The fund in dispute is a sum of $1300, in the hands of the garnishees, Turner, Wilson & Co. The plaintiffs, creditors of Floyd, claim it under an attachment and process of garnishment levied in March, 1853. The interven, ors claim it as holders of a hill of exchange accepted by Floyd, for the payment of which, they say the fund had received a destination placing it beyond Floyd’s control before the attachment. The fund was awarded to the intervenors by the court below, and the attaching creditor has appealed.
A brief statement of the circumstances under which the garnishees hold the fund, will show the unquestionable correctness of the decree below.
In the fall of 1852, Floyd obtained in Kentucky a loan from the Southern Bank of Kentucky, upon his acceptance of a hill endorsed for his accommodation by his friends Arnold and Jones; and to protect Jones for his endorsement executed there a mortgage in his favor upon certain property, among which were certain flat-boats and their cargoes of staves. The staves were intended for the New Orleans market, and hills of lading were signed in the name of Jones, as shipper, and Turner, Wilson & Co., as consignees, which were delivered to Jones, who transmitted them through his agent Alexander, to Turner, Wilson é Co., with instructions to realize from their sale the sum of $2500, appropriate it to the payment of the hill of exchange, and pay the balance, if any, to Floyd. Arnold, the co-endorser with Jones, and similarly interested in the application of the shipment, came to New Orleans with the flat-boats. Upon January, Turner, Wilson & Co., took possession under theiri through Arnold, whom they entrusted with the staves. The authorized Floyd, who had a residuary interest after the paymlj look for a purchaser. He made a contract of sale with one Jo® immediately notified in writing by Turner, Wilson & Co, that! must he paid to them,beyond which, and the expense of watching'! would make no claim. Fonbene accordingly paid the consignees¶&5?)0, whiohj they, with the approval of Arnold, the agent of Jones, and the assenti received upon the promise made to Arnold, and communicated on the same day by letter to Alexander, that they wouldhold, and appropriate it to the payment of the hill of exchange, then deposited for collection by the intervenors in a hank at New Orleans. All this took place before the plaintiffs took outtheir attachment; *352and is clearly shown by ihe answer of the garnishees.'and their witness. Jones has never revoked his instructions, and the bill of exchange which was protested at maturity, is unpaid in the hands of the intervenors. The garnishees desired to pay its amount, but, were arrested by the process of garnishment, and paid the the bank at maturity only $1100 on account, being the surplus over the attaching creditor’s claim.
The intervenors were unquestionably entitled to receive the fund. The property from which the fund arose, passed out of the possession and control of Floyd under contracts lawful in Kentucky, and conferring upon Jones a possession which our law also would respect and maintain. When the property arrived here, the intentions of the parties were carried out by the conversion of the goods into money, and the retention by the consignees of a sufficient portion of the price for the express purpose of meeting the bills, this being done by the orders of the shipper in whom the legal title was vested and with the assent of Floyd, who had only an equitable residuary interest in the goods. The proposition that this arrangement could be set at naught without the consent of Jones is idle. But Jones has never consented; his purpose that the fund should be appropriated for his protection to the payment of the bill, must in the absence of evidence, to the contrary, be considered unchanged; and the bank, the holder of the bill, signifies by its intervention, its desire to receive the fund thus appropriated for its payment by Jones. Floyd would not be listened to, if he opposed the appropriations to the unpaid bill, for he had lost control of the fund, and the attaching creditor who claims through him by process levied after the control had lawfully passed from him, has no better right to defeat its destination. See Hill v. Simpson, 8 An. 48; Oliver v. Lake, 3 An. 82; Armour v. Cockburn, 4 N. S., 669.
Judgment affirmed, costs of appeal to be paid by appellants.