April Term, 1760.
|William Allen, Chief Juſtice.|
Stevenson verſus Pemberton.
SCIRE facias 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 Favour 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 from proteſted Bills drawn by C. in favour of other People "firſt being ſatisfied that his (P's) Bills were paid.—The Bills of Lading expreſs this Rum to be ſhipt on the proper Account and Riſque 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 the 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 Attachments of S?
It was urged by the Council 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. till 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 Confſignment, remained in C. ought to be firſt paid his Debt. The counſel cited Bro. Property 2. 2 Mod. 242. 2 Chan. Caſes. 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. till P's Debt was ſatisfied; and that the Plaintiff could be in no better caſe than C. himself.—The Caſes cited for the Defendants were 2 Very 428. 2 Thomas Jones 222. 2 Peere Williams 326. Bro. Act Caſe 113. 271. Finch 299. 236. 10 Mod. 432. Yelv. 164. 2 Lee 10 Mod. 144. 2 Co. 26. 1 Stra. 165.
- See Comp. 125. at ent.