Ipsa lex. {d) Thus, though, if o, factor sell goods in his own name,

the buyer may avail himself of a right of set-off against the factor ;

yet if a hroker do so, the rule will, except under extraordinary cir-

cumstances, be different ; for " o, factor who has the possession of

goods, differs materially from a hroker : the factor is a person to

whom goods are consigned, and, when he sells in his own name, it

Is within the scope of his authority, and it is right, therefore, that

his principal should be bound by the consequences of such sale,

one of which is the right of setting off a debt due from the /actor,

but the case of a hroker is different, he has not the possession of the

goods, and so the vendee cannot be deceived by that circumstance,

and besides, the employing a person to sell goods as a hroker does

not auth';rize him to sell in his own name : if, therefore, he sell in

his own name, he acts beyond the scope of his authorit}^, and his

principal will not be bound : if it be said, that by these means the

hroker would be enabled by his principal to deceive innocent per-

(f) Straey v. Decy, T T. R. 361. George v. Claggett, 7 T. R. 359, et ULtns. Black-

burne v. Scholes, 2 Camp. 343. Carr v. Hinchcliff, 4 B. <fe C. 551. Taylor v. Kymer,

3 B. Tfe Ad. 334. See Warner V. M'Kay, 1 m. & Wels. 595, which goes further per

haps than any previous case.

(d) Maans v. Henderson, 1 East, 335. Moore v. Clementson, 2 Camp. 24. Escott

В». Milward, 7 T. R. 361.

PRINCIPAL AND AGENT. OQS

Rights of the Principal against third Parties.

sons, the answer is obvious : that cannot be so, unless the principaJ

deliver to him the possession and indicia of jDroperty." (e)

We have seen that payment or delivery to an agent, is payment

or delivery to his principal : this holds good vice versa^ (/) and there-

fore where the agent has paid away or delivered over his master's

property on a consideration which fails, or otherwise under circum-

stances which would entitle him to recover it, the master may, if he

please, maintain an action in his own name to be reimbursed, {g)

which it will often be advisable to do, in order not to lose the agent's

evidence ; and in some cases the master may sue for this purpose

where the agent could not ; for instance, if the agent and a third

person have joined in applying his property to an illegal purpose,

as to the insurance of lottery tickets ; for though the agent, being

pariiceps crirrmiis, (Ji) might not be able to recover, on account of the

rule pari delicto potior est conditio defendentis ; yet that rule does not

affect the master who is guilty of no criminality. (^) And where

the agent disposes of the master's property, without either an ex-

press or an implied authority, as if he sell his master's goods on

credit in a trade the usual course of which is to sell for cash only,

the master, though he may affirm the transaction, may, if he please,

rejDudiate it, and recover the property thus tortiously disposed of

from the disponee. (y)

There is another case in which it has been lately thought that

a principal may be in a better situation in consequence of his hav-