
    Charles Denston versus Thomas H. Perkins et al.
    
    An auctioneer sold to one purchaser goods of several consignors, and took in his own name a negotiable note, which he afterwards transferred to assignees for the benefit of his creditors, and the assignees received the money; One of the consignors sued the assignees, and the parties having in a case stated distinguished his proportion of the proceeds of the note, he was allowed to recover the same.
    Assumpsit. The parties submitted the case to the determination of the Court upon an agreed statement of facts.
    The plaintiff sent goods to Winslow, Channing & Co., auctioneers, for sale by auction. They sold them on the usual credits, for the customary commission, but did not guaranty the payments. They were accustomed sometimes, after a sale, to take the purchaser’s note to themselves or order for his whole purchase at the sale, and when goods of several persons were sold on the same day, sometimes more than one person became interested in such note. On the 5th of July, 1822, Winslow, Channing & Co., having failed in business, assigned their property for the benefit of their creditors to the defendants. At that time they had sold 'a large amount of property for the plaintiff, for which they had not accounted, and they had on hand, and then assigned to the defendants, divers notes of hand not due, which were given for the goods of the plaintiff and others, sold as before mentioned, which notes, with the amount of the plaintiff’s interest in each respectively, were specified in the statement of facts. At the time of the commencement of this action the defendants had in their hands 1122 dollars, (part of the proceeds of the notes,) which were the proceeds of the sales of the plaintiff’s goods.
    If the plaintiff was legally entitled to that sum, the defendants were to be defaulted ; otherwise, the plaintiff was to be nonsuited.
    Peabody, for the plaintiff,
    said the law was well settled, that wherever the property of the principal can be distinguished from that of the insolvent factor, he is entitled to recover it; and that the difficulty which might exist in the present case, of identifying the plaintiff’s interest, it being blended with that of other creditors of Winslow, Channing & Co. in the same notes, was removed by the case stated by the parties. He cited Godfrey v. Furzo, 3 P. Wms. 185 ; Copeman v. Gallant, 1 P. Wms. 314 ; Zinck v. Walker, 2 W. Bl. 1154; Rowton, ex parte, 17 Ves. 431 ; Sollers, ex parte, 18 Ves. 229 ; Burdett v. Willett, 2 Vern. 638 ; Scott v. Surman, Willes, 400 ; Ex parte Murray, Cooke’s Bankr. Laws, (3d ed.) 457 ; Tooke v. Hollingworth, 5 T. R. 227 ; Price v. Ralston, 2 Dall. 60 ; Taylor v. Plumer, 3 Maule & Selw. 562; Favenc v. Bennett, 11 East, 42; 1 Livermore on Agents, 85 ; and a case against these same defendants, lately determined before Story J. in the Circuit Court of the United States.
    
      W. Sullivan and Mason for the defendants.
    It is customary here with auctioneers to offer for sale an assortment of goods to suit purchasers, and a purchaser may bid off goods belonging to several individuals ; a note is taken in the name of the auctioneer, and the property in it becomes vested in him, and the several owners of the goods look to him for the sums due to them respectively. The defendants, as assignees for the benefit of all the creditors of Winslow, Channing & Co., being likewise creditors themselves, have been at the trouble of collecting the notes in question, without having any knowledge of the consideration for which they were given, or any notice that the plaintiff was interested in them, and these funds therefore ought not to be taken out of their hands by this action.
   Parker C. J.,

in giving the opinion of the Court, after remarking that the general principle contended for by the plaintiff’s counsel was very clear, said that in many cases it might be difficult for a consignor to trace his property in the hands of a factor or his assignees, and it might then be necessary to resort to a court of chancery for that purpose ; but that here the parties themselves had distinguished the plaintiff’s property in the notes, and he had a remedy at law.

Defendants defaulted. 
      
      
        Thompson v. Perkins, 3 Mason, 234; Chesterfield Man. Co. v. Dehon, 5 Pick. 7 Yates v. Curtis, 5 Mason, 80. It can make no legal difference whether the factor or auctioneer in such case has or has not guaranteed the payment of the money. Thompson v. Perkins, 3 Mason, 241. Although, it seems, that where the factor acts under a del credere commission, his assignees would be entitled to the benefit of his lien on the money for commissions and charges. See Thompson v. Perkins, ubi supra; Drinkwater v. Goodwin, Cowp. 251; 3 Bos. & Pul. 489: Hudson v. Granger, 5 Barn. & Ald. 27; Bond v. Stewart, 3 Munroe, 73.
     