
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1805.
    Gage v. Allison and Clark.
    An agent, or factor, intrusted to self the goods,, and pay a debt, of his principal, with the proceeds, has only a qualified property in the goods;. and his executors, after his death, cannot lawfully dispose of them, but may retain for his lien on them.
    In trover, the plaintiff must appear to'he intitled to the possession of li - thing m question, and to be in the actual, or constructive' possess- - ; thereof, at the time of the conversion.
    Motion to set aside a nonsuit. The action was trover, brought to trial before Johnson, J'. in Charleston. The object of the suit' was forty-three barrels of coffee, which the plaintiff had deposited1 in the hands of Maurice Clayton, a factor, to sell; and for which, he-took a receipt from Clayton, in the following words: “Received, 20 March, 1803, 45 bairels of coffee, which, when valued, to be gsld ou bis account, and the nett proceeds, alter deducting amount!of hie account, to be subject to his order. Signed, M. Clayton.55 Maurice Clayton, having sold two of the barrels of codee, died in. testate, leavi, g tho forty-three barrels oil hand, unvalued, and un. sold. After his death, his administrators possessed themselves of co®e<3 hi question, and sold the same at vendue. Before the sale, the plaintiff made a demand of the coffee, to which demand the defendants replied, that they did not know they had any coffee' of the plaintiff’^ to deliver These facts appearing in evidence,Johnson, J. directed the plaintiff to be uonsuited, on tho ground, that as M Clayton had a qua!died property, and a power to sell, coupled with an interest, it was such a power as would survive to his persoual representatives ; and, therefore, there was no proof of a tortious conversion.
    Baxley, in support of the motion,
    quoted I Sir. 051.- 4 Buiv 3214, 2219.
    Ckeves and Pringle, contra.
    
    It appeared by Clayton’s receipt, that he had a lien on the coffee, to satisfy an account which he had against the plaintiff. lie had also a lien for storage. Whenever a party has a lien, he may retain in t- over. A factor may retain for his general account. 1 Bur. 494. 4 Bur. 2311. Defendants were not, therefore, bound to give up the coffee on demand. There was no proof that the plaintiff tendered the amount of Clayton’s account; and, therefore, defendants might retain.- The factor was' authorized to sell, to pay himself out of the proceeds.- Mo had, therefore, an interest in the coffee,-and the power to salt, survived' to his administrators. His right could not be divested by his death.-3 Vin. Abr 436. A power, coupled with an interest, is assignable and transmissible. 2 Mod. 317. 1 Mod. 210. The property was out of the plaintiff. He was only intitled to the oveiplus of the money, after payment of Clayton’s account, therefore, trover is not maintainable. 7 Ü. & E. 9, 12. The power, and the right tosed, are convertible terms. Cited Cowp. 819, 818. Bull. N. P. 72. A power not revokable. Esp. Dig, 581, 589. fciee 3 Esp. R. 566.-An innkeeper, or livery stable keeper, may lawfully sell the horse’ of another, where the keeping amounts to the value of the horse.>So here, the keeping might be bunbensome to ihe person in possession. The property was in possession, in the nature of pawn. It was the same as if mortgaged for the payment of a certain sum,’ and could not be legally demanded until that sum was first paid or tendered. Also cited 4 T. R. 489.
   This case was first argued the 19th December, 1804, before ©bimke, Bav, and Brevard, Justices, It was afterwards reargued ihe 9th May, 1805, before Watijes, Bay, Brevard, and Wirds, Justices. Brevard, J. delivered the unanimous opinion of the court, after stating the case, the evidence given at the trial, and the opinion of Johnson, J. The motion in this court is, to set aside the . , nonsuit, and grant a new trial, on the ground, that the judge who presided at the trial, was mistaken in his opinion of the law on the point in question ; and we are of opinion he was mistaken therein, and that a new trial ought to be grafted.

To maintain itover, it must appear that the plaintiff had the actual, or implied rightful possession of the tiling, the subject of the suit. In this case, it appears the plaintiff was the rightful owner of the coffee in dispute, when the demand was made, and had, therefore, the right of possession, for pioperty draws with it the implied possession, although the owner have not actual possession. The defendants had only a special property in the coffee. They had a qualified right of possession only. Clayton himself had no more. The coffee was bailed to him tor a particular purpose. He might have sold, ns me factor or ag-nl. of the plaintiff, but he did not. The power be had to sell, was a personal trust, which did not survive and go to his adminiwrators. He might, or might not, have had a lien on the pi operty, either on account oí a previous debt which was due him from the plaintiff, and payable out of the proceeds of the coffee, when sold, or on account of storage, or other charges, which might be paid by him as factor, in respect of the coffee ; but the nature, or reality of any such lien, has not been proved, but has been supposed, from the face of Clayton’s receipt. But, even admitting the defendants, as administrators, had a lien on the coffee, and might retain the same until the lien was discharged, yet, they had no power, or lawful authority to sell. The coffee in their hands, has been compared to a pawn, or pledge: If the comparison should hold, yet it will not follow that defendants were infilled to sell the pawn, and by that means defeat the right of the pawnor to redeem his pledge, by paying the money for which the thing was pledged. A tender of the money due, will discharge the pawnee’s qualified property: but, in this case, there would have been no usb or propriety in making a tender, when it was known that the coffee was sold by the-defendants, and it was not in their power to deliver. They had wiliully put it out of their power to deliver it; and, by doing so, they committed an illegal act, which illegal act was a tortious conversion of the property in dispute, and makes them liable is-this action.

Motion granted*''

ÍVotc. A factor is a servant, and barely a trustee for his principal; and, thefe> fore, if the latter, having goods in the other’s hands, owes him money by simple? contract, and then dies, inuebted by specially, more than his assets are worth, the factor cannot retain the gooils iieames, 41. 3 Vern. 117. See 13 Vin. Abr. qqt. Factor. Where a power of attorney is a part of a security for money, it is n<lt revoliable- 2 Esp fi 506 3 Johns 534. bruce v. Pearson. A merchant must follow the orders of his customer, or principal, or no contract.-  