is not guilty of negligence in giving up such bills to the acceptor upon receiving a check upon a banker for the amount, although it turn out that such check is dishonoured. (d) So, where A. entrusted B. with goods to sell in India, agreeing to take back from B. what he should not be able to sell, and allowing him what he should obtain beyond a certain price, with liberty to sell them for what he could get, if he could not obtain that price. B. not being able to sell the goods in India himself, left them with an agent to be disposed of by him, directing the agent to remit the money to himself in England. It was held, (e) that A. could not maintain trover against B. for the goods.

3. OF THE FACTOR's Lien on the Goods, &c. of HIS PRINCIPAL.]— · A factor has a lien on goods consigned to him, for the general balance due to him, as well as for incidental charges attending the particular goods in his hands: (f) but this lien remains though he may have parted with the actual possession of the goods. Thus, in the case of Drinkwater v. Goodwin, (g) however, it was held, that a factor has a lien on the price of the goods in the hands of the buyer; for though he has not the actual possession of them, yet if he has a power of giving a discharge, or bringing an action, he has a right to retain the money in consequence of his lien, as much as a mortgagee has by the title deeds of an estate in his hands, though he is not in possession. But though the general rule of law be, that a factor has a lien on the goods of his principal for his general balance, yet this, like other general rules, may be controlled by the agreement of the parties; as if A. deposit goods with B. for sale, and B. promise to pay the proceeds to A. when sold; B. has no lien on these goods (if not sold) for the balance of his general account arising upon other articles; the express stipulation in this case negativing the general rule of law.(h)

So, a factor has no lien on goods for a general balance, unless they come into his actual possession. (?) And if a factor accept bills drawn by his principal upon the faith of consignments agreed to be made by the principal to the factor, and both of them become bankrupts before a cargo consigned come into possession of the factor, his assignees have no property in such cargo, and cannot recover the produce of it against the assignees of the principal, if they have sold it and received the purchase money. (k)

(d) Russell v. Hankey, 6 Term Rep. 12. (e) Bromley v. Coxwell, 2 Bos, & Pul. 438.

(f) Kruger v. Wilcocks, Ambl. 252. 1 Bur. 494. 1 Bl. Rep. 104. 1 East Rep. 4. & 6 East Rep. 21. n. a. 6 East, 23. in notis. S. C. See also Lickbarrow v. Mason, 2 Term Rep. 63.

(g) Cowp.251.; and see Paley on Prin

cipal and Agent, ch. 2. s. 3., where all the cases on this subject are collected.

(h) Walker v. Birch, 6 Term Rep. 258. See also Skiffken v. Wray, 6 East Rep. 571.

(i) Kinloch v. Craig, 3 Term Rep. 119. (k) Kinloch v. Craig, 3 Term Rep. 783. 4 Bro. P. C. 47. 8vo. ed. S. C.

So, where a trader, after a secret act of bankruptcy, consigns goods to a factor, who advances money thereon; the latter has no lien on such goods, but must deliver them up to the assignees of the bankrupt trader. (1)

So, if A. employs a factor to sell goods he has no lien upon them, in respect of any debt due for other goods sold by him in his own name to A. on the account of another employer, previous to his being employed by A.(m) But the assignee of a policy of insurance on goods, who becomes such by the indorsement to him of the bill of lading of the goods by the consignor, after he had directed his correspondent to make the insurance, takes it subject to the lien of the correspondent of the consignor for his general balance; and can only claim, subject to that lien, the money received on such policy by the broker, in whose hands it was deposited for that purpose by the correspondent. But the broker has no sub-lien on the policy for the general balance of his own account with such correspondent, if he knew at the time that the policy was effected for another person. (n) So, where a principal gives notice to his factor of an intended consignment of a ship to him for the purpose of sale, and in consequence draws bills on him, which the factor accepts ; and afterwards the principal dies, but his executors direct the captain of the ship to follow his former orders, who thereupon delivers the ship into the possession of the factor, who sells the same: it was held, that the factor has a lien upon the proceeds as well for the amount of money disbursed by him for the necessary use of the ship on its arrival, and for the acceptances by him actually paid, as for the amount of his outstanding acceptances not then due. (o)

4. IN WHAT CASES A FACTOR OR AGENT IS NOT ENTITLED TO RECOVER FOR COMMISSION, OR MONEY PAID, &c.] - In the case of Hereford v. Powell, (p) it was ruled by Holt Ch. J. "That where a factor abroad deserves money for factorage, he cannot bring an action for his factorage, unless the principal refuse to come to account; and if it appears that the factor hath money in his hands, he may detain, and cannot bring an action for his factorage: but if he were directed to vest all the produce of the adventure in wines, or other goods, then he might bring an action for his factorage, because he cannot detain, and hath no other remedy. So, a factor or agent shall not have any salary allowed him where he acts against the interest of his principal. (q) So, a broker who contracts with others for the sale of stock at a future day by the authority of his principal, who afterwards refuses to make good the

(1) Copland v. Stein, 8 Term Rep. 199. (m) Houghton v. Mathew, 3 Bos. & Pul. 485.

(n) Man v. Shiffner, 2 East Rep. 523.

Oo

(0) Hammonds v. Barclay, 2 East Rep. 227.

(p) Holt's Rep. 467.

(9) See 8 Bro. P. C. 339. 8vo. ed.

bargain, cannot, by paying the difference to such third persons, maintain an action on an implied assumpsit against his principal for the amount; such payment being considered voluntary, for which no action can be maintained. (r) So, where an agent pays money on account of his principal after his authority has been determined, he cannot recover it without an express promise to pay. (s)

(r) Vide Child v. Morley, 8 Term Rep.

610.

88.

(s) Edmiston v. Wright, 1 Campb. Rep.

CHAPTER IV.

OF CONTRACTS WITH AGENTS OF GOVERNMENT, OR OTHER PUBLIC BODIES; OR WITH AN OFFICER IN THE ARMY ON behalf of a REGIMENT, &c.

A

N officer appointed by government, treating as an agent for the public, is not liable to be sued upon a contract made by him in that capacity, unless he make an absolute and unqualified undertaking to be personally responsible. This was determined in the case of Macbeath v. Haldimand, (a) which was an action upon promises against the defendant, as agent, for work and labour. The cause was tried before Buller Just. and at the trial a verdict was found for the defendant, by the direction of the learned judge, under the following circumstances, which were reported to the Court of King's Bench, upon a motion for a new trial. In the year 1779, the defendant being governor of Quebec, appointed Captain Sinclair to the command of a fort called Michilimakinac, situated upon the lake Huron, in the province of Canada. On the 17th August, 1779, the defendant transmitted certain instructions to Sinclair respecting the government of the fort, in which he said, "You are to pay great attention to the Indians resorting to Michilimakinac, or furnished with necessaries from thence. Endeavour to preserve them in good humour; and attach them by every means in your power to the king's interest." In a further part of the same instructions, he added, "You will draw bills of exchange for defraying the contingencies incident to that post, in the manner practised by Major De Peyster, (an officer on whom that command had been before conferred,) taking care to moderate and reduce those expenses, as far as can be done without injuring the king's service." And he concluded by stating, that “ a Mr. Macbeath, who will deliver this letter, and who has just made application for a pass, was mentioned to me as a man of known and established integrity; and, upon a more particular enquiry, I find that he

(a) 1 Term Rep. 172. Note, the rule of law laid down in this case, applies equally whether the contract be by parol or by deed. Vide Unwin v. Wolseley, Ib. 674.

has always, both here and in the upper country, merited that character. I have proposed to him to supply the Crown with such quantities of Indian corn and grease as may be wanted for the necessary purposes at that post; and likewise all other articles which shall occasionally be wanted in the engineer department, which he has undertaken to do for 10l. per cent. on the market prices at the place (costs and charges); a profit which appears to be reasonable, inasmuch as it is greatly under that hitherto charged." Several special orders were proved from Sinclair to the plaintiff, for supplying particular articles, amongst which was the following, dated 1st of August, 1782: "You will be pleased for the future, without any requisitions in form, to provide for the different services of the post, in the manner least expensive to government, and still equal to the necessities of the different departments." In pursuance of these orders, the plaintiff furnished articles to a considerable amount. But when his bills, at the top of which was prefixed "Government debtor to George Macbeath, for sundries paid by order of Lieutenant Governor Sinclair," were sent to the defendant at Quebec, he made objections to several of the articles, as being unreasonable, and furnished contrary to subsequent instructions. Afterwards, on the 2d of July, 1784, Mathews (the defendant's secretary,) wrote the following letter to Messrs. Dobie and Forsyth, who were agents for the bill holders: —

"I am commanded by his Excellency General Haldimand, to acquaint you, that, in consequence of instructions from the Lord's Commissioners of his Majesty's Treasury, in answer to a representation made by him to their Lordships, concerning the bills drawn upon him by Lieutenant Governor Sinclair, in the year 1782, which he thought it necessary to refuse payment of, his Excellency, in conformity with the offer which he made to the holders of the said bills in the year 1782, is still willing to pay such parts of the charges, for which the said bills were drawn, as at that time appeared upon examination to be reasonable."

It was admitted at the trial and in court, that all the accounts had been submitted to a board of officers by the defendant, for them to examine and report what charges ought to be allowed, and that the sum adjudged by them to be due, which fell very short of the plaintiff's demand, had been paid by the treasury.

Buller J. after reporting the above facts, said, that he had been of opinion at the trial that the goods in question having been supplied for the use of government, and the defendant not having personally undertaken to pay, the plaintiff ought to be nonsuited: that it appeared to him that the plaintiff had acted with the defendant solely in the character of Commander in Chief, considering him as the agent of government: that all the letters imported it to be a transaction on the part of government; and that the accounts confirmed it. But the