribed duties, but his employment is one which depends entirely upon the course of dealing. It may differ in different parts of the country, it may have bounds more or less extensive in one place than in another. What is the nature of its powers and duties in any instance is a question of fact, and is to be determined by the usage and course of dealing in the particular place.

The law has been settled, by a variety of cases, that an unknown principal, when discovered, is liable on the contracts

x Baring v. Corrie, 2 B. and A. 137.

y Per Ld. Lyndhurst, delivering judg

ment, Haynes v. Foster, 4 Tyrw. 66.

2 Cr. & M. 239. S. C.

which his agent makes for him (4), but this rule must be taken with some qualification; for a party may preclude himself from recovering over against the principal, by knowingly making the agent his debtorz.

Goods sold by a broker for a principal not named, upon the terms, as specified in the usual bought and sold notes, (delivered over to the respective parties by the broker) of "payment in one month, money," may be paid for by the buyer to the broker within the month, and that payment may be made by a bill of exchange accepted by the buyer and discounted by him within the month, although such bill had a longer time to run before it became duea. A person who has made a contract as agent for a third person cannot sue as principal without giving notice to the defendant, before action brought, that he is the party really interested. But where money is paid by an agent upon an agreement made with him in his own name, the principal may recover it back upon the rescinding of the agreement. The plaintiffs who were brokers, bought goods of the defendant on account of H. and by his authority. The purchase was made in their own names, but the vendor was told that there was an unnamed principal. The plaintiffs afterwards under a general authority from H. contracted to sell the same goods, which the defendant had not yet delivered. H. on hearing of the latter contract, told the plaintiffs that he would have nothing to do with the goods, either as buyer or seller; and to this the plaintiffs assented. The defendant then refused to deliver the goods, and the plaintiffs sued him for damages sustained by them in consequence; it was holden, that the renunciation of the contract by H., and the plaintiffs' assent thereto, formed no objection to the plaintiffs' right to recover, of which the defendant could take advantage.

z Per Ld. Ellenborough in Paterson v.
Gandasequi, 15 East, 68.

a Favenc v. Bennett, 11 East, 36.
b Bickerton v. Burrell, 5 M. & S. 383.

c D. of Norfolk v. Worthy, 1 Campb.

337.

d Short and others v. Spackman, 2 B. and Ad. 962.

(4) This rule has been applied to a case, where the agent, at the time when he bought the goods of Plaintiff at Liverpool, said that he bought them for a house at Dumfries, for which house he had bought goods of the plaintiff the season before, but did not name the principal, nor did the seller ask it; and the court said he was not bound to ask it. Thomson v. Davenport. In error, from Borough Court of Liverpool. 9 B. and C. 78.

Lien. By the general usage of trade, where there is a course of dealings and general account between the merchant and factor, and a balance is due to the factor, he has a lien on all goods in his hands for such balance of the general account, without regard to the time when, or on what account, he received the goods.

With respect to this general lien, it is to be observed:

First, That it will not attach until the goods come into the possession of the factorf.

Secondly, The lien exists during such time only as the factor has possession of the goods; for if he should part with the possession after the lien has attached, the lien is gones. But where a factor is in advance for goods by actual payment, or where he sells under a del credere commission, whereby he becomes responsible for the price, he has a lien on the price, although he should have parted with the possession of the goodsh. And this rule holds, although money should have been advanced by the factor, at the time when he knew that the principal was in insolvent circumstances. The owner of goods being indebted to a factor in an amount exceeding their value, consigned them to him for sale: the factor being also similarly indebted to J. S. sold the goods to him. The factor afterwards became bankrupt; and on a settlement of accounts between J. S. and the assignees, J. S. allowed credit to them for the price of the goods, and he then proved the residue of the claim against the estate: it was holdenk, that as the factor had a lien on the whole price of the goods, such settlement of accounts between the vendee and the assignees afforded a good answer to an action against the vendee for the price of the goods, brought either by or on the account of the original owner. But where a factor has not any special claim on the goods, and he has disposed of them, whereby he has lost the advantage arising from possession, the debt is to be considered as the debt of the principal, and the factor has no lien on the price. The plaintiff, who was resident in Ireland, employed two persons, as his factors in London, to sell goods for him, which he had sent to them!. The factors sold these

e Kruger v. Wilcox, Ambl. 252. 1 i Foxcroft v. Devonshire, 2 Burr. 931. Kenyon, 32. S. C. Gardiner v. Cole- k Hudson v. Granger, 5 B. and A. 27. man, cited 1 Bur. 494. & per Buller, 1 Garratt v. Cullum, T. 9 Ann. B. R. J. 6 East, 28. n. S. P. stated by Willes, C. J. delivering the opinion of the court in Scott v. Surman, Willes, 405; reported also in Bull. N. P. 42. ed. 6th, by the name of Garratt v. Cullum.

f Kinloch v. Craig, 3 T. R. 119. 783. g See Sweet v. Pym, 1 East, 4. and Buller, J. in Lickbarrow v. Mason, 6 East, 27. n.

h See Drinkwater v. Goodwin, Cowp. 251. Hudson v. Granger, 5 B. & A. 27.

goods to J. S. for a certain sum; the plaintiff not knowing to whom they were sold, and J. S. not knowing that they belonged to the plaintiff, the goods having been delivered to him as the goods of the factors. The factors, before payment, became bankrupts, and their debts were assigned by the commissioners to the defendants, who afterwards received from J. S. the money for the goods. The plaintiff having brought an action against the defendants for money had and received, the case was reserved by Holt, C. J. for the opinion of the Court of King's Bench, who gave judgment, after argument, for the plaintiff. This case was afterwards cited before Parker, C. J. at the London Sittings, and allowed to be law; because, although it was agreed, that payment by J. S. to the factors, with whom the contract was made, would have discharged J. S. as against the principal, yet the debt was not in law due to the factors; but to the person whose goods they were; and therefore it was not assigned to the defendants by a general assignment of their debts, but remained due to the plaintiff as before, and having been paid to the defendants, who had not any right to have it, it must be considered in law as paid for the use of him to whom it was due; and, consequently, an action might be maintained by him as for money had and received to his use. The plaintiffs, who were partners, resident beyond sea, consigned a quantity of tar to R. S., the bankrupt, brother of one of the plaintiffs, as their factorm. There had been mutual dealings between the two brothers, the accounts of which were then unsettled. The ship and goods arrived in the Thames, from Carolina. The factor, having received the bill of lading, sold the tar to J. S., upon an agreement that it should be paid for in promissory notes, payable four months after the delivery of the goods. A few days after the sale, the vendee gave the factor, in part payment, two promissory notes. Soon afterwards the factor committed an act of bankruptcy, and the defendants were chosen assignees under the commission. The bankrupt delivered up the two notes to the assignees, and they received the money due upon them. They likewise confirmed the sale, and settled the account with the vendee, and received the balance. An account for money had and received having been brought by the plaintiffs against the assignees, for the recovery of the money received on the notes, and the money received on the settlement of the account, it was holden, that the plaintiffs were entitled

m Scott and another v. Surman and others, assignees of R. S. a bankrupt, Willes, 400. cited by Lord Ellenbo

rough, delivering judgment in Taylor v. Plumer, 3 M. & S. 575.