
    Henry Bowie & Sons, vs. Thomas Napier & Co.
    
      K Factor can not pledge the goods of his principal for his o-.vn debt. — » But it is equally clear, that when a Consignee acts within the scope of his authority, and employs a sub-agent to carry that authority into execution, as by selling goods consigned to him, or doing any olheu ac.t within that authority, that such sub-agent has a lien on the goods upon which he has made advances for the purposes of a sale.
    THIS case was tried rn the City Court, before the Re» corder, and was brought up on appeal from bis decision. The facts as stated in his report, are as follows :
    The plaintiffs, residents of Paisley, in Scotland, consigned some packages of goods to Mr. IValter McCoul% in Charleston, for the purpose of sale; Mr. Me Coul being a merchant who both imported on his own account, and sold goods on account of others. In March, 1818, McCoul deposited with the defendants, who were vendue-masters. certain merchandise, belonging to himself, also, the mei> chandise consigned to him by the plaintiffs, with directions to sell as opportunities offered. The defendants’, upon the receipt of these goods, became securities for the duties upon them, which they have since paid, and made to Mr. McGoul large advances upon them, generally. For when they were delivered, no distinction was made between those parts which were the property of the plaintiffs, and those that were the property of the consignee. The defendants believed the whole to have been the property of McGoul. In which belief, they were confirmed by the delivery of the bill of lading, of which the following is a copy. “Paisley, 12th December, 1817, consigned Mr. Walter McGoul, per the Betsy, Thomas Taylor, from London for Charleston, under full insurance by, Henry Boxoie Sons. (Maked) W. MThen followed a description of the packages.
    On the 18th of February, 1819, the plaintiffs, by their agent in Charleston, demanded from the defendants the proceeds of súch of the goods specified in the above bill of lading, as had been sold, and the restoration of such of them as had not been sold. This was the first intimation given to the defendants, that the plaintiffs claimed the goods. This notice was given after the sale of that part of the merchandise, for the recovery of the proceeds of which, the first action was brought.
    The defendants refusing to comply with the demand of the plaintiffs, these suits were instituted to recover the money arising from the goods which had been sold, and the return of those whiclvremained unsold with the defendants.
    It was admitted that the plaintiffs were, in fact, the owners of the goods mentioned in the foregoing bill of lading; but the defendants were ignorant of it, until the time of the demand made upon them. Such of the goods of the plaintiffs as were unsold at the date of the receipt of the notice, were afterwards disposed of by the defendants; and upon debiting the consignee with the amount of duties paid, and of advances made, and crediting him with the total proceeds of the sales, a balance would still be due by the consignee, whichhad never been paid. It was proved that it was the custom for merchants in this state to obtain advances on goods consigned to them by foreign merchants for sale, by depositing them with an auctioneer, who, when he sold, reimbursed himself for his advances.
    The counsel for the plaintiffs contended that they were entitled to recover,
    1st. Because the consignee having only authority to sell5 could not pledge ; and that the fact of the ownership be*-ing unknown to the defendants made no difference.
    2d. Because the law being fixed, no custom could be set up against it; and if such a custom could be pleaded, it could not be maintained ; as it was unreasonable and unjust.
    3d. That admitting such custom to be reasonable and just, to be available, it must be shewn to have existed previously to the Act of tbe Legislature of 1712, fl Brev. Dig. 136. Qrimke, P. L. 99,J making tbe English common law of force in this state. The counsel further contended that the defendants had no lien even for the duties paid to the custom-house ; as the plaintiffs had made their demand within a year, before tbe expiration of which period, upon a re-exportation of tbe goods, they would have been entitled to tbe drawback. In support of his first position, tbe counsel quoted 1 Com. Con, 236-7'. 1 Livermore, 129,141. 1st Maulé &? Sel. 140. Ib. 484. 2 Maulé cd Sel. 298. 2 Mass. T. R. 398. Van Amringe vs. Peo-body, 1 Mason R. 440. Newsom vs. Thornton, et. al. 6 East’s R. 17, 25. McCombie vs. Davies, lb. 538. f East’s R. 5. S. C. In support of the second position, 2 Johnson’s Rep. 335.
    The counsel for the defendants admitted tbe law of England to be, that a factor directed to sell, could not pledge tbe goods of bis principal; but said,
    1st. That tbe law, even in England, was not without exceptions.
    2d. That there was a difference in this case, as the goods were placed with the defendants for sale, which authorized ■them to retain ; and
    3d. That commercial usage is the lav/ of the country m 
      ■which it prevails, and is founded upon the jus gentium.. not the municipal law of any nation. That by the- Art of Assembly o{ 1712, the customs and usages of this state are unaffected by the common-law ot England ; and that a lien in this case had been fully proved to exist, by custom. He also? contended, that in any event, the money received by the defendants, before the notice of the plaintiff;; claim, could not be recovered by them, as it had been regularly passed -in account with the consignee. To sustain bis first position, the counsel rejiied upon Collins vs. Martin, 1 Bos. &? jPul. G48. 7 Term Rep. 353. Pultney vs. Keymer, 3 Esp. R. 182. Ib. 268. 2 Bell Com. 76, 7% 80,319. Pardessu, 420. For his sec.ond position, he relied upon the facts as proved, and the cases of George vs„ Ciaggett, 7 Term. Rep. 355, and notes. Pultney vs. Key-met, 3 Esp. R, 182. Ib. 268. In support of his third position, the counsel quoted 1st Marshalls Ins. 19, and the Act of the Legislature, passed in 1712.
    The Recorder conceived that the plaintiffs ought not to recover, and a verdict was found for the defendants.
    A motion was now made for a new trial, on the following grounds:
    1st. Because by a settled rule of the commercial lave, adopted.in this state, a factor or consignee cannofplcdge the goods of his principal for his own debt.
    2d. Because no evidence of mercantile usage in this state can be received to contradict a settled rule of the commercial law.
    3d. Because the charge of his honor the Recorder, it was respectfully contended, was contrary to law in the foregoing particulars.
   Mr. Justice Colcock

delivered the opinion of the Court.

.As to the first ground, the Court are unanimously of opinion that a factor cannot pledge the goods of his principal for his own debt; and although it should be considered as a hard rult, and sometimes producing the most ínjú-7?oua effects on persons acting under the purest motives, yet, the long train of decisions put it out of the power of the court to question the doctrine. As the judges of En-> gland say, u is vain sor us now to speculate on the suhjt ct.

The authorities referee) to by the counsel, ar, recognis-ed as law by the Court. But it is equally clear from the cases, that when a consignee acts within the scope of his authority, and. employs a sub-agent to carry that authority into execution, as by selling goods consigned to, him, or doing any other act within that authority, that such sub-agent has a lien on the goods, on which, he has made advances for the purposes of a sale. (7 Term. R. 355., George vs. Claggctt, 3 Espinasse, 182, 268. 4 Camp. 60, 349.)

In the case of Martini vs. Coles and others, (1 Maule & Selwyn, p. 147,) Lord Ellenborough says, <l the defer, dnnts therefore received the goods in order to sell them,, which makes the only distinction between this and the former case, vijz : ■ That here the possession of the defendants ¡was legal in the first instance. The defendants then being authorized to sell the goods, if they had advanced mo*-ney for any purposes ' connected with the sale, and for which brokers, in the ordinary course of disposing of goods, are accustomed ,to advance, they would have had a lien in respect of such advances ; but no claim of that sort is advanced.”

The question then is, whether this wag a pledge for a pre-existing debt, or one contracted at the time of the con* signment; or whether the money was pot advanced in the usual/mode of business, and for the purposes of effecting a sale? In the first place, I think there is such a marked difference between a pledge and a deposite for sale, that is would seem astonishing they should ever be panfoondecL /By a pledge, we understand not only a thing that may be-redeemed, but generally one that is intended to be redeemed. Now, when goods are deposited with orders to sell, such an idea as that of redemption can never enter the-mind; for the agent with whom they are deposited,Way, in the shortest space of time, alienate the right; and if he be engaged in much business, and the articles saleable, often times does so. But it is said the authority to retain in England for advances made, is confined only to brokers. whose business is generally understood to be to effect sales, and who are legally authorized agents. If the principle be admitted because such agents in England are necessary, and are in consequence of their duties often times obliged to advance money, I would ask, why not under the same necessity, the same consequence with us ?' W; are a commercial people to a certain extent. A consignee may require the aid of a sub-agent here as well as in England, and why not that sub-agent be allowed here to retain for his advances made in the way of his business as well as in England. He performs the same duties, although perhaps not in the same manner ; he stands in the same relation to his principal in other respects, why not in the most important one ? The answer is, — ’because be is called vendue-master, and not broker. In this country, nothing is more common than for the same man to act in different characters - and rather than sacrifice principle to a name, we call him a broker. He is licensed by the public, and enters mío bond and security. His business is as well known here a;! that of any broker in England, and it is the same.

—^-for the motion.

King, contra

As it appears to the Court that the defendants came legally into the possession of the goods without .mv knowledge of any other claimant than the consignee ; — that they were deposited bona fide for sale, that they advum cd, as was usual, money on these goods, by paying the tjuties and a price to the consignee, McCoul, they are of option that the motion should be discharged. ‘ \

Justices Gantt, Huger, and Johnson, concurred*  