
    M. W. Woodruff v. Nashville and Chattanooga Railroad Company.
    1. Libs'. General and special. Liens aro of two kinds, general and particular, or special. A particular lien is the right to retain a thing for some charge or claim growing out of or connected with that identical thing. A general lien is the right to retain a thing not only for charges and claims specifically arising out of, or connected with the identical thing, but also for a general balance of accounts between the parties in respect to other dealings of a like nature.
    2. L ACTOR. Lien upon goods consigned. Possession. Where the consignor remains owner of the goods consigned, no special property can exist in the factor, or any lien general or special, unless he have possession, either actual or constructive, of the goods. If the goods are in transitu, or if the factor has only a right of possession, the lien does not attach.
    3. Samb. Same. Power of the owner. If the factor has no property in the goods, and no lien upon them, the owner has a perfect right to dispose of them as he may please, and the factor cannot control him in this right.
    4. Same. Question reserved. Can a factor, who has neither the actual nor constructive possession of the goods, and no property in them, maintain an action against a mere wrong-doer, acting in opposition to the rights of both him and the owner ?
    5. Same. Same. If a factor has made acceptances, or incurred liability upon the faith of the consignment of goods to him, but has no property in them, nor possession, either actual or constructive, do such acceptances or liability give him a lien upon or property in the goods consigned ?
    6. Same. Lien ceases when liability discharged. If such lien exists, it ceases upon payment of the bills drawn, or liability incurred. And if the factor is under no liability for the consignor, or owner, at the time of the institution of his suit, it cannot be maintained.
    EEOM DAVIDSON.
    On the 22d of May, 1856, one A. G. Henderson shipped by the defendant 128 casks of bacon, consigned to the plaintiff. Bj mistake of the agent of the defendant, the bacon was directed to Charleston, to the care of MeCreery & Hook, at Chattanooga, Hook haying been interested in some of the previous purchases of Henderson.' Hook, considering himself interested in the bacon, sold it at Chattanooga. Henderson, about the time of the shipment of the bacon, wrote to Wood-ruff informing him that he had forwarded the bacon to him; and, on the faith of it, drew two bills of exchange on him, amounting to $¡2,800. Woodruff accepted the bills, and wrote to Henderson that the bacon had not been received. Henderson, on being informed of the change in the shipment of the bacon, and its sale, wrote to Woodruff explaining it. The bills were protested and returned to Henderson, who paid them, and obtained a credit, on account with Hook, for the proceeds of the bacon. Woodruff sued the company for not delivering the bacon to him, as specified in their receipt. Under the charge of Judge Baxtbk, there was a verdict, and judgment for the defendant. The plaintiff appealed.
    JOHN Reid, for the plaintiff.
    J. M. WilkiN, for the plaintiff,
    argued:
    1. That the Court below erred in charging the jury “ that the plaintiff, as factor of Henderson, would have a lien only upon the goods of the principal íd the actual possession of the factor, and until they came into his actual possession the consignor could control them; that the delivery of the goods to the common carrier, and the taking a receipt or bill of lading from the carrier, specifying the goods to be delivered to the factor, would not constitute such a possession as would support a lien for the balance due on account of previous dealings.”
    The law is, “that where a factor makes advances, and incurs responsibilities on account of consignments to him, the bill of lading vests such property in him that he may insure or sell the goods on the security and faith of the consignment. And the consignor cannot stop them without repaying what the factor has advanced, or is liable for.” Jordan v. James, 5 Ham., 88, in United States Digest, p. 418. ■
    If the bill of lading has been assigned over to the consignee, and he has actually come into possession of it, the bill of lading carries the title to the property, and is valid against the principal, especially if the consignor is indebted to the consignee.’ Ryley v. Snell, and Walter v. Ross, 2 Wash. C. C., 403 and 288, U. S. Digest, 414; (Surrey v. Roulstone, 2 Lem., 110, 113; 2 Kent, pp. 548, 549, &c. If this doctrine be true, then Henderson, the consignor, would not even have had the right to stop the bacon in transitu. But the proof clearly shows that the defendant’s agent at Smyrna misdirected the bacon, without the - knowledge, order, or consent of either the consignor or consignee, and that it was not until long afterwards that they learned the destination of the bacon.
    Again, care must be taken by the common carrier to deliver the goods to the right person, according to the tenor of the bill of lading, else’it is a conversion of the property. Story on Bailments, § 545.
    Henderson intended to pass, and did pass all his right, title and property in and to the bacon, by delivering the defendant’s receipt to the plaintiff, and plaintiff can only look to the defendant, either for the goods or damage for their loss, because he holds defendant’s bill of lading, and it becomes his duty to see that the defendant complies with its original contract under it.
    Henderson so regarded it, because he wrote plaintiff that he would send him other bacon of the same quality and quantity in lieu thereof, but which he failed to do.
    2. The Court erred in charging that the onus was on the plaintiff to prove that the payment of the acceptances was not made until after he had instituted suit.
    How could the plaintiff be presumed to know that the acceptances had been paid by the drawer, and were not outstanding against him?
    The plaintiff, by accepting, had become the principal— the first payor — and therefore the presumptions are all in his favor that he was still bound; and it became the duty of the defendant to showT no legal obligation of plaintiff on the drafts at the time of bringing suit.
    3. The Court erred in refusing to charge, that if the bacon was wrongfully directed by the agent at Smyrna, in consequence of wdiich misdirection the bacon was lost to the plaintiff, the defendant would be liable to the plaintiff, although the act of the agent was subsequently ratified by Henderson, the consignor.
    If the plaintiff had acquired any interest or title in the bacon, by his acceptances and delivery to him of the bill of lading, upon which the acceptances were predicated, it was beyond the po^yer of Henderson, the consignor, to ratify a conversion of tbe property by the defendant to the hazard, detriment, and damage' of the plaintiff.
    Ewing & Cooper, for the defendant.
    His honor charged the jury, that if Henderson was the owner of the bacon, and Woodruff his factor or commission merchant, and Henderson consigned bacon to him for sale, and it went to another person, who sold it and paid the money over to Henderson, that Mr. Woodruff would have no right of action against the railroad, although Henderson was indebted to Woodruff. That the lien of a factor for a general balance, or previous indebtedness, only attached to property in his possession; and as he never had possession of this bacon, he acquired no lien for this purpose. If Mr. Henderson drew bills founded on this shipment of bacon, and Woodruff accepted them, even though the destination of the goods was changed before the drawing or acceptance, then, as long as Woodruff remained liable on these bills, he could have held the railroad liable; but when Henderson took up the bills and received the proceeds of his bacon from Judge Hook, then the action of Mr. Woodruff could not be maintained.
    We insist this charge is, substantially, correct.
    If a shipper of goods is the sole owner, and they are merely forwarded to a consignee for sale, the owner may change the direction of the goods, sell them before they reach their destination, or destroy them; and this is a full answer to any action by the consignee. Story on Bailments, § 578; Angelí on Carriers, § 495. In order to maintain a suit against the carrier, there must be a property in the goods, or a special agreement. Angelí, § 499,
    We know of no authority for an alteration of this rule in a case where the consignor intends to draw on the consignee for the proceeds of sale, and does in fact draw, and the consignee accepts the bills, more especially if the destination of the goods is changed before such draft and acceptance, and a right of action already accrued to the consignor. Angelí, § 511; 11 Adolp. & Ellis, 260; 2 Kent Com. 831. If we are wrong, however, in this opinion, and the Circuit Judge was right; still, when these bills were paid by Henderson, and he received the proceeds of the bacon from Hook, the right accruing to Woodruff was gone, and fell with his interest acquired in the bacon.
    The lien of a factor never . attaches on goods in transitu, unless on account of money advanced, or bills accepted on their faith, and not even then, when the goods are never actually received. Story on Agency, 502, 486, 487; 3 Term. Rep., 119, 783.
   WRIG-ht, J.,

delivered the opinion of the Court.

We have been unable to find any error in the judgment of the Circuit Court in this case for which it should be reversed.

The plaintiff was not the purchaser or owner of this bacon. If he had been, the delivery to the defendant, as a common carrier, for transportation to him, would have entitled him to its safe delivery; and neither A. G-. Henderson or the ' defendant could lawfully have changed its destination, or diverted it from him.

But here is a different case altogether. Henderson was the owner of the hacon, and' the plaintiff merely his factor to sell it on his account. It is not necessary for us to consider whether the plaintiff, standing in the relation which he did to- this property, could maintain an action against a mere wrong-doer, acting in opposition to the rights both of him and Henderson, the owner. The case here is the same as a contest between him and the owner; for Henderson has sanctioned all that the defendant did, and has, in fact, received the proceeds of the bacon, and is satisfied.

If the factor have no property in the goods, and no lien, the owner has a perfect right to dispose of them as he may please, and the factor -cannot control him in this right. Walter et al. v. Ross et al., 2 Wash. C. C. Rep., 283; De Forest v. The Fulton In. Co., 1 Hall’s Rep., 84, 116; Story’s Agency, § 372.

The case then resolves itself into this: Had the plaintiff, as against Henderson, any property in this bacon, or any lien upon it ? That he had neither we think clear from the authorities.

Mr. Story, in his work on Agency, § 354, says: Liens are of two sorts, particular and general. A particular lien is usually defined to be the right to retain a tning for some charge or claim growing out of or connected with that identical thing; such as for labor, or services, or expenses bestowed upon that thing. A general lien is a right to retain a thing, not only for charges and claims specially arising- out of or connected with the identical thing, but also for a general balance of accounts between the parties in respect to other dealings of the like nature. It is less favored, and is construed somewhat more strictly by Courts of law than a particular lien; although, certainly, the tendency of late years in the commercial community has been rather to expand than to restrict the cases in which it is to be implied by the usage of trade.

But no special property can exist in the factor, or any lien, general or particular, unless he have possession, either actual or constructive of the goods. I speak of the case where the consignor remains the owner, as did Henderson in this case.

By constructive possession, is meant the possession of his servants or agents in the proper discharge of their duty. And it cannot be made to apply to the defendant in this case. For it seems to be well settled, that if the thing has not arrived to the possession of the factor, but is still in transitu, or, if he has only a right of possession, the lien does not attach. Story on Agency, sec. 361; 3 Kent, 638; Kinlach v. Craig, 3 Term. Rep., 119, 783; Smet v. Pyne, 1 East, 4; 2 Wash. C. C. Rep., 283.

Chancellor Kent says: That even though the factor may have accepted bills upon the faith of the consignment, and paid part of the freight; yet he can have no lien, unless the goods of the principal do, in fact, come to his hands; and for this, he cites the case in Term. Reports.

That case, when examined, will, we think, be found decisive of this:

The judgment of the Court of King’s Bench, in that case, was affirmed in the House of Lords, by the unanimous advice of all the Judges. The Judge, in delivering the opinion of the Judges, observed, that the parties acted entirely upon the faith of the agreement between them; that they (the, bankrupts) should accept the bills drawn on them by the Stienes, and should indemnify themselves out of the produce of the sal'es; and that the transaction between them, with respect to the consignments, was as between principal and factor, and not as between vendor and vendee; that, therefore, Laudiman and Graham, (the factors,) could have no property in the cargo; and the right of stopping in transitu was out of the question, that never occurring but as between vendor and vendee. And for this he relied on the case of Wright v. Campbell, 4 Burr., 2050. That the bankrupts could have no lien in the case, as the special verdict found that the goods never got into their possession. That though they might have given their acceptance on the faith that these consignments would be made to them, yet still it was an execu-tory agreement, for the non-performance of which only a right of action accrued, but that no property in the goods was thereby vested in them.

In that case, the factors, Laudiman & Graham, who resided in London, had become liable for Stiene, the consignor and owner, who lived in Scotland, by acceptance made upon the faith of the consignments, to a large amount; and besides, there was a heavy balance due them on previous transactions, and they were without funds to meet it. They had been advised by letter of the shipment; had received the invoice and bill of lading; and before the arrival of the vessel, Stiene, the consignor had gone to London and conversed with them as to the cargo, giving directions as to its sale, and had caused them to have it insured, the premiums being charged to him. After his departure, the vessel and cargo reached London, and they paid a part of the freight, and were urged by the captain, to at once unload the ship and receive the cargo; but having stopped payment, they delayed until it was taken under a writ of sequestration against Stiene, the consignor, who never paid the bills, which were proved as debts against the consignees. And yet it ayus held they had no lien and no property in the cargo.

Judge Story, in section 377 of his work on Agency, says: “If goods come to the possession of the factor after a secret act of bankruptcy committed by the principal, the factor will not be entitled to retain them against the assignees for advances or acceptances made after such act of bankruptcy, upon the faith of the consignment of the goods to him, although such act was unknown to him at the time of the advances or acceptances ; for the act of bankruptcy divests the property out of the bankrupt.”

And he says: “ Whether the like eifect would be produced Avhen the act of bankruptcy was committed after the advances or acceptances were made, and Avhile the goods AYere in transitu to the factor, is a point upon Avhich doubts have been entertained; but the Aveight of judicial opinion seems against the lien.”

But it is unnecessary for us, conclusively, to decide here, that the acceptances or liability on the part of the plaintiff, gave him no lien, and no special property in the goods as against Henderson, because the Circuit Judge, in Ms charge to the jury, held the law upon that point to be for the plaintiff; and manifestly, if the lien existed at all, it could only be as to that transaction, and ceased upon the payment of the bills by Henderson. It could not be extended to the general balance remaining on account of previous dealings.

We do not think the Circuit Judge erred in charging the jury, that it lay upon the plaintiff to show he was under the liability for Henderson by these acceptances at the institution of his suit. How could he claim anything, or move the Court in his favor, unless he showed a lien; and could the lien exist if there was no liability? The bills were dishonored in August, 1856, and Henderson, who seems to be solvent, proves they were protested, and he paid them to the bank, but at what time, he does not say. The suit of the plaintiff was not brought till March, 1857. Prima faeie, at least, they were paid before the institution of the suit.

Judgment affirmed.  