
    LEE ET AL. VS. DAVIS ET AL.
    Eastern Dist.
    
      April, 1832.
    APPEAL FROM THE COURT OF THE FIRST DISTRICT.
    The attaching creditor has a right to be paid in preference to the consignee, unless the latter has received a bill of lading, prior to the service of the attachment. ^
    
      The plaintiffs attached, as the property of the defendants, a qUantjty 0f cotton, consigned to Palmer Smith & Co., who intervened, and claimed to be paid in preference, on account of advances. ^
    The intervenors having failed to show the receipt of the bill of lading, prior to the service of the attachment, there was judgment for the plaintiffs, and the intervenors appealed.
    
      Conrad, fpr appellants. Maybin, for appellees.
   Martin, J.

delivered the opinion of the court.

The defendants were sued on a protested bill of exchange, a number of bales of cotton were attached, and the attorney appointed to defend them, pleaded the general issue, but admitted their signature on the bill.

Palmer Smith & Co. intervened, and claimed thejproperty attached.

There was judgment against the defendants and the intervening party, and both appealed.

The signature of the defendants to the bill is admitted by the answer ; the protest and notary’s certificate of notice are filed, and nothing has been shown on the part of the defendants to impugn the judgment.

The intervening party have claimed the cotton, on the alleffat^on tha,t the bill of lading for it, had reached them before the attachment was levied, and that it was consigned to them to meet some advances they had made to the owners. This wouid have supported their pretensions, had it been proved, The district judge has concluded the proof adduced was insufficient, and it does not appear to us he erred.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.

SAME CASE.

The plaintiffs and appellees have prayed that the judgment be amended, so far as to allow them damages on the bill, which the district judge has not allowed.

It is in evidence, that the damages on bills of exchange, where the bill was drawn, are at the rate of ten per centum.

It is, therefore, ordered, adjudged and decreed, that the . .. .. . judgment, so far as it relates to the intervening party, be affirmed, with, costs in both courts; and as far as it relates to the defendants, that it be annulled, avoided and reversed, and that there be judgment for the plaintiffs against the defendants for fifteen hundred and thirteen dollars and ninety-four cents, damages at the rate of ten per centum interest from the judicial demand, and costs of protest, with costs in both courts.  