observed, that the plaintiffs did not trust the brokers with either the muniments of their title, or the possession of the goods, as was done both in the case of Rabone v. Williams, and that of George v. Claggett. There is another circumstance by which the defendants might easily have ascertained whether Coles & Co. acted as brokers or not. According to the usual course of dealing, a broker is bound to put down in his book an account of the sales made by him in that capacity, and in fact that was done in this case; so that if the defendants had asked to see the book, they would instantly have discovered whether Coles & Co. acted as brokers or not. I think, therefore, that it appears from these circumstances the plaintiffs did not by their conduct enable Coles & Co. to hold themselves out as the proprietors of these goods, and so to impose on the defendants; that the defendants were not imposed upon, and even supposing that they were, that they must have been guilty of gross negligence. Besides, when Coles & Co. stood at least in an equivocal situation, the defendants ought, in common honesty, if they bought the goods with a view to cover their own debt, to have asked in what character they sold the goods in question. I therefore cannot think that the defendants believed when they bought the goods, that Coles & Co. sold them on their own account; and if so, they can have no defence to the present action. The course of dealing, it appears, was for the brokers to receive for the plaintiffs the price when due: if, therefore, the defendants had remained ignorant of the state of things till after that period had arrived, the case might have been different; but, before that time arrived, it appears that they were distinctly informed that the plaintiffs were the proprietors of the goods. There must, therefore, be judgment for the plaintiffs.

HOLROYD, J.-I am of opinion that the defendants have not any right of set-off in this case. A factor, who has the possession of goods, differs materially from a broker. The former is a person to whom goods are sent or consigned, and he has not only the possession, but in consequence of its being usual 'to advance money upon them, has also a special property in them, and a general lien upon them. When, therefore, he sells in his own name, it is within the scope of his authority; and it may be right, therefore, that the principal should be bound by the consequences of such sale; amongst which the right of setting off a debt due from the factor is one. But the case of a broker is different; he has not the possession of the goods, and so the vendee cannot be deceived by that circumstance; and besides, the employing of a person to sell goods as a broker does not authorize him to sell in his own name. If, therefore, he sell in his own name, he acts beyond the scope of his authority, and his principal is not bound. But it is said that by these means the broker would be enabled by his principal to deceive innocent persons. The answer, however, is obvious, that that cannot be so unless the principal delivers over to him the possession and indidia of property. The rule stated in the case in Salkeld must be taken with some qualifications; as, for instance, if a factor, even with goods in his possession, act beyond the scope of his authority, and pledge them, the

principal is not bound; or if a broker having goods delivered to him, be desired not to sell them, and sell them, but not in market overt, the principal may recover them back. The truth is, that in all cases, excepting where goods are sold in market overt, the rule of caveat emptor applies. I think, therefore, that this case differs materially from the cases cited, which are those of principal and factor, and that therefore this claim of set-off cannot be allowed.

Judgment for plaintiffs.

In what cases it lies, and where indeb. assumpsit lies, 56, 57.
Where a reasonable time has elapsed, presumed that account has been de-
manded, and that agent has accounted, 48, n. (1).

Fourteen years sufficient to allow of this presumption, ib.

Duty of agent to keep an account, 47.

Consequence of neglecting to do so, 48.

Account decreed in equity, ib.

Agent mixing his property with that of principal, without keeping account,
the whole taken to belong to the principal till agent can distinguish, ib.
and 10, n. (2).

Inferior agent only accountable to his immediate employer, 49, and n. (e).
Accounting for profits, &c. made by dealing with principal's property, 49.
Specific property purchased with principal's money, agent considered as
trustee, 51.

Account stated, what, and effect of, 52, n. (a).

Notwithstanding account settled and release, court of equity will open the
account, 52, 292.

Action of assumpsit for not accounting, 56, 57.

Allowance in account of charges, advances, &c. See Allowance.

Agent lending or paying money without authority, though for principal's
benefit, not allowed it in account, 109, and n. (1).

ACCOUNTANT.

Has no lien on papers of employer, 131, n. (▲).

ACTION.

(See Action on the Case, Responsibility, Trover, Trespass.)

Action against agent for price of goods sold by him does not in general lie
till he has received it, 39.

Unless where he has improperly given credit, or the delay of payment
arises from his default; or has admitted that he has received it, whether
the fact be so or not, 40. See Broker.

Action does not lie for part of the price, though received, sed qu. ib.
But action lies against an agent del credere on default of the person prima-
rily liable, whether the money be received or not, 40. See Del Credere.
And agent may make himself immediately liable, as by giving bill or note
in his own name, 43.

Agent called upon to account cannot dispute the title of his principal, 53.
On the death of one joint principal the remedy survives, ib.

Actions by principal against agcnt, 55, &c. See Assumpsit, Debt, Trover,
Action on the Case.

In action by principal against agent, only the balance recovered after mak-
ing all just allowances, though no set-off, 62, 126.

What charges, &c. allowed in account. See Allowance, Commission.
Interest when recoverable, 62.

To action by principal for money received to his use, where agent cannot
set up the illegality of the transaction, 62 and 89.

Where such defence may be used, 64.

In such cases action does not lie for money had and received to the princi-
pal's use, where the agent has only debited himself with the amount, 65,
and n. (6).

Action for misconduct. See Action on the Case.

Action by principal for goods sold by factor may be in his own name, 324.
Action lies by principal to recover back money wrongfully paid or extorted
from agent, 336, 337, n. (d).

What actions agents may bring in their own names, 361.

ACTION ON THE CASE.

(See Agent, Responsibility, Trover.)

To support an action against an agent by the principal for damage arising
from negligence, &c. the damage must be real, 7, 74, but see n. (2).
Action for not insuring. See Insurance.

Action for misconduct-where it lies, 71, &c.

What necessary to support such action, 73.

Actual damage, sed qu. 74, n. (2).

Default of agent, 76.

Where it lies against a gratuitous agent, 76.

Not for mere nonfeazance, 77.

Nor for unskilfulness, unless he be in a situation which implies skill, 77, 78.
Death of agent puts an end to actions for misconduct, 96.
Principal responsible to agent who has sustained an injury in consequence
of deception practised upon him, or necessary information withheld, 152.
Quære, how far the rule that there is no contribution amongst wrong-doers
will affect the right of an agent to recover for a tort committed by him, ib.
Agent engaged in the commission of an act known to be a trespass cannot
recover, although principal expressly promise to indemnify him, ib.
So, if act turn out to be a trespass, a promise of indemnity will not be im-
plied, 153.

Action lies against principal for fraud, negligence, or misconduct of agent,
294.

Though for wrong not done by the agent first employed, but by a subordi.
nate one, 296.

But only for acts within the scope of agent's employment, 298, 402.
Exception in favor of certain public officers, 300.

What acts of agent make principal liable in trover, 305. See Trover.
Where several agents employed, the action must be either against the prin-
cipal, or the agent immediately committing the wrong, 307, 402.

In action charging the master with negligence in driving, evidence that the
servant drove sufficient, 309.

ADMISSIONS OF AGENT.

(See Evidence.)

Admission of wife, who alone transacts the husband's business, binding on
the latter, 163, n. (e).

Admission of debt by agent, where sufficient answer to the statute of limi-
tations, 267.

Admission, to be binding upon principal, must be made by a general agent,
267, n. (b).

Where the admission of agents as to particular facts dispenses with proof
of those facts, 268.

Where not, ib.

Distinction between such declarations as form part of contract, and such
as relate to particular facts, ib. 269, 270.

Discussed in the case of Farlie v. Hastings, 269 to 272.

Admission of agent that a bond was in the hands of his principal not suffi-
cient to establish the fact, 269.

How far admission of agent may be assimilated to that of principal, 270.
Quære the case of Biggs v. Lawrence, where an acknowledgment by agent
of the receipt of goods was admitted as evidence, 271, &c. See Evi-
dence.

Distinction between general or special, 199.

Neither the purchaser nor the seller can act as the agent for the other, 33.
How assimilated to a trustee, 34, n. (m).

Authority, how created and where implied, 155, &c. See Authority.

General duties of agents, 3.

Particular, 12, &c.

Cannot derive advantage from disobeying instructions, 4.

Goods sent to a particular place to be sold, if agent carry them elsewhere
he is liable if they be lost, 3, n. (a).

Deviation from orders at his own risk, unless principal adopt his act, 4.

When ex necessitate, may transcend authority, 3, n. (B,) 209, n. (▲).
Duty to pursue the usual course of business, ib. See Trade.

To possess adequate skill, ib.