Baugh v. Kirkpatrick

The opinion of the court was delivered, by Agnew, J. This is a foreign attachment. The defendant had consigned to the garnishees a quantity of leather for sale, on which they had made large advances before the attachment was served. It is contended the attachment arrested their power to sell, leaving the goods tied up in their hands. We cannot assent to this. We are bound to take notice of the general usages governing the contracts of factors and commission merchants. By the order to [86] sell and advances made by the factors, an interest was acquired in the goods, with a right to sell which could not be affected by the after-attachment. It would be deleterious to trade, and the rights of those engaged in it, to hold that goods forwarded to a factor to bo sold, may be tied up in his hands until the creditor of the consignor is ready to proceed with his execution to convert them. In the management of the business of the present day, when all things move by steam, and time and space are almost annihilated, to compel the factor to store goods consigned to him for sale, would be to impede his business, and fill the room in his warehouse, which the quick movements of trade would devote to the goods of others. The attaching creditor stands upon no higher footing than his debtors in relation to the garnishee. What right would the debtor himself have to say to the garnishee, “ you shall not sell,” without tendering him his advances and making him whole ? Even an execution cannot be levied of goods in pawn, so as to take them out of the pawnee’s possession, without tendering him the money for which he holds them in pledge. So here the garnishees, as factors to sell, having made advancements, had a power coupled with an interest which was irrevocable except upon a tender of their charges. Added to the injury to them by protracted storage, a fall in price might leave their advances partially unprotected. If the plaintiff was desirous to retain the goods for an advance in price it was his duty to furnish the money to relieve them of the lien of the garnishees, and to direct the sheriff to take them into custody. There being no fraud alleged in the sale, the court below was right, and The judgment is affirmed.