*222The opinion of the court was delivered by
Kellogg, J.The jury, under the direction of the county court, having returned a special verdict, and the court having rendered a judgment thereon for the plaintiffs, the question is now presented, are the facts found by the jury sufficient to sustain the judgment?
The plaintiffs’ right to recover must depend upon the question, whether they had acquired a valid lien upon the goods in question, as against subsequent attaching creditors of B. & H. Boynton. For the case shows, and the same seems to be conceded, that the general property in the goods remained in the consignors, and that the only interest, the plaintiffs had in them, was that of a lien to secure them for advances made to the consignors, coupled with the right to sell the goods, pursuant to their agreement with B. & H. Boynton. To constitute such lien, it seems to be established by the current of authorities, that the consignors must have obtained either the actual, or at least the constructive, possession of the goods, at the time they were taken upon the defendants’ attachment. Such is the doctrine of Bruce v. Wait, 3 M. & W. 14. Kinlock v. Craig, 3 T. R. 119. Nichols v. Clent, 3 Price 422. The Frances, 8 Cranch 418. Indeed, we are not aware of any adjudged cases, which are in conflict with this proposition.
There is a class of cases, in which, upon goods being shipped and a bill of lading taken, it has been held, that the title to the goods passes by the transfer of the bill of lading, and the possesssion of it by the consignee gives him a constructive possession of the goods. Such are the cases of Haille v. Smith, 1 B. & P. 563, and Anderson v. Clark, 9 E. C. L. 300. But in this case no bill of lading'-was taken and forwarded to the plaintiffs. Indeed, it does not appear, that any was taken. The goods were deposited in the store-house of the defendants by B. & H. Boynton, directed to the plaintiffs, at New York, in the same manner they had been accustomed to direct goods to the plaintiffs. The goods in question were entered in the shipping list “B. & H. Boynton to Elliott & Boynton;” and this was forwarded to New York by the captain of the boat, not, however, to the plaintiffs, but to the agent of the defendants, and retained by him to guide him in the delivery of the freight. This cannot be regarded as equivalent to a bill of lading; and if it were, there was no transfer or delivery of it to the plaintiffs, nor was it contemplated, *223that it would be delivered to them. Nor does the fact, that B. & H. Boynton had previously advised the plaintiffs, by letter, of their intended consignment, accompanied by an invoice of the goods, and followed by a subsequent delivery of the cloth to the defendants, amount to such a constructive delivery to the plaintiffs, as gave them a lien upon the goods. Nichols v. Clent, 3 Price 422.
It would seem, from the facts in the case, that the goods in question must have been shipped at the risk of the consignors, B. & H. Boynton, and consequently the delivery of the goods to the defendants was a delivery to them as agents of the shippers, and not of the consignees. ^ was therefore competent to the consignors, at any time before actual delivery to the consignees, to countermand the goods and thereby prevent their lien from attaching. The Frances, ut supra.
It is urged, on behalf of the plaintiffs, that their lien upon the goods attached, upon their being delivered to the defendants to be forwarded to the plaintiffs ; and several cases are referred to, as sustaining the proposition. We think, however, they afford it no support. They are clearly distinguishable from the case at bar. In Rice v. Austin, 17 Mass. 197, the timber was shipped on account and at the risk of the consignee; the bill of lading was forwarded to the consignee, and the carrier had applied to him and taken his directions, where to deliver the timber, before it was attached by the defendant; and this was held to be a sufficient delivery to the plaintiff. It falls within the principle of Anderson v. Clark, 9 E. C. L. 300, and The Frances, 8 Cranch 418. So in Coxe v. Harnden, 4 East 211, the goods were shipped on account and at the risk of the consignee, and a bill of lading, indorsed by the consignor, was transmitted to the consignee; and it was held, that the goods vested in the consignee upon the shipment.
In Hammonds v. Barclay, 2 East 227, a principal gave notice to his factor of- an intended consignment of a ship to him for sale, and in consequence drew bills on him, which the factor accepted. The principal died, and his executors directed the captain to deliver the ship to the consignee, according to his former directions, which he accordingly did, and the factor sold the same; and it was held, that the factor had a lien, not only for the acceptances actually paid, but for acceptances not then due. Here the consignee had possession *224of the ship, and all the authorities agree, that when the property comes to his possession, his lien attaches. But in this case, the cloth in question was not shipped at the risk of the plaintiffs, nor had they any bill of lading of it, nor were the plaintiffs in the actual or constructive possession of the goods. It is therefore, in all its important features, unlike the cases above cited by the plaintiffs.
In. Hart v. Saltby, 3 Camp. 528, it was held, that where a purchaser ordered goods, the delivery of them to a carrier is sufficient to bind the contract, according to the statute of frauds, where the purchaser has been in the habit of receiving goods from the vendor by the same mode of conveyance. In that case, the goods, after delivery to the carrier, were clearly at the risk of the purchaser. The vendor had parted with all right to control them, and the carrier became the agent of the purchaser.
In Holbrook v. Wight, 24 Wend. 169, it was held by the court, that a factor, who has made advances upon goods consigned to him for sale, and which have been delivered to a third person to forward, has a lien upon the goods and may maintain an action against the bailee for non-delivery. This case would seem to be somewhat analogous to the case at bar; but still we think it falls short of sustaining the judgment below. It is worthy of remark, that in Holbrook v. Wight, the question, for whom the bailee held the goods, was deemed one of fact for the jury, who found, that he held them for the consignees. It was the turning point in the case. So in the present case, the important inquiry, and one which we think is decisive of the case, is, for whom did the defendants hold the goods in question, — for the consignees, or for the consignors and subject to their control ?
We discover no facts in the case to justify the conclusion, that the consignors had parted with the right to control the cloth, and that the defendants held them for the plaintiffs and subject to their control. And in the absence of proof to that effect, it seems to us, that the judgment of the county court cannot be sustained.
Judgment of the county court reversed and case remanded.