Art. 1. stances of suspicion appear against the drawers sufficient to I. CH. 30. put a man of ordinary prudence on his guard, he will be accountable: 4. If the bill be drawn by partners, he must show the good credit of each, and all of them: 5. A factor need not obey instructions to remit, unless good bills can be obtained, and he must follow literally limited powers: 6. When directed to draw on a good house, he must, at his peril, see the drawee is in good credit: 7. A del credere commission is where a factor for a premium (one and one-fourth in this case) beyond his usual commission for sale, becomes bound to pay the price in all events: 8. As to the actual vendee, the factor is the sole owner of the goods and may set off: 9. The guarantee makes the only difference there is between the common factor and one del credere: 10. A factor is not bound to pay till payment is due: 11. The guaranty of the sale does not imply a guaranty of the remittance. The factor del credere retains his ordinary character as to the remittance: 12. The guaranty of remittance depends on the general principle that a note or bill does not pay a prior debt, unless it prove good: 13. The owner, before payment, may resort to the actual vendee, as the collateral security of the factor, and may stop the payment to the factor. Here is a summary of most of the principal duties and powers of both kind of factors. Judgment for the plt. for the amount of the bills. 2. A factor may sue for goods sold by him, and payment ART. 3. to him is valid if not forbidden by the principal. Gerard v. Con. Taggart, 5 Serg. & R. 27, 29. 3. How merchants may make themselves factors and liable, &c. as where the plt. a merchant in New York consigned goods to the master of a vessel bound to the Havana for sale; the master, when he arrived there, delivered the goods to the defts., there commission merchants, for sale. Held, as he had no power to pledge them for his own account, the defts. by receiving them, knowing they were the goods, became substituted, as factors and agents, in the master's place, and accountable for the proceeds of the goods to the plt., and could not retain them for any advances made by them to the Buckley v. master, or for the balance of account arising from transactions Packard, 20 between him and them. Johns. R. 421. Same principle, 1 Mason, 440; and if he do, the principal, ART. 7. after demand and refusal, may maintain trover against the Con. pawnee; and he has, by the general law, the personal id. security of the owner as well as a lien on the goods, for his advances; but by contract he may waive his right to personal responsibility. 1 Mason, 9, Peisch v. Dickson, and 1 Mc Cord, 1. I. CH. 30. Crenshaw. He cannot pledge his principal's goods. 3 Barn. & Cres. 342. 1 con. Same principle, 3 Mason, 232-242, Thompson v. Perkins & al.: the factor had a del credere commission. See a. 11. s. 4 ; a. 8. s. 5. The principal recovered: many cases cited. The court stated the true and general principle, that is, the principal is entitled to recover wherever he can trace his own property and distinguish it, or its proceeds, from the mass of the property of the factor;' as if sold and notes taken and these can be specifically ascertained. Denston v. Perkins and another, 2 Pick. 86, and 5 Pick. 7-10, the same principle; and even if my factor sell my goods to A on credit, and in his books charges A the price, and my factor fail and assign to trustees, and I join in the assignment as a creditor, and the trustees receive A's debt, I can recover the amount of them if I can trace my goods, my factor's book charges of goods sold to A, and his payment therefor to the trustees. ART. 9. § 12. Assumpsit for monies advanced by a factor or comCon. mission merchant, in New York, for account of his principal, 4 Cowen, 250- in Virginia. Held, the payment of a balance of account by 253, Oakley v. the factor to his principal after the sales made, and for the purpose of closing the accounts between them, was an assumption of the outstanding debts; and therefore the principal was no longer accountable or bound to refund advances, though the debtors finally failed to pay for the goods sold by the factor the proceeds whereof were looked to for reimbursement; and 1 Pick. 343, 344; 3 Johns. Ch. R. 600, Consequa v. Fanning; Simpson v. Swan, 3 Campb. R. 291. But 5 Cowen, 473, to hold the factor, as in the case of Oakley v. Crenshaw, a clear intention must appear to assume the debt by the factor. Bell and oth- 13. A factor, or consignee, advancing on the goods his ers v. Palmer principal consigns to their value or more, is yet bound to obey & al. 6 Cowen, his instructions as to the time of sale, though there be no 475. 129, 135. Corlier & al. v. 188. agreement to that effect; and if instructed to sell immediately, and he refuses the first offer, expecting a better price, then sells for less than the offer, he is liable, though he act in perfect good faith. The principals were liable for the monies advanced by the factors, and still had a right to direct the sales. Sundry cases cited. § 14. Assumpsit. The plts. being factors in Philadelphia, the deft. left with them in the fall of 1820, &c. a quantity of Cowen, 181, cheese to sell on commission. December, 1820, the plts. advanced to the deft. $900 on the cheese. In March, 1821, the plts. sold of this cheese, and also of the cheese of onc Brown, to one Kellogg, on ninety days credit, and took his note for all payable to himself. Held, 1. This did not per se make the factors liable to their principals: 2. The note did not Con. extinguish the demand for the goods, but left each principal to I. CH. 30. bis usual remedy: 3. Nor did the factors by changing this Art. 9. note for two others drawn by one Dickson, and endorsed by Kellogg for part of the sum due to Cumming, and Kellogg's sole note for the residue, make themselves liable, for they still retained the vendee's name : 4. A factor's advancing money and having goods in his hands, is not confined to the goods for his remedy; but he gives a joint credit to the goods and to the person of his principal; but he must first resort to the goods, if they can be made available on them he has a lien. Factors sued to recover back the monies they advanced. Verdict was for Cumming the deft., on the ground the plts. took one note for the cheese of two distinct owners, so improperly blended his property with that of another. The court thought otherwise, and granted a new trial. The counsel cited numerous cases: the court only 1 Gall. 360; Cowp. 255; 5 Johns. 68; 7 Mass. R. 36. 182, Greely v. 4 con. A consigns goods to B, his factor, to sell general- Art. 11. ly. He sells on credit to a merchant in good credit, and takes Con. a note to himself; before payable the merchant fails, the loss is! Greenl 172, the principal's. 2. If A draw on B before the goods be sold, Bartlett. and B, to raise money to meet A's bills, sells his goods on credit to C, and takes his note payable to B; this he endorses and sells for money, and C fails before the note is payable; B, the factor, pays the endorsee. B may recover against A his principal. The factor had power to sell as he thought proper,' and to use his own judgment,' and as he exercised it fairly, his sale was authorised by the principal and so bound him. 145, 153, § 16. The liability of factors and consignees, &c. to their principals. Assumpsit on a promise to account for sundry goods, sent by the plt. a merchant of Boston, to the defts. com- 17 Mass. R. mission merchants in Philadelphia, to be sold on the plts. ac- Clark v. count. One of the partners died, and a question of accounta- Moody & al. bility arose; the survivor sent on an account, showing a small balance due to the plt. who sued for it before he made any demand; and the question was if his right of action had accrued; he argued it had. The deft. said the relation of the parties was not that of debtor and creditor, but that of principal and agent, and the debtors have been ready to pay the balance when called upon. The court seemed to be of opinion, if the plt. gave no special orders, and they were guilty of no fault, but sold the goods and rendered an account in due season, that their contract was to account, and they ought not to be held to remit the balance at their risk, and they cannot remit at the plts. risk, but in compliance with his instructions, and in this case the defts. wrote they held the balance subject to the plts. order-cause referred back to the referees. See also 17 Mass. R. 103–109. I. CH. 30. Other cases belonging to sect. 9, 10 and 11, this article to wit, 3 Art. 11. Johns. Ch. R. 67; 6 Taunt. 110-295; 1 Dow. 274; 2 Campb. Con. 545; 4 id. 171. 5 Pick. 389, § 17. The plt. employed the deft. to sell lands; he sold and took a promissory note for part of the pay, when he might have Hemenway received the money. When required to pay over the proceeds, said he knew nothing of the matter. Held, the jury might find he unreasonably delayed to pay them over, though the action was commenced before he had collected the note. Hemenway. 1 Pick. R. 33, 37. 1 N. H. Rep. Coos Bank. CHAPTER XXXI. FEES. § 5 con. Held, the statutes of Massachusetts 1817 c. 131, and 1818 c. 118, denying the benefit of law to physicians, to recover their fees, when not duly licensed, extends to those residing out of the State, as to their services rendered within it. § 33. The plt. in an action is liable to the sheriff for the serEast- vice of the writ. He may recover for the storage of property taken on mesne process, and interest may be taxed on money paid and expended for the purpose; but he cannot recover an extra charge for making the return on the writ-was assumpsit by a deputy sheriff employed by one Crane, agent of the Bank, and 4 Binney, 170. CHAPTER XXXII. FRAUD. ᎪᎡᎢ 1. 207, Smith v. Lane & al. 1 Jacob § 2, 3 and 4 con. But in equity, if a person by fraud, be prevented doing an act, it is considered as if done. and W. 94; 4 Harris and McHenry, 398. § 9 con. A conveyed his life estate in his wife's land to her 3 Rich. 205-father, who afterwards being insolvent, conveyed it to the wife to prevent his creditors taking it; one of them levied on the land. Held, parol evidence was not admissible to prove the father held in trust for the wife, so his conveyance to her was fraudulent. The wife gave her father her note for $20, and knew he was embarrassed. She remained in possession till the extent of the execution, and after the deed to her. 2 Rand. 334, 400. 1Greenl. 298-302. A voluntary conveyance of property to children, when the donor is largely in debt, is void against creditors in equity, who have established their demands at law or want of property to pay their debts, by some regular evidence. A fraudulent purchaser of A's goods has no right to object to the officer's proceedings, who seizes and sells them on an execution against A, though those proceedings be irregular. Art. 1. 3 Cowen, 166, 16 con. Dryer, the tenant of a tavern and farm, owned I. CH. 32. by Hopkins, the landlord, being justly indebted to him for rent, he gave him a mortgage of a mare, horned cattle, hogs, hay and household furniture then on the place and necessary for the usual management of it. This mortgage was publicly given Bissell v. Hopand known, when persons applied to Dryer, the tenant, to buy the kins, in error, mare, &c., he told them she was Hopkins's. And Bissell, know- 206. ing the true state of the case, and being a creditor, got judgment against Dryer and execution, and thereon the officer sold the mare and Bissell bought her. Trover for her was brought by Hopkins against Bissell; special verdict and judgment below for Hopkins. Bissell brought his writ of error, and judgment was affirmed. Held, 1. The possession of goods remaining in the vendor after the sale, is not conclusive, but only prima faice evidence of fraud as to creditors, and may be explained: 2. It is a sufficient explanation, the sale was bona fide, and for a valuable consideration, and that the possession of the vendor was in pursuance of some agreement not inconsistent with honesty in the transaction, as where a tenant sells oxen to his landlord in payment of rent upon an agreement the tenant retain them to work the farm, so where Dryer mortgaged the mare, &c. as above. Pages 189 to 206 are numerous cases cited in the reporter's notes. v. Williams. 17 con. Replevin for a vessel: plea property in one Long, 1 Pick. R. 288 and not in the plt. and issue. Long owned the vessel, and Oct. 297, Bartlett 27, 1819, gave a bill of sale of her to the plt. but made no formal delivery; the plt. at the same time, gave to Long a memorandum in writing, acknowledging the receipt of the bill of sale, as security for the payment of $2699 14 cts, for which he held Long's note, and agreeing to give up the bill of sale on the payment of that sum, and interest. About June 10, 1820, the plt. demanded pay of the note, and Long being unable to pay, the plt. took possession of the vessel. July 3, one Donnels caused her to be attached by the deft., deputy sheriff, as the property of Long: the plt. brought replevin, and afterwards sold the vessel for $1000, judgment for the plt. Held, 2. There was no usury, though the plt. took 2 1-2 per cent. commission for selling the vessel, and though not sold. The jury having_found the commission was not taken as a cover for usury: 3. Taking the interest at the time of the loan is not conclusive evidence of usury. Numerous cases were cited, near all cited in this work, and many of them in this chapter, so need not here be repeated. Homer & al. If A mortgage his machines in a manufactory to B, and after-2 Pick. R. 607, wards, remain in possession, this is only prima facie evidence of. Crane. fraud, which may be rebutted by evidence, showing the transaction was a fair one. About 40 cases cited pro and con; judg |