issue a citation to the creditor, or his attorney, to appear at a time and place by him appointed, and examine the debtor, if he sees fit, before two justices of the peace and of the quorum, relative to his property and his disposal of it. The citation must be served at least twenty-four hours before the time of the examination.

A Debtor may apply to the court to have oath administered, provided the debt amounts to ten dollars or upwards, on giving notice to the creditor or his attorney, seven days before the return day of the writ.

Mode of examination -The justices shall examine the debtor on his oath, concerning his estate and effects and the disposal thereof, and his ability to pay the debt, for which he is committed, and they shall also hear any other legal and pertinent evidence, that may be produced by the debtor or the creditor.

The creditor may propose to the debtor any interrogatories, pertinent to the inquiry, and they shall, if required by the creditor, be proposed and answered in writing, and the answers shall be signed and sworn to by the debtor; and the creditor may have a copy of the interrogatories and answers, certified by the justices, upon paying therefor the same fees as for a deposition of the same length.

Oath when administered.- If the examination before the justices seem to them to warrant it, the debtor is allowed to take and subscribe the oath that he has not any estate, real or personal, to the amount of twenty dollars, except the goods and chattels by law exempted from attachment, and that he has not conveyed or concealed any property with design to secure the same to his own use, or to defraud his creditors.

If justices refuse to grant his discharge, may give new notice, &c. If the justices shall not be satisfied that he is entitled to his discharge, he shall be remanded to the prison; but this shall not prevent him from obtaining his discharge upon new notice to the creditor, issued not less than seven days after the service of the former one, and by new proceedings before the same or some other justices, in the manner before provided.

IMPRISONMENT FOR DEBT.-POOR DEBTOR'S OATH. 67

Effect of the Oath.-The oath, entitles the debtor to a certificate, discharging him from all liability to arrest from the same cause of action. The judgment, however, remains good against his estate. Swearing falsely voids the discharge, and makes him liable to be punished for perjury.

Debtors not to be discharged, if after commitment they misuse or misspend goods, &c. If any debtor, after being committed on execution, shall misspend or misuse goods, effects, or credits, to the value of forty dollars, which are not exempted from being taken in execution, but which cannot be attached by the ordinary process of law, or so much thereof as is equal to the sum for which he is committed, without having offered the same to the creditor or his attorney, in whole or part payment of the debt, for which he is committed, he shall not be discharged.

Penalty on any person aiding debtor in misusing property, &c.-If any person shall knowingly assist the debtor, in secreting, spending, or using any such goods, effects or credits, to the value of forty dollars, without offering the same to the creditor or his attorney, as provided in the preceding section, he shall pay to the creditor double the value of the same.

Charges of fraud, how made and punished. — The creditor may, if he can, substantiate certain specific charges of fraud against the debtor, any one of which will prevent his discharge; and subject him to imprisonment to hard labor, for a term not exceeding one year.

The charges must be fully, plainly and formally set forth in writing, signed and sworn to by the creditor, and a copy duly served on the debtor before the time of returning the writ, or ten days before an examination. The only fraudulent acts which a creditor can charge, are:-

First, That since the debt was contracted, or the cause of action accrued, the debtor has fraudulently conveyed, or concealed, or otherwise disposed of, his estate or some part thereof, with design to secure the same to his own use, or to defraud his creditors: or

Secondly, That since the debt was contracted, or the cause of action accrued, he has hazarded and paid money or other property, to the value of one hundred dollars or more, in some kind of gaming prohibited by the statutes of the Commonwealth or

Thirdly, That he has wilfully expended his goods and estate, or some part thereof, for the purpose of enabling himself to swear that he has not any estate to the amount of twenty dollars, except such as is exempted from being taken in execution: or

Fourthly, If the action was founded on contract, that the debtor contracted the debt, with an intention not to pay the same:

And the creditor shall not, upon such a trial, give evidence of any charges of fraud, that shall not be contained in his statement, made and filed as before provided, nor of any supposed fraudulent acts of the debtor, committed more than three years before the commencement of the creditor's original action.

Fees for services in administering oath to be paid by debtor. [See title Fees, Part V]

PART III.

GENERAL & SPECIAL LAWS.

PRINCIPAL, FACTOR AND AGENT.

FACTOR, a commercial agent residing at a distance from his principal, and having the superintendence of some branch of his employer's trade in the place where he acts. A factor differs from an ordinary agent in this, that he does not represent his principal, but acts as a principal himself in his transactions with third parties. He is distinguished from a broker, in as far as he has the personal possession and management of the goods over which his superintendence extends. The factor carries on his commercial operations on commission. He receives consignments from his principal, and makes sales and remittances in return, balancing accounts from time to time. He may act without disclosing the name of his principal. He frequently holds a Del Credere commission. The factor is personally responsible for whatever he may do exceeding the powers delegated to him,

*This is a premium, or commission, charged by merchants for becoming responsible for the buyers of goods or underwriters; so that in case of the failure of the latter, the owners are secured against loss. In other words for a Del Credere commission, he insures the debts.

PRINCIPAL, FACTOR AND AGENT.

69

and where they are not expressed in the terms of his commission, his powers will be limited by the custom of the trade. He is not responsible "at all events" (as it is termed) for the safety of goods within his charge, that is to say, he is not liable for them as if he had insured them against all risks; but he ought to bestow on them the same care as on his own property, and it would appear that he will be amenable to his employer if he do not. He is not in the general case responsible for the consequences of fire, robbery, or other accident, but there are precautions which, in certain circumstances, he must adopt. One of the most important is that of protecting his principal's interest by insurance, and if he have effects in hand, he is in all cases bound to comply with directions to insure, being, on failure, himself considered responsible. Where goods are consigned to a factor, his title to them, and right to dispose of them, is generally conveyed in an indorsed bill of lading, but in questions with parties privy to the transaction, it is held that a letter of advice is sufficient. Where the factor has absolute power to sell, indorsement of a bill of lading while the goods are at sea will pass them absolutely, and bar the principal's right to stop in transitu," and in the absence of fraud, it seems that the assignee's knowledge of the factor's character would not affect his title; for, in order to make notice material, it must be notice of something inconsistent with the right of the assigner to do the act under which the assignee claims, or of such circumstances as render the bill of lading not fairly and honestly assignable. But, inasmuch as the character of a factor is consistent with the power to sell, the knowledge of this circumstance would not probably be considered as any impeachment of the transaction if it would be otherwise valid." A factor has a lien on the goods consigned to him, not only for charges affecting those goods, but for his general balance. The lien extends to every portion of the goods, and when they are disposed of, to the proceeds. On parting with possession, the factor abandons the lien, and goods transmitted to him with a specific appropriation are excepted from it.

A factor is liable for a loss arising from his neglect to keep his principal informed of matters material to his interest. (6 W. & S. 264.)

A factor is bound to remit to his principal the moneys received from sales of a consignment, unless there be an agreement or custom of trade, and if the latter be himself the factor of a principal abroad, he is bound to call on his factor in this country to transmit moneys when he is informed of it; and if the money is lost by neglect to do so, he is accountable. (ib.)

A factor sold goods to J. F. on six months, taking a note payable to himself, including in it a debt owing to himself, and afterwards released J. F. and came in under his assignment. Held, that he thereby made the debt his own, he having released J. F. without authority. (ib.)]

LAW OF FACTORS AND AGENTS, ENACTED BY THE LEGISLATURE OF MASSACHUSETTS, AND APPROVED BY THE GOVERNOR MAY 2, 1849.

SEC. 1. Whenever any person, entrusted with merchandize, and having authority to sell, or consign the same, or otherwise transmit, or deliver the sanie to any other person, such person shall have a lien thereon,—

1st. For any money or merchandise advanced, or negotiable security given by him, on the faith of such consignment, to or for the use of the person, in whose name such consignment or delivery was made :—

2d. For any money, or negotiable security, or merchandise, received for the use of such consignee, by the person in whose name such consignment or delivery was made,

SEC. 2. Such lien shall not exist for any of the purposes aforesaid, if such consignee shall not have probable cause to believe, at the time of such advance or receipt, that the person, in whose name such merchandise was shipped, transmitted, or delivered, was the actual owner thereof, or had a legal interest in said property, equal to the amount of said lien.

SEC. 3. Whenever any consignee or factor, having possession of merchandise, with authority to sell the same, or having possession of any bill of lading, permit, certificate, or order, for the delivery of merchandise, with the like authority, shall deposit or pledge such merchandise, or any part thereof, or such document, with any other person, as a security for any money or merchandise advanced, or negotiable instrument given by him, in good faith, upon the credit thereof, such other person shall acquire, by virtue of such contract, the same interest in, and authority over, the said merchandise and documents, as he would have acquired thereby, if such consignee or factor had been the actual owner thereof; notwithstanding the person, making such advances upon the faith of such deposit or pledge, may have had notice that the person with whom he made such a contract, was only an agent: Provided, however, that this act shall give validity only to such contracts; and shall protect only such loans, advances and exchanges, as shall be made in good faith, and with probable cause to believe, that the agent making such contracts had authority so to do, and was not acting fraudulently therein, against the owner of such merchandise.

SEC. 4. If any person shall accept such merchandise or document, from any such consignee or factor, in deposit or pledge for any antecedent debt, due from such consignee or factor, such person shall thereby acquire no other or further right or interest in, or authority over, or lien upon, such merchandise or documents, than such consignee or factor might himself have enforced against the actual owner of the same.

SEC. 5. Nothing in this act contained shall be construed or taken,—