The opinion of the court, Pouter, J. absent, was delivered by

The plaintiffs claimed the value of two packages and a box of goods, shipped on board of the vessel, of which the defendant is master, according to a bill of lading, which they averred to have been assigned to them.

The defendant pleaded the general issue, and claimed a sum due him for freight. There was a verdict and judgment against him, and he appealed.

His counsel has urged in this court, that the goods were delivered on the levee, and the defendants had notice of it. *368He further presented as an error in the face of the record, the absence of any evidence of the assignment of the hills of lading to the plaintiffs.

The first point was abandoned during the hearing, if it had not been, the fact having been proved by the jury, that there was no delivery, and the testimony not establishing any, we could not meddle with the verdict.

On the second point, the fact is, that the hill of lading stated eighty-eight different packages or boxes to have been shipped; the defendant delivered eighty-six of them to the plaintiffs; this, in our opinion, justified the jury-in concluding,, that the delivery of such a considerable portion of the merchandize to the plaintiffs, was a recognition of their rights to receive the whole in the bill of lading, which precluded him from contesting it. After the finding of the jury on this point, in their favor, the matter cannot have a different determination in this court.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.