COMMERCIAL JURISPRUDENCE. 70 70 should at once be given to the consignee. If, on the other hand, the bill of lading direct the delivery of the property to the consignee without restriction, in such case the consignor has parted with the right to the property except a jus postlimini, to be exercised however only by a stoppage of the property in transitu, by reason of the insolvency or suspicious circumstances of the consignee, and he can invest the holder of the bill of exchange or any third person with his rights in no other way than by an assignment of the bill of lading written thereon, or by a separate instrument, which assignment should state with the minutest particularity its whole object and purpose, and to avail the assignee to its full extent, he should give notice of it to the consignee, otherwise a bona fide purchase from the consignee with the bill of lading indorsed to him, would hold the property. The assignee becomes invested with all the rights and equities of the consignor, and may exercise the right to stop the goods in transitu, or any other right which the consignor had after the ship ment. We close with one remark upon the practice of transferring bills of lading by indorsement to any but a bona fide purchaser of the goods. The courts have long sought to discourage it, and with the greatest reluctance have sanctioned the usage and based upon it a rule of law. The main objection has been, that it made these instruments transferable and negotiable in the market, like a bill of exchange, which manifestly is foreign to their original design and use. The more judicious practice would be in all cases to qualify the effect of the indorsement by a minute and particular statement of its purpose and intent. A due attention to these suggestions would prevent much useless and vexatious litigation. MISCELLANIES. THE CASE OF LITTLE & CO. VS. BLOSSMAN AND DE TASTET. Supreme Court of Louisiana.-Eustis, C. J. THIS action is brought on certain bills of exchange drawn on cotton shipped from this port to Liverpool and accompanied by bills of lading. It resembles the suit of Lanfear & Blossman, but in this case the holder of the bills has sued the drawees of the bills as well as the drawer; an attachment was issued against De Tastet & Co., and they have been made parties defendant. The facts in relation to the refusal to accept the bills unless the bills of lading were delivered up, do not differ materially from those in Lanfear's case. Baring, Brothers & Co. were the agents for the plaintiffs. But for the course pursued by those gentlemen, the bills would have been accepted and paid. The cotton covered by the bills of lading was sold by Baring, Brothers & Co. more than a year after the bills of exchange fell due. The loss on it was considerable, and the plaintiffs seek to recover the deficiency short of the amount of the bills. The plaintiffs attempt to fix responsibility on De Tastet & Co. by reason of the purchase of the cotton being ordered on their account; and the statement in the petition is as follows: After the indebtedness of the defendant to the plaintiffs in the sum of $59,186 87, with interest, is charged, the reason is thus given: "for this, that the said Fermin de Tastet & Co. authorized the said R. D. Blossman to purchase at New Orleans and ship for Liverpool a quantity of cotton for their account, and to draw on them for the cost thereof; that in obedience to those orders the cotton was purchased and shipped by the said Blossman, and bills were drawn by him to pay for the same, to the amount of £11,088 6s. 7d.—Copies of which are annexed," &c. It is alleged that the plaintiffs are the owners of said bills and that the whole amount thereof is due by reason of the refusal to accept, pay, &c. tried before a special jury, who found a verdict for the defendants. of the judge was excepted to, and after an unsuccessful attempt to trial, the plaintiffs appealed. The case was The charge obtain a new De Tastet & Co. did not accept the bills, because the bills of lading accompanying them were refused to be delivered up. If they are to be made liable at all, it must be by reason of the orders they gave to Blossman. These are the general grounds of the plaintiffs' action against De Tastet & Co., and on this fact the issue is joined and the cause has been tried and must be decided as to their responsibility. The plaintiffs propounded interrogatories to Blossman, and he answered that he purchased the cotton under the orders of De Tastet, and the order itself is in evidence. Extract of a letter from Messrs. Fermin De Tastet & Co. dated Liverpool, October 18th, 1843: "The foregoing being our views, we authorize you, in conformity with them, to make purchase for our account to the extent of 2,500, say two thousand five hundred bales, gradually as you may have opportunity, and to ship them to this port, to our order, taking care to give us timely notice for effecting insurance, and to forward to us the shipping documents, when your drafts for the invoice amount will meet due honor; or you will forward said documents through Messrs. Peter Harmony & Co., of New York, when you have occasion to avail yourself of the intervention of those respected friends for the negociation of your drafts and it is for our interests: they have our instructions on the subject. The bills of exchange were taken with the bill of lading by Robb & Hoge of this city, and remitted to Nevins, Townsend & Co., of New York, to be sold with the bills of lading on their account, without indorsement or guaranty; there was no agreement as to the bills of lading, but it was supposed they would follow the bills of exchange. The plaintiffs purchased the bills of exchange with the bills of lading in New York, and remitted them to Baring, Brothers & Co., of London, in whose control they both were when the difficulty occurred in relation to the acceptance. By the plaintiffs' own showing, the bills of exchange represented the price of the cotton which they were to pay for, and which the plaintiffs' agents held when they demanded the acceptance; they held the thing sold which they refused to deliver, and exacted the price. Did De Tastet & Co., by their orders to Blossman, bind themselves to any such onerous and apparently unreasonable convention? They expressly say, that when advices and the shipping documents should be forwarded to them, the bills of Blossman will meet due honor. With what propriety can a party seek to fix a loss upon a merchant giving such orders, when the very basis or consideration of the acceptance is thus withheld by his agents. We have already, in Lanfear's case, assimilated the holder of the bill of lading to a vendor. Now, what would be thought of a vendor who, under a contract like this, should retain the thing sold, exact from the purchaser his note for the price, and on refusal to give it up, at his own convenience, in twelve months or so, sell the things at a loss, and then sue the party injured for indemnity. 1 Douglas' Reports, 297, Mason vs. Hunt. The plaintiffs have no claim whatever on De Tastet & Co., there was no default on their part, the bills were unlawfully protested, and the parties to them are discharged. In examining the testimony of the witnesses concerning the usage in New York and London, as to delivering up the bills of lading on acceptance of the bills of exchange, we have come to the same conclusion to which we arrived in the case of Mr. Lanfear. We have in this case the additional testimony of Mr. Thomas Baring, a member of the house of Baring, Brothers & Co. He states that: "There is no uniform rule as to the custom of requiring payment under discount of bills drawn from New Orleans on London, to obtain the delivery of the bills of lading of cotton against which the drafts are issued, and by which they are accompanied, nor is there any obligation to deliver such bills of lading on the mere acceptance of the bills without payment of the amount." The rule is uniform to retain the bills of lading until payment in transactions from the East Indies, which has been established and followed without exception by the East India Company. Mr. Baring's opinion is in conformity with the mode of doing business of his house; he thinks it optional with the bill-holder to give up the bill of lading on the acceptance of the bill of exchange; or to retain it, and that of the propriety of parting with this security the holder is the sole judge. In relation to the matter-of-fact of the existence of the custom, we have come to the same conclusion as the witness has; as to the right of the bill-holder, we have formed a different opinion, and have given our views so fully in the case of Lanfear, that it is unnecessary to re-state them, or to examine the questions of law raised by the counsel for the plaintiffs, in his exception to the charge of the judge of the Commercial Court. It is therefore ordered, adjudged and decreed, that the judgment of the Commercial Court be affirmed, with costs. HEALTH OF NEW ORLEANS.-Yellow Fever. We have shown on another occasion, that with the exception of seasons of epidemic Yellow Fever, New Orleans suffers nothing by a comparison with other cities of the Union in respect to health. An improved system of police regulation is diminishing annually the chances of any great mortality among us. These improvements will keep pace with the causes which are tending to produce a fixed population, residing at all seasons here, and feeling all of those kindly sympathies and affections which connect themselves with HOME. Much, in the opinion of all skilful physicians, can be done to avert the prevalence of fever by municipal regulations, and by prudential habits on the part of citizens. Much has already been done; and judging from the fact that in the progress of society this Scourge has been gradually disappearing from its former localities and yielding in a higher degree to medical skill, we have certainly some cause to hope that the day is not distant, when YELLOW FEVER in New Orleans will appear in the works of medical writers in the same category as "sweating sickness" and Asiatic eholera. When this happy period shall have arrived, our high destinies will be sealed irrevocably, and it may be said then of our great mart as it was said emphatically of Venice, and as it could be said with the same propriety of none other in the world "For that the trade and profit of the city Consisteth of all nations." By a reference to the bills of health for the last twenty-five years in New Orleans, it will be discovered that in the years 1822, '26, '31, '32, '36, '38, '40, '44. and '45, the summers passed away at most with but a very few scattering cases of fever, and in one instance with not a single case. The years 1837, 1839, 1841, and 1843 are those of greatest disaster, the second named having produced terrific loss. The earliest admission of fever into the Charity Hospital in the city is May 18, which occurred in 1826, when there occurred but few other cases. In the pestilential seasons of 37, 39, 41, 43, the earliest cases were respectively July 13, July 23, Aug. 2, July 10; the latest cases Nov. 28, Nov. 17, Dec. 8, Dec. 31, which last was the latest existence of fever ever known in Louisiana. The force of the fever, however, is generally terminated by a frost, whenever that occurs. Another fact in the report of the hospital is worthy of note. In all the later seasons, the number of deaths in proportion to admissions appears upon the decrease. The Yellow Fever, according to tradition, was first introduced into New Orleans in 1769, by a British vessel from Africa with slaves; but it has been a scourge of most of the cities of the southern Atlantic seaboard in almost all time, and as far north in some instances as New York. Charleston would appear now to be its most northern excursion. The medical faculty of this city, like their brethren everywhere else, continue divided on the great question of its character, whether of local or of foreign origin, and of consequence whether contagious. The Medical Society of the city have adopted the local doctrine, and therefore we have no quarantine laws with us at all THE COMMERCIAL REVIEW. Volume II. SEPTEMBER, 1846. No. 2 Art. I-AMERICAN LEGISLATION, SCIENCE, ART, AND AGRICULTURE. If the American government be, as it undeniably is, one of limited and circumscribed powers, it is yet in full possession of all the high and essential attributes of sovereignty. It is a nation, in every sense that the term is understood to imply equality and independence-the power of demanding rights-of punishing wrongs of maintaining rank, influence and position among contemporary governments. Such, in all its external relations, is the government which it was the intention of our fathers to establish, and such it was their happy fortune as well as their consummate wisdom to secure in the terms of the federal compact-a compact which brings home to us and guaranties in all times liberty, independence, power, and all that as citizens and as men it is our glory to perpetuate. In its internal relations, however-its relations to the integral and constituent parts, the States-the federal government presents a new and different aspect. Here, in nice equilibrio, are adjusted its limitations, its checks, and its compromises. Here, if you please, its weakness; but here, beyond all question, its strength. Here interests in many respect dissimilar and discordant; habits of thought, feelings, prejudices and passions, as numerous and distinct as the great subdivisions of a country, embracing every variety of soil and climate, cars make them, are to be conciliated, harmonized, and blended firmly together for purposes of an exalted public good. Here is to be found the great arena where the battle of America must be fought-America for or against herself-federation against consolidation-chartered rights against cruel, heartless and inexorable majorities-liberty against power-a constitution against the omnipotence of parliament. On the outermost wall of the republic, its banners may be hung in triumph-the pressure will never be thence. With what extreme caution did the sages who presided over the infancy of our liberties proceed, when engaged' in the delicate trust, if we may be allowed the expression, of consolidating powers taken from the individual States in the hands of representatives from the States at large. What searching scrutiny, what acute sensitiveness, what jealousy, what prescience, and yet what self-sacrificing and noble patriotism. They were not men to shrink from the high responsibilities of their times. No hand of theirs could forge a chain of * De Lolme, in his remarkable work upon the English Constitution, asserts boldly, that it is a fundamental principle with the English lawyers, that Parliament can do everything but make a woman à man, and a man a woman. P. 134. CONSTITUTION OF THE UNITED STATES. 77 iron to be clanked over their graves, with maledictions, by their children. In the stormy times of the Revolution, the love of liberty had become with them a living and an active principle; and the same heroic devotion which led them up to the cannon's mouth in its cause, led them, when that cause was won, into the council chamber, where alone it could be perpetuated. They adopted a constitution as perfect, perhaps, as any mere human instrument could ever be-a constitution in which they neither maintained nor lost their identity-in which a government was formed, and in which States were not annihilated-States under all the restrictions which the general welfare and happiness demanded; but yet individual, equal, free, with rights guarantied, and powers in every respect adequate to administer their laws and preserve their liberties. A central and consolidated government was not within the contemplation of these men. A mere association of States was equally distant from their thoughts. But a combination of the two principles was the happy medium-the principle of consolidation to the extent that power demanded, and the principle of association to restrict its abuses. It was proclaiming a truth in political science-discovered, illustrated, and taught for the first time in the New World. Does not that truth rebuke alike the domination of centralism and the licentious extension of state power. As our fathers fixed the compact, so in God's name let it stand. Experience as well as reason laughs to scorn all idea of human infallibility, all notions of perfection existing in the results of the skill or wisdom of man. Time exhibits the commentary most mortifying of all upon individual or national pride; and Xerxes scourging the rebellious waves of Hellespont, forging for them fetters, or bidding Athos' towering mountain down at bidding, for the passage of his army, was every whit as reasonable, as modest, and as wise a man as the author of the immutable laws of the Medes and Persians; or even as good old John Locke, who, in the inexperience of great theoretical knowledge, congratulated himself on having achieved a miracle of perfection in law-making, when he presented to Lord Shaftsbury an unchangeable and immortal constitution for his Carolina colony-a constitution which, in twenty-two years, had perished from its utter impracticability, leaving scarce a wreck behind! The bed of Procrustes may be applied to the physical, never to the moral and to the intellectual man. The great law of social existence is progress. The constitution of the United States provides for stability, but then in meek humiliation and conscious infirmity, the framers of that instrument prepared and provided for change. Times and circumstances may alter the position and relation of the States to each other -may develop new principles of political order-may engender new and unexpected combinations, and defeat the aim of previous ones; a dangerous weakness or a dangerous power may be detected in some novel contingency, and demand a remedy; might may press too much upon right; barriers prove unavailing to prevent or arrest encroachment, and national disorganization be threatened-the element of safety is happily placed within the constitution itself; the constitutional power of amendment-the vis medicatrix of the sacred instrument, rendering it capable of any extension which the necessities of times may demand, and of an adaptation to any state of events |