1754. KRUGER agt. WILCOCKS. CHANC. 1st. I will consider in what light Misho stands with respect to Watkins, under the letter of attorney of 1747. 2dly. In relation to this logwood, on the foot of the letter of 1749. 3dly. If he is to be considered as a factor, whether he had any lien on this logwood. 4thly. If so, whether he ever departed from that lien; and 5thly. What will be the consequence on the whole. 1st. He is to be considered as something more than a mere attorney for the particular purpose of selling goods consigned to him, whose authority ceased on Watkins's arrival; and if he took possession in Watkins's absence, I should think it within his power. If it had appeared that Watkins, on going to Wales, had forbade him, it would have altered the case, but he did no such thing, and appears not to have disapproved of Misho's proceedings. I would not be understood to look upon this letter of attorney as a consignment of this logwood to Misho, but only as an authority to him to sell it, &c.; so that in so doing he was not a wrongdoer. 2dly. Taking it on the foot of the letter of June 1749, I am of opinion that Misho is to be considered as consignee, or factor, for Watkins, to sell, and act on his account. The counsel laid great stress on the words in the letter, "all on my account," as if they excluded Misho; but if we stop there, I think it is an improper expression. I consider it as meant to point out, that this ship was to be wholly laden with Watkins's goods; but the words that follow put an end to the objection," she will be to your address." I dare say there is not a merchant but would understand these words as a consignment: mercantile expressions are generally very laconic: the master understood it so by delivering the goods to him; the broker understood it so by applying to him. 3dly. If the letter constitutes Misho a consignee, or factor of this cargo, it cannot be disputed, but by the custom of merchants he had once such a lien as would have enabled him to do himself justice. The ground of a legal lien is rightly stated by the merchants examined in this cause: the merchant was purchaser, and lays out his money abroad, has occasion for a fund of credit on his agent here for several purposes, bills are drawn, and accepted, insurances procured, &c. before the ship can be sold, if arrived. Without such lien it is impossible to carry on trade. This is an instance that the agent was so far from having any fund in his hands, that Watkins was then in debt to him very considerably; and therefore it was doubtless on the credit of this consignment that he parted with more money. Unless then he has clearly parted with this lien, he has still a right to satisfaction out of the produce of this cargo. What has been hitherto said relates only to the particular lien he had for the money laid out on account of this very ship, but the merchants examined for him carry it much further, and extend the lien to include his whole debt. This has never been determined; and as it appears that repayment of the money laid out on account of this ship will exhaust the money paid by the plaintiffs into the bank, which is the only fund from whence he can have satisfaction, it will be unnecessary to determine it now. I am of opinion therefore that Misho's possession 1754. KRUGER agt. WILCOCKS. CHANC 1754. KRUGER agt. WILCOCKS. CHANC created such a lien for the expenses relating to this cargo as will, unless he has released it, entitle him to the benefit of it now. This brings me to the 4th point: On this the merchants founded their opinion on a general waiver of a lien: so far it is not disputable: if I lend money on a pledge, and after give up that pledge, and rest on the personal security of the borrower, I can never on a turn of circumstances resort back to the pledge; but whether Misho has done so, or not, must depend on the particular circumstances of this case.. If Watkins intended by his letter to acquaint Misho that he was only to be consignee in case he did not come over, he ought to have been more explicit, that Misho. might have known how far it would be prudent for him to advance money. The goods continued all the while in a warehouse taken and paid for by Misho, and the, warehouse-keeper swears that he looked on Misho as the only person from whom he ought to receive directions. concerning them. When we consider Misho's expressions, on which great stress has been laid, it will appear that he departed from nothing, in referring the broker &c. to Watkins, but the commission, which no factor, when his principal was present, would insist on; and from› the circumstances it appears that none of the parties had any notion that Misho had absolutely departed from his hen, for the sales were attended both by him, and Watkins. When Misho applied to Hudson to stop payment to Watkins, Hudson, had he apprehended Misho had nothing to do with it, would have made him no such promise, nor have been under any apprehension on acceptance of the bill, which could only arise from his consciousness of the right of Misho still subsisting. But there is another circumstance which weighs more still with me, that is, the captain of the ship's refusal to give up the goods till the 1754. KRUGER agt. WILCOCKS. paid for, upon which Misho, Watkins being incapable, undertook to pay, and afterwards actually did pay sum so required. This is much stronger than any inference that can be drawn from general expressions of Misho; nor can I think those expressions, which a prudent man, not willing to disoblige his principal, might CHANC use, ought to be considered as a total relinquishment of the lien he had, and therefore I think it remained, and was well founded. In consequence, I now declare that Misho is entitled to be reimbursed whatever sums he advanced for insurance, &c., amounting to £500, and also the £160, paid the captain, and whatever else he has disbursed on account of this ship, and also his costs of this suit. The plaintiffs likewise are to have their costs out of the money in the bank. Mr. Noel objected to the giving costs to the plaintiffs, as not usual on bills of interpleader, and the register mentioned a case, which Mr. Clarke remembered, where, precedents being looked into, and found, that the court had done it, the Chancellor considered of it, and was of opinion they were not entitled to costs. The plaintiff only files a bill, and opens it: all the proceedings are between the other parties. MASTER OF THE ROLLS. The circumstances of this case, the plaintiff being a stake-holder by consent of both parties, seem to require it. Mr. Wilbraham. A stake-holder is a trustee for both parties; it is hard he should lose his costs, when a trustee for one party always has his. 1754. KRUGER agt. WILCOCKS. CHANC, There was an action actually brought by the assignees, which would have determined the right: giving costs here is giving it out of Misho's pocket, for the fund is not sufficient to pay him, Question. Whether any costs were given? This case afterwards came on before Lord Hardwicke (a), who determined, that factors have a lien for the general balance of their accounts. (a) See Ambl. 252. 1754. March 14. An assignee of a bank. rupt employs a broker to sell, and re ceive the money for BELCHIER agt. PARSONS.-CHANC inoney. A MRS. PARSONS was chosen assignee under a commission of bankruptcy issued against one Holden; among whose effects was a considerable quantity of tobacco, which she employed one Wigan, a broker, to sell by public auction. Wigan accordingly sold it, and received the goods, who few days after (as appeared by the evidence) he fell sick, after the sale and, after ten days illness, died. On his death, his cirdies in incumstances proving bad, his creditors had but a small solvent circumstances; dividend; and Mrs. Parsons, among the rest, had but little of the money received by him for the tobacco. The master having by his report charged her with the whole; the question now before the court, on exceptions to the master's report, was, whether she should be charged with the whole money, or that part of it only which actually came to her hands. held, that the assignee is not re sponsible to the creditors for the value of the goods sold by the broker, be yond the dividend actually received from the broker's effects; an assignee, or trustee, not being liable for accidental losses, without blameable negligence. Ambler, 218. S. C. |