the testator is insolvent, a person who has an unsatisfied demand upon such estate, is not a competent witness for the plaintiff.

Upon plene administravit et issint riens inter mains, if it be proved, that executor hath goods in his hands, which were the testator's, he may give in evidence, that he hath paid to that value of his own money, and need not plead it specially,

In case against executor, upon plene administravit, the plaintiff must prove his debt, otherwise he shall recover but 1d. damages, though there be assets; for the plea admits the debt, but not the amount.

Judgment. On a plea of plene administravit generally, by an executor', the plaintiff may immediately take judgment of assets quando acciderint (48). In debt or scire facias on this judgment, evidence of such assets only as have come to the executor's hands since the judgment will be received.

Judgment against an executor, in covenant broken by himself, shall be de bonis testatoris; for it is the testator's covenant which binds the executor as representing him; and therefore he must be sued by that name1.

In like manner upon an obligation made by testator for the performance of covenants, judgment in debt on the bond for a breach of covenant by executor, shall be de bonis testatoris.

So in debt against an executor on a bond made by testator", if the defendant plead non est factum, and it is found against him, judgment shall be for the debt and damages de bonis testatoris; for the executor cannot know whether it be the deed of the testator or not.

In debt on bond against an executor, if the defendant plead fully administered," and any assets are found in his hands, although they be not to the value of the debt, yet

f Craig v. Cundell, 1 Camp. N. P. C. k Taylor v. Holman, Bull. N. P. 169.

(48) See the form of this judgment in 2 Saund. 216, 217.

the plaintiff shall have judgment for his whole debt de bonis testatoris (49).

In debt against two executors", if they plead severally by several attornies " fully administered," and the jury find that the one has assets and the other has not, the judgment shall be against him only who is found to have assets, and the other shall go quit.

Where the cause of action is such, that the executor might have declared in his own right, he is liable for costs, if he is nonsuited.

o Lee v. Ridford, adjudged on error, in Exch. Ch. 1 Roll, Rep. 58.

p Bellew v. Jackleden, on error in

Exch. Ch. 1 Roll. Abr. 929. (B.) pl. 5.

q Grimstead v. Shirley, 2 Taunt. 116.

(49) But see Harrison v. Beccles, cor. Ld. Mansfield, C. J. London sittings, 1769, cited in Erving v. Peters, 3 T. R. 688.

1

CHAP. XX.

FACTOR.

Of the Nature of the Employment of a Factor-Power and Authority—Lien-Liability of Principal—Evidence.

OF the Nature of the Employment of a Factor.-A factor or broker is an agent, who is commissioned by a merchant or other person to sell goods for him, and to receive the produce. Foreign factors are agents residing here, commissioned by merchants resident abroad, or the contrary. Home factors are agents resident in England, commissioned by merchants also resident in England.

A factor is usually paid for his trouble, by a commission of so much per cent. on the goods sold. But sometimes he acts under a del credere commission (1), in which case, for

(1)" Del credere is an Italian mercantile phrase, which has the same signification as the Scotch word warrandice, or the English word guarantee. A factor who has general orders to dispose of goods for his principal to the best advantage, is bound to exercise that degree of diligence which a prudent man exercises in his own affairs, and consequently the factor is authorized to dispose of the goods according to the best terms which can be obtained at the time; and if it shall appear that he has done so, and that he has sold the goods to persons in reputed good circumstances at the time, and to whom at that time he would have given credit in his own affairs, he will not be liable to his principal, although some of these should fail; and for such trouble the factor is generally paid by a commission of so much per cent. upon the goods sold. According to the above practice, the principal runs all the risk, and the factor is sure of his commission whether the event be favourable or not. Many merchants do not choose to run this risk, and to trust so implicitly to the prudence and discretion of their factor; and, therefore, the agreement called del credere was invented, by which the factor, for an additional premium beyond the

an additional premium beyond the usual commission, he undertakes for the credit of the persons to whom he sells the goods consigned to him by his principal.

Power and Authority.-A factor, as such, has not any authority to pledge, but only to sell the goods of his principal. Hence, if a factor pledge the goods of his principal, the latter may recover the value of them in trover, against the pawnee, on tendering to the factor what is due to him, without making any tender to the pawnee (2).

The same rule holds with respect to a bill of lading which has been endorsed to a factor by his principal; for the bill of lading, which is the symbol of the delivery of possession, cannot give a factor a greater authority than the actual possession of the goods themselves. Hence, as a factor cannot pledge the goods of his principal, by a delivery of the goods, so neither can he do it by an endorsement and delivery of the bill of lading; for, although the endorsement of a bill of lading gives the endorsee an irrevocable right to receive the goods, where it is intended as an assignment of the pro

a Paterson v. Tash, Str. 1179, per Lee, C. J. Martini v. Coles, 1 M. & S. 140. and Shipley v. Kymer, 1 M. & S. 484.

b Daubigny v. Duval, 5 T. R. 604. c Newsom v. Thornton, 6 East, 17.

usual commission, when he sells his goods on credit, becomes bound to warrant the solvency of the purchasers." Arg. Mackenzie v. Scott, 6 Bro. P. C. 287. Tomlin's ed.

In Grove v. Dubois, 1 T. R. 112. the effect of a commission del credere was discussed in the Court of King's Bench, and that court decided, that it was not merely a conditional undertaking and guarantee from the person taking it, that he would pay if some other person did not, but that it was an absolute engagement from him, and made him liable in the first instance; and the same doctrine was acquiesced in, and acted upon in Bize v. Dickason, 1 T. R. 285. cited in Koster v. Eason, 2 M. & S. 112. Hence, where a factor, under a commission del credere, sold goods, and took accepted bills from the purchasers, which he endorsed to a banker at the place of sale, and having received the banker's bill (payable to the factor's order) on a house in London, endorsed and transmitted it to his principal, who got it accepted; it was holden, that on the failure of the acceptor and drawer of this bill, the factor was answerable for the amount. Mackenzie v. Scott, 6 Bro. P. C. 280. Tomlin's ed.

(2) Where a factor pledges the goods of his principal as his own, the pawnee cannot claim to retain against the principal for the amount of the factor's general lien at the time of the pledge. M. Combie v. Davies, 7 East, 5.

perty in the goods, yet it will not have that operation, where it is intended as a deposit only, by a person, who is not authorised to make such deposit (3).

Where goods are permitted to remain at a wharf in the name of a broker, who is accustomed to deal in the article, and the broker sells them, the principal will be bound by such sale, although he did not expressly authorize the broker to sell.

A factor may sell on credit, although not particularly authorized by the terms of his commission so to do (4).

Where plaintiff's consigned goods to their factors, who not having funds to pay the freight and duties, agreed with the defendants that they should take charge of the consignment, pay the freight and duties, and sell the goods, and have one

d Pickering v. Busk, 15 East, 38. See e Per Willes, C. J. Willes, 406. Per also Whitehead v. Tuckett, 15 East, Chambre, J. 3 Bos. & Pul. 489.

400.

(3) In the case cited (c), as an authority for this position, the party to whom the factor had pledged the bill of lading, had not any notice that he was dealing with a factor; the indorsement by the principal was a general indorsement: but it was observed, by Lawrence, J., that the letter of advice which brought the bill of lading might have been inquired for, and that would have shewn, that the person who pledged the bill was factor only, and not vendee of the goods.

..

(4) It has been objected, that a factor, by virtue of a general authority, cannot sell on credit; if he do so, it is at his own risk, and the owner is not obliged to accept the vendee as his debtor; and it does not in the present case appear that he had any special authority. And for this purpose several passages were cited out of the civil law books as to the nature of a factor. To this I shall answer, that the nature of dealing is now quite altered, of which the courts of law must take notice; for constant and daily experience shews, that factors do sell upon credit without such a special authority. If it were otherwise, it would be the greatest prejudice to trade; and we ought always, and as much as we can, and as far as is consistent with the rules of law, to do every thing for promoting the trade and commerce of the nation." Per Willes, C. J. delivering the opinion of the court in Scott v. Surman, Willes, 406, 7. N." An agent employed generally, to do any act, is authorized to do it only in the usual way of business. Hence, as stock is sold usually for ready money only, a broker employed to sell stock cannot sell it upon credit, without a special authority, although acting bonâ fide, and with a view to the benefit of his principal.' Lord Ellenborough, C. J. Wiltshire v. Sims, 1 Camp. N. P. C. 258.