7. If an agent has a [losscssion coupled with an interest,

In tlie sul)jcct-iiiatter of the contract, he is entitled to sue

ami liable to be sued (concurrently with his principal),

BIGHTS AND DUTIES OF PRINCIPAL AND AGENT. 101

even though he contracts on behalf of a named principal ;

e.g. an auctioneer.

Williams v. Millington (1788), 1 H. Bl. 81 ; here Lord

Loughborough said ; " An auctioneer has a possession coupled

with an interest in goods which he is employed to sell, not

a bare custody like a servant or shopman. There is no differ-

ence whether the sale be on the premises of the owner or in

a public auction room ; for on the premises of the owner

an actual possession is given to the auctioneer and his

servants by the owner, not merely an authority to sell. I

have said a possession coupled with an interest ; but an

auctioneer has also a special property in him, with a lien

for the charges of the sale, the commission, and the auction

duty, which he is bound to pay."

This case was approved of in Robinson v. Rutter (1855),

4 E. & b. 954, and in Woolfe V. Home (1877), 2 q. B. D. 355.

Whenever an agent does sne in his own name, the

defendant can avail himself of any such defence as would be

good against the agent himself, who is the plaintiff on the

record — vide Bauerman v. Radenius (1798), 7 T. R. 6G3,

Gihson V. Winter (1833), 5 B. & Ad. 96, and Wilkinson v.

Lindo (1840), 7 M. & W. 81. In the last case Parke, B., said ;

"The matter was there (in Gibson v. Winter, ubi supra)

a good deal considered, and it was held that whatever

constitutes an answer to the demand for which an action

is brought as against the plaintiff on the record, is a bar

to the action, although brought for the benefit of others,

who have no mode of enforcing their claim except by suing

in the name of the plaintiff."

The defendant can also avail himself of any such defence

as would be good against the principal for whom the action

is brought — vide Ph. v. Hardwick (1809), 11 East. 578, Smith

V. Lyon (1813), 3 Camp. 465, and Welstead v. Levy (1831), 1

M. & Rob. 138.

102 The law of agency.

An auctioneer's right to sue in his own name is

dependent on the right of his principal to sue.

Dickenson v. Naul (1833), 4 B. & Ad. 638; here it was

laid down ; " For the plaintiff (the auctioneer) it was con-

tended that the auctioneer had a right of action for goods

sold by him in the course of his business ; and undoubtedly

he may sue where the right of no third party intervenes.

But where such right is established, and the person employ-

Ing the auctioneer is proved not to be the owner, it then

becomes clear that the auctioneer, who can have no interest

In the goods but what he derives from his employer, has no

longer any claim upon the property against the right owner."

8. An agent may be personally entitled and liable, either

concurrently with or to the exclusion of his principal, by

reason of a particular custom ; and this even though he

contracts as an agent and names his principal. Thus it has

been decided that a commission agent who contracts for a

correspondent residing abroad, has not, unless it can be

proved that he has a special authority to do so, any

authority to bind that correspondent to the contract ; and

that therefore, even though the foreign correspondent be

named as principal, credit is given exclusively to the agent.

Armstromj v. Stolces (1872), L. R. 7 Q. B. 598; here

Blackburn, J., delivering the judgment of the Court, said ;

" The great inconvenience that would result if there were

privity of contract established between the foreign con-

stituent of a commission merchant and the home suppliers

of the goods, has led to a course of business in consequence of

which it has been lonfj settled that a foreic^n constituent docs

not give tlic commission merchant any authority to pledge

his credit to those from whom the commissioner buys them

by his order and on his account. It is true that this was

originally (and in strictness, perhaps, still is) a question of

fact ; but the inconvenience of holding that privity of con-

tiact was established Ix'twecn a Livcrjiool merchant and the

RIOETS AND DUTIES OF PRINCIPAL AND AGENT. 1 03

grower of every bale of cotton which is forwarded to him