must express specially that the arbiters differed in opinion." It would appear that arbiters are not entitled, on their differing in opinion, to refer the question to an oversman without having express authority to do so.2

Judicial Submissions. It is not unusual in litigations, especially of the class which are likely to come before a jury, for the case to be taken out of court, on a reference judicially ratified. The court in such a case interposes its authority both to the reference and to the decree following on it. The transaction is subject to the rules applicable to Extrajudicial Submissions; and it has been specially decided that a party having agreed to a judicial reference appointing the matter of litigation to be " finally decided" by the referee, he was not entitled to such recourse by new trial or otherwise as he might have had if the cause had proceeded in the ordinary manner, but was bound to accept of a conclusive decision, in terms of the contract.3

SECT. 2. Decree Arbitral.

The decision of an arbiter cannot be enforced otherwise than through a decree of a court, unless the Submission have contained a clause of Registration* for Execution.* Although it is a rule of practice that Decrees Arbitral are challengeable only on the grounds of bribery, corruption, or falsehood;5 yet informalities are a too frequent ground for refusing effect to them, and the most usual defect producing this result is the inapplicability of the decree to the submission, in its either not exhausting the matters there set forth, or travelling out of them and deciding on other matters. Whatever may be the dispute which forms the ground of the submission, the decree must be limited to its subject-matter, and must not embrace other questions. If parts of the decree which are competent can be separated from those which are not competent, it may be only partly reduced; but if the whole parts are essentially connected, the whole must be reduced. The arbiter must hear the pleadings of the parties, and it is fatal to a decree, that when it was pronounced, both or either of the parties had not been heard. It does not appear to be a ground of reduction that the arbiter has rejected competent

6

E. iv. 3, 29.-2 Matheson v. M'Kenzie, 1st July 1842.-3 Brakinrig v. Menzies, 17th December 1841. Campbell v. Campbell, 9th February 1843.* See the head Registration in Index.-E. iv. 3, 31.- Regulations A. S. 1695, § 25.- Napier v. Wood, 29th November 1844.-7 Reid v. Walker, 15th December 1826. Ferrier v. Alison, 28th January 1843.-8 Longmuir v. Sloan, 21st November 1840.

evidence if he has heard the parties; the method of satisfying himself as to the facts is among the questions which the parties have agreed to leave to the arbiter's judgment.1 It has been found that a party is not entitled to be re-heard; and on the whole the court is jealous of giving any effect to vague statements about insuflicient or unequal hearings, or alleged mistakes regarding the real points at issue.2

To make a valid decree, all the arbiters named in the submission must be alive and must agree, unless another arrangement be made, by the appointment of an oversman, or by a provision that the majority may decide.3 In the latter case a decree signed by the majority as assenting to it is valid.4

An arbiter may award expenses in his decree without any express power to that effect being embodied in the submission.5

CHAPTER III.

FACTORS, AGENTS, AND OTHER MANDATARIES.

SECT. 1.-Constitution of Mandate or Agency.

MANDATE is a contract by which one is empowered to conduct to a greater or less extent the business of another. It includes the contracts of Factory, Agency, Commission, &c. The employer is called the Mandant, the person employed the Mandatary. Mandate may be expressed or implied. The latter description is constituted by the usage of trade or by acquiescence; an implied mandate is constituted by goods being consigned for sale, or by a person being appointed to superintend an establishment, or by a clerk being allowed to perform acts of management, such as drawing and indorsing bills. Agents, Factors, Brokers, &c., are generally appointed in the most important commercial transactions simply by letter. Where the parties are in different countries, it is generally expedient to grant a power of attorney."

1 Ferrier v. Alison, 28th January 1843.-2 Brakinrig v. Menzies, 17th December 1841.-3 More v. Grier, M. 14720. E. iv. 3, 34.4 Love v. Love, 1st June 1825. M'Callum v. Robertson, 3d June 1825; affirmed, 1 W. S. 344.5 Ferrier v. Alison, App. 18th April 1845. 4 Bell, 161.- Paley on P. & A. 155, et seq.

The mandatary, having expressly or by implication undertaken to perform the commission assigned to him, is responsible for the damages occasioned by dereliction of duty or carelessness, whether he is to be remunerated or not.1 The responsibility of a paid agent is of a higher description. He must account with his principal and remit all balances. In remittances (unless he have disregarded special directions) he is not responsible, if he have adopted the medium of a chartered or other bank in good credit, and have followed the usage of trade.2 An agent for a general merchant abroad is responsible to those from whom he purchases goods on his account in this country.3 An agent is not responsible for the solvency of the persons with whom he contracts for his principal, unless he have become bound in guarantie.+

Extent of Authority. A general mandatary is restricted only by the usages of trade, and his employer will be liable for all engagements he may come under to that extent.3 Where, however, the mandatary has been countenanced in acts of management beyond such usage, his employer will be liable for his continuing the practice. Thus, where the manager of a coal-work had drawn and indorsed bills, the court (intimating that a power to draw bills did not imply a power to indorse them) found that, as the mandatary had authority to administer the whole concern, while there was no evidence that money was otherwise provided than by the negotiation of bills, and there was proof that he was in the habit of drawing and negotiating bills,-his indorsement must bind his employers. The departure which an agent makes from the proper accepted method of transacting his employer's business must be very marked to raise the presumption that third parties must be aware of the agent exceeding his powers, or not acting for his principal. A bank-agent had received a deposit, and given the usual receipt as from the bank. Though he wrote to the party a letter, marked " private," intimating that if the receipt were not presented for payment until after a particular date an addition would be made to the usual rate of interest, on the agent absconding the bank was found liable.7

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1 Paley on P. & A. 6. Gillies v. Smith, 9th June 1832.-2 Russell v. Hankey, 10th November 1794, 6 T. R. 12.-3 Burgess v. Buck & Co., 2d July 1829.-4 Watson v. Hood, 2d July 1822.-5 Paley on P. & A. 198. See Stewart v. Hall & Co., App. 10th November 1813, 2 Dow, 29. - Murray v. Campbell, 28th November 1827. See Thomson v. Fullarton, 23d December 1842.- Craw v. Commercial Bank, 9th December

A person employed to accomplish a specific object is, if not specially restricted, understood to be empowered to employ all necessary and usual means of executing it with effect, and may bind his principal accordingly. Thus, a tavern-keeper was found entitled to recover a large amount of tavern-bills from a candidate for a seat in parliament, they having been incurred by his agent in his name.2

A mandatary, whose powers are limited to a certain transaction, or class of transactions, becomes personally responsible for proceedings beyond his commission. Thus, where a shipmaster who was employed to sell fish at Bilboa and account for the proceeds, invested the price in wines, which were lost on the voyage home, he was found liable. Yet even in the case of a limitation the mandatary will be entitled to use a certain discretion in furthering the views of his employer, though he transgress the letter of his instructions. Thus, a factor was employed to purchase 1000 quarters of linseed at 65s. The price rising, it was impossible to purchase at the limits, and he bought 500 quarters at 80s., on which his principal made considerable profit; he was held justified in doing so. Where the authority is to appearance general, third parties cannot be affected by private limitations of which they are ignorant.5

SECT. 2.-Termination of Mandate.

The authority to accomplish a limited and specific object expires with its accomplishment. Authority to act for another under particular circumstances, and for the sake of temporary convenience (as during bad health, absence, &c.), expires with the circumstance which occasioned it. A general mandate terminates by revocation, if it is known to all the parties interested,-what notice is requisite does not seem to have been decided. "Perhaps," says Professor Bell," the analogy of the publication necessary in the dissolution of partnership would be followed, namely, special notice, or circular letters to the customers, and advertisements to the world at large."7 Mandate terminates on the death of the Mandant, which however will not have the effect of annulling transactions entered into before it is known. Bankruptcy has the effect of extinguishing all mandates

1 Paley on P. & A. 189.- Thomson v. M'Taggart, 20th May 1823.3 Young v. Finlay, 28th July 1716, M. 10088. Pease, &c. v. Smith, 22d May 1821.-5 Whitehead v. Tuckett, 21st April 1812. 15 East. 400. Paley on P. & A. 198.- Paley on P. & A. 184, et seq.-7 B. C. i. 489. See Paley on P. & A. 188.-8 Campbell v. Anderson, 1st May 1829, 3 W. & S.

which may be used to affect the property of the bankrupt, but a factor holding power to sell, who has made advances on goods consigned to him, may indemnify himself from them. It has been matter of much dispute whether insanity, which on the one side precludes the idea of consent to the continuance of a mandate, and on the other extinguishes the power to revoke it, and perhaps renders its continuation more than ever necessary, extinguishes a mandate. It seems to be the opinion of lawyers, that the mandate (especially if limited) would not be extinguished.2

SECT. 3.-The Various Commercial Mandataries. Whoever is put at the head of an establishment, domestic or commercial, represents his employer in all things regarding the business of the establishment, not as a delegate with limited powers, but as a representative. "Under this rule in Scotland are included the superintendents of shops, manufactories, farms, banks, and all similar establishments for commercial purposes." 113 When the mandatary is at a distance from his employer however, e. g. at the head of a branch of the business, the public are not entitled to consider his acts binding on his principal unless he be professedly acting in terms of his particular agency. It was so found where an agent for a bank, being himself a banker, granted a receipt in general terms without mentioning his agency.4

Commercial Travellers are a numerous and important class of mandataries. Their powers are, if not expressly restricted, limited by the custom of their trade. "In general, it appears that a riding or travelling agent has not only authority to receive payment for his principal of the monies due to him, but to take orders by which the principal shall be bound as much as if he himself had accepted and bound the contract.” 5

A Commercial Factor partakes to a certain extent of the nature of a partner, and sometimes of a guarantor, for the credit of the persons with whom he transacts business for his principal. "A factor is generally the correspondent of a foreign house, or of a merchant or manufacturer at a distance from the place of sale; and he usually sells in his own name, without disclosing that of his principal, and has an implied authority so to do. He receives consignments on the one hand, and makes sales and remittances in return,

B. C. i. 488.-2 Ibid. 489. Pollok v. Paterson, 10th December 1811. 3 B. C. i. 480.- Watson v. Bank of Scotland, App. 26th March 1813, 1 Dow, 40.-5 B C. i. 481.