The judgment of the court was pronounced by

The plaintiffs are appellants from that portion of the judgment of the Commercial Court which awarded the sum of $1220 37, with legal interest from the 2nd June, 1845, to be paid to John Gilliat Sf Co.. intervenorsV out of the proceeds of the property attached in this case. The plaintiffs levied their attachment on the 7th April, 1843, on a quantity of tobacco in the hands’ of Messrs. Hewitt, Heran Sf Co* of this city, consigned to them by the defendant, Samuel McClarty. The tobacco was shipped on 31st March, 1843, a-t Clover Port, Kentucky, on the steamboat Somerville,, and consigned to Iiewitt, Heran Co. The instructions of McClarty to Messrs. Hewitt, Heran Co. were, to forward the tobacco to W. H. Gilliat of Liverpool, and to send the hill of lading to B. L. Maitland 4* Co. of New York, who were the agents of McClarty there, and on whom his agents in New Orleans were directed to draw for the expenses in New Orleans, and for the further sum of $3-00, to he placed to the credit of Me Ciar ¿y in account. In the postscript of the letter, McClarty says: “ In drawing on Messrs. Maitland 4* Go. for the $300, please *57do it at sixty day’s sight. Your bill will be provided for out of our sfelímg exchange, sold by Messrs. Maitland, Co.” On the 5th April, 1843, (which was five days after the shipment of the tobacco, and two days before its attachment in New Orleans,} MeClarty wrote to John Gilliat dp Co. of Lo.idon, advising them that he had shipped the tobacco to New Orleans, to be reshipped to their address, and also of his draft in favor of Maitland dp Co., for ¿6532.-The draft was forwarded to Maitland Co., to be negotiated for account of Me Clarty, A duplicate of the river bill of lading, under which the tobacco was consigned to Heioiit, Heran dp- Co., was also sent to Maitland dp Co. On this bill of lading was endorsed a memorandum, that the tobacco -was to be forwarded to John Gilliat dj- Co., of London; but it does not appear by whom, nor at what time, this memorandum wa's put on the bill. It exhibited this memorándum when received by Maitland Co.; but the memorandum was in a different hand writing from that in which the bill was filled up. It was probably put there by MeClarty, as a direction to Maitland dp Co. to- send it to' Gilliat Sf Co. On the 19th April, 1843, Maitland Sf Co. addressed a letter to John Gilliat S¡• Co., in which they say : “ When bill of lading is received from New Orleans, it shall be duly forwarded. We crave your protection for McClartyts bill, against the shipment, for ¿£532, which we shall negotiate.” The bill Was subsequently negotiated by Maitland <§• Co., and the proceeds carried by them to the credit of MeClarty. The bill was accepted by JahnGilliat dp Co., on the 30th May, 1843, and paid in due course. Maitland &>• Co. disbursed a portion of the proceeds of the bill, in payment of the drafts of MeClarty, till they heard of the attachment of the tobacco in New Orleans, when they refused to honor any further drafts from him, but remitted the balance in their hands, amounting to ¿6316, 14, 8, to John Gilliat Sf Co. For the portion of the bill not covered by these remittances, with commission and interest, John Gilliat Co. have intervened.

The following points are made by the intervenors : “ 1st. That the bill was endorsed and accepted upon the faith of the bills of lading from Louisville to New Orleans ;• and that the possession of the bills of lading, was possession of the goods. 2nd. ’í'hat Hewitt, Heran d$- Co., consignees in New Orleans, having received the tobacco, with instructions to ship to Liverpool, and with notice of the interest of the intervenors, became, by accepting the consignment, agents of the intervenors ; and their possession must be considered the possession of the intervenors. 3rd. That from the moment of enclosing the bills of lading to New York, and drawing the bills against them, the control of the defendant over the merchandise ceased, and the same was no longer liable to be attached for his debts.”

It is quite clear that no possession of the goods vested in Maitland dj- Co. or Gilliatt dp Co., by the transmission and receipt of the duplicate bill of lading. That bill of lading was in favor of Hewitt, Heran Sf Co. Neither Maitland S¡- Co. nor Gilliatt dp Co. were named in it. The object of MeClarty in transmitting it was, not to vest any possession in Maitland dp Co., but simply to fortify his representation that he had made a shipment to Hewitt, Heran dp Co. with orders ;o re-ship to Gilliatt. It is in vain to suppose that either Maitland Co. or Gilliatt S)‘ Co. viewed the matter in any other light. They knew that Hewitt, Heran Sf Co. would take possession of the goods on their arrival at New Orleans, ieing the parties clothed under the bill of lading with the legal ownership. In iccepting the bill of exchange the intei'venors acted on the faith of McClarty’s representation and promise that the tobacco should go forward, and not upon *58any possession, for in law there was none; Nor can McClarty be considered as having lost,- in a legabsense, his control over the property. In a moral sensei his control was gone, because it would have been a fraud on his part to have diverted the shipment. But in law, he was still the master, so' far as concerned his creditors or third persons. Hewitt, Heran Sy Co. were his agents, and their possession was his.

Hewitt, Heran Sy Co. cannot be considered as the agents of the intervenors,- and holding for them. They were the mere factors and agents of McClarty.The letter of advice may- pehaps be considered a^ informing them that, at that' time, Me Clarty intended to draw on England-against this merchandise. But suppose the next day he had countermanded his orders,¡and said to Hewitt, Heran SyCo.: I have changed my mind, I prefer to sell in New Orleans — sell and send me the proceeds? We are of opinion that Hewitt, Heran Sy Co. would have been bound to obey his orders. Again, suppose that, on the 7th April, 1843, instead of the sheriff with a writ of attachment, Me Clarty had presented himself at Hewitt, Heran Sy Co’s, counting'house, and had-said: I will take’charge of the tobacco myself — here is the amount of your claims for freight1, &c.? Hewitt, Hkran Sy Co. would clearly have been bound to give up the property to him, and there would have been no bad faith-on thir part in doing so. This is the view- of their position and duty, which Heran-hss stated in his examinationas a witness, and we thinkit not only a practical but' a legal one. They were Me Clarty's agents only, and knew, and were bound to, no one else: The case would have' been very different if they had written to Gilliat dp Co. or Maitland Sy Co., and advised them of the receipt of the orders and their intention to fulfil them", and the parties had acted on such advice. Perhaps too it would have been their duty to hold on, and they would not have beenliablein damage to McClarty in doing so and refusing to recognise his control, if they haddi-nown, in the case supposed, that the draft on Gilliat Co. based on this merchandise had gone forward; for it is a principle of the law of agency, that the agent is not chargeable for a breach of orders, if his compliance would have been a fraud upon others.

Upon a careful consideration of this case we are of opinion that, at the date of the attachment,- no constructive possession had been acquired by the intervenors, nor any privilege ; nor had any thing occurred which created on the part of Hewitt, Heran Sy Co. an implied obligation to hold the property for their benefit, and divested the control of McClarty. The property therefore was subject to the plaintiffs’ attachment.

So far as the judgment off the court below affects the garnishees, it appears to us to have been irregularly rendered. There was no traverse of the answers of the garnishees, nor was the case heard as to their rights. The case appears to have been tried only as between the plaintiffs, the defendants and the intervenors. The action of the court as to the garnishees was without a contestatio litis or notice of trial, and was premature. As the case is presented, wa have not the means of doing justice between the garnishees and those opposed to them in interest, and shall remand the cause for further proceedings.

It is therefore decreed that so much of the judgment of the court below as sustains the intervention of John Gilliatt Sy Co. be reversed, and that said intervention be dismissed at the cost of the intervenors. It is further decreed that the judgment of the court below, so far as it affects the rights of the garnishees Hewitt, Heran Sy Co. be reversed, and the cause as to the said garnishees be remanded for further proceedings according to law. And it is further decreed that the judgment of the court below, except so far as above set forth, be affirmed; one half of the costs of the appeal to be paid by the said John Gilliatt Sy Co. and the other half by the plaintiffs.