
    Charles L. West v. Tupper & Kimball.
    Charleston,
    March, 1829.
    Although the defendant in trover have a lien on the goods in dispute; if he did not give notice of his lien when the goods were demanded of him, but re. fused to deliver them on another ground, the plaintiff need not prove a tender of the amount of the lien.
    So a refusal to deliver on demand-is sufficient evidence of conversion, although the plaintiff did not disclose his right to malte the demand; if the defendant did not question his authority at the time, but insisted upon a distinct and. independent right in himself to detain the goods.
    An assignment in trust for creditors, executed in New-York, takes effect from its delivery there, and is intitled to precedence of a subsequent attachment leviedin this State. Vide Greene ® Mo wry, 2 Bailey, 163.
    One intitled to goods which are attached in the hands of a third person as the property of au absent debtor, is not hound, after the plaintiff in attachment has abandoned the suit, to come in and contest his title with the garnishee under the proceedings in attachment: nor is his title affected by any order or judgment obtained by the garnishee under the proceedings in attachment, to which he was not a party.
    Tried before Mr. Justice Gantt, at Charleston, January Term, % 1829.
    This was an action of trover for sundry barrels of beef and casks of wine, sold by the defendants in May, 1825, to Joseph. T. Weyman ; who" having paid a part of the price in cash, and the residue in a note of William N. Conyers, left the goods with the defendants, on storage. Weyman afterwards becoming insolvent, executed certain deeds at New-York on the 19th and 20th of August, 1825, by which he assigned his estate and effects, ineludingthebeef and wine in question, to the plaintiff, for thebe-negt 0f cel-taiu of his creditors. The first of these deeds was recorded in the office of the Secretary of State, at Charleston, on the 27th of August, 1825, and the other was also recorded subsequently; and shortly afterwards an ageut of the plaintiff demanded the beef and wine of the defendants, who refused to deliver them, asserting a right to detain them as creditors in possession. On this evidence the plaintiff claimed a verdict for the price paid by Weyman to the defendants, together with interest by way of damages from the time of the demand.
    A nonsuit was moved for on the grounds; first, that there was no evidence of a tender of the sum due for storage at the time of the demand: and second, that the agent who made the demand, did not at the time give the defendants notice of the assignment by Weyman to plaintiff. The presiding Judge held, that as the defendants had neither given notice of their lien for storage, nor questioned the plaintiff’s authority, when the goods were demanded of them; but had placed their refusal on an entirely different ground, they were concluded from urging those objections now, and were not intitled to a nonsuit on either ground.
    The defendants then gave in evidence the record of certain proceedings in attachment against Weyman, at the suit of Joseph Young. The attachment was lodged on the 27th of August, 1825, and a copy was served on the d( feudants on the same day: on the 1st of October, 1825, the defendants filed their return, admitting the beef and wine, in their possession, to be the property of Weyman, but claiming to be creditors in possession. There were uo proceedings had, on the part of Young, after the return ; but the defendants filed a declaration as creditors in possession, and obtained an order of sale, under which the beef and wine were sold at auction for about one half of the price paid by Weyman. The defendants obtained judgment on their declaration on the 10th of February, 1827, for a much larger sum than the value of the beef and wine. The cause of action for which this judgment was rendered, was a note of Weymau’s, dated the 14th of May, 1825, payable four months after date to Leland & Brothers; and by them indorsed to the present defendants, but at what time did not appear. It was proved, that the present plaintiff had notice of the proceedings in attachment, and that he had been required by the defendants to come in and contest his title under them ; but that he had refused to do so, and commenced this action on the 28th of April, 1827.
    Evidence was also introduced to prove, that the price paid by Weyman was a nominal price only, as the note of Conyers was considered doubtful, and was taken at a discount; and that the beef and wine were in feet worth no more than they had sold for at the sale made by order of the Court. On the other hand it was proved, that Conyers’ note had been paid, so that the defendants had received in money the full price at which Weyman had purchased.
    Various questions of law were made at the trial, which will sufficiently appear in the argument before the Court of Appeals, and which, for that reason, are omitted here. The presiding-Judge overruled all the grounds of the defence, and the jury found for the plaintiff, the amount of the price paid for the goods by Weyman, with interest added from the time of the demand by plaintiff.
    The defendants now moved to set aside the verdict, with leave to eater a nonsuit, on the grounds taken in the Circuit Court; and failing that motion, then for a new trial on the ground of misdi-direction.
    Clarke, for the motion.
    A refusal to deliver the goods on demand is no evidence of conversion if the defendant have a lien on them, unless the amount of his lien be tendered to Skinner v. Upshaw, 2 Ld. Raym. 752. York v. Grenaugh, Ibid. 866. York v. Grindstone, 1 Salk. 388. But it is said, the defendants in this case gave no notice of their lien. It was unnecessary for them to do so. The plaintiff knew the goods were on storage, and it was his business to have tendeied what was due on that account. So as to the second ground: a refusal to deliver to a stranger furnishes no evidence of a conversion. It must be a “ denial to him who has the right to make the demand.” 2 Ph. Ev. 118. The defendants knew nothing of plaintiff’s assignment. They looked upon Weyman as the owner: it was to him they refused to deliver; and it is to him alone that they are responsible for their refusal. The omission of the agent to disclose the plaintiff’s title was not the fault of the defendants, and they must not. be made to bear the consequences. On each of the grounds, therefore, the motion for a nonsujt 0Ught to hare been sustained.
    His Honor erred too in his charge to the jury on the merits. The practice of preferring certain creditors by an assignment, is alike contrary to good morals, and inconsistent with sound principles of commercial policy. Our Courts have exhibited no disposition to enlarge the operation of these assignments. In Topham v. Chapman, 1 Mill, 283, an assignment executed in England was held to be unavailing against a subsequent attachment in this Stale. It was contended, that this case did not apply, because the assignment there was under the English bankrupt laws: but the principle goes much further than is im- ' plied by this argument. The true rule is, that nothing done elsewhere shall affect the rights of creditors in this State to be satisfied out of the property within the jurisdiction of our Courts. T.hus in Schatzill &Co. v. Bolton, 2 M‘C. 478, an attachment levied here, was held to be intitled to precedence of a prior decree in the Circuit Court of the United States, in Kentucky. These preferences are odious in all cases, but are especially to be resisted, when the property of the debtor in this State is taken from his creditors here.
    Give to the assignment however its fullest effect; from what date shall it be allowed to operate 1 An assignment for the benefit of creditors wdl not avail against a legal lien, unless the creditors accept before the lien attached. Lane v. Jackson, 5 Mass. 163. And if there are several creditors, they must all accept before that period. Marston v. Coburn, 17 Mass. 454. Now there was no evidence in this case that the creditors had accepted, before Young’s attachment was levied. The defendants claim under that attachment, and nothing subsequent could' affect their lien. Goore &. Danavant v. M‘DanieI, 1 M‘C. 480.
    The utmost extent to which the Court would go in supporting the assignment, would be to give it effect from the time of its being recorded here; but although the first deed was recorded on the same day on which the attachment was levied, the second deed was not recorded until afterwards, and the assignment was incomplete without both deeds.
    It was urged that there is no evidence that the defendants were creditors when the attachment issued; and that the debt foi which they recovered judgment was not due at the time. The first of these objections was a question for Young, the plaintiff in attachment, and for him alone ; if he believed it unavailing, it will not support the present plaintiff. The second objection is answered by the 6th sec. of the attachment act, P. L. 189; á fair construction .of which will sustain the regularity of the defendant’s proceedings. But were it otherwise, the plaintiff is not intitied to call their regularity into question. Kincaid v. Neall, 3 M‘C. 201. Camberford v. Hall, Ibid. 345.
    Waiving every other ground, however, the plaintiff is concluded by the judgment recovered by the defendant against Wey-man; which was a condemnation of the goods, and an adjudication of their liability to the claim of the defendants. This was the judgment of a Court of competent jurisdiction, and cannot be now impeached. It is said that the plaintiff was not a party to that judgment; but that was his own fault. He had notice of the proceedings, and was a party in interest; and he was bound to come in under the attachment, and make himself a party to the record. Brown, Green & Co. v. Minis, 1 M‘C. 80. It was his only remedy ; for the beef and wine were in the custody of the law, and he could not maintain trover for them. Jenifers. Joliffe, 9 Johns. 381. The goods were in Court, and it was incumbent on him to go there, and assert his title to them.
    Under any circumstances the verdict must be set aside for excess of damages. The jury have given nearly three times the value of .the goods according to the evidence. It is clear that they have found vindictive damages, which in this action, they had no right to do.
    Gilchrist, contra.
    
    A refusal to deliver when the goods are demanded by the real owner, is a conversion of them; because it is a .direct interference with the exercise of his right of property. Hence the refusal may be explained; but a distinct assertion of a right of property in the defendant, superadded to the refusal, is a conversion which admits of no explanation. It is immaterial, therefore,. whether the plaintiff did, or did not, disclose his title when he demanded the goods: the defendants claimed them as their own, and that was a sufficient conversion even if there had been no demand. It is said, however, that the plaintiff ought to have tendered the amount due for storage; but it ought first to be shown, that he knew there was any thing due for storage. It is true he might have inferred from the circumstances that there was; but the ¿t,fen(jants niisled him by assuming another ground for their re-fusa!. And they cannot be allowed to shift their ground after action brought. Boardmau v. Sill, 1 Camp. 410. Judah v. , Kemp, 2 Johns. Ca. 411.
    The difference between the moral merit of a preference obtained by assignment from the debtor, or by a scramble for legal liens upon his estate, is not very discernible. The morality of each case must depend upon its peculiar circumstances ; and the law interferes no farther than to protect that which is prior in date. The rule is, to leave the plank with him who first gets hold of it; and this rule is never, departed from, where the debt is bona fide.
    
    No doubt has ever been entertained in this State, that an assignment for the benefit of creditors, will take precedence of a subsequent legal lien. In Bush v. Waring, 1 Bay, 90, an assignment was preferred to a subsequent judgment. In Woodsworth v. Griswold, Harp. 18, to a subsequent attachment. And an assignment, like all other deeds, takes effect from the delivery. Thus in Bush v. Waring, (supra.) the assignment was not recorded before the judgment; and yet it was preferred. In Prime v. Yates, 2 Treadw. 770, a bill of sale to a creditor, though delivered to a stranger without the knowledge of the creditor, was held, when afterwards accepted by the latter, to take effect from the delivery ; and was preferred to intermediate attachments.
    The cases cited from 5 and 17 Mass, are not law here. In fact the very ground of the decision in ihose cases is, that in Massachusetts there is no equitable jurisdiction to inforce the trusts of an assignment: a reason which of course has no application in this State, and the force of which any where is not very obvious. See Wilt v. Franklin, in Pennsylvania, 5 Binney, 502, which is very strong case the other way.
    The circumstance that the assignments were executed in New York does not affect their validity here. An assignment under the bankrupt laws of a foreign country will not operate as a legal transfer of property in this country : because the authority of a foreign jurisdiction to create a lien on property out of its jurisdiction, is not recognized by any principle of international jurisprudence. Harrison v. Sterry, 5 Crunch, 289. And this is the ground of decision in Topham v. Chapman, and Schatzill v. Bolton. Neither of those cases, therefore, apply to an assignment voluntarily executed by the debtor himself.
    The only ground upon which the defendants could have been intitled to retain the goods iu dispute, would have been that they were creditors of Weyman at the time of the assignment. But of this there is now no pretence. The note on which they subsequently recovered judgment was not then due; nor is there any evideuce that they had any interest in it at the time. Even if they had, the goods were not a security for its payment; and they had no lien beyond the amount of the storage. But it is obvious that the note was a subsequent speculation, ventured upon by the defendants, on the strength of their possession: and it is one which must fail, because it has neither law nor right to sustain it. Even a debtor cannot set off a debt purchased in after he has notice of an assignment. Johnson v. Bloodgood, 1 Johns. Ca. 51. Wardell v. Eden, 2 Johns. Ca. 121. Marsh v. Chambers, 2 Str. 1234. Bates v. insurance Company, 3 Johns. Ca. 238. Dickson v. Evans, 6 T. R. 57.
    
    As to what has been -urged of the goods being in the custody of the law; there would have been some weight in it, if this action had been brought, while Young’s attachment was peudiug: buthe abandoned the proceedings as early as October, 1825, aud even the defendants obtained their judgment before this suit was brought. The present plaintiff was not bound to come in under the attachment at all; but especially after Young had abandoned it. And his rights cannot be affected by the attachment, because he was neither a party, nor does he claim under any party to it; but by title paramount to all of them..
    The amount of damages was a question for the jury. But their verdict is sustained by the evidence. If Conyer’s note was not supposed to be worth what it purported on its face; yet the defendants in fact received the full amount, and it is but fair, if they would not give up the goods, that they should be compelled to pay what they received from Weyman for them.
   Colcock, J.

delivered the opinion of the Court.

The Court concur with the presiding Judge on every ground; and the mol ion of the defendants therefore cannot prevail.

The grounds for a nonsuit are untenable, inasmuch as the defendants have by their own conduct precluded themselves from any advantage they might have derived from them,. They distinctly placed their claim on the ground, that they were creditors in possession; and on that ground they are now met.

Whether an assignment for the benefit of preferred creditors, should be permitted to have effect, where the debtor is greatly involved, is a question for the Legislature. Their legal operation is the only question for us; and it is a mistake to suppose that this Court ever entertained a doubt upon the subject. The deeds are prior in date to the attachment, and therefore passed the property to the plaintiff, unincumbered by any claims of the defendants, of which we have seen any evidence.

The ground, that the property was in the custody of the law, is the only one which seemed to be seriously relied on. But. there is nothing in it. The attachment was abandoned by Young in October, 1825, and the defendants were at full liberty to have delivered the goods at. any time afterwards ; for there was nothing to prevent their withdrawing their own proceedings. But when this suit was brought, all the parties were out of Court, and the very colour of objection vanishes.

The plaintiff could not be bound by the proceedings in attachment; for he was not a party to them. He was not bound to litigate his claims in the mode dictated by the defendants, even if he could do so, which I much doubt. So that if the judgment obtained by the defendants could be supported by arty construction of the attachment act; still it is altogether unavailing against the title of the present plaintiff.

We are satisfied also with the decision of the jury on the question of damages, which was one almost entirely belonging to them. The sale at auction was by no means an accurate test of the real value of the goods; and there was other and better evidence of the value. Besides, it required very strong evidetice to prove, that the goods were worth less than the defendants had themselves actually obtained from Weyman for them.

Motion refused.  