c. 61. § 64. An alteration, therefore, to effect a discharge of the contract, need not be an alteration of the contract, but must be an 'alteration of the instrument in a material 46 & 47 Viet. way.' The Bills of Exchange Act 1882 provides that a bill shall not be avoided as against a holder in due course, though it has been materially altered, 'if the alteration is not apparent:' and the provisions of the Act respecting bills apply to promissory notes 'with the necessary modifications. These last words have been held to exclude Bank of England notes, and therefore do not affect the decision in Suffell's case. ibid. § 89. Leeds Bank v. Walker, 11 Q. B. D. 84. (ii) Loss. Hansard v. Conflans [*328] The loss of a written instrument only affects the rights *of the parties in so far as it may occasion a difficulty of proof; a but an exception to this rule exists in the case of bills of exchange and promissory notes. If 7 B. & C. 90. the holder of the instrument lose it, he loses his rights under it, unless he offer to the party primarily liable upon it an indemnity against possible claims.1 Quarry Co. v. Parker, L. R. 3 C. P. 1. (3) Bankruptcy. Bankruptcy. Bankruptcy effects a statutory release from debts and liabilities provable under the bankruptcy, when the bankrupt has obtained from the court an order of discharge.2 a Where the documents are proved to be lost, parol evidence may be given of the contents of a written acknowledgment of a debt barred by the Statute of Limitation (Haydon v. Williams, 7 Bing. 163). In the case of a memorandum under the Statute of Frauds the matter is not clear (Nichol v. Bestwick, 28 L. J. Exch. 4). 1 If the instrument is wilfully destroyed no action can be maintained. Blade v. Noland, 12 Wend. (N. Y.) 173, H. & W. 666. Cf. Steele v. Lord, 70 N. Y. 280. 2 A State bankruptcy discharge has no effect upon debts contracted prior to the passage of the statute. Sturges v. Crowninshield, 4 Wheat. (U. S.) 122, H. & W. 674. Nor upon the claims of foreign creditors unless the creditors become parties to the proceedings. Gilman v. Lockwood, 4 Wall. (U. S.) 409, H. & W. 683; Guernsey v. Wood, 130 Mass. 503, H. & W. 685. As to what claims are provable see Reed v. Pierce, 36 Me. 455, H. & W. 669. It is sufficient to call attention to this mode of discharge, without entering into a discussion as to the nature and effects of bankruptcy, or the provisions of the Bankuptcy 46 & 47 Vict. Act of 1883, or the amending Act of 1890. c. 52. When a man becomes bankrupt his property passes to his trustee, who can, as far as rights ex contractu are concerned (and we are not concerned with anything else), supra, p. 254. exercise the rights of the bankrupt, and can do what the bankrupt could not do, since he can repudiate contracts if they appear to be unprofitable. 46 & 47 Vict. Heather v. c. 52. § 28. Webb, 2 C. P. D. 1. When the bankrupt obtains an order of discharge he is discharged from all debts provable under the bankruptcy, whether or no they were proved, and even if the creditor was in ignorance of the bankruptcy proceedings. But this general discharge is subject to exceptions. The court may require that the bankrupt should consent to judgment being entered against him for debts unsatisfied at Sub-§. 6. the date of the discharge: and execution may be issued on such judgment with leave of the court. In no case is the bankrupt discharged from liability $30. incurred by fraud or fraudulent breach of trust exercised by him. Agency employ ment; PART VI. AGENCY. WHEN dealing with the operation of contract we had to note that although one man cannot by contract with another confer rights or impose liabilities upon a third, yet that one man might represent another, as being employed by him, for the purpose of bringing him into legal relations with a third. Employment for this pur pose is called agency. The subject of agency is interesting as a matter of legal history, as well as of practical importance, but we can only deal with it in outline here, in its relation to contract. English law, though it leaned strongly against the a form of assignment of contractual or other rights of action, found no difficulty in permitting the representation of one man by another for purposes of contract or for wrong. And it seems that this liability of one for the act or default of another springs universally from the contract of employment. The liability of the master for the negligence of his servant is the undesigned result of such a contract; the liability of the principal for the act of his agent is its designed or contemplated result. But the master is not liable for the act of his servant done outside the scope of his employment, nor the principal for the act of his agent done outside the limits of his authority. To discuss the law of master and servant from this point of view is out of place here, otherwise it might be a Writers on agency seem loth to recognize that agency is a form of employment. Yet in dealing with the principal's liability for the agent's wrong, they always introduce large selections from the law of master and servant. interesting *to inquire how far the doctrine of rep[*330] resentation in such cases is of modern origin. It may be that the form which the employer's liability has assumed in English law is an application to modern society of rules properly applicable to the relation of master and slave, where the master is liable for injury caused by that which is a part of his property. status. But agency for the purpose of creating contractual relations retains no trace in English law of its origin in Even where a man employs as his agent one who is incapable of entering into a contract with himself, as where he gives authority to his child, being an infant, the authority must be given, it is never inherent. There must be evidence of intention on the one side to confer, on the other to undertake, the authority given, though the person employed may, from defective status, be unable to sue or be sued on the contract of employment. necessity. From this rule we must, however, except that form of except agency known as 'agency of necessity,' a quasi-contract- agency of ual relation formed by the operation of rules of law upon the circumstances of the parties, and not by the agreement of the parties themselves. The rules which govern the relation of principal and Outline of agent fall into three chapters. 1. The mode in which the relation is formed. 2. The effects of the relation when formed; and here we have to consider (a) The contract of employment as between principal and agent. (B) The relations of the parties where the agent contracts for a principal whom he names. (7) The relations of the parties where the agent contracts as agent, but without disclosing the principal's name: or in his own name, without disclosing his principal's existence. 3. The mode in which the relation is brought to an end. subject. (1) Capacity of parties. (2) Formation of relation. (i) Employment. By offer of a promise CHAPTER I. The Mode in which the Relation of Principal and FULL contractual capacity is not necessary to enable a person to represent another so as to bring him into legal relations with a third. An infant can be an agent, although he could not incur liability under the contract of employment. But no one can appoint an agent who is not otherwise capable of entering into contracts.1 Employment for the purpose of agency is brought about like any other contract by offer and acceptance. (a) This may take the form of consideration executed upon request, or the offer of a promise for an act. Such are all cases of requests for services, which, even if grafor an act. tuitously rendered, entitle the person employed to an indemnity for loss, risk, or expense, and the employer to the exercise of reasonable diligence on the part of the employed. ante, p. 95. ante, p. 84. Care should be taken to distinguish a contract of this nature, which only comes into existence upon the rendering of the service demanded, from the anomalous contract of gratuitous employment, based on mutual promises, which becomes actionable when the service is entered upon. Lampleigh v. Braithwait is an illustration of the first, Wilkinson v. Coverdale of the second. But we must bear in mind that 'agency' is not co 1 On competency of agent see Lyon v. Kent, 45 Ala. 656. On competency of principal see Patterson v. Lippincott, 47 N. J. L. 457; ante, p. 131 note 2 (infants); Matthiessen &c. Co. v. McMahon's Adm'r, 38 N. J. L. 536 (insanity); Flesh v. Lindsay, 115 Mo. 1 (married women). See generally Huffcut on Agency, §§ 14-25. |