
    
      C. T. Mitchell & Co. vs. Andrew E. Byrne.
    
    Plaintiffs’ in Charleston at the request of H. B. in Liverpool, purchased, on commission, cotton for H. B. and shipped it to him, and for the cost and expenses drew on him at sixty days sight: II. B. accepted the hills hut failed to pay them at maturity, and they wore protested for non-payment: E. M. then paid tho hills, supra protest, for the honor of plaintiffs, charged them in account -with the amount, and remittod them the hills by letter, looking to them, solely, for indemnity: — TIeld, that, as soon as the hills were mailed to plaintiffs, they became the owners thereof, with immediate right of action against H. B. ,* and that they could sustain their action either upon the common count for money paid, or upon counts upon tho hills.
    It is familiar law, that if one sells goods, on an agreement to accept payment in a bill, or note, payable at a future day, if the hill, or note, is not paid at maturity, he may sue for the price of the goods: nor is it necessary that ho should have possession of the hill or note at the commencement of tho action; it is enough if he produces it at tho trial.
    The holder of a bill, who paid it supra protest for the honor of the drawer, may at once, and before payment, surrender it to the drawer and transfer him the title.
    It is not necessary that plaintiff should have possession of the hill at tho timo he commences suit thereon; it is enough that ho is the ownor.
    H. B. of Liverpool consigned to 0. M. of Charleston a ship and cargo: the ship arrived at Charleston, C. M. entered her at the Custom House, and had discharged the greater part of her cargo, when the ship and cargo were attached as the property of H. B:— Held, that C. hi., ho being a creditor of H. B., had such possession of the ship and cargo as gave him the right to claim as creditor in possession under the attachment Act.
    Whenever the moneys, goods, &c. are in the “hands, possession, custody, power, or control ” of tho garnishee, ho may retain for his debt.
    
      Before Withers, J.,'at Charleion Spring Term, 1852.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was an issue under an order made by Judge Waudlaw, at a previous Term, in the terms following :
    “ ‘ A. E. Byrne & Co. 1 Attachment: vs. > In this case, a copy writ of attach-H. G. Booth. ) ment having been served on C. T.
    Mitchell & Co., as garnishees, and the said C. T. Mitchell & Co. claiming the property attached as creditors in possession, and the said plaintiffs having filed their suggestion denying the same: It is ordered, on motion of J. M. Walker, plaintiffs’ attorney, that an issue he made up to try the question, whether the said C. T. Mitchell & Company were creditors in possession of the ship iEolus and other funds, the property of the said H. G. Booth, on the 5th of December, 1850 ; or were entitled, on that day, to have their claim first allowed hy virtue of any right or lien under the attachment law — in which issue the said C. T. Mitchell & Co. shall be plaintiffs, and the said A. E. Byrne defendant.’
    “ The ship iEolus had come consigned to the plaintiffs hy Henry.Gore Booth, and arrived at the port of Charleston about the 25th November, 1850, with salt. The plaintiffs entered the vessel at the Custom House, andón the 27th or28th November, 1850, began to land the salt. The greater part had been discharged on the 5th December following, on which day an attachment was levied by the sheriff on ship and cargo, at the instance of Andrew E. Byrne & Company, who (it appeared) was Andrew E. Byrne, trading under that style. An officer of the sheriff was put on board, and that species of custody proving expensive and inconvenient, it was agreed on the 9th December, in writing, between the attorney of Byrne and the plaintiffs, that the latter should ‘ undertake the charge of iEolus and cargo without prejudice to the attachment.’ On that day the plaintiffs, Mitchell & Co., had made a return as garnishees under the writ of attachment, and had therein claimed as creditors in possession.
    
      “ A clerk of the plaintiffs testified that there had been dealings between Booth and them before, of a character similar to that now in question: the general character of the business was, that Booth consigned a ship to them, with inward cargo; they sold the cargo, and usually bought cotton for him on commission, and shipped it to him. He said they took possession of the iEolus when she arrived, (meaning, no doubt, that sort of possession which a consignee of a vessel from a foreign port usually does.) He mentioned one ship, meaning, I think, the Lady Sayle, that had previously come from Booth to Mitchell & Co.; and I do not know whether, in fact, any other had preceded the iEolus. Before the arrival of this last vessel, it was in evidence that Booth had directed the plaintiffs to purchase for him 3,000 bales of cotton. They were advised by him, by letter of 7th March, 1850, as follows:
    “ ‘ Relative to the money transactions for what cotton you may send home to me, you will either draw on me, as formerly, or on Byrne, but I should prefer on myself. But you will please domicile them at No. 4 Runford Place, Liverpool, A. E. Byrne & Co.’s office.’
    “There was some sort of connexion and understanding between Booth and Byrne in relation to this transaction, and the plaintiffs offered certain letters from Byrne, addressed to them, dated respectively 10th August, 25th September, 27th September, and 27th November, all in 1S50. My memoranda may not exhibit them to the plaintiffs’ satisfaction; if so, let them be adduced to the Court of Appeals.
    “ On the 10th August, Byrne told the plaintiffs, that Booth had informed him that the Lady Sayle had not reached Charleston. He said : ‘We commend his order for 3,000 bales. You may value on him or ourselves for the cost.’ That of 25th September introduced the captain of the iEolus to the plaintiffs, and said, ‘ Booth will instruct you about the ship — we suggest engagement of cargo, &c.’
    “ 27th Sept. ‘.¿Solus went to sea to your address, &c. You have enclosed, invoice and bill of lading for salt. You will apply the proceeds disbursing the ship.’
    “27th Nov. ‘Booth’s acceptances for drafts for 506 bales of cotton were dishonored at maturity, and were taken by Moon for your honor. Capt. Tulloch’s draft will go back ; we imagine you can easily pay this by taking your security upon the face of the homeward bills of lading ; and in like manner for any difference that may exist between the proceeds of her salt, and her disbursements this voyage.’
    “ The plaintiffs had proceeded to execute the order for the purchase of 3000 bales of cotton, and completed it by the purchase of 506 bales on the 29th August, 1850, and had invoiced that parcel to New-York Sept. 3,1850, to be thence transhipped to Booth, in the usual course. For this parcel of 506 bales there had been paid by the plaintiffs here $21,71178, besides charges of $803 14, including commissions, insurance, and shipping expenses.
    
      “ For this aggregate bills had been drawn on Booth, at 60 days sight, and accepted, as follows :
    1. 4th Sept. 1850, for £3,000, accepted,23d Sept., due 25th Nov.
    2. 7th. “ “ « 1,000, “ 23d “ “ 25th “
    3. 7th “ “ “ 63010s. “ 23d “ • “ 25th “
    
      “ 4. Robt. Tulloch, Capt. of Lady Sayle, had drawn on Booth in favor of plaintiffs for £191 Is. on the 23d August, 1850, at 60 days sight, accepted by him, 30th Sept., 1850, in which he was directed, ‘ charge same to Lady Sayle for disbursement on her account.’
    
      “ These four bills were protested for non-payment, and were paid in Liverpool by Edwd. Moon, for the honor of these plaintiffs ; that for £630 10s. on 27th November, 1850; that for £1,000 on the 28th November, 1850, on the same day also that for £3,000; and that for £191 Is. on the 4th December, 1850. Mr. Moon said, by deposition, that the plaintiffs were charged at the several dates of payment, and that he remitted the three first drafts above by letter to the plaintiffs, on the 29th November, 1850; and the fourth draft, by Tulloch, by letter of 6th December, 1850, whereby he informed the plaintiffs of his payment for their honor, and claimed reimbursement by remittance. He apprised them that Booth was probably an utterly ruined man, and asked the return of the three larger drafts, in order to pursue Booth. He said he never before had any account with plaintiffs, but charged them with his payments, and looked solely to them for indemnity; that he had been repaid by them, and never met with a prompter return. It' appeared, that the plaintiffs had paid 9£ per cent, exchange to reimburse Moore. The outlay for the 506 bales of cotton, expenses, damages, and re-exchange, constituted the plaintiffs’ demand.
    
      “ It appeared for defendant, that the sheriff levied his attachment on the RSolus at a wharf in Charleston, upon the 5th December, 1850, serving copies on plaintiffs, and on the captain of the vessel; that a deputy retained possession several days, until released as before stated; that the deputy heard no objection to his right to hold her; that the captain was on board, and a discharge of cargo was going on; some question was made of the plaintiffs’ right to unload the vessel; that the sheriff took possession again when she was ordered to be sold by Judge FROST, and received the proceeds.
    “ Upon’ the case thus set forth, arose the questions fully and learnedly debated, to wit:
    “ 1. Were C. T. Mitchell & Co., factors, having, as such, the right of lien pertaining, by the law commercial, to such persons?
    “ 2. If so, was a specific lien ,on the ¿Bolus necessary to support a lien for a general balance, owing by her owner ; and had the plaintiffs any such specific lien ?
    “ 3. Had the plaintiffs, being consignees of the vessel, a possession such as is the indispensable basis of any lien, by the law commercial ?
    “ 4. Had they such possession as, under our attachment law, enabled them to maintain a prior right to vessel and cargo, as creditors in possession ?
    
      “5. Was their demand in such condition — -the protested bills drawn on Booth not having reached them on the day of levying the attachment, 5th Dec. 1850 — as made them creditors in possession under the attachment law, or the law commercial ?
    
      “ 1. I thought, and held, that plaintiffs were that species of factors called by Judge Story, £ Commission Merchants,’ or‘Consignees.’ (Sec. 33 — Agency.) That though a factor was formerly defined to be an agent to sell, on commission or other compensation, that at this day it was not doubtful that he might also have that character in buying — for a principal.
    “ 2. Though I observed, that the citations of law on behalf of defendant, seemed to warrant the idea, that a lien for a general balance appeared to vest on a specific lien for work, labor, or expenditure, for or on account of the particular property, as in this case the ¿Bolus, yet I was not clear on that point, and it was plausible to argue that the plaintiffs had such specific lien in this instance : at least they appeared to have rendered services, and were rendering them, in regard to that vessel and cargo, by authority of the owner, when the attachment of defendant was interposed; and it occurs to me now, that if that obstacle had wrongfully interfered with the right of specific lien that would rightfully have accrued, the wrong doer should not thereby derive advantage.
    
      “ With regard to the other three questions, I expressed an opinion in behalf of plaintiffs, thinking it reinforced by the cases of Schepler vs. Garriscan óp Carpioin, 2 Bay, 224, and The Bank vs. Levy, 1 McM. 431.
    “The plaintiffs had a verdict for $23,784 50, and interest from December 5th, 1850.”
    The defendant appealed, and now moved this Court to set aside the verdict on the grounds :
    1. Because his Honor charged that the plaintiffs could bring an action for the price of the cotton shipped to H. G. Booth, the absent debtor, as soon as the bills of exchange drawn for the price were dishonored, and before they had taken them up.
    2. Because he charged that the plaintiffs could bring an action for the price of the cotton, on the 5th December, 1850, although at that time the said bills were in the hands of a third party.
    3. Because he charged that a liability to pay those bills constituted a lien on the ship.
    4. Because he charged that the plaintiffs had a right to possession of the ship, in the character of factor, whereas it is contended that as to the ship they were not factors.
    5. Because while he charged that no general lien on the ship can exist without a particular lien on the ship, he also charged that the plaintiffs, who had no particular lien, had a general lien on the ship.
    6. Because he ought to have charged that the plaintiffs, who had no particular lien on the ship, had no general lien.
    7. Because he ought to have charged that a general balance for factorage account, does not constitute a lien on ship.
    8. Because he charged that the plaintiffs, who had no particular lien, had constructive possession and qualified property in the ship.
    9. Because he charged that the plaintiffs to whom the vessel was consigned by a mere letter of address, had by virtue thereof a constructive possession and qualified property in the ship :— Whereas he ought to have charged that a consignee cannot acquire qualified property and constructive possession except by agreement in writing, expressly made for that purpose, and upon sufficient consideration.
    10. Because the actual possession of every ship in a foreign port, unless otherwise agreed upon in writing, is in the owner of the ship and his agents the master and crew, and not in the consignee.
    11. Because without actual possession, a factor has no lien for his general balance.
    
      J. M. Walker, for the appellant.
    Byrne being the first attaching creditor, his lien must prevail unless Mitchell & Co. can show a better and prior lien. The questions are, first, can Mitchell & Co. claim as creditors in possession, under the attachment Act? and, secondly, can they claim by virtue of any lien given by the law commercial ? Unless Mitchell &. Co. were creditors of Booth on the 5th of December, 1850, and their debt was then due — that being the day on which the attachment was served — they cannot claim as creditors under the attachment Act; Walker &f Bradford vs. Roberts, 4 Rich. 561. Were they then creditors of Booth ? That depends upon the question, whether they had expended money for him ? They had not. There is no proof that they paid money for the cotton, and then drew bills to reimburse themselves. They must be taken to have done what is usual on such occasions, that is, they drew bills to raise money to pay for the cotton. The money, then, was expended by Mitchell <fc Co. when they took up the bills, and not before. Cited Chit, on Con. 466 ; Pownal vs. Farrand, 13 Eng. C. L. R. 230; Bail, on Bills, 392; Thompson vs. Morgan, 3 Camp. 101; Story on Bills, § 113, 117, 119, 121; Mills vs. Starr, 2 Bail. 360; Bail, on Bills, 339 ; Merton vs. 
      Winnington, 1 Esp. R. 112 ; Chit, on Bills, 342; Bail, on Bills, 341, and contended that they had no right of action on the hills when the attachment was served.' Their right of action accrued afterwards when they expended money for Booth. On the question whether they had a lien by the law commercial, he cited Story on Agency, § 32,33,34, 354, 365, 376, 362 ; 15 Mass. 414, 490 ; 14 Pick. 322; 21 Pick. 399 ; Cross on Lien, 29, 315, 34 ; 3 T. R. 118; 6T.R. 258; 6 Pick. 460,120; 2 Des. 285 ; Abbott on Ship. 185; 9 East, 426; 1 Hill, 158 ; 14 Johns. R. 103; 2 East, 252 ; 19 Ves. 474 ; 1 Mason, 139 ; 2 lb. 324; 1 Mete. 166; 2 East, 229 ; Cross on Lien, 24, 204 ; 1 Conk. 197; Abbott on Ship. 121, 344; Cross on Lien, 40 et seq.
    Porter, contra.
    Mitchell & Co. as factors of Booth, and being in possession, had a lien on the ship and cargo. To show that they were foreign factors, and as such entitled to a lien, he cited Story on Agency, § 33, 376 : 1 Liverrn. 68; Cross on Lien, 246 ch. 16; Kruger vs. Wilcox, Amb. 252; Green vs. Farmer, Bur. 2216 ; 5 B. & Aid. 27. Then as to the possession. On this point he cited Story on Agency, § 361 ; 2nBay, 224. But Mitchell & Co. were creditors of Booth and as such had the right to retain under the Attachment Act, 3 Stat. 617, sections 1 and 6. Under the first section if plaintiffs had a lien they are protected in their rights: under the sixth section, it is only necessary for them to show (being in possession) that Booth was indebted to them. Contended that they were creditors capable of suing on the 5th December, 1850. On the 29th August, 1850, the cotton was bought and shortly afterwards shipped. It was paid for by Mitchell <fc Co. who drew for reimbursement. It is a mistake to suppose that the cotton was paid for with the hills. But this is immaterial. When the bills were dishonored and taken up by Moon, he did not, as he had the right, hold the bills to secure himself, but he charged Mitchell & Co. with the amount, and sent them the hills, thereby at once investing them with the title, with right of action against the acceptor. Cited 1 Ch. PL 347; Burden vs. ELalton, 15 Eng. C. L. R. 37; Hunt vs. Alewyn, 17 Eng. Q, L. R. 187. He also cited Russ, on Factors, 214, 216; Stevenson vs. BlacklocJc, 1 M. & S. 535.
    
      Memminger, in reply.
    Are the plaintiffs, Mitchell &. Co., entitled to priority of pa3>ment under the attachment Act ? To entitle them to this right, two things must concur ; first, they must be creditors, with right of action at the time, of the absent debtor ; and, secondly, they must be in possession of the things attached. Were Mitchell & Go. creditors, with right to sue, on December 5, 1850 ? If not, they cannot claim, under the 6th sect, of the Attachment Act, as creditors in possession. Walker dp Bradford vs. Roberts, 4 Rich. 561. Mitchell & Co. were the agents and factors of Booth and bound to follow his instructions. His instructions were to buy cotton, and pay for it with hills to be drawn on him. There can he no doubt that it was so paid for. The cotton was not first bought with the money of Mitchell & Co., who, then, reimbursed themselves by selling the hills drawn on Booth; but the money, with which the cotton was paid for, was raised by sale of the bills. Independently, therefore, of the bills, Mitchell & Co. have shown no cause of action against Booth. Then as to their right of action on the bills. When Moon paid the bills, he might have done so, either as the agent of Mitchell & Co., or for their honor. If he had paid as agent, then, they would have had a right of action from the time of the payment. But he paid for the honor of Mitchell & Co., and became himself the holder of the bills — the indorsee — and no right of action accrued to them till they paid him. Cited Bail, on Bills, 339 ; Biles on Bills, 200. Then as to the possession. From the words of the attachment Act, it would seem, that there must be an actual possession — the property must be in the hands of the garnishee. Commented on Schepler vs. Garriscan Sp Carpioin, 2 Bay, 224. The person in possession of the ship is the master. Story on- Agency, § 116. By the fact of consignment, the consignee has no possession of the ship. He is consignee of the cargo, and his possession is of that; but of the ship the master remains in possession. Mitchell & Co. were ship’s husbands, and as such they had not the possession. Cited Abbott on Ship. 106,108; Story on Agency § 35 ; 3 Kent, 156 ; 25 Eng. C. L. R. 161, 163 ; 15 Eng. C. L. R. 136. On the question, whether Mitchell & Co. had, as factors, a lien, which gave them a right to hold as against the attaching creditor, he cited Story on Agency, § 354, 361, 365; Paley on Agency, 136 ; Story on Con. § 513; 3 T. R. 118 ; 3 Eng. C. L. R. 343 ; 16 Eng. C. L. R. 420; Cross on Lien, 35.
   The opinion of the Court was delivered by

Frost, J.

The plaintiffs claim to retain the proceeds of the sale of the ship fiEolus and her cargo, as creditors in possession, under the attachment Act: or by lien for the general balance of their account against Henry Gore Booth.

The claim to retain, under the attachment Act, is resisted on two grounds: First, that the plaintiffs were not creditors of Booth, on the 5th December; because on that day, they had no actionable debt against him: And, second, that the plaintiffs had not such possession of the ship and cargo, as is required by the attachment Act, to constitute them creditors in possession.

The facts which affect the first question are, that before the 10th August, 1850, (the precise time does not appear,) Booth sent to the plaintiffs an order to purchase, on his account, three thousand bales of cotton: that the plaintiffs completed the execution of the order by the purchase of 506 bales, on the 29th August; which they shipped to Booth on the 3d September. On the 4th, 7th and 8th of September, they drew bills on Booth, which were payable the 25th November. These bills were accepted, but protested for non-payment; Booth having, before the maturity of the bills, become a bankrupt. On the 27th and 28th November, Edward Moon paid these drafts for the honor of the plaintiffs: charged the plaintiffs in account with the amount: and on the 29th November, by letter, remitted the drafts to them : and claimed reimbursement by remittance : which was promptly done. Moon deposed that he looked to the plaintiffs, solely, for indemnity.

The declaration contained the common count for money paid, and a count on the bills of exchange. The outlay for the 506 bales of cotton, expenses, damages and re-exchange, constituted the plaintiffs’ demand.

There can be no doubt that, on the 5th December, the plaintiffs had an actionable demand on both counts. There is no other evidence of any understanding between the parties, at what sight the plaintiffs were to draw against the shipment, than the acceptance by Booth of the bills drawn at 60 days ; which is sufficient proof of their agreement on that subject. The agreement that the plaintiffs should draw, at 60 days, was an extension of credit by them to Booth for the cost of the cotton. It is familiar law, that if one sells goods, on an agreement to accept payment in a bill or note, payable at a future day, after the expiration of that term of credit, if the bill or note is not given, or having been given, is not paid at maturity, the seller may sue for the price of the goods, in indebitatus assumpsit. Nor, if a bill or note was given, is it necessary that it should be in the possession of the plaintiff, at the time when the action is brought. If the bill or note was transferred and remained in the hands of a third person, at the time of trial, that would be a defence to the action : because the defendant might be called on to pay it: but if it is in the hands of the plaintiff, over-due, at the time of trial, that can never happen; Burden vs. Halton, 4 Bing. 454; 1 Chit. PI, 347.

The plaintiffs may also maintain the count on the bills. It cannot be denied that the holder of a bill, paid for the honor of the drawer, holds it as indorsee, with all the rights against the parties to the bill which an indorsement can confer. But there is nothing to prevent the holder surrendering the bill to the party, for whose honor it was paid, and relinquishing to him, all the holder’s rights in the instrument. This Moon did. After he took up the bills, he charged the plaintiffs in account and remitted the drafts to them, looking to them, solely, as he deposes, for indemnity. By the delivery of the bills to the plaintiffs, all remedies on them, except by the plaintiffs, were defeated ; for no person could sue on the bills who had not possession : and Moon could not recover possession of them, by an action of trover against the plaintiffs : because he had agreed to accept the personal liability of the plaintiffs for the payment: and, in execution of that agreement, had charged the plaintiffs in account with the amount of the bills, and had surrendered the bills to them. The plaintiffs’ title to the bills was complete when they were mailed to their address, by Moon : as much so as if Moon had delivered the bills to the plaintiffs’ agent for their use. It is not necessary that a bill should be in the possession of the plaintiff at the time the action is brought. It is sufficient that he has title to it, at that time, though it may be in the hands of a third person.

The next objection to the plaintiffs’ recovery is, that they had not such possession of the ship and cargo as may entitle them to retain the proceeds, as creditors in possession.

By the sixth section of the attachment Act, (3 Stat. 619,) it is provided, that if the absent debtor, whose money, &c. “ shall be attached in the hands of any person, be indebted to the person in whose hands, the moneys,” &c. are attached, such person shall be allowed first to retain his debt. From the use of these terms, (“ in his hands,”) it is argued that the garnishee can retain for his debt only moneys, &c. which may be “ in his hands.”

It will be observed that, in the first section, the sheriff is commanded to attach the moneys, &c., “in the hands” of any person ; and shall summon the person in whose hands ” the moneys, <fcc., may be, to appear and discover what money he has “in his hands, possession or power,” belonging to the absent debtor : and if the person shall refuse to discover what moneys, &c. of the absent debtor, he has in his “possession or power,’’ (omitting “ hands,”) he shall be condemned for default. But if' the person shall appear and claim the said goods,” &c. he shall be put to plead it.

Now the goods attached “in the hands” of any person, and from which he may retain his debt, must be the same goods which the sheriff is commanded to attach “in the hands” of such person. If the garnishee can only retain for his debt goods attached “ in his hands,” or manual, or actual possession, the sheriff can only attach such goods. By such literal construction the benefits of the attachment Act must be greatly abridged. It is plain, however, from the reading of the statute, that construction cannot be maintained. It cannot be supposed that the garnishee is required to discover moneys, &c., which are not attached and demanded for the satisfaction of the plaintiffs’ claim. The garnishee is required to discover what goods of the absent debtor he has, “ in his hands, possession or powerand if the garnishee shall appear and claim the “said” moneys, <fcc., and his claim is denied by the plaintiff, the garnishee shall be put to plead it. “ The said moneys,” «fee. must mean those in “ his possession or power.” An adversary claim could not arise between the garnishee and attaching creditor respecting a subject not attached. Whatever, therefore, is attached, may be retained by the garnishee, as creditor in possession.

The operation of the Act of 1744 is extended by the Act of 1844 (11 Stat. 290 ;) which provides that the person, in whose hands, possession, custody, power, or control,” any property of the absent debtor may be attached, shall give bond to the sheriff, conditioned, among other things, to surrender the property “ thus attached,” as required by law.

It is apparent then, that the garnishee may retain for his debt all moneys,” &c. which have been attached or are liable to attachment: and that all moneys are liable to attachment which may be in his “ hands, possession, custody, power or control.”

Was the ship iEolus and cargo so situated with respect to the plaintiffs ?

The facts which bear on this question are, that the iEolus arrived in the port of Charleston, the 25th November, 1850, laden with salt and consigned to the plaintiffs by Booth, of Liverpool. The plaintiffs took possession of the vessel when it arrived, entered it at the Custom House, and began to unlade the salt, the greater part of which was discharged on the 5th December, when the attachment was served. There had, before, been dealings of the like kind, between Booth and the plaintiffs. They were instructed by letter (25th August)<! Booth will instruct you about the ship: we suggest engagement of cargo.” By letter of the 27th, they were further advised, the iEolus went to sea, to your address, &c.; you have, enclosed, invoice and bill of lading of the salt. You will apply the proceeds, disbursing the ship.”

On the question of possession of the ship and cargo by the plaintiffs, the case may be rested on the authority of Schepler vs. Garriscan & Carpioin, 2 Bay, 124. In that case, it was decided, that the consignee of a ship and cargo has a qualified property and constructive possession, the moment she comes into port: so that the sheriff shall not, under a writ of attachment, take the ship from the possession of the consignee: and that the consignee has a lien on them for the balance of his general account against the owner.

The books are barren of any information respecting the interest, power, and possession, which may be acquired in a ship by its consignment to an agent, abroad, for affreightment. No authority from the reports nor elementary 'treatises, directly on the question, can be ‘found; and we must be guided by analogies.

Chattels, from their moveable and transferable character, may be the subject of various interests and agencies.' No action can be maintained respecting a chattel, without title or possession. To protect the various interests, and serve the various agencies, of which chattels may be the subject, the law creates as many and various qualified possessions. On the execution of an order, by a factor in Liverpool, for the purchase of goods for a merchant in Columbia, how many are the agencies and interests which intervene between the sale by the vendor and the receipt of the goods by the purchaser. The agency and interest of the Liverpool factor, of the warehouseman, of the owners and master of the ship in which the goods are laden, of the consignee and warehouseman in Charleston, of the carrier to Columbia, and the right of the vendor to stop the goods in transitu — to all these interests and agencies the law attributes a possession, commensurate with the interest and the purposes of the agency.

A ship, like any other chattel, may be the subject of an absolute, constructive and special property, and of an exclusive and qualified possession. A special interest and qualified possession is created, by operation of law, when necessary or convenient for the purposes of its employment. When in the home port and dismantled, a ship is in the exclusive possession of the owner. When it is equipped and provided with a master and crew, the master acquires a limited possession which is necessary to serve the' purposes of his agency. When the ship sails on her voyage, his agency is enlarged and his' possession is extended. He then becomes the general agent of the owners for the employment of the ship. In a foreign port, he may contract for freight and repairs and supplies: and in case of disaster, may sell the ship. But this agency, like every other, may be restricted by the owner; and the possession, which attended the master’s agency, for the execution of the power revoked, may, together with the revoked power, be transferred to another. If the ship is consigned to a foreign agent for sale, the consignee must have possession for the purpose of delivery to the purchaser. If consigned for employment by charter party, the consignee must have a possession to transfer to the charterer. And if the ship is consigned for general freight, the agency of the master, for that purpose, is revoked and transferred to the consignee. The consignee must then have such possession of the ship as may be necessary, or convenient to the lading of the cargo. The ship must be subject to his order respecting the time and place of lading and the time of sailing. A ship, then, consigned to a foreign agent, to be employed in general freight, is in the possession, power, or control,” of the consignee.

It does not conflict with this conclusion, that the master may also retain possession and authority for all other purposes, necessary to the employment of the ship. He must order repairs, equipments and supplies, engage seamen, and protect the ship from damage, trespass or intrusion. Nor is this conclusion weakened by the fact, that the master may hypothecate the ship ; while the consignee cannot. The master cannot hypothecate the ship without the consent of the consignee : for if the consignee will make the necessary advances, the master is not authorized to do it: that authority being given to him, only in case the necessary funds cannot otherwise be procured. The consignee has, of course, no authority to hypothecate the ship : for he is employed to obviate the necessity of any such resort to raise money. Nor does the argument avail anything that the title to a ship can be transferred only by bill of sale : for the question does not concern the title, but the possession.

The plaintiffs and Byrne are both creditors of Booth; and the contest between them is, which shall apply the proceeds of the ship and cargo, which have been sold, in payment of their debt. The sixth section of the attachment Act, puts the garnishee on the same footing with an attaching creditor. It provides that if.the absent debtor is indebted to the person, in whose hands the money, &c. has been attached, he shall be first allowed his debt, he forthwith filing his declaration and, in every other respect, proceeding as if he were plaintiff in the attachment.” This provision confirms the construction of the Act which has been adopted, that whatever may be attached may be retained by the garnishee in payment of his debt. Great injustice would be done to the plaintiffs and every consignee, if any other construction were adopted. The consignee cannot have served on himself his own writ of attachment, and make himself garnishee to his action against the absent debtor. If the consignee cannot claim, as creditor in possession, what money, &c., may be attached in his hands, he must, with respect to such money, &c., be postponed to all other creditors; and the moneys, goods, &c., on the faith of the possession of which he gave credit to the absent debtor, would he wrested from him in favor of other creditors, who may have contracted their debts, on the faith of other moneys, &c., or incautiously, on the general credit of the absent debtor. It was to prevent any such wrong that the Act places the garnishee on the footing of an attaching creditor. The service of Byrne’s writ of attachment on the plaintiffs would be nugatory, if the ship and cargo were not in the plaintiffs’ “ possession, power, or control.” By making the plaintiffs garnishees, Byrne has affirmed their possession, power and control. The master, whose possession, it is contended, excluded the plaintiffs, did not contest their possession.

The ship was sold under an arrangement between the plaintiffs and the attaching creditors of Booth : and the proceeds of the sale were paid to the plaintiffs. The attachment Act has placed the plaintiffs in the position of first attaching creditors on all moneys, &c., in their possession.

There can be no doubt that the salt was in the legal possession of the plaintiffs. It was subject to their order, on board the ship, as completely as if it had been in a warehouse. The hill of lading gave them the legal title : and they might have maintained trover against any person who tortiously withheld the possession.

The right of the plaintiffs to retain the ship and cargo as creditors in possession, under the attachment Act, being affirmed, it is unnecessary to express any opinion respecting their right to retain under a lien for the balance of their account against Booth.

The motion is dismissed.

O’Neall, Withe.es and Whitnee, JJ., concurred.

Waedlaw and Glovee, JJ.

We dissent, holding that C. T. Mitchell <fc Co. had no such possession of the ship as entitled them to claim as creditors in possession.

Motion dismissed.  