The republic. [volume] (Washington [D.C.]) 1849-1853, 1851-04-19

of his Office A factor cannot delegate his employ
Inent to another so as to raise privity between
that other and his principal. Solles Rathbone,
8 M. and s., 299; Cochran us. Islam, 30l. The
reason Of the rule in all these mercantile agencies
ID, that 1t Is trust and confidence reposed IN the
ability and integrity Of the person authorized. An
agent ordinarily, and without express authority
or fair presumption of one. growing out OF the
particular transaction or the usage OF trade, has
not the power to employ sub-agent TO co the
business without the knowledge or consent OF ms
principal The agency is a personal trust for
ministerial purpose, and cannot be dciegateu' ior
the principal employs the agent from the opinion
be has Of his personal skill ana integri.y anu Tue
latter has no right to turn his principal over to an
other of whom he knows nothing Kent Comm,
633 No usage Of trade anywhere permits factor
to delegate to his clerk the commission trusted to
himself. In this there was u transfer OF the
PLAINTIFF property to Warner, by clerk Of their
factor. He knew when il was done that he was
giving their property to creditor OF his employer
Ia payment of his debt; and both himself and the
purchaser knew that Essenwein was in failing cir
cumstances, or, as Warner expresses 1t, "that his
insolvency believed" 1t must be admitted
that such transfer passed property in the thing
transferred, and that it may be reclaimed by the
owner, as well from any person to whom it has
been sold by the first buyer, as from himself II il
the of property tortiousy taken from the own
CIR or his agent, without any fault OF the owner,
and as such cannot take away his right to II.
On either of the grounds already mentioned the
plaintiff would be entitled to recover from the de-
iendants in this case. But there is third, which
shall be stated in connexon with other points
respecting principals and factors, which 1t will not
be out of place TO notice. factor or agent who
has power to sell the produce OF his principal, has
no power to affect the property by tortiously
his own. and it is Of no consequence that the
Pledge is ignorant of the factors not being the gunner
Paterson vs. Fash, Stra., ITS; Manns us Hender-
son, East. 1897; Newton vs. Thornton, East, IT;
Smith, 207 McConbie us. Davies. East, 535;
East, s; Daubigney vs Duvall, t. r., 6O4; ! M.
and Sell, l40, l47; 2Stark, $50; Guichard vs. Nor
gan, Cow. g. N. p. Brodbng, $50; pesey,
Jun, 2ls; East, H. When goods are 80 pledged
or disposed of the principal may recover them back
by action of trover against the pawnee, without
rendering to the factor what may be due to him,
and without any tender to the pawnee OF the sum
for which the goods were pledged-Daubigney %.
DuvalI, T. r., 604-or without any demand Of such
goods6 East, $685. IL Mod, 5l4; and 1t is no excuse
that the pawpee was wholly ignorant that he who
held the goods held them as mere agent or factor;
Martin and Coles, Maule and Sell, l40-unless in
deed where the principal has held forth the agent
as the principally M. and Sell, lat. But factor
who has lien on che goods of his principal may
deliver them over TO third person, as q security
to the extent of his lien, and may appoint such
person to keep possession OF the goods for him. In
that the principal must tender the amount of
the lien due to the factor before he can be entitled
to recover back the goods 80 pledged. Hatsop
Hoarse, Stra., ,ls7; Daubigney Duvall, IT. R..
604; East, 53S; East s.; Chitty's Com. L., 1913.
So sale upon credit, instead Of being for ready
money, under general authority to sell, and in a
only, creates no contract between the owner and
thcbuyer, and the thing sold may be-recovered in
action of trover. Paley p. and A., l09; IL Mod,
5l4 "Under any Of these irregular transfers"
courts of equity Gas is now being done in this
case) will compel the holder to give an account Of
the property he holds.
But il was said, though a factor may not pledge
the merchandise of his principal security for bis
debt, he may sell to his creditor in payment of an
antecedent debt. No case can be found affirming
such doctrine 1t is misconceptiop, arising
from the misapplication OF correct principles to
case not belonging to any one OF them. The power
of the factor to make such SALE and the right of
the creditor to retain the property, has been
neously put upon its being the usual course of bust
ness between factors to make set-of Of balances
as they may exist against one or the other of them
against the price Of subsequent purchases in their
dealinge. The difference between such practice
and sale for antecedent debt must be obvious
to every one when il is stated. In the the mu
tual dealing between the mercantile persons who
buy and sell on their account and who also sell
upon commission for others, is according to the
we'll known usage of trade. Its convenience re-
quircs that such practice shall be permitted But
it must be remembered it is allowance for the
convenience Of trade and for a reader settlement
Of accounts between factors for their purchases
from each other in that character. 1t does not,
however, in any instance. bind principal in the
transfer of merchandise, if there has been q
departure from the usages Of trade, or vio-
lation Of any principle. regulating the obliga-
tons and rights of principal and factor. Again,
it has been supposed that the right of fac
tor to cell the merchandise Of his principal,
to his own creditor, in payment Of an antecedent
debt, finds its sanction in the fact of the creditors
belief that his debtor is the of the merchan
disc, and his ignorance that il belongs to another
and, If in the last he has been deceived that the
person by whom the delinquent factor has been
cover the case. When contract ia proposed be.
tween factors, or between factor and any other
creditor to pay property for an anecedent debt, it
Id not sale, in the legal sense of that word in
n n in in nae in refer 10
commission which factor has to SELL II ia not ac-
cording to the usage of trade. 1t is naked transr
fer OF property IN payment OF debt. Money,
il is true, is the consideration Of such trans-
fer, but no money passes between the contracting
parties. The creditor pays none; and when the
debtor has given to him the property of another
in release Of his obligation. their relation has
only been changed by his violation of an agency
which society in its business relations cannot
do without. which every man has right to use,
and which every person undertaking 1t promises to
discharge with unbroken fidelity. When such
transfer Of property is made by factor for his
debt, ii is a departure from the usage of trade,
known well by the creditor az it is by the factor
1t is more; it ia the violation of all that factor
has been given to him to SELL He may sell for cash,
or he may do upon credit, may be the uaage OF
trade. transfer for antecedent debt is not doing
one thing or the other. Both creditor and debtor
know 1t to be neither; that their dealing for
such purpose will be transaction out of
the usage of the business of factor. II does not
matter that the creditor may not know when he
takes the property that the factors principal owns
it; that he believed it to he the factors in good
faith. His dealing with his debtor is an attempt
between them to have the latters debt paid by the
accord and satisfaction Of the common law. That
is, when, instead of sale for price, thing is given
by the debtor to the creditor in payment in which
we all know if the thing given is the property of
another, there will be satisfaction. II 10 the d.
ion en- paiment Of the civil law it prevails in Lou
isiana, which is, when debtor gives and the cred
itor receives, instead of money! a movable or inn.
movable thing in satisfaction of the debt.
Courts Of law and courts of equity, in a proper
case before either, will look at such transaction
as one in which both principal and creditor have
been deceived by the factor, far the deceit il
concerned; but it will also be remembered, in favor
of the principal that the creditor has acquired the
principals property from his factor, with the credi
tors knowledge, out Of the usual course of trade
and will rcnstate him ia his former relation to his
debtor rather than that the creditor should be per-
mitted to keep the property of another, who is al
together without fault in payment of his debt
AS to a factors power to bind his principal by a
disposition of his goods, the common law rule is,