text:
    Joseph T. Lebeau v. Jean B. Bergeron.
    In a contest of boundary between two parties who have purchased adjoining tracts from a common vendor, tho line which their vendor had caused to be run as the dividing line between the two tracts before ho sold them, will he recognized as the dividing lino between the two parties deriving title from him.
    Under such circumstances, if either party has not tho quantity of land called for by his title, ho must seek it from his vendor, and not from the proprietor of the adjoining tract, who does not claim or possess hoyond the line established by their common vendor.
    In such a case, the plat of a survey, and the proces verbal of a parish surveyor, arc admissable in evidence after the death of tho surveyor, to show that the lino was run by him at the request of the common vendor, and that he considered it the boundary of the two tracts which had been divided by him, and also to show that the parties bought the land in accordance with the lines established by the survey, and that the defendant took possession and cultivated his tract according to it.
    In an action of boundary, a division lino which has boon long established by surveyor’s marks, a canal and fence, and under which both parties bought, and which, is referred to in tho act of salo, will be taken as the true line, in preference to a new one, which gives to one of the parties a larger boun-
    from tbe District Oourt of tlie parish of Point Ooupée, Haralson, J.

      U. B. <& E. Phillips and T. G. t& H. Cooley, for plaintiff. A. Provosty, for
    defendant and appellant.
   Oole, J.

The plaintiff, in his petition, states “ that ho is the owner of a certain tract of land in the Island of False River, containing two arpents in front, by forty in depth ; that defendant has taken possession of a portion of said land ; that said land formerly belonged to, and was part of a tract of land twenty ar-pents front belonging to J. B. Désorme; that said Désorme sold in May, 1832, five arpents to J. B. Bergeron, pére, and on the same day sold to defendant, J. B. Bergeron, fils, another tract of five arpents — making ten, hounded on one side by lands of J. B. Bergeron, p'ere, and on the other by the vendor.

“ That the balance of said tract has passed by a regular chain of titles to Abéis 0. Lebeau, who sold two arpents of the same, adjoining the land of defendant, to Auguste Guerin, and the same has descended by regular transfers and by inheritance to your petitioner.”

Wherefore he prays to be decreed to be the legal owner of two arpents front, commencing at the distance of ten arpents from the side of said tract of twenty arpents, bounded by lands of said J. B. Bergeron, pare, as aforesaid.

There was judgment in favor of plaintiff for a portion of the land in possession of defendant. The latter has appealed.

Plaintiff has not alledged the location or the quantity of land illegally taken possession of by the defendant.

The prayer of the petitioner merely asks that he may be decreed to be the legal owner of two arpents front, commencing- at the distance of ten arpents from the lower lateral line of the tract of twenty arpents.

It appears that plaintiff is in possession of the quantity of land in front, called for by his title, but conceives that the defendant has encroached upon his land in the rear.

The evidence sufficiently establishes the line BZ to be the upper boundary of the tract of defendant; it is consequently the lower line of that of plaintiff.

The latter contends that the line XX is the upper line of defendant. The testimony, however, shows, that in 1823, L’Hermite, a surveyor, at the request of J. B. Desarme, the common vendor of all parties, made a survey of the twenty ar-pent tract, which was then divided into two tracts, numbered 4 and 5, each having a front of ten arpents.

He traced the line of division between them, and drew the line BZ as that which separated the two tracts.

The upper boundary of the estate now owned by defendant was, therefore, fixed by the former owner in 1823.

iSt. Ville Lebeau testifies, that the plaintiff, and also his father, took possession of their land, as surveyed by L’Hermite.

As defendant is not in possession of land beyond the line BZ, if plaintiff has not his complement of land in the rear, he must seek it, if he has any legal claim from Ms vendor, and not from the defendant.

The survey of L'Hcrmite was rejected by the District Court. It should have been received. Wells et al. v. Compton et al., 3 R. 185.

The survey was made by L’Hermite, the parish surveyor of Point Ooupée, at the request of Désorme, and the proces verbal is signed by him. This survey was good evidence to show what the common vendor of the land in dispute considered to be the boundaries of the two tracts into which the twenty arpents were divided. It was also admissible, as rebutting evidence, as it is referred to by the witnesses of plaintiff.

This survey is also important, as it is shown that the parties have bought in accordance with the lines established thereby, that defendant has taken possession of his land according to it, and has thus held and cultivated the land since 1832. Plaintiff purchased his tract in 1857, according to its recognized limits, and he cannot now disturb the division line consented to for twenty-five years, by the previous holders of the tract.

The titles show, also, that the lateral lines of the estate of plaintiff close in the rear.

The upper boundary of the defendant is established by the surveyor’s marks, by posts, a canal and fence; and it has been for twenty-five years considered as the dividing line between the estate of defendant and that of plaintiff Williamson v. Hymel, 11 La. 185 ; Gray v. Couvillon, 12 An. 732.

We are of opinion, that plaintiff has failed to show that defendant is in possession of any part of his land. In a petitory action, the plaintiff must establish clearly bis title to the property in possession of another, otherwise he cannot recover.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Oourt be avoided and reversed ; that there be judgment in favor of defendant against the demand of plaintiff, for the land claimed by the latter of the former, and that defendant be recognized as the owner thereof; that the line BZ, as drawn on the map of C. G. Hale, in the record in this suit, be recognized as the division line between the estate of defendant and that of plaintiff; and that the latter pay the costs of both courts.


source: Caselaw Access Project

author: Land, J.

license: Public Domain

text:
    F. M. Fisk v. E. T. Parker, Sheriff, et al.
    A judgmont of dismissal is nothing moro than on© of nonsuit, and cannot support the plea of resjudi. cata, as to any of tlie matters at issue.
    Tlie reasoning, and opinion of the court upon a subject, on the evidence adduced before it, cannot have the force and effect of the thing adjudged, unless the subject matter be definitively disposed of by the decroo.
    from the Third District Oourt of New Orleans, Duvigneaud, J.

      F. A. Bartlett and G. A. Breaux, for plaintiff and appellant. T. H. Howard and A. G. Brice, for defendants.
   Land, J.

In November, 1851, George H. Wallace commenced suit by attachment against Bennett E. Smith, in the Third District Oourt of this city, and attached the slaves 31ary Ann and “ America,’’ as the property of the defendant. On the 7th of same month, Francis M. Fisk intervened in the suit and claimed the slave America as his property, and prayed for judgment recognising him as owner. To this petition of intervention the plaintiff filed, on the 29th of November, 1851, a general denial. On the 10th day of December following, the plaintiff filed a supplemental petition making Fisk a party garnishee to the action and propounding to Mm interrogatories, the third of which was — “ have you not in your possession or under your control, or had you not when seizure was made in your hands on the 6th day of November last, or at any time since, certain slaves belonging to said defendant, or which were standing in his name, to-wit: Francis Peterson, Harriet, Jane, Frank, Rkoda, Austin and Maria.”

To the answers of the guarnishees to the interrogatories, the plaintiff filed a traverse, which was tried together with the principal action and third opposition of Fisk, and thereupon the following judgment was rendered:

For the reasons assigned in the written opinion of the court this day delivered and on file, it is adjudged and decreed, that the plaintiff, George H. Wallace, recover of defendant, Bennett E. Smith, the sum of five thousand and sixty dollars, with legal interest from 6 th of November, 1851, until paid. That the intervention of F. M. Fisk he dismissed; that the said F. M. Fisk, as garnishee, deliver up to the Sheriff, the slaves Rkoda and Peterson, as subject to the plaintiff’s attachment, within two days after this judgment shall become executory, and in default thereof, that the plaintiff recover of the said Fisk, garnishee, the value of the said slaves Rkoda and Peterson, to be fixed by evidence on motion; it is further ordered, that the defendant, Smith, pay the costs of the main action, and that Fisk pay the costs of the intervention and of the traverse.”

Prom this judgment, Fisk, the intervenor, appealed to this court, and the appeal was dismissed, “ because much of the oral testimony was not reduced to writing, and partly because certain extracts from written books had not been produced by the party who offered them, and because there was no agreed statement of facts.”

The plaintiff, after the dismissal of the appeal, sued out an execution on his judgment and caused the slave “ America," to be seized as the property of the defendant. Thereupon, F. M. Fisk commenced this suit by injunction, to arrest and prevent the sale of the slave on the grounds of his possession and ownership. To this demand the defendants pleaded res judicata, by alleging that all of his rights have been adjudicated upon and against him, on his intervention and third opposition filed in the suit of Wallace v. Smith.

The exception of res judicata was sustained by the lower court, and the plaintiff has appealed.

It is to be observed that the petition of intervention in the suit of Wallace v. Smith, was filed and issue joined by answer of the plaintiff, before Fisk was made a party garnishee, and consequently before interrogatories were propounded to him.

And it is also to be observed, that the interrogatories, the answers, and the .traverse thereof, are silent as to the title to the slave America, and that the only pleadings in which the title to this slave was at issue, were the petition of intervention and the answer thereto.

Upon these pleadings, the judgment of the court was, that the intervention of F. M. Fisk he dismissed, and that he pay ihe costs of the intervention. This judgment did not determine the rights of the parties, but was one of dismissal or non-suit, and cannot support the plea of res judicata. Baudin v. Roliff, 1 N. S. 165. Nor will the reasoning and opinion of the court upon a subject, on the evidence adduced before it, have the force and effect of the thing adjudged, unless the sub. ject-matter be definitively disposed by the decree. Pepper v. Dunlap, 5 An. p. 200.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and the plea of res judicata be overruled, and the cause remanded to the lower court for further proceeding's according to law, and that defendants pay the costs of this appeal.


text:
    John E. Hyde v. Mississippi Sound Company.
    The property of insolvent corporations, when sold by a commissioner for cash, must be appraised, and bring two-thirds of its appraised value, as in tho case of property sold under execution.
    from the Fourth District Court of New Orleans, Price, J.

      Mott & Fraser, for plaintiff. Bonford and Singleton & Clack, for defendant and appellant.
   Land, J.

The opinion and decree of the District Judge are as follows:

I. E. Caldwell alleges, that at a sale made by the Sheriff of the property of defendant, he became the purchaser of the hull and machinery of the steamboat Virginia ; that he paid the price of the adjudication, and possession of the property was delivered to him -by the Sheriff; that since said sale, the Sheriff has repossessed himself of said property, and has readvertised and is about to sell the said property again. The plaintiff in said rule, now moves the court, to compel the Sheriff to redeliver the possession of said property to plaintiff in rule, and to desist from all further proceedings in relation to the property. The Sheriff, for cause, alleges that the sale was made not in accordance with the order of court, and therefore null. On the 9th of December, 1858, an order was obtained for the sale of the hull and machinery of the said boat, after due and legal notice and appraisement.

“ The hull and machinery were appraised at $8,000, and the plaintiff shows ho purchased the same at $1,395, not two-thirds of the appraised value.

The day of sale was fixed for the 22d of December, and there were two sales of different properties belonging to the defendants, on the same day. On the day of sale, the commissioner obtained an order to sell the ‘ goods and furniture’ of said defendants, without regard to the appraisement. This order only has reference to the ‘ goods and furnitui'e’ of defendants, and not to the hull and machinery of the steamboat Virginia,’ as erroneously supposed by the Sheriff. The order of the court of 9th December, 1858, was the only authority to the Sheriff to sell, and he was bound to obey said order. That order required the ‘ hull and machinery’ to be sold for cash, the appraisement already having been made. The sale was. to have been made with reference to the appraisement, and the property not bringing two-thirds of its appraised value, the adjudication was null. Succession of Packwood, 2 An. 96.

“ It is, therefore, ordered, adjudged and decreed, that the rule taken herein by /. E. Caldwell, be dismissed, with costs.”

In this decree there is no error. The 6th section of the Act of 1855, “for the organization of corporations for works of public improvement and utility," provides, that they shall forfeit their charter for insolvency, evidenced by a return of no property found on execution ; and, in such case, it shall be the duty of the District Court, at the instance of any creditor, to decree such forfeiture, and to appoint a commissioner for effecting the liquidation, whoso duty it shall be to convert all the assets of the company, including any unpaid balance due by stockholders on their shares, into cash, and to distribute the same under the direction pf the court, amongst the parties entitled thereto, in the same manner, as near as may be, as is done in cases of insolvency of individuals. Acts 1855, p. 184.

Article 2180 of the Civil Code provides, that all sales of property ceded to creditors, must be made at the same terms and under the same formalities, that property seized on execution is sold.

It seems clear, from these provisions of the law, that property belonging to insolvent corporations, must be appraised, and bring two-thirds of its appraised value, at sales for cash, as in the ordinary case of a sale on execution.

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


author: Oole, J.

text:
    R. M. Funkhouser & Co. v. J. B. Dutcher et al.
    When a shipper has shipped goods to his factor in the usual course of business, and has sent forward with the shipment, or by mail, one of the bills of lading consigning the goods to him, the shipper cannot destroy the lien and privilege that the factor and consignee will have for advances upon tho goods, by transferring other bills of lading to secure other debts.
    PPEAL from the Fourth District Court of New Orleans, Price, J.
    XX Mott <& Fraser, for plaintiffs and appellants. Singleton <& Clack, for defendants.
   Oole, J.

About the eleventh of December, 1855, Shinlcle, one of the defendants, shipped from St. Louis to his factor, Butcher, 2054 sacks of wheat. The bill of lading consigning the wheat to him was signed on the 11th of December, and was either sent by the steamer upon which the merchandise was shipped, or was transmitted by mail to the defendant, Dutcher.

At the time of the shipment, and also when the wheat was received by Butcher, the shipper was indebted to Butcher, the consignee, in more than the value of the proceeds of the wheat, for bills paid and accepted to be paid for the accomodation of Shinlcle, by Butcher, who was his factor.

About the 20th of December, 1855, Shinlcle assigned one of the bills of lading to plaintiff, to secure the payment of a draft for $2,081 05, which he sold to plaintiff, and which was afterwards protested for non-acceptance and payment.

This suit is brought to compel Dutcher to pay plaintiff the draft, on the ground that it was specially drawn against the shipment of wheat, and that the sale of the bill of exchange, with the bill of lading annexed, specially charged the property mentioned therein with the amount of the bill.

There was judgment for Butcher, (Shinlcle was not cited) and plaintiff has appealed.

Defendant having received the wheat with a bill of lading consigning it to him, had a privilege on it for the balance due him, as the factor of the shipper. 0. 0. Art. 3214; Sess. Acts, 1841, p. 21.

This privilege cannot be defeated by the claim of plaintiff. At the time the bill of exchange and one of the bills of lading were delivered to plaintiff, he knew that another of the bills of lading consigning the wheat to defendant had been transmitted to the latter. If this were unknown, ordinary prudence, at least, would have made him demand all the bills of lading and a transfer thereof to him, or he should have caused Shinlcle to have inserted in the bill of lading forwarded to the defendant, that he had drawn a certain bill against the shipment. If this had been done, the defendant would have received the consignment with notice, and he would have been obliged to have paid the bill of exchange in favor of plaintiff. Farmers’ and Merchants’ Bank v. Franklin, 1 An. 393.

The plaintiff could also have been protected, if Shinlcle had taken all the bills of lading deliverable to his own order, and had then endorsed them to plaintiff', for then the bill of exchange would have been covered to the extent of the value of the shipment. Fetter v. Field, 1 An., p. 80.

If a shipper can be permitted to send one bill of lading to his merchant, in which goods are consigned to him, and subsequently transfer another to secure a bill of exchange, there would be no end to the frauds that would be committed against factors and other persons.

In this case, there were four bills of lading'.

If persons sufficiently imprudent could have been found, Shinlcle might have transferred two of them, each for more than sufficient to cover the value of the wheat shipped. There would, then, have been three parties claiming the proceeds of the wheat — the factor, by virtue of his privilege, and the two holders of the two bills of exchange, each by reason of a transfer to him of a bill of lading to guaranty their payment.

We are of opinion, when a shipper has shipped goods to his factor in the usual course of business, and has sent forward with the shipment, or by mail, one of the bills of lading consigning the goods to him, that the shipper ought not to be permitted to destroy the lien that the consignee will, have for advances, by transferring other bills of lading to secure other debts.

The reason of the apparent imprudence of plaintiff, in accepting one bill of lading as security, without protecting himself against the others, is, however, explained by the evidence.

It appears, there was an evident understanding between Shinlcle and plaintiff) at the time the latter bought the bill of exchange, that plaintiff was not to be paid out of the proceeds of the wheat, unless there would be sufficient to satisfy first the balance due defendant, as factor of Shinlcle.

Shinkle testifies that he “ stated to FunJchouser, when he gave him the draft, that he had shipped and drawn on general account. It was understood, however, at the same time, that this shipment of 2054 sacks was included in that general account. I thought there would be enough (and so represented to Mr. Funlc-houser) of a balance in my favor, on the shipments made by me to Butcher, to pay this draft. Upon these representations, Mr. FunJchouser took the draft.

Judgment affirmed, with costs.


author: Cole, J.

text:
    Buchanon, Carroll & Co. v. Wm. Switzer et als.
    Where cotton, consigned to a commercial house, had been sunk and damaged, and re-shipped, the party re-shipping paying the freight and charges for salvage, and consigning it to another house, who paid the charges for freight and salvage, the original consignees refusing to pay them, on the ground that they wero exorbitant — Held: That where there is no evidence of any bad faith on the part of the second consignees, or of a combination to commit extortion by the shippers, the consignees were justifiable in paying the charges, and that the payment of such charges should bo considered as advances, for which a privilege is given by Article 3214 of the Civil Code and the statute of 1841.
    from the Sixth District Court of New Orleans, Howell, J.

      Singleton <& Clack, for plaintiffs and appellants. Mott & Fraser, for defendants.
   Cole, J.

Certain cotton, consigned to plaintiffs, was sbipped at a point above Camden, Arkansas, on the Washita River, on the flat or keel boat Walk-in-the-Water. The privilege of re-shipping was expressly reserved to take place at Camden.

The cotton was injured by the sinking' of the flat, before it reached Camden.

At Camden, the cotton was shipped on the W. C. Young, by E. Hitt & Co., and was consigned to OaJceij & Hawkins. The bill of lading consigning it to them states that they are to pay freight for the cotton, at §3 00 per bale, and $587 25 ior charges, which were for salvage and freight.

These charges were paid in Camden, by E. Hill & Co., to the flatboat men, who delivered the cotton there ; the steamer S. B. Young paid them to Hill <& Co., and Oalcey & Hawkins paid them to the W. C. Young, upon her arrival at New Orleans.

After the arrival of the cotton in this city, the plaintiffs commenced this suit by a sequestration of ninety-four bales of cotton, alleging themselves to be the consignees thereof, and that the steamer refused to deliver the cotton, unless they were paid certain demands against the cotton, in the shape of freight, charges, &c., which they alleged to be unjust and not due.

Oakoy & Hawkins intervened, and alleged that they were in possession of the.cotton sequestrated, at the time of the sequestration, as the consignees of Hill & Co.

That on the receipt of the cotton and bill of lading, the intervenors paid the sum stipulated in the bill of lading.

The only question is, whether the intervenors were justifiable in mating the payment of the charges for salvage, &c., and should be paid for the same.

It is established, that the charges are not higher than the ordinary rate in Arkansas, for salvage and freight, and that it is not usual to re-mark and re-ship cotton that has been saved from a wreck, to the original consignees, except where the original shippers have paid the charges for salvage and freight.

As the charges were justly due, the intervenors, as consignees, were justifiable in advancing the money to pay these charges, in order to get the cotton into market as soon as possible.

Art. 3214 of the Civil Code, and the statute of 17th February, 1841, p. 21, give the consignee a privilege for the amount of his advances on the value of the goods consigned to him, and on the unpaid price of the goods which may have been sold.

The payment of these charges was an advance upon the cotton, and the inter-venors are entitled to a privilege on the cotton, to secure the same. The District Judge in his opinion says, There is no evidence of any bad faith on the part of the intervenors, or of a combination to commit extortion by the shippers. The bill of lading was an order on the intervenors, for the sum they paid, and from the evidence, I think they should be re-imbursed.”

Judgment affirmed, with costs.


author: Vookhies, J.

text:
    Peyton A. Key v. John Box et als.
    Unitor tho operation of Articles 2203 and 2204 of tho Civil Code, compensation does not talco placo between partnership and individual debts.
    During the existence of tho partnership, suit must be brought against the firm, and not against individual partners.
    An exception to this rule has been recognized in the case of a Louisiana creditor, attaching the interest of a non-resident debtor in property belonging to a foreign firm, of which he was a member, for a debt duo by him individually.
    from the Fourth District Court of New Orleans, Price, J..

      Mott & Fraser, for plaintiff. Singleton & Clack, for defendants and appellants.
   Vookhies, J.

Tlie correctness of the plaintiff’s demand is not disputed ; but the defendant contends, that it is extinguished by compensation .to the amount of a claim which he sets up against the firm of Peter Tellon & Co., of which he alleges the plaintiff to be a partner. Then follows a reconventional demand for the surplus of this claim.

Shit is well settled, that compensation does not take place between partnership and individual debts, under the operation of Articles 2203 and 2204 of the Civil Code. So that the defendant, John Box, cannot plead, as an off-set to the debt which he owes to the plaintiff individually, his claim against the firm of P. Tellon <& Co., although the plaintiff be liable solidarity for all the debts due by the firm.

The rule of law is, that during the existence of the partnership, suit must be brought against tho firm, and not against individual partners. C. P. 165; 4 L. 107, Davis v. Eloi et als.; 6 R. 131, Lambeth et als. v. Vawter et als. . An exception to this rule has been recognized in the case of a Louisiana creditor attaching .the interest of his debtor in property belonging to a foreign firm, of which the debtor, himself a non-resident of the State, was a partner, although the debt was due by the latter individually. Ante 140, (p. 242, vol. 30 Opinion Book), Frost & Co. v. White. See also 5 An. 260, Sherly, Escott & Co. v. Owners of Steamboat Bride.

But the case at bar does not fall within this exception ; for it appears by the pleadings, that both the plaintiff and the defendant, as well as the firm of P. Tel-lon & Co., have their respective domicils out of the State of Louisiana. Our courts are vested of jurisdiction over this case by reason of the agreement of the parties, reading as follows, to-wit:

“We, the undersigned, hereby bind ourselves as securities of the defendant, John Box, to plaintiff, Peyton A. Key, in the sum of eighteen hundred dollars, and we agree, that whatever judgment may be rendered against the said Box in this case, may, at the samo time that it is rendered, be entered up against us in solido, and we hereby authorize the plaintiff to grant any extension of time that he may see fit to grant said Box, and it shall not release us as securities.

New Orleans, Eeb. 8th, 1858.

(Signed) John Box.

B. P. Ethel.”

The defendant also filed an-answer to the merits, without pleading to the jurisdiction of the court.

The defendant has not attached any property, in this State, belonging to the firm of P. Tellon & Co.; so that, it would be fruitless to determine whether the privilege granted to a creditor, to attach, for the payment of the individual debt of a non-resident debtor, his interest in the property of the firm, can be extended to a non-resident creditor. Nor is the case subject to a different solution, from the fact that the claim is set up in the shape of a reconventional demand; the objection is one ratione materia:.

We come to the same conclusion as the District Judge, but without examining into the merits of the reconventional demand; and for this reason, it is unnecessary to dispose of the bill of exceptions taken by the defendant to the ruling of the court below, rejecting the testimony of Peter Tellon, on the ground of interest.

Judgment affirmed.

Merrick, 0. J., took no part in this decision.


author: Merrick, C. J.

text:
    M. Wallace v. N. F. Shelton et al., Levee Commissioners.
    The decision in the case of Yealman v. Cmndéll, 11 An. 220, reaffirmed.
    An assessmentfor levee purposes is not a tax within the meaning of Article 123 of the Constitution.
    An Act of the Legislature authorising the assessment of an annual tax on alluvial lands, “ specifically upon each and every acre,” for the purpose of building or making and repairing levees, is not in violation of the Constitution.
    from the District Court of the Parish of Madison, Farrar, J.

      Goodrich & Defrance, for plaintiff and appellant. Short & Parham, for defendants.
   Merrick, C. J.

The plaintiff who is appellant from a decree against him in the lower court, states his case as follows, viz :

“ The plaintiff sued out an injunction against the Collector of the Levee Tax, imposed under the Act of 1857, by the Commissioners of Levees, for the district composed of the parishes of Madison and Carroll. He charges that the said Act, which amends the 2d section of the Act of 1853, and changes the ad valo-rem into that of a specific tax upon lands alone, is — first, unconstitutional; second, that it is unjust, unequal and oppressive ; and third, that the mode of assessing and collecting said tax is illegal.

“ The Act of 1857 reads as follows : Be it enacted, ‘ That the second section of the above entitled Act (of 1853,) be so amended and reenacted as to read as follows : That for the purpose of building or making and repairing all levees in said levee district, the commissioners of the same are hereby authorized and empowered to aáses an annual tax on all the alluvial lands situated in the Parishes of Carroll and Madison, specifically upon each and every acre.’ See Session Acts, p. 105 ; see also, Session Acts of 1853, p. 44.

“ The Article 123 of the Constitution, it is contended, has been violated by the passage of the above Act of 1857. That Article reads : ‘ Taxation shall be equal and uniform throughout the State. All property on which taxes may be levied in this State, shall be taxed in proportion to its value, to be ascertained by law. No one species of property shall be taxed higher than another species of property of equal value on which taxes shall be levied,’ &c.

“ The court below sustained the constitutionality of the tax levied under said Act of 1857, upon the authority of the case of Yeatman v. Crandell, reported in 11th Annual, p. 220. It is respectfully submitted that, that decision, and indeed, others of a recent date, should not be considered as having settled the question; and for the following reasons, plaintiff desires that it may be treated as still an open one:

He thinks that the well known maxim stare decisis should not be invoked upon those decisions. They are not entitled to the weight of authority, until their correctness has been tested by time and experience. ‘ Even a series of decisions are not always conclusive of what is law’; and again, ‘ crude and hasty decisions should be revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.’ 1st Kent. 476.

“ This is the correct doctrine, and is founded in justice; and the best evidence of its correctness is to be seen in the conflicting decisions that have been had upon this Article of the Constitution since 1854.”

It cannot be denied, that the proper construction of Article 123 of the Constitution has occasioned this court much perplexity. The decisions, until recently, at least, have been rendered by a divided bench, and the present doctrine of the court upon the construction of Art. 123 of the Constitution of 1852, was preceded by two decisions the other way. But the questions arising in the Yeatman case were decided after a full consideration of the subject. We had not only the aid of the arguments of the learned counsel in that case, but the case of the Braining Company was then under advisement on a re-hearing, in which we had the assistance of a number of the most distinguished and experienced counsel of this city. The conclusion arrived at in the case of the Draining Company, was after the most mature delineration. The decree was also concurred in by four Judges. This case was followed by the two cases of Surgi v. Snetchman, and Surgi v. Batalord, affirming the same doctrine. 11 An. 387.

After those decisions, which were in conformity with those under the Constitution of 1845, we had hoped the question would be considered as at rest. See Second Municipality v. Duncan, 2 An. 182 ; Gillespie v. Police Jury of Concordia, 5 An. 403.

We have not discovered any new argument in the learned brief of the plaintiff, which has not been fully considered in the former cases, and we content ourselves by referring to the reasoning of the court in the cases cited. In addition to what is said in the case of Yeatman v. Crandell, we refer to the reasoning of the court in the case of the Braining Company, on pages 372, 373 and 377, 11 Annual.

The plaintiff attempts to distinguish this case from the case of Yeatman v. Crandell. He says, the tax there enforced under the Act of 1852, was an ad valorem tax upon land, while the tax of 1857 is a specific tax.

In the case of Layton v. The City of New Orleans, 12 An. 515, we said, that nothing prevented the Legislature from adopting different principles as the basis of its legislation. When the different municipalities were consolidated into one city, the Legislature adopted the principle, that each municipality ought to pay its own debts. Subsequently the Legislature adopted the principle that it was equal and just that the city at large should pay the very unequal debts of the different municipalities. It was not in the power of this court to say, that the legislation was unconstitutional.

So here the Legislature has established at different periods, different principles in regard to the assessments made for the levee district for these parishes, viz:

1st. That it was right, equal and just, to levy an ad valorem assessment upon the lands alone; that the property receiving the advantage should bear the burden. 2d. That in order to protect the people from inundation, it was just and equal that they should pay an ad valorem assessment upon all of their taxable property in the levee district. 3d. That it costs (as in the Draining case) as much to protect one acre of land from inundation as it does another ; that every acre of land in the District of land subject to overflow, will be benefited to a much greater amount than the assessment; and that, therefore, it is just and equal, that each acre should pay into the hands of the agents charged with protecting it, the same sum as every other acre ; and now, by a statute, since this litigation arose, and, 4thly, that the second and third principles ought to be combined, and that the land ought to be subject to a specific tax, and all other property to an ad valorem tax.

It is easy to perceive, by examination, that none of these theories cau attain absolute equality or bring about exact justice among the different individuals composing a community subject to assessment. The first and second theories operated harshly upon those persons who occupied high tracts of land and had already protected themselves by sufficient levees at their own expense, and there may be cases of individual hardship under the third and fourth theories of legislation.

But it is not pretended, but that the plaintiff is benefited to the full amount of his assessment. The money ho pays to the agents appointed to protect his property, is restored to him in the increased value of his lands, and their security from overflow. The argument, that he may not wish to sell or cultivate his lands, and that he may prefer that the soil should be raised by the overflow of each year, cannot be admitted. Solus populi suprema lex. The obstinacy of a proprietor in one case, or the wishes of a capitalist who holds by speculation in another, cannot be permitted to stand in the way of the safety of a whole community. Courts of justice cannot look to these wishes of parties, but must judge of their liability to assessment and taxation by reference to their property. The argument which would relieve them from the assessment in this case, would relieve them from taxation in every other.

Upon the whole, we cannot say that the principle upon which the Act of 1857 is based is unequal or unjust. The numerous Acts upon the subject showj that the subject has received the careful consideration of the Legislature, and that they have adopted a principle which, with reference to its subject-matter, must, in the absence of conclusive proof to the contrary, be considered just and equal. The presumption is not rebutted by any evidence in this record.

Judgment affirmed.

Buchanan, J., and Cole, J., took no part in this decision.


text:
    Alice Matilda Porée v. Captain Cannon et als.
    Iu a suit brought against tho captain and owners of a steamboat, to recover damages for loss or injury arising from the bursting of tho boiler, the Act of Congress approved July 7th, 1838, entitlod, “ An Act to provide for the better security of the lives of passengers on board of vessels propelled, in whole or in part, by steam,” should govern, aud not Article 2299 of the Civil Code.
    The 13th section of that Act, in such an action, throws the burden of proof upon the captain and owners of steamboats to show, that the explosion was not the result of negligence on their part, or those employed by them.
    PPEAL from tho Fourth District Court of Now Orleans, Strawbridge, J.
    _Ol Singleton & Clack, and Geo. L. Bright, for defendants and appellants.
   Merrick, C. J.

The appeal in this case was taken in 1852, and the case, under the rules of the court, was placed upon the delay docket, from whence it has been recently removed by motion.

The suit was brought to recover one thousand dollars damages for tho loss of a slave killed by the memorable and' disastrous explosion of the steamboat Louisiana, in November, 1849.

The very learned and able judge (now deceased) who presided over the Fourth District Court at that time, rendered judgment in November, 1851, in favor of plaintiff, for tho sum of nine hundred dollars, and interest from judicial demand.

The defendants appealed.

The relationship of the bailor and bailee, as in the case of a common carrier, did not exist between these parties. The negro was at the time employed at the scales of another steamboat, about thirty feet distant, weighing freight. He received an injury in his side, and his nostrils were filled with hot ashes, or some substance carried by the steam. He was insensible, and in that condition taken to the hospital, where he died the next day.

The argument of defendants’ counsel may ho resolved into two propositions, to-wit:

1st. That there is no proof of any fault or negligence on the part of the defendants, or any of the officers of the boat.

2dly. If it be proven in any manner, that the explosion was attributable to the engineers, or persons having charge of the boilers and engine, still, as the captain has no power over the engineer, and as he provided competent officers, he cannot beheld responsible under Article 2299 of the Civil Code, because he could not have prevented the act which caused the damage.

The proof is, that at the time of the explosion, (which seems to have been the moment the boat was leaving, or on the point of leaving the wharf) the engines were under the charge of the second engineer, a sober, careful man, who was killed by the explosion. That the first engineer had been transacting some business in the city, and was to join the boat at the Stock Landing in Jefferson City; that the boilers had been inspected within the six months preceding, and would have passed inspection the day of the explosion, although one of the boilers had been taken out of another boat, and the others were five or six years old.

On this state of facts, it is urged that recent experiments have demonstrated that an explosive something, probably electricity, is generated in the steam boiler, which no care can prevent, and that it is a fallacy to attribute explosions to carelessness, simply because the explosion occurred, and that all presumptions ought to be so based upon well established and well known facts, as to admit of no reasonable doubt of their correctness.

In the unsatisfactory state of science on the subject of the explosions of steam boilers, were it left to us to settle the question of presumptions arising therefrom, we might feel some embarrassment. But even then, we think it might be safely assumed, that where steam boilers and engines are properly constructed, of good materials and proper strength, and are managed with that prudent and reasonable care which the powerful agent employed requires, they will not explode; and that if a well authenticated instance can be given, where a steam boiler with sufficient strength and carefully managed has exploded, it will prove such a rare exception, as not to render the rule so doubtful or uncertain as to be an unsafe guide in considering these questions. The long period of prosperity and freedom from explosions which followed the passage of the Act of Congress of 1852, and the comparative security'of steamboats constructed and managed under the regulations of the French Government, in that country, give great weight to this inference.

Aside from the single fact, that the second engineer was a sober, careful man, the proof in this case creates a probability that the accident was the result of a want of water under the action of two much heat, and consequently negligence on the part of the officers of the boat.

It is shown that the head of the “ chock joint” forming the connection between two boilers, was burnt out about two feet in length; “a part of one of the boilers was in a collapsed state ; the other flue, that is, the whole length of the cylinder was also collapsed, and a portion of it torn” ; the upper side of the portion of the boiler thrown some hundred and fifty feet into Oanal street, had indentations apparently corresponding with the rivets of the other boiler; the flue also retained a bluish color. The engineers who examined the fragments of the boilers and flue left, judging from these indications, gave it as their opinion, that the explosion was occasioned by a want of water and the great heat of the boilers.

At the time this accident occurred, the Act of Congress, approved July 7, 1838, was in force. By the thirteenth section of the Act, the burden of proof is upon the defendant, to show that there was no negligence on his part, or those employed by him. It is in these words :

“ Sec. 13. Be it enacted, That in all suits and actions against proprietors of steamboats, for injuries arising to person or property from the bursting of the boiler of any steamboat, or the collapse of a flue, or other injurious escape of steam, the fact of such bursting, collapse or injurious escape of steam, shall be taken us full prima facie evidence, sufficient to charge the defendant, or those in his employment, with negligence, until he shall show that no negligence has been committed by him, or those in his employment.” oth vol. Statutes at Large, p. 306.

The defendant has not rebutted the presumption resting upon him under this Act, and if it be law applicable to the case, he is left without a defence. This Act was not brought to the notice of the learned counsel for the defence, at the argument of the case, but we suppose the power of Congress over the subject, will not be questioned. If so, Congress had the right to declare what consequences should arise from a presumed violation of the requirements of the Act. A citizen of Louisiana, who takes upon himself an employment regulated by the laws of Congress, cannot claim an exemption from the rules prescribed by the same, and that liis case shall be decided by the State laws. Article 2299 of the Civil Code is not, therefore, the law governing this case, and it is needless to inquire whether the defendant, as captain or owner, could have prevented the injury.

Judgment affirmed.


text:
    Thomas T. Twitty v. Thomas Clarke.
    "Where the goods of third persons are placed, with their consent, in a leased houso or store, they become subject to the pledge of the lessor.
    Where a Constable has property under seizure, he cannot bo deprived of possession by a writ of sequestration, even by a superior court. The proper mode of procedure is by injunction.
    from the Sixth District Court of New Orleans, Howell, J.

      Himton c6 Miller, for plaintiff. T. J. & A. G. Semmes, for defendant and appellant.
   Merrick, C. J.

The defendant was the lessor of one Charles, a jeweller. The latter contracted with the plaintiff for a large iron safe, which was to be shipped from New York. In the mean time plaintiff agreed to furnish Charles with another large safe until the arrival of the safe contracted for. Charles being in arrears of the monthly rent, suits were instituted before a Justice of the Peace, and judgments obtained against the tenant, with a privilege upon the property attached. Under these judgments, executions issued, and the safe was seized to satisfy the same.

The plaintiff then instituted the present suit against the defendant Clarice, and sequestered the safe, claiming the same as owner.

The Constable intervened in the suit, praying that the possession of the safe should be restored to him.

The judgment of the lower court being in favor of defendant and intervenor, plaintiff appealed.

The proof shows that the safe was placed in defendant’s store with plaintiff's consent. It, therefore, became subject to the pledge of the lessor. C. C. 2677 and 3227.

Moreover, the proceeding by sequestration was irregular. The Constable’s authority, when he has property under seizure, cannot be treated in this summary manner, and he cannot bo deprived of possession by a writ of sequestration, even by a superior court. The custody of the Constable, no less than that of the Sheriff, is the custody of the law. If plaintiff had rights, his remedy was by injunction.

Judgment affirmed.


author: BucnANAN, J.

text:
    The State, on the Relation of Hickman praying for writ of Prohibition, v. Judge of the Third District Court of New Orleans.
    The writ of proliioition is only issued to a court which takes cognizance of a cause that does not belong to it, or which it is incompetent to decide.
    The writ should not bo issued to a court which grants an order of sequestration, only as a conservatory measure to insure the jurisdiction of another court in which the action is to be instituted.
    To maintain an application for a writ of prohibition there must be a clear usurpation of jurisdiction.
    an application for a writ of prohibition to the Third District Court of New Orleans, Duvigneaud, J.

      A. N. Ogden <& Stansbury, for the relator. Thos.

      Curry, for defendant.
   BucnANAN, J.

The record does not present to this court a clear case for the exercise of the power to issue a peremptory writ of prohibition.

This writ is only issued to a court that takes cognizance of a cause which does not belong to it, or which it is incompetent to decide. C. P. Art. 846.

In this case, it appears that the Judge of a District Court in New Orleans has granted an order of sequestration of a slave who intends to bring suit at the domicil of her master for her freedom — -as a conservatory measure, to insure the jurisdiction of the court (that of Rapides,) in which the action is to be instituted. There is nothing in our late decision in the suit of Mary Ann Logan v. Hickman, which is necessarily or apparently inconsistent with the issuing of this writ of sequestration by the District Court in New Orleans.

The case in the District Court of New Orleans will scarcely come before us by appeal; for we understand from the answer filed herein by the counsel of Mary Ann Logan, that it is not intended to prosecute -his proceedings in that court to judgment.

We gather as much from the prayer of Logan’s petition in the District Court, for sequestration. To maintain the present application, there must be a clear usurpation of jurisdiction. This case has much analogy to that of Williams v. Duer, 14 La. Rep. 531. The application for sequestration appears to be in aid of the jurisdiction of the District Court of Hickman’s domicil.

The counsel of the applicant for that writ has annexed to his answer herein, a copy of the petition which he has filed, or is about filing, in the District Court holding sessions in the Parish of Rapides; and we must presume that the sequestration ordered in the Parish of Orleans will last only so long as will be indispensable to sustaining the jurisdiction of the court in Rapides. Should the suit not be brought within a reasonable time, in Rapides, it will be the duty of the court in New Orleans to quash the sequestration.

Writ of prohibition refused, at costs of relator. (


author: Colb, J.

text:
    State of Louisiana v. Benjamin Mason et al.
    In a suit contesting an election on account of violence used in keeping voters from the polls, it should bo alleged that there was a sufficient number prevented from voting to have varied the result; and the absenco of such material allegations is fatal to the suit.
    PPEAL from the District Court of the Parish of Jefferson, Burthe, J.
    Xi. Wheeloch S. Upton, for plaintiffs. W. T. Scott and A -N. Ogden, for defendants and appellants.
   Colb, J.

Petitioners represent that they are citizens of the United States ; that they reside in the town of Carrollton, a municipal corporation created by the Legislature of Louisiana, and wherein they have a right to vote.

That the municipal election, held in Carrollton on the 5th of April, 1858, was carried on and completed by the wrongful interruption of the right of free suffrage, by the intimidation of tumult and the interference of degraded banditti, brought from afar to thwart the exercise of their rights as electors.

That by no good and honest authority does one Benjamin Mason, under such election, hold the office of Mayor of the town of Carrollton, and that by no like right do W. W. Cochran, C. C. Thompson, J. O. Neibert, E. A. Wilcox and E. St. Fierre, hold the office of councilmen, but that the said Mason doth usurp the office of Mayor, and the others do likewise usurp the offices of councilmen.

That the said election was null and void, because very many of the electors of the town of Carrollton were prevented from the free exercise of the right of suffrage, by intimidation and threats.

That some were thwarted by personal violence, and others were stricken down with concealed weapons, carried and used by strangers, who were designated only as “ Bed Bill,” Big Tom,” and such like soubriquets.

That these persons so designated, are believed to have been of the number of thirty or more, and that their appearance and force were intended and used to prevent a fair and impartial election at the polls on the 5th of April aforesaid.

'Wherefore, they pray for the issuance of the writ of quo warranto, and that the said soi-dissant Mayor and Councilmen, be forbidden from any further performance of the duties in the offices and trusts they usurp.

There was judgment for plaintiffs, and defendants have appealed.

The writ of quo warranto is an order rendered in the name of the State, by a competent court, and directed to a person who claims or usurps an office, in a corporation, inquiring by what authority he claims or holds such office. O. B. Art. 86b

The petition merely accuses the defendants of having usurped their offices.

Usurpation conveys the idea of wrongful action on the part of him who usurps an office, but the petition does not accuse the defendants of any improper or illegal action on their part, but only alleges that they were usurpers, because other persons have acted illegally.

The petition admits that they hold the office by virtue of an election, and it is not contended that the election was not held on the day fixed by law, or that all the formalities of law were not followed by the commissioners of the election.

The defendants have shown that they received a majority of sixty-five votes, and on the return of the commissioners, of their election, they qualified themselves and entered upon the discharge of their duties.

It thus appears that they are not technically usurpers, but have apparently the warrant of law for the tenure of their offices.

The intent of plaintiffs is, however, to go behind the certificate of their election, and to show it was so improperly conducted, that it ought to be viewed as a nullity, and defendants ought to be ousted from their offices, on the ground of never having been chosen according to law.

The defendants excepted to the sufficiency of the allegations in the petition, to have the election annulled, on four grounds. It is only necessary to consider two of them :

1. Because the right of defendants not being contested by any persons claiming for themselves a right to said offices, the grounds set forth were wholly insufficient to maintain the action.

It appears reasonable that no one but a person pretending to have a right to an office, should be permitted to contest the right of the incumbent of that office. If each citizen be entitled so to do, then a hundred or a thousand writs of quo warranto could be sued out.

Each citizen is, indeed, interested to have elections conducted without intimidation or tumult, but this interest can be manifested by prosecuting those who have sought to thwart the peaceful deposit of suffrages in the ballot-box.

Laws exist for the punishment of the disturbers of public elections. It is to be supposed these laws will suffice as a general rule to maintain sufficient order to permit the expression at the ballot-box of the will of the majority.

Exceptional cases may occur, as the present, where it is alledged, that a band of thirty men intimidated the population of a town, and prevented the free expression of public opinion.

Principies cannot be established for the exception, but the general rule.

It is, perhaps, better, that in a few instances, the results of elections should remain undisturbed, even when the will of the majority has been thwarted, than to allow each citizen to contest them.

For if every citizen possessed this right, more disorder would characterise the administration of public affairs, than would ensue from the occasional defeat of the will of the majority.

The judicial tribunals would be burdened with innumerable contestations of elections, and clogged in the execution of their ordinary duties.

Citizens, alarmed at the immense cost for attorney’s fees and other things, would fear to run for offices, when the malice of any personal enemy might keep them in litigation during the whole term for which they were elected.

Conceding that Article 813 of the Code of Practice, implies the power of courts of justice to determine by the writ of quo warranto, the validity of the elections of the officers of a corporation, when the Legislature has not granted to the corporation this prerogative, except with regard to offices which are conferred in the name of the State, by the Governor, with or without the consent of the' Senate, mentioned in Article 868 of the Code of Practice, still the law has not enunciated the rules which shall govern the courts in deciding upon the validity of elections under the writ of quo warranto, and the degree of interest which shall empower a party to inquire into the validity of an election.

It is true, that Article 869 of the Code of Practice declares, that a mandate to prevent the usurpation of an officer in a city or other corporation, may be obtained by any person applying for it, but a person does not commit an usurpation who takes possession of an office by virtue of a majority of voters, manifested by the correct return of commissioners of elections duly appointed, of the votes cast and of those who are elected.

■Webster’s Dictionary defines usurpation to be the “ act of seizing or occupying, and enjoying the power or property of another without right; as, the usurpation of a throne ; the usurpation of the supreme power.”

Bouvier’s Law Dictionary explains usurpation, when used in relation to government, to be “ the tyrannical assumption of the government by force, contrary to and in violation of the Constitution of the country.” And in defining the word “ tyrant,” ho says : “The term tyrant and usurper are sometimes used as synonymous, because usurpers are almost always tyrants ; usurpation is itself a tyrannical act, but properly speaking, the words usurper and tyrant convey different ideas. A king may become a tyrant, although legitimate, when he acts despotically; while a usurper may cease to be a tyrant by governing according to the dictates of justice.”

Although, then, Article 869 permits any person to apply to prevent the usurpation of an office in a city or corporation, still this Article would not apply to persons who have been duly and honestly returned as elected by the commissioners of election, as in the present case. Besides, any person,” used in this Article, cannot have been used in an unrestricted sense. No one would certainly contend that a foreigner just arrived upon our shores, would be entitled to sue out the writ of quo warranto, and inquire by what right the Mayor or Oouncilmen of a corporation held their offices. This Article means that “ any person” hav-a sufficient interest to justify an action of quo warrrato, may institute it, and it is for the tribunals of the country to decide when the person applying for this writ, possesses such interest as to justify the courts in acting under it.

It is a rule appertaining to all suits, that a party cannot institute a legal proceeding without having sufficient interest to justify him.

Neither, then, Article 869, nor indeed any other of the Code of Practice, relative to the writ of quo warranto, justifies an action against persons in possession of offices who are not usurpers, unless it is granted by Article 873 by implication, and this Article does not declare the rules that shall regulate this proceeding, and does not specify the persons who shall be deemed to have a sufficient interest to apply for the writ. It then becomes the duty of courts to decide the degree of interest to be possessed by a person to justify him in applying for this writ, in order to oust any one from office. The Legislature of Louisiana have enunciated what they consider to be a sufficient degree of interest.

The Act of 1855, relative to elections, (Session Acts, p. 408,) only provides for the contestation of elections to certain specified offices, and only allows those who claim the right to hold those offices to contest the elections of those who pretend to have been elected, and this contestation must be commenced before parties get possession of the offices. See sections 41, 42, 45, 46 and 53 of said Act of 1855.

"We can see no reason for differing from this view of the Legislature, and we are of opinion that the first exception was well taken by the defendants, and that plaintiffs were not entitled to the writ of quo warranto in this case, because they do not pretend to be entitled to the offices from which they wish to oust the defendants.

2. The other exception taken by defendants is, “ because it was not alleged in the petition, that a sufficient number of voters were prevented from voting, to have varied the result of the election.”

It is evident there would be no reason to contest an election, if the result could not be changed, and such would bo the event, unless a number of voters had been prevented from voting, sufficient to have varied the result.

In Augustin v. Eggleston, 12 An. 361, this court held, that since elections are determined by the majority of the ballots cast, they are not to be set aside on account of the meagreness of the vote, “ without distinct and circumstantial allegations of error, fraud, violence or illegality affecting the result.”

In Andrews v. Saucier, 13 An. 302, it was hold by this court, that “ if the voters think proper to go forward and vote under a defective law, those who were candidates ought to be the last to complain, when the result has been affected by neither the unconstitutionality of the law, fraud, error, nor collusion.”

The petition of praintiffs was, therefore, essentially defective, as it did not contain this material allegation.

In conclusion, it should bo observed, that it is not alleged that the defendants participated iu any act of violence, or had in any manner interfered with or prevented persons from voting, or had aided and abetted any persons so doing.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and that there be judgment in favor’of the defendant against the demand of petitioners, and that the writ of quo warranto issued at the demand of appellees, bo dismissed, and that appellees pay the costs of both courts.

Land, J., absent.


author: Mebrick, C. J.

text:
    Nicholson & Co. v. Pelanne Bros.
    A party is concluded by the first bill which he presents for work done under a contract. 'Without showing error he cannot be permitted to recover the items added to that bill since it was rendered.
    from the Third District Court of New Orleans, Emigneaud, J.

      V. H. Ivy, for plaintifis. C. Dufour, for defendants and appellants.
   Mebrick, C. J.

The plaintiff is concluded by the first bill which he presented the defendants for the work done under the contract. Without showing error he cannot be permitted to recover the disputed items added to this bill since it was rendered.

There is no foundation for the reconventional demand.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be amended so as to reduce the principal sum decreed the plaintiff from $3400 to $3350, and that the judgment so amended be affirmed, the plaintiff paying the costs of appeal.


author: Yoorhies, J. Merrick, C. J., Voorhies, J.

text:
    Tallamon & Dessommes v Antonio Cardenas.
    Tho 9th section of tho Act of 1855, repeals the Acts of 1840 and 1847, modifying the 212th Art. of the Code of Practice, relative to the arrest of debtors about to leave the State, but expressly declares that the Act is not intended to repeal the provisions of the C. P. on the subject.
    The provision of the 3d section of the Act of 1855, that no non-resident shall be arrested in this State except ho has absconded from his residence, must give way to the 212th Art. C. P. in the case of a foreign debtor about permanently leaving the State.
    The repeal of a repealing law does not revive tho first law unless it be so particularly expressed. C. C. 22 and 23, and the same rule may be laid down as to the amendment of laws, which is but a partial repeal.
    PPEAL from the Third District Court of New Orleans, Buvigneaud, J.
    jLi J. L. Tissot, for plaintiffs and appellants. C. Bufour, for defendant.
   Yoorhies, J.

The question presented for adjudication in this case is, whether a non-resident debtor residing in a foreign country, can bo arrested under the provisions of the Article 212 of the Code of Practice, as amended by the Acts of 1840 and 184V, when about leaving this State permanently. There would be no difficulty in this matter, were it not for the 3d section of the Act of 1855, (p. 42), which reads : “ that no non-resident shall be arrested in this State, at the suit of a resident or non-resident creditor, except in cases where it shall be made to appear by the oath of the creditor that the debtor has absconded from bis residence.”

This Act, of which the above is one of the sections, is entitled An Act relative to persons arrested and imprisoned for debt; and, in its last section, repeals all laws or parts of laws conflicting with the provisions of this Act, and all laws on the same subject-matter except what is contained in the Civil Code and Code of Practice.” Sec. 9. Tho provisions of the Act of 1840 and 184V, which relate to the subject-matter under consideration, are consequently repealed notwithstanding the discrepancy which exists in the French and English texts of the 3d section of the Act of 1855. The English text prevails.

The 212th Art. O. P. gave the right of arrest to any creditor, whose debtor was about to leave the State, even*for a limited time. This last clause was modified by the Act of 1840, so as to apply only to debtors about departing permanently from tbe State. Another modification was introduced by the Act of 184V, p. 63, sec. 1, with regard to debtors, who were citizens of another State ; they were subject to arrest only in case they absconded from their residence. In giving effect to the Article of the Code as amended by these two statutes, the rule was that any creditor had the right to arrest any debtor about departing permanently from the State, except when such debtor was a citizen of another State, in which case the right of arrest accrued only when the latter debtor absconded from his residence. A non-resident debtor from a foreign country might therefore be arrested although not absconding, when about to leave the State permanently ; so much was left then of Art. 212 C. P., after the restrictions imposed by the Acts of 1840 and 184V.

Prom this it will appear that the section 3d of the Act of 1855 is in conflict with the Article 212 of the Code of Practice upon the subject of the arrest of foreign debtors ; and yet the 9th section provides expressly that the Act is not intended to repeal the provisions in the Code of Practice. In order to give effect to both, the rule might be laid down that a foreign debtor may be arrested in two events ; 1st, when about permanently leaving the State; 2d, when absconding from his residence. But that provision of the 3d section of the Act of 1855, which reads, that no non-resident shall be arrested in this State except he has absconded from his residence, must give way to the 212th Art. O. P. in case of a foreign debtor about permanently leaving this State.

In thus giving effect to the Art. 212 C. P , it has not escaped the attention of the court that the Act of 1855 has repealed the two Acts of the Legislature amending that Article, and that the repeal of these two Acts has not re-instated the Article of the Code of Practice in its original state. “ The repeal of a repealing law does not revive the first law, unless it be so particularly expressed.” 0. C. 22 and 23. And the same rule may be laid down as to the amendment of laws, which, after all, is often but a partial repeal.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed.

It is further ordered, that the plaintiffs do have judgment against the defendant Antonio Cardenas, for the sum of six hundred and three dollars, with legal interest thereon from the twenty-third day of November, A. D., 1857, till paid.

It is further ordered, that the decree quashing the writ of arrest, issued on behalf of the plaintiffs against the defendant Antonio Cardenas, be set aside and annulled; and that the plaintiff’s right of recourse on the bond furnished for his appearance by the said Antonio Cardenas, with Paul Pouillot as his security, be, and is hereby recognised.

It is further ordered, that the defendant pay the costs in both courts.

Land, J., took no part in this case.

Merrick, C. J.,

dissenting. It seems to me that the third section of the Act of 1855 has enlarged the Acts of 1840 and 1847. The term non-resident must be intended to mean any person residing in other States of this Union or foreign countries. I can see no other motive for the change of phraseology in the revised statute. See Acts 1840, p. 133, sec. 9 ; 1847, p. 63; 1855, p. 42.

The Act of 1855 cannot be made to yield to any former legislation, whether contained in the Code of Practice or not. Lex posterior derogat priori. See 1 'Bouvier Inst. 42-43.

The Act of 1855, was the last expression of the legislative will, and being express, all former laws in opposition thereto must, under the ordinary rules of interpretation give way. It could hardly be supposed that the Legislature which had taken the trouble to declare explicitly its will, would have made the same subject to any law, which it had power to repeal and annihilate.

But in the instance before us they have expressly repealed all laws in conflict with the Act, as well those contained in the Code of Practice, as elsewhere. All that is required to make this evident is to punctuate the repealing clause according to the rules of interpretation.

The section should read as follows :

Sec. 9. Be it enacted, &c., That all laws conflicting with this Act, and all laws on the same subject-matter except what is contained in the Civil Code and the Code of Practice, be repealed.”

Here then, are repealed all laws in conflict with the Act, also all laws on the same subject-matter, except what is contained in the Civil Code and Code of Practice.

The lawgiver was reducing the laws to a code. The last expression of his will on this subject, was the Act in question. The citizen and magistrate was not to regard any other law on the subject except contained in the Civil Code and Code of Practice. Holmes v. Wiltz, 11 An.

I think the judgment should be affirmed.

Same Case — On a Re-hearing.

Voorhies, J.

Upon a re-examination of this case, we have come to the conclusion that the former decree should be amended, for the purpose of having the case tried on the merits.

It is, therefore, • ordered and decreed, that the judgment heretofore rendered by the court, be amended so as to read as follows, to-wit: That the judgment of the District Court be avoided and reversed; that the decree quashing the writ of arrest, issued on behalf the plaintiffs against the defendant Cardenas, be set aside and annulled, and that this case be remanded for further proceedings, the defendant paying the costs of appeal.

Merrick, C. J., adhered to his former opinion.

Land, J., absent.


author: Merrick, C. J. Morgan, J.

text:
    H. W. Pitkin v. Rousseau & Jeaufreau, and Dyas Power, Warrantor.
    The action for delivery of merchandise, or other effects, shipped on board any kind of vessels, is prescribed by one year.
    This prescription begins to run from the day of the arrival of the vessel, or that on which she ought to have arrived.
    The party pleading this proscription should show that the vessel either did, or ought to have arrivod one year before the suit was brought — an omission to do which is fatal to his plea.
    Art. 3212 C. C., fixing the time at which a ship is considered to have made a voyage, refers alone to the privileges, given by the Articles which precede it, to creditors upon a ship, and does not govorn the time when a shipper may bring an ordinary action (asking no privilege) for the delivery of goods.
    PPEAL from the Fourth District Court of New Orleans, Price, J.
    XJl Waples & Existís, for plaintiff and appellant. Clarke & Bayne, Lacy & TJpton, and R. Woolridge, for defendants.
   Merrick, C. J.

In this case, Hon. 0. Voorhies having recused himself, on account of relationship to some of the parties, and the other members of the court having been eqnally divided in opinion, the Hon. P. N. Morgan, Judge of the Second District Court, was requested to sit, in this case, in the place of Mr. Justice Voorhies, under the 70th Article of the Constitution. And now, this day said P. N. Morgan having taken his seat in pursuance of said previous request, and after having had this case under advisement, the following opinion and decree were pronounced.

Morgan, J.

The steamer Echo, through her proper officers, agreed, for a certain consideration, to transport some property of the plaintiffs to a place called

Doaksville, which is in that portion of this country known as the Choctaw Nation. The bill of lading which witnesses this contract gave to the carrier the right to store and re-ship, in case the Echo could not reach Doaksville.

The goods were never delivered to the consignees at Doaksville, and this action is instituted for the purpose of recovering from the carrier their value, which the testimony fixes at $400.

The defence is :

1st. Prescription of one year.

2d. Denial of ownership.

The District Judge being of opinion, that inasmuch as more than one year had elapsed from the time the Echo ought to have arrived at Doaksville before the petition was filed, that the prescription commenced to run from the time when the vessel ought to have arrived, according to Art. 3502 C. C., that a vessel is considered to have made a voyage when her departure from one port and her arrival at another shall have taken place, or when, without having arrived at another port, more than sixty days have elapsed between her departure and return to the same port, according to Art. 3212 of the Civil Code, sustained the plea of prescription, and gave judgment in favor of the defendants.

The plaintiffs have appealed.

The facts upon which the plea of prescription is pleaded, are unquestionable. The goods were shipped on the 12th of June, 1854. This suit was not instituted until November, 1856. A period, then, of more than one year had elapsed, (allowing sixty days as the time in which a voyage ought to be completed by a vessel leaving this port for Doaksville,) from the time the goods were shipped to the time when the suit was brought.

The Articles of the Code relied upon by the appellees, are as follows :

Arts. 3501, 3502. “ The action for the delivery of merchandise or other effects, shipped on board any kind of vessel, is prescribed by one year from the day of the arrival of the vessel, or that on which she ought to have arrived.”

Art. 3212. “ A ship is considered to have made a voyage, when her departure from one port and arrival at another shall have taken place, or when, without having arrived at another, more than sixty days have elapsed between the departure and return to the same port, or when the ship, having departed on a long voyage, has been out more than sixty days, without any claim on the part of persons pretending a privilege.”

It is thus apparent, from the terms of the law, (C. C. 3501,) that the plea of prescription of one year, properly sustained, is an effectual bar to any action for the delivery of merchandise shipped on any vessel; and it must follow that if the Article 3212 of the Code is to regulate the time when the prescription in this case commenced to run, the appellant can have no relief.

One portion of the Article 3212, taken by itself, or if perhaps it were transferred to a different part of the Code, would leave the subject beyond any two interpretations. Its terms are express; a voyage is considered to have been made when more than sixty days have elapsed after the departure of the vessel.

To serve the case of appellees, the three Articles, 3501, 3502 and 3212, must be construed together. The first, to determine what prescription he is allowed to plead; the last to fix the period when his prescription should commence to run. To enable him to do this successfully, the Articles should, according to the just rule of construction, treat of the same subject, and relate to the same matter, and must have been made to govern the same case.

Do the Articles 3212, 3501 and 3502, refer to the same subject or matter, and do they govern the same case?

The Article 3212, is to be found under the second section of the title of the Code which relates to privileges on ships and merchandise.

The Arts. 3501 and 3502, are to be found under the head of prescription.

Art. 3212 was, in my opinion, made generally to fix the time when a ship is presumed to have made a voyage, with reference to the period when a creditor who has a privilege upon such ships, arising out of any of the causes mentioned in Art. 3204, seeks to exercise that privilege ; and particularly to Articles 3206, V, 8, 9,10 and 11, which relate to the sale of ships and the privileges which parties may have upon such ships as the property of the vendor. They provide, that where a ship has been sold, and has made a voyage in the name and at the risk of the purchaser, without any claim on the part of the privileged creditors of the vendor, that these privileges arc lost and extinct against the ship, if she was in poi’t at the time of the sale (Art. 3210); but that if a ship was on a voyage, at the time of the sale, the privilege of the creditor against the purchaser, shall only become extinct after the ship shall have returned to the port of departure, and the creditors of the vendor shall have allowed her to depart on another voyage for the account and risk of the purchaser, and shall have made no claim. Art. 3211.

Then follows, and as it seems to mo, as a legal necessity, the Art. 3212, which fixes the time when a voyage is presumed to be at an end, and the consequence of not presenting the claim on the part of the person pretending a privilege within the time therein specified.

Besides this, it appears to me, that a correct reading of this Article, as well as those immediately preceding it, shows that the legislator had alone in view when these Articles were enacted, the security which the ereditorjmight have upon a specific piece of property of his debtor for the payment of his debt.

Giving any force to these Articles which may be claimed for them, the obligation of the owner of a ship may still exist, whilst the privilege which rested upon his ship to secure the faithful performance of that obligation may, by the lapse of time, have been lost. As for instance : if supplies are furnished to a ship, the furnisher has a privilege upon the ship for payment; but if he does not seek to exercise that privilege within a certain period, the privilege is lost. But the obligation of the owner still remains ; the furnisher is merely changed from a privileged to an ordinary creditor.

Upon this branch of the case, I am, therefore, of opinion, that Art. 3212 does not give the time when a shipper may bring an ordinary action asking for no privilege for the delivery of goods, but that it refers alone to the privilege which creditors have upon a ship.

The only prescription which, in my opinion, the defendants can invoke, is to be found under Article 3502 of the Code, which provides as follows : “ The prescription mentioned in the preceding Article (one year) runs, with respect to the merchandise injured or not delivered, from the day of the arrival of the vessel, or that on which she ought to have arrived.”

The vessel upon which the goods for which this suit is instituted, never reached or attempted to reach the port for which she started. Prescription then, according to this Article, must commence to run from the day on which she ought to have arrived there. When that time was, or at what time it should have occurred, must be determined, I think, by the contract between the parties and the evidence in the record.

The contract was, that the goods should be taken to Doaksville, the carrier reserving the right to store and re-ship, in case the river would not allow of his going so high up.

The reservation of this right to store, did not alter the contract so far as regards his obligation to carry the goods to Doaksville. It allowed him the privilege, should circumstances prevent him from carrying the goods to their port of destination, to forward them by some other boat, and to have them stored in the meanwhile ; but his obligation to have them delivered at or shipped to Doaks-ville, if it were possible for him to do so, still subsisted. Hatchett v. Steamboat Compromise, 12 An. 783.

These goods were landed at a place called Rowland, the river not allowing him to proceed any further, and there they remained until they were sold by the person with whom they were stored.

When the goods were landed at Rowland, the second obligation of the carrier, under his contract, commenced. This obligation was to re-ship the goods. This he never did, and nothing in the record shows that he attempted to re-ship them-He had proceeded a long distance up a falling river, and his whole efforts seem to have been directed to hurrying out of it as fast as he could. He never even notified the shipper that he had failed in performing his contract, and that his goods had been left to the mercy of a frontier -warehouseman. He was thus placed in the category of a man who had violated his engagement, without giving notice of the violation to the parties in interest. Oan a man, under these circumstances, plead prescription ?

The law says he may. There is no exception made for bad faith by the Article of the Code which the defendants rely upon. But I am of opinion that he should be held to bring himself clearly within ihe law whose protection he invokes.

Prescription is a legal plea and must be enforced, whenever it is legally made. But prescription is of strict law ; it is not presumed. It cannot be supplied by the courts. It is liable to interruptions, and can only be enforced upon the strictest evidence.

Now, this being, as I understand it, the well settled jurisprudence of this State, upon whom did the burden of proving the prescription relied upon in this case rest ? The defendants.

And what is the period from which prescription began to run ?

According to the views I have expressed when considering the Arts. 3212, 3502, from the time the goods ought to have arrived at Doaksville, taking into consideration the fact of their having been stored in consequence of the low stage of the river.

When the goods should have arrived at Doaksville, is not a question of law, but is a matter of fact. Upon whom did it rest to show this fact ? Clearly the defendants. It was, in my opinion, incumbent upon them to show that the goods ought to have arrived at Doaksville one year before this suit was brought.

But this they have neglected to do. The record furnishes no clue as to when the goods ought to have arrived. The defendants have offered no proof. This duty devolved upon them ; the court cannot supply the deficiency. The fault in not having done it lies at his own door. His plea is not made out by the face of the record, and is entirely unsupplied by any evidence. It must, therefore, fail.

Upon the merits, I think the case is with the plaintiff.

The defendants allege that they had sold the boat to Dyas Powers, whom they call in warranty.

The evidence to support this allegation is, I think, nothing more than a char. ter party. This evidence, under the special defence set up, was inadmissable as against the plaintiff. The proof should correspond with the allegation, and their allegation was not that their boat had been chartered, but that she had been sold.

The testimony is good, however, as between the defendants and their warrantor ; it having been received without objection.

I think there should be judgment in favor of the plaintiff and against the defendant, with the same judgment in favor of the defendant over against the warrantor.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and that the plaintiff do recover and have judgment against the said Jean A. Rousseau and Alphonse J. Jeaufreau in solido, for the sum of four hundred dollars, with legal interest thereon, from the 19th day of November, 1856, and costs of both courts ; and that said defendants do recover and have judgment against the defendant in warranty, Dyas Powers, for the same sum of money, viz, four hundred dollars, and interest from the same date, and costs of both courts.

Cole, J., dissenting. The bill of lading obliged the captain of the steamer “ Echo,” to deliver the corn mills at the port of Doaksville, but it contained the clause," privilege of storing and re-shipping, in ease there is not water to get up.”

It appears from the evidence, that, it is the usage to carry the goods shipped, as far up as they can be taken; then, if the water permits, to re-ship the goods in a lighter draught boat, if there be an opportunity to do so, and if not, they are stored.

it is also established, that the “ Echo” could not get up higher than “ Rowland,” which is forty miles below Doaksville, and no boats were there by which the freight might have been re-shipped to Doaksville. The river was falling rapidly at the time. There was not water sufficient to make a trip that season to Doaksville, and the “ Echo” never afterwards returned.

That the mills were stored with Mrs. Markhouse, who carries on a regular commission business : that she paid the “ Echo” the freight on the mills, as far as Rowland, and the charge was in proportion to the distance the goods were taken.

It is also shown that the “ Echo” discharged at Roland with Mrs. Markhouse other goods for the same consignees to -whom the mills were consigned, and that they were afterwards received by them.

A member of the firm to whom the “ corn mills’ were consigned, testifies that he learned by a letter from Mrs. Markhouse,’that the ten corn mills were at Rowland, Texas, in her warehouse, and she wanted the firm, as consignees, to accept delivery at Rowland, which they refused to do.

I am of opinion, that under the circumstances of this case, the defendants are not liable.

The privilege of“ re-shipping” must be interpreted to refer to the period of the arrival of the “ Echo” at a place where the water would not suffice for her further advance up, and not to an epoch a long time subsequent.

If, upon the arrival of the steamer at such a point, it were possible to re-ship the goods in a steamer of lighter draught, then it would have been the duty of the “ Echo” to have re-shipped them.

It having been, however, impossible so to do, the obligation of the common carrier, under the bill of lading now under consideration, was to store them, and such is also proven to be the usage upon the river at Rowland and other points.

It seems unreasonable to suppose that the responsibility of the Echo” continued until a season of high water.

The bill of lading referred to a certain voyage ; its clauses and obligations are to be interpreted as referring to that trip.

The “ Echo” having stored the “ mills” with a regular commission house, according to the authorization of the bill oí lading, and it being impossible to reship them at that time, the contract between the shipper and the common carrier were, under the circumstances of this case, terminated, except perhaps as to the duty of giving notice to the consignees.

But as this notice was given by the commission merchant with whom the goods wore stored, plaintiff suffered no damages from not being notified by the captain of the “ Echo.”

As then it was impossible to have re-shipped the mills” that season, as defendants '¡-’ere authorized to store them, and it -was the usage so to do, as notice was given to the consignees, 1 think, that the defendants are not liable. Besides, two of the defendants cannot be held liable, because they had made a conditional sale of the “ Echo,” to the warrantor, and another person, and she was in possession of Powers, under this conditional sale, at the time the “ mills” were shipped.

I consider it unnecessary to express any opinion upon the points discussed by the organ of the majority of the court, except so far as they are embraced in my opinion.

I am of opinion that the judgment of the District Court should be affirmed.

Buctiaxan, J., concurred in this opinion.


text:
    William Beste v. His Creditors.
    Charts of fraud in an opposition to the application of an insolvent to be allowed the benofit of the the laws of this State in favor of insolvent debtors, should be clearly enunciated and specifically
    from the Second District Court of New Orleans, Morgan, J.

      & for A. & A. for defendants and pellants.
   Cole, J.

On the 24th February, 1858, William Beste, of New Orleans, filed in the Fifth District Court of New Orleans, his petition for a cession of his property to his creditors, and a meeting of the creditors -was ordered, to take place on the 31st March following.

On the 26th February, 1858, G. M. Lcening was appointed provisional syndic. On the 31st March, the meeting of creditors was held, and Joseph Peynoodt was appointed syndic.

On the 10th April, 1858, Joseph Peynoodt, not in the capacity of syndic but as a creditor, and also some other creditors filed their petition of opposition to the demand of Peste to be allowed the benefit of the law of this State in favor of insolvent debtors, and charged him with fraud.

Peste filed this among other exceptions, “ because on the face of the petition no legal cause of action is set forth in said petition against him.”

The District Judge being of opinion that the allegations were not of such a nature as to constitute fraud, sustained his exception and dismissed the opposition. Opponents have appealed and rely upon sections 19, 20 and 21 of tho Act of 1855, relative to the voluntary surrender of property and mode of proceeding. Sess. Acts 1855, p. 435.

The first ground alleged by opponents to prove the fraudulent action of Beste in his insolvent proceedings is, “ that before making a cession of his property to his creditors, he was accused by his partner, Grima, of knowingly and fraudulently attempting to sell, at public auction, without notice thereof to his partner, eleven pianos, which he represented as coming from the manufacture of Pleyel. when ho knew that they did not; and was only prevented therefrom by the suit for a settlement of partnership, instituted against him before the Second District Court, by his partner Felix Grima, Jr., in which suit a writ of sequestration was obtained, and the piauos were sequestered by the Sheriff in tho hands of Beste & Laming, a commei'cial firm of New Orleans, composed of Edward Beste cD G. M. Laming, and in -which the said Wm. Beste, the insolvent, is the chief clerk and manager of all the affairs of said firm.

So far there is no averment of fraud which is covered by the statute. This charge consists of an accusation by Grima, that Wm. Beste attempted to commit a fraud anterior to his cession, but was prevented by tho vigilance of his partner, who caused the pianos to be sequestered.

Opponents further alledge, “ that in the schedule filed in court by the said Wm. Beste, he has omitted to mention said pianos and to surrender them to his creditors, thereby concealing said property with the intention to keep it from them.”

Section 19th of the Act of 1855, Sess. Acts, p. 435, declares that all persons shall be considered as guilty of fraud, who shall have concealed any of their properly, with an intention to keep it from their creditors.

The insolvent cannot be said to have concealed the pianos, for at the demand of his partner they were sequestered and were placed in the custody of the Sheriff before his cession.

The omission to put these pianos on his schedule cannot be said to be covered by section 20 of said Act, which provides that every insolvent debtor shall also be considered as guilty of fraud, if he shall have knowingly omitted to declare any of his property, rights or claims in his schedule.

This charge does not even aver that the pianos belonged to the insolvent or the firm of which he was a member, but leaves this essential point to be deduced from the general allegations of the petition.

As these pianos were sequestered by Grima, the partner of the insolvent, this induces the impression that Grima must have considered himself to have had a claim, or privilege upon the same, or a title thereto.

Opponents do not alledge that Beste hiowinghj omitted, but only that he omitted ; the averment is not therefore consonant with the requirements of the statute, and is essentially defective. Even if the averment had been agreeably to the law, Beste could not be deemed to have omitted the inscription of the pianos on his schedule with any fraudulent intent, for it was his partner, one of the present opponents, who had caused them to be sequestered, and knew whether they were the property of Beste or not. The object of the law in punishing the intentional omission of the insolvent to put certain property on his schedule is to prevent its concealment from the creditors. But how could this omission conceal the pianos from the creditors, when one of them had sequestered them by legal process, and they were in the hands of the Sheriff or his appointed guardians.

The second charge is, that the insolvent connived with the house of Beste <£- Laming in order to conceal or cover the pianos so that his vendors or creditors cannot render the same liable for their claims, and pretends to have sold some of them to Beste <& Laming, which he had no right to do after the sequestration above mentioned, and even then the said Wm. Beste fraudulently concealed from his creditors the proceeds of sale of said pianos.”

The intended gravamen of this charge is by no means clearly indicated.

The 24th section of the Act of 1855, p. 436, provides very severe penalties against the insolvent debtor, who has been declared by the jury, to have been guilty of fraud; one of these penalties is imprisonment for a term not exceeding-three years. The averments constituting the fraud ought therefore to be specific, and clearly enunciated, so that the accused may know what particular charges he is obliged to answer.

The second charge contains two contradictory averments, one is that the insol-v< nt conniving with a certain firm pretends to have sold some of them to this house ; the other averment is that he fraudulently concealed the proceeds.

If the insolvent did not sell but only pretended to do so, then there could be no proceeds to be concealed.

Besides, this charge does not specify whether Beste was in insolvent circumstances at the time he pretended to have sold some of these pianos.

The first charge avers that Beste attempted to sell them at public auction, but was prevented by the sequestration; the second charge declares that after the sequestration he pretends to have sold them.

The second charge does not affirm in what manner the insolvent connived with Beste & Leaning, unless it be that he pretends to have sold some of them to that house. It does not aver that he did sell any of the piauos to them.

This charge is evidently too indefinite. The third ground of the proof of fraud is, “ that the said Wm. Beste has collected monies from sundry debtors of the firm of Beste <& Grima, without accounting for the same on his schedule.

The averment is also too indefinite. It does not aver whether these monies were collected a month or years before Beste became insolvent. It does not specify the names of any of the debtors, so as to enable the insolvent to contradict the charge.

Por the above reasons the petitioners aver, that they have the right to proceed against Wm. Beste to have him convicted of fraud, and against the house of Beste & Laming to oblige them to pay into the hands of the syndic the value of said pianos, for the benefit of the creditors of Beste & Grima. They pray that Wm. Beste be forever deprived of the benefit of the law in favor of insolvent debtors in this State, and be sentenced to imprisonment according to law. They further pray that G. M. Laming & E. Beste be cited to answer this petition for the reason of having-connived with Wm. Beste to conceal or cover the said pianos and be condemned in solido to pay to the syndic of the creditors of Beste <& Grima, and for the benefit of said creditors 12750, the value of the eleven pianos.

Section 19th, Act of 1855, p. 435, directs that the creditors, charging fraud, shall lay before the court his written opposition, stating specially the several facts of fraud alleged against the insolvent debtor. Whereupon the Judge, after receiving the insolvent debtor’s answer, shall order a jury to be summoned for the purpose of deciding on the accusation.

The District Court very properly decided that the accusation in this case is not sufficiently precise to authorise the calling of a jury to try the insolvent upon so serious a charge as that of fraud.

Bests Laming also filed an exception to tlie suit on several grounds, which was sustained, and the demand against them was dismissed.

It is unnecessary to consider the grounds of the exception, for we have already shown that no sufficient cause of action against the insolvent for fraud has been shown, and that the allegations are not sufficiently specific to justify the District Court in calling a jury.

It is, therefore, ordered, adjudged and decreed, that the judgments of the District Court upon the exceptions filed in this suit be affirmed, with costs of appeal.