Wilson, 6 Hill, 512, not being to legalize fraud, but to protect those who honestly trusted to appearances, and supposed that they were dealing with the true owner. Moreover, the document must have been actually transferred and delivered to the person advancing his money or credit in reliance on the factor' sownership; and this actual transfer-if not made simultaneously with advance of the money, as it ought properly to be must be made on the faith of it (Jennings v. Merrill, 20 Wendell, 9), and not afterwards. This, which would allow a transfer as a security for endorsements to be subsequently made, and make it good if the endorsements are afterwards made, is the extent of deviation from the required contemporariety of the transfer and the advance. In addition to this it has been decided, that the only species of "custom house permit" recognized by courts as the sort of document contemplated by the factor's act, is that which was known as a custom house permit at the time the factor's act was passed (A. D. 1830); st. the permit granted to a consignee when the goods mentioned in his invoice and bill of lading had been duly entered at the custom house, and the duties thereon had been paid or secured to be paid. And in the same way that the expression "a warehouse keeper's receipt," means such receipt as was then usual; st. the receipt of the keeper of a private warehouse, in which the person named in the receipt had deposited the goods for safe keeping, and in its terms binding, such warehouse keeper, upon the surrender of the receipt, to deliver the goods to the bearer of it and the holder of it if duly endorsed to him. The expressions, "custom house permit" and "a warehouse keeper's receipt," as used in what is called the "bonded warehouse act of Congress," passed after the date of the New York factor's act, are not considered as satisfying those expressions as used in the last named act itself. Besides these requisites to sustain the factor's otherwise illegal act, it must also appear that the document transferred being such as the statute describes, had been "intrusted" to the factor by the owner; that is to say, had been delivered or transmitted by him or his agent; or else obtained by the factor in the proper or ordinary mode of discharging the duties of his trust. As to the SECOND class-that is where the factor's evidence of ownership rests exclusively on his possession alone, he not having the documentary evidence of title-it is decided that his possession must be an actual possession as distinguished from a constructive one, and he must make an actual transfer and delivery of the goods themselves, accompanied by a change of possession made at the time of the pledge, which the pledge is intended to secure. Hence, goods stored away in the bonded warehouse, and of which the factor's possession is constructed merely, are incapable of pledge by the factor, founded on his possession. The factor's act of New York has been largely discussed in that State, and the opinions upon it may be seen in the cases cited below. (1) Sect. 4, gives the pledgee, in case of a deposit of such goods as a security for any antecedent debt, merely, the rights therein which the agent at the time possessed, or might have enforced. Sect. 5, preserves the owner's right to redeem property, thus pledged, and recover the proceeds of deposits sold, upon discharging the pledgee's lawful claims upon it. Sect. 6, provides that the act shall not be taken to authorize a common carrier,* warehouse keeper, or other person to whom goods may be intrusted for transportation or storage only, to sell or hypothecate them. [*680 Sect 7, declares the pledge or sale by an agent of goods intrusted or consigned to him, and the applying or disposing of the proceeds, to his own use, in bad faith, and with intent to defraud, to be a misdemeanor in him, and in all aiding and assisting in the fraud. Sect. 8, preserves the power of the Court of Chancery to entertain a bill of discovery in cases of such fraud. It will be observed, as a consequence of the decision in Stevens v. Wilson, that the New York statute does not contain any provision similar to the 5th sect. of the British act, enabling a known agent to pledge to the extent of his interest. This circumstance, together with the extension, in the 7th sect. of the penalties of a misdemeanor to those who aid the factor in effecting a sale or pledge fraudulently, for his own benefit, would indicate that the omission, from the 31 section, of the clause relating to notice, was intentional, and that the Supreme Court, in Stevens v. Wilson, had misapprehended the design of the Legislature, which, probably, was to enact what is provided by sects. 1 & 3 of 5 & 6 Vict. c. 39. But the decision in Stevens v. Wilson has been confirmed by the Court of Errors; 3 Denio, 472; and approved in Zachrisson v. Ahman, 2 Sandford's S. Ct. 68, 75, and see Boneta v. Mosquera, 2 Bosworth, 433. Of the Pennsylvania statute of April 14th, 1834, the 1st and 2d sections give to a consignee, without notice by the bill of lading or otherwise, a lien for advances to, or receipts by, the person in whose name merchandise is shipped or otherwise transmitted, "whenever any person intrusted with merchandise, and having authority to sell or consign the same, shall ship or otherwise transmit the same to any other person." (1) Stevens v. Wilson, 6 Hill, 512, confirmed in the Court of Errors, 3 Denio, 472; Zachrisson v. Ahman, 2 Sanford's Sup. Ct. Reps. 68, 75; Covill v. Hill, 2 Selden, 374; and Boneto v. Mosquera, from the syllabus of which cases are given in 2 Bosworth, 435; most of the positions as given in the text are assumed. Sect. 3, enacts, that if any consignee or factor, having possession of any goods, or of a document of title thereto, with authority to sell, shall pledge the goods to one not having notice, by such document or otherwise, that the holder is not the owner, the pledgee shall acquire the same rights as if the holder were the owner. Sect. 4, provides, that where a person accepts such goods or document in pledge for an antecedent debt due by the factor, and without notice that he is not the owner, or shall accept them in pledge, with notice or knowledge that the pledgor is only an agent, the pledgee shall take such right and interest as the factor possessed, or could have enforced, and no more. Sect. 5, provides, that the act shall not affect the lien at law of consignees or factors for expenses or charges attending consignments; nor the owner's right to recover his property from a factor before pledge, or from his assignees, in case of insolvency; or to redeem goods pledged by the factor upon discharge of the pledgee's rightful claims. Sect. 6, enacts, that if a factor shall pledge, and apply or dispose of the proceeds to his own use, with intent to defraud, or shall, with such intent, apply or dispose of, to his own use, the proceeds of any sale or other disposition of the goods of his principal, he shall be punishable as for a misdemeanor. This act of Pennsylvania is drawn with great precision and neatness. Perhaps the only particular in which it differs substantially from the act of 6 Geo. IV. c. 94, is in giving, in its 3d section, to the possessor of goods, the same power of pledging which it gives to the possessor of a document of title, and *in giving that power to one having possession, with authority to sell, instead of to one intrusted and in possession. *681] In June, 1842, to obviate the effects of the decisions before mentioned under the act of 6 Geo. IV. c. 94, and further to extend the provisions of that statute, was passed the act of 5 & 6 Vict. c. 39, "to amend the law relating to advances bonâ fide made to agents entrusted with goods." The 1st section enacts, that wherever an agent is entrusted with the possession of goods, or documents of title to goods, he shall be deemed the owner, so far as to give validity to any contract by way of pledge, lien, or security thereon, whether for an original or a continuing advance, made bonâ fide by any person, even if that person have notice that the party is an agent. Sect. 2, enacts, that where such contract of pledge, lien, or security, is in consideration of the delivery up of other property on which the pledgee has a valid and available lien or security for a previous advance under some contract with the agent, the pledgee, acting bona fide, shall acquire, upon the property deposited in exchange, a lien to the extent of the value of the property given up. Sect. 3, provides, that though the act shall extend to protect bona fide contracts of loan, advance, or exchange, made with notice that the agent is not the true owner, it shall not protect such contracts as are not made bona fide, and without notice that the agent has not authority to make such contracts, or is acting mala file in respect to the owner, or to protect any pledge for an antecedent debt of the agent, or to authorize the agent to deviate from the express orders of his principal. Sect. 4, enacts, that an agent intrusted with, and possessed of, any document of title to goods (and the meaning of a document of title is defined), whether derived immediately from the owner, or obtained by reason of the agent's having been intrusted with the goods, or with some other document of title, shall be deemed to have been intrusted with the possession of the goods, and a pledge of the document. shall be a pledge of the goods; and such agent shall be deemed possessed of such goods, whether they are in his actual custody, or held by another subject to his control, or for him, or on his behalf: and any advance made bona fide to any agent intrusted with and in possession of any such goods or documents, on the faith of a contract in writing to consign, deposit, transfer, or deliver them, and they shall be actually received by the person making the advance, without notice that the agent had not authority to give such pledge or security, such advance shall be deemed to be on the security of the goods or documents, under this act, though they are not received by the person making the advance till subsequently thereto; and any contract made with a clerk or other person, on behalf of the agent, shall be deemed made with the agent; and any payment made, whether by money or negotiable security, shall be deemed an advance under this act; and an agent in possession of such goods or documents shall be taken to have been intrusted therewith, unless the contrary can be shown. Sect. 5, provides, that the civil responsibility of agents shall not be diminished; Sect. 6, that agents pledging or receiving advances in bad faith, and for their own benefit, shall be punishable as for a misdemeanor; Sect. 7, reserves to the owners the right to recover or redeem in cases under this act, as under the sixth section of the former one. *682] *OF THE PRINCIPAL'S OWNERSHIP OF PROPERTY IN THE HANDS OF HIS FACTOR. VEIL & PETRAY v. THE ADMINISTRATORS OF In the Circuit Court of the United States, for the District of Penn sylvania. APRIL TERM, 1821. [REPORTED, 4 WASHINGTON, 105-106.] When the principal can trace his property into the hands of an agent or factor, whether it be the identical article which first came to his hands, or other property purchased for the principal, by the factor, with the proceeds; he may follow it, either into the hands of the factor, or of his legal representatives, or his assignees, if he should become insolvent; unless such representatives or assignees should pay away the same before notice of the claim of the principal. THE special verdict stated, that in the lifetime of Abner Mitchell, the intestate, the plaintiffs sent to him for sale two bills of exchange on France, with instructions to remit them the proceeds. The intestate sold the bills, and remitted to the plaintiffs the proceeds of one of them, except $60, which he had in bank notes of South Carolina banks. For the other bill he took the check of the purchaser, payable some days after the sale. Before the check came to maturity, Mitchell died, leaving in his possession the check, and the South Carolina notes amounting to $60; all of which came to the hands of the defendants, who received payment of the check when the same became due. On another account, the plaintiffs were indebted to the intestate, in a balance of $344.82 cents. The intestate died insolvent, and the question reserved for the opinion of the court is, whether the plaintiff's are entitled to recover the amount of the check, and the notes for $60, after deducting what is due to the intestate. Chauncey, for the plaintiffs. A factor can acquire no property in the goods of his principal, or the goods purchased with the pro |