
    
      THURET & AL. vs. JENKINS & AL.
    
    Appeal from the court of the first district.
    soldán'New-York,while she cannot,1oíher arrival at New Orleans. be at-Orleans, be attached for a debt of the ven-tached for a dor,
    The plaintiffs instituted this suit by attach-ujgnt and the undivided half of the ship Fa- ’ - 1 vorite was levied upon. Philotas Havens intervened, ckimiug the said Half, as his property, under a bill of sale of the defendants. There was judgment for him, and the plaintiffs appealed.
    
      The statement of facts admits the plaiptiffs^ claim, the execution of the bill of sale, and the insolvent circumstances of the defendants at the time.. Its date is of the t7th of June, 1,⅜1: , áiid the consi ieration of it was a debt which accrued to the claimant, by the payment of several notes of the defendant, endorsed by him.
    The attachment was levied on the 14th of July following.
    The original bill of sale was sent to New-Orleans and lodged in the custom house on the ithh.
    The claimants’ agent, in New-Orleans, gave notice to that of the plaintiffs of the transfer of the defendants’ interest in the ship to the claimant, immediately on receipt of the bill of sale.
    
      Livermore, for the plaintiffs.
    The assign-meat to the claimant was made, by the defendants, after their insolvency. It was made with the intent to prefer a favourite creditor, and it was not -perfected by delivery. According to all the decisions of this court the property in this ship remained in the defendants at the time our attachment was laid.
    In the case of Durnford vs. Syndics of Brooks, 3 Martin 222, the principle is established, that the contract of sale does not transfer the property of the thing sold; but that such transfer is the effect of the delivery. And the present case . ⅛ V ls stronger than that of a sale, being rather a datiovi' eri payement than a sale. In the case cited the court recognize the doctrine that delivery is of the very essence of this contract.
    
      Norris vs. .Mumford, 4 .Martin, SO, is also expresslf in point. In that case the goods attached were in \ew-Orleans, and all the parties were citizens of New-York ; so that an actual delivery at the time of sale was impossible. It was determined, that as no actual delivery took place before the attachment was laid, the attaching creditor should hold the goods.
    T >e same point was again determined in Ramsay vs. Stevenson, 5 Martin, 23, after full discussion. In that case the insolvent, the assignee, and the attaching creditor, were all citizens of Maryland, and it was argued, with great zeal, that by the laws of that state, the transfer was complete, and the property vested in the as-signee. But the court decided, that a delivery was essential to transfer the property, and supported the attachment. In the case of Fisk vs. Chandler, 7 Martin, 24, the same judgment was rendered; and in that case all the parties were citizens of Massachusetts.
    In the present case, the district judge decided in favour of the claimant, because he considered that there was a distinction between the s.ale of i . . an entire ship and the sale oí a part, and that, in the case of a -part owner selling his share, no delivery was required, because it was impossi hie. With great deference I conceive the distinction is not sound. It is true, that upon the c iSsuruction of tlite statute of Elizabeth, against fraudulent conveyances, a distinction has been made by the courts in England between cases where the grantor was enabled to give possession but retained it, and cases where delivery was impossible. When the property conveyed was abroad, there seems to have been an impress! >n that the conveyance would be good against creditors upon this principle. But all the cases, in which such doctrines were supposed to be maintained, were brought before this court upon the argument of Stevenson vs. ftamsay, and it was solemnly decided that no such doctrine could be here admitted. The judgments of this court do not proceed upqn the ground qf fraud, but upon the principle qf faw that delivery is essential to the perfection of a sale. In cases where property is abroad, an actual delivery, at the time of sale, is impossible. It is no more impossible in the case of the sale pf a part th»n of the whole. The written evidences pf title may be given in one case, as easily as in tbe other, and possession may be taken of , ' ,. . . the part, in the same time and m the same manner as of the whole. The necessity of taking actual possession seems to have been well understood by these parties. For the bill of sale was sent on to New-Orleans, by the claimant, to his agent Benjamin Story; and if it had arrived two days sooner* the sale would have been effected before our attachment was laid. But the creditor was more vigilant, and is to be preferred.
    
      jytorse, for the claimant.
    The principle decided in the case of Durnf&rd, vs. Brookes’ syn-dics, seem, to have been considered as the foundation of the decisions in the subsequent ones. It was there the opinion of the court, relying on the doctrine laid down in Pothier, Traite du contrat de Vente, part 8, chap. 1, art. 3, (and the only authority cited in the argument of the cause,) that delivery only, in a contract of sale, transfers property. This decision, however hard, as it may have borne upon the plaintiff, who was admitted to have been a purchaser in good faith, was nevertheless within the letter and spirit of the civil law. Yet, from a comparison of the facts in that case with the present, I am satisfied that the acutest mind cannot trace the slightest resemblance between the two cases.
    In the former, the Contracting parties resided, ⅜ and ⅛⅜ sale was executed in the state of 1<0⅜ isiana, a country governed by the civil law. In the present, the parties reside and the sale was executed in the state of New-York, where it is admitted the common law prevails. Until the counsel for the plaintiffs can reconcile these differences, he will surely cease to press the case of Durnford vs. Brookes’ syndics, as an authority in point.
    The cases of Norris vs. Mumford, and of Mamsay vs. Stephenson, are relied on : the parties in one ease being residents in Maryland, in the other in New-York. This bringsus at once to the consideration of a question of the highest importance, viz. by what laws is this court to be governed in its examination of the import, validity and effects of the sale in question in this suit, whether by the lex loci con-tractus, or the lex fori P
    
    I should not trouble the court with an argument, on a point which seems to have been well settled among all civilized nations for many centuries, was it not for an impression that seems to exist in the mind of the plain iffs51 counsel, that the question has been decided against me by this court, in the tyro-csseá last referred to, and that the lex fori, and not the lape loci contractus, is to prevail.
    ir<Tf such be the fact, l have only to deplore ⅜ the result of a decision from which so many inconveniences and embarrassments must necessarily flow. Arguments ⅛5 inconvenient^, though generally of little weight, may be urged, with peculiar force, against a decision in one state, hostile in itself against the laws of a sister state, and destructive of the rights of its citizens. I cannot believe that the judges of this cotirt ever have been, or ever will become, the advocates of such a monstrous doctrine.
    The case of Morris vs. Mumfori was an attachment, levied on a parcel of cotton ; in the hands of the defendants’agents. The cotton had been previously sold to the claimants. Jlfom a careful review of this case it does not appear that a decision on the question of lex loci or lex fori was ever contemplated by the court in its judgment. On the contrary that the subject was merely glanced at by one of the counsel, more as an incidental circumstance, than relied on as a matter of argument; as we find the substance of bis observations on that subject comprised in this short sentence: « this court will respect legem loci contractusAnd the ctturt, in pronouncing their final opinion on ■ ‘ ■_ the case, pass over the Avhofó doctrine sub -str Urdió. 'h
    
    •„ '-i1'*-. The case of Ramsay vs. Stephenson seehis at best but of doubtful authority in the present. That was a claim on the part of certain individuals, styling themselves assignees of the defendant, in the state of Maryland, under a voluntary assignment, made there of property in iVevv-Qrieans. It is true the counsel for the assignees contended that the law of Maryland, and not the law of Louisiana, ought to govern this court, in their construction of the contract.
    But the facts, in that case, differ materially from this — -In that, the assignment was voluntary, in which the parties had thought proper to make their own law, to which they appealed, and not to the law of Maryland, as we find the following reasoning of the court clearly establishes the fact, that tire assignment relied on, so far from being in conformity to the laws of Maryland, was directly in violation of them, and invoking the laws of Maryland, in support Of such a contract, was neither more nor less than invoking laws that never existed. u Were it iter cessaxy (said the tóarned/Judge in his opinion) to a proper decision Of this case, we arc of opinion that it would not be difficult to shew such a difiRererice between assignments made at the mere will and pleasure of debtors, in which they attempt to lay down rules for the payment of their debts and the distribution of their estates, and those executed under'a commission of bankruptcy, as would require the application of principles almost totally different in different cases.”
    Again, it will be seen from a review of the facts, in the above case, that the act of assignment never was completed, and consequently could not be considered as a contract in the state of Maryland or elsewhere.
    It was a voluntary transfer for the use of all the insolvent creditors. Jill his creditors did not assent to it, as clearly appears from the fact that the plaintiff in the suit disavowed the transaction, and,withholding his assent, proceeded to attach the defendants’ property as if no assignment had ever been made, or what is the name, an attempt to assign, without perfecting it. The court, therefore, decided correctly in saying, what, I presume, is all they have said or intended to say in this case, that the pretended assignment was in reality none, and that it ought not to have any binding force upon a creditor not a party thereto. The court have not said in that case, nor in auy other that I have met 'with, that a^A^act complétela itself, and made in conformityto the laws of one state, should be construed or have effect by any other laws than that of the place where the contract was executed.
    Could it then be possible fór a doubt yet to remain, I apprehend that it must yield to the decision of this court, in the recent case of Lynch vs. Postlethwaite, ante 69, which, I presume, puts the question completely at rest.
    In this case, it appears from the facts admitted or proved, that the contract had been entered into in the state of Mississippi, for the delivery of a steam-boat in the state of Louisiana. In the opinion of the court we find the following emphatic and conclusive language. “The defendant was personally bound by the contract. He is admitted, by the pleadings, to be a stockholder of the Natchez Steam Boat. Company; and he subscribed the contract. According to the common laws of England, which is shewn to prevail in the state of Mississippi, all the members of an unincdrporated company are bound as members of an ordinary partnership.”
    Again, says the judge: ⅛ « the nature, effect and validity of a contract lijse this are to be inquired into, according to theT law of the place in which the contract is celebrated, even when the delivery of the thing, or the act stipulated for, are to be performed abroad.”
    
      This decision carries with it ar Aecision and . . ■ *⅜⅜\. certainty which must silence all c&Vil; uniform an(j C0Hgistent with itself, it is no less so With the laws of Spain, and the general commercial law of the United States.
    In the partidas of Spain it is said : if the laws or jurisprudence of another country, over which our authority does not extend, should be appealed to, We order that, in our dominions, they shall not be received in evidence, except in disputes arising between individuals of such foreign country, or contracts made there, Parti-da 3, 14, 19.
    This doctrine is in strict conformity to the established usages and commercial laws of the United States, and of England, as laid down in a variety of cases which it is unnecessary to read, and to which I beg leave, to refer the court. 2 John. S35; 4 John. 283. 3 Cain. 101. 1 East. 6; 3 East. 121. 8 T. R. 609. 2 II B. 933. 1 Emerigon, ch. 4, § 8. ,
    In Preimsdyk vs. Kane 8f al. judge Story observes: “The. rule is well settled,>that the law of a place, where a contract is made, is to govern as to the na(ure, validity and construction of said contract, and that being valid in such state, it $5 to be considered equally valid, and to be enforced every where with the excep-íion: Of the ifthe¿eontract isiinttior-at or unjust,'or rajSmnolf the inrercrng it in a state will be injurious to the rights, the interest or the con venience of such state, or its citizens. This doctrine is explicitly avowed, in Hubertts die eonflietu leguma tom: lib. $ tit. 3, and hfis become incorporated under the cride na-tionaliaw in all civilized countries.^ 4 £¾⅛ 3?⅛⅛ These authorities, ! trust, are sufficient to induce this court to decide that the contract, no w ⅛ question, must be governed by the laws of *⅜ ew¿ York, in other words, the conuuou law of Eug* land.
    The next inquiry is, whether, according to the laws of that state, or the common law, the contract is valid; and whether a debtor in insolvent circumstances is permitted to prefer one creditor to another. r
    For deciding this question, the court will find hut little difficulty. In 15 Johnson, 574, in the case of Murray vs. Briggs, we find the doctrine clearly and ex plicitly established by the decision of chief justice Thompson: “ I think, says the tfiférjndge, that I may then assume it, as a settled and unshaken principle, both at law and in equity, that a failing debfoY has a-just., legal and; moral right to prefer ⅛ judgment one Creditor to another.” The sam^^fctpine will be found in5 Johnson,335 WiücPsr&j^Pbntainexs. Fepris,
    
    jn 2 P. Williams, 4¾7, the court will find the case of Small vs. (hulley. in which the master of the rolls observed : “ There may be just reason for a sinking; trader to give a preference to one creditor before another, to one that has been a faithful friend, and for a just debt lent him in extremity, when the rest of his debts might be due from him, as a dealer in trade, wherein his creditors may have been gainers. Cases, says he, may be so circumstanced, that the trader may, nay ought to, give the preference.” ;
    This principle applies with great force and propriety to the case now under consideration f the claimant being a creditor for advances, and endorsements on the defendants’ paper for their exclusive benefit, and some part of which, if not the whole, may reasonably be presumed to have gone to the benefit of those creditors who now contest this claim. Creditors by endorsement have been uniformly considered as hav=* ing strong claims to priority and the protection of 'he courts of justice. In support of the same principle, l refer the court to 10 Mod. 489, 5 T. R. 431; 8 T. II. 528. 2 Johnson, 84.
    The validity of the sale being sufficiently established, it remains only to be ascertained whether the claimant has pursued the necessary steps to i . . 1 ⅛ ■ , . ' obtain possession of the property sold, is a delivery, of a ship sold, necessary to complete the sale ? I humbly contend a sufficient, and the only, delivery of which the thing is susceptible has been made in this case; and that it is all that is requisite by the laws of England, the laws of the United States, or even by the civil law." In 2 Durnford and East, 462, Atkinson vs. Mating, it was the unanimous opinion of judges Ashhurst, Buller and Grose, “ that if a ship be sold whilst at sea, the delivery of the grand bill of sale amounts to a delivery of the ship itself. It is the only delivery, says justic| Buller, the subject matter is capable of.” Again, id 466, «the bill of sale is the only evidencé of property.”
    In the same case, justice Grose observes ;• « there is a great difference between the sale of a ship at sea, and of other goods; á person by being in possession of a ship does not thereby acquire any credit; if he has no bill o gale to produce, his bill of sale amounts to nothing, therefore it has been invariably held, that the delivery of a grand bill of sale, is a delivery of the ship itself.”
    See Lex Mer. Am. 73, and the eases there cited, 2 Vezey, 27⅞. L. M. Am. 526, 5'2¶. 4 T. R. l6li
    
      In the United States, we have no grand ¡bill of sale, yet the execution and delivery of the ordinary bill of sale, used ia the conveyance of, ves* seis is all that is necessary. On this point I refer the court to 4 Mass. Rep. 661. The Portland Bank vs. Stacey Mansfield, a case reversed, ip, which chief justice Parsons observes, “ that he knew no difference, and believed there was none, between what is called the grand bill Of sale in England, and the bills of sale for vessels used in this country.”
    It being, therefore, clearly established that the claimant’s title was made for a bona fide consideration, and according to the laws of Newport, and the title paper duly delivered, was it incumbent on him to use any further exertions to perfect his title? It may be contended that actual possession of the ship should have followed the sale: this 1 presume will not be considered essential. The ship not being in New York,atthe time, no actual possession could possibly have been taken there, but the court has already seen that an act tantamount to taking possession was executed in the delivery of the bill of sale, and, although no further act was necessary, yet it seems by the statement of facts, that not the slightest negligence or delay can be inputed to the claimant; he has done what prod ericé might have,suggested, bat-wbieh #i% law did not require. Presuming the ship might arrive in the port of New-Orleaus before sire returned to New-York, he forwarded the bill of sale to his agent in New-Orleans, who forthwith lodged the same in the custom-house, within thirty days from its execution. This mode of proceeding in taking possession, if at all necessary, might have been suspended until the return of the vessel to ¿he port where the transfer was made, as is clearly established by the doctrine in the case of the Portland Bank before referred to. Even under the statute of SI James, the purchaser of a ship was bound to nothing mure than to take possession of the vessel as soon as she was within his reach. “By the con-struetiiu of that statute, says chief justice Parsons, a sale of a ship and cargo abroad is good, although possession be not immediately delivered, provided the evidence of the title be delivered, and the vendee take possession as soon as the property is within his reach.”
    In that case the schooner Ann and her cargo, then lying in Charleston, South-Carolina, was transferred by bill of sale, dated in Massachusetts on the afith of December, 1807, and ©téthe fourth of January following the Ann arrived alt Gloucester in Massachusetts, and was on that day ¡attached by the bona jULe creditor» ttf the vendors. The vendees did not take possession of the sepjponér and cargó until the 1⅜⅛ January. The court decided that there was no unnecessary delay in taking possession, and gave judgment for the claimants.
    Here I might safely rest the cause of my client. The court, however, will probably have observed that all the cases, cited as authority on the part of the claimant, are in relation to the entire ship, which is susceptible of some kind of actual possession. But in the case of the sale of. part of a ship the necessity ol taking any kind of possession does hot exist, nor does Hie law require it, neither is it possible in the nature of things to effect it. This doctrine is, at this day, well settled law, under a variety of decisions.
    In Lex Mer. Jim, 7¾, it is stated, “ If an entire vessel be bought, possession should invariably be given. When from existing circumstances it is impossible to comply with the rule of law, as should the vessel be at sea at the time of her sale, a symbolical is tantamount to an actual delivery, because it is the best of which the nature of the case will admit. If only a part is disposed of, possession need sot begiveh, because the possession of one part owner is the possession of all.”
    Again, in same book, 527, 52S, (i where the sale is only of a share of a ship, the taking possession is not necessary even though the grand bill of sale have not been delivered.” See also the cases Gillispy vs. Coatts, Ambler 652. 1 Vezey, junr. 103.
    
      Livermore, in reply.
    It has been attempted to distinguish this case from those heretofore jpecided in this court, and cited in the opening. The distinction, taken between this and that of Durnford vs. Brooks’ syndics is, that here the defendants and claimant are citizens of New-York. This distinction will not, however, apply to either of the other three cases. In all ⅜ of those cases the sanie attempt was made to distinguish them upon this ground, but without effect. That, in fact, there is no distinction, the claimants’ counsel does not deny. But he contends that, in Norris vs. Mumford, this point was not made. By reference to the argument* however, é Martin, SI, S, it will be seen that the attention of the court was expressly called to this point. In Ramsay vs. Stevenson, it was argued at great length, that the question ought to be decided according to the laws of Mary* 1 and, and that by those la ws the property was fully vested in the assignees. The effect of this the gentleman endeavours to avoid, by alleging that that was a voluntary assignment for the use of all the creditors of Stevenson, and that it #as not perfected, because all had not consented to the terms of it. The answer is. that the effect of the deed was to vest the legal estate in the trustees ; and, in deciding the case, the court clearly intimate, that the trustees might hold,, for the purposes of the trust, such property as came into their possession. But* the language of the court is express, that the cause must be determined upon the principle of Burn ford vs. Brooks’ syndics ; that giving td the assignment all the effect of a sale to a bona fide purchaser," a delivery of the goods was necessary to perfect it, 5 .Martin, 77* The last case, of Fisk vs. Chandler has not been noticed by the claimants’ counsel. I shall merely observe, that the facts in that case were the same as in this, and that all the gentleman’s arguments would have been equally applicable there*
    But it is contended, that the decision of this court in Lynch vs. Postlethwaiie is inconsistent with the previous cases, and that these cases must be? considered as having been overrule# The ease of Lynch vs. Postlethwaite has iptro-duced no new doctrine of international law. It is then merely decided, that, between the parties to a contract, the construction of the contract must be according; to the laws of the place where it is made. The parties are considered to have these laws in view, when making; the contract, and that there is a tacit assent on their part to be governed by these laws, in expound? jng it. But there is no such assent on the part of third persons, not parties to the contract. If the present contest were between the claimant and his vendors, the defendants in this action, there might be some force in the argument drawn from the case cited ; but between-' the claimant and the plaintiffs, who were no parties to his assignment, it can have no effect. The judgment in Lynch vs. Postlethwaite decides ^nothing more than the questions then in dispute. These questions respected the defendant’s liability, as member of an unincorporated company established in the state of Mississippi, and upon a contract made there, and the quality, of the article which was the subject of the contract. It was determined that, upon these points, the contract must be construed by the laws of that state. When the lex loci contractus is called in aid of the construction qf a contract, it is , not done with the view of enforcing the laws of a foreign state; because the general rule is that the courts of one country do not enforce th$ laws of another country. But it is done for the purpose of ascertaining the intentions of the contracting parties. It is for the purpose of knowing to what they intended to bind themselves, at the time of entering into the conti*act. The rule cannot be extended further than the reason upon which it is^founded, and consequently cannot apply to a case where the interests'of third persons are involved.
    The quotation from the Partidas is against the claimant’s doctrine, and not in his favor. The prohibition against appealing to the laws of other countries is general; and the exception manifestly applies only, to the parties, to contracts executed abroad.
    The case cited from Gallison was also a case between the parties to a contract; and the observations of judge Story must be understood with the same limitation. Another exception is there made, even in questions between the parties. The case excepted is one, “in which the enforcing a contract in a state will be injurious to the rights, the interests, or the convenience of such state or its citizen!- * This is an ex* ception, to which I beg leave particularly to call the attention of the court. The interests, • i* . * , . or convenience of a state may be anected by the establishing of general priufciples in their nature injurious, although a citizen of the state may not be the immediate, sufferer. In the present case, the plaintiffs reside in France. But can it be said that the decision of the court shall be other than it would be, if they were citizens of Louisiana ? Our laws recognize no such distinction. The remedy of an attach-riiea| against the property of absent debtors is given to foreigners, as well as to citizens. The same general rules must be applied, without reference to the citizenship or residence of the parties; and the same decision must be made in this cause as if the plaintiffs were- resident in New-Orleans. That the effect of the principles maiittamfed by the claimant’s counsel would be inconvenient and injurious, cannot be doubted. The legislature has given the remedy of attachment as a beneficial remedy, and the laws of the state give effect to the attachment upon all property of the absent debtor witiiin the state, and not previously transferred by delivery to a bona fide purchaser. Such has been the tendr of all the decisions of this court. Whdri the creditor institutes his suit, he is res quired, by these decisions, to look no further, than to the original ownership and continued c possession of his debtor. But if these cases are to be overruled, the remedy of attachment will be destroyed ; and after great expenses have been incurred by the attaching creditor, he will find himself defeated by collusion and fraudulent conveyances. This mode of proceeding to enforce the payment of debts is in fact peculiarly intended for the benefit of the state and its citizens. The benefit is extended to aliens and citizens of other states, and JJiey occasionally enjoy it. But in nearly all cases the debtor is an alien to the state, and this is be sole remedy to compel an appearance* or obtain security for the debt. Can there be a doubt, then, that the interests and convenience of the state and of its citizens require that the rule heretofore established should be adhered to. and that the property of absent debtors, foiind within the state, should be subject to its laws of attachment, instead of being portioned out by the debtors among his favoured creditors, who «ill always be citizens of the same state with himself, or fraudulently covered for his own use?
    The claimant’s counsel contends, that this assignment is valid by the laws of ÍNTew-Í*Wk. The decision reported in 15 Johnson may perhaps be taken as evidence of the law of ■ York; but it does not go the length of this case. It is there merely decided, that a failing debtoi iray lawfully prefer one creditor tos- the others. Put it does not establish the doctrine, that the debtor may divest himself of his 'property, by a m#e bill of sale without delivery, sb as to place it beyond the reach of his other creditors.
    The deficiency is attempted to be supplied l»y tvo or three cases decided in England, and by cne in Massachusetts. That decisions in Massachusetts ar,e evidence of the laws of New-\ork, is denifd. And the claimant does not sí ew, as he ought to have done, that English decisions are authorities there. But what is the amount of these decisions ? Mkm&on vs. Moling is cited to prove, that in the sale of a ship at sea the delivery of the girand bill of sale a mounts to a delivery of the ship itself. Why was it so decided? Because, says Bullet, .T. (< the grand bill of sale is the only muniment of property.” The quotation from the argument of Grose, J. is more full. The "^distinction, made by him between the sale of a ship at stea and of other goods, is this, that the possession of a ship* without the grand bill of «ale, does not give a false credit But the gentfeman’ts quotation is not complete, Grose, J. says, that. 
      (( a person by being in possession of a shtp does not thereby acquire any credit; because whoever is requested to advance money thereon will require to be shewn how the holder is owner; and if he has no bill of sale to produce, his possession alone amounts to nothing. Therefore it has been invariably held that the delivery of the grand bill of sale is a delivery of the ship itself.” There is some substance in these ob-serrations, as applied to the grand bill of sale. But there was no delivery of a grand bill of sale in this case. The gentleman- says, however, that we have no grand bill óf sale in this country ; and he cites a case from 4 Massachusetts Reports to prove, that there is no dilierence between the grand bill of sale in England and the bills of sale in this country. Wot great deference to 4he opinion, of chief justice Parsons, I conceive that there is an essential difference. The English grand bill dl’ sale is a bill of sale from the builder of the ship, and it is a muniment of property which always accompanies iti The first owner transfers it to his vendee ; the first vendee to the second ; the second to the third ; and this title paper, or sole muniment of property, passes from hand To hand through all the assignments of this species, óf property. It is, therefore, with rear son held to be a symbol of the property itself; m J 1 and a delivery of it is regarded as a symbolical delivery of the ship itself. Possession of this is at least prima facie evidence of property, and the possessor gains credit accordingly. Is there any resemblance between such a bill of sale,; and the- bills of sale known among us ? With us, the only evidence of ownership tb which persons look, and which gives credit to the possessor, is the register. The person, in wtfóse name that stands, has credit as owner. The possession of a bill of sale gives no credit. It may be evidence that the holder was once owmer; but not that he continues owner. For he does not deliver up his bill of sale, when he sells the ship to another person. This is taken to the custom-house ; the former register is cancelled, and a new one made out in the name of the vendee. How can it be contended, then, that the bill of sale delivered in this case was a delivery of the ship, more than that a bill of sale of any other moveable property is a delivery of the property ? In Norris vs. Mumford it was argued that the delivery of the order upon Talcott and Bowers was a symbolical delivery ; but it was decided not to be; and the court with great force shewed that the property being at 4a distance and possessed by the de-fendartt only, through his agents, was a circumstance against the claimant, and not in hiftfavour.
    In the case cited from 4 Mass. Rep. chief justice Parsons makes no distinction between the ship and cargo, and none can be made. Norris vs. Mumfori is, therefore, precisely in point. It is contended here pat the delivery of the bill of sale is tantamount to a delivery of thp ship $ and in that case it was contended that the same effect should be given to the delivery of the order upon Talcott and Bowers. But Mathews, J. said, <( The order.to Talcott and Bowers, in the opinion of this court, is onfy evidence of the sale by Mumford to the persons intervening and claiming the property, and does not aqiount to a transfer of the legal ownership and dominion of it, so as to prevent the creditors of the vendor from seizing and having it sold to satisfy their/just claims, before actual delivery under the order.” The same remarks will apply in this case. The bill of sale is evidence of the sale by Jenkins and son to the claimant; but the legal ownership was not thereby transferred, so as to prevent the creditors of Jenkins & son from seizing the property, before a delivery under the bill of sale. In Norris vs. Mumfori, the defendant had possession of the cotton only by means of this agent. In this case the defendants had possession of the ship by means of their agent, the captain ; and the only evidence of their title, to which their creditors could look, was in the custom-house at .New-Orleans. The defendants, there«ore, could make no real delivery, except by the intervention of their agent in Aew-Orleans, by notice to the captain, and by lodging the bill of sale in the custom-house.
    Another distinction is urged, that this was the sale of a moiety, and not of an entire ship. When a part of a ship is sold, the gentleman says, no delivery is necessary. 1 know of no such distinction in our laws. It is said, that in the case of the sale of part, delivery cannot be made. But when the property is abroad no delivery can be made at the time, in any case. And when the property is present, an actual delivery, or what is equivalent to it, can be made of a part, as well as of a whole. As I observed, in the opening of this cause, if (he bill of sale had arrived in New-Orleans two days sooner than it did, the register might have been changed, the captain might have been instructed to hold for the new part-owner, and the delivery would have been complete. In support of this distinction the claimant’s counsel quotes some observations from Caines’ Leso 
      
      Wercatoria Americana. The authority of these observations must rest entirely upon the author’s character. The only cases which are cited by Caines, to support his position, are those which the claimant’s counsel has also cited, Gillespie vs. Coutts, Ambler, 652, and Ex parte Studg-room, 1 Vez.jun. 163. In the second case there was no decision. And in the case of Gillespy vs. Coutts this point was not decided, as is supposed by the claimants counsel. The case was this : the owner of eight sixteenths of a ship mortgaged them to the defendants, Coutts and Stephens, and afterwards sold the same shares to different persons by assignments. One of these persons, the plaintiff, took possession of the whole ship, and got possession of the grand biil of sale, upon widen the names of all the purchasers were endorsed, hut there was no date to it. He brought his bill to be pieferred. For the defendants it was argued, “ that they were honest creditors, and that if they had been guilty of neglect all the other persons had been so also; that the indorsements were without date, and it did not appear on what occasion' they were made ; that possession is not required upon sale of a ship,, which in many cases ie impossible ; that Coutts and Stephens’ debt was lent only upon a part of the ship, and therefore if possession ought to be delivered in „ , , , , • case of a sale or mortgage of the whole ship, yet it was not requisite, nor hardly possible, of a part only; that the mere possession of the grand bill of sale was not sufficient to give a preference; and that it did not appear how or when the plaintiff got possession of it.” The reporter says that, “Lord Camden was of opinion with the defendants Coutts and Stephens, for the above reasons ; and added, that the plaintiff and the other seven purchasers, are to be considered as standing in the place of the vendor, and took the shares subject to the debts charged upon them.” This is all that is contained in the report. The Lord Chancellor gives no reasons for his opinion, but merely refers to the reasons urged for the defendants. The relevancy and force of this decision must, therefore, be tested by those reasons, and we have no means of judging as to which of them weighed most with the court, Some of them appear to proceed upon the ground of fraud, or negligence in the plaintiff. It is said that possession is not required upon the sale of a ship, or of part of a ship, because it is hardly possible. This is the only reason given for not requiring delivery. I believe that sufficient has been said, to show that this reason is not en titled to any -weight. There is nothing, said in tne cases cited of the other part-owner’s pos» session being the possession of the vendee, nor any thing to justify the broad principle cited from Gaines. This notion is, however, borrowed from a book of authority, Abbot on Shipping. But the limitation is not taken also. In referring to these cases it will be observed, that Abbot speaks with great caution. He does not speak of (his distinction as of one settled by any judicial decision; but rather as of one suggested by counsel and not decided. He also accompanies it with a most material limitation. His words are these: “ but in case of a sale, or agreement for sale, of a part only, it has been thought sufficient, ,if the vendor, having delivered the muniments of his title, ceased from the time to act as part-owner, actual delivery of a part being said to be impossible. This, however, should be understood with some limitation; for if a part-owner has the actual possession of the ship, it is not impossible for him to deliver the possession : if he has not the actual possession, the possession of the other part-owners may reasonably be considered to be the possession of the vendee, after the sale.” Jib-hot, 10.
    In the case before the court, the defendants had actual possession of the ship, by means of ... . .. .... , their captain; and it was id their power to ue-liver actual possession to the vendee, by an der to the captain,, their agent. Upon receipt of such an order the captain would ¡hold the ship for the vendee as his agent, and the property would be changed. The case supposed by Abbott, where the property in a part of a ship would be transferred without a delivery, and where the possession of the other part-owner may be considered the possession of the vendee after the sale, is one where the vendor has no concern in the actual management of the ship, where he is merely a dormant partner, who receives his proportion of profit and pays his portion of the ship’s expenses, but has no concern in the direction of her voyages nor in the appointment of her captain. In such a case, the managing part-owner might reasonably be considered as representing, not only his own share, but the share of the other part-owner, as having possession for himself as owner, and for the other as agent. In such a case, a bill of sale from the secret part-owner, accompanied by notice to the acting part-owner, might be considered as a complete transfer, and that the share, which the latter had represented as agent, \Avou!d pass to the vendee through the interven-.tionof the same aeent. It would be necessary, ° ' however, for the claimant to make out such a case> before he can take this property from the attaching creditors. He would shew, that the defendants had not the actual management of this ship, that the other part-owners had the exclusive control, and that notice of the transfer was given to them previous to the attachment. Nothing of the kind appears, or is pretended, in this case. And the burthen of proof is upon him. The defendants were part-owners when their acceptance became due ; the claimant derives title from them through a subsequent transfer; and it is his duty to shew, that the title was fully divested from his vendors, and vested in him before the attachment of the plaintiffs.
    I owe an apology to the court for occupying their time in the discussion of a question which has been so solemnly and repeatedly decided-! But the-assignees of failing debtors are pertinacious in the support of their claims, and persevering in search of distinctions where no distinctions are to be found. There is, I believe, no real difference between the principles of the civil and common law, concerning the transfer of property. To be complete, the transfer must be by delivery. This may be an actual delivery, or a mere transfer of title, where the vendor is already in possession opon another title. The first requires no explanation. The last is not pretended here. In England, the grand bill of sale is held to be a symbol of the ship; and perhaps if the property of ships, in this country, were attended with an instrument of the same nature, the same effect might be given to it. That; the delivery of a common bill of sale can have such an effect, is a doctrine which finds no support, except in a solitary case decided in Massachusetts. That case is, however, directly contradictory to the case of Norris vs. Mumford, and cannot, therefore, affect the decision of this cause* It is also, I conceive, contrary to all the prin-eiples of the civil and common law. A delivery oí some kind is in all cases required. Even in the case, stated by Abbot, of a part owner selling his share, the manner in which he limits the exception evidently shews that he considered a delivery of some kind not to be dispensed with. Possession may be taken by an agent for the use of his principal; and it can only be upon this principle, that the possession of the part owner can be deemed the possession of the. ven-dee. But a person cannot possess as agent unless with the will of doing so. A part owner dot knowing of the transfer cannot, even by the most subtile course of reasoning, be considered as taking possession tor the assignee. Fer ae-'procuratorsm nobis adquirí possessionem ita de-mam, si velit nobis possidere, si operant nobis• solis suata aecommodet, si possessionem appre-hendet nostro, non sao nomine, et mandatit similiter nostro. Cujas, ad 1. 1. §. 20 jf tit. de adq. vel amitt. poss. If the mere circumstance, of the vendor not having the actual corporal possession at the time of sale, be a reason for construing the possession of one man to be the possession of another, without any knowledge or communication between them, then the possession of Talcott & Bowers should after the sale have been decreed the possession of tne vendees. With great confidence I leaVe this case with the court, believing that a process of reasoning so refined and insubstantial, as that which is required to support the claim Of the intervening party, will not be sufficient to shake the principles which have been so well established by this court.
   Martin, J.

delivered the opinion of the court* This case differs from ¡hat of Norris vs. Mumford, in a very material point. There, the cotton, the subject of the sale, was in New-Orleaus; and we held that, as the sale of it, if made in this city, would not divest the vendor from his property, with resarcí to his it could not, though made in New York, affect the rights of the latter. As to them, the remained the property of the vendor, their debtor, tiil after a delivery to the vendee. A contrary decision would have given effect, in our own state, to the laws of another, to the injury of our own people. If A. and B. be partners, in Yew-Orieans, and C. purchases from A. a quantity of cotton, in the ware-house of the firm, wilt iiis right thereto, if he take instant possession of it, be affected by a sale made a few days before, by B. in Natchez or Mobile? Will not C. - e listened to, in his own state, when he shews that by the lex fori, that loci contractus, that the domicil of his vendors and his own, the sale and delivery vested the property?

In the present case the ship, the subject of the.sale? was at sea, was a New-York ship, and the vendors and vendee resident in New-York. If, therefore, according to the lex loci contractus, that of the domicil of both parties, the sale transfers the property, without a delivery, it did so eo insfanti, or not at all. In transferring it, it did not work any injury to the rights of the people of another country, it did not transfer the property of a thing, within the jurisdiction of another government.

Tf two persons, in any couhtry, choose to bargain, as to the property which one of them has in a chattel, not within the jurisdiction of the place ; they cannot expect that the rights of persons, in the country in which the chattel is, will there be permitted to be affected by their contract. But, if the chattel be at sea, or in any other place, if any there be, in which the law of no particular country prevails the bargain will have its full effect eo instanti, as to the whole world; and the circumstance of the chattel being afterwards brought into a country, according to the laws of which the sale would be invalid, would not affect it.

The laws of another country, even of a sister state, are foreign laws, and foreign laws ought to be proven as facts. This court has so very , often indulged parties, in establishing any particular part of the common law of England as it prevails, it is believed, in every one of these states but this, by the production of books of reports and elementary works, that it would work great injustice, if we rigidly refused to listen to the counsel in this respect* because the part of the common law invoked makes no part of the statemeni of facts. Neither of the counsel require it, and both are willing we should pronounce on the evidence of that law, which they have presented.

There is not the least room to doubt that the . ⅛ • . - . . * . interest oi the vendors m the ship passed to the vendee, under the principles of the common la>,v of England, as they are understood by the supreme court of the state of Massachusetts, and the circuit court of the United States for that district. In a case perfectly similar, in every respect, to that under our consideration, the supreme court of Massachusetts determined that the bona jide conveyance of a vessel and cargo, by deed, to secure the payment of money, the vessel being abroad, at the time of the sale, is valid against creditors ; provided the vendee takes possession of her without delay, upon iter return : and there is no difference between the grand bill of sale, used in England, for the Conveyance of vessels, and the bills of sale used in this country. Portland Bank vs. Stacy & al. 4 Mass. T. R. 661.

But, the plaintiffs’ counsel contends that the above case is in direct opposition to the decisions of this court ? Is it strange that the judgments of two courts, deciding according to different systems of laws, should be dissimilar?

Further, it is urged that the decisions of the supreme court of Massachusetts are evidence of the laws of that state, but not of those of .\ew-TTrirk. * It is admitted that thy common law of England prevails in noth those slates.

The supreme cqurt of the state of New York bolus tuat a regular bill of sale is not absolute ]y necessary to transfer the property of a vessel, that it passes by delivery like another chattel. Wendover & al. vs. Hogeboon & al. 7 Johns. 308.

Judge Story, in Meeker & al. vs. Wilson, says that, by the common law of England, a grant or assignment of goods and chattels is valid between the parties, without actual delivery, and the property passes immediately upon the execution of the need : but, as to creditors, the title is not considered as perfect, unless possession accompanies he deed. 1 Gallison, 323. This is the principle, which has regulated this court in the decisions cited at the bar. But, the learned judge continues : an exception to the rule is, where tiie possession of the grantor is consistent with the deed, or where the property conveyed is, at the time of the conveyance, abroad and incapable of delivery. In the latter case, the title is complete, provided the grantee takes possession, in a reasonable lime, after the property comes within his reach.

The laws of Louisiana do not, it is true, recognize the last exception. Property does not pass here by contracts, but by delivery : tradi-ti nib ns, non pactis. If the ship had been within the state, at the time of the sate, the rule in Norris vs. Mumford would have regulated the decision of this court: but. as at that time she was not within the state, the sale ought not to be tested by our laws. It must be by those loci co tract us, against which those of no other country ought to prevail.

Farther, ihere seems to be great weight in the posit on that no delivery cast take place of an undivided part of a chattel, not susceptible of division.

The case cannot be distinguished from that in Massachusetts, ar.d from the evidence adduced to us, from which we are to determine what is the rule of the common law of Kug-land, we conclude that the district court did not err, in sustaining the claim.

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