
    Reynolds, and others, v. Davis & Brooks.
    Whatever may be the proper rule, as to following the decisions of the present supreme court, by the superior court, in a given suit, in respect to the principles of law involved, the latter court is not bound by the decisions of the former, when plainly erroneous, as to what facts were established, in the suit.
    If the facts, .assumed in the opinion, delivered by the supreme court, in a particular case, are so erroneous, that it is impossible, for the superior court, to know what would have been the decision of that court, on the facts, as they appear to the superior court, tire latter court will decline to adopt it as a controlling decision.
    Although a previous judgment, of the superior courts between the same parties, be not res judicata, so as to constitute an estoppel, or bar between the parties, yet, it is the duty of the court, to adhere to its decisions, deliberately made, until they are overruled by a higher tribunal; unless, it be made to appear, ¡that such decisions are palpably erroneous.
    M., residing at Gottenburgh, consigned a cargo of iron to the defendants, at New York, with instructions, to remit the proceeds to the plaintiffs, at London, as the consignor’s agents or bankersthey having made advances to M., upon the shipment, with the understanding, that M. should transmit to them, bills of lading, and the usual shipping documents, and that they should receive the proceeds. But the defendants were not informed of this arrangement Held, that, whatever -was .the private understanding, or the actual state of affairs, between M. and the plaintiffs, the defendants, not being notified of it, had all the usual rights of factors, in respect to the shipment of iron; and, that the plaintiffs had no lien upon it, in virtue of their advances, as against the defendants’ claim, for a general balance against the consignor.
    (Before Oakley, Cu. J, Sandford and Duras, J. J.)
    (November 6, 9, 10, 1851;
    December 27, 1851.)
    This action was brought in the superior court, for the reco; very of William Malm’s share (one-half) of the proceeds of sales of 200 tons of iron, shipped by him in Gottenburgh, on board of the ship Christina, bound for New York, and of 100 tons of iron, shipped by him, on board of the ship Bohemia. Both shipments were consigned to the defendants for sale. The cause was referred to referees, who reported in favor of the plaintiffs, for the proceeds of both cargoes; this report was afterwards set aside, and the causes ordered to be tried by a jury. On the trial, the judge instructed the jury, that the plaintiffs were entitled to recover, for the proceeds of the iron, by the Christina, but were not entitled to recover for that shipped by the Bohemia. Each party sued out a writ of error, upon the judgment of the superior court; and the supreme court decided, that the plaintiffs were entitled to recover the proceeds of both cargoes ; and, accordingly, reversed the decision of the superior court, in relation to the cargo of the Bohemia. The cause was then sent back to the superior court, where a verdict was taken before his honor, Judge Sanford, for the amount of Malm's share of the proceeds of both cargoes.
    The plaintiffs were bankers, transacting business in London, under the firm of T. W. Smith & Co,, and also carried on business in Liverpool, as merchants, under the same firm. William Malm was a merchant, residing in Gottenburgh, engaged in the purchase and shipment of iron, and the defendants were merchants of New York, at the commencement of these transactions with Malm and the plaintiffs. The plaintiffs had advanced to Malm, the cost of his share of these shipments, upon his engagement to transmit them, bills of lading, and usual shipping documents. Malm did, accordingly, inclose and send to them, the shipping documents, with instructions to Davis & Brooks, to remit the proceeds of his share of the cargo to the plaintiffs. But there was no proof to show that the defendants were notified of the advances made by the plaintiffs, upon the shipments, or of the state of the accounts, between them and Malm. The defendants claim to retain the proceeds of the sales of iron, by virtue of a lien, for a general balance due to them from Malm.
   By the Court.

Sandford, J.

The plaintiffs claim to recover the net proceeds of two cargoes of iron, consigned by W. Malm to the defendants, the one by the brig Christina, the other by the ship Bohemia. The two shipments were distinct and unconnected, and, in some respects, were dissimilar.

This court, several years ago, decided that the plaintiffs were entitled to recover the proceeds of the Christina’s cargo, but were not entitled to recover the proceeds of the Bohemia’s cargo. Each party brought a writ of error, to remove, to the late supreme court, the judgment adverse to them respectively, and the cause came on to be heard before the present supreme court, after it had ceased to be an appellate tribunal to this court. The supreme court affirmed the decision as to the cargo of the Christina, and reversed that as to the cargo of the Bohemia, and our first inquiry is, how far we are to be governed by the decisions thus made ?

It is claimed by the plaintiffs’ counsel, that the present supreme court, having the right to affirm or reverse the former judgment of this court, its judgment is as binding upon this court, in this case, as if it were still an appellate court; while the defendants’ counsel contends that although it might affirm or reverse the particular judgment, yet, as it is only in fact a co-ordinate tribunal, it cannot give the law to this court in this case, any more than it can in a suit commenced, since the change in its appellate jurisdiction.

It is not strictly necessary that we should determine this point, because the opinion of the supreme court furnishes a sufficient and entirely independent reason, for our declining to be governed by its judgment. Owing, undoubtedly, to the immense mass of manuscript in which the facts of the case were buried, that court assumed, as a basis for its decision, a state of facts materially different from that actually presented by the case. The great advantage afforded to us by the printing of the voluminous correspondence which was put in evidence, and the more full argument of counsel, enables us to perceive, in the plainest manner, the errors alluded to- And whatever may be the proper rule as to our following the decision of the present supreme court in a prior suit, as to the principles of law involved, it cannot be seriously urged, that we are bound to follow its decision, when plainly erroneous as to the facts that were established in the suit. The erroneous facts assumed in the opinion delivered in this case, are such, that it is impossible for us to know what would have been the decision of the court on the facts as they now appear. We must therefore decline to adojjt it as a controlling decision.

In the next place, how are we situated in regard to the judgment heretofore pronounced in our own court ?

Although it is not res adjudicata, so as to constitute an estoppel or bar between the parties, we think it is the duty of the court to adhere to its decisions, deliberately made, until they are overruled by a higher tribunal, unless, indeed, it be made to appear that such decisions are palpably erroneous.

In this case, so far as the cargo of the Bohemia is concerned, we were fully satisfied, on the argument, that the former decision of this court was right. It was a voluntary shipment by Malm, not growing out of, or in any manner connected with, the previous shipments. It was not only not pre-arranged, but it was also unexpected. No advice was communicated to the defendants that the plaintiffs had advanced to Malm, or accepted his bills for that cargo, until after Malm’s failure to remit the proceeds of the defendants’ cargo of sugar, in 1836. It was, in short, an isolated consignment to the defendants, with instructions to remit to the plaintiffs, as the consignor’s agents or bankers. Whatever was the private understanding, or the actual state of affairs, between Malm and the plaintiffs, as it was not notified to the defendants, they had all the usual rights of factors, in respect of this' shipment, and the plaintiffs had no lien upon it, as against the defendants' claim for their general balance against the consignor.

As to the cargo of the Christina, it may be true, as the counsel of both parties seemed to agree, that in principle and in fact, it does not differ from the case of' the Bohemia, but this court, on the former argument, held otherwise, and we do not feel at liberty to review that decision. It is very clear that the point is not so plain or palpable, as to bring the case within the exception we have laid down on that subject. One or more of us would be inclined, if the matter were open for examination, to adopt a different conclusion ; but having been once decided here, we cannot recall the conclusion then formed.

The verdict and judgment must be adjusted accordingly, giving judgment in favor of the plaintiffs, for the Christina’s cargo,, and against them, for that of the Bohemia-

Judgment accordingly.  