
    L. C. A. Schepler against Frederick Garriscan and William Carpioin.
    
      Charleston District,
    
    1799.
    A consignee of a ship and carp; has a qualified properly in the same, and a constructive pov.'cssion in Jaw the moment she comes into port; for from that moment she is under his power and direction
    The sheriff has therefore yio right un-de i the attachment act to take such vessel and caigo mto his possession, but should serve copies of the attachment uu the consignee, who has a lien on the whole in the first place, for his just demands as a creditor in possession.
    CASE on attachment.
    The sheriff of Charleston district, by virtue of this attachment, seized the ship Sophia, in Charleston harbour, as the property of the absent debtors, the defendants, which had been consigned to Mr. John Potter, a merchant in this city, with a cargo on board, of considerable value. This was therefore a motion for the sheriff to restore the possession of the ship to Mr. Potter the consignee, and to the master who was part owner oí the vessel.
    In support of this motion, the affidavit of Thomas Stezvari (who was Mr. Potter's agent, he being then absent from Charleston), was read, by which it appeared that the property of the ship Sophia was in Carpioin, one of the absent debtors, and the master Jacob Jansen; and not in Garriscan and Carpioin, against whom the plaintiff had the demand. It was not intended by this motion, that the right of property in the ship should be tried, or called in question here; only that the ship should be placed in the hands of the consignee, who by the law of merchants had the legal custody of her and the cargo, while in pGrt, as representing the true owners whoever they might be, until that question, if it should be made one, could be determined ; or at least, until the cargo on board could be unloaded and disposed of, agreeable to the orders and instructions Mr. Potter had received from the consignors, and that copies of the attachment might be served on Mr. Potter’s agent, and the captain Jacob Jansen, calling upon them to come in and declare on oath, what property they had in their possession, power or custody belonging to the absent debtors, agreeable to the terms of the attachment act.
    The same grounds in support of this motion were urged, which had been taken on a similar motion, before the judges, at chambers, in September, 1798, in the case of Noel v. Dubrie, and Gaillard and others v. Dubrie, where a ship had been attached and taken possession of by the sheriff, in the same manner as in the present case ; and after argument, had been ordered to be delivered up to the consignees.
    On the part of the plaintiff in attachment, it was contended, that the property of the ship was unquestionably in the absent debtors 5 and that Jansen’s claim, or pretended claim, was only colourable, and that the plaintiff was ready to shew it. That the- consignee was only entitled to the possession of the ship, upon his coming in and giving security for the debt; in which case he might dissolve the attachment as in other cases ; but until that was done, the ship ought to remain in the custody of the sheriff, until sold for the payment of the plaintiff’s demand. That the act had given the plaintiff a lien on the ship for his debt, which by the service of this attachment, and until payment or security given agreeable to the act, he could not be compelled to give it up. That this was a speedy and summary mode of redress given to creditors against absent debtors bv the attachment act, which this court would not readily be inclined to deprive the party of.
    In reply, it was said, that the consignee of a ship or vessel, had by law a prior lien to any attaching creditor whatever ; for by the act of consignment, he had a qualified property in the ship and cargo, until his commissions, disbursements, and all advances were paid off, and fully discharged; and like a creditor in possession of property, he had a right to detain, in order to pay himself in the first place. That to affect the right of conveyances by giving the construction contended for, to the attachment act, might prove very injurious to trade and commerce in general, especially in a country where such extensive credits were given, as in America, by taking funds out of the channels of trade, contemplated hv the parties, and appropriating them to other purposes than, merchants in foreign countries intended. That it was well known, that merchants were in the habit of making large pecuniary advances, accepting bills, making insurances, and doing various other acts, upon the credit of consignments, all which would he materially affected, if a dormant creditor could step in between consignor and consignee, and cut the latter off from remittances, so essentially necessary for the benefit of trade and commerce. Therefore it was, that the mercantile law had always highly favoured and protected the rights of consignees, in all commercial countries. That the attachment act would not warrant the sheriff' in taking possession of the goods oí an absent debtor, where there was any one, in the fair and bona fide possession of them ; and that it was his duty in all cases, to serve copies of the writ7 of attachment on such persons so in possession, with notice thereon endorsed, to appear and shew cause, why such property in their possession ^supposed to belong to tbe absent debtor) should not be considered as the absent debtor’s property; in which case, all the fair claims of the party in possession, could be legally investigated and determined. In the present case, for instance, captain Jansen had a claim to a part of the ship Sophia, attached ; this was denied by the plaintiff in attach-' ment, and the point could not be determined in this short handed way, upon a motion to restore the property taken from the consignee, which shews the good policy of the attachment act, in calling on parties in possession, to come-in and shew cause, in the first instance on oath, why the property should not be considerqd as the absent debtor’s ; and if the plaintiff is not then conlbnted with such return on the oath of the party, he may try the point before a jury of the country.
   Per Curiam.

This point has already been determined in a former case, by a meeting of the judges at chambers, on a motion similar to the one now before the court. But as that determination has not been considered as binding on this court, it is now brought forward again for our consideration. In the case alluded to, a ship and cargo attached by the sheriff, was, after full argument, ordered to be restored to the possession of the consignee. This opinion, we now think was a correct one, and determined upon sound .mercantile principles. A consignee of a ship and cargo, has in contemplation of law, a qualified property in the same, and a constructive possession the moment she comes into port : from that moment, the consignee has the direct tion and management of her, for the benefit of all concerned : she is under his power and government, and subject to his orders, and he may therefore be very well considered in law, as in possession of the whole property. From this view of the subject, therefore, the sheriff has no right under the attachment act, to seize and take possession of the ship and cargo, as wholly belonging to the absent debtors. He should have served copies of the attachment? on the cognizee, who alone was capable of making á true and proper return, not only of the vessel itself, but of all t^e carS° on board of her, and to shew to whom the same really belonged. To give a contrary construction might prove extremely injurious to commerce, which ought ever to be highly protected j as a creditor might otherwise, for a debt of 100/. devest and take away from its proper commercial channel, a ship and cargo worth 10,000/. and keep the whole in his possession, Until a lengthy investigation could take place,, in order to come at the absent debtor’s-property. Besides, it would deprive the consignee of that lien, which the law gives him in the first place, to detain as creditor in possession, fpr all his claims and demands which he might have against the ship and cargo, or for the balance of any account, he might have against the consign- or, for any former transactions. For these reasons, we are all of opinion, that the vessel and cargo ought forthwith to be restored to the consignee Mr. Potter, or to his agent 5 and that the sheriff should serve a copy' of the attachment on him, as in common cases, where garnishees are in possession, or supposed possession, of the goods of the absent debtor.

There is yet another point in this case worthy of attention, which is, captain Jansen’s claim to part of the ship. That cannot possibly be determined on this motion. The copy’ of the writ should have been served also upon him, to compel him to come in on oath, and shew his right of property ; upon which the plaintiff may take issue and try the point before a jury, if he thinks- proper-

Let the'rule for the restoration of ship and cargo to the consignee be made absolute.

Present, Buíoce, Gkxmke, Waties and Bay,  