The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1851-07-01

Esys, Ms!Is Measles i Spain. sdH .,.
were under Zen Of &C. nns
Fourth District Court.
Judge Strawbridge.
cAM'ssII RIoK Wnn r. AE,m1D PENN
The experience of the past seems lost to the
present, the same difficulties, which occurred
more than thirty years ago, as reported in the 9th
volume of Martins Reports, 80, Erwin Us. Torrey,
would not have been of such frequent occ urrence.
in our day. The Importance of possession, in such
cases, is yet to be learned
There are several matters to be examined, in this
case before we reach the merits.
l. 1t was commended that, as the money was ad-
vsnced by the plaintiffs, before they had posses
sion of the cotton there could be- no lien, the plain.
tifs having trusted TO the personal security Of
Simpson. On examining into the subject, find
satterthwate, 2 Burr, 2O4 and again, in sandi-
man Us. Stiens. T. r. 49, 1888; in Turpin Us Rey
nods, IA L. r. AT; and in Power vs. Akin, 10
l." X. 1928; and, in principle, ! DO not see why il
provides, in the title of pledge, (where possession
Is essentially that if at the time of the contract
the debtor had not the property in the thing pledged,
but has acquired it since, by what title soever, his
ownership shall relate back TO the time Of the
tract and the pledge shall stand good" The same
principle is applied to mortgages, and it is well
settled that though the mortgage fails to record
his pledge within the ten days, he does not lose
his mortgage, but it does not operate against those
/ acquiring rights in the mean time. 1t binds the
properly only, If it is recorded. hold, therefore,
that, if the party TO when the law gives lien
HAS it not in possession till afterwards, the lien
Il oes attach so soon as he obtains possession, and
; sIates 10 the time of conractsavng, always, the
1ghts of others, acquired therein BEFORE
2. One party contends that delivery of part
nder such contract, ia delivery of the whole !;
While the other contends there can be no such de-
very Of any part, until the last bale that the sale
not complete until then, and that If the part de.
vered perish, the loss is on the vendors. | cannot
dept either of tssse propositions, though the first
gas at one time the principle Of the common law
Kent, 494. Hanson Us. Meyer, 6 East, GA. In
Pickering, contrary rule is laid down, and in
ur own reports, the old case of Dunford Brooks
yndic 3, Martin 222, it was held that delivery of
pnrt was not the delivery Of tie whole, and the
Z curt refused rehearng the question. Ibid. 269.
iut no doubt was raised that the delivery of the
ptart WAS valid indeed it would be difficult to find
al reason why merchandise should not be delivered
i'y insalmens, as why the price should not be paid
in the same manner. Suppose Campbell had
chosen to ship this property on two vessels, and
that the first should perish by fire : Surely the
council has not exercite ed his usual research, when
lie says the loss would be for the vendor, because
the whole was not delivered, and the sale was moi
complete. The reasons on which he relies, are,
think, unsound viz, that the cotton being sold by
the list, when various qualities, worth diffsren,
prices, are bundled together and sold at one price
cannot alter the law of the land il merchants fol
ness, they must lake with it the inconvenience
they cannot suppose the law must bend 10 theI
views No different principle of the contract o.
sale, regulates 1t differently in the different prac
tees.
3. 1t was contended that the sale was made
direct from Bradley to Campbell and that he nigh
recover the price from the latter. | must agair
decline adopting this argument-the proof leavel
doubt whatever that there was a sale from
Bradley to Simpson, and contract between
Simpson and Campbell to consgn the cotton unde
advances 10 the house Of the latter. Campbell die
not buy at nil--he paid price, nor was Their
any agreement i-esut prize, and when the sal
was broken up it on account Of Simpson
embarrassment. Had the sale been to Campbell
there would have been no question about the de
livery, but it was from the knowledge that tn
cotton sold TO Simpson, was undergoing deliver
40 Campbell that eagerness arose to stop the de
;nivery And here let it be said that much of tn
difficulty in the arises from not keeping tn
Two transactions, and the double delivery conse
;ftuent thereon, separate and dctinct; for thong
h5radey, from prudential motives, kept the transfe
20 Simpson subject to the order of his broker tina
cannot invalidate the sale, and when the broke
not only by virtue Of his general power but wit
the special assent of Bradley, transferred it o
the books to Campbell, it was the first step of
delivery to Simpson as well to him, and it wa
followed step by step in carting, marking an
weighing, so as to complete the delivery 10 bot
at the same time.
But in relation to Campbell, it is to be observe
that it is not essential to his pretensions, that tn
full and complete title should pass to Simpson
that it is enough for him that Simpson had Dol
session which prevented him having power ovt
the property, is abundantly shown by the cases
Erwin Us. Torrey, M. r. and Laughln .
Canal, IL Rob, 140; and this natural possesso
suttices to protect him who advances on it, thong
4 the sale be not perfect, even the price is unpai
\ Now, such conceive to have been the position
Campbell at the time the sale was stopped thel
was every circumstance to lead him to the bell
that the property was bona ide Simpsons, and ii
IA fact OF transfer to him on the books and the weg
ing by the weigh-master of Bradley's house h
broker, who is interested with the shipment "a,
orders to the Press to compress and send on boa
the cotton, on the 9th; they had done by then
selves and agents every thing essential to compile
the delivery which, as have said, was from the
Immediately to Simpson. They evidently look,
to him for their pay, and felt their risk when
check was refused. II negligence is to weigh
the case, l must say think it lies at the door
Bradley he had been warned about Simpson
position, though it must be admitted that Cam
bell was in scarcely better position from havir
advanced his money without possession. If Il
position assumed above that his lien attaches whe
ne fairy acquires possession, and this he did, sin
it was by the assent of Bradley, his right to t
four hundred and sixty bales, the delivery of viii
was complete, must be sustained.
There Is one point of the case | regret to mott
IN the receipt OF the ships receipts by the broke
and delivery OF them to Bradley. This was
'nco"' ana hiscnleVous interference IN matte
which were not belonging to his duties, to give
no harsher term. As the tree had fallen, so must
he, and the rights of the parties be tested by
facts as they then stood, these receipts were eqr
to bill of lading-this could not be obtained wi,
out them, it was Campbell's title and he could ,
thus be deprived of it, Russell on Liens, 2O4
For these reasons, it is adjudged that plant
recovertr from defendant and warrantors the four h,
dred and seventy bales weighed and marked, a
@ that the remainder of the cotton be delivered
Bradley u Wilson. That the costs of suit IN
- the time of the call in warranty be paid by def
- dant, with recourse on Bradley q Co., and
costs of suit after the call in warranty bv Brad
& Co.
Third District Court-Jldge Kennadv--Ao,o