
    Marshall & James v. Fall & Co. and Fall & Wilson.—Schaffer, Roberts & Co., Third Opponents.
    The transitas of goods is not atan end when they are in the hands of an agent for transmission to the vendee, and on the insolvency of the vendee, the vendor may retake them, although they may have been attached by a creditor of the vendee.
    There were two suits brought by the plaintiffs, one of which was for only $157 and interest. Held: considering the manner in wich the parties thought proper to try them in the Court below, virtually consolidating them, the motion to dismiss as to one of the suits should not be entertained against the appellants.
    PPEAL from the Second District Court of New Orleans, Reynolds, J.
    
      M. M. Oohen, for plaintiffs. Eanvner and Hays, for opponents and appellants :
   Slidell, C. J.

Schaffer, Roberts & Go. have appealed from the judgment dismissing their third opposition.

It appears the goods were sold in Philadelphia, by S. R. & Go. to Wilson, a resident of Texas, and were shipped, by a bill of lading dated October, 1852, by S. R. S' Go., marked W. L. Wilson, Marion, Texas, and consigned to M. B. Gooper & Go., of New Orleans. After their arrival in New Orleans, in December, 1852, Marshall & James brought suits by attachment against J. N. Fall & Go. and Fall & Wilson, of which houses Wilson was a partner, and garnisheed M. B. Oooper & Go. Thereupon 8. B. S Go. filed a third opposition and asserted their right of stoppage in transitu.

The insolvency of Wilson is, wo think, satisfactorily shown, independently of the testimony of Waul, to which exception was taken.

So far as the evidence informs us, M. B. Gooper S Go. were nothing more than agents for the transmission of the goods to the vendee. It cannot therefore be said that the transitas was at an end, and that the right of stoppage had terminated. See Kent’s Com., vol. 2,-p. 544. Smith’s Mercantile Law, 452; Hipp v. Glover, 15 La. 464. Cross on Lien’s, 369.

There are two suits brought by the plaintiffs; one of which is only for $15Y with interest. But considering the manner in which the parties have thought proper to try them in the Court below, virtually consolidating them, we think the motion for dismissal as to one of the suits should not be entertained against the appellants.

It is therefore decreed that the judgment of the District Court, dismissing the opposition of Schaffer, Roberts S Go., be reversed, and that the goods in the hands of the garnishees, M. B. Gooper &. Go., comprised in the bill of lading of the shipment by said Schaffer, Roberts & Go. to said M. B. Gooper S Go., be relieved from the garnishment of the plaintiffs, and that as to said plaintiffs the said opponents have leave to retake the said goods; the costs of said opposition in both Courts to be paid by the said plaintiffs.

Application for re-hearing refused.  