
    ZACHARIE ET ALS. vs. O’BEIRNE ET ALS.
    APPEAL PROM THE COURT OP THE FIRST JUDICIAL DISTRICT.
    A mortgage on one third of a certain steamboat was given in Kentucky, to secure the mortgagee residing in this state, for advances made and to be made here for the mortgagor! the mortgage was forwarded to the mortgagee, to whom the boat was consigned, and in whose possession she was when attached. It was held that this was an inchoate mortgage, to take effect only on the acceptance of the mortgagee, that it is to be governed by the laws of this state, and that not having been duly recorded here, it cannot have effect against the creditors of the mortgager.
    The consignee has no privilege on a steam boat for monies which he has advanced on the boat.
    An opposing creditor connot urge a claim in the Supreme Court which was not stated in his opposition in the inferior court.
    On the 23d of March, 1833, J. W. Zacharie & Co. instituted a suit by attachment against the defendants. Among the property seized under the writ was the defendant’s interest in the steam boat Watchman.
    It appears that O’Beirn, Shannon and Baldwin were in partnership, that they owned one third of the Watchman, and that on the 25th of September, 1832, Baldwin sold out to O’Beirne & Shannon, the'new firm. On the 8th of November, 1832, a new enrollment of the Watchman was issued, by which it appears that John Harrington, Joseph Barbour, John O’Beirne and Patrie Shannon, are the owners. There is an endorsement that Harrington, on the 19th of September, 1832, has mortgaged his interest to O’Beirne, Baldwin & Co., to secure one thousand four hundred thirty-nine dollars and fifty cents.
    On the 3d November, 1832, O’Beirne & Shannon wrote to Sloo & Byrne as follows:
    “We have this day valued on you in favor our mutual friends, Messrs. Stewart & Sloo, at four months, for three thousand eight hundred dollars, predicated on an arrangement of our interest and claim on the steamer Watchman, which bill you will please honor and debit us with. The boat is consigned to your house; her original papers, accompanied with a power of attorney, &c., will leave about the 7th. We will write you fully our views, and submit her future destination to your discretion.”
    On the 9th of November, 1832, O’Beirne & Shannon addressed to Sloo & Byrne a letter, fromw hich the following extracts are taken:
    “Mr. Robinson will hand our mortgage to you on one third of the boat, also the mortgage we hold on Capt. Harrington, 3d., and her enrollment, which you will please hold until you receive from us Mr. Barbour’s power of attorney to sell his third. We are desirous that the boat, until you are fully prepared to effect a sale, should be kept below, and put snto some trade, where she might, in your judgment, make something. We have her insured here for one month from this date, leaving it with you to effect insurance at New-Orleans in the sum of eight thousand dollars, if practicable, after the 9th of December next, being the day on which the policy here will expire.
    “ If you can obtain at the rate of seven thousand five hundred or eight thousand dollars for two thirds of the boat, with the amount of our mortgage on Harrington’s third added, we would be willing to sell; in any disposition you make, the owners will settle our account here with each other, you giving us an account current to date of sale. Capt. Harrington will comply with any advice which you may be pleased to give, as to the trade and destination generally. We refer you to Mr. Robertson for further particulars.”
    There is a power of attorney to sell, also a mortgage to Sloo & Byrne, of one third of the boat, and an assignment of Harrington’s mortgage, dated 8th of November, 1832. These papers are drawn in the common law form. The mortgage was to secure payment of the draft and any future advances or acceptances.
    
      On the institution of the attachment by J. W. Zacharie & Co., an opposition was filed by Sloo & Byrne, alledging preference by mortgage, a delivery of the boat into thei possession, and the amount of their claim under it.
    The plaintiff had judgment for four thousand one hundred ninety-eight dollars and eighty-three cents, against John O’Beirne and Patrick Shannon. The opposition was dismissed.
    After an ineffectual attempt to obtain a new trial, the opponents appealed.
    Worthington, for opponents and appellants, contended that:
    1. The judgment below was erroneous, because the opponents were as mortgagees in possession, entitled to a privilege on the steam boat Watchman, a'ccording to the terms of the mortgage.
    2. Because as consignees, even, they would be entitled to a privilege for advances.
    3. Because as separate creditors of O’Bierne & Shannon, in whom the title reposed, they were in equity to be preferred to the creditor, of O’Beirne, Baldwin & Co.
    
      Strawbridge, for the plaintiffs and appellees.
   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.  