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ney for the sale or transfer of any share or interest in any public stock or fund, whether of this kingdom, or of Great Britain or Ireland, or of any foreign state, or in any fund of any body corporate, company, or society, shall be entrusted to any banker, merchant, broker, attorney, or other agent, for safe custody, or for any special purpose, without any authority to sell, negotiate, transfer, or pledge, and he shall, in violation of good faith, and contrary to the object or purpose for which such chattel, security, or power of attorney, shall have been entrusted to him, sell, negotiate, transfer, pledge, or in any manner convert to his own use or benefit such chattel or security, or the proceeds of the same, or any part thereof, or the share or interest in the stock or fund to which such power of attorney shall relate, or any part thereof, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the court, to any of the punishments which the court may award as hereinbefore last mentioned."

The 50th section provides, that the preceding enactment shall not affect trustees or mortgagees, nor prevent bankers, merchants, &c., from receiving money actually due on securities held by them, or from disposing of securities on which they have a lien, so far as may be necessary for satisfying their lien.

By the 51st section it is enacted, "that if any factor or agent entrusted for the purpose of sale with any goods or merchandize, *or [*99] entrusted with any bill of lading, warehouse keeper's or wharfin. ger's certificate, or warrant or order for delivery of goods or merchandize shall, for his own benefit, and in violation of good faith, deposit or pledge any such goods or merchandize, or any of the said documents, as a security for any money or negotiable instrument borrowed or received by such factor or agent, at or before the time of making such deposit or pledge, or intended to be thereafter borrowed or received, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years, nor less than seven years, or to suffer such other punishment by fine or imprisonment, or by both, as the court shall award; but no such factor or agent shall be liable to any prosecution for depositing or pledging any such goods or merchandize, or any of the said documents, in case the same shall not be made a security for or subject to the payment of any greater sum of money than the amount which, at the time of such deposit or pledge, was justly due and owing to such factor or agent from his principal, together with the amount of any bill or bills of exchange drawn by or on account of such principal, and accepted by such factor or agent."

By section 52, offenders against these enactments are indemnified from the penal consequences of it "if they shall at any time previously to their being indicted for such offence, have disclosed such act, on oath, in consequence of any compulsory process of any court of law or equity, in any action, suit, or proceeding, which shall have been bona fide instituted by any

CHAPTER II.

THE RIGHTS OF AGENTS.

SECTION 1.

THE duties of agents towards their employers, and the corresponding remedies, being enumerated, the reciprocal rights and remedies of agents, with reference to their principals, come next under consideration. And first of the commission.

1. The commission of an agent(a) is either ordinary, or

party aggrieved, or if they shall have disclosed the same in any examination or deposition before any commissioners of bankrupt."

(a) The commissions on a consignment seem to be a good insurable interest. Flint v. Le Mesurier, Park, 268. || A commission merchant has such an interest in the goods consigned to him for sale, that he may insure them to their full value in his own name. Brisban v. Boyd, 4 Paige, 17; ante, p. 18, n. (l.); Robinson v. New York Ins. Co. 2 Caines' Rep. 357; post, p. 102, n. (d); Pouverin v. The Louisiana State Marine and Fire Ins. Co. 4 Robinson's (La.) Rep. 234. There is no difference, in this respect, between insurances on marine risks, and insurances against fire. The consignee, who has received the goods of his consignor and has them in his own possession, may insure them in his own name, without regard to any beneficial interest which he may have in them, by way of commission, or otherwise, or if he be a simple bailee. It is the lawful possession of the goods which gives him an insurable interest. If he insures, in general terms against fire, in a certain store, the policy will cover all goods consigned to him for sale, as well as his own goods, which may be deposited there. In case of loss, he may maintain an action for the whole amount covered by the policy, without being compelled to separate the different claims of the different owners. The insurer has no right to look beyond the party named in the policy, although some stress may have been laid upon the terms of the policy, in this case, which however appears to have been in the form

del credere. The latter, it has been mentioned, is an increase of the ordinary commission, in consideration of the responsibility which the agent undertakes, by making himself responsible for the solvency of those with whom he contracts.(b)

The amount of the commission is either regula

ted by a particular contract in each instance, or [*101] determined by the usage of trade ;(1) or in certain

usually adopted in the city of New York. The positions above stated are clearly deducible from the opinions of the judges. De Forrest v. Fulton Fire Ins. Co. 1 Hall, 84. But a supercargo, as such, has no right to insure against maritime risks; for, until the arrival of the ship in the foreign port he has no possession of the goods, or power over them. Ibid, 114.|| See also what fell from Lord Mansfield in Le Cras v. Hughes, id. ib. and the opinion of the Court of K. B. Craufurd v. Hunter, 8 T. R. 13. || An agent cannot charge his principal with an extra compensation, for services, however onerous, if within his ordinary duty. Marshall v. Parsons, 9 Carr. & P. 656. Post, 102, n. d.||

(b) Ante, || 41.||

(1) And if there be no contract express or implied, and no usage, of course no cominission can be recovered. This is expressed rather too broadly. If I employ a man to do my business, it does not follow that he is not entitled to a compensation, although there be no agreement or usage fixing its rate. In an action by a broker to recover brokerage for obtaining a charter for a vessel, no agreement having been shown it was left to the jury, in case they should find there was no practice on the subject, to give the plaintiff a reasonable remuneration. Brown v. Nairne, 9 Carr. & P. 204. And see Burnett v. Bouch, id. 620. [Thus, where a person performed work for a committee, under a resolution entered into by them, "that any service to be rendered by him should be taken into consideration, and such remuneration be made as should be deemed right," it was held, that an action would not lie to recover a recompense for such work, the resolution importing, that the committee were to judge whether any remuneration was due. Taylor v. Brewer, 1 Maul. & Selw. 290. For cases where certain sums, by way of commission, have been allowed as being regulated by the usage of trade, see Eicke v. Meyer, 3 Campb. 412; Cohen v. Paget, 4 Campb. 96; Roberts v. Jackson, 2 Starkie's N. P. C. 225. See also Levi v. Barnes, 1 Holt's N. P. C. 412.] ↓ Chapman v. De Tastet, 2 Stark. N. P. C. 204; Stewart v. Kahle, 3 Stark. N. P. C 361. Usage of course in this, as in all other cases, yields to positive agreement. See Bower v. Jones, 8 Bingh 65.4 || Although there is a special agreement as to the compensation of an agent, it does not follow, but that he may be enti

cases it is settled by Act of Parliament,(c) viz. by 12 Anne, st. 2, c. 16, s. 2, the rate of brokerage, to be taken by any broker or solicitor, for procuring a loan, is limited to 5s. for a hundred pounds, under a penalty of twenty pounds.(2) And by 17 Geo. III. c. 26, 10s. per cent is allowed to a broker or solicitor, for procuring a loan upon an[*102] nuity. But it has been held, that a *solicitor who advances his own money, is not entitled to any commission by way of brokerage.(d)

tled to additional compensation, for additional services rendered in reference to his agency. Perkins v. Hart, 11 Wheat. 237; see post, 102, n. (d.)|| (c) By 31 Geo. II. c. 10, s. 30, the commission of navy agents is fixed at 6d. in the pound.

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(2) And although the words of the act are confined to the procuring of a loan, yet the solicitor, &c. cannot charge a higher commission for labor in and about the procuring of such a loan, though he may not personally procure it. To allow this would be a manifest evasion of the act. Pryce v. Wilkinson, 2 Bingh. 470.4 || By the Revised Statutes of New York, (vol. 1, 2d ed. p. 705, § 1,) “ No person shall, directly or indirectly, take or receive more than fifty cents for brokerage, soliciting, driving or procuring the loan or forbearance of one hundred dollars for one year, and in that proportion for a greater or less sum; nor more than thirty-eight cents for making or renewing any bond, bill, note or other security given for such loan or forbearance, or for any counter bond, bill, note or other security concerning the same."

(d) Brouchead v. Eyre, 5 T. R. 597. And see post, where the taking illegal commission is an offence. An agent entitled to a commission for effecting a loan, and becoming security for repayment, is not entitled to additional commission for paying over the same to his principal. Colton v. Dunham, 2 Paige, 274. Without a legal obligation, or an agreement to guaranty sales by him, he is not entitled to a commission for such guaranty. Ibid.

A supercargo was to receive as his compensation, a gross sum out of the proceeds of the return cargo, or a part of the cargo to that amount, on arrival at the place where the voyage was to terminate; on the vessel's return voyage she was compelled to put into a port of necessity, where the voyage was broken up, and the vessel and cargo sold; the supercargo cannot demand his compensation of his employers; but it is an insurable interest, and if a policy has been effected, there being a total loss, he may recover the whole from the underwriter. Robinson v. New York Ins. Co. 2 Caines' Rep. 357. Where a master is to receive a commission on the sale of goods laden on board of his ship, on the investment of the proceeds, as factor for the owner, he will not be entitled to the commission for merely

2. An agent employed in the management of an illegal contract, cannot recover any compensation for his labor

carrying and delivering goods in pursuance of an agreement made for the sale of them, and the payment for which he does not receive. Miller v. Livingston, 1 Caines' Rep. 349.

In the three cases of the United States v. MacDaniel, The Same v. Ripley, and The Same v. Fillebrown, 7 Peters, 1-18-28, the question arose as to the right of a clerk in a public office, or other person having a fixed pay or salary, to allowance for the receipt and disbursements of moneys, by way of commission. Our law does not sanction the absurdity of a direct suit against the sovereign power for a debt due to an individual; but it is competent for an individual, when brought into court by the sovereign power, seeking to recover a debt due to itself, not merely to contest the validity of the claim; but to present counter claims going to the extinction or diminution of the recovery sought by the government. The counter claims of the defendants were therefore presented by way of set-off. In the last mentioned case, (The United States v. Fillebrown,) which involves almost all that is pertinent to the present subject; the material facts were as follows. The United States instituted an action to recover a balance, certi fied at the treasury, against the defendant on the settlement of his accounts as secretary (with a salary of two hundred and fifty dollars per annum) to the commissioners of the navy hospital fund. Upon this settlement, the defendant set up a claim for compensation, for what he considered extra services, in bringing up and arranging the records of the board, antecedent to his appointment as secretary; and also for commissions on the disburse ment of moneys under the orders of the board. These claims were rejected by the accounting officers of the treasury, and were on the trial set up by way of set-off against the demand on the part of the United States. On the first trial in the court below, a verdict was rendered for the United States; but the court below granted a new trial, when the jury certified a balance in favor of the defendant; and a judgment was rendered for the defendant which was affirmed by the Supreme Court of the United States. Thompson J. delivering the opinion of the court, says, "Upon the trial, after the testimony was closed, the counsel for the United States prayed the court to instruct the jury as follows:-1. That if from the evidence aforesaid, it should appear to them that the defendant had accepted the appointment of secretary of the board of navy hospital commissioners upon the terms mentioned in the said appointment, and in the letter of Samuel L. Southard' [secretary of the navy] to him; that in that case he was not entitled to any extra compensation for the disbursement of the moneys belonging to the said navy hospital fund; and that he was only entitled to 250 dollars a year, for the whole of the services performed by him for the said board.-2. That if they should be satisfied, by the evidence aforesaid, that the said board of commissioners had never passed any order or

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