Wade & Co. v. Hamilton,

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Notebook

| Ga. | Jan 15, 1860

By the Court.

Stephens, J.,

delivering the opinion.

1. Wé think that Hamilton’s delivery of this cotton to the common carrier for the claimants, and the carrier’s acceptance of it for them, with their expectation and consent, that it should come to them in that very mode, was a delivery to them. The argument was, that the carrier was not their agent, but the agent of Hamilton, and that therefore, the possession had never got to them. The facts of this case constituted the carrier agent of both parties. Hamilton was acting for himself in selecting the carrier; but he was also acting for the claimants in that very same act of selecting an agent. He was doing precisely what he agreed to do for them, sending cotton to them for their benefit, and selecting for them, in pursuance of his agreement to do so, an agent to carry it, The carrier was selected for them by their agent for that purpose, Mr. Hamilton, and the agent so selected accepted for them. The delivery being to them, their lien as factors immediately attached to the cotton.

2. But it was said, that granting their lien to have attached, they could not assert it by a claim. Their lien gave them such an interest as entitled them to payment of their debt in preference to the plaintiff’s in attachment, and we think that was interest enough to support a claim under the statute. *452The very question to be tried in a claim case is, whether or not the claimant has such an interest in the property as renders it not subject to the attachment or fi. fa. Nor does this view conflict in the least with the previous rulings of this Court, that the claimant is not intitled to interrupt or interfere with the process of the plaintiff against the defendant in execution, except upon the strength of his own interest in the property, analogizing the claimant to a plaintiff in ejectment or trover who must recover upon the strength of his own right, and not upon the want of right in his adversary. An uninterested person cannot interfere to raise the. issue of subject or not subject, but surely he may so interfere, whose very interest renders the property not subject. We are entirely satisfied, both as to the right and as to the remedy.

Judgment affirmed.