Stevenson v. Pemberton

* APRIL TERM, 1760. William Allen, Chief Justice, Lawrence Growden and William Coleman, Justices. Stevenson v. Pemberton. Factor’s lien. A. in the West Indies, being indebted to B. in Philadelphia, consigned goods to him, directing him to sell them on his (A.’s) account, and to apply the proceeds, after first satisfying himself, to the payment of other creditors; C., a creditor of A., attached the goods in the hands of B., before sale: Held, that B. was entitled to retain the goods for the payment of his own debt. Scire eacias against defendant as garnishee. The case was : C. in the West Indies was indebted to P., the defendant, for bills of exchange drawn by C., in favor of P., which were protested; P., by letter, solicits C. for security ; C. consigns a quantity of rum to P., and by letter directs P. to sell the same for his (C.’s) account, and apply the proceeds to the ¡payment of some protested bills, drawn by C. in favor of other people, “ first being satisfied that his (P.’s) bills were paid.” The bills of lading express this rum to be shipped on the proper account and risk of C. The rum comes into P.’s hands, but before any sale, the plaintiff, S., a creditor of C., brought a foreign attachment against C., and attached these goods in the hands of P. The question on these facts, as found by a special verdict, was — whether P. should retain the goods for the payment of his own debt, or whether the property remained in C., so as to be liable to the attachment of S. ? It was urged by the counsel for the plaintiff, that the consignment of this rum to P., on the account of C., with orders to sell the same on the account of C., and then to apply the proceeds according to his directions, did not alter the property, but left the same in C., until a sale. And that P. was only to have a future interest in the money arising from the sale of the goods. But the plaintiff being as well a creditor as the defendant, and coming in under the law of attachments, before a sale, and while the property, by the very terms of the consignment, remained in C., ought to be first paid his debt. The counsel cited Bro., Property 2; 2 Mod. 242; 2 Ch. Cas. 7, 36; 1 Salk. 160; 12 Mod. 156. For the defendant, it was contended, that the rum was a security in the hands of P., for the payment of P.’s debt, and that P. was a trustee for himself and the other Dutch bill-creditors. And that such a special property was vested in P., that C. himself could have no remedy to get these goods out of the hands of P., until P.’s debt was satisfied ; and that the plaintiff could be in no better case than C. himself. The cases cited for the defendant were 2 Vern. 428; 2 T. Jones 222; 2 P. Wms. 326; Bro., Act. sur Case, 113, 271; Finch 299, 236; 10 Mod. 432; Yelv. 164; 2 Leon. 30; 10 Mod. 144; 2 Co. 26; 1 Str. 165. See Harman v. Fishar, Cowp. 125, et ante. [MAJORITY — *By the Court.] *By the Court. This rum appears to have been sent to satisfy P.’s debt. If it had been money, there could have been no doubt but the defendant would have retained it. And the only difference is, that a commodity was sent, which must be converted into money, before the sum to be paid to P. could be ascertained ; but, as to P.’s interest in it, tbe case was the same. Therefore, judgment, by the whole Court, was given for the defendant, Chew and Moland, pro Quer. Galloway and Dickenson, pro Def. See United States v. Vaughan, 3 Binn. 394; Corser a Craig, 1 W. C. C. 424; Sharpless v. Welsh, 4 Dall. 279; Moore v. Spackman, 12 S. & R. 291.