Thos. Wilson & Co. v. Thos. J. Carson & Co.

Le Grand, C. J., delivered the opinion of this court. This is an attachment on warrant, which, on the 3rd day of January 1854, issued out of the Superior Court of Baltimore city, at the suit of Thomas Wilson & Co., against the effects of Ezra Webb, Wm. Maxcy and Thomas G. Rowland, copartners, trading under the firm of E. Webb, Maxcy & Co., to recover a balance on account, due 26th of November 1853, of 04847.96. On the 4th day of January 1854, the attachment was laid in the hands of the garnishees.

The garnishees pleaded non assumpsit and nulla bona. All the members of the firm of Webb, Maxcy & Co., together with William Teeter and E. Lewis Stoll, composed the firm of Teeter, Maxcy &. Co., of Louisville, but neither Teeter nor E. Lewis Stoll were of the firm of E. Webb, Maxcy & Co. Both firms failed in ⁷² business, and, on the 31st day of December 1853, all the members of both firms united in a deed of trust to William Riddle, of Louisville, conveying a large amount of real estate in Kentucky, belonging to William Maxcy, individually, also his household and kitchen furniture; a considerable amount of real estate in Kentucky, belonging to T. G. Rowland, also certain personal property also belonging to him, individually; all the estate of Wm. Teeter, real, personal and mixed; certain property, real and personal, belonging to E. Lewis Stoll; the warehouse furniture of E. Webb, Maxcy <fc Co.; also certain accounts, debts, rights, dioses in action, and personal property set out in paper marked M., No. 1, which is made part of the deed.

This paper specifies the lard, pork, &c., which had been shipped to T. J. Carson & Co., of Baltimore. This conveyance was one in trust for the benefit of creditors, after paying certain expenses, according to the order specified in it. It provides that the transfer, in the deed, of the claim on Carson &. Edes, and T. J. Carson & Co., and Lees & Walter, is subject to drafts and assignments by the grantors, previously given: 1st, to Gill, Anderson & Co.; 2nd, to Walters & Fox; 3rd, to Parmelee & Bro.; 4th, to Smith, Clark & Logan; and 5th, to B. & L. Leavell, and Conn & Ramsay.

It was admitted that neither of the defendants were citizens of Maryland at the time of the issuing of the attachment, nor were they at the date of the execution of the deed of trust of the 31st day of December 1853. It was also admitted, that at the time the attachment issued and was laid, there was a large amount of property, consisting of pork, lard, bacon, and other provisions, in the hands of Thomas J. Carson & Co., in Baltimore, which had been consigned to them for sale, by E. Webb, Maxcy & Co., of Louisville, the defendants; and that afterwards, and before the garnishees pleaded, there accrued from the sale of said property, over and above all advances, the amount of $12,805. The amount of assignments specifically made of this fund by the orders of date the 30th day of December 1853, and recognized in the-deed of trust of the following day, is $28,714.42. The correctness of the claim of the plaintiffs below is not ⁷³ questioned.

The questions we are called upon to determine, grow out of tire orders of assignment, the deed of trust, the proof of the laws of Kentucky, and the levying of the attachment. If the assignments given on the 30th of December, be valid, and bind to their amount any balance of the proceeds of the sales of the consignments to the garnishees, then it is clear the plaintiff’s could not recover in this action; those assignments being largely beyond, in amount, any fund in the hands of the garnishees to meet them. On the part of the appellants, it was insisted, that the property attached, being in specie, in the hands of the garnishees, in Maryland, at the time the attachment was laid, and the garnishees having so continued in possession, their possession was the possession of the defendants, and could only be changed either by actual transfer to an assignee, or by deed executed and recorded according to the laws of Maryland, or actual notice to the garnishee. That if considered as a chose in action, the title of the assignee was merely inchoate until actual notice to the garnishees, and the property in the hands of the garnishees, over their advances, at the time of laying the attachment, was the property of E. Webb, Maxcy & Co., and the plea of nulla bona was not sustained by proof of the assignment, without actual notice to the garnishees, prior to the attachment.

It appears from the letter of the plaintiffs, of date the 4th of January 1854, that they had, at that time, knowledge an assignment had been made by the defendants; it does not, however, appear they were acquainted with its precise char-, acter. The letter of Carson & Edcs, of the 6th of January 1854, is the only evidence of the time when they first acquired knowledge of the fact that Mr. Riddle had been appointed assignee, and this letter shows that the attachment of the plaintiffs bad been previously levied, of which it notifies Mr. Riddle. Although it is stated, in the admitted statement of facts in the record, that Joseph Carson, one of the garnishees, was in Madison, Indiana, at the end of the month of December, it nowhere appears he either had knowledge of the orders or of ⁷⁴ the deed, or assented to either. We cannot infer such knowledge or assent on his part.

The several orders given by the defendants, are, in language, substantially the same. The one in favor of Messrs. Parmelee &• Bro., is as follows: “Louisville, December 30th, 1853. Messrs.

T. J. Carson & Co. Gentlemen: — When in funds from sales of our various shipments, to your houses in New York and Baltimore, of hog product, please pay to Messrs. Parmelee & Bro. the sum of ten thousand dollars, should the balance that may be coming to us amount to that sum, and oblige,” <fcc. The case of Tiernan, et al., vs. Jackson, 5 Pet., 580 , was this: A shipment of tobacco was made at New Orleans, by the agent of the owner, consigned to a house in Baltimore, the shipment being for the account and risk of the owner, he being at the time indebted to the consignees for a balance of account. The owner of the shipment drew two bills on the consignees, and on the same day made an assignment on the back of a duplicate invoice of the tobacco, in the following words: “I assign to James Jackson (the drawee of the bills) so much of the proceeds of the tobacco alluded to in the within invoice, as will amount to two thousand four hundred dollars, (the amount of the two bills,) to J. and L. six hundred dollars, &c., and Messrs.

Tiernan & Sons (the consignees) will hold the net proceeds of the within invoice subject to the order of the persons above named, as directed above.” The court, after a most elaborate argument at the bar, by able counsel, held, that this assignment, by its terms, did not pass the legal title so as to authorize the assignees to sue in their own names, and fully endorsed the doctrine laid down in Mandeville vs. Welch, 5 Wheat., 277, 286 , where it was said, that in cases where an order is drawn for the whole of a particular fund, it amounts to an equitable assignment of that fund; and, after notice to the drawee, it binds that fund in his hands. But where the order is drawn either on a general or particular fund, for a part only, it does not amount to an assignment of that part, or give a lien as against the drawee, unless he consents to the appropriation ⁷⁵ by an acceptance of the draft, or an obligation to accept may be fairly implied from the custom of trade, or the course of business, and that until the parties receiving a consignment or a remittance, under such circumstances, had done something recognizing the appropriation of it to the particular purposes specified, and the persons claiming had signified their acceptance of it, so as to create a privity between them,