
    
      NORRIS vs. MUMFORD.
    
    An order for the delivery of the thing sold is not a delivery of it.
    The creditors of the vendor may attach the thing sold, if it has not been delivered.
    Appeal from the court of the parish and city of New-Orleans.
    The plaintiff brought his action to recover the value of sundry articles by him furnished for the ship Jane, of New-York, of which he alleges the defendant is owner.
    The action being against an absent debtor, a writ of attachment issued and was levied on certain goods of the defendant, in the possession of Talcott & Bowers, who were summoned and interrogated as garnishees. From the answers to the interrogatories, it appeared that the garnishees held in storage a quantity of cotton, the property of the defendant, and a boat. The statement of facts shewed, that previous to the levying of the attachment, the defendant had made a sale of the cotton to John B. Lawrence and John D. Reese. This sale took place in New-York on the 28th or 29th of September, 1814, but was not known in New-Orleans till the attachment was levied on the cotton, on the 28th of October following, when the defendant had failed. On the 31st of May, 1815, the purchasers of the cotton filed their claim therefor, which was sustained and recognized as valid by the parish court.
    East'n. District.
    Dec. 1815.
    The plaintiff appealed.
    
      Hennen for the claimants.
    The delivery of the order of Mumford, directed to Talcott & Bowers, requesting them to deliver Mumford’s cotton, in their hands, to Lawrence and Reese, the claimants, his vendees, was a delivery, which vested the property of the cotton. The property would have passed even without any delivery at all.
    It is stated as a general principle of the common law of England (which is the law of the place in which the contract was made) that, as soon as the bargain is struck, the property of the goods is transferred to the vendee: and by a regular sale the property is absolutely vested in the vendee. 2 Blacks. Comm. 448. If I offer money for a thing, in a market or fair, and the seller agrees to take my offer, and whilst I am telling the money as fast as I can, he does sell the thing to another: or when I have bought it, we agree that he shall keep it till I go home to my house to fetch the money; in both these cases, especially in the first, the bargains are good, so that the seller may not afterwards sell them to another, and upon the payment or tender and refusal of the money agreed upon, I may take and recover the thing. Shepperd's Touchst. 225. If the vendor has transferred the property, according to the laws of New-York, where the contract was made, this court will respect legem loci contractus.
    
    
      Porter for the plaintiff.
    The order to deliver was a means of obtaining a delivery only. It was an authority to demand and receive, not to take—an authority to take, when the thing sold is ponderous and present, has all the effects of an actual delivery; here the cotton was at the distance of upwards of five hundred leagues, and there was no authority to take it.—A delivery of the keys of a warehouse, which contains the good sold, is a delivery, because it is an evidence of an authority to take. So there was no delivery of the cotton.
    The principle of the civil law, which must govern the present case, is perfectly at variance with that stated by the counsel of the claimants, to be that of the common law of England. The property remains in the vendor till delivery. Inst. 3, 24, 3. Pothier, Vente, n. 319. So that the creditors of the vendor have a right to attach it. Id. 320.
    It is far from being clear that the common law of England differs from the civil, in this respect: on the contrary, it is believed that the principle, which is to direct the court in this case, is perfectly the same in both laws.
    The English authorities cited by the counsel of the appellees, elucidate: the rights of the parties to the contract of sale. Blackstone says that as soon as the bargain is struck, the property of the goods is transferred to the vendee—that by a regular sale, without a delivery, the property is absolutely vested in the vendee; yet not so absolutely, he tells us, that the vendee may take it, invito alio, till after payment, if no credit be stipulated. Shepperd says, that if the seller, who has agreed to my offer, whilst I am telling the money, as fast as I can, sells it to another, I may take and recover it on payment of
    
      the money. Here, two sales are spoken of, and delivery is not mentioned in either; then there cannot be any doubt of my right, and perhaps my right against the second vendee may result from his buying the thing after my agreement, whilst I am counting the money to the vendor as fast as
    I can, which presumes his knowledge of my right. In the other case, in which the vendor; agrees, after the completion of the sale by our agreement, to keep the thing, my right may result from my being deemed in possession of a thing, which the vendor has agreed to keep, to hold for me. In neither case, however, does it appear, that Shepperd, any more than Blackstone, had in contemplation the rights of third persons. To cases between the parties, ought the principle of the common law invoked to he confined, in the same manner as that cited but of the Roman law, and Pothier is not to be extended to them. Traditionibus, non nudis conventionibus dominia rerum trunsferuntur. Between vendor and vendee, the property passes without delivery. Our civil code has an express provision to this effect: “ The sale is considered to he perfect be- “ tween the parties, and the property is of right “ acquired to the purchaser, with regard to the “ seller, as soon as there exists an agreement for " the object and for the price thereof, although 
      " said object has not yet been delivered, nor the" payment made.” Civil Code, 316, art. 4. This article is a literal copy of the Napoleon Code, 1583.
   Mathews, J.

delivered the opinion of the court. The only question submitted by the counsel for the decision of this court, is whether the sale made in New-York by Mumford, the defendant, and the delivery of an order to the purchasers for the delivery of the cotton by his agents who were in possession of it, in this city, vest the property of the cotton in them—Whether the delivery of the order is to be considered and operate as a feigned delivery of the thing sold, and transfer to the purchasers the complete ownership of it, from the date of the order, to the exclusion of the claims of the defendants creditors.

The necessity of a delivery to effect a complete transfer of the dominion and property of the thing sold, and the mode and effect of it, whether the delivery be real or feigned, have been so fully investigated in the case of Durnford, vs. Brooks’ Syndics—3 Martin, 222, heretofore determined in this court, that it is useless in the present case to enlarge on the subject. The situation of the parties, in the case under consideration, supports the claim of the appellant more strongly than the circumstances of the case alluded to did that of the Syndics of Brooks.— There the insolvent had personal possession of the goods, and had delivered part of them to the vendee. Here Mumford, at the time he made the sale of the cotton, had only possession of it by means of his agents, Talcott & Bowers, and therefore could make no real delivery, except by their intervention. The order to Talcott & Bowers, in the opinion of this court, is only evidence of the sale by Mumford, to the persons intervening and claiming the property, and does not amount 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.

We are of opinion that the judgment of the parish court was erroneous, in determining that the cotton, in the possession of the garnishees, is not subject to the attachment, and must be reversed; and it is therefore ordered, adjudged and decreed, that it be annulled, avoided and reversed. Proceeding to give such judgment here as ought to have been given in the court below, it is further ordered, adjudged and decreed, that the plaintiff and appellant recover from the defendant and appellee the sum of three hundred and twenty-three dollars and seventy-two cents, with costs, to be raised by the sale of the property attached. See Maurin vs. Martinez & al. 5 Martin, March 1818.  