
    Timothy Wellman versus Elizabeth Nutting, Administratrix.
    A factor in a foreign country, from whom property consigned to him is taken for a breach of the revenue laws of the country, must nevertheless account for the property, unless he can show that, in the management of it, he conformed to the laws of such country ; or that he was authorized by special instructions from his principal to act as he did; or that the property could not be managed in any other manner than that in which he attempted to manage it; and that this was a fact known to his principal when he made the consignment.
    In assumpsit for not accounting for merchandise consigned to the defendant’s intestate, to be carried to Batavia, and there be disposed of for the plaintiff’s benefit, the parties agreed on a statement of facts, from which it appeared that the intestate received the merchandise mentioned in the declaration, to carry in the ship Franklin, J. D., master, the intestate being the second mate, on the account and risk of the plaintiff, to sell the same for the most it would fetch, and invest the proceeds in such other goods as he, the intestate, should think would yield the most profit, for which he was to receive one half the net profits in lieu of freight and commissions. The outward adventure was sold at the Isle of France, and the proceeds carried in specie to Batavia, whither the plaintiff knew the ship was bound, and he was acquainted with the usages of trade there. On the ship’s arrival at that place, the master of the. ship gave bond that he, his officers and crew, should conform to the revenue laws, against the violation of which he particularly cautioned the officers and men. The risk of illicit trade at Batavia was very great, all commercial intercourse being confined to the masters and supercargoes of ships. The master of the ship, while on shore, sent a messenger on board for the private adventures belonging to himself, his officers and crew, to lay [ * 435 ] * out for them. All the people, except the intestate and one other officer, complied with the order, and those two, the day before the ship sailed, carried their money, including the proceeds of the plaintiff’s adventure, on shore, in expectation of purchasing coffee. Not being able to procure the coffee, they were returning with the money in the boat to the ship, when the officers of the government seized it for a breach of the revenue laws, which prohibit money once landed to be brought away without a special permit from the government, and the money was lost. The defendant’s intestate had been in Batavia with the same master before. If, upon the facts, the Court should be of opinion that the plaintiff was entitled to recover, judgment to be entered for him for 185 dollars, 85 cents; if not, he was to become nonsuit.
    
      Story, of counsel for the defendant,
    being called on by the Court, observed that the principal object of the defendant in permitting nerself to be sued in this action was that, in case she was held to pay the demand, she might be protected in the payment as admin istratrix, by a judgment of the Court.
    But he argued against the plaintiff’s demand, that the intestate was guilty of no fraud in the transaction thus shown to the Court; that he was limited by no instructions, the whole being left to his discretion; that when a factor, not bound by particular instructions, acts fairly and uprightly, although he does not conform to the usual course of trade, he ought to be protected; that the plaintiff, being acquainted with the rules and usages of trade in Batavia, must have known that an under-officer was not permitted by the law to trade, and must, therefore, be understood to have authorized the intestate to use his own discretion, even though it should lead to an attempt iO smuggle; and when the intestate acted as he did, he acted as the plaintiff had the fullest reason to expect he would act.
    
      Putnam, for the plaintiff,
    cited the case of Lewson vs. Kirie 
       in which it was decided that if goods are consigned to a factor, and upon arrival he make a false entry at the custom-house, or land them without paying the customs, whereby they become for- [ * 436 ] felted and are seized, whatever the * principal hereby suffers, the factor must inevitably make good, although his commission was general.
    
      
      
        Cro. Jac. 265, cited Bac. Abr. Tit. Merchant B.
    
   But the Court observed to Putnam it was unnecessary for him to argue the cause on the part of the plaintiff, and said that the defendant could discharge herself from this demand only by showing that her intestate conformed to the laws of the country where the transaction took place; or that he was authorized by special instruc tians from his principal, the plaintiff, to act in a different manner; or that there could be no sale of the plaintiff’s adventure but in the manner her intestate had attempted it, and that this fact was known to the plaintiff, when he intrusted the merchandise to him for sa.e. In this case, neither of these grounds of defence appear, and them must therefore be

Judgment for the piar ¿tff 
      
       [4 Bac. Ab. 599. Merchant B—Moll. 329.—Malyne, 83.—13 Vin. Ab 4 — Pailey, 3d ed. 24.—Ed.]
     