ZACHARIE ET ALS. vs. O'BEIRNE ET ALS., 6 La. 398

Martin, J., delivered the opinion of the court. In March, 1833, the present suit was instituted by a process of attachment, which was levied, among other property, on the interests of the defendants, O’Beirne, Baldwin & Shannon,in the steamboat Watchman. The third of this boat being the property of these three defendants, who were partners in trade, Baldwin, in September, 1832, sold to his partnei’s his interest in her, and withdrew from the partnership.

By anew enrollment, taken out in November following, it appears that the boat was owned by Harrington, Barbour, O’Beirne & Shannon, and an endorsement attests that Harrington’s share had, in September, 1832, been mortgaged to O’Beirne, Baldwin & Shannon, to secure a sum of one thousand four hundred and odd dollars. In November, 1832, O’Beirne & Shannon wrote to Sloo & Byrne that they had drawn on them for three thousand eight hundred dollars, predicated on an arrangement of their interest in and claim on the boat, which was consigned to them, and her original papers with a form of attorney would be forwarded.

Three days after, O’Beirne & Shannon wrote to Sloo & Byrne that Robinson, who appears to have been the clerk of the boat, would hand them their mortgage as well as that of Harrington’s, and the enrollment; that Barbour would send them a power of attorney to sell his third. They requested that till a sale of the boat could be affected, she might be kept below in some useful trade, and Harrington would agree to any destination they might tnake of her. All this happened in Louisville, Kentucky.

The boat after-wards came to New-Orleans, and here the interest of O’Beirne, Baldwin & Shannon was attached in the present suit. a mortgage on Sata’"1 steam boat was given ** Kentucky to secure the mortresiding in this state, for mortgagon the fonvíS to 'the whom etho bolt was consigned, and in whoss session she was otIsS”iiiaíthís SdgTgMo'tako afeeptenXtlm “?s todfo|ovOTní ft¡sysuite,aw»nd that not having been duly recorded here, it cannot imvo effect against the cred-^age°f them011_ Sloo & Byrne filed their petition of intervention and opposition, and entered their claim as mortgagees of the third owned by O’Beirne & Shannon, and assignees of their mortgage of the third owned by Harrington.

Their opposition was dismissed, and they appealed. They complain of the judgment of the District Court. 1. Because it disregards the privilege they were entitled to as mortgagees in possession. 2. As well on that which as consignees they had for their advances. 3. Because as creditors of O’Beirne & Shannon, they are to be preferred on the property of that firm, to those of O’Beirne, Baldwin & Shannon. I. It does not appear to this court that the first judge erred in disregarding the claim of privilege under the mort- • r-viT** ocni gage given U’iieirne Shannon of their third of the boat.

The contract between three of the appellants, took effect x x 7 on the assent given by the appellants in this state; till then, the contract was an inchoate one only. Tnerefore, the clerk of the boat, to whom the documents were delivered, held them I°r O’Beirne & Shannon, who might have cancelled them at any time before they were received by the appellants. As a contract of mortgage, under the law of Louisiana, the mortgagees cannot avail themselves against third persons, because it was not recorded as required by the Civil Code¿ art. 25.

The clerk of the boat appears to us to have been J"L any authority, express or implied, to act for the ^ J x ' aPPedants, neither does he appear to have done any act or giTCn any as their agent- The consignee has no privilege on a steam boat for monies which ho has advanced on the boat. An opposing creditor cannot urge a claim in the Supremo ioTsiatedln 'íS inSr°omt.tlie II. It does not appear that the appellants have any privilege on the boat, as consignees. The privilege of persons of this description, is confined to merchandise. Civil Code, ClTt* 3214. HI.

The claim of preference or privilege on the property x a o x x j O’Beirne & Shannon, to the creditors of O’Beirne, Baldwin & Shannon, was not urged in the intervention or ° opposition, nor was it brought forward in the District Court, x x 0 otherwise than by a motion for a new trial. The district J judge thought it was too late, but observed, that the claim would not have prevailed, if insisted on in a new trial. The x might have shown that on the dissolution of the ^rm> new one assumed the payment of the debts of the former. In this opinion we concur.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed with costs.