text:
    No. 9089.
    Charles E. Staub vs. W. Van Benthuysen.
    A libel is any publication whether in writing, print, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided,jor which has a tendency to injure him in his occupation.
    Publication is the communication of the libel or defamatory matter to a third person.
    Every sale or delivery of a written or printed copy of a libel is a fresh publication, and every person who sells a written or printed copy of it may be sued therefor, and the onus of proving that he was ignorant of its contents is on the defendant. In giving currency to slanderous and libellous reports and publications, a party is as much responsible crim - inally and civilly as if he had originated the defamation. His 'oi^y defence to a civil suit is to shew the truth of the charges preferred, while in a criminal prosecution not only must the truth'be proved, hut that the truth was published for good motives and for justifiable ends.
    The word ‘malice ’ in such cases does not imply, much less mean, ill will or personal malice. Malice is an imputation of the law from the false and slanderous nature of the charge. Legal malice need not bo proved. Actual malice may he proved to enhance the damages
    Any publication which is false and defamatory subjects the publisher and the seller to damages in favour of the party aggrieved, and it is not incumbent upon him to prove that he has been injured by the publication.
    The discharge of one who has been prosecuted for libel does not prove want of probable cause for the prosecution, nor malice in the prosecutor.
    APPEAL from the Civil District Court tor the Parish of Orleans. Monroe, J.

      Burnt <& Lavillébewvre for Plaintiff and Appellant.

      John M. Bonner and VI. II. Farrar for Defendant and Appellee.
   The opinion of the Conrt was delivered by

Manning, J.

This suit is for the recovery of five thousand dollars as damages for a malicious prosecution. The defendant made affidavit before one of the recorders of the City that the plaintiff had wilfully and maliciously defamed Mm by publishing, selling, and distributing a newspaper called 'The Mascot,’ tending to provoke him to wrath and expose him'to contempt and ridicule. The plaintiff, having been arrested under tbis affidavit, was discharged by tbe Recorder oh tbe ground that the publication was not malicious.

Tbe allegations are that the plaintiff is a clerk (salesman) in the book store and news stand of W. F. G-oldthwaite, where all the local newspapers and the principal ones from other cities are constantly sold, and among them the 'Mascot’ — that he did not sell the particular number of that paper complained of liimself, nor cause it to be sold and distributed as charged, and if it was sold at that stand that' the plaintiff was not responsible therefor, and the arrest and prosecution of him was malicious and without probable cause.

The answer repels the assertion of malice, and avers that the defendant in making the affidavit, acted in good faith and on the advice of experienced counsel, and that there was probable cause, for at the time of the plaintiff’s arrest he was selling and distributing the Mascot of date April 22, 1882, which contained a gross and defamatory libel of the defendant, a copy of which is appended. It is further averred that the plaintiff in divers ways and at sundry times has held himself out to the community as the owner and manager of the news-stand, and is in fact such owner and manager, and that he did wantonly and maliciously sell and circulate the number of the newspaper above mentioned, causing damage to the defendant in the sum of ten thousand dollars for which judgment is prayed.

The verdict of the jury did not sanction either claim. The plaintiff took nothing by his suit — the defendant nothing by his reconventional demand.

The proof is entirely satisfactory that the plaintiff is part owner and sole manager of the news-stand. G-oldthwaite owns the hook-store in which Staub is a salesman at a fixed salary. Staub equally aliaros the profits with G-oldthwaite of the news-stand appendant to the bookstore, and entirely manages it. He has advertised himself as sole proprietor of the news-stand for seven years in the City Directory and in the newspapers, and has written laudatory notices of “ Stand’s newsstand” wbicli he had inserted in the newspapers. The public know it as.Staub’s, and the public so know it from Stand’s representations.

There is no dispute of the fact that the newspaper in question was sold at that news-stand. Staub denies that he sold the particular copy which was introduced in evidence. The fact was that copy was delivered by a boy about the stand.

The affidavit and arrest were made on April 29 th.., one week after the date of the publication. In this interval the defendant had taken legal advice. Counsel informed him that the publication was libellous and the seller was liable to imprisonment and fine, and that an affidavit should he made as the basis of a criminal prosecution, l't was accordingly made.

A libél is any publication whether in writing, printing, jneture, effigy, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be, shunned or avoided, or which has a tendency to injure him in his occupation. Odgers on Libel and Slander. 7, 20.

Publication is the communication of the libel or defamatory matter to a third person. Every one who prints or publishes a libel may be sued by the party defamed, and to such action it is no defence that another wrote it, or that it was printed or published by the desire or procurement of another. Every sale or delivery of a written or printed copy of a libel is a fresh publication, and every person who sells a written or printed copy of it may be sued therefor, and the onus of proving that he was ignorant of its contents is on the defendant. Ibid. 155, 159. The same rules apply to a criminal prosecution for libel as to a civil suit for damages by reason thereof. In giving currency to slanderous and libellous reports and publications, a party is as much responsible criminally and civilly as if he had originated the defamation. His only defence in a civil suit is to shew the truth of the charges preferred, and not the fact that others had preferred them. State v. Butman, 15 Ann. 166. In a criminal prosecution not only must the truth be proved, but that the truth was published for good motives and justifiable ends. State v. Bienvenu, not yet reported.'

The word ‘malice’ when used in civil or criminal pleading in cases of this kind does not imply, much less mean, ill will or personal malice. Its legal sense is a wrongful act done without just cause or excuse. Malice is an imputation of the law from the false and injurious nature of the charge, and differs from actual malice or ill will, which latter may be proved to enhance the damages. Legal malice need not be proved. The law imputes it to the publisher of a libel from the act of publication.

Any publication which is false and defamatory subjects the publisher to damages in favour of the party aggrieved — printed or written slander being justly considered more pernicious than verbal. The law holds the publisher responsible as the instrument used for the dissemination of calumny whereby the character of any one may be blasted, or his business injured, or his social standing impaired. And it is not incumbent on the party assailed by falsehood and defamation to shew malice against himself on the part of the publisher, nor to prove that he has been injured by the publication. Ferret v. N. O. Times, 25 Ann. 170.

The offensive publication was a cartoon wherein the defendant was represented as a trickster manipulating the city council in the interests of the railroads of which he is president, and the letter-press attributes to Mm bribery. It was well calculated to excite indignation in liim at the outrage, and indignation against him in the community. Pew things could be more galling to a high-minded and honorable man, and the plaintiff’s own witnesses are unanimous in placing the defendant in that category. The prosecution of the plaintiff by him for this publication had therefore probable cause, and malice in the plaintiff is implied. Malice in the defendant in instituting the prosecution is conspicuously absent. He was ready to become bail for the plaintiff if the Recorder had committed him.

The discharge of the plaintiff does not prove want of probable cause for the prosecution, nor malice in the prosecutor. Godfrey v. Soniat, 33 Ann. 915; Vinas vs Merch. Ins. Co. Ibid., 1266. It is clear therefore that the plaintiff is without solid basis for his action for damages. He had voluntarily placed himself in a position where the enginery of the criminal law might be invoked against him. He is presumed to know that the law of this State denounces the punishment of flue and imprisonment against whoever maliciously defames any person by making, writing, publishing, or causing to be published any manner of libel. Rev. Stats, sec. 3643. No harshness was used save that which is inseparable from a formal arrest. He was detained an hour before the'Recorder. His pecuniary losses are thirty dollars lawyer’s fee for defending him there, and twenty-five for costs here. The incurring these losses was the necessary outcome of his violation of the law in the first instance, and of his present futile effort to invoke the law against one whom he has injured. He can have no redress because he has no injury to be redressed. Actions of this sort have never been favoured, and in order to sustain them a clear case must be established, when the forms of justice have been perverted to the gratification off private malice and the wilful oppression of the innocent. Laville v. Biguenaud, 15 Ann. 605.

It follows as an inevitable consequence that the defendant is entitled to redress. If the plaintiff has published a libel of him, or to use the ordinary non-legal language, has sold, distributed and circulated a newspaper which contained a representation of the defendant in picture and printing which exposed him to obloquy, or which had a tendency to injure him in business, or impair his social position, or degrade him in the esteem of his Mends and of the public, and upon being put to the proof not a scintilla of it is even tendered to establish that it was the truth, but on the contrary his own witnesses affirm the opposite— then has the plaintiff inflicted on the defendant an injury recognised as a legal case for satisfaction in damages. They may not be large. Circumstances may interpose to reduce them to something like nominal reparation, but the right to them is a legal corrollary from the ascertainment that the party who inflicted the injury had no justification for it.

It is a conclusive presumption of law that damage has ensued from a libellous publication, and therefore actual damage need not be proved. Tresca v. Maddox, XI Ann. 207. Lobe v. Cary, 33 Ann. 914. But damage was proved. 'The defendant in his testimony points out the partial injury to his business consequent thereon, but we apprehend the greater sore was the assault on his character and the attribution to him of an infamy revolting to his sense of honour.

Tt would have been so easy for the plaintiff to have ascertained whether the libellous cartoon was in the newspaper before selling it, and equally so to have pleaded ignorance of its contents which he failed both tojflead and to prove. We will not now consider what would have been the effect had he alleged and proved ignorance. We are willing to believe under the proof that he was not actuated by ill-will or personal malice. We note the kind and extent of his business - that his salary is not large, and his share of profits from the news-stand is presumably not larger. The purposes of justice will be fulfilled by a judgment against him for fifty dollars.

It is therefore ordered and adjudged that the judgment of the lower court rejecting the plaintiff’s demand is affirmed, and that the verdict of the jury disallowing the reconventional demand of the defendant is set aside and the judgment thereon is reversed, and it is now decreed that Watson Van Benthuysen have and recover of Charles E. Staub fifty dollars and his costs.


source: Caselaw Access Project

author: PocnÉ, J.

license: Public Domain

text:
    No. 9072.
    Numa Mollère vs. John P. Harp.
    Notes executed by a young man in favor of Ms uncle, under the pressure of threats from the latter of talcing the life of the former in case of his refusal -to acknowledge a pretended indebtedness to his uncle, are invalid, and payment of the same will not be enforced by the courts.
    The reverential fear of a relative, coupled with threats, is sufficient to invalidate a contract.
    APPEAL from the Twenty-second District Court, Parish of Ascension. Oheevers, J.

      JSñw, N. Pugh for Plaintiff and Appellee.

      R. N. Sims for Defendant and Appellant.
   The opinion of the Court was delivered by

PocnÉ, J.

Defendant resists the payment of fifteen promissory notes of one hundred dollars each, executed by him in favor of plaintiff, on the grounds that said notes were executed without consideration and that they were obtained from him by means of threats of great-bodily harm by plaintiff.

His defence was rejected and he lias appealed.

The record shows that plaintiff is the uncle, and has been the protector, of the defendant, whom he started in business in the year 1875 as a merchant, when the latter was only nineteen years of age.

The assistance which the uncle gave to the nephew consisted of a loan of a small sum of money and of his endorsement by his credit among his merchants in New Orleans.

The defendant prospered in business, refunded to his uncle the money which he had borrowed of him, and in the course of three years he had become the latter’s creditor for a store account. On a call for a settlement of his account, the uncle became very violent, and claimed to be a partner in defendant’s business; and in the latter’s store he called for a settlement of the i>retended partnership, threatening that in default of a satisfactory settlement he would take the life of the defendant.

Following up his demand for a settlement of the partnership, he sent a few days later two of his friends to the defendant’s store for the purpose of obtaining such settlement. The defendant then signed a written acknowledgment of a partnership between his uncle and himself in his store. Later on, he executed the notes now in suit, in settlement of his uncle’s interest in the business. The notes were made on. the 8th of February, 1878, payable on demand to plaintiff, and this suit was instituted on the 16th of May following.

The evidence proves conclusively that plaintiff had no share or interest in defendant’s store or business, and that he had fully and unequivocally recognized that fact and had urged no contrary pretension during the three years that defendant had conducted the business in which he had assisted him at its inception.

We are further convinced from the evidence that the written acknowledgment of a partnership and the subsequent execution of the notes, were obtained from the defendant by the repeated and violent threats of his uncle. The acts of the latter placed the defendant in the terrible dilemma of receiving great injury from the well known vio-lenco of plaintiff, or of shedding tlie blood of Ms own nncle and former protector. In bis harassing embarrassment, be took the advice of friends, who persuaded him that by means of the proposed settlement be would escape the barm which they all foresaw in the uncle’s “ savage disposition.”

These conclusions are erystalized into a demonstration by the circumstance that plaintiff made no serious efforts to meet and counteract the evidence introduced by the defendant in sippport of his grounds of resistance.

The record shows that plaintiff and the two friends who had obtained the written agknowledgment of the defendant touching the pretended partnership, were all living in the very parish where the ease was tried at the time of trial, and that neither of them was placed on the witness stand.

In face of the damaging testimony introduced by the defendant, and which had at least the effect of creating grave doubts as to the validity of the contract and of shifting the burden of evidence on plaintiff, it was incumbent upon him to meet the same by his own testimony and by that of the persons who had been efficient factors in parts of the res gestes. His failure to produce that indispensable evidence leaves his case without support, and strips his claim of all force either in law or in equity.

We, therefore, conclude that there was no legal cause for the contract sought to be enforced, and that it is entirely invalidated by the threats made by plaintiff. C. C. 1854, 1859; 12 Rob. 378.

The judgment appealed from is therefore erroneous, and it is in consequence annulled, avoided and reversed; and plaintiff’s claim is therefore rejected and his action is dismissed at his costs in both courts.

Rehearing refused.


author: Manning-, J.

text:
    No. 9009.
    Carter Brothers & Co. vs. Galloway & Burns.—Allen, West & Bush, Garnishees.
    Creditors of an individual cannot apply tlio assets of a partnership, of which that individual is a member, to the payment of his debt, to the prejudice of creditors of the partnership.
    The partnership could hare resisted a wrongful application of its assets, and what it could have done, its creditors cau do.

      The acquiescence in or consent to this wrongful application by the other members of the partnership cannot destroy or impair the rights of the creditors of the firm upon the firm-assets. after they have been fixed by the attachment of those assets.
    A PPEAL from the Civil District Court for the Parish of Orleans. / A_. Bightor J.

      Ohas. 8. Bice for Plaintiffs and Appellees.

      A. Goldthwaite for the Garnishees, Appellants.
   The opinion of the Court was delivered by

Manning-, J.

The plaintiffs are a business Arm in Louisville, Kv. who are creditors of the defendant firm in Trezevant, Tenn. for $2,076.58. This suit upon that indebtedness was instituted here, supported by a writ of attachment, and Allen, West & Bush, a business firm of New Orleans, were served with process of garnishment and interrogatories. They answered denying any indebtedness and their answers were traversed.

On January 4, 1882, Allen, West, & Bush owed Galloway & Burns $335.56. Two weeks before this, Galloway had been in New Orleans and directed Allen, West & Bush to buy two hundred bales cotton futures for April delivery. Tt was done. Galloway then directed A. W. & B. to put them in his name, saying his partner knew nothing of the transaction. They accordingly opened an account with Galloway individually for this purchase of futures, thus recognizing it as separate from the firm account and outside of the firm business, as indeed it was. This was in the latter part of Dec. 1881.

On Jan. 4, 1882, Galloway having returned to Tennessee wrote A. W. & B. in the name of his firm ; — “we enclose you bill lading for four bales cotton as margin on the contract for two hundred’' April cotton bought for account W. H. Galloway when he was in your city before the holidays. You will please protect the contract, as the cotton shipped to day and what you have on hand, at eleven cents for middling, will make you safe and the remainder will be shipped as fast as we can buy it.”

The firm of Galloway & Burns failed in Tennessee on February 9, 1882, and this attachment issued on the 20th of the same month.

After this failure and after the service of this attachment the individual account with Galloway was closed by charging the loss on the speculation in futures to the firm account, thereby absorbing the $335.56 which A. W. & B. owed Galloway & Burns, and converting them into debtors instead of creditors of A. W. & B. Mr. Allen as a witness says Galloway’s personal indebtedness, and wliieli Ms firm charged to the account of Galloway & Burns, was about nine hundred dollars, and if they had not so charged it,.G & B would have had a credit.

It does not appear whether Galloway owed A. W. & B any sum on account of his speculation in futures at the date of service of garnishment. Most of the cotton was then unsold.

The lower court gave judgment maintaining the attachment and condemned the garnishees to pay the plaintiffs $335.56 jwith interest from the date of garnishment.

The real question is, whether creditors of an individual can apply the assets of a partnership, of which that in dividual is a member, to the payment of the individual’s debt to the prejudice of creditors of the partnership. In this case there was no diversion by Galloway of the partnership assets to the payment of his debt. It does notlappear that he directed his individual debt to be charged in the partnership account, or that he gave any direction whatever about it. The diversion was by the garnishees themselves of their own mere motion. A.W. & B. found Galloway was debtor to them, and they were debtors to Galloway & Burns in a less sum, and they cancelled the one with the other jiro tanto after other parties had acquired rights upon the partnership fund.

Galloway & Burns could have resisted this wrongful application of their assets, and what they could have done, their creditors can do. Burns in his testimony says ho was ignorant of what had been done, and when he learned it objected to it. He seems to have been quiescent and inactive. But even his acquiescence or consent, after the failure of the firm and attachment of its assets by its creditors, could not impair the right of those creditors upon those assets. Caldwell v. Scott, 54 N. Hamp.—; Graw v. Caldwell, 5 Cowen, 489; Everngheim v. Ensworth, 7 Wend. 328.

The garnishees’ counsel urge there was no bad faith on their part, and that “they opeued an account on their books with Galloway evidently in ignorance of the effect it would have. * * * There was no collusion. There may have been ignorance of the nice distinctions made in eourts of law.”

It is not a question of good or bad faith, but simply of the legal right of creditors to avail themselves of the effect produced by the conduct of others, and to claim the benefit of the nice distinctions that the law has made which are applicable to the facts in hand.

Judgment affirmed.


author: Poché, J.

text:
    No. 8911.
    Jacob U. Payne vs. Samuel L. James and Louis Trager.
    Although tlie members of a planting partnership are hound only jointly for partnership debts, yet they may stipulate for a solidary obligation hv special contract, and they will be so hold by the courts.
    APPEAL from tlie Civil District Court for the Parish of Orleans. lissot, J.

      Breaux & Hall for Plaintiff and Appellee.

      J. Aroni and W. F. (& I). O. Mellen for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

The following are the facts of this case:

By authentic act, under date of January 21, 1882, plaintiff leased to defendants a plantation in the parish of Avoyelles, and in the same act he agreed to sell to them some seed cane and some mules, situated on said plantation; stipulating that the quantity and the cost of the cane, as well as the value of the mules were to he ascertained and fixed by future examination and appraisement, according to a plan. adopted by the parties, and detailed in the act.

It was stipulated in tlie act that the defendants hound themselves in solido for all the obligations of their contract. Subsequently the price of the seed cane was fixed at |>1500, and that of tlie mules at $1700, in payment of which the defendant, Louis Trager, executed two promissory notes for the respective amounts, which he signed under the partnership name of “James & Trager.”

The notes were made in solido.

This suit is brought to enforce their payment, but is mainly predicated on the act of lease and agreement of salé above referred to.

The defendant, S. L. James, alone was cited, and he alone defends. His answer is a general denial, coupled with a special denial of any authority in Louis Trager to execute any notes for him or for the partnership. But the real contention, as disclosed-on the trial, is that the defendant, James, is bound only jointly and not in solido on the amount due to plaintiff. He appeals from an adverse judgment.

His proposition, that a partner in a planting or ordinary partnership is hound only jointty or for his virile share of the firm’s debts, is unquestionably correct, and would sustain his defense under ordinary circumstances.

But the act under which this debt was created contains an unambiguous declaration that the defendants intended to, and that they did, Mad themselves in solido for the payment of tho seed cane and of the. mules which they had purchased from plaintiff.

i In his testimony the defendant James does not deny the authority of his partner to fix the cost of the seed cane and the price of the mules, and to hind the partnership for the payment thereof, hut he simply contends that he is hound for only one-half of the same, which he expresses his willingness to pay.

His answer to the suggestion that in the authentic act of lease above stated, he had stipulated for an obligation in solido, is that he signed the act without reading it. That omission is his misfortune, hut as a means of defense it is without force in law or in equity.

He had hound himself in solido,and the district judge correctly held him to Ms contract.

Judgment affirmed.

Fenner, J. recused on ground of affinity.


author: Manntng, J.

text:
    No. 8393.
    A. Lambert & Co. vs. J. P. H. Short.
    S bad a contract with C for a supply of coal, and •was unable to get the cash to make tender of tho sum stipulated for advance payment. L bargained -with S to avail himself of this contract, and for tho purpose of fastening it upon C, handed S tlio monoy to maleo tho tender. C refused to receive it. S was unable to perform his contract with L and the latter demanded of him the refunding the monoy.

      Held, that L could enfoico his demand and was entitled to judgment for the amount with intorosfc.
    A PPEAL from the Civil District Court for tho Parish of Orleans. J~\ Lazarus, J.

      Chas. S. Rice for Plaintiffs and Appellees.

      B. Shackelford for Defendant and Appellant.
   The opinion of the Court was delivered by

Manntng, J.

Tho plaintiffs sue to recover three thousand dollars put in the hands of the defendant to enable him to make tender or payment of it to W. S. Campbell.

The coal contracts of these three parties have already been before ns twice.

Campbell had a contract with Lambert & Co. for the delivery to him of sixty thousand bushels of coal, with the privilege of twenty thousand additional, at a stipulated price.

Short had bought of Campbell an indefinite quantity of coal, which he assumed was limitless, but with the condition that his indebtedness should not at any time exceed fifteen hundred dollars.

Coal went up at a bound. Lambert’s loss on his contracts with Campbell bid fair to be large. He hedged at once by bargaining with Short to avail himself of Short’s contract with Campbell. By this means Lambert would offset Campbell’s orders on him for coal with Short’s orders on Campbell.

The whole scheme fell through. Lambert refused to deliver coal to Campbell but wanted to exchange Short’s orders instead. Campbell sued Lambert for over $29,000 as damages for breach of contract.

Campbell, discovering that Short had exceeded the stipulated indebtedness, brought suit against him, and Short reconvened, setting up the contract for limitless coal.

Both these suits came, to grief. (The first not yet reported. The. last, 35 Ann. 447.) This is the third suit in course.

Short had not the means to make the cash payment or tender to Campbell on his contract. Lambert was of course anxious to fasten that contract on Campbell, and he therefore handed Short three thous- and dollars to make the tender. It was made and refused.

Then Lambert asked the return of the money. Short not only refused to return it, but claims that it is his and more besides.

Lambert brought this suit to get it back, and Short reconvenes for over twenty eight thousand dollars more, on the plea that he had given Lambert orders on Campbell for coal which amounted to over thirty one thousand dollars — orders which were never honoured, and which he had no right to give — and which were given with ‘ a consciousness that they were not in keeping and harmony with his agreement.’ See the language of this Court, Campbell v. Short, 35 Ann. 450.

Surely there was never so unfounded a pretension. The statement of the case is a refutation of the pretension.

The lower court gave judgment for the plaintiffs on both demands— in their favour for the sum claimed with interest, and rejecting the re-conventional demand.

Judgment affirmed.


author: Manning, J.

text:
    No. 8876.
    Frederick W. Ames vs. The New Orleans and Red River Transportation Company.
    Where the owners of a steamboat are captain and clerk of her and she is chartered for a year, the charterer stipulating the privilege of appointing the oaptain and officers, and no change is made of the existing officers, it is a tacit appointment of them.
    The hoat is not less in the custody of the charterer becauso the master is also part owner. "Whete the charter-party gives the charterer full and absolute control of the boat when where and how she shall be employed, lie is responsible for damage done to the boat when ‘laid up’ equally ns when m voyage.

    "When the charter-party contains the agreement that the charterer shall be responsible for damage from unavoidable accident, and that the owner shall have the damage repaired which shall be reimbursed him by the charterer, the owner is entitled to judgment for such sum as he shall prove was expended by Mm for such repairs, after deducting the amount paid by insurance companies on their policies.
    APPEAL from the Civil District Court, for the Parish of Orleans. Tissot, J.

      J). 0. & JO. L. Labatt for Plaintiff and Appellee.

      W. S. Benedict for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff' sues to recover $1,505.56 "for damage sustained by the steamboat W. J. Behan whilst under charter to the defendant, company, alleging' that this damage was occasioned by a violent storm while the hoat was in the charge and custody of the charterer.

The hoat was not pursuing any voyage. The storm occured Sept. 1, .1879 at which time and for a long time before she was “laid up,” and was moored at Algiers in charge of watchmen.

The charter contains the stipulation that the company shall have the privilege of appointing the captain officers and men of the steamboat, and shall have full and absolute control of her as to time, when where, and how she shall he employed, during the existence of the charter.

The plaintiff is half owner of the hoat — one Wilkinson owns the other half. The plaintiff is the subrogee of Wilkinson’s claim. Wilkinson was captain and Ames clerk. The above clause in the charter-party was intended to vest in the Company the right to discharge and put out the captain and clerk of boats that should come into the ‘pool’ which the Company had formed, even when these officers were the owners, and thus in that respect have fnll?and absolute control of every hoat that should become partner in the association. The concluding clause of tlie paragraph stipulated the same control of the use of the boat — when, how,' and where she should be employed. If it had pleased the Company to have ordered her to be unmoored in mid-summer and to be put in service, it certainly would have been futile for the owners to have disputed such order; and it was ecptally competent for the Company to have kept her out of service and fastened to the Algiers bank in mid-winter. The owners were absolutely bound, under the charter-party, to obey the Company’s orders.

Great effort is made by counsel on the one side to fasten upon us the. conviction that the two owners had been appointed respectively captain and clerk by the Company, and on the other that no such appointment had been made, although the Company liad the option to appoint at its pleasure. The controversy on that matter is unimportant. The two owners were captain and clerk when the boat was chartered. They brought her into the pool. The Company could change the officers as it pleased, but the boat after her charter was not the less in the control and custody of the Company because she was officered by her owners. They became eo instemii the servants of the Company, bound by the very terms of the charter to carry their boat whither the Company ordered, and to keep her stationary if the Company prohibited her voyaging at all. If the Company became dissatisfied with their management, it could turn them off, but until it did turn them off by appointing others, they were as much the appointees of the Company as if a formal appointment had been made. The charter-party is an absolute demise of the boat, vesting in the charterer full dominion over her. 2 Arnould Insurance, 838. She was therefore not only in the legal but actual i>ossession of the Company, officered and manned by its appointment while in service, guarded and protected by its watchmen while laid up.’

Nor is it of greater consequence who paid the watchmen, about which there is a prolonged contention. Whether the money was handed them by the captain or clerk or other employé of the Company, it was equally a payment by the Company. The money came from the Company. It was disbursed by their servants, albeit also owners.

It is disputed that the damage to the boat arose from unavoidable accident. The fury of the storm was unexampled. An unusually large number of disasters were caused by it. Piles, to which steamboats were fastened, were pulled from their places when the i-opes would not break. Coal-boats broke their moorings and sunk. The calamity was not local. It marks an epoch in the history of the river.

But the defendant argues there was want of care, of proper ixrecau-tionary action on the part of the watchmen in charge of the boat. They had not enough lines out — had a large expanse of tarpaulins stretching from below the gunwale to above the saloon deck that caught the wind and gave it fury — and they persisted in not putting-out more lines although advised of the boat’s insecurity, and persisted in not rolling up or taking down the tarpaulins although warned of the danger they increased.

When disaster from a storm was so general, evidence must be very strong to fasten upon those in charge of a boat responsibility for damage to it by reason of culpable negligence. Other boats escaped it is true, but there does not appear to have been wanting on the Behan the usual and proper care for boats laid up during summer. The Insurance Companies are not slow to investigate, and are prompt to detect culpable fault in those who claim compensation from them, and they paid the policies. But if the watchmen were derelict, whose fault was it 9 The boat was absolutely under the defendant’s control. If the means adopted for the safety of the boat while she was laid up were insufficient, then the Company should have enforced the adoption of others. If the officers or men were incapable, the company should have appointed others.

Upon the questions of damage we think the lower court made a proper estimate.

Judgment affirmed.


author: Manning, J. Bermudez, C. J.

text:
    No. 9057.
    The State ex rel. L. J. Bright & Co. vs. The Judges of the Court of Appeals of the Parish of Orleans.
    The Supreme Court will not review the ruling of the Court of Appeals upon the admissibility of evidence l>y any of the writs under which it exercises supervisory jurisdiction over inferior courts.
    ^JPPLICATION for Mandamus.

      Geo. Jj. Briqht for the Relators.
    Respondents in propriis personis.

   The opinion of the Court was delivered by •

Manning, J.

L. J;'Bright & Co. obtained judgment in the Civil District Court of this city against one Sheidecker who appealed therefrom — tlie appeal being cognisable by the Circuit Court where it was lodged. That court reversed the judgment a.nd non-suited the plaintiffs, and gave as the reason for it that the testimony upon which the District Court had acted had not been properly stamped.

The non-suited plaintiffs, appearing now as relators, invoke the exercise of our supervisory jurisdiction to compel the Circuit Judges to consider that testimony, and thereafter to decide the case. The respondents urge that entertaining this complaint will open the door to every litigant against whom they may rule upon the admissibility of evidence.

The Code of Practice, art. 857, assigns the refusal of the inferior judge to hear the party or his witnesses as one of the special causes for granting a writ or certiorari to the end that the validity of his proceeding may be ascertained. But that means an arbitrary refusal to hear any witnesses at all, and not a rejection'of testimony because it is held inadmissible. Testimony is inadmissible on .various grounds, and if the ground of objection be that it is not stamped, it is as purely an objection to its admissibility as if the objection were that it was irrelevant, or that it could not be^heard from any other cause. If therefore we should undertake to revise the action of an appellate court of the last resort on that ground, we should really be reviewing the ruling of that court as if on appeal from it.

In State ex rel Chism v. Judge, 34 Aun. 1178, we directed a mandamus to issue to compel a Judge to try a cause who had refused to try it, but we placed it on the ground that the relator had an absolute right to a determination of his action in the manner demanded by him which was the manner prescribed by law, and in refusing to try it the judge was not exercising a legal discretion. In the present case the Judges rejected evidence which they deemed inadmissible, and we should intrude in their jurisdiction if we undertook to say they were right or wrong.

The writ is refused.

ON Application foe Rehearing.

Bermudez, C. J.

While considering the letter and spirit of Article 857, C. P., which authorizes the granting of the writ invoked, when a a judge refuses to hear a party or his witness, wo said, that this meant an (wbitrwy refusal, hut not a rejection of testimony, because inadmis-sable. As we found that the ruling 'complained of was not that of character, We declined interference.

The relators, however, complain .that we did not review the ruling and determine whether it was or not authorized.

They argue that an arbitrary ruling’ is one without reason, and that, therefore, this court should consider the reason which induced the refusal, in order to determine wlither it was or not arbitrary.

Evidently, the relators misunderstand both the functions of the writ of certiorari and the meaning of the word arbitrary.

The writ is a mandate which commands the transmission to the court which issues it, of judicial proceedings had in an inferior court, in an unappeable case, that the validity of those proceedings may be ascertained and pronounced upon. C. P. 855, 858. It issues to test the regularity, the validity in point of form, not the correctness in point of substance, of a court of justice; otherwise, cases not appeal-able could always be brought up for review in that mode.

In the present instance, the judges of the Court of Appeals have declined to consider the written testimony because not legally stamped. They had jurisdiction over the case and over all incidental matters growing out of it. The proceedings transmitted show that they have exercised their jurisdiction in the form prescribed by law.

Their ruling is not an arbitrary one. It is not one made without reason, or against reason; it does not appear to be despotic or t5rranical, or to have been prompted by whim or caprice. They argue elaborately and refer to decisions made by them in similar casé, to the same effect.

It may well be, that they have erred in declining to consider the testimony, in the absence of any objection from the opposite party; that the testimony should not at all have been stamped; that the omission, if any, was caused by stamping it before submission of the cause on appeal or that the law refers only to testimony taken by an officer of the court, during session; that the testimony as offered by the parties should have been deemed as a partial statement of facts, made before appeal; that the law does not authorize the appellate court proprto motto to refuse to consider unstamped testimony, where the parties agree to submit their case on such, or for any other reason.

However that may be, the error, if any was committed, cannot be reviewed as is attempted to be done. Were it otherwise, the functions of the proceeding would be perverted and the mandate transformed into a writ of error. Our appellate jurisdiction is well defined by the organic law and cannot be extended even by the Legislature. Although the Constitutional article which has conferrd upon this Court a supervisory control over inferior courts, extends to both appealable and unappealable cases, still it was not designed to enlarge our appellate jurisdiction. It authorizes us to pass upon the correctness,, in point of form only, of the rulings and decrees of inferior tribunals in unappealable matters. 32 A. 1222; 33 A. 15,256.

Application refused.


author: Bermudez, C. J. Fenner, J.

text:
    No. 9177.
    S. Gumbel & Co. vs. Ferdinand Beer et als.—A. Lionnet et al. Intervenors.
    An affidavit that the petitioner has sold cotton, the price of which is unpaid and on which there exists a lien, and that the purchaser is about to convert the cotton, thus sold, into money or evidence of debt, with intent to place it beyond the reach of his creditors, is amply sufficient to authorize, a writ of sequestration, which will be maintained, if executed within five days after the delivery of the cotton.
    The privilege of a vendor of agricultural products of the United States, in New Orleans, exists during five days from che date of delivery, whether the commodity be in the possession of the purchaser or of third parties, where the price of sale is unpaid. Such privilege will be recognized and enforced, where the commodity is seized within that time.
    A vendor of such product who issues to the purchaser, an order of delivery addressed to the press where the same is stored, is not estopped from claiming such lien, whore the order does not explicitly say that the product is to he delivered without vendor’s privilege.
    It- is immaterial by what title the third person holds the commodity, whether by sale, or pledge or otherwise, as, in any case, theownership orpossession passes to him cwmonere, subject to tbe vendor’s lien which aifects the commodity, during five days, without registry, from the date of delivery by the owner to his vendee.
    The lien exists whether the property was sold for cash or on credit.
    Article 3227 of the3i.C.C.,aspracticallyamendedby theActs of 1854 and 1855, is an entirety, the latter legislation extending the privilege tocases in which the property is in the hands of third persons, the provision in the first paragraph of the article notwithstanding.
    The lien or privilege exists in such cases, provided the vendor has not waived it and provided the product has not been validly pledged on the faith of a warehouse or similar receipt, or bill of lading, issued in strict compliance with the law as embodied in, the statutes: No. 150 of 1868 and No. 72 of 1876, which do not clash with or repeal the Acts of 1854 and 1855 and article 3227 of the Revised Civil Code.

    Billings of this court in i A 371; 13 A. 528 ; 24 A. 363; 25 A. 82; 26 A. 6: 29 A. 186; reviewed and explained.
    APPEAL from the Civil District Court for the Parish of Orleans, Tissot, J.

      Thos. J. Oooley and Leovy & Krutiselmitt for Plaintiffs and Appellees.

      E. K. White for Interveuors and Appellants.

      Henry JRenslimo and Miller <& Kmney for Interveuors and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action to recover, with lien, the price of cotton, attached and sequestered within five days after the day of sale, -in the hands of third persons who, by intervention and answer, assert adverse title thereto.

There was judgment against F. Beer, the purchaser, condemning him to pay the unpaid price, $8690 62, recognizing the lien on the cotton seized and rejecting the interventions, intervenors being held to return the cotton which the3' had bonded and in default to pay: the one $6654 88, the other $2035 74, with interest and costs.

The intervenors alone appeal.

The contention is : that the seizure of the cotton was illegal, because of the insufficiency of the affidavits made to obtain the writs under which it was effected; that the plaintiffs are estopi>ed from questioning the ownership of Lionnet to the cotton; that the original law of 1854, securing the five days’ lien in favor of vendors of agricultural products, has been, if not repealed, at least modified, so as not to apply to cash sales and to cases where the vendor, although unpaid, has parted with possession of the cotton, which was subsequently pledged or transferred by the purchaser, in favor of or to innocent parties, who have acquired rights for valuable consideration.

I.

Much has been said and written to show the insufficiency of the affidavits made to obtain the writs of attachment and sequestration, under which the cotton sold by plaintiffs to Beer, was seized within five days after the sale.

The pith of the charges is: that the affidavits are insufficient, the first, in toto on its face; the second, because taken by the creditor himself, who swore to the allegations of the second petition as true, “ to the best of his Imowledge and belief," which is permissible only when the oath is taken by the agent.

The plaintiffs contend that the intervenors have no right to show any irregularity in the suit, for the sole purpose of rescuing their property, as, whether the plaintiffs, the court and the sheriff have been acting legally or not, is none of their business.

It must be noted that the intervenors had been made defendants in the suit by supplemental petition.

Conceding that the intervenors, either as such, or as defendants, or in both capacities which are practically one and the same, have a right to seek the dissolution of the writs and thus release the property seized in their possession, it by no means follows that the ground upon which they rely is well taken.

The first affidavit made to obtain the attachment and sequestration against Beer cannot be successfully attacked, as insufficient to procure the writs which were issued and executed within five days from the sale.

It is a decided mistake to assume that, because neither the petition nor the affidavit contains the averment that the affiant fears that the defendant will conceal, part witli, or dispose of tlie movable property in his possession, during the pendency of the suit, the cotton was illegally seized and, therefore, should be released.

Were this position we.ll taken the suit would here, end as to the intervenors.

The law which authorizes a sequestration under the state of facts expressed in those terms, is paragraph 8 of article C.P. 275, but it does not prescribe that the writ shall issue only in such cases.

The article provides explicitly that a sequestration may be ordered in the following cases — stating them, eight in number, the seventh of which is: that a plaintiff may obtain a sequestration in all cases where he has a lien or privilege upon property or complying with the requisites provided by law.

The next, article 276, simply declares that the plaintiff, wishing to obtain the order in any one of the cases, must annex an affidavit setting forth the cause for which lie claims such order and his obligation, etc.

Paragraph 8 is section 6 of the Act of 1839, No. 53, p. 163, which was passed to amend article 275 of the 0. P. and which distinctly does so by providing: “that in addition to the cases therein mentioned, a sequestration may be ordered,” etc. it was, therefore, an additional or supplemental legislation which did not repeal previous laws.

A reading of the remaining six paragraphs show in what other cases the writ can issue. Each paragraph announces what the circumstances are to be in each case, which will justify the granting of the remedy

In the case mentioned in paragraph 7, the. creditor must swear to the existence of the debt, of the privilege on the property, and must state the circumstances which imperil the loss of the lien.

In Selleck vs. Kelly, 11 R. 15, the affidavit made to obtain the sequestration merely stated the debt and the lien and the court properly held that this was not sufficient, that the affiant should have set forth the cause for which the order was claimed.

Neither are the words to be used sacramental. It is sufficient, if from the words used, it appears that there exists a danger for the loss of the lien, namely: that the property will be illegally disposed of by the defendant. Dumonteil vs. Dubroqua, 1 R. 531.

It has likewise been held that the omission to use the words “during the pendency of the suit” is not fatal. Wells vs. St. Didier, 1 A. 119.

Now, by reference to the original petition, it is apparent that Lengs-field unequivocally swore not only to the existence of the debt and of the vendors lien, but also to the apprehended fraudulent conversion of the cotton by the defendant, into money or evidences of debt, with intent to place it beyond reach.

It seems to be conceded that had the affidavit set forth the fear of a removal of the cotton, it would have followed the exigencies of tlio law.

There is no law which requires that the affidavit shall aver, in a case like the present, this or that. The law demands that a cause, a sufficient cause, be alleged. That the debtor is about to convert the cotton into money, to defraud his creditors, is surely good cause for the apprehension of the loss of the privilege. It is not only an equivalent but a broader averment than the allegation of removal. Property removed can be more easily reached by the executive officer of the law, than the proceeds thereof in the debtor’s pocket. Closely analyzed, it implies the essentials of even paragraph 8, which authorizes the writ when the party in possession is about to part with or dispose of the property.

Because the averment made in this case is such as can justify an attachment is no reason why it should not serve also for a sequestration, if it is, in itself, otherwise sufficient. The affidavit to the first-petition was designed to procure the two writs which are not antago-nistical or exclusive the one of the other. An attachment may issue as well when there exists a lien, as when there exists none. A sequestration always issues when a right to or on property is averred and there is danger of losing it.

The concurrence of tlio averments made was ample authority for the issuance of the writs.

The lien claimed is that resulting from the sale of the cotton, the price remaining unpaid and the seizure having taken place within the five days. It is not a lien resulting from the seizure by attachment.

The second affidavit was made at the foot of the supplemental petition and contains the averments, announced in paragraph 8 of the article, setting forth that the facts are true “to the best knowledge and belief” of affiant. It is signed by W. H. Lengfield, a member of the firm.

It was superfluous, in order to give validity to the seizure, under the first writs and to bring in Lionnet and Lehman, Abraham & Co., who were not indispensable, but merely proper parties and who, after the writs had issued and been executed, intervened, assuming the attitude of defendants in possession.

Had it not been made at all, its absence could not have prejudiced the validity of the seizures previously effected under the two writs.

This view of the matter renders it unnecessary to consider the attacks levelled at the insufficiency of the second affida/vit taken by one pf the partners “ to the best of his knowledge and belief.”

ii.

It is next contended that plaintiffs are, as to Lionnet, estopped from contesting liis title to the 124 hales seized in Ids control, which he claims to have acquired from Beer, the absconding debtor.

The matter of fact is that, on the 2d of May, Lionnet’s agent (Meil-leur) went with Beer to plaintiffs’ office, acting for Lionnet, and called for the delivery of the cotton, informing Gumbel that the cotton had been sold to a friend, meaning Lionnet, that G-umbel said that he would have the delivery order made out; that the order was drawn up and handed to Beer who endorsed it to Lionnet, who, with it, obtained, on the same day, delivery from the press.

The delivery order does not declare that the cotton is to be delivered without the vendor’s privilege.

There is no dispute that the cotton had been sold by plaintiffs to Beer on the 2d, and that, when the order of delivery was issued, it had not passed the scales, which it did on the following day only.

It is clear that on the 2d, when the delivery order was made out and handed to Beer, and endorsed over by him to Lionnet, the plaintiffs had a lien on it for the payment of the unpaid price. It affected it as effectually as a vendor’s privilege encumbers real estate, when it is duly recorded.

Previous to the present Constitution, it had been established that privileges on evon movable property would not affect third persons unless upon proper and valid registry. Not so now. The privilege exists without registry. It is true that the Constitution authorizes legislation on that matter, but as yet none has been provided for. Const. 177.

The Act of 1854, p. 45, the object of which was “to protect merchants or vendors of agricultural products in the city of New Orleans,” was re-enacted in 1855, p. 363, under the title of “An Act relative to privileges,” and now forms part of the Revised Civil Code of 1870, as Article 3227. It provides as follows:

“Any person who may sell the agricultural products of the United States in the city of New Orleans, shall be entitled to a special lien and privilege thereon to secure the payment of the purchase money for and during the space of five days only after the day of delivery, within which time the vendor shall be entitled to seize the same, in whatsoever hands or place they may be found, and his claim for the purchase money shall have preference over all others. If the vendor give a written order for the delivery of any such product and shall say therein that they are to he delivered without vendor’s privilege, then no lien shall attach thereto.”

The testimony received to establish what passed at the time the delivery'order was issued and handed to Beer, fails to show that plaintiffs said any thing from which it can be inferred that they intended to forego and had waived tlieir lien on the cotton. The silence of the delivery order on that subject amounts to demonstration that the privilege was retained, the converse of the proposition, negativing the words of the statute, being: “If the vendor gimes a written order for the delivery of amj such products mid does' not say therein that they are to be delivered without vendor's pri/irilege, then the Tien shall attach thereto.”

The vendor’s lien attaches to the thing, adheret viseeribus rei, until formally abandoned or extinguished in some legal mode. 4 A. 318; 32 A. 829; 34 A.164.

The plaintiffs, far from having made any representation or done any thing inducing any one to assume and believe that they had relinquished their privilege for payment of the unpaid price due them, have done a legal act from which the intervenor should have deduced that the lien had been retained. It was Ms interest, his duty for self-protection, to have inquired from the plaintiffs whether the price had or not been paid. For not having done that wMch he should have done, so as to protect himself and avert possible injury, he has none to blame but himself.

III.

The evidence, on the merits, discloses the following salient facts :

On May 2, 1882, the plaintiffs sold to F. Beer 161 bales of cotton at 11£ cents per pound, for the delivery of which they issued to him an order on the press, without saying therein that they were to be turned over to him without vendor’s lien. With that order, he obtained possession of the cotton on the following day. There is no pretense that the price was ever paid.

It appears that, previous to his purchase of this cotton from plaintiffs, Beer had obtained from Lionnet an advance of money, in consideration of which he was to deliver to them 200 bales of cotton, which were not at the time, at least to the extent of 124 bales, in Ms possession or control; that it is only after the delivery of the cotton sold him by plaintiffs, that he turned over to Lionnet the 124 bales, the ownership of which the latter claims to have acquired by pwrehase. He does not assert that it became his by a dation en paiement, of otherwise. His a,verment is, tliat Beer sold and that he, Lionnet, purchased the cotton.

Surely, there was no sale and consequently no purchase, and the cotton never ceased to he Beer’s, or if it ceased to belong to him, it passed to Lionnet cwm onere.

Three things must concur for the perfection of the contract: The thing sold, the price and the consent. R. C. C. 2439.

At the date of the latest advance of money, May, 1,1882, when a check of $9000 was given Beer l>j Lionnet, as an advance, Beer did not have and did not own the cotton which he bought from plaintiffs on the 2d. There was then no thing in existence, between Beer and Lionnet, which could have been then sold, by the former and bought by the latter. It woirld have been the sale of the property of another, which the law declares to be a nullity. R. C. C. 2452.

There was no price fixed and determined for the cotton, which is sold according to grade, and by the weight. The law declares that the price of the sale must bo certain, that is to say, fixed and determined by the parties. R. C. C. 2464.

Had the cotton in question, sold by plaintiffs to Beer on the second of May, been destroyed before passing the scales and delivery, which took place on the third, the loss would not have fallen on Lionnet. The subsequent weighing and delivery of the cotton by Beer to Lion-net, could not and did not impress upon the transaction the character of a sale. It would only be viewed at best, either as a collate] al security, pledge, or as a dation enpaiement; but if either, the intervenor could not claim, as pledgee, or as owner, under the last mode of transfer, for he has neither alleged, nor proved, nor even argued accordingly. The irresistible inference is, therefore, that, if the ownership of the cotton did not pass from Beer to Lionnet, it continued to dwell in the former and that the cotton in question, under the latter’s control, was there, for account and in the constructive possession of Beer. But if it were true that by the transfer of the cotton by Beer to Lion-net, title of ownership was convoyed and acquired, the dominant question would remain to be considered, whether it passed or not cwm onere, that is, subject to the vendor’s privilege asserted by the plaintifis.

It is generally considered by the bar and the bench, that the decision in 1852, in the case of Campbell et al. vs. Penn, etc., 7 A. 371, which threatened the destruction of agricultural industry, in this State, was the cause which prompted the adoption, in 1854, of the act of that year, p. 45, the text of which is hereinbefore given.

In 1858, four years ]ater, in a contest arisen between the vendor, sequestering cotton within the five days following the delivery, and sold for cash, but unpaid, and a third party who liad made advances thereon; this Court held : That the vendor was entitled “to the first or superior privilege and is thereby entitled to be paid by preference to the other.” Miltenberger vs. Hetch—Aldrech, intervenor, 13 A. 528.

The principle thus recognized and laid down, was subsequently admitted and enforced in the case of Tyree vs. Sand—Miller, intervenor, 24 A. 363, in which the court enforced here, a vendor’s lien existing in Alabama, between parties, citizens of that State, its law being identical with ours on the subject. Referring to the case in 13 A., the Court said that the intervenors, bankers of Mobile, knew the law and were aware of the possibility of plaintiffs lien. They might have easily asked if the cotton was paid for, they .might have required their money to be used in payment of it. It is as likely as not that they knew it was not paid for.” The judgment recognizing the plaintiff’s lien as vendors was affirmed and the intervention rejected.

It is not correct to say that .the ruling first made, was subsequent repudiated by two decisions of the then Supreme Court of this State, found in 25 A. 82, and in 26 A. 6.

In the first case, the Court decided that the sixth section of the act of 1868, p. 168, concerning the transfer of bills of lading and the effects of that transfer, is only a. legislative sanction given to the commercial law of universal application, by which it is held, that a bill of lading, legally transferred, gives title to the property which it represents and that the section does not clash with the act of 1855, incorporated in the Revised Code, as Article 3227. It is true that, in the body of the opinion, which was that of a majority, the Justice who was the organ of the Court says, that the article does not give the privilege,- where the sale is made for cash and where the commodity has ceased to be in the possession of the purchaser, but it does not appear that the last portion of the article was considered. The two other parties who concurred, placed their concurrence in the decree on the ground that there had been no registry. So that what was first said, may be considered as in superabundance, as obiter. Even then, that opinion, under such circumstances, cannot have produced the effect of overruling anterior expositions of the law on the subject.

Neither can the other decision in the second case be invoked for that purpose. Two judges only concurred on the point, two on the ground of the want of registry as in the first - case, while the fifth one, dis-seated in toto on both the facts and the law. In both, the prominent issue in the conflict, was between the holder of a bill, and a vendor, which does not arise in this case, in which the contention exists between the vendor and one who holds from a purchaser, to whom a delivery order was issued, to the knowledge of the claimant, to the vendee, without waiving the vendor’s privilege, where that claimant cannot be considered and dealt with as an innocent third party without notice.

A patient and careful consideration of the two acts of 1868, p. 193, No. 150, and of 1876, p. 113, No. 72, satisfies us that neither was designed to repeal the acts of 1854 and 1855, as now embodied in the Revised Code as Article 3227. The object of the former act, as its title indicates, was to prevent the issue' of false receipts, or bills of lading, and to punish fraudulent transfers of property by cotton presses, wharfingers and others.

The purpose of the latter, as announced in its title, was to govern the manner in which cotton press and similar receipts should be issued and the delivery and disposal of the property for which such receipts may be issued.

It is true that, by section five of that last act, while “the vendor’s lien of five days privilege now allowed in commercial transactions, for the payment of the purchase price,” is formally recognized, and is declared as “not to be affected by the provisions of this act,” there is stipulation that it shall not prevail “in case a warehouse receipt has been pledged as collateral, for money borrowed; * * * provided, that when the * * * pledgee may have wrongfully pledged, in violation of this act, any property, the lien of the owner shall be valid even against the third holder of the warehouse receipt.”

The guarded language used is manifestly expressive of the unwillingness of the law-giver in any way (except in that specially mentioned which does not arise in this controversy) to impair, alter or abridge the lien previously conceded in favor of merchants and vendors of agricultural products of the United States. Besides, it may be a matter of inquiry how far the derogation, however exceptional, may be deemed expressed in the title of the law.

It may be worthy of note that, in the Chaffraix case, 29 A. A. 186, while the court intimated that the vendors could have no recourse for the price but on their vendees, to whom they sold for cash, and of their own accord waived rigid compliance by the vendees with the conditions of the sale, it is a fact that the privilege claimed had not been secured by a registry and that one of the justices, Spencer, J. perhaps unnecessarily, but actually, expressed the opinion £hat the five day lien law was still in force.

In the present instance, it may well be contended that the cotton was not sold for cash, which means payment on delivery, for it is apparent that the litigants are all members of the Cotton Exchange in this city and that they dealt with each other under the influence of the rules prescribed in that institution and which have become rules of usage, and custom, which prevail in such cases and which they no doubt intended to and did observe.

But were it otherwise, it is clear, even under the most rigorous interpretation and application of the law, that whether the ownership passed or not from Beer to Lionnet, the plaintiffs’ lien would still attach, for in the first case, it would have done so cum onere, and in the second, it would have simply followed Beer’s property in the hands of the possessor thereof.

It is apparent that, as it stood formerly, the law as found in Art. 3194 of the Code of 1825, now Art. 3227 of the R. C., allowed a privilege to the vendor on movables sold by him for cash or on credit over other creditors of the purchaser if the property remained in the possession of the latter; but in 1854, the Legislature, for reasons of public interest, however, thought it just and necessary to formulate an exception and to permit the assertion and enforcement of the privilege on agricultural products of the United States sold in New Orleans for the term of five days from delivery, in whatsoever hands or place they might be found.

The incorporation of the Act of 1854 (p. 45) into the R. C. as part of the old Article 3194, now 3227, amounts to demonstration that the general rule laid down^in the first paragraph, which restricted the privilege to the case where the property had continued in the possession of the vendee, was, from the beginning, modified so as to extend the exercise of the privilege on such agricultural products, in whatsoever hands found, within five days of the date of delivery, whatever the terms of sale were, where the price was unpaid and the vendor had not voluntarily and formally relinquished it.

So that the third . paragraph of the article can be read: Any person who may sell the agricultural products of the United States in the city of - New Orleans .shall, (nevertheless) be entitled to a special lien, etc. The two laws should be construed so as to be made to work harmoniously. Durand vs. Dubuclet, 24 A. 155.

The effect of the Act of 1854 on Article 3194 has ab initio been in that sense, but its spirit and purpose are made manifest by the reasoned insertion.

Our conception of the entire legislation and of the jurisprudence is, therefore, that the vendor of agricultural products of the United States sold in New Orleans, have a lien on the commodity sold for the payment of the unpaid price, whether the sale was made for cash or on credit, and is entitled to enforce it by seizure of the identical article, either in the possession of the vendor or in the hands of third parties, within five days after the delivery thereof, provided he has not waived it and perhaps provided the same has not been validly jdedged on the faith of a properly issued warehouse or similar receipt, or bill of lading.

Touching the intervention of Lehman, Abraham & Co., it suffices to saj' that it presents substantially features kiudred to those in the cases of Allen, Nugent & Co. vs. Buisson, 35 A. 109, and of Bourg vs. Lopez, 36 A. 439; and that, even if these intervenors claimed title of ownership and had really acquired by purchase or otherwise, they would have no better ground to stand upon than that upon which Lionnet has contended, but in vain.

The plaintiffs having their lien and the intervenors knowing,the law and having it in their power to ascertain the facts, the latter cannot be listened to invoke the mile that “as between two innocent parties the loss should fall on the one whoso imprudent confidence has enabled the wrong-doer to get credit.”

In considerate, elaborate and well expressed reasons, the district judge has reached the same conclusions.

Judgment affirmed, with costs.

Justices Todd and Fenner dissent as to the ruling on the validity of the sequestration, but concur on the merits.

DisseNTXNg Opinion.

Fenner, J.

As conceded in the majority opinion, the essential foundation of the relief sought, so far as Lionnet and Lehman, Abraham & Co. are concerned, is the sequestration.

It is elementary that the mere existence of a lien or privilege is not, of itself and by itself, sufficient to entitle a party to a sequestration.

He must not only have the privilege, but must in addition, as stated in Paragraph 7 of C. P. 275: “Comply with the requisites provided by law,” and those requisites have been consistently held to include an ’affidavit to some of the causes provided in the article establishing the peril of tlie privilege and the necessity of the writ in order to preserve it. Sellick vs. Kelly, 11 Rob. 157; Wilson vs. Churchman, 4 A. 456; Blanc vs. Wallace, 26 A. 492.

So far as the first writ of sequestration is concerned, the affidavit is entirely lacking in any of the “requisites provided by law,” as sot forth in the articles touching sequestration, excejyb the mere existence of the privilege.

I have been unable to satisfy my mind that the insufficiency of this affidavit can be eked out by the fact that, in the same petition, the plaintiff applied for a writ of attachment also, and made an affidavit under C. P. 243, to the effect that the debtor “had converted or was about to convert his property into cash money, or evidences of in debtedness, with intent to place it beyond the reach of his creditors.” This form of affidavit is provided exclusively for attachments and is applicable to that writ alone, and not to sequestrations. In such matters there is no room for the doctrine of equivalents or for the translation of the requisites of one writ to support another. Nor does the equivalency claimed exist. Whatever effect the conversion into money or evidences of debt might have in placing the property beyond the reach of other creditors, it could have no effect to defeat or imperil plaintiff’s privilege. The affidavit is thus radically deficient. It charged no intent to remove the property out of the State, or to conceal it, or to do any act mentioned in Art. 275, or calculated to deprive him of the benefit of his privilege.

Indeed, the learned counsel for plaintiff did not attempt to support the first writ of sequestration, and I am satisfied the application for the second writ was a recognition of the invalidity of the first, and a virtual abandonment of it.

As to the second writ, the objection that the affidavit therefor was made by a member of the plaintiff firm, “to the best of his knowledge and belief,” is, in my opinion, fatal.

However absurd or unreasonable be the conditions imposed by the Legislature for the obtaining of these conservatory writs, our jurisprudence is uniform that, when imposed, they must be rigidly complied with.

The Legislature has seen fit to make a clear distinction between the affidavit made by a party and that made by an agent. In the latter case, it permits the affidavit to be made “to the best of his knowledge and belief;” in the former, it permits no such qualification.

If such distinction had not been made, I should readily concur witl) those opinions which this Court has rendered concerning affidavits for injunction, as to which the Legislature has not made such distinction, and where it has held that the affidavits in either form are equivalents.

But as, witli reference to other conservatory writs, the distinction has been made, we must conform to and enforce it.

I only follow the principle firmly established by our predecessors in the following quotation: “Sequestrations and other conservatory remedies by which the property of a party is wrested from his possession and taken into the custody of the law, before judgment, without notice and upon the ex parte showing of the plaintiff, are extraordinary and rigorous, and hence the doctrine has been uniform that they are to be strictly construed and that the requisites of the law must be observed on pain of nullity.” Wilson vs. Churchman, 4 A. 456.

So far'as the writ of attachment is concerned, conceding that it continued in force, it is not given as a means of enforcing privileges; nor, under the facts disclosed in this case, could the attachment be sustained for a moment, since it conclusively appears that the plaintiff’s debtor had parted with the property before the writ issued. We have held that attachment does not lie in such case, but that the revocatory action must be resorted to. Redwitz vs. Waggaman, 33 A. 26.

Nor, regarded in the light of a mere revocatory action, has the suit of plaintiff any foundation, since whatever fraud is brought home to Beer, the skirts of Lionnet and Lehman, Abraham & Co., are entirely clear from the least complieitj'' therein.

I, therefore, dissent.

Todd, J., concurs in this opinion.

Rehearing refused.


author: Pociils, J. MANNING, J.

text:
    No. 9059.
    George M. Bayly, Executor, vs. M. A. Becnel et al.
    In a settlement of accounts^between planting partners, compound interest will_ not be allowed to either party unless it is shown by positive evidence that the party charged with interest had accepted the 'account as thus made or that he had directly or tacitly acquiesced in the charge of annual interest to be considered as capital in each ensuing account. Interest cannot be allowed on a claim never-presented to tbe’debtor before suit,,which is*allowed on a quaAitwm meruit, and the validity of which results from the judgment.
    The managing partner of an ordinary partnership is entitled to bo reimbursed his actual expenses necessarily incurred in the interest of the partnership.

      APPEAL from tlie Twenty-sixth District Court, Parish of St. John the Baptist. TItihn, J.

      Kennard, Howe & Prentiss for Plaintiff and Appellee.
    O. 0. J?rovosty for Defendants and Aqipellants.
   The opinion of the Court was delivered by

Pociils, J.

This ease has already been before us, and it was remanded for a_second trial on issues left doubtful by the evidence.

As the points in controversy are numerous and complicated, the following statement of the principal issues and of the salient facts in the cause will facilitate a proper understandingpf the final conclusions on which we propose to rest our decision.

In 1870, the plantation which is the primeval cause of tliis controversy, was owned in indivisión and in equal shares by the defendant, M. A. Becnel, andjby thej succession of his brother, L. P. Becnel, and was_burdened with a heavy mortgage created for the purpose of securing the payment of a series of promissoi'y notes aggregating the sum of $120,000 in capital.

While the plantation was under seizure at the instance of the Louisiana State Bank, as holder of one of the notes secured as above stated, B. H. Bayly bought the bank’s claims and was subrogated as plaintiff in the suit.

The seizure having been enjoined by M. A. Becnel, one of the defendants, Bayly* entered into a conrpromise with the latter with a view to their joint purchase of the plantation. The main feature of the compromise was a stipulation under which M. A. Becnel was to be released of his share of indebtedness on the note held by Bayly, on reimbursing the latter one-half of his outlay for the purchase of the note, which was fixed at $9981 85. By a cash payment, that amount was reduced to $7879 58, to secure which Becnel’s share, after the projected purchase, was to remain mortgaged until final payment.

It was further stipulated that each of the contracting parties was to endeavor to purchase on the best terms obtainable, the other- outstanding mortgage claims affecting the plantation; and that the claims thus purchased were , to be paid for on their joint account and were• to• be-owned by them in equal shares. Under the provisions of a subsequent agreement, January 8, 1871, the plantation was then to be cultivated on their joint and equal account for a term of four years, the financial administration being entrusted to Bayly, and the management of the cultivation placed under the control of Becnel.

Some time after the sale, Becnel bought one of the notes above referred to and hold by Gardere, for the sum of $10,000; and within a short time thereafter, all the outstanding notes were acquired by the now owners of the plantation. Some were bought by Becnel, others by Bayly, and the purchase price of the same figures in the respective accounts of the partners as credits for their respective shares in the cost of the plantation.

After the compromise, the property was seized anew, and was adjudicated to Bayly in his individual name, but for the joint account of Bec-nel and himself, as shown by a written acknowledgment to that effect, executed by Bayly and subsequently put of record.

The purchase was made in April, 1871, at which time the projected planting partnership began, and continued until the 15th of February, 1872, when Robert U. Bayly died. From that time the plantation has been cultivated by Becnel on joint account with the Bayly succession, represented by G. M. Bayly, testamentary cxécutor, under the exclusive management of Becnel, and under conditions made and. renewed annually.

In June, 1878, this suit was instituted by tbo executor for the double object of effecting a partition of the property by means of a public salo and of completing a settlement of accounts between Becnel and the succession, including both the purchase- and the planting accounts, down to the 1st of January, 1878. His moneyed demand was for an alleged balance of $28,347 50 against Becnel.

The first petition was met by several exceptions, the principal of which wont to the erroneous cumulation of the two causes of action; and to the want of proper parties, on the ground that Becnel’s share of the plantation had in the meantime been acquired by Ms wife, in reimbursement of lier dotal rights.

By a supplemental petition, Mrs. Becnel was made a party, and prayer was made on proper allegations for a judicial declaration of the nullity of her purchase. In his answer, Becnel joined issue on plaintiff’s accounts, objecting to many items, including charges of interest, etc., and urged numerous claims in reconvention; to which picas and defenses reference will be made hereafter.

The first trial below resulted in a judgment which recognized the validity of Mrs. Becnel’s purchase, and allowed plaintiff tire full amount of his moneyed demand against Becnel, subject to the sum of $9000 allowed to tlie latter oil Ms reconventioual demand; and it was finally ordered that tlie jiartition sued for be effected by means of a public, sale for cash.

On appeal to this Court the judgment of the lower court was reversed in several particulars and affirmed in others. It was then remanded on several issues hereinafter enumerated:

1. The judgment was reversed on the point of the validity of Mrs. Becnel’s purchase, which was annulled and set aside as to the purposes of plaintiff in this suit.

2. It was further reversed on the refusal of Becnel’s claim for interest, commission and other charges on his purchase of the Gnrdére and Bank of New Orleans claims, to the same extent as the same had been claimed and allowed on the Bayly purchase of the Louisiana State Bank and the Louisiana Bank claims.

3. It was also reversed in its refusal to allow credit to Becnel for his share in the sum of $1379 50, claimed by him for boarding, at his expense, several skilled mechanics when employed from time to time on ' the plantation.

4. It was further reversed in its final adjustment of the accounts between the parties, for the purpose of recasting the account on the points corrected by this Court, and if need bo, on the points recommended to the court á gild for a second examination.

The judgment was affirmed in the following particulars:

1. In allowing to Becnel tlie sum of $9000 on his reconventional demand. That amount is made of a sum of $1500, which Becnel claimed as the value of his services annually as the exclusive manager of the plantation, both in the cultivation and in the financial department, since the death of Bayly. In the agreement, under date of January 3, 1871, above referred to, Becnel had consented to make no charge for Ms services as manager of the plantation. But under the evidence it appeared that after the death of his partner, the latter’s duties, consisting in the purchase of necessary supplies, in securing the advances of necessary funds and in other acts of administration, had devolved upon and had been efficiently performed by Becnel, and that the sum of $3000 annually was a fair valuation of his double services; hence, this Court concurred with the district judge in allowing him a credit of $1500 for each of the years 1872, 1873, 1874, 1875, 1876 and 1877, and in reserving his right for a similar claim until the final partition.

2. The judgment was also affirmed in the dismissal of all the exceptions to the form of the action, and of all the dilatory exceptions interposed by the defendant. Under our decree, the case was stripped of all points of contention raised by the pleadings, save the following-points, which were remanded for further investigation:

1. The complaint of Becnel that he is charged with compound interest in Bayly’s accounts.

2. The right of Becnel to claim interest on the sum of $1500 per an-num allowed him for his services as sole manager since the death of Bayly.

3. The claim of Becnel to the sum of $5000, growing out of Bayly’s letter to the sheriff on the day of sale, for work, seed-cane, cord-wood, etc., furnished by Becnel to the plantation in anticipation of a purchase by Bayly and himself.

4. The right of Becnel to be recognized as owner of one-half of the sum of $18,021 79, in the hands of Bayly & Pond (the factors of the plantation in 1872, and after Robert H. Bayly’s death until 1875), at the time of their failure, placod to the credit of R. H. Bayly.

5. The claim of Becnel for the reimbursement of his traveling expenses to and from New Orleans in the interest of the plantation.

6. The right of Bayly to claim credit in his account with Becnel in the sum of $10,346 10, claimed as per compromise of Widow L. P. Bec-nel tutrix’s account, in his statement of the costs of the plantation.

On the second trial below, new evidence, both documentary and pa-rol, was introduced, bearing on all the points, which had been remanded, as just stated. Fortunately, that evidence was important and it throw a great deal of new light on the case, and under it we will be able, as the district judge has been, to Anally dispose of this complicated litigation. Under the effect of that evidence, the district judge, as he informs us in his able and elaborate opinion, saw the case in an entirely new light, and reached conclusions widely different from the views which he had entertained at the first trial.

Under his recent conclusions, the judge recast the entire account between the parties and decreed the defendant indebted to the Bayly succession in the much reduced sum of $958 62, and decreed the partition prayed for by public sale for cash.

Both parties have appealed — plaintiff with a view to an affirmance of the original judgment of the lower court, and defendant-with a-view to ah increase of the amount allowed him on his veconventional demand and for a further reduction, of plaintiff’s claim.

We shall now review the finding- of the lower court on the final adjustment of the accounts between the parties. We must premise the statement that, in his judgment now under review, the judge found in favor of defendant on all points remanded below for further investigation, save and except the second and the sixth in our foregoing enumeration, and that we concur with him in all his conclusions.

1. Becnel’s complaint that, under Bayly’s accounts, he was charged with compound interest, is supported by the record.

The accounts, with interest charged on each item, were balanced annually — and the total balance was brought forward in the new account for the ensuing year. This is net and cannot be denied by plaintiff, but his contention is that the accounts as made have been accepted by the defendant, that under our jurisprudence the interest has been capitalized, and that the defendant is thus estopped from contesting the charges for interest as made in the account. His law is good, but he is not borne out by the facts.

A great deal of evidence has been taken on this point, and some of it is very conflicting. But the preponderance of the evidence is in favor of defendant’s contention and satisfies us that Bayly’s accounts as presented in this suit have never been accepted by the defendant, either tacitly or directly. Some of the most hotly contested items figure in the first accounts for the purchase price of the plantation, and the very serious resistance Anade to them discards all suspicion that they could ever have been accepted.

The acceptance of an account so as to bind the debtor to the interest therein charged as part of the capital in an ensuing account, must be proven clearly and positively, and must not be left to inference. C. C. 1939; Keane vs. Branden, 12 A. 20; Wright et al. vs. Hill et al., 13 A. 233.

In recasting the account, the judge correctly omitted detailed charges of interest made annually, and allowed interest on the respective claims of the parties from the dates of the disbursements to the date of the suit.

2. Becnel’s claim for interest on the annual am runts allowed him for his services was properly refused.

That allowance is predicated on an equitable right of compensation for valuable services rendered, without a contract obligation. The claim is allowed on the proof of quantum meruit; it was not urged before the suit; hence, it has never been recognized or accepted by the debtor’s representative.

The obligation to pay the amount allowed will result from this judgment; hence, the claim was not due or liquidated before judgment. Therefore, no interests are due and none should be allowed.

3. Tlie claim of Becnel for $5000 on Bayly’s promise grows out of the -following circumstances, as shown by the record:

For several years previous to the seizure, the defendant had been cultivating the Becnel plantation for his exclusive and personal account, and he had placed thereon several items of considerable amount and valuable movable property, for which he had no claim against his co-owner. In the second agreement of January 3, 1871, it was agreed that all such property would be reserved from the seizure to be made by Bayly, that it should be appraised and credit given therefor to Becnel as part of his contribution to the purchase price. That item is the sura of $4601, which is undisputed in the defendant’s account.

But in addition to that movable property placed on the plantation by the defendant, the record shows that after his compromise with Bayly, and pending the latter’s seizure, the defendant, who had been placed in charge of the plantation, began active preparations to put the place in trim for a profitable cultivation in the year 1871, after the projected piirchase by Bayly and himself. Those preparations consisted of the clearing of over one hundred acres of lauds covered by underbrush, ploughing and ditching the same, and supplying the seed-cane necessary for planting the same, and of other items of property and labor which, in law as well as by nature, had become immovable and could nob be removed as the other items of property reserved and appraised as above stated.

The late R. H. Bayly’s attention was called to that labor and to the right of compensation therefor in Becnel, who, as keeper under the sheriff, could not be compelled to perform prospective labor. This right was recognized by Bayly, who further agreed that the labor and property thus furnished by Becnel were reasonably worth $5000, hence he agreed that Becnel would be credited with that amount in the future settlement of the purchase account.

On the day of the sale, Becnel called Bayly’s attention to the possibility of another bidder or purchaser, and to the precarious condition of his claim for property which had become immovable. Whereupon, Bayly wrote to the sheriff that in case of a parchase by a third person, Becnel should bo paid $5000 as a privileged claim out of the proceeds of the sale. The sheriff having since died, the letter could not be produced, but its existence and its contents in substance are shown conclusively by the testimony of Becnel and by that of three or four disinterested and reputable witnesses who had seen it and read it.

In addition to tliat testimony, there is full proof of the value of the labor and property for which this claim is pressed, and we are satisfied that the amount allowed for the same is reasonable and correct.

4. The right of Becnel to share in the amount of $18,021 79, which stood to the credit of the plantation on the boohs of Bayly & Pond at the date of their failure in 1875, is equally just and clear. On the first trial the theory of plaintiff was that that balance was due to R. H. Bayly personally. But on the second trial the fae similes of the firm’s boohs were produced and they show conclusively that the balance stood to the credit of the plantation. Plaintiff shifted his position, and on the second trial his contention was that Becnel had been allowed credit for his share in his account current with R. H. Bayly.

In this he partially succeeded, and showed credits amounting to $2659 11, thus leaving a balance on that item in favor of the defendant in the sum of $6342 96.

5. On the claim of Becnel for reimbursement of his traveling expenses, the record now shows that lie had disbursed some $1440, and hence he is entitled to credit for$720. In our previous opinion, we had recognized his very equitable right to that reimbursement, but we had failed to find sufficient data on which to base a judgment. They have been supplied on the second trial. The claim is therefore allowed.

6. The right of Bayly to claim credit in his purchase account, for the sum of $10,346, as the share due on the Louisiana State National Bank claim, by the tutrix of L. P. Becnel’s minor child, results from the very nature of his contract with the defendant.

In the “Grima compromise,” Bayly agreed to release M. A. Becnel on account of Ms indebtedness on that note, in consideration of being reimbursed by the latter, one-lialf of the cost of the claim. But he specially reserved his claim against the tutrix for the other half remaining due on the note. He did not cede or transfer any part of that claim to the defendant. Hence that note, for half of its amount, remained the exclusive and individual property of Bayly, and unlike the claims bought from Gardére, the Bank of New Orleans and the Bank of Louisiana, it never became the joint property of the two purchasing partners. Therein lies the fundamental error of the theory advocated by defendant’s counsel, who wishes that this claim should be dealt with in all respects like the Gardére claim.

After the compromise, Bayly did not continue Ms seizure under the Louisiana State Bank claim, but he converted the proceedings into the via ordinaria, and after reciting the “Grima compromise,” and reserving Ms mortgage rights thereunder against M. A. Becnel, he prayed for a personal judgment against the tutrix for her share of indebtedness, exceeding $20,000, and for recognition of his conventional mortgage on the minor’s share of the plantation. Pending that litigation, Bayly entered into a compromise with the tutrix, under the effect of which he reduced his claim to $10,346, for which he obtained judgment in October, 1870.

The seizure and the sale of the plantation were made under the Gan-diere claim which had long since ripened into a judgment and which was transferred to Bayly under Becnel’s instructions for the purpose of the sale. Now at the sale, after paying costs and privileged claims, Bayly retained in his-hands the balance, some $17,000, to meet the claims secured by first mortgage. As the G arderé, the Bank of New Orleans, the Bank of Lousiana claims were in due course of time all acquired by Bayly and Becnel, they became the creditors of a fund which they owed, hence followed confusion. But that quality of debtor and creditor did not meet in Becnel as to the half of the Louisiana State Bank, to which a credit was due out of the funds retained by Bayly for himself and Becnel. Hence Becnel continued to owe one-half of that claim, which had been fixed at $10,346, as was shown above.

Under the effect of these transactions,- all mortgages against the plantation were cancelled, with the exception of the claim held by Bayly as above stated, and to the concurrence of its amount, Bayly could have absorbed the whole amount retained by him out of the proceeds of the sale. But as ho had voluntarily reduced it to $10,346, he could not claim more than that amount. Hence that sum was properly charged as a portion of the cost of the plantation.

The account as stated by the district judge, conforms with the conclusions which we have hereinbefore announced. On examination, we find it correct, but we deem unnecessary to reproduce it here in all its details. We note and approve of the reservation made in the judgment in favor of both parties to sue for any claims accruing after the first of January, 1878, or for all of such claims not covered by this decision.

Judgment affirmed, costs of appeal to be paid in equal shares lw both parties.

ON Application eor Rehearing.

Plaintiff wishes this case reopened on the item which recognizes the claim of defendant to one-hall' of the sum of $18,021 78 to the credit of the Becnel plantation, in the hands of Bayly & Pond at the date of their failure.

In support of their position, they establish an. account of the net receipts and of the cost of the crops made on the plantation from the year 1871 to 1876, both inclusive, which shows a loss as final results.

This may be true, but the accounts of Bayly & Pond began only in January, 1872, and those accounts running from year to year, do show an undisputed credit in favor of the planting partnership in the sum above stated.

Those accounts show that all the advances, both of money and of supplies, were made by, Bayly & Pond, and all the crops were sold by them. The crops of several of these years resulted in loss, but the crop of 1874 was very productive and realized great profits, which turned the scales in favor of the planting partnership.

Nothing in the record shows that Robt. H. Bayly, who died in February, 1872, advanced a single dollar of the funds used in the cultivation of the plantation from January, 1872. It is, therefore, difficult to conceive by what process his succession could become the sole creditor of the fruits of the crops raised on borrowed money.

But the contention of plaintiff’s counsel is that, Robt. II. Bayly made all the advances for the crop of the year 1871, which resulted in a clear loss of $12,162 17, by which operation Bayly became the creditor of Becnel in the sum of $6081 08, which is not accounted for.

In this lies the glaring fallacy of plaintiff’s position.

By turning to the judgment of the lower court, as affirmed by us, we find in the column of Baylv’s credit on the account as established by the district judge, the following item:

“ January 19, 1872; one-half net loss operating plantation, 1871, $6081 08. Which is the date at which the accounts of Bayly & Pond begin.”

Under plaintiff’s theory that sum would figure twice as a credit in favor of Bayly.

We find no error in our judgment, and it must, therefore, remain undisturbed.

Rehearing refused.

MANNING, J.

I do not think that Mr. Becnel has any interest in the item of $18,021 78, but that R. H. Bayly is alone entitled to the whole of it. Judgment was rendered against G-. M. Bayly for that sum in favour of R. II. Bayly’s succession, and it was not pretended then by any one that any other than R. H. Bayly had any interest or share thereof. Sue. Bayly, 30 Ann. 75. This was the impression made upon me by my examination of the record on the first hearing, and it was expressed in the opinion then read, and renewed examination has confirmed me in the belief that it is correct. Becnel is allowed one-half of this sum or $9,0.10.89, and being improperly allowed, the judgment against him should be increased by that sum.