must carry ourselves back to the 5th of July, 1823, and the other
times mentioned on the face of the papers,) or were they made
up from subsequent events? In the absence of proof, if the de-
fendants' characters are fair, they are to be presumed to have
been regular and correct.
But orders were given and accepted in favour of several of the
shippers. But independently of this, consider, as I said before,
if the defendants might not trust the supercargo to distribute
the funds among the shippers, his employers. Consider the law.
A factor cannot pledge, though his character is unknown to the
pledgee. It is hard, but the law is so settled. Courts have
struggled to get out of it, or distinguish cases from its principles.
Examine the cases cited from Patterson v. Tash, down, and
Laussatt v. Lippincott, and the usage of trade. This it appears
to me was no pledge, but a deposit, with power to sell according
to that usage, (if you find it to be one,) not for payment of his
own debt, but to reimburse advances made to him as supercargo.
On the whole, if you are satisfied that the defendants acted
fairly and bonafide, according to the usage of trade, as it existed
at St. Jago de Cuba, or according to general mercantile usage
und course of trade, they are justified in retaining the proceeds
>f the plaintiff 's goods, and he is not entitled to recover the one
224
#.15,1833.] OF PENNSYLVANIA. 201
[Newbold t;. Wright and Shelton.]
thousand four hundred and thirty-one dollars and thirty-five
cents which he claims ; unless you can discover something un-
mercantile in the defendant's conduct, something like fraud,
something to deserve blame and censure.
He directed the jury, if they found for the plaintiff for the
balance of two hundred and ninety-three dollars and six cents,
to give a verdict for that sum, with or without interest, subject
to the opinion of the court, whether, on the whole evidence the
plaintiff was entitled to recover that amount. He charged on
three points as requested by defendants' counsel :
1. That if the jury believe that the defendants acting bona
fide, made advances at St. Jago de Cuba to C. Hollinshead,
supercargo and consignee, on his depositing the goods in question
with them for sale and payment of the advances, and that this
was done in conformity with the usage of trade at that port, the
defendants are entitled *to retain the goods and pro- r*9A9-i
ceeds thereof for the payment of the advances so made. "-
2. That even if the defendants knew or suspected that there
were several owners of the cargo, and made advances on the
whole bona fide, in conformity with the usage of trade at St.
Jago de Cuba, to C. Hollinshead, as supercargo and agent of
all the owners, and on their account, which advances were dis-
tributed by C. Holliushead, in proportions unknown to the
defendants, the defendants properly accounted with C. Hollius-
head.
3. That Thomas & Martin having acted throughout with the
sanction and approbation of the plaintiff, he is bound by all their
acts and omissions.
To this charge the plaintiff's counsel excepted and the judge
sealed a bill of exceptions.
The jury found a verdict in accordance with the charge of the
judge for the balance of two hundred and ninety-three dollars
and six cents, with interest, and the plaintiff sued out a writ of
error.
The points made by the plaintiff's counsel on the trial were
1. That in point of fact no advance was made by the defend-
ants on the plaintiff's goods.
2. That Hollinshead, the consignee, had no authority to take
such an advance f>n the goods as this w r as alleged to be.
3. That the defendants knew Hollinshead was the agent and
not the owner.
4. That after they knew it, they delivered goods and made
payments to the other shippers, when, if the advance was
made as was alleged on the goods of all the shippers, it should
have been borne rateably by all.
VOL. iv. 15 225
202 SUPREME COUET [Philadelphia,
[Newbold v. Wright and Shelton.]
5. That the usage of trade relied on by the defendants had
none of the requisites to constitute a good usage.
J. L. Newbold for the plaintiff in error.
1. The most material questions of fact were withdrawn from
the jury ; these were : 1. Was there in fact any advance on the
plaintiff's goods? 2. If so, what was its character ? Was it a
pledge by the supercaigo for his own debt? The plaintiff was
entitled to the opinion and judgment of the jury on these points,
which were purely questions of fact. The judge decides them
both. He says, " This was no pledge, but a deposit for sale,
not for payment of his own debt, but to reimburse advances
made to him as supercargo." He says it was like the case of
Laussatt v. Lippincott, 6 Serg. & Rawle, 386, yet there it was ex-
pressly left to the jury to say whether the deposit was a pledge
or sale. Work v. Lessee of Maclay, 2 Serg. & Rawle, 415 ;
Hershey v. Hershey, 8 Serg. & Rawle, 333.
The charge of the judge was confused, so as to leave the jury
at a loss, which is error. Selin t\ Snyder, 1 1 Serg. & Rawle,
319 ; Less, of Snyder v. Snyder, 6 Binu. 498 ; Work v. Lessee
r*or)T| f Mac-lay, 2 Serg. *& Rawle, 417. Questions of fact
-" and law are blended throughout the charge so as to
render it difficult for the jury to distinguish between them. Both
law and facts were decided by the judge against the plaintiff;
nothing was left to the jury. " The court should sum up the
facts and submit them with the inferences of law ; but care
should be taken to separate the law from the facts, and leave the
latter in unequivocal terms to the jury, as their peculiar pro-
vince," says Judge Story in M'Lanaham v. U. In. Co., 1 Pet.
Rep. 182. The evidence we thought was decisive that there was
in fact no advance, and that if there was, the advance was a
pledge for Hollinshead's own debt, in either of which cases the
plaintiff was entitled to recover. The judge took these questions
from the jury, and erred in doing so.
2. The judge erred in telling the jury, the plaintiff was bound
by Hollinshead's act in obtaining an advance, and that the de-
fendants were entitled to retain for payment of the advance.
This brings up the question, can a factor pledge the goods of
his principals? The judge admits in terms that the law is set-
tled that he cannot, but denies the present case to be within
the rule. It is not necessary to inquire into the policy of this
rule ; it is sufficient to show the law is, and has long been set-
tled, and cannot now be altered, except by an act of the legis-
lature. I shall cite the various cases, not to establish the rule,
but to show the nature of the cases to which it has been applied.
The present case cannot be distinguished from some of them.
226
Feb. 15, 1833.] OF PENNSYLVANIA. 203
[Newbold v. Wright and Shelton.]
The first case was Patterson v. Tash, 2 Str. 1178. Then fol-
lowed, Daubiguy v. Duval, 5 T. Reps. 604 ; Newsom v. Thornton,
6 East, 17; Martini v. Coles, 1 Maule & Selw. 140. This case
is very similar to the present. Shipley v. Keyser, I Mau. & Sel.
484, 493. In this case the question was made whether sale or
pledge, and decided to be a pledge. Soley v. Rathbone, 2 Mau.
& Sel. 301 ; Cochran v. Campbell, Ib. in note ; M'Combie v.
Da vies, 6 East, 538 ; s. c. 7 East, 5 ; Baring v. Correy, 2 Barn.
& Aid. 137, 143, 149 ; Pickering v. Busk, 15 East, 38. There
are various cases in our own country. Skinner v. Dodge, 4
Hen. & Mun. 432 ; Van Amringe v. Peabody, 1 Mason, 440 ;
Urquhart v. M'lver, 4 Johns. Reps. 103 ; Kinder v. Shaw, 2
Mass. Reps. 398 ; Evans v. Potter, 2 Gall. 13 ; Rodriguez v.
Hefferman, 5 Johns. Ch. Rep. 417 ; Kennedy v. Strong, 14 Johns.
Rep. 128; Buckley v. Packard, 20 Johns. Rep. 421. This case
is very much like the present. The plaintiff, a merchant in New
York, consigned goods to the master of a vessel bound to Ha-
vana. The master at Havana delivered them to the defendants,
commission merchants there, for sale. The defendants sold, and
retained the proceeds to indemnify themselves for advances made
to the master. The plaintiff recovered. There are some later
cases in the English books, in all of which the doctrine is recog-
nised, and continued to be until the act of parliament changing
the law in 1825. Peet v. Baxter, 2 Eng. C6m. L. R. 472 ;
Fielding v. Kymer, 6 Ib. 295 ; Kuckein v. Wilson, 6 Ib.
408 ; Barton v. Williams, 7 Ib. 145 ; Queiroz v. Trueman,
10 Ib. 103; Sterneld v. Holden, 10 Ib. 260; s. c. r ,, 9ful
*21 Ib. 422; Greenway v. Fisher, 11 Ib. 362; Sel- L M '
lick v. Smith, 13 Ib. 66 ; Blanay v. Allen, 14 Ib. 385. But
it may be said in the case of Laussatt v. Lippincott, 6 Serg. &
Rawle, 386, is an answer to all this array of authorities. There
the doctrine that a factor cannot pledge was recognised. That
case was very different from the present. That was a case of
sale, so found by the jury. There is no analogy between the
cases.
3. The usage of trade set up cannot help the defendants. It
is contrary to a long established, well settled rule of law. That
this cannot be, is settled by authority. Frith v. Barker, 2 Johns.
Rep. 335. C. J. Kent says, "although usage is often resorted
to for explanation of commercial instruments, it never is or ought
to be received to contradict a settled rule of commercial law."
Collings v. Hope, 3 Wash. C. C. Rep. 149 ; Edie v. East In. Co.
2 Burr. 1216. It cannot be supposed that the plaintiff knew of
such a usage when he shipped his goods; if not known, there is
no equity in his being bound by it.
227
204 SUPEEME COURT [Philadelphia,
[Newbold v. Wright and Shelton.]
Meredith and Dunlap, for the defendants in error. It is not
error for the judge to give his opinion on matters of fact, pro-
vided he leaves them to the jury. He did in this case leave the
facts to the jury. Was the cargo deposited with the defendants
for sale ? Was an advance made by them on the cargo ? Was
that advance made bona fide, and in the usual course of trade ?
These were questions of fact, and were left to the jury. Whether
the transaction amounted to a pledge, or a sale, or quasi sale,
was (the facts being found by the jury) a question of law ; and
the same question which was decided in Laussatt v. Lippincott.
The judge followed that case strictly. There were, however, two
circumstances in the present case, which rendered the question
of pledge or sale immaterial, viz.: 1. That the plaintiff had
instructed Hollinshead to pursue the very course which he did
pursue ; and 2. That he subsequently ratified his acts. Robinson
v. Justice, 2 Penn. Rep. 23 ; Graham v.. Graham, 1 Serg. & Rawle,
330; Renn v. Penn. Hos., 2 Serg. & Rawle, 413; Poorman v.
Smith's exors., 2 Serg. & Rawle, 464 ; Riddle v. Murphy, 7 Serg.
& Rawle, 237 ; Johnston v. Gray, 16 Serg. & Rawle, 361 "; Roberts
v. Ogilvie, 9 Price, 269; Doug. 492; 1 Mason, 270; Bredin v.
Dubarry, 14 Serg. & Rawle, 27. But if there had been no such
instructions, and no ratification, still the plaintiif would not be
entitled to recover in this action. He shipped goods (in common
with several other shippers) as part of a general cargo, of which
Hollinshead appeared to the world as the sole owner. The defend-
ants had no notice that any other person was interested in them.
The goods were really shipped for sales and returns. Hollinshead
obtained an advance on the whole cargo, and with that advance
shipped the return cargo. He distributed that return cargo
among his principals, in what proportion the defendants did not,
and could not know, even if they had known that Hollinshead
r 1 was merely an agent. Eighteen months *after leaving
J the island, Hollinshead gave orders to Bispham, Archer,
&c., for goods left in the defendants' hands. Those orders were
honoured. Thomas & Martin, whose acts are admitted to be the
acts of the plaintiff, afterwards obtained an order on the defend-
ants to account to them, when the goods should be sold and the
accounts made up. Thomas & Martin had ratified the intermix-
ture made by Hollinshead of the interests of all the shippers, by
making the settlement with him for the two hundred pieces of
Moreas which had been sold, and the circumstances under
which that settlement was made. When advised by the de-
fendants of the final sales, and of the state of Hollinshead's
account, Thomas & Martin questioned the fact of his having
obtained advances to so great an extent, but not his right to
obtain them. Under the circumstances the defendants were in
228
Feb. 15,1833.] OF PENNSYLVANIA. 205
[Newbold v. Wright and Shelton.]
\
law bound to, and in fact could account to Hollinshead, and no
other person. Pinto v. Santos, 5 Taunt. 447; 1 Eug. Com.
Law Reps. 152.
Again, the course of the factor in this case was precisely simi-
lar to that which was held legal by this court in Laussatt v.
Lippincott, 6 Serg. & Rawle, 386, being according to the course
of trade. Here, the usage of trade in the island of Cuba was
proved to be the same.
Again ; the doctrine that a factor cannot pledge to a party
who deals bona fide in the transaction, is not law in Pennsyl-
vania. In Laussatt v. Lippincott, the principle laid down in
the modern English cases, was indeed admitted by the court, but
a nice distinction was taken, in order to relieve that case from
the operation of the rule. The authority of the case is limited
to the point decided, viz., that an agent may deposit his princi-
pal's goods for sale, and take an advance on them in the usual
course of trade.
The general commercial law of Europe protects every man in
dealing bona fide, by pledge or otherwise, with a factor. 2
Kent's Comm. 628. The principle of the common law is the
same. In Wright v. Campbell (4 Burr. 2046 ; s. C. 1 Bl. Rep.
628), decided in 1767, the transaction was a pledge by the factor
for his own debt, although in form a transfer of the property
by indorsement of the bill of lading. Lord Mansfield and the
whole court held, that the party taking the pledge was pro-
tected, provided he had acted bona fide, and a new trial was granted
for the purpose of having that fact found. The loose note of
Patterson v. Tash (Stra. 1178) was cited on the argument of
Wright v. Campbell, and disregarded by the court. The law
stood then, at the time of the decision of Daubigny v. Duval (5
T. R. 604) upon Wright v. Campbell, and in conformity with
the commercial law all over the world. The unfortunate dispo-
sition to shake Lord Mansfield's reputation, which prevailed in
the court of K. B. for some years after his death, is notorious.
It was that disposition which induced the court to take the fatal
step, in Daubigny v. Duval, of overruling Wright v. Campbell,
and on the loose authority in Strange, laying down the rule
that a factor cannot pledge. It has since been ascertained that
Lord Chief Justice Lee's *decision in Patterson v. Tash r*9Ap-i
in Strange, was by a mistake of the printer entirely ^
mis-stated. The decision in that case was that a factor can
pledge. The printer misprinted it "cannot." Lord Chief Jus-
tice Lee in fact had decided the question in conformity with
common sense, and in the same manner that Lord Mansfield
afterwards decided it. The same case of Patterson v. Tash,
upon the same facts, had been heard in Chancery before Lord
229
206 SUPREME COURT {Philadelphia,
[Newbold v. Wright and Shelton.]
Hardwicke, (9 Mod. 397,) who refused to. interfere, declaring
that the course pursued by the factor in that case was legal,
that the party so dealing with him was protected, and that it
was the common -practice and had been repeatedly so decided
in Chancery. This decision of Lord Hardwicke, by a mistake
of the Index maker, escaped the notice of court and counsel in
all the subsequent English cases, and has never been cited until
now.
Lord Mansfield, Lord Hardwicke, and Lord Chief Justice
Lee, then, all agreed on this question, and Daubigny v. Duval
was really decided in opposition to all of them, although the
blunder of a printer had apparently thrown Lord Chief Justice
Lee's authority into the opposite scale, and the blunder of an
Index maker, had prevented Lord Hard wick e's opinion from
coming to the notice of the court. Daubigny v. Duval was fol-
lowed by many subsequent English cases, which threw the com-
mercial community into such confusion that it became necessary
to pass an act of parliament (2 Kent's Comm. 628, note) to
restore the law to its former state. The late English cases were
followed in New York, and a similar act of assembly was found
necessary there. They have never been yet followed in Penn-
sylvania, and it is trusted, never will be, since the blunders in
which they originated have been since exposed.
Again there is a marked distinction to be traced between
the powers of an ordinary factor, and those of a supercargo.
Hollinshead was a supercargo, and of his power even to pledge,
there can be no doubt. Thus a supercargo may change the des-
tination of the goods in his charge, (4 Camp. 183 ; 2 Camp.
529.) An ordinary factor cannot, (12 East, 381.) A supercargo
may substitute another factor, (2 Bos. & Pul. 438) ; a factor
cannot (2 Mau. & Sel. 298). A supercargo may sell at less
than the limited price (3 W. C. C. Rep. 151 ; 4 Binn. 362),
which a factor is not justifiable in doing. A supercargo may
exercise a general discretion, which a mere factor cannot do,
where he has instructions (4 Binn. 362; 2 Mod. 100). A su-
percargo has the entire control of his principal's goods in his
charge (1 2 East, 381), which a mere factor has not. Nothing
but fraud will make a supercargo even liable to his principal
(6 S. & R. 300), far less invalidate his contracts with third
persons. Finally, a supercargo may pledge (Evans v. Potter,
2 Gall 13); "he may lawfully pledge," says Judge Story, "for
anything in the ordinary course of trade." And the same prin-
ciple is laid down in Merrick v. Bernard, 1 W. C. C. Rep. 479.
In most of the cases which appear against us, there was
r*9A71 knowledge *or fraud in the party dealing with the
L J factor. In the argument they cited the following cases.
230
Feb. 15, 1833.] OF PENNSYLVANIA. 207
[Newbold v. Wright and Shelton.]
4 Hen. & Munf. 432 ; 1 Mason, 440 ; 4 Johns. 103 ; 2 Mass.
Rep. 398; 14 Johns. 128; 20 Johns. 421 ; 4 Camp. 60; 2 Esp.
557; 4 D. & N. 648; 1 Esp. Ill ; 15 East, 400; 1 Vez. & B.
202; 1 Wash. C. C. R. 174; 3 W. C. C. Rep. 151; 1 Wash.
C. C. R. 479; B. N. P. 130; 18 Johns. 24; 2 Serg. & Rawle,
417; 8 Serg. & Rawle, 335; 11 Serg. & Rawle, 319; 6 Binn.
498, 491; 1 Peters, 182; 9 Serg. & Rawle, 202; 11 Serg. &
Rawle, 134; 3 Binn. 80; 1 Serg. & Rawle, 72, 176, 330; 2
Serg. & Rawle, 70, 413, 464; 3 Serg. & Rawle, 500; 4 Serg.
<fe Rawle, 442 ; 2 Str. 1178 ; 5 T. R. 604; 6 East, 17; 1 Man.
& Sel. 140, 484; 2 Man. & Sel. 298; 7 East, 5; 2 Barn. &
Aid. 137; 15 East, 38; 10 Com. Law. Rep. 260; 21 Com. Law
Reps. 422; 1 Ry. & Moody, 219; 2 B. & B. 639; 2 Com. Law
Rep. 472; 6 Com. Reps. 480; 7 Com. Law Reps. 145; 10 Com.
Law Reps. 103; 11 Com. Law Reps. 262; 13 Com. Law Reps.
66; 14 Com. Law Reps. 385.
Chauncey in reply. The questions presented in this cause
are of great commercial interest. The plaintiff made a ship-
ment of goods consigned to a supercargo with special instruc-
tions. The consignee in the foreign port was well known to be
a supercargo, and as appears by the evidence, so known to the
defendants by former transactions. He presented himself to
the defendants with a cargo belonging to different shippers, as
must have been known to the defendants, and to defray inci-
dental expenses, he sells part of the cargo at a sacrifice. He
was owner of part of the cargo himself. He placed that with
the goods of several of the shippers in the hands of the defend-
ants for sale. He received an invoice of sugar, coffee, &c., from
the defendants and came with it to the United States. The
allegation of the defendants was that he received this as an
advance on the goods placed in their hands, and that they were
entitled to reimbursement from the sales of the goods.
The judge charged that this was a deposit in anticipation of
a sale, and not a pledge for his own debt : That independently
of usage this made the case favourable to the defendants : That
if the defendants acted bonafide, and according to the usage of
trade at St. Jago, or general usage, they were entitled to retain.
We contend, that the fact of the advance and the character of
it, were for the jury and should have been so put to them :
That usage was a mixed question ; whether there was usage,
and what it was, for the jury what its effect, for the court:
That no usage, to be regarded in point of law,, was proved at
all ; and that the charge as to good faith and usage is not sus-
tainable in law.
1. If the judge's meaning is apprehended it is, that this was
231
207 SUPREME COURT [PMladdpkia,
[Newbold v. Wright and Shelton.]
a deposit and not a pledge, and assuming this, that if they be-
lieved the defendants acted fairly and bonafide in the course of
f*208l trade, they were entitled *to retain. If he did thus
J assume, he invaded the province of the jury in a very
nice and difficult question.
As to the fact of the advance and nature of it, the whole
rested on the testimony of Brooks, the defendant's clerk, who
does not venture to assert it, but in the faintest manner. The
evidence was powerfully strong against it. Two hundred
pieces of the plaintiff's goods were sold at a loss to pay duty,
freight, &c.
The accounts show the advance was on the suuercargo's own
property, the sales he had made and the letter of credit he left
behind him.
Was not this a pure question of fact which the judge ought
to have left to the jury ? He did not leave it to them because
he makes an assumption on which he founds a direct charge.
2. If the judge did not assume this fact, he so presented it to
the jury as to give it the aspect of a question of law. "Was
this a pledge for his own debt, or like Laussatt v. Lippincott, a
deposit for sale ? It would seem to me it was not a pledge."
The conclusion he arrives at is a legal conclusion. It is said
the jury have found on this question. It is in the power of no
man on this charge to say what the jury have found. They
had no distinct question presented to them. They had no pre-
cise direction or instruction in point of law, and they were left
really without a guide, but with the opinion of the judge on
both law and fact against the plaintiff.
3. The charge of the judge is to be gathered from the answers
to the questions proposed. The case he puts is, knowledge by
the defendants that Hollinshead was an agent; good faith on the
part of the defendants ; and an advance according to the usage
of trade. This being supposed, he says the defendants were
entitled to retain. We contend he erred in point of law. The
general rule of law that a factor cannot pledge the goods of his
principal, cannot be questioned. If the defendants knew the
agency and the instructions, they were bound by them. If they
knew the agency, but not the particular instructions, they had
no right to treat him as the principal in the disposition of the
property. The supercargo is a factor, with no greater powers
than a resident factor. There is one rule for both. Necessity
may produce a new rule, and is more likely to arise in the case
of a supercargo than in that of a resident factor. The cases
cited do not bear out the distinction attempted to be shown
between supercargoes and factors.
But it is supposed the judge derives aid from usage. This is
232
Feb. 15, 1833.] OF PENNSYLVANIA. 208
'[Newbold v. Wright and Sheltou.]
not a subject of usage but of law. The attempt is to establish
a usage which mocks all law. This usage is made by eight men,
Who make it to suit exactly their own interest ; and two of them
testify to it. I understand that usage of trade, a course of
dealing, may be resorted to to explain a commercial instrument ;
but not to set aside a rule of law. It may be resorted to to
show au agent has conducted himself according to it, never to
vindicate a breach of his instructions. Frith v. Baker, 2 John.
Reps. 335.
*As to general mercantile usage to which the judge r^nqn
refers, there was uot a particle of evidence. It \vas not *
eveu asserted that any existed. What is there to justify the
charge " that if the defendants acted bona fide and according
to usage, they are entitled to retain?"