to recover both sums; Willes, C. J. (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", 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. 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 qualityP (5). Notice to the principal is notice n Houghton v. Matthews, per Heath, Rooke, and Chambre, Js. Alvanley, C. J. dissentiente, 3 Bos. & Pul. 485. o 4 T. R. 66. per Kenyon, C. J. Per (5) But see 9 H. 6. 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, to all his agents, if there be reasonable time to communicate that notice to the agents before the event which raises the question happens. 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. 4. 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 was 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 shewn in evidence by the person disputing such fact. By s. 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 q Mayhew v. Eames, 3 B. and C. 601. recognized in Willis v. Bank of Eng land, 5 Nev. and Mann. 490. 4 Ad. and Ell. 21. S. C. an action on the case does not lie against me, unless he sold it through my covin or by my command. 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. 4. 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 bonâ 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 shewn in evidence by any person disputing such fact; and by s. 2, that any person intrusted with, 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 (6), thereafter entered into by such person (6) Persons who would avail themselves of the provisions of this act, must prove the agreement. Evans v. Truman, 2 B. & Ad. 886. 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 bonâ fide owner of the goods so sold or pledged: provided 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 person so possessed and intrusted: and, by s. 4, any person, &c. may contract with any agent intrusted with any goods (7), or to whom the same may be consigned, for the purchase of any such goods, and receive the same of, and pay the same to, such agent, and such contract and payment shall be binding against the owner of such goods, notwithstanding such person, &c. shall have notice, that the person making such contract, or on whose behalf such contract is made, is an agent, provided such contract and payment be made in the usual and ordinary course of business, and that such person, &c. shall not, when such contract is entered into or payment made, have notice that such agent is not authorized to sell the goods or to receive the purchase-money. And by the 5th section (8), any n S. 3. 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. (7) It is difficult to say precisely what is meant by an agent intrusted with goods;" but a wharfinger is not such a person. Monk v. Whittenbury, 2 B. and Ad. 486. " (8) A broker having accepted bills for his principal on the security of goods then in his hands, pledged the goods with a person who had notice of the agency, but did not inform the principal of this person, &c. may take any such goods or any such document in deposit or pledge from any such factor or agent, notwithstanding such person, &c. shall have notice, that the person making such deposit or pledge is a factor or agent; but then such person, &c. shall acquire no further right to the goods or document, for the delivery thereof, than was possessed or might have been enforced by the factor or agent at the time of such deposit or pledge as security; but such person, &c. shall and may possess and enforce such right as was possessed and might have been enforced by such factor or agent at the time of such deposit or pledge. [The right of a factor to pledge under this section depends upon the question whether, upon the face of the whole account between them, the principal is indebted to the factor. Robertson v. Kensington, 5 M. & Ry. 381.] It is, however, provided, that nothing herein contained shall be construed to prevent the true owner of the goods from recovering the same from his factor or agent before a sale, deposit, or pledge, or from the assignees of such factor or agent in the event of his bankruptcy, nor to prevent the owner from recovering from any person, &c. the price agreed to be paid for the purchase of such goods, subject to any right of set-off on the part of such person, &c. against such factor or agent, nor to prevent the owner from recovering from such person, &c. the goods deposited or pledged upon repayment of the money, or on restoration of the negotiable instrument advanced on the security thereof by such person, &c. to the factor or agent, and upon payment of such further sum of money or on restoration of such other negotiable instrument (if any) as may have been advanced by the factor or agent to the owner, or on payment of money, equal to the amount of such instrument, nor to prevent the owner from recovering from such persons, &c. any balance remaining in his hands as the produce of the sale of the goods, after deducting the o S. 6. transaction; it was holden*, that under this section the broker could transfer such right only as he had, which was a right to be indemnified against the bills which he had accepted, and that the principal, having satisfied those bills, was entitled to have back his goods from the pawnee without paying the amount for which they were pledged. *Fletcher v. Heath, 7 B. & C. 517. The provision in this section refers to a deposit or pledge only, made distinctly as such. Thompson v. Farmer, M. & Malk. 48. |