Milwaukee, in the state of Wisconsin, entered into a contract whereby the plaintiffs were to advance the money to said Valleau, on his drafts drawn on them, to purchase wheat and other produce, to be shipped by him, consigned to them at Milwaukee, to be by them sold on the usual commissions, and out of the net proceeds thereof to reimburse themselves for the advances so made; that said Valleau was to forward the railway shipping receipts to plaintiffs as soon as consignments were made; that, in pursuance of said contract, Valleau, on the tenth day of May, 1876, shipped five car-loads of wheat, consigned to plaintiffs, and delivered to the Chicago, Milwaukee & St. Paul Railway Company, and receipts given therefor; that on the same day, and after said shipment and consignment, said wheat was attached as the property of Valleau, at the suit of Kimball & Farnsworth against him, and was afterwards retaken upon a writ of replevin in this action. This contract and the attending facts are, in substance and effect, the same as in the case at bar. The court, in deciding the case, says: "The case must be determined upon the facts reported by the referee, with the additional fact that the grain was not bought with money furnished by the plaintiffs. From the facts reported, it appears that the grain in question was shipped on the tenth day of May, 1876, from Cresco. On the same day the grain was attached at Cresco, at the suit of the defendants, as the property of W. H. Valleau. The shipping receipts were not forwarded to the plaintiffs until the thirteenth day of May, and did not reach them until the fifteenth. The advancements, on account of which the plaintiffs claim their lien, were all made before this grain was shipped [as in the case we are consider. ing]. The facts of this case bring it upon all-fours with Elliot v. Bradley, 23 Vt., 217, in which it was held that when goods are consigned to a factor under an agreement, that he shall sell them and apply the proceeds to repay advances previously made by him to the consignors, he must, in order to acquire a valid lien upon the goods, as against the creditors of the consignor, have the actual or constructive possession of the goods."

The court then recites the facts in the Vermont case, as follows: "In this case an agreement was made between a manufacturer of cloth in the state of Vermont, and the plaintiffs, who were commission merchants of New York, by which the manufacturer was to send his cloth to the plaintiffs for sale on commission, and was to draw upon them in advance of the sales, and, also, in advance of sending the cloth, if necessary, upon sending the invoices of the cloth forwarded, or to be forwarded, and the plaintiffs were to apply the avails of the sales to repay their advances. Under this arrangement, the consignor forwarded to the plaintiffs, from time to time, invoices of the cloth sent and to be sent, and the cloth was then sent to forwarding merchants at Burlington, and was by them sent to the plaintiff as soon as convenient. The drafts were drawn and the acceptances charged and sales credited upon general account. No bill of lading was sent to the plaintiffs, but shipping bills were sent by

the forwarding merchants to their agents in New York, describing the consignor, the consignees, and the marks upon the goods, in order to guide the agents in delivering the goods to the consignees. It was held that the goods, after being sent to the forwarding merchants, and while upon the transit between Burlington and New York, remained at the risk, and subject to the control, of the consignors, and liable to attachment by their creditors. In fact, this case is stronger in favor of the consignees than the one at bar, for the cloth was in transit, and the shipping lists had been sent to the agents of the forwarding merchants, while in the case at bar, the wheat had not moved from the place where it was shipped, and the shipping receipts still remained in the hands of the consignor."

The court also decides that the case of Davis v. Bradley, 28 Vt., 118, is not in conflict with that of Elliot v. Bradley, and cites Bank of Rochester v. Jones, 4 Conn., 497: Winter v. Coit, 3 Seld., 228; Kimlock v. Craig, 3 T. R., 119, in support of its decision, and reviews Holbrook v. Wright, 24 Wend., 169; Grosvenor v. Phillips, 2 Hill, 147; Bailey v. Hudson R. R. R. Co., 49 N. Y., 70; Hallir v. Smith, 1 B. & P., 563, and Krulder v. Ellison, 47 N. Y., 36, and finds that they are not in conflict with its decision. Upon a motion for a rehearing, the following additional authorities in its support_were cited: Anderson v. Clark, 2 Bing., 20; Cuming v. Brown, 9 East., 506; Virtue v. Jewell, 4 Camp., 31; Patten v. Thompson, 5 M. & S., 350; Wade v. Hamilton, 3 Ga., 450; Grove v. Brien, 8 How., 429; Bryan v. Nix, 4 M. & S., 774; Evans v. Nichols, 3 Man. & G., 614; Alderson v. Temple, 4 Bun., 2,235; Barley v. Taylor, 5 Hill, 577; and the court, in reviewing them, says: "We have examined all of these authorities with care. The most of them are cases where a bill of lading, or receipt, or letter of information, was forwarded to the consignee, or advancements were made upon the faith of the particular consignment, and they fall within the principle of the cases reviewed in the foregoing opinion."

The rule seems to be that in order to change the title to the property shipped and vest it in the consignee, there must be a bill of lading, receipt or letter of information forwarded to the consignee, or that the advancements were made upon the faith of the particular consignment. It is claimed, however, that this contract was an executory one, and that the shipment of the bullion completed the purchase thereof by the consignee. In answer to this it may be said, that this is not a contract of purchase and sale. It is a mere loan of money with an agreement to ship bullion as security to the loan. The shipment is not payment. The bullion has to be sold by the consignee and converted into money before any credit can be made on the account of the consignor, or applied upon the loan. This is not a purchase of bullion. A person cannot become a purchaser without his knowledge or consent. There must be an acceptance and delivery of possession. If this were a purchase, there was no acceptance of the property by the purchaser. He had never seen the property. It had never been in his possession, he

did not have any notice of the shipment. He could not accept the goods even by a carrier appointed by himself. Says Mr. Benjamin, Benj. on Sales, 149, sec. 160, "It is settled that the receipt of goods by a carrier or wharfinger appointed by the purchaser, does not constitute an acceptance, these agents having authority only to receive, not to accept, the goods for their employers:" Boardman v. Spooner, 13 Allen, 353; Grimes v. Van Vetchen, 20 Mich., 410; Rodgers v. Phillips, 40 N. Y., 519; Denmead v. Glass, 30 Ga., 637; Shepherd v. Pressey, 32 N. H., 49. Maxwell v. Brown, 39 Me., 98: Spencer v. Hale, 30 Vt., 315; Cross v. O'Donnell, 44 N. Y., 661; Snow v. Warner, 10 Met., 132; Quintard v. Bacon, 99 Mass., 185; Allard v. Grensert, 61 N. Y.,

1.

We do not know upon what principle a consignee or other person can be made the purchaser of property that he has never seen or accepted, and to which possession was never delivered, either actually or constructively.

The judgment is reversed and the cause remanded for a new trial.

WELLS, FARGO & Co. v. CLARKSON.

Filed January 30, 1885.

PERSONAL JUDGMENT AGAINST PARTNER NOT VOID.-A personal judgment against one of several partners, in an action on a partnership liability, is not void, and consequently cannot be collaterally attacked, if the court had jurisdiction of the parties and of the subject matter of the action.

JUDGMENTS WHEN CAN BE SET OFF AFTER ASSIGNMENT.-A judgment debtor is entitled to set off a judgment in his favor, against a judgment in favor of his judgment creditor, although such creditor has assigned his judgment, and the assignee, at the time of the assignment, had no notice of the subsisting equity of the judgment debtor.

APPEAL from the third district court of Lewis and Clarke county. The opinion states the facts.

E. W. & J. K. Toole, for the appellants.

Chumusero & Chadwick, for the respondent.

COBURN, J. This is a proceeding in equity by the appellants, Wells, Fargo & Co., who are the owners of a judgment against one of the defendants, Clarkson, rendered in their favor, to have this judgment set off against a judgment rendered in favor of Clarkson against them, and by Clarkson assigned to the defendant McGregor, who procured an execution thereon and placed the same in the hands of the other defendant, Powers, for collection. The plaintiff seeks, in addition to the judgment of set off, to have the defendants enjoined from further proceedings on their judgment. The case was tried below by the court, and the following are the special findings of fact.

1. That on the nineteenth day of June, 1867, the defendant, John M. Clarkson, herein, commenced an action for damages against the plaintiff; and on the tenth day of July, 1868, recovered a judg

ment therein; all of which will appear by the judgment and pleadings in the case.

2. That on the thirteenth day of December, 1867, the plaintiff in this action commenced an action against Drake, Clarkson & Co., of which firm said defendant herein, John M. Clarkson, was a member, in which action there was, on the fourth day of January, 1868, an amended complaint filed, and to which amended complaint there was an answer filed on the thirteenth day of the month last aforesaid, which action was based upon certain notes and accounts, marked exhibit D, upon which pleadings and issues there was on the twentysixth day of October, 1868, a judgment duly rendered in said cause, which appears by the pleadings and judgment.

3. That on the tenth day of July, 1868, the attorneys for said Clarkson duly filed their lien as such upon the said judgment so recovered by him against the said Wells, Fargo & Co., which lien was on the nineteenth day of November, 1868, duly paid and a receipt duly given therefor, which lien and sum paid and receipted for amounted to two thousand five hundred dollars.

4. That on the said tenth day of July, 1868, the day of the rendition of the judgment in favor of said Clarkson against Wells, Fargo & Co., the said Clarkson duly assigned and transferred to the defendant herein, Archibald McGregor, one-half of the judgment so recovered by him, which was duly copied into the judgment docket of said court.

5. The said McGregor, before taking said assignment, had a demand against said Drake, Clarkson & Co. for the amount specified therein; that he examined the books, papers and accounts of said firm, after its failure and before taking said assignment, in order to ascertain what, if any, the company owed Wells, Fargo & Co., and that there did not appear on said books, papers or accounts to be anything owing or coming to said Wells, Fargo & Co., nor had he any notice that Clarkson, or Drake, Clarkson & Co., were indebted to said Wells, Fargo & Co. in any sum, at the time of taking said assignment. That, after taking said assignment, he notified R. F. Gillespie, who was the agent of Wells, Fargo & Co., thereof, on the day it was taken, and also notified, on said day, the attorneys of Wells, Fargo & Co. of such fact, and that said Drake, Clarkson & Co. failed in July, 1868."

The following finding as to the law was made, viz.: "The court finds, as matter of law arising upon the findings of fact, that the judgment of plaintiff against Clarkson cannot be set off against the judgment now held by McGregor against plaintiff, and judgment for the defendants is ordered accordingly.

It appears by the judgment roll, in the case of Wells, Fargo & Co. v. Drake, Clarkson & Co., that, upon the trial by the court, in the findings, the plaintiffs were allowed to dismiss their action as to all the defendants except John M. Clarkson, who alone had been served with notice, and judgment was thereupon rendered in their favor against him alone for twenty-six hundred and seventy-three

dollars and thirty-eight cents ($2,673.38), upon the twenty-sixth day of October, 1868, as above stated.

This is the judgment which the plaintiffs seek to have set off against the balance which remains unpaid of the judgment for the sum of five thousand dollars damages and five hundred and twentyfour dollars costs, rendered on the tenth day of July, 1868, in favor of John M. Clarkson against Wells, Fargo & Co., one-half of which had, on that day, been assigned to the defendant, McGregor, by him, and the other half of which was paid by the plaintiffs, in the action at bar, to Clarkson. Both of these judgments were rendered by the district court of the county of Lewis and Clark.

The respondent insists that the judgment in favor of the plaintiffs (the appellants) rendered against Clarkson on the twenty-sixth day of October, 1868, is void, because the action was dismissed as to all of the defendants who were partners of the firm of Drake, Clarkson & Co., except Clarkson, and a judgment rendered against only one partner. There is nothing in the pleadings showing that the defendant Clarkson asked that the judgment be set aside or reviewed. It stands as a judgment of a court of general jurisdiction, not appealed from, unreversed, valid and subsisting. Respondent says that the proceedings show that if the court ever had jurisdiction of the case, it was lost by act of the plaintiff, and that the dismissal as to two of the joint defendants, was virtually a dismissal of the case; and that there was nothing left upon which to render judgment in favor of plaintiffs; and the judgment which was rendered, was coram non judice, and there were, and are, no equities in favor of the plaintiffs.

The respondent seems to rely upon the ground that the suit was dismissed as to the co-partners of Clarkson, and judgment rendered against him alone for the partnership debt; and that for this reason this judgment is a nullity. If Clarkson had resisted the judgment against him upon the ground that his partners should be included in the judgment for a partnership debt, he could have compelled the plaintiffs, Wells, Fargo & Co., to have taken a joint judgment. He did not do this-no plea in abatement was interposed-but he allowed judgment to go against him personally. And it nowhere appears, in pleading or proof, that he allowed this to be done with a fraudulent intent, or in collusion with Wells, Fargo & Co., or with any design to defraud McGregor, the assignee of the judgment against Wells, Fargo & Co.

The question as to whether an act is void or voidable, is involved in some obscurity; and in this case we are asked to treat the action of the court below as a nullity, in a suit in which the court had jurisdiction of the parties and of the subject matter of the case. The subsequent dismissal of the complaint as to two of the defendants, did not dismiss it as to the third. The court still had jurisdiction as to him; before the final disposition of the case, some action must be taken by the court as to him; until then the court had jurisdiction both of the person of that defendant and of the subject matter of the suit, as to him.