February 7th, 1816. 1. By virtue of the act of Assembly con cerning she Carrington against Anderson. THE declaration, in this case, being founded on an act of Assembly of considerable importance, and having stood the test of the Court of Appeals, it may be useful to many prac8th of February, titioners of law to insert it entire : riffs, passed the 1808, (Rev'd. Code, 2d vol. p. under an execu... name of the she been sustained competent witness, in an ac tion in the name 66 "Cumberland county, to wit;-Codrington Carrington, late 160) any personsheriff of Cumberland, who sues for the benefit of John claiming the property sold “Hudson, complains of Francis Anderson and John Ballow, defendants, in custody, &c. of a plea that they render to him "the sum of one hundred pounds, which they to the plaintiff owe, and from him unjustly detain; for that, whereas, by an act of the General Assembly of Virginia, passed the riff or other of "8th day of February, 1808, entitled, an act concerning ficer to whom it was taken, with- "sheriffs,' it is enacted that, if any sheriff or other officer out proving that "shall levy an execution on property, and a doubt shall arise any damage has "whether the right of such property is in the debtor, or not, by such officer. "such sheriff or other officer may apply to the plaintiff, his 2. The depu ty sheriff, who "attorney, or agent, for his bond, with good security, for insold the proper" demnification for the sale of the property seized; and, also ty under the execution, is not a " by the said act, among other things, it is enacted, that any "person claiming such property may, in the name of such of the high she- "officer, prosecute his suit on the bond, and recover such damages as the jury may assess; and whereas the said Ballow, on the in the year 1808, had delivered a certain writ of execution, called a fieri facias, to that of the per- "Samuel Hobson, who was then and there duputy sheriff of son against "the said plaintiff, which execution was to be levied of the goods and chattels of a certain Thomas Hudson; and the "said Samuel Hobson having levied the said execution on a "horse; and the said John Hudson having, on the day "of in the year 1808, set up a claim to the said "horse, whereby a doubt arose whether the right of such "horse was in the said Thomas Hudson, or the said John Hud"son; and the said Samuel, as deputy sheriff, having re"quired bond and security, of the said John Ballow, for in"demnification for the sale of the said horse so seized; the "said defendants, on the 14th day of April, 1808, in the same "county, by their writing obligatory, sealed with their seals, riff upon the 66 bond of indemnity, to prove that, in fact, the property was whom the exe cution was issued. tr day of 1816. Carrington V. Anderson, "and to the court now shewn, bound themselves to pay all FEBRUARY, "costs and damages, under the penalty of one hundred pounds; "and the plaintiff saith, the said horse was in fact the horse " and true property of the said John Hudson, and was not lia"ble to be sold under the said execution, which the said de"fendants caused the said deputy to do, by entering into the "said bond; whereby the defendants became bound to pay "such damages as the jury should assess; and the plaintiff "saith, that the said horse was worth, and the said defend. "ants are liable to pay to the said plaintiff, for the said John Hudson, the sum of one hundred dollars,—of which the de"fendants had notice; yet the defendants to the plaintiff "have refused to pay the said one hundred dollars, either to "the plaintiff or to the said John Hudson, although often re“quired; and so the defendants became bound to pay to the "plaintiff the said sum of one hundred dollars; yet the said "defendants have not paid to him the said sum, but the same "to pay to the plaintiff have refused, although often required, "and still do refuse; to the plaintiff's damage $100, and he "bring suit, &c. for the said John Hudson." The suit having abated as to the defendant John Ballow, the other defendant Francis Anderson pleaded "not guilty,” and, on the trial, introduced Samuel Hobson, the deputy sheriff aforesaid, to prove that the horse in the declaration mentioned was, at the time of the sale, the property of Thomas Hudson, and not the property of John Hudson. The plaintiff by his counsel made a motion to exclude the evidence of said Samuel Hobson, because he was the acting sub-sheriff at that time, took the indemnifying bond on which this suit was brought, and made the sale of the horse in the declaration mentioned, under an execution, which was set forth in hæc verba: which motion by the plaintiff was sustained by the court; whereupon the defendant filed a bill of exceptions. A motion was then made by the defendant, to the court to instruct the jury, that, unless it appeared to them, from evidence, that the sheriff, or his deputy in the declaration mentioned, had been injured, or sustained damages, in consequence of the sale of the horse in the declaration mentioned, the issue oined must be in favour of the defendant;-as no action could be sustained on the bond in the declaration mentioned against the defendants, unless the sheriff or his deputy had suffered; FEBRUARY, which instruction the court refused to give; and thereupon the defendant again excepted to the courts's opinion. 1816. The jury returned a verdict for the plaintiff, for the debt in the declaration mentioned, to be discharged by the payment of fifty two dollars damages; and a judgment was entered accordingly; to which a writ of supersedeas was granted, and the same was reversed by the Superior Court of law," because an "action cannot be sustained on the bond in the declaration "described, upon the breach therein alledged, for the benefit "of the claimant; nor can any action be sustained thereon, "until the plaintiff, or his deputy, shall have sustained an in"jury from the sale of the property mentioned therein." For these reasons, the Superior Court directed judgment to be entered for the plaintiff in error; from which the defendant in error, (that is, the plaintiff originally,) appealed to this court,where, on the 7th of February, 1816, the judgment of the Superior Court of law was reversed, and that of the county court affirmed. February 9, Howatt & Company against Davis & Chalmers. 1816. livery, but to be 1. In case of THE appellees brought a special action on the case against a sale of personal property not the appellants in the District Court of Suffolk. The declaraexecuted by de- tion was in the following words: "District composed of the consummated by "counties of Norfolk, Isle of Wight, Princess Ann, Nansemond, delivery at another place; al-" and Southampton, to wit, John G. Davis and John Chalmers, though, in con merchants, trading as partners under the firm of Davis & sequence of earnest paid,or oth erwise, the pro perty be so vested in the buyer, that, on complying or offering to comply with the contract on his part, he may recover the same from the seller or his agent; yet, until delivery, and while the goods are (in legal phrase,) in transitu, the seller may, on the buyers becoming bankrupt, or being likely to be so, arrest the goods, or order his agent to arrest them; which order, operating as an indemnity to the agent in addition to that arising from his possession of the goods, will be his guarantee for refusing to deliver them, and, perhaps, under circumstances, the agent would also have a right to demand other security from his principal, which it would be incumbent on him forthwith to give, under pain of a right in the agent to go on, and execute the contract by a delivery. 2. If a factor, or agent, having sold goods belonging to his principal, be ordered by him while they are yet in transitu not to deliver them to the buyer, of whose solvency doubts are entertained, and he deliver them notwithstanding such order, and without demanding security for his indemnity; the principal is entitled to an action against him, in case the buyer should prove insolvent. 3 And such right of action is not waived or abandoned by expressions used in letters from the principal after the delivery of the goods, seeming to import an agreement to look to the buyer for payment, and not to the factor; nor by the principal's permitting considerable time to elapse beiore he informs the factor, categorically, that he will look to him, and not to the buyer for satisfaction provided such expressions and such delay, on the part of the principal, may have been occasioned by the factors failing to make a full and fair disclosure of all facts and circumstances cessary to enable the principal to decide upon the subject, and which it was the duty; and in the power, of the factor to have given. v. mers "Chalmers, complained of James Howatt, James Thorburn and FEBRUARY, * Donaldson, trading under the firm of James Howatt & 1816. Company, in custody, &c. of a plea of trespass on the case, Howatt & Co. "for that, whereas, on the 30th day of July, in the year of our “Lord 1802, and from that time to the present day, the said Davis & Chal plaintiffs, were merchants trading as partners, and residing in "the town of Petersburg, in the state of Virginia, and the said "defendants, on the said 30th day of July; in the year of our "Lord 1802, and from that period, 'till the present day, were "commission merchants and partners, residing in the borough of Norfolk, in the state of Virginia, there carrying on business 62 as agents and factors, for a reasonable and accustomed com"mission or compensation to be paid to them by those who employed them as factors or agents to sell and dispose of the "property of those principals or constituents; and, by the law "of the land persons acting as factors and agents aforesaid, are "bound to obey all the legal and proper orders and instructions "of their principals and constituents; and whereas the said "plaintiffs, on the said 30th day of July, being possessed of 50 hogsheads of tobacco, of Petersburg inspection, on the "same day and year, in the borough of Norfolk, within the "county of Norfolk aforesaid, delivered the said 50 hogsheads "of tobacco into the hands and possession of the said defend"ants, as their agents and factors, to be disposed of by them "for a reasonable and accustomed commission and compensa. "tion, to be paid to them by the plaintiffs, and in conformity "with certain legal and proper orders and instructions given "by the plaintiffs to the defendants; yet the said defendants, "acting as agents and factors aforesaid, afterwards, to wit, on "the 6th day of August, in the year of our Lord 1802, at Nor"folk aforesaid, contrary to the legal and proper orders and in"structions of the plaintiffs, did dispose of the said 50 hogs"beads of tobacco;-and whereas, by the law of the land, an "agent and factor is bound to obey every legal and proper or"der and instruction of his principal; and whereas the said "plaintiffs, on the 30th day of July, in the year of our Lord 1802, being merchants residing in Petersburg, did constitute "and appoint the said defendants (who then were and still are "merchants residing in Norfolk,) their agents and factors to "sell and dispose of 50 other hogsheads of tobacco of the Pe FEBRUARY, "tersburg inspection, for the benefit of the said plaintiffs; and 1816. "the said defendants, acting as agents and factors aforesaid, "for a reasonable and accustomed commission and compensa❝tion, on the 10th day of August in the same year, at NorDavis & Chal- « folk, within the county of Norfolk aforesaid, and the jurisdic"tion of the court, did contract with John Comper & Company, Howatt & Co. v. mers. (then merchants in good credit residing in Norfolk,) to sell "to the said John Cowper & Co. the said 50 hogsheads of to"bacco, at the price of 20 shillings per hundred weight, for "which the said defendants were to receive of the said John "Cowper & Co., 50 barrels of pork, at the rate of $15 per bar"rel, and to accept the promissory note of said John Cowper " & Co. payable at three and four months after the delivery of "the tobacco, for the residue of the purchase money of the "tobacco; and, afterwards, on the same day and year at Norfolk aforesaid, the said defendants received of the said John "Cowper & Co. the said 50 barrels of pork; and whereas, af"terwards, to wit, on the 31st day of August, in the year of "our Lord 1802, at which time the said 50 hogsheads of tobacco "had not been delivered to or come into the possession of the said "John Cowper & Co., but were still in the possession of the de"fendants, as agents and factors of the plaintiffs, the said Chal"mers & Davis, having after the contract made as aforesaid, "ascertained that the said John Cowper & Co. subsequent to the "said contract, were injured in their mercantile credit, and in "fact had become insolvent, did order and direct the said de"fendants not to deliver the said tobacco to the said John "Comper & Co., unless the said Cowper & Co. would give "approved endorsers on their notes for the balance of the pur"chase money of the tobacco;-yet the said defendants, not"withstanding the instructions and orders aforesaid, and in opposition thereto, did deliver the said 50 hogsheads of to"bacco to the said John Cowper & Co., afterwards to wit, on "the 6th day of September, in the year of our Lord 1802, at "Norfolk aforesaid, in the said county of Norfolk, although "the said John Comper & Co. did not give an indorser on their "notes, or otherwise secure the payment of the balance of the "purchase money of the tobacco; and although, as the plain"tiffs aver, the said John Cowper & Co. were insolvent on the "6th day of September, in the year 1802; by reason of which |