SAME CASE, ON PETITION FOR REHEARING.
*97The counsel for appellee applied for a rehearing in this case, and filed their petition according to the rule, setting forth the grounds of their application, substantially as follows :
1st. That Lloyd & Flagg, in the assignment of their effects, could not rightfully transfer to the appellants the cotton received from Galphin and Footman, the drawers of the bills held by Allen. It was not their’s absolutely, but only for the purpose of paying acceptances first, and then the accounts of those individuals. The property, therefore, passed cum onere. 2d Story’s Reports, 630, 638. 13th Peters, 483. 1st Condensed Supreme Court Reports, 137.
2d. The cotton was bound by the acceptance, because the 'acceptance was absolute, and the acceptors cannot divert it from the payment of the bills held by an endorsee, who has advanced his money upon the acceptance. 15th Peters, 394, 5, 6, 7.
3d. The assignees cannot occupy a better or a higher position than Lloyd & Flagg would themselves have occupied, if the assignment had not been made. If the drawers had placed funds in the hands of the acceptors, (Lloyd & Flagg,) those funds were applicable to the payment of the acceptances, and could not be applied to other debts due from the drawers to the acceptors. In this case, Allen’s claim was due, and his right to be paid out of the proceeds of the cotton attached prior to the assignment to Holbrook and Archer. See 16th Peters, 129, 130, 131, 132.
4th. The acceptance by Lloyd & Flagg is as if they had said in express terms, that the cotton in their hands should be held applicable, and should be appropriated to the payment of Allen’s claims. See the principle in 5th Wheaton, 277. 4th Condensed Supreme Court Reports, 647. See, also, 5th Peters, 599.
5th. In answer to the view taken in the opinion of the •Court, that Allen had abandoned his claim against Galphin, *98it is submitted that this liability of Galphin was not considered as involved in the case ; and if it was, it is- insisted that Galphin was not entitled to- the notice of non-payment, which the Court thinks was necessary, but is liable for having withdrawn the fund which was properly applicable to the payment of the bill.
6th. The- cotton in- the hands of Lloyd & Flagg was a trust fund' for the payment of the drafts. 1st Barbour’s New York Reports, 488. They being the factors of the drawers, and receiving their crops, it mattered not whether the cotton was in existence or not at the time the bills were drawn. The cotton was actually delivered, as the record shows, prior to the assignment.
There were other reasons stated in the petition, as constituting a sufficient ground for the application, which are noticed in the opinion of the Court.
ANDERSON, Chief Justice,delivered the following opinion:
The Court have considered the petition filed in this case with the attention which the care and labor manifested in its preparation merit. They accede to most of the legal positions assumed by the counsel, but have been unable to perceive their application to the case as it is developed upon the record. A material fact is stated as if on the knowledge of counsel, but there is no evidence of it before us. It is said, “ Lloyd & Flagg could not hold the cotton, because they had engaged to apply it to Allen.” We find nothing of this engagement in the agreed statement of facts’. The same thing is substantially re-asserted, in characterizing the nature of Lloyd & Flagg’s acceptance. It is said, “ their acceptance is nothing more nor less than if they had said in express terms, the cotton in our hands shall be held applicable, and appropriated to the payment of Allen’s demand.” If this is meant as a mere legal infer*99•ence, it assumes the fact that Allen’s draft was the only one drawn by Galphin during the whole year, or, at least, had precedence of all others. This nowhere appears. On ■the contrary, the record shows that Lloyd & Flagg were in the habit of accepting his (Galphin’s) bills, and making advances to him and it also appears that, at the close of the year, Galphin was indebted to them near #3,000, which we .are left to infer was the aggregate of the acceptances and advances they were in the habit of making.
We agree to the law, as stated in the petition, on the subject of a factor’s lien, but we cannot see its application.— The whole of Galphin’s cotton was appropriated to the payment of his debt to Lloyd & Flagg, and the factor’s lien ■upon it was consummated by this appropriation. If this factor’s lien enured to the benefit of any particular part of Galphin’s debt, it nowhere appears that it was the part contracted, on account of the acceptance in favor of Allen.
The whole difference between the Court and the counsel appears to grow out of this, that the counsel seem to regard Allen’s draft as the only one drawn during the year— while the Court are compelled to consider it as only about the seventeenth part, of the aggregate of all the acceptances and advances. There is no evidence that Allen’s draft had priority. On the contrary, it fell due only twenty days before the failure and assignment of Lloyd & Flagg, and it may reasonably be presumed to be among the last in the ■order of precedence.
The Court is referred by the petition to the record, as a reply to a remark in the opinion of the Court, “ that the bill was not drawn upon any particular cotton, nor, indeed, upon the faith of any cotton at all.” It was obviously the meaning of the Court, in making this remark, that Galphin, though, perhaps, known to the counsel as a cotton planter alone, was only made known to the Court as a planter, and who sent his crops to Lloyd & Flagg to be sold. *100There may have been sugar, or tobacco, or corn, as part of the crop, for these are all staples of the country, and, therefore, the Court thought it a very vague supposition to identify a particular draft, constituting the seventeenth part of Galphin’s whole indebtedness, with any particular lot of cotton, which may constitute but the seventeenth part of his crop. There is nothing apparent to justify the identification ; and if it be said that Allen might select what funds he pleased, after it had passed out of the hands of Lloyd & Flagg, it would lead to this absurdity, that none of the cotton, or sugar, or corn, or tobacco, which had once belonged to Galphin, and had been sold by Lloyd & Flagg, could ever escape the operation of this lien, no matter through how many hands it had passed, nor how many and various forms it had assumed.
The Court is surprised to find at the conclusion of the petition, the following objection to the judgment of the Court: “ One other point remains to be noticed. This ease was submitted to the Judge of the Circuit Court, upon an agreed state of facts. There was no demurrer to the evidence, and no bill of exceptions. Where, then, is the authority of this Court to adjudicate points of law — to decide questions of law raised by the pleadings, and instructions to the jury ? It cannot try the case as a jury, nor as the Court did below, by an agreement of the facts.”
Little need be said in answer to this objection, beyond a reference to the agreed statement, signed by the counsel, who signs as senior counsel to this petition. At the close of that statement, we find these words : “ The foregoing are agreed upon as the facts of the ease, and on which the judgment of the Court is prayed. And it is further agreed, that if either party is dissatisfied with the judgment of the Court, the cause is to be carried by consent, without bond, in appeal to the ensuing term of the Supreme Court, to be docketed and tried during the term,”
*101It is true, that if the subject-matter of this case was not within our jurisdiction, we should be bound to notice it, though the party were thus estopped by his own consent from raising the objection, but we do not so consider it. The maxim that consent will not give jurisdiction, is misunderstood, if it is supposed to mean that none of the forms prescribed as the ordinary mode of prosecuting appeals, may be waived by consent. The Supreme Court cannot take original jurisdiction, even by the consent of the parties, but they can hear and determine an appeal from a final judgment of the Circuit Court, either when brought up regularly, according to certain prescribed forms, or when those mere forms are dispensed with by agreement.
In 1st Florida Reports, 271, the Chief Justice, delivering the opinion of the Court, says: “ The correct rule in the cases tried by the Court, sitting as a jury, would seem to be, that, where facts alone are submitted, and the Court has only to weigh the evidence and determine accordingly, no writ of error lies; and "where mixed questions of law and fact are presented to the Court for its decision, no writ of error lies, unless the Court is called upon to decide questions of laxo, or such questions of law arise necessarily out of the facts, and are distinctly presented to the Court upon them, so that the decision of the points of law will decide the merits of the cause, and the decision of the Court is wrong.” In this case, such was the fact, and the submission of the agreed facts to the Court for its judgment on the law, was precisely equivalent to a demurrer to the evidence. The same rule is sanctioned in the case of the Southern Life Insurance and Trust Company v. Gray, 3d Florida Reports, 262. 5th Cranch, 358. 3d Cranch, 174.
The petition for a rehearing must be denied.