usage only extends to sign these bills for goods actually on board. Accordingly a ship owner would not be liable. Grant vs. Norway, 10 C. B., 665; and this doctrine is adopted by the United States Supreme Court. See 105 U. S., 7; also 122 U. S., 79. On the other hand a number of the State courts, including New York, hold that this case is substantially the same as the Schuyler case, and the owner is liable. See 65 N. Y., 111; also 106 N. Y., 199, where the courts say the rule is settled in New York. 108 Penn. St., 529

544.

Brady vs. Todd, 9 Common Bench N. S,, 99, discusses the question how far a power to sell authorizes a power to warrant.

Section VII. The liability of undisclosed principal to a contract is discussed in Thompson vs. Davenport, Addison vs. Gandasequi, Patterson vs. Gandasequi, 2 Smith's Leading Cases, 342-384; 198-228 Marginal Paging.

Section VIII. Powers in reference to revocation are divisible into two classes, naked powers and those that are coupled with an interest. A naked power is a mere authority. A power coupled with an interest is one where the attorney has some ownership in or claim upon the subject in respect to which the power is to be exercised, such as a mortgage on the thing or a pledge. The main object in such a case is to enable a creditor to realize the amount secured by the mortgage or pledge. A leading case on this subject is Hunt vs. Rousmanier, 8 Wheaton, 201. In this case a creditor, on loaning money, took a power of attorney authorizing him to sell the debtor's interest in certain ships to reimburse himself. This was done under legal advice as being more desirable than a mortgage. The debtor died. The court held that the power was

revoked. The creditor thereupon asked relief in a court of Equity to have the power of attorney converted into a mortgage. The court denied his application on the ground that his mistake was as to a rule of law which the court could not correct. I Peters, 119, same case.

Section X. There are two theories concerning notice to an agent as being equivalent to notice to the principal. One is that it must be given in the very transaction in which the principal is sought to be charged with notice. The other is that it will be enough if the agent had it present to his mind, though he gained the information in some prior transaction, and even though that prior transaction was with a stranger.

The leading case in England on the first doctrine is Warrick vs. Warrick, 3 At

kyns, 291. kyns, 291. This view prevailed a long time-until it was qualified by the later case of Dresser vs. Norwood, 17 C. B. N. S., 466. This case adopts the other theory. The courts of New York and a number of the American States still adhere to the old doctrine in Warrick vs. Warrick, see Hill, 452; there are cases to the same effect in Pennsylvania and Illinois. The Supreme Court of the United States adopts the later view of Dresser vs. Norwood in Wallace, 356-366.

MONEY PAID UNDER COMPULSION TO AN AGENT.

Section XII. In general in order to recover such money two things are necessary 1st, that the payment should have been obtained involuntarily, e. g., by extortion, or duress of goods. This would be necessary whether the action was brought against the principal or agent; 2d, in order to sue the agent there must be a so-called protest or notice, the object being to prevent him from paying it over to his principal and relieving himself from suit.

This becomes a very important matter in case of duties due the United States on imported goods. The form of protest in this case is regulated by statute.

U. S. Revised Statutes, Sec. 2931-2932 and 3010, 3011, 3012. Under these rules, if one should voluntarily pay a tax to the Government, being under no duress, he could not recover it back.

Section XIII. There is an important class of cases where a note is left by a depositor in his bank for collection, it may be at a distant point, and such bank employs another bank to collect, and this second bank in the series employs a notary public to do the acts incidental to collection, and these he fails to do through negligence, whereby the depositor is injured. The better opinion here is that the first bank, though acting gratuitously, is an agent of the owner of the note and liable for negligence and also for the acts of the notary, who is to be regarded as a sub-agent, and not as acting as a public officer. This subject is carefully considered in Allen vs. Merchants' Bank, 22 Wend., 214.

Section III. The powers of a factor when there is no express agreement limiting authority, is conferred by usage. Commercial usage gives him a power to sell but no implied power to pledge. A pledge made even to a lender of money, acting in good faith on the supposition that the factor is owner will be of no legal effect so as to bind the owner. This rule is a serious restriction upon trade, and is remedied in England by several statutes. 4 Geo. IV., Chap. 83; enlarged by the 6 Geo. IV., chapter 94 and again by 5 and 6 Vic., Chapter 39. The 3d section of 6 Geo., 4, is very important in this country. It provides for two distinct classes of cases. One where the factor or other person has documentary evidence running in his

name by the owner's consent, and the other where he is without this documentary evidence intrusted not merely with the possession, but with the legal title.

the consent of the owner in every case that must confer the apparent title, and it is not really material whether the person in question be called factor or not. So a money lender who takes a bill of lading running to himself with the consent of the owner of the goods has the legal title, while the ultimate owner has a title subject to the right of the money. lender. This is brought out in 61 N. Y., 298, followed up by 71 N. Y., 387. Accordingly, if the ultimate owner should in any surreptitious way withdraw the goods from the control of the money lender he could not defeat his superior title. Not even by transfer to third person acting in good faith. The result is that documentary evidence of title emanating from an owner is not only of great consequence in determining the right of the holder to sell to third persons, but also the right of the holder of it as against the person who gave the evidence of title.

FOREIGN AND DOMESTIC FACTORS.

By the phrase foreign factor is meant the case where the factor lives in one country and the principal in another. Accordingly, a factor in New York, acting for a person in Liverpool, England, and dealing with a New York merchant, would be a foreign factor. The point then arises. whether this foreign factor has the same power by implication to pledge the credit of his principal as a domestic factor would have. Cases on this subject are quite contradictory. The latest expression of opinion is that the foreign factor must have express authority to pledge the credit of his foreign principal, otherwise the agent is alone liable. Armstrong vs. Stokes, Eng.

L. R., 7 Q. B., 605. In any event a person acting in one of the States of the Union for a principal residing in another State is not a foreign factor in this sense. Kirkpatrick vs. Stainer, 22 Wend., 244, where cases are explained.

The position of a factor who makes advances on goods of principal should be noticed. In this case the factor holds a double position. In his relation of factor In his relation of factor simply he is bound to follow the instructions of his principal. In making advances he is a creditor, and has a right to sell to reimburse himself. A difficult question arises as to his right to sell n opposition to the instructions of his principal. The leading case in the U. S. Supreme Court is Brown vs. McGran, 14 Peters, 495. While the New York court holds that the factor must first relieve himself of his duties of agent, by giving notice to his principal to repay the advances, then conceding to him a reasonable time in which to do so. If he sells in opposition to this rule he is liable to the principal. This doctrine is held in Marfield vs. Goodhue, 3 N. Y., 62. The doctrine of this case is reiterated in Hilton vs. Vanderbilt, 82 N. Y., 591. The factor might, however, obtain from the principal express authority to sell without notice, in which case he would be protected.

The right of a broker to claim commissions is considered in 83 N. Y., 378, where a number of cases are reviewed.

Chapter V. In the law of servants, particularly of carriers, e. g., railroads, the liability of the carrier for the conduct of a servant to a passenger is quite different from that which prevails towards a mere stranger. Their contract with the passenger implies that they are to be treated with civility. Accordingly, the employer may be liable for acts of incivility and impropriety, though such acts are willful and

dictated by malice. This distinction was lost sight of in Isaacs vs. Third Avenue Railway, 47 N. Y., 122, but that case was overruled in 90 N. Y., 594, where the distinction is stated.

The implied power of attorney to compromise a claim is recognized in England though not in general in this country. Late case is case of Matthews, L. R., 2 Q. B. Div., 141. The proper way, according to English cases, is for client, if he does not desire to confer on his attorney, etc., this implied power, to withdraw the authority to act as counsel or attorney. This principle is not generally recognized in the United States.

Chapter VII. A public officer is liable. for negligence in the performance of duties to a private individual who is injured. Adsit vs. Brady, 4 Hill, 630. This was applied to the case of a canal commissioner in 47 N. Y, 665; also see 94 N. Y., 302, to the same effect.

Chapter VIII. It is a general rule of law that an action for a wrong and in particular for a personal wrong dies with the person; the meaning of which is that it does not pass to an executor. The rule applies both to the right to sue and the liability to be sued. An exception to this rule is that if the wrong doer has profited by the wrong in a pecuniary way, an action. will lie against his executors. This point is considered in Phillips vs. Pomfret, L. R., 24 Ch. Div., 439. Another form of statement is that the administrator or executor represents the property and estate of the testator, but not the person. He also repre

sents his debts. See pages 456 and 7 of the same case. This subject is generally in this country affected to some extent by local statutes, which must be sought in the various statue books.

Chapter X. The doctrine of ultra vires is discussed in 118 U. S., 256, where a

is one of the most important of the facts. However a leading element is that the relation of principal and agent is created, as for an example, if the person taking the profits actually carries on the business. This is brought out in Cox vs. Hickman, 8 H. of L., 268-306. Another important case is Pooley vs. Driver, L. R., 5 Ch. Div., 458, where the importance of considering the intention is brought forward. These authorities have been recognized in America as well as in England.

In 18 N. Y., 74, the proposition is laid down that where two firms deal with each other having a common member, although no action will lie at law owing to a technical difficulty yet this difficulty does not exist in equity.

Sec. VI. The partnership relation is one of trust as between the partners themselves, accordingly one of the partners cannot, during the continuance of the partnership, make any secret arrangement for a lease to himself of property then in use for partnership purposes; see Mitchell vs. Reid, 61 N. Y., 123, same case, 84 N. Y., 556.

was

Sec. IX. Retiring Partners. In order that a partner may retire effectually as to third persons who already have dealt with the firm on the supposition that he is connected with it he must give actual notice to them to relieve himself from liability for subsequent contracts. If he resorts to the mail in giving this notice there will be a presumption that the letter received in due course by mail. But that could be rebutted by the creditor by showing that he did not receive it. 68 N. Y., 314; 99 N. Y., 571. This doctrine, however, does not apply to cases of persons who have not previously dealt with the firm. Notice in that class of cases may be given by an advertisement printed in

Ist. That a party makes a representation either by words or acts or silence when he is under a duty to speak.

2d. That he made it with the view or the expectatation or reasonable grounds for expectation that some one would act on it. 3d. That such person has acted on it in good faith.

4th. That it would do that person some harm or injury if the representation was not carried into effect.

Sec. XII. Right of one partner to make preferential assignment. The better opinion is that one partner has not the power to make an assignment of a preferential nature to trustee to pay creditors without consent of the other partner. Such an act lies outside of the partner's authority. 30 N. Y., 344. However a sole surviving partner may make such an assignment as he has entire control of the property. U. S., 3.

118

Sec. XV. The right of a partnership creditor to a preferred claim against the partnership assets over that of an individual creditor against the share of his debtor is a derivative one. He is substituted to the equitable right of each partner to have the firm assets applied primarily to the payment of the firm debts. The consequence is that where no such right exists in favor of any member of the firm, the creditor has no preference. See Fitzpatrick vs. Flannigan, 106 U. S., 648; 105 N. Y., 12.

A purchaser from one partner of his share whether it be the case of a voluntary purchase or a sale on execution does not acquire the title to any specific share of the partnership effects, but only to the partner's share of the surplus after an accounting in equity and adjustment of partnership affairs. 86 N. Y., 280.