Desha, Sheppard & Co. v. Pope , 6 Ala. 690 ( 1844 )

GOLDTHWAITE, J.

If the claimants of the cotton levied on in this case, stood in the relation of factors only, it is clear upon principle, that their lien for the balance due them, could not attach until the cotton was in their actual possession, [Kenlach v. Craig, 3 Term Rep. 119; Bruce v. Wait, 3 Mee. & W. 15; cited Cross on Liens, 254.] The reason for this is, that they have no property in the goods by the mere act of shipment, although they are named in the bills of lading as the consignees. By itself, the bill of lading does not operate as a transfer of the goods; but is rather to be considered as evidence, or as an act raising the presumption, of such a transfer, [Abbot on Ship. 375; Cox. v. Harden, 4 East, 211; Haille v. Smith, 1 B. & P. 363.]

But it appears from the evidence set out in the bill of exceptions, that, independent of the relation between the claimants as factors, and Alexander, the defendant in execution, tho cotton was shipped expressly to pay them, so far as its proceeds would go, for advances previously made by them; and the bill of lading was transmitted to them. Under these circumstances, the shipment must be considered as a specific appropriation of the cotton for the security of the-claimants. This appropriation did not rest in intention merely, for it was executed, so far as the defendant in execution was concerned, by the transmission of the bill of lading to the consignees. The debtor could have made an assignment, or other valid transfer of the title to this cotton, for the security of the claimants at any time, before the lien of the plaintiff’s execution attached, and there is no sound reason which should prevent the bill of lading from producing the same effect after its transmission, and when the shipment was expressly made for this purpose. This is the effect of the cases of Haille v. Smith, [1 B. & P. 563,] and Anderson v. Clark, [2 Bing. 20,] as well as that of Grosvenor v. Phillips, [2 Hill, N. Y. 147.] Nor is this principle contradicted in any of the cases cited by the counsel for the plaintiffs; indeed, in some of them, it is expressly conceded. [Kenlach v. Craig, 3 Term Rep. 119; Mitchell v. Ede, 11 A. & E. 888; Nichols v. Clent, 3 Price, 547.]

Although in theory, the principle stated is perfectly obvious, there may be some difficulty in applying it to the facts of some cases; we shall, therefore, endeavor to state it so that it cannot be misunderstood. The mere agreement to ship goods in satisfaction of anticedent advances, will not, in general, give the factor or consignee a lien upon them, for his general balance, until they come to his actual possession; but if there is a specific pledge or appropriation of certain ascertained goods, accompanied with the intention that they shall be a security, or the prooceeds as a payment, and they are deposited with a bailee, then the property is changed, and vests in the individual to whom they are to be delivered by the depository. [Cross on Lions, 253.]

The result of our opinion is, that the circuit court erred in refusing to give the charge requested by the claimants; the judgment is, therefore, reversed, and the cause remanded.