credere commission, at the request of his principal transmitted the proceeds of the sales in a bill on a house in London. The parties to the bill failed before payment. On the question as to the liability of the factor, the court in Scotland decided that no payment but such an one as would have satisfied a proper debt, was sufficient to discharge the factor; and gave judgment for the plaintiff. This judgment was affirmed in the house of lords in 1796: 6 Bro. P. C. 280. In Houghton v. Matthews, 3 Bos. & Pul. 489, Chamber, J., says, that where a factor sells under a del credere commission, he becomes responsible for the price, and he is to be considered, as between himself and the vendor, as the sole owner of the goods. In the same case Lord Alvanley, C. J., says, that the effect of a del credere commission is to make the factor responsible for the value of the goods to his principal. These opinions were given in 1803.

Mr. Bell, in his commentaries, published in 1816, at p. 378, lays down the rule thus: "The correct legal import of a del credere engagement, is an engagement to be answerable as if the person so binding himself was the proper debtor. This seems to be the correct legal import of the undertaking; and it is as nearly as possible, the meaning of the Italian phrase which we have adopted. He is placed in relation to the principal, precisely in the same situation, as if he had actually received in loan, the money of the principal." Paley on Agency, p. 39, adopts the same rule. Mr. Comyn, in his treatise on contracts, vol. 1, p. 253, is equally explicit in his statement of this rule. He says,

66

a factor del credere, on the sale of the goods makes himself absolutely liable in the first instance, for the payment of the price of such goods, in the same manner as if he were himself the purchaser, and was debited for them by the principals as such." Chancellor Kent, in the first edition of his commentaries, published in 1826, states his view at that time of the law on this point as follows: "When a factor acts under a del credere commission for an additional premium he becomes liable to his principal when the purchase money falls due; for he is substituted for the purchaser, and is bound to pay, not conditionally, but absolutely, and in the first instance:" 2 Kent's Com., 1st ed., 487. The principle is stated in the same way in 2 Chit. Com. L. 220, 221.

Here we have a whole current of decisions and a coincidence of opinions among eminent authors, in favor of the absolute liability of the factor to pay the price for which goods are sold under such a commission, when the credit has expired. This

should, I think, settle the question. But the doctrine has been questioned, and finally overruled in England. It was first doubted in Morris v. Cleasby, 4 Mau. & Sel. 566, decided in 1816; and Chancellor Kent, in the fourth edition of his commentaries, modifies what he had before stated, and treats the point as a vexata questio, while in a note to his last edition, he says, it is now settled in England, that the factor is only a surety for the solvency of the purchaser. I do not find, however, that the recent innovation in England has been adopted in this country, except in Thompson v. Perkins, 3 Mason, 232, where Mr. Justice Story has followed the case of Morris v. Cleasby, 4 Mau. & Sel. 566. We are now asked to give the new rule the sanction of this court. But in my judgment we should not follow the courts in England in their departure from the former rule. This is a class of contracts that have existed in this country as long as commerce has flourished, and under which business is daily transacting to a large amount. The understanding of the mercantile community has, I apprehend, been general and uniform, that the agreement beween the principal and factor was original and absolute to pay the price of the sale, deducting the commission, at the time the credit expired. Doubtless the factor expected the fund would be received from the purchaser; but whether received or not, he charges himself with the amount in his account with his principal. A contrary rule would require the principal to exhaust his remedy against the purchaser, in order to determine his insolvency, before he could charge the factor as surety.

The supreme court of Massachusetts have had this question before them, and have adhered to the law as it was understood in England prior to 1816. In Swan v. Nesmith, 7 Pick. 220 [19 Am. Dec. 282], decided in 1828, Parker, C. J., in giving the opinion of the court, speaking of a del credere contract, says: "The legal effect of such a contract is, to make the defendants, the factors, liable at all events for the proceeds of the sale, so that according to some authorities, though denied by others, they may be charged in indebitatus assumpsit, or for goods sold to them. And there seems to be no good reason why they should not be so charged; if upon receiving the goods they be came accountable; except that their liability is not fixed until a sale is made, or if upon credit, until the time of payment ar rives." I am not satisfied that the new rule is an improvement, if we were at liberty to take our choice; but on the other hand, think it wise to adhere to the old principle, that adjudges the

AM. DEC. VOL. XLIII-48

contract of the factor in such cases to be an original and absolute one, for the payment of the price, and shall therefore vote for affirming the judgment of the supreme court.

Senator FOLSOM also delivered a written opinion in favor of affirming, and HAND, Senator, one for reversing the judgment of the supreme court.

On the question being put, "Shall this judgment be reversed?" the members of the court voted as follows:

For reversal: Senators HAND and MITCHELL—2.

For affirmance: Senators BACKUS, BEEKMAN, BEERS, BOOKEE, CORNING, DEYO, EMMONS, FOLSOM, JOHNSON, JONES, LOTT, PORTER, SEDGWICK, SMITH, TALCOTT, and WRIGHT-16.

Judgment affirmed.

CONTRACT OF Factor Selling under a Del CREDERE COMMISSION may be proved by parol: Swan v. Nesmith, 19 Am. Dec. 282; Sherwood v. Stone, 14 N. Y. 268, citing the principal case.

FACTOR SELLing under a DEL CREDERE COMMISSION becomes liable to the principal when the purchase money is due. He then becomes substituted for the purchaser, and is bound to pay, not conditionally, but absolutely, in the first instance: Cartwright v. Greene, 47 Barb. 16; Blakely v. Jacobson, $ Bosw. 148, citing the principal case.

CHURCH V. BULL.

[2 DENIO, 430.]

WIDOW WILL NOT BE FORCED TO AN ELECTION between her right to dower and testamentary dispositions in her favor, unless the testator has de clared the same to be in lieu of dower, either expressly or by necessary implication. When the testator's intention is doubtful, no election need be made.

PROVISIONS OF A WILL MUST BE SO TOTALLY INCONSISTENT with the widow's claim of dower as to defeat the testator's intention in relation to other dispositions of his property before an election by the widow will be compelled.

DEVISE OF ALL OF A TESTATOR'S PROPERTY TO HIS WIDOW during her widowhood, and after her marriage to his children, is not inconsistent with her right of dower, as such subsequent disposition will be presumed to have been made subject to its legal incidents.

EJECTMENT by Bull and his wife for dower in the lands of her former husband. The further facts appear in the opinion.

H. M. Romeyn and M. T. Reynolds, for the plaintiff in error. J. A. Spencer, for the defendants in error.

WALWORTH, Chancellor. The testator, in this case, devised his real and personal estate to his wife during her widowhood, and after her death or remarriage he gave all his property, except some small legacies which were bequeathed to his daughters, to his three sons. But he did not state in his will that he intended this provision for his wife, during her widowhood, to be in lieu of her dower in his real estate after the determination of such provision, by her remarriage. And the only question for our consideration now is, whether the disposition of his real estate after her remarriage, is so inconsistent with her enjoyment of dower therein subsequent to that time, as to deprive her of such dower, and to leave her wholly unprovided for in case she should remarry.

There is no natural equity in the principle which gives to the husband the right to dispose of his whole personal estate, the joint earnings of himself and wife, to her exclusion; nor in that which gives him the power to dispose of the whole real estate except the use of one third thereof during the life of the wife. Hence, the courts have always been astute in protecting the widow's right to the small pittance which the rules of the common law had given to her in the estate of her husband after his death. Hence, as Lord Bacon stated nearly two hundred and fifty years since, the tenant in dower was so much favored in the courts that at that early period it had become "the common byword in the law, that the law favoreth three things, life, liberty, and dower:" Bac. Read. on the Stat. of Uses, 38; Jenk. 7 Cent. Cas. 16. The right of dower being a legal right, and thus favored by the courts, the wife can not be deprived of it by a testamentary disposition in her favor, in the nature of a jointure, so as to put her to her election, unless the testator has declared the same to be in lieu of dower, either in express words or by necessary implication. In the cases of Fuller v. Yates, 8 Paige, 825, and Sanford v. Jackson, 10 Id. 266, I had occasion to examine most of the cases on this subject which had then been decided, and I then concluded, as the result of all the cases in this state and in England, that the settled rule of law was, that to compel the widow to elect between the dower and a provision made for her in the will, where the testator had not in terms declared his intention on the subject, it was not sufficient that the will rendered it doubtful whether he intended that she should have her dower in addition to that provision; but that to deprive her of dower, the terms and provisions of the will must be totally inconsistent with her claim of dower in the property

in which such dower was claimed; so that the intention of the testator in relation to some part of the property devised to others would be defeated, if such claim was allowed. And in the last case, which was the same as this, except that the widow in that case was entitled to the whole real estate, even after her remarriage, while any of the children continued to be minors, it was decided that her claim for dower in the one third of the real estate, subsequent to the termination of her particular estate in the whole of the same, was not necessarily inconsistent with a general devise of the whole of his property to his children after that time.

Since that decision was made, the case of Ellis v. Lewis, 3 Hare, 310, came before Vice-chancellor Wigram, in England, and was decided in favor of the widow upon the same principle. He there says: "I take the law to be clearly settled at this day that a devise of lands eo nomine upon trusts for sale, or a devise of lands eo nomine to a devisee beneficially, does not per se express an intention to devise the lands otherwise than subject to its legal incidents, that of dower included. There must be something more in the will, something inconsistent with the enjoyment by the widow of the dower by metes and bounds, or the devise standing alone, will be construed as I have stated." And in Harrison v. Harrison, 1 Keen, 768, Lord Langdale says that prima facie the testator's farms, lands, and all his other real estate, must mean the real estate of which he had the power of disposing; which would be his real estate subject to lawful claims, and one of those claims would be the dower of his wife. Here the whole property is devised to the widow during her widowhood. Of course no question of dower could arise while she continued a widow, as she was entitled to the possession of the whole during that time. And the subsequent devise of his whole real estate to his three sons is not necessarily inconsistent with an intention, on the part of the testator, that his wife should be left to her legal right of dower alone for her support, after the particular estate which had been devised to her had been determined by her marriage.

In the language of the vice-chancellor and master of the rolls in the above cases, prima facie the devise of the testator's whole real estate to his three sons after that time did not per se express an intention to devise such real estate otherwise than subject to its legal incidents, one of which legal incidents was the widow's common law right of dower therein.

For these reasons I think we can not deprive the wife of the