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unaccompanied with any instructions from the principal, in the absence of
established usage of trade to the contrary, it may be presumed that the pro.
duce is intended to be sold at the residence of the factor: Phillips v. Scott,
43 Mo. 86. But in Grieff v. Cowguill, 2 Disney, 58, the court doubted whether
usage could change the rule requiring factors to sell at their place of resi-
dence; and see Kaufman v. Beasley, 54 Tez. 563. The case of Wallace v.
Bradshaw, 6 Dana, 382, holds, however, that factors may, by custom, send
goods to other places for sale

Power of Factor to Barter.— The power of a factor being limited to
selling, by bartering his principal's goods no title passes. In such a case the
principal may maintain trover against the party with whom the goods are
bartered, although the latter be wholly ignorant that he had been dealing
with a factor only: Guerreiro v. Peile, 3 Barn. & Aid. 646; Whart on Agency,
sec. 744; and see Cal. Civ. Code, sec. 2368, subd. 2. And as to the power
of an agent to barter under the factors' acts, see Victor etc. Co. v. Heller, 44
Wis. 265.

Power of Factor to Pledge.— 1. At Common Law.— At the English
common law the power of a factor to pledge his principal's goods in any case
was extremely doubtful. It is certain that he could not pledge for debts due
himself, or advances made on his account; and although Mr. Justice Story
asserts that he could pledge the goods for advances made on account of his
principal, or for advances made to himself to the extent of his own lien, and
for the payment of duties and other charges on the goods, and for charges



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164 Bigelow u Walker. [Vermont,

and purposes allowed or justified by the usages of trade: Story on Agency,
sec. 113; this is very questionable, although it must be admitted there are
decisions which seem to sustain his view: 8ee Whartl on Agency, sec 748;
Patterson v. Tosh, 2 Stra. 1178; Daubigny v. Duval, 6 T. R. 604; Newsom v.
Thornton, 6 East, 17; Graham v. Dyster, 2 Stark. 21; Pickering v. Burh, 15
Id. 38; Martini v. Coles, 1 Man. & S. 140; Shipley v. Kymer, Id. 484; Solly v.
Bathbone, 2 Id. 208; Cochran v. Irlam, Id. 301, note; Boysony. Coke, 6 Id. 14;
Fielding v. Kymer, 2 Brod. & B. 639; Qtielroe v. TVmsmoo, 3 Barn. & Cress. 342;
Bonito v. Mosquera, 2 Bosw. 401, 413, 414. But see Pultney v. Keymer, 3 Esp.
182; Williams v. Barton, 3 Bing. 139. In such cases of attempted pledges,
while the factor himself was guilty of conversion, as against the third person,
the principal was not bound, although such person treated with the factor
without notice that he was dealing for another. The case of Daubigny v. Du-
val, 5 T. R. 604, holds, however, that if a factor pledge the goods of his prin-
cipal, the latter may recover their value in trover against the pledgee on ten-
dering to the factor what is due to him, without any tender to the pledgee.
In the United States, independent of the factors' acts, the rule is well set-
tled that a factor can not pledge his principal's goods to secure his own debtt
Bott v. McCoy, 56 Am. Dec. 223; Van Amringt v. Peabody, 1 Mason, 440;
Evans v. Potter, 2 Gall 12; Warner v. Martin, 11 How. -209; Kennedy*.
Strong, 14 Johns. 128; Rodriguez v. Heffeman, 5 Johns. Ch. 417, 429; KeUy
v. Smith, 1 Blatchf. 290; First National Bank v. Nelson, 38 Oa. 391, 399;
Kinder v. Shaw, 2 Mass. 397; Newhold v. Wright, 4 Bawle, 195; Walther v.
Wetmore, 1KD. Smith, 7, 24; Wright v. Solomon, 19 CaL 64; Mediants* Na-
tional Bank v. Trenholm, 12 Heisk. 520; McCreary v. Games, 55 Tex. 485; S.
C, 40 Am. Rep. 818; Gray v. Agnew, 95 HI. 315. And in Louisiana this is
Held, notwithstanding the act of 1876: Insurance Co. v. Kiger, 103 U. S. 352.
A usage of factors to pledge the goods of their principals is bad: Netohold v.
Wright, 4 Bawle, 195.

It has been held, however, that while a factor can not pledge the goods for
his own debt, he may pledge them for the payment of duties accruing on the
specific goods; Evans v. Potter, 2 Gall. 12; or to the extent of his lien or in-
terest: Warner v. Martin, 11 How. 209; Blair v. Childs, 10 Heisk. 199;
Louisville Bank v. Boyce, 78 Ey. 42; S. C, 39 Am. Rep. 198; but this is de-
nied: Mereltants 9 Nat. Bank v. Trenholm, 12 Heisk. 520; and see Bonito v.
Mosquera, 2 Bosw. 401, 413, 414. So if a merchandise broker, to whom
goods are delivered by his principal, with power to sell, deliver, and receive
payment, deposit them in the usual course of trade with a commission mer-
chant, connected in business with a licensed auctioneer, who advances his
notes thereon, the deposit binds the principal, who can not recover the value
of the goods in trover: LaussaU v. Lippincott, 9 Am. Dec 440; and see the
observations on this case in the note thereto; and it is held that where a factor
deposited the goods with other factors to sell, and the latter made advances
thereon, and had no knowledge of any other claimants than the consignee,
the subagent had a lien on the goods: Bowie v. Napier, 10 Id. 641. It is
also held that a factor may pledge goods of his principal if he purchases them
in his own name: Lett v. Wadsworth, 5 CaL 404; and if goods are consigned
to a factor to be sold, and the proceeds applied to the payment of notes exe-
cuted to him by the consignor, on a wrongful pledge of them by the factor to
a bank to secure a loan, the bank, having knowledge sufficient to put it
on inquiry as to the consignor's rights, is bound to apply the proceeds to the
payment of the notes: SL Louis Bank v. Boss, 9 Mo. App. 399. A factor,
although he can not pledge, may deliver the goods to a third person as as-



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Jan. 1852.] Bigelow v. Walker. 165

curity, with notice of his lien, and as his agent to keep the possession for him,
in order to preserve the lien: Urquhart v. Mclver, 4 Johns. 103; and see, to
the same effect, McCombie v. Davies, 7 East, 5. The principal's receiving
money arising from the sale of goods by a factor, who had previously pledged
the goods without authority, will not be regarded as a confirmation of the
sale and as an affirmance of the pledge, if the principal was ignorant of the
source from which the money came at the time he received it: Bott v. McCoy,
56 Am. Dec. 223. A factor, when he pledges, is estopped by his act, and can
not be allowed to allege his own violation of authority to set aside the trans-
fer and recover the goods; and he can not subsequently sell the goods and
enable the vendees to set aside the contract of pledge, where such contract
has not been disaffirmed by the principal: Id. Intimately connected with a
factor's power to pledge is his power to deliver the goods in payment of his
own debt. In Benny v. Rhodes, 18 Mo. 147, it is held that a factor can not
deliver his principal's goods to another in payment of the factor's own ante-
cedent debt; the principal's title is not divested, and the circumstance that the
factor has a lien on the goods makes no difference; and to the same effect is
Benny v. Pegram, Id. 191.

2. Under Factors' Acts, — The hardship produced by the common-law rule
with reference to pledges by factors gave rise to the passage in England of
the so-called "factors' act," 4 Geo. IV., c. 83, which has subsequently been
re-enacted in an amended form in 6 Geo. IV., c. 94, and 5 & 6 Vict., c. 39,
by which factors and other agents may pledge their principal's goods under
certain circumstances. By the statute of Victoria it is provided that "any
agent who shall thereafter be intrusted with the po ssessi on of goods, or of the
documents of title to goods, shall be deemed and taken to be the owner of
such goods and documents, so far as to give validity to any contract or agree-
ment by way of pledge, lien, or security bona fide made by any person with
such agent, or intrusted as aforesaid, as well for any original loan, advance,
or payment made upon the security of such goods or documents, as also for any
further or continuing advance in respect thereof, and such contract or agree-
ment shall be binding upon and good against the owner of such goods, and all
persons interested therein, notwithstanding the person claiming such pledge or
lien may have notice that the person with whom such contract or agreement
is made is only an agent." It will be impossible here to consider these stat-
utes to any full extent. Their general scope will be found discussed by Lord
St. Leonards in Nwoulshaw v. Brownrigg, 2 De G. M. & G. 441; by Page-
Wood,V. 0., in Jewan v. WhUworth, L. R., 2 Eq., 692; and by Lord Coleridge
in Cole v. North Western Bank, Id., 9 G P., 470. Under the statute of
Victoria bona fide and continuing advances are protected; but the statute does
not cover pledges made by factors to protect antecedent debts: Learoyd v.
Robinson, 12 Mee. & W. 745; Jewan v. WhUworth, L. B., 2 Eq., 692; Macnee
v. Qorst, Id., 4 Eq., 315; Portalis v. Tetley, Id., 5 Eq., 140. An agent " in-
trusted with the possession of goods, or of the documents of title to goods,"
within the factors' acts, is one who is intrusted as agent for sale; and conse-
quently one whose authority to sell has been revoked can not make a valid
pledge of goods which had been intrusted to him for sale, but which he has
wrongfully retained after his authority has been revoked, and the goods de-
manded from him by his principal: Fueniis v. Montis, Id., 3 C. P., 268; Id,, 4
a P., 93.

Factors' acts have been enacted also in several of the states. Under the
New York factors' act, Laws 1830, c 179; 3N.Y.R. S., 7th Banks' ed.,
2257, a factor has power to pledge in the ordinary course of business; and a



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166 Bigelow v. Walker. [Vermont*

pledgee who has acted in good faith, without notice, and made a new advance
or gave a new obligation on the credit of the goods, is protected to the ex-
tent of his bona fide advances or liabilities. See, as illustrating these propo-
sitions, Jennings v. Merrill, 20 Wend. 9; Stevens v. Wilson, 6 Hill, 512; S. G.
on appeal, 3 Denio, 472; Cartwright v. W'dmerding, 24 N. Y. 521; First Na-
tional Bank v. Slum, Gl Id. 283; Kinsey v. Leggett, 71 Id. 387. The ship-
ment most have been in the factor's name: Covell v. Hill, 6 Id. 374; Wilson v.
Nason, 4 Bosw. 155; Bonito v. Mosquera, 2 Id. 401; First National Bank v.
Shaw, 61 N. Y. 283; Kinsey v. Leggett, 71 Id. 387; and the possession of the
factor contemplated by the act is the actual as distinguished from the con-
structive possession: Howland v. Woodruff, 60 Id. 73. As under the New
York act, by the Pennsylvania factors' act of 1834, if the pledgee knew that
the goods were owned by a principal, he will not be protected; and the prin-
cipal may recover in replevin without repayment of the loan: Macly v. DiU
linger, 73 Pa. St. 85. Compare in this connection the statute of Victoria quoted
supra. In Missouri a factor may pledge his consignor's goods to the extent of
advances and charges thereon, but no further: Steiger v. Third National
Bank, 2 McCrary, 494; and in Louisiana he can not pledge for his own debt:
Insurance Company v. Kiger, 103 U. S. 352. Under both the Wisconsin
warehouse receipt act and the factors' act, if a principal empowers Ids factor
to purchase and retain a negotiable warehouse receipt, or transfers to him
possession of such receipt, the factor has power not only to sell but to pledge
the receipt to one dealing with him in good faith, and notice that he holds
the receipt as factor is not notice of any limit of his power, as between him
and his principal, to sell or pledge it; though such sale or pledge will not
bind the principal if the vendee or pledgee has notice that it is made in vio-
lation of the principal's instructions: Price v. Wisconsin etc. Ins. Co., 43 Wis.
267. But in Victor etc. Co. v. Heller, 44 Id. 2G5, it was held that neither
at the common law nor under the factors' act could a person intrusted with
merchandise simply as agent for its sale dispose of it by barter to one who
knows the goods bartered to be for the agent's own use, or pledge it for his own
indebtedness for goods sold to him as for his own use. The Calif orniaci vil code,
section 2991, provides that "one who has allowed another to assume the ap-
parent ownership of property for the purpose of making any transfer of it
can not set up his own title to defeat a pledge of the property, made by the
other to a pledgee who received the property in good faith, in the ordinary
course of business, and for value;" and under this it is held that the transfer
of a warehouse receipt, by an agent for sale, to one in good faith, and in the
ordinary course of business, operated as a transfer to the holder of the title
to the goods covered by the receipt; and that a pre-existing debt was a suffi-
cient consideration: Davis v. Russell, 52 Cal. 611. In this connection see
section 2368, subdivision 2, of the same code, which seems to conflict with
the section above given, but probably refers to the authority of factors as
between themselves and their principals only. Of course these factors' acts
are only designed to protect third persons dealing with factors, and do not
affect the liability of factors to their principals for a wrongful pledge.

Pov» eb of Factors to Insure. — Factors having goods in their possession
may insure them, but they are not bound to do so, unless they have received
orders to insure, or the usage of trade or the habit of dealing between them
and their principals raises an obligation to insure: Story on Agency, sec. Ill;
Brishan v. Boyd, 4 Paige, 17; Schaeffer v. Kirk, 49 111. 251; Shoenfeld v.
Fleisher, 73 Id. 404; Waters v. Monarch etc. Ins. Co., 5 El. & Bl. S70; and
see CaL Civ. Code, sec. 2368, subd. 1; and they may insure the goods in theii



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Jan. 1852.] Bigelow v. Walker. 167

own names to the full value: Brisban v. Boyd, 4 Paige, 17; JSitalns. Co. v,
Jackson, 18 B. Mon. 242; De Forest v. Fulton F. Ins. Co., 1 Hall, 84. If a
factor who is in any case required to insure his principal's goods fails to
do so, he becomes the insurer himself, and liabta as such in the event of loss,
in which case he is entitled to credit for premiums which should have been
paid: Paley on Agency, 18; De Taslett v. CrousiUat, 2 Wash. 132; Shoenfeld
v. Fleisher, 73 111. 404.

Factor's Lien. — A factor has a general lien on goods of his principal in
his possession, their proceeds and securities taken for the price, for advances,
expenses, and commissions, and extending to the general balance of his
accounts, but not to debts outside the agency: Paley on Agency, 128, 147;
2 Kent's Com. 640; Story on Agency, sec. 376; Whart. on Agency, sees.
767, 768, 775; Kruger v. Wilcox, Amb. 252; Oodin v. London Ansur. Co., 1
W. Black. 104; S. C, 1 Burr. 489; Green v. Farmer, 4 Id. 2214, 2218; Hud-
son v. Granger, 5 Barn. & Aid. 27; Hodson v. Payson, 5 Am. Dec 439; Patterson
v. McGahey, 13 Id. 298. and note: McKenzie v. Nevins, 38 Id. 291; Lambeth
v. Turnbull, 39 Id. 536; Knapp v. Alvord, 40 Id. 241; Martin v. Pope, 41 Id.
66; Bryee v. Brooks, 26 Wend. 367; Peinch v. Dickson, 1 Mason, 9; Sewell v.
Nichols, 34 Me. 582; Mytr v. Jacobs, 1 Daly, 32; United States v. VUlalonga,
23 Wall. 35; Brown v. Combs, 63 N. Y. 598. This lien extends to debts con-
nected with the agency, which the factor, has undertaken as surety or for the
accommodation of the principal: Drinkwaterv. Goodwin, Cowp. 251; Hatn-
tnond v. Barclay, 2 East, 227; Hidden v. Waldo, 55 N. Y. 294; and to inter-
est on subsequent advances: Heins v. Pevne, 6 Robt. 420. But possession
of the goods with the consent of the principal is required before the lien can
attach: Paley on Agency, 137; Whart. on Agency, sec. 769; Holland v.
Humble, 1 Stark. 143; Bank of Rochester v. Jones, 55 Am. Dec. 590; Brown
v. Wiggin, 16 N. H. 312. An important question in this connection is, Can
the lien of a factor, who has accepted bills or made advances on the faith of
goods consigned to him, attach before the goods are in his actual possession ?
Certain English cases answer this in the negative: Kinloch v. Craig, 3T. £.
119; Nichols v. Clent, 3 Price, 547; Bruce v. Wait, 3 Mee. & W. 15.

In Davis v. Bradley, 28 Vt. 118, Redfield, J., held that to give a factor a
lien upon goods consigned to him but not actually received, the following in-
cidents must occur: 1. The consignment must be in terms to the factor; 2.
As against creditors and subsequent purchasers of the consignor it is requi-
site that the consignee should have made advances and acceptances upon the
faith of the particular consignments. The shipper's receipt had been sent to
the factor, but Judge Redfield approved of HoWrook v. Wight, 35 Am. Dec.
607, where there was no symbolic delivery by a bill of lading or carrier's re-
ceipt, but where it was held that consignees making acceptances on the faith
of the goods had a lien thereon. The learned judge also approved of the case
of Bryann v. Nix, 3 Mee. & W. 775, holding that the one at bar could net
be distinguished from it. The latter case decides that there may be a symbol-
ical delivery by a carrier's receipt or bill of lading, whereby the factor's lien
will attach to goods shipped to him; but the goods for which the receipt was
given must have been actually shipped. The early cases of Kinloch v. Craig,
NicJiols v. Clent, and Bruce v. Wait, cited above, were distinguished on tho
ground that in none of them was there any documentary or other evidence
to prove that the intention of the consignors was to vest the property in the
consignees from the moment of delivery to the carrier. This rule, that con-
signment alone to a factor, who has made advances or incurred liabilities on
the credit of the goods consigned, is insufficient to enable his lien to attach}



/



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168 Bigelow v. Walker. [Vermont,

but that delivery to him of a bill of lading or carrier's receipt, with the de-
sign of giving him control of the goods, is sufficient, would seem to be the
true doctrine, and is either held or recognized in the following: HaiUe v. Smith,
1 Bos. & Pul. 663; ValU v. Cerrfs Adm'r, 36 Mo. 675; Lewis v. Galena etc.
B. R., 40 I1L 281; Strahorn v. Union etc. Co., 43 Id. 424; Bonner v. Marsh,
48 Am. Dec. 754; Bank of Rochester v. Jones, 55 Id. 290; see, however,
Winter v. Coit, 7 N. Y. 288. In Desha v. Pope, 41 Am. Dec. 76, the lien
was held to attach when the bill of lading was given to the carriers to be de-
livered to the factor; but sec Bonner v. Marsh, 48 Id. 754. Placing goods
upon drays of an agent of the factors, for the purpose of transportation to
their warehouse, places the goods in the factors' possession sufficiently to
support their lien from that time: Burns v. Kyle, 66 Ga. 24; and see Bonner
v. Marsh, supra, as to delivery to agents being sufficient, in general. On the
other hand, certain cases go to the extent of holding that delivery to a com-
mon carrier consigned to the factor is alone sufficient: Wade v. Hamilton, 30
Ga. 450; Elliott v. Cox, 48 Id. 39; Hardeman v. De Vaughn, 49 Id. 596; and
see Nelson v. Chicago etc, R. R.,2 111. App. 180; and others hold the oppo-
site extreme, that the factor must have possession of the goods by himself or
agent, and possession of the bill of lading is insufficient: Woodruff \. Nash-
ville etc. R. R., 2 Head, 87; Saunders v. BartleU, 12 Heisk. 316; Oliver v.
Moore, Id. 482. Both of these views are open to criticism. The factor's
lien may be lost or waived by agreement of the parties or by implication:
Paley on Agency, 147; Whart. on Agency, sec. 772; Shlffer v. Feagin, 61
Ala. 335; Heard v. Russell, 59 Ga. 25; but the legal inference where a factor
makes advances is that they were made upon the joint credit of the princi-
pal's personal security and of the goods and money that might come to his
hands; and the factor may relinquish either without affecting his right to
look to the other: Martin v. Pope, 41 Am. Dec. 66. The lien of a factor is
a personal privilege. " None but the factor himself can set up this privilege
against the owner. It is a personal 'privilege, and can not be transferred,
nor can the question arise between any but the principal and factor: " Holly
v. Huggeford, 19 Id. 303, per Parker, C. J.; but see Oage v. Allison, 2 Id.
682, as to the right of a factor's executors to retain the goods for his lien. A
factor may foreclose his lien by equitable action, and is entitled to a defi-
ciency judgment: Whitman v. Horton, 14 Jones & S. 531. As to a factor's
right to sell the goods to reimburse himself, see Bailey v. Bensley, 87 I1L 556;
Fordyce v. Peper, 16 Fed. Rep. 516.

Suits bt Factobs and Principals against Third Persons.— The rule is
laid down by Mr. Wharton that " as a factor has a special ownership in goods
consigned to him, he may sue in his own name for the price of such goods
when sold by him:" Whart. on Agency, sec. 755; and see Sadler v. Knigld, 4
Gamp. 195; Toland v. Murray, 18 Johns. 24; Murray v. Toland, 3 Johns.
Ch. 569; Oirard v. Taggart, 5 Serg. & R. 19, 27; Graham v. DuchcaU, 6
Bush, 12; flsley v. Merriam, 64 Am. Dec. 721; or for damages for breach of
contract: Groover v. Warfield, 50 Ga. 644; and under the reformed proced-
ure, a factor who contracts in his own name on behalf of bis principal is a
trustee of an express trust, and may sue in his own name for the price: Grin-
neU v. Schmidt, 2 Sandf. 706; Ladd v. Arkell, 5 Jones & S. 35. So a factor
may sue in his own name for trespasses or torts committed on the goods while
in his possession: Whart. on Agency, sec. 755; or he may maintain trover or
replevin if they be wrongfully withheld from him. See Ladd v. Arkell, 6
Jones & S. 35; De Forest v. Fulton F. Ins. Co., 1 Hall, 84, 110; Ho&rook v.
Wright, 35 Am. Deo. 607. But where suit is brought by the factor, the da-



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Jan. 1852.] Bigelow v. Walker. 169

fondant is entitled to any defense which oonld hare been made against the
principal had the suit been brought by the latter: Whart. on Agency, sec 755.

The principal may also sue the vendee in his own name for the price of
goods sold by the factor, or for damages for non-performance of the contract:
Whart. on Agency, sec. 762; llsley v. Merriam, 54 Am. Dec. 721; Oirard v.
Taggart, 5 Serg. & R. 19, 27; and this, although the principal was unknown
at the time of the sale, and the vendee supposed the factor to be the real
owner: Whart. on Agency, sec. 702; llsley v. Merriam, 54 Am. Deo. 721;
Walter y. Ross t 2 Wash. 283; KcUcyv. J/iowon, 7 Mass. 319; Levericky. Meigs,
1 Cow. 645; MerricVs Estate, 5 Watts & S. 9. In suits by the principal, as
in other cases, the factor's private debt can not be set off against the vendee's
debt on the sale: Whart on Agency, sec 741; CaUeraU v. Hindle, L. R., 1
C. P., 186; Dresser v. Norwood, 17 C. B., N. S., 406; Guy v. Oakley, 13
Johns. 331 ; Miller v. Lea, 35 Md. 396; but the rule is otherwise if the factor is
held out as principal: Whart. on Agency, sees. 741, 762; George v. ClageU, 7 T.
R. 359; Babone v. Williams, Id. 360, note; Carry. Hmchliff, 4 Barn. & Cress.
547; Turner v. Thomas, L. R., 6 C. P., 610; Hogan v. Short, 24 Wend. 458;
Merricts Estate, 5 Watts & S. 9; Miller v. Lea, 35 Md. 396. Payment may
be made to the principal against the orders of the factor: Golden v. Levy, 6
Am. Dec 555; and in general it has been held payment must not be made to
the factor after notice from the principal: Kelly v. Munson, 5 Id. 47.

Factor's Liability to Third Persons.— As in the case of other agents,
factors may undoubtedly become personally responsible when they deal with
third persons without disclosing their agency: Story on Agency, sec. 266;
Whart. on Agency, sec. 788; although the principal, when afterwards dis-
covered, may also be held: Id. In Hastings v. Lovermg, 13 Am. Deo. 420, it
is held that a factor who sells oil with a warranty of quality, without desig-
nating himself as agent, is personally liable on the warranty, although he had
settled with the principal before notice of the breach, and although the ven-
dee was informed before action brought that the factor was not acting for
himself.

Principal's Right to Follow Goods or thhr Proceeds.— The general
doctrine is, that where a principal can trace his goods into the hands of a
factor, he may follow the identical articles or their proceeds, or securities
taken therefor, as long as they can be distinguished, into the possession of
the factor, or of his legal representatives or assignees; 2 Kent's Com. 623;
Whart. on Agency, sec 763; Price v. Ralston, 1 Am. Dec 260; Chesterjteld



Online LibraryAbraham Clark Freeman John ProffattThe American decisions: cases of general value and authority ..., Volume 58 → online text (page 18 of 116)