
    Richard S. Hartshorne and Holmes Van Mater ads. Peter Johnson, John Van Pelt, and Matthias Van Brackle.
    1. A common carrier lias a lien on goods in his possession, only for the transportation of those particular goods, and not for the transportation of other goods also, which do not remain m his possession.
    2. Whenever a matter comes to lie tried m a collateral way, the judgment of a court having competent jurisdiction will he received as conclusive ■evidence of the matter so determined, and the validity of the judgment will not be questioned.
    This was an action of trespass on the case, brought by-Johnson, Yan Pelt, and Yan Brackle against Hartsliorne, .and Yan Mater, for sixty barrels of Hour, sold and delivered, and was tried before his Honor Justice Ford, at the Monmouth circuit, and a verdict found for the plaintiffs, for $621. A rule to set this verdict aside, and grant a new-trial, had- been obtained at a former term, and was argued,, upon the following report of the case agreed on by the' counsel, viz: “ The plaintiffs, on the trial at the circuit, gave in evidence the record of an attachment, in the Supreme *Court, at the suit of the Commercial Bank of Penn-' .sylvania against the goods, &c., of James Kennedy, Robert Kennedy and John Kennedy, merchants in Pennsylvania, and judgment thereon in favor of the bank for $1605, and (among other creditors) in favor of John Van Pelt, for $ — , he being one of the auditors. The plaintiffs then called Thomas Vanderhoof, clerk of the plaintiffs, as auditors, in selling 134 barrels of flour under the attachment, the 9th of July, 1814, who swore, that all the flour'was sold at, auction, and 60 barrels struck off to the defendants for $419.10; that written conditions of sale were put up by the plaintiffs; that the flour was all rolled out of the defendant’s store-house, and then set up at auction, and sold and delivered to purchasers, but no money paid at the time of delivery. The plaintiffs then called Nicholas N. Disborough, who swore he was the crier; that all the flour was first rolled out of the defendants’ store-house for the purpose of being sold; that 60 barrels thereof was struck off to the defendants; that the auditors sold the right of the defendants in attachment to-the flour, and that he saw the articles of sale posted up similar to a copy produced. The plaintiffs rested their evidence. The counsel for defendants then moved for a non-suit, on three grounds — 1. That the bank of Pennsylvania is not an institution recognized by the laws of this state, nor competent to sue as plaintiff in attachment. 2. That the report of auditors, not being made to the second term, was void,.' and further time could not be given by the court. 3. That the appointment of John Van Pelt was void, for, being a. creditor, he could not be an auditor. The judge refused a •non-suit, in order to have these matters settled at bar, but a bill of exceptions was prayed by the counsel for defend■ants, and with the assent of the court and plaintiffs, was to be drawn up after the trial. The plaintiffs then called 'Thomas Vanderhoof, who swore, that Van Brackle demanded payment, on the sale, for the flour from Hartsliorne, who •asked Van Brackle if he was afraid to trust him? that Van Brackle answered no; and Hartsliorne said the defendants would not pay at that time. The witness further testified to the flour being all rolled out of the store-house before the auction commenced, and that he did not hear the -defendants advance any claim to the flour, either before or at the time of the sale. And Nicholas N. Disborougli being further examined, said, that he did not hear the defendants *make any claim to the flour, but that they purchased ■as other people did, as far as he know.
    
      “ The counsel for the defendants offered to give in evidence to the jury, and to prove, the following statement: That in the spring and summer of 1814, the defendants wore common carriers, engaged in transporting goods from the Delaware to Middletown Point, and, as such, carted for the Kennedies, mentioned in the proceedings, 450 barrels of flour, to be forwarded to New York to the order of the Kennedies; that the carriage hire was $1.25 per barrel, between those points, and amounted to $562.50, and 'was not paid, nor any part of it; that part of the flour had been sent to New York, but that 134 barrels, the part attached, remained in the store-house of the defendants, at Middle-town Point, and was there attached, as by the proceedings, &c.; that when the sheriff came to serve the attachment, he was accompanied by two men, called Atheron and Kuyser, •creditors of the Kennedies, who asserted that they were agents of the plaintiffs in attachment; that the defendants then informed the sheriff, and the said Atheron and Kuyser, that they claimed their pay for the cartage, and would not give up the said flour until they were paid, upon which the •said Atheron and Kuyser said, that the defendants should •be paid their charges for eartage; whereupon the defendants made no further opposition, and the property was-attached by the sheriff, but left still in their store-house,, ■where the property was stored, and the defendants rendered' a charge against the sheriff for such subsequent storage;: that, when the auditors were about to proceed to their sale, the defendants informed them that they insisted on their freight, and must be paid out of the amount of sales; they said they'would not open their store-house doors until this-demand -was satisfied; upon which the sheriff, who was present, said that their demand should be satisfied; upon which the doors were opened, and the flour rolled out; the auditors were present at the conversation, and neither assented nor objected to the arrangement; that the sales then went on, and the defendants purchased 60 barrels for $419, leaving a balance due for freight of $143, after'deducting the-amount of the purchase. The plaintiffs objected to the testimony, and it was overruled by the court, for the purpose-.of being more maturely considered at bar, upon the verdict which must be found for the plaintiffs. The plaintiffs also offered in **evidence, a bill or account for the storage of the flour, made out by the defendants against the sheriff of Monmouth, dated 9th of July, 1814, (pro ut the same)The jury found a verdict for the plaintiffs $621.84|- cents.
    
      R. Stockton <S¡ Southard,
    
    in support of the rule for a new trial, contended — 1. That the judge at the circuit erred in. rejecting the testimony offered by the defendants to prove-that they were common carriers, and had transported the-flour from the-JDelaware to Middletown Point for the Kennedies, and all the subsequent proceedings relating thereto,, as contained in- the report of the case. ■ They said it was competent evidence, either to defeat the plaintiff’s action altogether, or to lessen the damages,, for if the defendants had a lieu upon the flour remaining in their possession for the carriage of the whole 450 barrels, as they contendedi they had, their lien would am&unt to more- than the plaintiff’s demand. Upon this point they cited 2 Ld. Ray. 752. 2 Term Rep. 31. 1 Com. Dig. 299. 4 Bur. 2321. 3 Bos. & Pul. 144. 6 East 622. But if they had not a lien for the carriage of the whole, they had a lien for the carriage of the 134 barrels, and that the evidence, as to that part, ought to have been admitted; and the only question upon this part of the case which could arise, was,
    2. Whether the defendants could set up this lien against the plaintiff’s auditors in attachment. They said, as to this point, that the attachment changed no existing liens or obligations ; that the plaintiff in attachment was only a naked assignee, and took the property subject to all the liens, and every claim, legal or equitable, which existed in the hands of the original party; that this doctrine had been laid down with regard to bankrupts, in England, and would apply with much greater force to the attachment act in this country, and cited 1 Atk. 162. 2 Term Rep. 490. 4 Bur. Rep. 2218.
    3. They contended that all the proceedings in the attachment against the Kennedies, at the suit of the Commercial Bank of Pennsylvania, subsequent to the appointment of auditors, wore void; because John Van Pelt, who was a creditor of the defendants in attachment, had been appointed an auditor in the attachment, and a report for a considerable amount had been made in his favor, and judgment rendered upon this report.
    ’"Auditors, they said, exercise a judicial power, and as no man could be a judge in his own cause, a court could not appoint him to audit and pass upon his own claim. An act of the legislature, making a man judge in his own cause was void, and much more was a rule of court which had that effect; and though two of the auditors were competent persons, yet that would not satisfy the law. Rev. Laws, see. 8. 2 South. 829. Coxes Rep. 128.
    
      'Wall, contra
    1. That the appointment of Van Pelt as an auditor did not render the judgment and proceedings in .-attachment void; that at_ most it renders the judgment 'voidable- only and if voidable, it could be avoided only by "writ of error, and could not be called in question by a third person, when offered in evidence collaterally in a cause. 7 Serg. & Raw. 271. 4 Mass. Rep. 303. 13 John. 154. Phil. Ev. 280. 11 Mass. 228. Com. Dig. title Er. D. 636. 2 Salk. 274.
    2. That the doctrine of lien was founded altogether upon the possession of the property, and could not exist without it; and that the defendants had waived- their right of lien when they came forward as purchasers, and entered into a new contract. 1 East 4. 1 Atk. 234. 1 Str. 586. 8 Mod. 172. Ellis on Debtor and Creditor 132. 16 Ves. 280. 6 Bac. 697. 6 East. 525. 7 Ib. 224.
   Per Curiam.

We are of opinion that there must be a new trial. -'The defendants had a right to retain in their hands sufficient to pay -themselves for the transportation of the one hundred and thirty-four barrels, but for no inore. The possession, as to this, was never given up, or the lien destroyed. As to the validity of the judgment in attachment, we think we cannot look into it in this collateral way. We do not, however, consider this as coming in question here.

New trial granted.  