
    
      CANFIELD AL vs. M‘LAUGHLIN.
    
    East'n District.
    
      Feb. 1821.
    A factor has a lien, on the property of his principal, in his hands.
    
      Appeal from the court of the first district.
    
    Hoffman, for the plaintiffs.
    In this case the plaintiffs have attached a quantity of cotton, which the claimants contend is their property, and was so at the time it was attached. The plaintiffs have obtained a judgment against the defendant, for the amount of their demand, from which there has been as yet, no appeal placed on file in this court; and therefore, the only issue in this case is, whether the claimants or the defendant were the owners of the cotton when attached.
    1. There was no delivery of the cotton in dispute, to the claimants, and therefore the right of property was in the defendant, when our attachment was laid.
    2. If a delivery to the claimants was made, it did not make them owners of the cotton, inasmuch as they received it as the factors or agents of the defendant.
    I. The claimants have filed a bill of lading, as their title to the cotton, making them the consignors and consignees, and which, in the absence of other proof, might be conclusive.
    
      But the presumption, raised by the bill of lading, is, however, entirely destroyed by the testimony on record. We had a right to explain the bill of lading, and to show that the defendant shipped the cotton, and not the claimants, as mentioned in it. Maryland Insurance Co. vs. Radius, 6 Cranch, 338; Potter vs. Lauring, 1 Johns. Rep. 223. It cannot be pretended the claimants were the owners of the cotton at the time it was put on board the schooner Pearl, for the testimony is positive, that it was the product of defendant’s farm, and sent by him to the mouth of Pearl river, to be there shipped, by the first vessel bound to New-Orleans.
    It is also in proof, that the defendant is a planter, and the claimants, commission merchants, and that the cotton in question, is part of defendant’s crop, sent by him to the claimants, to be by them sold, to pay the debt due them. Rankin, the person in whose charge the cotton was put by the defendant, says, he took the bill of lading on file, but this was not as agent of the claimants, for it was without their knowledge. The claimants do not inform us, in their claim on file, whether they derive their title to the cotton from a sale, a 
      dation en payement, or as a pledge. In every case, however, a delivery is necessary to transfer the property, according to our laws, Durnford vs. syndics of Brookes, 3 Martin, 226. The claimants are bound to prove the property they claim, belongs to them, Lee vs. Bradlee & al., 8 Martin, 55. They rely upon the bill of lading as their title to the cotton, which, let us suppose, for the sake of argument, is equivalent to a bill of sale; where is the evidence of a delivery ? Will it be contended that a delivery to the carrier was a delivery to the claimants ? By the common law, such may be the case when the property is shipped for and on the account and risk of the consignee, 1 Johns. Rep. p. 1. But, in this case, the bill of lading is silent as to the risk, it was, therefore, borne by the shipper, to make a delivery to the carrier, or delivery to the consignee, the carrier must be one specially named, and employed by the consignee, and the property shipped at his risk; such is the opinion of justice Buller, in Ellis vs. Hunt, 3 Durnford & East, 468.
    Such a delivery to the consignee, as would take away the right of stopping in transit, which the law gives the consignor, is necessary to transfer property to a vendeee, by our laws. Now, can it be said, that the defendant could not have exercised that right after delivery to the carrier ? Let us now enquire, if there was a delivery of the cotton to the claimants, at the basin. Rankin says, Ramsay came to the basin, and told the captain of the schooner, not to unload the cotton, as he had no means of taking it away. Here then, was no delivery, for the cotton was neither seen nor counted by the claimants ; neither was there a delivery by consent of parties, propter magnitudinem ponderis, for that provision of the law is not applicable, being intended for pillars, and such like things of great weight, Domat. 1, 2, 2, art. 5. Besides, in the present case, the claimants refused to receive, when the offer to deliver was made by the captain. How can that be a delivery, which has not the effects of a delivery, as between the parties, for if the cotton had been intended as a dation en payement, an actual delivery to the claimants, was necessary to put the risk of loss upon them ? In the case already cited from 3 D. & E. 468, the goods were deposited in an inn, where the person to whom they were sent, put his mark upon them, and the court deemed that a taking into possession; nothing equivalent was done in this case by the claimants, for the making was such a receipt of the property as to operate a complete transfer. In Durnford vs. syndics of Brookes, this court decided, that an actual removal of a part of the goods, comprised in the same bill of parcels, did not operate a delivery of the remainder.
    II. But the cotton did not become the property of the claimants, by a delivery to them. The testimony in the case shews, the cotton was sent to the claimants, as factors of the defendant, a dation causa solutionis, out of the proceeds thereof. They did not purchase it, for there was no agreement to that effect, nor is there any evidence of an agreement to receive it in payment of a debt. In either case, it was necessary, that the weight and quality of the cotton should have been known to both parties, and that a price should have been agreed upon. Can the court then hesitate one moment, in believing, that the cotton in question, was sent by the defendant, as produce most usually is, to be sold for the best price, by the claimants, and the proceeds placed to defendant’s credit. The receipt of the cotton, under such circumstances, made the claimants the factors of the defendant, and gave them a lien for a general balance, as decided in Patterson vs. M'Gahie, 8 Martin, 486, but did not make them owners of it. If authority be necessary to establish a principle so plain, we refer the court to Kinlock & al. vs. Craig, 3 Durnford & East, 119, and same case, 786, as decided in the House of Lords. That case is very similar to the one now before the court; for the shipment was not made at the risk of the consignees, and the property was sent to be sold, under like circumstances. Chief Baron Eyre, in delivering the opinion of the judges, says, that the transaction between the parties was as between principal and factor, and not as between vendor and vendee; and, therefore, the consignee could have no property in the cargo. The same principle is also decided in syndics of Bermudez vs. Ibanez & al., 3 Martin, 39, in which this court say, “ a right to be paid out of the proceeds of a sale, far from bearing any resemblance to a right of property in the creditor, implies the very reverse ; for it is a right to be exercised against the property of another. In no instance, could an attaching creditor succeed against his absent debtor, who has sent produce here for sale, if the mere circumstance of the debtor’s owing likewise to his factor, should enable the factor to claim it as his property. When produce is sent to a merchant for sale, the freight is, almost, always, paid by him, and thus he becomes the creditor of the planter. But does the property thereby become his, or does even an advance upon it (which is often made) have such an effect ? Surely not. Thus, we have shewn, that a delivery of the cotton to the claimants would not have made it their property; and, therefore, the only issue before the court, must be decided in our own favour.
    We are far from admitting, however, that the claimants have a lien, as factors, in this case : for an actual possession only can give it. But let us suppose, for a moment, they had such a possession, can this court decree them what they do not ask? Can a judgment be rendered distinct from that prayed for in the petition or claim ? Surely no argument can be necessary to shew, that such a doctrine would break down every thing like system in jurisprudence. We say, also, it would be contrary to positive law, Partida, 3, 22, 16. The court cannot say the cotton is insufficient to pay the debt due the claimants, and that, therefore, we can take nothing by our attachment; for, there is no evidence on record, as to the value of the cotton, and the court cannot look elsewhere for information. It is a question of fact, and should have been proved. Had the claimants asked to be paid, by privilege, as factors of the defendant, the court would have so decreed, upon their shewing they were in possession of the cotton; but a judgment for the thing itself is prayed for. We conclude, by saying; 1. That an actual delivery of the cotton, to the claimants, was necessary to support a claim, either as the vendees or factors of the defendant, and, that no delivery was made. 2. That as factors, the claimants cannot have a judgment for the property itself, and that the court must render a judgment conformably to the issue between the parties.
    Eustis, for the claimants.
    There was a complete delivery of the cotton to the claimants. Rankin received it from the defendant, with directions, on its arrival at the mouth of Pearl river, to ship it to the claimants ; and accordingly did ship it in their name, and to their address. When the bill of lading reached their hands, the cotton was so completely theirs, that they might have effectually resisted the defendant’s attempt to give it a different direction. They had, at all events, such special property in it, as enabled them to maintain an action against any person interfering with it, or withholding it from them. The captain of the Pearl was accountable to them, and to them alone; for, in the bill of lading, he had acknowledged them for (as they really were) the shippers and consignees of the cotton.
    The claimants were something more than the agents or factors of the defendant. They were creditors, who had stipulated that the crop of the latter should be placed in their hands, in order that, by a sale of it, they might reimburse themselves the advances, which, on his pledged faith of securing them by the possession of the cotton, they had made him.
    The principal object of the bailment of the cotton to them was the reimbursement of their advances. They were pawnees, with authority to sell.
    The defendant could not, by any possible legal means, have regained the possession of his cotton, without securing the cliamants. No sale of his could have affected the rights and possession of the latter. Neither can his creditors, for all they can do is to exercise the right of their debtor on his property.
   Martin, J.

delivered the opinion of the court. The plaintiffs instituted this suit by a process of attachment, which was levied on eighteen bales of cotton, afterwards claimed by Cumming & Ramsay. The former had judgment against the defendant and claimants. The latter appealed.

The fact of the case appear by a bill of lading and depositions, which come up with the record.

According to the bill, twenty-three bales of cotton were shipped by Cumming & Ramsay, and consigned to themselves.

Graves deposed, that in March last, he was employed by the defendants, to take on board of his, the witness’s, boat, twenty-three bales of cotton, to be shipped to the mouth of Pearl river, Graves’ landing; and for the freight, he received a draft on the claimants.

Lot deposed, he was present when a quantity of cotton was taken out of Graves boat, which he commanded; that the cotton had been put on board by the defendant, at his landing, on Pearl river, to be carried to Graves’, at the mouth of that stream. The cotton was immediately put on board of the schooner Pearl, consigned to the claimants in New-Orleans.

Peake deposed, that the cotton arrived in New-Orleans on a Saturday, and was not attached, to the best of his recollection, till the following Monday.

Rankin deposed, that the cotton was put under his care by the defendant (when he came down Pearl river, as a passenger on board of Graves’ boat) to be shipped to the claimants. When at the mouth of the Pearl river, the deponent directed the cotton to be put on board of the schooner Pearl, and took a bill of lading in the claimants’ names, which bill he delivered to them at New-Orleans, on a Saturday, immediately after the arrival of the schooner in the basin. Ramsay ordered the hands, who had began to unload, to stop, as he could not get drays till Monday. In the mean while, viz. on Saturday, eighteen bales of it, a part of which was on shore, and the rest on board, were attached, in the present suit. The defendant told the deponent, he was indebted to the claimants, and did not know whether the cotton would suffice to pay them, and it was with a view to discharge their claim, that the cotton was shipped.

Lee deposes, that some time in January or February last, he heard the defendant promise to the claimants, to send them the balance of his crop of cotton, being from twenty to thirty bales. He was present when the defendant and claimants settled their accounts, and the former was considerably in arrears; and he has lately understood from him, that he had shipped his cotton to the claimants in payment of his debt, as far as it would go.

Martin deposed, that he is master of the schooner Pearl, and received the cotton, at the mouth of Pearl river, from Rankin, as the property of the claimants, and signed bills of lading accordingly. It was marked with the defendant’s mark, and was taken from on board of Graves’ keel-beat, without it being asked whose cotton it was.

Mathews deposed, that he had been the clerk of the claimants for two years past. The bill of lading annexed to the claim, is the one delivered them by Rankin. They had made to the defendant, an advance of $500, in consideration of his shipping his cotton to them. Some time before they had paid a draft of his for $2460, without their having any funds in their hands, and he heard him promise, that, in consideration of this, he would send them his crop of cotton. On the Saturday before the cotton was attached, in the present suit, the deponent went on board of the schooner Pearl, exhibited the bill of lading, and demanded the cotton. When the captain said he could not conveniently deliver it immediately, as it was in the bottom of the hold, but would land it as soon as possible. The deponent returned a short time after, but received the same answer. He is generally acquainted with the mercantile houses in New-Orleans, and believes there is no such firm there as Cumming and Ramsay & Co., and has no doubt the cotton was intended for the claimants.

Gordon deposed, in the same manner as to the last circumstance in the deposition of the preceding witness.

There cannot be any doubt from the testimony, that Cumming & Ramsay, the claimants, are the persons whom Rankin meant to describe, by the firm of Cumming and Ramsay & Co.

The bill of lading shews, that the cotton was shipped by them. The oral evidence, if it can be of any weight against the written, does not lessen it. Rankin, who was charged by the defendant, the original owner of the cotton, with the care of it, and directed to deliver it to the claimants, shipped it in their name, and they had, before the attachment, ratified his act, by accepting the bill of lading, and demanding the cotton. Their right, therefore, to, or on it, must be the same as if they had shipped it themselves.

It is true, this does not make the cotton their own; for nothing shews that they were any thing more than the factors of the defendant, for the sale of the cotton, although it is in evidence, that the proceeds were intended to discharge a claim of theirs on the defendant. As such, they had a lien on it for their advances, and the balance of their general account: a lien, which, in our opinion, the attachment could not affect.

It is true, the claimants demand the cotton, not as the factors or agents of the defendant, but in their own right, and as absolute owners of it. Although, the evidence does not establish their right as such, we are of opinion, that, as they have substantially proven their right to hold the property, as factors, and to be paid thereout, judgment may be given in their favour, according to the provision in the Novissima Recopilacion, 11, 16, 2.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided, and reversed, and that the cause be remanded, with directions to the judge to ascertain and allow the amount due to the claimants, and it is ordered, that the plaintiff and appellee pay the costs of this appeal.  