author: Ilsi/ey, J.

text:
    No. 252.
    G. W. Denton v. James Woods.
    All action for a partition, ivheto there exists a joint ownership of property may be maintained, whether the plaintiff is in possession or not.
    Where a person permits the legal title to property to stand on the public records in the name of aflother, the property is liable for judgments and liens recorded against the apparent owner, and a sale made under such judgments, mortgages or liens, will confer an indefeasible title upon a purchaser, but a sale made under a fieri /betas, upon a judgment rendered subsequent to the les pendens created by a bona fide sui t between the legal and equitable owners, to adjust their rights to the identical property, confers no title greater than the debtor in execution had. notwithstanding-the ■ proceeds of the adjudication are used to extinguish the liens. As liens, they remained such, and payment or subrogation conferred no title to the land.
    When propei’ty is seized by «the sheriff, and advertised to be sold on a certain day, and the sale is stayed, it gives no right to a second seizing creditor to sell that property, disregarding the 'first seizure. A good title can only be conferred under the first seizure, which must be first released lo enable a second seizure to become valid.
    The seizing creditor can only acquire at a judicial sale the right title and interest of the. debtor in execution—nothing more.
    A suit to relieve property held in common from a public servitude entires to the benefit of the co-proprietor, and a judgment obtained cannot form the basis of title against,oné’s co-owhér,; or authorize a party to prescribe.
    A . PPEAL from tlie Third District Court of New'Orleans; Buchánan, J-

      ITyams, Labatt & Jonas, for appellee.

      Elmore&*Mng,:ioT appellant;-
   Ilsi/ey, J.

The plaintiff, claiming to be the owner and possessor of an undivided half of certain real estate described in his petition, instituted the present action against the defendant, who, he alleged, held the title to the other half, for a judicial partition.

The defendant, asserting title and sole ownership to the whole of the property described, excepted to the plaintiff’s action, which he contended should have been one of revendicaiion.

The exception, having been overruled in the Court below, the defendant answered, setting up title exclusively to the whole premises, to which allusion will bo hereafter made, and he averred that the plaintiff was estopped from contesting his title.

Previous to the 24th July, 1847, the legal title to the whole of this property had stood recorded in the name of James Erwin, and on that day the plaintiff instituted against Erwin a petitory action, claiming to be the lawful owner of one undivided half of it.

After much litigation, all the questions raised in that case were finally disposed of, and judgment was rendered against Erwin, decreeing the plaintiff to be the owner of the undivided half of the property now in controversy ; and this is the title which the plaintiff exhibits, and up'on which his partition suit rests. See 6 An. 320.

The defendant produced, as his title, a deed of sale from the sheriff of the parish of Orleans, dated 17th June, 1850, under and by virtue of a writ of fieri facias, in the suit of Yeatman, Woods & Co. v. James Erwin, No. 1201 on the docket of the Fourth District Court of New Orleans, and by which deed the defendant’s authors acquired all the right, title and interest of James Erwin, the defendant in execution in the said suit, No. 1201.

The judgment in the suit No. 1201, was rendered on the 14th December, 1847, several months after the institution of the plaintiff’s suit against James Erwin, so that the sheriff’s sale to Yeatman, Woods & Co., under whom the defendant holds his title, could not effect in any manner that portion of the property which the plaintiff had claimed judicially from Erwin, and the purchasers at the said sheriff’s sale acquired thereby only whatever right and title Erwin then had to the property; that is, to one undivided half of it. Seé C. C. 2428; 2 An. 254; 4 An. 293; 11 An. 258; 9 An. 257; 13 An. 260 ; Laws 13th, tit. 7 of the 3d Partidas ; De Litigis in the Justinian Code, lib. 8, tit. 37.

If the sheriff’s sale transferred more than one undivided half of the property described in his deed, “nullum est vendido” for the remainder, as “ nemo potest plus juris ad alium transferre qiiam ipse habet."

On and prior to the 24th July, 1847, the date of the filing of the plaintiff’s petition against Erwin, several liens stood recorded against Erwin,. which affected the land in controversy, as the plaintiff up to that time had permitted the legal title thereto to stand in Erwin’s name in the public records, and had a judicial sale of this property been made under any of those liens, special or general, it would have conferred on any purchaser a title superior and paramount to that acquired by the. plaintiff in his suit against Erwin.

The basis of the defendant’s title was, however, as we have said, a sheriff’s sale, made in virtue of a judgment rendered subsequent to the said 24th July, 1847, in the suit No. 1201.

It is true, that prior to the sheriff’s sale, under the judgment in the suit No. 1201, an execution had been issued upon one of the anterior judgments, viz : that rendered in the suit of “ The Bank of Kentucky v. James Erwin,” No. 587, on the docket of the Fourth District Court of New Orleans, and which execution was made returnable on the 4th Monday of August, 1847, and that the property had been advertised under the writ in 587, to be sold on the 23d February, 1850, but no sale ever took place to satisfy that writ, and eventually it, as well as the other anterior liens, were satisfied out of the proceeds of the sale made in the suit No. 1201, to Yeatman, Woods & Co., the plaintiffs therein, who had become specially subrogated to those liens.

The defendant’s title, hisyws in re to the property, had for its basis, the judgment in the suit No. 1201, and no other.

The other claims recorded previous to the 24th July, 1847, never changed their character of liens upon the property; and, as such, they conferred no title on the purchasers at the sheriff’s sale, in the suit No. 1201.

Upon the question of estopel, the evidence is too vague to prove that the plaintiff was ever present at the sheriff’s sale. It is, however, clearly shown that the sheriff, before proceeding to offer the property for sale, read aloud from the certificate of the register of conveyances, that portion of the decree in the suit of Denton v. Erwin, which awarded to the plaintiff the one undivided half of the same property he was about to sell.

This was a notice to purchasers, that to that undivided half Erwin had no title.

As to the suit between the defendant’s authors and the city, to relieve the property of the public servitude, the plaintiff was no party to it, and the defendant’s authors might well institute such a suit for their own benefit.

The joint ownership of the property is satisfactorily proved, and the plaintiff, whether in possession of it or not (C. C. 1243,) had the legal right to resort to an action for partition. C. C. 1215, 1231. 6 M. 284. 11 L. 426. 3 Bob. 44. 4 Bob. 453. 17 L. 248. 12 L. 154. 10 L. 458. 7 La. 442. 3 L. 136.

The judgment of the District Judge was in favor of the plaintiff, and for the reasons by him, and by us now assigned:

It is ordered, adjudged and decreed, that the judgment of the District Court be and the same is hereby affirmed, at the costs of the appellant,

Behearing refused.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 845.
    John McCracken v. E. R. Poole.
    It is an attribute of sovereignty to authorize the issue of money, and to legalize its circulation as a medium of exchange.
    By Article l, § 10, of the Constitution oi the United States, no State is permitted to coin money or emit bills of credit.
    What one State is prohibited from doing, by the express language of the Constitution, cannot be legally performed by any combination of States.
    The late so-called Confederate States never reached the dignity of a de /ado Government, and, consequently, were without the legal right to coin money or emit bills of creditor authorize their circulation as a medium of exchange.
    The issuing of Confederate treasury notes was an act of rebellion, in palpable violation of law, and contracts growing out of the use of these notes, as a medium of exchange, cannot receive judicial sanction.
    A PPEAL from tlie Third District Court of New Orleans, Fellowes, J.

      Sheldon & Pardee, for plaintiff and appellant.

      Semmes <& Mott, for defendant and appellee.
   Taliaferro, J.

The plaintiff sues the defendant for $635 60, with interest, from 11th April, 1863. The action is founded upon a draft drawn as follows:

“$635 60. St. Martinsville, 11th April, 1863.

At sight, please pay to the order of Captain McCracken, six hundred and thirty-five dollars and sixty cents, for value received, and charge the same to account of your obedient servant.

E. R. Poole.-

To Messrs. Graves & Goldsmith, New Iberia, La. ”

The defendant, in his answer, admits the execution of the draft, and avers that it would have been paid in Confederate notes, according to the express understanding of the parties, had it ever been presented, which he denies ; that the draft was drawn on funds of that character, and that payment in any other kind of notes or funds never entered into the contemplation of the parties at the time of the contract. Interrogatories were propounded to the defendant, and they were answered categorically, and with great fullness and precision.

The answers clearly establish all the averments of the answer. Judgment was rendered in the Court below in favor of the defendant, and the plaintiff has appealed.

The introduction of the answers, as evidence, was objected to on the ground that their effect would be to contradict a written agreement by parol proof. The objection was overruled. We find no bill of exceptions to the ruling of the Court, nor any motion to strike out the answers, or any part of them.

The Judge a quo correctly remarks, in his judgment, that “ the rule as to- the exclusion of parol testimony to contradict written agreements, does not apply to such a case.” Kelly v. Ledoux, 11 An. Rep. 690.

It is an attribute of sovereignty to authorize the issue of money, and to legalize its circulation as a medium of exchange. No State is permitted, by the Constitution of the United States, to coin money or emit bills of of credit. Art. 1, j? 10. This power being expressly given to Congress by the Constitution, and as expressly withheld from the States, it is clear • that no State, nor any combination of States, can lawfully exercise that power. But it is contended that the power to coin money and emit bills of credit, belongs of right as well to governments de facto as to governments de jure; and, hence, to attach credit and legality to what is termed Confederate currency, so as to render it a fit exponent of value in matters of commerce, and to give it efficacy as an object of contracts between individuals, the prominent argument offered is, .that it was created and put into circulation by the authority of a government defacto. In the case of Smith v. Stewart, recently decided, the opinion of this Court was given against the pretension of the late so-called Confederate States to the dignity of a de facto government. Those States have, since :the termination of the rebellion, severally declared, in their conventions to form new constitutions, that their ordinances of secession were nullities ; an admission clearly ignoring their assumed status as a de facto goverment.

The currency, in question, had its inception in the effort made by the States lately in rebellion to subvert the United States Government, by dissevering the Union of the States and establishing a confederation in the Southern section of the republic. That currency was made exclusive within the limits of the rebellion, and that by illegal apd arbitrary force. Looting to the authority from whence it eminated, and the special purpose for which it was established, its legality as a circulating medium at an.y timé heretofore, or now, cannot receive judicial recognition.

In the case now before the Court, the illegality and failure of consideration are fully shown.

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


author: Hyman, C. J.

text:
    No. 872

      Bertoulin v. Bourgoin.
    Citation must be addressed to the defendant in the suit, otherwise it is defective aud void. K.nowi* eelge of the suit brought to the defendant in any other way, will not cure a defective citation.
    A PPEAL from the Fourth District Court of New Orleans, Théard, J.

      A. Barbes, for plaintiff and appellee.

      E. Bermudez, for defendant and appellant.
   Hyman, C. J.

A definitive judgment was rendered in this case against the defendant, Mrs. Bourgoin, after a judgment by default had been taken against her.

She has appealed, and has assigned for error that she was not legally cited—the citation not having been properly addressed.

The citation was addressed, not to defendant, but to Mrs. Bertoulin.

The citation is defective in form. It should have been addressed in the name of the defendant. See Code of Practice, Art. 179.

Without a citation having been served on the defendant, or without her appearing or answering, no judgment could legally haye been rendered against her. Code of Practice, Art. 206.

It is contended that the defendant could not have but known, in the service of this informal citation, that she was to appear and answer the suit, and that, therefore, the defect in the citation is insufficient to annul the proceedings of the lower Court.

Knowledge, on her part, that she would have to defend the suit, did not make a defective and insufficient citation a legal one, nor render valid proceedings in the suit against her. See Art. 206 C. E.already cited.

Let the judgments of the District Court be avoided, annulled and reversed, and let the case be remanded to the said Court, to be proceeded with according to law.

The plaintiff to pay the cost of appeal.


author: Taliafebko, J.

text:
    No. 948.
    In the Matter of the Succession of Thomas J. Pipkins,—Opposition to Curator’s Account.
    This case involves only questions of fact.
    A PPEAL from the Second District Court of New Orleans, Thomas, J,

      B. Egan and J. 8. Simonds, for appellants.

      Buchanan & Gilmore, for appellee.
   Taliafebko, J.

The contestation in this case relates to the adjustment ,of the attorney’s fees due by the estate. It appears that Mr. Egan was the attorney engaged by the curator to settle the affairs of the succession, and it seems that he superintended the settlement of the business generally, as the attorney of the estate. A fee of $1,000 was charged by him for his entire services. The estate was of considerable amount, and it appears to have been involved in much litigation. The curator placed the attorney’s fee upon his account, and it was opposed by Messrs. Buchanan'& Gilmore as being excessive. The services of these gentlemen, in several cases against the estate, rendered by them for the curator, were also charged on the account. In one of these cases, a fee of $250 was charged, which, by their own consent, was reduced to $100. In the other, a fee of $500 was charged. This, however, does not appear on the tableau.

The District Judge sustained the opposition of Messrs. Buchanan & Gilmore, to the extent of one-third of the amount set down for the legal services of Mr. Egan, and -allowed the opponents $333$, and Mr. Egan double that sum. Prom this judgment the latter has appealed.

The appellant contends that the opponents were never engaged as attorneys by the curator, and refers with much confidence to the testimony of the curator to establish that fact. The evidence of the curator on the subject, although seemingly confirmatory to some extent of the appellant’s declaration, by no means makes good that position. We find on page 76 of the record, that the curator said: “ I left the case to be managed by the Court and counsel. I have consulted Egan & Gilmore, both.” “The party who went on my bond, went on it with the understanding that Gilmore should also settle the estate. ”

We do not find anything in the record that inclines us to make any other disposition of this unpleasant controversy, than that already made by the Court below.

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

Reheating refused.


text:
    No. 966.
    S. N. Pike & Co. v. C. Doyle & Co.
    A proposal to compromise is n<?t admissible as.evidence against tbe party making it, unless soifi® fact or distinct liability is admitted in tbe offer.
    In actions for quasi offences tbe law has left a discretion to tbe Court ujid jury to assess tbe damages,
    A . PPEAL from the Fourth Distriot Court of New Orleans, TMard, J.

      Clarice & Bayne, for plaintiffs and appellees.

      Fellowes & Mills, for defendants and appellants.

      Brief of Clarice <& Bayne, for plaintiffs.

    * * * Discretion is left to the jury to assess damages for quasi offences. C. C. 1928, l 3.
    “In such actions the jury or Court must, in many cases, allow damages when no special damage is shown.” Martin Justice Carlin v. Stewart, % La. 76. Chataigne v. Bergeron, 10 An. 669. Varillat v. New Orleans and Carrollton Railroad Company, 10 An. 87. Blade v. Same, 10 An. 33.
    The bill of exceptions taken to the questions propounded to Johnson, is not tenable. He was questioned as to the conversations between him and defendant Doyle, and his answer, as taken down is, “ I told him I would proseoute him. Before I left, he came to the office of Longstreet, and offered to compromise it, and stop it. He and his partners came up and offered $100, and lawyers’ fees to stop the case.” This is fully authorized, under the rule established in Belogney v. Renteni, 2 Martin 175, and Agricultural Bank v. Jane, 19 La. 1. * * *

      Brief of Fellows & Mills, for defendant.

    * * * The principal testimony against the defendants was the substance of a conversation had between the defendant, Doyle, and the agent of the plaintiffs, who had threatened an expensive law suit, in which the defendant offered a compromise. This was objected to, on-the ground “ that proposals for a compromise or conversation about it, are not admissible. The Court overruled the objections, and admitted the testimony. We think the testimony should be excluded. See 19 La. 1, and cases there cited.
    In any event, whatever offer was made it was to avoid a threatened law suit, and the evidence of the conversation did not disclose any facts touching the merits of the case.
   Hyman, C. J.

The plaintiffs, S. N. Pike and S. N. Pike & Co., complained in their petition that they had been damaged, the former to the extent of $15,000, the latter to the extent of $5,000, by defendants, who. had counterfeited their brand in selling whisky.

They prayed judgment against defendant for the alleged damages.

The Judge rendered judgment, in pursuance to the verdict of a jury against defendants, condemning them to pay S. N. Pike $750, interest and cost, and S. N. Pike & Co. $250, interest and cost.

Defendants are appellants from this judgment.

On the trial, plaintiff offered to prove by Wm. W. Johnson, that defendants proposed to compromise the suit by paying $100, and the lawyers’ -fees.

To the introduction of this evidence defendants objected, on the ground that a proposal for a compromise is not admissible as' evidence against'the' party making such proposal.

The Court overruled defendants’ objection, and admitted the evidence. The defendants reserved the point, in a bill of exceptions.

An offer made to buy peace is not to be taken advantage for the purpose'of evidence, unless some fact or distinct liability be admitted'in the offer; since the offer may have resulted not frbm. the consciousness of indebtedness, but from a desire to avoid'litigation. See 19 La. page ll. .

The Court erred, in admitting the evidence, as no fact nor distinct liability wa's admitted by defendants, in their proposal for a compromise.

The evidence that was properly admitted, satisñes us that the brand, Which defendants counterfeited, for the dishonest purpose of reaping- a profit, by dissembling to the injury of others, was used by S. N. Pike & Co., in selling their whisky—not by S. N.‘ Pike.

That part of the judgment, in favor of S. N. Pike, is,' therefore, erroneous.

The exact extent of damage done by defendants, by their nefarious acts to S.‘ N. Pike & Co., is not shown by the evidence; but, in cases like this, the láw-maker has merely, left a discretion in the Judge or jury to assess damages, without proof of their exact amount. Civil Code 1928, § 3.

The assessment of damages, by the jury in favor of S. N. Pike & Co., we see no reason to disturb.

Let that part of the judgment of the District Court that condemns defendants to pay S. N. Pike $750, with ñve per cent, interest, from the date of the judgment, and cost of suit be reversed, and let that part of the judgment which condemns the defendants to pay S. N. Pike & Co. $250; with five per cent, interest, from the date of the judgment, and cost of suit, be affirmed.


author: Taeiaeerro, J.

text:
    No. 871.
    B. Laplace v. J. J. Haydel.
    Where minor heirs have a general mortgage upon the property of their tutor, they cannot have recourse upon his property specially mortgaged, if the tutor has other property subject to the general mortgage sufficient to discharge it.
    unliquidated mortgage of a minor does not prevent a sale of the property of the tutor specially mortgaged by the owner’s judgment creditor.
    If the legal mortgage of the minor heirs, has superiority of rank and priority of date to the special mortgage, the property seized will pass to the purchaser subject to the legal mortgage, and their right to pursue it by the hypothecary action will remain unimpaired.
    A PPEAL from the Third District Court of New Orleans, Fouie, J, ,

      Grandmoni and Bonford, for appellee.

      E. Bermudez and ,7. Meunier for appellants.
   Taeiaeerro, J.

In February, 1861, the jilaintiff, by executory process, caused six slaves belonging to defendant to be seized, and sold for the payment of a debt of $2,000, with interest, due him by defendant. The opponents aver, that in right of their deceased mother, former wife of defendant, they have a legal mortgage on his property, arising from his having appropriated to his own use and benefit a large sum of money, the proceeds of sale of a plantation, which was the separate property of their mother. The defendant is the father of the opponents, and was formerly their tutor. They set outin their opposition the specific amount and character of their several claims, pray judgment against the defendant for the same, and that the proceeds of the sale of the mortgaged slaves be applied to the payment of these claims.

. The plaintiff answered, deuying all the allegations of the opponents’ petition, and afterwards filed a peremptory exception to the right of the opponent to proceed in this case, on the ground that the claim they set up is unliquidated. The exception was sustained, and the opposition dismissed. The opponents thereupon appealed.

Having a general mortgage, the opponents could not have recourse upon property of their tutor specially mortgaged, if the tutor had other property subject to the general mortgage sufficient to discharge it. C. F., Art. 403.

An unliquidated mortgage of a minor does not prevent a sale of the property by the owner’s judgment creditor. 13 An. 508. 12 An. 361. same page 71, O. P. 715. 6 Rob. 51.

If their legal mortgage, as these opponents allege, have superiority of rank, and priority of date to the plaintiff’s special mortgage, the property seized would pass to the purchaser, subject to the legal mortgage on the condition expressed, and their right to pursue it by the hypothecary action would remain unimpaired. That right was reserved to the opponents by the judgment of the lower Court. But, events that have arisen since the rendition of the judgment, have annulled and destroyed their former right of mortgage, so far as it rested upon the then slaves of their tutor, and they are now left to such other recourse against him as may still exist.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, so far as it sustains the exception, and dismisses the opposition ; and that it be annulled, avoided and reversed, in all other respects, reserving to the opponents all legal rights they may have to enforce their legal claims, if any against the defendant, their former tutor. The opponents and appellants paying costs in both courts.


author: Labauve, J.

text:
    No. 989
    Joseph Lallande v. George Ingram—The Same v. R. M. Davis.
    In all oases of pledge, the pledgee must be put in possession of the thing pledged, and, if it be a claim, the evidence of the obligation must be transferred and delivered.
    Shares of stock cannot be pledged, unless they be evidenced by certificates, which must be transferred and delivered to the pledgee.
    A transfer or sale of stocks cannot be inferred, wlieii the relation of debfcof «tad Ci'editoi* exist on the face of the act of pledge.
    A FPEAL from the Fifth District Court of New Orleans, LeaUmont, J.

      Geo. L. Bright, for plaintiff and appellant.

      T. A. Bartleiie, for defendants and appellees.

      'Brief of Q. L. Bright, for plaintiff and appellant.

    * * The act of pledge which plaintiff sets up as having been passed before Hugh Madden, Notary Public, on 9th April, 1863, is fatally defective, and is entirely null and void ; that no stock had ever been issued to B. M. Davis at the time of the pretended pledge ; that the formalities and requisites of law were not observed in the alleged act of pledge.
    During the pendency of this injunction suit, Lallande, who had obtained a judgment against Davis, seized and sold the 1,000 shares, and the proceeds being in the hands of the sheriff, he took a rule on Ingram and the sheriff, to show cause why the sheriff should not pay him the full amount of his judgment, with interest and costs.
    By consent of all parties, this rule which involves the questions presented in the in j unction suit, is consolidated with it.
    We return to the injunction suit.
    By authentic act, J. E. Livaudais, agent of B. M. Davis, transferred and pledged to Lallande the 1,000 shares of stock.
    The authority of Livaudais is sufficient.
    The transfer and pledge was made on the 9th April, 1863, and it is admitted that on the same day the President of the Mechanics’ and Agricultural Pair Association was notified of the transfer and pledge, and a copy of the act was served upon him. The Association had never issued any certificate for these shares.

      The7?«)’ifacias, issued by Ingram, purported to have been issued by the Fourth District Court of New Orleans, except that it was signed by T. W. Hall, who was clerk of the Fifth District Court. An unaltered blank of the Fourth District Court was used in making out the fieri facias.

    Shall the proceeds of the sale go to Lallande or Ingram ?
    The transfer and pledge to Lallande is valid. C. C. 3100. The pledge is a contract by which a debtor gives something to his creditor as a security for his debt.
    The share of an association is something, for it is the subject of a right.
    But the counsel for Ingram refers us to Act 1855, No. 287, and to Arts. C. C. 3123, 3129; and to 17 La. 430; 1 An. 341.
    The Act of 1855, Section 1, provides that when a debtor wishes to pawn promissory notes, bills of exchange, stocks, obligations or claims on other persons, he shall deliver to the creditors, the notes, bills of exchange, certificates of stock or other evidences of the claims or rights so pawned; and such pawn so made, without further formalities, shall be valid as well against third persons as against the pledgors thereof, if made in good faith. Sec. 2. All pledges of movable property may be made by private writing accompanied by actual delivery, O. C. 3123. When a debtor wishes to pawn a claim ob another person, he must make a transfer of it in the act of pledge, and deliver to the creditor to whom it is transferred, the note or obligation which proves its existence, if it be under private signature, and must endorse it, if it be negotiable.
    C. O. 3129. In no case does this privilege subsist on the pledge, except when the thing pledged, if it be a corporeal movable, or the evidence of the debt, if it be a note or other obligation Under private signature, has been actually put and remained in the possession of the creditor, or of a’ third person agreed on by the parties. * * *
    The act of 1855, and the above-mentioned articles of the Civil Code, contemplate the existence of a negotiable instrument or a claim in writing. They speak of the delivery of promissory notes, bills of exchange, stocks, obligations or claims upon other persons, or other evidences of the claims or rights pawned.
    It is the delivery the law requires, and when a thing can be actually delivered, the delivery must be made; the law we have considered contemplates the pledging of the things of which it speaks how the delivery shall be made. But it does not mean that what cannot be actually delivered cannot be pledged. Art. 3120 says, this delivery is only necessary with respect to corporeal’ things; as to incorporeal rights, such as debts, which are given in pledge, the delivery is merely fictitious and symbolical. Art. 2453 says, the tradition or delivery of movable effects takes place by their real tradition, or by the delivery of the keys of the buildings in which they are kept; or even by the bare consent of the parties, if the things cannot be transported at the time of sale, etc. C. C. 2457. The tradition of the incorporeal rights is to be made either by the delivery of the titles and of the act of transfer, or by the use made by the purchaser with the consent of the seller. C. O. 3127. When the thing given in pledge consists of a credit not negotiable, to enable the creditors to enjoy the privilege above mentioned it is necessary, not only that the proof of the pledge be made by an authentic act, or by act under private signature, duly recorded as stated in the preceding article, but that a copy of this act shall have been duly served on the debtor of the credit given in pledge.

      Brief of T. A. Bartlelle, for defendants and appellees.

    * The evidence shows that the stock was seized and advertised for sale under Ingram’s judgment, when the sale was enjoined, and that it so remained under seizure until sold. None of the documents or records in the sheriff’s office, show any indications of the irregularities urged by plaintiff ; and a bill of exceptions was taken to the introduction of parol testimony, to contradict those records. The writ bore the seal, and was signed by the clerk of the Fifth District Court, and all the proceedings of the sheriff were in the name of that Court. But if the error existed, it did not affect the interests of the plaintiff, and afforded him no ground for injunction. Skill-man v. Purnell et als., 3 L. 494. Oakey v. Aiken, 12 An. 11. Harper v. Com. and B. B. Bank of Vicksbnrg, 15 An. 136. It would not have justified even the defendant in enjoining. Hudson v. Dangerfieldet als,.2 L. 66 ; Morgan v. Whitesides'1 Curator, 14 L. 280.
    Lallande had no right to enjoin the sale, even if die had a valid pledge on the property seized. He had merely a right of preference, and his remedy is pointed out in the Code of Practice, Art. 401; Williams et al v. Schooner Si. Stephens, 1 N. S. 417; Herbert's Heirs v. Babin el al, 6 N. S. 614; B. Antognini v. Bailey, 11 An. 275; Vanhille v. Her Husband, 5 R. 496; Gilv. Her Husband, 10 R. 28.
    But Lallande had no pledge. Nothing was delivered to him. The certificates of stock had not been issued : there was no tangible evidence of its existence, and, therefore, nothing susceptible of being pledged.
    The “ evidences of the claims ” were not, in the language of the law, delivered to the creditor. Revised Statutes 105. Civil Code, Arts. 3123, 3129. Winchester v. Ovy,s Syndic, 17L. 130. Succession of Hillisberg, 1 Au. 311. Pothier’s Cont. de Nantissement, vol. 2, p. 1179.
    Besides, the judgment Lallande is now attempting to execute, is not the one attempted to be secured by the contract of pledge, which referred to a judgment then rendered and ready to be executed ; whereas, the judgment now sought to be enforced was rendered in a suit brought long-after the execution of the contract of pledge, and could not have been the subject of it.
    Ingram became invested with a privilege on the stock by virtue of his ■seizure, and is entitled to the proceeds, unless a better right -be shown affirmatively. C. P. 722. Loze v. Dimitry et als, 7 L. 185. Payne v. Pandan, 10 An. 319, id. 728, 129. Campbell v. His Creditors, 3 R. 106. Stafford v. Dumooodie, 3 R. 276. Daflewr et als v. Girard, 11R. 193.
    The judgment, therefore, in the case of Lallande v. Davis, ordering the j>roceeds of the stock to be paid to Ingram is correct, and should be affirmed. But the judgment, in the case of Lallande v. Ingram et als, should be amended so as to allow twenty per cent, damages on the amount of Ingram’s judgment enjoined. Acts of 1833. Betts v. Mongin, 15 An. 52. Corning v. Elliott, 10 An. 753.
   Labauve, J.

On the 9th April, 1863, R. M. Davis, being indebted unto .Joseph Lallande, in the sum of $3,750 97, with interest, and cost of protest, executed through his agent, Livaudais, an act of transfer and pledge unto the said Joseph Lallande,-of the following described shares of stock, to wit:

“All and irregular, one thousand shares of twenty-five dollars each, in the capital stock of the Mechanics’ and Agricultural Fair Association of Louisiana, a duly incorporated association of this State, which have been subscribed and paid for by said R. M. Davis. ”

It is stated in the act by the agent, that to his knowledge no certificate of said one thousand shares of stock has been issued to said Davis.

George Ingram, having obtained a judgment in the Fifth District Court of New Orleans for $15,680, against said R. M. Davis, caused a deri facias to be issued, which was put in the hands of the sheriff on the 21st September, 1863, and it seems that he executed this writ, and on the 20th October, 1863, returned it by order of plaintiff, and another ;fieri facias issued on the same day. The stock had been seized under the first fieri facias, and remained under that seizure until sold under the writ-, in the case of Lallande v. Davis.

On the 17th October, 1863, Joseph Lallande enjoined the writ which the sheriff had executed, by seizing and advertising for sale the said one thousand shares of stock. The plaintiff, in his petition for an injunction, states that the sheriff, in the case of Ingram v. Davis, has seized and advertised for sale the said one thousand shares of stock in the Mechanics’ Agricultural Fair Association. That said shares are pledged to him to secure the sum of $3,750 97, and that the same cannot be seized and sold before the amount due him is satisfied, and that the said seizure is illegal; that the said seizure and advertisement are illegal, because the suit of George Ingram v. R. M. Davis was instituted before, and the judgment thereon was rendered by the Fifth District Court of New Orleans, and the writ of alias fieri facias, by which the seizure was made, and the proceedings conducted by the sheriff, was issued by the Fourth District Court of New Orleans.

The defendant, in the injunction, George Ingram, in his answer, claimed the dissolution of the injunction, with interest and damages. In the meantime Lallande obtained a judgment on his note against Davis, and under an execution issued thereon, seized and sold the said one thousand shares of stock, and took a rule upon the sheriff and Ingram, to show cause why the proceeds of said stock should not be appropriated to the satisfaction of his judgment. Ingram, in his answer, claimed the said proceeds by virtue of his prior seizure, and denying Lallande’s pledge. The rule and injunction were tried together.

The District Court dissolved the injunction, with interest, and allowed the said proceeds to George Ingram.

Joseph Lallande took this appeal.

This case involves none but questions of law.

The first presented is, whether or not Joseph Lallande has a privilege as pledgee, upon the proceeds of sale of said stock.

In all cases of pledges, the pledgee must be put in possession of the thing pledged, and if it be a claim, the evidence of the obligation must be transferred and delivered. C. C. Arts. 3100, 3119, 3120, 3122, 3123, 3129. Acts of 1855, No. 287, Winchester v. Ovy’s Syndic, 17 L. 428. Shares in stock cannot be pledged, unless they be evidenced by certificates, which must be transferred and delivered to the pledgee. In this case, there were no such certificates of stock, therefore nothing was or could be delivered to Lallande. But the appellant contends that the said stock was transferred to him and the President of the Association, was duly notified thereof, and that this transfer was good against third persons.

This position is not tenable; it was not a sale or a transfer made in that form, nor a dation en payment; the thing remained the property of the pledgor, and at his risks; the debt was not paid, nor novated; the relations of creditor and debtor still existed on the face of the act of pledge.

We are of opinion that Lallande acquired no right to said stock, either as pledgee or as transferree. The appellant further contends, that the seizure by Ingram was null, because the execution issued from the Fourth District Court, when the judgment had been rendered in the Fifth District Court of New Orleans. On that point, it appears that the execution was headed Fourth District Court, (it being a printed form of that Court) but the writ bore the seal of the Fifth District Court, and was signed by the clerk of that Court, and all the proceedings of the sheriff thereon were carried in the name of that Court. We look upon this as a clerical error, which was corrected on the face of the writ by his seal, and the signature of the clerk of that Court; but be that as it may, such informality did not regard or interest the appellant, it was a matter for the seized debtor to urge. 12 A. 11. 15 A. 136.

The appellant further contends, that having seized the said stock, he acquired a privilege on the proceeds thereof.

Subsequent to the granting of the injunction obtained by Lallande, arresting the sale of the stock seized by Ingram, he (Lallande) obtained a judgment, and on the 8th March, 1866, caused to be seized the same stock, which was sold accordingly. We are satisfied, that when Lallande seized the said stock, the same was still under seizure for Ingram who had been enjoined by Lallande from selling; besides, the appellant having, without right, prevented Ingram from proceeding on his judgment, cannot take advantage of his own wrong; for Ingram was fairly on the way to make his money, when enjoined by Lallande, who obtained a judgment, but long thereafter.

But we are of the opinion that the judgment appealed from is erroneous in allowing five per cent, interest, when the judgment enjoined bears eight per cent., and we do not think it a ease where damages should be granted.

It is therefore ordered and decreed, that the judgment rendered below bo so amended as to strike out the five per cent, interest, and that ag amended it be affirmed, the appellee to pay the costs of appeal.


author: Labatjve, J.

text:
    No. 1373.
    Succession of John Crusius.
    Subjects of Bavaria are exempt by the consular convention, entered into between tUe United State* and that kingdom on the 2ist of January, 1845, from the tax of ten per cent, on successions in this State, going in whole or in part to persons not being domiciliated in this State, and not being citizens of any other State or territory of this Union.
    A . PPEAL from the Second District Court of New Orleans, Thomas, J.

      J. Lavergne, for curator, appellee.
    JE?. Bermudez, for State, appellant.
   Labatjve, J.

The testamentary executors of John Orusius, having rendered a final account or tableau of administration of the succession of said John Orusius, prayed for its homologation.

This State, through her auditor, has opposed said tableau on the ground that said John Orusius has departed this life, and his universal and only heirs, parties not domiciliated in this State, and not citizens of any State or territory in the Union, are hound to pay to the State a tax of ten per cent, on all sums, or on the value of all property accruing to them in said succession. That it appears from said account and tableau, that the succession amounts to $133,448, upon which the State has a right to levy said ten per cent. tax.

The District J udge, after hearing the evidence, dismissed the opposition and homologated the tableau.

The State appealed.

On trial of the case below, it was admitted that the heirs of the deceased are subjects of Bavaria. We are of opinion that, under articles second and third of the consular convention, entered into between the United States and Bavaria, on the 21st January, 1845, the said heirs, although subjects of Bavaria, are not hable to pay the tax of ten per cent, herein claimed by this State, See the treaty, United States Statutes at Large, yol. 9, p. 826. This Court has given the same effect to a similar, treaty with the French Emperor. Succession of Dufour, 10 An. 391 ; and Succession of Arnoul, 18 An. 403.

We are of opinion that our learned brother decided correctly.

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


author: TAniAEERRO, J.

text:
    No. 943.
    Benjamin Meyers v. Isaac Simmons.
    Where an agent, holding a power of attorney to sign promissory notes, executes a note 4s agent for a bill of goods, and the principal promises to pay the note, thereby ratifying the act of his agent, he cannot afterwards avoid payment on the ground that the act of the agent was not within the scope of the agency.
    A . PPEAL from the Fourth District Court of New Orleans, Théard, J.

      Philips <& Levy, for plaintiff and appellee.

      A. <& M. Voorhies, for defendant and appellant.
   TAniAEERRO, J.

This action is upon a promissory note for $924, drawn by D. Beer, as agent of the defendant, to. the order of'Myers & Levy, payable sixty days after date, 13th January, 1866.

The answer is a general denial.

.The defendant specially denies that Beer was authorized by him to draw’the nóte sued upon, and that he was his agent. The cáse was. twice tried in the Court below, and each time with the same result, the rendition of judgment against the defendant, who appeals.

The signature of Beer, as agent, and his authorization to draw promissory notes, in the name of Simmons, are fully proved. The endorsement of the payees, under which the plaintiff holds, is not so fully established.

Pierson, a witness, testified on the first trial that the endorsement is in the handwriting of the payees; on the second trial, he stated that the endorsement is in the handwriting of S. J. Weilman. No authority is shown to Weilman to make the endorsement. The defendant resists the payment of the note on the further ground that it was executed for a consideration personal to the agent, and for a matter not within the range of the business of the principal. The evidence shows that the note was given to Myers & Levy, for goods purchased by Beer to take to Matamoras. It appears that Simmons purchased goods in New York, and shipped them to Matamoras. Before his departure for New York, he went with Beer to Bloom, a witness, and told Bloom that Beer wanted to buy goods for Matamoras, and asked him to let Beer have them, telling Bloom that he would pay him for whatever goods Beer might buy of him, if Beer failed to do so himself. Beer went to Matamoras in January, 1865, for the purpose of engaging in business there. Previously, he was doing a small dry goods business in New Orleans, as agent of Simmons. It appears that Simmons, after his return to New Orleans, was applied to by Myers for payment of fhe note, and that he replied to him that if he would give him time he -would pay it, but if he sued him he would not pay it. The business relations shown to have existed between these persons seems to cast some doubt upon the truth of the defendant’s averment, that the giving of the note by Beer to Myers & Levy was an act not within the scope of the agency. Be this as it may, his agreement to pay the note amounts to a ratification of his agent’s act, and defeats this ground of his defence. We think the plaintiff has made out his case, and that he is entitled to recover.

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

Rehearing refused.


author: Tabiaeebbo, J.

text:
    No. 1299.
    Harvey Tate, Administrator, v. H. A. K. Fletcher et als.
    The doctrine in Wainwrighfc, Administrator, v. Bridges, (ante page 234) reaffirmed.
    Where the consideration of the sale was a slave, who afterwards became free by the act of the sovereign power, the Courts are without authority to enforce payment of the price. They are alike without authority to give judgment for the hire of the person (slave) before emancipation.
    A PFEAL from the District Court, Parish of East Feliciana, Ellis, J.‘

      Wilson <& Williams, for plaintiff.

      A. Addison, for defendants.

      Brief for plaintiff and appellant.

    * ":f * I apprehend, may it please the Court, that the sole question presented by the pleading and the evidence adduced in this cause is, shall the plaintiff be permitted to •recover the purchase price of the “slave Dick,” as evidenced • by the notes sued on and made by the defendants, October, 1860 ?
    This suit, upon these notes, was filed with the clerk of the Sixth District Court, St. Helena, on the 2áth of December, A. D., 1862, but was not tried until May, 1866. It will not be denied or doubted, that at the time of the purchase of the “slave Dick,” October, 1860, and the execution of the notes (the price or consideration) and of their respective maturities and the filing of this action, the law, as it then was, that the defendants would be compelled by the Courts to pay and satisfy these notes. It was the duty of the defendants to pay them. Infidelity to their obligations is the cause of the present suit. If the defendant has lost the slave through the action of the State and General Governments, emancipating slaves, the loss must be borne by herself. Her title was not contingent, suspensive or conditional, but was absolute at the moment of the adjudication. It is unnecessary to say more.

      Brief for defendants and appellees.

    -;i * * We, therefore, proceed to consider the second ground of defence, and submit the following-propositions, to be sustained by argument and authorities to be cited upon the trial, viz:
    1st. That by the act of the sovereign authority, which is equally binding upon the plaintiff and defendant, and for which the said plaintiff is equally responsible with the defendant, the consideration for which the note sued on was given has been destroyed, and that the plaintiff is estopped and restrained from obtaining, and the Court from granting a judicial remedy to enforce the performance of a contract based upon African slavery.
    2d. That said contract, having been entered into on the part of both plaintiff and defendant, with reference to and under guarantees and protection contained in the laws and Constitutions of the Federal and Stato Governments upon the subject of African slavery, and those guarantees and protection which entered into, the consideration for which the note sued on was given, having been revoked, annulled and abolished by the sovereign authority of the Federal and State Governments, the plaintiff is estopped and restrained from obtaining, and the Court from granting a judicial remedy to enforce the performance of the said contract.
    3d. That by the acts of the sovereign authority, as aforesaid, the judicial authority can no longer be envoked to enforce the rights acquired by this defendant under the contract sued upon, and that the said plaintiff is estopped and restrained by equity and good conscience from obtaining, and the Court from granting a judicial remedy to enforce the performance of the said contract in favor of the other contracting party only.
    4th. That by the acts of 'the sovereign authority, as aforesaid, African slavery has ceased to be the subject of conventional obligations, and of judicial action, and it is contrary to equity, to good conscience, to good morals and public policy, to enforce the jierformance of obligations which have no longer the sanction of the laws of the land, and under which the reciprocal rights and responsibilities of parties, created by said contracts, can no longer be enforced by judicial authority.
   Tabiaeebbo, J.

This suit is brought to recover the amount of two promissory notes of a series of three, executed for the payment of the price of a slave purchased by the defendant at a probate sale. The defence is failure of consideration from the emancipation of slaves by the sovereign power.

The judgment rendered by the Court below, released the defendants from the obligation of paying the notes sued upon, but allowed the plaintiff six hundred dollars for hire of the slave during the time he had him in possession.

The plaintiff appealed.

For the reasons assigned in the late case of Wainwright, Administrator, v. Bridges, it is ordered that the judgment of the District Court, releasing the defendants from all obligation to pay the notes sued upon be affirmed, and that that part of the judgment allowing hire for the slave be annulled, avoided and reversed, the plaintiff and appellee paying costs in both courts.

Justices Labauve and Ilsbey dissenting.

For the reasons given in our dissenting opinion, in the case of Wainwright v. Bridges, No. 1305, we dissent in this case.

Zbnon Labauve, Associate Justice.

John H. Ilsbey, Associate Justice.


author: HoweMí, J.

text:
    No. 1001.
    A. G. Nalle v. J. A. Ventress.
    “Where the defence is, that by the law of the State where the contract is made, the surety is nob liable, provided he has given notice to the holder, until he has prosecuted the principal to insolvency, the statute must be filed in evidence; otherwise, the Court will presume that the law is similar to our own, and the case will be determined according to the laws of Louisiana.
    The law of the place where the contract is made fixing tho rate of interest will govern, provided thé statute is filed in evidence.
    A PPEAL from the Third District Court of New Orleans, Fellowes, J.

      Jas. Brewer, for plaintiff and appellee.

      Hays, Adams & Moise, for defendant and appellant.
   HoweMí, J.

This is an action upon a promissory note, made at Wood-ville, Miss., by W. L. Cage and the defendant, jointly and severally, and payable to the order of Edward Nalie & Co., at their counting-room in this city, and by them specially endorsed to plaintiff.

The defence is, that Ventress, the defendant, was only surety for Cage, to the Jmowledge of the payees, who were requested by defendant, before and after maturity, but without success, to take legal proceedings for the collection of the note against said Cage, who had ample means, and that plaintiff became the owner and holder of the note after maturity, and with knowledge of the above facts.

Counsel for defendant and appellant, in their brief, “insist that witness is only liable conditionally, i. e., that being merely a surety, by the law of Mississippi, he is only bound on the note after the principal, Cage, is prosecuted to insolvency, provided witness had notified the holder of the note to pursue Cage, as reqriired by the statute. ”

As this statute of Mississippi is not in evidence, we are to presume that it is similar to our own law, under which the facts, if all proven, would not release the defendant. No equities, as to the consideration of the note between the actual debtor and the payees, are pleaded.

The plaintiff, in his answer to the appeal, has prayed that the judgment be amended so as to allow ten per cent, interest, as stipulated in the note, and authorized by the law of Mississippi, where the contract was made; and has filed in evidence the statute of that State, which sustains his demand. See 8 N. S., p. 1; 3 A. 88.

It is therefore ordered, that the judgment appealed from be so amended as to allow ten instead of eight per cent, interest, and as thus amended it be affirmed, with costs.


text:
    No. 1005.
    Riggin & Co. v. Merchants’ Bank.
    A final judgment, rendered without a judgment by default being first taken, is a nullity, and will be so declared on appeal.
    A PPEAL from the Third District Court of New Orleans, Fellowes, J.

      E. W. Huntington and Roselius & Philips, for plaintiffs and appellees.

      Clarke & Bayne, for defendant and appellant.
   Labauve, J.

This is a suit brought to obtain a judgment of forfeiture of the charter of said bank, as authorized by the 20th section of the act entitled an act to establish a general system of free banking in the State of Louisiana, approved 15th March, 1855, the said section being amended and reenacted by an act approved on the 18th March, 1858.

The Attorney-General, having been duly notified of the proceedings as prescribed by law, on the 15th May, 1865, filed a petition, stating that he has ascertained that there is neither a legal nor equitable defence to the payment of the notes so alleged to have been presented to said bank, and the payment of which was refused, and praying among other things that said bank be cited, and that a forfeiture be decreed, etc.

The bank did not answer, and no judgment by default was rendered, and the Court rendered a final judgment of forfeiture of the charter of the bank, on the 12th June, 1865.

The defendant appealed.

We are of opinion the Judge erred, in rendering a final judgment, without first having rendered a judgment by default.

, This case is substantially similar in the pleadings and form of proceed-: ings to that of B. W. Huntington v. The Crescent City Bank, in the Third District Court of New Orleans, and reported in 18th An. 350. The view we have taken of the law in that case, in regard to the proceedings in forfeiture of the charter of a bank, must govern this case.

■ It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled and avoided; it is further ordered and decreed, that this case be remanded to be proceeded in according to law. The appellee to pay the costs of appeal.


author: Hxman, C. J.

text:
    No. 934.
    Taylor & Knapp v. T. L. McGee.—Rosemond Lorio, Garnishee.
    The garnishee is not required to answer, eategorióally, every question asked in the interrogatories; it is sufficient if his answers negative every fact enquired of in the interrogatories.
    A PPEAL from the Sixth District Court of New Orleans, Buplaniier, J.

      Ed. Bavsle, for appellee.

      Q. Schmidt, for appellant.
   Hxman, C. J.

In the above-named case, the plaintiffs obtained a judgment against the defendant,- McGee, caused execution to issue thereon, and propounded interrogatories to Rosemond Lorio, under authority of the statute 20th March, 1839, page 166.

The time having elapsed, in which Lorio was ordered to answer the interrogatories, a rule, on motion of plaintiff, was served on him to show cause why judgment should not be rendered against him.

Lorio had filed with the clerk an answer under oath to the interrogatories. On the trial of the rule his answer could not be found, and he asked permission to again answer the interrogatories.

Permission was refused by the Judge, and he excepted to the refusal.

■ The Court received parol evidence of the answers of Lorio to the interrogatories, made the rule absolute, and rendered judgment against him,' condemning Mm to pay the amount of plaintiffs’ judgment against the defendant, McGee.

Plaintiffs had a right to the answer of Lorio, to use as evidence, against him, and the Judge did not err in refusing to take other answers than :ihat already given. .

The question now comes up, is the answer -responsive, -to the. interrogatories ? • .

They are as follows:

‘ ‘1st. Had you in your hands or under your control, directlyor indirectly, 'at the time of the service of notice .of seizure in this case,.or since', or at the time of service of these interrogatories, or at any time-since, or-at the time of answering these interrogatories, any money, rights, credits, or other property whatsoever, directly or indirectly belonging or due to the said defendant in execution, or in which he has or had any direct or indirect interest for the whole or for a part, or otherwise ; and if yea, what is the nature, description or amount thereof; and is the same not sufficient to pay or satisfy the full amount of said judgment and costs; or if less to what amount ? You, being asked, and required to make a full disclosure in relation to the same.

“ 2d. Were you not, at the time of service of seizure upon you in this case, or since then, or at the time of service of these interrogatories, or since, or at the time of answering the same, directly or indirectly, indebted or obligated unto the said defendant in execution for anything, or for any sum whatever, whether for yourself alone, or together with others, in consequence of any sale, or exchange, or transfer, or assign» ment, or payment, or novation, or compensation, or letting, or hiring, or service, or labor, or employment, or affreightment, or insurance, or job, or work,"or rent, or interest, or partnership, or lease, or deposit; or trust, or bailment, or agency, or suretyship, or compromise, or pledge,''or in consequence of any control or obligation whatsoever, whether the same be due or to become due, and whether the interest of the defendant in execution be direct or indirect, or be for the whole, or a part’ only, or whether it be by bill, note or otherwise; and if yea, what is the nature, description, and amount thereof, and is the same not sufficient to pay, or satisfy the full amount of said judgment and costs ; or if less, what amount ? You being asked, and required to make a full and detailed disclosure in relation to the same.

“3d. Have you, at any time since the service of notice of seizure in your hands herein, made, directly or indirectly unto or with the said defendant in execution, an-y payment or novation, or compromise or arrangement, or given him any note or other written obligation, or received from him directly or indirectly, any receipt or acquittance, or received, acquired against him, directly or indirectly, aDy compensation or set-off, or demand, or note, or other obligation, or right of action ? And if yea, state the nature, description and amount thereof, and the time, place and circumstance of the same.”

The witness testified, as to the answer, thus: “The answer, in substance, was, that the garnishee had no property belonging to defendant, and that he owed Mm nothing. The answer was sworn to, I recollect distinctly, that the answer specified no debt. The garnishee did not answer each interrogatory separately. It was a general answer. ”

The interrogatories, are enquiring of Lorio, whether he had property of or was indebted to the defendant, McG-ee, at the time of the service of notice of seizure, or of the interrogatories, or since; and his answer must be taken as having reference to the time designated in the. interrogatories.

it'was a negation of every fact enquired of in the-interrogatories.

Let the judgment of the District Court be annulled, avoided and reversed, and let the suit be dismissed, as against Lorio, at plaintiffs’' posts.


author: HoweLIi, J.

text:
    No. 942.
    Citizens’ Bank of Louisiana v. Bellocq, Noblom & Co.
    A motion for a, now trial is in time, if made before the judgment lias been presented to the Judge ■ ’ for his signature, although more than three days may have elapsed after judgment was rendered.
    If- a party withdraws his application for a new trial, and does not embody his withdrawal in a bill of exceptions, h.e thereby waives his right to a hearing thereon in the Supreme Court.
    A PPEAL from the Fourth District Court of New Orleans, Théard, J.

      A. Pitot, for plaintiff and appellee.

      A. é M. Voorhies, for defendant and appellant.
   HoweLIi, J.

This is-a suit upon fifteen notes and drafts, amounting to $56,218 48, the defence to which is a general denial. Judgment was rendered against defendants on 5th February, 1866, and signed on the 9th February, 1866. Ou the latter date, before the judgment was signed, the defendants, through counsel, made a motion for a new trial, which, on objection by plaintiff’s counsel, the Court refused to entertain, on the ground that it came too late, the three judicial days allowed by law for making the same having expired; to which ruling a bill of exceptions was taken.

As said in the case of Smelsor v. Williams, 4 R. 152, we differ in opinion with the Judge a quo, and think he ought to have considered the motion; particularly, as it appears to have been filed, and it is not shown that the judgment was presented to the Judge for signature before the application for a new trial was made*» open Gourt. We think the jurisprudence settled, that until the judgment is signed, application may be made for a new trial. See C. P. 546, 548, 559; 5 N. S. 320; 4 R. 152. The right to do what is ordered, or permitted to be done within a given time, exists so long as no action of the Court, or the opposite party, has intervened to conclude that right, unless special provisions of law produce a different consequence.

Tbe defendants, however, having withdrawn their application for a new trial, and not embodied it in the bill of exceptions, have, in our opinion, waived the right to a hearing thereon. The grounds on which the application was based, are not before the Court for examination, and. to remand thq case for a new and different application^ or to renew tiñe one which was voluntarily withdrawn, would be irregular.

Upon examining the record, we discover no causa for. disturbing the • judgment on the merits. ...

Judgment affirmed. . . . \ .

Mr. Justice Lab atjve, being a stockholder, recuses himself.

Behearing refused.


text:
    No. 1204.
    Zenon Gremillon, Administrator, v. Cadet Crousillac, et al.
    Tbe act of the sovereign power of the nation abolishing slavery annulled all contracts made in rola» , tion to the traffio in slaves, and the Courts are without power to enforce them. * '
    The doctrine in the case of Wainwright, Administrator, v, Bridges, (ante page 234) reaffirmed.
    A PPEAL from the District Court, Parish of Pointe Coupée, Cooley, J,

      Lebeau & Beatty, for plaintiff and appellant.

      A. Provdsty, for defendant and appellee.

      Brief of Lebeau é Beatty, for-plaintiff and appellant.
    —This case presents but one question, namely: Were the slaves of Louisiana emancipated by the proclamation of- President Lincoln,'in January, 1863, or did they not ■in' the eye of the law, continue to be slaves until the last Louisiana-Convention in 1861, abolished slavery within our borders.
    -. It must be admitted, that if the proclamation of the President of the United States produced the effect contended for by the defendant, the subsequent action of Congress,'in its efforts to obtaiii the Constitutional majority of the States, in its opinion, necessary to abolition ; as also, the provision of our present State Constitution, tending to the same result, were supererogatory and delusive. Must we not rather conclude, that the proclamation was issued, as intended, to strike terror than to have any legal effect; and such, indeed, was the avowed intention of its author.
    We deny, then, the constitutional power of the President to abolish slavery in the different States of the Union. The act was an arbitrary one, and produced no legal effect on the status of the slave.
    In the argument of the lower Court this point is not conceded; was not strongly contested. The defendants mainly relied on the liberation of the slaves as effected by the first article of the constitution of 1861, by which they pretend they suffered eviction of the slaves for whom they gave the notes sued on.
    They contend, that by the terms -of the act of sale, with which the notes are identified, they had a special warranty against this very kind of eviction; and that, consequently, they are not bound to pay for property which has been wrested from them by the government.
    In reply to this, we say that the warranty in the act of sale is couched in the usual notarial phraseology; prolix and verbose as it is, it adds nothing to the warranty which the purchasers would have had under the law.

      Now, ever since there have been slaves in Louisian, it has been known that it was within the range of probabilities, that the slaves therein might-one clay bo freed; bnt who ever thought until now, that the vendors of slaves guaranteed against such an eventuality. The idea is preposterous: As vendors, we are not answerable for tho action of'the government; certainly not without a special warranty to that effect. The slaves we sold, ceased to bo the property of the vendees by no fault of ours; not that they had not belonged to us in full property; nob because' they were not legally slaves for life, but by an act, in which defendant, as one of the people of Louisiana, is supposed to have participated, to wit: the emancipation élausé in the present constitution.
    We then contend, that when the defendant gave his notes, he had a valuable consideration for them. That he was fully aware when he made the purchase, that the slaves he bought might become free by the events of the war which was raging; that he exacted no special guaranty on this account; that.uptó the moment O'f the liberation, in 186á, he was their master; that they weré lost to. him as property by vis major, for which', we aré fipt responsible; and, finally, that according tó the leading maximj re's peril dornino, he,- as their owner, at the moment they had ¿eaSód to exist as slaves, must bear the loss of their services in the same manner as if they had perished in an epidemic or earthquake.
    , Brief of Á, Provosty, for defendant and'appellee'.

    * The defenéó is, that the said negroés were warranted to defendant as slavei for life, and that ón or before .the s'aid sale; the Southern. States of this 'ijjniop,. including ..the' State, of Louisiana,'having rebelled against the authority of the (3-etíérál Ó-óver-tímCnt,. as a means of' repression, and. under the authority vested in him, the President of the United States had issued his .proclamation, declaring free all the slaves in the State ; and that since by the first article of the Constitution of the State, slavery was forever abolished throughout the State, thereby depriving respondent of all authority in, possession of, and title to said negroes sold as slaves; and that, therefore, the consideration for which said notes were given, has failed, etc.
    It is admitted by the parties that tho proclamations of the President of the United States, abolishing slavery, were issued before tho sale of said negroes to defendant, and that the notes sued on were given for negroes described in the act's of sale marked A and B.
    The Case was submitted to a jury, who returned a verdict for the defendant; and judgment was rendered accordingly.
    From the judgment, plaintiff has appealed.
    This case involves the following questions;
    1. Had the proclamations of President Lincoln the effect of abolishing slavery? or of so modifying the status of tho negro, as to render him an unfit object of commerce; or at all events of depriving in fact the defendant of the use and possession of the property, for which he had given tho notes sued on?
    2. If the said slaves became free only under the new Constitution of Louisiana, is not the defendant entitled to judgment under the clause of warranty?

      The defendant will rest the first question on the able charge given to the jury, by the Judge of the lower Court.
    It is clear, that the Southern States claiming the rights of belligerents, subjected themselves to all the consequences of that position, and exposed to all the chances of the conflict, their possessions and their property, and everything that could augment their strength, and enable them to prolong the contest; and it did not belong to them as belligerents,' to subject the acts of President Lincoln to the test of the Constitution and laws of the country; his proclamations, abolishing slavery, were therefore, so far as the Confederate States were concerned, tho acts of the United States, and had all the effect which power could produce; and being ratified by Congress; and since the cessation of hostilities, confirmed by the people of this State, in convention, have now the sanction of the law, and must be held to be binding.
    By said proclamations, therefore, the negroes sold as slaves became in fact free, and the obligations or notes of defendant given subsequently, were given without a cause, and can have no effect. C. C., Art. 1887, 1889, 1891; Toullier, vol. 6, p. 171, No. 167, No. 170.
    The second is equally fatal to plaintiff.
    The clause of warranty in the act of sale is ample: “ Lequel a par ees presentes, déclaré vendro, eéder transporter et abandonner des a présent, et pour toujours, avec garantie de tous troubles, dons, dettes, evictions, hvpothfeques, alienations et antees empéchements généralement quelconques et avec substitutions,” etc.
    It is admitted, that defendant has been evicted, therefore, he can refuse the payment of the price. C. C., 2535. ’ And he would recover the price if he had paid it, (0. C., 2481,) even if he knew of the issuing of the proclamation, and of its effect, (3d A. B., 327,) for the right of claiming the return of the price, after the eviction has taken place, exists in all cases, unless tho party evicted, knowing the danger of eviction, took the property without warranty, and at his'peril and risk. 5th A. K., 814; Troplong vente 480, 482, 483.
    Le vendeur est déehargé de tous dommages et intéréts, mais en restant débiteur du prix—lo. Quand il y a stipulation de non garantie; 2o. Quand l’acte de vente étant muet sur la garantie, l’acheteur comíais? ait' lors de la vente le danger de l’éviction. Marcadé, vol. 6, p. 259.
    As in this case there is an express stipulation of warranty, defendant is not only entitled to retain tho pricp, but might recover it with damages if he had paid.
   Taliaferro, J.

This action is predicated upon three several promissory notes, executed by the defendants in solido, in favor of the plaintiff, in his capacity of administrator. The notes are, dated 17th January, 1863, and made payable consecutively in one, two and three years after date, with eight per cent, interest, from their respective maturities, tho amount of each note being §2,336 66.

The defence is, a failure of consideration, the notes having been given for the price of slaves, which it is alleged have been emancipated by tho Government, and which, as property, have proved a total loss to the purchaser.

•The cáse was tried in the Court below by a jury, which found in favor of the defendant.

■Judgment was rendered accordingly, and the plain tiff prosecutes this appeal. ...

'It is argued, in behalf of the plaintiff, that ever since there have been slaves in Louisiana, it has been known that it was within the range of probabilities that the slaves therein might some day be freed, and that this eventuality was never warranted against by any vendor, and that the happening of such an event was at the risk of the buyer.

On the part of the defence, the question is raised to what extent did the proclamations of President Lincoln go in effecting emancipation, or at least in depriving the defendant of the use and possession of the property for which he had given the note sued on ? It is also noted, on the part of the defendant, that the proclamations adverted to were issued prior to the sale of the slaves in this case.

¥e do not consider it necessary to go into the consideration of these points. By the act of the sovereign power of the nation slavery was abolished; and that act, we have held, annuls contracts made in relation to the traffic in slaves, leaving the Courts without power to enforce contracts of that kind. See the recent decision in the case of Wainwright, Administrator, v. Bridges.

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

Justices Labauve and Ilsley dissenting.

For the reasons assigned in our dissenting opinion, in the case of Wainwright v. Bridges, lately decided, we dissent in this case.

John. H Ilsley, Associate Justice.

Zenon Labauve, Associate Justice.


author: Taliaeerro, J.

text:
    No. 1271.
    J. S. Courtney v. John Shelton—John Shelton v. J. S. Courtney.
    The doctrine in the case of Wainwright, Administrator, v. Bridges, (ante page 234) reaffirmed.
    A PPEAL from the District Court, Parish of East Feliciana, Posey, J.

      W. F. Kernan, for appellant.

      Fuqua & Kilhourne, and • MbYea & Hunter, for John Shelton.
   Taliaeerro, J.

The complex litigation in this case sprung out of an exchange of slaves by the parties in the year 1859. After a contest of seven years, and two trials by juries, the result was a defeat of both parties, with a decree of costsagainst Jettero S. Courtney, alternately, plaintiff and defendant.

The litigant last named has appealed,

We ai’e unable to render him relief. We feel constrained to act on the maxim, denique sit finis qucesendi.

Any decision touching the subject-matter of the controversy would be. vain and nugatory.

For the reasons given in the late case of Wainwright, Administrator, v. Bridges, decided by this Court, it is ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both courts.

Justices Labatjve and Idsley dissenting, for the reasons given in the dissenting opinion of Wainwright, Administrator, v. Bridges.

John H. Ilsbey, Associate Justice.

Zbnon Labatjve, . Associate Justice.


text:
    No. 1315.
    Geo. W. Amacker v. G. W. and L. J. Varnado, Co-Administrators.—On Opposition to final Account.
    A Judge of a Court, having formerly been counsel of record in a case brought before him for trial, while sitting as Judge on the bench,-isincoinpetent to try the case: his duty is to refer the case to a competent Judge for trial. C. P. 337 and 338.
    A PPEAL from the District Court, Parish of St. Helena, Ellis, J.

      J. E. Wilson & T. O. W. Ellis, for plaintiff and appellee.

      E. F. Bussell <& T. Ct. Davidson, for defendant and appellant.
   Hyman, C. J.

Under this title, the administrators of the succession of Celia H. Burton, deceased, filed a final account of their administration of 'the succession, which was opposed by George W. Amacker, on the ground that he was entitled to one-fourth of the succession in usufruct, the marital portion.

He prayed that the account be so amended and corrected as to allow him this portion.

E. P. Ellis was one of the attorneys, who signed the opposition of Amacker.

On the 5th May, 1864, a final judgment was rendered, recognizing opponent’s marital portion to amount to $2,309 93, and ordering the same to be paid to him, to be by him held in usufruct, etc.

This judgment was not signed.

On the 26th day of October, 1866, the opponent took a rule on the administrators, for them to show cause why the decree should not be signed nunc pro lunc.

One of the grounds taken by the administrators, in answer to the rule and in opposition thereto was, that E. P. Ellis, the Judge before whom the rule was to be tried, was the attorney for the opponent in obtaining the judgment sought to be rendered executory by his signature.

On the 20th of November, 1866, E. P. Ellis, the Judge, ordered the rule to be made absolute, and signed the judgment purporting to have been rendered on the 5th May, 1864.

The administrators have appealed.

The law, for wise purposes, has declared that, the parties may refuse to have their cause tried before a Judge, who has been employed or consulted as an advocate in the cause. See Code of Practice, Articles 337 and 338.

Our opinion is, that Judge Ellis had no jurisdiction of the cause after the administrators had attempted to recuse him. He had no right to decide on the rule, nor to sign the judgment. -His duty was to refer the case to a competent Judge.

Let the judgment of the District Court be reversed, and let the case be remanded to be proceeded with according to law.


text:
    No. 1380½.
    The City of New Orleans, Claiming Expropriation of Property for Public Uses.—In the Matter of the Writ of Prohibition, Issued in the case.
    Clerks of Courts and sheriffs have the right, every six months after a suit has been instituted in any of the Courts of this State, to demand their costs from the plaintiff, and after authenticating the amounts due, to issue execution for the collection of them: this right is accorded to no other officer of the State. Revised Statutes, p. 124, § 7.
    Experts, auditors and judicial arbitrators, are to bo paid as well ns the iaxed cost, b? the party cast at the termination of the suit.
    A PPEAL from the Fourth District Court of New Orleans, Théard, J.

      H. J). Ogden, for City.

      Collens <6 Wooldridge, for defendant.
   Taliaferro, J.

The city of New Orleans, in its corporate capacity, instituted a proceeding in the usual manner, to have certain expropriations made of private property belonging to various individuals, in order to construct roads necessary for public use and benefit. A jury of freeholders ivas called, which, after hearing evidence, made their report; and the report, having undergone some modifications, was adopted and homologated by the Court of the Fourth District of New Orleans. In its judgment, the Court below awarded “to the members of the jury, collectively, for their services heroin, eighteen hundred dollars.” A suspensive appeal was prayed for by the city from this judgment, but refused. A short time after the motion was mado for the appeal, one of the jurors, who had been called to act in the matter, caused a rule to bo served upon the corporation, to show cause why the sum of one hundred and fifty dollars should not be paid him for his services, and upon the hearing of the rule he obtained an order rendering it absolute, and issued execution. The city, by its attorney, obtained from this Court a writ of prohibition, suspending the writ of fieri facias, and staving further proceedings in the case until further order of the Court.

The subject is before us on the petition, order of prohibition, and answer.

On the part of the city, it is contended that the Court below, having rendered judgment for a certain fixed sum to the jurors, collectively, for their services, could not legally afterwards award judgment to one of them separately for his share, or supposed share of the entire amount. That this single juror, already having judgment in his favor in the aggregate, for all that lie is entitled to be paid for his services, cannot have judgment again for his part of the compensation. On the part of the juror, the plaintiff, in rule, it is held that the compehsation is that made to experts appointed by the Court to perform specific services; that such compensatión constitutes costs which are required to be paid before the termination of the suit in which they have been incurred; that experts being officers 6f Court, are entitled to be paid promptly their fees when they have accrued. We arc referred to Code of Practicó, Art. 552; to Bevised Statutes, page 12á, % 7, and to various decisions of this Court. After an examination of all the references given, we are unable’ to'find’among them any warrant of law, authorising experts employed by Courts to proceed summarily, and to issue execution to collect the’ compensation allowed them for their services.

By the act of 1855, Bevised Statutes, p. 124, \ 7, clerks and sheriffs have the right every six months, after a suit shall have been instituted in any of the Courts of this State, to demand their costs from the plaintiff; and, after authenticating the amounts due, to issue execution’for the collection of them. But to no other officers do we find this privilege granted. Compensation allowed to experts, auditors and judicial arbitrators is, by Article 552 of the Code of Practice, to be paid as well as the taxed costs by the party east; and this implies a delay of payment until the termination of the suit. In matter of expropriation, perhaps the rule is different; as in those cases, the expenses of proceedings are borne by the party requiring the expropriation to be made! But, still we find no exception in favor of, experts, which enables them to collect their Compensation before the.termination of the judicial proceedings incident in such eases to the settlement of the rights of the parties. The privilege granted to clerks and sheriffs to collect their costs every six months is founded upon obvious reasons, which do not apply to persons rendering isolated and casual services, and who are occasionally only and pro re nata officers of Court.

The case referred to in 10 Bob, page 150, recognizes the limitation of the privilege of collecting costs before the termination of the suit, to clerks and sheriffs. They can exercise that privilege only at intervals of six months, The plaintiff, in the matter now before us, if he had the privilege accorded to clerks and sheriff's, would seem to be premature in the exercise of it, for it appears that scarcely three months have elapsed since he rendered the services for which he claims to bo paid.

The city (defendant in rule) has appealed from the judgment, fixing the compensation to proprietors, and awarding to the freeholders, acting as experts, eighteen hundred dollars for their services. That allowance might, upon sufficient evidence, be shown to be excessive, and be liable to reduction. In such an event, an anomalous state’ of things might arise, if the plaintiff were permitted to proceed with his execution to recover a larger amount than would be found due him. Upon the whole, we think tho course he is pursuing irregular, and not sanctioned by law.

It is therefore ordered, adjudged and decreed, that the order of this Court rendered on the 30th of April, 1867, be made final, and the writ of prohibition then issued in this case, be perpetuated.


text:
    No. 1265.
    Hezekiah Posey, Administrator, v. John Martingley et als.
    The doctrine in the case of Wainwright, Administrator, v. Bridges, (ante page 234) reaffirmed.
    A PPEAL from the District Court, Parish of West Feliciana, Cooley, J.

      Collins <& Leake, for plaintiff and appellees.

      S. J. Powell, for defen. dants and appellants.
   Taliaferro, J.

This suit was brought to recover from the defendants ( the.sum of eighteen hundred dollars, evidenced by two promissory notes; exeouted for the payment of the price of a slave purchased by one of the defendants, at a probate sale of property of the succession of Margaret Posey, deceased, in January, 1863. ' . ' ' :

The defence is, a failure of consideration, arising from 'the emancipation of slaves by the act of the sovereign power.

There was judgment for'plaintiff, and defendants have apxséaled. The defendants have fully made out their case.

For the reasons assigned by this Court, in the case of Wainwright v. Bridges, it is ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; it is further ordered, that there be judgment in favor of the defendants, releasing them from all obligation to pay the notes sued upon, the plaintiff and appellee paying costs in both courts.

Justices Labatjve and Ilsley dissenting, for the reasons stated in the dissenting opinion of Wainwright v. Bridges.

John H. Ilsley, Associate Justice. •

Eenon Labauve, Associate Justice.


author: Taliarerro, J.

text:
    No. 982.
    M. Berwin v. Steamship Matanzas, Captain and Owners.
    The Civil Courts of Louisiana are without jurisdiction in admiralty and maritime cases.
    By the judiciary act of 1789, chapter 20, § 9: Exclusive original cognizance of all civil causes of admiralty and mai'itime jurisdiction is vested in the District Courts of the United. States, “ saving to suitors in all cases the right of a common law remedy, where the common law is competent to
    The saving clause, in the judiciary act of 1789, securing to suitors a common law remedy, where the common law is competent to give it, does not give them a remedy at common law, but a common law remedy. A proceeding inrem is a civil law remedy, and when used m the common law courts is provided for by statute.
    A PPEAL from the Fifth District Court of New Orleans, Beaumont, J.

      E. Filleul, for plaintiff.

      J. T. Tatum and H. B. Kelly, for defendant.

      Brief of E. Filleul, for plaintiff and appellee.

    i:' * * The defendant made a motion to set aside the sequestration, on several grounds, the first of which is: “ Because the court has no jurisdiction in this case, which is one arising under the admiralty laws of the United States, and in which the United States Courts have exclusive jurisdiction, ”

      The defendant, by cumulating other grounds with his plea to jurisdiction, has clearly waived it'or rendered it unavailable; he pleads in the same motion that the affidavit is insufficient according to the laws of Louisiana, and that the surety is not such as the law requires. Such pleas are incompatible with the plea to the jurisdiction of the Court. The Court is bound to exercise its jurisdiction, to act upon what is the subject-matter presented for its decision, and, therefore, the plea to its jurist diction is waived. See Code of Practice, Art. 338; 10 L. R. 228.
    But let us look into that plea.
    A cardinal principle in this matter is, “ that the presumption is that a cause is not within the jurisdiction of the United States Court, until the contrary appears.” Lowry v. Erwin, 6 R. R. 192.
    The State Courts have concurrent jurisdiction, and the judiciary act of 1789, while it gives the Federal Courts exclusive jurisdiction of maritime cases, reserves to parties the right of a common law remedy, when the common law is competent to give it. State v. Watts, 7 L. R. 445.
    But this is not a maritime case. The cause must arise wholly upon the gea, and not within the precincts of any county, to give the admiralty jurisdiction. If the action be founded on a matter done partly on land and partly on water, as if a contract be made on land to be executed at sea, or be made at sea to be executed oh land, the common law has the preference, ápd excludes the admiralty. Kent, vol. 1, 419.
    This case of seamen’s wages, the Courts' of common law admit to be o£ admiralty jurisdiction, and this is an exception in favor of seamen to the general rule, that the admiralty has’ho jurisdiction of any matter arising on land, though it be of a maritime nature, as a charter pai’ty, or a policy of insurance. Kent, vol. 1, p. 421. '
    The plea to the jurisdiction of the' Court is clearly untenable. A simple examination of the record will show that the other grounds of the motion must share the same fate; they rest on no foundation.

      Brief for defendants and, appellants.

    * * * The Court erred in refusing to set aside the sequestration. It was without jurisdiction of the ease from the beginning. When jurisdiction is wanting raiione malerioe, the Court is bound ex officio to notice it—consent of parties even cannot give jurisdiction; and the judgment of a Court wanting in such jurisdiction is null. C. P. 606, 608. 1 N. S. 200, 703. 3 N. S. 136. 14 L. 177- 6 R. 365. 11 R. 77. Parson’s Mar. Law, vol. 2, p. 710, note.
    It is apparent, on the face of the record, that the Fifth District Court of New Orleans was without jurisdiction of this action raiione materiae, for the reason.that it is a case of admiralty and maritime jurisdiction, the exclusive cognizance of which by the Constitution of the United States, and the laws of Congress passed in pursuance thereof, is vested in the Courts of the General Government.
    In the Constitution of the United States it is declared, in express terms, that the judicial power of the General Government “shall extend to all cases of admiralty and maritime jurisdiction.” Const. U. S. Art. 3 l, 2. Benedict’s Adm. p. 12.

      By tlie judiciary act of 1789, ch. 20, \ 9, “ exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction ” is vested in the District Courts of the United States, “saving to suitors in all cases the right of a common law remedy, where the common law is competent, to give it.”
    If this is a case of admiralty and maritime jurisdiction, and if the remedy sought is not one which the common law7 is com jietent to give, tho conclusion is inevitable that the State Court was without jurisdiction.
    This is a case of admiralty and maritime jurisdiction. It is an action on a contract of affreightment.
    “ The primary and principal purpose of a ship is transportation for hire, and therefore contracts of affreightment are of admiralty and maritime jurisdiction.” Benedict’s Admiralty, § 286. See also Conkling’s Treatise, p. 253. Parson’s Mar. Law, vol. 2, p. 508, and note; Benedict’s Admiralty, p. 31.
    The remedy sought in this action is not a common law remedy, if indeed any remedies afforded by the Courts of Louisiana in civil actions can be so denominated. The whole proceeding, as it appears in tho record, is utterly foreign and unknown to the common law system of remedial justice. Nor is the proceeding one, which could be had in the Courts of ordinary civil jurisdiction, under the system of jurisprudence from which that of Louisiana is mainly derived.
    “ The maritime ordinances of Prance have always been held in deservedly high estimation. Her wisest statesmen and monarchs have all along, through many centuries, given the most profound attention to the subject of maritime law; and under the administration of Courts of admiralty, filled by the ablest Judges, a System of maritime law has there been built up more perfectly than in any other country.
    * * The jurisdiction of the French admiralty has always been of the widest and most salutary character. Benedict’s Admiralty, p. 95, ? 172. See also \ 173, et seq.

    “Les tribunaux d’amirauté connaissaicnt exclusivement entre toutes personnes de tout ce qui eoncernait la construction, les agres et apparaux, avitaillement et équippement, vente et adjudication des vaisseaux, charteparties, affrétements, etc., ct tout autre concernant le commerce de la mer.” * * if * * “Ilsétaient tribunaux privilégiés, ayant une compétence exclusive et privative, qu’on ne pouvait violer, sous peine d’amende. Du reste ils étaient tribunaux naturels et ordinaires pour les hommes et ohoses de la mer. ” Beaussant, Code Maritime, Tome 1, p. 10. See also Locré, Esprit du Code de Commerce, Livre 4, tit. 2, Art. 631-7. Code de Commerce, 631, 633.
    Finally, the S^jreme Court of the United States, in the case of the Muses Taylor v. Hammons, at the December term, 1866, have decided in a case entirely analogous to this, that the State Courts are without jurisdiction of a proceeding of this nature. A properly authenticated copy of the opinion of the Court will be furnished at the hearing of this case, and reference is made, in this connection, to the laws of the State of California, under which the case of Hammons v. Moses Taylor arose. Garfield and Snyder’s Compiled Laws of the State of California, §§ 318-23, pp. 577-8, * *
   Taliarerro, J.

The plaintiff sues upon a contract of affreightment, alleging that he shipped on board the ship Matanzas, at New York, in November, 1865, one hundred and forty-four cases of merchandize, destined for Now Orleans ; that there was a failure on the part of the captain and officers to deliver nineteen of those cases according to the bill of lading. He claims judgment for $1,741 55, as the value of the lost merchandize, with privilege on the vessel, and costs of suit, etc.

A writ of sequestration was taken out, under which the vessel wa seized by the sheriff. The defendants released the seizure by entering into bond. ■

An exception was filed in the incipient stage of the proceedings to the jurisdiction of the Court, on the ground that the action being founded upon a contract of affreightment, the case is one exclusively of admiralty and maritime jurisdiction, and cognizable only by a Court of the United States. The exception embraced also an objection to the insufficiency of the affidavit, and also to the insufficiency of the bond, in the matter of the sequestration.

The exception was overruled, an answer filed, and after trial had, the Court rendered judgment in behalf of the plaintiff for the amount claimed, with judicial interest from judicial demand, and costs of suit. Defendants have appealed.

By the Judiciary act of 1789, ch. 20, g 9, exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, is vested in the District Courts of the United States, “ saving to suitors in all cases the right of a common law remedy, where the common law is competent to give it. ”

A case deoided by the Supreme Court of the United States, in December last (1866) “The steam-vessel, Moses Taylor, plaintiff in error, v. Wilson Hammons,” is adverse to the view formerly taken by many of the 9 th section of the Judiciary Act of 1789, just referred. The Court say, in the case of the Moses Taylor, that “ the contract for the transportation of the plaintiff was a maritime contract; it related exclusively to a service to be performed on the high seas, and pertained solely to the business of commerce and navigation. There is no distinction in principle between a contract of this character and a contract for the transportation of merchandise. The Court said : “ The case presented, is clearly one within the admiralty and maritime jurisdiction of the Federal Courts.” The decision settles the point, that over these cases the jurisdiction of the Federal Courts is exclusive. In conclusion, the Court remarked : “ The case before us is not within the saving clause of the ninth section. That clause only saves to suitors “ the right of a common law remedy, where the common law is competent to give it. ” It is not a remedy in the common law courts which is saved, but a common law remedy.

“A proceeding in rem is not a remedy affoi-ded by the common law; it is a proceeding under the civil law. When used in the common law courts it is given by statute. ”

In the case now before this Court, the exception taken by defendants must prevail.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; it is further ordered, that the case be remanded to tbe Court of .the first instance, with directions to dismiss the action for want of jurisdiction. The jslaintiff and appellee to pay all costs.