text:
    Michael Dickson, applying for a Monition.
    Where the property of minors is to be sold to effect a partition, there must bo an inventory and appraisement of the property, and the sale must be on such terms of credit as a family-meeting shall recommend. C. C. 1247, 1263, 1264.
    By the Act of 10th of March, 1847, the sale of succession property is authorized by auctioneers.
    Where the heirs of age have sued for the partition of property, have proved a sale and received their share of the price from the purchaser, they will not be allowed to oppose the homologation of the sale, it beingperfect as to them, *
    On application for a Monition.

      A. Lawson, for appellants.

      Gilbert for appellee.
   The judgment of the court was pronounced by

Preston, J.

Sidney J. Felps and Elizabeth Felps, heirs of age, owned a tract of land, situated in the parish of Caddo, in common with the minors, Elam Felps and Jasper N. Felps, represented by their tutor, Stephen Yarborough, The succession of James Felps, their ancestor, is open in the parish of Bossier.

The heirs of age presented their petition to the district court, in the parish of Bossier, praying a partition of this land, and that it should be sold for cash; alleging it to be indivisible in kind. The tutor accepted service of the petition, and consented to the sale for cash. The district court, thereupon, ordered the sale for cash, and that a commission should issue to the proper officer of the parish of Caddo to make the sale. The order was given to an auctioneer of that parish, who, after advertising the land for thirty days, in the English language only, sold it for cash, on the 30th day of March, 1847. Michael Dickson became the purchaser, for five hundred dollars, which was paid.

He has applied for a monition, to assure his title, under the acts of 1834 and 1837. Stephen Yarborough, the tutor of the minors, opposes the homologation of the sale, on the grounds: 1st. That the property was not appraised for the partition. 2d. That it was sold for cash. 3d. That it was sold by an auctioneer, and not by the sheriff of Caddo parish. And 4th. That the sale was not advertised in the French language.

The heirs of age opposed the homologation of the sale, on these and many other grounds. They cannot be heard; they conducted the proceedings for a partition, provoked the sale, and received the price of half the land from the purchaser. The sale is perfect as to them.

As to the minors, an inventory and appraisement of the land should have preceded the order of sale. C. C. art. 1247. -And their undivided half could not be sold for cash, but upon such terms of credit as might be recommended by a family meeting of the minors, as being for their best interest. C. C. articles 1263,1264.

The other questions raised by the tutor of the minors, it is unnecessary to decide. The Legislature, by express statutes, in 1847, have authorized the sale of succession property by auctioneers, and have dispensed with advertisements in the French language in the parish of Caddo, and many other parishes.

In setting aside the sale, as to the undivided half of the land belonging to the minors, it is indispensable to do yvllat Is just and equitable.

The judgment is reversed as to the minors, Sidney and Elizabeth Felps, and the sale of their undivided half of the land is annulled; Butitisdecreed,thatilííc7íac7 '.Dickson recover from Stephen Yarborough, individually, two hundred and fifty dollars, with legal interest from the 30th of March 1847, until paid. It is further decreed, that the sale of the undivided half of the land which belonged to Sidney J. Felps and Elizabeth Felps, be homologated and confirmed, unless Michael Eickson shall, in sixty days after this decree is returned to the district court, and becomes a judgment, renounce the sale before a notary public of the parish of Caddo; in which event, it is decreed, that he shall have a judicial.mortgage upon their undivided half of the land, for the restoration of two hundred and fifty dollars paid to them for the land, with legal interest from the 30th day of March, 1847. It is further decreed, that Michael Eickson pay half the costs of this appeal, and that the other half be paid by Sidney J. Felps and Elizabeth Felps, in solklo.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    James Clunas v. George Gallagher.
    The plaintiff sued upon a promissory note. The defendant answered that the plaintiff had received the note as agent of a firm, a member of which had died, and his agency had terminated. To interrogatories propounded to him, the plaintiff answered, that he held the note as agent, but that the firm was still in existence", notwithstanding the death of one of the members. Held: That under the circumstances, the plaintiffhad the right tomaintain the suit in his own name.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Wolfe and Singleton, for plaintiff.

      Pitts and Lancaster, for defendant.
   The judgment of the court was pronounced by „

Rost, J.

This is an action upon two promissory notes of the defendant, payable to the plaintiff, agent, or order. The defendant admits the execution of the notes, but avers that the plaintiff has now no right, title, or interest in them; that the notes were given to him as agent of Goodhue Co., a commercial firm, of the city of New York; that this firm has since been dissolved by the death of one of the partners; that the agency of the plaintiff terminated at the dissolution of the firm; and that he had no authority to institute this suit. The answer also contains a plea of want of consideration from Goodhue &f Co..

To establish his allegations, the defendant propounded interrogatories to the plaintiff, who, in his answers, admitted thatthe notes belonged to Goodhue 8f Co., and that Jonathan Goodhue, one of the partners, had since died. But he stated at the same time, in direct answers to questions asked, that the firm of Goodhue Co. was still in existence, and that he was their agent for the collection of this debt. x

This evidence is positive, and proves satisfactorily, that the firm was not dis s°lved by the death of Mr. Goodhue. The authority of the plaintiff, as agent, still subsists, and he may maintain an action upon the notes in his own name. Story on Agency, No. 394.

The defendant pleaded, as he had the right to do, want of consideration on the part of Goodhue Sf Co. But this defence is entirely unsupported by proof.

We are of opinion that the plaintiff is entitled to a judgment.

It is therefore ordered, that the judgment in this case be reversed. It is further ordered, that the plaintiff recover from the defendant the sum of $469 50, with legal interest, from 1st April, 1851, till paid, and costs in both courts.


author: Preston, J.

text:
    John C. Stephenson v. W. C. Lee et al.
    The defendant had attached a slave of the plaintiff; which the latter bonded. Afterwards, the plaintiff caused the slave to be sold on a mortgage in his own favor, which had not been recorded at the date of the attachment, and purchased the slave. The defendant obtained judgment, and caused the slave to be seized on execution. The plaintiff enjoinedíleld: That the slave was liable to defendant’s execution, and the injunction was dismissed, with damages.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, I.

      Durant and Horner, for plaintiff.

      Edwards and Rand for defendants.
   The judgment of the court was pronounced by

Preston, J.

Williajn C. Lee commenced suit against James S. Stephenson, and attached a slave named Henry. The plaintiff intervened and bonded the slave, and afterwards caused him to be sold, under a mortgage in his own favor, and became the purchaser.

Lee obtained judgment, and, notwithstanding the purchase by Stephenson, seized the slave under execution. The latter has enjoined the sale, on the ground, that he is the owner of the slave, by the adjudication under his mortgage. But he intervened in the attachment suit and obtained possession of the slave, on giving bond, the condition of which was, that he should satisfy any judgment that should be rendered against him in the suit. Now, judgment was rendered in that suit, to which he, by intervention, had rendered himself a party, that the plaintiff should have a privilege upon the slave attached. This is, substantially, a judgment that the intervenor satisfy the judgment, or deliver up the slave he bonded, to be sold under execution to satisfy the privilege decreed in favor of the plaintiff. It is inequitable to compel the plaintiff to resort to the bond of the intervenor, since the slave is still in his possession.

There is another consideration, which is conclusive against the plaintiff in injunction. After bonding the slave, he caused him to be sold and adjudicated to himself, by virtue of a mortgage in his favor. But it is stated, and not denied, that his mortgage was not registered in the mortgage office until after the slave was attached for the debt of the present defendant in injunction. The attachment, therefore, takes precedence of the unregistered mortgage. Act 24th March, 1810, § 4. C. C. art. .3314, and the property must be sold to carry the preference into effect.

Even if the registry of the sale of the slave attached, after he was bonded, might defeat the attachment, still, in this case, that sale was not completed and registered in the conveyance office. Therefore, it had no effect against third persons, and the property was still subject t'o seizure under the execution. Act of SOtli March, 1827, § 5.

The judgment of the district court, dissolving the injunction and giving damges, is affirmed, with costs.


text:
    Andrew Nachtrib v. Prague and Sherman
    A partnership engaged in running a sawmill, buying timber-, and manufacturing lumber out of it for sale, is a commercial partnership. C. C. 279G.
    A person engaged as a superintendent of a sawmill, and of the hands engaged in running it, will he regarded as an overseer, although he may himself labor, and his claim for wages is not barred by prescription under three years. C. C. 3503.
    PPEAL from the Fourth District Court of New Orleans, Strawbridge, ,1.

      Charles M. Emerson, for plaiutilf.

      Frank 'Haynes, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff claims from the defendants, in solido, the sum of >?508 11, balance alleged to be due for work and labor done for them, and care and attention bestowed by him on their business, at the rate of two dollars and a half per day, in conformity to an account annexed to the petition.

The defence is, that the claim is barred by the prescription of one year; that it is excessive, both as to the value of the services and the time charged; and that the defendants were not commercial partners, and are not liable in solido.

There was judgment according to the prayer of the petition, and Sherman, one of the defendants, has appealed. The defendants were running a sawmill, and the object of their partnership was to buy timber, and to manufacture lumber out of it for sale. This clearly comes within the definition of a commercial partnership, given by art. 2796 of the code; and has been expressly adjudged to be such, in the case of Hamblin's Succession v. Hamblin, Administratrix. 3 R. R. 130.

We concur with the view taken by the district’judge, that the plaintiff acted as the superintendent of the mill, and of the slaves attached thereto; and that the only prescription applicable to his claim, is the prescription of three years in art. 35.03. The circumstance that he was a- working overseer, cannot affect his rights.

It is urged, in behalf of the appellants, jthat art. 3499 of the code, which establishes the prescription of one year for the wages of workmen, is evidently taken from art. 2271 of the Napoleon Code. The only difference between the two, being as to the length of time after which prescription accrues; and that the courts of France have decided, that the superintendents of workmen, and the clerks of commercial houses are included in the category of workmen, within the meaning of that article. This may be, as stated by counsel, but the Code of France does not contain, as ours does, an express provision fixing a longer period for the prescription of the wages of overseers and clerks, without regard to the manner in which those wages are stipulated to be paid. Art. 3503.

The ground that the claim is excessive, involves mere questions of fact; and although we do not consider that appeal as being frivolous, we think the judgment is fully sustained by the evidence,

J udgment affirmed, with costs.


text:
    James S. Foley v. Bell and Stebbins.
    The defendants purchased a quantity of gunny bags and mess pork for and on account of the plaintiff, giving their own note in payment of the price. The articles were to be sold under tho directions of the plaintiff, and the proceeds applied to the payment of the notes which had been given by the defendants. Before the expiration of the time agreed upon, the defendants sold the gunny bags and pork without the knowledge of plaintiff. The plaintiff demanded the gunny hags and pork. The defendants offered to replace them with other articles of a similar quality. Held: That the defendants were liable to the plaintiff for the damages he had sustained by their having sold the articles.
    Where an agent has received gunny bags and mess pork, he is hound to deliver to the principal the exact articles received, and cannot replace them by similar articles. Any cus - tom to the contrary, is against law.
    A submission to arbitration, to he binding on the parties, must he in legal form.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      J. Finney, for plaintiff.

      Benjamin and Micou, for defendants.
   The judgment of the court was pronounced by

Rost, J.

Under a special agreement, and for a consideration deemed sufficient by the defendants, they purchased on account of the plaintiff, 50,000 gunny bags and 500 barrels of inspected mess pork, for which they gave their own notes, and agreed to store those articles in their warehouses, and to hold them for a stipulated time; the sales to be ultimately affected, not by the defendants themselves, but by the plaintiff, through the agency of his broker, Mr. Ellis, and the proceeds to be paid over to the defendants, to meet their outstanding notes.

Before the expiration of tho time agreed upon, the defendants sold the pork and gunny bags without the knowledge of the plaintiff or his broker. Subsequently, when the plaintiff gave directions to Ellis to sell, .it was ascertained by them that the merchandise purchased on the plaintiff’s account was no longer in the possession of the defendants, but they offered him to replace it with gunny-bags of tho same size and number and with other inspected mess pork. The plaintiff refusod this offer, and pork having risen, while gunny bags had fallen in value at the time of the demand, he claims the amount for which his gunny bags were sold, and the price mess pork was worth when he put the defendants in default.

The judgment of the district court is in conformity with the prayer of the petition, and allows tho plaintiff the balance coming to him after deducting the advances made by the defendants. The latter have appealed. The legal relations existing between these parties are so numerous and run into each other in such a manner, as makes it difficult to bring this case within the operation of the principles applicable to any of those relations; the defendants were creditors with an informal pledge, depositories and, in a limited sense, agents of the plaintiff. Factors, properly speaking, we do not think they were; the merchandise was not delivered to them for sale, and it does not appear that they were to receive a commission when it was sold. It may be taken for granted, however, that after the sale of the goods by them, their liability to the plaintiff is the same, whether they be considered as agents, or as depositaries, or as creditors selling the goods of their debtor in violation of thoir agreement not to do so. Unless they can show a legal justification for selling without authority, they must account to him for any profits they may have made in selling, and indemnify him for any loss he'has sustained by their failure to deliver the goods when commanded.

The general principle is not contested by the defendant’s counsel; but he argues, that, all gunny bags of the same size and number are alike, and that all branded and inspected mess pork is of uniform value ; that it is a custom of trade in this city to deliver gunny bags and pork- from the warehouse in which they are stored, without regard to marks or ownership; and that, under that custom, the plaintiff had ho claim upon them for the specific articles they had purchased on his account, but only for the same quantity of gunny bags and mess pork of equal value which they tendered, and were at all times willing to deliver to him.

It is true, that some of the witnesses have testified to the existence of such a usage; and the belief that it existed, may 'be sufficient to exonerate the defendants from the charge of fraud made by the plaintiff against them. But the evidence is not such as the law requires, to establish a custom of trade. The custom alleged, if it existed, would be contrary to law and good morals, and could not be recognized by a court of justice. Under it, the principal, in case of his agent’s failure, could no longer identify his property; and his right to take it back in kind would, in every case, be defeated. After the sale by the factor of the property of his principal, in' violation of orders, his interest becomes adverse to that of his employer. Having to return the property in kind, he has an interest in the fall of the market, and is subjected to the temptation of assisting to bring it about, in direct opposition of his duty to the principal who employs him.

It is not true, in point of fact, that all gunny bags of the same size are alike. The evidence shows that there are new and second-hand gunny bags in the market; nor is it the fact, that all inspected mess pork is of uniform value. The quality varies according to the time of the year at which it is packed, the manner of putting it up, the length of time it has been packed, and the place in which it has been kept.

It has been further urged, that the defendants were compelled to sell the pork because it was spoiling. This is not satisfactorily shown; and if it was, the defendants should have apprised the plaintiffs of the necessity to sell, that he might use his own discretion in the matter, he being in this city at the time.

The submission to arbitration was not in a legal form, and it is not shown that the plaintiff, who now repudiates the award of the arbitrators, ever agreed with the defendants to execute it.

We are of opinion, that there is no error in the judgment appealed from. It is therefore affirmed, with costs,


author: Slidell, J.

text:
    Jaques Soye v. Merchants’ Insurance Company.
    There is no rule of law or usage which requires the owner of an untenanted house to have it guarded by a keeper, to enable him to recover his insurance, in case of a loss of the building by fire.
    from the Fourth District1 Court of New Orleans, Stmwbridge, J.

      A. Pitot, for plaintiff

      L. Pierce, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

This action is upon a fire policy, by which a dwelling-house was insured. The defendants answered that they were not liable, because, at the time of the fire, and long previous thereto, the house had been abandoned, and was left open and without a tenant, and that with ordinary care, attention and supervision, the loss would not have occurred. There was judgment for the plaintiff, and the defendants have appealed.

It appears that the house was built about a year previous to the fire, and the assured had not, been able to procure a tenant, except during one month. The key of the house was left, during the principal portion of the time, with a neighbor, who was requested to rent or sell it, and who showed it to such persons as came to look at it. One witness says, that about two months before the fire, a window was left open for two or three nights and days; he mentioned it to the assured, and recommended to him to send some one to watch and occupy the house during the night. Another witness says, that several times in the daytime, (the dates he does not specify,) he had seen the front doors partially open; the house was in a thinly populated quarter; how the fire originated, does not clearly appear; but it is probable it was the work of an incendiary.

There is no clause in the policy, nor are we aware of any rule of law or usage, which would make it the duty of an assured to have his house, if untenanted, guarded by a keeper. It is said by counsel, that leaving an untenanted house open, is a temptation to incendiaries. But there is no evidence that the house was in that condition on the night of the fire, so that the legal effect of such negligence need not be determined.

Judgment affirmed, with costs.


text:
    Henry E. Morton v. S. B. Day.
    An owner of a vessel is not liable for goods purchased by the captain on the orders of merchants in the country, with the view of procuring freight, unless the owner, has either expressly or impliedly sanctioned such a course of dealing.
    from the Fourth District Court of New Orleans, Strawbridge, J.
    P. S. Warfield, for plaintiff.

      Race and Foster, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

The defendant was a part owner of the. steamboat Chalmette, and resided in New Orleans, The plaintiff, a merchant in New Orleans, seeks to make him liable for merchandise sold here, at various times, for the use of the boat, as is alleged. There was judgment for the defendant in the court below, and the plaintiffhas appealed.

The account was kept on the plaintiff’s books, in the name of the steamer Chalmette and owners. The plaintiff’s agent, who made the sales, testifies that he furnished the various items, mentioned in the account, to the captain, upon his representation that they were for the use of the boat, but that he "did not know that they wex-e so used. The account, however’, on its face plainly indicates, and it is satisfactorily shown by other evidence, that the goods could not have been bought for the boat’s consumption. They consisted of lots of sugar and coffee in quantities, entii'ely beyond the boat’s necessities; and were marked, as the account shows, with the address of merchants in Tennessee. These purchases were, probably, made by the captain, on orders from those parties, which he executed for the purpose of getting freight. This practice, by captains, of executing orders for goods, a witness says, is frequent; but, that he knew of no usage by which goods, so bought, are charged to the steamboat.

The case turns upon the question of the captain’s authority to bind his owner; and we readily concur with the district judge, in the opinion, that the defendant is not liable. The master is not the general agent of the owner. He is clothed with various incidental powers, resulting from his official capacity; but these, in the main, are restricted to such as belong to the usual employment of the vessel. An extraordinary transaction, like this, calls for a particular authority, either express, or resulting clearly from an antecedent similar and usual course of dealing, so adopted by the owner; as to hold the captain out to the public as his agent for such purposes. There is no evidence before us of any such authority from the defendant, either express or implied. See General Interest Insurance Company v. Ruggles, 12 Wheaton, 412. Peters v. Balleslier, 3 Pick. 495. Pope v. Nickerson, 3 Story 465. 3 Kent 160.

Judgment affirmed, with costs.


text:
    Godfrey Stancill v. Gilmore and Henderson.
    Where a party receives paper to collect as collateral security, he is bound to show that ho has returned it, or used, in vain, due diligence to collect it, otherwise, he willjbe liable for the amount. _ '
    Proof of the acknowledgments of a party by a single witness, is the weakest kind of evidence, and is insufficient to support a claim for over five hundred dollars.
    APPEAL from the First District Court of New-Orleans, Larue, J.

      J. II. Vandalson, for plaintiff.

      John Gedge, for defendant.
   The judgment of the court was pronounced by

Preston, J.

This suit is brought upon an account of old date. On the 1st of June, 1844, it appears by the account, there was due by the plaintiff to the defendants, the sum of $2746 31, for which he gave the defendants his note. The note is then brought into the account, and compensated by the following items: Commission for guaranteeing $2178, $54 45; half commission on 177 bales of cotton, $84 94; cash for goods attached and- sold, the 28th December, 1844, $497 07; amount of your receipt for sundry claims, dated Greenwood, 3d June, 1844, 1081 76; your receipt, dated the 1st June, 1844, $1647 93— $3366 15. Deduct the note, $2746 31. Balance, $619 84.

With this balance and interest, the plaintiff’s claim for $866 95 is made up, for which he obtained judgment.

The receipt, dated at Greenwood, the 3d of June, 1844, for a number of small claims, is produced, and shows that they were received by the defendants as collateral security for a claim due to them by the plaintiff, and if collected, or any part thereof, the proceeds were to be placed to his credit. The defendants are chargeable with those claims, unless returned, and due diligence to collect them is shown.

The two largest of the remaining items should- have been proved by written evidence.. There is no testimony in support of them, except that of a single witness, that the whole account was presented to Gilmore, one of the defendants, and that he acknowledged it to be correct.' This is the weakest kind of testimony of ancient claims against a deceased person, (Gilmore being dead,) and our code expressly requires, that to make full proof as to claims exceeding five hundred dollars, it should be corroborated by circumstances. No corroborating circumstances are offered in the present case.

The plaintiff might, therefore, be non-suited. But, we think, justice requires that the case should be remanded: 1st. That the plaintiff may produce the receipt for $1647 93. 2d. That he may show, by record or otherwise, the proceeds of his property attached and sold. 3d. That the defendants may account for the notes received at Greenwood, and credit their proceeds on their note. And lastly* that both parties may, by further evidence, establish their respective claims with that certainty which should always exist as the basis of a judgment.

The judgment of the district court is reversed, and the cause remanded, that it may be tried again; and the appellee is condemned to pay the costs of this appeal.


text:
    John E. Sparks et al. v. Steamer Saladin et al.
    A flatboat was tied to the bank of the river, about 250 yards below the steamboat landing, and a steamboat, in attempting to land, in a dark foggy night, came into collision with her. Held: That the steamer was liable for the damages caused by the collision, and that,, under the circumstances, she was not exempted from liability, because the flatboat had out no light.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      J. W. Frost, for plaintiffs.

      J. W. Price, L. Hunton and Garnet Duncan, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

The district judge, in his opinion, says: “It is clear that the collision was owing to a want of care and caution on the part of those who had the management of the steamer Saladin.” We think this opinion is sustained by the evidence. The night was foggy, and it was imprudent to run the boat in such weather.

The plaintiffs’ flatboat was fastened at the bank, at the usual place for mooring flatboats, at Natchez. The landing for steamboats was about two hundred and fifty yards below. The Saladin was working her engine, until she came within a short distance from the flatboat; and when the flatboat was seen, and the order given to back, it was too late. A collision ensued, by which the flatboat was sunk. It is said, there was negligence on the part of the plaintiffs in not having a light out, and some one on board to hail the steamer; by either of which precautions, it is contended, the disaster would have been prevented. But, it appears from the evidence, that it is not usual, at Natchez, for flatboats thus moored, to display a light and keep a man on the look-out; and we are not permitted to say, upon a review of the whole testimony, that the officers of the steamer had a right to expect any such warning or assistance, while propelling their boat in a dense fog, at the place in question.

Much stress was laid, by the counsel for the appellants, upon the opinion of the Supreme Court of Pennsylvania, in Simpson v. Hand, 6 Wharton, 325. Chief Justice Gibson, in that case, says, the hoisting of a light is a precaution so imperiously demanded by prudence, that I know not how the omission of it could be qualified by circumstances, any more than could the leaving of a crate of china in the track of a railroad car; or how it could' be considered otherwise than as negligence per se. The opinion is certainly entitled to great respect; but to appreciate its scope and meaning, it is necessary to look at the context and the facts before the court. The plaintiff’s goods were laden in a vessel called the Thorn, which was lying at anchor, in the night, in the river Delaware. The William Henry, being under sail, came into collision with the Thorn, which sprung aleak from the concussion, and the plaintiff’s goods were damaged by the water. He claimed compensation for this damage, from the owners of the William Henry. From the report of that case, it appears that the Delaware is the only navigable communication between the~city of Philadelphia, a place of great commerce, and the ocean. The channel is not wide. The Thorn was lying at anchor, in the middle of the channel. It was proved to be the custom of the river to set a light in nights of unusual darkness, and also for the crew of a vessel at anchor, in the stream, to give such a shear as may prevent a vessel in the act of passing her, from running foul, in case of accident. In view of such a state of facts, we find the Chief Justice closing his opinion with this remark: “ The jury ought to have been told, that if she was moored in the channel, without a light burning at the time, or that if her watch was not present, and did not what is customary on such occasions, her people were obnoxious to such a charge of negligence as would bar the action.” In another place, he observes, a vessel is not bound to show a light when she is moored out of harm’s way.

The present case is a very different one. Here was a flatboat tied to the bank at a place appropriated to that sort of crafhata considerable distance from the landing appropriated to steamboats; there was no want of conformity to custom, whereby a false confidence could be given to an approaching vessel; nor does there appear to have been any reason for the owner of the flatboat to expect that a steamboat would come to that part of the bank of the river.

Judgment affirmed, with costs.


author: Smdelx,, J.

text:
    J. T. and E. Bonham v. Overton, Chism & Co.
    Where a factor received a consignment with orders to soil for cash, sold to a person who, after receiving the merchandise, absconded without paying for it. Held-. That if it be conceded, that there is a usage of trade, the legality of which is questionable, to allow the buyer a few days to look over the bill, even in cash sales, before payment, still the factor is bound to act with due prudence in trusting the purchaser; and if he be not a person in good credit, the factor is liable to the consignor.
    APPEAL from the Fourth District Court of New Orleans, Strawlridge, J.

      Wolfe and Singleton, for plaintiffs.
    ' H. T. Hays, for defendant.
   The judgment of the court was pronounced by

Smdelx,, J.

The plaintiffs, who are merchants residing in Illinois, consigned to the defendants, factors in New Orleans, a-quantity of lard and pork for sale. On the 28th March, 1851, the defendants sold it to one Quinn. The price was $2471 79. It was weighed and delivered to him on the 29th. On the 30th, which was a Saturday, the bill was presented to Quinn. On the following Monday he was called upon for payment, and replied that he could not pay. On Tuesday, the defendants an'd another house, who had also made him a cash sale, induced Quinn to turn over to them some merchandise, to be applied to the payment of their claims. A day or two after this, Quinn absconded. The plaintiffs were credited with the amount thus collected; and there remained a deficit upon the price of the pork and lard, which the defendants declined to pay.

The defendants contend, that they have established, by the testimony in this cause, a usage to deliver merchandise of this sort after the weighing; to send in the bill as soon as tho weigher’s return is made, and to leave it a day or two for the purchaser's examination, before demanding the money.

The testimony of several merchants who were examined upon this subject, may be considered as proving that, in cash sales, delivery of such merchandise is frequently made a day or two before payment, where the seller is satisfied with the character and solvency of the buyer; the matter being, however, one of courtesy, and resting in the vendor’s discretion.

On the part of the plaintiffs it was contended, that the evidence was insufficient to prove a usage, certain, general, frequent and long established. It was also argued, and we are inclined to think correctly argued, that the alleged usage was unreasonable in itself, and one which courts should not encourage, because it opens a wide door to speculation and fraud. We have not, however, thought it necessary to pass upon these points. For even if it be conceded that the usage is satisfactorily proved, and is applicable to the case of a factor charged to sell for cash, the defendants are not, under the circumstances of this case, protected by it.

We are not satisfied, by the evidence, that the defendants acted with due prudence in trusting Quinn. It is proved, that he came to New Orleans about a year previous, a stranger, without capital, and in search of employment in some mercantile house. Being disappointed in this, he entered into business in a small way on his own account; and although he made, from time to time, cash purchases in a similar manner, he does not appear to have acquired, at any time, a well established mercantile, standing; and what credit he had enjoyed, was impaired before the defendants dealt with him. There was imprudence on the part of the defendants, in parting with the possession of the property before receiving the price ; and its consequences must be borne by themselves.

In stating our conclusion upon the question of prudence, we have not considered it necessary to enter into a detailed statement of the evidence; but it is not improper to observe, that a very cogent argument, in favor of the plaintiffs, may be deduced from the opinion and conduct of another house, who dealt with Quinn. A partner of this house was introduced as a witness by the defendants, to prove that they sold to Quinn goods consigned to them, and gave him possession before receiving the price. But the witness, on his cross-examination, stated, that his house had accounted to their consignor for the amount of Quinn's defalcation. He acknowledged that they had acted loosely in giving him credit, and that his position in the mercantile community did not entitle him to it.

It is therefore decreed, that the judgment of the district court be reversed; and that the plaintiffs recover from the defendants, the sum of $1323 17, with interest from 10th December, 1450, until paid, and costs in both courts.


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    J. H. Rhinehart, Executor. v. J. T. Doswell.
    The thing claimed, cannot be alienated during the pendency of the suit so as to prejudice the rights of the claimant. This principle applies even when the property is carried into another State, and there sold.

      The institution of a suit in Texas, for property which was subsequently removed to Louisiana and sold, is an interruption of prescription in Louisiana, if the suit in Texas has never been abandoned.
    A purchaser of property in Louisiana,which had been removed from Texas, where there was a suit pending for it, will be regarded as a possessor in good faith, unless he had notice of the suit in Texas. ' V '
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      John Finney, for plaintiff.

      Wolfe and Singleton, for defendant.
   The judgment of the court (Eustis, C. J., being absent,) was pronounced by

Preston, J.

This suit is instituted for the recovery of a slave named Harriet, and her son. On the 6th of April, 1840, Fisher purchased her at a sale made by the Sheriff of Claiborne county, in -the State of Mississippi. Her son was born afterwards. In December, 1840, he found theinin the possession of one Deroll, in Harris county, in the Republic of Texas, and instituted a suit for them. It does not appear by the record that the suib has ever been dismissed. Fisher died, and the plaintiff has been appointed his executor. Finding the slaves in this city in 1849, this suit, as stated, has been instituted to recover them.

The title of the plaintiff being indisputable, the defendant relies principally upon his plea of prescription. He, and those- under whom he claims, appear to have possessed the slaves more than five years, and which, if not interrupted, would support the plea of prescription under our laws. And, under the laws of Texas, it is shown that slaves are personal property, and that the title to them is prescribed by two years possession. But the plaintiff contends that the prescription, both here and there, is interrupted by the suit instituted in the Republic of Texas, for the slaves.

The defendant contends, that the suit was abandoned by an order of court made to change the venue from Harris, to Fort Bend county, because it was never carried into effect by a transfer of the record. This does not appear to us an abandonment of the suit by the plaintiff. Indeed, the order for the change of venue was obtained by the defendant. Until the record is transferred, the suit remains pending in the court in which it was instituted, and until transferred, the clerk of that court is the proper officer to authenticate the record.

The institution of this suit is not an abandonment of that against Deroll, but became necessary; because the slaves were found here. If the defendant had held the slaves in this State, in good faith for five years, we are not prepared to say that the suit pending in Texas, would have interrupted the prescription. But he purchased them in this city, from Theodore Wissell, a citizen of Texas, on the 14th of December, 1847. Now, it is a principle of our laws, that the thing claimed as the property of the claimant, cannot be alienated pending ■ file action, so as to prejudice his rights. C. C. 2428. If this principle prevails in Texas, and we are bound to presume it does until the contrary is shown, Wissell, at least, was bound to take notice of the suit pending in Texas for the property. It is true, it is admitted of record, that the common law prevails in Texas, but we are under the impression that in an action of detinue, to which the sequestration suit instituted in Harris county may be likened, the property is specifically recoyered into whatever hands it may pass during the pendency of the suit, otherwise, the suit would be nugatoiy. "The principle is general, and applicable to personal as well as real property. Therefore, the suit which has been so long pending in Texas, interrupts the prescription which has been plead under the possession of Wissell, who is a citizen of Texas. Still, we consider the defendant a -purchaser and possessor in good faith, notwithstanding the pendency of a suit for the property in another State, it would be extending the constructive notice of suits too far, to oblige our citizens to take notice of suits, pending in other States, to be possessors in good faith in the purchase of slaves. Therefore, the allowance of hire for the slaves, from the time of the defendant’s purchase, instead of from the time he was put in default by a suit, was an error.

The judgment of the district court is affirmed, so far as the defendant is condemned to deliver the slaves, Harriet and Newton to'the plaintiff, with costs in the district court. It is reversed, as to the amount of hire decreed to him before the institution of this suit. He is adjudged to pay the plaintiff twelve dollars a month for the hire of the slaves, from the 25th of July, 1849, until they are delived to the plaintiff, who is condemned to pay the costs of the appeal. It is further decreed, that the defendant recover from his warrantor, Theodore Wissell, the sum of seven hundred and fifty dollars, with interest from the 2d day of July, 1849, until paid, and the costs in the district court.


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    Samuel Harmon v. Paul Juge Fils & Co. et al.
    Attachments must be satisfied in the order in which they are levied. 6. P. 265.
    To entitle an attachment creditor to be paid out of the property attached, it is not essential that the judgmont should decree a privilege upon the property. A judgment decreeing that the debt be paid out of the property attached, is equivalent to a judgment decreeing a privilege.
    The privilege for rent due, is entitled to a preference over that of an attaching creditor.
    from the District Court of Jefferson, Ciarle. J.

      Purvis and James Brewer, for Longis, appellant.

      J. J. Michel, for Juge Fils Sf Co., appellees.
   The judgment of the court was pronounced by

Preston, J.

A stock of goods were sold under a writ of fieri facias, in the suit of Paul Juge Sf Co., against Despus Sf Co. They commenced an ordinary suit, but afterwards obtained an attachment, on affidavit that the defendants were about to depart from the State. In their judgment, it was decreed, that they should be paid, with privilege upon the property attached.

Previously to their attachment, however, the same property had been attached at the suit of Pierre Longis, on the same ground. He obtained judgment, with a decree that the property should be subject to the judgment, and sold to pay the same.

Samuel Harmon took a rule on both parties, to show cause why the proceeds of the property sold by the sheriff, should not be paid over to hbn, in satisfaction of a judgment he had obtained for rent, with the landlord’s privilege. Longis contested his right to rent, on the ground, that Despus Sf Co. had sold their stock to him for a large sum; that the rent, before the sale, was extinguished by the price, and that he could not be landlord and tenant both, after the sale; and, therefore, no rent was due. A bill of sale of the effects in the store, made before a notary, was produced. Nevertheless, it was admitted that Despus. Sf Co. were in possession of the effects at the time of the attachment. The sale had not, therefore, been carried into effect by delivery, and the court very properly allowed the rent out of the proceeds of the sheriff’s sale. But as to the balance of the fund, the court allowed a preference to Juge Sf Co. over Lon gis, on the ground, that the judgment in favor of the former decreed a privilege, whilst the judgment in favor of the latter did not. - That was an error.

The suits-of the respective parties show that neither had a preference to be paid out of-the proceeds of the property, except by virtue of their attachments. The prior attachment of Longis gave him a- preference over Juge Sf Co. The judgment in his favor decreed, that the property attached was subject to his judgment, which should be paid out of the same. The judgment in favor of Juge Sf Co. substantially decreed no more.

Attachments must be satisfied in the order in which they are levied, otherwise the process of the court, in the first attachment, might be rendered nugatory, and the 265 article of the Code of Practice, which authorizes the attaching creditor to have the property attached sold to satisfy his judgment, of no avail.

The judgment in favor of Samuel Harmon is confirmed. The remainder of the judgment is reversed; and it is decreed that Pierre Longis be paid four hundred and thirty-one dollars, the amount of his judgment, with the legal interest allowed in the judgment, out of the proceeds of the property attached by him, in preference to Paul Juge Fils Sf Co., who are condemned to pay the costs of the appeal.


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    William H. Cobb v. Owen Franks et al.
    The law gives to the District Court a discretion in granting a continuance, and judgment will not be reversed, because a continuance was refused, unless the erroneous exercise of that discretion is manifest.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.
    In this case, the counsel for defendants, in answer to a rule to show cause why the testimony of a witness, Fitzpatrick, taken under a commission, should not be readtin evidence:
    “ 1st. The commission is not duly executed according to law; in that, it does not appear that the witness came before tjie commissioner, and duly examined upon his corporeal oath, and that the testimony was reduced to writing by the commissioner; that the testimony appeared in the handwriting of the witness; that the testimony is not taken by regular examination in order of interrogatories, but the answers to direct interrogatories are separate from those to cross-interrogatories, and separately certified by the commissioner.
    “ 2d. That the jurat and return of commissioner, is not in accordance with law.
    “ 3d, That it does not appear that the commissioner, who signs himself as justice of the peace, was such officer at the time of his certificate.
    “ 4th. That thei’e is no seal of commissioner attached.”
    The evidence was rejected in the district court.

      Wolfe and Singleton, for plaintiff.

      Face and Foster, for defendants.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff sues the .defendants for the value of ten bales of cotton, which he alleges that he shipped onboard their boat at Port Caddo, on Red River, to be freighted to New Orleans ; and that they did not deliver the same to the consignees, and have rendered no account of the cotton.

The plaintiff sustained his allegations by testimony, and obtained judgment, which must be confirmed, unless there be such errors in the progress of the suit as require that the case should be remanded. When the case was called for trial, the counsel of the defendant's applied for a continuance, on account of the absence of Hudnell, a material witness, for whom he had issued a subpoena.

From the institution of the suit until its trial, a period of nearly three months, it is proved that Hudnell was bonstantly employed as clerk of a steamboat in the Ouachita trade. The defendants, who had been served personally with process, had not communicated that fact to their agent or counsel in the city. They had, indeed, communicated to their counsel the place of his residence in the city; but that was calculated to lead him into the error, of supposing that he might ordinarily be found there, while on account of the trips of the boat on which he was employed, he could not ordinarily be there more than once in near two weeks.

We are compelled, with the district court, to consider him, as to this case, a transient person; and that the defendants were negligent in not communicating this fact to their agent or counsel, in order that his deposition might have been taken. If the precise facts which he could prove by the witness had been stated, and had been deemed very important, the plaintiff declining to admit them, perhaps the court might have exercised its discretion differently. But as the law gives to the district court a discretion as to granting a continuance, we cannot reverse a judgment, because it was not granted, unless the erroneous exercise of discretion is very manifest. 14 L. R. 141. 17 L-R. 379. Hewlet v. Henderson, 9 R. R. 151. That does not appear in the present case.

We are under the impression, that the objections to Fitzpatrick's testimony are not tenable; but it is unnecessary to examine them, as the plaintiff has made out his case by the testimony of other witnesses.

The judgment of the district court is affirmed, with costs.


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    Samuel L. Forgay v. Edwin J. Ferguson.
    Where an ordinance of the city of Lafayette, under which a contract for paving was made, allowed five per cent to be recovered from the persons assessed after default, and the Legislature subsequently passed an act allowing eight per cent, only five percent can he recovered on that contract.
    APPEAL from the District Court of Jefferson, Clark, J.

      W. H- Hunt, for plaintiff.

      A. W. Jourdan, for defendant.
   The judgment of the court (Eustis, C. J., being absent,) was pronounced by

Preston, J.

The plaintiff sues the defendant for one-third of the cost of the pavement of Magazine street, in front of the defendant’s property. The plaintiff did the work in pursuance of a contract with the city of Lafayette, made on the 30th of April, 1846. The contract was made by authority of acts of the Legislature, passed in 1844,1843 and previously, and in pursuance of ordinances of the City Council of Lafayette, approved the 5thof March, and 16th and 23d of April, 1846, which were given in evidence. Three objections are made to the payment of the plaintiff’s demand.

1st. That the contract was never complied with. The work was accepted by the city, and the evidence satisfies us that the defendant has no just cause of complaint, as to its execution.

2d. That the plaintiff was not subrogated to the rights of the city of Lafayette, and cannot sue in his own name for the claim. The contract between the plaintiff and the city of Lafayette, expressly declares, that “the said Forgay shall have the right, under the authority of the city council, to collect from the differént owners of property, in front of which paving shall be done, their proportion of the cost of paving and curb-stone.” There was the same provision in the ordinance under which the work was done, and the proper officers of the corporation approved and delivered the bills to the plaintiff.

The defendant lastly complains, that eight per cent interest was allowed by the judgment, while the act of 1843, and ordinance of the 5th of March, 1846, under which the contract was made, allows but six per cent interest. The plaintiff relies upon the act of the 29th of April, 1846, which allows eight per cent interest on the contracts for public works in the city of Lafayette. This law was passed after the ordinance under which the contract was made, and must have been published subsequently to the making of the contract. It cannot therefore, effect or add to the contract. C. C. art. 8.

The judgment is erroneous, as to the interest, and is so far reversed, at the costs of the appellee; but is otherwise affirmed, with six per cent interest, from the 23d of May, 1849, until the amount of the judgment is paid.


author: Eustis, C. J.

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    Benjamin Poydras v. W. Laurans et al.
    Where a person, acting as agent, buys property for his principal in bis own name, without stating the agency, the effect of the title, when recorded, is to make the agent the owner, so far as third persons are concerned. The only cases in which there has been any exception„to the effect of the registiy laws, are those of gross fraud on the part of the subsequent purchaser.
    On the purchase of real property, in the name of a partnership, the partners become joint owners of the property, and a creditor of the partnership cannot claim to be paid out of it in preference to an ordinary creditor.
    from the District Court of New Orleans, Iátrawbridge, J.

      Miles Taylor, for plaintiff.

      C. Roselms, for defendants.
   The judgment of the court was prepared by

Eustis, C. J.

The plaintiff alleges himself to be the sole owner of a certain lot of ground situated in-the First Municipality, and to have been in undisturbed possession thereof since the 28th of February, 1840, the date of his purchase from his vendor, Edward Hamilton ; that the sheriff has seized and advertised for sale, under an execution against Lubin Gamier, the one undivided half interest, of said Gamier in said lot, to satisfy a judgment against said Gamier, obtained by the defendant, Laurans, in the district court held at East Baton Rouge; he obtained an injunction against further proceedings under the execution'. The defendant contends, that the interest of Lubin Gamier in the lot is subject to the execution against him. The court below decided in favor of the defendant, dissolved the injunction, and amerced the plaintiff and his surety in damages. The plaintiff has appealed.

In 1840, the plaintiff was the creditor of Hamilton, and the latter transferred and sold to the commercial firm of J. and L. Gamier, composed of John and Lubin Gamier, of New Orleans, the lotin question. The act of sale was signed by Lubin Gamier, who appeared as the bearer of the note of Hamilton, which belonged to the plaintiff, and formed a part of the consideration of the sale. The act bears date the 28th of February, 1840. J. and L. Gamier were the agents of the plaintiff, and although the transaction appears in their names, the proof is clear that it was on the Iona fide account of the plaintiff, and we think the possession must be considered to have been in the plaintiff since that period. The lot was assessed in his name, taxed in his name, and the receipts for rent are all taken from the tenants in his name. On the lot, at the time of the sale, there was an old building of little value; the plaintiff replaced it by valuable new buildings. J. and L. Gamier continued to be the agents of the plaintiff until 1842, when the firm was dissolved. Lubin Gamier was his agent until 1847, and was succeeded by Messrs■ JRockereau 8f Co., his present agents. The plaintiff did not reside in the city, and his business, the management of his property therein, and the collection of his rents, was confided to his agents. The present proceedings were instituted in 1849; so that the possession of the plaintiff was less than ten years, and no title has been acquired by him, by reason of the prescription of that term.

The plaintiff suffered the title of this property to be taken in the name of J. and L. Gamier, and.to remain in their name. There is no notarial act, no record whatever of any interest of his in it, or to create the belief that it belonged to any other person than to those in whose name it stood. The district judge decided in favor of the defendants, on the non-recording of the plaintiff’s title in the office of the register of conveyances in New Orleans. The act of 1827, creating this office, makes it the duty of the register to record all acts of transfer of immovables or slaves, passed in the city and parish of New Orleans, which shall have, been presented to Mm by the parties, and then declares, that said acts of transfer of immovables, whenever they are not registered agreeably to that law, shall have no effect against third persons but from the day of their being registered.

The only record of the title to this property existing, showed it to belong to J. and L. Gamier, the vendees in the sale from Hamilton. The effect of this title, whatever may have been the rights of the real owner, Poydras, in relation to it, as between him and J. and L. Gamier, was to make them the owners so far as third persons were concerned. The cases on this subject are numerous. See Dozier v. Squires, 13 L. R. 131. Hyams v. Richardson, 286. Foster’s Heirs v. Farrar’s, 11 L. R. 408. Stockton v. Craddick, 4th Ann. 283. Leverich v. Toby, 6th Ann. C. C. 2417. But as the case has been argued, principally as to the effect of the registry law of 1827, we do not decide it on this ground.

The counsel for the plaintiff has urged to the court the rule, which obtains in England and most of the United States, that notice to a party constitutes such an equity as entitles him to protection. The statutes of England, relating to their registry laws, which apply to certain counties only, as well as those of several of the States, are not similar to ours on the same subject. The decisions under those statutes, as to what notice will save the holder of an unregistered deed, form no part of our jurisprudence. Nor has the doctrine ever been recognized by this court, that posssession under an act of sale not recorded, was sufficient evidence of notice to creditors and subsequent purchasers, to defeat the operation of the registry laws. In the case of Tulane v. Levison, 2d Ann. 789, we said: “ The theory, that notice is equivalent to registry in relation to conveyances of real property, we do not understand to have been adopted in our jurisprudence.” The subject has been several times under consideration, and the difficulties attending every mode in which laws of that description have been carried into effect in different countries, have been examined and weighed. The only oases in which there has been any exception to the effect of registry of conveyances, are those of gross fraud on the part of subsequent purchasers. Splane v. Mitcheltree, 2d Ann. 265. McGill v. McGill, 4th Ann. 269.

The case of Tulane v. Levison, cited, was' similar, in many respects, to this, though it did not come within the statute of 1827, which relates to New Orleans exclusively. The opinion of the court statels our view as to the rights of creditors. In this case, Barney was the owner of a lot in the town of Natchitoches. He sold to Bartlett, in 1842, by public act, in New Orleans. The act was recorded in the office of the parish judge of‘Natchitoches, but in the wrong book: in the book of mortgages, instead -of that of conveyances. The plaintiff purchased at a sheriff’s sale, in 1843, which was made under an execution issued on a judgment obtained by the plaintiff against Barney. The possession was equivocal. The plaintiff recovered the lot from the heirs of Bartlett. The court said:

“ The title to the lot being in the name of Barney on the public- records, it became subject to the mortgage, which the. recording of the judgment created on the 3d day of May, 1842, and, we think, could he lawfully seized under the execution issued on the judgment, and sold to satisfy the same. It seems to follow, as a necessary consequence, that, if it could be lawfully sold under this state of things, a purchaser, having a knowledge of the facts, would be justified in buying the property.

“ It is in evidence, that the plaintiff’s attorney, before the issuing of the fieri facias under which they became the purchasers, was apprised of the existence of the act of sale to Bartlett, and of its being recorded in the mortgage office; but that, on finding no record of it in the office of the parish judge, he had the lot seized and bought in for his clients, the plaintiffs. As we consider the right of the plaintiffs to have the property sold to satisfy then' debt, paramount to that of the defendant under his unrecorded deed, by virtue of their recorded judgment, we do not see how that right can be impaired by this knowledge on the part of the attorney.”

Where an owner is in possession, under a recorded title, we have considered the objectof the registry laws attained, and have protected him from disturbance from a title acquired, under an intermediate recorded conveyance, from a party not in possession. Stockton v. Briscoe, 1st Ann. 249. McGill v. McGill, cited. Cotton v Stacker, 5th Ib. 677. In the latter case, the court said: “ In Stockton v„ Briscoe, we held that the object of the registry laws is to malte apparent the ownership of property, and that whenever the ownership appears on the public records, by proper titles, the object is attained.” We adhere to this opinion. We do not.believe it is the intent, and we are sure it is not the policy, of the registry laws to defeat the titles of purchaser's, in good faith, under recorded deeds, on the ground that an anterior conveyance, however remote, of the same property may not have been recorded. Such an interpretation would, in our opinion, .effectually destroy the security of property, for which registry laws are established.

In each of these cases the subject was fully considered, and the court was not unanimous in its opinion. Mr. Justice Slidell dissented, and thought the cases within the registry acts, and that their provisions should be applied to them.

The cases cited from the Louisiana Reports, by the counsel for the defendant, Williams v. Hagan, 2 L. R. 123, Armstead v. Bowden, 5 L. R. 263, The Syndic of McManus v. Jewitt, 6 L. R. 541, we think, are conclusive as to rights of the judgment creditor, under Ms execution, against property standing in the office of the register of conveyances in the name of the defendant.

We think that the words of the act of 1827 are so plain, and its object is 50 evident, that it interprets itself, and that effect must be given to it in all cases in which it does not conflict with some paramount principle of law, and in the present case we can discover none which should obstruct its operation. The plaintiff let his property remain for years in the names of others, and never took a conveyance of it. There is no propriety in straining a statute to relieve a party in this situation.

It is contended by the counsel for the plaintiff, that if this lot is not considered as belonging to Poydras, it must be some part of the partnership property of L. and A. Gamier and is not liable to seizure at the instance of a creditor of one of the partners. The case of Skillman v. Purnell, 3 L. R. 497, answers this objection. J. and L. Gameir’s can only be considered as to third persons, as joint owners. Thoir partnership, by the plaintiffs own showing, was dissolved about the year 1842.

Nor is there any more force in the objection that Poydras, by this affair, becomes the creditor of the partnership, and has a preference to be paid out of the proceeds of the sale of the properly. If Ms property goes to pay Lubin Garnier’s debt, he becomes the creditor of Lubin Gamier, and may take the judgment Ms property has satisfied, but this does not make Mm a creditor of the partnership, against wMch it is clear he has no claim whatsoever.

The district judge, in dissolving the injunction, condemned the plaintiff and his security in solido, to pay twelve per cent damages, and eight per cent interest. The act of 1833, relating to injunctions obtained by third persons, vests the power to assess damages in the discretion of the court.

We do not think the present case, one calling for damages against the party-obtaining the injunction.

The judgment of the district court, allowing damages and interest against the plaintiff and his surity on the injunction bond, is, therefore, reversed, and, in other respects, the same is affirmed; the appellee paying the costs of this appeal.


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    Turner, Wilson & Co. v. John L. Lewis, et al.
    Where the plaintiffs had carried on the business of making advances to a party on consignments, payments made to them, in the course of that business, will be imputed to the mercantile account, and not to a mortgage note held by them on the party.
    In a contest between two mortgage creditors, for a particular fund, the interest of the debtor being equally balanced, he is a competent witness.
    APPEAL from the District Court of Jefferson, Clark, J.

      W. H. Paxton, for plaintiffs.

      John R. Grymes, for defendants.
   The judgment ofthecourt (Eustis, C. J., being absent) was pronounced by

Preston, J.

J. C. Smith caused to be sold by an order of seizure and sale, on the oldest mortgage, a house and lot in the parish of Jefferson, belonging to Warren L. Burgess, and became the purchaser. There was a balance of $731 over and above the claim of Smith, and which he paid into court. Turner, Wilson Sf Co. held a note of W. L. Burgess, for $4500, secured by special mortgage upon the same property. The mortgage was executed and recorded on the 16th of January, 1849. Join L. Lewis obtained a judgment against Burgess, for $3,254, and recorded it in the parish of Jefferson, on the 8th of March,-1850, to operate as a judicial mortgage upon the same property.

Turner, Wilson Sy Co. have taken a rule against Lewis, to show cause why the money deposited in court, the balance of the proceeds of the mortgaged property, should not be paid over to them, as holders of an older mortgage than the judicial mortgage in his favor, by virtue of the registry of his judgment.

Lewis answers, that the debt of Burgess to the plaintiffs in the rule, has been compensated and extinguished, and claims the money in court. It was incumbent on him, under these circumstances, to show the payment of the mortgage note by testimony. For that purpose, he called for the production by the plaintiffs in the rule, of an account current between them and Burgess of extensive mercantile transactions. They produced the account called for, but it contains no mention of the mortgage note. It is evident, therefore, that to be of any avail in the defence, the account current must be connected by parol evidence or otherwise, with the mortgage note. The plaintiffs admit that they charged Burgess with two acceptances, of his drafts, in favor of Pickett, Perkins Sy Co. given for the note, amounting to $1,599,37. The presumption is, that they paid their acceptances, but it is obvious, that they did not intend to charge Burgess more than the amount of their acceptances for the note, because they carried the acceptances into the account current with him., In other words, they purchased the note on his account, and held it as security for the price paid by them. If, therefore, the acceptances had ever been repaid by Burgess, they, and the note for which they were given, would have been extinguished.

But the account current shows that the balance against Burgess was never reduced below the amount now in court, and which is claimed by the plaintiffs. The question arises, then, whether payments made subsequently to the acceptances must be imputed to them, or to the mercantile business of the parties. The account shows no imputation, nor were any receipts taken. The question must, therefore, be determined by evidence.

The plaintiffs kept the mortgage note, and probably the acceptances, as the contrary is not shown. This indicated the intention of the parties, that the payments should not extinguish them. The plaintiff stated, in furnishing the account, that the charges against Burgess consisted of moneys advanced to him, from time to time, to purchase produce in their name, and therefore to be sold on their account; and the general tenor of the account corresponds with this statement. Burgess admits, in an -affidavit offered in evidence, that the advances were to be reimbursed by the sales of the produce, and that the profits made out of the purchases were alone to be applied to the payment of his note; and this is proved by a witness to have been the nature of the business between the parties.

The testimony of Burgess cannot be rejected on the ground that he was interested in the cause, because it is immaterial to him which of his two creditors receives the money in court; nor can the testimony of himself and the other witnesses be rejected as contradicting the account current. It merely explains it, ■and shows that the moneys received- by the plaintiffs were for their advances, to cany on a mercantile business, and not on account of the mortgage note or the acceptances given for it; or, in other words, that the nature of the mercantile business between the parties, was inconsistent with the imputation of payments to the mortgage debt until the mercantile advances were reimbursed; and indeed the imputation of the payments to those advances was for the interest of Burgess, as he could not otherwise have carried on the mercantile business out of which he hoped to make a profit to extinguish the mortgage.

There is no proof that the acceptances were given up by Turner, Wilson Sf Co., much less the mortgage note; therefore, there was not as contended, a novation or the substitution of a mercantile balance for these higher and better evidences of indebtedness. The case does not, therfore, fall within the principle established in Bell v. Murphy, 2d Ann. 765; also, 1 L. R. 527, and 2 R. R. 59, that on giving up a mortgage for a new note, the debt is novated and the mortgage extinguished.

The judgment of the district court is affirmed, with costs.


author: Slidell. J.

text:
    D. Casey v. James Pennoyer.
    An agreement "between parties for the. sale of a vessel, in which it is stipulated, that upon the payment of the notes given for the price, the vendor will execute a formal act of sale, will be regarded between the parties as an actual sale, and^the purchaser may be compelled to pay the price.
    APPEAL from the Fourth District Court of New Orleans.' Slrawhidge, J.
    This suit was brought on several promissory notes and bills of exchange given by the defendant, for the purchase of a steamboat. The defendant denied his liability, upon the ground that the vendor had never executed title to him. The judgment of the district court wjas in favor of defendant, and the plaintiff appealed. The following is the agreement, out of which the controversy arose:
    “ This agreement made and entered into this 11th day of November, in the year 1845, between William H. Brown, of the city of New York, of the first part, and James Pennoyer, of New Orleans, of the second part, witnesseth as follows:
    “Whereas, the said party of the second part, has delivered to the party of the first part, six drafts or bills of exchange, and two promissory notes of the dates, and for the amounts following, viz : One draft drawn by the said Pennoyer on Thomas Barrett, of New Orleans, for one thousand and seventy-five dollars ($1075,) dated September 25th, 1845, and payable thirty days after sight; one other draft drawn by the said Pennoyer on the said Barrett, for one thousand and seventy-five dollars ($1075,) of the same date, and payable sixty days after sight; one other draft drawn by the said Pennoyer on the said Barrett, of the same date, for eight hundred and fifty dollars ($850,) and payable ninety days after sight; one other draft drawn by the said Pennoyer on the said Barrett, of the same date, for eight hundred and fifty dollars ($850,) and payable four months after sight; one other draft drawn by the said Pennoyer, for one thousand and seventy-five dollars ($1075,) of the same date, and payable thirty days after sight; one other draft of the same date, dratvn by the said Pennoyer, for one thousand and seventy-five dollars ($1075,) and payable sixty days after sight; one promissory note drawn by the said Pennoyer, payable to the order of the said Broum, for two thousand and five hundred dollars ($2500,) dated October 1st, 1845, and payable seven months after date; one other promissory note drawn by the said Pennoyer, payable to the order of the said Brown, for two thousand six hundred and fifty dollars, of the same date, and payable fourteen months after date.

      Now, if the said drafts shall, each and every of them, be accepted, and he, the said Pennoyer, shall cause them to be paid, as they and each of them respeclively become.due and payable; and if he, the said Pennoyer, shall pay, or cause to be paid, each of the said promissory notes, -as they shall respectively become due and payable, according to the terms thereof, he, the said Brown, for himself, agrees that when the last payment shall be made, that he shall and will, by a bill of sale properly and legally executed in due form of law, transfer and convey to him, the said Pennoyer, all the interest in and title to the one undivided half of the “ steamboat Telegraph, of New York.”
    “ And it i^ mutually understood and agreed, by and between the parties, that the aforesaid drafts and notes were given for the purchase of the said interest in and title to the said steamboat; and the said Pennoyer, for himself, agrees that the said drafts shall be accepted and paid, as they and each of them shall respectively become due and payable, according to the terms thereof; and that he, the said Pennoyer, shall and will pay, or cause to be paid, each of the said promissory notes, as the same shall respectively become due and payable.
    “ And it is further mutually, agreed, by and between the parties, that whenever it may be advantageous to the parties hereto, the said steamboat may be sold and conveyed to any purchaser or purchasers, before the last payment on the notes aforesaid shall become due.
    “In witness whereof, the parties have hereunto set their hands, the day and year first above written. James Pennoyer,- William H. Brown. In presence of Samuel Lea."

      Wolfe and Singleton, for plaintiff.

      C. Boselius and Vandalson, for defendant.
   The judgment of the court (Eustis, C.-.T. being absent,) was pronounced by

Slidell. J.

We consider the agreement of the 11th November, 1845, taken in connection with the other evidence in the cause, as establishing a sale by Brown to Pennoyer, of one-half of the steamer, at the price represented by the bills and notes recited in it, and delivered by the vendee to the vendors; and that the reason why the formal bill of sale was not to be executed by the sellers, until the notes and drafts were paid, was for the mere purpose of the vendor’s security. The position of the parties inter se is substantially the same as it would have been, if Brown had, at the time, given Pennoyer, in consideration of these drafts and notes, a formal bill of sale of one-half of the steamer, and taken, simultaneously, a mortgage of the one-half from the buyer, to secure their payment.

That the defendant so interpreted the agreement, is shown by his own conduct; for, in the note of evidence, is an admission by the defendant, that Pennoyer always claimed to be the one-half owner of the steamer, while she was in New Orleans; and this interpretation also accords with the admission of both parties, contained in the note of evidence, that Pennoyer is entitled, as between him and Brown, to a credit for one-half the proceeds of sale of the steamer, which remained after the payment of the New Orleans claims against her, and to a like credit for the amount paid by underwriters; both of which amounts had gone into Brown's hands.

In the note of evidence, we find the following admission made at the trial: “It is admitted by all parties, that immediately after the sale from Brown to Pennoyer, Pennoyer took charge of the steamer, as master, and started from New York to New Orleans ; that on her voyage, she met with bad weather, and was finally brought into New Orleans, where she was repaired at a very heavy expense; that she was seized in the United States court, and sold to pay those expenses of repairs. 'By the agreement, Pennoyer became the owner of one-half. Res jjerit domino. The one-half was, from the date of the sale, at Pennoyer’s risk. If the vessel had perished at sea, he would not have been exempted from the payment of the price.

Speaking, therefore, upon the written agreement, and other meager evidence, which has been brought before us, we think Brown and Pennoyer became inter se, on the 11th November, part owners of the steamer; and that the disasters which subsequently befell the vessel, and the judicial sale which resulted from them, whereby Brown was incapacitated from executing a formal bill of sale, did not destroy the defendant’s liability for the price.

It is therefore decreed, that the judgment of the district court be reversed, and that this cause be remanded for a new trial; the costs of this appeal to be paid by the appellee.


text:
    Z. D’Arensbourg v. E. Chauvin et al.
    A judgment of non-suit, in a former suit, about the same matter, will not sustain the plea of res judicata.

    Proof of payment should not be admitted, without a plea to that effect.
    from the First District Court, Larue, J.

      J. C. David,, for plaintiff

      St. Paul and Bonny, for defendants.
   The judgment of the court, (Eustis, C. J., absent,) was pronounced by

Rost, J.

The pleadings in this case are so incomplete and inartificial, as to render it impossible to reach the merits.

Although there may be, in the former suit between the same parties, admissions of the present plaintiff, by which he is estopped from claiming the movables described in his petition, it is clear that, as the judgment in that case was one of nonsuit, the plea of res judicata cannot be predicated upon it.

The plaintiff took a bill of exceptions to the opinion of the judge, admitting evidence to prove two payments of $500 each, made by the defendants to tire plaintiff, although no plea of payment is found in the answer.

This evidence should not have been admitted without previously authorizing the defendants to amend, by making a plea which the justice of the case seemed to require. But even if this course had been adopted, the evidence of payment is not satisfactory to us, and we could only, in deference to the opinion of the district judge, have ordered a new trial. We think the ends of justice will be promoted by remanding the case, as it stands, with leave to both parties to amend.

It is therefore ordered, that the judgment be reversed, and the cause remanded for further proceedings according to law, with leave to both parties to amend; the costs of this appeal to be paid by the defendants.


text:
    Albert Cook v. Joseph Tardos.
    The charge brought against the captain of a vessel, of, having attempted to sell a portion of the cargo which he had stolen, justifies the imposition of damages for slander.
    APPEAL from the First District Court of New Orleans, Larue, J.

      W. S. Upton, for plaintiff.

      H. H. Taylor, for defendant.
   The judgment of the court (Eustis, C. .1., absent,) was pronounced by

Preston, J.

The plaintiff, master of the ship Tennessee, carried, as freight, a large quantity of lard from this port to Marseilles, in France. The weather was extremely warm, and it is proved that a considerable quantity of the lard leaked oút of the barrels into the hold of the-vessel. It is even stated by witnesses, that the best cooperage cannot prevent this.

The lard was pumped up with the bilge-water, extracted and saved, and was claimed by the master. He has offered some testimony, to show that this is customary as to lard, turpentine, and articles with regard to which leakage cannot be prevented. The consignees, however, refused to recognize the custom, claimed the lard, and the master abandoned it to.them.

A cargo of wine, consigned tothehouseof which the defendant was apartner, was taken in return. It appears that the casks of wine were much soiled by grease, which had been absorbed by the timbers of the vessel’s hold, according to the opinion of the port-wardens of New Orleans, and a dispute arose between the master and the defendant’s firm, who were consignees of the wine, as to the damage caused to it and the freight.

The defendant, in speaking of their dispute at the port-warden’s office, said that the damage to the cargo of wine on the Tennessee, consigned to his house, was caused by the captain stealing lard out of the hold of the vessel, alluding to the difficulty with its consignees in France, which had been the subject of conversation at a dinner, at which he was present. And, says the witness, the import of his wqrds were, that the plaintiff was- not to be believed, and that he had attempted to sell the stolen lard in Marseilles.

There was nothing in what occurred in France, as disclosed by the defendant’s own affidavit, which justified such charges. The circumstances grew out of a supposed custom, which was strange in France, and seems strange to us. But we are sure the defendant would not have given to them the coloring which has given rise to this suit, but for the disagreement with the master about the damages caused to the cargo consigned to his house, and the freight claimed for its transportation. The coloring given by the defendant to the transaction, was entirely unwarranted, and, as proved by witnesses, tended to injure the plaintiff in his business. He is proved to be a man of good character, and the excuses offered by the defendant for attempting to injure it, are insufficient.

A jury rendered a verdict for four hundred dollars damages, in favor of the plaintiff against the defendant, and we cannot disapprove the verdict and judgment, which is affirmed, with costs.


author: Preston, J. SniDEim, J.

text:
    Henry Dubuch v. E. Goudchaux, et al.
    A delay granted to the drawer of a promissory note, without any consideration or the taking of a new obligation, does not discharge the endorsers. The agreement for delay, in order to discharge the endorsers, must he one for some consideration, and of such character as to prevent the holder from suing the drawer.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.
    ,/. Magne, for plaintiff.

      Race and Foster, for defendants.
   The judgment of the court was pronounced by

Preston, J.

The defendant, Goudchaux, gave Murray a negotiable note, in payment of work done for him, which the latter endorsed and had discounted on his own account. The drawerand endorser are both sued. Judgment without defence was rendered against the drawer. The endorserpleads that he was discharged from liability, because time was given by the holder of the note to the drawer for payment.

Goudchaux, the drawer of the note, was used as a witness for the endorser. The substance of his testimony, to establish an agreement by the holder of the note to give him time for payment, is as follows: ‘ ‘The plaintiff agreed with me, that I might have what time I choose on paying installments, as Ishould receive money which was due me, and was not to receive any installments until six weeks after the agreement; that he did not wish to pain me, and would do everything to facilitate me in paying the note; that I might take my own time, and pay as I could.” On cross-examination, he states, that “there was no time fixed to pay the note in.”

'This testimony establishes a bare promise of indulgence to Goudchaux, without consideration. Its utmost effect was a promise to forbear suing until he should have a chance to pay the debt himself, by installments. New notes were not taken; there was no new security; the nature and circumstances of the debt was in no manner changed; there was a mere gratuitous promise, temporarily to suspend a suit growing out of a wish to facilitate and induce the drawer to pay, s in the hopes of obtaining the money, without suit, for the advantage of the endorser as well as the drawer of the note.

Now it was held, in the case of Frazier et al. v. Dick et al. 5 R. R. 251, that “ a delay granted to the drawers of a promissory note, without consideration and without taking any new security, will not discharge other parties, if the holder has not entered into such an agreement as will disable him from suing the drawer.” Without concurring in otherreasons given for that decision, which have been overruled, we think those quoted contain the true doctrine on the subject under consideration. See also, 16 L. R. 213. This is latterly a well settled principle in England and in our sister States. Chitty on Bills, 447. 3 Kent’s Commentaries, 111, 112.

In a case very similar to the one before us, but where the facts relied upon by the endorser were much stronger than in this case, he being an accommodation endorser, and an agreement to give time by the holder to the drawer, but without consideration, was positively proved. The Supreme Court of the United States, while Marshall and Washington, and Thompson and Story were on the bench, unanimously held that the endorser was not discharged. 12 Wheat.

We should adhere to the decision, for the sake of uniformity in commercial law with our sister States, unless prevented by the positive injunctions of our own laws. There are none such. On the contrary, the general principle as to the consideration of obligations, that an obligation, without a cause or consideration, can have no effect, (C. C. 1881) seems to aid the well settled principle of commercial law on the subject. It is easily reconciled, too, with all the decisions ofour courts. In the case of Hereford v. Chase, 1 R. R. 213, an accommodation endorser was held to be a mere surety, and, as such, discharged by the holder of the note on the obligee impairing his rights against the principal debtor. In this case, Murray was not an accommodation endorser, but transferred the note, himself, to the plaintiff, for a valuable consideration paid to himself. By the failure of the drawer to pay it, the endorser for whom it was discounted, perhaps, became the principal obligor to the holder, and the drawer his surety.

In the-case of Adlé v. Metoyer, the holder of notes lost his recourse against one of the drawers, he having signed as surety, by giving time, and for valuable considerations to the principal drawer. 1st Ann. 254.

The caáe of Halstead v. Noble, was a suit on an auctioneer’s bond. The plaintiff took six notes of the auctioneer, payable at different times, and a payment in cash for the amount of the defalcation. The surety was discharged. 1st Ann. 192.

These were cases of suretyship, in which, as expressly provided by article 3032 of the code, the sureties were discharged, by the fact of giving time to the principal debtor. The same principle prevails at common law. 6 Vesey, 809, note a. Rees v. Barrington, 2 Ves. Jun. 540. Nisbet v. Smith, 2 Brokes’ Chan. Cases, 579. 6 Taunt. 379. 2 Marshall, 81. And yet it is not deemed inconsistent with the Commercial principle invoked by the plaintiff’s counsel in this case.

It was in the power, and was the duty of the endorser, if he apprehended any change in the circumstances of the drawer, to have paid the note for which he had received the consideration, and to have dispensed the holder with the expense and trouble of suing. If he had done so when the note was dishonored, there would have been no occasion for the plaintiff’s indulgence to the drawer. And even after the loose and gratuitous promise of indulgence, which is proved, we have no hesitation in saying, that an immediate suit by the endorser against the drawer, on the note for which he had given his labor, would have been sustained, notwithstanding the promise set up in defence.

This view of the case renders it unnecessary to examine the bill of exceptions, or the other points made by the plaintiff.

The judgment of the district court is affirmed, with costs.

SniDEim, J.

I concur in the affirmance of the judgment, upon the ground that no agreement is shown by the evidence, which would have prevented JDubueh, at any time, from bringing suit against the maker of the note. There was, in substance, an expression of a disposition to indulge the endorser, but no time was fixed. Mere forbearance to sue a maker, isinsuffieient to discharge an endorser.


author: Sbibem., J.

text:
    A. and J. Dennistoun & Co. v. The New York Croton and Steam Faucet Company et al.
    The property in the hands of the garnishee, is to be considered as held for the purposes of the garnishment, and it cannot be taken out of his hands to the prejudice of the garnishment. The law does not require that the sheriff shall take actual possession of the property in the garnishee’s hands, in order to render the seizure by garnishment valid.
    from the Fifth District Court- of New Orleans, Buchanan, J’.

      Benjamin and Micou, for plaintiffs.

      H. T. Hays, for appellees.
   The judgment of the court (Eustis, C. J., absent,) was pronounced by

Sbibem., J.

The plaintiffs brought suit, by attachment, against the New York Croton and Steam Faucet Company, and garnisheed Eadie, their agent. At the time of the garnishment, he had in his hands merchandise belonging to the company. Judgment was duly obtained against the company, with privilege on the property attached.

While the attachment was pending, Eadie transferred to White ¿y Co. two notes, proceeding from sales of the property of the company, and certain casks of merchandise, also their properly. White &f Co. were creditors of the company, and agreed to apply the proceeds of the notes and merchandise to pay their claims, and account to Eadie, as the company’s agent, for the balance, if any.

It is argued, on the part of White Co., that the attachment did not hold the merchandise in Eadie’s hands, because, say they, to make a valid seizure of tangible property, it must be taken into actual possession by the sheriff. They cite Fluker v. Bullard, 2d Ann. 338. Simpson v. Allain, 7 R. R. 504. Goabeau v. New Orleans and Nashville Railroad Company, 6 R. R. 348.

The argument improperly confounds the case of ordinary seizure upon fieri facias with that of garnishment. In pursuing the latter remedy, the creditor reaches the property of his debtor through the garnishee. By the service of proper process, in the form which the law has prescribed for this particular remedy, the garnishee becomes the custodian of the property for the purposes of the garnishment. The law does not require, for the validity of this species of seizure, that the property should be taken out of the hands of the garnishee. There is an expression in the 257th article of the Code of Practice, which, considered alone, would countenance the opposite doctrine; but it must be interpreted with reference to the other provisions of the code upon the subject of garnishment. See 246, 250, 251, 263, 264. In the case of Scholefiel v. Manlee, 8 M. R. 507, which occured before the adoption of the Code of Practice, but. under a similar legislation, (see act of 1811, Martin’s Digest, vol. 1, p. 518, ct seq.,) the court observed: “We think not only that an attachment in the hands of a garnishee is sufficient to place the property in the custody of the law, but that after the service of such an attachment, the sheriff had no right to go and take the property from the garnishee without a further order of the court.” In that case, the garnishee was cited and answered. In the case of Lapeyre Harispe 8f Co. v. Carlos Cruzat Sf Co., it was disclosed, by the answers of the garnishees, that they had notes in their hands belonging to the defendants. It was held, that the. garnishee conld not be compelled to deliver the notes to the sheriff before judgment was obtained against the defendants.

We consider the evidence as establishing knowledge on the part of White 4* Co., when they received the notes and goods from Eadie, that the property of the defendants was attached in his hands. They acted, it would seem, under the belief that there was property enough left to cover the claim of the plaintiffs. It turns out, however, that'there is a deficit; and their rights, under the assignment from Eadie, being acquired with notice, must yield to the antecedent rights of the attaching creditor.

It is therefore decreed, that the judgment of the district court be reversed. And it is further decreed, that the said W. W. White Sf Co. do, within ten days, surrender to the sheriff, the goods and notes confessed by their answer to have been received from John M. Eadie, and described in the receipt dated 19th June, 1850, which is of record in 'this cause, in order that said notes and goods may be, in due course of law, applied to the satisfaction of the judgment in favor of the plaintiffs against the said defendants in attachment; and that, in default of such surrender, the said plaintiffs do recover from the said W. W. White 4" Co.', the sum of three hundred and nineteen dollars and twenty-one cents, with interest thereon at seven per cent per annum, from the 13th day of July, 1850, until paid. It is further decreed, that the costs of the proceedings against said W. W. WJiite 4" Co., in both courts, be paid by the said W. W. White 8f Co.

       Wom — This case was decided in January, 1849’, and is not reported.


text:
    The State v. Houghton, Rankin & Co.
    A non-resident'member of a commercial firm established in New Orleans, may be taxed.
    from the Fourth District Court of New Orleans, Strawbridge, L

      Isaac Johnson, Attorney general, for the State.

      Hamner and Hays, for defendants.
   The judgment of the court was pronounced by

Rost, J.

The defendants are a commercial firm, composed of three partners, one of whom resides in this city, where their business is transacted; the. other two are non-residents, and have never been in Louisiana.

A tax of twenty dollars is claimed from .each of the partners, at the suit of the State, under the 3d section of the 3d article of the Act of 1848, amending the Act to provide a revenue for the support of the Government of the State, passed in 1847.

The defendants appealed to the Fourth District Court, from a judgment rendered against them by a justice of the peace, and there set up the defence that the Act of 1848 was unconstitutional and void, so far as it imposed taxes on nonresident partners. This defence did not prevail in the court below, and the defendants have brought before us the issue which it presents.

It is urged in them behalf, that the power of the Legislature does not extend to the taxing of persons who do not enjoy, and never have enjoyed, the protection of our laws. This argument takes it for granted that the tax claimed is a tax upon the person, but the entire section, Upon portions of which the State relies, clearly shows that the taxes to which it refers are imposed on the business or function of the persons therein named. It provides for taxes on tavern and billiard-table keepers, managers of theaters, peddlers, slave-dealers, &e,, and imposes unequal taxes on the business of each. If the statute imposing this tax left room for interpretation, we would feel disposed to believe that the Legislature did not intend to apply it to non-resident partners; but the eighth paragraph of the section relied on, provides that every member of a commercial firm, whether he resides permanently or temporarily out of the State, shall pay the same tax as the resident partner. Although tire tax, in this case, is not claimed under that specific paragraph, the rule applies clearly to both, and we cannot disregard such an expressed declaration of legislative will; nor is there any legal ground upon which a tax imposed on a function exercised here by a non-resident, through his partners or agents, can be declared unconstitutional.

The case of the Second Municipality v. Corning, was one of a tax imposed by the general council under the power granted to that body by an act of the Legislature to tax merchants, whether they were permanent or transient residents of this city.

The partner taxed in that case, had never been in the State of Louisiana, and was neither a permanent or transient resident. We held, that the power of the general council to tax, should not be extended beyond the objects and persons specified in the act. 4th Ann. 408. In this case, the Legislature itself has imposed the tax, and expressly subjected non-resident partners to the payment of it, on the ground, probably, that they equally exercised the functions of merchants here. Whether they are or not acting partners of the firms to which they belong, they are placed in the same situation as partners, in commendamresiding here would be.

Judgment affirmed, with costs.