report; but they swore that they thought a sale the most prupent step that could be taken, by reason of the difficulty, expense, and hazard, of removing her from her situation, and the little resources that Cook had for such a purpose. The plaintiffs contended that the master of a ship could not dispose of her in any case; or that, admitting him to have this power in a case of absolute necessity, this necessity did not exist in this instance, and the whole transaction was a gross fraud.

Lord Ellenborough, C. J. offered to reserve the question of the master's power to sell under any circumstances, for the consideration of the court, if the verdict should render that point material; and stated his own opinion to the jury to be, that, "although the master had no general authority to sell, he had an implied authority, in cases of extreme necessity, to act for the benefit of the concern, exercising a sound discretion, such as the owner himself would exercise if he were upon the spot; and that, in extreme cases, and such only, he had a power to sell, as in the instance of a wreck which could not be got off, and ought not to be left to perish absolutely. His lordship desired the jury to consider, whether, in this case, there was such a necessity as would have induced the owner himself to sell, if he had been present; and, if they thought there was a necessity, then, whether the sale in this instance, was fraudulent." The jury found a verdict for the plaintifs.

The deputy naval officer noticed in the preceding case, is the deputy of an officer appointed by the governor of the colony, to receive an account of ships and cargoes upon arrival; and, in the course of the trial, no regard was paid to his authority; as, it appears, that his situation gives him no manner of jurisdiction on such a subject. In commenting upon the evidence, the chief justice adverted particularly to the circumstance of one of the surveyors having bid at the sale, and another become a purchaser before the ship left the island. He added that it might be a useful lesson to teach such persons, that, by accepting the office of surveyor, they elected not to become purchasers, or to derive any benefit from a sale.

At a subsequent trial, Andrews v. Glover, Sittings after Trinity Term, 46 Geo. III. at Guildhall, before Lord Ellenborough, C. J. brought to recover the value of a ship, which had been, in like manner, condemned and sold at Tobago, as incapable of repair, and in which also the plaintiff succceeded, the chief justice said, that "he considered a proceeding of this sort not as the sentence of a court, pronounced for the captors of a captured vessel, but rather as the inquisition of a sheriff, for the purpose of information to those who, under certain circumstances, have the power of selling the ship. Such an inquisition is not conclusive upon the party whose property is in question.

Finally, in the case of the ship Grace, the sale was considered to be fraudulent; but, in that of the Glamorgan, fair and well intended, and founded on the proceedings usual on such occasions, viz. a petition of the master to the court of vice admiralty for a survey, a commission of survey, report of surveyors, decree of the judge adopting the report, petition of the master for a sale, and a commission of sale, directed to the marshal of the court. Yet, in this case, the court of King's Bench decided that the vice-admiralty courts abroad have no authority to decree, upon the mere petition of the master, the sale of a ship reported upon survey to be unseaworthy, and not repairable, so as to carry its cargo to the place of destination without an expense exceeding the value of the ship when repaired.

An American Vessel sold in a foreign port must return her Register.

In case an American vessel should be sold in a foreign port, or otherwise left behind, the register must be returned. Where there is an American consul, it will be retained in his hands, which answers the same purpose. The owner gives heavy bonds at the custom house for the return of the register.

Penalty for not having a vessel's name on her stern.

There is a penalty of fifty dollars if the name should not be on the stern of an American vessel. The letters must be four inches long, white upon black, according to law.

The Hovering.

If any vessel should be seen laying off and on, near any port in Great Britain, for more than twenty four hours at one time, a cutter will be sent out to bring her into port, and she will be put under seizure, and if not condemned, will be heavily fined.

In 1809, I was in England, in the brig Sylph, when a vessel belonging to Norfolk, Virginia, was taken into Portsmouth, under the hovering act, detained, and obliged to pay upwards of three hundred pounds sterling before she could obtain a release.

Masters of ships to note a protest within twenty-four hours after their arrival at the port of destination.

It is the duty of the master, when he is arrived at his port of destination, to note a protest within twenty-four hours after his arrival and if it be in the United States, a writ of survey must be taken out within the same time. This writ of survey must be given to one of the port surveyors; and if any goods should be damaged, the surveyor must be called to examine their stowage; otherwise the ship will be accountable for the

damaged goods. The surveyor must also be called on to see the hatches opened before bulk is broken.

It is also necessary that a commission for a survey be taken out in a foreign port, and the survey to be present when the hatches are taken off. This precaution may sometimes save trouble, as many have experienced.

Of Factors and Factorage.

A factor is one who acts for another, and who buys, sells, or negociates, conformably with the orders of his employer, under various circumstances of limitation.*

The factor generally receives, from the merchant or person by whom he is employed, a commission of factorage, according to the usage of the place where he resides, and the business he transacts. It is requisite that he keep strictly to the tenor of his orders, as a deviation from them, even in the most minute particular, exposes him to make ample satisfaction for any loss that may accrue from his non-observance.

The usual compensation to a factor is made by a commission of so much per cent. on the goods sold; but sometimes he acts under a del credere commission: or, for an additional premium beyond the usual commission, he undertakes for the credit of the persons to whom he sells the goods to him consigned. In the latter case, the undertaking, though verbal, is not affected by the statute against frauds, 29 Chas. II. c. 3., which, in general, invalidates any verbal undertaking to be responsible for the debt of a third person; and the factor is usually sued as if he himself were the purchaser.

Del Credere is an Italian mercantile phrase, which has the same signification as the English word Guarantee, and the Scottish word Warrandice.

A factor authorized to sell goods in his own name generally debits the buyer to himself; though, if money be not paid he is not liable to his principal for it (unless under a commission del credere ;) yet he has a right to receive it, and his receipt is the proper discharge. The factor may bring his action, and the buyer cannot set off a former sum due to him from his principal. Strange. 1182.

FACTOR, BROKER, and AGENT, are terms nearly synonymous; yet custom has created distinctions in applying these different names to particular distinctions of agency. Hence Factor appears to be exclusively applied to agents employed in the purchase or sale of goods. Brokers are generally factors, and employed also, in the shipping and money transactions of merchants and masters of ships. Agents have other distinctions, as those to the army and navy, who receive and advance pay or proceeds, on account of officers and others. The latter term, however, as it largely implies a person duly authorized to act for another, comprehends all the rest, and may therefore be indiscriminately applied to the whole.

A factor selling goods as his own, by indorsement of the bill of lading, though no delivery is made, the goods being at sea ; the buyer shall keep possession, unless collusion appears between them. 2 Burr. 2046. 1 Black. Rep. 629.

A factor, empowered by general orders to dispose of goods to the best advantage, is bound to exercise that degree of diligence which a prudent man exercises in his own affairs. If it appears that he has done so, and sold the goods to persons in reputed good circumstances, and to whom he would have given credit on his sole account, he will not be liable, although some of these should fail. The factor, in this case, is generally paid by a commission of so much per cent. upon the goods sold, and is sure of his commission whether the event be favourable or otherwise. Hence, to preclude risk to the merchant, the agreement called del credere was invented, by which the factor, for an additional premium beyond the usual commission, when he sells the goods on credit, becomes bound to warrant the solvency of the purchaser. Lord Mansfield said (Grove v. Dubois, 1 Term. Rep. 115.) that a commission del credere was an absolute engagement to the principal from the broker (or factor) and made him liable in the first instance. Thus when a factor, under a commission del credere, sold goods and took accepted bills from the purchasers, which he indorsed to a banker, at the place of sale, and having received the banker's bill, (payable to the factor's own order,) on a house in London, indorsed and transmitted it to his employer, 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.

A sale by a factor creates a contract between the owner and buyer, although unknown to each other; and this rule holds even in cases where the factor acts upon a del credere commission. Hence, if a factor sells goods and the owner gives notice to the buyer to pay the price to him and not to the factor, the buyer will not be justified in afterwards paying the factor, and the owner will be entitled to recover the price in an action against the buyer, unless the factor has a lien on such price.

If goods are bought by a person as a broker, though without disclosing the name of the purchaser, until he has become insolvent, the purchaser thus knowing that the party acted as an agent, cannot set off the price of the goods against a debt due to him from the broker, but is still liable to the vendor. But, when a factor, acting under a del credere commission, sells goods as his own, and the buyer does not know of any principal, the buyer may in an action brought against him by the principal set off a debt due to him from the factor.

The circumstance of persons selling goods being described

in the catalogue of sale as sworn brokers, is not sufficient notice to the purchaser that they are only agents in that transaction, to prevent him from dealing with them as principals: and, when goods are sold by a broker without disclosing his principal, the purchaser is justified in paying him in the same or in a different manner from that stipulated for by the terms of the contract; though it would be otherwise when the principal is disclosed at the time of sale. When, however, a factor sells goods as a principal, and before they are all delivered, or any part of them paid for, the purchaser is informed that they belong to a third person, in an action by the latter for the price of them, the purchaser cannot set off a debt due to him from the factor.

If a broker is authorized by one man to sell goods, and to buy such goods for another, an entry in his books of sale of these goods from the one to the other, signed by him, is in general a binding contract between the parties; the bought and sold note, which is a copy of this entry, is not sent to the parties for their approbation, but to inform them of the terms of the conThe authority, however, of the broker may be countermanded at any time before a memorandum of the contract of sale is written and signed by him, pursuant to the statute against frauds, although he has previously entered into a verbal agreement to sell the goods.

tract.

In the city of London, if goods are sold by a broker, to be paid by a bill of exchange, the vendor has a right, within a reasonable time, if he is not satisfied with the sufficiency of the purchaser, to annul the contract. But the vendor must intimate his dissent so soon as he has had an opportunity to enquire into the solvency of the purchaser, and five days have been deemed too long for this purpose.

Should unlimited orders be given to a factor, he is left to buy or sell on the best conditions he can. If detriment occurs to his employers, the ready excuse will probably be that he acted for the best according to his prudence and judgment.

The factor being merely a trustee for his principal, if the lat ter, having goods in the other's hands, owes him money by simple contract, and then dies indebted by specialty, more than his assets are worth, the factor cannot retain the goods.

If a factor receives a commission merely to sell and dispose of goods, this will not enable him to trust: yet it is now held that he may sell on credit unless the usage of the trade be to the contrary.

A factor, as such, has not any authority to pledge, but only to sell, the goods of his principal. Hence, if the factor pledge the goods, the owner may recover the value of them in an action