If an agent employed to sell coals, make a bargain in his own name with a tradesman to furnish him with coals on credit, for which in return he is to receive goods on credit, and the coals and the goods be both delivered, the real owner and seller of the coals may recover the price of the tradesman, if his, the real owner's name, be in the tickets sent with the coals; because the tradesman having such tickets is bound to inquire into the nature of the agent's situation, and should not continue to treat him as principal (k). 5. When the Agent is Personally liable.-Upon the principle that the contract of an agent is the contract of the principal, an agent is not liable upon an agreement which he makes in his representative capacity: provided he do not personally contract or expressly pledge his own credit, by concealing his principal or otherwise; and provided he do not so far exceed his powers as to render his principal irresponsible (7). But it should seem that if a person contract as agent for a third party, having in fact no authority to do so, he may be sued personally; but then it must be shown that he acted without authority, or evinced mala fides (m). Thus if A. employ B. to work for C. without warrant from C., A. is liable to pay for it (n). In Polhill v. Walter (o), it appeared that a bill was presented for acceptance at the office of the drawee when he was absent; Walter, who lived in the same house with the drawee, being assured by one of the payees that the bill was perfectly regular, was induced to write on the bill an acceptance as by the procuration of the drawee, believing that the acceptance would be sanctioned, and the bill paid by the latter. The bill was dishonoured when due, and the indorsee brought an action against the drawee, and, on proof of the above facts, was nonsuited. The indorsee then sued Walter for falsely, fraudulently, and deceitfully representing that he was authorised to accept by procuration: and on the trial the jury negatived all fraud in fact. It was held, notwith (k) Pratt v. Willey, 2 C. & P. 350. (1) See Paley, 251, &c.; 1 Chit. Pl. 6th ed. 34; 3 Chit. Com. L. 211, &c.; Paterson v. Gandassequi, 15 East, 62; Spittle v. Lavender, 5 Moore, 276, post, 229; M'Brain v. Fortune, 3 Camp. 317. Mere bearer of money not liable; Coles v. Wright, 4 Taunt. 198. And as to the persons who may in general be sued for money received by them as agents, &c., see post, Index, Money had and received; 1 Chit. Pl. 6th ed. 34, 36; and see Pearson v. Graham, 2 Nev. & P. 636. (m) Wilson v. Barthrop, 2 M. & W. 363; 1 Jurist, 949, S. C. (n) See per Holt, C. J., Holt's R. 309; 2 M. & W. 218. (0) Polhill v. Walter, 3 B. & Ad. 114. standing, that Walter was liable, because the making of a representation which a party knows to be untrue, and which is intended or is calculated, from the mode in which it is made, to induce another to act on the faith of it, so that he may incur damage, is a fraud in law; and that Walter must be considered as having intended to make such representation to all who received the bill in the course of its circulation; but the court held that Walter could not be charged as acceptor of the bill, because no one can be liable as acceptor but the person to whom the bill is addressed, unless he be an acceptor for honour. If an agent, by deed under his own hand and seal, covenant "for himself, his heirs, &c." for the act of another, he is personally liable upon his covenant, although he describe himself in the deed as covenanting" for and on the behalf" of another person (p). So where the defendant, by a written agreement, expressed to be made by himself" on behalf of A. B. of the one part," and the plaintiff of the other part, stipulated that he (the defendant) would execute to E. (the plaintiff) a lease of certain premises," which, as it was proved, belonged to A. B.; Best, C. J., held that the defendant was personally liable; observing, that there was no distinction between deeds and parol agreements in this respect (q). So if brokers on selling goods send in invoices, or bought and sold notes, in their own names as sellers, they may be sued personally, and parol evidence would be inadmissible on their behalf to show that they sold as agents for third parties (r). So where it appeared that the solicitor of the London creditors of a bankrupt in the country wrote to B., the solicitor of the country creditors of the same bankrupt, the following letter:-"I am willing, on behalf of the London creditors, to bear two-thirds of the expense of Messrs. B. and B., or such barrister as you may think fit, for resisting Mr. K.'s proof under the commission, and of investigating the accounts of the assignees, at the meeting on the 18th instant. I hereby undertake to bear and pay, on behalf of these creditors, two-thirds of the expenses (p) Appleton v. Binks, 5 East, 148. In Hancock v. Hodgson, 12 Moo. 504, 4 Bing. 269, S. C., it was held, upon the construction of a deed for the purchase of mines for a company, that the directors (the defendants) were personally liable for the purchasemoney after a given period, though they described themselves " as directors on behalf of the company," and the money was to be paid "out of the monies to be raised within a certain period, &c." (9) Norton v. Herron, 1 R. & M. 229; 1 C. & P. 648, S. C. See Spittle v. Lavender, 5 Moore, 278. (r) Jones v. Littledale, 1 Nev. & P. 677; Magee v. Atkinson, 2 Mee. & W. 440, ante, 106. 66 66 incident thereto accordingly ;" and the meeting being afterwards adjourned, A. wrote to B. another letter, in which he said, shall have no objection to bear as before the proportion of expense of the barrister attending the meeting stated in your letter." It was held that A. was personally liable for the proportion of the expenses (r). And where the solicitors of the assignees of a bankrupt tenant, upon whose lands a distress had been put by the landlord, gave the following written undertaking :-" We, as solicitors to the assignees, undertake to pay to the landlord his rent, &c.," it was decided that they were personally liable (s). Holroyd, J. observed, that if the defendants were not liable, nobody was bound by the undertaking; it being clear that the assignees were not bound. And if the attorneys on both sides, on an indictment against a parish for not repairing a road, enter into an agreement, in which one attorney" on the part of the parish agrees to pay the costs," this is considered a personal engagement on the part of such attorney (t). And an attorney who in writing personally" undertakes that a record shall be withdrawn, and costs paid in a cause in which he is concerned for another, is liable to be sued upon such engagement (u). In such case, the attorney could not be considered a surety, for his client was not bound by the arrangement. An attorney in a cause is not, however, personally liable to a witness whom he subpoenas for his expenses (r). If, however, the instrument evinces an intention that the agent should not be liable, he is not responsible, though words are used which, per se, might render him so. Therefore, where A., an auctioneer, being employed by B. to sell an estate belonging to him, entered into and signed an agreement with C. for the purchase, in his own name, as agent of B.; and B. shortly afterwards signed it, and added, "I hereby sanction this agreement, and approve of A.'s having signed the same on my behalf;" it was held that A. was not personally responsible (y). The court considered that the agreement of A., and the ratification thereof by B., formed but one transaction, and manifested an understanding by all parties that A. was not personally liable; (r) Hall v. Ashurst, 1 C. & M. 714. (s) Burrel v. Jones, 3 B. & Ald. 47. See Spittle v. Lavender, 5 Moo. 278. Solicitor not in general liable, Hartop v. Juckes, 2 M. & Selw. 439. (t) Watson v. Murrell, 1 C. & P. 307. (1) Iveson v. Conington, 1 B. & C. 160; 2 D. & R. 307, S. C.; Prosser v. Allen, Gow, R. 117; Redhead v. Cator, 1 Stark. R. 14. (x) Robins v. Bridge, 3 M. & W. 114; 6 Dowl. P. C. 140. (y) Spittle v. Lavender, 5 Moo. 278. independently of the instrument signed by A. being of itself open to such construction. So where a British merchant is effecting a purchase for a foreign principal, the credit is always considered as given to the former and not to the foreigner (≈). 6. When an Agent may sue.—A servant or agent cannot sue upon a contract entered into by him in that character (a), unless he has some beneficial interest in its completion, in respect of commission, or otherwise, or a special property or interest in the subject-matter of the agreement; as in the cases of a factor, or broker (b); or a carrier, or a warehouseman (c); or an auctioneer (d); or other similar agent acting for reward, or having a special property or interest, and not being a mere servant (e). These may sue, unless the principal or real owner (ƒ) elect to bring the action in his own name, but the agent sues, subject to any set off against the principal. And if an agent or servant appear to be the principal, and act as such, and become personally responsible on the contract, he may sue in his own name thereon; for his responsibility gives him an interest in the contract or transaction, and forms a consideration for the contract with or promise to him (g). It has also been decided, that if an agent purchase goods for a (z) Ante, 225. (a) 1 Chitty, Pl. 6th ed. 7. Thus the mere treasurer of commissioners contracting for them, Pigott v. Thompson, 3 B. & P. 147; or the mayor of a corporation contracting for the corporate body, Brown v. Morris, 2 Taunt. 374, cannot sue in his own name. Nor can the captain of a ship sue on an implied contract for demurrage, Brownker v. Scott, 4 Taunt. 1; Evans v. Forster, 1 B. & Ad. 118. Policy Broker, 1 Chitty, Pl. 6th ed. 7, and note (n). (b) Sadler v. Leigh, 4 Camp. 195; Morris v. Cleasby, 1 M. & Selw. 581; Atkinson v. Hamber, 2 Esp. R. 493. When a broker signing the sale note for the vendee cannot sue him for not accepting the goods, see Rayner v. Linthorne, R. & M. 325; 2 C. & P. 124, S. C. (c) See per Lord Ellenborough, Martini v. Coles, 1 M. & Selw. 147. (d) Williams v. Millington, 1 Hen. Bla. 81; see Coppin v. Walker, 7 (e) Gardiner v. Davies, 2 C. & P. 49; Joseph v. Knox, 3 Camp. 320; Langstroth v. Toulmin, 3 Stark. R. 147; Garrett v. Handley, 4 B. & C. 666; 7 D. & R. 144, S. C.; Dancer v. Hastings, 4 Bing. 2. (f) Dickenson v. Naul, 1 N. & M. 721; 4 B. & Ad. 638. There an auctioneer was employed by a supposed executrix to sell goods of the testator, but the real executrix claimed the money before payment from the purchaser: it was held, that the auctioneer could not afterwards sue the buyer, though the latter expressly promised payment on being allowed to remove the goods. (g) Supra, note (e). principal, and by his authority, but in his (the agent's) own name, and state to the vendor (C. D.) that there is an unnamed principal; and the agent under the same authority agree to resell the goods; the agent may, in his own name, sue the vendor, (C. D.,) for the non-delivery of the goods; although the principal renounced the contract, and by a subsequent arrangement between the agent and principal, the latter was to have no interest therein (h). A plaintiff who has professedly made a contract as agent for a third person, cannot sue thereon as a principal, without giving notice to the defendant, before the action be brought, that he (the plaintiff) is the party really interested (i). 2.-OF CONTRActs as they reLATE TO PARTNERS (k). I. Of the Formation of a Partnership. 1. As between the parties themselves. 2. As regards the public. II. What Contracts by one Partner during the Partnership bind the Firm. III. Of the Dissolution of a Partnership; and of Contracts subsequently made. I. Of the Formation of a Partnership. 1. Of a partnership as between the parties themselves.—It is proposed to consider under this division those cases in which an actual partnership may arise between parties in reference to each other, without regard to the instances in which they may be liable, in consequence of their acts, to the public, as partners, although no partnership has in reality been formed between them. A partnership may be created by deed, or by writing not under seal, or it may exist by parol contract; but a parol agreement for the continuance of a partnership beyond the term of one year, would be inoperative under the statute of frauds, 29 Car. 2, c. 3, s. 4(1). Nor will effect be given to an agreement to form a partnership for the purpose of carrying into operation illegal transac |