Opinion
JANUARY TERM, 1794.
CASE. The facts, on which the present cause depended, will be found in the report of Ingraham, indorsee, v. Gibbs et al. 2 Dall. Rep. 134.; and the note annexed to it. Ibid. 136. The following charge was delivered to the jury.
We are of opinion, that the mode of remitting by a general bill, payable to one merchant, with separate drafts infavour of each of the other merchants, who are interested in the amount of the bill, is a good and lawful execution of the trust and authority of a factor, employed by several distinct and unconnected merchants, resident abroad. No inconvenience can arise from the transaction, if all the parties are apprised of the distributive appropriation. It is essential, however, to such a remittance, that notice should be given to the parties. In the present case, there is no proof of express notice to the plaintiff; but this may be supplied by facts, which raise a fair presumption of the plaintiff's knowledge on the subject: and his delay in protesting and returning the bill, together with the draft on Portener, sent directly by the defendants to him, are facts of that description.
It only remains to observe, that Portener, the general trustee, could give no preference to any claimant on the fund; and that in case of a partial loss, it must have been borne, as a general average, by all the concerned.
Verdict for the defendants.