Sivut kuvina

For the payment to the bearer or otherwise, at any time exceeding two months after date, or sixty days after sight, of any sum

A mounting to 40s. and not exceeding £5. 5s. One shilling and 6d.

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For the payment of any sum by instalments, or for the payment of several sums of money at different days or times, so that the whole of the money to be paid shall be definite and certain; the same duty is charged as on a note payable in less than two months after date for a sum equal to the whole amount of the money to be paid.

For Regulations and Exemptions, see Chapter on BILLS of

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N.B.-The person receiving the money may be compelled to pay

the duty.



FACTOR, BROKER, and AGENT, are terms nearly synonymous; yet custom has created distinctions in applying them to particular kinds of agency. Hence Factor appears to be exclusively applied to persons employed in the purchase or sale of goods; Broker is generally a factor, and employed in the shipping and money transactions of merchants and masters of ships; and Agent generally is a person duly authorized. to act for others, and may therefore be indiscriminately applied to the whole.

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 tenour 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 Car. 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 was the purchaser.

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.

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

A factor selling goods as his own, by endorsement 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. R. 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 appear 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 them 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 favour able, 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 T. R. 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 endorsed 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, endorsed 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



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 sell goods, and the owner give notice to the buyer to pay 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 have a lien on such price.

If goods be 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 vender. 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.

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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 be 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 contract. The 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.

In the city of London, if goods are sold by a broker, to be paid by a bill of exchange, the vender has a right, within a reasonable time, if he be not satisfied with the sufficiency of the purchaser, to annul the contract. But the vender must intimate his dissent so soon as he has had an opportunity to inquire 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 occur 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 latter, having goods in the other's hands, owe him money by simple contract, and then die indebted by specialty more than his assets are worth, the factor cannot retain the goods.

If the factor receive 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 trace he to the contrary.

The maxim that the principal is civily reponsible for the acts of his agent, prevails universally in courts of a and equity; and, upon this principle it was held by Chief Justice Holt that a merchant was answerable for the deceit of his factor who had sold some silk to the plaintiff as silk of a superior, knowing it to be of an inferior, quality.

The several merchants who employ the same factor must run the joint risk of his actions, although they are strangers to each other; thus, if five merchants remit to him five distinct bales of goods, and the factor make a joint sale of them to one man, who is to pay one moiety down, and the other at six months' end; if the buyer fail before the second payment, each merchant must bear a proportional share of the loss, and be content to accept of his dividend of the money advanced.

But if the factor draw a bill of exchange upon all those five merchants, and one of them accept the same, the others shall not be obliged to make good the payment.

The authority and trust reposed in factors being very great, they ought to be very provident in their actions for the benefit of their principals. If a factor give time to a man for payment of monies contracted on sales of his employer's goods, and after the time is elapsed sell goods of his own to the same person for ready cash, leaving the other unpaid, and such man become insolvent, the factor ought to make good the loss; although he cannot be compelled by the law.

If goods are remitted to a factor, and he make a false entry of them at the custom-house, or land them without entry, whereby they incur seizure or forfeiture, he must make good the damage to his principal •

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