plaintiff, and, as the defendant alleged, continued to be so at the time when he received the money. The plaintiff admitted the receipt by B., but denied the agency; to prove which, B. himself was proposed as a witness, and rejected; but when the question was discussed on a motion for a new trial, which was applied for on the ground of B. being improperly rejected, the court were of opinion that the objection to B.'s admissibility was not well founded, because in any event the witness stood indifferent in point of interest between the parties, being liable either to pay the money received to the plaintiff, or to refund it to the defendant; and that if such an objection were to prevail, it might exclude brokers who had effected policies of [*320] *insurance; and that it would be difficult hereafter to draw any certain line; and the rule for a new trial was granted.(d)

(d) Ilderton v. Atkinson, 7 T. R. 480. That the agent is competent to prove his own authority, see further ante, 277; Rumball v. Wright, 1 Carr. & Payne, 589; Lowber v. Shaw, 5 Mason, 241. "The general principle that the testimony of agents and servants may be given without a release, is a very familiar one, and is not controverted by the counsel for the defendant; but he denies the competency of one professing to have acted as an agent, to establish the fact of his authority by his own testimony. The principle as found in the elementary books, as well as in the reported cases, seems to be broad enough to support the position, that in an action against the principal, the authority of the agent to act, may be proved by the agent himself.-These authorities directly affirm the competency of the agent to prove his agency. The principle of the rule as stated, is this, that in any event the witness is indifferent in point of interest, being liable to account with the defendant if he received the money, as agent, and to the plaintiff, if he did not so receive it." Dewey, J. Rice v. Gove, 22 Pick. 160.|| Quare, whether an agent would be permitted to prove that he had acted within his authority in making a contract, since he would be liable personally to the plaintiff if he had exceeded it; and the reason of necessity does not apply.

[In the case of Gevers v. Mainwaring, 1 Holt, N. P. C. 139, this question arose; and it was ruled by Gibbs, C. J. that the agent was not a competent witness without a release. In the case of Ilderton v. Atkinson, it was objected that B. had a stronger interest to give evidence in favor of the defendant than of the plaintiff, since if he had received the money under a misrepresentation of his own character, the defendant might recover from

*Thus also, in an action against the owners of [*321] a ship for money borrowed by the captain, the latter was held by Lord Kenyon, to be a good witness for the plaintiff to prove that the money was borrowed for the use

him the costs of the action then depending, as well as the money: but the court held, that the possibility of such a remote interest did not render him incompetent. And upon the authority of this case it was held in that of Birt v. Kershaw, 2 East, 458, that a liability to pay, in the event of one party failing, the costs of the action in addition to the money recovered, for which he would have been liable either to the one or the other, did not affect the competency of the witness. The authority of these cases has, however, been considerably shaken in more modern times. In the case of Jones v. Brooke, 4 Taunt. 464, which was an action against the acceptor of a bill accepted for the accommodation of the drawer, the Court of Common Pleas held, that the drawer was not a competent witness for the defendant to prove that the holder received the bill on a usurious consideration, on the ground that he was bound to indemnify the acceptor against the consequences of an acceptance made for his accommodation, and would therefore be liable to the acceptor, not only for the principal sum, but also for all the costs with which he might be charged in the action. So in the case of Townend v. Downing, 14 East, 567, in which that of Ilderton v. Atkinson was cited, as having decided that a liability to pay costs did not affect the competency of a witness where he was liable to an action in either event of the cause, Lord Ellenborough asked "Why there should not be an interest in costs, as well as on any other account." See also Harman v. Lasbrey, 1 Holt's N. P. C. 390, S. P.] ↓ And upon the principle so laid down, it is suggested by Mr. Phillips, in his Treatise on Evidence, 7th edition, p. 62, that the case of Ilderton v. Atkinson must be considered as overruled, and that a witness in such a situation would not stand indifferent between the parties. In Edmonds v. Lowe, 8 B. & C. 407, the court decided, on the same ground, that the acceptor of a bill of exchange was not a competent witness for the drawer in an action by an endorsee, to prove that he (the acceptor) had received the bill from the drawer for the purpose merely of procuring it to be discounted for the use of the drawer, and that he had delivered it for that purpose to the plaintiff, who had immediately appropriated it to his own use in discharge of a debt owing from the acceptor to him. But the rule does not extend to an endorser, for he could never recover from the acceptor the costs of defending an action brought upon the bill. Dawson v. Morgan, 9 B. & C. 618.4 ||| As to incompetency arising from liability for costs, see Lupton v. Lupton, 2 Johns. Ch. Rep. 626; Whipple v. Lansing, 3 Johns. Ch. Rep. 612; Neilson v. McDonald, 6 Johns. Ch. Rep. 205; Eckford v. De Kay, 6 Paige, 569; Edwards v. Goodwin, 10 Sim. 124; Soulden v. Van Rensselaer, 9 Wend. 296; Hathaway v. Crocker, 7 Metc. 264; 2 Steph. N. P. 1735.||

of the ship, and not for his own use. It was objected, that he came to discharge himself by throwing the onus upon the owners but it was answered, that the owners had a remedy over against him, if the money came to his hands, and that he was therefore indifferent.(e)

:

But in an action on a policy of insurance for a loss by barratry, the captain is not a competent wit[*322] ness to prove that the barratry was with the consent of the owners, without a release from the underwriters; because he is liable to them if the plaintiff recover.(ƒ)

No agents, however confidentially employed, are privileged from disclosing the secrets of their principal, except counsel and attorneys.(g)

(e) Evans v. Williams, Guildhall Sittings after Tr. T. 28 Geo. II. B. R. 7 T. R. 481. || Rocher v. Busher, 1 Stark. 27.||

(f) Bird v. Thompson, 1 Esp. Cas. 339. Lord Kenyon gave this as the reason for rejecting the evidence of the captain; and said, that though he knew of no action of that sort ever having been brought, yet he conceived that wherever a man acted contrary to his duty, whereby another received damage, or was rendered responsible or liable to damage, he might maintain an action ex delicto, against the person who had so subjected him. See also Corking v. Jarrard, 1 Campb. 37; Clarke v. Shee, Cowp. 199 ; Green v. New River Companý, 4 T. R. 589; Bird v. Thompson, 1 Esp. N. P. C. 339; Miller v. Falconer, 1 Campb. 251; Cuthbert v. Gostling, 3 Campb. 515.†

(g) 4 T. R. 431. Where an attorney is employed by a client professionally, to transact professional business, all the communications which pass between them in the course, and for the purpose of that business, and not those only which relate to litigation commenced or in contemplation, are privileged communications. Herring v. Clobery, 1 Phillips, 91. But a communication made by a client to his attorney, not for the purpose of asking his legal advice, but to obtain information as to a matter of fact, is not privileged, and may be disclosed by the attorney, if called as a witness in a cause. Bramwell v. Lucas, 2 Barn. & Cr. 745. As to the immunity of counsel &c.—which however is rather to be deemed the privilege of the client, see further Greenough v. Gaskell, 1 Myl. & K. 98; Desborough v. Beetham, 3 Myl. & Cr. 515; Jones v. Pugh, 1 Phillips, 96; Carter v. Palmer, 1 Dru. & Walsh, 746; Clagett v. Phillips, 2 Yo. & Coll. C. C. 82; Stuyvesant v. Peckham, 3 Edw. Ch. Rep. 579; 2 Steph. N. P. 1762, et seq. and cases there cited.||

CHAPTER IV.

RIGHTS OF PRINCIPALS FROM THE ACTS OF THEIR AGENTS.

SECTION 1.

1. As an employer is bound by the contracts and acts of his representative, so he may take advantage of them. It is said in an old authority," the master shall have advantage of his servant's contracts, in the same manner as he shall be bound by them, as to those matters which come within his compass as a servant; as where a servant was sent by a master to a debtor, and appointed by him ad componendum et agreandum the money due from the debtor; and there being a promise made to the servant to pay what was due upon the balance and agreement, it was held, that the master might maintain an action in his own name on the promise to his servant as upon a promise to himself."(a)

But this is only under such circumstances as afford room to presume an authority; for where the evidence was that the defendant had agreed "with the plain- [324] tiff's servant to pay him half price, which the ser

vant was to have to his own use, this, it was held, would not maintain the action, for there arose no contract to the plaintiff.(6)

It is a maxim which is daily acted upon, that if a factor

(a) Seignior v. Walmer, Godb. 360.

(b) Per Holt, C. J. Thorp v How, Bull. N. P. 130.

sells goods for his principal, the action may be brought either in his own name, or in that of the principal.(A) And

(A) | Post, 361, et seq. A principal whether foreign or domestic, may sue in his own name to enforce rights acquired by his agent in a course of dealing for the former; and this, though the agent dealt without disclosing his principal: but the defendant is not by the mere form of the action to be cut off from any equities he may have against the agent. Taintor v. Prendergast, 3 Hill, 72. So, in another case it was held, that on sales made by a factor, the principal may recover the price due by the vendee, subject to the equities which the vendee has acquired by dealing with the agent as principal, or which the agent may have acquired from the course of dealing between him and the vendee: but this rule does not apply to a sale made by a factor here, for a principal in a foreign country, where exclusive credit is given to and by such factor; nor can a suit be sustained by the principal, except through and by the factor; and on the bankruptcy of both principal and factor, the assignee of the latter is entitled to the price of the goods sold. Merrick's Estate, 5 Watts & Serg. 9; S. C. 2 Ashmead's (Penn.) Rep. 485. So, a proctor may recover for business done for the defendant by his clerk, although the defendant apprehended that the clerk was the principal, he acting as the principal, and never disclosing the name of his employer, provided no prejudice arises to the defendant from the concealment. Grojan v. Wade, 2 Starkie, 443. As to the right of the principal to sue upon the sale, or other contract of his agent, see further Walter v. Ross, 2 Wash. C. C. Rep. 283; Leverick v. Meigs, 1 Cowen, 646'; Kelley v. Munson, 7 Mass. Rep. 319; Girard v. Taggart, 5 Serg. & Rawle, 19; Hogan v. Shorb, 24 Wend. 461; Post, 335, et seq.

Upon a sale made through the intervention of an auctioneer, the owner may maintain an action in his own name against the vendee, although his name be not mentioned in the auctioneer's entry of the memorandum of contract of sale. Hicks v. Whitmore, 12 Wend. 548; ante, 160, n. (q). But in general, an action upon an express written contract entered into by an agent in his own name, must be brought by the agent and not by the principal. "Courts of law," says Livingston, J. "out of their great solicitude to protect the interest of a principal, have gone great lengths in identifying him with his agent or factor, and as a necessary consequence have permitted a suit in his own name, although he be not, except by implication of law, a party to it. But the court does not know that such suit was ever sustained on the contract itself, where one in writing took place between the factor and vendor, in which the name of the principal did not appear. What use might be made of such a paper, as matter of evidence, is one thing; but that a suit can be brought upon it in the name of any but a party to it, has not been shown; nor is it believed that such is the law. Without then disturbing any of the cases of this class which