In my charge to the jury on the trial of this cause, I submitted two facts to their determination. 1st. Whether the flour was actually delivered by Clemson to Davidson. 2d. If delivered, whether the contract was afterwards rescinded by consent of both parties. The evidence of a delivery was so strong, that I cannot suppose the jury had any hesitation on that point. As to the rescinding of the contract, it appeared to me that the evidence inclined considerably in favour of the defendants; because Davidson refused to give an order for the re-delivery of the flour, and declared that he would do no act, by which any one creditor should obtain a preference. But I cannot say, that the conduct of Davidson was altogether consistent, or that there *397was no evidence which went towards rescinding the contract. When Clemson presented the bill of parcels, and demanded' Davidson’s notes, Davidson says, that he told Clemson the notes would be of no service, returned him the bill of parcels, and told him to go and take possession of the flour. The contract might have been rescinded without a written order for re-delivery, and as this is the second verdict in favour of the plaintiffs on a matter of fact, I do not think it proper to order a third trial. But it is not to be concluded, that the Court have not power to direct a third trial of matters of fact. There is no such rule; the Court undoubtedly possess the power, and cases may occur in which it may be necessary to exercise it. Two verdicts on the same point are entitled to great weight, and unless they are attended with extraordinary circumstances, I have ever thought that they ought not to be disturbed. Where juries persist in violating the law, the case is different. We have several times granted a third trial, and there is no reason why we should stop there. Thus much for the facts in this cause.
But there are two points of law on which the counsel for the defendants rely for a new trial. In the first place they say, that if the property was vested in Davidson by delivery, Clegg and Pershouse immediately acquired a right, of which it was not in Davidson’s power to deprive them. And they contend in the second place, that issue being joined on the property of the plaintiff, the defendants were entitled to a verdict, because the captain had a lien on the flour for the amount of the freight.
1. If Clegg and Pershouse had a right to the flour, it must be either because they had a lien on it for the money advanced to Davidson, or because Davidson had made them, some kind of conveyance, legal or equitable. The fact is that Pershouse had paid 16,000 dollars to Davidson, for which a receipt was taken, “for advance on shipment of “ 158 bales of cotton, shipped on board the British barque “ Esther, consigned to Messrs. Clegg and Pershouse, on “ also a shipment now making in flour and cotton, on board “ the British ship Hibernia, to be consigned also to Messrs. “ Clegg and Pershouse.” The flour was not at that time purchased by Davidson. The consignment was to be on the account and at the risk of Davidson, and Clegg and Pera*398house were to be reimbursed out of the sales of the cotton and “the flour. I see not how Clegg and Pershouse could have a lien on what was never in their possession. Possession is essential to a lien; and if one who has a lien parts with the possession, his lien in gone. There was no delivery on board the ship to Clegg and Pershouse, nor was it ever contemplated to make the delivery to them in the first instance. The promise was to consign to them. Pershouse trusted to the promise, and relied on the faith of Davidson. But it is said that the receipt given by Davidson vested an equitable interest in Clegg and Pershouse. At the time the receipt was given, it could vest no interest, because there.was no subject in which there could be an interest, the flour not being then purchased; and when purchased, it is difficult to conceive how any equitable interest could arise to Clegg and Pershouse, to the prejudice of a third person who had no notice of their transactions. The defendant’s counsel have cited a number of cases which do not come up to the point. They are to this purpose, that any order, writing or act, which makes an appropriation of a fund, amounts to an equitable assignment of that fund. The reason is plain, the fund being neither assignable at law, nor capable of manual possession, an appropriation of it, is all that the nature of the case admits. A court of equity will therefore protect such appropriation, and consider it as equal to an assignment. But very different is the case of a parcel of flour, which admits of actual delivery. Every'man who purchases an interest in property of this kind, ought to take immediate possession; if he does not, he is guilty of negligence, and can have no equity against a third person, who contracts with the actual possessor without notice of a prior right. It is very material in the present case, that Clemson knew nothing of the contract between Davidson and Clegg and Pershouse, although he knew that Davidson bought the flour for the purpose of shipping; and when the agreement to rescind the contract was made, Clemson paid a valuable consideration by relinquishing his demand for the price of the flour. It is true, he knew then that Davidson had stopped payment; but he might have recovered part of his debt, though perhaps not the whole. The case of Walton and Fillis v. Ross and Jenks, in the Circuit Court of the United States, cited for the plaintiff, is very strong in his favour.
*399As to the lien for the freight, supposing that it once existed, I left it to the jury to decide from the evidence, whether it had not been relinquished. There was no express relinquishment; but it did not appear that the captain, or Mr. Griffith, the consignee of the ship, who were both applied to by Clemson, for possession, ever demanded freight, or put the delivery of the possession upon that point. Mr. Griffith seemed willing that the possession should be according to the right, and made no intimation that it would be withheld from Clemson, if Pershouse should acknowledge his right. He was anxious that the ship owners should not be involved in the dispute, and to that point his attention was directed. If the parties could not agree, Mr. Griffith knew that the dispute must be settled by law. The law was resorted to, and now, not Mr. Griffith nor the captain, but Pershouse, sets up this right to freight, in order to prevent a decision of the merits of the dispute hetween his house and the plaintiff. Captain Finley, the very man who might insist on this lien for freight, is a defendant in this action, and never made any such plea; he pleaded property in Pershouse. It is true, that notwithstanding this plea, it is necessary for Clemson to shew property in himself. He has shewn a general property; and as to this special property, now set up for freight, it lay with the ship owners or their agents, to insist on it or give it up. Whether they have given it up, is matter of fact to be inferred from their words and actions; and the plea of Finley that the property was in Pershouse, is evidence (though not conclusive) that in his opinion, this lien for freight did not exist. It is said that the plea was put in after the action brought, and the question-is, what were the rights of the parties at the commencement of the action. That certainly is the question; but what is said or done by a party after the action commenced, may be strong evidence to shew what his rights were at the commencement. I am of opinion therefore, that the jury were warranted in saying that the lien for freight was relinquished, if it ever existed. Whether it did exist, the ship having never broken ground, it is unnecessary to decide. Upon the whole, I am against a new trial.
Yeates J.The Court possesses the unquestionable right of awarding a new trial, when a verdict has been rendered *400against the weight of evidence, or it is manifest that injustice has been done. In the exercise of this right, they will regulate their conduct by a legal discretion. They will not order a new trial against two concurring verdicts upon'a question of fact, unless in an extraordinary case. More, however, may be urged in favour of the last verdict than of the first, new evidence having been laid before the jury by Nathan :Davidson, which had been wholly omitted on the first trial. It was testified by him, that when the plaintiff called upon him for his promissory notes in payment of the flour, he gave him a bill of parcels, which Davidson delivered back to him, saying he might take his flour. If this be a correct statement of the fact, it may be supposed to warrant the inference that the original contract was rescinded, and that an act was done by Davidson to vacate it, flowing from his wishes upon that occasion. I would not, however, be understood to say, that I should have concurred in such a verdict, if I had been one of the jurors; because this circumstance of the bill of parcels renders Davidson inconsistent with himself in other parts of his story. But the jurors were the proper judges of his credibility, and under all the circumstances of the case, I do not feel myself justified in disturbing the second verdict.
I can see no reason for changing the opinion which I delivered upon the former motion, that Clegg and Pershouse had no specific lien on the flour shipped, in consequence of the advances made by one of the partners on the spot. I still think that Davidson had the legal right of vacating the contract made with Pershouse, if he thought proper so to do; though he thereby subjected himself to an action. I am more strongly fortified in my opinion since the present argument. It remains only for me to say, that I think the Chief Justice was correct, when he charged the jury that they might infer from all the facts of the case, that the initiate right to the freight of the flour was waived by the consignee. Mr. Griffith testified, that he was totally opposed to implicating the vessel under his care in the controversy, and must have well known that the possession of the flour would entitle the foreign owners to the freight on the performance of the voyage.
Upon the whole, I am of opinion, that the rule to shew cause why a new trial should not be granted, be denied.
*401Brackenridge J.It has been made very clear to me, that the ship owner had no lien on the goods put on board," beyond the compensation for the taking on board, the stowage, unshipping and putting on the wharf again, and the demurrage to her sailing which this might occasion, this being before he broke ground. But all this was included in the freight, which the person putting on board offered to pay, provided he would carry for him. Fie offered to be answerable for it at the end of the voyage, when freight should be earned, which was the same thing.- After this, he was a wrongdoer to retain for any other person, and his defence set up to the replevin, fails.
It has been rendered abundantly clear also, that Pershouse had no lien. On the former motion for a new trial, it struck me en masse from the evidence, that he could have none, but I had not the detail of facts so fully in mind as I now have. I could collect them only from hearing the report of the testimony read, or the comments of the counsel. The exposition of the counsel as to these facts, and as to this point, have been now more full, and the comments and legal discussion more at large. I shall not go into them, but leave it to a report which I shall be happy to see minute, and the reasoning at length. It will be of use to the student and the judge. The matter, therefore, stands as between Clemson and Davidson. There was a sale, but the substratum to the sale being completed was wanting, the giving notes, that is the paying for the property. The delivery was quodam modo. It carried with it, in the nature of the case, the same precedent condition. Without this it was but a carrying the sale into effect to a farther extent, a delivery sub modo, a sort of delivery, or, as the Virginian says in his expressive phrase, sort and not sort. In strictness there was no rescinding or annulling the contract on the part of Davidson, but a refusal to carry it farther, and comply with the last requisite to a complete transfer and change of possession. When the bill of parcels was offered to him, which was a circumstance that was not in the former evidence, he disclaimed a retainer or accepting this for the evidence of the transfer and possession. Could he set up a right to retain after this, as he has done, or has been done for him?
*402I consider the case, 7 Mass. Rep. 453, as alter et idem 'with this case; another case with the like facts,'save that some particulars were wanting to make it so strong a case for the defendant as this. The consignor put property on-board the ship of the consignee. He delivered the invoice, and the bill of lading was signed by the captain, the agent of the consignee. There was shewn in evidence to the jury, an agreement with the consignee, by which the consignor agreed to accept draughts, and advance cargoes on credit. Also a copy of an account, current, in which the cargo in question was charged by the consignor to the consignee. This property was attached as that of the consignee, by a third person. It was shipped under the agreement and bill, on board a ship sent as an entire chartered ship, for the purpose of conveying the cargo in question to the consignee. It was contended “ that “ the delivery to the master of the ship owned wholly by the “ consignees, was a delivery to them to all intents and purposes, he being their servant, and duly authorised to “ receive that delivery. The property thus vested in them, w and the power and rights of the consignor wholly ceased.”
By Parsons, Chief Justice: “ the agreement cannot bind “ the consignor after the insolvency of the consignee. The “ credit contemplated, being founded upon the supposed abi- “ lity of the consignee at the expiration of the term.”
No tariff has been hitherto settled, by which it can be ascertained how many jurors shall go to make a judge, or how many verdicts shall weigh against the opinion of a Court; and grant .that the Court may overrule ad infinitum, yet ought not this to be confined in discretion to a matter merely of artificial science, I mean questions .which are a part of that science of fee simple, or fee tail, contingent remainder or executory devise, springing use or resulting trust, and not when the matter of law is merely a deduction of moral reason. The right and wrong of the case, the common mind may be more competent to decide. What is the law of the case, but the justice of it? My reason is with the verdict, and therefore I shall not interfere. ^
New trial refused, and judgment for plaintiff.