
    Arthur Kinder & Al. versus Robert G. Shaw & Al
    A factor has no authority to pawn goods intrusted to him for sale.
    This was an action of trover for sundry goods described in a schedule annexed to the declaration.  Upon the trial before Parker, J., at the last November term, the following facts were in evidence: —
    The goods in question were placed by the plaintiffs in the care and custody of one Abraham Carter, who kept a retail shop, under an agreement between him and the plaintiffs that all goods so put into his hands should be sold for the account and risk of the plaintiffs, should all be distinctly marked with a large K, and kept separate from Carter’s own goods. When any of them should be sold, the bills of parcels were to be distinguished with the same mark as the goods, to designate them to be the property of the plaintiffs, to whom all moneys or notes, received in payment for them, were to be immediately paid. And Carter was to be allowed a commission of five per centum; and in case a certain profit specified should be realized, an additional allowance was to be made. Carter, having occasion for a loan of money for his own use, applied to the defendants, who agreed to advance him-dollars, provided goods to a larger amount were deposited with them, as collateral security, to be sold for the payment of the same, if not discharged according to the terms of the loan. Having received * the [ * 399 ] money, Carter delivered the goods mentioned in the schedule, with other goods which were his own property, to the defendants, who were ignorant of the plaintiffs’ interest in any of them. Afterwards, upon Carter’s becoming insolvent, and before this action was brought, the plaintiffs demanded the goods of the defendants, who refused to deliver them. It did not appear that these goods were sold by the defendants previous to their being demanded by the plaintiffs.
    Upon these facts the jury were instructed by the'judge that, the property of the goods being in the plaintiffs, and Carter being only their factor, no act of his, not authorized by the terms of the agreement under which he received them, could divest the plaintiffs of their right in them, and that Carter had no authority to pledge them foi a debt of his own.
    The jury returned a verdict for the plaintiffs, for the value of the goods, subject to the opinion of the Court whether, upon the facts in the case, the defendants had a legal lien upon the goods, to secure the money advanced by them to Carter. If the Court should be of opinion they had such lien, the verdict was to be set aside, and the plaintiffs to become nonsuit; otherwise, the verdict was to stand, and judgment be entered for the plaintiffs accordingly.
    The Court said they would hear the counsel for the defendants first, in support of the right of Carter to pawn goods delivered to him to sell on commission..
    
      Dexter, for the defendants,
    observed that they rested the defence on the established principle that possession of personal chattels is evidence of property in them so far as to enable the possessor to' transfer the property in them to a third person, by a bond fide delivery, for a valuable consideration. It is true that it has been settled that a pawnee cannot hold goods pawned by a known factor against the principal. But theie is nothing in this case to show that Carter was known to the defendants as the factor of the plaintiffs, nor had the defendants any ground to suspect these goods to be the property of the plaintiffs, or of any one else other f * 400 ] than Carter, who kept an open shop in which * these goods were exposed to sale with his own. It will be observed, also, that it does not appear that Carter intended to deliver the goods of the plaintiffs. Had Carter been known as a commission merchant, dealing in the goods of others consigned to him for sale, it would not be contended that the defendants could have innocently received goods of him as a pledge for money advanced. But this is so far from being the case here, that he was at the same time dealing in similar articles which were his own, and the defendants have a right to say that he never received goods to sell on commissions in any other instance than this now before the Court.
    Fair purchasers can have no security for their purchases, if possession like this is not evidence of property.
    
      Sumner,
    
    on the other side, referred the Court to the following authorities, in support of the action. — Hoare & Al. vs. Parker, 2 Term Rep. 376.— Godfrey vs. Furzo, 3 P. Will. 185.— Whitecomb vs. Jacob, 1 Salk. 160. — Hartop vs. Hoare & Al. 2 Stra. 1187. — Patterson vs. Tash, Ibid. 1178. — Ex parte Marsh, 1 Atk. 159. 
    
    
      
       The Chief Justice observed to the counsel for the plaintiff that this was a very improper practice. The schedule annexed to a declaration is no part of the declara tian. It is allowed in actions of assumpsit, for goods sold and delivered, because the plaintiff is not hold to particularize the articles ; but it is otherwise in trover ana replevin.
    
    
      
      fc) Rider vs. Robbins, 13 ilfass. Rep. 284. Sed qu.
    
    
      
       See also Daubigny & Al. vs. Duval & Al. 5 Term R. 604
    
   Paksons, C. J.,

afterwards observed that the Court, considering the question of importance to the mercantile part of the community, had looked into the case with attention, and were all of opinion that a factor has no authority to pawn goods which have been intrusted to him for sale. The rights of the principal and factor depend on the law merchant, which has been adopted by the common law. By this law a factor is but the attorney of his principal, and he is bound to pursue the powers delegated to him. If he sells the goods on a credit as his own, the purchaser not knowing him to be a factor, the principal may forbid payment to be made to the factor; and if afterwards the debtor should pay the' money to the factor, he would pay it in his own wrong, and be still liable to the action of his principal, unless he had at the time given to the factor a bond, or a negotiable security, which had been actually negotiated before notice. There must be

Judgment according to the verdict. 
      
      
        Wils. Rep. 405, Scott & Al. vs. Owen & Al
      
     
      
      
        Odiorne & Al. vs. Maxcy & Al. 13 Mass. Rep. 178. — Jarvis vs. Rogers, 15 Mass. Rep. 396, 488. — Chesterfield Manf. Co. vs. Dehon & Al. 5 Pick. 7.— Guerrio vs Peale, 3 B. & A. 616. — Patterson vs. Tash, 2 Str. 1182. — Daubigay vs. Duval, 7 D. & E. 606. — De Bouchot vs. Goldschmidt, 5 Ves. 211. — Newson vs. Thornton, 6 East, 17. — M'Combie vs. Davies, 6 East, 538. — Martini vs. Coles, 1 M. & S. 146.—Paley, bv Lloyd, pp. 213—218. — Urquhart vs. M’Ives, 4 Johns. 103.
     