Hardeman & Sparks v. DeVaughn , 49 Ga. 596 ( 1873 )

McCay, Judge.

1. The claimants were proven to be factors and commission merchants. As such, they have a lien, wholly independent of the Act of 1866, on the property of a planter to whom they have made advances, as soon as, and as long as they have possession of the property. This is true, at least, as against all liens of which they have no notice, either actual or constructive. If, therefore, Iiarcleman & Sparks did advance to Brown, under a written agreement by Brown that he would deliver to them cotton sufficient to pay the advance, it would follow that, as soon as Hardeman & Sparks got possession, their rights attached. They had a special property in the cotton, against Brown or any purchaser from him, after their possession, or against any lien or judgment, the lien of which did not begin until after their possession. And this was wholly independent of the Act of 1866, and wholly independent of the nature of the advances — that is, whether they were for provisions or not. Was the delivery of the cotton at the depot of the Southwestern Railroad, consigned to Hardeman & Sparks, such a delivery to Hardeman & Sparks as brings the case within the rule we have stated ? Hid Hardeman & Sparks, by such delivery, get such a possession as made their lien good, as a factor’s lien, so as to authorize them to put in this claim on their special property, and so as to prefer them to Vaughn? In' the case of Kollock et al. vs. Jackson, 5 Georgia, 155, this Court held that the delivery to the factor might be constructive, and need not be actual. In Wade & Company vs. Hamilton, 30 Georgia, 450, the precise point here made was decided, to-wit: that a delivery to a carrier, in pursuance of an agreement to deliver to the factor, was, if the goods were consigned to the factor, such a constructive delivery to the factor as made his lien attach. And at the last term of this Court, in the case of Elliott vs. Cox et al., we decided the same thing. We are of opinion, therefore, that the Court erred in refusing to charge, as requested by claimant’s attorney, that if the cotton was delivered to the Southwestern Railroad, consigned to Hardeman & Sparks, before the plaintiffs’ lien was foreclosed, Hardeman & Sparks should recover.

2. We think, too, after much deliberation, that the residence of the defendant is the proper county to try any issues that may be found on these liens. The Constitution provides that all suits shall be had in the county where the defendant lives. The steamboat lien law under which all these liens are, under the Act of 1866, to be foreclosed, does not, in terms, say what county the issue should be tried in. It simply says they shall be returned to the Court and tried as in other eases. We have held that the proceedings under the steamboat law are [not [proceedings in rem, but personal proceedings against the owner, or agent, or lessee of the boat, carrying a lien on the boat with them. Any other construction of the Act would make it an infringement on the maritime jurisdiction of the Federal Courts. If this be so, we do not well see how it can be otherwise than necessary to return any issue that may arise to the Court having jurisdiction in the county of the defendant’s residence. We are aware that this is a new view of this law, but the point is now distinctly made and we cannot but decide it as we think the Constitution requires. We see no objection to making the affidavit and getting an authority to sell, ex parte, in any county, but if the defendant makes an issue, then the proceedings are only a mode of bringing a suit against him personally, charging his property as the basis. Our laws have now become so general that unless the Constitution be adhered to, a very large number of the suits against persons will be triable in some other county than their residence. It may be that this view will require new legislation, as it may be difficult to give effect to this rule in some cases under the law as it stands. But we cannot help this. The law is an awkward one any how. The enforcement of a lien on a steamboat, a rambling, changing and peculiar thing, is a poor model at best for liens on other things, and we have always thought it unfortunate that the other liens created by statute have so uniformly been made enforceable by mere reference to this steamboat law.

Judgment reversed.