Francklyn v. Sprague

That the proceeds of goods consigned to a factor for sale on a del credere commission, in whatever form they exist, continue to be the property of the consignor, so long as such proceeds can be traced and identified, has been repeatedly adjudicated in this court. If the factor has made advances in cash he has a right to retain enough of *591such proceeds to reimburse bim therefor. If be bas made advances in tbe form of bis notes or acceptances, wbicb are outstanding, tbe proceeds may be retained until sucb notes or acceptances shall have been surrendered or destroyed. A receiver or assignee of a factor, who bas become insolvent, merely succeeds to bis rights, and is under tbe same obligation to restore to tbe consignor tbe proceeds of bis goods, wbicb are distinguishable, as tbe factor himself. These principles are manifestly just and equitable, and are well sustained by authority. (2 Kent Com., 623; Edw. on Fac., § 70, 71; 1 Am. Lead Cas., 480-490; German Bank v. Edwards, 53 N. Y., 544; Hidden v. Waldo, 55 id., 294.)

In this case tbe consignor has become insolvent, and bis assignee now seeks, in conjunction with certain creditors, to have tbe pro: ceeds of bis goods, which have been kept distinct, applied to tbe payment of drafts drawn by tbe consignor upon tbe factors, wbicb are in tbe bands of third persons. We think sucb a disposition of tbe proceeds in question ought to be made for tbe reasons assigned by tbe referee. Order affirmed.

Order affirmed, with costs and disbursements.