Smith v. M'Call , 14 La. 7 ( 1839 )

Eustis, J.,

delivered the opinion of the court.

On the 2'M of December, 1837, the plaintiffs attached nineteen bales of cotton, as the property of one of the defendants; they were delivered to the intervening parties on bond. On the 3d of January, they filed their petition of intervention, in which they allege, that William, H. M'Call, one of the defendants, is indebted to them in the sum of two thousand two hundred and fifty dollars, for advances made by them on cotton shipped by him, particularly upon the shipment of nineteen bales, made by the said M'Call, to the house of B. D. and J. B. Walker & Co., of Mobile, and by them shipped to the house of Walker, Knight & Co., of this city: both houses being composed of the same persons, the intervening parties in this suit; that they have, a privilege on the cotton for their advances; that it was unlawfully attached in J this suit, as previous to the attachment the bill of lading had been' received by them, and the cotton was in their posses-' sion. They deny that the cotton ever was the property of J J r r J C. D. M'Call & Co.: they pray that the cotton be delivered to them, and held subject to their privilege, and for damages against the attaching creditors, and for general relief. On the trial of the cause, the petition of intervention was dis- ...... . . , missed, and the intervenors have appealed.

There is no evidence which shows that either the Mobile or New-Orleans house of the intervenors, lawfully advanced, or were authorized to advance, any money on the shipment of cotton attached in this case. If they contracted any engagements for the owner of the cotton before it was sold, they have shown no instructions to warrant them in such an act. The letter of the owner, Win. H. M‘CalI, orders them to sell the cotton and lay out the proceeds in groceries: if they » t i i ♦ • should expend more than the proceeds, he promises to remit them cotton by the first boat. It is evident that' he did not contemplate his factors making any advance to him.

It is, therefore, ordered, adjudged and decreed, that the ■ judgment of the court below be affirmed, with costs in both courts.