Green

The judgment was reversed here, because a demurrer interposed to the special defense had been sustained by the Court below. The respondent, in the petition for a rehearing, now claims that this action of the Court below was not of any moment, because the matter set up' in the special defense might have been proved under the general issue pleaded in the answer.

It is not worth while, however, to consider this proposition now, because, even if the view of the respondent be correct, it appears by the record that the defendant offered at the trial, under the general issue pleaded, to prove the several matters set up in the special defense, but the evidence was excluded upon objection of the respondent.

Rehearing denied.

argued that, under the circumstances disclosed by this case, the principal was bound by his factors’ act as well by the common as the statute law.

a. E. E. Morgan’s Sons were general agents. (1 Parsons on Contracts, 95; Story on Agency, secs. 110, 131; 2 Kent, *621; Dunlap’s Payley’s Agency, 241; W right v. Solomon, 19 Cal. *76.)

5. Factors for shipment have authority to bind the principal to payment of the freight. (Story on Agency, sec. 110; Molloy, De Jure, Bk. III, ch. viii, sec. 9.)

c. Factors, for many if not for most purposes, are treated as the owners of the goods. (Story on Agency, sec. 111; Molloy, ubi. sup. sec. 2.)

II. a. “ The lawful possession of goods being once acquired for the purpose of carriage, the carrier is not obliged to restore them to the owner again, even if the carriage be dispensed with, unless upon his being paid his due remuneration, for by the delivery he has already incurred certain risks.” The carrier has a lien thereon. (Story on Bailments, sec. 585; Angell on Carriers, sec. 368; Abbot on Shipping, *595; Tindal v. Taylor, 4 El. & B. 219; Bark Edwin, 1 Sprague, 481 ; Bark Edwin v. Naumkeag Cot. Co. 1 Cliff. 322 .)

MeKune & Welty, for…