Now the considerations on which I shall have occasion to touch, relate to one of four points into which what I have to say on this subject may be
(p) Combe's case, 9 Co. 76 b.; Cobb v. Becke, 6 Q. B. (51 E. C. L. E.) 930; Cockran v. Islam, 2 M. & Selw. 301, n.
(q) Moon v. Whitney Union, 3 Bing. N. C. (32 E. C. L. E.) 817; Lord v. Hall, 8 C. B. (65 E. C. L. E.) 627.
(r) See the judgment of the Court of Appeal (delivered by Thesiyer, L. J.) in De Bussche v. Alt, 8 Ch. Div. at pp. 310, 311; 47 L. J. (Ch.) pp. 386, 387.
*conveniently enough distributed; and they relate to the questions1. Who may be an agent.
2. How an agent is appointed.
3. How far his contracts bind his principal.
4. How far the principal may be advantaged by them.
Now, with regard to the first point, namely, who is competent to be an agent, I have to observe, that it by no means follows that a person who is not competent to contract himself is therefore not competent to contract as agent for another person; thus it has been decided that an infant may be an agent, or even a married woman, though she could not have contracted in her own right. Thus, where a married woman kept a school, at which the defendant had placed his daughter, and drew upon him a bill for the expenses of the daughter's education, which bill, after he had accepted it, she endorsed to the plaintiffs, and the drawing and endorsing of the bill were both in the wife's name, but with the husband's assent, who also obtained the value of the bill from the plaintiffs, it was considered that there was ample evidence of the husband having authorized the drawing and endorsing of the bill, and that there was nothing to prevent his making his wife his agent for that purpose. The defendant therefore as acceptor, *was liable to the plaintiffs as endorsees (s). In a very similar case, where a wife accepted in her own name a bill drawn upon on her husband, and his authority was proved, he was held liable. To the ob(s) Prestwick v. Marshall, 7 Bing. (20 E. C. L. E.) 565; Prince v. Brunatte, 1 Bing. N. C. (27 E. C. L. E.) 435. See Lord v. Hall, 8 C. B. (65 E. C. L. E.) 627.
Jection that a drawee cannot bind himself otherwise than by writing his own name on the bill, which you are no doubt aware is the general practice in accepting bills, it was asked, would he not be liable if, with his own hand, he had accepted the bill by writing another's name across? The only difference was, that he had done so by the hand of his wife. Had he done it with his own hand, it clearly would have been his own acceptance, and the Court held that there was no rule of law which made such an authority void. Nobody but the defendant could have accepted the bill so as to bind, and he accepted it by the hand and in the name of his wife (i). It will be obvious that the general reason why persons incapacitated to contract may, notwithstanding their incapacity, act as agents in the contracts of others, is, that their incapacity is personal, and that such contracts are not their own, but the contracts of those whose agents they are.
But it is held that, upon the peculiar wording of the Statute of Frauds, one of two parties entering into a contract, such as we have seen *that Act requires should be in writing and signed by the party to be charged thereby, cannot be agent for the other, even with that other's consent, so as to bind him by his signature to such a writing (u). Thus, where the plaintiff, an auctioneer, sued the defendant for not paying for goods purchased by him, and, the goods not having been delivered, the only evidence of the contract was the book kept by the plaintiff as an auctioneer, in which he had duly entered the different biddings opposite the lots; the Court of King's Bench held that, although in general an auctioneer may be considered as the agent and witness of both parties (the vendor and the purchaser), yet when he elects, as he may do, to sue himself as one of the contracting parties, the agent who is to bind a defendant by his signature must be some third person, and not the other contracting party upon the record (x). To allow it, indeed, would seem to amount to a direct dispensation with the signature of the party to be bound, which, whether by his own or his *agent's hand, the statute requires. But it seems to be no violation of the requirement,-the hand of the agent or principal,-that the agent of the one party should act as the agent of the other, although, of course, in such a case clear evidence would be required to show his authority, constituting him the agent of the latter. Thus, in an action by an auctioneer against a purchaser of goods sold by auction, the entry in the auctioneer's sale-book, made by the auctioneer's clerk who was assisting at the sale, and as each lot was knocked down named the purchaser aloud, and on assent from him made an entry of the sale to him, was held a sufficient memorandum within the 17th section of the Statute of Frauds; the clerk being, in the first instance, the agent of the auctioneer, and constituted the agent of the purchaser by the assent of the latter, when told by the clerk that the lot was knocked down to him (y). But where the traveller of a wholesale dealer, calling on a shopkeeper to sell his principal's goods, and having by parol sold him certain sugar, was desired by the latter to make,
(t) Lindus v. Bradwell, 5 C. B. (57 E. C. L. R.) 583.
(u) Wright v. Dannah, 2 Camp. 203; Farebrother v. Simmons, 5 B & .Ald. (7 E. C. L. R.) 333; Sharman v. Brandt, L. R. 6 Q. B. 720; 40 L. J. (Q. li.) 312.
(x) Farebrother v. Simmons, supra. An auctioneer, however, is only the agent of both vendor and purchaser at the sale; when the sale is over the rule does not apply. His signature therefore, on a subsequent sale of unsold lots left over, would not bind either party in the absence of evidence of subsequent authority. Mews v. Carr, 1 H. & N. 484; 26 L. J. (Ex.) 39.