author: InsnEY, J.

text:
    Wright & Maury v. John C. Rogers.
    Redhibition is a remedy which the law accords to buyors, and it may be exercised by them in two ways: either by direct action, or by way ol defence to an action for the price of the thing sold; but, in either form, the remedy originales, for all practical purposes, with the buyer, and the seller is not bound to anticipate the buyer’s resort to it. "When this remedy is used in answer to a demand for the price, to avoid a sale, the seller is not required to make any averment to let in his proof, to nhow that he did not contract the obligation to warrant the thing sold against redhibitory vices; for our law does not require a replication or rejoinder, as all matters set up in an answer are understood to be open to every objection of law and fact, as if these objections were specially pleaded.
    A clerk who receives, as remuneration for his services, a certain per centage of the profits made by his employer, is a competent witness for his employer. His interest is too remote to disqualify him on tho ground of interest in the result of the suit.
    APPEAL from the Fourth District Court of New Orleans,

      Thearcl, J. G. B. Singleton, for appellant. Buchanan <& Gilmore, for appellees.
   InsnEY, J.

The plaintiffs in this case claim from the defendant the balance of the price of 1717 sacks of oats, of which 320 sacks were delivered to and paid for by the buyer, John C: Rogers, who refused to receive and pay for the remaining 1397 sacks, because, as he avers in his answer, “the said oats were badly heated, and thereby injured seriously, and thus rendered unmerchantable.

It seems to be conceded that the oats were of light and inferior quality and defective; but plaintiffs say that the sale is not subject to redhibition on that account, because the oats were sold at a low price on account of their light and inferior quality; because no representation of quality or condition was made, and, least of all, any representation calculated to deceive the defendant, or to throw him off his guard in any way; that there was no concealment of any fact known to the plaintiffs, that, on the contrary, the oats were sold without any regard to class, quality or condition; that the defendant not only had an opportunity of inspecting the oats, but did inspect them, and knew their quality and condition as well, or even better than the sellers.

If the evidence in the record establishes all this, or even some of the facts thus urged, by way of replication to the defence set up, the plaintiffs are certainly entitled to a judgment.

Before proceeding to examine some of the evidence adduced on the trial of the case, we must ascertain whether objections to its introduction, presented by bills of exception, were properly sustained or overruled by the Court below.

The plaintiffs offered to prove by a witness, that the oats, alleged in the petition to have been sold by the plaintiffs, were not sold as a merchantable article, but that they were sold without regard to their quality, class or condition, and the defendant objected to this evidence, on the following grounds :

1. That the plaintiffs allege in their petition, in general terms, that they sold and delivered to the defendant 1717 bags of oats, at a given price; that this allegation, in law, is equivalent to alleging that they sold and delivered to the defendant 1717 bags of merchantable oats ; such a sale contains an implied warranty that the oats were in a sound and merchantable condition.

2. That the answer of the defendant, that the said oats were heated, injured and rendered unmerchantable, put at issue only the allegations contained in the petition, as stated in the ground first above named.

3. That the answer could not have the power of originating an allegation neither implied nor alleged.

The objection to this evidence was more specious than sound, and the Court did not err in overruling it.

The allegation in the petition, that the plaintiffs sold and delivered to the defendant so many sacks of oats, did not necessarily and absolutely admit that the article so sold was a sound and merchantable one.

The allegation in the petition would not have been inconsistent with an averment, made by way of supplement, at any time, that the oats sold, as alleged in the petition, were defective; but that the buyer was fully aware of any defects therein, and bought them subject to such defects; but, if the construction, which we deem a strained one, put by the defendant’s counsel on the word “oats,” in the petition, meant indubitably merchantable oats, was the correct one, then no amendment to the petition tending to show that the oats were unsound, could have been admissible, as it would have contradicted the judicial admission that the oats were merchantable.

Redhibition is a remedy which the law accords to buyers, and it may be exercised by them in two ways: either by direct action, or by way of defence to an action for the price of the thing sold; but, in either form, the remedy originates, for all practical purposes, with the buyer, and the seller is not bound to anticipate the buyer’s resort to it. When this remedy is used in answer to a demand for the price, to avoid a sale, the seller is not required to make any averment, to let in his proof, to show that he did not contract the obligation to warrant the thing sold against redhibitory vices; for our law does not require a replication or rejoinder, as all matters set up in an answer are understood to be open to every objection of law and fact, as if these objections were specially pleaded. See Dayum v. Coiron, 3 La. 392. Art. 329 C. P.

The plaintiffs objected to George Heck as a witness to testify for the defence, because he was interested in the result of the suit; but the Court received his evidence, being of the opinion that he was merely a clerk or agent, receiving one-third of the profits of the defendant instead of a salary, but without any control of his employer’s business.

Upon the authority of Diggs & McKeever v. Kirkland el al., 8 An. 310, this witness was a competent one. The Court, in that case, said : “ The interest was contingent and too remote, in our opinion, to exclude the witness; it was such an interest as could only affect his credibility.”

The rule thus enunciated is appositely applied in regard to the witness Heck, and the Court below did not err in receiving it,’ as he did.

The Court also excluded the evidence oí other witnesses offered by tho defendant, on the ground that they could only testify to facts, and not speculatively, as appears from two bills of exception. A perusal of the questions propounded to these witnesses satisfies us that the Court did not err; for it has been repeatedly decided that the impressions and opinions of witnesses are not evidence; they must state facts. Ingram v. Croft, 7 La. 85. Kreuter v. The Bank of the United States, 11 Rob. 215.

Upon the merits, after a very careful and deliberate examination and consideration of the whole case, we think that the evidence, which we have duly weighed, preponderates in favor of the plaintiff. There was no special warranty, and as the purchaser was an experienced trader in the commodity sold, had inspected tho article purchased by him, and was better informed than the seller himself in regard to its condition, of which nothing was concealed from him by the seller, and, moreover, bought it without regard to class, quality or condition, for an inferior price, we see no reason to disturb the judgment of the lower Court. Sec the case of Clark et al. v. Lockhart, 10 Rob. 10 ; and of McGuire v. Kearing et al. 17 An. 298, a case very analogous to this one.

It is therefore ordered, adjudged and decreed, that the judgment of tho District Court be affirmed, the costs of appeal to bo paid by the appellant.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    J. F. Wheeler v. J. C. Stewart.
    Á debtor can arrest tlie executory process of his creditor, whose act of mortgage contains the' non-alienation clause, by surrendering his property to his creditors, when tho executory proceedings must be cumulated with the proceedings in insolvency.
    A PPEAL from the Second District Court of New Orleans,
    Thomas, J. Durant & Jlornor, for appellant. Clack é Bayne, for appellee.
   Howell, J.

In September, 1861, plaintiff obtained an order of seizure and sale in this ease, under which the sheriff seized the property subject to the mortgage, and defendant enjoined the sale; the judgment dissolving this injunction was affirmed by this Court in June, 1865. In April 1865, while the appeal was pending, the defendant made a cession of his property to his creditors, including in his bilan the debt and property inyolved in this suit, and the sheriff refusing, in consequence of the insolv: ent proceedings to execute the writ, plaintiff tpok a rule to compel him to proceed. This rule was dismissed and plaintiff appealed.

The question is, can a debtor arrest the executory process of his creditor, whose mortgage contains the non-alienation clause, by surrendering Ms property to his creditors, and the executory be cumulated with the insolvent proceedings ?

The seizure by the sheriff dispossesses the debtor, but does not divest Mm of ownership. Upon the surrender the law, in express terms, vests all the property in the creditors, and the syndic takes possession, and is entitled to claim and recover all the property, for the purposes of sale and distribution of the proceeds, with authority to release mortgages. All proceedings then pending are stayed, and the creditors are referred to the concurso, to establish and regulate their rights contradictorily. The £>rivileged and mortgage creditors have the right to have the property, subject to their privileges and mortgages, sold for cash, if their claims are due.

The law directs, further, “ that all the suits which may have been brought anterior to the failure, shall be transferred to the Court in wMch the insolvent debtor shall have presented his schedule, and shall be continued against the syndic.” Acts 1855, p. 432, 7, 8, 17, 27, 28, 29, 30, 32, 33.

From these principles and provisions of law, it seems evident that the surrender by defendant had the effect of bringing the mortgaged property into the insolvency and cumulating the executory with the insolvent proceedings.

It is true the executory process, in its execution, is directed against the property mortgaged, but it is issued against the mortgagor, who has the right, at any time before, the sale, to pay the debt and retake his property. The suit may properly be classed among “thosebrought anterior to the failure,” and which are to be transferred and continued against the syndic.

This view is strengthened by the doctrine recognized by this Court, that property thus situated may be required to contribute in certain contingencies, to the payment of privileges incident to the insolvent proceeding.

The pact de non alienando, relied on by plaintiff, does not change the nature of the mortgage, but gives Mm a more easy mode of seizing the mortgaged property, in ordinary circumstances. 11 A. 482. This mode is subject to the operation of the insolvent laws, which provide a mode for the disposition of all of the debtor’s property, for the benefit of all the creditors.

The difference between the rights of mortgage creditors, in mortuary and insolvent proceedings, grows out of special legislation in regard to the latter.

Judgment affirmed, with costs.


author: Howeed, J.

text:
    Mrs. V. Benit v. Her Husband.
    A debtor who is insolvent, and against whom proceeding to compel a surrender oí property, can do nothing'to impair the rights of his creditor.
    APPEAL from the Second District Court of New Orleans^

      Thomas, J. G. Morel, for appellant. G. E. Schmidt, for appellee.
   Howeed, J.

The plaintiff having obtained a judgment against her husband for a large sum of money, and having taken from her said husband a transfer of certain real property, by notarial act, in part satisfaction of said judgment, took a rule on several judgment creditors of the husband to cancel their judicial mortgages.

On hearing the parties, the District Judge discharged the rule, and the plaintiff appealed.

The question presented is, what is the effect of the sale from the husband to the wife, as to the mortgages resting on the property sold ? It is shown that, at the date of the sale, the husband was insolvent, and proceedings were pending to compel a surrender of his property to his creditors. He certainly could do nothing to impair the rights of his ceditors, and although the law authorizes such a contract for such purpose, under certain circumstances, it does not give it the effect of a forced sale as to third'persons. .

We know of no provision of law which authorizes the cancelling of the mortgages resting upon the property thus acquired, by plaintiff, as sought to be done in this proceeding.

Judgment affirmed.


author: HowEnii, J.

text:
    City of New Orleans v. State Mutual Insurance Company.
    The subscription notes of a mutual insurance cpmpany constitute a part of tho capital stock of thQ company, and are subject to taxation.
    APPEAL from the Second District Court of New Orleans,

      Whitaker, J. W 3. Hunt, for appellant. L. M. Day, for appellee.
   HowEnii, J.

The question presented in this case is, whether or not the subscription notes of the company constitute a part of the capital, which is subject to taxation under the law ?

In the cases of the City of New Orleans v. Union Insurance Company, and Same v. Star Mutual Insurance Company, we decided the question in the affirmative, and for the reasons therein given :

It is ordered, that the judgment appealed from be affirmed, with costs.


author: Hyman, C. J.

text:
    New Orleans Canal and Banking Company v. William Bailey.
    The possession of a, negotiable promissory note is prima facie evidence of ownership.
    APPEAL from the Fourth District Court of New Orleans,

      Titeará, J. Sullivan, Billings & Hughes, for appellant. Hyman <& Jonas, for appellee.
   Hyman, C. J.

On the 4th day of January, 1858, the defendant gave to W. & D. XTrquhart six notes of hand, payable to his own order, and by him endorsed in blank.

He also gave a mortgage on certain property to secure the payment of the notes, and agreed, in tho act of mortgage, that should it become no cessary to institute legal proceedings, for the recovery of the amount of the notes or any part thereof, he would pay the attorney’s fee, who might be employed for that purpose by any holder of the notes.

Plaintiff became tho owner of two notes, and brought suit against defendant, asking judgment for the amount of the notes, the interest theroon, and the fees of tho attorney employed by plaintiff to institute tho suit to recover the amount of the notes and interest.

Plaintiff also asked that the mortgage bo recognized, and declared executory in its favor.

Tho District Judge rendered judgment a3 asked for, and defendant has appealed.

On tho trial of tho case in the District Court, the plaintiff adduced as evidence to sustain his claim, the notes with their endorsement, and the act of mortgage.

This evidence entitled plaintiff to the judgment asked for. No evidence was introduced by the defendant.

Lei the judgment of tho District Court be affirmed, the appellant to pay costs of appeal.


author: Hxhan, C. J.

text:
    Riggin & Co. v. Union Bank of Louisiana.
    (Jndet tlie Act of March. 18th, 1858, no one but the Attorney General can urge the forfeiture of a bank’» charter, and a judgment of forfeiture obtained without his consent and concurrence, will be reversed.
    APPEAL from the Third District Court of New Orleans,

      Felloioes, J. & W. Huntington, for plaintiffs, appellees. G. L. Bright, for defendant, appellant. B. L. Lynch, for State of Louisiana.
   Hxhan, C. J.

Biggin & Co. filed in the Third District Court of New Orleans, a notice of protest of one of the notes of the Union Bant of Louisiana, in conformity to an Act of the General Assembly of the State of Louisiana, passed on the 18th of March, 1858, entitled “An Act to amend the 20th section of the Act entitled an Act to establish a general system of free banting in the State of Louisiana,’’ and the Judge of said Court ordered notice of the filing of the notice of protest of the note to be served on the Attorney General of the State. The Attorney General, by petition, applied to the Court for a writ of sequestration of the property and assets of the bank, a judgment forfeiting its charter, and the appointment of liquidators.

The bank failed to answer within three days after citation was made on it, and the Judge rendered judgment forfeiting its charter, ordering its assets to be sequestered, and appointing liquidators.

The bank made motion to have the judgment cancelled and annulled, which motion the Judge overruled, and signed the judgment.

The bank appealed.

This judgment was rendered without the knowledge or consent of the Attorney General, who had agreed (on the representation of the bank, that, within a few-days, it would receive means to pay its debts) not to urge the forfeiture of its charter until he gave notice of his intention of so doing to the attorney of the bank.

At whose instance this judgment was obtained, the transcript does not inform us.

No one but the Attorney General, under the' act referred to, was authorized to urge the forfeiture of the bank’s charter, and the judgment of forfeiture was urged and obtained, not only without his consent, but contrary to his express agreement.

One of the reasons given by the Judge for refusing to set aside the judgment, was a non-compliance with a rule of his Court.

This rule is not to be found in the transcript of appeal, and we have nothing before us that enables us to say that his judgment was correct in that respect.

From the evidence before us, we conclude that the refusal of the Judge to set aside the judgment and to grant a new trial was erroneous, contrary to law, evidence, and the rights of the only parties to this proceeding, to wit: the Attorney General and the Union Bank of Louisiana.

It is therefore ordered and decreed, that the judgment of the District Judge be annulled and reversed, and that the case be remanded, to be proceeded with in conformity to law.


author: Laratjve, J.

text:
    Union Bank of Tennessee v. Edward Lockett.
    Where parties extend credit or discount bills of exchange on the faith of a letter of credit, general in i ts terms, the parties giving the letter of credit are responsible for the amount advanced on the faith of such letter of credit and in accordance with its terms.
    APPEAL from the Fourth District Court of New Orleans,

      Price, J. Clarke <& Bayne, for appellant. Fouie Clinch, for appellee.
   Laratjve, J.

The plaintiff claims of the defendant §2,070 90, with interest and costs, upon a letter of credit and two bills of exchange, of the following tenor, respectively :

“Savannah, August, 5th, 1857.

1 ‘ Mr. John A. Campbell is hereby authorized to draw upon us for fifteen thousand (§15,000) dollars, in such sums as may suit his convenience, at from thirty to sixty days’s date.

“ His bills will be duly honored and paid at maturity.

Respectfully,

(Signed) Lookett & Snellings.”

“§1,070 90. Chattanooga, Dec. 4th, 1857.

“ Sixty days after date, pay to the order of Chandler & Co. one thous- and and seventy dollars and ninety cents, 'value received, which place to the account of ' (Signed) John A. Campbell.

“To Lockett & Snellings, Savannah, Ga.”

“§1,000. Chattanooga, Tenn., Dee. 5th, 1857.

“Sixty days afterdate, pay to the order of myself, at Marine Bank, Savannah, one thousand dollars, value received, and the same to account of (Signed) John A. Campbell.

“ To Lockett & Snellings, Savannah, Geo.”

The defendant answered by a general denial. He denies particularly that, any bills were drawn or negotiated, as alleged; and further denies that, as plaintiff well knew, any letter of credit was ever furnished to be used as alleged by plaintiff.

The District Court gave judgment for plaintiff, and the defendant appealed.

Both bills of exchange were duly presented to the drawees, and protested for non-acceptance and non-payment.

Plaintiff contends that the drawer was duly authorized to draw upon the said Lockett & Snellings, and that said bills of exchange were taken and negotiated upon the faith and guarranty of said letter of credit, and that said defendant, being one of the writers of said letter of credit, is bound to pay said drafts.

It seems to us that this case turns entirely on a question of fact. Was John A. Campbell credited upon the faith of that letter of credit ? The affirmative answer makes the defendant liable, and the negative dicharges him. It is clear that this letter of credit was written with the intention to be produced to third parties, who might be willing to advance money, or give credit to said John A. Campbell.

In the case of Nesbitt v. Galbraith, 3 An. 690, the letter of credit was as follows :

“ New Obueans, May 8th, 1847.

W. A. Whitaker, Nsq., St. Louis, Mo :

“Sir: You are hereby authorized to value upon the amount of five thousand dollars, in your bills upon us, at from twenty days to four months’ date, in sums to suit your convenience, and the same will be accepted by us and paid at maturity.

Your obedient servants,

(Signed) Gaubbaith & Gbeeneield.”

The only difference between the two letters of credit is, that the above is addressed to the party in whose favor it was drawn, and the one in this case seems to have been intended as a document to be exhibited to any one who might have had business with John A. Campbell.

In that case this Court said :

“ If the letter be, as we feel satisfied it is, a document intended to be exhibited to third parties, and induce them to take Whitaker’s bills, then the promise which the letter contains is, by intendment of law, a promise to any body taking a bill on the faith of the letter; and the advance of his money, which the party makes on the inducement and faith of the letter, is a sufficient consideration; damages to the promisee constituting as good a consideration as benefit to the promisor.”

Galbraith & Greenfield, the writers of the letter of credit, were accordingly held liable to pay a bill of exchange, drawn by W. A. Whitaker in favor of and taken by W. Nesbitt & Co., on the faith of the letter of credit. See the case of Russel v. Wiggin, 2 Story, 214.

The letter of credit sued upon was produced and offered on the trial below by plaintiff, raising a fair presumption that it was delivered and acted on the faith thereof, at the time of the transaction. Besides, Bichard B. Campbell testified that he was teller in the bank; that he did not know, of his own knowledge, the contents of the letter of credit referred to; but it was upon the grounds of his having (alluding- to John A. Campbell) a letter of credit that the bank discounted his bills ; that ho heard the parties talk of having a letter from Messrs. Lockett & Snellings, but no distinct recollection of having seen one.

The'possession by plaintiff of the letter of credit, and the testimony of Bichard B. Campbell, satisfy us that the plaintiff took the bills of exchange upon the faith of the letter of credit.

In other respects the case has been clearly made out. We are of opinion that our learned brother of the District Court decided this case correctly, and that this judgment must be affirmed.

It is therefore ordered and decreed, that the judgment appealed from be affirmed, at the costs of the appellant.


author: Insi/EY, J.

text:
    Philip Drumm v. J. H. Bradfute and D. B. Penn.
    In an action against the endorser of a promissory note, the petition contained no specific allegation that the defendant had endorsed the note :

      Held .- — That the note with the endorsement of the defendant on it, being made part of the petition, the petition convoyed sufficient notice to the defendant of his liability without the allegation of endorsement.
    The certificate of the notary, who protests a note, that he left a notice of protest with a person who was an agent of the party on whom the demand of payment was made, is not prima facie evidence of the agency. A notary can only certify to those matters which the law provides he may certify to,
    APPEAL from the Fourth District Court of New Orleans,

      Theard, J. S. Flower, for appellant. T. H. Howard, for appellee.
   Insi/EY, J.

The defendant, D. B. Penn, sued as the endorser of a promissory note, pleaded the general issue. Judgment was rendered in favor of the plaintiff, whereupon the defendant moved for a new trial, which, failing to obtain, he appealed.

On the trial of the case in the Court below, the defendant Penn objected to the admission of the noto in evidence, and of all other testimony to prove his endorsement of the note sued on, on the ground that the petition contained no allegation that the note sued on was endorsed by him. The note and the accompanying- documents, viz : the protest and the certificate of the notice of protest, were annexed to the petition as a part of it, and this, with an allegation that the plaintiff was the owner and holder of the note, would convey notice of the endorsement of the defendant, phioh -syfts Tipou tjie note. Nett et al v. Brander, 14 La. 370,

It would certainly have been more regular, that the plaintiff should have specially alleged the endorsement; but as that fact was revealed by the note, which made a part of the petition, the defendant could not be surprised by the introduction of evidence to prove it.

No objection was made to tho act of protest and the notice of protest, which are in proof ; but the defendant contends that it is not shown that he ever was notified of the failure of the drawer to pay the note, or of the protest, and that he is therefore discharged.

The notary’s certificate reads thus :

‘1A notice to D. B. Penn was left at the residence of J. P. Shortridge, his attorney in fact, with a female white servant, the said Shortridge, attorney, not being in.”

The Act of the Legislature of 1817, re-enacted in 1855, makes the certificate of the notary, of the manner in which he shall have served a notice of protest on an endorser, evidence of all matter therein stated; but that evidently means of all matter which it is his duty to certify, not of extraneous facts, such as of the fact of agency of a party on whom a demand is made, or a notice served. This was the view on this question taken by the Court, in Fortier v. Field, 17 La. R., in which the Court remanded the case for a new trial, because there was no other proof than the statement of the notary in the certificate, that Frey, from whom he demanded the payment of the note, was the agent of the drawer of it.

We hold this to be the correct doctrine, that the statements of notaries pf extrinsic facts, in relation to demands or service of notices, in their certificates, is not even prima facie evidence of such facts, which must be proved dehors the certificate.

No such evidence was adduced by tho plaintiff, and the case must bo remanded.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that this case be remanded for a new trial, the appellee paying costs of appeal.


author: TaiiIARERRO, J.

text:
    J. & J. M. Hockaday v. Eli A. Skeggs.
    JLfc has been settled, by frequent dooisions of this Court, that, in order to enable tho Courts of this Scate to give effect here to a judgment rendered in another State, tho whole record of the proceedings, under which the judgment was obtained, must bo produced, in order to show liow far it may be conclusive. The transcript must show that the proceedings aro clothed with the forms necessary to the validity of a judgment in the State from which it comes. It must also show that the defendant had due notice, or that he actually appeared. In the absence of evidence, either impeaching a foreign judgment or going to show that it had not, und$r the laws of the State where it was rendered, the effect of a final judgment, our Courts are bound to consider it as having the force of the thing adjudged.
    APPEAL from the Fourth District Court of New Orleans,

      Price, J. Whitaker é Fellows, for appellant. J. G. While, for appellees.
   TaiiIARERRO, J.

The plaintiffs seek to enforce a judgment rendered in tlieir favor against the defendant, in the city of Philadelphia, in December, 1859, for the sum of twelve hundred and twenty dollars, principal, and the further sum of sixty-five dollars, costs.

' Tho defendant put in a general denial. He avers that the protended judgment sought to be enforced against him was obtained in fraud of his rights, and by deception and ill practices.

The plaintiffs had judgment in tho lower Court, and the defendant has appealed.

Two bills of exception were taken, by the defendant to the ruling of tho Court below. The first, to the refusal of the Court to admit evidence to substantiate the fraud and irregularity alleged by defendant to have been used in obtaining the Pennsylvania judgment. This evidence was properly excluded by the Judge & quo, on tho ground that the alleged fraud was matter of defence in the original action, and that it cannot now be set up against the foreign judgment.

The second bill of exceiAions raises the only question of importance presented in the case. The defendant objected to the introduction of tho record of proceedings had in the suit in Pennsylvania, on the ground that the record is mutilated and incompleto, as it does not contain the bill of exchange upon which tho action was founded, the plea or defence, nor the rule for a now trial; and that the absence of these documents is not accounted for.

The clerk or in’othonotary of the District Court of the city and county of Philadelphia, certifies the transcript to be a true copy of the whole record of the case ; yet, the record presented shows by his own statement, therein made, that the copy of tho bill of exchange, upon which the suit was founded, the plea of the defendant, and his motion for a second new trial, were missing, and could not be found, after diligent search for these papers had been made.

It has been settled, by frequent decisions of this Court, that, in order to enable the Courts of this State to give effect here, to a judgment rendered in another State, the whole record of tho proceedings, under which the judgment was obtained, must be produced, in order to show how far it may be conclusive. The transcript must show that the proceedings are clothed with the forms necessary to the validity of a judgment in the State from which it comes. It must also show that the defendant had due notice, or that he actually appeared. In the absence of evidence either impeaching a foreign judgment, or going to show that it had not, under the laws of tho State where it was rendered, the effect of a final judgment, our Courts are bound to consider it as having the force of the thing adjudged. 10 L. R. 222. Ibidem, 381. 18 L. R. 33. 19 L. R. 526. 3 An. 634. 5 An. 43.

These conditions are all fulfilled in the case before us. Tho record dis closes that personal service of citation was made upon the defendant; that he actually appeared; that, in his affidavit of defence, he admitted the existence of the bill of exchange sued upon, and that, after a verdict was rendered by the jury against him, he applied for and obtained a new trial.

The final judgment rendered against him must bo taken as conclusive. The presence of the papers missing from the record would add nothing to its purport, Their absence does not diminish or alter its effects. Demminus non curat lex.

We concur with the learned Judge á quo in the lucid views expressed in the judgment of the Court below.

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


author: Labauve, J.

text:
    Geo. W. Clapp, Master and Owners of Schooner Carrie Sanford v. T. W. Stanton & Co.
    Tlie proprietors of steam tow-boats (such as ply between New Orleans and the Gulf of Mexico) are common carriers, and responsible as such.
    By the contract for towing, tho captain of a tow-boat is bound to carry vossols safely to their destination, unless prevented by uncontrollable accidents, or such as are not within the control of human foresight or power. If the boat be so much undor the influence of the rudder of the ship, it is the duty of the master of the tow-boat to look to it. His undertaking is to tow the vessel in safety, and he has a right to assume all the authority necessary to effect that purpose. The command and care of the vessel towed should either be subject to his command whilst she is carried by his boat, or her rudder should be placed in the hands of one of his own men. We consider a vessel thus towed as property carried for hire, in which her crew should not bo viewed as having any lawful a ency.
    A PPEAL from -tlie Sixth District Court of New Orleans,

      Howell, J. Race c6 Foster, for appellants. Benjamin, Bradford S Finney, for appellees.
   Labauve, J.

Tlie plaintiffs claim of the defendants the sum of §805 55, for damages, alleged to have been sustained by the schooner Carrie Sanford, through the fault and negligence of the defendants, owners of the steam tow-boat Anglo Saxon.

The Anglo Saxon left the Bar on the 21st December, 1858, with two ships, made fast on each side, and two small vessels astern — the Oarrie Sanford and a Spanish barque, the Providencia. Tlie vessels astern were towod by hawsers, fifty or sixty fathoms in length, and made fast in the usual way, by the bits aft on tho tow-boat, the Carrie Sanford on tlie port sido and the Spanish barque on the starboard side. As the tow-boat and vessels were coming up, and rounding Poverty Point, tlie hawser of the Spanish barque parted, and the barque came into collision with tlie schooner Carrie Sanford, inflicting the damages complained of. The hawser which parted was a nine-inch hawser belonging to the barque, which was steered by its own men.

Charles Decker, the mate of the Carrie Sanford, testified that it is usual for tow-boats to take smaller vessels in tow astern ; the proper place for the barque was immediately astern of the ship ahead of her ; if she had been properly steered, there was no difficulty in her keeping her proper place ; there would be no danger for vessels in tow astern if they are properly managed.

Captain George Heaton testified that he had been connected with tow-age business since 1829, and that he never knew any person sent from the tow-boat on board vessels astern, to steer them ; they are always steered by their own men. That he considered there was no danger for any of the vessels astern, when properly steered, and there was no difficulty in steering them properly.

The whole testimony goes to show that the Spanish barque was improperly steered, and that it was in consequence of this bad management that her hawser parted, and that she came in collision with the Carrie Sanford, and caused the damages complained of.

As to the tow-boat Anglo Saxon, she was properly managed, and the accident happened through the neglect and fault of the man who steered the Spanish barque, and not by an uncontrollable event — force majeure.

The question now arises, are the defendants responsible for the neglect and fault of the Spanish barque ?

The proprietors of steam tow-boats (such as ply between New Orleans and the Gulf of Mexico) are common carriers, and responsible as such. Cicero Davis v. Nimrod Howsen et als. 6 Rob. 255. Smith v. Price, 1 La. Rep. 354. Green et al. v. Crace et al. 18 An.

The owners of the tow-boat Anglo Saxon, being regarded as common carriers, were bound to tow the Carrie Sanford in safety, and the man steering the Spanish barque became their agent for the time being, the said Spanish barque being considered under the control and management of the captain of the said tow-boat, Anglo Saxon.

In the case cited (Smith v. Price, 1 La. 354), this Court, speaking of the captain of a tow-boat, said :

“By the contract for towing, he is bound to carry vessels safely to their destination, unless prevented by uncontrollable accidents, or such as are not within the control of human foresight or power. If the boat be so much under the influence of the rudder of the ship, it is the duty of the master of the tow-boat to look to it. His undertaking is to tow the vessel in safety, and ho has a right to assume all the authority necessary to effect that purpose. The command and care of the vessel towed should either be subject to his command whilst she is carried by his boat, or her rudder should be placed in the hands of one of his own men. We consider a vessel thus towed as property carried for hire, in which her crew should not be viewed as having any lawful agency.”

We are of opinion that the defendants are liable.

We now come to the question of damages.

Tlio bills of expenses for the repairs, amounting to $305 55, have been received in evidence, and are not disputed ; the demurrage of the boat during eleven days is not contested, but the estimate put by witnesses is different. After comparing the testimony, we have come to the conclusion that the fair value is $27 50 per day, making $302 50.

Our learned brother below gave judgment for defendants. We believe he erred.

It is therefore ordered and decreed, that the judgment appealed from be annulled and reversed.

It is further ordered and decreed, that the defendants pay, in solido, to the plaintiffs, the sum of six hundred and eight dollars and five cents, with legal interest from judicial demand, to wit: the 29th January, 1859, and costs of suit in both Courts.

Howeltj, J. recused.


author: Labauye, J.

text:
    James Jeffries v. Belleville Iron Works Company.
    The Bellevillo Iron Works Company, a corporate body domiciled in New Orleans, came into Court and mad© a voluntary cession of its property, and after due proceedings had, an order was made staying all proceedings against th© corporation, and a syndic was appointed; a short time after the order was granted, a creditor of the corporation brought an action to recover an amount due him from the corporation, and prayed that the order staying proceedings against the corporation b8 annulled; after trial, the Court rendered judgment annulling the order, as prayed for:

      I fold .- — That all subsequent proceedings, on the part of the Belleville Iron Works Company, taken to perfect the cession of their property in settlement of its debus, wero void, as the order staying proceedings and appointing a syndic was annulled.
    Corporations have no right, under the laws of Louisiana, to make a voluntary cession of their assets to their oreditors and obtain the benefit of the insolvent laws.
    APPEAL from the Fourth District Court of New Orleans,

      Price, J. Simonds & Fenner, for appellant. G. Rosélms and B. Bradford 3 Finney, for appellees.
   Labauye, J.

On the 18th January, 1859, the plaintiff filed below a petition, showing that the defendant, the Belleville Iron Works Company, a corporate body, organized and chartered by authority of the laws of the State of Louisiana, and domiciliated in the city of New Orleans, was justly indébted to him in the sum of $3,262 86, with interest, etc.

He further stated, that he was advised that, on the 29th day of December, 1859, an ex parte order was granted by the Judge below, upon the petition of the defendant, praying to be allowed to make a voluntary cession of its assets to its creditors, staying all proceedings against the person and property of the said company. That said order was illegal, and improvidently granted by the said Judge; therefore, it should be annulled and vacated, for this :• That corporations, such as the defendant in this case, have no right, under the laws of this State, to make a voluntary surrender of their property to their creditors, and obtain the benefit of the insolvent laws of this State; and that the institution of the proceedings by the said defendant against its creditors, for that purpose, is only calculated to harass and delay its creditors in collecting their debts.

Wherefore the plaintiff prayed, in substance, that the Belleville Iron Works Company be cited, through its President, J. J. Person, and that, after due proceedings had, the order heretofore granted by the Judge, staying dll proceedings against the person and property of the defendant, on the petition of the defendant, on file in Gourt, be annulled and vacated, and that the defendant be decreed to pay petitioner S3,262 68.

On the 24th February, 1859, on motion of plaintiff’s counsel suggesting to the Court that R. Wells had been elected syndic of the creditors of the defendant, since the institution of this suit :

It was ordered by the Court that R. Wells, syndic, be made a party to the suit, etc.

On the 12th March, 1859, R. Wells filed an exception, as follows :

Now comes Richard Wells, made party herein, in his capacity of syndic of the said defendant’s creditors, and excepts to the petition of said plaintiff ; that he cannot proceed in the manner and form attempted herein, inasmuch as the said defendants have made a cession of their property to their creditors, the same has been duly accepted and stay of proceedings granted thereupon, as will appear from reference to the suit now pending in this honorable Court, entitled Belleville Iron Works Company v. Their Creditors, the plaintiff herein cannot prosecute this suit, but the same must be cumulated with the said insolvent proceedings.

Whereupon said appearer prays that the exception be maintained, and that he be hence dismissed, with costs and general relief.

On 2d May, 1859, the Court sustained the exceptions, as follows :

For the reasons assigned and on file, in the case of Jeffries v. Belleville Iron Works Company, No. 12,851 of the docket of this Court :

It is ordered that the exception herein filed by Richard Wells, syndic, be sustained, and that this cause be cumulated with the insolvent proceedings of the Belleville Iron Works Company v. Their Creditors.

From that judgment- the plaintiff, James Jeffries, appealed to the Supreme Court. There the judgment of the District Court was reversed, and the case remanded to the Court below, to be proceeded in according to law.

In their decision, the Supreme Court say that a corporation, created under the act for the organization of corporations for works of public improvement and utility, approved March 14th, 1855, cannot avail itself of the provisions of the act relative to the voluntary surrender of property, approved March 14th, 1855, sec. 15, A. 19.

The case being thus remanded, the Court below, on the 23d March, 1860, rendered the fallowing decree :

It is ordered, adjudged and decreed, that the order of the Court, entered on the 29th December, 1858, in the case of the Belleville Iron Works Company v. Its Creditors, No. 12,890 of the docket of this Court, slaying all judicial proceedings against Che properly of said Company he vacated and annulled; and it is further ordered, that the plaintiff do have and recover of the defendant, the Belleville Iron Works Company, the sum of $3262 86, etc.

This judgment is in accordance with the prayer of the petition.

The plaintiff moved for a new trial, which was refused.

Now that judgment is final (being unappealed from), and is res judicata, and the question arises as to its effects, it is contended by the appellant that it annuls and sets aside all the elements and decrees comprised in said order referred to, of the 29fch December, 1858; the-appellees contend that it only annuls that part of it staying all judicial proceedings against the property of said company. The question is then presented, is that order accepting the cession annulled ? If so, the creditors were divested of their quasi ownership in the property so ceded, and the plaintiff was right in seizing the property and money in the hands of B. Wells and others, as was done; but if that order accepting the cession was yet in force, such proceedings were illegal. We think that part referring to the slaying of Che proceedings, is descriptive and not restrictive of the order accepting the cession.

We now come to the proceedings which have brought the case before us. The plaintiff, after having obtained judgment against the said company, proceeded to execute the same by a fi. fa. on the property, rights and credits of said company, and garnisheed the Bank of America, Bichard Wells and others, and interrogatories were propounded to and answered by them. The garnishees showed that they had nothing in their hands belonging to the Belleville Iron Works Company, and what they had belonged to the creditors of said company, represented by their syndic, B. Wells.

After the answers of the garnishees to the interrogatories propounded to them, the plaintiff took a rule upon said garnishees to show cause why judgment should not be entered up against them on their answers. To that rule defendants excepted, as follows :

The defendants now appear, and for their peremptory exception to the rule herein, say : “ That, according to the showing of the actor in said rule, the proceeding cannot be sustained, as it attempts to annul or ignore the proceedings of the Belleville Iron Works Company v. Its Creditors, and these respondents contend that, if said proceeding can be annulled at all, a regular suit for that purpose must be instituted, in the ordinary form of judicial proceedings; whereupon respondents respectfully pray that this exception may be sustained and the rule dismissed, with costs.”

Upon the trial of said exception, the Court rendered judgment as follows :

“After hearing pleadings and the exceptions filed herein by defendants in the rule, the Court sustained the same, and ordered that the rule be dismissed, with costs.”

From that judgment the present appeal is taken by the plaintiff in the rule.

We are of the opinion that the judgment rendered on the 23d March, 1860, fully annulled, in all its parts, the order dated 29th December, 1858, and allowed the creditors to proceed as if there had been no surrender. We have before us nothing but the judgment upon the exception, and the case has to be remanded.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled and reversed ; that the exception be overruled, and the case remanded to be proceeded in according to law, the appellees paying the costs of appeal.


text:
    The Same v. The Same.
    — On Rehearing.
   Labauve, J.

This case is on a rehearing.

On the 29th day of December, 1858, the defendant, being incorporated by an act of the Legislature, tendered a cession of its property to its creditors, under the law of voluntary surrender by insolvent debtors. The Judge accepted the same for the benefit of its creditors; ordered a meeting of said creditors to be convened before a notary public, on the 7th day of February, 1859, to deliberate on the affairs of said company and to appoint a syndic; ordered a stay of all judicial proceedings against the property of said company, and appointed an attorney to represent the absent creditors.

The acknowledged debts of the company, as per statement annexed to the petition for a surrender, amounted to $199,145 72.

At the meeting held under the order of Court, all the creditors appearing, representing together an amount of debts of $184,376 21, voted to accept the surrender, and for R. Wells for syndic, and for a sale, for cash, of all the property and assets of the company.'

The attorney for the absent creditors appeared at said meeting, and reserving all rights to his constituents, declared that he had no objection to offer to what had been done, or to the homologation of the same, and signed the deliberation.

Wells was duly confirmed and qualified as syndic, and on his application, the movable property surrendered was ordered by the Judge to bo sold by the sheriff, for cash.

On the 23d May, 1858, the syndic filed a provisional tableau of distribution, in which he charges himself with a total amount of net receipts,

resulting from proceeds of sales of property, say............ $50,198 18

Out of which he deducts certain disbursements for expenses, 15,519 83

Leaving, for distribution, a balance of...................... .$34,678 35

The privileged claims are put down at the sum of $60,735 65, added up together.

After order and publication of notice, as required by law, this tableau of distribution was duly approved and homologated by the Judge, so far as the same was not opposed, on the 4th June, 1859. All the oppositions which were between privileged creditors were withdrawn, and dismissed in February, 1860; and tbe syndic, on a rule, was ordered to pay certain privileged creditors, in pursuance of the judgment of homologation of the tableau of distribution, the sum of $5,625.

This judgment was signed on the 25th February, 1860.

The plaintiff, James Jeffries, a citizen of the State of Pennsylvania, filed this suit on the 18th January, 1859, to annul the judgment of the 29th December, 1858, accepting the cession of property for the benefit of the creditors of said company, and praying for a judgment against said property for $3,262 62.

After a long litigation, a final judgment was rendered by the District Court, on the 23d March, 1860, annulling said order accepting said surrender, and the said company was ordered to pay said plaintiff the amount claimed in his petition.

In the meantime, between the filing of this suit and the judgment rendered therein, the regular proceedings in insolvencies wont on — meeting of creditors, apgointment of syndic, order of sales, tableau of distribution of proceeds of sales, judgment of homologation, etc. After having obtained judgment, plaintiff proceeded to execute the same on the property of said company, and he garnisheed the Bank of America, Bichard Wells and others, and interrogatories, filed 30th April, 1860, were propounded to and answered by them. The garnishees showed by their answers that they had nothing in their hands belonging to the company, and what they had belonged to the creditors of said company, represented by their syndic, R. Wells.

The answers of Richard Wells, to the interrogatories propounded to him, are principally as follows :

“ I have nothing in my possession, or subject to my control, belonging to the defendant, the Belleville Iron Works Company, so far as I am advised and believe. As syndic of the creditors of said Belleville Iron Works Company, I received possession of the assets set forth in the schedule, filed on behalf of said company in the case now pending in this Court, entitled Belleville Iron Works Company v. Their Creditors, No. — on the docket of said Court, and to which schedule, and to the tableau filed therein, respondent refers for greater certainty. ”

“ Ho ; except as above stated, in my capacity of syndic; in which capacity I hold funds in cash and notes, as set forth in the tableau of distribution, already referred to above, and which has been duly homologated by the judgment of the Court. The amounts so received appear on said tableau, but respondent does not now recollect the same, and cannot state the amount, without referring to the tableau, with entire precision. The amount is believed to have been about between four thousand and five thousand dollars.”

“A. Converse answered that he was indebted to Richard Wells, in his capacity of syndic of the creditors of the said Belleville Iron Works Company; On the 10th March, 1860, the lease of the property occupied by said company, for tho unexpired term thereof, ending on the 31st December, 1865, was sold at public sale by the sheriff, under the order of this Court, and adjudicated to me at tho rate of one thousand dollars per year, payable quarterly, at the period fixed by the original lease, say on the 1st January, April, July and October, of each and every year. Nothing has yet been paid on account of the rent accruing under said purchase.”

William G-. Hewes, President of the Bank of America, answered, in substance :

“ That the bank had on deposit, in the name of B. Wells, syndic of said company, $11,867; but, of that amount, $11,000 had already been garnisheed by order of the United States Circuit Court, in the case of Holdun & Co. v. Belleville Iron Works Company.

On the 18th Juno, I860, tho plaintiff took a rule on the garnishees to show cause why they should not pay in solido the amount of the judgment, in his favor, against said company, say $4,000, on the grounds, in substance, that the amount in their possession has been seized and made subject to said judgment; that the indebtedness of Converse amounts to said judgment; that the distribution of the funds by tableau, referred to by R. Wells, is illegal and void; and, if not so, is, as to plaintiff, res inter alia acta ; that said Wells is not entitled, as against this plaintiff, to the commission claimed by him as provisional syndic; that the money in the Bank of America is still undisturbed and under the control of tho Court.

The garnishees excepted to this rule, on the ground :

That, according to the showing of the actor in said rule, the proceeding cannot be sustained, as it attempts to annul or ignore the proceedings of the Belleville Iron Works Company v. Its Creditors, and that said proceedings must be annulled by a regular suit brought for that purpose, in the ordinary form of judicial proceedings.

This exception was sustained, and the rule dismissed. The plaintiff appealed.

We have decided in our former opinion, that the judgment on the 23d March, 1860, fully annulled, in all its parts, the order of the Judge, dated 29th December, 1858, accepting tho cession of property of the company for the benefit of its creditors. This suit was brought on the 18th January, 1859, even before the meeting of the creditors. We have granted a rehearing to afford an opportunity to examine to what extent the proceedings, to which plaintiff was not a party, would bind and affect him. While this suit was pending, and the syndic being a party therein, the proceedings were carried on as if there had been no suit to set aside the accepted cession of the property. We have re-examined the case, and bestowed a good deal of time and attention upon it, and we have come to the same conclusion as before : that the judgment rendered on the 23d March, 1860, fully annulled, in all its parts, the order dated 29th December, 1858, and allowed the creditors to proceed as if there had been no surrender.

We have also examined the question, as to the legal effect of the same judgment upon the anterior proceedings in the surrender, and we have concluded, after the most mature deliberation, that the judgment homologating tableaux of distribution were not binding on plaintiff, so as to prevent him from seizing money and effects yet in the hands of the so-called syndic, or other garnishees, such money and effects being considered as the property of said company, after the judgment setting aside the surrender. Sublato cundamento cadit opus.

It is therefore ordered and decreed, that our former judgment remain undisturbed.


author: HowEim, J.

text:
    S. W. Hoyt v. H. Benner, et al.
    A rule was taken to set aside an attachment for the reason that no United States interna] revenue stamp had been affixed to the affidavit or petition. The rule was dismissed. The defendants after-wards filed a peremptory exception on the general ground that the provision of the United States internal revenue law had not been complied with:

      Jítld : — That the dismissal of the rule judicially established the fact, that the law requiring a stamp had been complied with, and if any other provision of the revenue law was relied on by the defend ant, he should have specially set forth the non-compliance.
    Fraud must he specially pleaded.
    APPEAL from the Fifth District Court of New Orleans,

      Leaumont, J. J. Fuller and J. G. Walker, for appellant. L. M. Day, for appellee.
   HowEim, J.

The defendants took a rule to set aside the attachment in this case, on the ground among others, ‘ ‘that neither the affidavit nor the petition has any such United States internal revenue stamp as is required by law. ” This rule was dismissed, and defendants then filed a “peremptory exception to the attachment and suit, on the ground that the said attachment and suit are null and void, by reason of the facts that the provisions of the United States internal revenue laws wore not, and have not been coinplicd with by plaintiff.

On the trial of this exoeption, the plaintiff objected, as is shown by the bills of exception, to going into trial thereof, on the ground that it presented the same issue as that in the rule which was dismissed, and which forms rei judicata, and to the introduction of any evidence on the ground that the exception is too vague and general — that the causes of nullity must be specially pleaded.

The dismissal of the rule judicially established the fact that the law requiring’ a stamp has been complied with, and if there bo any other provisions of that law different from that already invoked — the non-observance of which rendered the suit null — they should have been specified, in order that plaintiff might have notice.

The position taken by defendants’ counsel in argument, shows the importance and justice of this rule of pleading. He contends that the plaintiff affixed the required stamp after the rule to dissolve was taken, which subjected him to a penalty for fraud upon the government, and rendered all the proceedings null, because the consent of the internal revenue collector was not first obtained and a fine paid, as provided by the law in such cases; or, in other words, that plaintiff having omitted to affix the stamp at the proper time, did not, in putting it on the record afterwards, comply with the provisions of the law directing how it may subsequently bo done, and thus committed a fraud. Charges so grave in their consequences should be definitely set forth. Fraud must be specially pleaded. And, besides, from the pleadings, the plaintiff was not bound to presume that such questions would be raised. The legal presumption, at the time of filing the exception, was, that the stamp had been affixed in accordance with law, and to enable the opposite party to prove the contrary (if allowable at all), the necessary allegation must be made.

It is the duty of Courts to see that the law invoked is not evaded, but this duty must be performed in a mode just to all parties, and according to fixed rules of pleading.

We think that the objection to the evidence should have been sustained, and that the Court erred in maintaining the alleged peremptory exception.

It is therefore ordered, that the judgment appealed from be avoided and reversod, and that the peremptory exception of defendants be overruled without prejudice, and the cause remanded to be proceeded in according to law. Defendants to pay the costs of appeal.


text:
    John S. Woolfolk v. Ship Graham’s Polly and Master.
    Where a party is called in warranty, and becomes the real defondant in the case, he has the right io make all defences that go to defeat the plaintiff’s domand.
    Where the plaintiff resides out of the State, the defendant can institute a demand, in reconvention, against him tor any came.

    APPEAL from the Fifth District Court of New Orleans,

      Leaumoni, J. Anderson Miller, for appellant. Harrison (6 Hunton, for appellee.
   Labauve, J.

The petition states that John S. Woolfolk, who resides in Kentucky, is the master of the steamboat Péyíona, engaged in carrying freight and passengers between Vicksburg and New Orleans.. That, on or about the — day of September, 1865, there, were shipped on board said boat at Vicksburg, and consigned to Geo. W. Byrne at New Orleans, six bales of cotton; that there was also shipped on board said boat on the same trip, a quantity of cotton consigned to A. L. Gaines ; that the six bales of cotton above mentioned as having been consigned to Geo. W. Byrne, were erroneously taken from the wharf, where they had been discharged, by a drayman and erroneously delivered to A. L. Gaines, who has caused them to be shipped on board the vessel called the Graham’s Polly, and they are now in the possession of the master thereof, whose name is unknown to petitioner ; that petitioner, by virtue of his possession as carrier, and by virtue of a transfer of Byrne, the consignee of said cotton to him, is lawfully entitled to the possession of said six bales of cotton, which were marked as follows, (W), which are of the value of SI, 350.

The prayer is for a sequestration of said cotton. * * * *

That plaintiff be adjudged to be entitled to the possession of said cotton, and the sheriff and defendant be ordered to restore it to his possession, or in default thereof, to pay him the value thereof, and for general relief.

The captain and master of ship Graham’s Polly, was duly cited and served with the petition.

Many exceptions and rules were filed below, and overruled by the Court, and we consider them unimportant and not seriously urged in this Court.

The answer of the defendants, the ship Graham’s Polly and master, admits that A. L. Gaines shipped upon the" ship Graham's Polly, thirty-six (36) bales of cotton marked (W) ; that they received the same as a shipment and consignment from said Gaines as an ordinary transaction for the purpose of transportation to the port of delivery, and deny that they have any interest in the said cotton ór the six bales that were claimed by plaintiff, except as carrier as aforesaid.

The answer further states, that said A. L. Gaines, of New Orleans, was the consignor of said cotton, and the only party interested therein or responsible therefor, and prays that said Gaines be called in to defend this suit, etc.

The answer of A. L. Gaines contains, first, many exceptions to the form of action, but our attention has not been particularly called to pass upon them, and then a general denial. It admits that there was a shipment of cotton to him, per steamer Peytona, of fifty-five bales, thirty-one bales marked (W), and twenty-four bales marked (S) — in all, fifty-five balés; but the said steamer delivered to defendant thirty-six bales marked (W), and nineteen bales marked (S), as his consignment, making five bales over of those marked (W), and fivo less of those marked (S). Defendant avers that the said steamer and plaintiff* were notified of said mistake, and requested to rectify the same, but they refused to do so, and insisted upon the acceptance of this cotton as the consignment of defendant, and requested the payment of the freight bill, which defendant refused to pay for upwards of ten days after the delivery of said cotton ; but, after frequent importunities to accept said substitute and pay for the freight bill, defendant accepted the consignment and paid the freight bill of said steamer. Defendant denies that he received any more or better cotton than he was entitled to demand of said plaintiff as his consignment, and denies that the same was erroneously taken from the wharf and delivered, but he states that he has received the same in good faith from said plaintiff, as the captain and master of said steamer. Defendant further pleads, that if judgment is rendered against him for the return of said six bales of cotton, then plaintiff would be responsible to him for the deficiency of six bales upon his consignment.

Defendant concludes by praying to call said plaintiff in as his warrantor to defend this suit, and for such judgment as might be rendered in the principal action. But should the Court believe this to be more properly' a reconventional demand, defendant, assuming the character of plaintiff in reconvention, states and shows, that if the said'John S. Woolfolk recovers, in this suit, judgment for the said six bales of cotton, or the value thereof, of the defendant, then your petitioner in reconvention will be entitled to recover judgment against said Woolfolk, also, for six bales of like cotton to make up the deficiency of his consignment, and he prays accordingly.

To this demand in reconvention, plaintiff peremptorily excepted, on the ground that the same is not connected with or incidental to the principal demand.

This exception was filed on the 23d November, 1865, and on the same day the case was tried, and judgment rendered in favor of plaintiff; and in the same judgment the reconventional demand and call in warranty are dismissed. No reason is assigned for this dismissal, whether the exception was sustained or whether the reconventional demand was passed upon by the Court, on its merits, we are at a loss to know.

The plaintiff, pretending to find the six bales of cotton, alleged to belong to him, in the possession of the defendants, had the right to proceed as he did; and the defendants, disclaiming the ownership in the cotton, had the right, and it was their duty, to call in the shipper, A. L. Gaines, to defend his title to the cotton in the suit; the defendants were mere nominal parties. -

A. L. Gaines became a real party defendant, and had the right to make all defences as an ordinary defendant to defeat plaintiff’s demand, and could therefore plead any demand he might have against plaintiff, as authorized by law. The plaintiff residing out of the State, defendant could institute a demand in reconvention against him for any cause. Act of 1839, sect. 7, p. 164. At all events, we believe that justice requires the remanding of the case.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled and avoided; that the exception to the re-conventional demand be overruled; that the casé be remanded to be tried according to law, and that plaintiff pay costs of appeal.


text:
    A. M. Dreville, Widow of Louis Emmerling, v. Joseph S. Cucullu.
    An absentee is a person who has rosided in the State and has departed, without-leaving any one to represent him. It means, also, the person who never was domiciliated in the State, and resides abroad.
    A defendant who is domiciled in this State cannot be cited through a curator ad hoc, when lio is absentfromthe Statoandnot represented by an agent.
    APPEAL from the Third District Court of New Orleans,

      Fellowes, J. Miles Taylor and J. Brewer, for appellant. A. Philips, curator ad hoe, appellee.
   Labauve, J.

The petition substantially alleges that Joseph S. Cucullu, a resident of the city of New Orleans, is. indebted to petitioner in the sum of $3,079 50, with interest, to secure the payment of which the debtor gave a mortgage on certain property, by act passed before a notary public, on the 15th March, 1860. That said Joseph S. Cucullu is now absent from the State ; that he has property in the State, and that he has appointed no person to take care of his property or to represent him, and that, in the premises, a curator ad hoc ought to be appointed to represent him in this suit, and to defend his interest therein.

The petition concludes accordingly, and that a curator ad hoc be appointed to represent said defendant in this suit, upon whom citation may be served. i

A curator ad hoc was appointed, as prayed for.

The following exception was filed by the curator ad hoc :

The curator ad hoc, herein appointed by the Court to represent the defendant, an absentee, now comes, and for exception to the plaintiff’s demand, says that said defendant being absent from, and not represented by agent, etc., in the State of Louisiana, he cannot be proceeded against in personam and cited through a curator ad hoc, appointed for that purpose, the Court being vested with no jurisdiction in the premises, as no property belonging to said defendant is before the Court, upon which legal action is or can be based.

The District Court sustained the exception and dismissed the suit, and the plaintiff appealed.

It seems that there is no dispute about the defendant having his domicile in the city of New Orleans, and being absent at the time; the curator ad hoc did not put that at issue, but raised tho question, whether the defendant, under the allegations in tho petition, can be represented by a curator ad hoc, or otherwise, can be called an absentee, in the legal meaning of Art. 57 of our Civil Code, and the definition given to the word at No. 3 of Art. 3522, Civil Code.

An absentee is a person who has resided in the State, and has departed without leaving any one to represent him.

It means, also, the person who never was domiciliated in the State, and resides abroad.

Now, can a person who has a domicile in the State be called an absentee ? Can the citizens of New Orleans, who go over the Lake in the sickly season of the year, be considered as absentees, and be proceeded against as such ? We think not. A resident is not an absentee, and vice versa; one person cannot be both, at the same time, in the meaning of the law, a resident and an absentee. •

In the case of Dupuy, curator, v. Hunt et al. 2 A. 562, Judge Eustis, who delivered the opinion of the Court, said :

,“Nor do we think that the intendment of Article 57 of the Civil Code is changed by Art. 116 of the Code of Practice. The several articles of that Code concerning the appointment of curators to persons, presuppose something upon which the jurisdiction of the Court can properly be based. C. P. Arts 194, 195, 924, 963, 964. They must all be taken together and construed with reference to, and in furtherance of the provisions of the Civil Code, and not as creating what would be an anomaly in legislation. ”

We are of opinion that our jurisprudence is so well settled upon this question that we do not feel authorized to disturb it.

It is therefore ordered and decreed, that the judgment appealed from be affirmed, with costs.


text:
    The Citizens’ Bank of Louisiana v. William Bailey.
    A party gave four notes payable to his own order, and by him endorsed in blank, and gave a mortgage on certain immovable property to secure their payment; at the maturity lie gave four other notes, to represent the old ones, with the express understanding that the new notes should nob in any manner operate as a novation of the old notes, or impair the validity of the mortgage by which they were secured. The mortgage contained a stipulation that, in case suit was instituted on the old notes, the holder should receive interest and attorney’s fees. A holder of one of tho new notes instituted a suit to recover the amount, with interest and attoney s fees, and also askod for the recognition of the mortgage in his favor, and the enforcement thereof :

      7Ield: — >That the mortgage to secure the payment of the old notes was nob to be affected in any man* nerby the new notes; and that there was no contract of mortgage made to secure the new notes, and the plaintiff could not recover attorney’s fees under the stipulation in the mortgage.
    APPEAL from the Fourth District Court of New Orleans,

      Theard, J. Sullivan, Billings & Hughes, for appellant. Ilyams & Jonas for appellee.
   Hyman, C. J.

On the 4th clay of January, 1859, the defendant gave to W. & D. Urquhart four notes, payable to his own order, and by him endorsed in blank, and for the purpose of securing their payment he gave a mortgage on certain property, and agreed therein that should it become necessary to institute legal proceedings for the recovery of the amount of the notes, or any part thereof, he would pay the fees of the attorney whom the holder of the note might employ for such purpose.

On the 7th day of February, 1861, Messrs. W. & D. Urquhart had possession. of these notes (they having become due), and defendant gave to them four other notes, to represent the original notes, payable to his own order, and by him endorsed in blank. The agreement was that W. & D. Urquhart should still retain the notes first given, and that the new notes given by defendant should not operate as a novation of the old ones, nor affect nor impair the validity of the mortgago given to secure their payment.

Plaintiff became the owner of one of the said notes given in February, 1861, and brought suit to recover the amount, with interest thereon, and the fees of the attorney employed to institute suit. Plaintiff also asked for the recognition of the mortgage in his favor, and the enforcement thereof.

Defendant answered by a general denial.

The District Judge rendered judgment in favor of plaintiff, condemning defendant to pay the amount of the note, with the interest thereon, fees of the attorney and costs of suit, and decreeing that the mortgage be recognized in favor of plaintiff; that it be enforced, and that the property mortgaged he seized and sold to satisfy the claim of plaintiff

From this judgment defendant has appealed.

The agreement between W. & D. Urquhart and defendant, in his giving the new notes, was that they should represent the old ones, but not to such an extent that the mortgage should exist to secure the payment of the new notes.

The security by mortgage for the payment of the old notes, was not to be affected in any manner by the new ones. No contract of mortgage was made in giving the new notes.

' It is decreed that the judgment of the District Court be annulled and reversed; and it is further decreed that plaintiff recover of defendant tho ■sum of six thousand six hundred and sixty-six dollars and sixty-six cents and two-thirds of a cent, with interest thereon at the rate of eight per cent, per annum, from the 15th day of March, 1862, till paid, and the costs of suit in the District Court.

It is further decreed, that plaintiff pay costs of this appeal.

Labauve, J. recused.


text:
    Bernard Turpin v. Jean Maury.
    VFheroifc is sought to deprive an insolvent debtor of the benefit of tho laws in favor of insolvent debtors, on account of alleged frauds committed by the insolvent, the specific acts of fraud alleged must be clearly established.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. Q. Schmidt, for appellant. Sheldon & Purdre, for appellee.
   Hyman, C. J.

In this case the plaintiff, a judgment creditor of tho defendant, forced him, under an order of Court, to surrender his property to his creditors.

Plaintiff was selected by the creditors as their syndic, and he (as a creditor and as syndic) filed his written opposition to the surrender made by defendant, specifying therein several acts of fraud committed by defendant on his creditors. He prayed that the defendant be arrested; that he be deprived of the benefit of the laws in favor of insolvent debtors, and that he be sentenced to imprisonment for three years.

The defendant was arrested by order of Court, granted on the prayer of plaintiff for his arrest.

The several acts of fraud specially charged, are :

.That defendant had concealed his commercial books and papers, with the intention of keeping them from his creditors, and thus preventing the creditors from acquiring a knowledge of his affairs. That he had fraudulently concealed a large portion of liis property, with the intention of keeping it from Ms creditors, to wit: 95,250, which he received on 27th August, 1863, by the sale of Ms confectionery establishment, and also the, proceeds of some goods sold by him in Matamoras.

That he had placed a fictitious claim on Ms schedule of $7,000.

Trial by jury was waived, and the charges of fraud were tried by the Judge, who rendered a judgment for defendant, and ordered that he b.e released from custody.

From this judgment plaintiff has appealed.

We agree with the District Judge, that not one of the acts of fraud charged to have been committed by defendant on Ms creditors was proven; but plaintiff contends that there was evidence adduced of an act of fraud perpetrated by the defendant on his creditors, different from those charged, and which, he contends, subjects the defendant to three years’ imprisonment.

The District Judge was not satisfied that there was proof of any act of fraud committed by defendant, on his creditors.

In examining the evidence, we have not come to a conclusion different from that of the Judge.

Let the judgment be affirmed, the plaintiff to pay the costs of appeal.


author: Labatjve, J.

text:
    Blanchin & Girard v. Hypolite Martinez, Curator.
    A party opposed the account filed by tlie curator representing a succession, on the ground that liis claim, was a privileged claim, and the curator had failed to place it on the tableau as such, the opposition was dismissed, and the opponent appealed, and only prayed that the curator be cited:

      Held: — That all the creditors of the estate, placed on the tableau of distribution, had an interest in maintaining the judgment, and should have been cited and made parties to the appeal.
    APPEAL from the Second District Court of New Orleans,

      Thomas, J.

      L. Gastera, for appellant. Samiola & Bucros, for appellee.
   Labatjve, J.

An account having been rendered by H. Martinez, in this case, it was opposed by Blanchin & Girard, the appellants. They allege, in substance, in their opposition, that they are creditors for $339 98, with privilege on a certain sum of $499 60.

That the said curator has ignored their claim, and failed to put it at all on the tableau ; that they are entitled to be put on said amount as privileged creditors; that their privilege is anterior to any others, on the proceeds of the property attached and sold. They also oppose the charge generally in said account, and particularly the law charges, auctioneer’s bill, commission of sale, etc., as being exaggerated and unwarranted by law; and they say that the said claims are not to be paid out of the funds arising out of the sale of the property attached.

Wherefore, they pray that their opposition be admitted, and the tableau herein filed be so amended as to place the claim of opponents on said tableau, filed by Martinez, for said sum of $339 98, with interest and costs, as a privileged one, and that it be ordered that the same shall be paid in preference to any of the creditors of said Juvenal, out of the proceeds arising out of the sale of said property so attached.

The curator answered the opposition by a general denial, and pleaded prescription.

The lower Court sustained the plea of prescription, and dismissed the opposition.

The said opponents appealed by petition, and prayed for an appeal to this Court, and that Mr. Hypolite Martinez, curator, aforesaid, be cited to appear before this Court and answer the said appeal. The curator alone, and no creditor, was cited.

The curator and appellee now moves to dismiss this appeal, on the ground that the creditors placed on said tableau of distribution, opposed by the appellants, and who have an interest in maintaining the judgment appealed from, have not been cited.

It is clear that the creditors whose claims are opposed, and to whom the opponents claim a preference over certain funds, have a direct interest in the judgment appealed from, and not being parties to this appeal, the correctness.of that judgment, which is virtually in their favor, cannot be inquired into.

The motion must prevail. 17 An. 302, 74.

It is therefore decreed that the appeal be dismissed, at the cost of the appellant.


author: Taliai’ebbo, J.

text:
    John Nelson v. Jacob Beaumiller et al.
    Vrboi’o no citation of appeal has been served on the appellees, and the petition of appeal contains no prayer that they bo cited, the appeal will be dismissed.
    APPEAL from the Fifth District Court of New Orleans,

      Leaumiont, J. A. Miller, for appellant. B. Egan, for appellees.
   Taliai’ebbo, J.

The defendants move to dismiss this appeal, on the ground that all the appellees have not been made parties to the appeal; that no bond has been executed in favor of Bienvenu, one of the defendants, and that no citation of appeal has been served on either of the parties ; and that the petition of appeal contains no prayer that they be cited.

An inspection of the record shows that the facts are as set forth in the motion to dismiss. 12 L. 271. 14 An. 315.

It is therefore ordered that the appeal be dismissed* at appellant’s costs.


text:
    Mrs. E. A. McNeil v. Dr. J. H. Knapp et al.
    Where, by the terms and conditions of a lease, the lessee covenants to allow no goods to be placed on the premises, which, if on the premises, would cause a forfeiture of the insurance, it is a sufficient cause for annulling the lease, if such goods aro allowed on the premises with the consent of the
    Default is not a necessary prerequisite to tho rescission of a contract, when the party sued for its rescission lias made an actual breach thereof.
    APPEAL from the Fifth District Court of New Orleans,

      Leaumont, J. E. Bermudez, for appellant. Elmore é King, and Jj. M. Bay, for appellee.
   Hyman, C. J.

Plaintiff leased to defendants the house numbered 171 on Canal street, in the city of New Orleans, from the 1st of October, 1864, to 1st of October, 1867, at a rent of $1,600 a year. Plaintiff brought suit against defendants to have the lease dissolved and the defendants expelled from the house.

Defendants answered by a general denial, and one of them claimed that they had put extensive improvements on the house; but did not ask for judgment, for the value of the improvements, against plaintiff. If such a claim could be inferred from the pleadings, it is ignored ; for, by agreement, found in the record, wherein defendants declared that they did not ask for a judgment for money against plaintiff, thus reserving their right to be paid for improvements, to be settled hereafter.

The District Judge rendered judgment against plaintiff, and she has appealed from the judgment.

In the petition, plaintiff has asked to have the lease annulled, because the defendants have, in contravention of the agreement in the contract of lease, permitted to be put in the house let, goods that caused a forfeiture of the insurance thereon.

It is unnecessary to notice the other grounds alleged by plaintiff for annulling the lease, as this we deem sufficient.

Plaintiff had the house insured against fire, at the time the contract of lease was made, and continued to have it thus insured. The agreement in thg policy of insurance was, that the insurance against fire should cease and be of no force, if there should be deposited, kept or stored in the house, any articles, goods or merchandise denominated hazardous, as per memorandum of the policy, so long as the articles, goods or merchandise were thus deposited, kept or stored. Among the goods named as hazardous in the memorandum are millinery goods.

In the contract of lease, the defendants agreed that they would not put anything in the house that would forfeit the insurance.

The evidence shows that the defendants sublet a part of the house to Mrs. E. Babett; and that, between the 1st and 7th of October, 1865, she moved into tbe house a stock of millinery goods, with defendants’ knowledge and consent, and the goods were permitted to remain therein.

Thus was the insurance forfeited by the acts of defendants, done contrary to and in violation of their agreement in the lease, and the plaintiff had a right, on account of the acts of defendants, to rescind the contract of lease.

Defendants contend that plaintiff has not been damaged by the use that defendants made of the house, different from that intended in the contract of lease, and that, unless she has sustained a loss by such different use, she cannot obtain a dissolution of the lease. They refer us to Article 2681 of the Civil Code, to sustain their position.

It is unnecessary for us, in this case, to examine whether this article is to be interpreted as contended for by defendants, for damage may be presumed and assessed by Courts without calculating altogether in pecuniary loss or privation of pecuniary gain. C. C. 1928 g 3. And we consider that the plaintiff has been damaged.

The breach of the contract of lease by defendants exjiosed plaintiff to loss, and caused her to have a feeling of insecurity for her property. This feeling was a damage to her, and had she sued to recover damages for violation of the contract of lease by defendants, this Court could, in its discretion, have awarded the amount owing her as damages.

Defendants further contend, that plaintiff cannot have the contract of lease annulled, as the plaintiff has not put them in default.

Default is not a necessary prerequisite to the rescission of a contract, when the party sued for its rescission has made an actual breach thereof. 3 La. R. 331. C. C. 1926.

It is decreed that the judgment of the District Court be avoided and reversed ; and it is further decreed that the lease made by plaintiff to defendants, of the house numbered 171, on Canal street, in the city of New Orleans, be dissolved and annulled, and that the defendants be expelled from the house.

It is further decreed that, whatever claim defendants may have on the plaintiff, for improvements, bo reserved to them. It is further decreed, that defendants pay the costs of this suit.


author: Tabiaeeseo, J.

text:
    A. W. Walker v. F. Ducros.
    Where the rules of the District Court require causes to be fixed for trial on the first day of the term, it is error to fix a cause for trial on tho second day of the term.
    Courts are clothed with power to prescribe such rules of proceeding appertaining to their jurisdiction as may be necessary and useful in the exercise of their functions, and which have not been established by law. These rules become, in effect, laws, which may, be modified or repealed by the power from which they emanate, but they ought not to be relaxed or suspended to meet temporary convenience or be accommodated to the ever varying circumstances of time. The evils that would arise from a vacillating and uncertain operation of such rules are more and greater than any that would by such lax operation be obviated.
    APPEAL from the District Court, Parish of St. Bernard,

      Cazabat, J. Sambola <& Dueros, for appellant. , L. Gaslera, for appellee.
   Tabiaeeseo, J.

Walker, the appellant, bought from J. S. Cucullu a plantation and slaves, at the price of $135,000. He received the title to the property .by authentic act, dated 29th September, 1859. Payments were to be made as follows, viz : $25,000 in cash; $10,000 in two notes of $5,000 each, payable 31st January, 1858; $89,000, in six several notes of $13,333 33, payable respectively on the — day of December, 1858, and the last of the series on the 10th of December, 1863; and for the remainder of the price, $20,000, Walker assumed to pay that sum for Cucullu, to Villavaso, who held two notes of Cucullu, making that amount, and the payment of which was secured by special mortgage on the land purchased by Walker from Cucullu.

To secure tho payment of $110,000 ($25,000 having been paid in cash), Walker mortgaged the property purchased to the vendor, or any future holder of the notes, which he executed, payable to the order of Cucullu. Dueros, the defendant, as holder of one of the notes of the series of six, took an order of seizure and sale from the Third Judicial District Court, in February, 1861. This suit was discontinued, and renewed again in October of the same year. In this proceeding the defendant prayed for and obtained an order for the sale of the mortgaged property, for cash, to a sufficient amount to pay the installments of the debt which were due, and on terms of credit to correspond with tho falling due of the notes running to maturity. The order embraced also, as part of the price to be paid in cash, the sum of $20,000, to cover the two mortgage notes of Cucullu to Villavaso, with accruing interest.

In November of the same year, Walker, the plaintiff and appellee in this case, urging various grounds, obtained a writ of injunction against the sale of the property, and the proceedings were stayed. In October, 1865, when the term of Court came on, at which the injunction was to be tried, owing to the inclemency of the weather on the first day of the term, and the bad condition of the roads preventing- attorneys and suitors from reaching the Court on the first day of its sitting-, the Judge passed over, until the next'day, all the cases subject to call.

It appears there is a rule of the Court which requires that all cases shall be fixed for trial on the first day of each term of the Court, and that this case was called on the first day of the term, but not fixed for trial. On the second day of the term, when the case was called to be set down for trial, the plaintiff’s counsel objected, on the ground that the cases could only be fixed for trial on the first day of the term ; that a case not called to be fixed for trial on that day, cannot be tried at that term of the Court. The Court overruled the objection, and the plaintiff took a bill of exception.

On the first day of the term, the plaintiff’s counsel filed a supplemental petition, in which he enlarged the grounds of his defence. Besides the allegations set up in his original petition, want of consideration of the note sued upon, the Proclamation of the President of the United States, and the Constitution of the State abolishing slavery; the two actions, quanti minoris, instituted by plaintiff against Cucullu, in the Fourth and Fifth District Courts, by which he claimed large deduction from the amounts of his notes, given for the price of the property, founding the claim for these deductions on the averments that many of the slaves purchased were, on account of redhibitory defects, and for other reasons, not worth the price stipulated to be paid for them. On the 6th of October, 1865, a trial was had; judgment was rendered in favor of the defendant, and the plaintiff has appealed.

A due consideration of the matters forming the subject of the bill of exceptions we have noticed, brings us to a conclusion which renders it unnecessary to examine the merits of the case. We think the Judge erred in fixing the cause for trial on the second day of the term, when the rule of the Court requires all cases to be fixed for trial on the first day. Rules of Court have the force of law, and are not less obligatory upon the Judge than upon the parties to an action. Parties litigant might often be subjected to serious inconvenience and to undue advantages where rules of procedure are not strictly adhered to; while, on the other hand, by their rigid observance, annoyance from delay, or from other sources, would be of less frequent occurrence. Courts are clothed with power to prescribe such rules of proceeding appertaining to their jurisdiction as may be necessary and useful in the exercise of their functions, and which have not been established by law. These rules become, in effect, laws, which may be modified or repealed by the power from which they emanate, but they ought not to be relaxed or suspended to meet temporary convenience or be accommodated to the ever varying circumstances of time. The evils that would arise from a vacillating and uncertain operation of such rules are more and greater than any that would by such lax operation be obviatedi

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and it is further ordered, that this case be remanded to the District Court, to be proceeded with according to lalw.


text:
    A. Roth v. Captain Harkson and Owners of the Brig N. M. Terry.
    Tho plaintiff, a drayman, contracted to haul and deliver to a vo3sol, loading at tho port of Now Orleans, sixty-four bales of cotton. The cotton was hauled to tho vcssol and placed on tho Levco, at a place near the vessel, which place was pointed out by the mate of tho ship. • The drayman, at the request of the officers of tho vessel, covered the cotton with a tarpaulin; the officers of tho vessel then refusod to sign a receipt for the cotton, alleging that they would not receipt for freight at so late an hour in the day:

      Held : — That the cotton was in the custody of the vessel, and the vessel rosponsiblo therefor as a common carrier, and must pay for the loss of ono of the bales'talcen away during tho night.
    The drayman, having paid hite employer tho value of tho bale of cotton lost, brought this action against the vessel to recover the amount so paid :

      Held .- — That there was no privity between the drayman and the vessel; that the mero paymont to the owner of tho cotton of the the value of the cotton lost, did not subrogate the drayman to the right of action the owners of the missing bale of cotton had against the vessel^ either for the balo or its value.
    APPEAL from the Sixth District Court of New Orleans,

      JDupkmtier, J. A. Saucier, for appellants. TP. G. Budd, for appellee.
   Labatjve, J.

Plaintiff sues the defendants to recover the sum of $600, the value of a lost bale of cotton, alleged to have been delivered to them.

The answer contains, in substance, a general denial.

The District Court gave judgment for $56á 16, and tho defendants appealed.

The principal question in the case is one of delivery to the vessel.

The plaintiff, who carried on the business of a drayman in New Orleans, on the 13th of August, 1861, was employed by Buddeeke & Co, to haul sixty-four bales of cotton to the said brig, and the said vessel was to receive the said cotton as freight. On that day the whole lot was brought to the brig, except a few bales which were brought on the 15th. Twenty-two bales of the lot were brought on same day, between 5 and 6 o’clock, P. M., on two wagons; eleven on each wagon.

Peter Kernor, one of the drivers, says : The brig was lying right before the Port Market, near foot of Marigny street. When I got there I gave the mate the paper for him to receipt for. Tho mate told me to roll the cotton well on the wood-work or he would not receive it. When he told me that, we hauled up as close up to the ship, on the wood-work of tho Levee, where the mate received it. There were twenty-two bales of the cotton, eleven on each. We had to roll the bales up, bale to bale, close together, myself and partner and men of the ship; the seamen rolled that cotton up. Martin Brown drove the other wagon; he is dead. Tho mate did not sign the receipt. There was a tarpaulin put on those bales. He would not receive it unless we covered it up with a tarpaulin, * * It was between 5 and 6 o’clock when we got to tho ship. The receipt called for twenty-two bales. He would not sign it after wo had done with our work. He said it was too late to receive the cotton, and he would not receive it. * * * The mate ordered the men to help us.

Henry Webber testified, that ho was a custom-house officer at the time, and that vessels had to be loaded under the supervision of an inspector of the customs, and that he did not allow the cotton to go on shipboard after 6 o’clock, unless by special permit.

Rudolph Hecht corroborates fully the testimony of Peter Kernor, tending to show that the mate, by his conduct, actually received and took in his ehargo the said twenty-two bales of cotton, one of which was missing on Monday following, the 15th August.

It is true, and proved, that after the cotton had been unloaded, piled up and covered witli*a tarpaulin, under the instruction of the mate, the captain, clerk, and even the mate, refused to sign the receipt; but the cotton had already been received, and was in charge of the vessel, and the delivery was consummated and could not be recalled; the ship had contracted the obligations imposed on carriers and watermen. C. O. Arts. 2722, 2723.

The same article says :

“ They are answerable not only for what they have actually received in their vessel or vehicle, but also for what has been delivered to them at the port or place of deposit, to bo placed in the vessel or carriage”. Story on Bailments, 532, 533, 534.

The regulation of the customs did not prevent the ship from receiving the cottton on the wharf.

The plaintiff, having produced to his employer a receipt for sixty-three bales only, was made to pay for the lost bale.

The defendants contend that, if plaintiff did deliver the sixty-four bales of cotton to the brig, his mandate was at an end as soon as the delivery was made, and that he cannot be heard to say that he has paid for the alleged missing bale of cotton, and that he has no right of action against the defendants for its value.

The plaintiff, having parted with his possession as a custodian of the bale of cotton, by delivering the same to the brig, had no longer any control over it, and it became a matter between the brig and the employer of plaintiff; the brig became responsible to the owner of the bale of cotton, and not to plaintiff. It is true that plaintiff paid his employer for the lost bale of cotton; but there is no proof in the record showing an assignment or transfer to plaintiff by his employer for the bale of cotton, or for damages for its loss.

The mere payment by plaintiff did not subrogate him to the right his employer had against the brig, either for the bale or its value; for the plaintiff was not bound with others or for others. C. O. Art. 2157.

Wo aro of opinion that the plaintiff failed tP make ortt lug ease, and that our learned brother below erred in giving him a judgment.

It is therefore ordered and decreed, that the judgment appealed from be annulled and avoided.

It is further ordered and decreed, that plaintiff’s demand be dismissed, as in case of nonsuit, and that plaintiff and appelloo pay costs in both Courts.