
    
      Elizabeth Fitzsimons vs. G. H. Milner.
    
    Although it is the custom, in. Charleston, for factors shipping goods to their customers in the country, to pay the wharfage, yet, if it he not paid by the factor, it may be recovered by the wharfinger from the owner of the goods.
    
      Before O’Neall, J. at Charleston, Spring Term, 1845.
    The report of the presiding Judge is as follows:
    “ This was a summary process for the recovery of wharf-age. The items composing the plaintiff’s account were admitted, but it was denied that the defendant was liable. The defendant purchased goods in Charleston, which were shipped to him by his factor, from Fitzsimons’ wharf. The usage seemed to be, that the shipper (the factor,) paid the wharfage and charged it to the consignee, by whom it was paid in the settlement of his accounts with the factor.
    “ I thought the defendant was liable, and decreed for the plaintiff.”
    The defendant appealed, on the following grounds.
    1. That it was clearly proved, that by the custom of Charleston, the shippers alone have always been charged by the wharfingers, and have always considered themselves exclusively responsible for, and have alone paid to the wharfingers, the wharfage of merchandize.
    2. That in pursuance of that custom, the defendant has always paid, and in this case has already paid, the wharfage to the merchants from whom he purchased the goods shipped to him.
    3. That the defendant has never made any contract, express or implied, with the plaintiff, for the payment of wharfage.
    
      Walker, for the motion.
    
      E. Magrath, contra;
   Curia, per O’Nealu, J.

That a wharfinger is not liable for a loss to the same extent that a carrier is, is, I think, true ; Theob. ed.' of Jones on Bailm. 97, note; But that there is any other difference as to their rights and liabilities, I am not aware. Both are entitled to be paid for their services, and both have a lien on the goods. This seems to point to the solution -of the question in this case ; for where there is no debt, there is no lien. To whom did the goods belong ? To the defendant-, is the answer. Could he have moved them from the wharf, without paying the wharfinger’s fees ? There can be no doubt that he could not. Why? Because he owed for their custody and care, and the wharfinger, in respect to that, had a lien. Permitting the goods to go without' enforcing the lien, did not pay the debt; the lien was discharged, the debt remained. That it is the rule of law, as well as custom, for the consignee to pay the wharfinger, may, I think, be gathered from the cases on warehouse-men and wharfin-gers, collected in the appendix to Jones on Bailm. 78 et seq. (ed. of 1836.). But it is said, it is the custom here for the consignor to pay the wharfage. It is true, it appeared that factors paid it uniformly, and charged it to their principals. But that did not, it appeared to me, make them necessarily the exclusive debtors to the wharf owners. They had the right to regard them, as well as the owners, liable ; the factors in respect of the delivery of the goods — the owners in respect of their right of property, and the benefit received from the care of the goods and the use of the wharf. A payment by either would discharge the debt.

Here the factor shipping the goods for the defendant, did not pay. the plaintiff, although the defendant paid him; and as .the 'plaintiff’s debt remains unsatisfied, it follows, it it seems to me, that the defendant must pay it. The motion to reverse the decision below is dismissed.

Richardson, Evans and Butler, JJ. concurred,

Wardlaw and Frost, JJ. dissented.  