Page:United States Reports, Volume 2.djvu/73

 Pbdaddpbk Courr or Cormou Ptus. 67, on the introduétion of a new and intricate fyltem. Of typo. this defcriptiou is the claufe now in queltion. The general laivsl words, that “ if any perfon at {`uch time as he {hall become " bankrupt, {hall by the confcnt of the true owner have in his “ pollellion anygoods whereof he {hall be reputed owner, the “ commillioners {hall have power to fell the {`ame in like man- “ ner as any other part of the bankrupt’s eilate," are tranfcri- bed fromtheltatute of the 21. ja. r. 4-. rg;andhavereceiv‘ ed, in Eng|and,·an afcertained conliruétion highly favorable to commerce. The goods meant by theltatute, are there ju- dicially interpreted to be fuch goods, as the party to whom they really belong, fufers the trader to fell as birown; and not fuch as thc trader has a bare authority to fell, in the charaéter of a {`a&or, for the ufe of the principal, who employs him. The fame conllruétion mull: 'prevail here, for the enatling . words are the fame; and although the fcétion of one law is not preceded by a preamble, it is certain, that many of the decilions in the courts of Wy4¤d»_yl¢r are made without adverting to the pfrcamble, which precedes the analagous feétion in the iiatute anu:. — 'zhe argument, however, which hasbeencbielly relied on by. the defenda¤t’s counfel, is, that by taking a bond for the debt of -_ the principal, the factor has rendered the property his own, and is merely anfwerable perfonally to his oonltituent. But on this poing likewife, we entertain not thelealt doubt. Where- ever the- property of the principal can be fpecilically diiiinguilh- cd from the property of the faétor, it has been uniformly ‘ determined, that the right of the former {hall prevail over the pollizllion of the latter. If, indeed, a faélor fells the goods conligned to him, receives the money due upon the fales, and mixes it, indifcriminately, with his own calh, there cannot, from the nature of the thing, be any fubfcquent diftingnilhmeut, · any tpecilic appropriation of property. But if the faétor fells on _ credit, and does not afterwards aétuall receive the money; or if, having received the money, he velis the amount in other · effects for the ufe of the principal; or if, upon the fale, he takes notes in his own name, for the price of the goods;—in ~ all thefe initances, the property of the principal is clearly fc- parated from the fa£lor’s; and being thus dillinguilheo, and diliinguilhable, it mult upon the rinciples of law and equity be appropriated, upon the fa€tor‘s {bankruptcy, to the individual ufe of the principal; it cannot be applied by the commit;. {lioners to the benelit cf the general creditors. " But, it has likewifc been contended, that the fa€tor’s taking a bond, may be dlltinguilhed from thc cafe of taking a note; as the bond extinguifhes the {imple contract debt, but thc pom · — . one -

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