This action was commenced by attachment, which was levied upon property of the defendant, West, in the hands of Ward, Moffett, and Co., the garnishees. It appears, from the answer of the garnishees to interrogatories, that they had received from West a lot of two hundred and twenty nine hales of cotton ; that before the attachment was levied, they had sold and accounted to West for one hundred and twenty five bales, and that as to the remaining one hundred and four bales, they had received orders from him, at the same time, to hold them subject to the order of Benjamin Odom, the intervenor. The latter has appealed from a judgment of the Commercial Court, dismissing his intervention and claim to the property attached.

The lot of cotton existing in kind, at the time of the seizure, the only question is, whether it had ceased to be the property of West, to whom it originally belonged, and whose creditor had levied upon it. If there had been any change of property, so as to defeat the pursuit of creditors, it must have been in virtue of some valid contract, followed by delivery. The only evidence of any such contract previously to the attachment, consists in the order of West to hold the cotton subject to the order of Odom; and the garnishees, in *463answer to the interrogatories, state that they had received orders from Odom to sell the cotton, that it was accordingly sold, and that the proceeds remain subject to his order. This would have been perhaps sufficient evidence of delivery, if a contract of sale of the cotton had been shown. But it is not proved that there had been any sale of the cotton to Odom. The case would have been materially different, if, at the time that West gave orders to hold the proceeds of the cotton for Odom, it had been already sold, and the house of Ward, Moffett, and Co., had become debtors to West for the proceeds. In that case, the orders of . West to pay to Odom, would, perhaps, have sufficed.

To the petition of intervention on the part of Odom, it was answered, that the claim set up by him was feigned and fraudulent, and intended to cover the property. This plea authorized the admission in evidence of the declarations of the parties, and threw the burden of proof to show the reality of Odom’s title to the cotton, upon him. If the whole deposition referred to in the bill of exceptions, had been rejected, it would not have varied the result. The intervenor has failed to show any right to the cotton attached.

Judgment affirmed.