
    
      WHISTON & AL. vs. STODDER & AL. SYNDICS.
    
    Appeal from the court of the parish and city of New-Orleans.
    In a sale completed in a country, in which the vendor has no privilege on the thing sold, he acquires none on its being brought here.
    
      Workman, for the plaintiff.
    Stodder and Hewitt, merchants of this city, having become insolvent, the judge whom, they petitioned for the benefit of our laws of insolvency, thought fit to appoint me to defend the rights and interests of the absent creditors. On examining the schedule and investigating the accounts of the insolvents, I found that they had in their possession some goods which they had purchase from the plantiffs, merchants of Great Britain, and of which the greater part of the price still remained unpaid. I, therefore, thought it my duty to bring this suit, claiming for the plaintiffs, as if they had been citizens and inhabitants of this state, their privilege in those goods for the price due upon them. A sequestration issued in the usual form, and the court below gave judgment in our favour : from which judgment, the defendants have appealed.
    East’n District.
    
      May, 1820.
    The facts, stated in the petition, are fully proved by the testimony on the record : and these facts bring the case completely within the provisions of the seventy fourth article of the Civil Code, 469. In one of the clauses, there is a special reservation that nothing herein shall alter or affect, the established laws and usage of commerce, as to the thing sold. The vendor’s privilege, given by this article, is substantially the same as is secured by the ordinance of Bilbao, in cases of bankruptcy ; and which has been recognized and acted upon here, as the law of the land, since its cession to the United States. Nothing then can prevent us from maintaining this claim, unless it can be shewn, that this case must be decided according to the law of England, and not by the laws of Louisiana.
    It has been often determined in this court, in conformity with the opinion and judgments of all other high and repectable tribunals, that the law of the place, where a contract is made, is to govern as to the nature, validity and construction of such contract ; and that it is to be enforced every where, except in cases in which the contract is immoral, or unjust, or in which the enforcing it in a state, would be injurious to the rights, the interest, or the convenience of such state or its citizens. 1 Gallison, 375. 3 Martin’s Rep. 66, &c. But as to the form of the action, or the remedy by which a contract is to be enforced, a different rule prevails ; to wit, that the recovery must be sought, and the remedy pursued, not according to the lex loci contractus, but according to the lex fori.
    In the present case, there is no question concerning the nature or validity of the contract. We do not seek by a redhibitory action to recind, or annul the sale. We do not claim the goods themselves, but a privilege or mortgage in or upon them, for so much of the price of them as remains due. If these goods were now worth twice or ten times more than they were sold for to Messrs. Stodder and Hewit, we should be entitled only to that part of the price which is unpaid. The defendants would have a right to all the rest ; which would not be the case, if our action, affecting the nature or force of the contract, sought to set the sale aside, and recover back the goods in kind. Sometimes indeed in these actions, the plaintiff is allowed by consent of the other party, to take back the remaining goods, at the invoice prices ; but this is done only to prevent the sacrifice of the goods at auction.
    The proceeding, in this suit, belongs to the mode of recovery, and the remedy, as much as the ordinary proceeding by way of attachment ; in the first case a particular property is laid hold of ; in the other, the whole of the defendant’s property may be seized. In both cases, the object is the same ; to secure the debt for which the plaintiff sues. But the law of attachment does not prevail generally through England, nor in all of these United States. Yet who ever denied whether our English or other creditor might attach his debtor’s property in this state ? The long continued, undisputed practice of our courts puts that matter at rest.
    If this doctrine of the lex loci contractus, contended for on this side, be admitted, then it would follow, if goods were sold in Louisiana, to a merchant in England, or in any of our states, where the English law prevails, that the vendor might, in the event of the purchaser’s bankruptcy, claim a privilege upon these goods, for the price due on them, if they were found in the bankrupt’s possession. But would the courts of England, or of these states admit the claim ? Has any such claim ever been heard of ? Would not the creditor in suing for his debt be restricted to the forms of action, and kinds of remedy allowed by the laws of the country, where the suit was brought ? Would any new writ be manufactured ? Would any process, unknown to those laws, be resorted to for this suitor’s benefit, or convenience ?
    There is another and a strong reason why the lex loci contractus ought not to govern, in this case. The parties themselves must have contemplated Louisiana as the country whose laws and tribunals were to be resorted to, for enforceing the debtor’s part of the contract, if he should fail in his engagements. The goods were sold, it is true in England, and payment for them was to be made by remittances to England. But if the purchaser neglected to make this payment, where was it to be enforced ? At the debtor’s domicil, in the city of New-Orleans. Neglect or inability to make payment in these cases, is not so extraordinary as to render it at all improbable, that a suit in this country for enforcing payment for these goods, was contemplated by the vendors, at the time when they made the sale. They are, therefore, entitled to all the remedies which our laws afford.
    
      Livermore, for the defendants.
    The question, for the decision of the court, lies within a very narrow compass. Stodder & Hewitt were merchants in New-Orleans, and became insolvent in the year 1818. At that time, they made a cession of their property to their creditors, which was accepted, and the defendants were appointed syndics of their estate. After this time, the gentleman, who had been appointed to represent the absent creditors of the insolvents, sued out a writ of sequestration to obtain the remnant of an invoice of goods, which had been consigned to the insolvents by the plaintiffs, who are merchants in England, and which had not been paid for. This proceeding was confirmed by the plaintiffs ; and upon this sequestration, the cause was tried in the parish court. The goods were identified by a clerk of the insolvents, and the same witness proved that these goods were not consigned to the insolvents as factors, but under an order as vendees. The course of dealing, between the insolvents and the plaintiffs, had been for the former to order goods, and for the latter to purchase them of the manufacturers, and ship them to the insolvents, on account of the insolvents, and for which the plaintiffs were to be reimbursed by bills remitted, or produce shipped to England. These bills, or produce, when sold or paid, to be applied in payment for the goods.
    Upon this statement, the question for the consideration of the court is this :—Are the plaintiffs entitled to take these goods to the prejudice of the other creditors of Stodder & Hewitt, or must they come in, as general creditors, for a contribution ?
    The cession of property, made by an insolvent debtor to his creditors, vests in his creditors all his estate : not indeed an absolute indefeasible estate, but a right to sell the property for their benefit. If, before the sale, the debtor finds himself able to discharge his debts, he may take back his property, upon satisfying his creditors. D. 42, 2, l. 3, et 5. The interest of the creditors is not strictly in the goods themselves, but in the right of selling them. They cannot divide the goods, but must divide the proceeds. C. 7, 71, 4, qui bon. ced. poss. 
      This interest, or right of selling, is however effectual against all persons, except the insolvent in the cases specified in the law. But this right of the creditors, extends only to the goods of the insolvent, and not to the goods of other persons in his possession. These must be delivered to the owners. Nor will the cession deprive any creditor of a right, which he derives from a mortgage or privilege upon any portion of the debtor’s property. These mortgages and privileges, which constitute a special property in the thing mortgaged or subject to the privilege, follow the thing ut lepra leprosum.
    
    When, therefore, a person, claiming goods found in the insolvent’s possession at the time of his failure, can prove, that the goods did not belong to the insolvent, but to the claimant, the real owner is entitled to the possession, and the creditors have no light. So also, where a person has a mortgage or privilege upon the goods, he will be entitled to the benefit of his mortgage or privilege ; for this is not to be destroyed by the failure of his debtor. But, these claims, either of property or privilege, must be clearly established ; the presumption being in favour of the general creditors, that all the goods in the debtor’s possession belonged to him.
    
      Is any right of property, mortgage, or privilege, supported by the plaintiffs in this case ? They claim as vendors, and rely upon the Civil Code, 469, art. 74. If this will not support them, they contend that the reservation, concerning “ the established laws and usages of commerce, as to the claim of the thing sold,” must be construed for their benefit, and that this reservation was intended to have the effect of giving a further extension to the privilege of a vendor, by introducing the provisions or the ordinance of Bilboa. I believe it has been determined, that the ordinance of Bilboa, is not law in this state, the rules established by that ordinance being entirely inapplicable to our situation, and indeed as a body of laws having but a local and partial operation in Spain, and not extending to the colonies. I have also heard, that, at an early period after the promulgation of the Civil Code, it was declared from the bench, that the exceptions, introduced in that code in favour of the laws of trade and commerce, were intended to introduce the general principles of commercial law prevailing in the other states of the union. There is certainly great reason in this construction, as uniformity in the principles of maritime and commercial law between the several states is highly desirable. But by what course of reasoning can it be pretended, that this reservation, respecting the laws and usages of commerce, was intended to give to the vendor any greater right than is given to him by the article in the code ? This article gives him a privilege for the price. Will it be said, that he can have a greater privilege than for the price ? The article postpones him to the landlord. But the landlord’s right extends to all moveables found on the premises, even to those deposited or lent. The vendor is, by the article, postponed to the pawnee. But the pawnee, stands in the same situation to the original vendor, to the extent of the sum loaned upon the pledge, as a subsequent purchaser would have stood. The vendor is also postponed to the person who has laid out money in preserving the thing. But the money so laid out is for the benefit of the thing, and of any person who may be entitled to claim it. Can it be pretended, that any laws or usages of commerce would give to the vendor a right above these creditors ? If any effect is to be given to this reservation in the code upon the vendor’s privilege, it must be a restrictive, and not an enlarging effect.
    But it is by no means clear, that this reservation has any particular reference to the extent of the vendor’s privilege, or to the ordinance of Bilboa. The words in the French text are, Il n’est rien innovê aux lois et usages du commerce sur la revendication. The word revendication is a term of jurisprudence, signifying a real action by which a person claims a property in the thing, as belonging to him. Rem suam judicio repetere, sibi aliquid vindicare. Such is the definition we find given in the Dictionnaire de Trevoux. La revendication, appellee chez les Romains vindicatio, ou revindicatio, étoit une actión réclle que l'on exercoit ou pour réclamer la propriété de sa chose, ou pour réclamer une servitude sur la chose d’autrui, ou pour réclamer la chose d’autrui à titre de gage. This is, therefore, an action by which the thing itself is claimed to be delivered in specie to the claimant. This will give a meaning to the reservation in the code, and the true meaning. The chapter is upon the preference and order of privileges and mortgages, which are to be enforced, by a sale of the thing and an application of the proceeds in the order named. But as the vendor had a right, upon the failure of the debtor and the price unpaid, or upon the price being unpaid where no specified credit was given, to take back the thing itself, instead of having it sold to pay the price, the framers of the code considered it advisable that this right should be expressly declared to be reserved. By the framers of the code, I mean the authors of the French Code Civil, from which the whole of this article, with the reservation, is literally borrowed. Code Civil de France, n. 2102. The reservation was, therefore, intended to save the right, given to the vendor by the laws and usages in France, of rescinding the contract, in certain cases upon non-payment, and of reclaiming the thing sold.
    Let us consider this article in the code as a statute, and see what effect is to be given to it. Was it intended to create new privileges, or merely to declare the existing ones ? Was it intended to operate upon contracts made abroad, and to invest parties with rights for which they had not stipulated, and which were not given to them by the laws of the country where they contracted ? Or was it not rather intended as a legislative declaration of the rights growing out of contracts made within the territory ?
    In construing statutes, or contracts, it is a general rule, that the most large words are to be taken with reference to the subject matter. It is another general rule, that statutes are intended to affect only such contracts, as are made in the country subject to the statute. Statutus 
      
      intelligit semper disponere de contractibus factis intra, et non extrà territorium sum, Casaregis, disc. 130, n. 15. Therefore, although this statute speaks of vendors generally, it must be understood with reference to contracts of sale made within the territory. The effect given to contracts, made in other countries, depends upon a different principle. But in enacting laws for the government of the people, and for determining the rights of the parties arising upon contracts, the legislature are supposed to have in view the rights of their own subjects merely, and not the rights or advantages of other people.
    It is true that personal contracts follow the person of the debtor, and may be enforced against him, in a different country from that in which the contract was made. This is by the comity of civilized nations. But when the courts of a nation are appealed to, for the purpose of compelling performance of a contract entered into abroad, the rights of the parties are not to be determined according to the statute, or laws of the place of trial ; because the application of these laws might either restrict, or enlarge the terms of their agreement, and substitute a new contract, in place of that to which they had assented ; on the contrary, the court will consider the statutes, laws, and customs of the place of contracting, as having been within the contemplation of the parties at the time, and making part of their agreement. Lynch vs. Postlethwaite, 7 Martin, 84, and the authorities there cited.
    Foreign contracts are not within the purview of the laws, are not considered as being within the contemplation of the legislature, and, consequently, are not included in the most general expressions ; although it would be an absurdity, for the legislature to go out of its way, and legislate for the benefit of foreigners, yet there is no doubt this may be done. But it is not to be presumed ; and when it is done, it will be done in express terms. If, therefore, it had been intended to give the right claimed to foreign vendors, there would have been an express provision in the code to this effect, that the article should extend as well to contracts of sale made in foreign countries, as to sales made in the territory. If such an extension of the law had been proposed, what would have been the answer to it ? That foreign governments, and the contracting parties, were competent to fix the rights arising out of contracts made within their limits, and that it would be a violation of every principle of legislation to interfere with this subject, either to diminish or to enlarge the terms of such contracts. It would have been said with justice, that the laws of nature determine those things, which are of the essence of a contract, but that, as to every thing which is of the nature of a contract, or accidental to it, the will of the contracting parties, and the laws of the place where the contract was made, must govern.
    The nature of this action of sequestration is real. According to the division of actions in the Roman law, it is a real, and not a personal action. It is a revendication, the object of which is to annul the contract of sale for the portion of the goods remaining, and to reinvest the plaintiffs in their original property. It is not a personal action, founded upon a personal contract, and instituted to enforce a contract. But it supposes a right in one party to rescind the contract, upon the failure of the other party to perform the conditions of it. The essence of a contract of sale is in the transfer of property in the thing sold from the seller to the purchaser, and in the transfer of the price from the purchaser to the seller. An action against the purchaser for the price, is an action to enforce the contract ; but an action to recover the thing in specie, is in effect an action to dissolve the contract. Now it is evident, that a right to annul a contract, upon any certain contingency, must exist at the time of making the contract, and cannot be given afterwards. The event, which is to give occasion to the exercise of the right, may happen at a future period, but the right must exist at the time. Upon a sale at a credit of one month, either by express agreement, or by law, the vendor may have the right, at the expiration of the credit, to dissolve the contract ; but if, at the time of making the contract, the property passed irrevocably to the vendor, no change of time or place can afterwards give the right to the vendor, to reinvest himself in the property. When, therefore, the sale is made in a country, by the laws of which the entire and indefeasible property is passed to the vendee, and nothing is left to the vendor but a personal action for the price, the subsequent removal of the thing, to another country, where different laws prevail, cannot give to the vendor a greater right, nor vest in him an interest, which the contract did not give him.
    The plaintiffs contend, that a sequestration is founded on privilege, and not upon property. It is not very material to the defendants, whether this action be founded on privilege or property ; for if upon privilege, then' it must be shewn that the privilege exists. A privilege is not a form of action, but a right, which is to be exercised according to certain forms prescribed by law. This action of revendication, the object of which is the restoration of the goods in specie, is founded on property. Privileges are enforced by process against the goods to have them sold, and the privileged debt is to be paid out of the proceeds. L'action de revendication est une action qui nait du domaine de propriété que chacun a des choses particulières, par la quelle le propriètaire, qui a perdu la possession, la rèclame et la revendique contre celui qui s’en trouve en possession, et le fait condamner à la lui restituer. Pothier, du domaine, n. 281. The plaintiff, in this action must have the right of property. In rem actio competit ei qui aut jure gentium aut jure civili dominium acquisivit. D. 6, 1, 23.
    It is upon this principle, that a vendor is allowed by our laws to reclaim his property. By the Roman law, the delivery to the buyer of the thing sold did not transfer the property, unless the price was paid, or the seller was satisfied to accept a surety or pledge, or the engagement of another person, or unless the seller gave a credit to the buyer. Quod vendidi non aliter fit accipientis, quàm si aut pretium nobis solutum sit, aut satis eo nomine factum, vel etiam fidem habuerimus emptori sine ulla satisfac
      
      tione. D. 18, 1, 19. Where an express credit, however, was given to the purchaser, the property passed, and the sale could not be afterwards dissolved, on account of non-payment. Express conditions were, however, frequently annexed to the contract of sale, that if the price was not paid by a certain day, the sale should be annulled. Si intrà certum tempus pretium solutum non sit, res inempta sit. These conditions are treated of in the third title of the eighteenth book of the Pandects. De lege commissoria. But when a credit had been given, and the vendor did not reserve a right to rescind the sale upon non-payment, he could not reclaim the goods. These principles were formerly followed in the French practice. But a change insensibly took place, and the vendor was allowed the benefit of the pacte commissoire, although it had not been reserved. The only difference was, that when the contract contained a pacte commissoire, and the credit had expired, the judge would, upon the judicial demand, award a dissolution of the sale ; but that when there was no such agreement, and the property was immoveable, he would, by an interlocutory sentence, fix a day within which the purchaser might pay the price ; but if the price was not paid by that day, the sale would be annulled. In sales of moveables, this delay was not granted. Pothier, de vente, n. 475. These principles of the French law have been adopted in the Code Civil de France, n. 1654, 5, 6, 7, and from that code, have been copied in ours, 360 and 362, art. 86, 87, 88, 89.
    These articles in the code apply to cases where the price is not paid on the day limited in the contract ; but, upon the purchaser’s insolvency, the vendor may demand a dissolution of the contract, and reclaim his property, although the credit has not expired. The reason is, that the insolvency establishes the purchaser’s inability to pay, and all his debts become due, according to our laws. The goods in his possession, not paid for, revert to the vendors upon this event happening, and they have a right to reclaim them as their own property.
    The authorities, which I have cited, appear fully to establish these principles ; that this action of the plaintiffs is a real action, that the effect of it is to dissolve the contract, and not to enforce it, that it is founded upon property, and cannot be supported, if it appear that the whole property had passed from the plaintiffs and vested indefeasibly in the insolvents.
    The question then reverts ; whether the plaintiffs have a right of property in the goods sequestered sufficient to support this action? To determine this question, I apprehend, the court must inquire into their rights, as regulated by the common law of England. The general principle, that the rights of parties founded upon contracts must be determined secundum legem loci contractus, does not appear to be controverted. But the plaintiffs contend, 1st. that this contract was not made in England, but in New-Orleans; and 2dly. that a right to a sequestration respects the remedy, and not the substance of the contract.
    The goods were ordered by the insolvents ; the plaintiffs accepted the order, purchased the goods, and shipped them, to the address, and upon the account and risque of the insolvents ; and payment was to be made in England, by bills or produce. It is well known that a bill remitted is not payment, unless paid or agreed to be received as payment ; and produce is not payment until sold, when the proceeds are applied to the extinguishment of the debt. In every part of this business, therefore, it was an English transaction. The order from the insolvents gave to the plaintiffs no right, until that order was accepted and executed in England. Their rights then became perfect. The reception of the goods in New-Orleans, was not necessary to entitle them to demand payment ; for when goods are consigned under an order, the delivery to the carrier is a delivery to the consignee ; the property immediately vests in him, and the goods are at his risk. In purchasing the goods from the manufacturers, the plaintiffs acted in the capacity of mandataries, and in that capacity they acted in England, and the payment was also to be made in England.
    If any thing more than a simple statement of the facts be necessary, in order to refute the doctrine relied upon by the plaintiffs, as to the locality of this contract, I will refer the court to the authority of one of the ablest writers upon commercial law, to an author who has furnished the grounds of some of the best decisions in England upon maritime contracts, who has been often quoted with great respect by judge Story, and of whom Valin says, that he is without contradiction the best of all the writers on maritime law. I mean Casaregis. This author, in his 179th. discourse, discusses very fully the question, in what place a contract entered into between absent members shall be said to be celebrated ? He premises that it is a general rule, that contracts, entered into between persons residing in different places, shall considered as made in that place where the ultimate consent was given. Prœmittenda est regula ab omnibus recepta, quod contractus, vel negotium inter absentes gestum dicatur eo loci, quo ultimus in contrahendo assentitur, sive acceptat, quia tunc tantum uniuntur ambo consensus. Disc. 179, n. 1. Therefore, a contract of agency is said to be entered into in that place, to which a letter has been written containing the order, if the person to whom the letter was directed has received and accepted the order. Et sic mandati contractus dicitur initus in loco, quo diriguntur literæ, missivae alicujus mercatoris, si alter ad quem diriguntur, eas recipit, et acceptat mandatum. n. 2. Among a great number of cases, which the author states in illustration of this general principle, is the precise case before the court. Quando mercator alteri suo corresponsori mandat, ut aliquas merces pro se emat, easque sibi transmittat, quo casu si corresponsor acceptet mandatum, et in illius executionem ab aliqua tertia persona merces commissas emat, duo perficiuntur contractus : primus mandati inter mandantem et mandatarium, et alter emptionis et respectivè venditionis inter eundem mandatarium uti emptorem nomine mandantis et ambo perficiuntur in loco mandatarii, n. 10. According to strict principles, the contract in this case was rather a contract of agency than of sale ; but as, by the decisions in England, the merchants, who accept and execute an order from a foreign correspondent to purchase and ship goods, are considered as vendors with reference to the right of stoppage in transitu, it is proper we should consider them in the same character here. The case, where the merchant, to whom the order is sent, ships his own goods, is stated by Casaregis in n. 12, 13, 14. ; and in this case he determines also, that the contract is made in the country where the order is executed. In n. 16, 17, 18, 19, 20, he treats of the case, where the merchant having exceeded his authority by shipping goods which were not ordered, his correspondent afterwards ratifies the act by accepting the goods. In this case also the author decides, that the contract is made in the country of the shipper, because the ratification has relation back, and is equivalent to an original authority. Quia ille ratificationis consensus, licet emittatur in loco ratificantis, et ibi videatur, se unire cum altero precedenti gerentis consensu, qui venit à loco gerentis ad locum ratificantis, retrotrahitur ad tempus, et ad locum, in quo fuit per gestorem initus contractus emptionis, vel aliud negotium pro absente. n. 20. The learned counsel for the plaintiffs will not, I am certain, contend against these authorities.
    But it is said that this question respects the remedy, and not the substance of the contract. There can be no doubt, that when an action is brought upon a foreign contract, the form of proceeding must be such as is prescribed by the laws of the country to which the plaintiff has recourse. The jurisdiction of the court, the form of action, and the course of pleading is prescribed by those laws. The nature of the process also, either by citation, bail, or attachment, must be according to the lex fori. But when it is said, that the remedy must be pursued according to the laws, of the place where the action is brought, it is not meant, that any remedy can be demanded, which is inconsistent with the rights of the parties, as regulated by the contract. Suppose that, by an express article in the contract, the parties agreed that the entire property should pass to the vendee, notwithstanding the credit given for the price, and that the vendor renounced all right to dissolve the sale and reclaim the goods upon non-payment or insolvency, and consented to look wholly to the personal security of the purchaser ; would it be contended, that the vendor could afterwards sequester the goods, and claim to have them delivered to him as his property, and say that this was merely a form of proceeding to enforce his rights according to the contract ? If this could not be done against an cypress stipulation, it cannot be done in this case ; because the laws of the country where the contract is made make a part of the contract, and are considered as being within the contemplation and intention of the parties, when not controlled by express conditions. Et sive per pactum, sive per statutum dicta juris communis dispositio correcta sit, seu moderata, cum à pacto ad statutum valeat argumentum. Casaregis, disc 179, n. 53. Quod valide fieri potest per pactum, possit etiam fieri per statutum, et illud idem, quod operatur pactum, multo fortius operetur statutum. n. 55.
    
    The process of bail, and of attachment, are in no respect similar to this action. An attachment is not founded upon any right in the plaintiff to the goods attached. It is merely a mode of obtaining security, for the performance of the final decree to be rendered in the suit. But the action will be supported, or it will fail, according as the rights of the parties shall appear. An attachment is not, as the plaintiffs seem to think, a remedy against the goods. The action is personal, and the goods are merely taken as security. An action in rem is either founded upon property, as in the case of a revendication, or upon a lien, as in the case of privilege and mortgages. The property, privilege, or mortgage, is a right; and the action of revendication, sequestration, or order of seizure and sale, is the remedy which the law gives to enforce the right.
    The same observations will apply to the process against the person of the debtor, by which he is arrested and held to bail. The right to this process must be determined secundum legem fori. A case has been supposed of a contract made in England, and that, by the laws of England, the creditor would have a right to hold the debtor to bail, and that by the laws of Louisiana he would not have this right, upon a similar contract made here. Upon this case, it has been asked, whether in the case of a suit brought here, upon such a contract made in England, the defendant could be arrested and held to bail ? I answer, no. The right of arrest made no part of the contract. It is a matter proper for the regulation of every government. Imprisonment for debt may be allowed, or not allowed, according to the discretion of the legislature ; and to deprive creditors of this remedy, would not be an act to impair the obligation of contracts. This has been so decided by the supreme court of the United States, in the case of Siurges vs. Crowninshield, 4 Wheat.122, the decision upon this point extends, as well to contracts made before the act, as to contracts made after it. But suppose, that the legislature of Louisiana were to pass an act to deprive the vendor of his claim upon the thing sold, would not the supreme court of the United States say, that such an act, so far as it pretends to affect the rights of vendors upon contracts of sale existing before the act, was unconstitutional and void, as an act impairing the obligations of contracts ?
    To illustrate my distinction, between the rights growing out of a contract, and the remedy given to enforce a contract, we will suppose that the laws of Mississippi gave to the vendor the same right of property, privilege, or hypothecation, as our laws, but that, instead of allowing a sequestration or order of seizure in the first instance, the laws of that state required the vendor first to establish his right, by a personal action against the vendee, and permitted him to resort to the property, only after his claim had been established in such action. If the same laws prohibited the alienation of the property, after the action brought, to the prejudice of the vendor’s claim, he would be equally secure. Then, if the sale were made in either of these two states, the vendor’s right would be the same; but the form of proceeding, to enforce that right would be different, and the laws of the state where the goods are found, and the action brought, would prescribe the form of proceeding.
    By the laws of this state, persons furnishing materials for the use of a ship, and the builder also, are privileged creditors, and may enforce their claims by a proceeding against the ship. The right is given by the laws of the state, and may be prosecuted in a court having admiralty jurisdiction. But neither the carpenter, nor any material men have a privilege by the laws of England, nor by the laws of those states, which follow the common law of England. A vessel is built, or repaired, in Baltimore; the creditors have no privilege there; she sails to New-Orleans, and is here seized upon a claim of privilege, for debts contracted there, can this be permitted ? Surely not ; unless the court will overrule the decision of the supreme court of the United States, in the case of the General Smith, 4 Wheaton, 438. In that case the supreme court decided, that the right of lien must be tested by the laws of the state, where the work was done, or the materials found. A contrary decision would lead to the most manifest injustice. A steam boat is built at Pittsburgh, and the persons, employed in building her, rely the personal credit of their employer. By the laws of Pennsylvania, they cannot seize the boat, but may have a personal action against the owner. This does not suit their views; they remain silent; and the owner, supposing them to be satisfied with his personal security, sends the boat to New-Orleans ; when she arrives here, she is seized by them as privileged creditors; other creditors, who had an equal right in Pennsylvania, attach the boat before such seizure. Shall these be prejudiced by a claim of privilege from persons who had no privilege by their contract ?
    It is asked whether, upon a sale made in Louisiana, the English courts would respect the right of the vendor as established by our laws. The plaintiffs’ counsel seems to take it for granted that they would not. I know not upon what the gentleman grounds his belief. I know no principle of the common law, nor of any decided case, from which it can be presumed, that the courts of Westminster Hall would not give to the vendor, upon a contract made here, the advantage of our laws respecting his rights under such contract. It is not to be presumed that those courts would violate established principles for the purpose of taking away his right. It is true that a court of common law could not give to the vendor the relief, to which his contract would entitle him; but this would be owing merely to the limited nature of the jurisdiction of these courts. But, in the court of chancery there can be no doubt, that upon a bill setting forth the sale in Louisiana, and that by the laws of that state, the plaintiff had a right, under the circumstances, to have the sale annulled, and to reclaim the property in the thing sold, there would be a decree in conformity with the laws of the place of contract. The case of a vendor, having a privilege according to the laws of the place of contracting, and bringing an action, in a place where the privilege did not exist, is the precise case which makes the subject of the greater part of the 179th discourse of Casaregis. The case was this, Cayrel a merchant in Leghorn sent an order for merchandize to Astruch & co. merchants in Nismes. The order was executed, the goods were purchased by Astruch & co., consigned to Cayrel, and by him received ; soon afterwards Cayrel failed, and the question was, whether the vendors Astruch & co. were entitled to reclaim the goods, or must come in for a contribution as general creditors. By the laws of France, a special hypothecation was reserved to the vendor upon the goods sold, until payment for the price ; whereas in Tuscany the Roman law was strictly followed, and it was held, upon the authority of Ulpian, in l. procuratoris, § plane, ff. de tribut. act. D. 14, 4, 5, 17, and upon the general rule that where credit was given, the property was transferred, that the vendor of merchandize, sold on a credit, must enter into contribution as a general creditor. The general creditors of Cayrel contended, that the question ought to be determined according to the laws of Tuscany, where the action was depending, and not according to the custom of Thoulouse, or the lex loci contractus. The governor of Leghorn decided, in favour of the general creditors, as did also the consular court at Pisa upon an appeal; but upon an appeal from this last decision to the Grand Duke of Tuscany, the cause was referred to the Rota of Florence, who examined the subject in all its bearings, and in a most elaborate and conclusive argument established the right of the vendor and reversed the judgment of the consular court. I will merely refer to the numbers 55 and 56, to show that the same points were there made by the creditors, that are made by the plaintiffs in this case, and that the same answer was then given by the Rota, which I have attempted to give in this case. Nihil refragrante objecto allato pro creditoribus, quod judicium hujus causœ pro executione contractus, et pro solutione pretii intentatum fuerit coram domino gubernatore Liburni, ubi pendet judicium concursus creditorum super bonis David Cayrelli communis debitoris, ideoque non esse attendendas leges et consuetudines regni Tholosœ, sed leges et statuta Etruriœ, aut jus commune, à quibus nullum privilegium praelationis, vel potioritatis impartitum est venditori, qui habuit fidem de pretio. Quia hoc non obstante, recedendum non esse à dispositione particulari dictarum legum in civitate Nemausi receptarum nos arbitrati sumus, ea ratione, quod dictum privilegium pro securitate et cautione venditoris respicit merita causae, et desumatur originaliter ab eodem contractu celebrato Nemausi, et sic observandae sint leges loci, in quo initus fuit contractus, quia contrahentes ad leges loci contractus respexisse censeantur. n. 55, 56.
    
    By the law of England, the property in the thing sold is changed as soon as the parties have assented to the contract; but so long as the thing remains in the vendor’s possession, he has a lien upon it for the price, and may retain it until payment; and this lien will be a good defence to an action of trover, although by the bargain the property is in the buyer. Hob. 41, Noy’s Maxims, 88. This is the case where no credit is given. But where goods are sold, to be paid for at a future day, the vendor cannot retain them until payment; for to do so, would be inconsistent with the terms of the contract, and the conditions of sale shew that the vendor relied solely upon the personal credit of the vendee. In the case of a sale upon credit, therefore, the principles of the common law of England, and of the Roman law, are the same. The property is completely changed and vested in the purchaser by the contract. But where no credit is to be given, the principles of the two systems of law are different. In this case, by the Roman law, the property is not transferred, although a delivery has followed the sale. By the common law, the property is transferred, although there has been no delivery, and the vendor has merely a lien for the price. This lien is preserved to him only, so long as he retains possession; for by parting with the possession he loses his lien, and cannot recover it, by taking the goods out of the vendor’s possession. Godfrey vs. Furzo, 3 P. Wms. 185. Slubey vs. Hayward, 2 H. Bl. 504.
    
      
      Ex parte Gwinn, 12 Vez. Jr. 379. Hammonds vs. Anderson, 5 Bos. & Pul. 69 When goods have been consigned by one merchant to another, under an order from the latter, the sale is considered as being completed, when the order is accepted and executed. The delivery of the goods, in this case, to the carrier is a delivery to the consignee, in whom the whole property is vested. 5 Bos. & Pul. 119. Brown vs. Hodgson, 2 Campb. N. P. C. 36. Evans vs. Martlet, Ld. Raymond, 271. If the consignee became insolvent, while the goods are on their passage, the courts of equity have allowed the vendor to stop them ín transitu; and this right has been recognized by courts of law. The principle upon which this right has been established is, that, when the vendor has been able to obtain possession of the goods sold and not paid for, before they come to the hands of the vendor, it would be hard and against equity, to compel him to deliver them up, and come in for a contribution. But, when the goods have been actually delivered to the vendee, or his agent, this right does not exist, the transit is determined, and the vendor has only the right of a general creditor. That such is the law of England, is well known, it is not denied on the part of the plaintiffs, and it seems hardly necessary to refer to authorities upon this point. Where the bankrupt has goods in his possession as agent or factor, and these goods can be identified, they will be delivered up to the owner. But the bankrupt is himself the owner of such goods as have been sold to him, although not paid for, and these must be applied to the general benefit of his creditors. All the cases upon this subject are collected in a treatise upon the law of principal and agent, vol. 1, from page 261 to 307,—see particularly Tooke vs. Hollingworth, 5 T. R. 215. Bent vs. Puller, 5 T. R. 494.
    Such then is the situation of the plaintiffs. They are vendors claiming property, which has fully vested in the insolvents, and upon which they have no privilege or mortgage. They can complain of no hardship, in being obliged to enter into contribution with the other creditors of Stodder & Hewitt; for they have the full benefit of their contract according to the laws of their own country, in which it was made.
    
      Workman, in reply.
    Much of the learned gentleman’s argument seems founded on the opinion that the Roman law is applicable to the present question. That it is not so, I think is evident, from all the provisions of that section of our code which has been quoted, and by which this suit must be decided. The court knows well that the Roman law is of very limited authority in this state, upon any subject. That it is referred to so often, arises from its general conformity to the Spanish and French codes, by which in civil causes we are for the most part governed ; and from the light which it throws on these of our laws which have been founded on its principles.
    Our law, which gives the vendor the privilege we now claim, is not founded on the Roman law, which gives the vendor a right to reclaim or revendicate his goods, when the price is not paid. The reason assigned by the Roman jurisconsults is, that the thing sold does not belong to the purchaser, unless the price be paid, or secured to the seller. Neither this reason, nor this provision, can have been contemplated by our legislators. They consider the thing sold to belong to the purchaser whether the price be paid or not.
    They declare that the vendor's privilege shall be exercised only after that of the owner of the house or farm : and there are various other privileges which take precedence of both. This court has decided that law charges are privileged in preference to the vendor’s claim for the unpaid price. But nothing of this kind could take place, if the vendor had the right of rescinding the sale, and revindicating the goods as belonging to him, and not to the purchaser. If the goods still belong to the vendor, they cannot be made subject to the funeral charges, nor the law charges, nor the charges for medical attendance, due by the purchaser of those goods : to all of which charges, they are made subject by our code, before the vendor can recover any part of their price. The word revendiquer has been inadvertently used in the 5th clause of the 74th article ; as all the other clauses and articles of the section most clearly shew.
    The object of the clause, in favour of the established laws and usages of commerce, was probably neither to restrict or extend the vendor’s privilege in mercantile cases ; but to leave it exactly as it stood before. Much of the ordinance of Bilbao, it is true, is inapplicable to our situation, but most of its provisions in cases of bankruptcy and failures, are considered as in force throughout Spain and her colonies, and have been recognized in this state. The clause could never have been intended to introduce the commercial laws prevailing in the other states. They are subject to be altered and modified, and have in fact been often altered and modified by the state legislatures.
    The arguments used in the case, cited from Casaregis, being founded on the Roman law (which I have shewn to be in this matter essentially different from ours) neither those arguments nor the final decision of that case, can have any weight with the court in the cause now before them.
    In the case of the General Smith (cited from 4 Wheaton) the suit was brought in the same state (Maryland) in which the cause of action arose. The lex loci contractus, aud the lex fori, were the same.
    In the supposed case of goods sold in Louisiana to a person residing in England, I have, as the gentleman observes, taken it for granted that the English courts would not maintain the vendor’s privilege according to the provisions of our laws. I found my belief on the ground that no case can be shewn in which such a privilege has been admitted. It cannot, in the nature of things, be required of me to prove that no such case exists ; but I can aver that I have not found any such case, though I have diligently examined the books for that purpose. If English law, or English equity were as the gentleman supposes, many such cases must have occurred in England since the establishment of her bankrupt laws. Her constant commercial intercourse with the states of the continent of Europe, where the Roman civil law prevails, must have given occasion, in cases of bankruptcy, to frequent claims of the vendor’s privilege on the part of the merchants of these states, who had sold goods there, to the merchants of Britain. And the same thing must have often occurred in the United States. But if no such cases can be produced, we are bound to presume that it is universally known that no such claim of privilege could be supported.
    On the whole, there appears to me no good reason why the judgment of the parish court, in this cause, should not be confirmed.
   Mathews, J.

delivered the opinion of the court. This is a case, in which the appellees, who were plaintiffs in the court below, claim a privilege as vendors on certain goods described in their petition.

It appears, by the evidence contained in the record, that the insolvents were in the habit of ordering goods and merchandize to be sent to them in New-Orleans, by their correspondents, the appellees, merchants of the city of London, in the kingdom of Great-Britain, who executed such orders and received payment by remittances in the usual course of trade between said places; and that, at the time of the failure of the appellees, certain parcels of the goods transmitted to them as above stated, were found unaltered in their possession, and passed into the hands of the syndics, on which the plaintiffs claim a privilege.

On this statement of the case, two questions may be made : 1st. under the laws of which country was the contract made ? 2d. Is the privilege of vendors of the nature of the concontract of sale, or does it belong to the remedy for enforcing such contracts ?

In cases of contracts made between persons who are absent from each other, by means of letters or authorised agents, we are of opinion that the doctrine, as established by Casaregis, in his 179th discourse on commerce, is correct, viz. that they are made in the country and subjected to its laws, where the final assent may have been given, which is that of a merchant who receives and executes the order of his correspondent. In this view of the subject, the present sale must be considered as one made in England, and to be governed by the laws of that country, so far as relates to its effects ; and it is agreed that those laws provide no privilege for vendors in cases like the present.

Our laws do grant the privilege contended for by the plaintiffs ; and if it be one appertaining rather to the remedy than the contract itself, they ought to be maintained in their claim. We have not been able to find a decision directly in point, made by any other tribunal of justice ; and the question is new to our own courts.

In the case cited in favour of the appellants, from the author abovementioned, same discourse n. 53, 55, it was determined that a privilege secured to sellers by the laws of a country where the contract was made, followed the property into one where by law, no such privilege existed. This decision goes far to shew that the privilege was considered as belonging to the contract itself, and not to the remedy for enforcing its execution. When men enter into agreements, they generally do so with reference to the laws of the place where they contract, and ought not to calculate on having their rights and claims, enlarged or diminished by the laws of any other.

We are of opinion that the judgment of the court below is erroneous. It is, therefore, ordered, that the property claimed and sequestered by the appellees, be restored to the syndics of the insolvents, as belonging to their estate, and that the appellees pay costs in both courts.  