Interest is only due upon particular legacies, before a suit brought for the same, in the two cases provided in article 1624 of the code. The legacy under consideration is not within the terms of that article: See case of Fletcher's Succession, Opposition of Duquesney, 13 La. Ann. 20, lately decided.

Judgment affirmed, with costs.

OLOGRAPHIC WILL, what necessary to constitute: See Hunt v. Hunt, 17 Am. Dec. 438; Lagrave v. Merle, 52 Id. 589, and note 592; Johnson v. Yancey, 65 Id. 646, and note.

Intention to REVOKE MUST APPEAR clearly and unequivocally, in order to effect a revocation of the will: Wikoff's Appeal, 53 Am. Dec. 597, and note 602; see also Nelson v. McGiffert, 49 Id. 170. In Succession of Beard, 14 La. Ann. 122, the court say, in relation to the following document, "Due Mrs. Sarah E. Andrews the sum of two thousand five hundred dollars, payable to her order out of the proceeds of my estate after my death. New Orleans, June 15, 1855. J. A. Beard"-which had been admitted to probate as a will, on the authority of the principal case, by the district court: "Not to mention other points of distinction, it is sufficient to say that in the case quoted there was a devisee named, to wit, Francis Pena, while in the present so-called will there is no devisee."

THOMAS v. SHIP MORNING GLORY AND OWNERS.

[13 LOUISIANA ANNUAL, 269.]

COMMON CARRIER MAY LIMIT HIS COMMON-LAW Responsibility by special notice of the extent of the liability which he means to assume; and when his liability is so limited, the shipper must prove negligence or fault on the part of the carrier, before he can recover the value of goods lost or destroyed.

THE opinion contains the facts.

Hunt and Denegre, for the plaintiff.

Singleton and Clack, for the defendant.

Plaintiff claims of defendants for

By Court, BUCHANAN, J. loss, occasioned by leakage, upon a shipment of brandies per ship Morning Glory, from Bordeaux to New Orleans. The shipment consistent of twenty-five half-pipes, twenty-five quarterpipes, and other packages.

On the arrival of the ship at her port of destination, and the unloading of her cargo, it was found that three of the half-pipes mentioned in the bill of lading were entirely empty, and a quarter-pipe partially so. The witnesses are of opinion that these casks were crushed by the pressure of cargo.

The defense is put upon two grounds: 1. That the bill of lading contained the following clause: "Not accountable for leakage." 2. That by the custom of the port of Bordeaux, which was observed in the case of this ship, the stowage of the cargo was done by stevedores employed and paid by the shippers of the cargo.

1. The common carrier, under the commercial law, is answerable for all losses that do not fall within the excepted cases of the act of God (perils of the seas) or of public enemies. But the tendency of the more modern decisions has been to permit the carrier to limit his responsibility by special notice of the extent of the liability which he means to assume. The goods in that case, says Chancellor Kent (Com., lect. 40), are understood to be delivered on the footing of a special contract: Story on Bailm., sec. 549; Angell on Carriers, sec. 220.

In conformity with these authorities, under a clause in a bill of lading "not accountable for leakage," it was lately held by Mr. Justice Campbell, sitting in the circuit court of the United States in this city, that the shipper was bound to prove negligence or fault in the carrier before he could recover the value of certain glass showcases conveyed on freight from Philadelphia to this port, and delivered broken: Merryman v. Brig May Queen.

The doctrine thus sanctioned by precedent seems conformable to the general principle that in whatever manner a man has bound himself towards another he shall remain bound. The clause in the bill of lading limiting the responsibility of the carrier is not to be understood as having exempted him from liability for leakage occasioned by the fault or negligence of himself or his agents, but as throwing upon the bailor the burden of proof of such fault or negligence as a prerequisite to recovery under the contract: New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 384.

The fault which is imputed to the ship in argument is bad stowage of cargo, causing an undue pressure upon the casks in the lower tier. The proof of bad stowage is not satisfactory. The Morning Glory was a very large ship, of upwards of one thousand one hundred tons burden. Her cargo consisted of two thousand five hundred and nineteen casks of wine and brandy. The casks in her lower hold were stowed six or seven tiers deep, upon a bed of ballast, and properly dunnaged. The ship expe rienced very rough weather on her passage from Bordeaux to New Orleans, with a very heavy head sea, causing her to pitch, bows under. Her cargo does not appear to have shifted, but some of the quoins worked out from between the casks. The

port-warden, McCerren, an experienced seaman, gives it as his opinion that the loss by leakage was smaller in proportion to the size of the cargo than is usual in ships from Bordeaux.

2. The second ground taken is, that the ship is not liable in this instance for the stowage of the cargo, admitting it to have been defective; because, by the custom of the port of Bordeaux, the charterer of the vessel, or the broker who procures the cargo, acting for the shippers, has a recognized right to employ the stevedore who loads the ship.

The proof of this custom is entirely conclusive. It appears from the testimony of many ship-masters in the Bordeaux trade that the right of the shipper, or his agent the ship-broker, to employ his own stevedore to load the cargo has been sustained, in spite of the opposition of masters of American vessels, in that port. It is also proved that the Morning Glory was loaded on this voyage by a stevedore employed by the shippers of the cargo. This evidence may afford an additional reason for the insertion of the clause of limitation of the carrier's responsibility, which we find in the bill of lading. As the carrier had no control of the loading of his ship, it seems but natural that he should stipulate not to be liable for the fault or incompetency of the person who loaded her, and which person was, in truth, the servant or agent of the opposite party in the contract of affreightment.

Judgment affirmed, with costs.

COLE, J., delivered a concurring opinion.

MERRICK, C. J., concurred.

COMMON CARRIER MAY, BY SPECIAL CONTRACT, limit his common-law liability, and such contract may be express or implied: Cooper v. Berry, 68 Am. Dec. 468, and note 480, collecting other cases in this series; but the burden of proof is on the carrier to show that the loss is within the excepted stipulation, and that there was no negligence: Baker v. Brinson, 67 Id. 548, and citations in note 550.

MARIGNY v. HOME MUTUAL INSURANCE CO.

[13 LOUISIANA ANNUAL, 838.]

WHEN SHERIFF SEIZING INSURED VESSEL EFFECTS INSURANCE to cover harbor risks, and this, together with the insurance held by the owners, exceeds the amount named in a prohibitory clause in the policy provid ing that it shall become void if any interest already insured shall be insured to exceed a certain sum, the interests insured are not the same, and the insurance policy cannot be avoided on the ground of excessive insurance.

INSURANCE POLICY ON VESSEL PROVIDING that the policy shall become void upon assignment, transfer of interest, or change of command, cannot be avoided on the ground that a seizure of the vessel by the sheriff works a change in the command. WHERE INSURED VESSEL IS LAID UP IN PORT UNDER SEIZURE, the policy under which she was insured cannot be avoided on the ground that she was without master, officers, or crew at the time of the fire and loss, when such ground is based upon a clause in the policy by which the assured agrees that the vessel insured shall be, during the continuance of the policy, sufficiently found in tackle and appurtenances thereto, and completely provided with master, officers, and crew.

The facts are stated in the opinion.

Benjamin, Bradford, and Finney, and C. A. Taylor, for the plaintiff.

L. Hunton, and Singleton and Clack, for the defendants.

By Court, BUCHANAN, J. On the tenth of May, 1855, Thomas Keefe, for the account of the owners of the steamboat S. F. J. Trabue, effected an insurance with the defendants in the sum of five thousand dollars, loss, if any, payable to plaintiff, upon the hull, engine, furniture, and appurtenances of said steamboat, valued at thirty-five thousand dollars, to navigate the Mississippi river not above Alton, and on the Ohio river not above Louisville, for one year from date of insurance. Before the expiration of the risk the steamboat Trabue was seized for debt, and while in the custody of the sheriff, in the port of New Orleans, was totally destroyed by fire, being one of the perils insured against, on the nineteenth of April, 1856.

The defendants, being sued on the policy, pleaded in defense; 1. That while the policy sued upon was running and unexpired, other insurance was effected on said boat in the Crescent Mutual Insurance Company for twenty-two thousand five hundred dollars, which, together with the amount insured by defendants, exceeded the sum of twenty-five thousand dollars; whereby the policy sued upon became null and void by the terms thereof; 2. That in consequence of the seizure made by the sheriff, the command of the boat was taken from the master thereof, without the consent or approbation of defendants, which was change in the command thereof; whereby the policy became null and void by its terms; 3. That there was no commander in charge of the steamboat Trabue, and that no person was on her at the time she took fire and was destroyed; whereby defendant

released from liability; 4. (By a supplemental answer.) That at the time of the alleged loss the Trabue was not com

petently provided with master, officers, and crew, and was not sufficiently provided with tackle and appurtenances, as stipulated in the policy.

1. The policy sued on contains the following clause: "And it is hereby further agreed that this policy shall become void upon assignment thereof, transfer of interest, or change of command, or if any other insurance be made upon the interest hereby insured, which together with this insurance shall exceed twenty-five thousand dollars, unless the consent of this company thereto be obtained and indorsed thereon."

It appears that the boat, having been subsequently seized by the sheriff, John M. Bell, a policy of insurance was effected by him, in his official capacity, with the Crescent Iutual Insurance Company, in the sum of twenty-two thousand five hundred dollars, to cover a harbor risk, in the port of New Orleans, for one month, viz., from the second of April, 1856, to the second of May, 1856.

Mr. Blossman, the deputy sheriff, states that "this policy was taken out upon the notification of Mr. Shannon, who was the second seizing creditor; that he wished the sheriff to effect insurance upon the boat for his protection; and witness and Mr. Bell made a calculation for the claims against the Trabue, and Mr. Bell thereupon took out the policy for twenty-two thousand five hundred dollars.”

Mr. Bell himself states that he did not effect the insurance at the request of the owner of the boat; nor even, so far as he knows, with the knowledge of the owner.

From this evidence, it appears that the insurance in the Crescent office was not effected upon the same interest which was insured by defendants, namely, the interest of the owners of the boat, who were defendants in the seizure. This insurance did not, therefore, fall within the prohibitory clause of defendants' policy above quoted.

2. It is next contended that the command of the boat was changed by the effect of the seizure made by the sheriff. This appears to us a very strained construction of the clause in the policy referred to. The meaning and intention of the parties to the insurance evidently was, that the assured, the owners of the Trabue, should only employ in the navigation of their vessel, as master, a person known to and who possessed the confidence of the underwriters. For this reason, the name of the commander, at the date of the policy, is expressed therein. We find by an indorsement on the back of the policy that another person

AM. DEG. VOL LXXI-33