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adultery of the wife (e). This clause, however, has been held CH. VIII. s. 4.

Contracts not to be a “usual covenant” to be inserted under articles

between providing for a separation deed with usual covenants (f).

Husband and Neither is the husband's adultery a breach of any implied


(Separation covenant on a separation deed (9). But on a dissolution of Deeds). marriage, though not a judicial separation (g), the Divorce Court has power to vary a separation deed under the Matrimonial Causes Acts, 1859 and 1878, 22 & 23 Vict. c. 61, and 41 & 42 Vict. c. 19 (1); that is to say, if the separation deed was executed after the passing of the Act of 1859 (i). On reconciliation and renewal of cohabitation, the Courts will Reconcilia

tion avoids presume that it is the intention of the parties that the deed is to

deed. come to an end without more, and the effects of it entirely done away with (k).

It is settled law that all the covenants in a separation deed are Breach of independent, and not so far reciprocal that the observance of covenants. one is a condition subsequent on the breach of which the other fails (l); therefore, non-payment by the husband to the wife or her trustees of the annuity secured by the separation deed, although it will allow her to pledge his credit to tradesmen, will not permit her to take proceedings for restitution; nor does such non-payment amount to “desertion,” so as to allow the wife to summon the husband under the Summary Jurisdiction (Married Women) Act, 1895, 58 & 59 Vict. c. 39 (m).

And any savings from a separation allowance to a married woman become her separate property (n).

Sect. 5.—Contracts with Married Woman as Trustee. The 18th section of the Married Women's Property Act, 1882, expressly provides that a married woman who is executrix,

P. 799.

(e) Fearon V. Aylesford (1884), 14 H. L. 235, per Lord Eldon, C., Nicol v. Q. B. D. 792, C. A., per Brett, M. R., at Nicol (1884), 31 Ch. D. 524, C. A., dis

approving of Lord Campbell's dictum (f) Hart v. Hart (1881), 18 Ch. D. contra in Randle v. Gould (1857), 8 670 ; and cf. Bradley v. Bradley (1882), E. & B. 457 ; but as to deed intended to 7 P. D. 237; Harrison v. Harrison continue as a postnuptial settlement, (1887), 12 P. D. 130 and 145.

notwithstanding, and after reconcilia(9) Gandy v. Gandy (1882), 7 P. D. tion, see Negus v. Forster (1882), 46 168, C. A., and per Bowen, L.J., in L. T. 675, C. A. Gandy v. Gandy (1885), 30 Ch. D. 57, (1) Fearon V. Aylesford (1884), 14 C. A., at p. 81.

Q. B. D. 792, C. A., per Brett, M.R., at (h) Woreley v. Wignall (1869), L. R., 1 P. & M. 648; Jump v. Jump (1883), 8 (m) Pape v. Pape (1887), 20 Q. B. D. P. D. 159 ; Clifford v. Clifford (1884), 9 76, decided on corresponding section of P, D, 76, C. A.

the repealed Act of 1886. (i) Charlesworth v. Holt (1873), L. R., (n) Brooke v. Brooke (1858), 25 Beav. 9 Ex. 38.

342 ; In re Tharp (1878), 3 P. D. 76, (k) Bateman v. Ross (1813), 1 Dow, C.A., making the decision in Messenger

P. 800.


CH. VIII. s. 5. administratrix or trustee, either alone or jointly with another, with Married may sue or be sued and transfer or join in transferring stocks Woman as and shares “ without her husband, as if she were a feme sole ;

but this enactment does not apply to real estate (0), so that where a married woman joined with two other trustees in contracting to sell real estate, it was held that the conveyance could not be effectually made except with the concurrence of her husband and by deed acknowledged by her; but an attempt of Mr. Kimber to remove this difficulty by a Bill to be called the Married Women's Property Act (1882) Amendment Act, 1904, has unfortunately and inexplicably failed.

v. Clarke (1850), 5 Ex. 388, no longer

(0) Harkness and Allsop's Contract, In re, (1896] 2 Ch. 358, per North, J.




PAGE 1. Agents

221 (a) Different kinds of Agents ... 222 (b) Appointment and Revocation of their Power

223 (c) Extent of Authority and

Liability of Principal 227 (d) Right of Action of Principal 239 (e) Agent's Personal Liability. 241 (f) Secret Commissions and Bribery

247 (g) Setting up Jus Tertii

249 (b) When Agent can sue

249 2. Partners ....

251 (a) Constitution of Partnership 251 (b) What Contract by a Partner binds the Firm

253 (c) Dissolution of Partnership ... 257

PAGE (d) Illegal Partnerships

260 3. Joint Stock Companies

261 4. Corporations

270 (a) Corporations generally

270 (b) Common Law Contract 271 (c) Contract by Authority under Public Health Act

273 (d) Disqualifications of Councillors and Officers

274 5. Parish Officers, &c.

275 6. Public Commissioners

280 7. The Crown and Government Agents

281 8. Trustees ....

283 9. Death of Parties after Contract,

and Liability of Executors
and Administrators


SECT. 1.-Agents. The Common Law rule is expressed in the maxims, Qui per alium facit, per se ipsum facere videtur (a), “He who does an act through another is deemed in law to do it himself," or more shortly, Qui facit per alium, facit per se, “He who acts by another acts by himself.” The common law always allows one man to authorise another to contract for and to bind him by an authorised contract (b). The statute law has expressly recognised contracting through agents in the important instances of the Statute of Frauds, the Partnership Act, 1890, the Bills of Exchange Act, 1882, and the Sale of Goods Act, 1893 (c); but even if the statute be silent, it impliedly follows the common law rule, as was held in the case of sects. 6, 13, of the Companies Act, 1862, which enable seven or more persons to form a limited company by "subscribing their names to a memorandum of association," and require the memorandum to be signed by each subscriber" (d).

(a) Co. Litt. 258 ; Broom's Legal Ch. XVI., post; 56 & 57 Vict. c. 71, Maxims, 7th ed., P


S. 4, Ch. XIII., post ; and see also (6) See Reg. v. Kent Justices (1873), sect. 13 of the Mercantile Law Amend. L. R., 6 Q. B. 305.

ment Act, 1856, 19 & 20 Vict. c. 97, (c) 29 Car. 2, c. 3, ss. 1, 4, p. 76, ante ; Ch. XXIII., sect. 8, post. 53 & 54 Vict. c. 39, ss. 5, 6, pp. 253, 254, (1) Whitley Partners, In re (1886), post ; 45 & 46 Vict. c. 61, ss. 23, 91, 32 Ch. D. 337, C. A.


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CH. IX. s. 1.

(a) Different kinds of Agents. Contracts with Agents.

Agents may be divided into factors and brokers, auctioneers, Factors and shipmasters, solicitors, estate, house and land agents (e). brokers.

A factor is entrusted with the possession and apparent ownership of the goods to be sold by him for his principal. And in this respect he differs from a broker—the latter not having, in general, the custody of the goods or other property of his principal, but being a mere negotiator empowered to effect contracts

of sale or purchase on his behalf (f ).
Del credere An agent for the sale of goods sometimes acts under a del

credere commission; that is, for a higher reward than is usually
given, he becomes responsible to his principal for the solvency
of the vendee ; or, in other words, he guarantees, in every case of

sale, the due payment of the price of the goods sold (g).
Auctioneers. An auctioneer is agent to sell at an open sale, and is, at all

events after sale, agent for both parties; representations made by
him at the sale bind the principal, and he is trustee for the

vendor both as to what is sold and as to the purchase-money (h). Shipmaster.

The shipmaster is equivalent to magister navis in civil law, and has authority to enter into contracts for usual employment of the ship, to contract for repairs and necessaries in a prudent way when he cannot communicate with the owner, and when he can in no other way obtain money therefor; to give a customary bond for such necessaries, but this will only bind the owner if strictly for

such necessaries, and the master is acting bona fide (i).
Solicitors. A solicitor, acting under a general retainer, has implied authority

to accept service of process and appear for the client, but has no
such authority to commence an action, unless such authority may
be reasonably inferred from the terms of the retainer, and as
between client and opponent, the former is bound by every act
of his solicitor, done in the ordinary course of practice, and
the solicitor has authority, in the absence of express prohibition,
to compromise an action (k). He is also agent to receive money
in an action (I), and by sect. 56 of the Conveyancing Act, 1881,
can receive purchase-money in a fiduciary capacity (m).

(e) See Evans on Principal and Agent, (i) Evans on Agency, 2nd ed., p. 146 ; 2nd ed., Bk. I., Ch. 1, and Bk. II., pt. 1, and see The Pontida (1884), 9 P. D. 177, Ch. III.

C. A. ; and Kleinwort v. Cassa Harittima (f) Baring v. Corrie (1818), 2 B. & Al. of Genoa (1877), 2 App. Cas. 156. 137 ; and see definition of "6 mercantile

(k) Evans on Agency, 2nd ed., pp. 152 agent” in Factors Act, 1889, post, -161 ; and see Ch. XIX., sect. 9, post. p. 236 (t); Stevens v. Biller (1883), 25 (1) Lydney Wigpool Iron Co. v. Bird Ch. D. 31, C. A.

(1886), 33 Ch. D. 85, C. A. (9) Morris v. Cleasby (1816), 4 M. & S. (m) In re Bell (1886), 34 Ch. 462 ; and 566, 574 ; 16 R. R. 544.

see Gordon v. James (1885), 30 Ch. D. (h) Crowther v. Elgood (1887), 34 249, C. A. ; and see Ex parte Edwards Ch. D. 691, C. A. ; and see Evans on (1884), 13 Q. B. D. 747, C. A. Agency, 2nd ed., pp. 144, 145.

An agent by the vendor to find a purchaser, has authority to Ch. IX. s. 1.

Contracts describe the property and make statements as to its value so as

with Agents. to bind the principal, and a false statement so made vitiates the

House, estate, contract of sale (11), and it would seem to be that an agent to find and land a purchaser, has no power to conclude a contract for sale without agents. express authority, so as to bind the principal (o). Agents, not being land agents, solicitors, auctioneers or Furnished

house agent. appraisers, for the sale or letting of furnished houses at a rent or value exceeding 251., must take out an annual licence at a duty of 21., the penalty for acting without such licence being 201. (p).

A foreign agent, to purchase, must buy as cheaply as possible, Commission and within the price (if any) named by the principal, and he agents. must not sell to the principal his own goods or take a secret commission (9).

(b) Appointment of an Agent and Revocation of his Power,

An agent, for whatever purpose he is appointed, may, in general, How an be appointed by mere words. The first section of the Statute of agent may be

appointed. Frauds, which requires a lease for three years or more to be in writing, signed by the lessor or his agent, requires also that the agent shall be authorised in writing; and the 7th section of that statute, which requires a trust of land to be in writing, has the effect of invalidating as between principal and agent a purchase of land by an agent orally appointed, so that the agent may deny the agency and take a conveyance to himself (r). But writing is not necessary to empower an agent to act in cases within the 4th section of the Statute of Frauds, or the 4th section of the Sale of Goods Act, which re-enacts the repealed 17th section of Statute of Frauds (s); or to sign on behalf of his principal the memorandum of association under the Companies Acts (t). Nor need a del credere agent be appointed (u) in writing (x). But a deed cannot be executed by an agent, so as to bind his When by deed

or writing. principal, unless the authority to execute it be conferred by deed (y); and the general rule is that the agent of a corporation

(n) Mullens v. Miller (1882), 22 Ch. D. 194.

(0) Ramsden v. Thornton (1866), L. R., 1 H. L. 129 ; Harmer v. Sharp (1874), L. R., 19 Eq. 108 ; and see Evans on Agency, 2nd ed., p. 164. (p) 24 & 25 Vict. c. 21, ss. 10, 12.

(9) Ireland v. Livingston (1872), L. R. 5 H. L. 395 ; Evans on Agency, 2nd ed., p. 312; Bent ck v. Penn (1887), 12 App. Cas. 652.

(r) James v. Smith, [1891] 1 Ch. 384.

(s) See p. 77, ante.

(1) In re Whitley Partners (1886), 32 Ch. D. 337, C. A., distinguishing Hyde v. Johnson (1836), 2 Bing. N. C. 776.

(u) Morris v. Cleasby (1816), 4 M. & S. 566, 574 ; 16 R. R. 544.

(2) Contourier v. Hastie (1852), 8
Exch. 40.

(y) Per Lord Kenyon, C.J., Horsley
V. Rush (1788), cited in Harrison v.
Jackson (1797), 7 T. R. 209 ; and see
Berkeley v. Hardy (1826), 5 B. & C. 355.

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