chase was made in their own names, but the vendor was told that there was an unnamed principal. The plaintiffs afterwards, under a general authority from H., contracted to sell the same goods, which the defendant had not yet delivered. H., on hearing of the latter contract, told the plaintiffs that he would have nothing to do with the goods, either as buyer or seller; and to this the plaintiffs assented. The defendant then refused to deliver the goods, and the plaintiffs sued him for damages sustained by them in consequence: it was holden (f), that the renunciation of the contract by H., the plaintiff's assent thereto, formed no objection to the plaintiff's right to recover, of which the defendant could take advantage.

and

Lien.-By the general usage of trade, where there is a course of dealings and general account between the merchant and factor, and a balance is due to the factor, he has a lien on all goods in his hands for such balance of the general account, without regard to the time when, or on what account, he received the goods (g).

With respect to this general lien, it is to be observed:

First, That it will not attach until the goods come into the possession of the factor (h).

Secondly, The lien exists during such time only as the factor has possession of the goods; for if he should part with the possession after the lien has attached, the lien is gone (i). But where a factor is in advance for goods by actual payment, or where he sells under a del credere commission, whereby he becomes responsible for the price, he has a lien on the price, although he should have parted with the possession of the goods (k). And this rule holds, although money should have been advanced by the factor, at the time when he knew that the principal was in insolvent circumstances (1). The owner of goods, being indebted to a factor in an amount exceeding their value, consigned them to him for sale: the factor, being also similarly indebted to J. S., sold the goods to him. The factor afterwards became bankrupt; and on a settlement of accounts between J. S. and the assignees, J. S. allowed credit to them for the price of the goods, and he then proved the residue of the claim against the estate it was holden (m), that as the factor had a lien on the whole price of the goods, such settlement of accounts between the vendee and the assignees afforded a good answer to an action against the vendee for the price of the goods, brought either by or on the account of the original owner. But where a factor has not any special claim on the goods, and he has disposed of them, whereby he has lost the advantage arising from possession, the debt is to be

(f) Short and others, v. Spackman, 2 B. & Ad. 962.

(g) Kruger v. Wilcox, Ambl. 252; 1 Kenyon, 32, S. C.; Gardiner v. Coleman, cited 1 Burr. 494; and per Buller, J., 6 East, 28, n. S. P.

(h) Kinloch v. Craig, 3 T. R. 119, 783.

(i) See Sweet v. Pym, 1 East, 4, and Buller, J., in Lickbarrow v. Mason, 6 East, 27, n.

(k) See Drinkwater v. Goodwin, Cowp. 251; Hudson v. Granger, 5 B. & A. 27. (1) Foxcroft v. Devonshire, 2 Burr. 931. (m) Hudson v. Granger, 5 B. & A. 27.

considered as the debt of the principal, and the factor has no lien on the price. The plaintiff, who was resident in Ireland, employed two persons, as his factors in London, to sell goods for him, which he had sent to them (n). The factors sold these goods to J. S. for a certain sum; the plaintiff not knowing to whom they were sold, and J. S. not knowing that they belonged to the plaintiff, the goods having been delivered to him as the goods of the factors. The factors, before payment, became bankrupts, and their debts were assigned by the commissioners to the defendants, who afterwards received from J. S. the money for the goods. The plaintiff having brought an action against the defendants for money had and received, the case was reserved by Holt, C. J., for the opinion of the Court of King's Bench, who gave judgment, after argument, for the plaintiff. This case was afterwards cited before Parker, C.J., at the London Sittings, and allowed to be law; because, although it was agreed, that payment by J. S. to the factors, with whom the contract was made, would have discharged J. S. as against the principal, yet the debt was not in law due to the factors; but to the person whose goods they were; and therefore it was not assigned to the defendants, by a general assignment of their debts, but remained due to the plaintiff as before; and having been paid to the defendants, who had not any right to have it, it must be considered in law as paid for the use of him to whom it was due; and, consequently, an action might be maintained by him as for money had and received to his use. The plaintiffs, who were partners, resident beyond sea, consigned a quantity of tar to R. S., the bankrupt, brother of one of the plaintiffs, as their factor (o). There had been mutual dealings between the two brothers, the accounts of which were then unsettled. The ship and goods arrived in the Thames, from Carolina. The factor, having received the bill of lading, sold the tar to J. S., upon an agreement that it should be paid for in promissory notes, payable four months after the delivery of the goods. A few days after the sale, the vendee gave the factor, in part payment, two promissory notes. Soon afterwards the factor committed an act of bankruptcy, and the defendants were chosen assignees under the commission. The bankrupt delivered up the two notes to the assignees, and they received the money due upon them. They likewise confirmed the sale, and settled the account with the vendee, and received the balance. An account for money had and received having been brought by the plaintiffs against the assignees, for the recovery of the money received on the notes, and the money received on the settlement of the account; it was holden, that the plaintiffs were entitled to recover both sums; Willes, C. J.,

(n) Garratt v. Cullum, T. 9 Ann. B. R., stated by Willes, C. J., delivering the opinion of the court in Scott v. Surman, Willes, 405; reported also in Bull. N. P. 42, ed. 6th, by the name of Garratt v. Cullum.

(0) Scott and another v. Surman and others, Assignees of R. S., a Bankrupt, Willes, 400, cited by Lord Ellenborough, delivering judgment in Taylor v. Plumer, 3 M. & S. 575.

(who delivered the opinion of the court,) observing, as to the first, that the notes, having been in the hands of the bankrupt at the time of his bankruptcy, were capable of being distinguished from the rest of the bankrupt's estate, and therefore could not be applied to the bankrupt's debts; consequently the plaintiffs were entitled to recover the value of those notes which had been received by the defendants in like manner as, if the goods had remained in specie, unsold in the bankrupt's hands at the time of the bankruptcy, the plaintiffs might have recovered them in an action of trover. As to the second sum, the general rule was, that if a person received money, which ought to be paid to another, an action would lie as for money had and received; that the assignees having received the money, which belonged to the plaintiffs, they ought to have paid it to the plaintiffs; and not having done so, this action would lie against them for so much money had and received to the use of the plaintiffs.

Thirdly, A factor has not a lien in respect of debts which have accrued previously to the time at which his character of factor commenced. A., a factor, sold the goods of B., in his own name (p), to C.: C., without paying for these goods, sent another parcel of goods to A., to sell for him, not having employed A. as a factor before. C. became bankrupt, and his assignees claimed the goods sent by C. to A., which still remained unsold, tendering the charges upon those goods. A. refused to deliver them, claiming a lien upon them for the price of the former goods sold by him to C., the balance between A. and B. being in favour of A. An action of trover having been brought by the assignees against A., for the value of the goods sent by C.; it was holden, that they were entitled

to recover.

Liability of Principal. The maxim, that the principal is civilly responsible for the acts of his agent, universally prevails both in courts of law and equity (q). Upon this principle it was holden, by Holt, C. J., that a merchant was answerable for the deceit of his factor who had sold some silk to the plaintiff, as silk of a superior quality, knowing it to be silk of an inferior quality (r) (4). Notice to the principal is notice to all his agents, if there be reasonable time to communicate that notice to the agents before the event which raises the question happens (s).

(p) Houghton v. Matthews, per Heath, Rooke, and Chambre, Js., Alvanley, C. J., dissentiente, 3 Bos. & Pul. 485.

(g) 4 T. R. 66, per Kenyon, C. J.

(r) Hern v. Nichols, Salk. 289. Per

Holt, C. J., at Nisi Prius.

(8) Mayhew v. Eames, 3 B. & C. 601, recognized in Willis v. Bank of England, 5 Nev. & Man. 490; 4 A. & E. 21.

(4) But see 9 Hen. VI. 53, b., cited in Bro. Abr. Actions sur le Case, pl. 8, where it was said by the court, if my servant sell false stuff, an action on the case does not lie against me, unless he sold it through my covin or by my command.

The law, established by the decisions, relating to goods shipped in the names of persons who were not the actual proprietors thereof, and to the deposit or pledge of goods, having been found to afford great facility to fraud, and to produce frequent litigation, and proving in its effects highly injurious to the interests of commerce, the legislature interposed; and by stat. 4 Geo. IV. c. 83, [18th July, 1823,] it was enacted, "That any person intrusted for the purpose of sale with any goods, and by whom such goods shall be shipped in his own name, or in whose name any goods shall be shipped by any other person, shall be deemed to be the true owner, so as to entitle the consignee to a lien thereon, in respect of any money or negotiable security, advanced or given by such consignee, to or for the use of the person in whose name such goods shall be shipped, or in respect of any money or negotiable security received by him to the use of such consignee, in like manner as if such person were the true owner, PROVIDED Such consignee shall not have notice by the bill of lading, at or before the advance or receipt of the money or negotiable security, that the person shipping, or in whose name the goods are shipped, is not the actual and bonâ fide owner: PROVIDED ALSO, that the person in whose name such goods are shipped shall be taken for the purposes of this act to have been intrusted therewith, unless the contrary shall appear or be shown in evidence by the person disputing such fact." By sect. 2, "Any person, body politic or corporate, may accept any goods or bill of lading, in deposit or pledge from any consignee, and enforce the right possessed by such consignee, but shall acquire no further right than was possessed by the consignee at the time of the pledge." The 3rd section provides, that this act shall not be construed so as to prevent the owner from demanding and recovering the goods from the factor before they have been pledged, or from his assignees in the event of his bankruptcy; nor from demanding or recovering from any person, or his assignees in case of his bankruptcy, or from any body corporate, the goods deposited or pledged, upon repayment of the money, or on restoration of the negotiable security, or on payment of a sum of money equal to the amount of such security; nor from recovering from such person, or body corporate, any balance remaining in his hands as the product of the sale of such goods, after deducting thereout the amount of the money or negotiable security; provided that in case of the bankruptcy of such factor, the owner of the goods so pledged and redeemed shall be held to have discharged, pro tanto, his debt to the bankrupt's estate.

Shortly afterwards it was found expedient to alter and amend the foregoing statute, and to make further provisions; and therefore, by stat. 6 Geo. IV. c. 94, [5th July, 1825,] it was enacted, that any person intrusted for the purpose of consignment or sale with any goods, and who shall have shipped such goods in his own name, and any person in whose name any goods shall be shipped by

any other person, shall be deemed to be the true owner, so far as to entitle the consignee to a lien thereon, in respect of any money or negotiable security advanced or given by such consignee to or for the use of the person in whose name such goods shall be shipped, or in respect of any money or negotiable security received by him to the use of such consignee, in the like manner and to all intents and purposes, as if such person was the true owner; provided such consignee shall not have notice by the bill of lading or otherwise, at or before the advance or receipt of the money or negotiable security, that the person shipping, or in whose name the goods are shipped, is not the actual and bona fide owner; provided also, that the person in whose name any such goods are to be shipped, shall be taken, for the purpose of this act, to have been intrusted therewith for the purpose of consignment or of sale, unless the contrary be made to appear, by bill of discovery or otherwise, or be made to appear or be shown in evidence by any person disputing such fact; and by sect. 2, that any person intrusted with (t), and in possession of, any bill of lading, India warrant, dock warrant, warehouse keeper's certificate, wharfinger's certificate, warrant or order for delivery of goods, shall be deemed to be the true owner of the goods described in the said several documents, so far as to give validity to any agreement (5), thereafter entered into by such person with any person, for the sale or disposition of the goods, or any part thereof, or for the deposit or pledge thereof, or any part thereof, as a security for any money or negotiable instrument advanced or given by such persons, &c. upon the faith of such several documents; provided such persons, &c. shall not have notice by such documents, or otherwise, that the person intrusted is not the actual and bona fide owner of the goods so sold or pledged: provided (u) that in case any person, &c. shall accept any such goods in deposit or pledge from any such person so in possession and intrusted, without notice, as security for any debt or demand due from such person so intrusted and in possession to such person, &c. before such deposit or pledge, then such person, &c., so taking such goods in deposit or pledge, shall acquire no further right in the goods or any such document than was possessed by the person so possessed and intrusted at the time of such deposit or pledge as a security; but such person, &c. so taking such goods in deposit or pledge shall and may acquire and enforce such right as was possessed by such (t) See Phillips and others v. Huth and (u) Sect. 3. others, 6 M. & W. 572, and post, p. 830.

(5) Persons who would avail themselves of the provisions of this act, must prove the agreement. Evans v. Truman, 2 B. & Ad. 886. In this case the defendant had received, by way of pledge, India warrants from the plaintiff's broker, who had been intrusted with them, without any authority to pledge or sell, under a written agreement. It was holden, that defendant was bound to produce the agreement.