(e) 2 Geo. II., c. 22; now repealed by 46 & 47 Vict., c. 49, 8. 4, but see 88. 5, 7, of the latter Act.
(f) 4 B. & C. (10 E. C. L. E.) 553.
(g) 1 M. & W. 591. See, however, the remarks on this case in Fish v. Kemp-ton, 7 C. B. (62 E. C. L. R.) 687.
(h) Fish v. Kempton, 7 0. B. (62 E. C. L. R.) 687; Dresser v. Norwood, 34 L. J. (C. P.) 48, Ex. Ch.; Semenza v. Brinsley, 18 C. B. (N. S.) (114 E. C. L. R.) 467; 34 L. J. (C. P.) 161; Dixon ex parte, in re Henley, 4 Ch. Div. 133. See also Mildred v. Maspons, 8 App. Cas. 874, 53 L. J. (Q. B.) 33, affirming Mas-pons v. Mildred, 9 Q. B. D. (C .A.) 530, 51 L. J. (Q. B.) 604; New Zealand and Australian Land Co. v. Watson, 7 Q. B. D. 374 (C. A.), 50 L. J. (Q. B.) 433, re-versing S. C. nom. New Zealand, etc., Co. v. Ruston, 5 Q. B. D. 474; 49 L. J (Q. B.) 842.
(i) 8 Ex. 852.
Before leaving this subject, I will say one word with regard to the situation of an agent who contracts in the manner I have just mentioned, without naming his principal. It is settled that, in such a case, the other contracting party may, when he discovers the true state of facts, elect to charge him or his principal (n), winch-ever he may *think most for his advantage. Thus, in Paterson v. Gandasequi (0), the defendant, who was a Spanish merchant, employed Larra-zabal to purchase for him various assortments of goods for the foreign market, for which he was to charge a commission of 2 per cent. Larrazabal applied to the plaintiffs, and requested them to send to his counting-house an assortment of the goods, with terms and prices. Paterson brought patterns of the goods to the counting-house with the terms and prices, when Gandasequi was present. The samples were handed to him. He inspected them, selected such as he required, and the terms and prices were shown to him, and left there; subsequently Larrazabal, in pursuance of directions from Gandasequi, ordered the goods from Paterson. The latter sold the goods on the credit of Larrazabal, made out the invoices in his name, and sent them to him, and Larrazabal debited the amount to Gandasequi. *"The law," said Lord Ellenborough, "has been settled by a variety of cases, that an unknown principal, when discovered, is liable on the contracts which his agent makes for him." On the other hand, if the agent contract without naming any principal, he is himself the person prima facie responsible; and though the other party may, in most cases, elect to charge the employer on discovering him, yet he need not do so, but may, if he please, continue to look to the agent (p). He may also elect to charge either the agent or his principal, where the agent, at the time of making the contract, says that he has a principal, but declines to say who that principal is (q).1 It is im(p) Morgan v. Corder, Paley Prin. and Agent, 3rd edit. p. 372; Smith's Merc. Law, by Dowdeswell, 9th edit. p. 159, etc.; Paterson v. Gandasequi, supra.
(k) Turner v. Thomas, L. R. 6 C. P. 610; 40 L. J. (C. P.) 271. This decision seems equally applicable to claims arising out of mutual dealings made under the similar sections of 46 & 47 Vict., c. 52 (Bankruptcy Act, 1883), viz., ss. 37, 38.
(I) Gibson v. Winter, 5 B. & Ad. (27 E. C. L. R.) 96; Wilkinson v. Undo, 7 M. & W. 81.
(m) May v. Taylor, 6 M. & Gr. (46 E. C. L. R.) 261; Megginson v. Harper, 2 C. & M. 322.
(n) The creditor has an election to sue either the one or the other; but he cannot after he has sued the one to judgment maintain a second action against the other. Priestly v. Fernie, 34 L. J. (Ex.) 172; 3 H. & C. 977. The mere fact of filing an affidavit of proof against the estate of an insolvent agent to an undiscovered principal, after that undiscovered principal is known to the creditor, is not a conclusive election by the creditor to treat the agent as his debtor: Curtis v. Williamson, L. R. 10 Q. B. 57; 44 L. J. (Q. B.) 27.
(o) 15 East, 62; 2 Smith, L. C. 360, 8th ed.; see also Waring v. Favenck, 1 Camp. 85; Kymer v. Suwercropp, 1 Camp. 109; Heald v. Kenworthy, 24 L. J. (Ex.) 76; 10 Exch. 739; Smethurst r. Mitchell, 28 L. J. (Q. B.) 241; Ris-bourg v. Bruckner, 27 L. J. (C. P.) 90; 3 C. B (N. S.) (91 E. C. L. R.) 812; Greene v. Koptree, 25 L. J. (C. P.) 297; 18 C IS. (86 E. C. L. R.) 549; Calder v. Dobell, L. R. 6 C. P. 486; 40 L. J. (C. P.) 89, 224.
(q) Thomson v. Davenport, 9 B. & C. (17 E. C. L.E.) 78; 2 Smith L. C. 377, 8th edit.; Cooke v. Wilson, 26 L. J. (C. P.) 15; 10. B. (N. S.) (87 E. C. L. R.) 153.
1 [Note by Mr. J. C. Symons.] The right to sue the principal when disclosed does not apply to bills of exchange accepted or endorsed by the agent in his own name alone, and not per proc, for by the law of merchants, a chose in action is passed by endorsement, and each party who receives the bill is making a contract with the parties upon the face of it, and with no other party whatever. See Beckham v. Drake, 9 M & W. 92, per Lord Abinger, C. B. [Bank of Hamburg v. Wray, 4 Strob. 87.]
Bacon v. Sondley, 3 Strob. 542; Pertli Amboy Manufacturing Co. v. Condit, 21 N. J. 659, unless the circumstances attending the contract are such as to show an intention to look solely to the one and not to the other. If the vendor, knowing of the principal, still credits and looks to the agent as the responsible party, he of course exonerates the principal: Paige v. Stone, 10 Mete. 160; Jones v. AEtna Ins. Co., 14 Conn. 501; Ahrens v. Cobb, 9 Humph. 643: Violett v. Powell, 10 B. Mon. 347; Bate v. Burr, 4 Harring. 130; and this, whether the latter has or has not received the property: Ahrens v. Cobb. But it is obvious, that the mere fact of charging the goods to the agent, should not raise a presumption that the vendor thereby meant to rely solely on the latter, unless the name, and perhaps also the situation and circumstances, of the principal be also known to the vendor, for certainly unless he knew the name of the principal, there can be no opportunity of electing between him and the agent: Lapham v. Green, 9 Vt. 407; Edwards v. Gold-ing. 20 lb. 30; Henderson v. Mayhew, 2 Gill, 393; and it would seem that unless he knew, also, something of his circumstances, the case would be the same : Raymond v. The Crown and Eagle Mills, 2 Mete. 319; Upton v. Gray, 2 Me. 374. See the note to Thomson v. Davenport, 2 Sm. L. C. 398 -R.