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1827. expediency, and leaving, most clearly, both those questions ATTWOOD
to the discretion of the attorney. How is it possible for third V.
persons, in the situation of these plaintiffs, to ascertain the MUNNINGS.
fact of the expediency of the attorney's accepting this bill? But the attorney herself could judge of the expediency of the measure, and her discretion was guard enough for her principal, but was no guard at all for third persons discounting the bill, unless the principal is bound by his attorney's act. In the case of an agent acting under a special limited authority, he is bound to confine himself within the scope of his authority, and cannot bind his principal beyond it; as where a broker is authorized to purchase one particular specified kind of silk, and he buys another, his principal is not bound, The East India Company v. Hensley (a); but where the authority is general and unlimited, and coupled with a discretionary power to act as occasion shall require, the principal is bound by whatever the agent does, in the fair exercise of his discretion. Here the authority is general and unlimited, and is coupled with a discretionary power to act as occasion shall require, extending to all the circumstances of the bills that the agent may accept; for the power is not to accept bills “ drawn on me by my agents or correspondents, on my own individual account,” but generally “ drawn on me by my agents or correspondents, as occasion shall require." Then, secondly, occasion did require that the bill in question should be drawn on the defendant, and should be accepted on his account by his attorney; and that is sufficiently apparent on the face of the case. The defendant was concerned in mercantile transactions both singly, and jointly with others. He had appropriated part of the produce of his joint transactions to his own individual concerns. The joint concern was in debt; the joint creditors were become urgent for the payment of their claims : and this bill was drawn for the purpose of paying those claims. Most clearly, occasion required that a man so situated
(a) 1 Esp. N. P. C. 111.
should contribute to the payment of the joint debts of a partnership, of which he was one; and if so, occasion required that this bill should be drawn for that purpose; and, being so drawn, occasion equally required that it should be accepted and paid. It is impossible to infer with certainty, from the language of this power, that it was intended to be confined to bills drawn on the defendant in respect of his own private concerns, and on his own individual account. The most that can be said is, that the language of the power is ambiguous, and it would be extremely unjust that third persons should be prejudiced by that ambiguity ; in such a case, the general rule of construction ought to be adhered to, namely, that the words of the party are to be construed most strictly against himself. Then, with respect to the first power of attorney, or rather with respect to both of them, the general terms are sufficient, independently of the special clause already noticed, to clothe Mrs. Munnings with authority to accept the bill in question. It was held in Hay v. Goldsmidt (a), that where one gave a power of attorney to another, to demand and receive all moneys due to him, on any account whatsoever, and to use all means for the recovery thereof, and to appoint attorneys for the purpose of bringing actions, and to revoke the same," and to do all other business;" the latter words must be understood with reference to the former, as meaning all business appertaining thereto : and that although the attorney might receive moneys due to the principal in auter droit, yet he could not, under that power, indorse a bill for him which had come into his hands. That case was cited with approbation by Lawrence, J.; and acted upon by the Court, in Hogg v. Snaith (6); and the principle of it cannot be denied ; namely, that where there is first a special and limited power, to receive money, a subsequent general power to do all other business, cannot enlarge the first power. But the same principle will apply here; and as there is here first a general and (a) 2 Smith's Rep. 79.
(6) 1 Taunt: 347.
unlimited power to conduct all the principal's affairs as
F. Pollock, contrà, was stopped by the Court.
BAYLEY, J.-This is a case in which the indorsee of a bill of exchange has sued the acceptor, knowing that the bill was accepted by procuration. Whoever takes a bill accepted by procuration, knows that he has not the security of the acceptor himself, but only that of a third person, who claims to have authority from the acceptor to give his security. He takes the bill, therefore, at his own peril. If the bill turns out to have been accepted without authority, the holder is not without remedy; but his remedy is against the party from whom he received it, and not against the person for whom it purports to be accepted. And this is but reasonable; for in such cases it is the duty of the person who discounts the bill to inquire into the authority of the attorney, to ascertain its nature and extent, and to see whether it includes the power which the attorney assumes. In this case, the plaintiff's knew that the bill was accepted by an agent, and it was their duty to make the inquiries I have mentioned. Then with respect to the construction of the powers of attorney. The
general rule is, that powers of attorney are to be construed
my behalf,” or, " on my account,” pervade both these powers of attorney throughout. Generally speaking, those expressions would confine the authority of the agent to the separate individual concerns of the principal. In some instances they may be consistent with the extension of the agent's authority to partnership transactions, in which the principal is a sharer ; but that can only be where the other partners are acting in the particular transaction in respect of which the agent exercises the authority, jointly with the principal: and that is not the case here. Looking at these instruments throughout, the object and intent of them seems clearly to be, to give the attorney a power to receive, rather than to disburse, money; a power to do acts for the increasing and discharging the principal's estate, rather than for the diminishing or encumbering it. It is observable that the first of them does not contain
any express power to accept bills, and that the second does; from which it must be inferred, that at the time when the first was made, it was not the intention of the defendant to give his attorney such a power. Then what is the express power contained in the second of these instruments ? It is, " for me, and on my behalf, to pay and accept such bill or bills of exchange as shall be drawn or charged on me, by my agents or correspondents, as occasion shall require.” It seems to me impossible to doubt, from the very guarded language here used, that the power of accepting bills there given was intended to be confined to bills drawn on the defendant on his own private account, and in respect of his own individual transactions; for the words do not appear to me to be capable of any other interpretation. The defendant seems carefully to have limited the power to such bills as it was right and proper that he, and he only,
1827. should accept and pay; and if so, it would be defeating
his main object to extend it to bills drawn in respect of ATTWOOD
joint speculations and partnership transactions, in respect Munnings. of which he had only a joint liability with others. Then,
they are to be bills drawn by the defendant's agents or correspondents. That must mean, bills drawn by his agents or correspondents, in their character of agent or correspondent; which the bill in question was not. Then lastly, all this is to be done as occasion shall require. It has been argued that by that expression the defendant invested his attorney with a discretionary power to accept or not, as she thought proper; and that she having exercised. that discretionary power, by accepting this bill, he is bound by her act, and the plaintiffs, as third persons, cannot be affected by the manner in which her discretion has been exercised. I do not understand those words as investing the attorney with any discretionary power, but, on the contrary, as cautioning her to exercise her authority in those cases only where occasion really required her to do
But, in either view of the case, the plaintiffs must take the consequences of the attorney's outstepping her authority on the one hand, or erroneously exercising her discretion on the other, for they took the bill at their own peril, and ought to have demanded a sight of the power of attorney, and a statement of all the circumstances under which the bill was drawn, before they discounted it (a). Then, did occasion require that this bill should be drawn upon the defendant, and accepted on his behalf? I think clearly not. What occasion could require that the burthen of all the joint debts of a partnership should be thrown upon one of the partners ? None. In every
view of the case then, it seems to me, that Mrs. Munnings had no authority to accept this bill, and consequently that the plaintiffs have no right of action upon it,
(a) And see Fenn v. Harrison, J. B. Moore, 583. 8 Taunt. 532, 3T.R. 757. Whitehead v. Tuckett, S.C. Murray v. East India Com14 East, 400. Leyton v. Sneyd, 2 pany, 5 B. & A. 204.