
    
      BABCOCK vs. MALBIE.
    
    Appeal from the court of the first district.
    CredrtoFS can no long-attach the property of de}5tor> when he has a11 con' destmatlonr
   Porter, J.

delivered the opinion of court. The petitioner states that the 1 dant, by a letter dated in Alabama, March 1825, delivered to E. P. Anderson, one of the firm of Farris & Anderson, who was then setting out for New-Orleans, requested Banks Miller and Kincaid to become responsible for ^he bearer, promising to guarantee them for any commitments they might make to the extent of $1500. That the said Anderson af-terwards arrived in New-Orleans, purchased goods from the petitioner, and delivered to him a bill of exchange on Banks, Miller &, Kincaid, which they accepted, but failed to pay. By reason whereof the defendant has become responsible to the petitioner.

The general issue was pleaded. The action was commenced by attachment, and third parties intervened, claiming the property as theirs. The court was of opinion the claim was well supported, and gave judgment the suit should be dismissed.

If the court was right in its judgment, it is unnecessary to examine whether the plaintiffs have or not a good cause of action. If the defendant was not properly before the court, there can be no enquiry into his responsibility*

The defendant, a resident of Alabama, was indebted to a house in New-York, who forwarded their claim to an agent there for collection. He received an obligation from defendant of one Tucker for $2400, to be collected and applied to the payment of the claim. By the terms of this obligation, it might be discharged in cottonat? cents per lb. The agent not having at that time any authority to receive cotton for his principal, agreed with defendant that, if Tucker would pay a part or the whole ofhis obligation in cotton, it should be shipped to New-Orleans or New-York at the option of Sheller and King,at the risk of Malbie.

Malbie, some months afterwards, informed the agent that Tucker was ready to deliver cotton, which Malbie by the instruction of the agent received, and took a bill oflading in his name for the delivery of the cotton to B. Story of New-Orleans. The agent forwarded the bill of lading to Story, with directions to hold the goods subject to the order of Sheller and King. Story received the bill of lading and the cotton before the service of tfie attachment* and insured it; but before he could find an ’ opportunity of shipping it, the attachment was . . laid,

The authority of the agent to enter into an agreement to receive cotton on account of his principals in New-York has been contested. But though that authority did not exist when *he contract was made, it appears to have been given before the cotton was delivered, and that is sufficient.

The case then is almost precisely that of Canfield vs. McLaughlin, reported in 9th Martin, except that in this instance the cotton was actually delivered to the persons to whom it was shipped, or to their agent which is the same thing, before the attachment was levied. The interveners were the agents of the owner to sell the cotton, and apply the proceeds to his credit. As such they had a lien on it for their advances, and the balance of the general account. The owner could not have taken it out of their hands, and his creditors cannot. We think the rule on this subject was correctly laid down in Armory vs. Cockburn, that where the owner of the property has lost ali power over it, and cannot change its destination, the creditors cannot attach, 4 n. s, 669 9, Mart. 316.

Smith for the plaintiff—Mor sc for the intervening claimant.

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