
    *M’Connico & al. Exrs. of Holloway v. Curzen.
    
    [April Term, 1800.]
    Consignee — Sale on Credit. — A consignee, who receives no orders to the contrary, may sell on the customary credit of the place.
    Same — Executors of — Liability.—The executors of a consignee will not be liable for outstanding debts, unless there be gross negligence.
    Same — Same—Same—Evidence of Due Diligence. — And the appointment of agents to collect is prima facie evidence of dne diligence. So that the consignor must afterwards prove the negligence.
    Evidence — Defective as to Particular Item -Decree.— Where the evidence was defective as to a particular item, no decree as to that item was made.
    Interest — Unliquidated Account. — Interest not de-mandable on an unliquidated account.
    Specie — Nature of during War. — Specie during the war, was not an article of currency, but a commodity at market; and items of specie, advanced during that period, should be extended, at the value, at the time of the advance made.
    This was an appeal from a decree of the High Court of Chancery, where Curzen brought a bill against Holloways exrs. stating, That in 1780 he consigned the sloop Hero’s revenge, with her cargo, to Holloway at Petersburg in Virginia, to be disposed of by him; which he did, some time in the ensuing year, for ^205,072. ; of which £7726. 2. 4., by Holloways own statement appears to be due; and that the plaintiff is entitled to receive the same, in tobacco, at £70. per cwt. as will appear by Holloways letter of the 19th of August 1781. That besides the above balance the plaintiff claims an account for 800 weight of coffee part of the said cargo, kept by himself, and to be paid for in tobacco at the same rate. That the coffee was then worth ^3720. paper currency. That, on the 18th of April 1781, Holloway transmitted to the plaintiff, then resident in Baltimore in Maryland, notes for 143 hhds. of tobacco, amounting, inclusive of warehouse expenses, to ^118,926. 18. pretending that it was received from the purchasers of the consignment. That the whole of this tobacco, was shortly after, destroyed by the British ; and the plaintiff believes a considerable part of it, being the tobacco of Holloway and not of the plaintiff, was fraudulently *sent, when Holloway apprehended the British would destroy it. That in 1780, the plaintiff, likewise consigned to Holloway, the schooner Blossom,. with her cargo; the nett proceeds of which amounted to ^33461. 16. ; of which the plaintiff has received 33171 dollars, continental money, leaving a balance due the plaintiff of ¿23510. 10., payable in tobacco, at ;£70. per cwt. The bill therefore prays an account, and payment of the balance; and for general relief.
    The answer admits the said sum of £7726. 2. 4. paper currency, on 21st August 1781, and that the same was payable in tobacco at £70. per cwt. It also admits the coffee to have been on hand, upon the 19th of August 1781; but refers to an account to shew how it was disposed of. Insists that the tobacco notes remitted, were the property of the plaintiff, and not fraudulently sent; but that they were honestly remitted, the plaintiff having then actually sent for 100 hhds. ; and, at that time, that there was little or no prospect, that the British would go to Petersburg. That the cargoes were sold at the customary credit of the place, as no directions to the contrary were given; and there are sundry outstanding debts, due from the purchasers. That proper steps have been taken to collect the same, but several of the defendants have plead the act of limitations.
    The Court of Chancery referred the accounts to a commissioner; who allowed the plaintiff the charge for the coffee and the other debits;- but credited Holloway for the 143 hhds. of tobacco sent; and reported a balance of ^28929. 9. 7., payable in tobacco, at £70. per cwt. amounting to 41,328 lbs. tobacco, with interest, on the whole balance, from the 1st of September 1781 until paid. The commissioner refused to make any allowance to the executors, for the outstanding debts, there being, as he alleged no proof of proper steps taken to collect them; and Holloway *when he rendered his accounts had not excepted them.
    The plaintiff excepted to the report, for having credited the 143 hhds. tobacco.
    The defendants also excepted to the report. 1. Because the outstanding debts were not allowed, as the proper steps to recover them, had been taken; 2. Because the estate could at most, only have been liable for actual ascertained failures; and none such were shewn, on the contrary, in one instance, that of Banister, the whole dispute was, whether it should be paid in money, or the certificate given for it, by the public? for whose use the commissioner as executor of Banister alleged it was bought. 3. Because the commissioner had debited the defendants with the coffee. 4. Because the commissioner had turned a debit of 20 half Johannes, into paper money, at 140 for one, and then recharged it in tobacco at ;£70. per cwt. 5. Because interest was allowred from September 1781.
    The Court of Chancery disallowing the plaintiffs exception, established the credit to the defendant for the 143 hhds tobacco; and declared its opinion, That the outstanding debts ought to be credited, if the proper steps were taken to recover them, and they would now give a power of attorney to the plaintiff to collect them. That the half johannes ought to stand in money, and reserving the question of interest, recommitted the report to the commissioner.
    The commissioner in his second report corrected the charge as to the half johannes, stating it at ^48. specie; but in other respects he reported the balance, as in his former report. In his remarks he stated, That the defendants had filed a list of the outstanding debts, with a power of attorney to the plaintiffs to collect them. That Holloway died, on the 19th of October 1781; soon after which an agent was appointed to manage*the estate; and when he left Petersburg another agent was appointed ; both persons of known ability; and therefore that the defendants insisted, they had done all that was incumbent on them. That Banister’s debt was for a hhd. of rum bought for public use, and that the agent would not accept of the certificate. That the defendants had produced a memorandum in the hand writing of Stewart, who is now dead, but was a clerk to Holloway, in order to shew, that the coffee (with many other articles) was sent into the country, out of the way of the enemy; and, as their testator died soon after, that they presume it was lost.
    Holloway’s letter, to Curzen, of August 19th 1781, says, he has about 800 lbs. coffee on hand, of which a bag is kept for the plaintiff according to instructions.
    Stewart’s memorandum referred to in the report is headed as follows.
    A list of sundry goods, lodged with sundry persons belonging to John Holloway deceased 1781.
    And in it is an entry in these words.
    “In the hands of Baker and Blow, some sugar and coffee, at Wine-Oak, belonging to Richard Curzen, S. I. R. to be sent him.’’’
    And another in these w.ords.
    “Rive bags coffee, belonging to Richard Curzen, 2 barrels salt do. James Wilson. Sold John Pride, he says.”
    
      There are various letters, accounts &c. in the record.
    The Court of Chancery decreed the defendants to pay the balance, reported by the commissioner, in the last report, to be due to the plaintiff, with interest from the 1st of September 1781, “upon payment, by the plaintiff, to the defendants of *forty eight pounds of current money of Virginia, for the twenty half Johannes aforesaid, with interest thereupon from the same first day of September.”
    The defendants appealed to this Court.
    Call for the appellants.
    Where a consignee, who has no orders to the contrary, sells goods on the customary credit of the place, he is justifiable by the known rule of mercantile iaw; and therefore he is not liable for failures or accidents not arising from his own misconduct.
    In the present case, the goods were sold on the customary credit, and therefore, according to the rule just mentioned, Holloway was not liable for future losses, not arising from his misconduct; especially as it appears, that the plaintiff actually approved of what he had done.
    There is no ground for imputing the subsequent losses, if any have taken place, to the misconduct of the consignee or his executors. Not the first; because the sales were, chiefly, made in 1781, and the debts, from the situation of the country, could not be collected during his lifetime, as he died in October 1781; and therefore, no blame attached on him: Not the second ; because, if some little time, for the funeral, the qualifying of the executors, their making themselves acquainted with the testators affairs, and for the inclemency of the season, is allowed, it will be found, that they could not have been in a situation, to have commenced the collection, until the spring of 1782; by which time the six months act of limitations had barred the claims; and therefore, no blame attaches on the executors, either.
    But the fault was in the plaintiff himself. Eor the executors could not, regularly, have proceeded to collect, without authority from him ; to whom the debts belonged, and who might have them collected, or not, as he thought proper. He *did not, give this authority though, or call for the debts. But he ought to have done one, or the other; and. therefore, if there has been any improper delay, it is imputable to himself.
    The executors, however, used as much diligence as the nature of things would admit of. They appointed agents to manage the estate and collect the debts: Which agents proceeded in the collection, as well as they could; and, if they failed in their attempts, it was the misfortune of the plaintiff, and not the fault of the executors ; who did more than their duty required; and therefore, instead of meeting with reproach, they have merited the thanks of the plaintiff.
    But it is, certainly, a proceeding of the first impression, to attempt to subject the executors to a loss of the debts, when the consignor appears to have taken no proper steps, to recover them. The principles of universal justice demand, that the debtor should have been first discussed ; because he might have made satisfaction ; and then there would have been no ground, even in pretence, for complaint against the consignee or his executors; who could, at most, only be liable for culpable negligence. But the plaintiff does not venture to charge them with any: Nor, indeed, could he; for he was, throughout 1781, willing, that the balances should remain in the hands of the debtors.
    It is no argument to say, that Holloway did not in terms object to bad debts, when he returned the accounts to the plaintiff. Eor that was unnecessary; because the law implied it. Besides, in his letter of the 19th of August 1781, he says, he cannot make the accounts more accurate, owing to the confusion his books and papers were in, from the situation of the country. Which shews he was merely making a general estimate, for the plaintiffs satisfaction, without meaning to descend to particulars. In such a state of things, an exception *was not to be looked for by the one, nor thought of by the other.
    The coffee was clearly an improper charge against the estate; because the memorandum of Stewart shews, that part was deposited with Baker and Blow to be sent to the plaintiff, who had written for it; and that another part was deposited with Wilson in the country, to be put out of the reach of the enemy; and that it was after-wards sold to Pride, and not kept by Holloway for himself, as the bill supposes. The conduct of Holloway therefore was perfectly correct; and of course nothing like misconduct, with regard to it, can be imputed to him ; but this article stands involved in the common calamity of the times, which the plaintiff must bear, as he has nothing to object, with respect to it, in the conduct either of the consignee or his executors.
    Nothing can be more untenable than the attempt to subject the estate to the payment of Banisters debt. Eor it is not' pretended to be lost, but the whole question was, whether a certificate or money should be received. Of course there is not the slightest colour for this charge. Because if Banister bought the rum for the public, it is a debt due from the public; and therefore the plaintiff must receive payment in the mode, in which other creditors of the public are paid. At all events, it is a matter between the plaintiff and the public, or the executors of Banister, and not between the plaintiff and the defendants.
    The claim of interest on the part of the plaintiff cannot be supported. It is contrary to the whole course of mercantile proceedings, to demand interest upon an unliqui-dated balance, and a Court of Equity never allows it. On the contrary, interest, being entirely in the discretion of the Court, is never given, unless the defendant, ex aequo et bono, ought to pay it; which cannot be affirmed of the defendants, in the present case; from whom it does not appear, that *any demand was made, until several years after their testators death. But what renders the claim for it, more exceptionable is, that the plaintiff had, late in 1781, consented, that the debts should remain in the hands of the debtors; of course it would be extremely unjust, to allow him interest upon money, which has never been collected, and which remained in the hands of those, who owed it, with his own consent. This too, from the moment the account of sales was returned, without allowing a reasonable time for the collection; although it is manifest, from the state of the country, as well as from other causes, that, notwithstanding the debtors might have continued able and willing to pay, no industry could have produced satisfaction, until long afterwards.
    Whether the mode, adopted by the decree, of settling the half johannes be correct or not, is submitted to the Court. But it appears unconscionable to say, that an advance of that kind should only stand at its nominal amount, when it must have been a favor, and the specie would have commanded a much greater price in exchange for the currency of the day.
    
      
      The above case was accidentally omitted, in publishing tbe cases of the October Term 2799. It is therefore inserted now.
    
    
      
       Factor — Agent to Collect Debts. — An agent merely for collecting debts, is not to be considered a factor within the meaning of the Virginia act of limitations. Hopkirk v. Bell, 3 Cranch 454.
      Consignee--Authority to Pawn.— A consignee of goods may dispose of them in the way of trade ; but he cannot pawn them for his own benefit, so as to devest the property of the consignor. Skinner v. Dodge, 4 H. & M. 432. See Hewes v. Doddridge, 1 Rob. 143.
      Commission Merchant — Extension of Time of Payment. — A commission merchant who sells produce consigned to him, on a credit, and afterwards extends that credit without the assent o± the principal, is responsible for the loss which may be occasioned thereby. Hairston v. Medley, 1 Gratt. 96. See also, Johnson v. O'Hara, 5 Leigh 456.
      Factor — Buying Up Debts against Principal. — A factor cannot buy up the debts of his principal at an under rate, and claim credit for their nominal amount; but, in sucha case, he will only be allowed what he actually paid, although the purchase was made after the factorage had ceased, and the principal had brought suit for an account. Alexander v. Morris, 3 Call 89.
      Same — Obedience to Orders — Stoppage in Transitu.— If a factor, or agent, having sold goods belonging to his principal, be ordered by him while they are yet in transitu, not to deliver them to the buyer, of whose solvency doubts are entertained, and he delivers them notwithstanding such order, and without demanding security for his indemnity, the principal is entitled to an action against him, in case the buyer should prove insolvent. Howatt v. Davis, 5 Munf. 34, 7 Am. Dec. 681.
      Same — Same—Advances by Factor — Reimbursement. -In ordinary dealings a factor must obey his principal’s orders as to prices and sales, but if he advances on the goods to the principal, and demands payment of such advances, then, if his advances are not returned, he has a right to sell and reimburse himself. George Campbell Co. v. Angus, 91 Va. 438, 22 S. E. Rep. 167.
      Same — Indebtedness to Principal — Sale of Property.— A factor, indebted to his principal at the time, cannot sell the property of the principal, to pay endorsements in the course of his factorage. Alexander v. Morris, 3 Call 89.
      Same — Failure to Render an Account. — In Deans v. Scriba, 2 Call 415, the factor’s failure for five years to render an account to his principal of outstanding indebtedness on his account was held to render him chargeable with the amount of such indebtedness.
      See generally, monographic note on "Agencies” appended to Silliman v. Fredericksburg, etc., R. R. Co., 27 Gratt. 119
    
    
      
      Personal Representatives — Liability for Failure to Collect Debt. — The principal case is cited in foot-note to Tanner v. Bennett, 33 Gratt. 251.
      See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
       Interest — Unliquidated Account.— The principal case is cited in Stearns v. Mason, 24 Gratt. 494, for the proposition that, when accounts are unliquidated and disputed between the parties, interest ought not to be allowed. See Kerr v. Love, 1 Wash. 172; Waggoner v. Gray, 2 H. & M. 603.
      See foot-note to Skipwith v. Clinch, 2 Call 253; and monographic note on “Interest” appended to Fred Dixon, 27 Gratt. 541.
    
   Per Cur.

The court is of opinion, that the appellee, having consigned his goods to Holloway for sale, without particular instructions not to sell upon credit, the latter was at liberty to use his own discretion on the occasion; in the exercise of which, he appears to have acted fairly and prudently, so as to have met the approbation of his principal: And therefore the outstanding debts,were the property, and at the risque of the appellee, and not chargeable to the factor, or his representatives; unless, having undertaken the collection, they were guilty of such gross negligence, as, in equity, ought to charge them: Which cannot be imputed to the factor,, who died so soon afterwards; nor to the appellants, who appear, from the facts stated in the Masters second report, to have used proper diligence, in employing agents *of ability and integrity to make the collection, and to have given probable reasons for its failure: And therefore the appellants are entitled, at present, to a credit for the amount of the outstanding debts. That as to the eight hundred pounds of coffee, the price of which is claimed by the appellee, there appears, at this time, no ground to charge the appellants for that article; since the statement made by Stewart. respecting it, to which the answer refers, is unsatisfactory for a decision either way; and therefore that the claim ought not now to be allowed. That the credit for the twenty half joes paid Walch, by order of the ap-pellee in August 1781, ought not to stand, as in 'the decree, to be repaid now in specie, with interest; but ought to be applied at its relative value, at the time, towards the discharge of the paper debt. Specie, at that period, not being considered, as a circulating medium, but a commodity at market, the value of which was to be settled by contract, or if none such, by the current value at that time, independant of the legal scale; nor, in the present case, has the contract for tobacco, another commodity, any influence on the question. The Master, residing at Petersburg, is presumed to have been well acquainted with the value, and in his first report to have stated the credit accordingly (having departed from the legal scale and the contracts for tobacco;) and therefore that it ought to stand as there stated in paper; and that the other articles of debit and credit ought to stand as stated in the last account. That the demand being for an account unliquidated, in which there were considerable articles in dispute, so that it was uncertain on which side the balance would be, no interest ought to be allowed on the balance. The decree therefore is to be reversed; and the cause remanded to the High Court of Chancery, for that court to have the account between the parties reformed, and a decree entered according to the principles of this opinion, reserving to the appellee liberty' to make a future claim, for the outstanding debts, *or any of them, on proper proof of the receipt thereof by the appellants, or of gross negligence in them in the collection; and as to the coffee upon proper proof to charge them.  