author: Preston, L

text:
    Louis Delacroix v.J. Nolan.—Adeline Delacroix, Intervenor.
    Where a husband sells the property of the wife, and she appears and makes herself a party to the act, with knowledge of her rights, she thereby consents to the sale. Wives should, under such circumstances, be held to the same rules as other persons, who consent to the sale of their property by another.
    APPEAL from the District Court of West Baton Rouge. Burk, J.

      Lacy,

    for plaintiff.

      Greves, for defendant.
   By the court:

Preston, L

The plaintiff alledges, that in his own right, and as tutor of his minor child, Avinente, he is the legal owner, together with Mrs. Adeline Gorret, of a small tract of land, situated in the parish of West Baton Rouge. He claims, that it belongs to them, by inheritance from his deceased wife, Felicite DeLacroix, one of the heirs of Xavier Theriot, as having been ceded to her by the other heirs, on account of her rights in the succession.

He alledges, that the defendant has taken possession of the land, without color of title, but, on the contrary, with a full knowledge of the title of the true owners ; that he has cut down, carried away, and used the timber, which is valuable, and thereby caused the owners damage, to the amount of two thousand dollars. He asks judgment in their favor for the land and damages.

Mrs. DeLacroix intervenes, and denies that the defendant has any valid title to the land, and claims twenty-five, out of thirty-two parts of it. She pleads, and it is sufficiently shown by her and the plaintiff, that the land was the sixth of a tract which belonged to Xavier Theriot. He died, leaving six heirs. Five of them ceded the sixth of the tract to Felicite Theriot, the remaining heir, on account of her rights in the succession. She was the first wife of the plaintiff, the mother of the intervenor, and the sixth of the tract thus ceded, ft the land in controversy.

Felicite Theriot died, leaving two children, by the plaintiff, the intervenor, and a daughter, who inherited from her the land in controversy, in equal portions. The plaintiff married a second time, by which marriage he has a son. One of the children, by his first marriage, died. The intervenor inherited from her 9-32 parts of the land, making her whole interest 25 out of 32 parts. The plaintiff, as father, and his child, as half-brother to the deceased, inherited the first four and the last three parts, out of thirty-two of the land.

The defendant plead lis pendens, that the same claims were sued for, in the suit we have just decided. He does not make that clearly appear. Nor does he satisfy us, as plead by him, that the heirs of Xavier Theriot transferred to him the land in controversy, by the transfer to him of a suit against one Broussard,-va. relation to their lands, and which resulted in a favorable decision.

He next pleads, that he purchased the land from the intervenor and husband, on the 19th of October, 1846. We have seen, that she owned twenty-five, out of thirty-two parts of the land. The defendant produces a notarial bill of sale, of that date, for the whole tract, from Cheri L. Gorret, the husband of the intervenor. The land did not belong to him, but to the wife; still, we think the act is binding upon her. She appeared, and made herself a party to the act, with all the knowledge of her rights, in relation to the land which she now possesses. She thereby consented, that the land should be sold to the defendant. Even, if she thought she could defraud him, which is by no means to be supposed, she should not be permitted to do so. We cannot see why wives should not, under such circumstances, be held to the same rules with other persons, who consent to the sale of their property by another.

There are strong expressions in the deed, unusual in the mere renunciation of a wife’s legal mortgage. She renounces all her rights, as well as those of mortgage ; she ratifies the act of sale; she binds herself and her heirs, at all times, to ackowledge the validity of the act of sale, as well as her renunciation. She did all this out of the presence of her husband, and then signed the act by his authority. There is not the slightest reason to believe, that either he, or the notary, exercised any undue influence, or practiced any fraud upon her, or that she was ignorant that the land belonged to her. And even, if from obscurity in the expressions of the cession of the heirs, Theriot, of the land, to the husband for her, they believed that the land was conveyed to, and belonged to the husband, the result would be the same. They intended to convey it, with an entirely unincumbered title to the defendant. We have no hesitation, therefore, in pronouncing that Nolan acquired from them a good title to twenty-five, out of thirty-two parts of the land.

The plaintiff and his son are entitled to recover the other seven parts of the land. Shall they recover damages 1 They caused a suit to be instituted against the defendant for the whole tract, when but a small part of it belonged to them. Their evidence is so weak, as to their inheritance from the deceased child by the former marriage, that we should be obliged to nonsuit them, but for the verdict of a jury of the vicinage.

The evidence does not satisfy us, that the defendant knew, or believed, they had any rights to the land, when he purchased it from Gorret. The communication of Duralde, the notary, at the time of the sale, show no clear outstanding title to any part of it. The inheritance of the plaintiff and his son, through the deceased daughter, was not mentioned, much less explained, to the defendant. He took from Gorret a formal title to the whole land, and, in our opinion, possessed it in good faith, until the institution of this suit. We do not believe the land has been injured by the use and improvements of the defendant.

The defendant is entitled to warranty against Chcri Gorret, but not against the wife. He sold the land belonging to the plaintiffs, and which they are entitled to recover. She could not become security for, or warrant the lawful, much less the unlawful acts of her husband, and the bill of sale, so far as it tends to that effect, is invalid.

It is decreed, that the judgment of the district court be affirmed in favor of the plaintiffs, respectively, for four and three thirty-second parts of the tract of land claimed, with costs in the district court; that the judgment in favor of the intervenor, Adeline Gorret, for the twenty-five thirty-second parts of the land be reversed, and it is decreed, that she pay the costs of her intervention in the district court, and half the costs of this appeal. The judgment in favor of the plaintiffs, for damages, is also reversed, and they are condemned to pay half the costs of this appeal. It is further decreed, that John Nolan, the defendant, recover from Cheri Laurent Gorret, his warrantor, two hundred and ninety-three dollars, for tho price paid by him for fourteen and two-thirds of an acre of ground, at twenty dollars an acre, of which he has been evicted, with legal interest, from this date until paid, and costs in the district court,


source: Caselaw Access Project

author: Slidell, J. Preston, J.,

license: Public Domain

text:
    McDowell and Peck v. General Mutual Insurance Co.
    A master, in entering a foreign port where pilots are usually employed, is bound to approach the pilot ground with caution, and to use reasonable diligence to obtain one. If he enters without a pilot, and the vessel grounds and is wrecked in doing so, the underwriters on ship are not answerable for the loss thereby sustained, unless it be shown that reasonable diligence to obtain a pilot was unsuccessfully exerted, or that circumstances of impending danger rendered it unsafe to wait for a pilot, or that such other state of facts existed as would reasonably excuse the omission, by showiug its necessity.
    The subject of employing a pilot falls under the head of seaworthiness; and that warranty is equally implied, whatever may bo the [subject of insurance. It applies no less to insurances effected by the owner of goods, than to those effected by the owners of the ship.
    The English doctrine of seaworthiness is, that there is no implied warranty of seaworthiness, except at the commencement of the voyage. The law in the principal commercial States of this Union, is at variance with the English rule, gives a wider extent to the implied warranty, and holds it to be the duty of the assured to keep his vessel seaworthy during the voyage, if it be in his power to do so; and if, from the neglect of the owner, or his agents, the vessel becomes unseaworthy, by damage or loss in her hull or equipments during the voyage, the owner must repair the damage or supply the loss at the port of refuge, refreshment, or trade. The underwriter will be discharged from liability for auy loss, the consequence of such want of diligence. The American doctrine is qualified to this extent: that unseaworthiness arising after the commencement of the voyage, has not a retrospective operation, so as to destroy ajust claim in respect oflosses which have occurred prior to the breach of the implied warranty; and also, that, if the ship sailed seaworthy for the voyage, subsequent unseawortliiness shall not operate as a defence, except whei*e the loss is distinctly shown to have been occasioned by it, and the unseaworthiness itself to have arisen from the negligence or misconduct of the assured, or his agents.
    A protest is an important instrument; and where a captain, having met with a disaster, prepares and signs one, while the circumstances are fresh in his memory, setting forth the manner of its occurrence; and afterwards, when a litigation, involving a charge of misconduct againsthimself, has arisen, attempts, as a witness, to account for the disaster by statements of very material incidents of his voyage undisclosed by the protest, his testimony mustbe viewed with grave distrust, and cannot be considered as satisfactorily verifying the circumstances of the loss.
    After the vessel sails, I do not think the insurers of a cargo liable to lose their insurance, for the errors of judgment, mistakes, or even negligence, of the master. The general rule laid down by elementary writers, as Phillips, and even Chancellor Kent, that the failure to take on board a pilot, where it is customary, renders the vessel unseaworthy, and avoids the policy, must be subject, in practice, to this distinction in favor of the insurers of cargo who have no interest in the vessel, or it would be a most unreasonable rule. Preston, J., dissenting.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Elmore and King, for plaintiffs.

      E. Briggs, "for defendants.
   By the court:

Slidell, J.

This action is upon a policy of insurance for the value of goods shipped in the schooner Maria, on a voyage “ from New Orleans to Brazos river and about twelve miles above Columbia.” The vessel was wrecked in crossing the bar at the mouth of that river. The defendants resist the payment of the loss, on the gi’ound that it was occasioned by the neglect of the master to employ a pilot in crossing the bar.

There was judgment for the plaintiff in the court below, and the defendants have appealed.

We consider it as satisfactorily resulting from the evidence, that it is customary for vessels of the description of the Maria, to take a pilot in ci'ossing the bar of the Brazos river; and the propriety of doing so is shown by the nature of the locality. It appears from the testimony, that there is a shifting bar and channel, and that it would not be safe to cross without a pilot. The absence of a pilot under such circumstances, must be considered as producing a positive and definite increase of risk.

It may be considered as well settled in American jurisprudence, that a master, in entering a foreign port where pilots are usually employed, is bound to approach the pilot ground with caution, and to use reasonable diligence to obtain a pilot. If he enters without a pilot, and the vessel grounds and is wrecked in doing so, the underwriters on ship are not answerable for the loss thereby sustained, unless it be shown that the reasonable diligence to obtain a pilot was unsuccessfully exerted, or that circumstances of impending danger rendered it unsafe to wait for a pilot, or that such other state of facts existed as would reasonably excuse the omission, by showing its necessity. See Bolton v. American Insurance Company, cited in 3 Kent, in note page 76. Phillips on Insurance, p. 315. Keeler v. Firemen’s Insurance Company, 3 Hill, 250. 2 Greenleaf’s Evidence, § 400. McMillen v. Union Insurance Company, 1 Rice, 248, cited in note, Kent, supra. See also 3 Kent, 289, Patapsco Insurance Company v. Coulter, 3 Peters, 235.

That the question of liability of underwriters, in case of the omission to take a pilot, is the same, whether insurance be on the ship or goods laden on board by third persons, seems clear. The subject of employing a pilot appears properly to fall under the head of seaworthiness, and is so treated by the commentators. Now, it is settled, that the warranty of seaworthiness is equally implied, whatever may be the subject of insurance, and applies no less to insurances effected by the owner of goods, than to those effected by the owners of the ship. See Oliver v. Cowley, cited in Park, vol. 1, p. 298. Ib. 306. Arnould, 654. 1 Phillips, 308. See also Taylor v. Lowell, 3 Mass. 347.

The owners of the goods are not without recourse. They have their remedy, for the consequences of the captain’s neglect to take a pilot, against him and the owners of the ship.

It is proper here to remark, that although it seems to be the great leading principle of the English doctrine of seaworthiness, that there is no implied warranty of seaworthiness, except at the commencement of the voyage, yet the law in the principal commercial States of this Union, is at variance with the English doctrine, and gives a wider extent to the implied warranty. It holds it to be the duty of the assured to keep his vessel seaworthy during the voyage, if it be in his power to do so ; and if, from the neglect of the owner, or his agents, the vessel becomes unseaworthy, by damage or loss in her hull or equipments, during the voyage, the owner must repair the damage or supply the loss, at the port of refuge, refreshment, or trade. The underwriter will be discharged from liability for any loss, the consequence of such want of diligence. Kent, vol. 3, p. 288. Ib. 289. Arnould, 666.

The American doctrine, however, is qualified to this extent: that unseaworthiness, arising after the commencement of the voyage, has not a retrospective operation, so as to destroy a just claim in respect of losses which have occurred prior to the breach of the implied warranty; and also, that if the ship sailed seaworthy for the voyage, subsequent unseaworthiness shall not operate as a defence, except where the loss is distinctly shown to have been occasioned by it, and the unseaworthiness itself to have arisen from the negligence or misconduct of the assured or his agents. The language of Mr. Kent, with regard to this latter qualification, is very apposite, by reason of the illustration it gives, to the present controversy. “The owner,” says he, “is bound to keep the vessel in a competent state of repair and equipment during the voyage, as far as it may be in his power. If this be not the case, and a loss afterwards happens, which could by any means be either increased or affected by a prior breach of the implied warranty of seaworthiness when the policy attached, — as, for instance, if the master should omit to take a pilot at an intermediate port, where he ought and might have done it, and the vessel be, two years afterwards, lost, by capture; or, if he sailed without sufficient anchors, and the vessel be afterwards struck with lighthing, — would the insurer be discharged ? The better opinion would seem to be, that he would not be discharged.” 3 Kent, 289. See also Paddock v. Franklin Insurance Company, 11 Pick. 227.

Mr. Arnould advocates the English rule, and considers it decidedly preferable, both as giving the assured a more complete indemnity, and also preventing many nice and difficult inquiries, which, in his opinion, the other system has a direct tendency to produce. But, it seems to us, on the other hand, that the American rule is more consistent with public policy, considered with reference to the preservation of life and property.

In the present case, the plaintiffs insist, that the captain did all he could to procure the services of a pilot; and in support of this proposition, they rely on the testimony of the captain, which is as follows:

On Tuesday, 30th April, 1850, at 5 o’clock, a. m., made Galveston Island, bearing Northwest. At 10 o’clock, a. m., made the mouth of the Brazos river. The bar, to appearance, was smooth, and, being abreast of it, (the bar,) hove the vessel to for a pilot, witness at the same time seeing the pilot boat making for his schooner. The pilot boat approached within hailing distance of the schooner, the schooner heading at that time to the South and West, the jib to windward and below her lee, and the pilot boat was on the same tack, at the stern of the schooner, gaining on her, when the pilot boat hailed the schooner and demanded if she wanted a pilot. Witness answered from the schooner, yes; what is the pilotage ? They hailed again from the pilot boat, but witness could not hear distinctly what they said, but supposed it was to repeat the question, and witness returned the same answer. Whilst these questions were being propounded and answered, witness was standing by the lee main rigging, and having a man heaving the lead and reporting four fathoms of water. The pilot then bore away before the wind, and went on the opposite tack; and, as it is customary on the bar of Texas, for pilot boats to go in first, and for vessels to follow, I bore away after the pilot boat, and followed it for about half an hour; but not keeping up with the pilot boat, I set my signal for him to wait; but he not waiting, and the schooner not getting any farther off from the shore on this tack, witness put the schooner about and stood on the opposite tack. By putting the schooner about, she dropped astern, and was in three fathoms of water before she got headway; and, whilst standing on this tack, she not being able to clear the South breakers, and her anchor and chains not being able to hold her, witness kept her away and attempted to cross the bar. This was the only alternative, either to cross the bar, or drift on the North or South breakers. It was then about 1 o’clock, r. m. when the schooner got on the bar, and she commenced thumping; and, the wind being light and dying away, [she lost her steerage way, and the current running very strong out of the river,, swept the schooner on the Southwest point, &c.

In addition to this testimony, the plaintiff also offered the testimony of one of the seamen, which substantially accords with the captain’s. These depositions were taken before a justice of the peace, after the answer was filed in the cause.

If the case stood upon this testimony alone, we might have concurred with the district judge, in holding the defendants liable.

But, a grave difficulty is presented, by comparing the testimony of the captain and seaman, taken after the refusal of the underwriters to pay the loss, on account of the omission to employ a pilot, with the protest made in Texas, a few days after the wreck, and signed by them. This instrument relates, with the usual detail of a log book, from which it would seem to have been copied, the circumstances of the vessel’s voyage from New Orleans to the coast of Texas, giving, day by day, the winds, soundings, weather, accidents occurring on board, &c. We then find the following statement: “ Tuesday, 30th, at 5 o’clock, a. M., made Galveston Island, bearing North-West; at 10 a. m., made the mouth of the Brazos River, the bar to appearance was smooth, the wind fresh from the South-East; at one o’clock, r. m., bore away, and stood on to the bar; but while crossing it, the wind died away, and before the anchors could be let go, the current, which was then running six miles per hour, swept the schooner on to the South-West point, where she commenced thumping on the bottom very heavy; immediately got out the boat, and carried out the anchor; and, at 10^ r. m. succeded in bearing the schooner to the inner point (she thumping heavily all the time, and leaking badly), when the hawser parted, and she was again swept on the South point; it now required both pumps to keep her free; the wind light from the South-East, and continued so until midnight. Wednesday, May 1st, at 1, a. m., the wind began to increase; at 4, the wind still freshening; went on shore in the yaul, and borrowed an anchor from the schooner McNeil, and got the pilot boat and pilot’s men, to assist in taking out the anchor, and to assist in heaving her off. At 5, returned to the schooner, and found she. could not be kept free with both pumps, and that she had settled in the sand. Commenced heaving on the hawser, but found she did not move. At 8, a. m., she had gained on the pumps 2 feet water, and at 10, A. m., she settled down and soon filled to the deck, and became a total wreck; at which time, H. C. Wilcox, wreck-master, came off with two launches and twenty-two men, and began to strip the vessel and take out the cargo ; two men would go under the water and hook on to articles, and the rest hoist them out, and took them on shore. The vessel was all the time gradually sinking, the wind continued fresh, and very little progress could be made in getting out the cargo. Thursday, May 2d, the schooner had sunk so, that the water was one foot on the deck. Worked all this day, but owing to the high sea, got out but little cargo. Friday, May 3d, at daylight went down to the wreck, found six feet water on the deck ; we could get no more cargo out, and abandoned the vessel and cargo as it lay.”

It will be observed that the protest is entirely silent, as to any attempt whatever, to get a pilot. No mention whatever is made of heaving to for a pilot, of speaking one, or even of having seen one, until many hours after the vessel had attempted to cross the bar, and was wrecked.

A protest is a very important and solemn instrument. We have indeed no law such as is contained in the celebrated Ordonnanca de la Marine of France, in her existing Code de Commerce ; in the Codigo di Comercio of Spain, and the legislation of some other commercial nations, commanding captains of vessels to make protests or consulates; yet, it is a matter of commercial usage to make them. Although not receivable in our courts as evidence for the masters, his owners or shippers, credit is often given to their contents by merchants and underwriters. Such an instrument usually is, as Mr. Abbott observes, and as every merchant and captain knows, a narrative by the master of the particulars of the voyage, of the storms encountered, the accidents which may have occurred, and the conduct which, in cases of emergency, he had thought proper to pursue. “Fie should take care,” says Mr. Abbott, “ to supply from the logbook, his own recollections, and that of the mate or trustworthy mariners, true and faithful instructions for its preparation.”

When, therefore, a captain, having met with a disaster, prepares and signs a protest, while the circumstances are fresh in his memory, setting forth the manner of its occurrence, and afterwards, when a litigation involving a charge of misconduct against himself has arisen, attempts, as a witness, to account for the disaster, by statements of material incidents of his voyage, undisclosed by the protest, his testimony must be viewed with great distrust, and cannot be considered as satisfactorily verifying the circumstances of the loss.

In Senat v. Porter. 7 Term Rep., it was held, that the protest of the captain could be used to contradict his testimony.

Emerigon, who had not merely studied the law of insurance in books, but had a very large practical experience as an advocate and judge in the admiralfy, says that a captain cannot impeach his own work, and say that he has betrayed the truth, or that he has not exhibited in his consulate all the important facts of the case. And, in another place* he observes : “Every captain who, having the power of making his consulate in due form, fails to do so, renders his conduct very suspicious.” He cites the forcible language of Casaregis: Ex qua omissione actús solüi, facilis, et necessarii, oritur suspicio et presunvptio, quod pretensum damnum navis non accident ex dicta causa.

We must not be surprised therefore, says Emerigon, at the judgments, which having regard to the circumstances of fact, have rested on the want of a consulate, to decide the cause in favor of the insurers. He then cites a case^which presents, as regards the master’s conduct, a very strong analogy to the one before us. A captain borrowed a sum on maritime loan, his voyage being for the coast of Italy, Naples, Corsica and Sardinia. He went to Tunis, where he made no consulate, to show the necessity of his deviation. He there took on board a cargo of timber. He touched at Bastía, where he made a consulate, in which he said nothing as to the cause of his voyage to the Barbary coast. Having left Bastía, he was wrecked. Arrived at Marseilles, he made a consulate, by which he attested, that a storm had forced him to put into Tunis. The lenders objected, that the consulate should have been made at Tunis. The decree, in spite of the shipwreck, condemned the captain to pay the sum received on maritime loans, with the marine interest and land interest. See Emerigon (Meredith) p. 606. et secq.

Although in the tribunals of France, the rules of evidence, in matters of insurance, differ from our own, and the doctrines thus enunciated by Emerigon must therefore be considered with proper qualifications, their spirit commends itself to our reason, and may be invoked here in the investigation of truth. .

It is therefore decreed, that the judgment of the district court be reversed, and that there be judgment of nonsuit, the plaintiff paying costs in both courts.

Preston, J.,

dissenting. The defence to this suit, on a policy of insurance on cargo, is that the loss claimed did not result from the perils insured against, but was caused by the willful neglect of the master to take a pilot on entering^ the Brazos River. This, it is contended on authority, rendered the vessel unseaworthy, and exonerated the underwriters.

The cause of the loss, as stated in the protest of the master and crew, evidently taken from the log book, was that the vessel attempted to cross the bar of the Brazos River under sail, but while crossing it the wind died away, and before the anchor could be let go, the current, which was running six miles an hour, swept the schooner on the Southwest point, where she commenced thumping; could not be got off, and sunk. The cargo, consisting of heavy machinery and brick, belonging to the plaintiffs, who were not owners of the vessel, was lost. The immediate cause of the loss was the dying away of the wind at the critical moment of crossing the bar, the rapidity of the current of the river over the bar forcing the vessel on a point where she thumped and sunk. These were perils of the sea insured against, and the loss must be borne by the' insurers unless they can exonerate themselves from liability by the proof of facts having that effect. The burden is on them, and they undertake to show, that though the proximate causes of the loss were perils insured against, yet these were traceable to neglect and misconduct of the master in not having a pilot, where it was customary and necessary, thus rendering, in the language of books of authority, the vessel unseaworthy.

Now, the only two witnesses to the facts, which actually occurred, are the master and a seaman. Both state, that the master made all reasonable efforts to obtain a pilot, but without success. Their testimony, in this respect, is not in contradiction to the log-book and protest, but certainly makes additions to them, and is thereby, to some extent, impaired. Still the testimony is uncontradicted, while-the defendants, by examining the pilots at the Brazos, could have entirely destroyed it if untrue. Being a question of fact, and with regard to which the district court gave full credence to the testimony of the witnesses, I think we should yield to his judgment as to the facts, and if so, to cpnclude that the loss was caused by vis major, the effect of force.

If we take it for granted that the log-book contains the whole of the facts, and that the master made no efforts to obtain a pilot, the case is still, in my judgment, on the meagre testimony before us, against the defendants. It is true three insurance officers, of New Orleans, have been examined in their behalf. Two were never at the Brazos, one has passed over the bar twice. They state that the bar is a shifting one, the channel changeable, that they do not consider it safe to attempt to cross without a pilot, and would not insure a vessel going to the port if it was understood that the captain was to be his own pilot. These are the opinions of witnesses who have no practical knowledge on the subject, for Mr. Wilder probably crossed the bar only as a passenger. They do not refer to the circumstances of this case. In it we are obliged to believe the master was a mariner by profession. It appears he was in command of a small schooner of fifty-five tons, which might have safely passed the bar, although a vessel of two hundred tons could not. The water on the bar was smooth and the wind faff. He was the owner of one-fourth of his vessel, and it was uninsured. Under such circumstances he attempted to cross the bar himself. I cannot doubt that he exercised ordinary prudence, and that in the . best exercise of his judgment he believed that he could cross the bar with his small schooner without a pilot, or he would not have risked his own property rather than pay three or four dollars pilotage.

The defendants have offered no proof, but the event, to show an entire want ilf judgment in the master. Success is undoubtedly the best criterion by which to test the judgment of men in every thing, but it is not so invariably correct as to dispense with the proof of bad judgment in case of misfortune. For the want of ordinary care and prudence the master would, perhaps, have forfeited the insurance of his owners on the vessel. But, in my opinion, the shippers and insurers of cargo forfeit their insurance only by their own negligence, and not by negligence on behalf of the master. Thus, the plaintiffs shipped, and insured their property, on a vessel which, it is not disputed, was seaworthy and properly manned when she sailed. It was a sufficient compliance with their warranty as to the master, that he possessed a general good character for care and skill in his profession. Perhaps, as insurers of cargo only, and in the very port where the insurance company was established, even an inquiry as to the general good character and capacity of the master is immaterial, because the insurers are bound to a knowledge on these subjects as well as the insured, and in fact take cai’e, by officers, to obtain the same knowledge with the assui'ed. As to the latter, he often ships his freight on the vessel by the master named, or whoever may go as master. The strict scrutiny of this subject is not required, as there is not the slightest impeachment of the general character or capacity of the master at the commencement of the voyage. And it is to be presumed to have been good until the contrary is shown by evidence. As, therefore, it is to be taken for granted, in this case, that the master possessed a general good character for care and capacity, when the cargo was shipped, the shippers must be exonerated from negligence or want of prudence in shipping the cargo on board his vessel.

After the vessel sails, I do not think the insurers of a cargo liable to loose their insurance for the errors of judgment, mistakes, or even negligence of the master. The general rule laid down by elementary writers, as Phillips and even Chancellor Kent, that the failure to take on board a pilot, where it is customary, renders the vessel unseaworthy and avoids the policy, must be subject in practice to this distinction in favor of the insurers of cargo, who have no interest in the vessel, or it would be a most unreasonable rule.

Mr. Arnould states, that it is the rule in England that the assured warrants the vessel as being seaworthy at the commencement, and not during the voyage ; but that it is settled in the United States that she must be kept seaworthy during the voyage, and thinks the English rule most eligible. As far as I can judge, there is some diversity of decisions in both countries, growing out of the extremely varying circumstances of particular cases. And, perhaps, the real error consists in elementary writers classing together cases and things that are dissimilar, and attempting to subject them to a general rule.

Thus, the unseaworthiness of a vessel, and the neglect to employ a pilot, are two different things, and not necessarily subject to the same general rule -as to their effect upon insurance. The neglect of the master to employ a pilot, seems more assimilated to the neglect to set the proper sails, or to steer the right course, or to keep the necessary watch, or cast anchor when approaching breakers.

Now, for all losses, the proximate cause of which is one of the enumerated risks, although remotely caused by negligence or unskillfulness of this character, it has over and over again been decided in England that the underwriters are responsible. The maxim causa próxima non remota spectatur, invariably governs. Bush v. The Royal Exchange Company, 2 Barnwell and Alderson’s Rep. 73. Walker v. -, 5 Ib. 173. Bush v. Poulland, Barn and Cresswell Rep. 219. And in this country the Supreme Court of the United States have fully adopted the same doctrine in three cases.

In the case of the Patapsco Insurance Company v. Coulter, I consider analogous in facts and principle to the case under consideration. The insurance was upon a cargo of flour, from Philadelphia to Gibraltar. The vessel was burnt by the negligence or carelessness of the master1, in Gibraltar, and the cargo was lost. The Supreme Court of the United States, in so many terms, decided that the underwriters were not discharged, it being admitted that the loss of the flour was caused by the negligence or carelessness of the master. The Patapsco Insurance Company v. Coulter, 3 Peters, 222. The Columbia Insurance Company of Alexandria v. Laurence, 10 Peters, 507. Waters v. The Merchants’ Louisville Insurance Company, 1 Peters, 225.

This last case was a river risk, upon a steamboat, but declared by the court to be assimilated to and governed by principles applicable to marine risks. The court, after an elaborate opinion, came to the conclusion that the policy covers a loss of the boat by fire, caused by the negligence, carelessness or unskillfulness of the master and crew of the boat, or any of them, and that pleas to the effect that the fire by which the boat was lost, was caused by the carelessness, neglect or unskillful conduct of the master and crew of the boat, was not a defence to the action, by the owners on the policy, or sufficient in law to bar their recovery of the loss. The whole scope of the opinion goes as far as any English decision, and further than I should be willing to go, for in effect the owners of the boat were indemnified for a loss caused by their own agents, and consequently by themselves.

It is by no means necessary to go so far as the Supreme Court of the United States have gone in this case, to support the claim of the assured in the case under consideration. They insured cargo, not on their own vessel. It is alleged to have been lost by the neglect and carelessness not of their agents, but of the master of a vessel which did not belong to them, and who was not under their control. His general character for care and skill is not attacked. At most, as has been seen, his general character is all that could be expected from the assured or that he bound himself to warrant, and not all the particular acts of the master on consequences of his omissions.

The fact that barratry is generally excepted from the risks insured when the assured is an owner of the vessel, though not excepted when he is not an owner, shows by analogy that there should be a distinction between the liability of the insurer for the negligence or unskillfulness of the master as to the loss of the vessel, and the loss of the cargo. As to the latter, it appears to me nothing but a general character, at the shipping port, for negligence and unskillfulness, and that unknown to the insurers should exonerate them.

There is another consideration in this case which'is conclusive to my mind. By the very terms of the policy, the plaintiffs are insured against the barratry of the master. Surely, since the parties .by express contract, agreed to insurance against the crimes- of the master, they, by implied contract, intended insurance against his particular acts of negligence or unskillfulness. Such an implied agreement has been inferred, from insurance against barratry, in several decisions.

In the case of Lowe v. Hollinsworth, on which the defendants principally rely, it is probable the insured were owners of both ship and cargo, and if so, the master was agent of both. He violated a statute of George III, which expressly required that vessels should be navigated on the river Thames, under the direction of a competent pilot, because, as declared by the statute, the navigation was intricate and dangerous. No discretion was left to the master, and his employers were condemned to bear the consequences of his violation of law. So in the other case relied upon, of Stanwood v. Rich, the insurance was on the vessel, and Chief Justice Parker left it to the jury to decide whether the failure of the master to take a pilot, in the harbor of Boston, was such negligence as would discharge the underwriters. He did not, indeed, put their discharge on the ground that he was the agent of the insured, and that, therefore, the principals must suffer for the negligence of their agent; but it appears to me this was the true ground. I can see no more reason for discharging the underwriters from insurance on cargo on account of the negligence of the master, than for discharging the insurance on the stock of a store, on account of the negligence of the owner of the house, which caused the fire and loss, and vice versa.

For these reasons, I think the judgment of the district court should be affirmed.

Application for re-hearing refused.


author: Eüstis, C. J.

text:
    Heirs of S. Henderson v. P. A. Rost and J. Montgomery.
    In the will of the testator there was the following clause: “ Two thousand dollars per annuni to be paid to the poor of the town of Dunblane, in Perthshire, North Britain. This sum to be divided by the resident minister of the Presbyterian church, and the two highest civil officers in the town, to be paid upon due proof of the acceptance of the trust, say $2000. Two thousand dollars for the erection of a school-house, in the town of Dunblane, for ten years only, and for the purpose of educating the poor, this being the place of my birth.” There were no officers, or persons, who, in any legal or judicial sense, would answer the description of the two highest civil officers, in the town of Dunblane. In the courts of Scotland, the legacy would not be sustained, but would be held as lapsed, from uncertainty and the want of proper persons qualified to accept the same. By the Court: It seems, therefore, that as no action can be maintained against the executors, for the recovery of this legacy, they are not authorized to retain the funds of the succession, for the purpose of paying it.
    APPEAL from the Fourth District Court of New Orleans, Strawbridgc, J.

      E. Briggs, for plaintiffs.

      P. Soulé, for defendants.
   By the court: (Rost, J. declined sitting.)

Eüstis, C. J.

Stephen Henderson died in New Orleans, in March, 1838, leaving two wills, which were admitted to probate. The heirs at law of the estate were: 1st, Thomas and Jean Henderson, the only children of Patrick or Peter Henderson, deceased, the eldest brother of the testator. 2d. Ann Henderson, his sister. 3d. John Henderson, his brother. The interest of the heirs of Peter Henderson, 'Was extinguished by a compromise, dated on the 17th of April, 1839. They were not mentioned in'-the will. The interests of the other two branches, who, under the will, would have been entitled to claim certain legacies, were settled by an agreement, allotting one fourth part of the succession to each of the following parties, viz : One-fourth to Ann Henderson, one-fourth part to John Henderson, one-fourth part to Stephen Henderson, Junior, and one-fourth part to George Henderson and Caroline Eugenie Henderson, wife of Whitman Willcox, who, as well as Stephen Hendersen, Jr., were the children of John Henderson, by his first marriage. Of these, all are now living, except John, who died, leaving, by a second marriage, John, George, Helen, and Jean Henderson, who are parties to this suit, by the trustees and executors of their father’s will.

A suit had boen instituted, by Thomas Henderson and Jean Henderson, the heirs of Peter Henderson, to set aside the provisions of the wills of the testator, which was terminated by the compromise before spoken of. The donations in favor of the general charitable institutions, were satisfied by transfers of property in the city, and the residue of the property of the succession was disposed of. The Forest plantation, and the slaves attached to it, were transferred to George and Caroline Engenie Henderson, wife of Whitman Willcox, and the Elm Park plantation and its slaves to Stephen Henderdon. The Destrehan plantation and its slaves were sold to P. A. Rost, and the undivided half of the Mount Houmas plantation was sold to the owner of the other half,. Henry Doyal. It is not necessary to note the various agreements of the parties, relating to this settlement, it is sufficient, for the present inquiries, to state, that the slaves and plantations were sold together, under an obligation of the parties acquiring them, to comply with the provisions of the will, in relation to the slaves, if the same should be adjudged to be valid, and to be carried into execution.

The wills of the testator are published in full, in the report of the case, in which the court determined certain testamentary dispositions to be invalid. 5 Ann. 458, et seq.

This appeal is taken by the plaintiffs, who are the heirs of the late Stephen Henderson, from a judgment of the Court of the Fourth District of New Orleans, by which their petition was dismissed, with costs.

The suit was instituted for the purpose of compelling the defendants, who are the executors of the testator, to account for, and to pay over to them, their several shares of the assets of the succession. The defendants insist on their right to retain certain funds, for the purpose of carrying into effect the testamentary dispositions of the testator, and ask such a decree from the court as will enable them to liquidate the succession under their charge.

The case was before the court in May term, 1850, and certain articles of the will were declared void and of no effect. It is reported in 5 Ann. 467. One of the questions upon which the opinion of the court was reserved, related to the liberation of the slaves of the testator; that, and the one relating to the legacy in favor of the poor of the town of Dunblane, in Perthshire, in Scotland, have been argued at bar. The judgment in the court below, seems to have been pro forma merely; the argument before us, has been very thorough, and well prepared.

The questions concerning the condition and liberation of the slaves having been reserved for consideration, it only remains for us to consider the validity of the legacy in favor of the poor of the town of Dunblane.

It is in these words: “ Two thousand dollars pey annum to be paid to the poor of the town of Dunblane, in Perthshire, North Britain. This sum to be divided, by the resident minister of the Presbyterian church and the two highest civil officers in the town; to be paid upon due proof of their acceptance of the trust, say $2000. Two thousand dollars for the erection of a school house in the town of Dunblane, for ten years only, and for the purpose of educating the poor, this being the place of my birth.”

We have been favored with the depositions of two witnesses, in relation to this legacy, which, as matters of legal learning of the law of Scotland, we should be glad to give entire, but the length to which the opinions in this case have already been extended, prevents it. The witnesses, Allen Alexander Maconochie, Esq., member of the Faculty of Advocates and Professor of the Roman law in the University of Glasgow, and John Watkins, Esq., of Glasgow, one of the writers of her Majesty’s signet. The result of their testimony appears to be this:

The town of Dunblane is not an incorporated town; it has no corporative powers, privileges, or establishment, but is, and has been, since the passage of the jurisdiction act of George II., as it is called, a mere village in the Barony of Cranlix and Dunblane, and county of Perth, since which time the town, as part of the county of Perth, has been under the ordinary jurisdiction of the Queen’s courts. The hereditary office of Bailie, of the Regality of Dunblane, with the jurisdiction and powers anciently appertaining thereto, was abolished by the act of Parliament referred to, and there are no officers or persons who, in any legal or judicial sense, would answer the description of the two highest civil officers in the town of Dunblane. There is a resident minister, who resides in his manse, situated on the glebe, in or near that town, and who is minister of the parish of Dunblane, of which the town of Dunblane forms only a small portion.

In the interrogatories and answers, the terms used are, the two highest civil officers of the town of Dunblane. The word “ in ” is made use of in the will, instead of “of the town.” But we think the difference, in this respect, is merely verbal, and that the true meaning of the will is, “ officers of the town.” Under the circumstances, we can only consider it as applying to persons in the condition of magistrates, belonging to the town of Dunblane. Although there may happen to be justices of the peace, or one of the sheriff’s substitutes, residing within the town, yet they would no more answer the description than any other of the justices or sheriffs’ substitutes of the county of Perth.

These two learned gentlemen, whose opinions appear to have been prepared with great care and research, concur in stating that, in the courts of Scotland, the legacy in question would not be sustained, but would be held as lapsed, from uncertainty and the want of proper persons qualified to accept the same. They also concur in stating that, although the town of Dunblane should be incorporated by act of Parliament, and thus, for the future rendered capable of receiving such a bequest as the present, it would be deemed unconstitutional, and against all precedent of the rules and practice of Parliament to pass any act having a retroactive effect, or affecting the rights of parties in impending suits or litigations; and thus there is no means by which the deficiency of the want of authority to accept this legacy can be supplied.

It is further in evidence, that there has been no demand ever made on the executors, by any person, for these legacies, and no notice has been given'that they would ever he claimed ; and it is not pretended that executors intend, or have ever attempted, to carry into effect any part of this legacy, of themselves and as trustees under the will. One of them, Judge Rost, in the summer of 1838, repaired to Scotland, on business of the succession, and had an interview with the Rev■ John Grierson, the resident minister at Dunblane. That respectable gentleman then stated to the executor, that he was already informed of the dispositions of dir. Henderson’s will, in favor of the town and the poor of Dunblane; that there were no civil officers of that town having capacity to receive those legacies ; that the town of Dunblane was unincorporated, and had no jurisdiction separate from that of the county of Perth; that the town of Dunblane could not be benefited by the legacy, and that the inhabitants thereof were opposed to receiving it; that, under the law of Scotland, the heritors of the county of Perth were bound to tax themselves annually for the support of the poor of the county; that the inhabitants of the town of Dunblane had no interest in relieving them from that tax; that, as long as matters stood on their present footing, the heritors would take good care to provide for none but the poor of the county; that if a large fund was created in Dunblane for the support of the poor, that town would become the receptacle of the poor of all the neighboring counties. ,

Note. — The following memorandum was endorsed on the record: “ The opinions of Jutioes Slidell and Preston, having no relation to the matter decided, to wit, the Dunblane legacies, will not be reported; thematters to which those opinions relate, being reserved by the decree for the further consideration of the court." George Eustis, C. X

It seems, therefore, that as no action can be maintained against the executors for the recovery of this legacy, they are not authorized to retain the funds of the succession, for the purpose of paying it.

Decree accordingly.


author: Eustis, C. J.

text:
    Lapene & Ferre v. Sun Mutual Insurance Co. of New York.
    As a general rule, the warranty of seaworthiness during the whole voyage is the same, whether the insurance be on the ship, or on goods, and the underwriters are not bound to pay any loss resulting from that cause after the commencement of the voyage.
    If there be unseaworthiness at the commencement of the voyage, and the defect is cured before loss, a subsequent loss is recoverable under the policy.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J.

      Roseliras, for plaintiff.
    Maryhin, for defendant and appellant.
   Eustis, C. J.

This is an action to recover the sum of $8,000, the amount of merchandize shipped on board the schooner William C. Preston, and insured by the defendants for a voyage from New Orleans to the port of Brazos in the State of Texas. There was judgment for the plaintiffs, and the defendants have appealed.

The vessel in which the merchandize was shipped was of some fifty tons burthen, and lay at the Old Basin. The defence is, that she was not seaworthy, and that she deviated from the proper course of the voyage.

It appeared that the schooner left the Basin on the 2d of August, 1851, and from the difficulty in the navigation of the Bayou St. John, she did not get over the bar and leave the Picketts on her voyage until the 6th following. On Friday, the 8th, she put into the Bay of St. Louis for the purpose of obtaining water. She made sail, after taking in her water, on the 9th, and three days after, was burned off Breton’s Island, and with her cargo totally lost. During the delay of the vessel at the mouth of the Bayou St. John, the Captain not knowing, as he says, when there would be water enough to take her over the bar, left her on a visit to his father-in-law at the Bay of St. Louis, and only joined the schoon- or at about twenty miles from that place, and one or two miles from the Rig-o-lets. Finding her short of water he put into the Bay of St. Louis in order to procure it.

The exertions of those on board to get the fire under being unsuccessful, she was abandoned, in consequence of the danger created by her having gunpowder and spirits on board; in a few minutes after she exploded, and everything on board, including the log book, was lost.

The case appears to have been tried in the Court below in such a manner as not to have elicited reasons for the judgment, or any statement of the grounds on which it was given.

There does not appear, to have been any attempt to contradict or weaken by counter evidence the testimony of the plaintiffs’ witnesses. A single witness was examined for the defence on a point about which there is no contest. The evidence has been much commented upon in this Court. It was believed by the District Judge, and has not been successfully impugned by the scrutiny before us.

The want of water was caused, as is said, by the negligence of one of the men in leaving open the cock of one of the pipes containing- water, and, we think, the evidence establishes such a condition of necessity as authorized the delay and deviation at the Bay of St. Louis in order to procure it.

¥e think there is nothing in another ground of defence urged in this Court, viz: that the risk was unduly enhanced by then* being gunpowder among the plaintiffs’ goods. The invoice shows that some twenty keg-s of powder were on board. We do not find any exception in the policy as to gunpowder. It'is construed in the general terms “lawful goods and merchandize,” under which the plaintiffs insured, and is an article notoriously suitable to the market to which the cargo was destined. It clearly comes within the word ca/t'go, which is endorsed on the policy. SeeDuer on Ins., vol. 2, p. 4A&. It is contended that the schooner was not seaworthy, in a technical sense, because at the time she sailed on her voyage her captain was not on board. He was on board at the time she broke ground in the Basin on the 2d of August, and continued in her after her arrival at the Picketts. -.Finding- she could not cross the bar without removing her cargo, he left her in charge of the mate on a visit to the Bay of St. Louis, as has been before stated. It is admitted in argument that she was unseaworthy in making sail, in this condition without her Captain on board, and if a loss had happened while it continued, that the underwriters would not have been responsible; but it is urged that the effect of the unsoaworthiness is not continued beyond the existence of the cause that produced it,' and as the loss had no connection with this cause, but was from a peril insured against, the underwriters are bound to indemnify the insured.

As a general rule, the warranty of seaworthiness during the whole voyage, is the same, whether the insurance be on the ship or on goods, and the underwriters are not bound for any loss resulting from that cause after the commencement of the voyag-e. McDowell & Peck v. the Memphis Insurance Company. 7th Ann. Rep. and cases there cited.

Lori Tenteden in the case of Weir & Aberdeen, 2d Barnwell and Alderson, 320, asserted the law to be, that if there be unseaworthiness at the commencement of the voyage, and the defect is cured before loss, a subsequent loss is recoverable under the policy. This doctrine is understood to have been called-in question in the opinion of the Supreme Court of the United States, delivered by Mr. Justice Story in the ease of McLanahan v. The Universal Insurance Company. 1 Peters Rep., 184. We delayed the decision in the cases of insurance on cargo by this vessel for the purpose of considering the possible objections to this just and reasonable principle. It has received the approbation of Kent; and Judge Phillips, in his work on Insurance has placed it beyond all question as a settled rule of American jurisprudence. This learned author thus states it.

This warranty (of seaworthiness) is not violated so as to defeat the insurance by a merely incidental, temporary deficiency at the commencement of the risk in fitness for the voyage that may be easily remedied, and is so in fact. There are many cases which have been decided on this principle. One was of the needle of a compass attracted by some iron work; another of a vessel being temporarily unseaworthy for want of sufficient ballast; another of a cargo so stowed as to cause the vessel to be out of trim; another of a vessel not having a pilot and yet getting safe over pilot ground. Phillips on Insurance, No. 726. The Courts in New York have decided in the same sense. In the case of the American Insurance Company v. Ogden, the Supreme Court of that State decided that the fact that a vessel was not supplied with anchors when she left port cannot discharge the insurers when the loss was sustained from an injury received from the winds and waters while the vessel was at sea, where it was totally immaterial whether she had one or two anchors, or none at all, so far as the injury is concerned. 15th Wendell, 532; 20th id., 287.

This temporary unseaworthiness, occasioned by the absence of the Captain from the schooner on her passage down Lake Pontchartrain and through the pass of the Rigolets, constitutes no defence to the plaintiffs’ action.

Conceding that the loss of the water from the cask, which created the necessity for the deviation in putting into the Bay of St. Louis, to have been the consequence of the neglect of those on board of her, we consider the fact of deviation as being no defence to this suit. It is not proved that the neglect occurred during the absence of the Captain from the schooner. If it had been, a materially different case would have been presented. Waters v. The Louisville Insurance Co. 11 Peters, 224. Phillips on Insurance, 733 and 734.

There is nothing in this case which creates any suspicion which affects injuriously the plaintiffs, who were shippers of part of the cargo. At the same time the complexion of the facts which appear in evidence is such as to authorize us in expressing our regret that the case was not sifted to the bottom. So far as our action is concerned, however, we are bound to presume that the underwriters have left it in the situation the most favorable to their interests, and we must decide it, accordingly, on the evidence.

It is proper to observe that, under all the policies on goods shipped on board this vessel, the barratry of the master and mariners is one of the risks insured against.

The judgment of District Court is, therefore, affirmed with costs.


text:
    St. Victor Barret v. New Orleans Insurance Company of New Orleans.
    Appeal from the Fifth District Court of New Orleans. Buchanan, J.

      Bu-four, for plaintiff.

      Benjamin & Micou, for defendants and appellants.
   Eustis, C. J.

This is an action on a policy of insurance on goods shipped on board the schooner W. C. Preston. The facts do not appear to be materially different from those disclosed in the case of Lapéne & Ferré, just decided.

For the reasons given in the opinion filed in that case, the judgment appealed from is affirmed with costs.


author: Rost, J.

text:
    Frederic Bonis v. Jules Louvrier.
    Plaintiff and Defendant formed a commercial partnership. Plaintiff was to furnish the entire capital, upon which he was to received six per cent, interest and two-thirds of the profits. Defendant was to receive sixty dollars per month for his expenses and one-third of the profits. Plaintiff did not furnish the stipulated capital—and for want of sufficient means the partnership was dissolved with a loss equal to the whole amount of capital furnished. Held: Defendant was not liable for any portion of the loss, and was entitled to his sixty dollars per month. Both parties seek to avoid a loss, and it should be borne by him who was most in fault.
    Appeal from the Second District Court of New Orleans, Lea, J.

      Dufour, for plaintiff.
    Schmidt, for defendant and appellee.
   Rost, J.

On the first of May, 1844, the plaintiff and defendent formed a commercial partnership which was to continue three years. The capital of the firm was to be furnished exclusively by Bonis and was to be derived, 1st. from the stock of merchandise then in his store, of which the defendant had charge, valued at $6,388;

2d. From the nett proceeds of the liquidation of the old business of Bonis, the amount of which was valued by him at about $10,000.

He was to receive six per cent, interest on the capital advanced and two-thirds of the profits of the partnership; the other thud of the profits being the share of the defendant.

Bonis furnished little more than one-fourth of the capital he had promised. For want of sufficient moans the firm could not be carried on to advantage and was dissolved on first of January, 1847, with a loss at least equal to the entire capital furnished.

The object of the plaintiff in this suit is to recover one-third of that loss and also the sum of $1,795 30, which the defendant received for his personal expenses during the continuance of the partnership. The defendant resists the claim on the ground that the plaintiff was in fault in not furnishing the capital which he had bound himself to bring into the firm and that this alone prevented the firm from realising large profits. He claims the probable amount of those profits in reconvention.

The District Court rejected the claim against the defendant for his share of the loss and his own demand in reconvention, but gave judgment in favor of the plantiff for the sum received by the defendant.

The latter has appealed, and as the plaintiff has not prayed for an amendment of the judgment, we have only to pass upon the claim allowed.

It is always difficult to apply rules of law where the facts are vague and uncertain. We fully agree with our learned brother of the District Court that 11 le procklit de la liquidation des anciennes affaires de Mr. Bonis,” which he, Bonis, brought into the firm as part of its capital, was a thing indeterminate and subject to contingencies of which the defendant must have been aware; at the same time it must be conceded that while both parties may have been disappointed by the result of the liquidation, Bonis was mainly in fault. He, it was who represented those assets as worth about §10,000, and there Is nothing to show that the dofendont knew what they consisted of, or that the cause of their loss originated after the formation of the partnership. The anciennes affaires of the plaintiff embraced other business besides his previous partnership with Ibas, and it does not appear that the defendant had any reason to believe that the promised capital was to be mainly derived from that source,

Under the eighth article of the act of partnership, the defendant was authorized to take out of the funds of the firm sixty dollars a month for his personal expenses, and the amount thus taken was to be deducted from his share of profits. This stipulation was indispensable, the defendant having no capital and bringing into the firm nothing but his industry and his knowledge of business. The amount he has received is less than he.was entitled to take and the plaintiff now sues to make him refund on the ground that no profits have been made. The evidence satisfactorily shows that the failure to make profits was caused by the want of capital which the plaintiff had agreed to furnish. Taking this fact into consideration, we think that the equitable rule under which the other claims in the suit wore rejected by the District Judge, applies with at least equal force to the claim allowed. Both parties seek to avoid a loss, and it should be borne by him who is the most in fault.

We are of opinion there must be judgment for the defendant.

It is ordered that the judgment, so far as appealed from, be reversed and that there be judgment in favor of the defendant, with costs in both Courts.

Rehearing refused.


author: Slidell, J.

text:
    Thomas Hudnall v. Watt & De Saulles and Robert Y. Jones.
    Parole evidence is inadmissible to prove either the sale of a slave, or acknowledgments tending to shew the ratification of an unauthorised sale of a slave.
    Appeal from the Fifth District Court of New Orleans, Buehcman, J.

      J. and J. Henderson, for plaintiff and appellant.

      Benjamin & Hiaou and Day, for defendants.
   Slidell, J.

The plaintiff claims a slave in the possession of the defendants. They, being lessees, called in their lessor, Jones, who pleaded the general issue, prescription and title. There was judgment for the defendants, and the plaintiff appealed.

A bill of exceptions was taken by the plaintiff to the admission of the testimony of one Moore, who proved the verbal acknowledgment of the plaintiff that he had sold the slave in New Orleans to one Brown; under whom Jones claims, through various mesne conveyances. It may be conceded that parole evidence is admissible to prove the sale of a slave made in a State of this Union, where such property may be sold by a verbal contract. But as the witness expressly stated that he understood, both from Hudnall and Brown, that the sale took place in New Orleans, we are of opinion that the parole evidence was inadmissible, under the positive provisions of the Code and numerous decisions made upon them. “ All sales of immovable property, or slaves, shall be made by authentic act, or under private signature. All verbal sale of any of these things shall be null, as well for third persons as for the contracting parties themselves, and the testimonial proof of it shall not be admitted.” Civil Code, 2415. “Every transfer of immovable property, or slaves, must be in writing; but if a verbal sale, or other dispositions of such property be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property or slaves thus sold.” lb., 2255. “ The allegation of extra-judicial confessions, merely verbal, is useless in all cases of a demand, in support of which testimonial proof would be inadmissible.” lb., 2269. These articles of the Code, or similar articles of the Code of 1808, and the admissibility of such evidence as we are considering, have been acted upon in many cases. See Adams v. Gayward, 5 New Series, 250. Crill v. Phillips, 6 New Series, 302. Bradford v. Clark, 7 Louis., 150. Haydel v. Betts, 6 Rob., 439.

We are also of opinion that the Court erred in admitting testimony as to verbal acknowledgments of the plaintiff, tending to shew a ratification of an unauthorised sale made by Brown. The same rules we have already noticed, involve its exclusions. See Adams v. Gaynard, and the other cases above cited. In this case, as in the other first considered, the parole evidence goes to defeat the plaintiff’s title.

Nor are we able to sustain the judgment upon the prescription of five years, established by Article 3444 of the Code, which provides that the property of slaves is acquired in five years between parties residing in the State, and ten years when any of them reside out of the State, where the possessor has a title and holds in good faith. Jones exhibits no title, and the evidence is insufficient even to establish a continuous possession during- five years in the antecedent vendee, BaAley, or Bailey's vendee, Botts, from whom, in his answer, Jones alleges that he purchased.

It is proper to add that no call for the note of Brown, spoken of by some of the witnesses, was made, pursuant to the Code of Practice, Art. 140.

It is therefore decreed that the judgment be reversed, and that this cause be remanded for a new trial, the appellees to pay the costs of the appeal.


author: Eustis, 0. J.

text:
    John Megget v. George Lynch.
    Matters available in the defence of a suit will not authorize an injunction.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J.

      Wolfe & Singleton and James W. Duncan, for plaintiff and appellant.

      Eoselius and Bright, for defendant.
   Eustis, 0. J.

This appeal is taken by the plaintiff from a judgment of the Court of the Eifth District of New Orleans, dissolving an injunction which had been obtained at his instance.

This injunction was against any further proceedings under a writ of fieri facias which had been issued on a certain judgment which had been rendered in favor of the defendant against the plaintiff’.

The injunction was dissolved on motion of the defendant’s counsel, and damages of ten per cent, were awarded against the plaintiff and his surety, on the injunction bond.

The fieri facias, the proceedings under which were enjoined, was issued on a judgment obtained by the present defendant on a promissory note made as far back as 1845- The judgment was rendered on the 21st of February, 1851, the suit having been put at issue in 1848, the year in which it was instituted. The defence was the want of consideration of the note, and a legal discharge of the indebtedness.

The matters charged in the petition as grounds for the injunction, took place in 1845, and were available to the plaintiff in the defence of that suit, if at all available. It is clear that on this ground alone, under the well settled jurisprudence of this Court, no injunction ought to have been granted to relieve the plaintiff, and the District Court did not err in dissolving it. Hennen’s Digest verbo injunction, II., C, 45, 50, 64. The facts alleged by the plaintiff are certain judicial proceedings in execution of Lynch against certain slaves mortgaged to secure the note on which the judgment complained of was rendered, by which proceedings the plaintiff urges that his rights as a surety on the slaves have been impaired. These proceedings having been public and matters of record, and concerning property which the plaintiff had an interest in making available for the security of his responsibility on the note, his allegation of want of knowledge, &e., is not to he heeded on an application of this kind.

Eor the reason of the amount called for by the execution, and the costs having-been deposited in the hands of the Sheriff by the plaintiff, and the agreement respecting the same, we do not feel ourselves at liberty to amerce the party in a larger sum than that fixed by the judgment of the District Court.

The judgment of the District Court is therefore affirmed with costs.


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    James B. Prescott v. James N. Spurlock et al.
    Actions en declaration de simulation may be brought on all claims sounding in money, although they be liquidated by a judgment, or pending in other suits.
    In these actions an incidental prayer for judgment on a claim for which there is a pending suit—in' the event that none shall have been rendered in such suit—is not sufficient to defeat the main action, and on proper proof, the simulation may be decreed, although there should be no judgment for the amount demanded.
    APPEAL from the District Court, Tenth District, Parish of Carroll, PerTains, jr., J.
    Plaintiff sued Jemes J5T. Spurlock for various causes of action, on a note, open account, judgment, &c. He charged that certain property owned by James N. Spurlock had been fraudulently mortgaged to Drury Spurlock in order to defeat plaintiff’s right. He averred that suits were now pending for portions of the claims herein sued for, and prayed that if no judgment should he obtained by the time of the final hearing on this portion, that he have judgment for the several amounts, and that the mortgage, &e., he set aside.
    Defendants excepted to the petition “ on the ground that all the causes of action against defendant, as set forth in plaintiff’s petition, are, by plaintiff’s own shewing, now depending and undecided, &c,” except “the suit No. 1728, which is in a judgment—that an execution has issued on said judgment, &c., levy made, &c., on property alleged to bo that of this defendant.”

      QrcCham, for plaintiff and appellant.

      Dubose, for defendants.
   Rost, J.

This is an action en declaration de simulation, which may he brought on all claims sounding- in money, although they he liquidated by a judgment, or pending in other suits, &c. 2nd Zacharie, 841; and authorities there cited.

We ai’e opinion that the exception of lis pendens should have been overruled, and the defendant allowed to proceed in his main action.

It is ordered that the judgment be reversed, the exception overruled, and the case remanded for further proceedings according to law, with directions to the District Judge to proceed and decide the question of simulation. It is further ordered that the defendant and appellee pay the costs of this appeal.


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    Cecily Beckley et al. v. Mary Clark, adm.
    A promise to pay a sum of money to a wife, for a wound, inflicted by the party promising, on her husband—whether or not death ensued—is binding.
    APPEAL from the District Court, Tenth District, Parish of Madison, PerTcins, jr., J.

      Amonett, for plaintiff.

      Snyder, for defendant and appellant.
   Eustis, C. J.

This appeal is taken by the defendant from a judgment rendered against the succession of the late Allen Glande, in favor of the plaintiff, for the sum of $482 50, with interest from the judicial demand.

The action is brought on a promise alleged to have been made by the deceased, Allen Glande, to the plaintiff, who was the wife of Ohandes BecTcley, to pay her the sum of five hundred dollars, for damage done to her said husband by said Glande, $250 of which were to have been paid in merchandise and necessary supplies for the use of her family in the year 1849, and $250 in the next succeeding year, of which some $17 50 were received in the lifetime of said Glande.

This promise and agreement is proved to have been made, as alleged, on the 5th November, 1848. Beclcley died of the wounds inflicted on him by Allen Glande, on the 18th following, and payment of a portion of this sum, by the direction of Glande, is also proved to have been made.

It is contended that there was no adequate consideration for this agreement. Whether the sum agreed to be paid to the plaintiff was to repair the injury caused her by the wounding of her husband, or by his death, the promise is equally obligatory. Hubgh v. the Carrrollton Railroad Co., 6th Annual Rep., 498. Code, Art. 1749, 1750, § 2; 1752, § 2.

The judgment of the District Court is therefore affirmed, with costs.


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    John Thorne v. A. H. Tait and Edgell, Mulford & Co.
    Where the agent contracts for a foreign principal, the credit is presumed to be given to him.
    Appeal from the Fourth District Court of New Orleans, Sln'a/wbridge, J.

      E. O. Mix, for plaintiff.

      Wolfe and Singleton, for Edgell, Mulford & Go., appellants.
   Rost, J.

The defendants being sued for work done on their account by the plaintiff, in putting up a steam train, for the manufacture of sugar, on the plantation of John Sagan, pleaded as a defence that they were acting in the premises as the agents of Walworth & Sasson, of the city of Boston, to the knowledge of the plaintiff, and had never made themselves personally liable for his claim.

We think, with the District Judge, that under the facts of the case the defence is not tenable. The question, in all cases of this kind, is simply to whom the credit is given, and whore the agent contracts for a foreign principal, the credit is presumed to be given to him. Paley on Agency, No. 369 and 373.

The evidence in the record, so far from rebutting that presumption, comes in aid of it, and fully satisfies us that credit was given exclusively to the defendants.

The judgment must be affirmed, but we do not consider this a proper case for the allowance of damages.

Judgment affirmed, with costs.


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    Josiah Stanborough v. Dugall McCall. David Stanborough, Curator, v. same—Opposition of R. H. Stockton.
    Under a f. fa. from the Circuit Court of the United States, in a suit against David Stanborough, the Marshall, without any permission from the District Judge, went into the Clerk’s office in the District Court of the Parish of Madison, in which were certain suits pending, entitled J. Stanborough v. D. McCall, and seized the notes sued on* and also made, what he terms in his return, a seizure of the judgments, or decrees of seizure and sale, and gave notice of seizure to the Clerk of the Court and to the Curator, D. Stmiborough, but none to McCall, the debtor. StocJdon afterwards bought these notes at the sale made by the Marshall. Meld: that the proceedings of the Marshall were a gross and unprecedented disturbance of the Clerk in the performance of his official duties as custodian of the records of the Court, and conferred no title upon StocJdon, at whose instigation, it seems, they were had. The Marshall had no right to take the notes without a previous order from the District Court, in whose custody they were; and the acts done by the Marshall were insufficient to effect a seizure and form the basis of a sale.
    Appeal from tbe Third District Court of New Orleans, Kennedy, J.

    Bemiss for plaintiff.

      Stockton and Steele for opponent.
   Slidell, J.

Stockton’s claim to the money in the hands of the Sheriff, rests upon the validity of his alleged title to the notes which bear'mortgage upon the land sold. The District Judge was of opinion that Stockton's title was invalid, and gave judgment against Mm, from which he has appealed.

Stockton claims under a sale by the Marshall of the United States, under the following circumstances: One of the mortgage notes was on file in the Clerk’s

office of the District Court for the Parish of Madison, in the suit of J. Stanborough v. D. McCall, the maker of the note. In this suit there was an order of seizure and sale. The two other notes were, in like manner, on file in the suit of Stanborough, curator, v. MCGall, in which there was also an order of seizure and sale.

Under a,fieri-faeias issued from the United States Circuit Court, in the suit of the Farmers' Bank of Virginia v. Dacid Stanborough, curator, the Marshall of the United States, without any permission from the District Judge of Madison, in whose court the suits were pending, went to the Clerk’s office, seized the notes, and also made, what he terms in his return, a seizure of the judgments or decrees of seizure and sale in the two suits, and gave notices of seizure to the Clerk of the Court and to B. Stanborough, the curator, but none to the debtor. The manner of the seizure is thus stated by the Clerk of the Court, who was examined as a witness: “In 1849 a gentleman entered the office and introduced himself to witness, calling himself Smith, and requested witness to show him the papers in the suits of Josiah and David Stanborough v. Dugall McGall. Witness showed all the papers to Smith, and explained everything in relation to them as well as he could. Smith then asked witness if the papers which he then held in his hand belonged to the two suits ? Witness replied that they were all the papers. Smith then said, ‘I levy on .these suits as United States Marshall.’ Witness told him that he could not take them away, as they were the records of the Court. Smith then said he had R. O. Stockton’s instructions, and would have to follow them. Witness then remonstrated with him, and proposed to Smith to envelope the suits, direct them to him, and deposit them in the Recorder’s office,, with the understanding that Smith would examine the law, and see if he had any authority to take the papers away; and if he found he had no authority, ho would return them; and if he had authority under the law to make the seizure, and take them into his possession, he was to do so. The notes of the two suits and protests were then enveloped and sealed, directed to 'Smith, United States Marshall,’ and witness and Smith went together to the Recorder’s office, where they were deposited, the Clerk retaining the balance of the papers in the two cases.” The Marshall then advertised the notes and judgments for sale, and at the sale Stockton bought them.

We consider these proceedings of the Marshall as a gross and unprecedented disturbance of the Clerk in the performance of his official duties, as custodian of the records of the Court, and as conferring no title upon Stockton, at whose instigation, it seems, they were had, and who purchased under them. It is clear that the Marshall had no right tp take the notes without a previous order from the District Court, in whose custody they were; and the other acts done by the Marshall were insufficient to effect a seizure and form the basis of a sale. See Hanna v. Bry, 5 Annual, 656. See, also, Price v. Emerson, 7th Annual, p. —

Judgment affirmed, with costs.


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    Urilda Smith v. Blois and Others.
    Blois leased a warehouse from plaintiff, in which were certain goods bought by him. ne transferred these goods to his vendor in part payment of the price, who sold them to other parties. Plaintiff sequestered the goods, and claimed upon them the lessors privilege. Held: that, as the transfer by the lessee, and subsequent sale by his vendor, took place before there was any default by the tenant to pay his rent, and before any action taken by the landlord, the lessor had no privilege.
    Appeal from the Fifth District Court of New Orleans, Buchanan, 3.

      Labatt, for plaintiff and appellant.

      Gedge and Bright for defendants.
   Slidell, J.

The object of this action is to rescind a transfer of certain merchandize made by Blois, the plaintiff’s tenant, to the vendor of the goods. At the time when this transfer was made, Blois seems to have been in embarassed circumstances. The goods were in the warehouse leased by the plaintiff to Blois; they were delivered from the warehouse to the vendor, who credited their value upon the debt due to him b j Blois for their price, and afterwards sold the goods to another person. All this took place before there was any default by the tenant to pay his rent, and before any action taken by the landlord. •

Under the above circumstances we think the revocatory action was properly dismissed. The caso appears to us to bo covered by the decision in Walden v. Parish, 7 Rob. 245. See also Civil Code, 2675, 2679, 3280, 2539.

Judgment affirmed; plaintiff to pay costs of appeal.


author: Eustis, C.‘J.

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    Succession of Edward C. Mielke.
    A slave was inventoried as the property of the succession of Mielke. The curator of the succession took a rule on the slave, and on Hutchison, who held the slave in possession, to test the condition of the person claimed as a slave, and the right of possession of Hutchison. Hutchison excepted to the proceeding by rule. Held: that there is no warrant in the law for the mode of proceeding adopted by plaintiff, nis remedy is by an action.
    Appeal from the First District Court of New Orleans, La/rue, J.

      Mott & Fraser for plaintiff and appellant.

      Marr & Tappan for defendants.
   Eustis, C.‘J.

The appellant, 3. £. W. Sill, was appointed by the Court of the First District of New Orleans, curator of the succession of Edward C. Miellce, deceased. A certain female slave named Sa/rah Saines, was inventoried as belonging to the succession, and appraised at the sum of five hundred dollars.

At the instance of the appellant a rule was taken on the slave, and on Ghwrles G. Hutchinson, as guardian of Constance Miellce, and in his own right, to show cause why the said slave should not be delivered up to him as the property of the succession.

In this way the appellant sought, it seems, to test the condition of the person claimed as a slave, and the right of possession of the respondent Hutchinson, who excepted to this mode of proceeding.

The District Judge discharged the rule, and from this decision, an appeal is taken.

There is no warrant in the law for the mode of proceeding adopted by the appellant. His remedy is by an action. Baker & Doane, 3 Annual Rep., 434. We have, on some occasions, adjudicated upon matters in litigation in the form of a rule and answer, under the consent of parties, when the form of proceeding would hardly justify it, in order to terminate matters submitted to us. It is obvious, however, that any mode of proceeding which does not carry with it the elements of res judicata, ought not to be encouraged by Courts, and that alone ought to be followed which conforms to the law of actions.

The judgment of the District Court is, therefore, affirmed with costs.


author: Dunbak, J.

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    Edmond M. Gould v. Gardner, Sager & Co.
    Action for malicious arrest in a civil suit. Defendant’s counsel asked the Court to instruct the Jury—
    1. “That in order to enable the plaintiff to maintain this action against the said defendants, it is necessary for him to prove malice; or that the arrest complained of was made, or procured to be made by the said defendants from malicious motives, and without probable cause.
    2. That if the Jury believed from the evidence that the said defendants in making or procuring said arrest, acted under the advice of counsel, given in good faith, and believed at the time that they had a good cause of action against him, the said Gould, and a legal right to hold him to bail therefor; that they, the said defendants, are not liable in damages to the said plaintiff in this action. The Court refused so to charge the Jury. Held: that the Court erred.
    Appeal frofn the Fourth District Court of New Orleans.

      Strawbridge, J. Hunton & Bradford, for plaintiff.

      Grymes, for defendants and appellants.

      Plaintiff’s counsel
    cited C. C. 1928, § 8, 2294, 1295. Escurix v. Daboval, 13 L. R- 90. Neman v. Chamberlin, 5 Rob. 11G. Edwards v. Turner, 6 Rob. 382.

      Grymes for defendants
    cited Snow v. Allen, 1 Starlrie’s Rep., 2d ed. E. C. L. Rep., 191. Silversides v. Bowley, 1 Moore, 92. Bavinger v. McIntosh, 3 Baru. & Cress, 693. Spences' v. Jacob, 1 Moo. & Mai., 180. George v. Badford, 3 Carr & Payne, 464.
   Dunbak, J.

This is an action for damages for a malicious arrest in a civil suit. The case was tired by a Jury, and there was a verdict and judgment for eight thousand nine hundred dollars against the defendants, who have taken this appeal.

On the trial of the cause, the defendants by then- counsel moved the Court to instruct the Jury, “First. That in order to enable the plaintiff to maintain this action against the said defendants, it is necessary for him to prove malice, or that the arrest complained of was made or procured to be made by the said defendants from malicious motives, and without probable cause. Second, That if the Jury believed from the evidence that the said defendants in making or procuring said arrest, acted under the advice of counsel given in good faith, and believed at the time that they had a good cause of action against him, the said Gould, and a legal right to hold him to bail therefor, that they, the said defendants, are not liable in damages to the said plaintiff in this action.” Which instructions the Court refused to give, but charged the Jury, “ That the law as laid down by defendants’ counsel would bo correct if the common law prevailed in this State; but the Civil Code is our rule of action, and by that malice is not essential to sustain an action for damages. Malice may bo an ingredient in the wrong to heighten, or to diminish the damages; but the rule is that every act of man which causes damage to another, obliges him by whose fault it happened to repair it.” Every act, “not every malicious act, but every act, acts of carelessness without malice, errors without malice, are causes of damage under the Civil Code. Merlin title Quasi Offences. Of the amount of damage the Jury are the exclusive judges, and the damages ax-e not confined to mere monied loss. Civil Code, Art. 1928. That the man who undertakes a law suit does it on his own responsibility and at his own risk; the advice of the counsel he may select, cannot screen him from the consequences.”

In the case of Sénécal and another v. Smith, 9th Robinson, 240, our predecessors held that in cases of this kind it is well settled that malice and the want of probable cause in the original action, are essential ingredients. Malice may be expressly proved, or it may be inferred from the total want of a probable cause .of action; but malice alone, however great, if there be a probable cause upon which the suit or prosecution is based, is insufficient to maintain an action in ■damages for a malicious prosecution, and referred to numerous authorities in ■support of that position.

This Court decided in the case of Hubgh v. New Orleans amd Carrollton Railroad Company, 6 Annual, 495, “ That the dispositions of Art. 2294 are found in the Roman and Spanish laws; so far from being- new legislation, that article .embodies a general principle as old as the science of jurisprudence itself, and it -must still be understood, with the limitations affixed to it by the jurisprudence ■of Rome and Spain. Domat, Lois Civiles, tit. Damages causes pan' des fautes, p. 180, parag. L”

Upon a rehearing in the same case this Court said, “ The Art. 2294 of our Code provides that every act whatever of man that causes damage to another, ■obliges him, by whoso fault it happened, to repair it. The provisions of this Art. however general and comprehensive its terms nxajr be, are found more than once recited in terms equally general and comprehensive in the laws of the fifteenth title of the seventh Pendidas. The article was inserted in the Code of 1808, at a time when the Spanish laws were in force. It was put and retained to this time in the Code not for the purpose of making any change in the law, but because it was a principle which was in its proper place in a Code ; a principle which would be equally recognized as a necessary conservative element of society, and equally obligatory whether it was formally enacted in a Code, or not.”

It appears that the defendants in this case were not without probable cause for the arrest of Gould. They acted by the advice of eminent and learned counsel, whose opinion was formed upon a decision of that distinguished jurist, the late Judge Martin, in the case of Abat v. Robetaille, 4th Louisiana Reports, 226, which for about twenty yeai'S had been considered as the proper construction of the law of arrest, until overruled by a decision of this Court in this very case of the arrest of the plaintiff Gould, reported in 5th Annual, 853, Gardner, Sager & Co. v. O'Connell and Gould, upon which this action is based. Although we still adhere to our decree in this last mentioned cause, yet there can he no doubt under the circumstances and previous decisions, that the defendants had in their action probable cause for the arrest of Gould.

In an action for a malicious suit in the case of Wm. Stone v. Asa Swift, Jr., 4th Pickering’s Reports, 389, the Supreme Court of Massachusetts directed that the Jury would settle the fact, whether Swift (the defendant) acted bona fide in regard to the consulting of counsel, and believed that he had a good cause of action, and honestly pursued the advice and direction of his legal adviser, or otherwise. If he did, this action could not be supported; if he did not, it might he maintained, and the Jury would assess the proper damages.

The question in the present case is not whether the defendants had a probable cause of action; that has been placed beyond doubt by the judgment obtained in them favor against Gould for the whole of them demand against him; but whether they had probable cause for the arrest; and we have already said that they had. In the case of Foshay v. Ferguson, 2 Denio, 619, the Court said, “ There was evidence enough in the case to warrant the Jury in finding that the defendants set the prosecution in motion from a bad motive. But all the books agree that proof of express malice is not enough, without showing also the want of probable cause. Probable cause has been defined a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offence with which he is charged. However innocent the plaintiff may have been of the crime laid to his charge, it is enough for the defendant to show that he had reasonable grounds for believing him guilty at the time the charge was made.”

Our Codes and Statutes have not provided any rules to guide us on the trial of such actions, and we are governed, in the absence of positive legislation, by the rules laid down in the authorities quoted, because we consider them just and reasonable in themselves. We therefore think that the District Judge erred in not giving to the Jury the instructions asked fpr by defendants’ counsel, as before stated in this opinion, and for that reason remand the case for a new trial. It is therefore ordered, adjudged and decreed that the judgment of the District Court be reversed, and a now trial granted, with instructions to the Judge to charge the Jury in conformity to the principles set forth in this decree, and that the plaintiff pay the costs of this appeal.


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    John Perkins, Jr. v. Mary E. Potts, his Wife.
    No separation of husband and wife can be decreed for cause of abandonment without a compliance with Article 148 of the Code.
    The law presupposes the possibility of a reconciliation between husband and wife, and its policy is to bring them together again.
    Vague and general allegations cannot support a petition in an ordinary civil suit. The cause of action—the object of the demand and the nature of the title, must be stated with such certainty as to apprise the defendant of every circumstance necessary to put him on his just defence, and to bar a subsequent investigation of matters once decided. A party can be permitted to derive no advantage from the obscurity, or generality of his allegations.
    Sound policy requires that there should be no relaxation of these rules, especially in proceedings of this kind, which involve the fate of individuals, and the most important interests of society.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J.

      A. N. Ogden and Sami. R. Walker, for plaintiff and appellant.

      H. S. Strcvwhridge, for defendant.
   Eustis, C. J.

This appeal is taken from a judgment of the Fifth District Court of New Orleans, dismissing the plaintiff’s petition.

The plaintiff has brought this action for the purpose of obtaining a decree of separation from bed and board from the defendant, his wife.

The defendant is absent and an attorney was appointed to represent her.

The District Judge considered that the only ground for a separation on which this action was based, was that of abandonment on the part of the wife, and that the proceedings required by the 143d Article of the Code not having been followed by the plaintiff his action failed.

This article provides that the abandonment with which the husband or wife is charged must be made to appear by three reiterated summonses made to him or her from month to month, directing him or her to return to the place of the matrimonial domicil and followed by a judgment which has sentenced him or her to comply with such request, together with a notification of said judgment given to him or her from month to month for three times successively. The summons or notification shall be made to him or her at the place of his or her usual residence, if he or she lives in the State, and if absent, at the place of residence of the attorney who shall be appointed to represent the absentee.

The law presupposes the possibility of a reconciliation of the parties, and its policy is to bring them together again. We concur with the District Judge in the opinion that no separation can be decreed for cause of abandonment without a compliance with the requisites of this article.

It is insisted by counsel that this cause of abandonment is not the only one alleged in the petition.

The petition charges that the plaintiff whose domicil was in New Orleans, was married in New York to the defendant in 1850, that the marriage was contracted with a view to make Louisiana their permanent place of residence, that shortly after marriage the parties sailed for Europe, and while residing in Paris, his wife, without any cause, abandoned their common dwelling and concealed herself from the petitioner for the space of six weeks, and that since her desertion she has removed to and resides with her father in the city of New York. The petition contains allegations of kindness and affection on the part of the husband and the failure and refusal on the part of the defendant to perform the duties incumbent on her as a wife; that her desertion, her conduct and her treatment of him has been cruel and unjust to him to such a degree as to render their living together as man and wife insupportable, unadvisable and impossible. But with the exception of the abandonment, no acts of the wife are stated, no facts alleged in the manner in which they can be adjudicated upon. This proceeding against an absentee for the purpose of dissolving a marriage is of the gravest possible character, and we think the judge was right in refusing to act on any portion of the petition, except that which contained a cause of action exhibited in a legal form.

Vague and general allegations cannot support a petition in an ordinary civil suit. The cause of action, the object of the demand and the nature of the title, must be stated with such certainty as tq apprise the defendant of every circumstance necessary to put him on his just defence, and to bar a subsequent investigation of matters once decided. A party can bo permitted to derive no advantage from the obscurity or generality of his allegations. The allegations of the petition are all of that character, except that relating to the abandonment, and not sufficient to put the defendant on her defence.

Sound policy requires that there should be no relaxation of these rules, especially in proceedings of this kind, which involve the fate of individuals and the most important interests of society.

There is no proceeding in the Ecclesiastical Courts in England in cases of this kind without a proper statement of the facts charged. Not that the case should be loaded with supernumerary circumstances, but it is always required that the charge should be made in such a form as to apprize the party of the facts intended to be established. 1 Haggard, 738, note Popkin v. Popkin. 3 English Ecclesiastical Reports, 325. D'Aguilar v. D'Aguilar, id., 329. 1 id., 200.

The same practice prevails in France and none other is tolerated by the Court of Cassation. Sirey, 6, 2, 572j id., 7, 2, 907. Id., 6, 2, 528; id., 11, 2, 243. Journal du Palais, 14, 391.

The judgement of the District Court is therefore affirmed with costs.