by the death of one of them; but such warrant, given by two, being merely ministerial, may be executed in the name of the survivor. In case of the constituent's death, courts will, however, allow judgments to be entered as of a term prior to the death of a constituent." A warrant of attorney to confess judgment executed by an unmarried woman is revoked by her marriage in the absence of statutory provisions to the contrary; but if executed by an unmarried woman the courts will allow judgment to be entered up in the name of the hushand and wife. The virtue of a warrant of attorney is spent by the entry of the one judgment; a second judgment entered upon the same warrant of attorney is irregular," and cannot lawfully be enforced.

The general authority given by the warrant of attorney is usually qualified and restricted by a bond which commonly accompanies it, together with the conditions of defeasance, stating the terms upon which it was given and restraining the creditor from making immediate use of it.

Great frauds are often committed under color of bonds and warrants of attorney; in many of the States they are absolutely prohibited on experience of the abuse made of them. They can be tolerated only with a liberal exercise of discretion by the court in inquiring into them.

A warrant of attorney to confess judgment should contain not only a grant of authority, expressed clearly and intelligibly, but a designation, by name or description, of the person who is to execute it. It must be subscribed by the defendant, but no formality is necessary. WARRANT OF ATTORNEY FORMS.

Bond and Warrant of Attorney.
Know all men by these presents:
That C. D. (of -) is bound unto A. B. (of-
in the sum of dollars.

The condition of said obligation is: That if the above-bound C. D., his heirs or legal representatives, or any of them, shall pay or cause to be paid unto said A. B., his heirs, assigns, or legal representatives the sum of dollars (for, or on account of, state what), without fraud or further delay, then said obligation shall be void, otherwise to remain in full force.

And further, that A. A., or any other attorney of any court of record in the State of, is hereby empowered to appear for said C. D. in any action or suit brought or entered in such court, and after (complaint, or deciaration, or petition, as the case may be), filed therein, and without the issuing or service of process, to confess judgment against said C. D. for said sum of, with interest (at the rate of per cent. per annum, from the day of -unto -), to release all errors, waive all right to appeal (but with a stay of execution unto the day of -).

(Signed) C. D.

Executed and delivered
in the presence of
Warrant of Attorney-General Form.
To A. Y., attorney-at-law, of the court, at

t-7 Taunt. 453. -2 Kent Comm. 646, 647; 9 Wend. 452; 8 Wheat. 174; see also 2 Ld. Raym. 766, 849; where the proceeding is discussed; 7 Mod. 9: 3 Str. 108; 1 Vent. 310; 1 Salk. 87, 3 Id. 116. V-1 Salk 17: 1 P. A. Browne, 253; 3 Harring. 411. W-1 Penn. 245; 6 S. & R. 296; 14 Id. 170; Addis. 267; 2 Browne, 321; 3 Wash. C. C. 558. X-1 Troubat & Haly Pr. Ft. 1, 405. y-5 Taunt. 264; 6 Harr. 86; see 3 Pa. 72. Z-The judgment docket must particularly state and set forth the names of the parties; 7 W. & S. 406; 3 Harr. 181.

—, in, in the State of, or to any other attorney of said court, or of any other court of record, there or elsewhere.

Whereas, C. D., by a certain obligation of the same date herewith is bound unto A. B. in the sum of dollars:

Therefore, you, or any of you, are hereby authorized to appear in behalf of said C. D., his heirs, or legal representatives, in any of said courts, in any suit brought by said A. B., his heirs, assigns, or legal representatives, on said obligation without the issuing or service of process, and confess judgment thereupon against said C. D., his heirs or legal representatives, for the sum of- dollars, interest and costs of suit in any manner or form, as you shall deem proper.

And said C. D., for himself, his heirs and legal representatives, does hereby release and waive all errors, mis-entries, defects, and imperfections whatever in the entry of said judgment, or any process or proceedings connected therewith, or anywise touching or concerning the same.

In witness whereof, I have hereunto set my hand (and seal) this day of - A. D. (Witnesses) W. T., N. S. (Signed) C. D. Judgment Confessed on Warrant. Title of action, etc.

files

Date. Said A. B., by A. Y., his attorney, his (complaint, or declaration, or petition, as the case may be), against said C. D. (for - dollars due for or on account of state what), and thereupon A. A., one of the attorneys of this court, appeared (in open court) in behalf of said C. D., and by virtue of a warrant of attorney, executed for that purpose, produced and duly proved the same to said court, waived the issuing and service of process, and confessed that said C. D. owes said A. B. (-dollars of) said sum of — dollars, as stated in said A. B.'s (complaint, or declaration, or petition, as the case may be) herein.

It is therefore considered and adjudged that said A. B. do recover of said C. D. said sum of

dollars confessed due, together with his costs, herein taxed at dollars and -cents, with a release of all errors and right of appeal, by virtue of said warrant of attorney.

Auctioneers are those who sell or conduct the sale of goods, merchandise and real property, by public sale to the highest bidder. They are generally licensed for this purpose by public authority.

An auctioneer is the agent of the seller,b and of the buyer for some purposes. He has a special property in the goods, and may bring an action for the price. He has a lien upon them for the charges of the sale, his commission, and the auction duty.e He must obtain the best price he fairly can, and is responsible for damages arising from a failure to pursue the regular course of business, or from a want of skill; and where he sells goods as the property of one not the owner, is liable for their value to the real owner. See AUCTIONS SALES.

Bailees are persons to whom personal property is delivered for some specific purpose; as, to be carried from one place to another, to be cared for and kept in good condition, to be manufactured, to be held as security, and the

a-5 Mass. 505; 19 Pick. 484. b-3 T. R. 148; 2 Rich. 464; 1 Parsons Contr. 418. C-4 Ad. & E. 792; 7 East. 558 2 Taunt. 38; 3 Ves. & B. 57: 4 Johns. Ch. 659; 16 Wend. 28: 4 Me 1,258; 6 Leigh. 16; 2 Kent Comm. 539. d-1 H. Bl. 81; 7 Taunt, 237: 19 Ark. 566; 5 S. & R. 19; 1 Riley, 287; 16 Johns. 1; 1 E. D. Smith, 590; see 5 Mees & W. 645; 3 Carr. & P. 352; 5 B & Ad. 568. e-15 Mo. 184; 2 Kent Comm. 536. f-3 B & Ald. 616; Cowp. 395; 2 Wils. 325. 7 Taunt. 237; 5 Esp. 103; 20 Wend. 21; 22 Id 285; 5 Mo. 323. And see 2 Harring. (Del.) 179.

like; and after the object or purpose of such delivery is accomplished, to return the property as agreed. See BAILMENTS.

Brokers are those engaged for others to make and conclude bargains for them, for a fee or commission. Those who are engaged for others in the negotiation of contracts relative to property, the custody of which they have no concern. There are several classes of brokers. See FACTORS, below.

A broker is for many purposes the agent of both parties. He is in the first place deemed only the agent of his original employer, and becomes the agent of the other when the bargain or contract has been definitely settled in its terms between the principals.1

EXCHANGE BROKERS negotiate bills of exchange, domestic and foreign, and other securities, make and conclude bargains for others, in matters of money, securities and merchandise, learn the rates of exchange and notify their employers of the same. Their business sometimes includes the purchase and sale of undercurrent currency, gold and silver, as well as drafts and checks drawn or payable in other cities. This is at their own risk and for their individual profit, and is not, therefore, included in the business of brokerage.

Exchange and merchandise brokers negotiate the sale of merchandise without having 1 ossession or control of it, as factors or commission merchants do.

INSURANCE BROKERS or agents, see Stock Brokers, procure fire, life and marine insurance, and negotiate between insurers and insured.

NOTE BROKERS negotiate the purchase and sale of bills of exchange, negotiable bonds and promissory notes, for which they are paid a percentage or commission by the seller, whose name it is not their custom to disclose. There is an implied warranty that what they sell is what they represent it to be; and should a bill, bond or note sold by them turn out to be a forgery, they are responsible. But by showing a payment over to their principals, or other special circumstances attending the transaction, which exonerates them in the premises, they will be discharged.J

PAWN BROKERS make it their business to lend money upon property deposited with them in pledge, at usurious rates of interest, being licensed therefor, and exempted from the operation of usury laws. See BAILMENTS; PAWN BROKERS.

REAL ESTATE BROKERS or agents negotiate the purchase and sale of real estate, procure loans on mortgage security, collect rents, lease houses and lands, draw conveyances, and furnish abstracts of title to property. See CONVEYANCING.

SHIP BROKERS negotiate the purchase and sale of ships and freighting vessels. Like other brokers they receive a percentage or commission from the seller or freighter.

STOCK BROKERS are those employed to buy and sell shares of stock, whether of the public

h-Paley Ag. 13; see Com. Dig, Merch. 6; i-Paley Ag. 171, n. p.; 1 Younge J. Exch. 387; 13 Met. Mass.

funds, of banks or other corporations. In the larger cities stock brokers are associated together under a corporate name, as "Board of Brokers," "Merchants' Exchange," "Board of Trade," and the like. These associations are governed by rules and regulations made by themselves, to which each member is subject. Membership is procured by ballot or vote. A member defaulting in his obligations is expelled and forfeits his seat. A regular register or record of all the transactions of the body is kept by an officer of the association. Questions and disputes between members are settled by an arbitration committee. The stocks dealt in at the sessions of the board are those placed on the list by a regular vote of the association, after the same has been examined into by a committee for that purpose. The official record of sales is the best evidence of the price of any stock on a particular day.

BROKERS' FORMS.

An Order to Buy (or Sell) Stock.
Date.

B., R. and S., Stock Brokers. Please (buy or sell) for my (or our) account and risk (giving the number) shares (giving the names or descriptions of stocks).

This order good until countermanded.

Carriers are those who undertake to carry property or passengers from one place to another. See BAILMENTS.

Clerks are assistants in a shop or store, who sell goods, keep accounts, etc.; those who are employed in the use of the pen in an office, public or private, in keeping records and accounts. A clerk is always a subordinate. He differs from a factor in this, that the latter wholly supplies the place of his principal in respect to the property consigned to him,' while a clerk attends to only a part of the business, while his employer superintends the whole.

Consignees are the persons to whom goods or other things are delivered in trust, for sale or superintendence; called also factors. The goods or property sent is called the consign

ment.

When the goods consigned to them are their own, and they have been ordered to be sent, they are at his risk the moment the consignment is made, according to the consignee's direction; and the persons employed in their transmission are his agents.m When the goods are not the consignee's, if he accept the con463. j-Edw. Bills, 291; 4 Duer, 79. k-Sewell, Bankr. 1-Pardesses Droit Com. n. 38; Chitty Pr. 80; 2 Bouv Inst. n. 1287. m-1 Liverm. Ag. 9.

signment he is bound to pursue the instructions of the consignor; as, if the goods be consigned upon condition that he will accept the consignor's bills when drawn upon him he is bound to accept them when presented," or if he is directed to insure he must do so."

Factors or Commission Merchants Pare agents employed to sell goods or merchandise consigned or delivered to them, by or for their principals for a compensation commonly called factorage or commission.

Where the agent accompanies the ship, taking a cargo aboard, and it is consigned to him for sale, and he is to purchase a return cargo out of the proceeds, such agent is properly called a factor; he is, however, usually known by the name of a supercargo. A factor differs from a broker in some important particulars, viz.: He may buy and sell for his principal in his own name as well as in the name of his principal; on the contrary, a broker acting as such should buy and sell in the name of his principal. Again, a factor is Intrusted with the possession, management, disposal, and control of the goods to be bought and sold, and has a special property and a lien on them; the broker, on the contrary, has usually no such possession, management, control, or disposal of the goods, nor any other special property or lien.

A domestic factor or commission merchant is one who resides in the same country with his principal. By the usages of trade, or intendment of law, when domestic factors are employed in the ordinary business of buying and selling goods, it is presumed that a reciprocal credit between the principal and the agent and third persons has been given; when a purchase has been made by such a factor, he, as well as his principal, is deemed liable for the debt; and in case of a sale the buyer is responsible both to the factor and principal for the purchase money; but this presumption may be rebutted by proof of exclusive credit."

A foreign factor or commission merchant is one who resides in a different country from his principal. Foreign factors are held personally able upon all contracts made by them for their employers, whether they describe themselves in the contract as agents or not. In such cases the presumption is that the credit is given exclusively to the factor. But this presumption may be rebutted by proof of a contrary agreement. A factor or commission merchant is required. to use reasonable skill and ordinary diligence in his vocation." He is bound to obey his in

-1 Liverm. Ag. 139. 0-Id. 325. p-See generally 1 Parsons Contr. 80; 2 Kent Comm. 629, et. seq.; Story Bailm 325, et seq. q-Paley Ag. 13: 1 Liverm. Ag, 68; Story Ag. 33: Com. Dig. Merchant B. Malynes Lex. Merc. 81; Beawes Lex. Merc. 44; 3 Chity C. L. 193; 2 Kent Com. (3 Ed.) 622, note d; 1 Bell Comm 385, 22 408, 409; 2 B & Ald. 143. r-Beawes Lex. Merc. 14, 47: Liverm. Ag. 69, 70; 1 Domat b. 1 t. 16, 23, irt. 2. -3 Chitty C. L. 193, 210, 541: 2 B. & Ald. 143, 48: 3 Kent. Comm. (3d Ed.) 622, note d: -Paley Ag. .3 (Lloyd's Ed.); Bell Comm. 385. u-Story Ag. 267, 291, 293: 9 B. & C. 78; 15 East. 62. y-Story Ag 268; Paley Ag. 248, 273; B. N. P. 130; Smith Merc. 46; 2 Liverm. Ag. 249; 1 B. & P. 398: 15 East. 62;

He has the right to sell goods in his own name; and when untrammeled by instruction, he may sell them at such times, and for such prices, as, in the exercise of a just discretion, he may think best for his employer. He is, for many purposes, between himself and third persons, to be considered as the owner of the goods. He may, therefore, recover the price of the goods sold by him in his own name, and, consequently, he may receive payment, and give receipts, and discharge the debtor, unless, indeed, notice has been given by the principal to the debtor not to pay. He has a lien on the goods for advances made by him, and for his commissions. He has no right to barter the goods of his principal, nor to pledge them for the purpose of raising money for himself, or to secure a debt he may owe; but he may pledge them for advances made to his principal, or for the purpose of raising money for him, or in order to reimburse himself to the amount of his own lien." Another exception to the rule that a factor cannot pledge the goods of his principal is, that he may raise money by pledging the goods for the payment of duties, or any other charge or purpose allowed or justified by the usages of trade.

It is a general rule that when property remitted by the principal, or acquired from him by his order, is found distinguishable in the hands of the factor or merchant, capable of being traced by a clear and connected chain of identity, in no case the link of it degenerating from a specific trust into a general debt, the creditors of the factor who has become bankrupt have no right to the specific property,d even when it is money in the creditors' hands;e but the rights of third persons dealing bona fide with the factor or commission merchant as a principal, where the name of the principal is sunk entirely, are to be protected." See GENERAL STATUTES.

Forwarding Merchants are those who re ceive and forward goods, taking upon themselves the expenses of the transportation, for which he receives a compensation. He has no concern in the cars or vessels in which they are transported, and no interest in the freight. See BAILMENTS.

9 Barn. & C. 78. W-1 Ventr 121. X-3 N. Y. 62: 14 Pet. 479; 5 C. B. 895. -14 Pet. 479: 7 Taunt. 164: 5 Day, 566; 3 Caines, 226; Story C. C. 43. Z.3 C. B. 380. a-5 Cush. 111; 2 Mass. 398; 13 Id. 178; 1 M'Cord, 1; 1 Mass. C. C. 440; 5 Johns. 429: see 3 Denio, 472; 13 Eng. L. & Eq. 261 b-2 Kent Comm. (3d Ed.) 625628: 4 Johns 103; 7 East. 5: Story Bailm. 22 325-327 e-2 Gall. C. C. 13: 6 S. & R. 386; Paley Ag. 217: 3 Esp. 282. d-Cook Bank. L 400; 2 Str. 1182; 3 Maule & S. 562. e-2 Burr. 1369; 5 Ves. Ch 169: 5 T. R 277: 14 N. H. 38; 2 Dall. 60; 2 Pick 86; 5 Id. 7; and see Willes, 400; 1 Bos. & P. 539, 648: for the rule as te promissory notes. f-7 T. R. 360: 3 Bingh. 139; 6 M & S. 14.

Masters of Ships are commanders or first officers of merchant ships; captains.

The master of an American ship must be a citizen of the United States; a similar requirement exists in most maritime states. In some countries their qualifications and skill must be attested by examination by proper authorities; in the United States the civil responsibility of the owners for their acts is deemed sufficient.

A vessel sailing without a competent master 's deemed unseaworthy, and the owners are liable for any loss of cargo which may occur, but cannot recover on a policy of insurance in case of disaster. The master is selected by the owners, and, in case of his death or disability during the voyage, the mate succeeds. If he also dies in a foreign country, the consignee of the vessel, or the consul of the nation, may, in case of necessity, and in the absence of other authority, appoint a master. The master himself may, in similar circumstances of necessity and distance from the owners, appoint a substitute.' During the temporary absence of the master the mate succeeds. See CHARTER PARTIES, CONTRACTS, MARITIME LAW.

Partners. It may be stated, as a general principle which governs all partnerships in trade, that each individual partner constitutes the others his agents for the purpose of entering into all contracts for him within the scope of the partnership concern, and, consequently, that he is liable to the performance of all such contracts in the same manner as if entered into personally by himself. In truth, the law of partnership is a branch of the law of principal and agent. If two agree that they should carry on a trade and share the profits of it, each is a principal and each is an agent for the other, and each is bound by the other's contracts in carrying on the trade as much as a single principal would be by the act of an agent who was to give the whole of the profits to his em ployer. See PARTNERSHIP.

Principals are those who, being legally competent to do any act for their own benefit, or on their own account, confides it to another person to do it for them. The word principal is used in opposition to agent, and in this sense it signifies that the principal is the prime mover. It is also used in opposition to the word surety; thus we say, the principal is answerable before the surety.

Every one of full age, and not otherwise disabled, is capable of being a principal; for it is a rule that whenever a person has power, as owner, or in his own right, to do a thing, he 'may do it by another. Infants are generally incapable of appointing an agent; but under

g-1 U. S. Stat. at L. 287. h-21 How. 7, 23; 6 Cow. 270: 12 Johns. 128, 136; 21 N. Y. 378. i-1 Parsons Marit. L. 387; 2 Sumn. C. C. 206; 13 Pet. 387. j-2 Sumn. C. C. 588; K-6 Bingh. 792; Story Partn. 1; 20 Miss. 122; 10 N. H. 16; Collyer Partn. 2 195; Poth. Partn. c. 5. n. 90; 4 Exch. 623, 630. 1-1 Domat. b. 1. tit. 15, Introd.. Story Ag. 22 m-Com. Dig. Atty. (C. 1) Hemcccius ad pand. p. 1, 1, 3, tit. 1. 424; 9 Co. 756: Story Ag. 36. n-2 Kent Comm. 233-243; 9 Co. 75. 76; 3 Burr. 1804; 6 Cow. 393; 10 Ohio, 37: 10 Pet.

special circumstances they may make such appointments. For instance, an infant may authorize another to do any act which is beneficial to him, but not to do an act which is to his prejudice." Idiots, lunatics, and other persons not legally competent, are wholly incapable of appointing an agent.o

THEIR LIABILITIES to agents are: 1. To reimburse him all his advances, expenses, and disbursements lawfully incurred about the agency, and also to pay him interest upon such advances and disbursements whenever interest may fairly be presumed to have been stipulated for or to be due to the agent.P 2. To pay him his commissions as agreed upon, or according to the usage of trade, except in cases of gratuitous agency.¶ 3. To indemnify the agent when, without his own default, he has sustained damages in following the directions of his principal. For example, when the agent has innocently sold the goods of a third person under the direction or authority of his principal, and a third person recovers damages against the agent, the latter will be entitled to reimbursement from the principal.

to third persons. The principal is bound to fulfil all the engagements made by the agent for or in the name of the principal, and which come within the scope of his usual employment, although the agent in the particular instance has in fact exceeded or violated his private instructions. And where an exclusive credit is not given to the agent, the principal is liable to third persons upon contracts made by his agent within the scope of his authority, although the agent contracts in his own name and does not disclose his agency. But if the principal and agent are both known, and exclusive credit be given to the latter, the principal will not be liable though the agent should subsequently become insolvent." is paid by a third person to the agent by mistake, or upon a consideration that has failed, the principal will be liable to repay it, although he may never have received it from his agent.

Where money

A principal is affected by notice to his agent respecting any matter distinctly within the scope of his agency, when the notice is given before the transaction begins, or before it is so far completed as to render the notice nugatory." The notice to the agent may be implied as well as express: knowledge obtained by the agent in the course of that very transaction is notice. Notice to a servant of the principal, or one employed by the principal, affects the principal only when given about the very thing the servant is employed to do. Notice to a corporation binds it only when made to an officer, 58, 69: 14 Mass. 463. 0-Story Ag. 6. p-Story Ag. 2335, 336, 338; Story Bailm. 196, 197; Paley Ag. 107, 108. q-Story Ag. 324; Paley Ag. 100-107. -Story Ag. 339; 9 Met. (Mass.) 218. -Story Ag. 2443: Smith Merc. L. 56, 59; 4 Watts. 222; 21 Vt. 129; 26 Me. 84 1 Wash. C. C. 174. 1-Story Ag. 2 446. u-Id. ¿ 447 V Story Ag. 2451; Paley Ag. 293; 2 East. 509. W-2 Hill (N. Y.) 4511 Hill (N. Y.) 567; S. C. 7 Hill, 427. ! Barb. Ch. 287: 3 P. Wms. 307; 2 Atkins, 630; 1 Id 384; 1 Ch. Cas. 34; 8 Ala. 519.

whose situation and relation to the corporation imply that he has authority to act for the corporation in the particular matter in regard to which the notice is given.*

He

liabilities for unlawful or wrongful acts of agents. The principal is not, in general, liable to a criminal prosecution for the acts or misdeeds of his agent, unless he has authorized or co-operated in such acts or misdeeds. is, however, civilly liable to third persons for the misfeasance, negligence, or omission of duty of his agent in the course of the agency, although he did not authorize or know of such misconduct, or even although he forbade it." And he is liable for the injuries and wrongs of sub-agents who are retained by his direction, either express or implied. But the responsibility of the principal for the negligence or unlawful acts of his agent is limited to cases properly within the scope of the agency.

A principal is not liable for the wilful acts of his agent whereby damage is occasioned to another, unless he originally commanded, or subsequently assented to the act.b

A principal is liable for the fraud or misconduct of his agent, so far, that on the one hand he cannot take any benefit from any misrepresentation fraudulently made by his agent, although the principal was ignorant and innocent of the fraud; and on the other hand, if a party dealing with an agent suffer from such fraud, the principal is bound to make him compensation for the injury so sustained; and this, although the principal be innocent, provided the agent acted in the matter as his agent, and distinctly within the line of business intrusted to him.

In contracts made without mentioning the name of the principal, the principal may avail himself of the agreement; for the contract will be treated as that of the principal as well as of the agent. If, however, the person with whom the contract was made was bona fide dealt with the agent as owner, he will be entitled to set off any claim he may have against the agent in answer to the demand of the principal; and the principal's right to enforce contracts entered into by his agent is affected by every species of fraud, misrepresentation, or concealment of the agent which would defeat it if proceeding from himself.

When goods are intrusted to an agent for a specific purpose, a delivery by him for a different purpose, or in a manner not authorized by the commission, passes no property in them

X-3 C. B. 16: 19 Vt. 410-425: 4 Paige, 127; 1 Hill (N. Y.) 575: 3 Comst. 156-166; 1 Met. 308; Story Ag. 140 a. 140 b. y Story Ag452; Paley Ag. 303; 1 M. & M. 433. Z-Story Ag. 452; Paley Ag 294, 307: Smith Merc L. 70, 71; 26 Vt. 112, 123: 6 Gill & J. 291. 20 Barb. 507; 7 Cush. 385. a-Story Ag. 2454: Paley Ag. 296; 1 Bos, & P. 409. b-Paley Ag. 208, 299; Story Ag. 2456: Wend. 268; 23 Pick. 25: 20 Conn. 284. e12 M. & W. 520; 1 T. R. 12; 2 Stra. 1183; 21 Vt. 129. 6 Cl. & F. 448; 8 C. & P. 316; 1 Hill, 317: 8 How 134: 3 Story, 611. d-1 Salk. 289; 1 Campb. 124; 3 Strobh Eq. 263; 8 Texas, 6 e-7 Bing. 543; 4 T. R. 39-66; 1 Campb. 530; 20 E. L. & E. 285; 20 Barb. 493.

and they may, therefore, be reclaimed by the owner.b

Where the principal gives notice to the debtor not to pay money to the agent, unless the agent has a superior right from a lien or otherwise, the amount of any payment afterward made to the agent may be recovered by the principal from the debtor.

Money paid by an agent may also be recovered by the principal under any of the following circumstances: 1. Where the consideration fails. 2. Where money is paid by an agen through mistake. 3. Where money is illegally extorted from an agent in the course of his employment. 4. Where the money of the principal has been fraudulently applied by the agent to an illegal and prohibited purpose.)

RIGHTS of action under a contract made by an agent. In contracts by deed no party can have a right of action under them but the party whose name is to them; but in the case of a simple contract an undisclosed principal may show that the apparent party was his agent, and may put himself in the place of his agent;' but not so as to affect injuriously the rights of the other party. When the name of the principal is disclosed at the time of the contract is made by the agent, the former is the proper party to sue upon the contract.

Against third persons. In general, the principal, as against third persons, has a right to all the advantages and benefits of the acts and contracts of his agent, and is entitled to the same remedies against such third persons in respect to such acts and contracts as if they were made or done with him personally." But to this rule there are the following exceptions:

1. When the instrument is under seal, and it has been exclusively made between the agent and the third person; as, for example, a charter party or bottomry bond made by the master of a ship in the course of his employment. In this case the principal cannot sue or be sued on it."

2. When an exclusive credit is given to and by the agent, and therefore the principal cannot be considered in any manner a party to the contract, although he may have authorized it and be entitled to all the benefits arising from it. The case of a foreign factor buying or selling goods is an example of this kind. He is treated, as between himself and the other party, as the sole contractor, and the real principal cannot sue or be sued on the contract. This is

a general rule of commercial law, founded upon the known usage of trade, and it is strictly

f-5 Esp. 135: 3 M. & W. 505: 2 Cr. & M. 392. g-Story Ag. 420, 421, 440; 2 Kent Comm 632; Paley Ag. 324, 325; 3 Bos. & P 490: 7 T. R 359, 360, note; 2 Caines, 299; 24 Wend. 458: 3 Hill (N. Y.) 72. h-Paley Ag. 340, 341; 3 Pick. 495. i-Story Ag429: 15 East. 65: 4 Campb 60; 6 Cow. 181, 186. j-Paley Ag 335, 337 -1 Salk. 197; 2 L. Rav. 1418. 1-4 B & Ald. 437: 10 B. & C 671; 1 Campb. 337; 4 B & C 664 12 Mass 80; 24 Vt. 33: 8 M. & W 834; 12 Id 808

m.

7 T. R. 359: 5 B. & Ad. 389; 1 M. & W 591; 7 Cush. 371; 10 B. Mon. 349. 15 M. & W. 231. n-Story Ag.

418, 420; Paley Ag 323: 8 La. 296; 2 Stark. 443 0-Story Ag. 2 422; Abbott Ship P 3, Ch. 1, 22; Wend. 285; 1 Paine C. C 252 3 Wash C C 560