
    
      HOBSON & AL. vs. DAVIDSON’S SYNDIC.
    
    Appeal from the court of the parish and city of New-Orleans.
    If an agent sells goods for which he takes notes, tho' the principal afterwards takes new notes payable to himself with an extention of credit, there is no novation.
    The vendor of moveable goods has a privilege on them while they remain in the possession of the vendee.
    The plaintiffs stated that they sold, by J. K. West, their agent, a quantity of merchandise to the insolvent, to the amount of $4313 57, according to the account annexed to the petition that $2882 92, remain due, and a general sequestration has issued against his goods, which, accordingly, have been taken by the sheriff. Among them is a part of the goods sold by them ; whereupon they obtained a particular and separate sequestration,
    The defendant pleaded the general issue and denied that the plaintiffs had any privilege.
    J. K. West deposed that on the 4th, 6th and 11th of November, 1818, he sold to the insolvent goods, according to the list annexed to his deposition, amounting to $4313 57, on account of the plaintiffs, as their agent ; that on the day of his deposition he examined eight pieces of swansdown, and found that the pieces numbered 2061, 62 and 66, agree in the numbers and quantity of yards, with those in the invoice ; that the numbers, in the pieces marked 63, 64, 70 and 76, agree with those in the invoice. He added he had also examined 19 pieces of velveteen cord and thickset, and compared them with the invoice and pattern card by which he sold, and believes them those sold by him to the insolvent ; that he likewise examined two pieces of cassimere, no. 29487, and 22497, and found them to agree with the same numbers on the pattern card and invoice, and also three remnants, no. 24028, 22263 and 126 and found them to agree with the pattern card and invoice, except as to the number of yards. He also examined fourteen pieces of steam loom shirting ; but from there being no mark or number on them or in the invoice, and the pattern card by which he sold them being lost, he cannot be positive that the pieces shown him are the same ; but, on comparing the goods with the sterling cost of the invoice, he thinks they are. They are now in a case marked H. no. 91, in which they appeared to fit exactly, as if they were imported therein and it has the same mark as that sold by him. He also examined four pieces of toilinet, and found them to agree with the invoice and pattern card.
    East'n District
    July, 1820.
    
    
      If to A with on er ti T fr goc vile what in air possession
    There was judgment for the defendant and the plaintiffs appealed.
    By the statement of facts, the parties admitted that the goods specified in the petition were sold by J. K. West to W. Davidson. The copies annexed to the petition are copies of the invoices given by West to Davidson. Payment was made in notes, as stated in a receipt given by West’s clerk and annexed to the petition ; and the plaintiffs took the notes annexed to the petition, which remain unpaid, in lieu of those given to West for the same debt ; interest however was added in the last notes for the extention of the time of payment. That the goods sequestered are the same, as were sold by West to Davidson and the remnants of broken passage are also part of them.
    The competency of West, as a witness, to be examined in the supreme court, as if there was a formal bill of exceptions.
    
      Hennen, for the defendant.
    The judgment of the parish court is correct. The privilege claimed in this case is resisted on two grounds : No privilege ever attached on the goods sold, in favor of the plaintiffs ; if any did, it has been lost.
    1. The goods were sold by J. K. West in his own name and as his own property to Davidson, without any mention of his acting as the agent of the plaintiffs. The notes were given in favor of West, and in his name, the receipt for the notes, taken in payment, was given.
    By the Roman law no privilege existed in favor of the vendor of moveable property sold on a credit. The delivery to the purchaser vested in him an absolute right to the thing sold. Pothier, Traite du Contrat de vente, nos. 318, 322, 3.
    The Spanish law is in concordance, in this respect, with the Roman law. Part. 3, 28, 46. Curia Philippica, Prelacion, nos. 6, 7. See, also, Salgrado Labyrinth, credit, concur. Part 1, chapter 14, no. 78, who quotes the opinion of above twenty doctors to the same effect. According to these laws, then, no privilege exits on the goods sold in this case on a credit to Davidson, even in favor of West : much less in favor of the plaintiffs, who wish to show that West acted as their agent, in a transaction in which he appears from the invoices and receipt to have been the principal.
    But, it is said, the ordinance of Bilbao grants a privilege to the vendor (even in cases of goods sold on a credit) and that the laws of the Partidas have been thus far abrogated. The exact extent to which this ordinance has been introduced as law in this state, has never been ascertained. This court (4 Martin, 93) has declared it is not applicable to bills of exchange. Supposing, however, that the whole ordinance is law, the plaintiffs case will not be aided by it.
    2. For, if there existed a privilege in favour of the plaintiffs, it has been lost.
    The ordinance of Bilbao gives a privilege on the things sold, if the demand be made prior to the expiration of the credit. Cap. 17, no. 37. And as privileges must be construed strictly, the plaintiffs must bring their case within the very letter of the law. The same ordinance, cap. 17, no. 34, limits the privilege to six months after the expiration of the credit given to the purchaser ; but in this case more than six months expired previous to the action.
    There has been, moreover, a novation of the debt ; new notes of hand were given, taken in the name of one of the plaintiffs, and the credit extended, by which, alone, their privilege would be destroyed. Civil Code, 296, art. 173 and 179.
    As regards the remnants of the goods, no privilege, whatever, can ever be claimed. Ord. Bilbao, ch. 17. no. 35.
    
      
      Workman, for the plaintiffs.
    The agency of West, in making the sale of the goods, in which the plaintiffs claim the vendor’s privilege, cannot take away or diminish the rights of his principals. The making of the notes, given for the price of these goods, in the agent’s own name, was conformable to the general course of the commission business. Were the notes made payable to the absent consignors, they could not be indorsed, nor consequently negotiated. But, by making them payable to the commission merchant, he can, if required, negotiate them and make his returns immediately.
    The position, that no privilege exists on moveable goods, sold on credit, is incorrect. The contrary appears even from the authorities, cited by the defendant’s counsel. According to the Roman law, the property of the goods sold is not transferred to the purchaser, even by delivery, unless the price of them has been paid or secured to the vendor. But it is held, that when a term of credit has been expressly agreed upon, the delivery, made in consequence of the contract, tranfers the property to the purchaser. The counsel seems to have confounded the question of property, with the question of privilege. We do not dispute the point of property with the defendant. It is even requisite for our cause, that the property of the goods, should have been lawfully vested in the insolvent, in order that we might maintain our privilege in them. Our action is not to rescind the sale, but, admitting it to have been valid, to secure the price.
    The provisions of the ordinance of Bilbao, (were they ever fully in force here) cannot contravene or modify the enactments of our own Civil Code. With respect to the remnants of pieces of cloth, linen, and the like, the 35th no. of the 17th chapter of that ordinance does, as the learned gentleman remarks, take away the privilege upon them. But the code requires only that the goods, in which the vendor’s privilege is claimed, shall be in the debtor’s possession, and in the same condition as they were when delivered. These words, in the last clause of the sentence, evidently mean, unchanged, in nature or kind : unmingled with any thing from which they could not be separated, or by which their value might be affected.
    The credit on these goods, having been renewed at the debtor’s desire, cannot be said to have expired before the demand of payment was made. The greater part of the notes are still due ; and this action is the claim for payment of the price. It would be most strikingly unjust, absurd and preposterous, that the creditor should be put in a worse condition with respect to the debtor, or the mass of his creditors, from having extended to him a credit, equally beneficial to the interest of both.
    The sole question remaining to be examined is, whether the renewal of the original notes has effected a novation of the debt. That it has not done so, appears clearly from the judgment and the reasoning of this court in the case of Cox vs. Rabaud’s syndics, 4 Martin’s Reports, 11. It is deemed unnecessary to re-examine a subject which in that case was so fully, ably and satisfactorily investigated, and decided.
   Derbigny, J.

delivered the opinion of the court. The plaintiffs claim a privilege on sundry goods, which were sold to William Davidson, an insolvent debtor, of whose creditors the defendant is syndic. The goods were found in the insolvent’s possession, and there is no dispute about their identity.

The claim is resisted, on the ground, that the sale was not made by the plaintiffs, but by another person, to wit, John K. West, to whom Davidson had given in payment his promissory notes, which were subsequently replaced by other notes, subscribed directly to one of the plaintiffs : from this circumstance, it is argued that a novation has taken place, and that the privilege is lost.

It is clear, we think, that if a novation has taken place here, it must result from the substitution of one creditor to another For the mere act of having received from the debtor other notes, at a longer credit than the first, would not, if between the same parties, produce a novation of the debt. “ If since the debt was contracted, says Pothier, in his treatise on obligations, no. 559, a new agreement has taken place between the creditor and the debtor, by which a longer time of payment has been given, or a new place for the payment appointed, or the debtor allowed the liberty of paying to another person than the creditor, or even by which the debtor should have bound himself to pay a larger sum or a lesser one, to which the creditor was willing to confine his demand ; in all these cases and the like, according to the principle that the novation is not to be presumed, it must be decided that there has been no novation and that the parties intended only to modify, diminish or augment the debt, rather than extinguish it, in order to substitute a new one to it, if they did no explain themselves.” It is also the opinion of Merlin. Rep. de jur. vo. novation § 5.

But was there a substitution of one creditor to another ? John K. West, who has been heard as a witness, and against the competency of whose testimony nothing has been shewn, has declared that in this transaction, he acted as the agent of the plaintiffs ; the true creditors then of the price of those goods were the plaintiffs. When a prolongation of credit was granted for the payment of that price, one of the plaintiff's acted in person, and the notes were made payable to him. We do not see there a change of creditor.

We think that both by our civil code and the Spanish commercial law, often enforced here in that respect, vendors of moveable goods, unpaid for, retain a privilege on them, so long as they remain in the possession of the buyer.

It is, therefore, ordered, adjudged and decreed, that the judgment of the parish court be reversed ; and proceeding to give such judgment as we think ought to have been rendered below, it is further adjudged and decreed, that the goods sequestered in this case be sold by the sheriff, and that out of their proceeds, if so much there is, the plaintiffs do recover the sum sued for ; and it is further ordered, that the appellees pay the costs of this appeal, and that those in the inferior court be paid by the appellant.  