text:
      MILLER & AL. vs. BREEDLOVE.

    Where the return of the commission shows that the interrogatories were all answered, the circumstance of their not being answered separately and by num“ ber, does not vitiate the return.
    The supreme court will not notice objections which were not made in the court below.
    Appeal from the court of the parish and city of New-Orleans.
    On the trial of this cause, the defendant offered the testimony of witnesses examined under a commission, to the introduction of which the plaintiff objected on the ground that the witnesses had not answered the interrogatories in succession, and one by one; and that said interrogatories had not been regularly put. The objection was sustained and the defendant excepted»
    tumtfthe'coml that The interro-gat ones were ail answered, the Tieh-'TfoT1 being ateTy &e<bySnum-SéthereTnm,1"
    McCaleb, for appellant.
    The judge below erred in rejecting the evidence taken under the commission. C. P. 431, 432, 436, 437, 438: acts of 1828, p. 152, sec. 7, 8, 9.
    Porter, J. delivered the opinion of the court. This action is brought to recover the freight of tobacco, received bby the defendant as consignee. The defence set up is, that the property was damaged by the want of care of the master and officers of the steam-boat.
    On the trial, the defendant offered depositions, in evidence taken under a commission j they were objected to on the ground that the witnesses had not answered the interrogatories one by one, and that said interrogatories had not been regularly put. The court sustain-e<^ the objection and the defendant excepted.
    The return to the commission. does not s¡low as js usual, an answer to each interro-7 7 gat017 separately,and by number, but it shows they were all answered, and in the order in which they were put. Such being the fact, we do not think that the mere eireum-stance of the answers being written closely on the paper without breaks, or a statement that they were a reply to each interrogatory by its number, vitiates the return. The statement that all the interrogatories were put at once, appears to us gratuitous. We should rather conclude from each being answered distinctly and completely, that they were put separately, and that the manner in which they were spread on the paper was accidental. It is stated in the bill of exceptions that other objections were made to the testimony, on mat-. ters appearing, by the process verbal of the return; but these objections are not specially set out, and we cannot notice any which, do not judicially appear to have been made below.
    The supreme , objections “e^inthecourt
    It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and it is further ordered, adjudged anddecreeed, that this cause be remanded to the parish court, with directions to the court not to reject the testimony, because the answers are not separate to each interrogatory; and it is further ordered, that the appellee pay the costs of this appeal.

      If the owner voluntarily receive the goods at an intermediate port, such an acceptance constitutes the basis of the rule for a pro rata freight.
    Appeal from the court of the parish and city of New-Orleans.
    The petition set forth, that the plaintiff entered into a contract of charter party, with the defendants for the ship Spartan, on a voyage from New-Orleans to off the south side of the river Rio Grande. That in pursuance thereof, he filled up the ship, and stipulated to pay a certain sumTor the freight and primage, estimated at two thousand seven hundred dollars. That the ship proceeded on the voyage, and arrived at her place of destination, when, after landing a small part of the cargo, she was compelled by stress of weather to put back to New-Orleans. That a part of the cargo, consisting of flour and corn, which was brought back, was greatly damaged, and sold as unfit to be reshipped; and the remainder deposited by the defendants in the custom-house, until the Spartan could be put in readiness to proceed again on the voyage to Rio Grande.— That the defendants (instead of shipping the goods by the Spartan, after the completion of . . . . . . her repairs, and giving the plaintiff the option of filling her up with other goods, equivalent in bulk to the corn and flour which had been damaged and sold) were about to ship the goods to Rio Grande by another vessel. That the plaintiff had required of the defendants to place the Spartan at his disposal, according to the terms of the charter party, or to deliver up his merchandize, which had been refused. The petition concluded with a prayer for damagesj that the goods might be sequestered, and the defendants enjoined from shipping or exercising any control over them.
    The defendants answered, that in pursuance of the covenants stipulated in the charter party, they delivered at Rio Grande a part of the cargo, and were proceeding to deliver the whole, when, by the perils and dangers of the seas, the ship was greatly damaged, and compelled to put back to New-Orleans, to refit. That upon her arrival at the latter port, she was condemned by the port wardens, after a regular survey, abandoned to the underwriters and sold, in consequence of which they were unable to forward the remaining goods in the chartered ship, but that they procured another vessel, and were proceeding to ship the goods, when they were stopped by the plaintiff’s injunction. rphat inasmuch as they had delivered a part of the cargo, and would have delivered the residue, but for the wrongful interference of the plaintiff, they were entitled to two thousand seven hundred dollars, the stipulated freight, for which sum they reconvened and prayed judgment.
    To this plea in reconvention, the plaintiff answered, that the Spartan, at the time of sailing, was unseaworthy and incapable of performing the voyage; that she leaked badly, and damaged the cargo to the amount of two thousand seven hundred dollars, which sum they plead in compensation to the plaintiff’s claim in reconvention.
    It appeared from the testimony, that the ship leaked before leaving the Mississippi, so much so, as to require two spells at the pumps night and morning. Two days out from the Balize, she encountered a gale of wind, leaked badly during the whole voyage, and the cargo suffered considerable damage.
    It was admitted, that upon the return of the Spartan, a survey was held on her, and she was ordered to the ship yard to discharge. That five hundred bags of corn, in the bottom, were so much damaged as to require to be thrown overboard. That upon the application of the plaintiff, a further survey was held, when the remainder of the flour and corn was found to be more or less damaged, and ordered to be sold. It was sold, and produced the sum of nine hundred and eighty dollars. That the portion of the cargo not landed at Rio Grande, and not sold in New-Orleans, was, after the institution of this suit, shipped by the plaintiff to Rio Grande. That the ship was abandoned to the underwriters, soldi and purchased by Clark, one of the defendants. That after the sale to Clark, the ship was repaired, and put in as good a condition as she was when first chartered. It further appeared, that while under repair; Clark notified the plaintiff, that the ship would reload and proceed again on the voyage to Rio Grande, as soon as she could be put in readiness; to which letter, no answer appeared to have been returned by the plaintiff. The port wardens testified, that the cargo of the ship Spartan, which remained after the sale of the damaged part, would have been insufficient to ballast her, and that it would have been unsafe to have proceeded to sea with only that in her. It further appeared, that the defendants had procured another vessel to proceed to Rio Grande . „ with the remainder of the Spartan’s cargo, and were shipping the same, when stopped by the injunction and sequestration, obtained at the instance of the plaintiff. The court below rendered judgment in favor of the plaintiff, relieving him from the payment of freight, from which the defendants appealed.

      Livermore and Strawbridge, for appellants.
    Watts, for appellees, contended:
    1. The chartering owners forfeited all right to freight or charter money, by refusing to place the ship at .the disposal of the plaintiff, after she was repaired.
    2. Damages should have been given, for the violation of their contract.
   Mathews, J.

delivered the opinion of the court. The present contest arises on a contract of affreightment by charter party, wherein the defendants, Clark & Walden, agree to freight the whole of the ship Sparta, except the cabin, to the plaintiffs, for a voyage to a place near to the mouth of the Rio Grande, on the south side of said river. The vessel was fitted up by the freighters, who stipulated to pay a certain sum for the whole „ . , , . . , , freight and primage, estimated at two thousand seven h undred dollars. The shi p sailed from New7-Orleans on her intended voyage, and arrived at the place of destination, where part of her cargo was unladen, according to the terms of the contract; and whilst the crew were proceeding to discharge the balance, she was forced from her moorings by stress of weather, and compelled to put back to New-Orleans, where she arrived in a shattered and unseaworthy state, with a greater part of her cargo, some of which was in a damaged state, and was sold at the instance of the shippers. The vessel was abandoned to her insurers, was sold, bought in by Clark, one of the original owners, and repaired. While undergoing repairs, she was offered by her present owner to Vance, for the purpose of completing her voyage and earning the full amount of freight, as stipulated in the charter party, by an entire delivery of the cargo. This offer was neither accepted nor refused; but some time after-wards, the owner of the ship was about to cause a part of the cargo of the ship Spartan, which had been brought back in safety to the port a quo, to be shipped or board another r z vessel. To prevent this proceeding, the plain- ^ 0j,tajne(j an injunction, and had the goods seqUestere(j? some in the hands of the collector of the port of New-Orleans, and others by the sheriff. The defendants answered, by stating the impossibility they were under, in the first instance, to land the goods at the place of destination, the injury to the ship by the perils and dangers of the sea, her condemnation, abandonment to the insurers, and sale, as an excuse for not forwarding the cargo in the chartered ship, and as giving them a right to cause the goods to be carried in another vessel, &c. They pleaded also in reconvention, and claim the whole amount of freight, as stipulated in the charter party. Their right to recover is denied in toto by the original plaintiffs in the injunction and sequestration. On these issues, and the evidence adduced, the cause was tried in the court below, when a judgment was rendered against the owners of the ship, from which they appealed.

The material facts of the case, are those stated and admitted by the pleadings. The charter party was not made in such a manner r as to give to the freighters a temporary ownership of the vessel. All things necessary for the voyage were provided by the owners; the ship was managed by seamen procured by them, and was under the command of a master by them appointed, who signed bills of lading for all the goods. A small part of her cargo was delivered at the port of destination, estimated at about one-eighth; the balance was brought back to New-Orleans, the port a quo, some damaged and some sound; the damaged goods were sold, after a survey of the port wardens, had at the instance of the freighters; those which were sound* the-owners of the ship which had been chartered, were about to send to their pláce of destination in another vessel, but were prevented by injunction, as above stated. The note from Clark to Yance, in which the offer of the ship Spartan (after she should be repaired) is made to complete her yoyage, by carrying the remainder of the cargo to the destined place, is dated on the 9th June, 1828. To this no reply appears to have been made; but on the 10th of July, Vance addressed a note to Clark, by which he protested against shipping his goods on any other ' vessel, and required them to be carried in the Spartan, in pursuance of the charter par- ^ or jje sj10Ui(j consider himself absolved from all pliability under his contract of af-freightment, &C.

On these facts, the questions for solution are: 1. Whether the owners of the Spartan are entitled to' the full freight, as stipulated in the contract of affreightment? 2d. Whether they can recover a pro rata freight? and if so, how much?

Owners of vessels, according to the general rule on the subject of freight, are not entitled to it, until after a delivery of the goods at the place of destination, according to the charter party. The conveyance and delivery of the cargo is a condition precedent, and must be fulfilled. A partial performance is not sufficient, nor can a partial payment, or rateable freight be claimed, except in special cases, and those cases are exceptions to the general rule, and called for by principles of equity. 3 Kent’s Com.p. 173.

It seems, also, to be a general rule on this subject, that when a voyage is broken up by ordinary maritime perils, and the cargo be brought back, the charter party is dissolved, and no freight is due. (See same authority, p. 176, and the authorities therein referred to.')

In the course of the argument of this cause, it was admitted on both sides, that the ship Spartan was to be considered, in this port, after her return, as in the situation of a vessel in an intermediate port, between the termini of her voyage, where she had put in from stress of weather, and to repair damages. In this situation, the owners had a right to retain the cargo until the ship should be repaired, and might be in a condition to proceed on her voyage, and earn full freight, if the necessary repairs could be completed in a reasonable time; and if that could not be effected, to cause the cargo to be transported in another vessel. If the latter course of conduct was one of necessity, they ought'to have pursued it immediately, and transferred the whole remainder of the cargo to the vessel thus employed for its transportation to the destined place, in the least possible delay. But a change of vessels in this manner, so as to bind a freighter to the payment of full freight, is only tolerated by absolute necessity* See 1 Gal. R. ¶. 444.

]^0W according to the evidence of this case, nQ atternp( wag ma(je by the owners of the chartered ship, to send her cargo in another vessel, until after the necessity of such a change of vessels had ceased. On the 9th of June, the original ship was offered to complete her voyage, according to the stipulations of the charter party, so soon as she should be fit to proceed to sea, being then under repairs. No further communication appears to have taken place between the contracting parties, until the 10th of Jüly, when Yance having discovered that Clark was about to send a part of the cargo of the Spartan to its destination, on the schooner Hetta, protested against that conduct, and required the use of the former vessel.

The necessity of change or transfer of these remaining goods, from the vessel which had been chartered to any other, for the purpose of being conveyed to their destination, having at that time ceased, the freighter had a right to require that they should be carried in the chartered ship, or as to them, to consider the contract of affreightment as dissolved.

In the case of a general ship or one chartered for freight to be paid according to the quantity, freight is due for what the ship delivers.

But .fthe ship cannot^e Snlpeckical ses-

The owners of the vessel are therefore evi- „ . , , dently not entitled to full freight. Are they entitled to a rateable freight? and by what ratio is it to be ascertained? Neither of these questions are without their difficulties. The first is doubtful on legal principles, and the second is somewhat embarrassed by the peculiar facts and circumstances of this case.

The right “to a rateable freight is based on two grounds: 1. When the ship has performed the whole voyage, and has brought only a part of her cargo to the place of destination. 2. When she has not performed her whole voyage, and the goods have been delivered to the merchant at a place short of the port of delivery. In the case of a general shin, or . ° # ‘ ’ one chartered for freight, to be paid accord- . . ing to the quantity of goods, freight is due for ° what the ship delivers. The contract, in ....... 7 such a case, is divisible in its own nature.— But if the, ship be chartered at a specific sum, for the voyage, and she loses part of her cargo by a peril of the sea, and conveys the residue, it has been a question, whether the freight could be apportioned. The weight of authority in the English books, is against the apportionment of freight in such a case, &e. The stipulated voyage must be actually per- . formed. A partial performance is not sufficient, nor can a partial payment be claimed, except in special cases. 3 Kent’s Com. p. 80 &, 81.

Now if there be any case, in which a partial payment can be legally claimed, under a contract of affreightment by which the whole vessel is let, we are of opinion that the present furnishes one. It is true, that by the charter party, the whole of the ship Spartan was let to the freighters, except the cabin; the vessel was by them to be filled up, and they bound themselves to pay freight, at the rate of so much per barrel of five cubic feet; this rateable freight was afterwards estimated at a gross amount or sum, fixed and certain for the voyage.

The cargo was composed of dry goods, flour, corn and lumber, which would have been subjected to admeasurement in adjusting the freight. This labor was dispensed with, by aggregating the freight, which would have been erased on each seperate barrel or five cubic feet, into one whole of two thousand seven hundred dollars. If a rateable freight be allowable, the ratio by which it may be fixed, on the part of the careo deli vet ed at , , - . . . ... .the place or destination, must be taken in re-Iaiion to the whole, and in relation to the gross sum agreed on, as freight for the entire cargo.

Abbot, in his Treatise on Shipping, at page 300, part 3, chap. 7, sec. 9, after stating the doctrine to be against any apportionment of freight, in a case where a ship is chartered at a specific sum for a voyage; according to the opinion of lord C. Hardwick, as expressed in the case of Paul vs. Birch and others, 621; and to that of Malyn, supported by the authority of the case of Bright vs. Cowper, 1 Brownlow, p. 21; proceeds to say, that if the question should again arise, the determination of it would depend on the particular words of the charter party; for without a very precise agreement for that purpose, it seems hard that the owners should loose the whole benefit of the voyage, when the object of it has been in part performed, and no blame is imputable to them. In Post vs. Robertson, (1 John. 21,) the court held, that when a ship is chartered, for a specific sum for the voyage, the general rule is, that if part of the cargo be lost by the perils of the sen, a tul part conveyed to the port of destina-’ . , . ... tion, there can be no apportionment or the freight under the dm ter party. By this is intended, that no recovery can be had on the charter party itself; for a majority of the court inclined to the opinion, that there might, in another form of action,be a recovery of freight, in proportion to the amount of goods brought home. Note to p. 300, of Abbot.

The words of the charter party, now under consideration, do not appear to us to be so restrictive as to render the contract indivisible; and we are not prevented from pursuing the equity of the case, by any technical rules in relation to the forms of actions, as followed in co nmon law courts.

We therefore conclude, that the owners of the ship are entitled to a ratable freight for the goods delivered on the beach, near to the mouth of the Rio Grande, the place of destination.

Those which were brought back to New-Orleans, are of two descriptions. For that part of them, which returned sound and remained unsold, and for the transportation of which to the place of destination, the ship ©wners did not pursue the stops authorized ■by law under their contract, (hoyare entitled to no freight. But a different question remains to be settled, in relation to the flour and corn which was damaged and sold on its return, at the instance and for the benefit of the merchants. And this leads us into an examination of the right of carriers to recover freight pro rata iteneris per act*.\

If the owner voluntarily receive the goods at an intermediate port, such an acceptance constitutes tlie basis of the rule for a prorata freight.

The doctrine in this respect seems to be settled, that if the owner of the goods voluntarily accept them at the intermediate port, such acceptance constitutes the basis of the rule for a pro rata freight, i, e. if they be not forced on him by an illegal or violent proceeding. The flour and corn, in the present case, are not forced on Vance, by any illegal or violent proceeding. These articles were surveyed and sold at his instance, and it is presumed he received the price of them. The proceeding was voluntary on his part, to avoid a total loss. He is therefore to be responsible for a pro rata freight, if the port be really intermediate to which they were brought back. But how is that to be fixed in truth, as to these goods; no part of the voyage was performed, although the vessel went to the place of destination, and returned to the port a quo. The trouble and expense to the own-_ , . ers of the ship were probably great, but in relation to these articles, their labor has pro-(]ucef] no benefit to the shippers. If, however, they had been left in the possession of the former, they might have saved the whole freight, by conveying them to their destined place. Having been prevented from doing this, by the latter, some rate of freight is due; the circumstance of their subtraction,- may have caused the final failure of the voyage.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be avoided, reversed and annulled; and it is further ordered, adjudged and decreed, that the defendants and reconvenors, here appellants, do recover from the plaintiffs, the sum of four hundred seventy-six dollars and ninety-three cents, being the full freight of that part of the cargo of the ship Spartan, which was delivered at the mouth of the Rio Grande; and also the sum of five hundred twenty-three dollars and seven cents, being half freight for the flour and corn, which was received and sold by Vance, one of the shippers at the port of New-Qrleans; making together, the sum of one thousand dollars; and that the original plaintiffs and appellees pay die costs of this appeal; those of the parish court, to be borne equally by both parties.


source: Caselaw Access Project

author: Porter, J.

license: Public Domain

text:
      SUARES vs. HIS CREDITORS.

    The act ofl817, requiring oppositions to the tableau of an insolvent to be filed with,in a limited time, dies not apply to creditors who are not placed on the bilan.
    Appeal from the court of the parish and city of New-Orleans.
    The appellant, a creditor of the insolvent, not placed on bis bilan, opposed the homologation of the proceedings had before the notary. The court below set aside the opposition on the the ground that it was not filed within ten days. The opposing creditor appealed.

      Eustis, for appellant.
    The statute of 1817, does not apply to creditors of the insolvent, who are not placed ' on the bilan of the insolvent.
    JUcCaleb, contra.
    I. The judgment of the court below was correct; the meeting of the creditors was on the 7 th of December, and the opposition did not appear on file until the 18th of the same month: act of 1817; Dreux vs. his creditors, 2 Mart, n. s. 57.
    The act of i8rr, requiring oppositions to the ta-bleauof an insolvent to be filed within a limited time, does not apply to creditors who are not pia-ced on the bilan.
    2. Robinson does not show himself a creditor. Suares in exhibiting a statement of his affairs, sworn to, negatives the fact, and the record aflords no testimony that he had a claim.
   Porter, J.

delivered the opinion of the court.

A meeting of the plaintiff’s creditors took place before a notary public, and were returned into court. Before they were homolo-gated opposition was filed by the appellant, but the court rejected it on the ground that it was not made within ten days.

It appears, the party making the opposi- . . , » tion was not put upon the bilan, and we are of . . . . .. , . , opinion that the limitation on which the court below rejected the opposition, applies only to , , „ those who had notice, express or implied, of „ . , the proceedings. 1 he appellant is not tn delay for not objecting to that of which he had no knowledge. In the case of Kirkland vs. his creditors, the opposing creditor was a party to the concurso more than ten days before he made opposition. 7 Mart 511.

It is has been urged there is no proof he D 1 is a creditor, but the rule taken on him did not require him to establish he was a credi-_ „ , , . . . , tor. It called on him to show cause why the opposition should not be dismissed, because it was not properly sworn to, and filed too late; thereby admitting his right on other grounds.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that the. cause be remanded to said court, with directions to the judge not to reject the opposition because it was filed too late; and it is further ordered that the appellee pay the'costs of this appeal.


author: Mathews J.

text:
      McCALL vs. MERCIER.

    The right of commuting mortgages is granted only in respect to tacit or legal mortgages imposed by law on the estate of Tutors and Curators.
    Whether it extends to tutors who were in office at the time of the passage of the act ? Quere.

    Appeal from the court of the first district.

      In 1823 the wife of the plaintiff obtained against him .a separation of property, and a judgment which operated a mortgage upon the whole ofhis estate. The wife afterwards died, leaving three minor children, of whom, the plaintiff was natural tutor. The plaintiff being desirous to free his estate from the effect of this general mortgage, obtained from the court of probates a decree, that, upon his executing a special mortgage in favour of the minors, upon a certain tract of land and slaves, the general mortgage should be released. The steps taken by the plaintiff to obtain this decree were strictly legal, and having in conformity therewith executed the special mortgage, he required ofthe recorder of mortgages to cancel the general mortgage. Upon his refusal to do so, the plaintiff applied to the court below for a mandamus. A nisi mandamus issued, commanding the recorder to cancel the mortgage, or to show cause on a given day why a peremptory mandamus should not issue. The recorder, having, in the opinion of the court below» shown good cause; the rule was discharged and the plaintiff appealed.

      Pierce, for appellant.

      1. A mandamus should issue. C. P. Sec. I, mandamus.

    2. The proceedings are according to law. C. C. 3308; 9, 10; 331.
    Dennis, for the appellee.
   Mathews J.

delivered the opinion of the court. This is an appeal from a decision of the court below, by which that court refused to grant a mandamus to the register of mortgages, requiring him to cancel and erase a judicial mortgage, which existed on all the estate of the plaintiff.

It appears by the evidence of the case, which is composed of written documents, that McCall’s wife, in January 1823, obtained a separation of property from her husband, and a judgment against him for the sum of sixty-one thousand two hundred and four dollars and ninety-eight cents, with interest thereon at the rate of five per cent, per annum, as a privileged debt. This judgment affects all his property. The wife afterwards died, leaving three children, to whom the plaintiff is natural tutor. In consequence of his situation as such, there is also a tacit or legal mortgage on his estate. He being desirous to have these general, judicial and legal mortgages thus acquired in favour of his minor children, restricted to a port¡on of his immovable property, caused an under-tutor to be appointed for the minors, and proceeded through the regular steps pointed out by law, to obtain a decree of the court of probates, of the place where the succession of his wife was opened, ordering that he should execute a special mortgage on a certain tract of land and a number of slaves, and that the general, judicial or legal mortgage on all his estate should be released. The special mortgage was made in conformity with the decree of the court of probates, and on the exhibition of these documents, the plaintiff required of the recorder of mortgages to cancel the general mortgage, which the latter refused to do; and an application for a mandamus to compel him by order of the district court, was made by the former.

The commutation of mortgages, as claimed by the plaintiff in the present case, (his counsel contend) is authorized by an act of the legislature, passed in 1817, by which, a privilege is granted to tutors and curators of minors, and to give special mort-t . •• t gages in certain cases therein presen bed. And also by the acts 331, and 3308 of the La, Code.

mortgages imposed by law on the estate of tutors and curators. The right of commuting mortgages is granted only in respect to tacit or legal

The minors, against whose right, the restriction, from a general to a special mortgage is claimed, appear to have two distinct species of hypothecation on a'11 the property of their father; the one judicial, based1 on the judgment which their mother obtained against him, when a separation of goods was decreed; the other tacit or legal, in consequence of his situation as natural tutor. In relation to the first of these mortgages, none of the laws relied on by the plaintiff, gave the privilege of restriction or commutation. This right or privilege, is granted only in respect to the tacit or legal mortgages imposed by law on the estates of tutors and curators. The act oí 1817, and the art. of _ _ 331 of the Code, provide for a substi- . , . , tution by special mortgage, in place of sureties; and consequently afford no rules for the government of the present cause, as a father or mother is not bound to give surety for tutorship. See Moreau's Digest, vol. 2, p. 10, and the art, of Louisiana Code; act died. The art. 3308 seems to contemplate a right of change allowed to all kinds of tutors and curators,, by substituting a special mortgage, for the general mortgage, which prevails on the whole of their estates. But it is believed that this law is not applicable to the situation A 1 0f persons who assumed such offices previous A c to the enactment and promulgation. According to the constitution of the United States, no law can be passed which impairs the obligation of contracts. Our code also declares that, “a law can only prescribe for the future.” It can have no retrospective operation, nor can it impair the obligation of contracts; article 8. There is an implied contract on the part of tutors and curators, prudently and honestly to discharge their duty as such; and the law as it stood previous to the provisions above referred to>. accorded a general mortgage on all of their property, to secure the interests of those for whom they are bound to act By accepting the office of tutor or curator, the officer consents to all the obligations imposed on him to secure a faithful discharge of his duties; and to the full extent of these obligations, he is bound to the persons for whom he acts. The right to a general hypothecation on all his estate is vested in them, which cannot be restricted or lessened without destroying this right pro tanto, and thereby impairing the obligation of the contract. This doctrine was more fully developed in the case of Sabatier & al. against their creditors. See 6 Martin, n. s.p. 585 and sequel.

whether, u ex tends to tutors ■who were in of-nee at the time of the passage of the act ? Quere-

There is, however, no necessity for determining absolutely its applicability to the present case, as we are clearly of opinion, that the judicial mortgage which descended from their mother to the minor children of the plaintiff is not subjected to be cancelled in the manner attempted in the present instance, by any law on the subject of mortgages.

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


author:
Mathews J.
     Mathews, J.

text:
      SMITH & AL. vs. PIERCE & AL.

    The fact that the vfessel of the plaintiffs was run aground while towed by a steam-boat, raises a presumption of negligence and misconduct on the part of the captain of the boat, which renders its owner liable to an action.
    Owners of steam tow-boats are liable as common carriers.

      Appeal from the court of the first district.
    This was an action to recover damages from the owners of the tow-boat Grampus, for having run the vessel of the plaintiff s ashore, while towing her to sea. The damages were laid at two thousand seven hundred and forty-six dollars and twenty-three cents, and the defendants pleaded the general issue.
    The captain of the vessel testified, that about eight o’clock in the evening he was ordered by the Grampus, to put his helm two spokes to starboard, and to let it remain so until further orders. That there was a regular watch on his vessel during the night; and that the orders first received were not countermanded until after the vessel struck. That the night was clear and the surrounding objects distinctly visible. The vessel grounded on the right bank of the river about sixty yards from the shore. This testimony was corroborated by the mate and the seaman at the wheel. .
    On the part of the defendants, the pilot and mate of the Grampus, testified that the orders to the vessel were to keep her helm three spokes to starboard. That about six minutes before the accident, the vessel was ordered to starboard her helm, that the order was reiterated five or six times, to which no answer was returned from the vessel. It appeared from the testi- , , . . . , , mony, that it was customary, particularly m the night, for tow-boats to keep near the shore of the right bank in order to make the south-west pass, and that the Grampus, was in the usual and proper track. It further appeared, that the commander of the Grampus, was master of his profession, experienced in the business, and extremely diligent and attentive. The defendants requested the judge to charge the jury, that if no misconduct or negligence had been proven on their part, they were entitled to a verdict. The judge refused so to charge, and the defendants took their bill of exception. There was a verdict and judgment for the plaintiffs, and the defendants appealed.

      Workman and Pierce, for the appellants,
    made the following points in the case.
    1. The charge prayed by the defendants to be delivered to the jury, ought to have been made.
    2. The owners of the steam-boat are not liable in this case for the alleged negligence or misconduct of the captain or crew of said boat, and the plaintiffs cannot recover, because they have not shown or alleged, that the saidf owners could have prevented the acts, from which the damages they claim are said to have arisen.
    3. There is no evidence of negligence or misconduct of any other offence, or quasi of-fence against the captain or crew of said steamboat.
   Mathews J.

delivered the opinion of the court. This suit is brought to obtain reparation for damages, which the plaintiffs alleged they have suffered as owners of the brig Jesse,by the negligent and unskilful towing of said vessel by the steamboat Grampus, down the Mississippi, &c. The owners of the boat are made defendants. The cause was tried by a jury in the court below, who found a verdict for |the plaintiffs, and assessed their damages to two thousand four hundred and fifty-eight dollars and sixty-five cents, for which, judgment was rendered and the defendants appealed.

The evidence of the case shows, that the brig was run aground near the shore of the river, whilst she was lashed to the steam-boat and whilst the latter vessel was in the act of towing her to sea for hire, according to the usage in such cases. The answer contains a general denial of the allegations in thepeti-iion, and an averment that the defendants are not in any manner liable. It seems from the testimony taken in the cause, that an attempt was made on their part to prove that the accident occurred in consequence of the negligence and misconduct of the master and mariners on board the brig, and not that of the captain and crew of the steam-boat. In this, we are of opinion that they did not succeed; and even if such negligence had been proven, it is doubtful whether it would exonerate them.

There is a certain class of steam-boats called tow-boats, used by the owners in the business of towing vessels from New-Orleans down the Mississippi, to the Gulf of Mexico. This is the ordinary occupation in which they are employed, and are publicly offered to all persons who may choose to hire them for this purpose.

The first question of importance in the present case, arises out of the bill of exception to the opinion of the judge a quo., by which he refused to instruct the jury, that if no negligence or misconduct on the part of the master of the steam-boat had been proven in this case, the defendants are entitled to a verdict in their favor. It is perhaps doubtful, wjietjjer tjje refusai cf the judge to comply with the request to charge the jury as stated in the exception, would under all the circumstances of the. case, have been erroneous, allowing that the defendants are not, according to the nature of the business and trade which they carry on, subjected to all the severe responsibilities which are by law, imposed on common carriers. The fact proven that the brig of the plaintiffs was run aground, , •, ,, ... . , while under the direction and in towing by the steam-boaf, raises a presumption ofnegii- ' . gence .or mismanagement on the part of the captain of the latter vessel, which makes the ,. , , „ , . owners liable to pay for the damages conse- . . . , , , . on this accident. And this presump-^on SUpp0rj,s the claim ofthe plaintiffs, unless contrary proof had been adduced, showing at least ordinary care and diligence, such as is usually practiced by prudent men, which, the whole evidence taken together, does not establish. The boat was unnecessarily and imprudently near the bank of the river when the accident occurred. The main question to be settled is, whether the owners of steamboats, used for towing vessels, are to be held responsible as common carriers. This business is so new, that nothing strictly relating to the obligations imposed on those who pursue it, can be expected to be found in any legal treatise, or adjudged cases. Their just standing in this respect must be sought in analogy. Common carriers are those whose trade is to carry goods for hire. The trade of the owners of tow-boats in this city, is to convey, carry or tow vessels from this place down the Mississippi to its mouths, over the bar, and out to sea; and to bring from certain points near to those mouths, ships or vessels into the port of New-Orleans; and for these purposes they offer their steam-boats to serve the public for hire. According to this definition of a common carrier, and the description of the business and trade of the owners of tow-boats, it is not easy to distinguish the trade and occupations of the one from the other; and if these be similar, the same responsibilities should be attached to the conduct of both.

The fact that the vessel of the plaintiffs was run toweTbya'stelm boat,- raises a presumption of misconduct orf the part of the captain of the hoat, which renders its owner lia We to an action.

A distinction is attempted to be drawn between the towers of vessels by means of steamboats and ordinary carriers, in consequence of p0wer which the rudders of the ships have over the course of the boats; and in support of this distinction we are referred to a case reported in 2 Peters, 150, as decided in the supreme court of the United States. That case had relation to slaves, and the summary of the decision is, (as stated by the reporter) that the law regulating the responsibilities of common carriers, does not apply to the case of carrying intelligent beings, such as negroes. The carrier has not and cannot have over them the same absolute control, that he has over inanimate matter, &c.

If these be the reasons which influenced the United States court in that case, they certainly are wholly inapplicable to the present.

The undertaking of the steam tow-boats, is to carry inanimate matter, without intelligence and uninfluenced by any moral power.

The vessels which are towed are almost entirely passive. Steam is the power by which they are moved, applied indirectly through the agency of the boat which is under the direction and management of her captain. By the contract for towing, he is bound to carry them safely to their destination, unless prevented by uncontrolable accidents, or such as are not within the control of human foresight or power. If the boat be so much under the influence of the rudder of the ship, it is the duty of the master of the tow-boat to look to it. His undertaking is to tow the vessel in safety, and he has a right to assume all the authority necessary to effect that purpose. The command and care of the vessel towed, should either be subject to his command whilst she is carried by his boat, or her rudder should be placed in the hands of one of his own men. We consider a vessel thus towed, as property earned for hire, in which her crew should not be viewed as having any lawful agency. How far acts on their part, contrary to the will of the master of the boat and injurious to the success of his undertaking, would exonerate the owners from liability, need not be enquired into in the present case.

Owners of steam tow-boats are lia-bIe as commo* carriers.

We are of opinion that the situation of proprietors of tow-boats and the business A A they undertake, cannot legally authorize a relaxation of the severity and rigour of the rules applicable to commoa carriers. They differ from pilots, whose business is to point out the course or channel to be pursued by a vessel . "L coming into or going out of port. They are generaI1y> persons licenced by authority of governments to follow that trade or employment, and are responsible for damages occasioned by their negligence or default; but perhaps may not be subjected to all the rigour of the law relating to common carriers, being a species of officers instituted by license, it is their duty to act when called on; whereas the towing of vessels by the owners of the steam-boats employed in that business, is done under contracts completely voluntary.

It is however, probable, that no great difference in the responsibility of pilots and towers of boats could exist. The accidents for which both might be bound to repair, the consequent damages, must, from the similarity of the undertaking, be in all instances much alike, and only excusable by uncontrolable events.

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

A consignee has no privilege upon goods until they are delivered, unless he has received a hill of lading, or letter advising him of the shipment.

The ownership of goods is not changed by a delivery to the master of-the vessel, or to the consignee; they are however subject to the claim of the latter for advances.

Appeal from the court of the parish and city of New-Orleans.

On the 5th February, 1829, the defendant, who is a planter in the state of Mississippi, drew upon A. & S. Fisk & Co. of New-Orleans, for two thousand four hundred dollars, as an advance upon his crop of cotton. On the 1st March, the cotton was put on board a steam-boat, with instructions to the captain to deliver it to A. & S. Fisk & Co., to whom he was also the bearer of a letter of advice: The captain testified that he signed no bill of lading, it not being customary in the Lake and Pearl River trade to do so. Before the delivery of the cotton or letter of advice to the consignees, the cotton was attached at the suit of the plaintiff. A. & S. Fisk & Co. having paid, the draft and made other advances, intervened in the suit. There was judgment for the plaintiff m the court below, and the intervening party , , appealed.

Watts, for appellant,

made the following; points:

1. The cotton had received its destination from the owner, and the lien attached from that moment. The captain of the steam-boat was the agent of A. & S. Fisk & Co. to receive the cotton, and it is not usual to sign bills of lading in a neighborhood trade.

2. The letter of advice accompanied the cotton. It was attached after the owner had parted with possession and given its destination.

3. The draft was a special pledge and letter of advice, and that was in possession of claimant before the cotton arrived. It showed that the cotton was despatched to A. & S. Fisk and Co., and the money was a specific advance upon the cotton attached. If the consignees had failed, and Bracy wanted to stop it in transitu, fee could only do it on payment of the advance. Skillman vs. Bethany, 2 Mart. n. s. 104; Armor vs. Cockburne, 2 Mart. n. s. 668; 17 Massachusetts Rep. 206; 5 Taunton, 73; 4 Par-dessus, 357-8.

McCaleb, contra.

Before any letter or bill oHading reached the , . , , ,. consignees, the attachment was laid on the cotton, and must therefore hold it. N. C. C. 3214; 1 Mart. n.s. 261; 2 n. s. 104; 8 Mart, 486; 9 do. 297; 10 do. 48; 1 n. s. 284; 2 n.s. 104; 4 n. s. 668; 4 Dall. 281; 17 Mass. Rep. 197; 1 Common Law Rep. 20; Paley on Agency, p. 119; 1 Bosanquet & Puller, 563.

Mathews, J.

delivered the opinion of the court. In this case the plaintiff caused to be seized under a writ of attachment, a certain quantity of cotton, on board the steam-boat Pearl River, which was consigned by the defendant to A. & S.Fisk & co. of this city,who intervened in the present suit, and claim a lien on the cotton on account of advances made by them to the .consignor. The court below gave judgment in favor of the attaching creditor, from which the interveners appealed.

The evidence shows that the cotton seized was put on hoard the boat about the last of February or first of March, 1829, for which no bill of lading was given; but the captain of the boat had instructions to deliver ittoA.and S. Fisk &, co. to whom he was also the bearer of a letter of advice: but neither the letter nor the cotton came into their hands before the seizure under Baldwin’s attachment. On the 5th February of the same year, Bracy had drawn on the consignees for two thousand four hundred dollars, who accepted and paid his bill. On the face of this bill, the drawer requests it to be paid as an advance on his crop of cotton,said to be sixty-five bales.

uponngoodsVun?a they are delivered ed, unless he has jad!nge<or letter the shipment” °f A consignee

Under these facts, the decision of the cause depends mainly on a proper construction of the art. 3214 of the Louisiana Code. According to this article, every consignee or commission agent who has made advances on goods consigned to him, or placed in his hands to be sold for account of the consignor, has a privilege for the amount of these advances, with interest and charges on the value of the goods, if they are at his diposal in his stores, or in a public warehouse; or if before their arrival he can show by a bill of lading, or letter of advice, that they have been dispatched to him, &c. The privilege here flowed requires one of two things to create it—either that the goods should be in the o . Possess^on °f the consignee, or that he should have received a bill of lading, or letter advis-ins him of the shipment. In the present case neither one nor the other of these occurrences took place before the seizure of the goods by the attaching creditor: unless as contended for by the counsel of the [appellants, the draft or bill of exchange, drawn by the defendant on the consignees, should [ be considered as a letter of advice, as it was received and paid previous to the shipment of the cotton. The drawer requests the payment of it as an advance on his crop of cotton, estimated at 65 bales ¿ but he gives no advice of its actual or even intended shipment at any particular period. The bill was honored and paid by the drawee, more than twenty days before the cotton was put on board the boat.

Such being the circumstances attendant on thisjetter of exchange, it cannot, without a most strained and unreasonable construction, be considered as a letter [of advice relative to the consignment of the cotton. The claim of the appellants is therefore not supported by this article, of the Code. Neither can these pretensions be aided by the actual delivery of the cotton to the master of the steam-boat,"for the purpose of being conveyed and delivered to them as consignees.

The ownership of goods is not changed by a delivery to the master of the vessel, or to the consignee; they are however subject to the claim of the latter for ad-vanees.

If they had been purchasers of the cotton from Bracy, at a stipulated price, and the Iat-ter had forwarded it to them, perhaps a deli-yery t[ie person who undertook to carry it, might be considered asa delivery to the ven-dees, even without an order to that effect, and would have screened them against attachments of the creditors of the vendor.

It cannot, however, be pretended in the present case with the least semblance of truth, that the mere delivery of the cotton to the master of the boat, changed its ownership. , , . , Bracy still remained the owner, and would . „ , . have continued to be such, even alter delivery to Fishes’, subject to their privilege for advances: previous to that event it was under the entire control of the owner, and liable to be seized by his creditors. This case differs in this respect from the case cited from 7 Mart. n. s. 137.

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


author: Martin, J. Porter, J.

text:
      DESFARGE & AL. vs. DESFARGE & AL.

    If the court direct the answer to he served on the plaintiff, and that he should answer the interrogate- . . ° nes, it is a conditional order, and the plaintiff is not bound to answer, until a copy of the answer be served on him.
    Appeal from the court of probates of the parish and city of New-Orleans.
    A. M. Desfarge, by last will and testament, bequeathed to the defendants, his natural children, all his property in Louisiana; and to the plaintiffs, his brothers and sisters, all his estate in France; the will contained a declaration, that the property in France was much more considerable than that in Louisiana. Upon a liquidation of the estate in Louisiana, the defendants received one half, and were put in provisional possession of the other, upon giving bonds to refund the same to the plaintiffs.
    To recover this provisional deposit, the present action was brought, and resisted by the defendants on the following grounds: — First, That by the laws, both of France and Louisiana, the testator was authorised to bequeath to his natural children, and they to receive from him, to the amount of one half of his property. Second, That the testator left an estate in France, far exceeding in value that in Louisiana, and of which the plaintiffs were in possession. To establish the second ground of defence, the defendants filed with their answer, interrogato- . ries to be propounded to the plaintiffs; and on the 5th May, 1825, the court made the following order: “Let the answer of the defendants be served on the plaintiffs, and let them answer the interrogatories, as therein propounded.” No steps were taken by either party to have the interrogatories served on the plaintiffs, and they remained unanswered. On the 6th February, 1829, the defendants’ counsel had the cause set for trial, and prayed that the interrogatories might be taken pro confessis. The court below was of opinion, that the defendants should have caused the service of the interrogatories, and gave judgment on the merits in favor of the plaintiffs, from which the defendants appealed.
    Seghers, for appellant.
    Dennis, for appellee,
    urged the following points:
    1. There was no occasion to answer the interrogatories propounded by the defendants.
    2. The courts in this country, have no control over property situated in France.
   Martin, J.

delivered the opinion of the court. The will ot the late A. M. Desfarge, the brother of the petitioners, and natural father of the defendants, free persons of co-lour, appointed one of the latter testamentary executor, and contains a bequest of all the testator’s property in Louisiana to his said children, and all his property in France to the petitioners; and the testator avers, that the latter property is much more considerable than the former. The estate, in Louisiana, having been liquidated, the defendants obtained a surrender of the balance to them, on their giving bond and security to account for one half to the absent legal heirs.

On suit being instituted on this bond, they pleaded that the petitioners had in their possession estate of the testator much more valuable than what is now in the defendants’ hands, and filed interrogatories, by the answer 'to which they sought to establish this fact. The judge directed the answer of the defendants to be served on the petitioners, and the latter to answer the interrogatories. Several years had elapsed after this, when the defendants’ counsel had the cause set down for hearing, and at the trial contended, that as the interrogatories wore not answered, they ought to be taken pro confessis. The petitioners’ counsel urged, that the order to answer was conditional and contingent, dependent on the service of the answer, which had not taken place; and that if the order was absolute, still the interrogatories could not be taken pro confessis, as they were framed in such a manner as to render specific answers, to which affirmative or negative answers could not be substituted. The questions not being, whether an estate of the testator, equal to that in the defendants’ hands, was not in the possession of the petitioners; but what was tho amount of the estate of the testator, in the petitioners’ possession? and the like.

if the court dí-rect the answer tobe served on the plaintiff, and that he should answer the interrogatories, it is a conditional order and the plaintiff is not bound to copy^of the'an* ewer be served on him.

On the first proposition, we think the petitioners had not an absolute right to have their interrogatories answered; and the judge’s ° . . . . ° order was conditional or contingent, and the petitioners were not bound to answer, till 1 served with a copy of the answer.

We are not ready to admit, that the form ^ ^ interrogatories would have prevented their being taken pro confessis, had the order been absolute.

But we are of opinion, that as the order 1 Was in an unusual form, the defendants, who in our opinion , had a legal and equitable de* fence, ought not to be the victims of the view which their counsel took of it; and more especially, as the will presents the idea which they rely on, of the testator having a larger estate in France than in Louisiana; and our remanding the case, may subject the petitioners to delay only, while our affirmance of the judgment may eventually deprive for ever the defendants of the provision for their support, left them by their natural father.

The legislature has made a provision for a case like the present, Code of Practice, 906. It has authorised us, when we believe we cannot definitively pronounce on the case, in the state in which it is, because the parties have failed to adduce the necessary testimony, to remand the cause.

It is therefore ordered, adjudged and decreed, that the judgment of the court of probates be annulled, avoided and reversed, and the case remanded, with instructions to proceed therein according to law, the appellees paying costs in this court,

If a tableau be homologated, in all parts which have not been opposed, &c. the homologation is absolute.

,, It a tableau bo homologated, m all parts which have not been opposed, &c. the homologation is absolute,

Appeal from the court of the parish and city of New-Orleans.

The facts are fully stated in the opinion of the court.

Porter, J.

delivered the opinion of the com-t. The tableau of distribu ton in this case was returned into court, in the month of June, 1827. On the 22d of that month, and 7 in the same year, several oppositions were filed to it. Among others, the executors of Benjamin Morgan, the heirs of Wm. Kenner, James Brown, , and J. Humphreys, opposed the recognition on the tableau, of Thadeus Phelps Co. as creditors,

On the 12th June, 1828, the following judgment was rendered by the parish courts “It being proved to the satisfaction of the court, that the rule taken on the creditors and others, to show cause why the tableau of distribution, filed in the premises, should not be' homologated, had been duly published according to law; therefore, it is ordered, by the court, on motion of George Eustis, Esq. , . of counsel for the syndics herein, that the said tableau of distribution be homologated and confirmed in all and every respect, in which they are not opposed by the different creditors who have filed their opposition thereto.

On the 11th of February, 1830, the cause was set for trial, on the opposition of Brown, Humphreys, Morgan’s executors, and others, and no proof having been offered by them in support of their allegations, the court directed their opposition to be dismissed, and the tableau, so far as it regarded the claim of Phelps & Co. to be confirmed.

Six days previous thereto, however, an opposition was filed by the appellants to the tableau, on the same grounds as those set forth by Humphreys, Morgan and others. It was set for trial on a subsequent day, and the judge being of opinion it was filed too late, dismissed it. From that decree, the present appeal is taken.

On behalf of the appellants, it is contended, that their objections to the tableau did not come too late; that the court, in its judgment of 1828; reserved the matters aow contested, and that until a decree of homologation, signed by the judge, any creditor may contest the correctness of the tableau. 652.

The reservation relied on, is in these words: “that the said tableau be confirmed, in all and every respect in which they are not opposed by the different creditors who have filed their opposition thereto,” and we do not thinlc, that on a fair construction of it, the appellant’s case is sustained. Its phraseology does not certainly possess all desirable clearness, but we do not think it was intended to reserve to creditors, other than those who had already made opposition, the right of opposing it at a future time. The delays too frequently attending the settlement of insolvents’ estates, are often a source of great expense, and work a serious injury to all concerned. Unless, therefore, the judgment now under consideration, clearly extends the time of making objections to the tableau, further delay should not be allowed. To our minds it is doubtful, and we cannot open the case for further litigation. If we did, the insolvents’ estate wopld not be much nearer settlement than it was two years ago* It is now, we believe, nearly five since the bilan was filed. If the J . appellants considered, that the opposition made by other creditors on this ground, dispensed them from the necessity of filing one, they ought to acquiesce in the judgment rendered. If they did not, they had two years to present their objection, and at the end of that time, we think it would be a great hardship to the other creditors, to await the litigation of this question, before a dividend could be made.

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


author: Martin, J.

text:
      SERAPURN vs. LA CROIX.

    The purchaser of mortgaged premises is not subro-gated to the mortgagee’s right, although he pay the price to the mortgagor, who immediately and in his presence pays it over in discharge of the mortgage.
    It is immaterial, whether the mortgagor use his money, or any other, to discharge the mortgage.
    Judgment against the tutor is prima facie evidence against a third possessor, but if collusion be pleaded, and it be denied that the tutor was not chargeable for any thing, evidence to the contrary must be produced by the minor.

      Appeal from, the court of the parish and . city of New-Orleans.
    The plaintiff, having obtained a judgment against her mother and guardian for her portion of her father’s estate, sought to satisfy the same, by the seizure and sale of a house and lot, which her mother had purchased after the death of her father, and subsequently sold to the defendant. It was proved, that the father of the plaintiffleft a considerable property, and that the mother administered on the estate of her children.
    The defence set up was, that the purchase money, paid by the defendant for the house and lot in controversy, having been employed by the mother of plaintiff to pay her vendor a balance due, he, the defendant, became of right subrogated to the privileges of the- vendor of the plaintiffs mother. The evidence showed, that a balance of seven thousand dollars was due from the mother of the plaintiff to her vendor, and that when the defendant purchased the -property, Ac,.the defendant, the mother of the -• .’plaintiff, and her vendor, went before a notary, wJn. .whose presence the defendant paid to the plaintiff’s mother the price of the sale, six thousand dollars in cash, and furnished his notes for the remainder. She immediately, in presence . . of the notary and witnesses, paid to her vendor the balance due, who gave her a receipt in full, and released the mortgage on the property. On the trial the defendant offered a witness, to prove that the money paid by the plaintiff’s mother to her vendor, was the same money which at the same moment was paid by the defendant for the property. The court refused to admit the evidence, and the defendant excepted. The court also (notwithstanding the defendant’s objection) permitted the plaintiff to read in evidence the record of the suit of the plaintiff against her mother. There was judgment for the plaintiff, and the defendant appealed.
    Dennis, for appellant.
    1. The subrogation in favor of the appellant took place of course, and independent of the will and consent of the other parties. Old C. C. p. 29, art. 151.
    2. The court erred in rejecting the evidence offered.
    3. The judgment of the plaintiff against her mother, ought not to be proof against third persons.

      Canon, contra.

      1. A mother has no right to purchase pro- „ . . , , perty fur her minor child.
    2. A minor can neither alienate nor purchase, without the authority of justice. Sarupurn vs. Debuys, 6 Mar. n. s. 18.
   Martin, J.

delivered the opinion of the court. The plaintiff seeks to obtain satisfaction of a judgment against her mother and tutrix, by the seizure and sale of a house and lot, purchased from the latter by the defendant.

He resisted her intentions, under a legal subro'gation to the right of the mother’s vendor, to whom he alleges he has paid six thousand dollars, the balance of the consideration of the sale from this vendor to the plaintiff’s mother. The plaintiff contends, this sum was paid by the defendant to her mother, as the consideration of the sale between her and himj and that he did not pay her mother’s vendor, but on the contrary, she, the mother, after having received the defendant’s money, paid a larger sum to her own vendor, on the balance of the price due to the latter.

There was judgment for the plaintiff and the defendant appealed.

The facts of the case, as they appear . from the record, are, that the plaintiff’s mother, having purchased the premises, while she was the plaintiff’s tutrix, for twenty thousand dollars, six thousand dollars of which she paid down, and had a time for the balance, giving two notes of seven thousand dollars each, payable at six and twelve months, and afterwards sold the premises to the defendant, through the ministry of the register of wills, for twelve thousand dollars, payable six thousand dollars in cash, and the balance in two notes of three thousand dollars each, at six and nine months. After the adjudication, the defendant, the plaintiff’s mother, and her vendor, went before a notary, in whose presence the defendant paid to the plaintiff’s mother the said sum of six thousand dollars in Cash, and delivered her his two notes for three thousand dollars each, and shejmme-diately paid, in the presence of the notary and witnesses, the sum of seven thousand dollars, to her own vendor, who acknowledges to have therefore received ano-tber sum of seven thousand dollars, in discharge of the two notes of the plaintiff’s mo* ther, gave her a discharge of the balance due on the premises, and consented to the radiation of the special mortgage she had for t]ie payment of the balance.

The purchaser of mortgaged premises is not subrogated to the mortgagee’s right although he pay the price to the mortgagor who immediately and in his presence pays it over in discharge of the mortgage.

On these facts, the appellant’s counsel has contended, that it is apparent from the attendance of the vendor of the plaintiff’s mother before the notar/, the payment of six thousand dollars in cash, and the delivery of two notes for three thousand dollars, together with the immediate payment received by the plaintiff’s mother’s vendor, that the appellant gave his money to her for the purpose of her immediately paying her own vendor, which was accordingly done; and hence it has been urged, that the appellant, being the owner by the adjudication of the premises, had interest to discharge the mortgage which the former vendor had thereon, and the mortgage having been discharged out of his the appellant’s money, he is legally subrogated to the mortgagee, as effectually as if he had directly paid the money into the mortgagee’s hands.

The parish court thought differently, and * ° J' we think correctly. The appellant’s aim * 1 1 was to have the original vendor’s mortgage discharged, and the entry of it in the books of the register of mortgages erased, for by an act to which he was a party, the mortgagor discharged the mortgage, and con-seated to his mortgagor having the registry of it erased. The appellant’s money became eo instanti that he paid it, her imme-diale vendor’s money, and she tior he paid it in discharge of the mortgage.

it is imma. terial, whether the,. mortgagor use his money, or any other, to discharge the inert-sas^

Our attention has been called to two bills of exceptions to the opinion of the court, w ho refused evidence of the plaintiff's mother having discharged the mortgage, by the payment of the very money she received from- the appellant.

The other, to the admission on evidence (notwithstanding the appellant’s objection) of the record of the plaintiff’s suit against her mother.

The parish court, in our opinion, did not L * err. It was immaterial whether the appel-1 k lant’s vendor used the money he had just J J ' paid her, or any other money of her own, to pay her debts to her mortgagee.

The record of the suit against the plain-ther, is prima facie evidence oí the debt. Had the appellant pleaded collusion and fraud, and that nothing was due to the plaintiff*by her mother; this, as it-might not be directly proven, ami must have been met by evidence of an actual debt, might have thrown the burden of the proof on the r appellee, r r

Judgment against the tutor Is prima facie evidence against buthirffPcoiSn iTbe'denied that that the tutor was not charges-ble for any thing, evidence to the contrary must be produced by the minor.

^ ^ therefore ordered, adjudged and decreed, that the judgment of the parish court , m , • t be affirmed with costs.


author: Martin J.

text:
      WILSON vs. McHUGH & AL.

    Where the plaintiff failed to make out his case, judgment of non suit was properly rendered.
    Appeal from the court of the parish and city of New-Orleans.
    The plaintiff alleged that he purchased of McHugh, a tavern establishment with its furniture, fixtures and stock. That he remained in possession thereof about five months, when during a temporary absence from the state, and while the establishment was in charge of his agent, McHugh topk forcible possession, and sold it to Sears, the other defendant. He prayed that the defendants be decreed to deliver up the establishment together with damages. The defendants pleaded the general issue.

      It appeared from the evidence, that Me-tt i t i , , , ,. , Hugh had agreed to sell out the establishment to the plaintiff, who was his bar keeper, but no price was fixed upon. Alter this agreement to sell, the plaintiff carried on the business in his own name, furnished supplies and paid the rent. That prior to his departure from the state, an inventory was taken of the furniture and stock to enable the plaintiff to come to a settlement with McHugh, but it did not appear that any settlement ever took place. After the departure of the plaintiff, McHugh took possession of the establishment, and as stated in the petition, sold it to Sears, the other defendant. There was judgment of non-suit in the court below, and the plaintiff appealed.

      Roselius, for appellant,
    assigned for error.
    1. The court below erred in giving judgment of non-suit, because, as regards moveable property, delivery and possession is the best evidence of the completion of the salé.
    2.. The plaintiff is entitled to recover the damages claimed, because there is sufficient proof on the record to establish the loss sustained by him. Durnford vs. the syndics of Brooks, 3 Mart. Rep. 322, C. C. art. 1916, 1917,2243. Pothier con de vente No. 319. Toulier vol. 7, p. 54, No. 35.
    Sterrett, contra.
    To constitute a perfect sale, three things are necessary: the thing sold, the price and the consent; and there is no proof that any price was fixed upon. C. C. art. 2414, 2437.
   Martin J.

delivered the opinion of the court. The plaintiff sets forth he purchased from the defendant McHugh, a tavern establishment with the furniture, fixtures and stock, and was put in possession thereof, and afterwards, in his absence, the said defendant illegally possessed himself of the premises, and sold and delivered them to the other defendant. The petition concludes with a prayer for damages.

The defendants severed in their pleas; they both pleaded the general issue; but the last defendant added thereto a plea of recon-vention.

There was a judgment of non-suit, and the plaintiff appealed. His counsel has assigned as errors apparent on the face of the record, that,

1. The court erred in non-suiting him, as with regard to personal property, delivery of possession is the best evidence of the completion of the sale.

Where the plain-judgment of non fluit was properly rendered.

2. The plaintiff was entitled to damages, as there was evidence of the loss he sustained, and the profits he was deprived of, as there is a statement of facts, we have examined the case on the merits, independently of the assignment of errors.

From the testimony, the judge a quo, has concluded no complete sale took place, as it does not appear that any price was agreed on. The plaintiff was in possession of the premises as bar keeper of the defendant Wilson, who entered into some arrangements for a sale; during this period the plaintiff, continuing as bar keeper to be in possession. After his departure, the defendant McHugh, seeing the bargain had not been brought to a conclusion, sold to the other defendant.

Such is the view the inferior judge has taken. The testimony is far from being com-i . • , , . . pl6t6 61Ü16V W&y^ but in our opinion propon» derates in favour of the defendant.

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


author: Matiiews, J.

text:
      LOUISIANA BANK vs. KENNER’S SUCCESSION.

    Whether stipulations in contracts of partnership, by which they may be continued after the death of one of the partners, for the benefit of his heirs, be binding on the latter, without their consent? Quera.

    According to the laws and usages of commerce, as they prevailed at the time of the adoption of the Code of 1808, no stipulation could be made by partners, absolutely binding on the heirs of one of them who should die, to continue the partnership after his death, and be made responsible for contracts made in the partnership name.
    Appeal from the court of probates, of the parish of Orleans.
    This was an action to recover from the estate of William Kenner, deceased, twenty-nine thousand seven hundred and sixty-six dollars and twenty-six cents, being the amount of three promissory notes, drawn by the commercial firm of William Kenner & Co. to the order of Morgan, Dorsey & Co. and by them endorsed to the plaintiffs.
    . The defence set up, was, that the partnership of William Kenner & Co. was dissolved by the death of Kenner, prior to the execution of the notes, and that after his death, the surviving partners were bound t.o liquidate the partnership as soon as possible, and had no right by law or otherwise, to enter into any new contract m the name of said partnership, so as to bind . . or affect the estate of the said William Kenner,
    It appeared from the evidence, that, on the 5th Mat’, 1824, the partnership which had previously existed between Kenner,- Clague and Oldham, under the firm of William Kenner Sc Co. was continued for the period of three years, and in the articles of copartnership then enter* ed into between the said partners, was the fol* lowing clause. “Should any one or more of the said partners die before the period stipulated for the ending of said partnership,such death or deaths shall not operate a dissolution of the same, in any manner whatever; but the same shall continue until the expiration of the said period, between the surviving partner or partners, and the heir or heirs of such deceased partner or partners; and the said surviving partner or partners shall, and may continue to use the name of said firm as now established; to remain in possession of and sell, negotiate and disposed of and generally to administer all the property, moveable and immoveable; all-the effects, moneys, rights, credits and debts, and other means thereof, in the same manner as if the said parties were all living, until the expiration of the said period, and to wind up and liquidate the affairs of said partnership, and render an account thereof, when thus liqindat-eci to the heirs or representatives of such de« ceased partner or partners.'’
    jt was a(imitted. that William Kenner died, on the 14th of May, 1824, leaving six children, all minors; and that the notes sued upon, were dated in 1825. There was judgment for the defendants, and the plaintiffs appealed.

      Livermore, for appellants; fMazureau, for appellee.
   Matiiews, J.

delivered the opinion of the court.

In this case, proceedings were commenced in the court below, to recover from the succession of the deceased, the sum of twenty-nine thousand seven hundred and sixly-six dollars and twenty-six cents, on account of several negotiable notes purporting to have been executed and signed by the commercial firm of William Kenner &, Co. The de-fence, on (he part of the succession, is a dissolution of the partnership, previous to the making and signing of the notes in its name, by the death of Kenner- The court of probates gave judgment against the claim of the plaintiffs, from which they appealed.

The evidence of the case, and facts admitted, show, that a commercial partnership had existed between William Kenner, Richard Cingue and John Oldham,cairying on trade under the name and firm of William Kenner &, Co. up to the 5 th of May, 1824; which was at that date continued by agreement, entered into between the partners* for the space of three years thereafter. On the 14th of the same month Kenner died, leaving six children, all minors. The notes of which the plaintiffs claim payment from his succession in the present action, bear date in the year 1825,after his death; and were executed in relation to new contracts, made by the surviving partners, who used the partnership name in signing them, in consequence of power to that effect, given by the terms of the 7th art, of the contract, by which the partnership was continued. It is expressed in the following words. “Should any one or more of the said partners die, before the period stipulated for the ending of the said partnership, ..uch death or deaths, shall not operate a dissolution of the same, in any manner vvhatever, but the same shall continue until the expiration of the said period, between the surviving partner or partners, and the heir or ^ie'rs °fsuch decased partner or partners; and the said surviving partner or partners shall,, and may continue to use the name of said firm as now established; to remain in possession of? and sell, negotiate and dispose of, and generally to administer all the property, moveable or immoveable, all the effects, moneys, rights, credits and debts, and other means thereof, in the same manner as if the said partners were all living, until the expiration of the said period; and to wind up and liquidate the affairs of the said partnership, and render an account thereof, when thus liquidated to the heirs or representatives of such deceased partner or partners.”

The 8th art. requires, that efforts should be made to bring the concerns and dependencies of the partnership into as narrow a com' pass as possible before the period at which it was to close. Profits and losses at its termination were to be taken into account, from the 1st day of December, 1820, until the time limited for its duration, &c.

According to these stipulations, the COU11- , sel for the appellants contended, that the surviving partners had a right to use the name and style of the firm in transacting commercial business to any extent that they might deem proper, and that the heirs of William Kenner, the deceased partner, are bound in solido with the survivors, by all notes or other instruments in writing, executed in the partnership name, in pursuance of the contract by which it was continued, although such business may have been transacted, and the name signed to the notes, &c. since the death of their father.

In support of this proposition, reliance is had on the Old Civil Code, and on the commercial laws or usages of England, of Scotland, of the United States, of France, of Holland, ofGermany, and those which have been understood as existing in Louisiana.

We have examined the authorities cited, to show the laws and usages in these foreign governments, in relation to questions analogous to that which is now under discussion; and they seem to authorize stipulations in contracts of partnership, by which they may be continued after the death of one of the partners, for the benefit of his heirs. But whether they would be binding on the latter, without their consent or acquiescence, is perhaps doubtful. In relation to minors, to whom the law does not attribute the power ofwilling, or consenting, the principle contended for by the appellants, would involve great difficulty, if not legal absurdi ty in their consequences. Heirs are bound to discharge the obligations of their ancestors, contracted by the latter while living, to the extent of the property which they inherit. But the power of an ancestor,(particularly according to our laws, relating to forced heirs,) to confer a right on other persons to make contract's after his death, by which his heirs should be bound even in reference to property inherited, to say the least of it, is very doubtful on general principles of law and justice.

Whether stipulations in contracts of partnership, by which they may be continued after the death of one of the partners, for the benefit ofhis heirs, be binding on the latter, without their consent? Quere.

In opposition to the consequences and effects assumed by the plaintiffs as giving them a right to recover the sum claimed from the heirs of Kenner, under the provisions of the Old Civil Code, as laid down in art. 50, p. 400. The counsel for the latter relies on art. 61, found on the same page, and on the laws of Spain, relating to commercial part- ‘ ° # # nerships. He insists, also, that a just and proper interpretation of the contract of partnership, will restrict the power of (he surviving partners to mere acts of administration of the property, credits and debts, which appertain-el to it at the time of the death of the principal partlier; and that his intention as evidenced by the contract of the two last articles of the agreement was to continue the survivors in the exercise of the powers granted for the sole and only purpose of winding up and settling the affairs of the concern, and not to enter into new and extensive transactions. After a strict examination of all the words and clauses contained in these articles, we have, (although not without hesitation,) come to the conclusion that they did authorize the surviving partners to contract new obligations in the name of the firm as it stood previous to the death of Kenner, and that the acts in this respect are obligatory on his heirs, if it be admitted that he could legally constitute them his successors in the partnership. And this compels us to enter into an investigation of the legal principles adduced in support of the claim, and those which are offered to destroy it.

We have already noticed, in a slight manner, the laws of foreign states, and which may perhaps be considered as somewhat foreign to the present question, and giving but little aid in its decision. We will now examine those which have immediate relation to it.

By art. 50 of the Code above cited, it ia declared that every partnership ends o.f right; by the death of one of the partners, unless an. agreement has been made to the contrary,, According to aid, 61, such a dissolution extends to the surviving partners, unless there be a contrary stipulation. In case of a continuance between the,survivors, art. 52 provides for the rights of the heirs of the deceased partner. These rules are found in the title of the Code which treats of the different manners in which partnerships end. And art. 61 declares that its provisions apply to commercial partnerships, inasmuch only as they do not contain any thing contrary to the laws and usages of commerce.

If the laws and usages of commerce which were in force in this cóuntry at the time of the adoption of the Code of 1808, contained rules contrary to those expressed in the Code in the title from which these articles have been extracted,the former laws must govern, should any effect be given to the art. 61. Consi- . . . d ering its provisions in comparison with those 1 of art. 50, as creating an antinomy, the last art. 61, must prevail, on the rules of construction that prior laws are abrogated by posterior, which may be properly extended to different clauses in the same law.

We must now enquire what were the laws and usages of commerce in relation to commercial transactions, and particularly as to their effect on partnerships of this nature, which governed in this territory or state, at the period when the Old Civil Code received legislative sanction.

Soon after the second grade of government was conferred on the territory of Orleans, and the ordonnance. of 1787, which had been made for the government of the territory of the United States north-west of the river Ohio had been extended to it, a dispute arose as to the laws which should be considered in force in this country.

In conformity with the fourth section of the act of congress, of the 2d March, 1805 pro viditig for its government; and in pursuance of a general principle of the law of nations? that the former civil laws are retained by the inhabitants of a ceded state or province, until altered, modified or repealed by the legislative power of the government which has acquired the country; it was decided that the Spanish laws were to be regarded as affording rules for the settlement of civil contests between the citizens of the territory, so far as they were not incompatible with the political regulations of the United States, and were un-repealed by any authority. This decision has been acquiesced in ever since, andNthe laws of Spain have been considered as the laws of this state in relation to civil suits, until their entire abrogation in 1828 by an act of our legislature.

To show that the stipulation contained in the 7th article of the agreement to continue their partnership, made between Kenner, Clague and Oldham, is not binding on the part of the former, we are referred to the laws 1 & 15, tit. 10, Partidas 5. The first of these laws defines a company, or partnership, to be an union of men for the purpose of gain; formed by consent and agreement of those who desired to become partners. It may be made for a certain time, or for the whole life of the partners Pero si algunos fazciessen compañía entre si, también por ellos, como por sus herrederos valensi a quanto en su vida dellos, mas non passadas a sus herrederos, $$c..

The law 10, declares a partnership to be dissolved by the death of one of the partners, or by some other occurrences, much in conformity with the provisions of the Old Civil Code, and authorizes a stipulation for a continuance between surviving partners.

If the law which imposes this incapacity on partners to continue a partnership beyond their own lives, in such manner as bind their heirs by the contract, be considered as a law or usage of commerce existing at the time the Civil Code of 1808 was adopted, it controls article 50, of the title in that work, which treats of the manner in which partnerships end: for unless such an agreement could have been validly made. according to the laws and usages of commerce then in force: the contract now under consideration is not binding on the appellees in consequence of art 61 of the title referred to.

It is certainly desirable for the convenience of merchants that the laws and usages which govern commercial contracts, should be similar in the different countries between which a trade of this species is carried on, and more especially is it to be desired that an uniformity in this respect should prevail in commercial business carried on between the states of the Union; and when no express statutory provision, or local usage exists to the contrary, general custom, as established by the decisions of competent tribunals ought to prevail. But no general usage can destroy the force ánd effect of local regulations, when the latter are formed in opposition to the former. The law of the Partidas in relation to partnérships, although it embraces those which may not be, strictly speaking, commercial, yet it certainly includes the latter: in this respect it is a law of commerce, and must be held paramount to the usage of all foreign countries, even those of the other states of our confederacy.

Opposed to the recognition of this principle in the present case, much argument was offered to the court, drawn dbinconvenienti/ such as that indorsements of bills or notes in blank, are not,wood according to the Spanish , . . laws, and that partners are not bound in so-lido by their contracts; principles wholly contrary to the doctrine established by many decisions of the courts of the state. It is true that we have been in the habit of having our judgments relative to commercial transactions, or theusages of commerce,as they prevail in the U. S. and England and other commercial countries. No instance, however, can be adduced where violence has been done to any express provision of the laws of this state in any of these judgments or decisions. With regard to blank indorsements, they are prohibited by the ordonnances of Bilboa, alone, which never had the force of law in this province while under the government of Spain. As to the evil consequences so much apprehended by the counsel for the appellants in relation to the contracts of co-partners being no longer considered as binding in solido, their fears for the future maybe calmed by the recollection that all the Spanish laws were abrogated by the legislature in 1828. But according to a just interpretation of the rules as cited from the Curia Philipica, we are of opinion that there is no real grounds to apprehend inconsistencies or difficulties in reference to past contracts. These rules are expressed in Wo. 28 and 29, of the Chapter which treats on compaños. x 1

Xn No. 28 it is declared, that when a partner contracts in his own separate name, other partners are not bound by such contract ; for, to bind them, it is requisite that the name of the company should be used, and that the contract should be intended for the utility of the partnership. No. 29 is in the following words: “ un compañía no pur de obligar a otro, se no es por ta parte que le toca respecto de la companñia, salvo ha-viendopacte entre illas de ello; o quando los dos exercera una negociation en diversos pueblos: cada uno en el suyo que entonces, por le que cada uno de ellos negocia, b contrata quedan intram-bos obligados in solidum, por que el uno fue puesto por el otro para ello} y por el contrario. Y lo mismo por la misma razón es quando, el uno es puesto por los demas para una\negociación. Seguin unas decissiones de Genova, Alvaro Vacq y Morquicho.

According to this authority, it might appear doubtful whether the signature of the company’s name would bind all the partner* in solidum, unless it should be signed by • . , i • T i i some particular member authorized by the contract ofassociation to use the name of the firm. But. on looking at the decisions referred to, it appears to us the matter is made clear, that an obligation in solidum is imposed on all the partners, by the use of the no-men sociale by any one of them. The moral or summary of the decision No. 15, Rota Genua, referred to amongst others by the Curia Phillipica, is expressed in these words: Expendens nomen sociorum obligat quem-libet ipsorum in solidum. No. 10 of this decision, “ Uño expendente nomen sociale, tam expendens quam cmtere socii, in soli-dum obligantur. No 12 is to the same effect, wherein a distinction is made between contracts signed by all the partners in their separate names, and such as are sighed by any one of them. “ Expendens nomen sociale, tunc de mente Bartholi et alionum est, ad omnes socii in solidum obligantur sive in eadem sive in diversa sent civitate. From these authorities we conclude that partners in a commercial company are, by the laws and usages of commerce, as understood in Spain, bound in solido by the signature of the company, when used for legitimate purposes ; and that, supposing these laws and usages to have been in force in this country prior to the year 1828, they did in no manner conflict with those which prevail in the U. States generally, in England and other commercial countries. Hence we also conclude, that no inconvenience can possibly arise in relation to the obligations of partners in a commercial firm, by deciding the present case in favour of the appellees.

According to the laws and usages of commerce, as they prevailed at the time of the adoption of the Code of 1808, no stipulation could be made by partners, absolutely binding on the heirs of one of them who should die, to continue the partnership after his death, and be made responsible for contracts made in the partnership name.

In the case cited from 6 M. n. s. p. 290, it is true that the court, in delivering its opinion, stated it to be of frequent occurrence, that partnerships, by the terms of the contract, last after the death of one of the members, and are continued under the nom social for the benefit of his heirs. This may happen when the heirs are of age, and accept the benefit of a stipulation made in their favor, like any other third person, who would, perhaps, be at liberty to claim the benefit of such a stipulation. But we are clearly of opinion that, according to the laws and usages of commerce, as they prevailed in this country at the time of the adoption of the Code of 1808, no stipulation could be made by partners, absolutely binding on the heirs of one of them , who should die, to continue in the partnership after his death, and be made responsible for contracts made in the partnership name.

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