Ashmead v. Borie

R.ogers, J.

(after stating the grounds taken by the plaintiff in error.) — The first proposition cannot be maintained, and, indeed, has been faintly pressed in the argument; for, undoubtedly, the plaintiffs, to whom the fund was equitably assigned, are entitled to recover the proceeds of their own property. The. difficulty is, as to the extent of their claim. On this point, we are disposed to adopt the charge of the court. By accepting the consignment, Bell, De Tong & Oo. bound themselves to carry out the accompanying instructions of the principal, particularly as regards the interests of the plaintiffs, to whom the fund being appropriated, was specially assigned. Clemson v. Davidson, 5 Bin. 398, is an authority for the position. Bell, De Tong & Co., acting in good faith, were compelled to set aside, for the use of the plaintiffs, a moiety of the proceeds arising from the sale of the sugars; but, instead of pursuing this obvious course, under pretence of a lien for a general balance due them from Sartori, who was insolvent, they mingle it with the proceeds of other property belonging to Sartori, and remit the balance, after deducting their own debt. When a confusion of goods takes place through the design of one party without the consent of the other, the law, to guard against frauds, gives the certain property, without any account, to him whose orignal dominion is invaded and endeavoured to be rendered uncertain without his consent: 2 Kent, 364. As between Sartori and the plaintiffs, the remedy would seem to be plain and simple; and the assignees, who are trustees for the general creditors, stand in the same position. A person intermingling goods can never take advantage of his wrong; and, whether done by himself or his agent, can make no difference. None of the creditors have a special interest in the fund, except the plaintiffs; and, as the amount invested in the return cargo is less than the nett proceeds of the sugar, the plaintiffs are entitled to judgment for the whole amount.

Judgment affirmed.