
    
      LEE & AL. vs. BRADLEE.
    
    East’n District.
    
      May, 1820.
    Delivery is not a consequence, but of the very essence of the contract of pledge.
    Appeal from the court of the first district.
    
      Hoffman, for the plaintiffs.
    The plaintiffs and attaching creditors in this case contend that their attachment must be sustained—
    1. Because the intervening claimant, Jos. P. Bradlee, has not made out his claim by testimony.
    2. Because no delivery of the property attached having been made to the claimant, no sale or assignment thereof could transfer it to the prejudice of the attaching creditors.
    I. The only evidence in support of the claim in this case is an order, drawn by the defendant on C. B. Sweetzer, who was at the time in Boston, requiring him to deliver to the claimant all goods, or proceeds of goods, that he may have belonging to him, to the defendant. This order is dated Boston, Nov. 9th, 1818, and is accepted by Sweetser the same day. The circumstances, under which this order was given, must lead to a Conviction that it was intended as a collusion between the parties. It is drawn by the defendant, in favor of his brother, on the very eve of bankruptcy. It is not expressed to be for value received, and, what is still more extraordinary, was not brought to this place by Sweetser, but sent here by the claimant, when this cause was nearly ready for trial, and many months after the property was attached.
    But it is difficult to perceive what there is in this order, which can make it apply to the goods in question, for the evidence of Hyde shews clearly, that Sweetser had delivered them into the possession of the Messrs. Hydes of this city, many months previous, in pursuance of instructions from the defendant.
    But let us suppose for a moment that Sweetser, though in Boston, had the possession of the goods claimed and then in this city (which we think is carrying the doctrine of constructive possession beyond all bounds) there is not the least testimony to show that this order was given in pursuance of a sale from the defendant to his brother, the claimant, or even intended as a dation en payement, for that supposes a debt due, which is not made out by the testimony.
    Had the goods in question been delivered, in pursuance of the order, it would not have made them the property of the claimant; he would have been nothing more than what Sweetser had been, that is, the agent of the defendant; for if the defendant intended, by the order drawn on Sweetser, to transfer the property of the goods in question to the claimant, why, it may be asked, was not the order drawn on Messrs. Hydes, who, the defendant knew, had the actual possession of the goods ? To constitute a sale a price must be given; a dation en payement can be made only by a debtor to his creditor, and a delivery is of the very essence of such a contract. In this case, there is no evidence to support either. The notes and checks filed by the claimant are, no doubt, intended to shew that the defendant is his debtor to that amount, as being the holder thereof, and it will, perhaps, be contended that his possession of them is sufficient proof of the fact. Such a circumstance, it is true, might be testimony in an action by the claimant against the defendant, certainly inadmissible in the present case. There is no evidence that the claimant was in possession of the notes and checks previous to the failure of the defendant, which took place about the 24th Nov. 1818. In an action by the assignees of the defendant against tbe present claimant, he would not be permitted to set off a check issued by the defendant, payable to bearer, and dated before the bankruptcy, unless he proved that the check came to his hands prior to the bankruptcy. Ogden vs. Cowley, 2 Johns. Rep. 274. The reason of the decision in that case applies, with equal force, to the present.
    It is deemed unnecessary to examine the question whether Sweetser, when in Boston, could, in contemplation of law, have possession of goods in the city of New-Orleans ; as it clearly appears from the testimony that, on leaving, he renounced all control over, them. By the letters of the defendant to the Messrs. Hydes, received prior to the departure of Sweetser for Boston, they are repeatedly informed that, in the event of Sweetser leaving New-Orleans, all the goods of the defendant would be left with them ; they are likewise authorised to sell them lower than their neighbours, in order to put themselves in funds to meet the defendant’s drafts. Sweetser, on the eve of his departure, conformed to the expectations raised by the letters of the defendant, by leaving with the Messrs. Hydes the key of the store in which the goods were deposited, with a memorandum naming some of the items. In the case of Durnford vs. the syndics of Brooks this court say, that the delivery of the keys of the building, in which moveable property is kept, is a delivery of the property therein contained. Civil Code, 350, art 27. The claimant has failed to establish his claim to the goods in question.
    II. Taking it for granted, that the claimant has proved a sale or assignment of the property in question from the defendant to him, in such a manner that, according to the lex loci contractus, the property, if there, would pass without delivery; yet it is contended that the laws of this state must govern in the present case. This point has been so often decided in this court that a reference to these decisions is all that is deemed necessary. In Norris vs. Mumford, 4 Martin, 20, the goods attached were in New-Orleans, and all the parties were citizens of New-York. In Ramsay vs. Stevenson, 5 Martin, 23, and Fiske vs. Chandler, 
      7 Martin, 24, the circumstances were the same, and in all those cases it was determined, that, as no actual delivery took place before the attachment was laid, the attaching creditor should hold the goods. In the case of Thuret & al. vs. Jenkins & al. 7 Martin, 318, the court say that “ If the ship had been within the state, at the time of the sale, the rule in Norris vs. Mumford would have regulated the decisions of the court.” Nothing more is asked in the present case.
    Pierce, for the claimant.
    To substantiate our claim, and to show that the order, accepted by the agent of the defendant, was in part payment, or as security, for a bona fide debt due to us by the defendant, we produced upon the trial notes and checks of different dates, all due long before said transfer. Their genuineness and the reality of their dates never were contested in the court below ; nor, either there or in this court, any testimony shown that could cast a suspicion upon them : and of the notes many bear the certificate of the cashier, that they have been taken up by us.
    But the plaintiffs, now, for the first time, suggest that suspicion arises from our retaining these notes and checks in our possession, though we call them the consideration of the transfer; we did retain them, and if this had been a transaction of the nature which the plaintiffs are desirous of establishing, we should no doubt have been sufficiently cautious, and have surrendered them to the defendant and taken from him a long and verbose bill of sale : but we were then acting with all the fearless openness, incident to a fair and honourable transaction, and as we knew that many expenses had been incurred and were chargeable upon these goods, and that such could not be ascertained until Sweetzer, a common agent, should be in New-Orleans, and should be able to render an exact account of the same, we accepted these goods or whatever proceeds might be in Sweetzer’s hands, rather as security for our debt, than as full satisfaction.
    Defeated in this, another objection is started, that the order does not bear upon the face of it the being given in payment or as security for any debt, and that it merely establishes an agency. Let the circumstances of the case alone refute this; they are sufficient. What would Samuel S. Bradlee want with an agent in Boston, the place where he himself was residing ? Of what goods of his could Sweetzer there be in possession ? He a stranger, and but lately arrived in that city. Again, is there any proof that J. P. Bradlee, intended coming to New-Orleans, and as agent of S. S. Bradlee ? Is it probable that he would agree to be but his factor, when he was so largely his creditor, and S. S. Bradlee was on the eve of bankruptcy ? And finally, though it is scarcely necessary to mention it, S. S. Bradlees letter is conclusive : a witness, whom the plaintiffs have laboured to introduce, and whose testimony, if at all admissible, must be more pure after his surrendering his property to his creditors, than, when still struggling to keep himself upon the surface.
    We trust, therefore, that in a few words, we have made out the justice of our claim, and established the plain meaning of the order on Sweetzer.
    We are next to enquire if this assignment be legal.
    The law of Massachusetts is here the sole rule by which we are to judge this transaction ; all the parties, plaintiffs, claimant, and defendant, are citizens of the state of Massachusetts. The law of Massachusetts is the law loci contractus, and when no inconvenience or injury results to our own citizens, although the subject matter of the contract is to be determined according to the lex loci contractus, the remedy is to be pursued according to our judicial forms. 2 Johns. Rep. 198; 3 Dal. note 370, 3, 5, 6; 7 Martin, 373.
    By the laws of Massachusetts such assignments are legal, and particular creditors may be justly favoured, at any time before act of bankruptcy committed. Vigilantibus non dormientibus lex adjuvabit; 8 Mass. Rep. 287, 12 Mass. R. 143.
    If legal, how far binding, 1st. as to the contracting parties, and 2d. as to third persons.
    1st. As between the contracting parties. The common law is the law of Massachusetts. By agreement, at common law, the property is transferred. Shep. Touchst. 225; 1 Gal. 422 ; 4 Bl. Com. 448. And should the property be in Louisiana, and even the delivery there to take place, the contract will be construed by the common law, and be here enforced, 7 Mart. 213, as between J. P. Bradlee and S. S. Bradlee : therefore, the contract may be complete and binding, wherever enforcement should be demanded.
    2d. As to third persons. In assignments of this nature, to bind third persons there must be an actual delivery, or delivery and possession as much as the nature of the case will practically admit. 1 Gal. 423; 8 Mass. Rep. 290.
    II. There was a sufficient delivery from S. S. Bradlee, and sufficient possession on the part of J. P. Bradlee. Sweetzer, while in Boston, was the agent of S. S. Bradlee for those goods, then being in New-Orleans, which we now claim. The Hydes were but sub-agents and their possession his. Upon accepting the order of S. S. Bradlee, he became the agent of the latter, and possessed of the property for him, and if he should not be considered as being sufficiently in possession of these goods in his new character while in Boston, he certainly was on his return to this city, and before this attachment of Lee & Francis was laid.
    Let it be recollected by the court that both Sweetzer and the Hydes were agents for S. S. Bradlee ; Sweetzer for the property which we now claim, and the Hydes for other goods. This will explain many of the directions of the defendant, in his letters to the latter; this the plaintiffs allow, but they alledge, that when Sweetzer departed from Boston, he ceased being the agent of S. S. Bradlee, and that this property was delivered over to the Hydes, as the defendant’s sole agents, agreeably to his express directions. For the proof of this they examine Mr. Hyde, who appeared to be in some way connected with the house of J. & W. M. Hyde. From his confused and contradictory testimony, we can only draw this information, that a considerable intimacy existed between Sweetzer and the Hydes ; that they acted in some measure as his bankers, paying for the rent of his store, charging it to him to be sure occasionally, as the witness proves, and when not doing so "charging it to charges and charging it back again,” a method something unintelligible, unless he means that they were paid; further, that Sweetzer upon his leaving New-Orleans, delivered the key of his store and invoice books to the Hydes, and that he considered them as Bradlee’s sole agents, from certain letters received from him by the former. These letters, upon which his knowledge is based, are produced, and the counsel for the plaintiff are all anxiety to have them admitted and placed on file. They are so : let us examine their contents. The first letter, marked (C) gives them permission, if Sweetzer wishes it, to assist him in the sale of his goods, and tells them that in case he goes away they may calculate upon receiving all the goods. What does this mean ? That he will revoke Sweetzer’s power of attorney and invest them with it; or that, if Sweetzer should go, all goods that be might hereafter send would be received by them :—the third letter marked (E) explains it satisfactorily : he there says, that he consigns them goods because “he hears Charles is about to leave New-Orleans,” and because of his promise to them:" his fourth letter marked (F) gives this, “I understand Mr. Sweetser will leave and put all his property in your hands:” the fifth letter, dated July 10th, adds, “you no doubt have received before this all the property that Mr. Sweetser left:" his reasons for stating this are expressed in his next letter of July 22d. “ Mr. Sweetser wrote me he should leave all the goods in your hands.” Which is the conclusion to be drawn from all this ? Surely, not that S. S. Bradlee revoked the power of attorney of Sweetzer and named the Hydes his agents for the goods claimed ; but rather, that he knew the intimacy existing between the latter and Sweetser, and supposed therefore he would depute them to act in his stead, in case he left New-Orleans, and indeed was finally so informed by Sweetser himself: nowhere does he even hint at causing the responsibility of Sweetser to cease. Suppose the Hydes had been in bad credit, on the brink of failure, would Sweetser have been justified in turning over these goods to the Hydes; would he not have been accountable to the defendant, and could he have said that the defendant had ordered it? Certainly not. Sweetser is then the agent of the defendant, while in Boston, and the goods are still in his store in New-Orleans. They there remain to the time of this attachment, unopened and untouched. What delivery could he make wheu he assumes the character of agent of the claimant? They are in his store, and he himself is the agent; he departs for New-Orleans directly after his change of character, and finds the goods still in his store and as he left them; and immediately after his arrival, he is garnisheed by the plaintiffs and declares that he has no goods of the defendant, and that these goods in his store were the property of the claimant, and we confidently trust the court will determine that he was correct in his answer and his subsequent claim.
    There was therefore as real delivery and as full possesion, as the nature of the case could admit of. The civil law asks no more. 3 Marin. 222.
    
    
      
      Hawkins, on the same side.
    It has been urged by the counsel for the attaching creditors, that the laws of Massachusetts, where this contract was made, can avail the claimant nothing because the supreme court of Louisiana have settled the question, by deciding that the property, being within the jurisdiction of this state, at the time of the attachment, would invalidate the rights of the claimant, though good, had the property been elsewhere than in Louisiana.
    By a close examination of the decisions of this court, it will be found that no case, heretofore. under consideration, presents the same features with the present.
    The only case of the five referred to from Martin’s Reports, which can at all sanction the doctrine, that, the property being within our own state, would alter or affect the rights of the parties, is the case of Ramsey vs. Stevenson. 5 Martin 23. And in this case, the court seem influenced by other considerations, as well as the situation ot the property.
    If the contract between S. S. Bradlee, and the claimant J. P. Bradlee, was good in Massachusetts, and would have passed good right to the property, notwithstanding the property, at the time of sale, was in Louisiana, why should the courts of Louisiana step in and vacate this right.
    The parties litigant are old residents of Massachusetts, or foreigners, in the case immediately before the court; all residents of that state.
    Is there any thing in reason or justice, which requires that the courts of Louisiana should lend their aid in furnishing facilities to citizens of sister states, not furnished by the laws of the state where the parties reside and where the contract was made ?
    Or rather, would it not be fraught with the highest injustice, that in the present case, the court should destroy the claim of J. P. Bradlee, by giving an ascendency to the attaching creditors, which they could not obtain in Massachusetts where both parties reside ?
    Wherever the rights of our own citizens were affected, then and then only, would our courts interfere. If the decision in Ramsey vs. Stevenson goes further, it was because of the difference between this case and that: and the case of Lynch vs. Postlethwaite, and other cases of this court, sanction the position that if the contract was good by the laws where made, it was binding though the property was here, or elsewhere, at the time of sale ; and this court would alone interfere with the subject matter of the contract, where necessary to protect the rights of our own citizens.
    Was the order and its acceptance, relied on by the claimant in this case, good in Massachusetts ?
    Delivery of the article sold there is only necessary, when in the power of the parties. It was at first attempted by some of the courts of sister states, to confine the principle to ships at sea ; but subsequent decisions show the absurdity of the position, and extend the principle alike to all cases where the property at the time of sale was without the controul of the parties ; requiring however, of the party purchasing, to take possession of the purchased property as soon as practicable, after it shall come within his reach.
    No laches or neglect can be imputed to the claimant for not taking possession as early as practicable. The agent Sweetzer was deemed (as he was in fact) in possession of the property for the use of the seller, and his acceptance of the order, converted his possession to the use of the purchaser, taking as he did the character of agent also, for the purchaser, and as soon after his arrival in New-Orleans as practicable, he not only did all as an agent he could do in regard to the safety of the property, but you find him on the record, as the agent of J. P. Bradlee, the claimant, filing and urging the claim against the attaching creditors.
    No solid argument has or can he urged to repel the reason of the rule here prescribed by the courts.
    Nor is there any essential difference between the common and civil law authorities on this subject. Although no final decision was had in the case from Dallas, the reporter inserts the translation of a note from Huberus, as furnishing the best illustration of the principles which should govern.
    
      Gallison and Peters resort to the same source, and this court, in the case of Lynch vs. Postlethwaite, expressly sanctions the rule from Gallison where it is declared, in general terms and without exception, that the law of the country where the contract is made is to govern throughout.
    It is attempted to weaken the claim of J. P. Bradlee by urging that the order and its acceptance gave no right to the property in contest; the order not being in the nature of a bill of sale.
    It was not necessary that any writing should have been executed to vest good title in this property; because it passed by virtual sale; and the order is used, coupled with other evidence in support of this sale.
    The early death of Sweetser the agent, after this controversy commenced, precluded the benefit of his services, as well as deprived the claimant of the benefit of his testimony, which would have been more full and satisfactory; he, Sweetser, having been privy to the sale and could, therefore, have furnished all that pressed on the subject.
    But in support of the claim of J. P. Bradlee, we find a large debt due by his brother of the most sacred character, the greater part being for monies paid in bank as his endorser, and so certified by the bank officer. The justice and amount of the debt no where repelled or denied, nor even questioned, save in argument and for the first time now urged before this court.
    But as another reason why the parties did not conceive it necessary to express any sale of the articles of property, in the hands of Sweetzer it will be recollected that Sweetzer had, during his absence from New-Orleans, confided the goods to the Hydes ; that the Hydes as well as Sweetzer, had been directed to sell even at lower prices than others, with the view to effect early sales ; and at the time of giving the order it was uncertain whether Sweetzer would have in his hands money or goods to deliver over to Bradlee, the claimant. And hence you find the order worded in the alternative of "deliver J. P. Bradlee all goods, or proceeds of goods, that you may have belonging to me.”
    Had the goods been sold and the money either in bank or in the hands of the Hydes to the credit of Sweetzer, or even held as the funds of S. S. Bradlee, would not the order and its acceptance have been good and passed the right to these funds, the proceeds of sale ?
    If good for the proceeds of sale, why not good for the articles not sold ?
    But we contend that even if our claim be not so clearly made out as we might desire, still the attaching creditors are not to recover upon the feebleness of our proof, but upon the strength of their own attachment.
    The only rights derivable to the attaching creditors, grow out of special laws, enacted by our legislature.
    The remedy is, in its nature, an extraordinary one, given only in the cases especially recited, and can apply to none other. And this brings us to the assignment of errors filed in the cause.
    1st. The plaintiffs and defendants, being all non-residents, no attachment can be maintained under the statutes of our legislature, and on which the plaintiffs alone rely for support of their attachment.
    2dly. No sufficient answer is given by the garnishees, on which the attachment could be maintained.
    3dly. No sufficient levy of attachment, or any goods of the defendant is found on the record, by which the court below could award judgment for the plaintiffs in attachment.
    4thly. It does not appear that the account, on which the plaintiffs rely, was a liquidated account, or that the balance due was ascertained and specific, which is required by law.
    We will not enter into a detail of the arguments used in support of these grounds.
    As to the first, the words of the statute do not embrace cases wholly between non-residents; nor does the comity or courtesy due to other states or powers require that Louisiana should interfere with rights of citizens of other states, and give the one or the other benefits not extended by the laws of their own respective states.
    To adopt or pursue such a system would be to covert ourselves into an instrument of oppression, rather than protection.
    The growing commerce of our city, being as we are also the great depot for several of our sister states, all of whom are governed perhaps by different measures, if not different systems of legislature forbid that we should unnecessarily interfere with controversies and contracts wholly between citizens of other states.
    Several of the states have from policy, whether wise or unwise is unnecessary to examine, passed laws calculated to relieve their citizens, from immediate coercion for debt. Shall the citizens of these states, pursuing their only legitimate trade, on their arrival in Louisiana, find a system of coercion and sacrifice enforced by a creditor who has protection at home to his property there, and increased advantages over his fellow citizens here, from not having had sufficient enterprize to embark himself in trade. Louisiana was destined for higher and better purposes, than to be made the mere theatre of judicial controversy between citizens of other states ; when we have amply protected our own citizens, nothing more is due to ourselves; and when we furnish the citizens of other states with all the facilities secured to our own in reaching the property of an absent or absconding debtor, nothing more is due to them. Transcend this rule and where shall we stop ?
    
      Suppose the courts of justice of all the states with whom we have intercourse were suspended in their judicial process, as is now the case in some four or five, would Louisiana be acting, with becoming dignity to herself and a due regard to what is due to other states, by suffering the citizens of those states to harrass our commerce and crowd our dockets with judicial controversies denied them at home ?
    By adverting to the different enactments on this subject, although the words are general, in sections treating of attachments, in cases where debts are due, still in an after section, speaking of attachments for debts not due, the legislature have clearly confined the remedy, to cases in which our own citizens are concerned ; and it is but a fair interpertation, to say that this was evidently the object of law makers in treating of debts due.
    For why not let non-residents attach the property of each other, as well for debts not due, as actually due ? The same justice, which sanctions the one section of the law, sanctions the other.
    In regard to the second error assigned, it is clear beyond controversy, that where redress is sought by attachment on garnishees, it is the answer of the garnishee alone that gives jurisdiction, or proof that he has property, or effects. Without the one or the other, the plaintiff in attachment must fail.
    In the case before the court, both Hyde and Sweetser are garnisheed ; it being clearly established that both had received different parcels of goods by different shipments.
    Hyde answers as garnishee, and after accounting for the goods actually shipped him, proceeds to declare, not that he then had, or had at any previous period held, other property or effects of the defendant; but that Sweetser had placed in his charge other goods as per invoice. No proof in the cause contradicts the answer of Hyde ; on the contrary supports him.
    It is equally clear from testimony, that the goods were only placed in charge of Hyde, during the absence of Sweetser.
    When the attachment was sued out, both Hyde and Sweetser were here, and the plaintiffs, conscious themselves that Sweetser was regularly and legally vested with possession of the goods, temporarily committed to the charge of Hyde, made Sweetser also garnishee.
    And Sweetser denies having any goods the property of the defendant, J. P. Bradlee, and, as was his duty as agent, files the claim of J. P. Bradlee, which he had by an accepted order bound himself to deliver.
    There is, therefore, nothing in the answer of either of the garnishees, or in the proof in the cause, which would justify the court below in awarding judgment for the attaching creditors.
    As to the 3d error ; it is not pretended that the sheriff actually attached, or had in his possession, any property or other effects of the defendant ; the sole ground relied on being the response and proof as regarded the garnishees. So that no levy of attachment and possession of the groods were had by the sheriff, to justify the court below in entertaining jurisdiction or awarding judgment for the plaintiffs.
    
    As to the fourth ground of error, it is deemed equally clear that the account sued on is neither liquidated between the parties, nor is the amount thereof ascertained and specified, which is required by the statute of our state.
    See, 1 Martin’s digest, tit. Attachment. Durnford vs. Syndics of Brooks. 3 Martin, 222. Norris. vs. Mumford, 4 Martin, 20. Ramsey vs. Stevens, 5 Martin, 23. Lynch vs. Postlethwaite, 7 Martin, 213, Thuret & al. vs. Jenkins & al., 7 Martin, 352. 3 Dallas’ Rep. 370, and notes. 1 Gallison, 371. 1 Peter’s Rep. 74, 5. 8 Mass. 299. 12 Mass. 143.
    
      
      Ellery, in reply.
    I. The order, on which the claimant relies, is not for value received; it expresses no consideration, and acknowledges no debt; it shews neither a sale, payment, security, nor assignment ; and the party, claiming under it, appears neither as purchaser, trustee, nor creditor. Being the only title in support of his claim, we are not to look out of it for his character, or construe it to mean what it does not express. In it, he figures as a mere agent; and if as such, he had already obtained possession of these goods, it would not have changed his character nor that of the property ; nor would he thereby have acquired any right whatever, to have held it against attaching creditors. He would have received them, under this order, not as a creditor in payment or on pledge, or as security, but as an agent on commission ; his possession would have been that of the defendant, and we should have had a right to attach them in his hands.
    It is by no means clear, that he ever was a creditor. The order does not make nor acknowledge him as such ; nor is it permitted to travel out of it in quest of such proof; and if it were the checks and notes of an insolvent debtor, without any evidence of how or when procured, would go but little way towards it. But admit him for a moment, to be a creditor, and even in possession ; would this, under the circumstances of this case, give him a preference over attaching creditors ? As creditor, he could not convert this into his own property, but through the medium of an attachment laid upon it in his own hands ; Sergeant 72, and his attachment would be productive only according to its priority. His lien upon it derived from possession would not be measured by the amount of his whole debt, but by that of the expenses incurred by him as agent, and his agency would be limited to this single transaction.
    But suppose that this order was actually followed by a delivery, and the goods delivered, were taken, as is contended, in pledge, or as security for a debt ; would it not in that case, both by our own laws, as well as those of the state of Massachusetts, where the order was drawn, be set aside as void against the other creditors ? Of our laws upon this point, there can be no doubt ; nor are those of Massachusetts, less explicit. The insolvent laws of that state are analagous to those in England ; and cases arising under them, are governed by the same principles and authorities. According to these, all payments made, or securities given by a debtor contemplating insolvency, and with a view of preferring a favorite creditor, are void. In the case of Locke vs. Winning, C. J. Parsons says, “ no case has been found, where a payment has been made, or security given by the bankrupt, in contemplation of an act of bankruptcy, which has been holden good against creditors. 3 Massach. Reports, 329.
    Was not this order evidently given in such contemplation, and for the purpose of preferring a favorite creditor, and that creditor a brother ? It is dated 9th November, 1818, on the 24th day of which month, the defendant becomes a bankrupt. It is voluntarily and gratuitously given, without suit or pressure ; without even a shew of diligence on the partof the claimant, or an acknowledgement of debt on that of the defendant. When to these invalidating circumstances is added, that it is loosely and indefinitely worded, without specifying these goods, or indeed any goods ; or designating any place where they were to be found ; that it is made by one brother in favour of another ; was not brought here by Sweetser, nor apparently thought of, or sent for, until after the institution of this suit, and did not arrive until some months posterior--I think there can be no mistake as to its character and object. According, therefore, to the laws of Massachusetts, this order (going with the counsel the improbable length of supposing it intended as a pledge or security, and followed by delivery) would be set aside as made in fraud of creditors ; nor is its chance much improved by being brought to this quarter, and tested by our laws.
    II. Whatever be its original character, it was never executed. The transfer was not perfected by the delivery of the goods transferred. At the date of this order, and long previously, they were in the possession of the Hydes, in this city and before its arrival, were placed by sundry attachments into the hands of the sheriff. In what manner is this order to deliver, attempted to be turned into a delivery ? By first making the drawee, (Sweetser) at Boston, the agent of the defendant for these goods, at New-Orleans ; then converting him into a like agent of the claimant ; and lastly, transforming the Hydes into his sub agents ; and by this process of triple transformation, the work is done.
    But how stand the facts in this case, are they favorable to any part of this legal metamorphosis ? It is true, that Sweetser, while at New-Orleans had been the agent of the defendant, and in possession of these goods ; but prior to his laaving this city, on the 5th August, 1818, he gave up the agency, and handed them over to the Hydes, with instruction, to sell and remit the proceeds to the defendant. The Hydes take them with the invoice-books, &c. into their possession, as well as the store in which they were kept, of which they received the key, and paid the rent. This change of agency is also made at the particular instance of the defendant himself; who, in his letters to Sweetser, requests him to deliver, and in those to the Hydes requests them to receive, these goods. This correspondence between the defendant and the Hydes continues for many months ; he uniformly addressing them as his agents, giving them instructions as such, in respect to sales and remittances, and drawing upon them, upon the credit of these goods thus placed in their hands. One of the witnesses, a clerk of the Hydes, and well acquainted with their affairs, expressly negatives every idea of a joint agency, or a sub-agency ; and makes them sole and exclusive agents of the defendant.
    In the lower court, an exception was taken to the introduction of these letters ; but where can a plaintiff look for better proof, than in the written acknowledgments of the defendant ? made too at a period prior to the date of this order. when his mind must have been free from all bias ? If warped by any subsequent bias, it is hardly necessary to ask, whether it be in out favor, or that of his brother, the claimant. The gentlemen might with as much reason, had we sued upon a promissory note, have objected to its admission ; but their intervention in our suit, surely does not change the character of the parties plaintiff and defendant, or lose to the former the benefit he might derive from the confessions of the latter.
    To return ; Sweetzer then, at the time he accepted this order at Boston, 9th of Nov. 1818, was neither in actual nor constructive possession of these goods. Did he afterwards, as agent or otherwise, obtain such possession ? By the testimony, he does not arrive in this city, until the 23d of Dec. 1818 ; two or three days prior to the issue of the attachment in this case, but subsequent to those issued in some of the others : by which time, the goods had already been placed in the custody of the sheriff, and after his return, we have it expressly stated in evidence, that “ he had no access to the store,” which contained them, and that he never was suffered to enter it unaccompanied by the Hydes (left by the sheriff as keepers of these goods) and that he never took, nor attempted to take possession of them ; his own testimony indeed upon this point is conclusive ; garnished this suit, he swears, that he has no property of the defendant in his hands.
    There is, therefore, no pretence whatever of delivery or possession either corporal, or constructive ; in default of which, (even admitting this to be a sale or transfer) the whole course of decisions runs in favour of the attaching creditors, 1 Martin, 222. Durnford vs. Syndics of Brooks. 2 Martin, 26. Norris vs. Mumford, 3 Martin, 77, Ramsay vs. Stephenson, 5 Martin, 30, Fisk vs. Chandler, 5 Martin, 319, Thuret & al. vs. Jenkins & al.
    
    Thus then it appears, that if (against all fact and probability) we change the nature of this order, and admit it to be intended to operate as a pledge or security ; and admit also the lex loci contractus to prevail : by that law it would be declared void, as made in fraud of creditors. But the subject matter, being, at the date of this order, within the limits of this state, and the order calling for its execution in this city, the lex fori will govern, and the transaction be tested, as well as the rights of the attaching creditors enforced, by our own laws. 5 Martin, 357, Thuret al. vs. Jenkins & al.
    
    
      But it is further contended by the claimant, that the attachment itself is null, because the remedy by attachment is a domestic one, and not communicated to strangers ; because the account upon which the suit is brought, is not liquidated ; because no sufficient answer is given by the garnishees ; and because no sufficient levy is made of the attachment.
    1. The first ground of nullity is supposed to be found in the spirit and phraseology of our different attachment-laws ; from which it is inferred, that none but native suitors are entitled to this remedy. But a review of these acts hardly warrant this inference ; they neither breathe this spirit nor express this distinction. They are all remedial acts, and therefore to be liberally construed ; and nothing is shewn to narrow such construction. The expressions are sufficiently comprehensive to include suitors of every lineage and country ; they mention in general terms, plaintiffs, petitioners and creditors, without drawing any line of geographical exclusion. And singular would it be, if one of our most important legal remedies was wholly confined to ourselves ; and every attaching creditor was to enter our courts of justice through a domestic door, only to be opened to citizens, and obliged to become a citizen, in order to recover a debt. But we trust that there is more hospitality in the justice of our country.
    
      Tros Tyriusve mihi nullo discrimine agetur.
    
    The stranger while remaining in this state, becomes, quoad, hoc an inhabitant. 1 Dall. 480 Syle vs. Foreman. During his term of residence here, he is in effect a citizen, owing allegiance and entitled to protection ; and to deprive him of a legal remedy in a personal suit, would be unreasonably to abridge that protection, and violate national comity. 3 Martin, 371 Smith & al. vs Elliot & al.
    
    
      2. But it is next contended, that the account, upon which this suit is brought, is not a liquidated one, which is required by law ; but we say, that it is sufficiently liquidated, and the debt sufficiently ascertained by the oath of the plaintiff. In the case of Hunt vs. Norris, while a similar question arose, it was decided in this court, " that all obligations arising from contracts either express or implied, either for the payment of money or delivery of goods, create a debt on the part of the obligor, for which an attachment may issue, whenever the amount may be fairly ascertained by the oath of the obligor. 2 Martin, 532. Vid. also Sergeant, Law of Att. 43, and opinion of J. Washington, 47.
    
    
      3. In the third place it is objected, that no sufficient answer is given by the garnishees on which judgment could be awarded. The best answer to the objection is a reference to the record, where John W. Hyde, one of the garnishees, expressly swears, “ that about the 6th August, Sweetser placed in their charge for sale several invoices of merchandize belonging to Samuel S. Bradlee, (the defendant) amounting per said invoices to $12,476,44.”
    4. The last ground of nullity is said to be found in the execution of the writ of attachment ; it being alleged, that the sheriff did not actually attach and take these goods into his own possession.
    By looking however at his return, we find that he not only left copies of the petition, citation, attachment and interrogatories with the garnishees, but also “ attached in each of their hands” all the property of the defendant.
    The sheriff is not bound to remove the attached goods from the store, in which they may have been attached. There is no particular place provided or assigned by law for the safe keeping of attached property. It is as much in his custody in one store as another ; and he may appoint such guardians of it, as he thinks proper ; and their possession is constructively his possession. His return is made in the usual form, (Sargeant, 227) and when he tells us in it he has attached these goods, we are not permitted to travel out of it. The garnishees (the Hydes) by their appearance, also acknowledge the attachment.
    In the state of Pennsylvania, where the attachment law is similar to our own, we find the like practice, and the like return on the part of the sheriff. The usual practice there is to serve a copy of the writ of attachment on the garnishee, with notice annexed by the sheriff, that by virtue of the writ, of which that is a copy, he attaches all and singular the goods and chattels of the defendant in his hands or possession, and summons him as a garnishee ; (Sargeant, 15) and from that time the garnishee is restrained from paying over the debt or property of the defendant, and must await the legal issue of the proceeding. Id. 108.
   Derbigny, J.

delivered the opinion of the court. The ingenuity of counsel has raised in this case a variety of questions, from which it has assumed more importance than it deserves. If we disembarrass it from the matters which do not properly belong to it, we will find it simple and of easy decision.

The plaintiffs, citizens of Boston, have attached property here, which they say belongs to the defendant their debtor, also a resident of that place ; the defendant pleaded the general issue, and the debt was proved ; so that between plaintiff and defendant it only remained for the court to pronounce judgment accordingly. But a third person has stepped in, averring the goods attached to be his property, and demanding restoration of them. The claimant has not only attempted to prove the property to be his, but he has been acting the part of the defendant, by undertaking to show that the attachment ought not to have issued, and that, after it had issued, it was imperfectly executed. The only thing, which we conceive a claimant may be permitted to do, is to show that the property attached is verily his. As soon as he succeeds in that, his part is at an end. But a claimant has surely no right, to show any irregularity in the suit, in which he intervenes for the sole purpose of rescuing the property. Whether the plaintiff, the court and the sheriff, have been acting legally or not, is none of his business : for whether the proceedings are regular or not, the property must be shewn to be his, before it can be returned to him ; and whether they are regular, or not, it shall not be returned, unless he proves that it belongs to him.

Is the claimant owner of the goods attached, or is he not? Such is the only question between the attaching creditor and the claimant. There might perhaps be cases, in the nature of a possessory action, in which a claimant might rescue the property without proving it to be his own ; and this, we conceive, would take place, where goods, in the actual possession of a person, would be seized in an illegal manner, as the property of another. The person thus dispossessed, might plead his possession, and perhaps obtain to be reinstated in it, without alleging property in himself. But whether such a claim could be maintained, is not here in question ; the present claim is one of the petitory kind : the claimant alleges his ownership, and prays that the goods may be restored to him as owner. Is he, or is he not, the owner of them, is the only point in controversy. That the goods in dispute were once the property of the defendant, is acknowledged ; for the title of the claimant rests upon a written order whereby the defendant directs a person said to be his agent, to deliver them or their proceeds, to the claimant. The order is in these words : “ Boston, Nov. 9, 1818, Mr. Charles B. Sweetser. Sir, please deliver Mr. Josiah P. Bradlee, or his order, all goods or proceeds of goods, that you may have belonging to me.—Your humble servant, signed Samuel S. Bradlee.” Across that order is written : “Boston, 9 Nov. 1818, accepted, signed, Charles B. Sweetser.” Is this a transfer, a pledge or a simple mandate? Nothing on the face of the order shows what the contract is. But, that which is wanting shows what it is not. It is not a transfer, for there is no consideration. That we suppose to be the law at Boston, as well as here. It must be either meant for a pledge, or intended to take the property from the hands of one agent, and place it into those of another. This last interpretation, of course, does not suit the claimaint. He must, therefore, be reduced to call this a contract of pledge, and to this consideration the case must be confined.

A contract of pledge, in all countries in the world, is a contract in rem, where the delivery of the thing is not a Consequence of the contract, but is of the very essence of it. Was there a delivery in this case ? No real corporeal delivery could be made, for the parties were then at Boston, and the goods in New-Orleans. Has a constructive delivery taken place ? This is the gist of the action. The claimant has tortured the circumstances of this case to extort from them the conclusion that such constructive delivery was made. This is the manner in which he endeavours to establish it : Sweetzer, as agent of S. S. Bradlee at New-Orleans, had those goods in his possession ; when he left New-Orleans, he placed them in the care of W. M. and J. W. Hyde, merchants there, who possessed them as his sub-agents. He came to Boston, where his principal ordered him to deliver those goods to Josiah P. Bradlee, and he delivered them, by accepting the order. If asked to whom the delivery was made, the answer is to himself, as agent for the creditor as well as for the debtor.

To inquire seriously into the nature of such pretended delivery, is really more than we are willing to undertake. The position presents such a confusion of principles, that any demonstration of its fallacy, would be more troublesome than useful. One remark, however, may be proper, and that is, its incorrectness in point of fact. It is not true that the Hydes received the goods into their custody, as Sweetzer’s agents , they received them as the substituted agents of S. S. Bradlee, in conformity to his written instructions, and after this delivery to the substituted agents, at the desire of the principal, the possession of the goods was as much out of the hands of the first agent, as if he had returned them to the principal himself. The attempt to show that Sweetzer, on his return here, took possession of the goods in the name of J. P. Bradlee, previous to the attachment levied in this particular case, needs hardly be adverted to : the goods were then in the custody of the law.

We will forbear making any Remarks, on the suspicious circumstances under which this claim is brought forward ; enough being found in the substantial objections to which it is liable.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  