text:
    No. 2138.
    John T. Norris v. Andrew Hero, Jr., et. al.
    An agent who, when it becomes his duty to deposit, in bank, the money of his principal, fails to make the deposit in the name of his principal, becomes personally liable for the amount. In such a case the agent will not be permitted to urge the failure of the bank after the deposit was made, and throw the loss on the principal. C. C. 3002, 3003.
    APPEAL from the Fifth District Court of New Orleans. Beaumont, J.

      Semmes & Mott, for plaintiff and appellant. JETornor c& Benedict, for defendant and appellee.
   Taliaferro, J.

The object of this suit is to make the defendant liable for certain moneys received by him on account of plaintiff and deposited to his own credit in the First National Bank of New Orleans, by the failure and insolvency of which the money was lost.

The defense is, that as notary public, the defendant was called upon to draw up several acts of sale of property sold to effect a partition between the plaintiff and others, and was authorized to receive the portion of the price paid in cash and to hold the same until divided by the owners; that, acting in good faith, the defendant, in the interests, as he supposed, of those he represented, had received the money and deposited it in the bank which was then solvent and in good credit; that the usage and custom of notaries in New Orleans, in like cases, is to deposit money so received in their own names for the purpose of facilitating business transactions; the money being subject to their own checks may at any time be drawn and paid over, obviating the delays and inconvenience often arising from the deposits being made in the names of the owners; that, acting in perfect good faith, and in conformity with established usage, he is not bound to make good the loss complained of.

The defendant had judgment in his favor, and the plaintiff has appealed.

The facts seem, to be that a part of the money was received on tho fourth and a part on the ninth of May, ] 867, and deposited on the days received in the bank, with other money belonging to the defendant, and that the bank failed on the thirteenth of the same month. It appears further that the money was deposited in the name of the defendant, as his own money, in different sums than those received from the purchasers of the property and was mixed and confused with his own funds. The evidence shows that Harrison, an attorney at law, and the agent of the plaintiff to receive his portion of the cash payment, called upon the defendant the day after the conveyances were signed to inquire whether the money had been paid, and being answered in the negative, requested the defendant to inform him whenever the payment was made. This the defendant promised to do. There is a sharp clashing of evidence as. to the time information of the receipt of the money was given by the defendant to the plaintiff's agent; one portion of it is direct that this notice was not given until several days after the suspension of the bank, the other equally direct that it was given on the ninth of May, four days before the bank failed. Hon nostrum est tantas componere lites.

Nor do we consider it of great importance in the decision of the case that a preponderance of testimony should be ascertained in regard to the point. It is clear however that the defendant recognized the plaintiff’s agent as having the right to receive the money that should fall to his share, and it must have been apparent to the defendant that the agent expected to receive it directly from him and not by checks upon a bank. We do not find that there were any definite or special instructions given to the defendant requiring him to withhold the share of any one of the vendors until all were present or represented in a formal partition.

But apart from these considerations we think that the custom shown in this case and urged in defense, and which would be “ moro honored in the breach than in the observance ” can not protect the defendant from the liabilities that await an agent, who, when it becomes his duty to deposit in bank the money of his principal, fails to make the deposit in his principal’s name. Story on Agency, section 208; Story’s. Equity Jurisprudence, section 1270; Civil Code, articles 3002, 3003.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that the plaintiff have judgment against the defendant, Andrew Hero, Jr., for the sum of fifteen hundred and twelve dollars and sixty-six and two-third cents, with legal interest from the fifteenth of May, 1867, and all costs of suit.

The court, ex officio, in order to correct a clerical error in stating the amount of the judgment herein rendered, orders that a change be made in the same so as to decree in favor of the plaintiff that he recover from the defendant the sum of fourteen hundred and ninety-six dollars, "with legal interest from the fifteenth of May, 1867, and all costs of suit.

Rehearing refused.


source: Caselaw Access Project

author: Taliaferro, J. Taliaferro, J.

license: Public Domain

text:
    No. 2079.
    G. W. Denton v. A. B. Reading.
    If *the language used in an act of the General Assembly is clear and free from ambiguity courts will not give it a different interpretation from that which the words used clearly import.
    In the year 1859 plaintiff entered into a contract with defendant for the sale of a certain valuable property in the city of New Orleans. At that time a suit was pending in the Third District Court of New Orleans between plaintiff and "Woods for the ownership of the property. The conditions of the contract were that if the plaintiff was successful in the suit, he was to sell the property to Reading, the defendant, for $20,000, fifteen hundred dollars of which was to he paid in cash at the termination of the suit by a final decision of the Supreme Court, or at the end of twelve months-from the decision of the district court, if no appeal was taken. The remainder was to be paid in six equal annual installments consecutively, for which notes were to he furnished stipulating six per cent, per annum from date until maturity, and eight per cent, thereafter* It was further agreed that if the final decision be delayed beyond the eighteenth of June, 1860, the whole price should draw six per cent, per annum from that date. The suit was finally decided by the Supremo Court on the eighteenth of June, 1867. Held — That the latter clause or stipulation in the contract furnished the proper basis or data on which to predicate the calculation of interest j that under this clause interest from that date, the eighteenth of June, 1860, at the rate of six per cent, per annum, was due on the cash portion of the price, fifteen hundred dollars, and a like rate on the different installments up to their respective maturities, and eight per cent, thereafter.
    APPEAL from the Sixth District Court of New Orleans. Cooley, J„
    D. C. Labatt, for plaintiff and appellee. Samuel JR. Walker, for defendant and appellant.
   On the Motxon to Dismiss.

Taliaferro, J.

A motion to dismiss this appeal is made on the ground that the amount of the appeal bond is not sufficient to authorize a suspensive appeal, inasmuch as it does not exceed by one-half the sum for which, the judgment was rendered. This we find is the case. But under the provisions of the act of the Legislature of September 29, 1868, the bond is required to exceed one-half the amount of the. judgment. We find the law so written, and see no grounds to authorizens to give it a different interpretation. This bond was executed before that act was amended, and as it does largely exceed one-half the. amount of the judgment, it should he maintained.

It is therefore ordered that the motion to dismiss the appeal be. overruled.

On the Merits.

Taliaferro, J.

A suit was pending in the Third District Court of New Orleans in the year 1859, between the plaintiff and Woods for a valuable property in the city of New Orleans. In August of that year, and pending this suit, a contract was entered into between the plaintiff and defendant by which it was agreed that Denton, if successful in the suit, was to sell the property to Reading for $20,000, whereof $1500 were to be paid in cash at the termination of the suit by a final decision of the Supreme Court, or at the end of twelve months from the decision of the district court if no appeal were taken. The remainder was to be paid in six equal annual installments consecutively, for which notes were to be furnished stipulating interest at six per cent, per annum from date until maturity and eight per cent, afterwards. But it was agreed by the, parties that should the final decision be delayed beyond the eighteenth of June, 1860, the whole price should be on interest at six per cent, per annum from that date. The suit was finally decided by the Supreme Court on the eighteenth of June, 1867, just seven years from the time the notes contemplated by the parties were to begin to draw interest. At the termination of the suit and when the cash payment was to be made and the notes furnished a disagreement arose between the parties in regard to the basis on which the estimate should be made of the amount for which the notes were to be drawn. The plaintiff contends that interest should be computed on the sum of $20,000 for six years and added to the principal, making $28,400 ; to deduct from that amount $1500, the cash payment, and distribute the remainder in notes, each for one-sixth of $26,900, to draw interest from date until maturity at six per cent, per annum, and eight per cent, afterwards.

The defendant’s basis of calculation is, to deduct $1500, the cash payment, from $20,000; to divide the remainder into six equal parts for which notes shall be executed, each note to include its distributive share of the principal and its quota of interest at six per cent, from the eighteenth of June, 1860, until their respective maturities, and to stipulate interest at eight per cent, from the day they respectively fall due, dating the notes on the eighteenth of June, 1867. The defendant calculates interest for seven years on the intended cash payment in June, 1860, making his indebtedness $2180 on that part of the contract. The difference between the two estimates is $1764, in favor of that of the seller.

Each party made a tender by act before a notary public, one of the title, the other of the price. These tenders were reciprocally rejected. Thereupon the plaintiff instituted this action to recover from the defendant the amount claimed by the larger estimate. The court below rendered a judgment in favor of the plaintiff, founded, however, on a basis differing from both the litigants and the defendant has appealed.

We are not able, in our view or tne subject, to coincide with either of the litigants, and we think there is error in the judgment. Both the judgment and the plaintiff’s estimate involve, we think, a compounding of interest not intended by the agreement of the parties. The estimate of the defendant, although not meeting our views fully, we think amply covers the contract and proposes all that the plaintiff is entitled to require. Proceeding to render such judgment as we deem legal and in conformity with the contract of the parties, it is ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that upon receiving from the plaintiff, which he is hereby decreed to make, a deed of conveyance vesting in the defendant a good and sufficient title to the property sold, the defendant pay the plaintiff the following sums of money, viz :

First — The sum of two thousand one hundred and thirty dollars, being the amount of the cash payment, with' interest as stated in the defendant’s tender.

Second — The sum of three thousand and eighty-three dollars and thirty-three cents, with interest at six per cent, per annum, from the eighteenth of June, 1860, to the eighteenth of June, 1868, and eight per cent." interest thereafter until final payment.

Third — The like sum of three thousand and eighty-three dollars and thirty-three cents, with interest at six per cent, per annum, from the eighteenth of June, 1860, to the eighteenth of June, 1869, and eight per cent, interest thereafter until final payment.

Fourth- — The like sum of three thousand and eighty-three dollars and thirty-three cents, with interest at six per cent, per annum, from the eighteenth of June, 1860, to the eighteenth of June, 1870, and eight per cent, interest thereafter irntil final payment.

It is further ordered and decreed that for the installments of the price yet running to maturity, the defendant shall, at the same time, execute and deliver to the plaintiff three several promissory notes, to be drawn by the defendant to his own order and indorsed by him, each note for the sum of three thousand and eighty-three dollars and thirty-three cents, made payable consecutively on the eighteenth of June oi the years A. D. 1871, 1872 and 1873, and to stipulate the payment of interest at the rate of six per cent, per annum, from the eighteenth of June, 1860, to their respective maturities, and eight per cent, interest after that time until final payment. The notes to bo secured by vendor’s lien and special mortgage on the property conveyed.

It is further ordered that the plaintiff pay all costs of these proceedings.


author: Wyly, J.

text:
    No. 2843.
    Seraphin Brou et al. v. Widow P. P. Becnel.
    The plea oi‘ res judicata can not he invoiced against a demand that has never been judicially-passed upon.
    The action to enforce the payment of a debt against a third party who has assumed its payment iu a notarial act, is not barrecl hy the prescription of one or three years.
    APPEAL from the Fourth District Court, parish of St. Charles. Beauvais, J.

      St. M. Berau.lt, for plaintiff and appellee. It. King' Outlet', for defendant and appellant.
   Wyly, J.

In 1858 Mrs. Becnel and her daughter, Miss Euphemie Becnel, purchased jointly from Harp & Armitage a plantation and slaves, assuming, as part of the price, the payment of certain mortgage notes executed hy their vendors to the plaintiff, Mrs. Brou. The defendant was sued hy the plaintiffs on her assumption of these notes, in the act of 1858, and the litigation finally terminated in the decision of this court of fourteenth of March, 1870. It having been held by this court that her assumption of 1853, was not a solidary obligation,, hut a joint one with her daughter Miss Euphemie Becnel, judgment was rendered against her for only half the amount of the valid part of the debt, a part of the debt being held invalid because it was for the price of slaves.

The judgment heretofore rendered against Mrs. Becnel was to enforce her obligation resulting from the act of 1858. The obligation of Miss Euphemie Becnel resulting from her assumption in the said act of 1858, was not determined in the previous litigation between the plaintiffs and the defendant. The defendant is now sued on the obligation she has incurred in a notarial act of 1866, in which she assumed the obligation of Miss Euphemie Becnel in favor of the plaintiffs, and hy which act she acquired the entire ownership of the property she bought jointly with her daughter in the act of 1858.

In bar of recovery the defendant sets np the exception that the plaintiffs have no cause of action, also the plea of res judicata, and the prescription of one, three, five and ten years.

The court gave judgment for the plaintiffs, and the defenüantjías appealed.

We think the petition of the plaintiffs shows a good cause of action, and that the plea of res judicata can not avail the defendant. The cause of action is the obligation assumed hy the defendant in the notarial act of 1866, in which she bought her daughter’s half of the laud and assumed to pay the debt owed by her to the plaintiffs. In the litigation heretofore between the plaintiffs and the defendants, the latter has only been adjudged to pay her own obligation assumed iu the act of 1858, which was for half tile amount of the valid part of the notes declared upon hy the plaintiffs. They now seek to make her pay them the other half of the valid part of these notes duo to them by Miss Euphemie Becnel, because the defendant assumed to do so in the notarial act of 1866.

The obligation on which the plaintiffs are now proceeding, to wit, the assumption of Mrs. Becnel, in 1866, has never heretofore been adjudicated upon, and it is not discharged by either of the prescriptions pleaded. We see no error in the judgment of the court below,, and it is therefore affirmed, with costs.


author: Howe, J.

text:
    No. 2944.
    The State of Louisiana, ex rel. A. Bonnabel, v. The Police Jury of Jefferson, Left Bank.
    The writ of mandamus will not He to compel the police jury of a parish to mate a contract or pass an ordinance authorizing tlio construction or shelling of a public road which, by the terms of the act authorizing it, they have a discretion to do or not to do.
    APPEAL from the District Court, parish of Jefferson. Pardee, J-

      Jlornor & Benedict, for relator, appellant. IF". B. PLyman and Josiah Fisli, for defendants and appellees.
   Howe, J.

This was an action, for a mandamus to compel the respondents to proceed and construct a shellroad in their parish, in, accordance with what the relator considered the peremptory directions of an act of the Legislature, entitled An Act to provide for the construction of a shellroad in the parish of Jefferson by the police jury oí the left bank of said parish,” etc., approved March 16, 1870.

The district judge was of opinion that the statute referred to was not mandatory in its nature, but, on the contrary, left in the discretion of the respondents the question whether the road should be built or not, merely providing that, if they should build it, its construction must be begun and proceeded with in a certain time and a certain way,, and he therefore refused the writ. The relator has appealed.

We do not think the judge was in error. The question was of the construction of a costly improvement, the expense of which was to be-in large measure borne by certain owners of property in the neighborhood. It is evident that, in the opinion of the local authorities,, the police jury, the work was not needful, or even desirable. Under such circumstances, it seems plain that a mandamus ought not to issue-unless the duty of the jury is perfectly clear — their neglect of it perfectly evident. Such does not appear to be the case. The first section of the act declares merely that the police jury is hereby authorized and empowered to pass and adopt, within ton days from the passage of this act, the necessary ordinances and resolutions for the construction ” of the road, and it is not clear that the repeated use of mandatory language in the subsequent sections had any other intent than to impose upon the local authorities a certain method of oneration, in case they should choose to initiate the work.

For these reasons, it is ordered that the judgment appealed from be, affirmed, with costs.


author: Taliaferro, J. Ltjdei.ing, C. J.

text:
    No. 951.
    Aristide Barre v. The City of New Orleans.
    if the alluvion or batturc which has formed on and is attached to a niparian tract or lot of land has attained a sufficient elevation above tho waters to be susceptible of private ownership at the time of the sale, it does not pass with the sale of the land or lot, unless so expressed. But if it has not readied a sufficient elevation to render it susceptible of private ownership, then it passes to tho vendee, who is invested with all tho rights of accretion which the vendor had, without any expressions of the vendor, indicating its transfer.
    In this case tho plaintiffs allege that they have lost tho title to the lot on which it is claimed the batturo has formed, by prescription, but they claim to be the owners of the batturo, notwithstanding. The evidence failed to show that the batturo had attained a sufficient elevation to render it susceptible of private ownership at the time the plaintiff parted with the ownership. Held- — That they having lost their title to the lot itself, by prescription, could not recover tho batturc, oven though the batturc were shown to have been formed to an elevation sufficient to render it susceptible of privato ownership, before they parted with the title by transfer to their vendee.
    APPEAL from Second District Court of Now Orleans. Thomas, J.

      Hurani & Honor, H. Mtloul, and Honor & Benedict, for plaintiff and appellant. J. 11. Bcclciuith, City Attorney, and Bandall Hunt, for the city of New Orleans, defendant and appellee
   Taliaferro, J.

The xilaintiff, as agent of several claimants, representing themselves to ho the heirs at law of their grandmother, Marie St. Jean, a free weman of color, institutes this suit to recover a portion of the battnre or alluvion deposit formed by the Mississippi river in front of the city of New Orleans, alleging that their ancestor was tho owner of a lot of ground measuring two hundred and forty feet front on the river, according to a plan made by C. L. Trudeau, surveyor, on the first of April, 1788; that the said lot, numbered thirty-four on Trudeau’s plat of survey, and marked on that plat, in red ink, “ Marie, negresse,” is situated at the corner of G-irod and Tchoupifcoulas streets. The petition avers the loss of right to this lot by prescription, but insists that at the time of their ancestor’s purchase, on the first July, 1789, there existed in front thereof, tho public road, the dike or levee and a large batture, which the waters of the liver covered only when they rose to their highest elevation, the whole being subject to a servitude in favor of the public, and that tho sale of the lot with “front on the river,” made the property riparian with tho right of battnre or alluvion, which right the plaintiff contends subsists in them.

The answer is a general denial. Judgment in tho lower eourt was rendered in favor of the defendant, and the plaintiff appeals.

It appears, from the testimony, that Marie St. Jean bought the lot in question from Marie J. Desloudes and her husband, Bertrand Gravier, by an instrument purporting- to have been passed before a notary on the first of July, 1789; that the purchaser resided upon it for several years with one Jean Ternoir, with whom she lived in a state of concubinago ; that upon the death of Ternoir, which it seems occurred in January, 1792, his creditors caused the lot to be seized and sold at auction as a part of the property of his succession, and that it was purchased by one Orset, who subsequently sold it to C. E. Girod; of this purchase at auction by Orset and his transfer, a memorandum is made in red ink on the lot designated as number thirty-four on Trudeau’s plat. It is shown that Marie St. Jean persisted in remaining upon the lot for a considerable length of time after it was sold, occupying a shed in the rear of the lot: that'she complained of-being ill treated in regard to the sale of the property, exclaiming on one occasion to a friend: “See, they have sacrificed my property to pay the debts of my husband!” Her occupation, it is shown, was that of a nurse and a midwife of much reputation and large practice in respectable families of the city, and that she accumulated a considerable amount of property and purchased several slaves. But notwithstanding the intelligence and facilities which these facts imply, it does not appear that any legal measures were ever taken in her behalf to avoid or rectify the injustice of which she complained.

Upon the trial of the case in the lower court objection was made to the introduction of a certified copy of the notarial act of sale before mentioned, on the ground that it was attested by only one witness, and that it was not signed by the purchaser, according to the laws'of the Spanish Code then in force in Louisiana. The objection was overruled, and a bill of exceptions reserved. We do not deem it important to pass upon this exception, as obstacles of graver import seem to lie in the way of the plaintiff’s recovery.

That to riparian proprietors belong the accretions which may, in progress of time, be formed by the- sedimentary deposits of the stream along its shores, there is no question. In the sale of riparian land the test as to whether the alluvion or batture, if any, attached to it is conveyed with the land or not, has been definitely settled by repeated decisions of this court. If, at the time of the sale of riparian land, the alluvion attached has attained a sufficient elevation above the waters to be susceptible of private ownership, the alluvion does not pass with the land, unless so expressed. See 6 M., 19; 9 M., 656 ; 7 N. S., 624; 11 La., 142; 10 An., 54 and 55; 13 An., 350.

The evidence in the record bearing upon this point does not enable us to form any satisfactory conclusion. We have the allegation of the plaintiff, already noticed, that at the' date of the sale to Marie St. Jean there existed in front of the lot she purchased a large batture, which the waters of the river, covered only when they rose to their highest elevation.” If this was the case, Maria St. Jean acquired no title to the alluvion formation. The title remained in her vendor. If, at the time of the sale, there were no alluvion deposits, or If there were any and they were not of a character to be susceptible of private ownership, the subsequent accretions inured to the benefit of those holding under the sale made of the lot of ground as the property of Ternoir, the title under which would seem to have become complete by the prescription of thirty years.

By an act of the Legislature of the thirtieth of April, 1853, a right was given “to any riparian proprietor to institute suit against the city corporation for so much of the batture as may not be necessary for the uses of commerce and navigation, and for the necessary highways and ■other public uses, and if it be determined by the court that any portion •of said batture be not necessary for the public uses above mentioned, the court shall decree that said owner is entitled to said property, and ■compel said corporation to permit him to enjoy the use and full ownership of such portion of said batture.”

Conceding the plaintiffs have the right they set up growing out of the riparian ownership, which they claim once existed in Marie St. Jean, still, under the statute quoted, they would be entitled to reclaim only such portion of the batture as would not be required for public uses. We find no evidence in the record establishing what portion, if any, of the batture claimed by the plaintiff is not required, for public uses.

Marie St. Jean died in the early part of the year 1815. From the ■death of Ternoir, in 1793, a period of twenty-two years, no legal measures were adopted to rescue the property, (bought, as alleged by-Marie, from Bertrand Gravier and wife), from what is now alleged by her heirs to have been an act of spoliation. Her heirs, if they derived any rights from their ancestor, have slept upon these rights more than half a century. In asserting q claim at this late day to the property in question, it behooves them to establish clearly and fully the title they set up. This we think they have failed to do.

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

On Beheaeing.

Ltjdei.ing, C. J.

.After mature consideration, we see no reason.to change the decree rendered by us on the eighth of March, 1869.

The plaintiffs allege that they are entitled to the possession -and control of certain portions of the batture in the city of New Orleans, as proprietors of riparian property; that their ancestor owned a lot, number thirty-four in a certain plan of a portion of the city at the corner of Girod and Tchoupitonlas streets, in the year A. D. 1779, ’which lot was bounded, on the front, by the river; that, in 1793 or 1794, after the death of Ternoir, with whom she had been living in concubinage on the premises, the creditors of said Ternoir caused “the above described lot of ground, situated at tbe corner of Girod and Tchoupitoulas streets,” to be sold, as the property of “the said Jean Ternoir, their grandfather,” to one Orset, who sold it to Francois Girod; and that, by the lapse of time, they had lost their title thereto. But they claim the batture in front of said property, which they allege •existed at the time of the purchase by their mother, Marie St. Jean.

If it be true that alluvion had been formed, adjoining the levee in front of this lot, and was of sufficient height to be considered as private property at the time it was sold to Orset, in 1794, it belonged to ■the owner of lot number thirty-four, as an adjuuct or accessory thereof. It is impossible, therefore, to perceive how that fact would benefit the plaintiffs, if proved, as they aver in their petition that this same lot was sold, at public auction, during the lifetime of their mother, and that their right and title thereto had been destroyed by prescription.

The right to alluvial formation, or batture, is inherent in the property itself, and results from natural as well as municipal law, in consequence •of the local situation of the land to which it is attached. If, therefore, lot number thirty-four had a “front to the river” — “frente al .rio ’’ — when the ancestor of plaintiffs purchased, its front remained the same when it was sold at public auction; for, according to their own .judicial admissions, it was “the above described lot of ground, situated .at the corner of Girod and Tchoupitoulas streets,” which was sold, and ••the title whereof, they admit, they had lost by prescription. There is nothing in the record to show the contrary.

But there is no evidence whatever to show that any alluvial formation existed in front of lot number thirty-four when Marie St. Jean bought it, or when it was sold at public sale. If the batture were formed subsequently, it belonged to the person who owned the lot at that period. 6 M. 19; 9 M. 656; 11 La. 142; 18 La. 229.

It is therefore ordered that the decree heretofore rendered be .affirmed.


author: Ludelinc, C. J.

text:
    No. 2057.
    Nathaniel Chesnut, Natural Tutor of R. Chesnut, v. John Hughes.
    'The prescription of one year in bar of an action in damages for a quasi offense must be com. puted from tbe day on -which the injury was caused, without computing tbe day on which it was received. C. C. 3430,3467.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      Bobertson & Zacharie, Campbell, Spofford & Campbell, for plaintiff -and appellee. Brice & Mitchell and E. J. Beovy, for defendant and appellant.
    This case was tried by a jury in the court below. The verdict, which was based entirely on the facts, was set aside on appeal because •it was not sustained by the evidence in the record.
   Ludelinc, C. J.

The plaintiff sued the defendant for twelve hundred dollars, due to himself, and for twenty-five thousand dollars, due to his minor son, for damages occasioned to them by the neglect and gross carelessness of the defendant, in this, that he allowed “the fencing, and particularly the gates in the fencing, inclosing a lot of ground belonging to defendant to become so dilapidated and insecure that they endangered the lives of those who passed along the street at that point. That on the fourth of April last, his son, Rogers Chesnut, then aged about ten years, while quietly passing along the public street, in front of the above mentioned property, * * * was suddenly struck down by a large and ponderous gate * * * and was seriously inj ured for life. That the falling of the gate was owing and solely due to the insecure condition of the gate or portion of the fence,” etc.

The defendant, for answer, denied all liability, alleged that the property was in the possession and under the control of Charles Morgan, who had leased it from defendant; that the fence and gate were in good order, and could not have fallen or injured any one if the panel, which fell, had not been removed from its proper position by some trespassers; and he further pleads prescription of one year.

There was a trial by a jury, who rendered a verdict for three thousand dollars for the father and three thousand dollars for the son, and, judgment was rendered accordingly.

Prescription had not accrued when the citation was served on the fourth of April, 1868, the injury having occurred on the fourth of April, 1867. The year must be computed from the day on which the injury was caused — the day a quo is not included. C. C., article 3467 (3430); 3 An., 528.

The evidence establishes that the premises had been leased to Charles Morgan ; that the fence was not in a dilapidated or bad condition, and that no injury could have resulted to anyone passing by if the panel or gate had not been removed from its proper position. It is proved that the gate or portion of the fence which fell had been taken from its place by trespassers, who desired to pass over the premises, and that they had neglected to place it back into the clews or sockets-which secured it. It is further proved that two of the boys were on the fence and the other was trying to get up a few minutes before the accident. Mr. Sampson says: “When I came out I saw two of the boys on the fence and one below, trying to get up. They were climbing the gate. The gate was leaning against the fence. Both the boys on the top were waving and hallooing.” This was “ about five minutes, before .he saw them carrying the little boy Chesnut awav.” It is further proved that the wind was quite strong at the time.

The evidence entirely fails to show that the injury was caused by negligence, imprudence, want of skill, or fault of any kind, on tlie part of the defendant. 15 An., 448, Burton v. Davis.

The verdict of the jury is manifestly erroneous.

It is therefore ordered, adjudged and decreed that the judgment of the district court he annulled; that the verdict of the jury he set aside, and that there he judgment rejecting the plaintiff’s demand, with costs of both courts.


author: Howell, J.

text:
    No. 2008.
    George Wood, Curator, v. Phœnix Mutual Life Insurance Company, of Hartford, Connecticut.
    A judgment that lias been rendered against a lifo insurance company in favor of one claimant of the policy, can not be invoiced by the company as res judicata in a suit brought by another claimant, who was not a party to the suit in which it was rendered. It may, however, be set up in defense to the second action, and the company be permitted to show that they paid to the party legally entitled to the money.
    The possession of a printed or written policy of insurance is not conclusive proof of a right to recover the insurance money. It is merely the evidence of the contract. The right to the money may be assigned without any reference to the policy.
    APPEAL from the Fifth District Court, parish of Orleans. Leaumont, J.

      T. Gilmore, for plaintiff. II. J. Leovy, for defendant and appellee.
   Howell, J.

This is a suit by attachment on a policy of insurance, to which the exception of res judicata was pleaded, and having been sustained, the plaintiff appealed.

E. D. Collier insured his life in the defendant company in November, 1864, and died in New Orleans, in 1868. Three parties claimed the money — Mrs. Collier, the mother of the deceased, residing in Ohio; E. F. Goodman, administrator of deceased, appointed in Hartford, Connecticut, and George Wood, the curator, in New Orleans. Suit was instituted by Goodman against the company at its domicile, in Hartford, whereupon they filed a suit in chancery, in the nature of a bill of interpleader, admitted their indebtedness and willingness to pay, and asked the court, after proper formalities, to decide to whom the money should be paid. Notice was ordered, and two of the parties— Mrs. Collier, of Ohio, and Goodman, of Hartford — made appearance, and, after hearing, judgment was rendered ordering the company to-pay the insurance money, less a small sum, to Mrs. Collier, who claimed as assignee.

While it is true that this judgment can not be invoked as res judicata against the plaintiff in this suit, as he was not legally cited, and did not make himself a party to the litigation in which it was rendered, yet it may be set up as a defense, and the company permitted to show that they paid to the party really entitled to the insurance money.

We are not prepared to say that the possession of a written or-printed policy of insurance is conclusive proof of a right to recover the insurance money. Such an instrument is merely the evidence of the eon-tract, and is not negotiable. The right to the insurance may be assigned entirely dehors this instrument, and as it appears from the record that the defendants have paid, or been judicially ordered to pay, to a party who asserted a right by assignment, they should have an opportunity to establish the validity of the alleged assignment and payment. Justice, we thinlc, requires the remanding of the case for such purpose.

It is therefore ordered that the judgment maintaining the exception herein, be set aside, the exception overruled, and this case remanded, to be proceeded with in accordance with the views in the foregoing opinion. Costs of appeal to be paid by appellees.

Rehearing refused.


author: I-Iowe, J.

text:
    No. 1849.
    J. W. Zacharie v. C. Lyons, Administratrix.
    Tf the record shows that the amount in dispute in the court below is less than five hundred dollars, the Supreme Court will notice the fact ex ojjicio and dismiss the appeal. 21 An. 728.
    APPEAL from the Second District Court, of New Orleans. Thomas, J.

      Campbell, Spofford & Campbell, for plaintiff and appellant. C. Mo■selius <& Alfred Philips, for defendant and appellee.
   I-Iowe, J.

The plaintiff, in November 1866, leased to L. W. Lyons a store in New Orleans for a term of years “ at twelve thousand five hundred dollars per annum, payable monthly, in notes to be given on the first October of every year, for $1041 66 each, payable in gold, or national currency to be received with the current gold premium .added, but gold not to exceed fifty per cent, premium for national •currency, or national currency to be received at that rate.”

In October, 1867, Lyons having died, the defendant, his administratrix, gave the notes required for the coming year. The suit now before us is instituted upon the lease and the following note :

“$1041. “New Orleans, October 1, 1867.

“ Four months after date I promise to pay to the order of J. W. Zacharie, ten hundred and forty-one dollars at the Citizens’ Bank of New Orleans, in gold, provided the premium in gold does not exceed fifty per cent, as per lease dated sixth November, 1866, value received in rent. “ C. Lyons, Administratrix.”

The plaintiff claimed that the premium on gold at the time this note fell due and remained unpaid, was thirty-nine and one-fourth per ■cent, and therefore asked judgment for $1449 59, with interest and fees of protest.

The defendant, admitting the execution of the lease and note, .averred that the clause providing for a payment in gold, or in national currency, to be received with the current gold premium added, was in violation, of law and in opposition to public policy, as having the immediate and direct effect to depreciate the legal tender notes issued under the laws of Congress, and to destroy the rule established by said laws making said notes a legal tender of payment, and therefore null and void; that she was bound only for the sum in legal tender notes, which she had offered to pay, and that she again offers to pay the same by depositing the amount in court.

The plaintiff having withdrawn the amount thus deposited the judge a quo decided that he could recover nothing further, and therefore rendered judgment in favor of defendant. The plaintiff appealed.

From this statement it appears that the amount in dispute in the court below at the time of trial, was less than five hundred dollars, and that we have no jurisdiction. We notice the fact ex officio. 2 An. 136; 21 An. 728; Kummel v. Liberman, lately decided.

Appeal dismissed.


text:
    No. 2918.
    Martin Farrell v. Thomas O’Neil—Gilbert Lyman, Surety—Mrs. Gilbert Lyman, Opponent.
    A judgment that has heen regularly obtained by the wife against her husband can not bp contested or inquired into collaterally by a creditor of the husband whose claim only arose after it was rendered. 10 An., 564.
    The burden of proof falls on the creditor who alleges that a judgment in favor of the wife and against her husband is simulated.
    APPEAL from Fifth District Court, parish of Orleans. Beaumont, J.

      Hornor & Benedict, for plaintiff and appellant. Rogers <& Blanc, for defendants and appellees.
   Wyly, J.

Tiie plaintiff, having judgment against Gilbert Lyman, the surety on the release bond of the defendant, Thomas O’Neil, caused execution to issue and the property in dispute in this case to be seized as the property of said surety. Thereupon,-Mrs. Lyman sued out a writ of injunction, claiming to be the owner of the property by virtue of an act of giving in payment made to her by her husband in satisfaction of a j udgment she had against him.

The plaintiff moved to quash this injunction. The rule was dismissed, the case tried and judgment was rendered in favor of Mrs. Lyman, decreeing her to be the owner of the property seized by the plaintiff, and perpetuating her injunction.

From this judgment the plaintiff has appealed.

In his pleadings the plaintiff urges that both the judgment of Mrs. Lyman against her husband and the act of giving in payment, in satisfaction thereof, were simulated, fraudulent and collusive, and were had merely for the purpose of concealing his property from the pursuit of his creditors. In argument, however, plaintiff’s counsel appears to rely upon the charge of simulation.

On the other hand, the opponent, Mrs. Lyman, contends that her judgment can not be attacked collaterally, and that the plaintiff can not contest the validity of her judgment, which was obtained before the existence of his claim.

In support of his position the plaintiff has introduced the evidence upon which Mrs. Lyman’s judgment against her husband was obtained.

We think the correctness of that judgment or the sufficiency of the evidence upon which it was rendered can not be inquired into by the plaintiff, whose claim arose subsequent to its rendition.

The case of Dingrave v. Norwood, sheriff, et al., 10 An., 564, bears a striking analogy to the one before us, and it was there held that the creditors of the husband can not contest the validity of a judgment right acquired before the existence of their own claim.

As to the charge of simulation, it was incumbent on the plaintiff to prove it, and this he has failed to do.

The case of Levistones v. Brady, 11 An., 695, cited by the plaintiff, does not conflict with the view we have taken of this case. Here, we think the judgment upon its face valid; there, it appeared to have been based upon the admissions of the husband, and the court held that the rule we have mentioned must apply to a case ostensibly valid.

Judgment affirmed.


text:
    No. 2321.
    Merchants’ Mutual Insurance Company v. J. L. Pointer.
    The discovery of a better defense after judgment than the one urged on the trial, such, as that the title of the assured to the steamer was fraudulent and simulated, is not good cause for annulling it.
    The averment in an action of nudity, that had the insurance company known of the fraudulent and simulated character of plaintiff’s title to the vessel at the time the insurance was effected, they would not have taken the risk, is a good defense to urge at the trial. But it is not a valid basis for annulling the judgment which has been obtained without fraud or other ill practices by the judgment creditor on the trial. O. P. 607.
    APPEAL from the Sixth District Court, parish of Orleans. Oooley, J.

      Albert Voorhies, for plaintiffs and appellants. Bandolph, Singleton & Browne, for defendant and appellee.
   Wyly, J.

The plaintiffs, the Merchants’ Mutual Insurance Company, have appealed from a judgment dismissing their suit to annul a judgment obtained by the defendant against them in the district court,, and also, on appeal to the Supreme Court, for the amount of an insurance policy on the steamer Fanny Fisk, which was lost.

The question is, can the Insurance Company, who only set up a special defense to that suit, to wit: the nnseaworthiness of the vessel, now sue to annul the judgment therein, on the ground that since its rendition they have discovered that the title of the assured to the steamer was not valid, that it was a fraudulent simulation, which, had it been known to them, would have induced them to decline taking the said risk. In other words, will the discovery of a better defense, after judgment, than the one used on the trial, be a good cause to annul it ?

In our opinion it will not if it be of the character of the one herein relied on.

It is a good defense to a suit that the contract on which it is based was consummated by deception or fraud. But such an averment would not be a valid basis for annulling a judgment obtained without fraud or other ill practices of the judgment creditor at the trial. C. P. 607.

It is not pretended that there was fraud practiced at the trial. The complaint is simply that the insurance company would not have made the contract of insurance with the defendant, had they known that his title deed to the “Eanny Fisk” was not valid, that it was a fraudulent simulation. This would probably have been an effectual defense had it been urged at the trial, but it is no ground to annul the judgment. We have discovered, in the written opinion of the learned judge a quo, an elaborate examination of the question, and regard his conclusion as correct.'

It is therefore ordered that the judgment herein be affirmed, with costs.

Rehearing refused.


text:
    No. 1960.
    Louisiana Mutual Insurance Company v. G. Batt and S. Cambon.—Same v. Jean Dubarry and W. Maylie—Consolidated.
    Hotes that have keen given to the city of New Orleans for a lease of certain markets, secured ky mortgage, which have keen transferred ky the city, and passed into the hands of third parties before maturity, can not ke discharged in city notes. In such a case, the holder can recover from the maker the full amount in lawful currency.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      Hace, Foster & F. T. Merrick, for plaintiffs and appellants. Oyprien JDufour, for defendants and appellees.
   Howe, J.

The notes sued upon in these cases were made as follows: The one by G-. Batt, with S. Cambon as indorser, the other by Jean Dubarry, with W. Maylie as indorser. They were rent notes, given in this form to the city of New Orleans in accordance with the terms of certain market leases, and paraphed by the notary before whom the leases were executed. They were transferred before maturity,-and for a valuable consideration, to the plaintiff'.

The defense in each ease was, that the note in suit was made payable at the office of the City Treasurer; that it was identified with the leasej that the city of New Orleans had agreed to received what are known as “city money,” or “city notes,” in payment of debts due to it; that the defendants had tendered the same at the maturity of the, obligation in suit; and that the plaintiffs were fully aware of these-equities, and were not bona fide holders of the note, but held the same-for account of the city of New Orleans.

The court below gave judgment as prayed for by the defendants, decreeing that the notes be paid in “city money,” and that the costs-of the suit be borne by plaintiffs, and the plaintiffs have appealed.

It plainly appears, from the testimony', that the plaintiffs became, as. already remarked, owners of the notes for value, before maturity. As for notice of any such equity as that alleged, we are unable to find any-in the notes, the paraphs, or the leases, or that any such notice was. otherwise brought home to the plaintiffs. The case is not unlike that, of Case v. Berwin, lately decided, and the judgment should be the same.. 22 An. page —.

It is therefore ordered, in the case first named, being No. 21,751 of. the docket of the Fourth District Court for the parish of Orleans, that: the judgment appealed from be amended in favor of plaintiffs, by striking therefrom the clause which provides that the sanie shall be-payable in city money, and that the costs shall be borne by plaintiffs ; that, as thus amended, the judgment be affirmed, and that the-defendants, Batt and Cambon, pay, in solido, the costs of both courts.

And, in the case secondly named, being No. 21,752 of the docket of: said district court, it is ordered that the judgment appealed from be amended in favor of plaintiffs, by striking therefrom the clause which, provides that the same shall be payable in city money, and that the-costs be borne by plaintiffs; that, as thus amended, the judgment be affirmed, and that the defendants, Dubarry and Maylie, pay, in solido,, the costs of both courts.


author: Ludeling, C. J.

text:
    No. 2850.
    The State of Louisiana, ex rel. J. C. De St. Romes, v. Levee Steam Cotton Press Company.
    The appeal will he dismissed if the record fails to show that the amount in dispute exceeds five hundred dollars.
    The affidavit hy the appellants that they feel an interest in the matter at issue, exceeding five - hundred dollars, and that the right to control the hooks of the company exceeds in value five hundred dollars, is not sufficient to give the Supreme Court jurisdiction of the appeal.
    APPEAL from Eighth District Court, parish of Orleans. Dibble, J..

      0. Eoselius and Alfred Philips, for relator and appellee. JS. Bermudez, for defendant and appellant.
   Ludeling, C. J.

The motion to dismiss the appeal, for want of jurisdiction ratione materias, must prevail. The relatrix has obtained an order to compel the Levee Steam Cotton Press Company to let her-examine their books for the purpose of learning in whose name stands, the sixty-six shares of stock of said company, which, she alleges rightfully belongs to her. There is nothing in the record to show that there is an amount exceeding $500 in dispute. The affidavit filed states that the officers of the company “feel an interest exceeding $500 in the matter at issue, and that the right of respondent to control the books of the company exceeds in value $500.”

The question at issue was simply the right of the relatrix to inspect the books of defendant, for the purpose above stated; and whether the defend ;nt feels a great interest in the matter or not, is not a fact which 'can confer jurisdiction in this court. Art. 74 Constitution.

It is therefore ordered that the appeal be dismissed.


author: Ho weld, J.

text:
    No. 1975.
    Southern Dry Dock Company v. Gibson, Rodney &. Dowty.
    A contract for - materials furnished and repairs done to a steamboat or other vessel in the-home port is not a maritime contract, therefore the admiralty courts of the United States, have not exclusive jurisdiction to enforce alien arising from such a contract.
    Ry the home port of a vessel is meant the port or place of her permanent registry and enroll-, ment, and the place where every act of sale or mortgage must be recorded to give it effect against third persons.
    The States are competent to create such liens as their Legislatures may deem just and expe- ' dient in favor of furnishers of supplies and materials used in the construction and epairing of vessels, and to enact reasonable rules and regulations prescribing the mode-of theft enforcement, provided they do not amount to a regulation of commerce between, the States.
    "Where suit is brought in a State court to enforce a lien on a vessel, which lien is given by statute, and the owners of the vessel except to the jurisdiction on the ground that the* lien is an admiralty one, which the State court is without jurisdiction to enforce, the State court will, in case of doubt, maintain its jurisdiction.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      Bentinóle JSgcm, for plaintiff and appellee. Ilandolph, Singleton &■ Brovme, for defendants and appellants.
   Ho weld, J.

Plaintiffs allege “ that David Gibson, a resident of Cincinnati, Ohio, and Martin Rodney and John C. Dowty, of New-Orleans, owners of the steamboat St. Nicholas, a boat engaged in carrying freight and passengers for hire, are justly and truly indebted to petitioners in the full sum of $2549 92, costs of protest and interest, for work and materials furnished by petitioners in repairing and docking said steamer, within the last six months, * * * Petitioners further represent that they have by law a lien and privilege oh said, steamer for the payment of said sum of $2549 92.” They caused the-, boat to be provisionally seized and citation to issue to the defendants,, who excepted to the action on the grounds :

First — The cause of action upon which this suit is based is an admiralty cause, and as such, the United States admiralty courts alone have jurisdiction of the same, saving to the plaintiffs the right of a. common law remedy, when the common law is competent to give it.

Second — That the proceeding in: this cause is not a common law remedy, but a statutory remedy, vesting in this court a proceeding in rem, which is an admiralty nroceeding, and bv reason thereof this court has no jurisdiction.

Third — That the proceeding in this case is an admiralty proceeding and the cause an admiralty one, and as such, the courts of the United States have exclusive jurisdiction thereof.”

This exception was overruled and the defendants answered, reserving the exception, and pleading a general denial. Judgment was rendered in favor of plaintiffs with privilege, and defendants appealed.

The main question before us is that of jurisdiction, raised by the exception, and is stated by the defendants in the following form :

If the lien alleged by plaintiffs be an admiralty lien, the district court of the State could not enforce it, and this action must be dismissed at plaintiffs’ costs.”

To show the lien to be an admiralty one, and the S tate courts to be without jurisdiction, they cite the Judiciary Act of 1789, Ch. 20, § 9 : Ashbrook et. al. v. The Golden Gate, 5 Am. Law Reg. 148; The Moses Taylor, 4 Wallace, 143; The Hine v. Trevor, Id. 555; The Belfast, 7 Wallace, 624; and Berain v. Matanzas, 19 An. 384.

These authorities very clearly sustain the proposition that an admiralty lien can not be enforced by State courts, but not that all liens upon vessels navigating the waters of this country are admiralty liens.

In the case of the Belfast, the latest of the above, on that subject, (December, 1868), it is expressly announced, at page 645, that such a lien does not arise in a contract for materials and supplies furnished to a vessel in her home port, and in respect to such contracts it is competent for the States, under the decisions of this court, to create such liens as their Legislatures may deem just and expedient, not amounting to a regulation of commerce, and to enact reasonable rules and regulations prescribing the mode of their enforcement.

Contracts for ship building are held not to be maritime contracts, and, of course, they fall within the same category, but in all cases where a maritime lien arises, the original jurisdiction to enforce the same by a proceeding in rem is exclusive in the district courts of the United States, as provided in the ninth section of the Judiciary Act.”

In the next case in the same volume, (White’s Bank v. Smith, 650), the home port of a vessel was recognized to be that of the permanent registry or enrollment, and where every act of sale, mortgage, etc., to have effect against third persons, must be recorded, to wit: the port, at or nearest to which the owner, if there be but one, or if more than one, the husband or acting and managing owner of said ship or vessel usually resides.”

In tlie case at bar it is alleged that two of the part owners reside in New Orleans, and that one of tbe two is the captain. Tbe plaintiffs, an incorporated company, have tbeir domicile here. Until otherwise shown, we will, under these facts, presume this to be the home port of the defendant’s steamboat. It was incumbent on the plaintiffs in the exception, to show on the trial thereof, any facts which divested the State court of jurisdiction. In case of doubt we will maintain our local jurisdiction j and we think, under the pleadings, the court a qua properly overruled the exception of defendants.

On the trial of the merits, Gibson and Rodney, two of the defendants, offered their notarial act of title to the steamboat St. Nicholas, in order to prove that they were the sole owners of said steamboat at the time the claim sued on accrued, and in order to show what portion of said boat was owned by each and such other facts as might appear from said title,” which was refused on the ground that the general denial was an admission of the ownership and no evidence thereon could legally be received. In their brief and argument it is said that this evidence was offered to settle the matter of jurisdiction. The ruling was correct. The question had been settled by the decision on the the exception and could not be again raised on the trial of the merits. The reservation in the answer only reserved the question as it was presented on the trial and decision of the execution. We find no error in the judgment below.

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


text:
    No. 2136.
    George W. Miller v. Charles Morgan—J. P. Harris, Agent.
    This is an action by the owners of the schooner'Ladies’ Delight to recovey damages from the owner of the steamer Louise for a collision which occurred between these vessels in Lake Pontchartrain. The evidence shows that the night was dark; that the steamer showed all the lights required by law j that had the schooner showed the lights required by law, the collision would have been avoided. Held — That the collision having occurred through the fault and negligence of the officers of the schooner, her owners could not recover damages.
    APPEAL from the Sixth District Court, parish of Orleans. Coolmy, J.

      Randolph, Singleton & Browne, for plaintiff and appellee. Henry J. Leovy and A. Monroe, for defendants and appellants.
   Ludeling, C. J.

A collision occurred between the schooner Ladies’ Delight and the steamer Louise, in February, 1867, in Lake Pontchartrain. The owner of the Ladies’ Delight sued the owner of the steamer for damages.

The evidence shows that the schooner ran into the steamer amidships ; that the starboard wheel of the steamer passed over the bowsprit and bow of the schooner, and that the latter sunk. The-night. was dark and the schooner carried no lights, until she spied the Louise, when she showed a white light in front, while the steamer showed all the lights required by law. The officers of the steamer swear that they saw the light shown by the schooner, but that they could not tell the course of the craft carrying it until it was too late to prevent the schooner running into the steamer. They swear further that had the Ladies’ Delight carried the colored lights required by Congress, any seaman could have known the course of the vessel and have avoided colliding. Acts of twenty-ninth April, 1864. And they swear further that before the schooner struck the steamer the engine of the steamer was stopped.

Unless we reject the testimony of the officers of the Louise, we are bound to acquit them of all responsibility for the collision, and we see nothing in the record to impeach their veracity.

It is therefore ordered and adjudged that the judgment of the district court be avoided and annulled; that the verdict of the jury be set aside, and that there be judgment in favor of the defendant, rejecting the plaintiff’s demand, with costs of both courts.


author: Taliaferro, J.

text:
    No. 2981.
    Alfred Marchand v. St. F. & G. Casanave.
    The amount of the "bond for a suspensive appeal must be one-half over and above the amount of the judgment, including interest which has accrued thereon up to the filing of the bond.
    An appeal bond which is not sufficient in amount to exceed by one-half the amount of the judgment, including interest which has accrued, is not conditioned as the law directs, and the appeal will, therefore, be dismissed on motion.
    APPEAL from Fifth District Court of New Orleans. Leaumont, J.

      Uornor & JBenedict, for plaintiff and appellee. John S. Tully, for defendants and appellants.
   Taliaferro, J.

The plaintiff and appellee moves to dismiss the appeal on the following grounds:

First — The amount of the appeal bond is insufficient for a suspensive appeal.

Second — There is no order fixing the amount of the bond and the appeal can not be taken.

An examination of the record shows that the judgment rendered is for twelve hundred dollars, with interest at five per cent, per annum from twenty-eighth March, 1870. The bond is dated May — , 1870. The bond does not, therefore, exceed by one-half the amount of the judgment.

The order of appeal requires the bond to be conditioned as the raw directs, and does not specify any amount.

Both grounds for dismissal are, therefore, well taken.

It is ordered that the appeal be dismissed at costs of the appellants. C. P., article 575; 15 An., 333; 19 An,, 507.


text:
    No. 2016.
    Succession of L. W. Lyons.
    Xho grandmother, being in destitute circumstances, and without the means of support, is entitled, to an allowance as alimony from the estate of her grandchildren. This allowance should be made by the executrix or administratrix, when required, although the amount of the estate of the heirs be not yet definitely ascertained.
    The law does not require alimony to be given by the rich alone. But, in fixing the amount, the circumstances of those who are to pay and those who are to receive must be taken into consideration.
    An allowance of alimony should begin only from the date at which a necessity of the demand exists. Therefore, if it be not shown that the grandmother was in necessitous circumstances prior to making her application, she will only be allowed alimony from that date.
    APPEAL from the Second District Court of New Orleans. Duvigneaud, J.

      C. Moselms and Alfred Philips, for appellant. Cotton <& Levy, for appellee.
   Howe, J.

Mrs. Pry, mother of the deceased, instituted the proceeding now before us to compel the payment to her of alimony, on the ground that'she was in destitute circumstances.

Mrs. Lyons, the widow in community, and natural tutrix, opposed this claim of the grandmother, on the ground that the succession, though inventoried at nearly two hundred thousand dollars, owed debts exceeding one hundred and fifty thousand dollars, and that, after the settlement and division of the community, the residue coming to the children, from whom the grandmother thus claimed support, would barely suffice to support them; that the hulk of the succession was in the hands of a liquidating commercial partner; that the property yielded no revenue, and that, until the succession was settled, no fixed sum in alimony could be accorded without prejudice to the rights of creditors and others.

The district court gave judgment for fifty dollars per month from the date of Lyons’ death, payable at the end of each month, and Mrs. Lyons, the tutrix, has appealed.

It is claimed by her counsel that these grandchildren have no sufficient property for their own support, and can not he compelled to pay anything to the support of their aged and indigent grandmother. It appears to us, however, upon the record, that their estate amounts, in value, to at least sixteen thousand dollars, and that some alimony is due. It can hardly he that, in such a case, the person requiring daily support must wait till the succession he settled, and the amount precisely ascertained, for there would he a risk of starvation in the interim, for which the accuracy attained by the delay would hardly compensate. Nor do we think the moderate proportions of the estate likely to he saved for the children should dispense them entirely from the obligation of alimony. The law does not say that rich persons alone shall support their indigent ascendants and offspring. It declares that alimony shall he granted in proportion to the wants of the persons requiring it, and the circumstances of those who are to pay it. If the circumstances of the latter are narrow, the amount will, of course, he small, but it will be something. The fact, also, which appears of record, that the mother has succeeded the deceased father in the firm, and is carrying on a large business, and drawing two to, three hundred dollars a month for her support, has some weight. She owes these children support and education. We presume she discharges this obligation, and, by so much as she does, she increases their ability to discharge their duty to their grandmother.

It occurs to us, however, that the court erred in fixing the date from which alimony is to begin. The obligation is due only in case of actual need, and then ex officio pietatis, and should not accumulate by arrears. The fact that Mrs. Fry managed to maintain herself, as she did, up to the time of filing her petition, is proof that she was not in need prior to the application, in the sense of article 245, C. C. If she had been obliged to go in debt for her support, and thus anticipate her allowance, the rule might be different. In this regard, the views oí M. Demolombe, commenting on article 205, C. N., seem to be worthy of adoption. Volume 4, page 91. The petition upon which the court finally acted was filed October 15,1868.

It is therefore ordered that the judgment appealed from be amended in favor of appellant, so that the said alimony shall be payable only from the fifteenth of October, 1868; that, as thus amended, it be affirmed, and that appellee pay the costs of appeal.


text:
    No. 2513.
    Thomas J. Burke v. Louis Tregre.
    During the late war between the United States and the so-called Confederate States, and during the pendency of hostilities, the President of the United States, being Commander in CMef, was competent, when the, military forces had captured and taken possession of any one of the insurgent States; to constitute and cause to- be established a judicial tribunal, and to vest such tribunal with all the necessary authority for the administration of justice in said State, under the Constitution and the laws. A judicial tribunal thus created and:recognized by proclamation of the commanding general of the district within which it was vested with jurisdiction, was a court of record, and all its orders, decrees and judgments were entitled to full faith and credit, the same as any other legally constituted court of record.
    The courts of Louisiana will take judicial notice of all orders and proclamations issued by commanding generals during the time that the city and State were under military control. Therefore, the proclamation of General Shepley, Military Governor of Louisiana, giving official notice of the organization of an United States Provisional Court for the State of Louisiana, and of the appointment by the judge thereof of a clerk, prosecuting attorney and marshal) was sufficient to authorize said officers to act in their several capacities; and the purchasers of property at judicial sale made under the authority and decree of said Provisional Court, through the marshal thereof, were not required to look into the mode or regularity of his appointment.
    In this case the deed made by the marshal was lost or destroyed; the book of deeds of the marshal could not be found. The evidence showed besides that a writ of fieri facias had been ordered in writing by the attorney for plaintiff, indorsed by the clerk, issued; that the fieri facias could not be found after diligent search. Held — That under this showing the certified copy of the deed of the marshal from the records of the parish recorder was admissible in place of the original, and that such copy made full proof of what it contained.
    A purchaser of property at judicial sale is only required to show a judgment of á competent court, an execution, and the deed of the officer making the sale.
    APPEAL from the District Court, parish of St. John Baptist. Beauvais, J.

      J. B. BeeJcwith and Ojiarles Louque, for plaintiff and appellant. Berault, Legendre & BoeJie, for third opponent, appellee.
   Howell, J.

The plaintiff, as holder of two notes secured by mortgage, of date twenty-fourth March, 1865, obtained executory process and caused the mortgaged property to be seized on twenty-third July, 1868, as belonging to the defendant; whereupon A. Miltenberger opposed and enjoined the sale, on the ground that said property belongs to him, and has been in his quiet, continued possession by virtue of a judicial sale (the deed whereof was properly recorded) made on the third day of June, 1865, by the United States provisional marshal for the State of Louisiana, under a fieri facias issued oñ a judgment rendered in the case of A. Miltenberger & Co. v. Louis Tregre, No. 525 on the docket of the United States Provisional Conrt for the State of Louisiana, which judgment recognized a mortgage on said property for over eighty thousand dollars in favor of A. Miltenberger & Co., of date twentieth April, 1858, and the sale thereunder extinguished, the alleged mortgage in favor of plaintiff, Burke, and they prayed that the order of seizure and sale be rescinded, the alleged mortgage in favor of Burke be declared null and the injunction perpetuated.

The plaintiff, for answer, pleaded the general issue, specially denied Miltenberger’s title to and lawful possession of said property, the legal existence of said court, judgment and mortgage, and the official character of the alleged United States provisional marshal; charged the acts set forth by Miltenberger to be acts of trespass, and the pretended mortgage, judgment and sale, if they ever existed, to be collusive between the parties to defeat the just creditors of Tregre, and prayed for the dissolution of the injunction, with damages.

' Judgment was rendered perpetuating the injunction, and Burke appealed.

On the trial he reserved a bill of exceptions to. the admission as evidence of a copy of the judgment of the Provisional Court in said suit of A. Miltenberger & Co. v. L. Tregre, on the following grounds:

First — That the said court had no legal existence, not having been established by any constitutional or legal authority, and all its pretended proceedings and acts are absolute nullities.

It is a matter of history that in May, 1862, the United States took military possession of the city of New Orleans and the adjacent parishes, and on the twentieth October, 1862, an Executive order, (which is in evidence), was issued through the War Department, constituting a Provisional Court, as a court of record for the State of Louisiana, and appointing Charles A. Peabody, of New York, a provisional judge to hold said court, with authority to hear, try and determine all causes, civil and criminal, including causes in law, equity, revenue and admiralty, and particularly all such powers and jurisdiction as belong to the District and Circuit Courts of the United States, conforming his proceedings, .so far as possible, to the course of proceedings and practice which has been customary in the courts of the United States and Louisiana — his judgment to be final and conclusive;” also authorizing him to make all necessary, rules and regulations and appoint a prosecuting attorney, marshal and clerk of said court, the appointments to continue during the pleasure of the President, not extending beyond the military occupation of New Orleans, or the restoration of the civil authority in said city and in the State of Louisiana. Said officers to be paid out of the contingent fund of the War Department. \

It is also a part of history that on twenty-ninth December, 3862, George P. Shepley, Military Governor of Louisiana, issued a proclamation, of which we take judicial notice, giving official notice of the organization, under said order, of “ an United States Provisional Court for the State of Louisiana,” and of the appointment, by said judge, of George D. Lamont, prosecuting attorney, Augustus D'eB. Hughes, clerk, and Isaac Edward Clark, marshal of said court, and declaring that all judgments, decisions and decrees of said court, and all acts of said officers under authority of said court, are to bo respected and obeyed accordingly,

In the case of Leitendorfor v. Webb, 20 Howard, 176, the right of the commanding general, holding possession of New Mexico for the the United States, in virtue of military occupancy, to establish a provisional government, which ordained a judicial system, consisting of a superior or appellate court and circuit courts, was recognized and sustained. A fortiori, the President, who is commander in chief, has snch right and authority. In his order establishing the court, he declared the necessity for such a court, in the temporary subversion, by the -existing insurrection, of the civil institutions in this State, including the judiciary and the judicial authorities of the Union, and in the necessity of holding the State in military occupation. Having the power, and being the judge of the necessity, his order establishing the court in question, must be held sufficient authority for its legal existence as a court of record with the jurisdiction conferred. And, besides, its existence as such, was recognized by Congress in the act of twenty-eighth July, 1866, providing for the business and records thereof.

Second — If said court ever legally existed, it ceased to exist before the date of said judgment, by limitation of the terms of said order.

The judgment was rendered on seventeenth April, 1865, which was prior to the restoration of the civil authority in both city and State. The court was legally existing.

Third — The copy of said judgment is not certified by the seal and proper officer of said court, but by the clerk of a court without lawful custody of the records thereof.

It is certified by the clerk of the United States District Court, to which all the suits and records of said court were transferred by said act of Congress of twenty-eighth of July, 1866. See Statutes at Large for 1865-6, page 344.

Fourth — Said judgment on its face is absolutely null, because it does not appear to be an extract from the minutes of any court, to be rendered in open court, nor to be the act of any judge — not being signed by a judge.

The bill of exceptions shows that it was not the practice of the judge of said court to sign judgments, but the same were spread on the minutes and attested therefrom. The copy in evidence appears to be a part of the minutes of said court, concludes with the words, “Rendered April 17, 1865; signed April 26, 1865. By the Court. Signed, John T. Peabody, clerk,” and is certified, as above stated, to be a true copy by the clerk of the United States District Court. If any thing more is necessary, it is supported by the maxim “ omnia prwsumuntur rite esse acta.’1

Fifth and Seventh — These grounds relate to the absence of revenue stamps and the permission to affix the same, and are not urged in this court.

Sixth and Eighth — The copy is. incomplete as a judgment, because on its face a petition, account and act of mortgage are made part thereof, and are not produced, and no description nor identification of the property mortgaged is contained in said copy of the judgment.

These are objections to the effect and not the admissibility of the document. ■

II. A .second bill was taken to the admission of a copy of an act of mortgage of twentieth April, 1865, from Tregre and wife to A. Miltenberger & Co., referred to above, as part of the judgment, on the grounds that it does not appear to be a part of, or identified-with, the record or judgment in the suit of A. Miltenberger & Co. v. Louis Tregre ; if it ever was a part of said record, it has been abstracted and is not in proper custody ; it contradicts the mortgage granted in said judgment, and is for a different amount and description of debt.

Conceding opponent’s obligation to supply such proof, the document offered is sufficiently identified with the record and judgment to be-admissible in evidence for the purpose intended, and shows a mortgage for a sum far exceeding that for which the property sold.

III. A third bill was reserved to the introduction of the record of the suit No. 525, A. Miltenberger & Co. v. L. Tregre, on the grounds before urged, that said court was not legal; the transcript was not properly attested by a legal custodian ; is not a transcript of the proceedings of any court of record; is mutilated by the opponent; is irrelevant; does not show a valid final judgment, writ of fieri faeias and sale of property.

The views already expressed virtually dispose of these objections, which were properly overruled.

IV. The fourth bill taken to the admission of oral proof of a lost document is so vague as not to enable us to pass on it;

V. A fifth was taken to the introduction of the marshal’s deed of sale, on many grounds, the only ones requiring notice are, that, it is not the original nor a certified copy of the original, the loss of which is not accounted for; if the original ever existed, it was invalid, because Isaac Edward Clark, by whom it purports to be executed, had no- authority as marshal, there being no such officer as United States Provisional Marshal for Louisiana designated in the executive order creating the court, and if he was a legal officer, it does not appear that he had a fieri facias in his possession.

The document offered was a certified copy from the records of the parish recorder and was properly admitted as the best evidence existing, after proof that the original and the marshal’s book of deeds could not be found, and makes proof of its contents, including the recital that the sale was made by virtue of a writ of fieri facias, when supported, as it is, by evidence that a fieri facias had been ordered, in writing, by the attorney of plaintiffs, which was indorsed with, the word “issued” ; that the fieri facias could not be found after diligent search, and that the records of said court had been carelessly kept prior to their transfer to the present custodian.

As to the official character and authority of Clark, as Marshal, it need only be said that he was the officer acting, and purchasers are not required to look into the mode of their appointment, and besides, the military governor had made proclamation of his appointment and authority as marshal of said court.

We think the plaintiff in injunction has satisfactorily shown all that is legally required of a purchaser at a judicial sale, to wit, a judgment of a competent court, an execution, and the deed of the officer making the sale.

Judgment affirmed with costs.

Rehearing refused.


text:
    No. 1456.
    Succession of Octave S. Rousseau, deceased. Od Opposition to Tablean of Executrix.
    The charter of tho city of £Tow Orleans of 1856 accords no privilege in iavor of the city ot the contractor on tho property of a front proprietor for making a banquette or pavement on the street. Section 110 of the charter, which gives a priviloge in favor of the city foi •assessments of taxes on the property assessed, has reference only to assessments regularly made in conformity with law, and can not be extended by implication to other burdens authorized to be imposed on the property within the corporate limits of the city.
    In the distribution of tho proceeds of an insolvent estate, when the proceeds of the sale oi the personal effects are insufficient to discharge tho general privileges, and the proceeds of the sale of the real estate which is mortgaged, are required to contribute, tho proceeds of tho mortgage which is least ancient, must first be applied, and so on, in regular succession, or until the privileges are discharged. This rule applies, whether tho property mortgaged is situated in one or several parishes of the State; that is, if the mortgage on one piece of proport.y, in one parish, is less ancient than that of another parish, it must first be exhausted before that of the other parish, of a prior date of registry, can bo called upon, and the mortgage of tho latter parish, of prior date, can only be called upon to maleo up the delicie* Rebobtek — By an oversight, this case was placed among the list of unreported cases for 1869. See 21 An. 778, No. 1456.

      APPEAL from Second Distiict Court, parish of Orleans.

      Thomas, J. Randolph, Singleton ds Brown, for executor, appellant.

      Jlornor & Benedict, for John Coleman & Co., appellants.

      Bdward Bermudes and II. D. Ogden, for estate of Dufossat.
   Taliaferro, J.

On the fifth of December, 18G6, Aimee Rousseau, dative testamentary executrix of her deceased brother, filed a tableau and classification of the debts and claims against the estate, which is largely insolvent. Various oppositions were filed, but it is necessary to notice only two of these, which relate to claims for which privileges and priority of right are asserted upon the funds to be distributed.

The first of these is the opposition to the claim of Coleman & Co., of $371 23, with interest, for paving, for which he claims a privilege on the proceeds of the house and lot formerly belonging to the succession, situated on Esplanade street, in New Orleans.

. The other is that of Boisblanc & Dufossat, who represent mortgage-creditors, opposing the application of the proceeds of the'property, subject to their mortgage, to a pro rata distribution with those of the property subject to the mortgage of the executrix, to pay general privileges, there being no other fund out of which to pay them.

In amending the tableau and adjusting the claims bearing privilege and mortgage, the court below rejected the pretensions of Coleman &. Co. to the privilege'claimed for their debt, and subjected the proceeds of the property on which the mortgage of the executrix bore, to the payment of the general privileges, on the ground that her mortgage is the least ancient and first liable to the payment of general privileges in default of other funds to pay them. From this judgment Coleman & Co. and the executrix have appealed.

First — As to the claim of Coleman & Co. Under a contract with the city, they undertook to pavo a part of Esplanade street. A house and lot on that street, forming a part of the succession of Rousseau, was mortgaged to E. S. Dufossat, and the claim of Coleman & Co. is for paving in front of that property, for which, they aver, the property was bound, and that the law accords them a privilege upon the proceeds to secure the payment of their claim. It is objected that the privilege, if it ever existed, was accorded by the act of 1840, and that, according to that act, it is prescribed.

The counsel of Coleman & Co. refer to the act of 1850, revising the city charter, section 110, to show that for assessed taxes upon city property a privilege is granted upon the property subject to the tax, and that the privilege so granted continues until the tax is paid. They refer to a clause in the contract between the city and Coleman & Co. to show a subrogation to the latter of all the lights of the city to seize and sell the property in case of non-payment of-the bills for paving, and that the contractors were to collect the bills against the pronertv holders for their part of the cost of paving.

We find nothing in the act of 1850, revising the city charter, which establishes a privilege to secure the payment of the cost of paving. Section 110 of that act declares, “ that taxes, assessed under and by virtue of this act on the property, real or personal, of any person or corporation, are hereby declared to be a lien and privilege upon the said property, including stores of such persons or corporations, to date from the first day of March of the year for which they may be assessed, any alienation thereof or incumbrance thereon notwithstanding ; and said lien or privilege shall exist, in favor of the city of (New Orleans, for the respective amount of taxes assessed, until the same shall be fully paid ; and the same shall be paid in preference to all mortgages and incumbrances other than taxes due the State.” This seems to apply to the general annual tax founded upon assessment. Sections 119 and 120, after prescribing the conditions upon which paving and banquotting are to bo made, declare that the cost of the same shall be paid by the owner or owners of real property in front of the pavements and banquettes so made, but establish no privilege upon the property to secure the payment of the cost incurred. The act of 1840, page 51,. section 7, accorded a privilege of this kind, but the privilege continued only two years. If that act were still in force, the claimants could not avail themselves of it, for their claim would be prescribed. Their contract is dated ninth of May, 1860, and their paving bill was recorded in the mortgage office September 23, 1862.

Privileges being strieti j%iris, they can be recognized only in cases where they are clearly established by law. We think, therefore, the objection to the claim of Coleman & Co., as entitled to privilege, was properly sustained by the court. 4 An, 1; 11 Johnson, 80. See case of Roony v. Broun, 22 An. 51.

Second — The contest between the two sets of mortgage creditors, in relation to the onus of discharging the general privileges, unprovided for from other sources.

The opponents, Boisblanc and Soniat, executors of Mrs. Lise Dufossat, show that ’Choir mortgage was executed on the twenty-second April, 1862, and registered the next day.^ The mortgage in favor of Miss Aimee Rousseau, the executrix, was executed on the nineteenth of March, I860, and registered on the twenty-sixth of the same month. The first named mortgage bore upon the property of Rousseau on Esplanade street, in New Orleans •, the last on a tract of land in the parish of St. Bernard.

It is strenuously held on the part of the executrix that these mortgages being upon different pieces of property, and situated in different parishes, are of equal rank, notwithstanding their execution at different times, and consequently the contributions, to be made to pay the general privileges, should be pro rata from the proceeds of both the city property and that in St. Bernard; that the article 3236 of the Civil Code has reference to different mortgages on the same object, and not to different mortgages, affecting different objects.

In prescribing the manner in which mortgaged property shall be discussed to pay general privileges, when such a contingency arises, we are unable to find that the law makes any distinction between mortgages, on tbe ground that some affect one piece of property, and others a different piece.

We find but the one rule laid down for enforcing on mortgaged property general privileges unprovided for, and that is to proceed first against the property embraced by tbe mortgage which is least ancient; if that is insufficient to pay the privileges, then the property affected by the mortgage which next precedes the one least ancient, is put in requisition, and so on, in regular gradation, through the entire series, or until the privileges are acquitted. The date determines the rank, pro hao vice, and this seems clear from the fact that no equality of rank is recognized, except in one single case, and that is where mortgages are of the same date.

Nor do we see the impropriety urged against this rule. A, owning several tracts of land, mortgages one of them to B. In looking to his security, B sees that, in the contingency of A’s future insolvency and the possible retroaction of privileged claims against the immovable property of A, there are, between the property mortgaged to him and the privileges to bo enforced, several parcels of unincumbered property, to be first proceeded against, before be could be disturbed. Now if, subsequently to B’s mortgage, C should take a mortgage on these several immovables, and, in the event of a contribution by the mortgagesto discharge general privileges, he should be allowed to come in, pro rata, with B, claiming that his mortgage is of equal rank with B’s, and were sustained in the pretension, would not this be weakening B’s security? In other words, could A, by granting the supposed mortgage to C, placo B in a worse condition than lie was at first? Besides, parties are presumed to contract in reference to the laws existing at the time of the contract. In the hypothetical case proposed, C would ho presumed to know, when he accepted his mortgage, that, in the future, if general privileges should have to he enforced against the mortgaged immovables, the property subject to his mortgage would be first required to contribute, because his mortgage would be “ the least’ancient.”

But, whether the rule we have been considering, be a wise and equitable one or not, is not for us to determine. We are unable to give it any other construction, and that is in unison with the views frequently taken by our predecessors. See II An. 482; 18 An. 142, 3C9 and 721.

It is therefore ordered, adjudged and decreed that the judgment of the district court bo affirmed, with costs in both courts.