at any meeting, the appointment of an agent, by power of attorney, given by the trustees of a company under the sanction of a meeting at which three directors only were present, was held be invalid;(w) the appointment of an agent, however, when no particular form is required by the deed of settlement, may be by parol, and not even be in writing.(x) [*163] In considering the character and authorities of officers and agents, it is unimportant whether the company for which they act is incorporated or not. The simple employment of persons by a corporation carrying on business cannot give them, as incidental to that employment, a larger authority than if the appointment were made by a partnership of as many individuals as the shareholders of the company, nor does it appear to make any difference that it is carried on by fewer members, or even by a single individual. A partnership of many who do not mean to act personally in the management of their affairs, may think it right to invest some of their servants with all or part of the authority of partners; but supposing they do not, the functions and authorities of servants in different capacities must be the same in both cases.(y) 7. It is, indeed, a general rule that a corporation acts by its common seal alone, and cannot be bound except by deed made thereunder; but to this rule there are exceptions, the most important of which is that of trading companies when acting within the scope of their charter, and entering into commercial contracts in the usual manner; other exceptions are, when the contract is too trivial to demand such a formality, or perhaps when it is so far executed as to remove it from the operation of the statute of frauds. (2) With regard to companies completely registed under the Joint-Stock Companies Registration Act, those quasi corporations may be bound by contracts, although not under seal, and not having the requisites prescribed by the 44th section of the statute; for it contains a clause that *contracts not having these requisites shall not be effectual ex[*164] cept as against the company on whose behalf they have been made. If, therefore, any contract has been made by the company, it is no objection in their mouth that it was not made under seal, although it is of course competent to them to say that it was not made by an agent having authority to bind them. (a) 8. In all the questions arising upon the acts of agents, it must be remembered that they are only binding upon the principal to the extent of the agency or the delegated authority; (b) and for any such act, the power may be either express or incidental to the office conferred. The employment of an agent in any particular capacity gives the necessary authorities to act under ordinary circumstances only. If an emergency occurs, an act of agency in excess of his authority is upon (w) Ducarry v. Gill, Moo. & M. 450. (x) Coles v. Trecothick, 9 Ves. 250. (y) Cox v. Midland Railway Company, 3 Exch. 268. (2) The Governor and Company of Copper Miners of England v. Fox, 16 Q. B. 229. (a) Ridley v. The Plymouth Grinding Company, 2 Exch, 711. (b) Olding v. Smith, 16 Jur. 497. Q.B. his own responsibility, and he must take his chance upon the approval or disapproval of his principal.(c) But if the principal afterwards adopts the act or contract of the agent, such a confirmation will operate from the time of the contract, and not only from the time at which it is given. (d) An agent professing to act for a particular party cannot be sued as principal on the contract, although he may be answerable in damages; (e) aliter if no principal be discl osed, and the agent, in fact, takes the liability in the first instance upon himself. (ƒ) 9. The power of a general agent for a mercantile company must be ascertained by the usages of trade; and the mode of transacting business in that department in which he is employed will, in the absence of express directions, often determine a doubt as to the liability of the principal.(g) *The principal officers of an insurance office, such as [*165] the managing director, secretary, or actuary, will fill the character of general agent, and possess all such powers as may be necessary for enabling them to conduct the business of their offices. 10. The term agent, however, is commonly applied in practice to persons who are invested with a very limited authority, being employed in places distant from the principal seat of business to receive proposals for insurances, and collect the annual premiums of policies when issued. To such persons the general law respecting agents and their capacity for agency will apply. It is not necessary that they should be sui juris, and capable of contracting in their own right; but may be infants, married women, aliens, or otherwise under disabilities, if not physically incapacitated. They must closely follow the instructions of their principals, and by no means presume to exceed the limits of the delegated authority. They cannot bind the company so as to alter the conditions of any contract of insurance, or revive a lapsed policy without the express previous approval of the directors; and a fortiori cannot involve it in any fresh liability by pledging it to any new or additional insurance contract. Thus, in the case of Acey v. Fernie, (h) the renewal premium of a policy of insurance became due on the 15th of March, 1833, but was not paid until the 12th of April following, and the assured died on the 14th of the same month. It appeared that the following clause was printed at the bottom of the receipts: "If this receipt is not taken up within fifteen days from the day the premium becomes due, it must be returned to the office, as, after that period, the insurance being cancelled, the several receipts will be of no avail. (See conditions of insurance in the printed proposals of the company.)" Instructions were given by the company to their agent that if any premium was not paid within the fifteen days, he was to give *immediate notice to the office; and in [*166] the event of his omitting to do so, his account would be debited for the amount after the fifteen days were expired, and he would be held (c) Hawtayne v. Bourne, 7 M. & W. 595. (d) Bird v. Brown, 14 Jur. 134, Exch. Lewis v. Nicholson, 16 Jur. 1041. Q. B.; Jenkins v. Hutchinson, 13 Q. B. 744. Carr v. Jackson, 21 L. J. Ex. 137. (9) Chitty on Contracts, 63. (h) 7 M. & W. 151. accountable for the same. No notice was given by the agent of the nonpayment of the premium, and, accordingly, he was debited with the amount, and it was entered in the office books as paid on the 15th of March. It was held that these entries were a mere private arrangement between the office and its agent to secure the due payment of moneys received by him, and one of which a third party could not take advantage; and that there was no evidence of any new contract having been made, nor, in any sense, an authority in the agent to make a new contract; that the receipt itself proved that the agent had no authority, as such, to bind the company to a new contract upon the terms of the old one, but varying the time of payment; that, not being a general agent, but one with limited powers to receive premiums, he had authority to bind the company in respect of the money as if paid to the company itself, and hence it would seem that an agreement on his part to advance the money might be considered as payment on the day when it became due, but that he had no other power or right in the matter. Neither are they empowered without express authority to receive notices of assignments on behalf of the company, which shall be binding upon it.(i) 11. It is, above all things, the duty of an agent to keep regular accounts of all his transactions, and to pay over all moneys received by him on behalf of his principal. Should he mix the moneys received by him on the agency account with his own, paying them to the same account with a banker, he must bear the loss of the failure of the latter,(k) and may even become liable for interest on a balance, when improperly retained. Should he presume to *speculate with the sums received, he will be liable to account for the profits; and [*167] such investments, even in stock, may be subject to a specific lien on the part of the principal.(2) He will not, however, be liable for unavoidable losses, as the failure of a banker in whose bills he may have made a remittance, or in whose hands, in the absence of directions, he may have deposited the money received to a separate account; (m) or where he is robbed of the specific moneys, whether the felony is committed in his house or upon his person; and in this respect the officer of a friendly society does not differ from any other bailee of specific moneys under the Friendly Societies Acts, 6 & 7 W. 4, c. 32, s. 84, 10 Geo. 4, c. 56, 8. 20.(n) 12. And, lastly, when an agent undertakes to obtain an insurance for a third party, he should execute the commission with diligence, for he may be liable to an action for neglecting to do so; and this is equally true whether the party undertaking the commission is an insurance agent or not, and although he may act gratuitously in the matter.(o) Should he be unable to effect the policy, to prevent any right of complaint or liability attaching against himself, he should give notice of his inability (i) Gale v. Lewis, 9 Q. B. 742, Ex parte Hennessey, 1 Connor & Lawson, 55. See Stewart v. Aberdeen, 4 M. & W. 211. (k) Massey v. Banner, 1 Jac. & W. 241. (1) Lord Chedworth v. Edwards, 8 Hare, 48. (m) Massey v. Banner, Sup. Walker v. The British Guarantee Association, 16 Jurist, 885. Q. B. to the intending assurer. (p) Should he be likely to succeed in effecting the insurance, it will be of importance that he should remember that, although he may be the agent of the society for the purpose of receiving and forwarding the proposal, yet at the same time, in acting for the party making it, to the extent of the delegated authority he is also his agent, and it is imperative upon him to attend to those rules respecting warranties and representations laid down in a previous chapter. Notwithstanding his official capacity, carelessness or mistake on his part may jeopardise the insurance.(g) [*168] 13. The law officer or solicitor of the company is also its agent as regards the law business intrusted to him, but unless especially so appointed, he cannot be considered the general agent of the company, or even its agent in the more limited sense of the term already considered.(r) ON THE ASSIGNMENT OF POLICIES FOR VALUABLE CONSIDERATION, AND HEREIN OF CONSIDERATIONS, OF THE BANKRUPTCY OF THE ASSURED, AND CONFLICTING EQUITIES OF CONSECUTIVE INCUMBRANCERS. 1. THE wisdom and policy of the sages and founders of the laws, says Lord Coke, have provided that no possibility, right, title, or thing in action, shall be granted or assigned to strangers, for that would be the occasion of multiplying contentions and suits; (a) and it was thought that it would be a great encouragement to litigiousness, if a man were allowed to make over to a stranger his right of going to law. Hence, choses in action, that is, things of which the insured has not the possession, but only a right to recover them by a suit or action at law; and such is the sum assured by a policy, payable only upon the happening of the particular event, are at law regarded as incapable of assignment; and that although by the terms of the policy the sum assured is made payable to the executors, administrators, or assigns of the assured.(b) (p) Callender v. Olericks, 5 Bing. New Cases, 58, 6 Scott, 761. (q) Parsons v. Bignold, 13 Sim. 518, ante, p. 37. (r) Burnes v. Pennell, 2 House of Lords Cases, 497.. (a) 10 Co. 48, a.; Co. Litt. 232, b., note 145. (b) Williams v. Thorp, 2 Sim. 257. The word assigns would probably be considered as satisfied by assigns by act of law, as in bankruptcy, the only assigns possible by the nature of the case; as where a lease was made to A. and his assigns, with a condition against assignment. Weatherall v. Geering, 12 Ves. 504. [*170] With regard to choses in action, moreover, *it has been suggested that there may be a further ground for this doctrine, and that it may rest upon the same foundation in this as in other countries; namely, that the credit being a personal right of the creditor, the debtor being obliged to that person cannot, by a transfer of the credit, which is not an act of his own, become obliged towards another: and the more especially, as the mode of transfer, which was invented by the Roman juris-consults, namely, by constituting the assignee the mandatory of the creditor, has been adopted into our system of jurisprudence.(c) 2. To the general rule of law, forbidding the assignment of choses in action, there is one exception, namely, that they may be assigned either by or to the Crown, (d) and either by the act of the party or by act of law. When, therefore, the legal interest is in a felon, upon his conviction the Crown may sue upon it; at the same time, where he is entitled in equity only, this will not be the case; the person in whom the legal interest is vested must sue, although he will be a trustee for the Crown; the conviction does not divest the legal interest out of him.(e) 3. The Courts of Chancery, however, from the earliest times, thought the doctrine upon which the common law proceeded in these cases too absurd to adopt, (f) holding that a man may bind himself to do any thing which is not in itself impossible, (g) and that he ought to perform his obligations; and equity will, consequently, enforce an assignment of a chose in action, when the consideration is a valuable one, by making the vendor a trustee for the party with whom he has contracted, (h) and *by compelling him to allow his name to be used in an action [*171] at law, if necessary, for the recovery of the fund when payable, which last, as we shall hereafter see, is an equity of which the courts of law will take cognisance.() "This maxim," said Lord Thurlow, "I take to be universal, that whenever persons agree concerning any particular subject, that, in a Court of Equity, as against the party himself, and any claiming under him, voluntarily or with notice, raises a trust."(k) "An assignment," said Lord Hardwicke, "of an interest of this description always operates by way of agreement or contract, amounting in the consideration of the Court to this, that one agrees with another to transfer or make good that right or interest; and, like every other agreement, this Court will cause it to be specifically performed (not leaving the assignee to his action for damages for a breach), when the assignor is in a condition to transfer the property, or to cause it to be transferred to the assignee.() And when a policy has thus been the subject of a contract, it, or rather the benefit of the contract, may be again transferred in like manner to a new purchaser, for whom, by substitution for the original vendee, the vendor will become a trustee; and (c) 2 Spence Eq. 851. (d) Comyn's Digest, Assignment; Miles v. Williams, 1 P. W. 252. (e) Bishop v. Curtis, 17 Jur. 23 Q. B. (f) Buller, J., Master v. Miller, 4 T. R. 340. (g) 1 Fonbl. 213. (h) Wright v. Wright, 1 Ves. 411; Ashley v. Ashley, 3 Sim. 159. Post, p. 211. Wright v. Wright, 1 Ves. Sen. 408. |