
    The Executors of Godfrey against Forrest.
    
      ASSUMPSIT for rice sold by pardo,- a factor.
    This cause was nearly similar to the foregoing one, bug not tried by the same jury. The same kind of defence was set up, viz. a debt due from Fardo to the defendant. The only difference was, that, in the foregoing case, Teasdalc seems to have procured the bond and note of Fardóos for the purpose of setting them off against Atkinson's demand, whereas, in the present case, Fardo fell indebted to Forrest for goods sold and delivered ; and Fardo dying insolvent, Forrest contended he hád a right to set off Fardóos debt against the value of the rice, on the ground that he had made no contract with the plaintiffs, and did not know them in the transaction.
    In the course of the arguments for the defendant, his counsel relied on 4 Burr. 2046. and Str. 1182.
   The Court,

upon the same ground as in the preceding, case, were clearly of opinion that a factor could not give the goods of his principal in payment of his own debts. T'hat the sale of the factor raised a contract between the' original owner and the purchaser $ and that nothing but actualpayment, either to the factor or principal, would discharge such contract.

The jury returned a verdict for the defendant; and on motion for a new trial, made on the adjournment day following, it was ordered without argument.

The cause came on to be tried, a second time, in the succeeding May term, before a special jury, consisting of merchants and planters, when, after remaining all night in the jury-room, they returned into court, next morning, equally divided in opinion, viz. the planters for the plaintiff, and the merchants for the defendant. And as both parties expressed their fixed determination to adhere to their opinions, they were, by consent of the parties to the suit, dismissed.  