50 Miss. 500 | Miss. | 1874
delivered the opinion of the court.
This is a controversy between the attaching creditor and a. claimant of the property.
It appears that the eight bales of cotton were on board the steamer Magenta at Yicksburg, to be transported to New Orleans, under a bill of lading, to be there delivered to the consignees, Dickmán & Hill. The cotton was shipped by John W. Boyd, at Shell Mound Landing, on the steamer Countess, on account of T. B. Gr. Weisenger, with the privilege of reshipment, and under that stipulation was, at Yicksburg, transferred to the Magenta. The bill of lading was, without objection, put in evidence to the
Diverse views have been advanced in argument, as to the effect of the bill of lading, as evidence of ownership. Most of the cases to be met with in the books, range themselves into one or the other o( two classes. First, a shipment of goods by the consignee, by his order, and for his account, where the consignee sustains to the consignor the relation of purchaser. The moment the goods are delivered to the carrier, they have passed from the seller, and are the property of the vendee, as completely as if they had actualy come to his possession, subject, however, to a right of stoppage in transition, if the purchaser has become insolvent. Such are the cases of Stokes v. La Rivere, 3 T. Rep., 466; Hodgson v. Loy, 7 T. Rep., 440.
The other class is a shipment of goods without order, and upon account of the shipper, where the shipper stands towards the consignee as principal, and the consignee sustains the character of agent or factor.
In these circumstances, the shipper continues the owner, and the consignee is his agent and subject, generally, to his orders as to the disposition of the property. The shipper may-at any time reclaim the goods before they have been actually sold. If the factor be a creditor of the shipper, he does not acquire a lien upon the goods, or any specific right, until they have actually come to his possession. Walter et al. v. Ross ei al., 2 Wash Cir. Court Rep., 288; Bonner et al. v. Marsh et al., 10 S. & M., 381-3 ; 2 Kent’s Com., 499.
In the case before the court, the cotton, when attached, was in transitu to New Orleans, consigned to Dickman & Hill, for sale for
But were not the statements of the agent competent, the exception taken being that such agency was not shown as authorized Pharr to speak for his principal?
The general ruje is, that where the acts of the agent will bind the principal, admissions respecting the subject matter will also bind him if made at the same time, and constituting part of the res gestee. 1 Greenl. Ev., § 113; Story’s Agency, § 131 to § 187. Such admissions are regarded as verbal acts, and part of the res gestee, and may be proved without calling the agent himself. Ib. ; 1 Greenl. Ev., § 114.
Williams, in his testimony, states “ that at the time Dickman '& Hill claimed the property, but before they had made out the papers, Pharr, who made the affidavit, had the conversation with the witness ” (the said Dickman & Hill residing and being in New Orleans * * ).
Declarations, to constitute a part of the res gestae^ must be made during the negotiation or progress of the business of the agency, and be of such nature as to give character to the acts done. Fogg v. Child, 13 Barb., 251; Dorne v. Southwork Man. Co., 11 Cush., 205. Here the declarations of Pharr were made about the claim of Dickman & Hill to the cotton, and while he was taking measures to assert it, and come within the rule we have laid down.
But the objection specifically made to their competency was, that proof had not been offered of any appointment or authority
The only remaining question is whether it was incumbent on the plaintiff to show a judgment against Weisenger. The court declined, at the instance of the claimants, so to instruct the jury.
And in so doing, followed the decision in Sherwood v. Houston, 41 Miss. Rep., 61, 62, in which it was held that the claimant was not bound to wait until judgment is rendered against the original defendant. Because, as said by the court, “ his claim of property presents a matter of individual right in him independent of the indebtedness of the defendant to the plaintiff in attachment.”
Is that so? The statute places the plaintiff in attachment in precisely the same attitude towards the claimant, as if he were plaintiff in detinue, and the claimant were defendant thereto. In that action the plaintiff must show his right of property and possession, and the defendant would succeed by showing a good outstanding title in a stranger quite as well as proving such title in himself.
In the claimant’s issue the plaintiff in attachment holds the affirmative of the issue, and must show the concurrence of circumstances which would warrant a sale of the property to pay his debt, and the claimant may remain passive and rest in security until the plaintiff has made affirmative proof Manifestly one fact he must prove is that the defendant in attachment owes the
The condition of the claimant, is much like that of a garnishee, and it has been settled as to him that there must be judgment against defendant in attachment. Berry v. Anderson, 2 How., 649; Whitehead v. Henderson, 4 S. & M., 704; Ford v. Hurd, ib., 683.
For these reasons the judgment of the circuit court is reversed,, and remanded, and a venire facias awarded.