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of the principal entirely; as where he is employed to sell goods, and receives a del credere commission, for which he engages to guaranty the payment to the principal, it is not the practice to communicate the names of the purchasers to the principal, except where the factor fails. Under these circumstances, the following points have been settled. 1. When the factor fails, the principal is the creditor of the buyer, and has a direct action against him for the price. Cook's B. L. 400; and vide Bull. N. P. 42; 2 Stra. 1182. But persons contracting with the factor in his own name, and bona fide, are entitled to set off the factor's debt to them. 7 T. R. 360.—2. Where the factor is entrusted with the money or property of his principal to buy stock, bills, and the like, and misapplies it, the produce will be the principal's, if clearly distinguishable. 3 M. & S. 562.
6. When the factor purchases goods for behoof of his principal, but on his own general current account, without mention of the principal, the goods vest in the factor, and the principal has only an obligation against the factor's estate. But when the factor, after purchasing the goods, writes to his principal that he has bought such a quantity of goods in consequence of his order, and that they are lying in his warehouse, or elsewhere, the property would seem to be vested in the principal.
It may, therefore, be laid down as a general rule, that when the property remitted by the principal, or acquired for him by his order, is found distinguishable in the hands of the factor, capable of being traced by a clear and connected chain of identity, in no one link of it degenerating from a specific trust into a general debt, the creditors of the factor, who has become bankrupt, have no right to the specific property. Much discrimination is requisite in the application of
this doctrine, as may be seen by the case of Ex parte Sayers, 5 Ves. jr. 169.
A factor has no right to barter the goods of his principal, nor to pledge them for the purpose of raising money for himself, or to secure a debt he may owe. But he may pledge them for advances made to his principal, or for the purpose of raising money for him, or in order to re-imburse himself to the amount of his own lien. 2 Kent, Com. (3d ed.) 625 to 628; 4 John. R. 103; Story on Bailm. § 325, 326, 327. Another exception to the general rule that a factor cannot pledge the goods of his principal, is, that he may raise money by pledging the goods, for the payment of duties, or any other charge or purpose allowed or justified by the usages of trade. 2 Gall. 13; OSerg. & Rawle, 386; Paley on Ag. 217; 3 Esp. R. 182.
The legislature of Pennsylvania, by an act entitled "An act for the amendment of the law relating to factors," passed April 14, 1834, have made the following provisions. This act is here inserted with a belief that it will be found useful to the commercial lawyer of the other states.
§ 1. Whenever, any person intrusted with merchandise, and having authority to sell or consign the same, shall ship or otherwise transmit the same to any other person, such other person shall have a lien thereon—
I. For any money advanced, or negotiable security given by him on the faith of such consignment, to or for the use of the person in whose name such merchandise was shipped or transmitted.
II. For any money or negotiable security received for the use of such consignee by the person in whose name such merchandise was shipped or transmitted.
§ 2. But such lien shall not exist for any of the purposes aforesaid, if such consignee shall have notice by the bill of lading or otherwise, before the time of such advance or receipt, that the person in whose name such merchandise was shipped or transmitted, is not the actual owner thereof.
§ 3. Whenever any consignee or factor, having possession of merchandise, with authority to sell the same, or having possession of any bill of lading, permit, certificate, receipt or order, for the delivery of merchandise, with the like authority, shall deposit or pledge such merchandise or any part thereof, with any other person, as a security for any money advanced or negotiable instrument given by him on the faith thereof; such other person shall acquire by virtue of such contract, the same interest in and authority over the said merchandise, as he would have acquired thereby if such consignee or factor had been the actual owner thereof; Provided, That such person shall not have notice by such document or otherwise before the time of such advance or receipt, that the holder of such merchandise or document is not the actual owner of such merchandise.
§ 4. If any person shall accept or take such merchandise or document from any such consignee or factor, in deposit or pledge for any debt or demand previously due by or existing against such consignee or factor, and without notice as aforesaid, and if any person shall accept or take such merchandise or document from any such consignee or factor in deposit or pledge, without notice or knowledge that the person making such deposit or pledge, is a consignee or factor only, in every such case the person accepting or taking such merchandise or document in deposit or pledge, shall acquire the same
right and interest in such merchandise as was possessed or could have been enforced by such consignee or factor against his principal at the time of making such deposit or on pledge, and further or other right or interest.
§ 5. Nothing in this act contained shall be construed or taken—
I. To affect any lien which a consignee or factor may possess at law, for the expenses and charges attending the shipment or transmission and care of merchandise consigned, or otherwise intrusted to him.
II. Nor to prevent the actual owner of merchandise from recovering the same from such consignee or factor, before the same shall have been deposited or pledged as aforesaid, or from the assignees or trustees of such consignee or factor, in the event of his insolvency.
III. Nor to prevent such owner from recovering any merchandise so as aforesaid deposited or pledged, upon tender of the money, or of restoration of any negotiable instrument so advanced, or given to such consignee or factor, and upon tender of such further sum of money, or of restoration of such other negotiable instrument, if any, as may have been advanced or given by such consignee or factor to such owner, or on tender of a sum of money equal to the amount of such instrument.
IV. Nor to prevent such owner from recovering, from the person accepting or taking such merchandise in deposit or pledge, any balance or sum of money remaining in his hands as the produce of the sale of such merchandise, after deducting thereout the amount of money or the negotiable instrument so advanced or given upon the security thereof as aforesaid.
§ 6. If any consignee or factor shall deposite or pledge any merchandise or document as aforesaid, consigned or intrusted to him as a security for any money borrowed, or negotiable instrument received by such consignee or factor, and shall apply and dispose of the same to his own use, in violation of good faith, and with intent to defraud the owner of such merchandise, and if any consignee or factor shall with the like fraudulent intent, apply or dispose of to his own use any money or negotiable instrument, raised or acquired by the sale or other disposition of such merchandise, such consignee or factor shall, in every such case, be deemed guilty of a misdemeanor, and shall be punished by a fine not exceeding two thousand dollars, and by imprisonment for a term not exceeding five years.
FACTORAGE, the wages or allowances paid to a factor for his services; it is more usual to call this commissions.
FACTORY, Scotch law, is a contract which partakes of a mandate and locatio operandum, and which is in the English and American law books discussed under the title of Principal and Agent. 1 Bell's Com. 259.
FACTUM, a deed; a man's own act and deed. When a man denies by his plea that he made a deed on which he is sued, he pleads non est factum, (q v.) Vide Deed; Fait.
FACTUM, French law, is a memoir which contains summarily the fact on which a contest has happened, the means on which a party founds his pretensions, with the refutation of the means of the adverse party. Vide Brief.
FACULTY, canon law. A Li- cense; an authority. For example, the ordinary having the disposal of all seats in the nave of a church, may grant this power, which when it is delegated, is called a faculty, to another. Faculties are of two kinds; first, when the grant is to a man and
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his heirs in gross; secondly, when it is to a person and his heirs, as appurtenant to a house which he holds in the parish. 1 T. R. 429, 432; 12 Co. R. 106.
FACULTY, Scotch law, is equivalent to ability or power. The term faculty is more properly applied to a power founded on the consent of the party from whom it springs, and not founded on property. Kamcs on Eq. 504.
FAILURE. A suspension of payment; a neglect to fulfil commercial pecuniary engagements. According to the French code of commerce, art. 437, every merchant or trader, who suspends payment, is in a state of failure. Vide Bankruptcy; Insolvency.
FAILURE, commercial law, signifies the situation of a debtor who finds himself in the impossibility of paying his debts. Louis. Code, art. 3522, No. 15. See Bankrupt; Insolvency; Insolvent.
FAILURE OF RECORD, pleading, practice. When a record is pleaded, and the plaintiff replies nul del record, upon which the defendant has a day assigned to produce it, if he fail to do it, then he is said to fail of record, and the plaintiff shall have judgment to recover. T. de la Ley.
FAIR. A privileged market. In England fairs are granted by the king's patent. In the United States fairs are almost unknown. They are recognised in Alabama. Aik. Dig. 409, note; and in North Carolina, where they are regulated by statute. I N. C. Rev. St. 282. See Domat, Dr. Public, liv. 1, t. 7, s. 3, n. 1.
FAIR PLAY MEN. About the year 1769, there was a tract of country in Pennsylvania, situate between Lycoming creek and Pine creek, in which the proprietaries prohibited the making of surveys, as it was doubtful • whether it had or had not been ceded
by the Indians; although settlements there were forbidden, yet adventurers settled themselves there; being without the pale of ordinary authorities, the inhabitants annually elected a tribunal, in rotation, of three of their number whom they denominated fair play men, who had authority to decide all disputes as to boundaries. Their decisions were final and enforced by the whole community en masse. Their decisions are said to have been just and equitable. 2 Smith's Laws ofPenn. 195; Serg. Land Laws, 77.
FAIR PLEADER. Vide Beau Pleader.
FAIT, conveyancing, a deed lawfully executed. Com. Dig. h. t.; Cunn. Diet. h. t.
FAITH. Probity; good faith is the very soul of contracts. Faith also signifies confidence, belief; as, full faith and credit ought to be given to the acts of a magistrate while acting within his jurisdiction. Vide Bona fide.
FALCIDIAN LAW, civil law, is e plebecist made during the reign of Augustus, on the proposition of Falcidius, who was a tribune in the year of Rome, 714. Its principal provision gave power to fathers of families to bequeath three-fourths of their property, but deprived them of the power to, give away the other fourth, which was to descend to the heir. The same rule, somewhat modified has been adopted in Louisiana; "donations inter vivos or mortis causa," says the Civil Code, art. 1480, "cannot exceed two-thirds of the property of the disposer, if he leaves at his decease, a legitimate child; one-half, if he leaves two children ; and one-third, if he leaves three or a greater number."
FALSE IMPRISONMENT,^*. Any intentional detention of the person of another, not authorised by law, is false imprisonment. It is any illegal imprisonment, withoutany process
whatever, or under colour of process wholly illegal, without regard to any question whether any crime has been committed or a debt due. 1 Chit. Pr. 48. The remedy is, in order to be restored to liberty, by writ of habeas corpus; and to recover damages for the injury, by action of trespass vi et armis. To punish the wrong done to the public, by the false imprisonment of an individual, the offender may be indicted. 4 Bl. Com. 218, 219; 2 Burr. 993. Vide Bac. Ab. Trespass, D 3 ; Dane's Ab. Index, h. t. Vide Malicious Prosecution; Regular and Irregular Process.
FALSE JUDGMENT, Eng. law. The name of a writ which lies when a false judgment has been given in the county court, court baron, or other courts not of record. F. N. B. 17, 18.
FALSE PRETENCES, criminal law, false representations and statements made with a fraudulent design to obtain " money, goods, wares and merchandise," with intent to cheat. This subject may be considered under the following heads: 1. The nature of the false pretence; 2, what must be obtained; 3, the intent.
1. When the false pretence is such as to impose upon a person of ordinary caution, it will doubtless be sufficient. II Wend. R. 557; but although it may be difficult to restrain false pretences to such as an ordinarily prudent man may avoid, yet it is not every absurd or irrational pretence which will be sufficient. 2 East, P. C. 828. It is not necessary that all the pretences should be false, if one of them, per se, is sufficient to constitute the offence. 14 Wend. R. 547. And although other circumstances may have induced the credit, or the delivery of the property, yet it will be sufficient if the false pretences had such an influence that without them, the credit would not have been given or the property delivered. 11' Wend. R. 557; 14 Wend. R. 547; 13 Wend. Rep. 87. The false pretences must have been used before the contract was completed. 14 Wend. Rep. 546; 13 Wend. Rep. 311. In North Carolina, the cheat must be effected by means of some token or false contrivance adapted to impose on an ordinary mind. 3 Hawks, R. 620; 4 Pick."R. 178.
2. The wording of the statutes of the several states on this subject is not the same, as to the acts which are indictable. In Massachusetts, the intent must be to obtain "money, goods, wares, merchandise, or other things." Stat. of 1815, c. 136. In New York, the words are "money, goods, or chattels, or other effects." Under this statute it has been holden that obtaining a signature to a note, 13 Wend. R. 87, or an indorsement on a promissory note, 9 Wend. Rep. 190, fell within the spirit of the statute; and that where credit was obtained by false pretence, it was also within the statute. 12 John. R. 292.
3. There must be an intent to cheat or defraud some person. Rugs. & Ry. 317; 1 Stark. Rep. 396. This may be inferred from a false representation. 13 Wend. R. 87. The intent is all that is requisite; it is not necessary that the party defrauded should sustain any loss. 11 Wend. R 18
FALSE TOKEN. Vide Token, and 2 Stark. Ev. 563.
FALSEHOOD is a wilful act or declaration contrary to truth. It is committed either by the wilful act of the party, or by dissimulation, or by words. It is wilful when the owner of a thing sells it twice, by different contracts to different individuals, unknown to them; for in this the seller must wilfully declare the thing is his own, when he knows that is not so. It is committed by dissimulation when a creditor has an
understanding with his former debtor, sells the land of the latter, although he has been paid the debt which was due to him. Falsehood by word is committed when a witness swears to what he knows not to be true. Falsehood is usually attendant on Crime. Roscoe, Cr. Ev. 363. A slander must be false to entitle the plaintiff to recover damages. But whether a libel be true or false the writer or publisher may be indicted for it. Bui. N. P. 9; Selw. N. P. 1047, note 6; 5 Co. 125; Hawk. B. 1, c. 73, s. 6. Vide Dig. 48, 10, 31; lb. 22, 6, 2; Code, 9, 22, 20. It is a general rule that if a witness testifies falsely as to any one material fact, the whole of his testimony must be rejected; but still the jury may consider whether the wrong statement be of such character, as to entitle the witness to be believed in other respects. 5 Shipl. R. 267.
TO FALSIFY, is to prove a thing u„ r„i„„ . ii i» c_i~:r.. ^-j »
to be false; as, " to falsify a record," Tech. Diet.; Co. Litt. 104 b. To alter or make false a record. This is punishable at common law. Vide Forgery. By the act of congress of April 30, 1790, s. 15, 1 Story's L. U. S. 86, it is enacted, that if any person shall feloniously steal, take away, alter, falsify, or otherwise avoid, any record, writ, process, or other proceedings in any of the courts of the United States, by means whereof any judgment shall be reversed, made void, or not take effect, or if any person shall acknowledge, or procure to be acknowledged, in any of the courts aforesaid, any recognizance, bail, or judgment, in the name or names of any other person or persons not privy or consenting to the same, every such person, or persons, on conviction thereof, shall be fined not exceeding five thousand dollars, or be imprisoned not exceeding seven years, and be whipped not exceeding thirty-nine stripes. Pro