"Fort Wayne, April 4th, 1844. | chases were both made in the town of Fort "Messrs. McQueen & McKay, Wayne, in the County of Allen, in the said "Bought of Hanna, Hamilton & Co. State of Indiana, on the 4th day of April, "350 barrels mess pork, to be deliv1844. ered on board of canal boats soon after the opening of canal navigation, at $8.31 . $2,908.50 "Hanna, Hamilton & Co. "We guarantee the inspection of the above pork at Toledo, and the delivery on board of canal boats at this place, soon after the opening of canal navigation. "Received payment in full, "Hanna, Hamilton & Co. "Fort Wayne, April 4, 1844.” On the 17th day of April, 1844, said McQueen & McKay presented the said memorandums of purchase, receipts, and guarantees thereto appended, as above set forth, and marked A and B, to the said Gibson, in the city of New York, and requested of said Gib son an advancement upon the flour and pork therein mentioned; whereupon the said Gibson did advance to the said McQueen & McKay, on the faith of said flour and pork, and the evidences of title thereto, the sum of $2,787.50, The said barrels of pork were, at time of said and took from said McQueen & McKay an as sale to McQueen & McKay, lying in the ware-signment of said "memorandums of pur- [*387 house of said Hanna, Hamilton & Co., in the town of Fort Wayne, in the State of Indiana, about twenty feet from the Wabash and Erie Canal, marked and branded "Mess Pork," together with a large number of other barrels of pork, marked and branded "Prime Pork," and "Clear Pork." Said three hundred and fifty barrels being all the mess pork in said warehouse at that time, or at any other time since, and all the barrels marked "Mess Pork," but were not seen by McQueen & McKay. Said barrels of prime, clear, and mess pork laid in said warehouse promiscuously, and so remained up to, and at, the time of the assignment of said writing marked A; but after the assignment, and before the levying the attachment hereinafter mentioned, said Hanna, Hamilton & Co. had shipped 386*1 off all of the said barrels of pork marked and branded "Prime Pork" and "Clear Pork." Said McQueen & McKay, at the same time, purchased of D. & J. A. F. Nichols, of Fort Wayne, Indiana, two hundred barrels of superfine flour, for the sum of $712.50, and at the same time paid the said D. & J. A. F. Nichols the said purchase money; and thereupon said D. & J. A. F. Nichols executed and delivered to said McQueen & McKay a memorandum of said purchase, receipt, and guarantee, in the words and figures following, to wit: "Fort Wayne, April 4th, 1844. "Messrs. McQueen & McKay, "Bought of D. & J. A. F. Nichols. "Two hundred barrels of superfine four, at $3.564, $712.50 "Received, Fort Wayne, April 4th, 1844, payment in full. D. & J. A. F. Nichols. "Received the above flour in store, at Fort Wayne, April 4th, 1844, which we agree to deliver on board of canal boats here, soon after the opening of the navigation, subject to the order of McQueen and McKay. "D. & J. A. F. Nichols. chase, receipts, and guarantees, respectively, indorsed on the back of each in the words and figures following, to wit: "Deliver the within two hundred barrels of flour to E. T. H. Gibson, or order. "McQueen & McKay." "New York, April 17th, 1844. "Deliver the within 350 barrels of pork to E. T. H. Gibson, or order. "McQueen & McKay." Which are also part of this agreement. Said McQueen & McKay, at the same time, delivered to said Gibson the original mem orandums of purchase, receipts, and guaran tees above set forth, and marked A and B; in whose possession they now remain. At the same time McQueen & McKay wrote, signed and delivered to said Gibson, the letter which is herewith filed, marked C, and made a part of this agreement; and is in the words and figures following, to wit: "New York, 17th April, 1844. "Messrs. Ludlow & Babcock, Toledo: "Gentlemen,-We have this day received an advance from E. T. H. Gibson, Esq., on the following lots of pork, which you will have the goodness to deliver to his order, and to comply with his instructions relative to the shipment, to wit: 300 bbls. mess pork, from warehouse of Hamil ton & Williams. 350 bbls. mess pork, from warehouse of Hanna, Hamilton & Co. 200 bbls. flour from warehouse of D. & J. A F. Nichols. "Respectfully, Gentlemen, your obedient servants. McQueen & McKay." On the 18th day of April, 1844, Gibson inclosed the letter above referred to in another letter written by himself, directed to Mott & "We guarantee the inspection of the above Co., at Toledo, Ohio, and mailed the same on flour in New York as superfine flour. "D. & J. A. F. Nichols." the said 18th day of April, 1844, in the postoffice in the city of New York; which said letter, with the inclosure, said Mott & Co. received by due course of mail, and handed said inclosed letter, as requested by said Gibson, to Ludlow & Babcock, at Toledo, Ohio. Which are herewith filed and marked B, and are part of this agreement. Said barrels of flour were, at the time of said sale, lying in the warehouse of said D. & J. A. F. Nichols, in the town of Fort Wayne, Indiana, on the bank of Said Gibson also, on the said 18th day of the Wabash and Erie Canal, and there remained April, 1844, mailed, in the postoffice [388 until they were seized and taken under the at- in the city of New York, a letter written by tachment hereinafter mentioned. Said pur-himself, and directed to said Ludlow & Bab cock, at Toledo, Ohio, which said Ludlow & Babcock received by due course of mail; which letter is herewith filed, marked D, and made a part of this agreement; and is in the words and figures following, to wit: "New York, April 17, 1844. "Messrs. Ludlow & Babcock, Toledo, Ohio: "Gentlemen,-I have this day made McQueen & McKay, of Detroit, an advance on twelve hundred and fifty-one barrels of pork, and two hundred barrels of flour, which is stored at different points on the line of the Wabash Canal, and which they state is to be shipped to your care, and held by you at Toledo, until you receive instructions from them respecting it. They have given me an order on you for it, which I have sent to Mott & Co. I wish you to ship the pork and flour to me immediately on its arrival at Toledo, at the lowest possible rates of freight, and send me a bill of lading of the same. There is one lot of three hundred barrels of pork in Hamilton & Williams's warehouse, on which there is due from McQueen & McKay, on its arrival at your place, $550.00. This amount you may draw on me for, so soon as I receive bill of lading of the pork. Let me hear from you by return mail respecting it. "I remain truly and respectfully yours, "E. T. H. Gibson." took into his possession the said pork and flour described in said writings, marked A and B, the return day of which said writ has not yet elapsed. And it is also agreed, that the proceedings of the said sheriff in executing the writ of attachment were, in all respects, regular. (It is not, however, admitted by the plaintiff, that the property levied on was, at the time levied on, or at any time since, the property of the said McQueen & McKay, or that McQueen & McKay had an attachable interest therein.) And that the defendant shall have the full benefit of all the proceedings in the said attachment, in the same manner as though the record thereof was produced before this court. And it is further agreed, that the said sheriff kept and retained the possession of the said flour and pork; so levied on by said writ of attachment, until the same was replevied out of his possession, by virtue of the writ of replevin in this case. The said writ of attachment was issued and sued out for the purpose of coercing the payment of the said money, obtained by the said McQueen and McKay, as above stated. It is further admitted by the parties, that the said pork and flour are of the value mentioned in the affidavit of William Hoyt, now on file in this court, on which said writ of replevin was issued. ledo, Ohio, one hundred and four miles from Fort Wayne; and that Mott & Co. were, on the same day, the forwarding merchants of said Gibson, at same place, Toledo. The said Ludlow & Babcock were, on the At the time of the assignment of said mem- 17th day of April, 1844, the forwarding merorandums of purchases, receipts, and guaran-chants of the said McQueen & McKay, at Totees, said Gibson was a commission merchant in said city of New York, in the State of New York, and it was usual and customary for commission merchants, residing and doing business in the city of New York, to make advances on Western produce, upon the assignment of the proper evidences of title thereto. On the 23d of April, 1844, said Gibson, having on that day learned that McQueen & Mc Kay had suffered some of their bills to be protested for nonpayment, despatched one William Hoyt to the town of Fort Wayne, aforesaid, to see to the shipping of said pork and flour; and the said Hoyt arrived at said town of Fort Wayne on the 29th day of April 1844, for that purpose, having in his possession the said writings marked A and B. At the time of the assignment of said writ ings marked A and B, the said Wabash and Erie Canal was navigable at and from the said town of Fort Wayne to the said town of Toledo. On the 27th day of April, 1844, a writ of 889*] attachment issued from the Allen Circuit Court, in the State of Indiana, in due form of law, at the instance and in the name of the State Bank of Indiana, against the goods and chattels, lands and tenements, of the said McQueen and McKay (William McQueen and James McKay); which said writ of attachment and all the proceedings in and about the issuing of the same, are admitted to have been regular; and the production of the same, and of the record thereof, is hereby waived. This said writ was directed to the defendant in this suit, who then was and still is sheriff of said County of Allen, and came to his possession as such sheriff on the said 27th day of April, 1844; on which said 27th day of April, 1844, the sheriff aforesaid, by virtue of said writ of attachment, levied upon, seized, and It was understood between the said Gibson and the said McQueen and McKay, at the time of said assignment of said writings marked A and B, that the said Gibson should sell the said pork and flour, and after retaining his said advancement and his legal commission, and interest and outlays, pay the remainder of the[*390 proceeds of said pork and flour to said McQueen & McKay, according to the usage and custom of commission merchants. The pork and flour mentioned in said writings, marked and B, and that levied upon by virtue of said attachment, and that replevied by virtue of said writ of replevin, in this cause issued, and purchased by McQueen & McKay with the money obtained from said bank, as aforesaid, are the same pork and flour, and not other or different. The said levy, seizure or detention of said pork and flour happened at and within the County of Allen, in the State of Indiana; a legal demand was made before the commencement of this suit, and after the said levy, upon the defendant, by said Hoyt, as the agent of said Gibson, for the said pork and flour, and the said defendant refused to surrender the same. The said Gibson was, at the time of the commencement of this suit, and still is, a citizen of the State of New York, and the defendant a citizen of the State of Indiana. The said advancement, so made by said Gibson, corresponds with the usual advancing rates of commission merchants in the said city of New York, at the time of said advancement. The said writ of attachment was levied on the said property at the instance of the said branch of said State Bank of Indiana; and it was known to the State Bank of Indiana at the time of, and before the levy of said writ of attachment, assumpsit would lie immediately on discovery that the said loan had been procured from her of the fraud, there was a debt due, in præsenti, said branch at Indianapolis fraudulently, by either by an express precedent contract, or by said McQueen & McKay, and that the said Mc- the absence of any agreement for credit; or the Queen & McKay had invested the said money, contract was incapable of confirmation and ab so obtained, in the purchase of said pork and solutely void, through illegality, or as being flour, and that said attachment is still pending; contrary to public policy. and that the original bills on which said money was obtained fell due after the levy under said attachment; and that none of said bills, on which said money was obtained, or any part thereof, have ever been paid, but were at maturity protested for nonpayment. It is also admitted, if the court should consider the circumstances legitimate or material, which the defendant denies, that in 1843 the said McQueen & McKay, and said Gibson, had a similar transaction in New York, in which the said McQueen & McKay acted with integrity, but with which the bank or the other par ties had no connection. Upon this case stated, the Circuit Court gave judgment for the defendant in replevin. The counsel for the plaintiff took an exception, and brought the case up to this court. It was argued by Mr. Romeyn and Mr. Wood for the plaintiff in error, and by Mr. Bright (in a printed argument) for the defendant in error. 391*] *Points for the Plaintiff. I. The attachment was prematurely brought. Because It is further contended, that the attachment of the pork and flour, as the property of McQueen & McKay, was an affirmance of the contract with them. Campbell v. Fleming, 1 Adolph. & Ell. 40; Selway v. Fogg, 5 Mees. & Wels. 86; Thompson v. Morris, 2 Murphy, 248; Dingley v. Robinson, 5 Greeni. 127; Hanna v. Mills, 21 Wend. 90; Ibid. 175. A party cannot claim in repugnant rights, and is concluded by the form of his [392 action. Smith v. Hodson, 4 Term Rep. 217. 4. The retention of the bills of exchange, given by McQueen & McKay, as well as the form of the action, was an affirmance of the contract of loan. Tobey v. Barber, 5 Johns. 72; Dayton v. Trull, 23 Wend. 346; Thomas v. Todd, 6 Hill, 341; Masson v. Bovet, 1 Denio, 74; Story on Sales, sec. 427. II. The bank, under her attachment, had no right, as against Gibson, to claim the pork and flour as the specific proceeds of her bills, on the ground of the alleged fraud of McQueen & McKay in procuring them. Because 1. She attached it as the property of MeQueen & McKay, and for the benefit of their 1. The loan of its bills by the bank to Mc-general creditors. If trover had been brought, Queen & McKay was an express agreement for credit; which agreement, if procured by fraud, was not void, but voidable, by the bank at its option. Chitty on Cont. 678; Story on Sales, secs. 420, 447, and cases cited; Galloway v. Holmes, 1 Doug. Mich. 336; Rowley v. Bigelow, 12 Pick. 307. 2. There being an express contract for a loan on time, if the bank elected to consider it fraudulent and to sue immediately, the action should have been in tort. Story on Sales, secs. 432, 434, 442, 446, and cases cited there; Jones v. Hoar, 5 Pick. 285; Willett v. Willett, 3 Watts, 277; Cary v. Curtis, 3 Howard, 247, 248. 3. The remedy by foreign attachment in Indiana is confined to cases of debts due on contract and show by affidavit; and the institution of such a suit was in affirmance of the contract of loan; and, inasmuch as the stipulated term of credit had not expired, the action was prematurely brought. Code of Indiana of 1843, pp. 762, 763, 772, 773; Lindon v. Hooper, Cowp. 418; Ferguson v. Carrington, 3 Carr. & Payne, 457, at Nisi Prius; same case in Bench, 9 Barn. & Cress. 59. This case is cited as law by Starkie, 2 Ev. 55; 1 Chitty on Pl. 157; 1 Com. on Cont. 221; Dutton Solomonson, 3 Bos. & Pull. 585; 15 Mass. 80, note a; Galloway v. Holmes, 1 Doug. Mich. 334. the alleged fraud would have been disputed. III. The flour in the custody of Hanna, Hamilton & Co., and the pork in the hands of D. & J. A. F. Nichols, were the legal property of McQueen & McKay, at the time of the transfer thereof by them to Gibson, the plaintiff, and said McQueen & McKay held, at the time of the attachment, the beneficial interest only in the residue of the proceeds of sale thereof, to be made by Gibson, when the property reached him, after satisfying his advance thereon, with commissioners and all other charges. IV. McQueen & McKay acquired a vested legal title in said pork and flour, by their pur chases. The bills of sale being their muni ments of title, also a constructive possession thereof, the property remaining in the cus v.tody of the respective vendors, as their bailees. Because In the present case, the question is not whether the bank had a right to disaffirm; but whether, by bringing this action, she did not in fact affirm the express contract. The authorities cited show the general doctrine of the common law to be, that promises in law exist only in the absence of promises in fact; that where there is an express contract, suing in assumpsit is an affirmance of it; that in those cases in which it has been held that 1. The sale was a perfect vested sale, and not an executory agreement to sell at a future period. Martindale v. Smith, 1 Adolph. & Ell. N. S. 389; 41 Cond. Com. Law, 595. 2. The bills of sale purport to pass a present vested interest, and they were delivered to MeQueen & McKay. The payment of the purchase money bound the bargain, and passed at once the legal title to them. Barrett v. Goddard, 3 Mason, 110. 3. Whenever there is a present vested sale, valid in law, and the property sold is left with the vendor, he holds it in custody as bailee for the purchaser. Elmore v. Stone, 1 Taunton, 157; Bailey v. Ogdens, 3 Johns. 416; Dixon v. Yates, 5 Barn. & Adolph. 314. 393*] 4. The pork and flour were sufficiently identified and distinguishable from all other property, there being no other pork in the warehouse, and the flour being marked. Barret v. Goddard, 3 Mason, 107; Pleasants v. Pendelton, 6 Rand. 473; Swanwick v. Sothern, 9 Adolph. & Ell. 895. 5. This construction is confirmed by the condition of the property at the time, and the general, well established usage of trade in regard to it; which usage is to leave such produce in the warehouse till the opening of navigation, the warehouseman being in the mean time the bailee of the owner; and for the owner to get an advance thereon from the Eastern merchant, and to transfer the same to secure the advance; he to sell the same on commission. 6. The delivery on board of canal boats provided for, was a delivery as bailee for the purpose of transmission. The guarantee of inspection at Toledo was a warranty of quality, to be tested after sale, and it was not preliminary to the sale. V. McQueen & McKay passed the entire legal title in said produce to the plaintiff, together with the beneficial interest, to the extent of his advance thereon, and gave him the constructive possession. Because 1. The condition of said produce was such as not to admit of actual delivery at the time, and it was in accordance with the course of business and the usage of trade to leave it with the warehouseman in the West. 2. The delivery order, according to the weight of authority, was sufficient of itself to pass the title to Gibson, on making the advance, before its presentment and acceptance. 3. But if not, the delivery to Gibson of the muniments of title, viz., the bills of sale, was sufficient for that purpose, especially when accompanied with a delivery order. Hollingsworth v. Napier, 3 Caines, 182; Wilkes v. Ferris, 5 Johns. 338; Bailey v. Johnson, 9 Cowen, 115; Lucas v. Dorrien, 7 Taunt. 279; Greaves v. Hepke, 2 Barn. & Ald. 131; Pleasants v. Pendleton, 6 Rand. 473; Ricker v. Cross, 5 N. H. 571; Ingraham v. Wheeler, 6 Conn. 277; Atkinson v. Maling, 2 Term Rep. 465; Brown v. Heathcote, 1 Atk. 162; Gardner v. Howland, 2 Pick. 599; Story on Sales, sec. 311; 2 Kent. 500. 4. It was sufficient for the plaintiff to give notice of his purchases in a reasonable time to the respective bailees of the property, so as to exempt himself from the imputation of laches; which notice was given in this case. Putnam v. Dutch, 8 Mass. 290; Meeker v. Wilson, 1 Gall. 419; 5 N. H. 571; 6 Conn. 277. the entire legal title, but as a pledgee to the amount of his advances, he is pro tanto to be considered and protected as a purchaser. Story on Bailments sec 297; Story on Agency, sec. 361; Lickbarrow v. Mason, 2 Term Rep. 63; Root v. French, 13 Wend. 572; Holbrook v. Wight, 24 Wend. 169; Hoffman v. Noble, 6 Metc. 69; Story on Agency, sec. 111. VII. The legal title of the plaintiff in said produce is not superseded or devested by the levy of the attachment on the property. Because 1. The bank was not a bona fide purchaser. The attachment amounted only to an assignment in invitum by operation of law, and for the benefit of the creditors at large, as well as for the attaching creditor. Indiana Code, 1843, pp. 762-775; Lempriere v. Pasley, 2 Term Rep. 485; 1 Atk. 160; Nathan v. Giles, 5 Taunton, 558; United States v. Vaughan, 3 Bin. 394; Ingraham v. Wheeler, 6 Conn. 277; Ricker v. Cross, 5 N. H. 571; Portland Bank v. Stacey, 4 Mass. 663; Putnam v. Dutch, 8 Mass. 287; Badlam v. Tucker, 1 Pick. 389; Gardner v. Howland, 2 Pick. 604; Arnold v. Brown, 24 Pick. 95; note to Lanfear v. Sumner, 17 Mass. 114. 2. If the bank had been a bona fide purchaser of said produce of McQueen & McKay, instead of being attaching creditors, such purchase would not devest the plaintiff of his title, which is a legal title, with a constructive possession, fairly acquired and unaccompained with any laches in notifying the bailee thereof, or in reducing the same to actual possession, according to the course of trade; such a legal title, being prior in time, is prior in right. See cases cited under last proposition; also Caldwell v. Ball, 1 Term Rep. 205; Tuxworth v. Moore, 9 Pick. 348; Joy v. Sears, 9 Pick. 4; Turner v. Coolidge, 2 Metc. 351; 3 Mason, 114; Meeker v. Wilson, 1 Gall. 422; Phillemore v. Barry, 1 Camp. 563. The cases do not turn on the question of notice to an attaching creditor, but whether there has been such a delay in taking actual possession as to furnish evidence of fraud. 3. If the attachment had the character of a purchase, it would not be bona fide and without notice, within the reason of the rule, because McQueen & McKay were out of possession, actual or constructive, which put the purchaser upon inquiry, *and amounted to con- [*395 structive notice of the prior legal transfer to the plaintiff. Lucas v. Dorrien, 7 Taunt. 278; 1 Gall. 422. 4. The bank, therefore, under the circumstances, took only the interest of McQueen & McKay then existing, and subject to all equitable, as well as legal, interests then outstanding against it. VIII. The only interest of McQueen & McKay was the equitable beneficial interest in the 5. The effect of the whole was to give the residue of the proceeds of the produce when 394*] plaintiff the legal title in the produce, sold by the plaintiff on the consignment to him, and not a mere lien thereon, or a mere pledge after satisfying thereout his advances and of the property; and this is the effect whether charges on sales, which alone was attachable, the transfer be governed by the law of New and which did not warrant the officer in taking York (which is properly applicable to it), or by the property. Story on Bailments, sec. 353, the law of Indiana. Story on Conflict of Laws, and cases cited; Badlam v. Tucker, 1 Pick. secs. 316 to 325; Black v. Zacharie, 3 Howard, 399; Indiana Code, sec. 383. p. 744, and sec. 512. 39, p. 770; Evans v. Darlington, 5 Blackf. VI. If Gibson be considered as not having 320. IX. The rights of the plaintiff are not weak-, law, or usage, giving such force to warehouse ened by his having purchased the property out receipts. of the State of Indiana, to be sent and sold in New York, according to the course of trade. Blake v. Williams, 8 Pick. 307-314; Black v. Zacharie, 3 Howard, 514. X. If there had been any danger that the plaintiff would have absconded with the property, to the injury of the equitable lien of the bank and other creditors, acquired by the attachment (which is not shown or pretended), their remedy would then have been in equity only. XI. The warehouse receipt accompanying the transfer to Gibson was equivalent, under the usage of trade, to a bill of landing, and its transfer devested all outstanding title unknown to Gibson, whether legal or equitable. Because, 1. Such instruments are assignable. Indiana Code, p. 576; Laws of New York of 1830, p. 203, sec. 5; 2 Rev. Stat. p. 60. 2. The case states that it was usual and customary to make advances on the assignment of proper evidences of title. Noble v. Kennoway, 1 Doug. 512; Zwinger v. Samuda, 7 Taunt. 265; Lucas v. Dorrien, Ibid. 288; Barton v. Baddington, 1 Car. & Payne, 207; Keyser v. Suse, Gow, 58. 2. Although Gibson should be regarded as an absolute purchaser, yet, as the attachment was levied upon the pork and flour before he or any agent of his had actual possession of them, Gibson cannot recover. A fortiori if Gibson's claim be only a lien. 3. If the pork and flour be regarded as a security to Gibson, for the repayment of the advance, nevertheless, as neither Gibson nor any agent of his had the actual possession of the pork and flour before they were attached, nor had the instruments by which his lien on the pork and flour was created been recorded in Allen County, Indiana (the place where the pork and flour were), within ten days, according to the Rev. Stat. of Indiana, 1843, p. 590, sec. 10, such assignment to Gibson is void as to the State Bank. 4. Whether Gibson's right be regarded as a lien on, or a purchase of the pork and flour, still, as neither Gibson nor any agent of his had the actual possession thereof, before the attachment was levied, Gibson cannot recover. 5. If Gibson be regarded a "deemed pro tant) purchaser," McQueen & McKay must be re garded as owners of the residue. This con The argument filed on behalf of the defend-dition of things necessarily makes [*397 ant in error was an elaborate support of the following points: 6. If Gibson's right be only a lien, although such lien may have attached on the pork and flour before the attachment of the State Bank was levied thereon, nevertheless the interest of McQueen & McKay therein is attachable. Mr. Chief Justice Taney delivered the opinion of the court: Gibson and McQueen & McKay tenants in common of the pork and flour. If this be true 1. If Gibson's claim be in the nature of a lien, (which we regard as unquestionable, if Gibson he cannot recover, unless he, or his agent for be a "pro tanto purchaser"), the interest of the purpose expressly authorized, had the McQueen & McKay in the pork and flour is actual possession of the pork and flour before attachable, and the officer attaching can, by the attachment was levied. Under the circum-virtue of the attachment, take the whole of the stances of this case, a constructive possession pork and flour, even out of the actual possescannot be conferred, for the following reasons: sion of Gibson, and deliver it over to the pur1. Because the bills of parcels, etc., in this chaser, and Gibson cannot replevy them from 396] cause, do not amount to warehouse the officer or the purchaser under the attachreceipts; for instance, the memorandum of ment. Hanna, Hamilton & Co. is a mere receipted bill of parcels, and a guarantee of the inspection of the pork at Toledo; it does not even acknowledge the pork to be in store. Should the pork and flour not pass inspection, McQueen & McKay would not be bound to accept them. The bills of parcels, with their indorsements, etc., amount to nothing more than mere orders to deliver the pork and flour to This case is one of much interest, and has Gibson; and until the Nicholses, and Hanna, been very fully argued. There is, however, Hamilton & Co., were presented with such or- but a single question in it, and that is, whether ders, and they had accepted the same, and as- the property in dispute was transferred to the sented to hold the pork and flour for Gibson, as plaintiff in error, and vested in him, by the his agents, his lien could not attach; and the indorsement and delivery of the warehouse attachment having been sued out, and levied documents in the manner stated in the record. on the pork and flour in question before they The fact that McQueen & McKay by fraudreceived orders in favor of Gibson, the attach-ulent means obtained the money from the bank, ing lien of the State Bank must prevail. 2. with which they purchased the pork and flour, Although the memoranda may be considered as is not material in the decision of this question. warehouse receipts, yet, there being no legis- the property as its own, upon the ground that The bank in these proceedings does not claim lative enactment or usage in New York making it was purchased with money fraudulently obthe transfer and delivery thereof to confer a tained from it. If it had intended to assert its constructive possession of the pork and flour, title as owner, it should have proceeded by their transfer and delivery to Gibson cannot have some appropriate action to recover the prop that effect. 3. Although, by the laws of New erty itself, or the value of it in damages. But York, these memoranda might confer a con- the bank presents itself in the character of s structive possession on Gibson, yet, as the pork creditor, seeking to collect its debt by an atand flour were, at the time of the delivery of tachment against the property of its debtor. those memoranda to Gibson, at Fort Wayne, in And the claims of both parties, plaintiff and Indiana, the transaction must be governed by defendant, rest upon the admission that the the laws of Indiana. In Indiana we have no pork and flour were the property of McQueen |