esced in by Lord Kenyon, who said, "that was not the point upon which the case was argued and determined;" "meaning the point that such a receipt [272] could be admitted in evidence.

The case above alluded to, of Maesters v. Abram, as having been decided by Lord Kenyon, was an action on a sale of bark by the plaintiff to the defendant; and it being a question which party was to supply the bags, a letter from the defendant's broker, subsequent to the contract, was rejected as evidence of the defendant's having undertaken to do so, and it was required that the broker himself should be examined.(g) But it is material to observe, that the letter was not cotemporary with the contract; for if it had been, it may be collected, from what has already been observed, that it would have been binding as part of the agreement.(h) A distinction may be supposed to subsist between such declarations as are merely assertions of the agent, and such as are admissions of the principal made through the medium of his agent. A letter written by a clerk, whose business it was to correspond in the name of his employer, may therefore be considered as if written under the inspection of the principal, and as such entitled to the same weight as if coming immediately from him. Thus, in an action of trover for a policy of insurance, a letter written by the defendant's clerk, informing the plaintiff that the policy was effected, was deemed

*sufficient evidence of its existence, though it was [*273] proposed, on the other side, to prove that the letter. was written by mistake, and that in fact the policy had not been made, which was refused.(i)

(g) 1 Esp. Cas. 375.

(h) Ante, p. 270.

(i) Harding v. Carter, Park. 4. The agents of the defendants, by their order, received money on their account, and stated the fact in a letter to them. They replied, acknowledging the receipt of the letter of the agents, and giving them directions as to the disposition of the money. It was held, that the letter of the agents, coupled with that of the defendants, was admissible in evidence to charge the defendants with the receipt of the

On the principle laid down in Fairlie v. Hastings, were decided the late cases of Drake v. Marryatt and Garth v. Howard. In the former a certificate of sea-damage, granted by an agent of Lloyd's abroad, was not admitted as evidence against the defendant, an underwriter and a member of Lloyd's, on the ground that the granting of the certificate was beyond the scope of the agent's authority.(2) The other was an action of detinue for plate of the plaintiff pledged to the defendant, a pawnbroker. The only evidence of possession by the defendant was a declaration of his shopman that "it was a hard case, for his master had advanced all the money on the plate at five per cent." The evidence was received, subject to motion; and on argument the court were of opinion that it was inadmissible, on the ground that the transaction was not in the usual course of the defendant's business as a pawnbroker, but a common loan at legal interest, secured by a deposit

of plate, and consequently that the declaration of [*274] the shopman related to a *matter which was not in the course of his employment as shopman.(3)↓

SECTION 4.

Payment to and Receipts by Agents in general.

If money be due upon a written security, it is the duty

money. Best, C. J. "The letters written by the agents would not have been admissible, unless they had been written by the agents while acting within the scope of their authority, upon a matter entrusted to them by their principals. The letters of these agents were written under these circumstances; the principals have adopted what was done by their agents, and having upon the faith of their assertion, taken credit for the sum named in those letters, the letters were properly received in evidence." Coates v Bainbridge, 5 Bing. 58.||

(2) 1 B. & C. 473.

(3) 4 8 Bing. 451 ; || S. C. 5 Carr. & Payne, 346. This decision seems to be rather a refinement; but Tindal, C. J. observed, that hearsay evi

of the debtor, if he pay it to an agent, to see that the person to whom he pays it is in possession of the security. For though the money may have been advanced through the medium of the agent, yet, if the security do not remain in his possession, a payment to him will not discharge the debtor.(a) And even the agent being usually employed in the receipt of money does not, in this instance, constitute such an authority as will secure the debtor. It has been so held in respect to money paid upon a bond, to one who usually received money for the obligee, but who had not the custody of the bond in question.(b) And even where the obligor had for several years paid the interest, and part of the principal, to an agent of the lender through whom the money had been *borrowed, who had [*275] not the possession of the bond, but had regularly paid the money over to the obligee, except the last payment; the obligor was adjudged to pay the last sum over again. For it was held, notwithstanding the hardship of the case, that the circumstance of the agent's having before received the interest, and part of the principal, did not imply that he had any authority to receive it; but as long as he paid it over all was well, and any one else might have paid it to the party as well as he.(c)

But perhaps a special authority from the obligee might be shown, which would be sufficient without possession of the security.(d)

If the bond remain in the hands of the agent, that circumstance is evidence of the obligee's intention to trust him with the receipt of the principal and interest, and therefore a payment to him discharges the obligor.(e) And

dence of such a nature ought always be kept within the strictest limits to which the cases have confined it.4

(a) Hen v. Caisby, 1 Chan. Cas. 93, note.

(b) Gerard v. Baker, 1 Chan. Cas. 94; D. of Cleveland v. Dashwood, 2 Eq. Ca. Ab. 709.

(c) Wostenholme v. Davies, 2 Freem. Rep. 289.

(d) Id., and 2 Eq. Cas. Ab. 709, in marg.

(e) Whitlock v. Walthan, 1 Salk. 157; Duchess of Cleveland v. Dash

if the obligee keep the bond himself, but upon the money being paid to the agent delivers him the bond for the purpose of its being delivered up to the obligor, he cannot

afterwards recall it from the agent, and put it into [*276] suit; although, by reason of the agent's insolvency, the principal never receives the money.(f) The production of a bill of exchange or promissory note is in general sufficient to warrant the payment to the person who produces it.(g) And this without reference to the circumstance of his being the habitual agent of the same party.(h) But the presumption of authority from the possession of the instrument may be repelled by evidence of its being obtained by fraud, or for some other special purpose than receiving payment.(i)

2. With respect to debts not arising upon written securities, the authority of an agent to receive payment depends upon the same general principles as those which apply to other acts. In general it may be remarked, that payment to an agent properly authorized is equivalent to payment to the principal, in equity as well as in law.(k) [277] And the fact of the authority may be proved by the agent himself.(1) But it may be proper to con

wood, 2 Eq. Ca. Ab. 709; but otherwise of a mortgage deed, upon which only the interest can be received by the agent, but not the principal, id. ib. (f) Abingdon v. Orme, 1 Eq. Ca. Ab. 145.

(g) Owen v. Barrow, 1 Bos. & Pull. N. R. 103, per Mansfield, C. J.; Anon. 12 Mod. 564.

(h) Anon. 12 Mod. 564; and see 2 Ld. Raym. 930.

(i) Post, 289.

(k) 7 Ves. Jun. 470, and post, 277. In Fenton v. Browne, 14 Ves. 144, on the sale of an estate, the deposit was paid to the vendor's agent. The vendee, pending a dispute about the title, applied to have the deposit paid into court, which the vendor resisted; and afterwards the agent failed. By the Master of the Rolls-" Without entering into the general question, the vendor's refusal to concur in the proposition made to pay the deposit into court throws the risk upon him, and he must bear the loss."

(1) 7 T. R. 480; Dr. & St. 286. || See more fully as to this position, post, 319.|| Payment to an attorney in a cause is in general sufficient, even after a private countermand, 1 Bl. Rep. 85; but if the attorney derived his authority under a forged power from the supposed plaintiff, payment

sider more particularly the effect of payments to factors. and brokers, observing that the principles which govern these may generally be applied to agents of all descriptions. (A)

SECTION 5.

Payment to Factor or Broker.

The effect of payment to, or set-off against, a factor or broker personally in discharging a debt due to the principal, may be considered under the following different circumstances. 1st, Where the agent is known to act merely as the representative of another, and no notice given by the principal to withhold payment. 2d, Where, under the like circumstances, that notice is given. 3d, Where he is permitted to treat as principal.

*1. Payment to a factor in the course of his bu- [*278] siness, and without notice from the principal, in general discharges the debtor (a) if the usual mode of

to him does not discharge the defendant, though he be the attorney upon record, 1 T. R. 62. Payment to the country agent, employed by the attorney on record, does not discharge the debtor; at least without production of the security. Yates v. Freckleton, Doug. 690. An agent in town, however, by taking money out of court, binds the plaintiff, though the payment into court were irregular, and notice had been given by the plaintiff's attorney to the defendants that he should not take it out, 1 T. R. 710.

(A) | A person who pays money to another, who is authorized to receive it by a power of attorney, is not entitled to keep possession of the power of attorney. Pridmore v. Harrison, 1 Carr. & Kir. 613. As to payment to agent after death of principal, see ante, 186.||

(a) Cowp. 256; 2 Camp. N. P. C. 24. ||“If he [the agent] had authority to sell goods, so had he, in the absence of advice to the contrary, an implied authority to receive the proceeds of such sale. The plaintiffs cannot avow the acts of their agent, as to one part of the transaction, and repudiate them as to another part." Lord Tenterden, Capel v. Thornton, 3 Carr. & Payne, 352. Payment to a sub-agent will sometimes bind the