containing all the orders verbatim from first to last. If the estate sold be not sufficient to pay all the debts, the surrogate assigns to each creditor his proportion as in cases of insolvency, after several months' delay, occupied by proceedings as prolix and expensive as those above stated in this article. But as dilatory and expensive as these proceedings, in selling the real estate, or in leasing or mortgaging it to raise monies in certain cases where minors are interested, are, the security found in such proceedings may more than balance the evils arising from such delay and expense. 9. It will be observed, that these proceedings in New York in the cases of executors and administrators, are founded on statutes of that state principally, and are to be considered in connexion with the common law there in force on these subjects, which common law is largely stated in the preceding articles in this chapter, and in chapter 149, in which probate bond and many probate matters are considered. This portion of the common law, with many New York decisions as to executors and adininistrators stated in this work, with said statute matters, will afford a pretty full view of the law of New York in relation to the powers and duties of executors and administrators, and suits and proceedings by and against them. These proceedings valuable in principle, but in form prolix, may easily be shortened by avoiding numerous repetitions in almost every paper, the less necessary as almost every part becomes a matter of record. See the Laws of Maine as to Executors, Administrators, and Guardians, Ch. 51 and 52, pp. 159 to 197. CH. 30. Art. 1. CHAPTER XXX. ASSUMPSIT BY AND AGAINST FACTORS. Mer. 81, 82, ART. 1. § 1. A factor is created by merchants' letters, and 2 Mod. 100.has a salary or factorage, and must answer a loss incurred by Mal. Lex. his exceeding his commission; as by shipping goods to a s3.-1 Ves. wrong port, selling below the price ordered, or buying above, 510.-Eq. Ca. &c. §2. A factor's rights and duties, or powers and obligations, result not only from the principles of contracts in general, but from his peculiar trust and situation in commerce. sell perishable articles without instructions. He may Abr. 369- Сн. 30. Jones 145.- 130.-Imp. Bul. N. P. 130, Gonsales 3. A factor is not liable in all events, as a carrier is; but is liable on the principles of bailment, before stated, in general; therefore, he is not liable when robbed, if he do the best in his power; and such is his interest, he is a witness for either party to prove the contract, though he has 1s. in the pound on the sales. He is a mere go-between. An agent for collecting debts merely, is not one within the Virginia limitations act. 3 Cranch 454. §4. The nature of a factor's contracts. If my factor bev. Sladen.yond sea, buy goods for me, assumpsit lies against him, and if 2 Stra. 1182. he sell my goods, he may have assumpsit in his own name; for -1 Esp. 107, the credit will be presumed to be given to him, and the promise made by him, and the rather, as it is so much for the benefit of trade. His implied powers considered, 13 Mass. R. 178, 182. 1 East 48, 53. 1 Esp. 108, Milward. 5. By a general rule of law, however, his sale creates a contract, between me and the buyer. Hence, if a factor sell for payment at a future day, and the owner give notice to the buyer to pay him, and not the factor, the buyer cannot, after this, pay the factor. This rule may not hold if the factor sell at his own risk, and so is liable to the owner, though the buyer never pay; "for in such case he is debtor to the owner, and not the buyer :" but this last position has been questioned since, and on the whole overruled. § 6. For where in June, 1783, a cargo of wheat was con109, Escot v. signed from Ostend to the plts., and they employed one Far rer, as their factor, to sell it; it was proved that factors in this trade have a del credere commission, besides factorage, and never, except the factor fails, make the buyer's name known to the owners. June 9, Farrer sold two hundred quarters of this wheat to the deft. June 16, Farrer delivered to the plts. the wheat not sold, and the names of those who bought the rest; among others, the deft. Milward's name. June 20, Farrer failed. The deft. claimed a right to off-set with Farrer, but judgment was for the plts. See 2 Stra. 182. 3 Wils. 73. v. Saunders. 7. In this case it was decided, that every consignment to 94, Godfrey two factors jointly, imports the consignor's assent for them to trust each other, with all the goods; but both are accountable for the whole, and joint factors are as co-obligors, and answerable for one another for the whole. 2 Selw. 718, 719.-Willes 109. 8. A factor, to act faithfully, must do with his principal's 406-1 Esp. goods and debts, as a prudent man would do with his own; and he is a factor del credere, when he guarantees the credit of the buyer; and he may sell on credit, though not specially authorized by his commission, when according to the usage of trade in the place. 2 W. Bl. 1154, Tinch v. ART. 2. His lien. 1. A factor has a lien on goods consignWalker, cited 1 Esp. 109.-1 Burr. 493.-2 East 227.-3 D. & E. 119, 123. See Lien. ed to him, for his own demands. And when goods consigned to him remain in specie, they are not subject to his bankruptcy. So if a bill be remitted to him for a special purpose, and be not disposed of or paid away, when he becomes a bankrupt, it will be considered as the principal's, and by him recoverable in assumpsit, but subject to the factor's lien; but he must have actual possession. CH. 30. Art. 2. Foxcraft & vonshire, cit 2. In this case assumpsit was brought by the plts. for mon- 2 Burr. 931, ey had and received by the defts. The plts. were assignees al. assignees of the bankrupt. The defts. were his factors. He consigned of S. a bankgoods to them, which as his factors they sold, and the proceeds rupt v. Dein their hands were £5314. 17s. 9d.; they paid several sums ed 2 Mor. to his order, and on his account. All these transactions took 275 to 292. place between his committing several secret acts of bankruptcy, in December, 1751, (after which he appeared abroad as usual) and his stopping payment, August, 1752. Lord Mansfield and the court said, a factor has a lien for commissions and expenses. "So on goods consinged, while they remain in his possession, for the items of general account with his principal;" but here the goods have been sold and turned into money. § 3. If a creditor knows a trader is likely to break, and conceals it, and secures his own debt, even by threats of legal process, the law says this is no fraud. If a factor knows the circumstances of his principal to be desperate, and advances money on his bills to save him from immediate failure, it is no fraud, but a meritorious act; none but the lender can suffer by it. And if the factor trust to the arrival of goods to reimburse him, it is prudent, but no fraud. It is a paradox to say a man is guilty of a fraud, who lends his money, only with a prospect of being repaid. Men every where lend their money to traders on mortgages, consignments, and securities; because they suspect their circumstances, and will not run the risk of the general credit. A new trial was granted on the ground the defts. had a lien, not only for their commissions and charges on the sale, but for their said advances. 2 W. Bl. 1072. Maber v. 4. If a bill be drawn on a factor, and payable out of goods in his hands, after paying prior acceptances, and this bill Massias. is accepted by him generally, he must pay it, though there be a balance due to him, in a running account with his principal. By his special promise he gives up his lien. 8. 5. This idea that a factor has a lien on goods while in his Sec post, art. possession, has been extended even to the proceeds of them, and any action by him, or against him, may be affected accordingly. Cowp. 254. 4 Burr. 2214, 6. In this case it was decided that a dyer not acting as a Green v. Far VOL. L mer. Same, W. B. 651.—-6 T. R. 258. Walker v. Birch. CH. 30. factor, but merely as a manufacturer, has a lien only for dying Art. 3. the same goods, and not for other debts. If A deposit goods with B for sale, and B promises to pay the proceeds to A when sold, B has no lien on them, if not sold, for his balance of his general account, arising from other articles; for he deprives himself of this lien by his special promises to pay over the proceeds. 3 T. R. 119. ART. 3. Assumpsit by and against a factor; goods in transi783, Kinloch tu, &c. § 1. In this case Steine, the bankrupt, in Scotland, sent & al. assign- a cargo of spirit thence to London by sea, to Sandiman & Co. ees of Sandeman, . Craig. in the course of his trade with them, and drew bills on them which they accepted, in confidence of receiving the cargo. They had £1200 a year in lieu of commission, and one fourth per cent. commissions, and five per cent. for monies advanced; bills of lading were sometimes sent, but more generally, not. When the said cargo arrived, Sandiman & Co. were under acceptances for £29,000, on account of Steine, £1200 whereof was for this very cargo; before which time they had received the bills of this cargo, unendorsed, and an invoice of the goods; and February 15, 1788, had insured the cargo in their own names, and at their own expense. This ship arrived February 21, the day after Sandiman & Co. had stopped payment; at which time they told the captain they were bankrupts, and did not think themselves authorized to meddle with the cargo; March 8, they paid him six guineas in part of the freight; March 15, he for the first time refused to deliver the goods to the assignees of Sandiman & Co. Steine had written to them to unload when the ship arrived; their bill had not been paid; Steine stopped payment February 23; and March 3, a sequestration was granted, under which Craig stopped the goods and sold them. Judgment for Craig, the deft., in favour of the title of Steine, the consiguor: First, because the consignor may stop goods in case of the insolvency of the consignee, before they get into his actual possession; for the contract between them is founded on the idea that the consignee is able to pay for them. A constructive possession is not sufficient. Second. The acceptance of a bill is never held equivalent to payment; for in case of the insolvency of the acceptor, the drawer most probably must pay it. Third. A factor has a lien on all consignments for a general balance, with this restriction, that he has obtained actual possession of the cargo. Fourth. Payment of a part of the freight cannot be considered as taking possession of the goods. Fifth. The captain could only deliver the goods to Sandi man & Co., as factors, for without an endorsement of the bill of lading, he could not deliver the goods to them as owners. Sixth. If Sandiman & Co. had once got possession, then they might have insisted on their lien, and so far in this action have recovered the proceeds. The above judgment was affirmed in the House of Lords: and Seventh. Held farther, to be a case between principal and factor; so stopping in transitu was out of the question, which applies only as between vendor and vendee, as in 4 Burr. &c. Consignment above. Cя. 30. Art 4. ART. 4. Case for not making insurance &c. 1. If the 4Burr. 2050, principal order the factor to insure the goods, and he have Wright Campbell. monies of his principal's in his hands to pay the premium, and Mal. Lex he neglects the insurance and gives no notice, he shall pay the Mer. 86. loss; see Abrahams v. Davenport, art. 11. celles. § 2. This was an action of the case for not insuring. In 2 T. R. 187, Feb. 1785, the plt. owing the deft. £850, mortgaged to him Smith v. Lasthe plt's. interest in the goods and freight, to pay August 1785. In July, 1785, the plt. in a letter enclosing the bill of lading, directed the deft. to get insurance on the goods and freight, being shipped from Dominico to London. This direction. could not have been received before the mortgage became absolute. The deft. got insurance on the goods, but not on the freight; the proof was, that the deft. received a letter from the plt. Verdict for the plt. ; and a new trial was refused on these principles: First. The plt. had an insurable interest in his right to redeem. Second. The application to the deft. to insure was in the usual course of trade, and he gave no notice of his dissent. Buller J. stated three general principles. First, "where a merchant abroad has effects in the hands of his correspondent here, he has a right to expect he will obey an order to insure; because he has a right to call these effects out of the other's hands when, and in what manner he pleases." Second. "Where the merchant abroad has no effects in the hands of his correspondent, yet if the course of dealing between them be such, that the one has used to send orders for insurance, and the other to comply with them, the former has a right to expect that his orders for insurance will still be obeyed, unless the latter give him notice to discontinue that course of dealing." Third. "If the merchant abroad send bills of lading to his correspondent here, he may ingraft on them an order to insure, as the implied condition on which the bills of lading shall be accepted, which the other must obey if he accept them, for it is one entire transaction." Here the deft. could not accept |