1 Story on Agency, § 111; Smith on Merc. Law, 97; Smith v. Lascelles, 2 T. R. 189; Craufurd v. Hunter, 8 T. R. 13; French v. Backhouse, 5 Burr. 2727; Morris v. Summerl, 1 Marsh, on Ins., by Condy, 301, and note; Randolph v. Ware, 3 Cranch, 503; Columbian Ins. Co. v. Lawrence, 2 Peters, 49; Smith v. Cologan, 2 T. R. 188, note; Wallace v. Tellfair, 2 T. R. 188, note; Schaeffer v. Kirk, 49 111. 251 (1868); Story on Bailm. § 456. 2 Callander v. Oelrichs, 5 Bing. N. C. 63.
3 Walters v. Monarch Life & Fire Ins. Co., 34 Eng. Law & Eq. 116; 5 El. & B. 870; Story on Agency, § 111, 272, 394.
4 Catlin v. Bell, 4 Camp. 183; Solly v. Rathbone, 2M.&S. 298; Story on Agency, § 34 a; Cockran v. Irlam, 2 M. & S. 301, n.; Pothier, Pand; Lib. 14, tit. 1, n. 2, 3; Henderson v. Barnewall, 1 Y. & J. 387.
5 Catlin v. Bell, 4 Camp. 183.
6 1 Bell, Comm. p. 482, 5th ed.
1 Story on Agency, § 113; 2 Kent, Comm. 625-628, 3d ed.; Evans v. Potter, 2 Gall. 13; Martini v. Coles, 1 M. & S. 140; Shipley v. Kymer, 1 M. & S. 484; Graham v. Dyster, 6 M. & S. 1; Queiroz v. Trueman, 3 B. & C. 342; Van Amringe v. Peabody, 1 Mason, 440; Paterson v. Tash, 2 Str. 1178; Newsom v. Thornton, 6 East, 17; Urquhart v. M'lver, 4 Johns. 103; Boyson v. Coles, 6 M. & S. 14.
2 Queiroz v. Trueman, 3 B. & C. 342.
3 Martini v. Coles, 1 M. & S. 140; Shipley v. Kymer, 1 M. & S. 484; Graham v. Dyster, 6 M. & S. 1.
4 2 Kent, Comm. 626, 3d ed.; Paterson v. Tash, 2 Str. 1178; Dau-bigny v. Duval, 5 T. R. 604; De Bouchout v. Goldsmid, 5 Ves. 211; M'Combie v. Davies, 7 East, 5; Martini v. Coles, 1 M. & S. 140; Fielding v. Kymer, 2 Br. & B. 639. This rule, however well settled it may be, does not seem to have met with full approbation. It originated in a Nisi Prius decision by Chief Justice Lee, in the case of Paterson v. Tash, 2 Str. 1178, the report of which case has been said to be inaccurate. It is opposed to the doctrine of the Scottish law (1 Bell, Comm. p. 483-488, 5th ed.), and to the modern rule, which now obtains generally on the Continent of Europe. The rule of the civil law, " Nemo plus juris ad alium transferre potest quam ipse haberet," under which the general power to pledge was denied, although it was affirmed at first in France, Holland, and Italy (Basnage Trait, des Hypotheques, p. 4 and 6; Pothier, Trait, des Cont. de Nantissement, No. 27, vol. ii. p. 953; Van Leeuwen, Censura Forensis Theoretico-Practiea, Lib. 4, cap. 7, § 17, p. 472; Averanius, Interp. Juris, Lib. 4, c. 22, § 13, et seq.; Rot. Genuae de Mercatura, etc, Decisauctioneer may safely make an advance on the goods, for purposes connected with the sale, and as part payment in advance, or in anticipation of the sale, if such be the custom and ordinary usage in such cases.1 But if the factor, in such a case, should place the goods in the hands of the auctioneer for any other purpose than that of sale, and he should advance money on them as a pledge, the transaction would be invalid.2 § 451. A factor may, however, pledge negotiable paper as a security for his own debt, and thereby bind his principal, unless the latter can charge the party receiving'it with notice of the fraud, or of the want of title; for, from reasons of public policy, the mere possession of negotiable paper carries with it an imperative presumption of title and power of disposal.3 So, also, factors may pledge the goods of their principal for the payment of the duties and other charges due thereon, and for advances lawfully made on account of their principal, and for any other charges and purposes, which are allowed and justified by the usage of trade.4 Of course, if the factor be expressly authorized to pledge the goods, he may exercise such power. But what circumstances are sufficient to raise an implied power, does not seem to be clearly settled.
5 Guerreiro v. Peile, 3 B. & Al. 616; Story on Agency, § 113; 2 Kent, Comm. 625, 3d ed.; Rodriguez v. Heffernan, 5 Johns. Ch. 429.
§ 450. But although a factor cannot pledge the goods of his principal as his own, yet if he have a lien thereupon, he may deliver them to a third person, with notice of his lien, and with a declaration that the transfer is to such person as agent of the factor, and for his benefit; for this is in effect a continuance of the factor's possession, and does not divest him of his right.1 So, also, a factor, having goods consigned to him for sale, may put them in the hands of a commission merchant connected with an auctioneer in business, to be sold, and the iones, No. 199), seems to have been relaxed, so as to enable the possessors of movables, and those having the ostensible right of property in goods, to pledge them. (See 1 Bell, Comm. p. 485, and note, 5th ed.; Groenewegen Tract, de Leg. Abrogatis, in Hollandia, p. 56; Casareg. Dissert. 76, No. 4; Casareg. II Cambisto Istruito, c. 3, No. 43; Ansaldus De Commercio et Merc, ed. 1751, p. 371, § 41, et seq.). See also the report of the Select Committee of Parliament on the laws relating to merchants, agents, or factors, etc, p. 20, in which this opposite doctrine from that which was affirmed by Mr. Chief Justice Lee, is stated to "be the law of France, Portugal, Spain, Sardinia, Italy, Austria, Holland, the Hanse Towns, Prussia, Denmark, Sweden, and Russia." The English doctrine, as stated by Mr. Chief Justice Lee, was at first shaken by the decision of Lord Mansfield, in Pultney v. Keymer, 3 Esp. 182; but this case was, in its turn, overruled by Solly v. Rathbone, 2 M. & S. 298; and Shipley v. Kymer, 1 M. &. S. 484; Martini v. Coles, 1 M. & S. 140; and Boyson v. Coles, 6 M. & S. 14; and Daubigny v. Duval, 5 T. R. 604, by which it was settled. Its injurious effects, however, were so manifest that the House of Commons instituted a committee of inquiry into the law and practice of foreign nations, and of England, in respect thereto, which, after long investigation, reported in favor of removing this restriction as to the right of pledging by factors. The result was, that the Statute of 6 Geo. IV. ch. 94, was passed, authorizing a factor to pledge to a certain extent the goods of his principal. An additional statute has also been passed in respect to this subject (5 & 6 Vict. ch. 39). Several of the American States have followed the example of England, and enacted statutes on the basis of the English statutes; and particularly Rhode Island, New York, and Pennsylvania. See the Civil Code of Louisiana, art. 3214. See 2 Kent, Comm. 629, note; 1 Bell, Comm. p. 485 to 488, 5th ed.; Story on Agency, § 113, and notes. See also Williams v. Barton, 3 Bing. 139; Jennings v. Merrill, 20 Wend. 1; Purdon, Dig. 402; Evans v. Potter, 2 Gall. 14; The Factors' Acts of 4 Geo. IV. and 6 Geo. IV. and of 5 & 6 Vict., are set forth in Smith on Merc. Law, p. 112 to 121. But a factor in England, notwithstanding the factor's act, has no authority to pledge goods intrusted to him for sale, after his authority has been revoked and the goods demanded of him. Fuentes v. Montis, Law R. 4 C. P. 93 (1868).