Mitchell vs. Byrne. in this instance: at least they appeared to have rendered services, and were rendering them, in regard to that vessel and cargo, by authority of the owner, when the attachment of defendant was interposed; and it occurs to me now, that if that obstacle had wrongfully interfered with the right of specific lien that would rightfully have accrued, the wrong doer should not thereby derive advantage. "With regard to the other three questions, I expressed an opinion in behalf of plaintiffs, thinking it reinforced by the cases of Schepler vs. Garriscan & Carpioin, 2 Bay, 224, and The Bank vs. Levy, 1 McM. 431. "The plaintiffs had a verdict for $23,784 50, and interest from December 5th, 1850." The defendant appealed, and now moved this Court to set aside the verdict on the grounds: 1. Because his Honor charged that the plaintiffs could bring an action for the price of the cotton shipped to H. G. Booth, the absent debtor, as soon as the bills of exchange drawn for the price were dishonored, and before they had taken them up. 2. Because he charged that the plaintiff's could bring an action for the price of the cotton, on the 5th December, 1850, although at that time the said bills were in the hands of a third party. 3. Because he charged that a liability to pay those bills constituted a lien on the ship. 4. Because he charged that the plaintiffs had a right to possession of the ship, in the character of factor, whereas it is contended that as to the ship they were not factors. 5. Because while he charged that no general lien on the ship can exist without a particular lien on the ship, he also charged that the plaintiffs, who had no particular lien, had a general lien on the ship. 6. Because he ought to have charged that the plaintiffs, who had no particular lien on the ship, had no general lien. 7. Because he ought to have charged that a general balance for factorage account, does not constitute a lien on ship. 8. Because he charged that the plaintiffs, who Charleston, January, 1853. had no particular lien, had constructive possession and qualified property in the ship. 9. Because he charged that the plaintiffs to whom the vessel was consigned by a mere letter of address, had by virtue thereof a constructive possession and qualified property in the ship :Whereas he ought to have charged that a consignee cannot acquire qualified property and constructive possession except by agreement in writing, expressly made for that purpose, and upon sufficient consideration. 10. Because the actual possession of every ship in a foreign port, unless otherwise agreed upon in writing, is in the owner of the ship and his agents the master and crew, and not in the consignee. 11. Because without actual possession, a factor has no lien for his general balance. J. M. Walker, for the appellant. Byrne being the first attaching creditor, his lien must prevail unless Mitchell & Co. can show a better and prior lien. The questions are, first, can Mitchell & Co. claim as creditors in possession, under the attachment Act? and, secondly, can they claim by virtue of any lien given by the law commercial? Unless Mitchell & Co. were creditors of Booth on the 5th of December, 1850, and their debt was then due that being the day on which the attachment was served-they cannot claim as creditors under the attachment Act; Walker & Bradford vs. Roberts, 4 Rich. 561. Were they then creditors of Booth? That depends upon the question, whether they had expended money for him? They had not. There is no proof that they paid money for the cotton, and then drew bills to reimburse themselves. They must be taken to have done what is usual on such occasions, that is, they drew bills to raise money to pay for the cotton. The money, then, was expended by Mitchell & Co. when they took up the bills, and not before. Cited Chit. on Con. 466; Pownal vs. Farrand, 13 Eng. C. L. R. 230; Bail. on Bills, 392; Thompson vs. Morgan, 3 Camp. 101; Story on Bills, § 113, 117, 119, 121; Mills vs. Starr, 2 Bail. 360; Bail. on Bills, 339; Merton vs. Mitchell vs. Byrne. Winnington, 1 Esp. R. 112; Chit. on Bills, 342; Bail. on Bills, 341, and contended that they had no right of action on the bills when the attachment was served. Their right of action accrued afterwards when they expended money for Booth. On the question whether they had a lien by the law commercial, he cited Story on Agency, 32, 33, 34, 354, 365, 376, 362; 15 Mass. 414, 490; 14 Pick. 322; 21 Pick. 399; Cross on Lien, 29, 315, 34; 3 T. R. 118; 6 T. R. 258; 6 Pick. 460, 120; 2 Des. 285; Abbott on Ship. 185; 9 East, 426; 1 Hill, 158; 14 Johns. R. 103; 2 East, 252; 19 Ves. 474; 1 Mason, 139; 2 Ib. 324; 1 Metc. 166; 2 East, 229; Cross on Lien, 24, 204; 1 Conk. 197; Abbott on Ship. 121, 344; Cross on Lien, 40 et seq. Porter, contra. Mitchell & Co. as factors of Booth, and being in possession, had a lien on the ship and cargo. To show that they were foreign factors, and as such entitled to a lien, he cited Story on Agency, 33, 376; 1 Liverm. 68; Cross on Lien, 246 ch. 16; Kruger vs. Wilcox, Amb. 252; Green vs. Farmer, Bur. 2216; 5 B. & Ald. 27. Then as to the possession. On this point he cited Story on Agency, 361; 2 Bay, 224. But Mitchell & Co. were creditors of Booth and as such had the right to retain under the Attachment Act, 3 Stat. 617, sections 1 and 6. Under the first section if plaintiffs had a lien they are protected in their rights: under the sixth section, it is only necessary for them to show (being in possession) that Booth was indebted to them. Contended that they were creditors capable of suing on the 5th December, 1850. On the 29th August, 1850, the cotton was bought and shortly afterwards shipped. It was paid for by Mitchell & Co. who drew for reimbursement. It is a mistake to suppose that the cotton was paid for with the bills. But this is immaterial. When the bills were dishonored and taken up by Moon, he did not, as he had the right, hold the bills to secure himself, but he charged Mitchell & Co. with the amount, and sent them the bills, thereby at once investing them with the title, with right of action against the acceptor. Cited 1 Ch. Pl. 347; Burden vs. Halton, 15 Eng. C. L. R. 37; Hunt vs. Alewyn, 17 Charleston, January, 1853. Eng. C. L. R. 187. He also cited Russ. on Factors, 214, 216; Stevenson vs. Blacklock, 1 M. & S. 535. Memminger, in reply. Are the plaintiffs, Mitchell & Co., entitled to priority of payment under the attachment Act? To entitle them to this right, two things must concur; first, they must be creditors, with right of action at the time, of the absent debtor; and, secondly, they must be in possession of the things attached. Were Mitchell & Co. creditors, with right to sue, on December 5, 1850? If not, they cannot claim, under the 6th sect. of the Attachment Act, as creditors in possession. Walker & Bradford vs. Roberts, 4 Rich. 561. Mitchell & Co. were the agents and factors of Booth and bound to follow his instructions. His instructions were to buy cotton, and pay for it with bills to be drawn on him. There can be no doubt that it was so paid for. The cotton was not first bought with the money of Mitchell & Co., who, then, reimbursed themselves by selling the bills drawn on Booth; but the money, with which the cotton was paid for, was raised by sale of the bills. Independently, therefore, of the bills, Mitchell & Co. have shown no cause of action against Booth. Then as to their right of action on the bills. When Moon paid the bills, he might have done so, either as the agent of Mitchell & Co., or for their honor. If he had paid as agent, then, they would have had a right of action from the time of the payment. But he paid for the honor of Mitchell & Co., and became himself the holder of the bills-the indorsee-and no right of action accrued to them till they paid him. Cited Bail. on Bills, 339; Biles on Bills, 200. Then as to the possession. From the words of the attachment Act, it would seem, that there must be an actual possession-the property must be in the hands of the garnishee. Commented on Schepler vs. Garriscan & Carpioin, 2 Bay, 224. The person in possession of the ship is the master. Story on Agency, 116. By the fact of consignment, the consignee has no possession of the ship. He is consignee of the cargo, and his possession is of that; but of the ship the master remains in possession. Mitchell & Co. were ship's husbands, and as such they had not the possession. Cited Mitchell vs. Byrne. Abbott on Ship. 106, 108; Story on Agency 35; 3 Kent, 156; 25 Eng. C. L. R. 161, 163; 15 Eng. C. L. R. 136. On the question, whether Mitchell & Co. had, as factors, a lien, which gave them a right to hold as against the attaching creditor, he cited Story on Agency, 354, 361, 365; Paley on Agency, 136; Story on Con. 513; 3 T. R. 118; 3 Eng. C. L. R. 343; 16 Eng. C. L. R. 420; Cross on Lien, 35. The opinion of the Court was delivered by FROST, J. The plaintiffs claim to retain the proceeds of the sale of the ship Æolus and her cargo, as creditors in possession, under the attachment Act: or by lien for the general balance of their account against Henry Gore Booth. The claim to retain, under the attachment Act, is resisted on two grounds: First, that the plaintiffs were not creditors of Booth, on the 5th December; because on that day, they had no actionable debt against him: And, second, that the plaintiff's had not such possession of the ship and cargo, as is required by the attachment Act, to constitute them creditors in possession. The facts which affect the first question are, that before the 10th August, 1850, (the precise time does not appear,) Booth sent to the plaintiffs an order to purchase, on his account, three thousand bales of cotton: that the plaintiffs completed the execution of the order by the purchase of 506 bales, on the 29th August; which they shipped to Booth on the 3d September. On the 4th, 7th and 8th of September, they drew bills on Booth, which were payable the 25th November. These bills were accepted, but protested for non-payment; Booth having, before the maturity of the bills, become a bankrupt. On the 27th and 28th November, Edward Moon paid these drafts for the honor of the plaintiffs: charged the plaintiffs in account with the amount: and on the 29th November, by letter, remitted the drafts to them: and claimed reimbursement by remittance: which was promptly done. Moon deposed that he looked to the plaintiffs, solely, for indemnity. The declaration contained the common count for money paid, |