*404The opinion of the Court was delivered by

It is a decisive answer to the rule in this case, grafted as it is on the report of an auditor to make distribution among the creditors of an insolvent intestate, that the money in question is no part of the assets. Mr Merrick, the intestate, was the factor of Walker and Coggill, an English house, to whose title the present claimants have succeeded; and the money in contest is the price of goods sold by him as the property of the house, but received by Mr Yaughan, one of his administrators; and consequently not as the intestate’s property, whatever Mr Yaughan himself may have supposed; but, in contemplation of law, as a portion of the partnership effects. Had it been part of the intestate’s assets, it must have gone in a course of administration to pay the general creditors, the English house coming in pro rata as a creditor on its own property; but that the money was not so considered by Mr Yaughan himself, is manifest from the fact that he set it apart for the house in the hands of a trustee, as what has been called in the course of the argument, special assets — the meaning of which I am unable to conjecture. Assets are said to be real or personal, legal or equitable; but a distinction between general and special,. I believe, has been taken only in the present proceeding. It was this unlucky phrase which, seeming to solve all difficulties at the outset, drew the attention of all concerned from an inquiry into the nature of the title, and made the record of this proceeding a budget of blunders in which this court participated. It would also have been found that a factor, though competent to sell and to sue in his own name, is not the owner either of the property or of - its price, but barely an agent to contract for. his principal; and that his commission, except in very special cases, is revoked by his death. This familiar principle was directly decided in Burdett v. Willet, (2 Vern. 638), where it was held that the price of goods sold by a factor is payable not to his administrator, but to the merchant who consigned them to him; and it was held also in Whitecombe v. Jacob, (Salk. 160), as well as in many other cases collected in a note to it. The mispayment to Mr Yaughan consequently operated no discharge of the purchaser. The price might have been recovered on the contract of sale, at any time before the confirmation of the transaction by participating in the present proceeding; and it is plain, therefore, that it ought not to have been involved in the factor’s estate. Whether the court would summarily order a stranger to the proceeding to bring it in, even if it were assets, it is at present unnecessary to say. The question, when it. arises, will be whether a creditor can recover a claim immediately from a debtor to the estate, and'not from the administrator or by his agency, but by the instrumentality of an order paramount to him, the court taking the administration of the assets into its own hands. . It is enough for the present, however, that this proceeding is irregular and *405must stop. This trust estate can.be followed into the hands of Mr Dahlgren’s executors who represent him in the management of the fund, only by a bill in equity or perhaps by an action for money had and received. The rule must, therefore, be discharged, the money struck out of the auditor’s report, and the decree affirmed for the residue.

Decreed accordingly.