
    GENERAL COURT, 7
    
    MAY TERM, 1789.
    
    ^ Wallace, Johnson and Muir, against Forrest and Stoddert, Garnishees of Benjamin Eyre. Richard Smith against The Same. William Pennock and others against The Same.
    THESE were attachments on judgments after returns of non est.
    
    
      The following case was stated in these actions by the counsel on both sides, for the opinion of the Court, viz.
    In the year 1786, Benjamin Eyre, of the city of London, who always resided in Great Britain, consigned to Messrs. Forrest and Stoddert, two several parcels of goods for sale.
    At May term, 1787, and on the 8th day of the same-month, a judgment or award for attachment was obtained by Wallace, Johnson and Muir, against the said Benjamin Eyre, and on the same day an attachment was issued on the said judgment or award against the said Benjamin Eyre, and on the tenth of the same month, laid in the hands of Colonel Uriah Forrest, at Annapolis, and on the tenth of the same month, a duplicate was sent to Montgomery county, and on the twelfth day of the same month, laid in the hands of Benjamin Stoddert.
    
    At May term, 1787, on the 9th day of the same month, a judgment or award for attachment was obtained against the said Benjamin Eyre, by Richard Smith, (who became a citizen and inhabitant of the State of Connecticut in 1782, was so at the time his debt was-contracted, and still is so; but has never resided in the State,) for 13,150l. 18s. 8d. current money; and on the same day an attachment issued, and was, on the same 9th of May, laid in the hands of Uriah Forrest at Annapolis, and on the 9th of the same month, a duplicate was sent to Montgomery county, and on the 11th of the same month, was laid in the hands of Benjamin Stoddert.
    
    At Montgomery county, August Court, 1787, Messrs.' Pennock, Nicholson and Skipwith, who were always citizens and residents of Virginia, obtained a judgment or award for an attachment against the said Benjamin Eyre, and an attachment was issued, returnable to November Comet, 1787, which was laid on part of the goods consigned to the said Forrest and Stoddert, amounting, per schedule, to —, which goods were part of those in their possession at the time the two first mentioned attachments >vere issued, and laid in their hands. Forrest and Stoddert proceeded in the sale of the goods consigned, and have sold and reimbursed themselves for advances and other claims which they had on Eyre, as far as they are informed, of engagements of their own on his or their account, for which they consider themselves liable; but there are engagements still out, for which they received no value, on which Mr. Eyre had put their names as eñdorsors, at a time he was acting as their attorney in England. Forrest and Stoddert have on hand goods to the amount of '679/. 8s. 2d. current money, part of the goods consigned to them by Mr. Eyre; they have in their hands 1,373/. 9s. &d. current money, received from the sales of part of the said goods, and they have due to them by mortgage, bonds, notes and accounts, taken in their names, and payable to them, outstanding debts to the amount of 3,256/. 4s. 8d. current money, due on the sales of a part of the same goods, subject to their con trol, but for which they are not' guarantied.
    
      It is admitted, that Wallace, Johnson and Muir, are entitled to the first trial and condemnation, if first issuing ■Jieir attachment entitle them to it, unless any thing herein ought to prevent It.
    It is submitted to the Court to decide, on this state of she case, by which of the attachments above mentioned, the money, goods and debts, as herein before described, are bound, or ought to he bound, and' for whose benefit, and to which of the plaintiffs, and to what amount, the said Forrest and Stoddert are answerable, as garnishees. Audit is agreed, that judgments in these suits shall be entered agreeably to such opinion of the Court, the plaintiff or plaintiffs obtaining a judgment or judgments, holding him or themselves liable to indemnify the defendants to the amount of such condemnation or condemnations, against the engagements herein before recited to have been made by Mr. Eyre on their account, or by them on his account, and to receive payment of such judgments, assignments of the goods aforesaid,, and the goods now remaining in their hands.
    
      J. T. Chase, for the plaintiff Smith.
    
    It appears from the statement of facts, that goods were consigned by Benjamin Eyre to Forrest and Stoddert, and that Smith the plaintiff, laid an attachment in their hands, for the sum of 13,150/. 16s. ad. Wallace 8? Co. have since attached the goods. They had the first judgment for attachment, but Smith's attachment was first laid.
    The question then is, has Smith a right to a judgment of condemnation for the value of the goods ?
    If goods are consigned to A., he is the owner, and he must bring the action against the owner of the ship, if the goods are lost. And if a bill of fading is general to A,, and the invoice shows they are on account of B-.t 
      
      A. ought to bring the action, for the property is in him, 1 Raym. 271. The consignee of a bill of lading, has such a property that he may assign it over. Per Holt, 1 Raym. 271. The consignment of the goods vests the property in the consignee, and the invoice signifies little. 3 Salk. 290. 12 Mod. 156. If goods are consigned to A. on account of B., A. is only a factor, and the property is in B. 3 Salk. 290. 12 Mod. 156.
    If two fieri facias’s are delivered to the sheriff on the same day, he ought to execute that first which was first delivered. 1 Raym. 252. And if the sheriff takes and sells goods on the election last delivered, (whether delivered on the same or a subsequent day,) the property of, the goods is bound by the sale, and they cannot be seized by virtue of the execution first delivered but the party may have his remedy against the sheriff. 1 Raym. 252. 2 Bac. Abr. 356. Carth. 419, 420. The teste of the writ binds against all sales and acts of the party himself. Per Holt, 1 Raym. 252.
    By stat, 29 Car. II. c. 3. no writ of fieri facias, or Other writ of execution, shall bind the property of goods, but from the lime the writ shall be delivered to the sheriff to be executed, and the sheriff shall, upon the receipt of such writ, endorse the day on which he received it. For the exposition of this statute, see 2 Bac. Abr. 365.
    If a factor sells goods, receives the money, and invests that money in other goods, and the money remains unpaid, those goods shall be taken, as part of the merchant’s estate. 1 Salk. 160.
    ■ This is clear, that if there is an authority never so general, by endorsement upon a bill of lading, without disclosing that the endorsee is factor, the owner (as between . him, and the factor) retains a lien till delivery of the goods, and before they are actually sold and turned into money, 4 Burr. 2050, 1 Bl. Rep. 628. 5 Burr. 2680.
    
      if a factor sells goods for a principal, he may bring an action in his own name, or in the name of his principal, against the vendee, and the factor may make himself a witness. 1 Atk. 248. If goods are delivered to a carrier, hoyman, or master of a ship, to be delivered to A., and the goods are lost by the carrier, &c. the consignee only can bring the action, which shows the property to be in him. 1 Atk. 248. The consignor may countermand the delivery of goods on the way, or in transitu, if he hears his consignee is likely to become a bankrupt. 1 Atk. 248, 249. Cites also, 1 Bac. Abr. 690, 1 Raym. 637.
    
    Cooke, for Wallace and others.
    
    An attachment cannot be pleaded, unless it has been executed. 1 Bac. Abr. 692. Act 1715, c. 40. s. 7. The property is not altered, until a judgment of condemnation takes place. 1 Salk. 280. No attachment can be laid in the hands of a garnishee, of goods of which he has no property at the time. 1 Com. Dig. 425.
    
    An attachment is not an execution. There must be a judgment of condemnation, and an execution issues on the judgment of condemnation. An execution at common law binds, from the teste of the writ. 1 Raym, 637. 271. 1 Bac. Abr. 692. Priv. London, 257.
    As to property vesting in the consignee by consignment, see 12 Mod. 156. S Salk. 290.
   The Court

were of opinion, that Richard Smith had priority of right, his attachment, though issued last, having been first delivered to the sheriff, and laid in the hands of the garnishees. That judgments of nonsuit be entered in the cases wherein Wallace, Johnson, and Muir, are plaintiffs, and wherein William Pennock and others, are plaintiffs. But in the case wherein Richard Smith is plaintiff, that judgment of condemnation be entered for 5,309/. 2$. 4d. current money, and costs,,

The Court

were also of opinion, that it was not necessary for Smith the plaintiff, to give security to the defendants upon the judgment of condemnation, required by the act of 1715, c. 40. s. 3. a year and a day having elapsed and expired, since the granting of the attachment,

On appeal, the Court of Appeals, at June ternij 1792, affirmed the judgment of the General Court,  