
    James W. Pritchett and David D. Allen vs. Thomas R. Sessions.
    Where, in trover against the Sheriff for levying, under foreign attachments, a steam boat claimed by the plaintiffs as assignees of the absent debtor, the question was, whether the attaching creditors had notice of the assignment, held, that notice to their agent was notice to them, and that the agent’s declarations at the time of levying the attachments were admissible as evidence to show notice.
    BEFORE MUNRO, J., AT GEORGETOWN, SPRING TERM, 1856.
    The report of his Honor, the.presiding Judge, is as follows :
    
      “ The circumstances out of which the present controversy has arisen, are these :
    “ One James E. Metts, a citizen of the State of North Carolina, being extensively engaged in the turpentine business in this State, and possessed of a large amount of property in the districts of Georgetown and Horry, consisting of lands, slaves, steamboats, turpentine, and stock necessary to carry on said business, by a deed bearing date the 31st of July, 1855, conveyed his entire estate, real and personal, to the plaintiffs in this action, in trust, for the payment of his debts, in the order set forth in the deed of assignment.
    “ The deed of assignment was executed in Wilmington, North Carolina, and was recorded in the proper office in that place, on the 2d day of August in the same year, and was also recorded in Georgetown, in this State, on the 14th day of August.
    “ That among the creditors to whom Metts was indebted at the date of his assignment, were Benjamin Blossom & Son, merchants, in the city of New York, and Joseph E. Blossom, a resident of Wilmington, North Carolina.
    
      
      “ That on the 6th day of August, and while Metts was absent from this State, Joseph E. Blossom visited Georgetown and caused two writs in foreign attachment to be issued, one of which was in his own name, as plaintiff, and the other in the names of Benjamin Blossom & Son, against the said Metts as an absent debtor; that the writs were lodged in the office of the defendant, who was then, and is still, the Sheriff of Georgetown — who, by virtue thereof, on the 6th and 7th of August, attached as the property of-the said absent debtor, several tracts of land, a steamboat called the Union or Eliza, and a lighter attached thereto, eleven slaves, a quantity of turpentine, &c., all of which is included in Metts’ deed of assignment ; that the said writs of attachment having been forwarded to the Sheriff of Horry, he, by virtue thereof, on the 9th of August, attached another steamboat, called the Eairy, as the property of Metts, and which is also included in the deed of assignment.
    
      “ Upon the defendant’s refusal to deliver up to the plaintiffs the property which he had thus attached, pursuant to a demand made for that purpose, the present action which is in trover was commenced; that sometime subsequent to the commencement of this action, the defendant did surrender to the plaintiffs a portion of the property which he claimed to hold under the attachments, to wit, eleven slaves, upon the plaintiffs executing to him a bond in the sum of twelve thousand dollars, conditioned for the re-delivery of said slaves in the event it shall judicially appear that the attaching creditors of Metts are entitled thereto ; and that some time afterwards, upon the execution by the plaintiffs of a similar bond, in the same amount, the defendant surrendered to them the two steamboats and the lighter.
    
      “ The grounds relied on in the defence, were — ■
    “ 1st. That Metts’ assignment was absolutely void, having been made in fraud of his creditors.
    
      “ 2d. That if it be not void as to the other property in-eluded therein, it certainly is so as to tbe steamboats and tbe lighter, for want of recording in the custom-house in Wilmington, in conformity with the provisions of the Act of Congress, entitled an Act for recording the conveyances of vessels, &c., passed on the 29th day of July, 1850, and is found in the 9th vol. U. S. S., page 440, which is as follows: “ That no bill of sale, mortgage, hypothecation or conveyance, of any vessel, or part of any vessel, of the United States, shall be valid against any person, other than the grantor, mortgagor, his heirs and devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, or hypothecation or conveyance, be recorded in the office of the Collector of the Custom House, where such vessel is registered or enrolled.”
    “ In reply to the defendant’s last ground, the non-registration of the deed of assignment in the Custom House at Wilmington, it was urged in behalf of the plaintiffs, that this objection could not' avail the attaching creditors of'Metts, inasmuch as Joseph E. Blossom, himself, one of the attaching creditors, and also the accredited agents of Benjamin Blossom & Son, had actual notice of the execution, and the contents of the deed of assignment executed by Metts, prior to the suing out of the writs of attachment; and in support of this relied upon the following testimony:
    
      u A bond, given in conformity with our Attachment Acts, dated the 6th day of August, 1855, and signed by Joseph E. Blossom & Latón, styling themselves agents of B. Blossom & Sons. Samuel Bell testified, that he was in Con-wayborough when the steamer Eairy was attached; that he was served with a copy writ as ‘G-arnishee; that Joseph E. Blossom was present at the time, and said to witness that if Metts had not deceived him, he would have attached his property before he made his assignment; he also said that B. Blossom & Son, and himself, were in the third class of creditors in tbe assignment, which was the reason the attachments had been taken out.
    “ The case was submitted to the jury, who returned the following verdict: ‘We find for the defendant, as to the steamboats, and for the plaintiffs as to the rest of the declaration, and assess the damages at one dollar.’ ”
    The plaintiffs appealed on the grounds.
    1. That actual notice of the assignment of the steamboats before the attachments were levied was brought home to the attaching creditors, and the verdict, of the jury in favor of the defendant on this point is plainly contrary to evidence.
    2. That a wrongful conversion of property to the amount of twelve thousand dollars, was not only proved, but admitted by the verdict, and the assessment of damages at one dollar only, exceeded the discretion of the jury.
    Atkinson, Peiigru, for appellants.
    Harllee, Mitchell, contra.
   The opinion of the Court was delivered by

WhitNEB, J.

The history of this case satisfies this Court that the juries charged with the matters in litigation between the parties, have encountered much difficulty in reaching a conclusion; a mistrial on one occasion, followed by what seems to us to have been a compromise, would be a sufficient warrant not to disturb the verdict, if grounds could be found on which to sustain it. The apparent anomaly suggested, in the second ground of appeal, has failed to satisfy us, that a new trial should be granted on this ground alone. The circumstances are very peculiar, and certainly place the matters in controversy, on grounds not likely to be drawn into precedent. It is manifest, that a verdict surrendering the slaves to the plaintiffs, and retaining the' steamboat for defendant can only be sustained on the ground .of want of notice, contemplated by the Act of Congress recited in the brief. On this point alone, the judgment of this Court is rested.

Notice of facts to an agent is constructive notice thereof to the principal himself, where it arises from, or is at the time connected with, the subject matter of his agency; for upon general, principles of public policy, it is presumed, that the agent has communicated such facts to the principal; and if he has not, still, the principal having entrusted the agent with the particular business, the other party has a right to deem his acts and knowledge obligatory upon the principal, otherwise the neglect of the agent, whether designed or undesigned, might operate most injuriously to the rights and interests of such party. Such is the statement of a familiar principle to be found in .Stor. on Ag., sec./40, and fully sustained by authorities cited. The defendant, as Sheriff of Georgetown, had levied the attachment on the property in question. Representing the interests of the attaching creditors, to them must the fact of notice be brought. The plaintiff in one of the cases resided in Wilmington, N. C., and the plaintiffs, in the other case resided in New York. That the former had notice of the deed of assignment does not seem to this Court to admit of doubt. The deed had been recorded in the Custom House in Wilmington, and though a question might be raised whether the mere fact of registration in. that office afforded conclusive evidence of notice to him of the assignment, yet taken in connection with his own declarations made in Oonwayborough, all doubt vanishes as to the fact of knowledge derived through that or some other channel. He was not only apprised of the existence of a deed, but of its contents. The reason he gave, shows it clearly; for knowing as he did, that he and the firm in'New York, were postponed to the third class, it by no means followed that an attachment should be resorted to for tbe purpose of securing these debts, unless accompanied with tbe further knowledge of tbe extent of tbe provision made for that class of creditors.

I am next brought to consider whether the New York firm may be saved from the operation of the rule. Joseph B. Blossom was the agent of the New York firm, caused their writ in attachment to be issued, gave the bond in conformity with the Attachment Act, styling himself agent, and his acts have not been repudiated; he was then the accredited agent.

It is objected that the admissions of the agent to Bell were not competent, and that the agent himself should have been called t,o testify. But he was also a party in interest and acting in concert with his principal, prosecuting the claims of each, and setting up these matters of defence through the sheriff for their joint benefit. The declarations were clearly competent. Did they attach as to the principal ? To bind the principal such declarations must constitute a part of the res gestee, otherwise they fall within the class of hearsay. But the proof was that the declarations were made at the very time when the thing for which he was constituted an agent was being done, at the levying of the attachment on the boat Fairy, and serving the witness Bell with a writ as Garnishee; within the terms of the rule, therefore, the agent was then engaged in the transaction of the very business of his agency and under the authority of his principal. Stor. on Ag\, sec. 134, and cases there cited.

But if the agency had not ended, it remains to be enquired whether the notice to the agent was before the agency began, for in such case it is said, it will not ordinarily affect the principal. The reason of this rule is fairly to be collected from the authorities; for unless, it is said, the notice of the facts come to the agent while he is concerned for the principal and in the course of the very transaction or so near before it that the agent must be presumed to recollect, it is not notice thereof to the principal, otherwise the agent may have forgotten it, and tbe principal would be affected by want of memory at tbe time of undertaking tbe agency. Tbis case clearly does not fall witbin tbe reason of tbe rule, and tbe exception therefore, cannot avail tbe defendant.

Tbe motion for a new trial is granted.

O’Neall, Wardi. aw, Withers, and Meneo, JJ., concurred.

Motion granted,.  