a written(h) instrument on the subject existed, which for want of a stamp could not be produced. 41. If the parties to an agreement, after having signed it, introduce an alteration, which cannot be read in evidence for want of a stamp, still the old agreement is at an end; and if an agreement has been duly signed and stamped, and it appears(i) on the plaintiff's case, that a further arrangement was made between the parties after such agreement was signed, the second agreement must be proved in order to shew that the original agreement is in force; and if the first agreement be varied or completed by the new agreement, the plaintiff's case must fail, unless the latter instrument be duly stamped. Where parties entered into a verbal contract for a lease, upon the stipulations contained in a lease of the same premises which had been(j) granted by the lessor to another person, it was decided that the lease which formed the subject of reference was not admissible in evidence unless duly stamped. A landlord having agreed, by an instrument duly signed and stamped, to let premises specified in an annexed lease which was abandoned, subject to the conditions in such abandoned lease, it was ruled(k), that the agreement incorporated the abandoned lease, and by such means constituted a perfect demise, and as the agreement was duly stamped, that the lease annexed might be read in evidence, though unstamped. An instrument in possession of an adverse party is presumed to be properly stamped(), if not produced by him after notice for that purpose, and if two parts of an agreement are prepared, and one part only is stamped, the unstamped part will be received as secondary evidence, after notice and refusal to produce the stamped part. 42. Where a book was produced by a witness containing the entry of an agreement for the demise of a house at a yearly rent, and the witness stated that he let the premises as his father's agent in his presence, and that the terms of the letting were then reduced by him into writing to prevent mistake, and signed by the tenant's wife in her husband's absence for the purpose of binding him, but were not signed either by the witness or by his father, and the witness further said, he had no recollection of the circumstances, except from the entry, though on referring to it he entertained no doubt of the facts: it was decided(m), (h) Howard v. Smith, 3 Mann. & Gr. 254; 3 Scott's N. R. 574. (i) Read v. Deere, 7 B. & Cr. 261. (j) Turner v. Power, 7 B. & Cress. 625; Moody & M. 131, S. C.; but see Wheldon v. Matthews, 2 Chitty's Rep. 399. (k) Pearce v. Cheslyn, 4 Ad. & Ell. 225; 5 Nev. & M. 652. (1) Munn v. Godbold, 3 Bing. 292; 11 Moore, 49; Waller v. Horsfall, 1 Camp. N. P. C. 501; Garnons v. Swift, 1 Taunt. 507. (m) The King v. Inhabitants of that the entry was neither a lease, nor an agreement for a lease, but a mere memorandum to prevent mistake, not requiring any stamp, and that the witness had a right to look at the entry to refresh his memory, and then to give parol evidence of the demise: and the question was not whether the parties acted upon the entry, but whether(n) the document itself was a binding instrument, which could have been enforced if either party had refused to act on it. St. Martin's, Leicester, 2 Ad. & Ell. v. Tomlin, 5 Ad. & Ell. 856; 5 Nev. & M. 652, S. C. (n) Drant v. Brown, 3 B. & Cress. 665; 5 D. & Ry. 582. 1. A PERSON competent to do any act, or to manage any business for his own benefit, or on his own account, may employ or substitute another to do it for him, and the person who undertakes the performance of such a duty, is bound to render an account of the manner in which it has been executed: this authority may be conferred by letter of attorney, or by any instrument in writing, directing certain matters to be done by the person employed, or by verbal instructions, or may be implied from the relation subsisting(a) between the parties, and the nature of the business. 2. Payment to an authorized agent in the ordinary course of business(b) is binding on the principal, and if the amount of a debt be paid to a person found in a merchant's counting-house, and appearing to be intrusted(c) with the conduct of the business, it will be a good payment to the merchant, although not received by any person in his employment, because the debtor has a right to suppose that a trader will not allow persons to intermeddle with his concerns, in his countinghouse, without his sanction: but if a person intending to pay a mortgage debt to a merchant, hand the amount(d) to a clerk in his countinghouse, or if an executor pay the amount of a legacy to a shopman (a) Pickering v. Busk, 15 East, 38. (b) Coates v. Lewes, 1 Campb. N.P. C. 444; Townsend v. Inglis, Holt's N. P. C. 278; Mackersy v. Ramsay, 9 Cla. & Finn. 818. VOL. II. (c) Barrett v. Deare, Moo. & Malk. 200; Wilmott v. Smith, Moo. & Malk. 238. (d) Sanderson v. Bell, 2 Cro. & M. 304-313; 4 Tyrw. 244, S. C. serving in the shop of the legatee, who had been in the habit of receiving his master's weekly bills, or if a payment be made to a clerk or shopman on account of his master, on foot of any collateral(e) transaction, and not in the usual course of trade, nor by the master's authority, such payment will not bind the employer, unless the money be proved to have come into his hands. 3. An attorney employed to carry on legal(f) proceedings for recovery of a debt, has an implied authority to receive payment of the demand, or to bind his client by a bona fide compromise of the litigation(g), but payment to the attorney's clerk (h), or to a country attorney who was merely the agent of the plaintiff's attorney (i) in causing a debtor to be arrested, will not discharge the demand. Payment, however, to the attorney (j) on record, or to the town agent of a country attorney, is sufficient, and where costs are ordered to be paid to a party in a cause, his attorney(k) is competent to demand and receive the amount, without any express power of attorney for that purpose. 4. The authority must be antecedently given to the agent, or must be subsequently adopted() by some act of recognition on the part of the principal, or by his acquiescence in the agent's acts, when they come to his knowledge, for if the principal do not give notice in a reasonable time(m) after he is informed of what has been done, his assent will be presumed, as he is considered to adopt the acts of a person who is permitted to represent himself as acting by his authority, and will be answerable(n) for credit subsequently given to such person in that capacity. A master having sent his servant to purchase goods on credit from a shopkeeper, afterwards paid for them, and having again sent the same servant to the same shop with money to pay for goods(0), when he embezzled the money, the master was held answerable for the price, as he had given credit to the servant by adopting his former acts; but if there had been no previous dealings, from which an authority to buy on credit could have been inferred, the master would not have been deemed liable(p) for goods furnished in his name to the servant. When one party means to act as agent for another, and acts accordingly, a subsequent ratification by the other is equivalent to a prior(q) command, and it is no objection that the name of the agent was unknown to the party ratifying, at the time of the ratification. The owner of a dwelling-house demised it at a certain rent, and gave the key of the street door to the tenant's wife, who entered into possession, but in consequence of disputes between the parties, and before any rent became due, the tenant's wife gave back the key to the owner himself, which was accepted by him, and in an action for use and occupation, it was ruled(r) that the jury were warranted in inferring that the tenant's wife was her husband's general agent in the transaction, and that the landlord's acceptance of the key from her, was a recognition of her authority to surrender the premises, and constituted a surrender by act and operation of law. 5. There is a material distinction between the powers of a general agent, who is intrusted by a person to transact all his business, and an agent(s) appointed for a special purpose, who is only employed to act concerning some particular object: the acts of a general agent, so long as he keeps within the scope of his authority, though he may transgress his private instructions, are binding on his principal: if goods are placed in the custody of a person whose common business it is to sell, without limiting his authority, an implied authority to sell is thereby conferred: and if the servant of a horse-dealer, with express directions not to warrant, give a warranty, the employer is bound, because the servant(t) having a general authority to sell, is in a condition to warrant, and the master has not notified to the public that the general authority is circumscribed. In like manner, where one of several partners is permitted to sell the partnership goods, or a servant the goods of his master, though they (u) exceed their authority, yet in the one case the master, and in the other the partners, are bound, because the vendors being intrusted with a general authority, it cannot be expected that a bona fide purchaser should be aware it was limited by (p) Pearce v. Rogers, 5 Espin. N. P. C. 214. (q) Foster v. Bates, 7 Jurist, 1093; Hull. Pickersgill, 1 Bro. & B. 282; 3 Moore, 612, S. C. (r) Dodd v. Acklom, 7 Jurist, 1017. (8) Fenn v. Harrison, 3 T. R. 757, by Buller, J.; Howard v. Braithwaite, 1 Vesey & B. 209. (t) Pickering v. Busk, 15 East, 45, by Bayley, J.; Fenn v. Harrison, 3 T. R. 760, by Ashurst, J. (u) Nickson v. Brohan, 10 Mod. 109; Whitehead v. Tuckett, 15 East, arg". 405. |