
    
      ARMOR vs. COCKBURN & AL.
    
    Appeal from the parish court of the parish and city of New-Orleans.
    
      Between cte-knowiedgmenT debtor,¡sprima debt.
    signor direct his goods to be sold for the payment dítors,”and X “¡"eif the utter to do so, the. ⅞00⅜ are not liable to be at* mchpd for aiJ. other debt of the consignor,
   Porter, J.,

delivered the opinion of the court. This suit commenced by attachment. It presents two questions for decision;

The first is, whether the intervening cre 3}tors have made proof of the debt due to them. .

We think they have. The record shows the acknowledgment of the debtor, and that . . ^ P . , , * . is prima facie proof m a contest between ere-⅜ „ . t r i . i ditors, where the former has not become „ , , m, r ,A * * insolvent. Ihe answers of the garnishees corroborate this acknowledgment

The second is, whether on the following fads the intervenors or the plaintiff have the best right to the property attached.

The defendant, it appears, was indebted to both; he shipped twenty-five bales of cotton in Alabama, and delivered it to one Mason, with directions to sell the same on his arrival in New-Orleans, and pay the proceeds to Batiks, Miller & Kincaid, the intervening creditors, to extinguish, as far as they would go, a debt he owed them. The cotton, on its arrival, was placed in the hands of the in-tervenors, as agents for the said Mason. Before service of the attachment, he informed them, that he had received the cotton from Cockburn, on the conditions already expressed ; and that, in conformity with these instructions, he would pay over the proceeds to them ; to which they assented. The cotton was not sold until after the attachment was levied.

We think, that after the promise made to the interpleaders, and accepted by them, the cotton could not be attached. We cannot distinguish the case from that of Gray vs. Trafton, and we have never had occasion to doubt the soundness of the principle on which that cause was decided. The true test in' such cases is this, that where the owner of the

Peirce for the plaintiff M'-Caleb ⅜* Byrnes for the defendants.

property has lost all power over it, and cannot change its destination, the creditors cannot attach; the converse of the rule being, that whenever the proprietor may sell and deliver, the creditor can seize. In this case that power was gone. After the. person, in whose hands the cotton was placed, promised to pay the intervening creditors, he became personally resposible to them; and the owner could not, by a change of determination, have compelled him to pay the money to any other person. The argument constituted what is called a stipulation pour auirui, and once accepted, by those for whose benefit it was made, it could not be revoked. Civil Code, 1884 ; 12 Martin, 702. :

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