(g) In Mechanics Bank v. N. Y. etc. R. Co. 3 Kernan, 632, it is said by Comstock, J., in giving the decision of the court of appeals, " There are in the books many loose expressions concerning the distinction between a general and a special agency. The distinction itself is highly unsatisfactory, and will be found quite insufficient to solve a great variety of cases. It is unprofitable to dwell upon that distinction."

(h) --------- v. Harrison, 12 Mod. 346;

Monk v. Clayton, Molloy, B. 2, ch. 10, § 27, cited per curiam, 10 Mod. 110; Em-mett v. Norton, 8 C & P. 506.

(i) Per Comstock, J., in Mechanics Bank v. N. Y. etc. R. Co. 3 Kernan, 599.

(k) Grant v. Norway, 10 C. B. 665. See post p. note 1."

(l) Hubbersty v. Ward, 8 Exch. 330.

(m) Coleman v. Riches, 16 C. B. 104. (n) Mechanics Bank v. N. Y. etc. R. Co. 3 Kernan, 599.

(o) Mussey v. Beecher, 3 Cush. 511.

and, certainly, care must be taken not to extend this principle too far. Thus, an agent may be authorized to give notes for his principal in order to raise money to be used in the business of the latter. A third person may inspect the power, advance the money in good faith, and the agent appropriate it to his own use; and this the agent may have intended at the time. In such a case, the principal would be responsible, not because the act of the agent appeared to be within the authority, but because the power actually included the transaction. A power given to an agent to borrow money, upon notes or otherwise, implies that the money may be paid to him, and so the whole transaction is strictly and literally authorized. The misappropriation of the proceeds by the agent is a mere breach of trust, relating to money in his hands, and upon the principles of trust, his intention to misappropriate would not affect an innocent party. But suppose the power to give the note is on its face conditional. It then has no existence until the condition has been actually fufilled. And if one advances money to the agent on his declaration that the conditions have been fulfilled, and it turns out that the conditions had not occurred on which the exercise of the power depended, then he was trusting to the representation of the agent, and must look to him alone. As the principal never authorized the transaction at all, he is bound neither by the contract nor by the representation. (p)1

(p) Per Comstock, J., in Mechanics Bank v. N. Y. etc. R. Co. 3 Kernan, 599.

See North River Bank v. Aymar, 3 Hill, 262.

1 In one class of cases, the rule as stated in the text is held, in some jurisdictions at least, to be subject to a qualification. This is well expressed by the New York Court of Appeals, in giving judgment in a recent case, as follows: " It is a settled doctrine of the law of agency in this State that where the principal has clothed his agent with power to do an act upon the existence of some extrinsic fact necessarily and peculiarly within the knowledge of the agent, and of the existence of which the act of executing the power is itself a representation, a third person dealing with such agent in entire good faith, pursuant to the apparent power, may rely upon the representation, and the principal is estopped from denying its truth to his prejudice." Bank of Batavia v. New York, etc. R. R. Co. 106 N. Y. 195, 197

In this case it was held that a carrier was liable upon a bill of lading issued by its agent and transferred for value by the shipper to the plaintiff, though the goods described in the bill of lading had never been in fact received, and though the agent had authority only to issue bills of lading upon receipt of goods.

Cases of this nature afford perhaps the most frequent illustration of the rule under consideration. In accordance with the case just cited it has been held that the carrier is liable on such a bill of lading in Wichita Savings Bank v. Atchison, etc. R. R. Co. 20 Kan. 519; Sioux City, etc. R. R. Co. v. First Nat. Bank, 10 Neb. 556; Armour v. Michigan Central R. R. Co. 65 N. Y 111; Brooke v New York, etc. R. R. Co. 108 Pa. 529. On the other hand it has been held that the carrier is not liable even to a holder for value of such a bill of lading, in Grant v. Norway, 10 C. B. 665; The Freeman v. Buckingham, 18 How. 182; Pollard v. Vinton, 105 U. S. 7; The Loon, 7 Blatch. 244; Robinson v. Memphis, etc. R. R. Co. 9 Fed. Rep. 129; Hunt v. Mississippi Central R. R. Co. 29 La. An. 446; Baltimore, etc. R. R. Co. v. Wilkens, 44 Md. 11; Louisiana

It has been held that " a general and special agent to transact * all manner of business," though created by a power of attorney under seal, does not necessarily include therein authority to sell. Such a power is regarded as a vague and indefinite instrument, under which a prudent man would not accept a title to property. (q)

For the power of the agent to submit questions in which his principal is interested, to arbitration, see the section on Arbitration in the second volume.