
    HERMANN & SON vs. LOUISIANA STATE INSURANCE CO.
    Eastern Dist.
    January, 1835.
    APPEAL FROM THE COURT OP THE FIRST JUDICIAL DISTRICT.
    Where A takes out a. policy of insurance on a vessel, for whom it might concern, takes in a partner in the ownership of the vessel insured, and afterwards transfers the policy by special endorsement in his individual capacity to the plaintiffs, who show a total loss, payment of the loss to them, will liberate the underwriters. They contracted with A, and whether as principal or agent is immaterial.
    Where the plaintiffs and intervening parties unite in a prayer, that the defendant be condemned to pay the sum demanded, and his liability is established, he will be required to deposit the money in court, to abide the final decision between the claimants.
    This is an action to recover of the Louisiana State Insurance Company, the sum of four thousand dollars, on a policy of insurance taken out by Alexander Baron, on the schooner Eliza Thomas, “ for whom it might concern.”
    The plaintiffs allege they are the transferees of said policy, and entitled to recover its amount. That the interest and-ownership of said vessel was in Baron and Dufart, which has been lost by the perils insured against, and abandoned to the underwriters, of which they have had due notice.
    The insurance company pleaded a general denial; admitted the execution of the policy, but specially denied that Baron and Dufart had any interest in the vessel as alleged, or that any proof was ever made thereof. They aver that any amount which may be due on said policy, has been seized under writs of fieri facias, one in the case of Kohn & Bordier vs. A. Baron, and the other in the case of Delpeuch vs. Dufart, of which matters they pray judgment and for general relief.
    The evidence of the case shows, that on the 10th July, 1833, A. Baron caused insurance for four thousand dollars, for account of whom it might concern, to be made on the schooner Eliza Thomas, and on the 7th March, 1834, transferred the policy by special endorsement, in his individual capacity to the plaintiffs.
    A loss within the policy has been admitted and adjusted, at three thousand nine hundred and twenty dollars. No proof of interest was made until the present time.
    The creditors of Baron and those of Dufart have intervened, but the case was tried as between the plaintiffs and the insurance company.
    The plaintiffs produced in evidence an act of sale from Lesseps to Dufart, dated the 10th December, 1832; also, articles of partnership between Dufart & Baron, dated the 1st July, 1833, by which the schooner Eliza Thomas was put into the partnership.
    On these pleadings and the testimony adduced by the plaintiffs, the cause was submitted to the court. The district judge was of opinion the interest in the property insured, was in Baron and Dufart, and that the former by his individual endorsement, did not transfer this interest to the plaintiffs. Judgment of non-suit was entered, from which the plaintiffs appealed.
    
      Strawbridge, for the plaintiffs and appellants.
    
      Eustis, contra.
    
   Bullard, J., delivered the opinion of the court.

This suit was instituted by the plaintiffs as assignees of a policy of insurance effected by A. Baron, on account of whomit might concern, on the schooner Eliza Thomas, and subscribed by the defendants for four thousand dollars. They allege a total loss by the perils insured against, and a transfer to them of all interest in the policy, with notice to the underwriters, and that the interest and ownership of the schooner, was in Baron and Dufart.

The defendants deny generally the allegations in the petition, except the execution of the policy, and specially the interest in the schooner as alleged, or that any proof was ever made of it. The total loss is admitted and adjusted at three thousand nine hundred and twenty dollars.

Tírpoíieykof insurance on a itmight°cmwern, takes in a partner m the ownership of the vessel wards transfers speeia^endorsementinhisinditol'the pStiffí loss payments the loss" to them will liberate the underwriters, w^^andwheieras principal material! ” im

Previously to the inception of the suit, a writ of fieri facias which issued on a judgment recovered by Kohn &' Bordier, aga¡nst A. Baron, was levied on the rights, credits, moneys, effects, &c. of Baron in the hands of the defendants. Another execution in the case of Delpeuch vs. Dufart, was levied on the same day, in the same manner, and particularly on the amount of the insurance on the schooner.

Kohn & Bordier intervened in this suit, and set up their right under the seizure in execution, denying any legal assignment by Baron to Hermann & Son. They pray that the defendants may be ordered to pay in court the amount due on the policy, and finally, that it may be adjudged to them in virtue of the seizure.

Antoine Delpeuch, the other seizing creditor, also, intervened, claiming the amount as the property of Dufart, who he alleges was the true and sole owner' of the schooner. He prays that the money may be deposited in court.

The case was tried in the District Court, only as between the plaintiffs as transferees of the policy and the insurance office; and the court being of opinion that the whole interest in the policy did not pass by the assignment of Baron, Pr°nounced judgment of non-suit, from which the plaintiffs, and Kohn & Bordier appealed.

The record furnishes such evidence of interest and a total [oss as to establish the liability of the defendants as under- ’ , ... of the policy. Whether Baron, with whom they contracted for whom it might concern, had a right to retain the w^°^e amount when received, is a question which concerns him and those who claim a joint interest with him; but that a payment of the whole loss to him, would have liberated the insurers we do not- doubt. They contracted with him, and whether as principal or as agent is quite immaterial. But if , . . . ... , . that were doubtful, the seizing creditors or his partner made themselves parties, and united in the prayer, that the defendants should be condemned to pay the loss, leaving the question still open to be decided by the court, whether Baron or his assignees are entitled to retain the whole amount, or Dufart, his acknowledged partner, to come in for a share. That question is still open, as between the original plaintiffs and the intervening creditors of Dufart, as well as whether the creditors of Baron himself, are bound by his transfer to Hermann & Son, or in other words, whether as to them, that transfer was complete.

Where the plaintiffs and intervening parties unite in a prayer that the defendant be condemned to pay the sum demanded, and his liability is established, he will be required to deposit the money in court to the fiaal decision between the claim-

We are, therefore, of opinion, that the court erred in pronouncing judgment of non-suit against the plaintiffs.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed ; and proceeding to give such judgment, as in our opinion, ought to have been rendered below: it is further ordered and adjudged, that the . jo? defendants deposit in the District Court, the sum of three thousand nine hundred and twenty dollars, with interest at five per cent, from judicial demand, and that they pay the costs of the District Court, as to the original plaintiffs only, together with the costs of this appeal; and it is further ordered, that the case be remanded to the District Court for further proceedings, as between the intervenors and the plaintiffs, all other costs to abide the final decision of the cause.  