
    
      SHUFF vs. MORGAN & AL.
    
    East'n District.
    
      April, 1821.
    In a sale, by tale, when the things are delivered to the vendee, they are his property, altho they remain at the vendor's risk, till they be counted.
    In case of an illegal seizure, the officer and the party directing it may be instantly sued.
    Appeal from the court of the parish and city of New-Orleans.
    Preston, for the plaintiff.
    Jacob Shuff states, in his petition, that on the 16th of June, 1819, he purchased of one Norris M. Mathews, 20,000 hoop-poles, and the flat-boat in which they were contained, worth, together, the sum of $625; that they were delivered to him by Mathews, and that he employed his labourers some days upon them. He further states, that by virtue of an attachment issued out of the parish court, at the suit of James M‘Cullough vs. Norris M. Mathews, Geo. W. Morgan, sheriff of the parish of Orleans, on the 18th day of July, 1819, wrongfully attached the said hoop-poles and flat-boat, as the property of Mathews, and on the 14th, sold them as property legally attached in the said suit; that in so doing, the sheriff acted under the orders of James M‘Cullough, who well knew that the property was that of the petitioner. The petitioner further states, that one Clement became the purchaser of the property, and illegally and forcibly detains it from him. He prays that the hoop-poles and flat-boat might be sequestered and delivered to him, and in default thereof, that Morgan, M'Cullough, and Clement, might be adjudged, jointly and severally, to pay him costs.
    The defendants answer, that the property at the time it was attached, was not the property of Shuff, but of Mathews, and was, therefore, legally attached; and that if it was Shuff's property, he had lost his rights by not intervening in the suit of M'Cullough vs. Mathews, and there prosecuting his claim to judgment.
    The first question presented by the ings is, whether the property in liligation was, on the 1st of July, when it was attached, the property of Mathews or Shuff. Shuff alleges, that he purchased it from Mathews, on the 16th of June. A sale is perfect between the parties, as soon as there exists an agreement, as to the object and the price thereof, although the object has not yet been delivered, nor the payment made. Civ. Code, 346, art. 4. This court have determioed, that delivery also is necessary to transfer the property, as to third persons; that is, subsequent vendees and at- taching creditors. 3 Martin, 222. 4 do. 20. 5 Vol. ix. 75 do. 23. 7 do. 24. 8 do. 25. It is incumbent on the plaintiff, therefore, to shew that there was an agreement between him and Mathews, as to the object and price, and that the property was delivered to him.
    There was an agreement as to the object; it was three boat-loads of staves and hoop-poles ; the price was certain, it was eight dollars per thousand. Lewis Abrahams testifies, that he heard the parties, in a negotiation for the sale of the staves and hoop-poles; the vendor told him the bargain had been completed ; and from both, he learnt the terms of it, eight dollars per thousand, and the boats into the bargain. He saw the vendee make payments, in cash, but does not know the precise amount. Berry, another witness, wished to purchase the property himself, and was in a negotiation with Mathews to that effect, but was afterwards told by Mathews, that he had sold the property to the plaintiff. Monroe, a witness for the defendant, proves the hand-writing of Mathews, to three receipts, in the possession of the plaintiff given between the 16th and 23d of June, for the sum of $230, and expressed to be on account of staves and hoop-poles. Cage saw money paid by Shuff to Mathews, on the same account. And all the witnesses concur in proving, that the transaction was considered by them, and all persons concerned, as a sale; that Mathews and Shuff spoke of the property as belonging to the latter, and that the only difficulty of the former, was in getting payment for the property he had sold.
    With regard to the delivery of the property, Abrahams testifies, that the plaintiff, in company with him, took possession of the boats, staves, and hoop-poles, and employed several of his workmen, a number of days, at work upon them. Wells, Ridgway, Fields, and Bostman, were all hands whom Mr. Shuff employed at work, on the very property now in dispute. They testify, that he employed seven or eight hands, seven or eight days, at work, upon the property, which it is maintained, was never delivered to him, nor in his possession. They prove that Shuff and Mathews were several times together, at the place where the boats were, during this period; the former exercised every act of ownership over the property, the latter exercised none. They assisted in counting the poles and staves, and Mathews himself, spoke to them of the manner in which they were counted, and approved it. George Ballard proves the same facts, and further, that in addition to the labour which Mr. Shuff employed on the property, he furnished materials that were necessary in preserving it. A part of the property was brought down from the steam-mills, to Livingston's canal, and it was not until half a month after the purchase that the balance was attached.
    Such is the testimony on which the plaintiff relies, to establish the facts, that he purchased the property; that it was delivered to him; that he was in possession of it a length of time; that Mathews had no rights in it at the time it was attached, and of course that it could not be attached as his. The witnesses, by the variety of detail into which they descend, exhibit these conclusions in a more forcible point of view.
    There is no testimony which conflicts with that of the plaintiff, but that of—Munroe, that Shuff acknowledged to M‘Cullough, in his presence, three weeks after Mathews’ departure, and of course two weeks after M‘Cullough’s attachment (compare Cage’s testimony with the date of the attachment) that he had never received the property attached; that Mathews had never delivered it to him. The testimony of Monroe is open to great suspicion. He acknowledges that he was taken by M'Cullough to Shuff's house, to be a witness of what Shuff should answer while catechised by M'Cullough. Such witnesses. nine times in ten, testify, not to what they hear, but to what they are called to hear. This court have expressed an unfavourable opinion of the credit of such witnesses in the case of Steel vs. Cazeaux, 8 Martin, 363. What Monroe swears to is improbable in the extreme. Shuff had filed his claim in opposition to M'Cullough's attachment—they were litigating the right to the property in court. Is it probable that Shuff, under such circumstan ces, would admit to M'Cullough, his adversary, in presence of a witness, the contrary of every pretension he set up in court? And in opposition to truth, as well as to his interest. For if Shuff did admit what Munroe says he did, we prove by many witnesses, that it was not the fact, and the admission is vainly insisted upon, because it is not true. The testimony of half a dozen witnesses to the fact, that the staves and poles were delivered, must overbalance that of a suspicious witness, that he heard the contrary.
    
      As to the judgment demanded by the plaintiff, all the witnesses concur in fixing the number of poles, at about 20,000, and the coopers that have been sworn, prove them to have been worth thirty dollars a thousand; that in fact they paid that price for those very poles, and that the market price has been much higher since. As was decided in the case of Williams vs. Gilbert. 6 Martin's Rep. 553, we are entitled to the highest market price, since the property was taken out of our possession, as we have had a continual right to the re-delivery. At $30 a thousand we are entitled to $600, besides the price of the boat.
    The judge below, bases his judgment much upon the fact, that the plaintiff did not prosecute to judgment, his intervention in the suit of M'Cullough vs. Mathews, and in accordance with the plea of the defendant, is of opinion, that by his omission the plaintiff has lost his right. A proceeding by way of intervention for the recovery of specific property is unknown to our laws. Our statute prescribes the mode of maintaining all our rights, and of redressing all our injuries. All suits shall be commenced by petition and defended by answer. Acts, 1805. The different steps in the progress of the suit are particularised; but no relief by way of intervention is pointed out for the benefit of third parties.
    By the laws of Spain, the parties to a suit are the actor et reus. The general rules of pleading collected in Febrero and the Partidas, seem opposed to the admission of an intervening party. I refer the court particularly to Febrero, book 3, chap. 1, sec. 2, no. 99. 3 Part. 3, 10, 6. Intervention was unknown to the laws of England. Such a proceeding was permitted in France, and is mentioned by Poth. de la procedure civile, partie 1, chap. 2, art. 3, sec. 3, and in the Code de procédure civile, part 1, book 2, tit. 16, sec. 2, art. 339, 340 & 341. The law of France is not our law; if it were, it only permits a party to seek his remedy by way of intervention, but does not preclude him from the ordinary remedy by suit.
    Besides that, such a proceeding destroys the simplicity of suits, which is a great object of jurisprudence; a claimant may have good reasons for wishing to sue, rather than intervene. He may not choose to engage in litigation at the particular time, nor before the court which the plaintiff has chosen. He may not be prepared with his testimony, but, L'intervention ne pourra retarder le jugement de la cause principale quand elle sera en etat. Code de procédure civile, as above cited. He may fear collusion between the plaintiff and defendant, that the suit may be discontinued and with it, its incidents. And whoever heard before that a man might not sue a tresspasser upon his property, the actual possessor of that which belonged to him, or that the acts of others could deprive him of this right?
    Such a doctrine would be attended with the most monstrous injustice, as might be illustrated by many examples. The creditor of a bad debtor wishes to devise means to secure his debt. He issues an attachment, and with the sheriff attaches your plantation, which everybody knows to be yours; that it belonged from time immemorial to your ancestors, and regularly descended to you. You are at our antipodes, and know nothing of the suit or subsequent proceedings. The property is sold; you return; but in vain you tell to the purchaser that he acquired no rights, because he acquired those only of the defendant, who had none. He replies you did not file a claim, and prosecute it to judgment. In vain you tell the sheriff and plaintiff that they wrongfully attached your property, that the attachment was issued against the property of the defendant and levied upon yours. You have lost all your rights by failing to intervene in a suit of which you could know nothing. A man cannot thus be divested of his property; for a wrong so crying the law does afford a remedy, and that remedy is a suit.
    Hoffman, for the defendants.
    The plaintiff alleges he has sustained damage to the amount of $625, by the wrongful seizure and sale of a quantity of hoop-poles, at the suit of M'Cullough vs. Norris Mathews, and which he says was his property. It is admitted the poles once were Mathews’, but the plaintiff alleges they had ceased to be so at the time the defendants caused them to be attached; and attempts to shew, that the property of them was in him, by a sale from Mathews to him. Before a recovery can be had against the defendants, it is necessary for the plaintiff to shew that the poles had ceased to be the property of Mathews at the time they were attached, and belonged solely to him, the plaintiff; leaving to the court to say whether the testimony of the plaintiff proves the agreement between him and Mathews as alleged. We contend that neither the petition nor the testimony makes out such a case as will entitle the plaintiff to recover. The petition is deficient, inasmuch as it does not state that the poles were counted and delivered; for as the plaintiff alleges he contracted for a quantity of poles, contained in a flat boat, at eight dollars a thousand, no delivery could be made until the quantity was known. Should this objection to the petition be over-ruled, it will be necessary to examine the testimony, in order to see if the plaintiff has proved that which he has omitted to allege. It is deemed unnecessary to call the attention of the court to the mass of testimony introduced by the plaintiff, and which proves little else than that he thought it necessary to shew the poles were counted, but this he has failed to do. From a close examination of the testimony of the plaintiff it will appear that none of his witnesses allege that the poles were counted. Some of them say, a part were counted, others say what proportion, while all agree that a part thereof only, was removed from the boat, in which they were brought here. We are told by the witnesses, that Mr. Abrahams kept count,” and that person tells us, he could not say within five thousand, how many poles there were. Can it be said he may have forgotten; he does not say so; and it is not likely his memory should serve him as to the number of staves, and fail him as to the poles; for he gives us the precise number of the former. But, we contend, that the testimony of the last witness examined by plaintiff, puts the question entirely at rest. His appearance (though a black man) induces us to think him the most likely to tell the truth, and therefore, in the cross-examination, he was interrogated on that point; upon the answer of the last mentioned witness, we might safely rest the question, whether the poles in dispute were counted; for we contend it is a fact incumbent on the plaintiff to prove; we have however, established the negative, by the best testimony, to wit, the party’s own declaration. Munroe is positive that the plaintiff declared, in his presence, the poles had not been counted. Cage declares the same thing, and if the truth of the plaintiff’s declaration can be doubted (as his counsel requires of us) it is fully confirmed, by the loud and repeated complaints of Mathews. It clearly appears, from the facts in the case, that the plaintiff wilfully delayed counting the poles, well aware that Mathews was a stranger, and must soon leave the city, or remain at the risk of his life.
    Having shewn that the poles in question were never counted, can there be any difficulty in the application of the law? We think not. If the poles had been sold, en bloc, or at so much the boat load, the sale would have been complete as between the parties, as soon as the price was agreed upon: and delivery only would have been necessary with regard to third persons. But the plaintiff alleges he bought them at eight dollars per thousand, and in that case, the sale was not complete until the quantity was known. The poles were at the risk of Mathews until counted, and no delivery could be made until then. Civil Code, 346, art. 68.
    The property in the poles, was either in the plaintiff or Mathews, at the time they were attached. If in the former, their loss by accident, could not fall on the latter, although in his possession and under his care. If A. have the property of B. in his possession, he may, perhaps, bind himself to bear the loss thereof, even by accident, yet the loss would be that of B, the owner, and he could recover of A. upon the contract, the loss he had sustained. The same principle applies where the property of one is destroyed by the fault of another; for the law authorises the owner to recover back his loss, from the person who caused it. The plaintiff imagines he has brought himself within the principles laid down by this court, that delivery completes a contract of sale, with regard to third persons. In the cases referred to by him, the sale was complete, as between the contracting parties, before delivery; but, in a case like the present, the sale is not complete until counted or measured; and this is the case, says Pothier (already cited) even though the sale be made of all the grain, contained in a certain granary, if sold by the bushel. The plaintiff seems to think, he has shewn enough, by proving his workmen were in possession of the poles. But if he were not the absolute owner of them, they possessed for the owner. Pothier, Possession, n. 68, p. 43. Domat, book 3, tit. 8, loi. 1, art 8, 9.
    The counsel for the plaintiff tells us, Mathews exercised no controul over the poles; and in the next sentence, he says that Mathews approved of the manner in which the staves and poles were counted. If the plaintiff were the owner of the poles, he might have used them without counting, and Mathews could have no interest in seeing them counted. But Mathews had a deep interest in seeing the poles were truly counted, and had a right to employ other persons in counting them, whose possession would not certainly have been that of the plaintiff. The plaintiff could have no possession of the poles in pursuance of the sale to him, until the quantity was known; for says Poth. Contrat de Vente, n. 44, “he who sells a thing by measure, is bound to cause it to be measured, unless the contrary be stipulated; for as the delivery cannot be effected until the quantity be ascertained, the seller is bound to have it done at his expence.” It does not appear from the testimony, that the plaintiff agreed to count the poles at his expence; he, therefore, would have had a right to charge Mathews with the expence of counting. And why? Because the property belonged to Mathews, and the plaintiff might charge him for work and labour done upon it. The contract of vente à l'essai, will be found in the Partidas cited, classed with the sale of things sold by measure, &c. In all such contracts of sale, something more is required than the mere consent, in order to vest the property. Pothier, Vente, 164, n. 310. It may be said, we have deprived the plaintiff of the right to complete the said sale, by counting the poles, but this might have been alleged by all the claimants, in the cases from Martin's Rep. Domat, 1, 2, sec. 2, art. 10.
    The plaintiff cannot recover in the present suit, should he even satisfy the court that he was owner of the property. The record shews, that he intervened in the suit of M'Cullough vs. Mathews, and it was then in his power to stay the sale, and obtain the poles. He now alleges, that proceeding by intervention, is not strictly legal, but he was bound by the election he made. The course pursued by plaintiff, by intervening, has been the practice in our courts, since their creation, and is one on which the rights of parties have always been ascertained.
    We deem it unnecessary to enquire, if a recovery can be had against the sheriff. The court will not favour a proceeding like the present, against an executive officer, when the party had other relief within his reach. It has never been called upon to sanction a claim as unjust as the present; for it will appear from the testimony of the first witness of the plaintiff, that only one half the purchase money, of the three boat-loads, have been paid for.
    Preston, in reply.
    The counsel for the defendants relies principally on the argument, that the sale alleged by the plaintiff, was a sale by tale; that the hoop-poles now sued for by him were not counted before they were attached by M‘Cullough, and therefore, the sale was not complete, and the property, although delivered, was not transferred either between the parties, or as to third persons.
    With regard to the counting, we are at issue as to the fact; and if it be true that the poles were not counted, I shall contest the legal consequence which the counsel deduces therefrom. He is mistaken in point of fact, because all the witnesses say generally that the staves and hoop-poles were counted. Geo. Ballard mentions the manner in which they were counted, and Lewis Abrahams kept count. But we are told that Abrahams cannot now tell within 5000 of the number counted, and George Ballard swears that as to the poles but one third of them were counted. Is it extraordinary that Abrahams who counted 60 or 70,000 staves and hoop-poles, and during eight days, probably reported two or three times a day to Shuff, should not sometime afterwards be able to recollect within 5000 the number of hoop-poles-should not be able to declare within $40 of the amount to which they came. He might very possibly recollect the whole number counted, and yet not recollect the precise number of either staves or hoop-poles. George Ballard worked on the boats but three days; during that time they counted only one third of the poles, and he could not testify that more were counted. But if one third of the poles were counted in three days, does it not afford a pretty strong presumption that the rest were counted during the remainder of the eight days that the hands laboured on the boats?
    If we suppose that counting was indispensable to the completion of the sale, and that the whole of the poles were not counted; that a part were counted is unquestionable. The property was attached then while the parties were in the act of completing the sale. But such an attachment is vain, because third parties cannot interfere at such a time to prevent the completion of the sale. “ If I offer money for a thing in market, and the seller agree to take my offer, and whilst I am telling the money as fast as I can, he doth sell the thing to another, my bargain is good, and upon payment, or tender and refusal of the money agreed upon, I may take and recover the things.” Shippard's Touchstone, 225.
    In addition to a contract of sale, delivery is necessary to transfer the property with regard to third persons, but there is an exception to this rule, if the third person knew of the previous contract of sale; because, if with this knowledge he becomes a subsequent vendee, he acts with bad faith to the first vendee, and he cannot establish a right in himself by his own wrong. Delvincourt, cours du code civil, 36, and note 3. By analogy the same exception is applicable to counting when necessary to complete the sale. The defendants knew of the plaintiff's claim upon the property in litigation, at the time they did the acts for which they are sued. Shuff himself advertised Clement of his claim, at the time of the sale of the property, and Morgan was present. McCullough must have known of the same claim previously to his attachment, because a part of his cause of action was an account assigned to him by the witness Cage, who states his knowledge of the whole relation between the parties, and undoubtedly reported it to M‘Cullough when he assigned the account. After his attachment, and before the property was sold, he knew of Shuff’s claim because it had been filed in the suit. The defendants then acted with bad faith towards Shuff, in preventing the completion of the sale by counting. They are liable then to the exception, they cannot acquire rights by doing him injuries.
    The laws quoted by the defendants’ counsel, from the Civil Code, the Partidas, Pothier, and others, determine merely whether the thing be at the risk of the vendor or vendee, after sale and before delivery. They do not determine the right of property, nor whether the thing can be attached as the property of the vendor or vendee. “ When (says the Civ. Code) goods, produce, or other objects, are not sold in lump, but by weight, tale, or measure’ the sale is not perfect, inasmuch as the things so sold are at the risk of the seller, until they be weighed, counted, or measured.” The Partida supposes a sale, and enquires, only a quien pertenesce el pro o el daño en las cosas que se suelen contar o pesar o medir o gustar despues que fuesen vendidas. The law declares, el daño que acaesciere en la cosa depues que la vendida es complida; diximos que es del comprador, maguer non sea la cosa que compro venida a su poder. Pero casos y a que non seria assi. What is not the case; what is the antecedent of assi? The preceding sentence manifestly. It is not the case (with regard to the things now about to be spoken of) that the damage which happens to the thing, despues la vendida es complida, is on account of the buyer. The chapter of Pothier, from which the quotation is made, has the following title, aux risques de qui est la chose vendue, pendant le tems intermédiaire entre le contrat et la tradition, and the quotations shew that the object of the author was solely to determine when the thing was at the risk of the vendor, and when at the risk of the vendee.
    I am told by the court, res perit domino, the risk determines the owner. I think not in all cases. “ Things of which the buyer reserves to himself, the view and trial, although the price be agreed on, are not sold until the buyer be satisfied with the trial.” Civ. Code, 346, art. 8. They remain, therefore, the property of the seller. But says Pothier, L'obligation qui résulte de cette clause (la clause par laquelle une chose est vendue à l'essai) s'éteint lorsque la chose vient á périr; car l'acheteur ne peut plus dire que cette chose ne lui convient pas, lors qu'elle n'est plus, ni obliger le vendeur a la reprendre; cette clause comme nous l'avons observe n'étant que résolutoire, la vente faite sous cette clause est parfaite, et la chose est par conséquent devenue aux risques de l'acheteur. Pothier, Cont. de vente, 257, n. 266. Our Civil Code declares in the very case under consideration, a sale by weight, tale, or measure, that the buyer may require the delivery of the thing or damages, if any be for the same, in case of non-execution of the contract. But can I require the delivery to me of property which is not my own? Can I sue for and recover from my vendor, property which is his, because it is at his risk; and can he sue me for the payment of the price of what he never sold to me? Besides, the contract spoken of in this clause of the East'n 
      Code is manifestly a contract of sale, and a contract of sale is a contract by which the property of one man is transferred to another, Civ. Code, 344, art. 1. From the law of the Partidas, quoted by the defendant, I derive the same principle, that the property is transferred between the parties by the contract of sale, and is the property of the vendee, altho’ the thing be not weighed, counted, or measured, and although it be at the risk of the vendor. I derive it from the title of the law, and from the terms vendedor, comprador, and vendida, used in the body of the law. There cannot be a seller unless he sells something; nor a sale, unless something is sold; but all these terms are used, according to the argument of the defendants, as applicable to a case where the thing is not transferred, and of course, nothing is bought or sold. From the last clause of the law we learn, that if the thing increase or diminish in value, after the contract of sale, and before the counting, weighing, or measuring, the profit or loss will be on account of the buyer alone. Why is the profit or loss on account of the vendee? Evidently, because the property is his. One cannot enjoy the profit or suffer the loss that betides the property of another man. But the risk, it is admitted, is that of the vendor. The same result is deducible from the principles and reasoning of Pothier on the subject. The plain interpretation of our Code, and these authorities, is this:—there are three essentials to a contract of sale; a thing sold, a price, and consent. When these concur in the contract, the property is transferred between the parties. There are incidents to the sale, counting, weighing, and measuring; the existence or non-existence of these determines whether the property is at the risk of the vendor or vendee. The delivery determines the rights of third persons, and the payment of the price renders it a perfect sale. The property then, from the time of the contract of sale, is the property of the vendee, although not counted, weighed, or measured, and although the risk is that of the vendor. That the risk too, ought to be on account of the vendee in all cases, from the time of the contract of sale, is supported by such names as Puffendorff, Barbeyrac, and Africain; and but for our particular statute, might be easily established on general principles of justice.
    
      But whether the risk determines the proprietor or not in all cases, it certainly never determines the rights of attaching creditors. Where there is an agreement as to the price and thing, the sale is perfect between the parties, and the property and risk is transferred to the vendee; but, until delivered, it may be attached as the property of the vendor. Delivery then, in pursuance of a contract of sale, transfers the property with regard to third persons; they have nothing to do with the risk of the property; that belongs to the parties to the contract alone. Delivery establishes the rights of the first vendee, against attaching creditors and subsequent vendees. All the decisions of our supreme court, on the subject, concur in this principle. Martin’s Reports, as quoted in the opening.
    The laws and authorities quoted by the defendants, in support of the principle, that the property, until weighed, measured, or counted, remains at the risk of the vendor, suppose there has been no delivery to the vendee. The Civil Code declares, in the case supposed, “ The buyer may require the delivery or damages;" and, says Pothier, Il est 
      vrai que dés avant la mesure, le poids, le compte, et dés l'instant du contrat les engagemens qui en naissent, existent; l'acheteur a des-lors action contre le vendeur pour se faire livrer la chose vendue." If the thing be delivered, none of the laws quoted, maintain that it remains at the risk of the seller, although not counted, weighed, or measured. In this case, the sale is complete between the parties, and as to third persons; but the vendor indeed, charges the vendee with ascertaining by counting, weighing, or measuring not the thing sold, that is the thing delivered, nor the price of the thing that is so much per dozen, per pound, or foot; but merely the amount to be paid. An example or two will shew, conclusively, that the property is absolutely transferred by delivery, although not the price, but the amount to be paid, remains to be ascertained by counting, weighing, or measuring. Suppose I sell and deliver a field, the bounds of which are precisely fixed in the bill of sale, for the price of ten dollars per acre. My vendee takes possession, employs his hands in its improvement, and plants his crop; can an attaching creditor take it out of his possession, because it has not yet been measured, and the number of acres ascertained. A merchant buys of a planter, one hundred hogsheads of sugar, at so much per cwt., conveys the same to his warehouse; employs his money and industry in preparing it for exportation, and makes his arrangements to that effect. But it has not been convenient to ascertain the precise amount by weight, although, indeed, some of it has been weighed and the price in part paid. Can it be attached, as the property of the planter? In the case before the court, there was a contract of sale and actual delivery in pursuance thereof. I maintain, therefore, that the property was the property of the plaintiff, in his charge, and at his risk. The thing was certain, it was three boatloads of staves and poles; the price was certain, it was eight dollars per thousand, and the amount to be paid was certain, because id certum est quod certum reddi potest. A sale is complete although no price is fixed upon, provided it is agreed that a third person shall fix the price. Inst. 3, 24, sec. 1. Is the sale less complete when not the price but the amount to be paid, is to be ascertained by counting?
    O, but says the counsel, and Delvincourt, il seroit impossible, en cas de perte, de determinér 
      ce que doit l'acheteur. But, in case the poles had been lost before they were counted, how would you have determined what Shuff should have paid? The answer is I would have ascertained by the ordinary rules of evidence, as nearly as possible, the number of poles, and multiplied each thousand by eight. The parties had agreed that the amount to be paid for the property delivered, should be ascertained by counting; that mode having failed, they were subjected to the next best mode of which the nature of the case was susceptible.
    An attaching creditor cannot prejudice the rights of the possessor of the property, by whatever title he possesses. If he be a carrier his charges must be satisfied; if a consignee his advances must be paid, 8 Martin's Rep. 487. If then the sale in the present case were incomplete, the laws, quoted by the defendants, declare the absolute right of the plaintiff to complete it, and yet in violation of this principle, the defendants claim the power of destroying that right by rendering it impossible for the plaintiff to complete the sale. It is said that the objection lies equally against all the decisions of this court in the controversies between vendees and attaching creditors. Not so; in none of those cases, had the property been delivered; the vendee had acquired no rights as to third persons by possession. It is the delivery to us and the possession by us on which we have relied through the whole of this argument, and these are the grand criterions which distinguish our case from those that have been decided.
    Shuff had the right of property by a contract of sale, and possession of the property by delivery, at the time it was attached. Mathews could not have recovered the property back; because if he had refused to deliver it to Shuff, the latter, say the Civil Code and Pothier, could have compelled him by suit. If Shuff could have compelled the delivery to him by suit, Mathews could not by suit have enforced the re-delivery. Mathews therefore had neither the right of property, nor the right of possession. He had passed all his rights away (except the right to sue for the price) not only by a contract of sale but by actual delivery. An attachment supposes the property attached to belong to the defendant in the attachment. It extends only to his rights in the property. The defendant in this at tachment, had no right in the property attached, but only a right to the payment of the price.
    What then was the remedy for M‘Cullough? It was manifest and simple, and would have been adopted, if his mind had not been led astray by the spirit of injustice. Mathews had sold his property. Shuff had bought it, and was in possession of it. The price had not been entirely paid. Mathews had a right to the balance of the price. It was his rights which the attachment law authorized M‘Cullough to attach. He ought to have attached those rights and cited Shuff as garnishee. He would thus have secured his debt and all the litigation which has transpired in this case would have been avoided. But he chose to attach the property itself, to which Mathews had no right, and he is answerable for all the consequences.
   Porter, J.

This case has been so fully gone into, by judge Martin, that I deem it sufficient to state that I concur fully with the opinion drawn up by him.

Martin, J.

The defendants in this case contend, that the hoop-poles were properly attached for the vendor’s debt, because they had not yet begun to be the vendee’s property, notwithstanding they were sold and delivered to him, and he had partly paid for them; having been sold by tale, and not having been all counted, before the seizure, if any part of them was; for our statute provides, that such a sale is not perfect, inasmuch as the things sold are at the risk of the seller, till they be counted, Civ. Code, 346, art. 6. And it is hence held, that according to the general principle res perit domino suo, as the risk was for the vendor, he was the owner of the poles.

The principle is a general, but not an universal one. It is of the nature, not of the essence of the contract of sale. As soon as the sale is perfected by the assent of the parties, the vendee becomes as to the vendor, the owner of the thing; the latter cannot sell or abuse, nay neglect to have a certain degree of care of it, without becoming liable to the former. If he be discharged of the obligation of delivering it by its destruction without his fault, it is, because an obligation to give a thing is dissolved by the destruction of it. As to third persons, the property of the thing sold does not pass to the vendee till after delivery.

Nothing prevents the parties to agree, that the thing sold shall remain at the vendor’s risk till, or even some time after the delivery. And this convention has not any other effect on the contract of sale, than to charge the vendor with the risk; it does not impair the vendee’s right, it is merely for his advantage.

If it be agreed, that the thing sold be at the vendor’s risk till delivery, the vendee is not less the owner of the thing, as to the vendor, who can no more sell or abuse the thing, without being liable to damages.

If in the sale of a slave, sick, or convalescent, it be agreed, that till his perfect recovery, he shall remain at the risk of the vendor after delivery, till he be perfectly recovered or during a fixed time, this circumstance, introduced for the benefit of the vendee, does not impair his rights. He is, in the meanwhile, the absolute proprietor, although the slave be not at his risk, but at that of the vendor, whose creditors would, in vain, attempt to make the slave liable to their claims.

The liability of the vendor, in the case just put, is introduced by the agreement of the parties. It is so, by the law, in cases of sales by tale. The consequences of it cannot, we apprehend, differ in either hypothesis.

The principle res perit domino suo applies between the owner and possessor; the object of it is, that the former, not the latter, bear the loss of the destruction of the thing perishing without the fault of the latter.

I conclude, that the hoop-poles were, in the present case, the property of the plaintiff, the vendee, when they were attached.

If the property of A. be seized, on a writ commanding the seizure of that of B., there cannot be any doubt of the right of A. instantly to sue the officer at once, with the party authorising the seizure as trespassers. He is not bound to interfere in the suit in which the seizure is made.

I think the judgment of this court ought to be, that the judgment of the parish court be annulled, avoided and reversed, and that the plaintiff recover from the defendant, the sum of $625, with costs in both courts.

Mathews, J.

I concur with the above opinion.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed; and this court proceeding to give such judgment as in their opinion ought to have been given in the parish court, it is ordered, adjudged and decreed, that the plaintiff recover from the defendants the sum of six hundred and twenty-five dollars, with costs in both courts.  