principal for the price of the goods, a debt due to him from the factor; but that, where he sells as factor, no such set-off is allowed. That doctrine certainly was broken in upon by the ruling of Parke, B., in Warner v. M'Kay. But the court of Exchequer seem to have felt that that ruling was not sustainable: they upheld the verdict there on the score that there had been a payment to the brokers, though a premature Whether that view was correct or not, the court refused to uphold the ruling of Parke, B. That case, therefore, is no authority for the purpose for which it has been cited to-day.

one.

CRESSWELL, J. I am of the same opinion. This is an attempt to extend the rule laid down in Rabone v. Williams (a) and George v. Clagett (b), which has now been uniformly acted upon for many years. If a factor sells goods as owner, and the buyer bonâ fide purchases them in the belief that he is dealing with the owner, he may set off a debt due to him from the factor against a demand preferred by the principal. Lord Mansfield so lays down the rule distinctly in Rabone v. Williams. "Where," he says, "a factor, dealing for a principal, but concealing that principal, delivers goods in his own name, the person contracting with him has a right to consider him to all intents and purposes as the principal; and, though the real principal may appear and bring an action upon that contract against the purchaser of the goods, yet that purchaser may set off any claim he may have against the factor in answer to the demand of the principal. This has been long settled." The distinction between a factor and a broker is noticed by Abbott, C. J., and Bayley, J., in Baring v. Corrie. (c) Abbott, C. J., says: "The distinction between a broker

(a) 7 T. R. 360 (a). (6) 7 T.R. 359.

(c) 2 B. & Ald. 137.

1849.

FISH

v.

and a factor is not merely nominal, for they differ in many important particulars. A factor is a person to whom goods are consigned for sale by a merchant, KEMPTON. residing abroad, or at a distance from the place of sale, and he usually sells in his own name, without disclosing that of his principal; the latter, therefore, with full knowledge of these circumstances, trusts him with the actual possession of the goods, and gives him authority to sell in his own name. But the broker is in a different situation: he is not trusted with the possession of the goods, and he ought not to sell in his own name. The principal, therefore, who trusts a broker, has a right to expect that he will not sell in his own name. In all the cases cited, the factor was in actual possession of the goods, and the purchasers could not know whether they belonged to him or not: and, at all events, they knew that he had a right to sell the goods." And Bayley, J., adds: "It is besides to be observed that the plaintiffs did not trust the brokers with either the muniments of their title, or the possession of the goods, as was done both in the case of Rabone v. Williams and that of George v. Clagett." With regard to Warner v. M'Kay, I must confess I never could satisfy myself as to the precise ground upon which that case was decided.

V. WILLIAMS, J. I am of the same opinion. The doctrine of George v. Clagett, and that class of cases, has no application, where the buyer knows that the factor sells as factor.

Rule refused.

1849.

ON

CUNLIFFE and Another v. Maltass.

May 5.

An affidavit of debt alleging

several dis

tinct and
separate

N the 3rd of March last, an order was made in this cause by Patteson, J., at chambers-that the plaintiff be at liberty to issue one or more writs of capias, alias, or pluries capias, against the defendant, indorsed to hold him to bail for the sum of 10507. The affidavit upon which the learned judge was in- separate and duced to make that order, was as follows:

"James Cunliffe, of &c., maketh oath and saith that the above-named defendant, William George Maltass, is justly and truly indebted unto this deponent and to Samuel Brooks, his co-partner (surviving partners of William Brooks, deceased), in the sum of 10507., being the balance due for principal on four several bills of exchange, one thereof being a bill dated the 7th

-

causes of

action for

distinct sums, some of which

are well stated, and others

not, is not therefore bad

altogether.

issued under A capias a judge's order pur

suant to the

1 & 2 Vict.

indorsed for

1050l., upon an affidavit stating dis

of February, 1846, drawn by the said W. G. Maltass on, and accepted by, C. A. Calvert, for 400l., payable, c. 110. s. 3., at three months' date, to the order of Messrs. Keyser bail for & Wilkin, and by them indorsed to Messrs. Beattie & Co., and by them indorsed to this deponent and his said co-partner and the said William Brooks, deceased, in his lifetime; which said bill of exchange was duly presented for payment when due, and was dishonoured, and due notice of the dishonour thereof given to the said W. G. Maltass, another thereof being a bill of exchange dated the 7th of March, 1846, drawn by the said Messrs. Keyser & Wilkin on, and accepted by,

tinct causes of action for four several amounts, three of them correctly, and one (for 5001.) imperfectly. The defendant, having

been arrested, applied to a judge at chambers to discharge him out of custody. The judge declined to discharge the defendant, but made an order reducing the amount to be taken for bail, by the 500l. so defectively alleged :

The court refused to rescind the order.

1849.

CUNLIFFE

v.

MALTASS.

the said Messrs. Beattie & Co., for 500l., payable, at three months' date, to the order of the said W. G. Maltass, and by him indorsed to the said C. A. Calvert, and by the said C. A. Calvert indorsed to this deponent and his said partner and the said William Brooks, deceased, in his lifetime, another of the said four bills of exchange, dated the 12th of March, 1846, drawn by one Giuseppe Bargigli, on, and accepted by, the said Messrs. Beattie & Co., for 250l., payable to the order of the said W. G. Maltass, at three months, and by the said W. G. Maltass indorsed to the said C. A. Calvert, and by him to this deponent and his said co-partner and the said William Brooks, deceased, in his lifetime; which said bill of exchange was duly presented for payment on the day when it became due, and was dishonoured, and due notice of its dishonour was given to the said W. G. Maltass, and the other of the said four bills of exchange dated the 12th of March, 1846, drawn by the said G. Bargigli on, and accepted by, the said Messrs. Beattie & Co., for 400%, payable to the order of the said W. G. Maltass, the defendant, at three months' date, and by the said W. G. Maltass indorsed to the said C. A. Calvert, and by him indorsed to this deponent and his said copartner and the said W. Brooks, deceased, in his lifetime; which said bill was duly presented for payment on the day when it became due, and was dishonoured, and due notice of its dishonour was given to the said W. G. Maltass. And this deponent further saith that all the said four bills of exchange are overdue, and the said sum of 10507. still remains due and owing to this deponent and his said co-partner, as surviving partners of the said William Brooks, deceased, for principal money on the said four bills of exchange. (a) And this

(a) The aggregate being 1550%

deponent further saith that he and his said co-partner are in danger of losing their said debt, unless the defendant be held to bail. And this deponent further saith that he hath been informed, and believes, that the said defendant is about leaving England for foreign parts."

The defendant was arrested on the 3rd of March upon a capias issued upon this order, indorsed for bail for 10501.

A summons was afterwards taken out, on behalf of the defendant, calling upon the plaintiffs to shew cause why he should not be discharged out of custody. This summons came on to be heard, before Patteson, J., on the 10th of March, 1849, when, it appearing to the learned judge that the affidavit upon which the former order was made, did not disclose a cause of action as to the second bill mentioned in such affidavit, -that learned judge made the following order: "That the amount for which bail is to be given in this cause, be reduced to the sum of 550%, that the defendant be at liberty to pay that sum, and 201. for costs, under the statute, into court, in lieu of bail, and that he be thereupon discharged out of custody."

Special bail having been put in and perfected, under the order of a judge, without prejudice to an application to the court to rescind the former orders,

Channell, Serjt., on a former day in this term, moved for a rule calling upon the plaintiffs to shew cause why the two orders of Patteson, J., should not be rescinded, why the writ of capias issued in pursuance of the first order should not be set aside, and why the recognisance of the defendant's special bail put in and perfected should not be vacated, or why an exoneretur should not be entered on the bail-piece in this action,

1849.

CUNLIFFE

V.

MALTASS.