705. See the judgment in Rew V. Pettet, 1 Ad. & e. 196,

(m) M'Beath v. Haldimand, 1 T. R. 172. Unwin v. Wolseley, ibid. 764. Myrtle

V. Beaver, 1 East, 134.

* This rule received a learned examination in the case of Ivirkpatriek v. Stainer,

22 Wend. 244, Chancellor Walworth and Senator Verplanck delivering elaborate but

conflicting opinions. It was admitted on all sides to be inapplicable to the ease of a

principal and agent domiciled in different States of the Union. "The presumption

tliat credit was given exclusively to the agent, is not one," says Mr. Verplanck, " raised

by legal reason to be taken notice oi^ as of course, and applied to such contracts wher-

ever made, but one of special usage, or of local understanding. If the course of trade

and of credit is now so fixed and so imiversally recognized in England, as to have

become a rule of presumptive evidence — a legal inference from known public usage

to be applied without special proof of its existence — still I cannot regard it as being

necessarily a part of our own commercial law. It forms no part of the old common

law of England, nor is deduced from any settled doctrine or principle of that law,

otherwise than as a rule of presimiptive evidence of intention, growing out of posi-

tive and unvarying local commercial usage. If this presumption be now the law of

the English courts, without requiring evidence of usage in every case, it is founded

upon admitted general usage and understanding; but it is not law deduced from the

doctrines of the old common law, or resting upon reasons of natural equity, or uni

Versal public policy extrinsic to the local usage of trade, and applicable alike at

London or in New York. No usage or course of business analogous to that preva-

lent in England, being notorious or well established by former evidence as existing

here, and no proof having been offered of anj? special or local usage, or common un-

derstanding, charging the agent alone, and not his foreign principal, for purchases oi

contracts made avowedly for such known principal, the case must be governed by

the general law, as to the contracts of a private agent clothed with full authority,

and acting openly on behalf of his principal." Judge Story, in the last edition of

his Commentaries on Agency, noticing this case, still adheres to his original state-

ment, the accuracy of which had been questioned by I\Ir. Verplanck, in the course

of his opinion, that where the principal lives abroad, the law raises the presumption

of an exclusive credit having been given to the agent, liable, indeed, to be rebutted,

but which must prevail in the absence of any usage or contiact to the contrary; and

the rule, as it is stated by this eminent jurist, has been followed by the Supreme

Court of Louisiana. The Newcastle Manufacturing Co. v. Red River Railroad Co., 1

Robin. Louis. Rep. 145.

212 Mercantile persons.

Rights of third Parties against the Agent.

ception may extend to all 2^uUiG officers acting as such, (?i)* The

rule itself seems to be one of evidence, and all cases falling under

it to be reducible to the question, To ivhom was credit given ? For

it seems, on the one hand, that, if a party choose to give credit to

irresponsible persons of any description acting by their agent, and

it be manifestly intended that the agent's credit shall not be

pledged, in such a case the agent will not be responsible ; (o) while,

on the other hand, it is clear, that if the agent contract for an irre-

sponsible employer, a strong presumption will arise that he meant

to pledge his own credit, and that the party dealing with him meant

to accept it, unless indeed he be a government or public officer

acting in his public capacity. There is another possible case, viz.,

that of a man contracting as agent for a person from whom he has