John McLean

“ But the plaintiffs, by appropriating the proceeds of the cotton to the payment of future liabilities, have violated their contract, endeavored to defeat the just reliance of the sureties, and charge them with the payment of the bills which they guarantied. This the plaintiffs cannot do. It would be a great hardship, if not a fraud, on the sureties. No lien can be regarded or enforced under such circumstances. the lien of a factor depends upon legal principles, founded on equitable considerations, and can be held valid on no other grounds. ”

“ Where a factor makes advances, or incurs liabilities, on a consignment of goods, if there be no special agreement, he may sell the property, in the exercise of a sound discretion, according to general usage, and reimburse himself out of the proceeds of the sale ”

“ In this case, the application on the funds to pay the first bill becoming due, was ordered by the bill itself.
There is another consideration in this case which the court will notice. The question here is one in which sureties are interested. ”

“ On all sales they were to receive two and a half per cent. For commission, and the same amount for advances. In August 1834, Phillips & Company were indebted to Brander & McKenna, in the sum of $1315.57, for advances. On the 15th of the same month, John Williams, agent for Brander & McKenna, agreed to advance Phillips & Company the sum of $8000, on bills to be drawn between the 20th of April, and the 31st of July, 1835, by them, and any two of six persons named; among whom were R. Horton and N. Terry, two of the defendants in error. ”