proceeding for a considerable course of time, and balancing at regular intervals his accounts with his principal; and in general he gives a del credere guarantie, and has a commission for it." As to del credere guaranties, see above, p. 223. A factor has a general lien, and so is entitled to detain the goods of his principal till he is paid the balance of his account. (See Part XII. Chap. IV.)

A broker differs from a factor or agent in not having the property of his employers in his hands. He is a person whose trade it is to find out those who wish to perform the opposite parts of a contract,-as a buyer and a seller,-an underwriter and one wishing to be insured,-charging a commission on his transactions.2 (See above, pp. 146 and 197.)

SECT. 4.-The Factors' Acts.

Much difficulty having been found by the courts in bringing a regular system to bear on the relative responsibilities of the parties in obligations between factors and third parties, an act was passed in 1825 regulating this matter, which was remodelled by 6th Geo. IV. c. 94, commonly termed the Factors' Act. Another act was passed in 1842, explaining and amending the previous act. The relations of these acts to each other are complicated, to an extent which, considering that they are intended to be read and used by merchants, is very unfortunate; and at the expense of some repetition, it is found necessary on this occasion, to give a distinct digest of each act, instead of interweaving the substance of both.

By the act of 6th Geo. IV. any person intrusted with goods for the purpose of consignment or sale, who ships them in his own name, and any person in whose name goods are shipped, is deemed the true owner, so far as to entitle the consignee to a lien in respect of any money or negotiable security advanced for the use of the person in whose name "such goods, wares, or merchandise, shall be shipped, or in respect of any money or negotiable security, or securities, received by him, to the use of such consignee, in the like manner, and to all intents and purposes as if such person were the true owner of such goods," &c.; provided that at or before the advance the consignee shall not have notice by the bill of lading that the person in whose name the goods

B. C. 477.-2 Paley on P. & B.

There is a presump

are shipped is not the actual owner. tion that the person in whose name goods are so shipped has been intrusted with them for the purpose of consignment or sale, the burden of proving the reverse being thrown on the person disputing the presumption (§ 1). Any person in possession of a bill of lading, India warrant, dock warrant, warehousekeeper's certificate, wharfinger's certificate, or other delivery warrant, is held the true owner of the goods it represents, so far as to render valid any contract for the sale, deposit, or pledge in security of advances, of the goods, provided there be no notice, as above, that the holder is not the true owner (§ 2); but if the deposit or pledge be taken as a security for a prior debt owing by the person in possession, then the person taking the goods acquires no farther title than could be communicated by the person so parting with the possession of them (§ 3).

Persons are safe in contracting with agents for the purchase of goods intrusted or consigned to them, the contract being binding on the owner, though the purchaser is aware that he has contracted with an agent, "provided such contract and payment be made in the usual and ordinary course of business," and the party have not notice on entering on the contract, or making payment, that the agent is not authorized to sell the goods or receive the purchase-money (§ 4). Persons may take goods, or warrants for delivery of goods, in pledge, though they receive notice that the persons from whom they receive them are but factors or agents; but no better right can be acquired in such circumstances "than was possessed, or could or might have been enforced by the said factor or agent, at the time of such deposit or pledge (§ 5). Provision is made for enabling the principal to recover his property from his factor, before sale or deposit, or from the administrator of the estate on his factor's bankruptcy, or to obtain the money from the purchaser in case of sale, subject to the right of set-off between the purchaser and factor, and to recover property pledged on satisfying the claims of the pawnee respecting it (§ 6). Factors or agents pledging goods intrusted to them, and applying the money raised for their own use, "in violation of good faith, and with intent to defraud the owner or owners of such goods," become liable to transportation not exceeding fourteen years (§ 7). The deposit or pledge of goods in security for no greater sum than is covered by the factor's lien is not considered fraud; the acceptance of bills, however, drawn by or

on account of the principal, is not a debt by the principal to justify a pledge in these circumstances unless the bill be paid when it becomes due (§ 8).

The act of 5 & 6 Vict. c. 39, proceeds upon the narrative that under the act of 6 Geo. IV. "and the present state of the law, advances cannot be safely made upon goods or documents to persons known to have possession thereof as agents only;" that advances on security of merchandise have become an usual and ordinary course of business; that the act does not protect exchanges of securities, and that there is much uncertainty in respect of it. It is then enacted that any agent in possession of goods, or of the documents of title to them, is to be held in law as the owner, to the effect of giving "validity to any contract or agreement by way of pledge, lien, or security, bonâ fide made by any person with such agent," and it will not invalidate the presumption, that the person be warned that the individual he deals with is only an agent, provided he have not advice that the agent is acting fraudulently or without authority (§§ 1, 3). The agent is authorized to receive back commodities or titles which have been pledged for an advance, and to replace them with others; but in this case the lender's lien is not to extend beyond the value of the original deposit (§ 2). The documents of title, the possession of which is held to authorize the agent to dispose of the property represented by them, and the transference of which by him is a security to the lender, are bills of lading and others according to the enumeration of the previous act. When such a document is in his hands and is transferred by him, the property represented by it is held as conveyed, though not in the agent's hands. When a contract is made to advance money on indorsation or consignment, the transaction is good, though the indorsation or consignment do not take place at the date of the agreement. A contract made by the agent's clerk or by any other person on his behalf is binding (§ 4).

Frauds. An agent granting a fraudulent security over his employer's effects is liable to transportation, or to such other punishment by fine or imprisonment, or both, as may be awarded by the court. No agent is punished who takes no more on a security than his principal was owing him, including bills accepted by the agent for his principal's behoof (§ 6). The owner is entitled to redeem his goods while they remain unsold, on satisfying the person who holds them in security, and likewise satisfying the agent to the extent of any lien he may have, if he make any claim (§ 7). There

is a provision to protect the principal from the effects of the agent's bankruptcy, framed with reference to the bankrupt law of England, but which would doubtless be found applicable to sequestrations in Scotland. When the principal redeems his property, he is held a creditor of the agent to the extent of the redemption money from the date of the pledge, and may thus plead compensation to that extent against the agent's creditors. If he do not choose to redeem, he may plead compensation to the extent to which his interest is affected by the deposit (§ 7). Goods which have come into the hands of an agent at any time before the first deliverance in a sequestration against him, thus found a right of compensation or set-off against the agent's claims on his principal.

SECT. 5.-Law-agent.

A mandate to a law-agent to conduct a suit, will be presumed, so far as the client is concerned, from his knowing that the suit is carried on in his name, and not disclaiming it. No one, however, living abroad, unless he be a proprietor of lands in Scotland, can sue without appointing a mandatary, who is responsible for the expenses.2

A law-agent has a lien or right of retention on the titledeeds and documents of debt of his client, coming into his hands in the usual course of business, for the contents of his account. But a writer who gets a deed into his possession, not as intrusted with his client's writings, but for the accomplishment of a particular purpose, cannot retain it;—so it was laid down where one had contracted a debt to an agent, and allowed him to inspect the titles of a property to judge whether he would accept of a security over it.3 However pressing may be the occasion for them, the employer cannot recover the deeds for his own use without paying the debt or giving security for it, though they are exigible as evidence by a third party.

An agent in a litigation has a preference over any sum recovered as expenses, which will not be defeated by compensating a debt by his client to the opposite party against it, though it should be maintained that his client is solvent and able to satisfy him. Where, however, expenses have been found to each party in different steps of the litigation, the one set will compensate the other. In the case of a

1 Byran v. Murdoch, 13th November 1824.-2 Darling's Practice, 98.3 Chisholm v. Fraser, 8th March 1825.—* B. C. ii. 113. Ibid. 36, 37.

compromise the agent will be entitled to extract decree for expenses in his own name, if decree for expenses, or one on which expenses would necessarily follow, have been pronounced, or if collusion to defeat his right can be shown.1 Although the agent do not take the decree in his own name, by notice to the person against whom it has passed, he has a preference to posterior arresters, but not to prior ones.2

CHAPTER IV.

LABOUR AND SERVICE.

SECT. 1.-Principles of the Hiring of Labour and Skill.

Risk.-IN those cases where the result of labour is the production of some tangible commodity, the contract of hiring by piece-work is often scarcely to be distinguished from that of sale. To keep it purely within the former, it is necessary to presume that the materials are to be furnished not by the workman but by the employer. In such a case the real property is in the latter, and if the subject perish without blame on the part of the workman, though in his hands, the loss falls on the employer.3 If the property should perish accidentally in the workman's hands, it may become a question of difficulty how far he is to be paid for the labour he has expended on it. If the work has been completed, he is entitled to be paid the contract price; and, in the general case, if it is partially completed, he may recover a fair remuneration for what he has done. This principle, however, is controlled by the practice of trade. A printer is by custom not entitled to be paid for any part of his work till the whole is finished and delivered; and so when a partially printed book was burned in a printer's premises, he had no claim for remuneration for the work done. When the materials are provided by the workman, and the contract is properly speaking one of sale, the risk is with him until the subject is ready for delivery. (See above, p. 159.)

The person employed must give due care to the safety of

M'Lean v. Auchinvole, 29th June 1824.- Stephen v. Smith, 1st June 1830.-3 B. C. i. 256.- Ibid. 456.-5 Gillett v. Mawman, 5th Feb. 1808, 1 Taunt. 137.