EDENTON,

APRIL TERM, 1796.

#### Hagan v. Paine.

A consignee was instructed to exchange the consigned produce for tha. f Surinam ; when he arrived there, he found it impracticable to make the exchange for any thing but Sugar and Coffee, which were contraband by the law of that country ; but still such kind of traffic was usual, and the law had not been enforced against it for many years. The consignee ventured to make the exchange for the contraband articles, but owing to an attempt to enforce the law, he h -U to resort to tx subterfuge, i.i the doing of which, some of the Sugars were damaged: held, that he was not responsible for the loss.

Case. iA o?i assumpsit, &c. pleaded. The case upon the evidence was this: Hagan had shipped on two vessels of the Defendant, destined to Surinam, seventeen hogsheads of tobacco and forty barrels of pork, consigning them to Paine, for him to exchange them for goods of the production of Surinam, to be brought in return to this State. The vessels and cargoes arrived safely at Surinam, but the cargo could be sold foi nothing hut the paper currency of that country — neither molasses nor specie could be procured for it — -it could be exchanged for nothing but sugar or coffee, each of which was contraband by the law of that country, but were notwithstanding, usually and commonly purchased by the ships and vessels of all nations resorting thither, and there had been no instance of a seisure or information lodged with the officers of toe government for many years — the tobacco was exchanged for svgan: — and after they were shipped, a vessel in the harbor laden with sugar, was seized — it *314then became necessary to re-laud the sugars, and have th'-m conveyed to another part of the sea coast, and for the D< fendant’s vessels to depart as if for their homeward voyage, and to return secretly and take in the sugars.— AU this wa- done, and about one half of the sugars were lost in the operation, getting wet when put into the flats— the vessels took in the sugars in this damaged state, and carried them to Guadaloupe.

Counsel for the Plaintiff

A factor, agent or consignee ought to pursue the directions given by his principal with respect to the goods committed to his care — if instructed to sell for ready money, or to sell generally, which is for ready money, lie cannot sell upon credit, without running the risk himself — if he fails to pay customs in a foreign port, lie runs the risk of the forfeiture if any should ensue thereupon — if he attempts to transport goods prohibited to be exported, and his own government should seize the goods, the loss is his own, 2 Mb. 100. Vide 3 P. fVil. 185, 187", 279. Cow. 255,

E contra

It was argued, that though in general the law is as stated on the other side respecting factors or consignees, and their consignments, yet sometimes impotmtia eoemsat legem. Exceptions may be made to this general rule where the Defendant., the consignee, proves to the satisfaction of his jury, that it was impossible to comply with the terms of the commission given by his principal; if lie cannot sell .for ready money, when empowered to sell; and that is implied in the case in 2 Mo. 100, where one of the reasons rendered by the court for their judgment, is, for that, lie did not plead he could not sell for ready money, implying if this had appeared to the court, then judgment would have heendifferent. By parity of reason, if he could not exchange the consigned good- for goods of the country that were legally exportable, though in general he ought not to exchange for contraband goods; yet. in a case like the present, where such goods in the common course of trade were usually and generally pur-ch-.sed, and it was generally thought not to be unsafe to purchase them, there ought to be -411 exception from rhe general rule — and ot that opinion were the. court — and th'-.-s- was a verdict for the value of the'sugars saved, and judgment.