Patterson v. Perry — 18 N.Y. Super. Ct. 518

Majority

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John S. Patterson, Administrator, Plaintiff, v. Samuel Perry et al, Defendants. White, Warner & White, Appellants, and George Milne, Respondent.

Headnote

1. Where the owner of goods, residing in Ohio, consigned them to a factor residing in New York city, for sale, and such factor, on advice of shipments of goods from time to time, and on receipt of bills of lading for such goods advanced to the consignor, and on the 6th of April, 1854, the consignee’s advances and charges exceeded in amount the value of the consigned property which had then come to hand, but were less in amount than the value of the whole consigned property, (including the value of that for which bills of lading had been received, but which had not then arrived,) and all of such consigned property arrived by the 15th of June, 1854, and on subsequent sales produced a surplus, after paying all advances and charges, an attachment against the property of such consignor, issued under the Code, and served by delivering a certified copy of it to such factor on the 6th of April, 1854, will attach and bind such surplus, and such attaching creditor will hold it in preference to, and to the exclusion of, another creditor of such consignor, who obtains an attachment against the latter and serves it in like manner on the 15th of June, 1854.

2. This result will follow, although enough of the consigned property, to pay the factor’s advances and charges, had not only not been received by the

i See Robinson’s Practice, vol. 3, p. 34, and the cases there collected, which support the proposition, that as a general rule, on a contract not under seal, made with an agent in his own name, either the agent or principal may sue. (See. also, Pool' v. Guilford, 6 Sold., 213.)

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factor, but had not arrived within the State of New York when the first attachment was issued and thus served.

3. Nor will it make any difference that the creditor issuing the second attachment became such creditor by discounting for said consignor, at the date and time of the last of said shipments, two bills drawn by the consignor against said shipment, and that the factor was advised, by the consignor’s letter inclosing the bill of lading for that shipment, of the drawing of said two bills against said shipment, and was requested to honor the same; and such letter and bill of lading was received by the factor on the 5th of April, 1854, before the first attachment was served or issued.

(Before Hoffman, Pierrepont and Moncrief, J. J.)

Heard, October 26th;

decided, December 24th, 1859.

This is an appeal by the defendants, White, Warner & White, from, a judgment declaring that they have no lien upon or right to the moneys forming the subject of the action, and directing that such moneys be paid to the defendant, George Milne, surviving member of a firm composed of himself and George W. Reed. The action was tried before Mr. Justice Hoffman, without a jury, on the 25th of February, 1859.

The action was commenced by John S. Patterson, administrator of Samuel Lewis, deceased, as plaintiff, to recover balance of proceeds of property consigned to the defendant, Samuel Perry, a factor and commission merchant, for sale, by one Albert Lewis, of Cincinnati, Ohio, and was brought against Perry alone. The plaintiff claimed that the property and the proceeds thereof remaining in Perry’s hands, had been assigned by Albert Lewis to one Henry Lewis, and by said Henry to the plaintiff’s intestate.

On the application of Perry, the said Albert Lewis and Henry Lewis, the firm of White, Warner & White, the firm of Milne & Reed, and John Orser, Sheriff, of New York, were also made parties, defendants.

On the further application of Perry, and on notice to all of said defendants, an order was made that Perry pay into Court the sum of $6,696.62, the balance of proceeds in his hands, with interest from the 22d of March, 1856, to the credit of the cause, (in all $7,618.73,) and that on doing so he be discharged from all claims from either party in respect to such property or its proceeds. Perry complied with said order.

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At the trial, it was determined that the plaintiff had no right to such moneys, and the contest (as he did not appeal from the judgment) narrowed to one between the firm of White, Warner & White, and the firm of Milne & Reed, both of which firms claim such moneys by virtue of attachments issued by them against said Albert Lewis, and executed by said John Orser, as Sheriff of the city and county of Kew York.

' The attachment against Albert Lewis, at the suit of White, Warner & White, was issued and served on the 6th of April, 1854. The property which Albert Lewis had then consigned to Perry, and which had come to the hands of the latter, was not of sufficient value to pay the advances and charges which Perry had made to said Albert Lewis thereon and upon other property not then received by him, but of the shipment of which he had been previously advised, and the bills of lading for which he had previously received.

But the property then in Perry’s hands, which Albert Lewis had previously consigned to him, and that covered by bills of lading then in Perry’s hands, which had not then arrived or been received by Perry, was worth more in' the aggregate than the amount due to Perry for advances and charges. The property not yet actually received in Kew York, had been shipped and was in course of transportation to the city, and between the said 6th day of April (when the attachment of White, Warner & White was issued and served on Perry) and the 15th day of June, (when the attachment of Milne & Reed was served on Perry,) it all came into Perry’s hands.

The proceeds of the last shipments made by Albert Lewis, were claimed by Milne & Reed to constitute the surplus in the hands of Perry, after paying his advances and charges. Ko property was shipped by Lewis after the 1st day of April, 1854, but on that day an invoice amounting to $8,548.92 was shipped from Cincinnati to Perry ; and on the same 1st of April, 1854, said A. Lewis drew two drafts or bills of exchange on Perry, each for the sum of $4,202.99, one dated that day, and the other April Sd, to his own order, which two drafts were discounted for him by said Milne & Reed of Cincinnati, about the 1st of April, 1854, who paid the proceeds to said A. Lewis. On the same day, A. Lewis wrote to Perry inclosing the bills of lading for the property

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shipped on said 1st day of April, advising him of having drawn said two drafts against the same, and requesting him to honor them. Perry received this letter on the 5th of April, 1854.

On the 6th of April, 1854, after the attachment of White, Warner & White had been served, these drafts were presented to Perry for acceptance. He refused to accept them on account of such attachment having been served, and they were protested for non-acceptance.

On the 15th of June, 1854, Milne & Reed, in an action commenced by them against Albert Lewis on said drafts, procured an attachment against the property of said Lewis, which was served upon Perry on the same day.

On or before the 15th of June, Perry had received the property shipped on the 1st of April, and also all prior shipments; and the sales of the consigned property extended into the following August and September. There was a balance produced from the whole property received by Perry, of the amount so as aforesaid brought into Court, over and above his advances and charges.

He made no advances at any time on the specific property shipped on the 1st of April, 1854, except the charges for freight, insurance, &c. On the 1st of April, 1854, he was a creditor of Albert Lewis to about the sum of $25,000, having made advances from time to time, on being advised of the shipment of property, much of which had not then reached his hands; nor does the evidence show that it had arrived within the State of New York on the 6th of April, 1854.

White, Warner & White and Milne & Reed had prosecuted their attachment suits to judgment prior to the trial of this action, and the records of recovery therein were put in evidence.

Each attachment was served by a delivery by the Sheriff to Perry of a copy thereof, having indorsed thereon a certificate signed by the Sheriff’ and dated on the day of such service, in these words, viz.:

“ I hereby certify the within to be a true copy of the original warrant of attachment, as served by me in this suit, and that the attachment, of which the within is a copy, is now in my hands, and that in it I am commanded to attach and safely keep all the estate, real and persona], of the said Albert Lewis within my county, (except such articles as are by law exempt from execu

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tion,) with all books of account, vouchers and papers relating thereto; and that all such property and effects, and the debts and credits of the said Albert Lewis, now in your possession, br under your control, are or which may come into your possession, or under your control, will be liable to said warrant of attachment, and you are hereby required to deliver all such property, &c., into my custody without delay, with a certificate thereof.”

Perry sold the several shipments, indiscriminately, for the purpose of paying advances; not selling property first shipped to pay the advances first made.

The Judge held that the resulting general balance of $6,696.62 was to be considered as derived from property received by Perry after the 6th of April, 1854, and most of it from that shipped on the 1st of April; that White, Warner & White acquired no lien on it under their attachment; but that the attachment of Milne & Reed was a lien thereon, and that the net surplus thereof be paid to Milne as survivor of Reed, he having died pendente lite.

White, Warner & White excepted to these conclusions severally, and from the judgment entered upon said decision they appealed to the General Term.

S. Weir Roosevelt, for appellants.

I. It is the opinion of the Court below, that the fund in dispute was chiefly produced by the sale of the last lot of goods, and that Perry had paid charges, but had not made advances on this last lot specifically. It appears, however, from Perry’s accounts, which are in evidence, to have been the course of dealing between Lewis and Perry, not to discriminate among the various lots, but to sell a portion, of one with another as suited the market, not keeping separate accounts with each lot; and if one lot did not fully repay advances, the next lot was sold to meet the deficiency, and such indeed is of necessity the general custom among commission merchants. It is therefore difficult to ascertain as a matter of fact which of the lots per se may fairly be said to have produced the fund in dispute. It appears to be conceded by all parties, however, that Perry was consignee of all the goods, and in possession of the bills of lading, with the right to sell the whole in order to pay himself advances, commissions and expenses, and he did sell the whole accordingly. No attempt

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was made under either of the rival attachments, to take possession of the goods or interfere with Perry’s sales, and nothing was done by the Sheriff beyond the service of copy and notice, and the Court finds that the last lot was subject to Perry’s advances, which were a balance of advances not repaid by the proceeds of the previous lots.

II. Under these circumstances, we do not understand how the presence of the goods in the county can affect the priority of the attachments, as between these defendants. It has been determined (Brownell v. Carnley, 3 Duer, 9 ,) that the Sheriff cannot take possession of goods so consigned, and, in fact, he did not take possession. How, then, is the lien of an attachment made more strong by the bodily arrival within the county, or more weak by the non-arrival, of certain goods which the Sheriff is not permitted to touch when they come here, and which, as goods, are absolutely controlled by the consignee. It is even doubtful (see above case) whether the creditors could have obtained possession on any terms, but certainly they could not without paying Perry his advances and commissions on the earlier lots, and his expenses and commissions on the last lot. When no levy can be made on goods under an attachment, their precise location, at a given moment, is both theoretically and practically of little importance, and can certainly not settle priorities.

III. Neither of the attachments, therefore, could in law, or did in fact, reach the goods, nor can either be said to have reached the interest of the consignor in the goods. The interest of a party in goods, as such, cannot be considered as attached, when the creditor is not enabled, by force of the writ, directly or indirectly, to take possession of or qontrol the property. Perry, the consignee, might rightfully have sold all the goods before they came into the county, and had, in all respects, complete control. (Brownell v. Carnley, 3 Duer, 9 ; Bryce v. Brooks, 26 Wend., 367 ; Knapp v. Alvord, 10 Paige, 205.) Supposing this and the former propositions to be assumed as correct, the question is, what was effected by the service of the certified copies of the writs and notices upon Perry, the consignee. It is conceded that, on the same day, but before the service of the first attachment, the bills of lading of the last lot of goods were

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received, by Perry, and we contend, on behalf of White, Warner & Co., that at that moment the consignee, Perry, obtained the immediate right to sell the goods, and held the legal title, while Albert Lewis, the consignor, at the same moment, became so far a creditor of Perry, that the goods would be charged against Perry in anticipation of the final accounting. When the bills of lading came to hand, Perry might have forthwith sold the goods “ to arrive,” and forthwith transferred the title accordingly. What interest, then, did Lewis, the consignor, retain after the arrival of the bills of lading which could be the subject of attachment? He had, perhaps, the right of reclaiming the bills of lading, or of stopping the goods during their transit, a right which he did not exercise, and which no creditor did or could exercise for him by attachment. He had, also, perhaps, the right of demanding a return of the goods on paying the consignee his advances, if any, and expenses and commissions; another right not exercised, if capable of being exercised, by the attaching creditors. He had, lastly, a light, clear and unquestionable, which he did exercise, and that was, to consider Perry as a debtor charged with the goods, and personally responsible to account for the proceeds, and leave him to act upon the bills of lading, and exercise his own rights as consignee, undisturbed, receiving and selling the goods to pay the advances, if any, or if none, the expenses and commission. This last right as creditor, or interest of Lewis in a final accounting between himself and Perry, was the subject of attachment, (Code, §§ 284, 235,) and as it began to exist at the moment the bills of lading were received, it was reached first by the first attachment. The amount of indebtedness was, it is true, not yet fixed, but there was an existing interest, and the position of Perry may be compared to that of a person holding collaterals in pledge, in which case an attachment against the pledgor, served on such holder, would, we think, obtain priority for any surplus, although the balance of account could not be ascertained before a sale of the collaterals. Indeed, the amount between Perry and Lewis was not fixed until after the service of the second attachment, which, in this respect, as in many others, is in the same dilemma as the first. We contend, of course, as is in substance found by the Court below, that Perry rightfully held and sold this last lot to

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repay a portion, of the previous advances not refunded by the former lots, as well as expenses and commissions; but the case would not be varied, if the sale of the last lot had been merely to obtain a return of expenses and commissions; and we have endeavored to show that even under such circumstances the attachment of White, Warner & Co. has priority, because:

1st. Under neither attachment .was any levy or inventory made, or possession taken of the goods.

2d. Under both, the inchoate indebtedness of Perry to Lewis was attached in the order of service.

IV. A levy under any attachment should enure to the benefit of a former attachment by statute, by analogy with executions at common law, and as a matter of sound policy. (Peck v. Tiffany, 2 Comst., 450, 457; Ray v. Birdseye, 5 Denio, 624 , 625; Solomon v. Freeman, 4 Sandf. Ch., 515 ; 3 R. S., 5th ed., 645, § 15, [366] ; Code, § 232; 12 J. R, 403.)

V. It must be noted that Lewis was not himself owner of the goods, but was consignee or pledgee, having made advances, and, therefore, possessing a lien which he transferred to Perry by the bills of lading; and this fact removes the goods, as goods, still further out of the scope of the attachment, and renders the interest of Lewis more plainly such a claim, as when assigned to Perry, was subject forthwith to attachment without reference to the location of the goods.

G. 0. Goddard, for respondent

I. It was found by the Court at Special Term, and was clear from the evidence, that, at the time of the attachment of White, Warner & White, April 6th, the advances and charges of Perry on the property of Albert Lewis, then in Perry’s hands, much exceeded the value of the property; so that, as the accounts then stood, there was nothing to attach in Perry’s hands; on the contrary, Lewis was largely a debtor to Perry. Also, that, at the time of the attachment of Milne & Co., June 15, all the property had been received by Perry, creating a balance in Perry’s hands, which constitutes the fund in Court, and which was derived from the property received after April-6, and chiefly from that shipped April 1.

To which finding o'f facts there is no exception.

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II. The decision at the Special Term was correct, that White, Warner & White, by their attachment, acquired no right to the proceeds of the property which arrived in New York, and was received by Perry after April 6, and that they were not entitled to the funds in Court.

Their attachment had no prospective operation, so as to reach property coming into the county, and into Perry’s hands, after the service of it. It was served on the 6th of April, and at no subsequent time.

By the terms of the Code, and by the nature of the writ of attachment, no property is reached by it, except that in the county and on hand when it is served. (Code, §§ 231, 232, 235, 236,240 and 241; 2 R. S., 2d ed., p. 44, §§ 7, 8, 28-34; Learned v. Vandenburgh, 7 How. Pr. R., 379; S. C., 8 id., 77.)

Attachments in other States are analogous.

“ The moment of service is the precise period when a debt is attached, and if it be then existing, it is secured by the process; but if it does not then exist, no lien is created, as the operation of an attachment from its nature is immediate and not prospective.” (Fitch v. Waite, 5 Conn. R., 122.)

“ To constitute an attachment of goods, the officer must have the actual possession and custody. This results from the legal import of the word; and in this sense it is now to be understood.” (Lane v. Jackson, 5 Mass. R., 162 .)

In this respect, attachments are unlike executions, which take effect by delivery to the Sheriff, except against bona fide purchasers for value.

III. The bills of lading being in Perry’s hands did not subject to the attachment property on the Ohio river, or elsewhere, on its way to New York. They are merely evidence of Perry’s having some interest in the property, but have no effect to bring the property within the reach of the Sheriff.

As to that shipped on the 1st of April, Perry had then no interest in it, not having advanced or paid anything on it. (Grant v. Shaw, 16 Mass. R., 341 .)

IY. Perry had a specific lien for his advances and charges on all the property, except that shipped on the 1st of April; on which last he refused to advance.

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As against Milne & Co., had the question arisen, Perry would have been bound to look first to the property on which he had such specific lien. But the funds in Court are found, in fact, to arise from the property received after April 6, and chiefly from that shipped on the 1st of April.

None of the exceptions to the decision at Special Term are well taken, and the judgment should be affirmed, with costs.

The material question arising upon the evidence in the Court below was, whether “the attachment of Milne

6 Reed, though subsequent in time, took priority in effect?” And it was held it did; and judgment was ordered for the payment of the funds to them. This, in my opinion, was erroneous.

The Court below found that the debtor, Albert Lewis, had such an interest, or property, as was the subject of attachment. This view cannot be questioned: it is expressly so decided in 3 Duer, 9 .

The property was in Samuel Perry, by virtue of his previous advances, and the possession of the bills of lading gave to him, as against the world, the right to receive the goo.ds and to dispose of them. ( 3 Duer, 12 ; 5 Seld., 559.)

A notice of the issuing of the attachment was served upon Mr. Perry in each action. The same Deputy Sheriff had possession of both writs.

In the case of White et al., the notice and copy attachment was received by Mr. Perry on the 6th day of April, 1854, and while the goods were on their way to New York. In the matter of Milne & Reed, the notice was served on the 15th day of June, 1854, and- after the arrival of the goods at New York. Strictly speaking, neither attachment was levied upon the property in the hands of Mr. Perry, nor was there, on behalf of either party, such a service of the attachment as the law requires to create a lien. No inventory was made, and no notice given specifying the particular property or interest seized. ( 5 Duer, 250 ; 9 Conn., 530 ; 7 id., 271; 4 E. D. Smith, 443.)

In neither instance did the Deputy Sheriff receive a certificate from Mr. Perry.

The attachment of White et al. was a valid and continuing process in the hands of the Sheriff, at the time of the receipt and service of notice under the attachment of Milne & Reed.

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An-attachment is an “ anticipated execution” to take and hold the property, subject to a judgment in the action. ( 16 Johns., 107 ; Thayer v. Willet, in this Court, November 12,1859.^[1] )

Executions in the hands of the Sheriff bind the goods, and any levy made by him enures to' the benefit of the executions in the order in which they were received. ( 1 Cow., 592 ; 7 Taunt., 57; 1 Arch. Pr., 259; 2 Comst., 451.)

The statute makes it the duty of the Sheriff, upon the receipt of any execution, to indorse thereon the year, month, day and hour of the day when he received the same. (3 R. S., 5th ed., 643, §10.)

Section 14 provides that “if there be several executions issued out of a Court of record against the same defendant, that which shall have been first delivered to an officer to be executed shall have preference, notwithstanding a levy may be first made under another execution;” * * and by section 15 it is further provided that “if there be one or more executions, and one or more attachments, against the property of the same defendant, or if there be several attachments, the same rule prescribed in the last section shall prevail in determining the preference of such executions or attachments.” (2 Comst., 451.)

Any other rule or practice would necessarilylead to confusion, and possibly might produce collusion and bad faith. ( 16 Mass., 819 , 322.)

Previous to the Code there were, as now, the attachment for the benefit of creditors generally, (under the absent, concealed and non-resident debtor act,) and for the specific benefit of the pursuing creditor, by virtue of the non-imprisonment act, &c.

The case of Grant v. Shaw, ( 16 Mass., 341 ,) cited in the Court below, was a case in which the defendant, at the time he was first summoned as trustee, had no property or interest in any property belonging to the debtor. ' He had expressly declined to accept the shipment, although the bills of lading had been sent to him: having refused acceptance and payment of the draft drawn thereon, the bills had been returned to the debtor. The plaintiff, after the return of the bills of lading, and the receipt of the goods by the defendant, again summoned him, but not until other creditors had served him with their processes.

1 Ante, p. 344.

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It, is quite evident, from the statement of the case, that the facts are dissimilar to the case under consideration.

The Court, Parker, J, said “ that the defendant was not trustee until he had accepted the consignment and received the goods: until then it rested in contingency whether he would be a debtor of the consignors or not.” Had the debtor accepted the bill when presented, there could have been no question.

The statutes of Massachusetts provide that the garnishee cannot be attached, inter alia, 4th, by reason of any money or other thing due from him to the defendant, unless, at the time of the service of the writ on him, due absolutely and without depending on any contingency. (R. S., Mass., 1836, pp. 643, 651.)

An examination of the statutes did not enable me to find a provision similar to that in our State relative to the priority of executions and attachments, and I believe none exists.

I am clearly of the opinion that, as between the two attaching creditors—and the contest is confined to them—the attachment first delivered to the Sheriff had priority, and that the Court below erred in giving preference and awarding judgment in favor of the latter.

The judgment should be reversed, and a new trial ordered.

(The opinion, after discussing the evidence in relation to the state of the accounts between Perry and Albert Lewis, on the 6th of April, 1854, and the value of the property then in Perry’s hands belonging to Lewis, proceeds as follows:)

The first important question is, whether an attachment will bind goods received by a consignee, subsequent to its service, when that consignee had, at the time of service of the attachment, the bill of lading in his hands, with advise of the consignment, the goods being out of the county, but on their passage from a foreign place. And this question arises as between such attaching creditor, and a subsequent one, attaching after the goods had arrived within the county, and when they or their avails were in the consignee’s hands.

The answer to this question in the affirmative would dispense with the necessity of examining any other point and decide the case in favor of the appellant. I think, however, that this simple and unmixed question cannot be so .answered.

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The 227th section of the Code provides, that a plaintiff may have the property of the defendant attached in the manner prescribed as a security for the satisfaction of such judgment as may be recovered by the plaintiff.

By section 231, the warrant is to be directed to the Sheriff of any county in which property of such defendant may be, and shall require him to attach and safely keep all the property of such defendant within his county, or so much thereof as may be sufficient to satisfy the plaintiff’s demand. Several warrants may be issued, at the same time, to the Sheriffs of different counties.

So by section 234, all property in this State of a defendant is liable to be attached and levied upon, and sold to satisfy the judgment.

Thus, under the Code, the property which may be attached is, first, property as defined therein; and next, that property when found in the State. If in the State, then the warrant must go to the Sheriff of the county in which it is found.

Thus the question is reduced to this, was the bill of lading in Perry’s hands, property within the meaning of the Code ? If it was, then it was within the county of the Sheriff of New York.

The definition of property, in section 464 of the Code is, that it includes property, real and personal, and the definition of personal property, is, “ money, goods, chattels; things in action and evidences of debt.”

It seems impossible to understand how a bill of lading, after it is in the hands of the consignee, is a thing in action belonging to the consignor named in it, or an evidence of a debt owing to him. Its delivery is a symbolical transfer to the consignee of the property and of a right of action against the carrier. It contains no evidence that the consignee is indebted to the consignor.

The two cases, in Massachusetts, of Grant v. Shaw, ( 16 Mass., 341 ,) and Andrews v. Ludlow, ( 5 Pick., 28 ,) are exactly in point, unless there exists a distinction upon any peculiar different provisions in the statutes of that State.

The 24th section of the revised act of 1836, (ch. 90, p. 549, Laws of Mass.,) provides, that all goods and chattels that are liable to be taken in execution may be attached and held as security, except such as from their nature or situation have been

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considered as exempt from attachment, according- to the principles of the common law, as adopted and practised in this State.

By the 19th section of chaper 97,. title III, part III, page 589. “ All chattels, real or personal, and all other goods that are

by the common law liable to be taken in- execution,” may be taken and sold thereon, with certain-exceptions.

It appears to me, that there is nothing .in the statutes of Massachusetts, differing from our own definition of property, which, may give rise to any doubt of the pertinency of the cases referred to, unless it be that a bill of lading is a chose in action, or evidence of a debt belonging to the consignor. This, I have before stated, does not seem to be a tenable proposition.

The case of Grant v. Shaw, decides expressly, that one who has received a bill of lading and invoice of goods consigned to him cannot be charged as Trustee of the consignor until the goods have arrived, and the consignment has been accepted. An attachment laid when the bill of lading only was on hand, was superseded by a subsequent attachment laid after the goods had arrived.

2. But the question as presented upon the peculiar facts of this case is different, and of no little interest and concern in this mercantile community. When the attachment of the appellants was served on the 6th of April, Perry had on hand an aggregate of goods, notes given for goods, and bills of lading representing goods on the way to him, and subsequently received, more than enough to discharge all his demand, including immature acceptances-; and to leave a balance equal to the amount claimed by these attaching creditors. Again, the remaining goods, and the unpaid’ notes, then on hand, exceeded the amount of the demand of the appellants.

It is stated as-a rule of law, that the attachment may be defeated' by the lien of the garnishee upon the goods of the defendant, provided it be to the full amount of the value of the goods attached. If it be not to- the full extent of the value, then the judgment is taken for the goods subject to the garnishee’s lien, which must be ascertained from the garnishee or at the trial (Locke on Attachment, 57.) He cites Giles v. Nathan, (infra,) and Bohun’s Privileges of London, 270.

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In Giles v. Nathan, (5 Taunt., 558,) cited by Mr. Locke, it was held that the property in a cargo for which the master had signed bills of lading might be transferred by delivery, without the indorsement of the bills of lading. The title would be subject to the claim of a bona fide indorsee of the bill of lading. But whether such property passed or not, Hothan, the consignee, had a lien upon the cargo for advances, and no creditor of the owner could attach it, or the produce of it, without discharging such lien. Without doing this, Levin himself (the owner) could not have received it, and they who attached the property as belonging to Levin, could not have a larger right than he possessed before the attachment. Supposing, therefore, that in the interval between the delivery of the cargo and the indorsement of the bill of lading, Nothan had a mere lien upon it, still it could not be attached as the property of Levin without discharging it from the lien.

In Curtis v. Norris, ( 8 Pick., 280 ,) an engagement to pay was held enough to prevent the attachment from affecting more than the surplus of goods in the garnishee’s hands.

In The Bank of South Carolina v. Levy, (1 McMullan, 430,) it was decided that a garnishee, to warrant the retention of goods on hand, need not prove that he was entitled to bring an action. It would be sufficient if his outstanding liabilities exceeded the amount of funds. They gave him a special property superior in its nature.

And in Nolan v. Crook, ( 5 Humph., 312 ,) an attachment was served' when the garnishee was in advance, for an actual cash balance, and was then under liabilities which he paid before the hearing of the cause. He was allowed for both, before the ■attaching creditor could come in.

I apprehend that the law is that a factor or consignee, such as .Perry was in this case, could sustain his lien tor his own unpaid acceptances against an attaching creditor. (Black v. Zacharie & Co., 3 How. U. S. R., p. 483.) Yet there is some authority to the contrary. (See Nelson v. Martin, cited Locke on Attachment, 57, note; Taylor v. Gardiner, cited by Mr. Sargeant, as decided by Judge Washington, C. C. U. S., January, 1811, on Attachments, 103; 2 Wash. C. C. R., 686.)

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But the lien, in this point of view, may be regarded as eventual and conditional, leaving the consignee a right to hold and resort to existing funds tor reimbursement when he pays his own liabilities. The argument that the actual property in the notes was in Lewis, thus receives some confirmation.

The property in all the goods comprised in the bills of lading passed for many purposes to Perry, by his possession of such bills, coupled with his being in advance, and passed to him before the goods themselves had arrived. (Allen v. Williams, 12 Pick., 297 ; see further Anderson v. Clark, 2 Bing., 20; Haillie v. Smith, 1 Bos. & Pull., 513; Byans v. Mix, 4 Mees. & Welsb., 792; Brownell v. Carnley, 3 Duer, 9 .)

This property, or right in property, extended to all the goods indiscriminately. Although in point of fact there was a property in more goods represented by the bills of lading than the amount of his demand, yet neither Lewis nor any one under him could claim a right to separate any particular parcel and withdraw it from Perry’s hands without payment of the balance due him.

The correlative right and interest seems necessarily to have existed in Lewis. His remaining interest extended on the 6th of April as much to the goods unsold, and to the notes unpaid for goods sold, as to the goods represented by the bills of lading, and in the course of transportation. If so, there was actual property in New York in Perry’s hands, which the attachment could fasten upon.

To repeat, Perry had, on the 6th of April, a heavy debt owing him; he had some goods on hand, and notes taken on previous sales to an amount exceeding $8,000; he had bills of lading made in his name by the owner, comprising property which, with the goods and notes above mentioned, exceeded in value his demand by over $6,000.

Why was not Lewis’ interest in the excess of this properly, applicable to the aggregate property; why not as much applicable to the unpaid notes then on hand, as to the goods in transition, and subsequently received ?

In considering the cases above cited, and the principle they appear to involve, it seems to me more accurate to say, that the right of a consignee in advance for his consignor, to property on

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hand, or to a bill of lading made in his name, is a qualified pro-, perty commensurate with and to support his lien, and no more; that strictly and in legal precision of language, the consignor is the owner. The qualified property enables the consignee to sue others for interfering with the goods, enables him to compel a delivery, or to support a claim for damages, and to defeat a claim of the shipper to stop in transitu. Still it is a special property, an ownership as lien holder, and nothing more. It is not absolute, .it leaves the direct title, and something of interest in the consignor. A lien, in its general sense, is the right to retain the property of another to answer a demand. (Bouvier Law Dict., tit. Lien; Peck v. Jenness, 7 How. U. S. R., 612.) The reasoning of the Court in Brownell v. Carnley, ( 3 Duer, 9 ,) appears to me to sustain this view.

The 32d section of the statute of Massachusetts (ch. 90, part III, p. 550, ed. of 1836) provides that if the estate that is attached (real property) is subject to a mortgage or other incumbrance, and the mortgage is redeemed, or the incumbrance removed before the levy of the execution, the attachment shall hold the premises discharged of the mortgage or incumbrance, and the execution may be levied with the same effect as if the mortgage or other incumbrance had never existed.

Í may also advert to the cases of Scott v. Whittemore, (7 Fost. R., 309,) and Hill v. Wiggin. (11 Fost., 300.) In these it has been held that where property in the hands of a mortgagee was attached, no one but the mortgagee himself could make an objection as to the right of property being in the mortgagor. The former case was a mortgage of personal property. “ The mortgagee may or may not insist on his rights as mortgagee, and thus avoid the attachment. Until he does so elect, the attachment remains valid, though defeasible.”

Again, it appears to be a well settled general rule, that property which is subject to execution, is liable to attachment. (Handy v. Dobbin, 12 John. R., 220.)

“ Property ” may be taken under the attachment. Its definition by the Code has been before stated. An execution may be against the property of the judgment debtor (§ 286) and the fi. fa. :is to direct satisfaction first out of his personal property, and if enough cannot be found, then out of the real property. It

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seems a very just inference that by the Code, what may be seized upon execution may be attached.

Now, by .the 20th section of the act “ of executions against property ” (2 R. S., 366,) when goods or chattels shall be pledged for the payment of money, or for the performance of any contract or agreement, the right and interest in such goods, of the person making such pledge, may be sold on execution against him, and the purchaser shall acquire all the right and interest of the defendant, and shall be entitled to the possession of such goods and chattels, on complying with the terms and conditions of the pledge.

It is insisted on behalf of the defendants, White, Warner & White, that the provisions of the statute respecting executions (2 R. S., 365, §§ 13-15,) apply to the present case.

By these enactments, executions bind from the time of' the delivery. If there are several executions issued out of a court of record against the same defendant, that which shall have been first delivered to an officer to be executed, shall have preference notwithstanding a levy first made under another execution; but if a levy and sale has been made under the subsequent execution before an actual levy under the execution first delivered, the goods shall not be levied upon or sold under such first execution. Then the 15th section provides that if there be one or more executions and one or more attachments against the property of the same defendant,, or if there be several attachments, the same rule prescribed in the last section shall prevail in determining the preference of such execution or attachment.

By the 16th section, any execution or attachment issued out of a Court, not of record, if actually levied, shall have preference over any other execution issued out of any Court, whether of record or not, which shall not have been previously levied.

The sale under the subsequent execution is rendered valid.

• The purchaser’s title shall not be defeated by a future levy and sale under the senior execution. But it is said that in making a disposition of the proceeds on such sale, the Sheriff must be governed by the priority in the delivery of the executions to him, unless such prior executions have for some reason become dormant as to the subsequent ones. (Peck v. Tiffany, 2 Comst., 451.)

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The revisers, in their note to these provisions, (vol. 3, p. 727,) state that they are conformable to 4 Cowen, 411. There a fi. fa. first delivered to the Sheriff took preference of an attachment levied before the fi. fa. was levied. Lambert v. Paulding, (18 John. R., 311,) was relied upon as decisive. The attachment was from a Justice.

Ray v. Harcourt, ( 19 Wend., 495 ,) was decided under the 16th section of the act. A levy was made by plaintiff, a constable, on the 5th of August, 1834, by virtue of three attachments issued by a Justice of the Peace against the property of Clow. The Sheriff of the county of Ulster had received an execution, and had taken some steps towards a levy on the 4th of August, which was held insufficient as to the property in question. The attachments prevailed.

The provisions referred to can scarcely apply to attachments under the absent and absconding debtor act, found in the Revised Statutes of 1830. Those proceedings enured to the equal benefit of all the creditors who might come in. Attachments issued under that act, could not be discontinued without time being given to other creditors to come in. (In the Matter of Bunch, 9 Wend., 473 .)

• But there was a series of statutes under which attachments, similar to those of the Code, issued, particularly on proceedings in Justices’ Courts. (1 R. L., 1813, p. 396; Laws of 1824, ch. 238, §§23, 24.) Under-these provisions it has been held that the constable, under an attachment, could take any goods and chattels which could be levied upon by execution. (Handy v. Dobbin, 12 John. R., 220.) That the lien created by an attachment under the act, (session 31, ch. 204, §21; 1 R. L., 1813, p. 398, § 23,) when duly served, was paramount to a subsequent execution or attachment. The lien would expire if the creditor did not prosecute his suit to judgment and execution with due diligence. (Van Loan v. Kline, 10 John. R., 129; Sterling v. Welcome, 20 Wend., 238 .)

To attachments of this character, the provisions in the enactment as to executions may well apply.

But a difficulty exists in understanding how these enactments of 1830 can apply to the attachments under the Code of 1848, without special provision making them applicable.

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The 232d section, referred to, does not meet the case. The Sheriff is to proceed in the manner required by law in cases of attachments against absent debtors. It prescribes his course of action merely.

The 471st section of the Code provides that the second part of that act shall not affect “ any existing statutory provisions relating to actions not inconsistent with this act, and in substance applicable to the actions hereby provided.1’

The enactment, then, of the Revised Statutes before mentioned, remains in force, but the question still is, has that enactment been made applicable to attachments under the Code.

But if these provisions can in any way be treated as prevailing under the Code, yet it seems clear that if there is no property in the hands of the party, which is the subject of an attachment at the time of notice served, property so subject, coming after-wards to hand, is not affected. If, then, another attachment is levied it must prevail. An attachment takes its effect, not from delivery to the Sheriff, but from its service.

The ground, therefore, upon which I place my judgment in the case, is that before stated, of an actual sufficient attachment of leviable property subject to the lien of Perry, which he alone had a right to say, displaced the effect of the attachment, and as he has been paid the amount of his lien, that property has been left substantially bound.

Pierbepont, J., concurred in the conclusion that the judgment should be reversed, and a new trial granted, with costs to abide the event.

Ordered accordingly.