| La. | Dec 15, 1847
The judgment of the court was pronounced by
The plaintiff sold to the defendant, in the city of New York, several coils of wire for the sum of $500, which was seized by the appellants, who were judgment creditors of the defendant, under executions. The judge who tried the cause gave the plaintiff his privilege of vendor adversely to the seizure made by the appellants; from which judgment this appeal is taken. A motion was made to dismiss the appeal, on the ground that the claims of the appellants, who were intervenors in the court below, do not severally amouht to a Sufficient sum to give this court jurisdiction. The appellants united in their petition of intervention, and their aggregate claims exceed in amount the sum of $300. The value of the thing seized, as well as the plaintiff’s claim, exceeds that sum. The motion to dismiss the appeal is therefore disallowed.
It is alleged that the delivery of the wire to the defendant took place in New Orleans. It was shipped by the vendor to O’Callaghan, the purchaser, in New Orleans, he paying the freight; and, under the statement of facts, “ that Colt sold and delivered the wire in question to O’Callaghan, and that the Same never was paid for, &c.,” signed by counsel, we are bound to consider the contract as complete and executed in New York. The judge allowed the plaintiff his privilege of vendor, on the principle that privileges appertain to the remedy, and are not dependent on the law of the place where the contract was made. The case was before us before the adjournment in June last; and was set down for further argument at the November term.
We have been referred to the treatise of Judge Story on the Conflict of Laws, as supporting the doctrine in which the privilege to the plaintiff was allowed. In section 322 of that work it is expressly laid down, that where the lien or privilege does not exist in the place of the Contract it will not be allowed in another country, although the local law where the suit is brought would otherwise sustain it, and the case of Winston et al. v. Stodder et al., 8 Mart. 135, is cited in illustration of the principle. In that case it was decided, after argument by eminent counsel, that in a sale completed in a country in which the vendor has no privilege, he acquires none by its being brought here. By the laws of New York Colt could have no privilege on the merchandise sold by him, and it is difficult to find a reason for his acquiring one here.
This decision is said to be in derogation of a general principle that the allowance of priorities of payment belongs exclusively to the remedy. It is true that in the work referred to, in which the principle established in Whiston’s case is acknowledged, the antagonist doctrine is thus apparently recognised in section 575: “ The liens, implied hypothecations, and priorities of satisfqgtion, given to creditors by the law of particular countries, and the order of payment of their debts are generally treated as belonging to the subject of proceedings ad litis ordinationem, and not to the merits of the claim;” and Rodemburg, Boullenois and Voct are referred toas authority.
Since the decision of the case of Wkiston, we have never known it to be deviated from in our tribunals; and We are not aware of any decision of a court in the last resort, in which the rule just quoted has been acted upon. The case of Harrison v. Skerry, 5 Cranch, 298" court="None" date_filed="1837-03-15" href="https://app.midpage.ai/document/bradley-v-mckee-8628851?utm_source=webapp" opinion_id="8628851">5 Cranch, 298, we considered in the case of Lee v. His Creditors, ante p. 599. The opinion in the case of Harrison v. Skerry must be taken as one whole, and as applicable to the state of facts then under
The quotation made by the counsel from Huberas relates to prescription and execution; alone.
Those who are at all familiar with the subject of the conflict of laws are-often embarrassed' in their enquiries on finding that, in many rules which have-been held to be general and of universal application, the cases excepted outnumber those within their purview, under the jurisprudence of the present day; and our experience often admonishes us of the' necessity of the greatest caution in laying down or adopting any general rules, however plausible they may appear, which have not stood the test of scrutiny, of experiment, and of time.. In this case we see no reason for deviating from the law as settled in Winston’s case.
It is therefore decreed that that portion of' the judgment allowing'the plaintiff a privilege on the wire be reversed ; and that there be a judgment in favor of the intervenors, subjecting the wire seized in this case to their executions severally; the, plaintiff paying the costs of the intervention and of the appeal.