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 i M T E R 
 
 li OBJECT IONS TC THE 
 i? PROPOSED ALTERAT IC. 
 ii CF THE LA./
 
 2- 
 
 OBJECTIONS 
 
 TO THE 
 
 PROPOSED ALTERATION 
 
 OF THE 
 
 I. A W 
 
 RELATING TO 
 
 PRINCIPAL AND FACTOR. 
 
 / 
 
 BY 
 
 ROGER WINTER, ESQ. 
 
 or THE MIDDLE TEMPLE, BARRISTER AT LAW. 
 
 LONDON: 
 
 PRINTED FOR R. STEVENS AND SONS. 
 
 LAW BOOKSKLLERS, 
 39, BELL YARD, LINCOLN'S INN. 
 
 1823.
 
 London: Printed by C. Roworth, 
 Dell-Yatd, Temple-Bar.
 
 K 
 50 
 
 As long as our laws are under the control, 
 and require the sanction, of the united wisdom 
 and experience of Parliament, we may hope 
 that no sudden or improvident alteration will be 
 made in matters of importance ; but it behoves 
 us to be on our guard against that imperceptible 
 deterioration, which arises out of partial inno- 
 vations gradually introduced ; always bearing 
 in mind, that what may appear to be desirable 
 as an abstract proposition, may be detrimental, 
 if introduced as a component part of a system 
 with which it is not in accordance. 
 
 If it be the part of wisdom not to consent to 
 any change, however unim|)ortant it may at first 
 appear, until it havo undergone the test of iu- 
 
 F3 2 
 
 iC«5i51
 
 ( 4 ) 
 
 quiry, and be proved to be necessary, we can- 
 not find fault with the caution which hesitates 
 to approve of the alteration of laws, if the pro- 
 posed change does not promise to be productive 
 of good effects. The public attention has been 
 lately called to the proceedings of a meeting of 
 Merchants, Bankers, and others, convened for 
 the purpose of considering the expediency of 
 an application to Parliament to investigate the 
 state of the English Law relating to the pledge 
 and barter of goods by factors or agents, and 
 to make such alterations therein as may be con- 
 formable to just principles. Certain resolutions 
 were agreed to at that meeting, and, as I shall 
 have occasion to refer to them in the course of 
 the following observations, I will introduce 
 them here. 
 
 At a Meeting of Merchants, Bankers, and Others, held 
 at the City 6f London Tavern, on Thursday, the \st of 
 May: 
 
 John Smith, Esq. M.P. in the Chair: 
 
 It was moved by Robert Farrand, Esq. M.P. seconded 
 by Andrew Loughnan, Esq. 
 
 And resolved unanimously, That it appears to this 
 meeting that the merchants, bankers, and other capitalists, 
 of this countrv are in the habit of making advances on
 
 ( 5 ) 
 
 the consignment or deposit of merchandise, without that 
 adequate protection from the British laws which -the 
 nature of the transaction and sound policy require, and 
 which is afforded by the laws of other commercial 
 countries of Europe- 
 Resolved unanimously, Tiiat the rule of the English 
 law, from which this principally arises, viz. that a factor 
 or agent, apparently clothed with ownership of goods, 
 and having the power of sale, cannot pledge them or 
 dispose of them by barter, seems to have originated in 
 cases determined in the last century, wherein the deci- 
 sion turned principally on collusion between the factor 
 and the individuals with whom the goods were depo- 
 sited ; that it has, in subsequent cases, been applied by 
 courts of law in a manner which, it is conceived, could not 
 formerly have been contemplated ; and that of late the 
 principle has been carried to an extent which exposes all 
 such advances to risks against which no prudence can 
 guard. 
 
 Resolved unanimously. That it is not the object of 
 this meeting, directly or indirectly, to prevent the pro- 
 prietor of goods from controlling his agent as to the 
 mode of disposing of the property intrusted to him, nor 
 to protect the latter from the legal consequences of hi.s 
 breach of trust; on the contrary, it maybe proper to 
 visit such dereliction of duty with a punishment similar 
 to that imposed by the act pass(;d in the o^d year of his 
 late Majesty's reign, c. «i3, entitled " An Act for more 
 effectually preventing the embezzlement of securities of 
 money and other effects, left or deposited for safe cus- 
 tody, or other special purpose, in the hands of bankers,
 
 ( G ) 
 
 mercliants, brokers, attorneys, or other agents ;" but it 
 is strongly the opinion of this meeting tliat, if a loss 
 must fall upon one of two innocent parties, the principal 
 should be bound by the acts of his own agent, rather 
 than to place the consequences of those acts upon per- 
 sons who give credit to the property, and not to the 
 agent personally. 
 
 Resolved unanimously, That it is expedient to apply 
 to Parliament without delay, to investigate the state of 
 the English law on this subject, and to make such altera- 
 tions therein as will render the same conformable to just 
 principles ; that the petition now read be approved, and 
 that a committee be now formed to adopt such measures 
 as they may think expedient for giving eftect to the object 
 of this meeting. 
 
 Resolved unanimously, That the foUowiuo gentlemen 
 do constitute the said Committee, with power to add to 
 their number, \\z. — • 
 
 Richard Birkett, Esq. 
 James Cook, Esq. 
 Lewis Doxat, Esq. 
 Rt. Farrand, Esq. M.P 
 Peter Free, Esq. 
 J. II. Freese, jun. Esq. 
 Geo. Carr Glyn, Esq. 
 John Hall, Esq. 
 
 VV. AlERS HaNKEY, l^SQ 
 
 £. B. Kemble, Esq. 
 .John Kymer, Esq. 
 Max. R. Kymeu, Esq. 
 Josh LA FjOckwood, Esq. 
 
 Andrew LoucHN an. Esq 
 John Martin, Esq. M.P. 
 R. H. Marten, Esq. 
 J. Plummer, Esq. M.P. 
 Clement Ruding, Esq. 
 Richard Ryland, Esq. 
 S. Scott, Esq. M.P. 
 Benjamin Shaw, Esq. 
 John Smith, Esq. M.P. 
 T. Wilkinson, Esq. 
 T. Wilson, Esq. M.P. 
 Tuos. Wilson, Esq.
 
 ( 7 ) 
 
 Resolved unanimously, That Messrs. Kaye, Freshfield; 
 and Kaye be appointed the solicitors to conduct the 
 measures consequent upon these resolutions. 
 
 Resolved unanimously. That the thanks of this meet- 
 ing be given to Robert Farrand, Esq. M.P. for his at- 
 tention to the subject, and the zeal and ability with 
 which he has introduced it to the consideration of this 
 
 meetins;. 
 
 John Smith, Chairman. 
 
 Resolved unanimously, That the thanks of this meet- 
 ing be given to John Smith, Esq. M.P. for his able and 
 impartial conduct in the chair. 
 
 It would ill become me to impute to those 
 who require the proposed change, the improper 
 motive of desiring greater facility in disposing 
 of the property of their principals for their own 
 purposes ; and I hope that no unguarded ex- 
 pression of mine will convey such an imputa- 
 tion. The object of these gentlemen may fairly 
 be considered as threefold — to protect them- 
 selves, as /M267/ce.y, against the fraudulent con- 
 duct of factors; — to do away with the neces- 
 sity of the express authority of the })rin(ipal, 
 in cases of pledge, for the purpose of reim- 
 bursing the factor for advances made l)y liiui 
 on account of goods consigned to him lor sale ; 
 and to remove the difficulty which now subsists 
 of obtaining advances upon the pledge of their 
 own goods, in consc(pience of the suspicion
 
 ( 8 ) 
 
 which arises that tliey are not the property of 
 the person offering them, but are liable to be 
 reclaimed by the owner. If the proposed altera- / 
 tion of the law could attain these objects with- 
 out injustice to the principal, and without open- 
 ing to the dishonest factor a way by M'hich he 
 could more easily defraud his principal than he 
 can at present, it would perhaps be difficult to 
 prove that the parties who seek this change are 
 not justified in so doing ; but as I think it would 
 be unjust towards the principal, and would en- 
 able the dishonest factor more easily to defraud 
 him, I have been induced to consider the con- 
 sequences of the proposed change, and for this 
 purpose have endeavoured to make myself ac- 
 quainted with the existing law upon this sub- 
 ject; and, thinking that the information maybe 
 useful to those persons who have not the law 
 books at hand to which I have had recourse, I 
 will give as full a statement of the cases as is 
 necessary for a correct understanding of the 
 subject. 
 
 It is now decided law, that a factor to whom 
 goods are intrusted for sale cannot pledge them 
 without authority from his principal ; and, al- 
 though no reported case is to be found in which 
 this is expressly decided before that of Paterson 
 V. Tash, which was in the year 1742, yet this
 
 ( 9 ) 
 
 la\V is recognised at an earlier period in Marsderi 
 V. Panshall, 1 Vernon's Reports, 407, in the 
 year 1686; and the order made by the Court 
 of Chancery in this cause shows, that the law 
 was not then questioned. Considering how 
 much our laws are indebted to the civil law, it 
 is probable that the principle was borrowed 
 from thence by our lawyers at an early period, 
 and that the rule de executione mandati, " Is 
 qui exequitur mandatum non debet excedere 
 fines mandati," Justin. Imtit. lib. iii. tit. 27. s. 8. 
 was early ingrafted into our common law. It 
 was said by Lord Loughborough, in De Bou- 
 chout V. Goldsmid, 5 Vesey, 213. " I take it not 
 merely to be a principle of the law of England, 
 but by the civil law, that if a person is acting 
 ex mandato, those dealing with him must look 
 to his mandate." In the case mentioned of 
 Paterson v. Tash, which is reported in the 
 second volume of Strange's Reports, p. 1178. 
 it was licld by Lord Chief .Justice Lee, " that 
 tiiough a factor had power to sell and thereby 
 bind his j)rincipal, yet he cannot bind or aft'ect 
 the property of the goods by pledging them as 
 a security for his own debt." This was laid 
 down l)y the ('hicf .Justice not as a new prin- 
 ciple, but as a well-known rule of law at that 
 time ; and, although that was only a nisi prius
 
 ( H) ) 
 
 decision, it is supported by all the subsequent de- 
 cisions in the King's Bench relating to this point. 
 In the absence of prior cases which contravene 
 this principle, it is fair to assume that it had a 
 much earlier origin than the period at which it 
 first found its way into a law report. In New- 
 som V. Thornton, 3 East's Reports, 17, in the 
 year 1805, it was contended, that the possession 
 ofthe bill of lading without any special indorse- 
 ment designating the consignee as factor for 
 another person, gave him the absolute control 
 over the property, so as to pass it by indorse- 
 ment and delivery to a third person for a valu- 
 able consideration, without notice; and that a 
 pledge by the factor of such bill of lading was 
 binding upon the principal upon this ground, 
 ** that if one man put it in the power of another 
 to cheat a third person, he must abide the con- 
 sequences, and it is the less necessary to make 
 an exception to the general rule in the case of 
 a factor, because the principal may always pre- 
 vent the mischief by making a special indorse- 
 ment to his correspondent by the name of his 
 factor, which will give notice of the transaction 
 to every person into whose hands the bill of 
 lading comes." 
 
 But Lord EUenborough, in pronouncing his' 
 judgment on that case, said, " if the factor had
 
 ( il ) 
 
 been in possession of the goods themselves, and 
 had pur])orted to sell them to the defendants 
 bona fide, the property would have passed by 
 the delivery, but not if he had only meant to 
 pledge them, because it is beyond the scope of a 
 factors authority to pledge the goods of his 
 principal. The symbol then shall not have a 
 greater operation to enable him to defraud his 
 ])rincipal than the actual possession of that 
 which it represents." Mr. Justice Grose said, in 
 the same case, " It is admitted that a factor 
 cannot pledge the goods of his principal by de- 
 livering of the goods themselves; then is it not 
 inconsistent to say he may do so by delivery of 
 the bill of lading ?" Mr. Justice Lawrence said, 
 " The question is, whether, if a factor have no 
 property in the goods of his principal, so as to 
 dispose of them otherwise than according to 
 the authority delegated to hiin, namely, by sale, 
 he can have a greater disposing power over 
 them by means of his possession of the instru- 
 ment which gives him authority to receive 
 them, tlian the possession of the goods them- 
 selves, when received, would give him?"' 
 
 Here then is a decided case that the symbol 
 of proj)erty caimot be ])ledgod by a factor willi- 
 out authority to do so, resting, by analogy, uj)un 
 the principle that the properly itself coiild not' 
 be so pledged.
 
 ( 12 ) 
 
 In Martini v. Coles and others, 1 Maule and 
 Selwyn, 140, the plaintiff had consigned goods 
 from Demerara to Vos, his correspondent and 
 factor in London, by the terms of the bill of 
 lading to be delivered to Vos or his assigns. 
 The plaintiff sent one of the bills of lading, in- 
 closed in a letter, directing Vos, after the sale 
 of the goods, to place the proceeds to his cre- 
 dit. Vos indorsed the bill of lading to the de- 
 fendants, and afterwards delivered it and the 
 goods to them. The defendants made advances 
 to Vos on account of the goods, having no 
 knowledge that he was not the owner. Vos was 
 a general merchant as well as broker, and usu- 
 ally employed the defendants as general brokers 
 in the sale of West India produce. Vos after- 
 wards became bankrupt, the goods remaining 
 unsold in the hands of defendants. Upon notice 
 by plaintiff of his claim as owner, and a de- 
 mand by him of the delivery of the goods, the 
 defendants refused to deliver them without pay- 
 ment of the debt due to them from Vos. It was 
 contended for the defendants that this case was 
 distinguishable from Newsom v. Thornton; for 
 there the bill of lading was to the order of the 
 shippers, whereas here it was to Vos himself, 
 who might, therefore, on that account, coupled 
 with their knowledge of his dealings as a mer-
 
 < 13 ) 
 
 chant, reasonably be mistaken by the defend- 
 ants for the owner of the goods : that as to the 
 argument that they might have ascertained the 
 fact by inquiring for the letters, it is sufficient 
 to say that the practice is unusual, and would 
 not be tolerated in commercial dealings: that 
 the plaintiff might have prevented all mistake 
 by specially indorsing the bill of lading to Vos 
 as factor: that as a factor who has authority to 
 sell the goods has a lien for his advances upon 
 them, and may retain for such advances, in Hke 
 manner he may authorise another, to whom, as 
 broker, he commits the goods for the purposes 
 of sale, and who makes advances upon them, to 
 retain also: that it is for the interest of the con- 
 signor that the broker should have this autho- 
 rity, as it will facilitate the raising money to 
 answer the bills of the consignor; otherwise the 
 goods must frequently be sold to a disad- 
 vantage, instead of waiting for the best market. 
 It does not appear that any answer was 
 given to the last argument by the counsel for 
 the plaintiff", though it is noticed by the court; 
 but as to the practice of inquiry being unusual, 
 it was said, "that if the pawnee chose to abstain 
 from making inquiries, either from motives of 
 interest, or from the practice of his trade, he 
 must take the consequence : and as to the s|:)e-
 
 ( 14 ) 
 
 cial indorse inent of the bill of lading for the 
 protection of the consignor, that it has never 
 been held necessary; and that the symbol of 
 property cannot tend to mislead more than the 
 possession of the property itself." Lord Ellen- 
 borough, in his judgment, said, *' It is the case 
 of a consignment to Vos by bill of lading with- 
 out specifying that the consignment was made 
 to him in respect of any particular character he 
 bore. It is, indeed, much to be regretted that 
 a bill of lading, instead of being launched into 
 the world as an instrument of equivocal import, 
 should not have designated upon the face of it 
 in what character the consignment is to be 
 made, where it is intended that the consignee 
 should fill that of factor only. If that had been 
 done in this case, it would have obviated all 
 doubt. However, when we get at the sub- 
 stance of the transaction, as it now stands, it 
 amounts to this, that the parties stood only in 
 the relation of principal and factor. But it has 
 been decided ever since the case of Paterson v. 
 Tash, that a factor cannot pledge. Perhaps it 
 would have been well if it had been originally 
 decided, that, where it was equivocal, whether 
 a person was authorised to act as principal or 
 factor, a pledge made by such a person free 
 from anv circumstances of fraud was valid. But
 
 ( 15 ) 
 
 it is idle now to speculate upon this subject, 
 since a long series of cases has decided that a 
 factor cannot pledge." 
 
 Mr. Justice Le Blanc said, ** whether it 
 might not originally have better answered the 
 purposes of commerce, to have considered a 
 person in the situation of Vos, having the appa- 
 rent symbol of property, as the true owner, in 
 respect to that person who deals with him under 
 an ignorance of his real character, is a question 
 upon which it is now too late to speculate, since 
 it has been established by a series of decisions, 
 that a factor has no authority to pledge, whe- 
 ther the person to whom he pledges has or has 
 not a knowledge of his being factor. The bill 
 of lading conveyed to Vos, or his assigns, no 
 further authority over the goods than the 
 party who consigned them intended to clothe 
 him with." '* It has been said, that it would be 
 for the benefit of the consignors abroad, that 
 tlieir factors should have authority to pledge the 
 goods of their principals, because their con- 
 signments are frequently accom])anicd with a 
 bill drawn on the factor for a part of the price, 
 of such consignments. If indeed advances were 
 made merely to take up tlie bill of the consignor, 
 and were appropriated to that purpose, there 
 would be no mischief; and that might be con-
 
 ( 1^5 ) 
 
 sidered in furtherance of the authority given by 
 the principal ; but if a party make advances to 
 a factor without inquiring for what purpose they 
 are made, he must be contented to rest on the 
 authority with which it shall appear that the 
 factor is clothed." 
 
 Mr. Justice Bayley said, " I am of the same 
 opinion ; a factor has authority to sell, but not 
 to pledge, and therefore, a person who takes a 
 pawn of a factor takes it at his peril. If the 
 principal does any thing to induce the person to 
 believe the factor really the principal, that would 
 be a different case. Cases may perhaps exist 
 where a principal would be bound by a pledge 
 made by his factor ; but supposing one of those 
 cases to be where money has been advanced in 
 payment of a bill drawn by the principal for 
 part of the price of the goods, it is not so found 
 here ; on the contrary, the claim is in respect of 
 general advances (to the factor), and if it had 
 been so found, I do not say that it would have 
 made any difference. It has been said, that as 
 a general rule it would be for the benefit of the 
 consignor, that the factor should have authority 
 to pledge; that I deny; for it would not he for 
 the benefit of the consignor, that a factor should 
 have authority to pledge for his own debt. But it is 
 unnecessary to discuss that point, as it is quite
 
 X 17 ) 
 
 clear that, unless the consionor abroad gives the 
 factor a special authority to pledge, he has no 
 such authority himself." 
 
 In Kuckein v. Wilson, 4 Barnewall and Alder- 
 son s Reports, 443, in the year 1821, a quantity 
 of oats having been consigned by the plaintiff, a 
 Prussian merchant, to be sold by S. and Co. of 
 Hull, who were merchants as well as factors, 
 they placed them in the hands of the defendant, 
 a corn factor, as a security for advances made 
 by him, but the oats were not to be sold with- 
 out the consent of S. and Co. They remained 
 in the defendant's possession upon these terms 
 for nine months, when the defendant agreed to 
 purchase them at the market price. No money 
 actually passed, nor were any account sales ren- 
 dered, but the amount of the price was allowed 
 in account between S. and Co. and the defen- 
 dant, leaving a balance in favour of the latter. 
 Held that this was in substance a pledge, and 
 not a sale by the factor ; and that no property 
 passed to the defendant, although the jury had 
 found it to be a bon;\ fide transaction. Lord Chief 
 Justice Abbott, after stating the evidence, said 
 " there appears to be none of the ordinary cha- 
 racteristics of a mercantile sale ; the price being 
 not uclually paid l^y Wilson, and it being mani- 
 fest that there was no intention that it should 
 
 c
 
 ( IB ) 
 
 be paid, the intervening transactions amount 
 to nothing more than an agreement, that the 
 pawnee should take the pledge to himself at a 
 fixed sum, to be set against the money that he 
 had advanced upon the security of the pledge. 
 Such an agreement does not in our opinion alter 
 the nature of the original transaction, which was 
 clearly a pledge, and the case may and ought to 
 be decided in favour of the plaintiff upon the 
 general principle, which does not allow a factor 
 to pledge." 
 
 These are the chief cases which are reported 
 upon the subject of pledge by the factor of the 
 goods of his principal. 
 
 As the question of barter is alluded to in the 
 above resolutions, it may be satisfactory to 
 those who are unacquainted with the law in 
 this respect, if I shortly advert to it. It is an 
 unusual mode of dealing, and therefore not 
 of frequent occurrence. So lately as the year 
 1 820, it was determined, in the case of Guer- 
 riero v. Peile and another, 3 Barnewall and 
 Alderson's Reports, 61G, that a factor has an 
 authority to sell for money, but not to barter, 
 and therefore, where a factor barters the goods 
 of his principal, no property, passes, and 
 the principal may maintain trover against the 
 party with whom the goods are bartered, al- 
 though the latter be wholly ignorant, that he
 
 ( 19 ) 
 
 liad been dealing with a factor only. Lord 
 Chief Justice Abbott at the trial told the jury 
 " that if they were of opinion that the defendants 
 knew the character of the party to be that of 
 factor, they should find for the plaintiff; but if 
 the defendants did not know that fact, and the 
 jury thought that the transaction was in the or- 
 dinary course of trade, when parties are deal- 
 ing with their own commodities, they would 
 find for the defendant." The jury found a ver- 
 dict for the defendant, which was afterwards 
 set aside, the Chief Justice agreeing with the 
 other judges, that he ought to have told the 
 jury that it was a transaction of barter, and 
 that the plaintiff's property was not divested, 
 because a factor has no authority to barter. 
 The rule to set it aside was moved for on the 
 authority of an anonymous case in 12 Mod. Rep. 
 514, in which Ilolt, C.J. decided, that every 
 factor, of common right, is to sell for ready 
 money, unless the usage be otherwise. But if 
 there be no such usage, and he, upon the gene- 
 ral authority to sell, sells upon trust, let the 
 vendee be ever so able, the factor is only 
 chargeable ; for in tlmt case, the factor having 
 gone beyond his a\ithority, there is no contract 
 created between tlie vendee and the faclor's 
 ]irincijial ; and such sale is a conversion in the 
 
 c 2
 
 ( 20 ) 
 
 tWctor; and if it be not in market overt, no 
 property is thereby altered, but trover will also 
 lie against vendee ; so likew^ise, if it be in a 
 market overt, and vendee knows the factor to 
 sell as factor. And on the authority of Wilt- 
 shire V. Sims, 1 CampbeU's Reports, 253, which 
 was tried before Lord Ellenborough in the year 
 1 808. and it was there determined that an agent 
 employed generally to do any act, is authorised 
 to do it only in the usual way of business; there- 
 fore, as stock is sold usually for ready money 
 only, a broker employed to sell stock, cannot 
 sell it upon credit without a special authority, 
 although acting bona fide, and with a view to 
 the benefit of the principal. Lord Ellenborough 
 said, " the broker here sold the stock in an 
 unusual manner, and, unless he was expressly 
 authorised to do so, his principal is not bound 
 by his acts." 
 
 The authorities, which I have thus fully cited, 
 are sufficient to convey a perfect notion of the 
 law, as it affects the right of factors to pledge 
 or barter the goods of their principals, and suffi- 
 ciently illustrate the rules upon which that law 
 is founded : from whence it is apparent that a 
 factor, to whom goods are sent for sale, can 
 neither pledge nor barter the goods of his 
 principal, unless he is authorised by his princi- 
 pal to do so. As this is a law for the protection
 
 ( 21 ) 
 
 of the princi[)al, it must necessarily be strictly 
 construed, and will not admit of any qualifi- 
 cation arising out of the want of knowledge of 
 the relation of factor. It is a law in restraint of 
 the factor, and compels him to keep within the 
 bounds of the authority delegated to him. 
 
 But it is said,* " That if a loss must fall upon 
 one of two innocent parties, the principal should 
 be bound by the acts of his own agent, rather than 
 to place the consequence of those acts upon 
 persons who give credit to the property, and not 
 to the agent personally." And this is a sum- 
 mary of the argument, upon which those, who 
 desire an alteration of the law, rest their claim. 
 Let us then see how it bears upon the relative 
 characters of principal and factor, in the various 
 transactions which arise out of that relation. 
 
 It will not, of course, be contended, that the 
 principal should be deprived of the power of 
 reclaiming his goods from the hands of a pawf/ce, 
 who has made advances upon them to the factor, 
 with notice that they were not the factor s own 
 goods, and that he had no authority to pledge 
 them. In such case, the |)avvnce would have 
 no pretence, in common honesty, that could 
 justify his detention oi' the goods from the prin- 
 cipal ; and it is clear, that such an excess of 
 autliorily, with the knowledge ol the pawnee, 
 
 '' .SfC UcM'llltioll^, |l. ().
 
 ( 22 ) 
 
 could create no contract between him and the 
 principal, against whom, therefore, he could 
 have no title. As little pretence would the 
 pawnee have to retain the goods of the princi- 
 pal, who had not authorised his factor to pledge, 
 although the pawnee had no notice of a prin- 
 cipal, or of the absence of such authority, if he 
 has made advances without inquiry, and has 
 neglected to take any steps for the purpose of 
 ascertaining the character of the party, whether 
 iactor or owner, to whom he has made advances 
 on such deposit of the goods. If he might have 
 ascertained this by inquiring for the documents 
 authenticating the ownership of the goods, and 
 the pawnee chose to abstain from making such 
 inquiry, he must take the consequence, and 
 must abide by the event of the authority with 
 which the factor shall appear to be clothed. 
 
 It will be admitted, therefore, that in neither 
 of these two cases would the pawnee have any 
 right against the principal. In the first, the 
 transaction takes place with full knowledge of 
 the want of authority in the factor ; and, in the 
 second, the neglect to acquire such knowledge, 
 when he might have done so, necessarily de- 
 prives the pawnee of the right to set up the 
 want of it against the claim of the principal. 
 
 I will now, however, suppose a transacti()n in 
 which the pawnee has used every precaution
 
 ( 23 ) 
 
 which a prudent man would take, in demanding 
 to see the documents of ownership, and in 
 making every necessary inquiry; and having 
 done so, is induced, by the false representation 
 of the factor, to consider him as the owner, and 
 to make advances to him on pledge of the goods, 
 in the full belief that he alone is owner. This 
 is the case to which my mind adverted, when 
 I supposed that it was one of the objects of 
 those who seek to alter the law, to protect 
 themselves, as pawnees, against the fraudulent 
 conduct of factors. But upon what known 
 rule in our law, are they entitled to such 
 protection ? Is it " that if a loss must fall 
 upon one of two innocent parties, the principal 
 should be bound by the acts of his own agent, 
 rather than to place the consequences of those 
 acts upon persons who give credit to the pro- 
 perty, and not to the agent personally ?"* The 
 principal, by the law of England, is bound by 
 the acts of his agent, within the scope of his 
 authority, as is to be found everywhere in our 
 law books; l)ut if the agent exceed his autho- 
 rity, the principal is not bound. See Fenn v. 
 Harrison, 3 Term Reports, 757, and Baring and 
 others v. Corric and another, 2 Barncwall and 
 Alderson, 137.| The conduct of the factor in 
 
 * Sic K^'^<»llltiou^, p. '•• 
 
 t There is an exception to I his ni ilic caseb ot tiankr ol bills
 
 ( 24 ) 
 
 the transaction last alluded to, beinfj unautho- 
 rised by the principal, is a spoliation oi' the 
 principal; and what says 2 Inst. 714.? " Spo- 
 liatus debet ante omnia restitui;" — "the old rule 
 caveat emptor doth hold herein ;" and " when 
 two rights come together, the ancient right is 
 to be preferred." The language of the resolution 
 above mentioned, presumes that, by the rule of 
 law, property follows the possession ; but that 
 is not so. There is no instance in the law, where 
 an unauthorised disposition of the goods of ano- 
 ther person, made by the mere possessor of 
 them, has been held to transfer the property of 
 the owner, excepting those cases where goods 
 are sold in market overt. " Possession of goods 
 is prima facie evidence of title, but that pos- 
 session may be precarious, as of a deposit ; it 
 may be criminal, as of a thing stolen ; it may be 
 qualified, as of things in the custody of a ser- 
 vant, carrier or factor. Mere possession, with- 
 out a just title, gives no property ; and the per- 
 son to whom such possession is transferred by 
 delivery, must take his hazard of the title of the 
 
 of exchange, the right of property in which passes with the 
 bills. This was necessary to make them negotiable, and in this 
 respect they differ essentially from goods of which the property 
 siiid possession may be in different persons. See Collins v. Mar- 
 tin and others, I Bosantiuefc and Puller's Reports, 648.
 
 ( 25 ) 
 
 author." By Lord Loughborough, in Lickbar- 
 row V. Mason, 1 Henry Blackstone s Reports, 
 360. 
 
 A variety of cases might be cited for the 
 purpose of showing, that the owner of pro- 
 perty cannot be dispossessed of it by the un- 
 authorised act of his agent with whom it is 
 deposited for a special purpose. Thus in the 
 case of Ilartop v. Hoare and another, reported in 
 3 Atkyns, 45, Sir John Hartop, in 1729, lodged 
 jewels, for safe custody, in the hands of Sea- 
 mer a jeweller, inclosed in a sealed paper, and 
 put in a bag which was also sealed with Sir 
 John Ilartop's (the plaintiff) seal, and depo- 
 sited at Seamer's house ; and the same day his 
 clerk gave a receipt for them. In February, 
 1735, Scamer broke both the seals, took out the 
 jewels, and carried them to Hoares the bankers 
 (the defendants), borrowed £300 upon them, 
 and deposited the goods as his own proper 
 goods, and as a security for the £300, and gave 
 his promissory note for the same sum. On 
 Hoares refusing to deliver the jewels to Sir 
 .loliii Ifartop, he brought an action of trover and 
 conversion against them ; the jury, liaving a 
 doubt whether the defendants were guilty, found 
 a spctial vertlict; upon which tlie court of 
 Kiii'.fs hencli gave an imanimous judgment for
 
 ( 20 ) 
 
 Sir John Hartop the plaintifi". The judgment 
 was pronounced by Chief Justice Lee, who, 
 after stating a variety of cases for the purpose 
 of showing that a mere possessor of goods can- 
 not confer a title by a sale which he is not 
 authorised to make, says, " The true owner of 
 goods does not lose his property by a sale made 
 by the possessor of them, unless it were in 
 market overt ; and in the cases stated (by the 
 Chief Justice) no regard is had to the vendee's 
 ignorance of the vendor's want of title ; no 
 regard to the vendee's coming rightfully to 
 them as a purchaser without notice; no regard 
 to the vendor's having the lawful possession of 
 them." None of which circumstances could 
 have any effect upon the rule of the law, 
 that mere possession can confer no title by an 
 unauthorised sale. 
 
 Although the argument of Chief Justice Lee 
 depends upon cases of unauthorised sale, it is 
 equally applicable to cases of unauthorised 
 pledge ; they are both acts beyond the scope 
 of the authority of the agent, and cannot bind 
 the principal. 
 
 In Hoare and another v. Parker, 2 Term Re- 
 ports, 376, the case was thus — the plaintiffs, 
 who claimed under a remainder man, brought 
 an action of trover for plate against the defen-
 
 ( 27 ) 
 
 daiit, to whom it was pawned by tenant for 
 life, without any notice of the settlement ; and 
 the defendant advanced money upon it. After 
 the death of tenant for life, the defendant re- 
 fused to deliver it up to the plaintiffs who so 
 claimed under the remainder man, and the 
 question was, whether the defendant was bound 
 to deliver up the plate without being paid the 
 money he had advanced upon it. Baldwin, the 
 counsel for the defendant, declared that he 
 could not argue against so established a point; 
 and the court said, " this point is clearly esta- 
 blished, and the law must remain as it is, till 
 the legislature think fit to provide that the pos- 
 session of such chattels shall be proof of owner- 
 ship." And the plaintiffs recovered the plate. 
 It is clear then that the law of England re- 
 cognizes no such principle as that suggested in 
 the Resolutiojas; and most injurious would it be 
 to the commerce of this country it' such a princi- 
 ple should ever become the foundation of a law, 
 enabling the factor, who is employed only to 
 sell, to pledge the goods of his princi|)al. It 
 must readily occur to all persons conversant 
 with the trade of this country, that great confi- 
 dence is ])hiced in agents by priiKi|)als for the 
 purpose of selling tiieir gootls, extending over 
 millions of pn.iperty in the course of a year.
 
 ( 28 ) 
 
 What a slate of alarm it would place those prin- 
 cipals in, if they were deprived of the protection 
 which the law now affords them, and their 
 agents, when possessed of the symbol of pro- 
 perty in'the shape of the bill of lading, or of the 
 property itself, could pledge for their own pur- 
 poses, and thereby give the pawnee a title 
 against the owner of the goods ! It is no satis- 
 faction to the owner to tell him, your remedy is 
 against the factor : dishonesty in him is often the 
 immediate forerunner of bankruptcy; and it 
 rarely happens that one, who is driven to dis- 
 honest shifts for the purpose of raising money 
 by pledging another man's goods, continues long 
 in a state of solvency. The measure proposed 
 in the Resolutions, of subjecting such delin- 
 quents to the severity of a penal law,* might 
 operate upon the fears of some few; but I be- 
 lieve that experience of human nature will tell 
 us, that penal statutes are no great restraint 
 where there is great facility in committing the 
 offence ; and it is a poor satisfaction to the prin- 
 cipal, who has been defrauded by his agent, to 
 have the privilege of transporting him for seven 
 years, instead of the right to recover his pro- 
 f>erty from a paicnee who has advanced money 
 
 * See Resolutions, p. 5,
 
 ( 29 ) 
 
 upon it to one who had no authority to pledge 
 it. 
 
 It is said, however, in the Resolutions, " That 
 the rule of the English law has originated in 
 cases determined in the last century, wherein 
 the decisions turned principally on collusion be- 
 tween the factor and the individuals with whom 
 the goods were deposited; that it has in subse- 
 quent cases been applied by courts of law in a 
 manner which it is conceived could not formerly 
 have been contemplated."* 
 
 This is altogether a mistake. There is no 
 reported case during the last century in which 
 the decision turned principally on such collu- 
 sion, except that of Wright and another, assig- 
 nees of Scott, V. Campbell and another, 4 lUir- 
 row's Reports, 2046, in the year 1747, which 
 may be shortly stated thus: — Fontaine, a mer- 
 cliant in London, consigned goods to Swan- 
 wick, his factor, at Liverpool, who, before the 
 arrival of the y-oods, received a bill of hulini'- 
 thereof indorsed to him, or order, by his ])rinci- 
 pal, I'ontaiiic. If Swanwick sell the ^oods, even 
 wiiile at sea, to a bon;! fide pureluistr. for a valu- 
 able consideration, Fontaine cannot, in case 
 Swanwick become bankrupt, follow his ^oods 
 
 * Sec Resolutions, p. .0.
 
 ( 30 ) 
 
 into the hands of such purchaser: but if Swan- 
 wick assign the bill of lading to a third ])erson 
 (Scott), in satisfaction of a debt due from Swan- 
 wick to him, and that third person has notice 
 that Swanwick is factor only to Fontaine, he is 
 guilty of a fraud in receiving goods in payment 
 from Swanwick which he knows Swanwick has 
 no authority to dispose of. Lord Mansfield said, 
 *' The whole of the case turned upon the ques- 
 tion, whether this was a fair transaction, bona 
 fide, between Swanwick and Scott, for a valu- 
 able consideration, and without notice, or a trick 
 and contrivance between them to cheat an 
 honest owner out of his property." And this, 
 which was a material fact, was not stated in the 
 special case. The court agreed that there 
 seemed to be a fraudulent collusion between 
 Swanwick and Scott, but that the facts were not 
 sufficiently stated, and granted a new trial; the 
 verdict having been for the plaintiff's upon the 
 first trial. 
 
 There is no printed report of this second 
 trial ; but I have a note in which I find that, in 
 Hayward v. Stewart, Hilary Term 28 George 
 111. in the Exchequer, Mr. Baron Thompson said, 
 " this cause was tried again, and a verdict given 
 for the defendants on the ground of fraud." 
 This is the only case I am aware of in which a
 
 ( 31 ) 
 
 fraudulent collusion was the principal ground 
 of the decision. But the true rule of the 
 law, which protects the consignor from the un- 
 authorised acts of his factor, is clearly distin- 
 guishable in this case, and prevailed throughout 
 it : a true and just principle, in my opinion, and 
 one which must ever have been contemplated 
 from the first period of its introduction, as a 
 safe and infallible guide in all subsequent cases; 
 a principle which, if it were departed from, 
 would in its relaxation have an extensive influ- 
 ence upon other settled rules of law, respecting 
 the conduct of agents, and would have the effect 
 of crippling the transactions of merchants, by 
 destroying that security which the principal 
 now has in the protection which the law affords 
 him against the agent, in those cases in which he 
 exceeds his authority. But, say the Resolutions, 
 " this ])rinci})lc has of late been carried to an 
 extent which exposes all such advances to risks 
 against which no prndcncc can guard.''* 
 
 Is this so? In the case last lutiitioncd, 
 Wright and anotiicr, assignees of Scott, v. Camj)- 
 bell and another, Lord IMansfii'ld said, " Scott 
 vcvLT i}i(juircd into the fact, whetiier Swanwick 
 had really bought the goods, or w;is llic real 
 
 * Sec Kfsoliitioiis, p. .'».
 
 ( 32 ) 
 
 owner of them. Tt is indeed stated that Swan- 
 Avick told Scott, ' that the goods were his own, 
 and that he had paid for them ;' but did Scott 
 believe him ? that does not appear — he trusted 
 to Swanwick's word; no letters were pro- 
 duced ; no price fixed." 
 
 In Daubigny and others v. Duval and another, 
 5 Term Reports, G04, which was tried before 
 Lord Kenyon, the defendants attempted to 
 prove that Davallon, the factor, had express 
 authority by letters from the plaintiffs (his 
 principals) to pledge the goods in question, but 
 they failed in that proof. 
 
 In Newsom v. Thornton, before mentioned, 
 Justice Lawrence said, '* in this case there is 
 no ground to complain of the defendants having 
 been deceived by means of the bill of lading, 
 for it would have been very easy for them to 
 have inquired for the letter of advice, which 
 brought it, which would have shown that Church 
 held it as factor, and not as vendee of the goods ; 
 and if persons will neglect all precaution, and ad- 
 vance money on goods without in(/uiring whether tlie 
 party had any right to dispose of them or 7wt, they 
 must bear the loss, if it turn out that he has ?io 
 authority so to do." It seems then that ordinary 
 prudence may guard against risk in making ad- 
 vances in such cases. If the result of inquiry
 
 ( 33 ) 
 
 be that the factor is not owner of the goods 
 offered in pledge, the pawnee has no pretence 
 for protecting himself on account of such ad- 
 vances against the claim of the principal. If 
 the inquiry lead to a suspicion that something 
 is withheld, and that he wdio requires the ad- 
 vance is neither owner of the goods offered in 
 security, nor factor with authority to pledge, a 
 prudent man will repudiate such a transaction. 
 
 I know, however, that it has been said, and 
 great reliance is placed upon this matter by 
 those who support the proposal for altering the 
 law, that cases may occur in which no precau- 
 tion on the part of the pawnee can protect him: 
 and the instance relied upon is that of a con- 
 signee, resident in a foreign country, who has 
 received a consignment from his correspondent 
 to dispose of by sale, and who ships the goods 
 so entrusted to him for sale, consigning them as 
 his men to a merchant in England, to hold at his 
 dis[)osal, and draws bills upon that merchant, 
 who makes advances to the amount of those bills 
 upon the faith that the goods arc the pro|)erty 
 of the foreign consignee, and wlujlly ignorant of 
 his character as factor, liut what is there in 
 this transaction, excepting the distance at wiiich 
 the parties may be from each other, which dis- 
 tinguishes this case from the fraudulent misre-
 
 ( 34 ; 
 
 ])r€scnt.ation of any other factor? If the foreign 
 consignee is determined to keep all knowledge 
 of his character of factor from the English mer- 
 chant, and he trusting to his integrity deal with 
 him as a principal, what is there that distin- 
 guishes this case from the like confidence repo- 
 sed in the integrity of the home factor? A pru- 
 dent merchant, in either case, does all in his 
 power; he makes inquiry before he consents to 
 advance money on goods, which may be the 
 property of a third person ; but, if he be 
 deceived, whether it be by the foreign or home 
 factor, what difference does this make in the 
 application of the rule of the law of this country, 
 that a priJicipal is not bound by the unauthorised 
 act of his agent ? 
 
 : It has, indeed, been said by Lord Ellenbo- 
 rough,* " Perhaps it would have been well if it 
 had been originally decided, that, where it icas 
 equivocal whether a person 7vas authorised to act as 
 a principal or factor, a pledge made by such a 
 person, free from any circumstances of fraud, 
 was valid." And Mr. Justice Le Blanc inclines 
 to the same opinion.)' But if such a pledge was 
 valid, the equivocal character ought to appear 
 either from the documents of ownership, or the 
 
 * See pp. 14 and 15. f See p. 16.
 
 ( 35 ) 
 
 total want of them, in the hands of the con- 
 signee. If the principal, wishing not to appear 
 as owner, so frame those documents as to mis- 
 lead the inquirer, and thereby enable the con- 
 signee, his factor, to appear as proprietor of the 
 goods, in such case the principal is guilty of de- 
 ception, and ought to bear the loss, if any arise 
 out of the misconduct of the factor in disposing 
 of the goods. So, if a principal act so impru- 
 dently as to trust a factor with goods unaccom- 
 panied by any written documents, and the fac- 
 tor practise the deceit of disposing of the goods 
 as his own, if any body is to be a loser by this 
 deceit, it is more reasonable that he who ena- 
 bles the deceiver to practise the deception 
 should be a loser than a stranger. In Fitzher- 
 bert V. Mather, 1 T. R. IG, Mr. Justice Buller 
 said, " It is the common question every day at 
 Guildhall, when one of two innocent persons 
 must suffer by the fraud or negligence of a 
 third, which of the two gave credit?" Now 
 when a ])rincipal consigns goods to a factor, with 
 accomj)anying documents authenticating his 
 ownership, and the factor practises deceit by 
 falsifying such documents, and disposes of the 
 goods as his own to the person deceived by 
 such falsification, it is the person to whom the 
 goods arc so disposed of who puts a trust and 
 
 jj 2
 
 ( 36 ) 
 
 confidence in the honesty of the deceiver, and 
 he should be the loser, not the principal, who, 
 having taken every necessary precaution, ought 
 not to be affected by the fraudulent conduct of 
 the factor. In such a case as that which is 
 suggested by Lord Ellenborough, if it could be 
 clearly established, that the owner had by his 
 conduct enabled the factor to appear as pro- 
 prietor of the goods, and by that means to im- 
 pose on a third person without any fault on the 
 part of that person, he might be sufficiently 
 protected by a court of law construing such 
 conduct of the owner as a general unlimited 
 authority to the factor to use his discretion in 
 the disposal of the goods, amounting to a per- 
 mission to pledge them, if necessary. And if a 
 proper case should arise for such a construc- 
 tion, it might be made under the rules of the 
 common law, as applied to the transactions of 
 merchants, without resorting to any statutory 
 law for the purpose. It is the peculiar advan- 
 tage of a lex non scripta that it accommodates 
 itself to cases as they arise, which could never 
 be sufficiently comprehended in any code of 
 written laws; and the particular case which 
 would justify a written law ought to be such as 
 cannot, by any fair construction, be included 
 within the rules of the common or unwritten
 
 ( 37 ) 
 
 law ; if it can, the written law is unnecessary 
 and no statutory provision is called for. 
 
 It is also a supposed case of hardship, where 
 the factor in this country has advanced money 
 to his principal upon the goods consigned to 
 him for sale, and the state of the market is 
 such as precludes a sale without sacrificing the 
 property of the princi])al ; in which case it 
 it has been said that the factor should have 
 the power of pledging the goods of his principal 
 to the amount of his advances upon them : But 
 what need is there to alter the law for this 
 purpose ? The factor has only to provide him- 
 self with the authority of the principal to pledge 
 the goods, and then making his character un- 
 equivocal, he avoids any sacrifice of the pro- 
 perty of his principal, and awaits a better state 
 of market ; that this is sometimes done in case 
 of low markets in London, must be well known 
 to all persons conversant with the trade of that 
 city. Armed with such an authority, the factor 
 has no more dilficulty in obtaining;" advances, 
 and per /i a /IS not so much as he would have if he 
 sought them on account of his own goods; for 
 the production of the authority removes the 
 suspicion which may arise in some cases, 
 where a party offers to pledge his own goods. 
 
 And this leads me to another supposed case
 
 ( 38 ) 
 
 of hardship said to arise out of the present rule 
 of the Enghsh law, namely, that it places diffi- 
 culty in the way of obtaining advances upon a 
 merchant's own property by way of deposit. 
 That this difficulty exists to any injurious ex- 
 tent I do not believe ; or that a merchant of 
 character is at present deprived by the opera- 
 tion of the law of England in this respect from 
 obtaining advances by way of deposit of his 
 own goods as a security. I can suppose that a 
 merchant of blemished reputation may be under 
 some difficulty in effecting such a transaction ; 
 but not more so in this than in any other parti- 
 cular. He who deals with men of bad cha- 
 racter necessarily does so at his peril, and is 
 cautious; and surely it is no small objection to 
 a relaxation of the principle of this law, that it 
 will facilitate fraud. 
 
 There is no greater error in legislation than 
 in granting particular privileges without regard 
 to general interests. If the effect of the par- 
 ticular privilege be to render general interests 
 less secure, it must be a case of very great ne- 
 cessity in the particular instance that will jus- 
 tifj'^ the interposition of a law in favour of it. 
 Does such necessity occur in the last-mentioned 
 instance? It is for those who ask for the in-'
 
 ( -^ ) 
 
 terference of the legislature to prove that it 
 does. There are many rules of law which im- 
 pose restraint upon the dealings of honest men 
 whose interests may be affected by them if 
 they chance to deal with rogues ; and the 
 maxim caveat emptor is of extensive application 
 in our law. The rule of law laid down in Hern 
 V. Nichols, 1 Salk. 289, " that where one of two 
 innocent persons must suffer by deceit, he that 
 first employs and puts a confidence in the de- 
 ceiver should be a loser rather than a stranger," 
 as was said by Mr. Justice Holroyd in Baring 
 and others v. Corrie and another, 2 Barne- 
 wall and Alderson, 148, " must be taken with 
 some qualifications ; as, for instance, if a factor, 
 even with goods in his possession, acts beyond 
 the scope of his authority and pledges them, 
 the principal is not bound ; or, if a broker 
 having goods delivered to him is desired not 
 to sell them, and sells them, but not in market 
 overt, the priiici])al may recover them l)ack. 
 The truth is, that in all cases, excepting where 
 goods arc sold in market overt, tlie rule of 
 caveat cmj)tor a})j)lies." 
 
 The topics connected witli the subject of 
 these observations wouhl, irj)ursued in all their 
 various relations to the law of tiiis country, and
 
 ( 40 ) 
 
 the usage of merchants, require a much fuller 
 investigation than I have proposed to undertake 
 at present. My object in now publishing them 
 is, that I may distribute information which may 
 be useful to others in forming their opinions 
 upon the question, which appears to be fol- 
 lowed up with a precipitancy not consistent 
 with an object of so much commercial im- 
 portance, and upon which it would be unwise 
 to legislate without the fullest inquiry and de- 
 liberation. 
 
 The meetins: of the merchants was on Thurs- 
 day, the 1st of May. It was suggested at the 
 meeting that it would be desirable to use expe- 
 dition; and that this suggestion has not been 
 disregarded is apparent in the rapid steps which 
 have been taken. 
 
 The Resolutions were published on Wed- 
 nesday, the 7th of May ; a petition was pre- 
 sented by the Chairman of the meeting of Mer- 
 chants, to the House of Commons, on Monday, 
 the 12th of May, who, after presenting it, gave 
 notice of a motion for the following day for the 
 appointment of a Committee. In consequence 
 of there being no house on Tuesday, the motion 
 of the honourable member did not take effect ; 
 and on Friday, the 16th of May, he moved for
 
 ( 41 ) 
 
 a committee to inquire into the state of the law 
 relating to goods entrusted to merchants as 
 agents or factors — and a committee was named. 
 It was observed on this occasion, that brokers 
 and not consignees, were the parties interested 
 in the measure which was the object of the peti- 
 tion. Upon this matter I express no opinion ; 
 it docs not signify whose particular interest it 
 is ; if it be injurious to the general interests of 
 commerce, the latter demand protection. 
 
 It is ill consequence of the active measures 
 which have been taken to procure an alteration 
 of the law, that I have been induced to publish 
 these observations without delay, in the hope 
 that they may have the effect of inducing those 
 to whom the duty of legislation is entrusted, to 
 make due imiuiry, that they may be satisfied, 
 before they give relief in a ])articular instance, 
 that the case calls for their interposition, and 
 that an alteration of the existing law can be 
 made without affecting the interests of the 
 principal. I'lie law, as it is now interpreted, 
 |)rotccts tiic foreign merchant against fraud, 
 and forms a valuable i)art of that excellent 
 system of jurisprudence, whicli lias raised the 
 commercial law of this country so high in the 
 estimation of foreign nations; affording security 
 
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