Samuel Nelson

“ Upon the preceding 23d of January Grove had filed a bill (the origin of all these legal proceedings) against Brien and Fowle & Sons, stating that Brien was indebted to the complainant in the sum of $1089.50, and praying that an attachment might issue against his funds and effects in the hands of Fowle & Sons. ”

“ It was defended by Fowle & Sons, on the ground that they had a lien upon the goods. They also set up, that the property was claimed by R. Gilmor, a merchant in Baltimore. The bill was afterwards amended, making Gilmor a defendant, who answered, setting up his title to the property; and also filed a cross-bill against the complainant, Fowle & Sons, and Brien, setting forth the same title, and praying that the proceeds, the property in the mean time having been sold, might be paid over to him. The defendants put in several answers to the bill ”

“ The bill of lading for the nails, signed by the carrier, being produced by Gilmor, the legal presumption arises that it was delivered to him; either by the carrier or by the consignees, Wm. Fowle & Sons.
John McP. Brien is a competent witness, he has no interest in the result of the suit, he stands in mutual regard between Grove and Gilmor, and his legal interest is equally balanced. A witness who is liable to both parties is competent for either Stewart v. Stocker, 1 Watts (Pa.) ”

“ If the person to whom the goods are ordered to be delivered, is only an agent of the shipper, he has no property in them, and cannot maintain an action against the master for not delivering them, (Abbott, 216; 1 Campb., 369,) nor for damage for negligence of the carrier. ”

“ And the court proceeding first to decide upon the original bill filed by the complainant, Daniel L. Grove, doth adjudge, order, and decree, that the resident defendants, William Fowle & Sons, had not, at the filing of the said original bill, or at any time since, in their hands any property, effects, or money belonging to the said non-resident defendant, Jno. McP. Brien; and do further adjudge, order, and decree, that said original bill be dismissed, and that the said Daniel L. Grove do pay to the defendants thereto their costs in that behalf expended. ”

“ Notice of acceptance by Gilmor was not necessary, the goods having been shipped to pay a precedent debt. Anderson v. Van Alen, 12 Johns. (N. Y.) , 343; Wheeler v. Wheeler, 9 Cow. (N. Y.,) 34; Holland v. Dale, 1 Ala., 263.
The attaching creditor can occupy no better footing than the absent defendant. Wilson v. Davisson, 5 Munf. (Va.) , 178; United States v. Vaughan, 3 Binn. (Pa.) , 394.
The rights of parties arising from the shipment of the nails should, we suppose, be governed by the local law of the state of Maryland, where the shipment was made. Story's Conflict of Laws, §§ 397, 398, 399 ”

“ Brien's post-office, but brought down the canal by the boatman, and mailed at Georgetown, on the 20th. It was received by Fowle & Sons on the 21st.
'TO MESSRS. WM. FOWLE & SONS:--
'Gentlemen,-We have this day shipped on board of Capt. Sharpless' boat, and consigned to you, for the use of Robert Gilmor, Esq., Baltimore, 500 kegs nails, viz., 27 3d., 34 4d., 68 6d., 99 8d., 107 10d., 58 12d., 22 20d., and 17 30d., nails; 22 2d., 7 8d., and 15 10d. brads; 10 8d. and 12 10d. fencing, which we hope will arrive in good order. You will please pay Capt. ”