Of Fugitives from Service. that he had fled from Pennsylvania, but mere-offender, there is no foundation for a warrant. ly that as a fugitive from Pennsylvania he So held, in the case of a fugitive from Great had taken refuge in this State,- Held, that Britain, claimed under article 10 of the treaty either of these defects in the affidavit was of 1842.. Supreme Ct., Chambers, 1853, Matfatal. Ib. ter of Heilbonn, 1 Park. Cr., 429. 10. Witnesses. Upon habeas corpus on behalf of one arrested as a fugitive from justice, under the act of 1839, the committing magistrate, and the clerk of his court, may be called to prove upon what papers the warrant issued. Ib. 11. Extradition independent of treaty. The law of nations requires that offenders charged with felony or other high crimes, and escaping into a foreign and friendly jurisdiction, should be delivered up to the proper authorities of the government from which they have escaped, upon such evidence of guilt as would require their commitment for trial, had the crime been perpetrated in their State. By the Chancellor, 1819, Matter of Washburn, 4 Johns. Ch., 106; S. C., 3 Wheel. Cr., 473. Supreme Ct., 1832, Matter of Clark, 9 Wend., 212. 12. Therefore, even since the expiration of the treaty of 1796, between the United States and Great Britain, the chancellor, or a judge of the Supreme Court in vacation, has jurisdiction to examine a prisoner brought before him on habeas corpus, and who has been taken into custody, on a charge of theft or felony committed in Canada, or in a foreign State, from which he has fled; and if sufficient evidence appears against him, he may be remanded; otherwise he must be discharged. Ib. 13. — under treaty. The President of the United States has no authority, by virtue of a mere treaty stipulation, and without an express enactment of Congress, to deliver up an alleged fugitive from justice to a foreign government. The treaty must be executed by an act of Congress before the officers of government or the courts can take proceedings for carrying it into effect. Supreme Ct., Chambers, Matter of Metzger, 1 Barb., 248; S. C., 1 Park. Cr., 108; 5 N. Y. Leg. Obs., 367. 14. Where a complaint, preferred as the basis of a warrant for the return of a fugitive from justice, charges the crime in general terms, and also sets forth the facts relied on as constituting it, and it appears that the facts thus alleged do not amount to a crime of such degree as authorizes the extradition of the As to the Construction of the provisions of the United States Constitution on the subject of fugitives from justice, see CONSTITUTIONAL LAW, 106-110. His II. OF FUGITIVES FROM SERVICE. 15. Attachment against slave. A slave escaped from this State to Vermont. master followed him, and took him in that State. But while in his possession, an attachment was issued against the slave for debt, on which the slave was arrested by an officer and imprisoned;-Held, in an action of trespass against the officer by the master, that the master had a right to reclaim the slave, as a fugitive from service, under the provisions of art. 4, § 2, of the U. S. Constitution, and that the slave was incapable of contracting so as to impair the right of the master to reclaim him. Supreme Ct., 1812, Glen v. Hodges, 9 Johns., 67. 16. Writ of personal replevin. Where a fugitive slave, brought before an officer on habeas corpus, sues out a writ of homine replegiando, and judgment is rendered for claimant, the officer does not thereby lose jurisdiction, but it is his duty to grant a certificate authorizing the removal of the fugitive. Supreme Ct., 1834, Floyd v. Recorder of New York, 11 Wend., 180. But compare, as to the constitutionality of the statute authorizing the writ, Jack v. Martin, 12 Wend., 311; affirmed, 14 Id., 507; Dixon v. Allender, 18 Id., 678. 17. Constitutionality of State statutes. The power to legislate for the return of fugitives from service is exclusively vested in Congress. A State Legislature has no power to add to or interfere with the legislation of Congress upon the subject. Supreme Ct., 1834, Jack v. Martin, 12 Wend., 311; affirmed, ou other grounds, 14 Id., 507; Chambers, 1846, Matter of Kirk, 1 Park. Cr., 67; S. C., 4 N. Y. Leg. Obs., 456. 18. Hence, a State statute which authorizes a person unconnected with the owner of a slave to retransport him from our territory to the State where he was held to service,—e. g., the provision of 1 Rev. Stat., 659, § 15, which Selling on Credit. low the eagrait of a rewel on board which 'manded to the State from which he is claimed are a fosad wcreted to curry to bare escaped, where he is at full liberty to 4.1 val. Son vieiling & certificate.-—is co- have the questi le tried and adjudicated. N. Y. wetion bupreme Ct.. Chambers, 1848, Superior Ct, Chambers, 1851, Long . Hall, 3 Matter of Kirk, 1 Park, Cr, 67. Sandf, 729. 19. Effect of determination of commismower. Precedings under the Fugitive slave Iaw do not determine the fact that the fugiLive is a slave, but merely that he shall be re As to the constraction of the provisions of the United States Constitution on the subject of fugitives from service, see CONSTITUTIONAL LAW, 111-113. PACTOR F. 5. Although a factor has made advances upon the goods, he is, nevertheless, bound by the subsequent instructions of his principal as to sale. If instructed not to sell, he cannot sell for the repayment of his advances, unless the principal, after reasonable notice to pay the Com-advances, fails to do so. Ct. of Appeals, 1849, Marfield . Goodhue, 3 N. Y. (3 Comst.), 62; S. C., 8 N. Y. Leg. Obs., 110; reversing S. C., 1 Sandƒ., 360. 1. Instructions obligatory. A factor is bound to follow the instructions of his principal; saving only the factor's lien upon the goods. Supreme Ct., 1797, Le Guen . Governeur, 1 Johns. Cas., 2 ed., 437, note. pare Urquhart o. Mclver, 4 Johns., 103. 2. Thus, where a factor sold goods upon terins that payment should be made either in this country or at a specified port in Europe, at the option of the factor, and the principal directed the factor to elect to have payment made in Europe, and to give the princi-justify a sale,-Query? Ib. pal an authority to receive the money there from the purchaser, which the factor refused to do,-Held, that the factor thereby made himself personally liable in the place of the purchaser. Ib. 6. Whether special circumstances, such as insolvency of the principal, impracticability of communicating with him, &c., may not also 7. Where goods are consigned to a factor for sale, with specific instructions as to price, he has no right to sell below the price named, to cover his subsequent advances, unless, after due notice and request, the consignor neglects to repay them. Ct. of Appeals, 1849, Blot v. Boiceau, 3 N. Y. (3 Comst.), 78; reversing S. O., 3. Where a principal consigns property to his factor, with instructions to sell upon arrival, the latter is bound to follow the instruc-1 Sandf., 111. tions, and sell for the current price. If he does not, he will be liable for the damages his principal may sustain by a fall in the market. And it is no excuse that the market was dull, if the property might have been disposed of at a reduced price. Ct. of Appeals, 1852, Evans . Root, 7 N. Y. (8 Seld.), 186. 4. notwithstanding advances. Even where the factor had previously made advances on the goods to more than their value, for which he had a lien,-Held, that he was bound by his principal's instructions to sell immediately; and that having refused the first offer, and afterwards having been obliged to sell at a lower price, he was liable for the difference. Supreme Ct., 1826, Bell v. Palmer, 6 Cow., 128. See, also, La Farge v. Kneeland, 7 Id., 450. 8. Letters of instruction from a principal to a factor, if ambiguous, are to be interpreted favorably to the factor. N. Y. Superior Ct., 1845, Russell v. Wetmore, 3 N. Y. Leg. Obs., 318. 9. For illustrations of the interpretation placed upon letters of instruction by a principal to his factor, in particular cases, see Vianna v. Barclay, 3 Cow., 281; Bell v. Palmer, 6 Id., 128; La Farge v. Kneeland, 7 Id., 456. 10. Protection, when uninstructed. That a factor who is not particularly instructed, but in whom a discretion is vested, is entitled to protection so long as he acts according to the best of his judgment, and in good faith. Liotard v. Graves, 3 Cai., 226. 11. Selling on credit. A factor who is not specially instructed to sell for cash alone, and Extending Credit. When personally liable. not on credit, may sell on credit for the period price, sells the goods of his principal, under usual in the market, making use of due dili- an agreement, made without the consent of gence to ascertain the solvency of the pur- the principal, that the price should be set off chaser. Supreme Ct., 1810, Van Alen v. Van-against a debt due from the principal, he acts derpool, 6 Johns., 69; and see Robertson v. beyond the scope of his authority, and is liaLivingston, 5 Cow., 473. ble to the principal for the value of the goods. Supreme Ct., 1816, Guy v. Oakley, 13 Johns., 332. 12. A factor who sells the goods, on time, to a person in good credit, in the usual course of trade, is not liable, though the vendee fail before the note falls due. Supreme Ct., 1808, McKinstry. Pearsall, 8 Johns., 319; 1810, Van Alen v. Vanderpool, 6 Johns., 69. 13. Extending credit. The power to sell on credit has been engrafted by usage upon the common law governing the relation of principal and factor. It is not to be extended. By extending the term of credit, after the sale has been completed, the factor exceeds his powers, and makes himself liable. So held, ngtwithstanding that the factor, on renewing the note originally given, retained it, and on the dishonor of the renewal-note, sued the original one and obtained judgment, and offered an assignment of it to the principal. Supreme Ct., N. P., 1825, Douglass v. Bernard, Anth. N. P., 278. 14. Exchanging purchaser's note. Where a factor sold on credit, and took the purchaser's note, and subsequently exchanged it for the note of another, indorsed by the purchaser, falling due before the first note,-Held, that this was a mere improvement of the security, and did not make the factor liable for loss. Supreme Ct., 1826, Corlies v. Cumming, Cow., 181. 18. Assuming the debt. The factor, having sold on credit, received part payment, and authorized his principal to draw for the whole, to close the account, which he did. Held, that the factor had assumed the outstanding debt, and could not recover it, upon the failure of the debtor, from the principal. Supreme Ct., 1825, Oakley v. Crenshaw, 4 Cow., 250. S. P., Chancery, 1818, Consequa v. Fanning, 8 Johns. Ch., 587; reversed, on other grounds, 17 Johns., 511. 19. But where, at the request of the principal, the factor gave him his note for the amount that would be due to him if the debt for the goods were paid, payable after the debt would be due, it was Held, a mere liquidation of the account, and not an assumption of the debt. [Distinguishing 4 Cow., 250.] Supreme Ct., 1826, Robertson v. Livingston, 5 Cow., 473. 20. W., with the consent of M., his principal, made an entire sale of his wheat, together with wheat belonging to others, and took cash and drafts for the amount of the whole sale, instead of separate bills for each parcel. M.'s proportion of the bills was $4,578, and some of them, to the amount of $1,750, were used in paying paper of defendant, the principal, then falling due, and the other bills were discounted on the indorsement of W., who ap 15. The mere taking of a purchaser's note for the whole amount of two sales to him of the goods of two several principals, does not make him liable to them, in case of the pur-plied $2,828 of the avails to taking up their chaser's becoming insolvent. Ib. 16. Factor when personally liable. The principal wrote to his factor that he had made a consignment to him, and should anticipate the avails by drawing certain bills of exchange on him; and the factor answered, agreeing to receive the consignment and accept the bills; but afterwards refused one of the bills. Held, that he had become bound to accept and pay them, and was liable to the drawer for the costs and damages he had been compelled to pay by reason of the protest. Supreme Ct., 1809, Urquhart v. McIver, 4 Johns., 103. 17. Where a commission merchant, who is under instructions not to sell under a certain VOL. III.-9 acceptances for M.'s accommodation; and all the parties to the bills, prior to W., failed before their maturity. Held, that W. had not made the bills his own, and was not liable for the loss. [6 Cow., 181.] Supreme Ct., 1853, Rich v. Monroe, 14 Barb., 602. And see CONFUSION AND ACCESSION, 9. 21. What defences available. A factor who is sued at law by his principal for a breach of trust, or orders, whereby he has substituted himself in the place of a vendee, may set up fraud or any other matter of defence, which the vendee could have done if the suit had been against him. Thus, where a factor being thus sued, and having knowl Powers and Duties. The Factor's Act. destroyed by fire uninsured. Chancery, 1832, Brisban v. Boyd, 4 Paige, 17. edge of the facts relied on, neglected to set to become liable for the loss, in case they are them up in that action, but after judgment against him, filed a bill in chancery for relief, on the ground of the alleged fraud,-Held, that he was precluded. Ct. of Errors, 1800, Le Guen v. Governeur, 1 Johns. Cas., 436.* 27. Delegating powers. The factor for sale cannot delegate his power. If he places the goods with another factor for sale, with22. Goods at factor's risk. The principal out the consent of his principal, though upon instructed his factor to purchase for him, on the same terms upon which they were intrustthe most favorable terms, and forward certained to him, he is guilty of a conversion. Ct. goods. The factor bought them for his own of Appeals, 1853, Moffat v. Wood, Seld. Notes, notes at six months' credit, without interest, No. 5, 14. Compare infra, 67. and sent them to an agent, with instructions 28. To pledge the goods, is not within the not to deliver them without immediate pay-powers of a factor, as such. Supreme Ct., ment, or security at ninety days. The goods 1817, Kennedy . Strong, 14 Johns., 128. were destroyed by fire while yet in the store Chancery, 1821, Rodriguez v. Heffernan, 5 of the agent. Held, that the factor had made Johns. Ch., 417. the goods his own by refusing his principal the benefit of the six months' credit, and thereby became a vendor offering terms of sale, and that the loss must fall upon him. Supreme Ct., 1884, Williams v. Littlefield, 12 Wend., 362. 23. Sending goods abroad. An agent receiving property to sell in his discretion, is not restricted to selling in the market where he resides, but may, in good faith, commit the property to another agent in another market. Supreme Ct., 1889, McMorris v. Simpson, 21 Wend., 610. 24. Factor's right of action. A factor, or commission merchant del credere, who is in advance, or under acceptance on the credit of goods consigned to him, may maintain replevin for them against the carrier or warehouseman to whom they have been delivered by the owner for the factor. So held, where the factor's advances were to the full value of the goods. Supreme Ct., 1840, Holbrook v. Wright, 24 Wend., 169. 25. Under the Factors' Act (Laws of 1830, 203, ch. 179, §§ 1, 2; CONSIGNOR AND CONSIGNEE, 2), the consignee entitled to a lien, is not limited to the right to detain the goods, but may maintain an action to obtain possession of them against a party claiming them under an inferior title. Supreme Ct., 1858, Dow v. Rush, 28 Barb., 157. 26. Insurable interest. A factor has an insurable interest in the goods; but in the absence of instructions, or of proof of usage of trade, he is not bound to insure them, so as 29. That at common law (prior, in England, to 4 Geo. IV., ch. 83; 6 Id., ch. 94; 5 and 6 Vict., ch. 39; and, in this State, to Laws of 1880, 203, ch. 179, infra, 32), a factor for sale had no authority to pledge-not even to secure moneys raised for the use of his principal. Bonito v. Mosquera, 2 Bosw., 401. lien. 30. Nor even to the extent of the factor's [Citing many cases.] Walther v. Wetmore, 1 E. D. Smith, 7. 31. Although a factor cannot pledge the goods of his principal as his own, yet he may deliver them to a third person, with notice of his lien, and to keep the possession for him, as his agent, and in order to preserve his lien. Supreme Ct., 1809, Urquhart v. McIver, 4 Johns., 103. 32. The Factor's Act. Every factor, &c., intrusted with the bill of lading, custom-house permit, or warehouse-keeper's receipt; and every factor not having the documentary evidence of title, who shall be intrusted with the possession of merchandise for the purpose of sale, or as security for advances, is to be deemed the true owner, so far as to give validity to his contract for the sale or disposal of such merchandise, for any money advanced, or negotiable instrument, or other obligation in writing given upon the faith thereof. Laws of 1830, 203, ch. 179, § 3. 33. But a person who takes merchandise from a factor to secure an antecedent debt, acquires no better right than the factor had at the time. Laws of 1830, 203, ch. 179, § 4; and compare Laws of 1858, 532, ch. 326; amended, Laws of 1859, 862, ch. 353. 34. Contract previous to the advance. Section 3 of the Factor's Act (supra, 32) does not require that the contract with the factor should be made at the point of time when the * Judge Radcliff's notes of his opinion in this money is advanced on the negotiable instrucase are given in 8 Johns. Cas., 2 ed., 605. ment, or other obligation in writing given; Interpretation of the Factor's Act. all it exacts is, that the one or the other should the world of an unlimited authority to sell take place upon the faith of it. There must them; so as to preclude the owner from be a contract of sale or pledge existing at the showing, as against a purchaser, that they time of the advance or obligation entered into; were intrusted to him, not for sale, but for a but it may have been previously arranged. different purpose,-such as transportation or Supreme Ct., 1838, Jennings v. Merrill, 20 temporary custody. [Reviewing 15 East, 38; Wend., 9. Id., 400; 20 Wend., 281; Story, Ag., §§ 127133.] N. Y. Superior Ct., 1857, Cook v. Beal, 1 Bosw., 497. S. P., Supreme Ct., 1847, Covill v. Hill, 4 Den., 323; reversed, on another point, 1 N. Y. (1 Comst.), 522. 35. Thus, where a factor, having goods in possession for the purpose of sale, agreed with another person that he should have them as security for indorsements to be made for the factor,-Held, that the factor was to be deeined the true owner, and that the contract was valid from the time the indorsements were made upon the faith of it. Ib. Section 36. Notice of true owner's title. 3 of the Factor's Act does not protect a party who has taken a pledge or sale of the goods from a factor with notice that he was not the true owner. To entitle a pledgee or purchaser to the benefit of the act, it must appear that he believed the factor to be the true owner. Ct. of Errors, 1846, Stevens v. Wilson, 3 Den., 472; affirming S. C., 6 Hill, 512; S. P., infra, 37, 41. 37. The bill of lading furnished to the consignee, stated that the property was shipped by P. for C., and the consignee had notice that C. was the owner;-Held, that the consignee's advances to P. were not protected by the Factor's Act. In such case, the consignees are not within sections 1 or 2 (see CONSIGNOR AND CONSIGNEE, 2), because the property was not shipped in the name of P. but of C., and they also had notice of the true ownership. They are not within section 3 (supra, 32), because the owner never intrusted P. with a bill of lading, nor with the possession of the property for sale, or as security for advances to be made thereon. [4 Den., 331; 6 Mees. & W., 572; 9 Id., 647.] Ct. of Appeals, 1852, Covell . Hill, 6 N. Y. (2 Seld)., 374. 38. A clerk of the owner of goods, intrusted with the bill of lading, &c., as such clerk merely, cannot be deemed a "factor" within the meaning of the Factor's Act, for the purpose of sustaining an unauthorized disposal of the goods, made by him. N. Y. Superior Ct., 1848, Zachrisson v. Ahman, 2 Sandf., 68.* 39. The mere possession of goods by a factor is not, by commercial law, evidence to 40. Nor does the Factor's Act render valid a sale of goods made in fraud of the owner by a person to whom they were intrusted for storage only. Section 3 of that act only applies to cases where the factor is intrusted with the documentary evidence of title, or with the possession of the goods "for the purpose of sale." And section 6 clearly implies that a sale by one to whom the goods are intrusted for storage or transportation only, is void. N. Y. Superior Ct., 1857, Cook v. Beal, 1 Bosw., 497. 41. Pledge by factor. Where a pledge, &c., by a factor, is sought to be sustained under section 3 of the Factor's Act, on the ground that he was intrusted with the documentary evidence of title mentioned, it must appear— 1. That the pledgee had no notice, from the language of the document relied on, or otherwise, but that the factor was the true owner. 2. That the document was transferred and delivered to such pledgee simultaneously with his advance, in such manner as to vest in him either the title, or the exclusive right and means of obtaining possession. 3. That the document relied on is one of the three enumerated in the statute. A permit for landing goods on which duties have not been paid, to the end they may be stored in bond, as authorized by acts of Congress, August 6, 1846, and March 28, 1854 (9 U. S. Stat. at L., 53; 10 Id., 270), is not such a "custom-house permit;" nor is a receipt of the keeper of a bonded warehouse on receiving goods for storage, given under the acts of Congress, such a "warehouse-keeper's receipt" as is embraced within the act. 4. That the document was "intrusted" to the factor by the owner of the goods, i. e., it must have been delivered or transmitted to the factor by the owner, or have been reApproved in Bonito v. Mosquera, 2 Bosw., 401, ceived by the factor in the proper and ordinary mode of discharging his trust. |