
    * John W. Lane and James W. Dalton versus George Jackson.
    A. consigns goods to B. on the account and risk of B., who, before their arrival, becoming insolvent, assigns them to C., who covenants to receive and sell them for the use of A., but without his assent or knowledge. The goods were held to be still liable to attachment at the suit of B.’s creditors.
    To constitute an attachment of goods, the officer must have the actual possession and custody of them. t
    
    This was a replevin of sundry goods claimed by the plaintiffs, and taken and detained by the defendant. The defendant pleaded in bar, that the property of the goods was in Abel W. Atherton and James Dalton. The plaintiffs replied that the property was in themselves, and thereupon issue was joined. Upon trial of this issue before the Chief Justice at the last November teon, a verdict was found for the plaintiffs by consent, subject to the opinion of the Court upon a case stated by the parties.
    It is stated in the case, that Atherton and Dalton, merchants in Boston, in the spring of the year 1807, ordered to be shipped to them on credit by the plaintiffs, merchants in London, the goods in question; that the plaintiffs, in August, 1807, shipped them packed in a trunk on board the ship Romeo, bound to Boston, consigned to, and on the account and risk of Atherton and Dalton, on a credit of nine months; that in September, 1807, and, previous to the arrival of the Romeo, the consignees had stopped payment, and, being then insolvent, received from the plaintiffs advice of the shipment, and one of the bills of lading; that, on the 24th day of the same September, the said Atherton and Dalton assigned the same, by their deed of that date, to Benjamin F. Bourne, to be by him received and disposed of on their arrival, for the use of the plaintiffs, in con side ration of the said consignees being unable to pay for them, and to prevent the same from being attached and taken as the property of the consignees by any of their creditors; and the said Bourne covenanted that he would receive the same from the said ship on her arrival, cause them * to be entered at the cus- [ * 158 ] tom-house, and the duties thereon to be secured, and that he would sell and dispose of the same for the use of the plain tiffs; that on the 6th day of October following, the said Atherton and Dalton, in pursuance of the same assignment, endorsed the bill of lading of the said goods to the said Bourne, who, on the next day, as soon as the Romeo arrived at a wharf in Boston, went on board her, exhibited the bill of lading so endorsed to the master, and demanded the goods, which the master agreed to deliver, unless he was legally prevented; that the said assignment and endorsement by the said Atherton and Dalton, the said demand by said Bourne, and the said agreement by the master, were all without the direction or knowledge of the. plaintiffs; that on the same 6th of October, after the ship had arrived in the harbor of Boston, and before she came to the wharf, the defendant, a deputy-sheriff duly qualified, went on board the said ship, with a writ of attachment duly issued at the suit of a creditor of Atherton and Dalton for a just demand, to attach the said goods; that, the master not being on board, the defendant demanded them of the mate, who answered that they were below, and could not be got at, as the hatches had not been opened; that the defendant directed the mate in writing to take possession for him of all the goods Atherton and ‘Dalton had on board, as soon as they could be come at, which the mate agreed to do; that the defendant thereupon returned the writ with his return thereon, that, on the said 6th of October, he had attached the said goods; that, about four days afterwards, the defendant took the said trunk of goods out of the ship by virtue of the said writ; that the said Bourne paid the freight, and the defendant paid the duties on the said goods; and that the plaintiffs, on the 24th day of the same October, duly replevied the goods out of the possession of the defendant.
    * It was agreed if the Court, upon these facts, should be [ * 159 ] of opinion that the property of the same goods, at the time they were so replevied, was in the plaintiffs, that the verdict should stand; otherwise that a verdict be entered that the said goods were not then the property of the plaintiffs, with one dollar damages for the defendant, and judgment accordingly.
    The action stood continued for argument at this term, and now
    
      Bourne, for the plaintiffs
    contended that their property in these goods had never been divested. They had always a right to stoj them in transitu; neither could the consignees assign them, but as subject to this right in the consignors . By the refusal of the consignees to receive the goods, the contract was rescinded, and so the property never was transferred . And if the property of the goods was never in the consignees, the attachment of them as theirs was merely void. A third person could not avail himself of a contract which had been lawfully rescinded by the parties to it  The assignment of the goods by the consignees was for the use and benefit of the consignors, and the assignee covenanted to hold and dispose of them accordingly. This being a contract clearly for the advantage of the consignors, their assent to it must be presumed, until they disaffirm it on their part . The attachment in this case was made after the endorsement of the bill of lading; for as to the transactions of the defendant on the arrival of the vessel, they do not amount to an attachment, to complete which, a possession of the goods is necessary . Indeed, until the arrival [ * 160 ] of * the ship at the wharf, the voyage was not completed, and the property of the goods had not vested in the consignees .
    Further, these goods were pledged to the master of the ship for his freight, and to the United States for the duties arising on their importation. Both had a lien upon them. The defendant being neither owner, agent nor consignee, could not enter them at the custom-house, and pay the duties, so as to discharge them from the lien the government had upon them. And if not entered by some person in one of the above-mentioned capacities, the revenue officers have authority, and are bound by law, to keep them in store nine months; and none but they have a right in the mean time to take possession of them .
    
      Otis, for the defendant
    admitted the right of a consignor to stop goods in transitu, but insisted that the doctrine was not applicable to the facts in this case ; for here, neither the consignors, nor any person authorized by them, countermanded the consignment. On the contrary, it is the act of the consignees themselves, under which the plaintiffs set up their claim. They assigned the goods to Bourne for sale, and directed him to account with the plaintiffs. But their powers extended no further than to refuse the consignment; and it is absurd to say that by the same act they refused the consignment, and authorized another person to receive and sell the goods. The plaintiffs were not bound by this transaction. If the goods should meet a good sale, they would assent; but if otherwise, they would receive the proceeds of the sale, and yet refuse to discharge the consignees. Bourne cannot be held to have been the agent of the consignors, but by a presumption of their assent from its being for their benefit. But he might have sold them on credit to an insolvent person; and would this be * sufficient to raise [ * 161 ] the presumption ? If the goods were not stopped by the consignors, nor refused by the consignees, they then remained the property of the latter, until attached as theirs by the defendant.
    As to the effect of the attachment on the sixth of October, if the property was not then in the consignors, as we contend, it is immaterial to consider the point, as they cannot recover. If the defendant was n wrong doer, it is nothing to the plaintiffs. But the defendant wont on board the ship when she was within the body of the county. and had, by the common law and usage of the country, a right there to exercise his office. He did exercise it as far as he lawfully could. He could not take the goods out of the ship, until the several liens upon them were discharged. He had all the possession of th» goods which he could obtain, and this he transferred to the mate, who for this purpose was his servant.
    Where goods are pledged by the party, they may not be liable to attachment as the property of the pledgor; but where the law creates a lien, a creditor must have power to discharge such lien, or the law would defeat its own provisions.
    
      Selfridge
    
    in reply. The assent of the consignor must be presumed, until the contrary appears ; but the very instituting this suit is a confirmation, and amounts to a subsequent ratification. This transaction was in every view so fair and honorable on the part of the consignees, that the law will support it if possible. Such a decision is very important to the commercial reputation of the country.
    There can be no attachment by an officer without an actual, or, at least, a constructive possession. It is true the officer may put his servant in possession of chattels after they are attached by him; but here the servant was in truth to make the attachment.
    *Ii the property of these goods was in Bourne, as we [*162] say it was, then they could not be attached as belonging to Atherton and Dalton.
    
    
      
      
        Mason vs. Lickbarrow, 1 H. Black. 364. — Sweet vs. Pym, 1 East's Rep. 4. — abbott on Shipping, c. 9.
    
    
      
      
        Atkin vs. Barwick, 1 Str. 165. — Salte & al. vs. Field, 5 D. & E. 211.
    
    
      
      
        Alderson & al. vs. Temple, 4 Burr. 2239. — Harman vs. Fisher, Cowp. 125.
    
    
      
       2 Vent. 198. — Dyer, 49. pl. 7. — 3 Co. Rep. 26.
    
    
      
      
        Shep. Abr. 200.
    
    
      
      
        Holst vs. Pownal & al. 1 Esp. Rep. 241.
    
    
      
      
        U. S. Collection Law, § 56.
    
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

[After stating the facts agreed in the case.] The plaintiffs claim the property on two grounds — That the consignees, while the goods were in transitu, disagreed to the consignment, to which, as they were insolvent, the assent of the consignors must be presumed. And if this ground should fail, that the goods were assigned to Bourne in trust for the consignors bona fide, and for a valuable consideration.

As to the first ground, it is our opinion that an insolvent consignee may, before he receive the goods, disagree to the consign ment, and that the assent of the consignor shall be presumed, unless in a reasonable time he declare his dissent, or neglect to give notice of his assent. That he may avail himself of this disagreement, the consignee ought to give seasonable notice thereof, and he must within a reasonable time declare his intention. For if, after notice, he is silent, his assent shall no longer be presumed. If the goods arrive here before the consignor can have notice that the consignee has disagreed to the shipment, any person, at the request of the consignee, may receive and take care of them, until the consignor has notice ; and an intermediate attachment shall not defeat his right. For the insolvent consignee having refused to receive them, the goods are in transitu, and may be seized by the consignor while they continue in transitu. And on his giving notice of his assent, within a reasonable time, to the disagreement of the consignee, the contract is rescinded ab initia, and nothing ever passed by it to the consignee .

If these principles applied to the present transaction, the plaintiffs must have judgment. But this case is different. The consignees undertake here to assign the goods, and authorize a sale thereof for the use of the consignor. This assignment is not a dis- [ * 163 ] agreement, but *an affirmance of the contract; and we cannot presume that the consignor would consent to the appointment of a factor, with power to receive and sell. The authority of the factor is derived from the consignee, and necessarily supposes an interest in the goods.

In our opinion the plaintiffs cannot support this action upon the ground that they had never parted with their property by the supposed disagreement of the consignees.

As to the second ground, that Bourne lawfully held the goods in ■.rust for the plaintiffs, this must also fail them.

For if Bourne took any thing by the assignment, he had the egal estate in the goods, and was trustee for the plaintiffs of the moneys received upon the sale. But a conveyance of an inr.ol ent debtor of goods, in trust to pay the debts of a creditor withr ut his assent, will not defeat an attachment made- before the nssen-. f <u the goods still remain the property of the debtor, and as such are liable to attachment .

This point was fully considered in the case of Widgery & al. vs. Haskell at this term, and it was our opinion that an assignment of estate by an insolvent debtor, in trust for certain of his creditors, made by a conveyance to which they were not assenting nor parties, is void as to creditors. This opinion was founded on the principles of our attachment laws, and the want of an equitable jurisdiction having cognizance of trusts.

Whether the defendant attached these goods immediately by being on board the ship and demanding them, when he did not gain the actual possession and custody of them, it is not material now to decide ; as he had in fact the actual possession and custody of them under his writ, when they were replevied.

But, as matter of practice, we have considered this point. And we are all of opinion, that to constitute an attachment of goods, the officer must have the actual possession and custody. This results from the legal import of the word; and in this sense is it now to be * understood. There certainly ought to be [*164 ] the same possession and custody on attachment, as on seizure by execution; otherwise an officer attaching would not be obliged by law to seize on execution because he had attached. But goods seized on execution must be sold at the expiration of four days after seizure, and the officer cannot sell, unless he can deliver the goods to the purchaser .

The plaintiffs having failed to support their property in the goods at the time of the replevin, the verdict must be set aside, and a verdict with one dollar damages be entered for the defendant. 
      
      
         Scholfield vs. Bell, 14 Mass 10
     
      
      а) See contra, Brooks vs. Marbury, 11 Wheat. 97. Marbury vs. Brooks, 7 Wheaton, 556. Halsey vs. Whitney, 4 Mason, 206. The consent of the consignor, under the circumstances, it would have been but reasonable to presume, unless it could be presumed that he would rather lose his debt than accept the conveyance.
     
      
      
        See the last preceding case.
      
     
      
      
        Train vs. Wellington, 12 Mass. 495. — Phillips vs. Bridge, 11 Mass. 242. — Lyman vs. Lyman, ib. 317. — Knapp vs. Sprague, 9 Mass 258. — Vinton vs. Bradford, 13 Mass. 114
     