
    J. J. Debesse vs. B. Napier & Co. Ex’ors Lacoste.
    An order drawn upon an agent in possession of funds, out of which it is to be satisfied, when accepted; fixes the funds irrevocably, and is a good assignment thereof. And the funds do not become assets upon the death of the drawer.
    
      Where a person drew an order upon his agent, who was in possession of funds for the purpose of selling, upon which the agent himself had a lien, and the order was accepted, i and the drawer then died, the Court Held, that it was essentially an-assignment for valuable consider ration, and that the agent might sell the property, retain his debt, and pay the order, without malting himself liable as executor de son tort.
    
    HE ^defendants were sued as executors de soil tort, under the following circumstances. Acting as auctioneers, they had dealings to a considerable extent with Stephen Lacoste, and had sundry goods in their hands belonging to the said S. Lacoste, on which they had made advances. These goods consisted of wines and coffee, the value of which did not equal the advances which had been made. A vessel called the Ttoo Brothers arrived, and S. Lacoste placed her cargo also in the hands of B. Napier Co. for safe. Lacoste was greatly indebted at the time to the Union Insurance Company for monies, which, as their president, he had received, and had not paid over or accounted for. He then drew an order onN. Napier 'is1 Co. in favor of J. Stoney, on behalf of said Company, as follows ?
    Messrs. B. Napier Co.”
    
      u Gentlemen: Please pay to the order of Mr. John Stoney the nett proceeds of sales of the cargo of the schooner Two Brothers, after deducting the balance due youy and oblige your obedient servant,
    STEPHEN LACOSTE.”
    “ (Indorsed,) John StoneyN
    
    “ Accepted the 25th June, 1812.
    
      (i (Signed,) B. Napier Co.” . , '
    Lacoste, at the time he drew this order, was indebted to the plaintiff in- the sum for which the present action was brought-. Some days after the date of the order, and of its acceptance by B. Napier Es? Co. and before any part of the coffee, wine, or cargo of the Two Brothers was sold, Lacoste died. The defendants afterwards proceeded to sell all the property of the said Lacoste, in their hands, as well the wines and coffee as the cargo of the Two Brothers, and after refunding themselves their advances to 
      Lacoste, they paid over to the Union Insurance Company, as the indorsers of John Stoney, the balance ol the proceeds in their hands. The plaintiff contended that by so. doing, the defendants made themselves liable as execuluro de son tort, by intermeddling with the estate of Lacoste.
    
    The presiding judge directed the jury to find for the ‘plaintiff, which was hone.
    A motion was now submitted for a new trial on the ground of misdirection by the Judge.
   Mr. Justice Huger

delivered the opinion of the Court.

Two questions arise in this case :

1st. V» hat was the import of the order drawn by Lacoste on the defendants ? and,

2ndly. What effect had that order upon the rights of the parties subsequent to the death of Lacoste f

The defendants had advanced to Lacoste, on the coffee and wine, more than their value. Before, however, they were sold, and the balance ascertained, Lacoste placed in their hands, the cargo of the Two Brothers for sale. On the coffee and wine,- the defendants had a special lien for their advances, and only a general lien on the cargo of the Two Brothers. Before any of the property was sold, and consequently before any payments could have been carried to the credit of Lacoste, he drew an order on the defendants, which was accepted. In this order they are directed to pay to Stoney, the nett proceeds of the cargo of the Two Brothers, after deducting the balance due them. — > What balance ? Nothing had been paid, on account of the advances, for nothing had been sold, and therefore nothing but the anticipated proceeds of the coffee and wine could have been regarded as a payment, which when sold, did leave a balance of between 3 and $400 in favor of the defendants. • If this was not the intention of Lacoste, balance has no meaning in the order. Such a construction however ought to be given, if the instrument be doubtful, ui magis valeat quam periat.”

And this view is much strengthened by the fact, which though not stated in the brief, appears in the account, that the nett proceeds of the cargo of the Tzvo Brothers did not amount to the sums advanced to Lacoste. The proceeds of the cargo were equal to but §5 3,243, and the advances to more than ¡S 3,500. Lacoste therefore could hot have. intended that all the advances made,by the defendants should be paid out of the proceeds'of the .cargo'of the Two ftrothers^ and the balance paid over to Stoney. It hao been contended, however, that such was the understanding pf the defendants ; as they struck a balance in favor of Lacoste in their books prior to the sale of the wine. It ap= - pears, however, on examination of the books, that they did no more than carry to the credit of Lacoste the proceeds of the different sales as they occurred. It so happened that the, wines were sold last, and consequently the sums re« • cejvedby defendants prior to the sale, were more than equal to their advances to Lacoste, This however cannot alter the case, it has not been shewn how these books should have been kept, had the defendants supposed them» selves required by the order to satisfy their advances out of the coffee, and wine before they resorted to the proceeds pf the cargo of the Two Brothers. Admitting however, that such ivas their construction of the order, it does not follow that Stoney's rights are to he controled by their construction. His rights, if any he-have, must depend upon the legal import of the order. Nor was it in the power of defendants, even were they so disposed, to shift their lien from the coffee and wine to the cargo of the Two Brotherst to the injury of Stoney, They had made advances upon the credit of the coffee and wine, and were bound to exhaust that fund before they resorted to the cargo of the Tzvo Brothers., Whenever a factor makes a special agreement for the payment of his advances, he is bound by it, andean not depart from it, to the injury of third persons. Whitaker's Law of Lien, 108. 16 Vesey, Jun. 230.

I am satisfied that Lacoste intended by his order, that the defendants should retain no more of the proceeds o the cargo of the Tzvo Brothers than was sufficient with the. proceeds of the coffee and wine to saasiy their advances, and to pay the balance to Stoney. The defendants however, it is contended, were not authorized to comply with the order; although accepted before the death of Lacoste; as the cargo was not sold at his death, and therefore were assets subject to the order of his administrator.

If the administrator was entitled to the cargo of the Two Brothers, or even to the balance of the proceeds after pay» ment of the advances to defendants, they are responsible as executors of their own wrong, for having paid that balance to the assignees of Stoney. The smallest intermed-dling with the assets is sufficient to constitute an executor of his own wrong. (Toller, 37.) It is therefore necessary to determine if the cargo or the balance thereof be assets, and subject to'the disposition of the administrator? — » The administrator is but the representative of the deceased. He has no powers but such as his intestate possessed. (Co. Litt. 207. 2 Blackstone Com. 510.) If therefore Lacoste had parted with the whole of his property in this cargo, and could not have exercised any further control over it, neither can his representative the administrator.

If the order Ire regarded as a bill of exchange, on its acceptance, the defendants had a right to retain the cargo; and Lacoste, if alive, would have lost all right in it. (Chitty on Bills, 41.)

If the order be regarded as a power of attorney given for á valuable consideration, it could not be revoked, and therefore all right in the cargo was transfered. (1 Bacon, 321 Tit. Authority E.)

It is,, however, essentially an assignment for valuable consideration ; irrevocable in its nature, transfering all the property of Lacoste in the cargo of the Two Brothers to Stoney.

In the case of Peyton vs. Hallet, (1 Caines Rep. 363,) it was decided that an order drawn upon an agent not iu possession of the fund out of which it was to be satisfied,, when accepted, fixed the fund irrevocably, and was a good assignment,

The same was ruled in the case of Townsend vs. Feners, (3 Johnson's Rep. 83.)

The case under consideration is much stronger than either of those referred to, in as much as the fund was in the hands of the defendants on whom the order -was drawn. As the order was an absolute assignment of th© proceeds of the cargo of the Two Brothers, irrevocable by the drawer Locaste, and -as his administrator could possess no power, which, he did not himself possess, it follows that the proceeds of the cargo of the Two Brothers’ xvere not assets ; and consequently the defendants did not. make themselves executors of their own wrong, by paying over the balance to the assignees of Stoney.

The motion in this case must therefore be granted.

Justices Nott and Richardson, concurred. •

Justice Gantt dissented..

Justice Colcock

dissenting, delivered the following opinion :

In this case I differ in opinion with my brethren. I think if there be any difference between a contingent and a vested right, that the defendants are liable. It is said the case depends on this question : Had the defendants any goods of their intestate in their hands at his death ? And if so, I think the case a very clear one. At the time of his death, the whole of the cargo of 'the Two Brothers, and the previous deposits of wine and coffee,' were in their hands, subject to their advances; but taken together, greatly exceeding the amount of them. Now, whose property were the wines and coffee ? It is admitted they were Lacoste's. Then as to the cargo of the Two Brothers, it is contended, that the order operated as an assignment of it to John Stoney. That this cannot be the case, may be proven in various ways.

1st. It is paid at the death of Lacoste. Stoney may have said to the defendants, the goods of the ■ Two Brothers are mine, and I have taken possession of them. But this I humbly conceive could not have been,

1st. Because the defendants had a general lien on cargo of the Brothers, as well as the wines and coffee.-

Snell}’. 'Because, from the Very words of the order, a lien was created on them. If so* surely Stoney could not have taken them out of their possession.

Again, suppose the cargo of the Two Brothers had, after the death of Lacoste, been burnt, would Stoney have been the looser ? Woul'd he have been compelled by any Court whatever to credit the demand which he had against '.Lacoste,- with what should have been proved to have been their value ? S think upon such an event we should have heard him contending most strongly that the property was not transferred by the order. Is there any thing in the law of mercantile usage which goes to shew that property can be thus transferred ? Is there any delivery, or that which amounts to a delivery ? Is a delivery even contemplated ? The order says, pay the proceeds, after deduct:ing your balance. Plow, it appears to be inconsistent to' say, pay a man the proceeds of his own property. Again, suppose that the wines and coffee should have been destroyed, or proved to be so inferior as to have brought little or nothing, can it be doubted that the defendants had a right to apply the proceeds of the Two Brothers to his own debt ? I presume, not. How does this comport with a property in Stoney ? How does the word proceeds comport with the idea of a transfer of the thing itself? — ■ Much less can the- idea of a transfer of the thing itself be comprehended, when the order means proceeds, if any. — . But what is the fact ? The defendants did first sell the cargo of the Tivo Brothers, and did apply the money to the payment of their advances. The cargo was sold on the-day of —-. The entry in their books on the ' -is to the credit of Lacoste, This is conclusive. — > It is an appropriation of the money, and such an one as they had an undoubted right to make. As before observed, if the wines had been burnt the day after the sale of the cargo, the loss would not have fallen On the defendants.It is the law, that if one accepts a bill of exchange on the faith of goods to be consigned1, and the drawer die before delivery, he may still sell the goods. Why? Because there the acceptor is bound to pay at all events. And ,it Is but reasonable he should have a lien on the goods.— The advance is made directly on the faith of the goods. — ■ But in this case it is shewn that there was no responsibility on the defendants, except in the event of a contingency, which he had the.power to defeat, and according to the ■ evidence of the case, did defeat. The case quoted by defendant’s counsel from 1 Caines, (Peyton & Hallet,) is-much relied on, but is widely different from that before us. It is an order to pay moneys which it is admitted is a transfer of the money itself. The case from Durn. East, shews what is necessary to change, the property itself. — ■ There, although the conveyance was absolute, and the money loaned on it, yet it was doubted, as the delivery had not taken place before the bankruptcy, (the legal death.) whether the property would pass. And so will it be found, that all the other cases referred to, are actual transfers of the property itself, , If w'e had equity jurisdiction, per- . haps we might say who should have the disposition of the funds, but we are called upon to decide the strict legal rights of the parties.  