attachment bond, and other informalities in the proceedings. He permitted the plaintiffs to offer in evidence their acknowledged account against the defendant, and when the intervenor objected thereto because the necessary revenue stamp was not attached to said acknowledged account, the district judge permitted the attorney of plaintiffs to affix thereto a five-cent United States revenue stamp, and file the same in evidence. To all of which rulings the intervenor took a bill of exceptions. We think the district judge did not err in his rulings, and the bill of exceptions was not well taken.

In the absence of fraud and collusion, the intervenor will not be permitted to urge defenses which are personal to the defendant. Questions of the admissibility of the testimony and the formality and regularity of the pleadings are matters for the consideration of the defendant; and if he saw fit to waive them, no other party can complain.

In the case of Lee v. Bradlee, 8 Mart. 55, where a third arty intervened in the attachment suit, claiming the property, this court said: "A third party has stepped in, averring the goods attached to be his property, and demanding restoration of them. The claimant has not only attempted to prove the property to be his, but he has been acting the part of the defendant by undertaking to show that the attachment ought not to have issued, and that after it had issued it was imperfectly executed. The only thing which we conceive a claimant may be permitted to do is to show that the property attached is verily his. As soon as he succeeds in that, his part is at an end. But a claimant has surely no right to show any irregularity in the suit in which he intervenes for the sole purpose of rescuing the property. Whether the plaintiff, the court, and the sheriff, have been acting legally or not, is none of his business."

The only difference between this case and the one just referred to is, in that case the intervenor claimed to be the owner of the property attached, while in this the intervenor claims that he has a mortgage on the property attached. The principle is the same. The same doctrine is affirmed in the case of West v. His Creditors, 8 Rob. (La.) 123, in which this court said: "An intervenor who claims property in controversy between other parties cannot contest the plaintiff's claim against the defendant, nor urge any irregularities in the suit." In the case of Yeatman v. Estill, 13 La. Ann. 222, it was held that "it is no longer competent for the intervening party

AM. DEC. VOL. XCIX-46

to object to the mode in which the writ of attachment has been executed." The intervenor admits that plaintiffs' attachment was levied prior to the registry of his mortgage. Without inscription, his mortgage had no effect against third persons: Civ. Code, sec. 3314. As to plaintiffs, the property of the defendant stood free of encumbrance the day their attachment was levied, because the intervenor had not inscribed his mortgage. Plaintiffs acquired attaching creditors' privilege on the plantation reverting from the judgment to the day the attachment was levied: Code Proc., secs. 264, 265; Beck v. Brady, 7 La. Ann. 1; Tufts v. Carradine, 3 Id. 430.

It is therefore ordered that the judgment appealed from be affirmed, with costs.

INTERVENTION, RIGHT OF IN ATTACHMENT SUITS: Speyer v. Ihmels, 81 Am. Dec. 157.

INTERVENOR STANDS IN CHARACTER OF PLAINTIFF, and is governed in his pleadings by the rules of practice applicable to plaintiffs in principal demands: Clapp & Co. v. Phelps & Co., 92 Am. Dec. 445.

INTERVENORS, Rights of, GeneRALLY: Brown v. Saul, 16 Am. Dec. 177– 184, citing the principal case at page 180.

INTERVENOR CAnnot Urge IRREGULARITIES in the suit, such as the insufficiency of the bond or affidavit on which attachment issued: Carroll & Co. v. Bridewell, 27 La. Ann. 241, citing the principal case.

CHAPMAN V. NEW ORLEANS, JACKSON, AND GREAT NORTHERN RAILROAD COMPANY.

[21 LOUISIANA ANNUAL, 224.]

BURDEN OF PROOF IS ON COMMON CARRIER to excuse non-delivery of freight received for transportation.

JUDGMENT APPEALED FROM WILL BE AVOIDED and annulled if erroneou and the judgment which should have been given will be rendered.

THE opinion contains the facts.

Marr and Foute, for the plaintiff and appellee.

Simonds, for the defendants and appellants.

By Court, HowE, J. The plaintiff sues to recover the value, at Jackson, Mississippi, of a shipment of sugar and molasses delivered to the defendants, at Hammond Station, on the 25th of April, 1863, to be transported by the latter to Jackson. The shipment of the goods is admitted, and the non-delivery at the place of destination. It also appears that the freight

money was paid by plaintiff to defendants at Tangipahoa, a few miles beyond the point of shipment. The defense is, that "at or near Tangipahoa Station the progress of said merchandise was arrested by 'Grierson's raid,' and the same for security from devastation by federal troops was stopped at said station, and by the impossibility of proceeding farther on the road in consequence of military orders as well as by destruction of the road; that while said merchandise was then and there at Tangipahoa, the same was destroyed by a military force acting under orders of Colonel Dumontiel, of the confederate army, and lost by a vis major, by circumstances beyond the power of defendants to prevent, and without any fault on their part."

There was judgment for plaintiff for the sum of $1,274.33, in gold, or its equivalent in United States treasury notes, with interest thereon from April 25, 1863, and defendants have appealed.

The reception of the property by defendants as carriers for hire imposed on them the burden of excusing its non-delivery, and the question whether the record establishes any legal excuse is mainly one of fact. The goods had apparently arrived as far as Tangipahoa on the 25th of April, 1863. From that place to the point of destination they might have been carried in a few hours, the distance being about one hundred miles. They were there unloaded from the cars, placed on a platform, and, about the 16th of May following, destroyed, as a witness informed us, by "confederate soldiers, citizens, and negroes, who knocked in the heads of the sugar hogsheads and helped themselves, and carried off as much as they could." The witness continues:

"Colonel Dumontiel left the same day before the destruction with a few soldiers, being chiefly, if not entirely, his staff. The federal cavalry came into Tangipahoa in less than an hour after the destruction of the sugar, and they burned the depot and platform, and what sugar and molasses had not been taken off before they came was burned with the depot." This cavalry appears to have been, not Grierson's, but a force that came up from New Orleans.

F. Dumontiel testifies that, during April, and up to the 16th of May, 1863, he was in command of the post of Tangipahoa, and saw sugar and molasses lying out at the depot there. He states that the road was cut by Grierson's force between Tangipahoa and Jackson about the latter part of April, and cer

tainly prior to the 1st of May. He does not fix the date, nor does he confirm the plea that the goods were destroyed by his orders. He states that before the road was cut by Grierson he had orders not to permit private freight to be transported on the Jackson railroad, and notified the railroad officers or employees at Tangipahoa of such military orders, but of these orders and that notification he does not fix the date.

We have been referred by defendants to a "pictorial history of the war" to show that the Jackson railroad was cut by Grierson's force on the 28th of April, 1863. If we admit that the date can be fixed by such method, we fail to discover in this or in the other facts of the case that the defendants have established any sufficient excuse for the non-delivery of plaintiff's property. There is no proof whatever that the property was destroyed by orders of Colonel Dumontiel, and it is not necessary, therefore, to determine what effect such orders would have had in law, if given and obeyed. There is no proof when military orders were given to forbid the transportation of private freight over the Jackson road, and it is unnecessary, therefore, to consider what effect they would have had in law if they had been connected with the date when the goods arrived at Tangipahoa. Admitting that the road was cut by Grierson's raid on the 28th of April, 1863, we find that three days were available to the defendants to convey the property from Tangipahoa to Jackson, a journey of a few hours. The goods arrived at Tangipahoa on the 25th of April, and the freight money was there paid by plaintiff to defendants; and the record does not disclose any reason sufficient in law to justify the unloading at that station of the plaintiff's property, and the exposure of it to the destruction which came some three weeks afterward.

The judgment would be in all respects affirmed, if regular in form, and for the proper amount of interest. As it is admitted by plaintiff's counsel that the rights of his client would be satisfied by a judgment in lawful money for the sum fixed by the court as the value of the property, and as interest is due, not from the time of shipment, but from judicial demand (Clines v. Frisbee, 5 Rob. (La.) 192), it is ordered and adjudged that the judgment appealed from be avoided and annulled, and that the plaintiff have judgment against defendants for the sum of $1,274.33, with five per centum per annum interest from February 1, 1866, with costs of the lower court, and that the plaintiff pay the costs of the appeal.

Rehearing refused.

BURDEN OF PROOF IS ON COMMON CARRIER to excuse loss of goods: Steele v. Townsend, 79 Am. Dec. 49, and note 57; Western etc. Co. v. Newhall, 76 Id. 760, and note 776.

POWER OF APPELLATE COURT to alter judgment: Brownell v. Winnie, 88 Am. Dec. 314.

BLUM & Co. v. MARKS. Wright, Brinkerhoff, & Co. v. MARKS. SONNEBORN & Co., HERMAN, AuGUSTE, & Co., HERZOG & Co., DRYFOOS & Co., INTERVENORS.

[21 LOUISIANA ANNUAL, 268.]

LOUISIANA COURT WILL RECOGNIZE RIGHT OF STOPPAGE IN TRANSITU arising from a sale of goods in New York to a vendee in New Orleans, who be comes insolvent before the goods are delivered.

CLAIM OF VENDOR TO EXERCISE RIGHT OF STOPPAGE IN TRANSITU is superior to the lien of attaching creditors, when the former shows that he had the right of stoppage, and duly exercised it.

VENDOR MAY EXERCISE RIGHT OF STOPPAGE IN TRANSITU when he proves that at the time of the sale he was not aware of the insolvency of the vendee; and the discovery of such insolvency before delivery entitles him to exercise the right, though the goods are attached by creditors of the vendee.

THE opinion contains the facts.

Phillips and Levy, and Hornor and Benedict, and Tissot, for the intervenors and appellants.

Cooley, for the plaintiffs and appellees.

By Court, HowE, J. The plaintiffs in these cases, residents of the city of New York, attached on board the steamship Star of the Union, upon her arrival at this port on the 24th of April, 1866, certain merchandise which had been sold to the defendant by the intervenors about the twelfth day of the same month, and consigned on the steamer above named.

The obligations on which the plaintiffs sued were contracted February 23, 1866, and were for goods sold at a credit of sixty and ninety days, and upon notes at forty-five and sixty days.

The property seized consisted of six cases of merchandise. They never came into the active or constructive possession of the defendant, to whom they had been shipped. It appears that he had absconded after the purchase of the goods and before their arrival, and the deputy sheriff executed the write of attachment at the moment the vessel touched her wharf in New Orleans.