delivered the opinion of the court.
The defendant Gale was sued as principal, and the defendant Millaudon as a surety on a bond given in the suit of the present plaintiffs vs. Buckles, (ante, vol. 2, 417,) on a claim of a quantity of bale rope attached in the said suit.
They pleaded, that at the time the attachment was levied, the defendant Gale believing himself the owner of the bale rope, put in a claim thereto. That the sum of one thousand two hundred and ninety-eight dollars, mentioned in the bond, was the appraised value in New-Orleans of the bale rope, *186without any deduction for the charges of transportation, as freight, drayage, storage, insurance, commissions, &c. which, having been paid by the claimant, constituted a fair charge in his favor against the property attached, to the amount of two hundred and forty-five dollars and eighteen cents, leaving the sum of one thousand and fifty-three dollars and eighty-two cents, as the nett proceeds of Buckles’s property liable to the attachment, which the defendants have tendered to the plaintiffs, and which they have refused to receive, and they have, ready to be deposited, when and where the court may direct.
There was a verdict and judgement against the defendants, and they appealed.
The record shows, that the counsel for the plaintiffs, introduced by the defendants, deposed that some time ago (he thinks before the filing of the answer) he had a conversation with the defendants’ counsel, who offered a check for the balance admitted to be due, which he refused to receive. If he had deemed it proper to accept the sum admitted, he would not have accepted the check, but would have required a deposite of the money.
The record of the attachment case against Buckles was given in evidence.
The defendants, at the trial, offered to prove the disbursements stated in the answers, which was disallowed, on the ground that the decision of the Supreme Court, in the case cited, had fully settled the controversy. Whereupon, they took a bill of exceptions.
The plaintiffs’ counsel has contended that it appears from the record in the attachment case, that Gale and Buckles had dealings together, in the course of which the latter shipped the bale rope to the former, but it was attached for a debt of the consignor for a much larger sum than it was worth. On the receipt of the bill of lading, the consignee intervened and bonded the.rope. At the trial he offered no evidence of 'ownership, but endeavored to establish a claim to a lien for advances, and failed.
A consignee called in as a garnishee, has tainSlthe°mowhich he has paid for freight, insuranoe’That in the bond sued upon, the obligors bound themselves to pay one thousand two hundred and ninety-eight dollars, if judgement be obtained against Buckles, and a judgement was given for a much larger sum, and the obligors cannot now claim a credit, which if the defendant Gale was entitled to, he might have claimed in the former suit to which he made himself a party.
The counsel for the defendants has answered, that the only question in this case, is, what did the plaintiffs attach? and the answer must be, all the right, title, and interest, of their debtor, in the bale rope; in other words, the value of the bale rope in Kentucky, where it was shipped. The difference between that value and the value in New-Orleans, results from the freight, insurance, drayage, storage, &c. The party who has paid all these charges, has an interest to these amounts distinct from that of Buckles, and which is not, therefore, liable to be attached by the creditors of the latter.
We have not acted on the bill of exceptions, because, . . admitting that the sums stated m the answer were actually paid by the defendant Gale, yet he is unable to show that there was a balance due to him, at the time of the attachment. The district judge concluded, and we agreed with him, that there were unliquidated accounts between him and Buckles, and it did not appear in whose favor the balance stood. Gale had, then, no lien. Buckles was the absolute owner of the bale rope. He might have alienated it, and whatever the debtor can alienate, the creditor may attach.
It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be affirmed, with costs in both courts.