delivered the opinion of the court.

This being a proceeding under the 13th subdivision of the 1st section of the act providing for suits by attachment, it is necessary that the plaintiff should show itself within the purview of the statute. The words are, “ where the debtor has failed to pay the price or value of any article or thing delivered which by contract he was bound to pay upon the delivery.” (R. C. 1855, p. 239.) We do not see how, within *401the meaning of tlie act, the Express Company can be substituted for the vendors of the goods. The question is not whether the company may not sue, but whether it is the party to whom the law has given the remedy by attachment. We do not see that Ubsdell, Pierson & Co. have, by any act of theirs, assigned the contract to the Express Company, even if it were competent for them so to do with the view of entitling it to the remedy by attachment.

We do not know on what principle the instruction given against P. Cunningham can be sustained. There is not the least evidence of a partnership between him and B. Cunningham at the time the goods were sold for which this suit is brought. If, as the instruction assumes, he did mix his goods, which were attached, with B. Cunningham’s, to defeat plaintiff in recovering his demand, we do not know on what principle such conduct woiild have rendered him liable to an action which had accrued a long time previously. Mixing his goods fraudulently with those of another may have affected his right to them, but we do not see how it subjected him to a suit on a demand due a long time before there was any mingling of the goods.

Judgment reversed, and judgment for defendants ;