text:
    The State v. Harris.
    Sec. 4 of the stat. of 1 April, 1833, which provides that “ all bonds and recognizances taken by the associate judges, mayor, or recorder, within the city of New Orleans, for the public peace or in criminal matters generally, shall, when forfeited, be .recovered by the city attorneys for the use of the corporation of New Orleans,” includes among the bonds which are to inure to the benefit of the city, bonds returnable before the District Court as well as those which are returnable before the mayor, associate judges, or recorder. The stat. of 11 March, 1837, ch. 104, indicates no intention on the part of the .legislature to change the destination of the proceeds of these bonds, when collected.
    The stat. of 8 March, 1836, dividing the city of Now Orleans into three municipalities, did not abolish the old city corporation, nor deprive it of the right of suing for the amount of forfeited bonds and recognizances, directed by sec. 4 of the stat. of 1 April, 1835, to be recovered for its use.
    from the First District Court of New Orleans, Kennedy, J. presiding.

      Morel, for the city of New Orleans, appellant.

      J., and IT. H. Strawbridge, for the Charity Hospital.
   The judgment of the court was pronounced by

King, J.

This is a contest between the city of New Orleans and the Charity Hospital, in relation to their respective rights to receive the proceeds of a bond, taken before the recorder of th.e Second Municipality, for the appearance of Abraham H. Harris before the District Court, to answer to a criminal charge. Tljo bond was forfeited, and a judgment rendered for its amount against the principal and surety, which was affirmed by this court in May last. 2 Ann. Rep. p. 516. After the sum was collected, the attorney for the .corporation of New Orleans intervened, and claimed that it be paid over to the city under the 4fk section of the .act of 1835 (Sess. Acts, p. 179), which proyides f‘ that all bonds and recognizances taken by the associate judges, mayor, or recorders, within the city of New Orleans, for the public peace, or in criminal matters generally, shall, when forfeited, be recovered by the city attorneys for the use of the corporation of New Orleans, all laws to the confrai’y notwithstanding.” The State and Charity Hospital answered this intervention, and claimed the amount of the bond under the act of the 11th March, 1837, p. 73, which is in these words: “ The treasurer of the State is hereby authorised and required to pay, up.on the warrant or warrants of the president of the board of administrators of the .Charity Hospital, to the order of the treasurer thereof, quarter annually,the nett proceeds of all sums of money which may be collected and paid over into the treasury of the State arising from the recovery of forfeited bonds and recognizances, and fines which may be assessed in criminal pases and for contempt of courts: provided that not more than $40,000 shall he paid in any on.eyear.” The district judge awarded the amount of the bond to the Cliarity Hospital, and fhe city h.as appealed.

It is contended on the part of the State that the bonds and recognizances referred to in the,act of 1st April, 1835, which are, when forfeited, to inure to the city, are those which are returnable before the mayor, associate judges, or recorder, and not those which are retornable b.efoz’e the District Court, and which when forfeited are to be collected by the attorney general under the act of 1837. (Sess. Acts, p. 99.) The language of the statute does not, in our opinion, authorise this construction. The act gives to the corporation of New .Oz’leans all bonds, taken within its limits by certain officers “ for the public peace or in criminal matters generally,,.” These terms include as well bonds for appearances before the (former Criminal, af present) District Court, as those for appearances befoz-e the recoz'dez’. This interpz-etation is not inconsistent with the provisions of the .act of the 11th March, 1837, z\elied on by the State, The operation of the former is confined exclusively to bonds and recognizances taken by certain officers within specified limits; the latter extends to bonds taken by other officers in the city of New (Means, and to bonds, recognizances, .and fines collected in other parish.es of the State. State v. Desforges, 5 Rob. 253. There is no conflict between the provisions of the two acts. FplI effect may be given to both. No inference of an intention on the part of the legislature to change the destination of the proceeds of these bonds when collected, can be drawn from the act of 11th March, 1837 (p. 99), directing the attorney general and district attozmey to collect certain bonds, the collection of which had previously been entnzsted to the city attorneys. It is to be presumed that motives of public policy suggested the change, and induced the legislature to confide to its own officers the control (f those which were for appearance before the Criminal and District Courts, and .to provide a summary proceeding for enforcing their collection. That statute is not in conflict either yyjth th.e act .of J835 giving certain bonds to the city, nor with the act giying the proceeds of others to a certain amount to the Charity Hospital, and is silent as to the disposition to be made of the proceeds when collected. The control of the bonds was wisely lodged in the Criminal and District courts, as a means of coercing the attendance of parties bound to appear before them, as long as their use was necessary to that end; but the proceeds when collected were left to be distributed as directed by other laws.

But it is contended that,- in 1836, the office of city recorder was abolished by the division of New Orleans into three distinct municipalities, each having its own recorder; that the repeal of the old city charter and abolition of the old city officers involved so far a repeal of the act of 1835 ; that the bond in question was taken by the recorder of Municipality No. two, and not the recorder of the city, who is contemplated by the act. This question can no longer be considered open. It was directly presented and decided in the case of the State v. Labatut. 8 Rob. 33. The late Supreme Court held in that case that, the act dividing the city into municipalities did not abolish the old city corporation, nor deprive it of the right of claiming the amount of forfeited 'bonds and recognizances, directed by the 4th section of the act of 1835 to be recovered for its use.

It is not necessary to enquire whether the act of the 1st June, 1846 (p. 78), by which the city courts were abolished, has, in any respect, repealed the law under which the city claims. The rights of the corporation accrued prior to the passage of that act.

It is therefore ordered that the judgment of the District Court be reversed. It is further decreed that the nett proceeds of the bond in controversy, executed by Abraham H. Harris and Samuel Moore, be paid to the intervenors, the mayor and commissioners of the general sinking fund of the city of New Orleans ; the appellees paying the costs of both courts arising out of this litigation.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    Daly v. Van Benthuysen.
    A court may assess damages without the intervention of a jury. Art. 313 of the Code of Practice relates to the assessment of damages under judgments by default.
    In an action for damages against the publisher of alibel, proof of damage resulting from the publication is not necessary to entitle plaintiff to recover. Per Curiam.- The actual pecuniary damage in actions of this kind can rarely he proved or computed, and is never the sole rule of assessment.
    from the Second District Court of New Orleans, Canon, J.

      Larue for the plaintiff,
    cited C. C. 1928, §3, 2294. Starkie on Slander, 140.

      Durant, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action for damages for the publication of a libel against the plaintiff, in the defendant’s newspaper called the Southerner, in the city of New Orleans. The damages were laid at $10,000. The defendant endeavored to establish, under his answer, the truth of the statements made in the publication, and that it was made with good motives and for justifiable ends; but the evidence established no defence to the plaintiff’s action. The judge before whom the cause was tried gave the plaintiff judgment for $500, and the .defendant has appealed.

The appellant has assigned as error that the cause was tried by the court, and that .the law required that in this and similar eases, where from the nature of the demand damages .are to be assessed, that they should be assessed by a jury. Article 313 of the Code of Practice, relied on by the counsel, has always been held to relate to the assessment of damages under judgments by default. The power of .courts to assess damages in all cases, we do not think can be drawn in question.

It is said that no proof of any,damage resulting from the publication of the libel was offered by the plaintiff, and that, in the .absence of any proof, there was no power in the court to assess damages, there being nothing before the judge to (which his legal discretion could be applied. The libel in this case was of the grossest kind; its inevitable tendency was to defame and degrade the plaintiff as.acitizen and a member of society; and the publication was entirely unjustified by any legal or moral duty on the part of the .defendant, .or in the fair and legitimate protection of his rights. The actual pecuniary damage in actions of this kind can rarely be proved or computed, and is neyer the sole rule of assessment.

Tillotson v. Cheetham, 3 Johnson, 63. Sedgwick on Damages, 36, 45. Do-mat, Sup. au Droit Public, lib. 3. Erskine’s Inst. Law of Scotland, 576 and notes. Merlin’s Rep. vertió Injure. Stewart v. Carlin, 2 La. 72, Kernan v. Chamberlin, 5 Rob. 116.

The sum allowed to the plaintiff is .considered by his counsel as a sufficient vindication of his .client’s eharacterfrom the attack made upon it, and he has not asked that the judgment be disturbed. The defendant has, we think, shown no ground on which the amount can be held to be excessive, lor the injury he has .done to the plaintiff. Judgment affirmed.


author: Slidell, J.

text:
    Spangenberg v. Bigelow.
    An appeal must be dismissed where the record .does not show that the amount in dispute ex--coeds three hundred dollars.
    from the District Court of New Orleans, McHenry, J.

      Durant, for the plaintiff

      Upton, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

There is nothing in the pleadings or proceedings anterior to judgment, to show the matter in dispute in this case exceeds $300. After-judgment a petition of appeal was presented, in which there is an allegation to the following effect: “ There is errror to his great injury and .damage, viz: to his damage in a sum far above $300.” This allegation is vague; but if it be considered as sufficiently alleging that the matter in .dispute exceeded $300, still it is to be observed that a rule was taken by the plaintiff to show cause why the order of appeal should not be rescinded upon various grounds, among which was that the matter in dispute .did not exceed in value $300. An issue was then tendered in the court below upon this question of fact, upon which a full opportunity was presented to the defendant to offer testimony as to the amount. This opportunity was not embraced; no testimony was offered; and, being without any thing before us to establish our right to consider this cause, the appeal must be dismissed. See Plique v. Bellomé, 2 Annual Rep. p. 293.

Appeal dismissed.


author: Eüsíis, C. J.

text:
    Roberts, for the use of the Trustees of the Bank of the United States v. Stark et al.
    Section 7 of the act of the Mississippi legislature of 21st Nelxreary, 1840, which deplares, that it shall not be lawfal for any bank in that State to transfer, by endorsement or otherwise, any note, bill receivable, or other evidence of debt, was intended solely for the benefit of the debtors of those banks; and the privilege which it conferred on them, of paying the banks in their own notes, might be waived by the debtors. The transfer of the notes does not place a party claiming under it, in the position of one to whom courts can give no assistance in enforcing his contract, as in case of a plaintiff seeking to enforce an immoral or unlawful contract.
    In an action on a written obligation payable in the notes of a particular bank, judgment will be rendered for the sum mentioned in the obligation, reserving to the defendant the right to discharge it in notes of the hank designated in the instrument; and not for the value of the sum for which the obligation was executed, in the notes of the bank at their actual value at the time of the breach of the contract by the debtor.
    APPEAL from tbe Fifth District Court of New Orleans, Buchanan, J. The facts of the case are stated in the opinion of the court infra.

      Bradford and T. A. Clarke, for the plaintiff.
    The true consideration of the new notes of the defendant, arose out of the agreement in pursuance of which they were executed. The proper test of the transaction between the plaintiff and the Planters’ Bank is, to enquire what were the rights thereby acquired to the plaintiff? After he had obtained possession of the notes of Stark", did he hold them as transferree, with the right to sue upon and collect them,, or were they extinguished in his hands? There can be no difficulty in the answer to this question. The plaintiff acquired no right of action upon the notes. His action must have been upon his agreement with the defendant. The notes were extinguished and discharged by his settlement with the bank. If this view of the subject be correct, the act of 1840 has no application to this case. It prohibited the bank from transferring the notes of the defendant, but not from receiving payment of them.
    The act of 1840 was unconstitutional, because it violated that clause of tbe 10th section of the first article of the constitution of the United States, which prohibits a State from passing a law impairing the obligation of contracts; and also-violated a similar provision contained in the latter clause of the 18th section of the 1st article of the constitution of the State of Mississippi.
    The object of the act of 1840, was to enable the debtors of the banks, under all circumstances, to pay their debts in the notes of the banks. Tbe act therefore prohibited all transfer of the notes, bills receivable, and other evidences of debt held by the banks ; and annexed, as the penalty for the violation of the act, that the action of the assignee on such instruments should abate on the plea of the defendant. This penalty was provided for the sole benefit of the debtors of the banks, and gave them a right to have such actions abated, or not, at their discretion. Such is the result of the decision of the courts of Mississippi. See Planters’ Bank v. Sharp^et al., 4 Smedes and Marshall, 17. Hazlip v. Leggett, 6 Ibid. 331. Lanier v. Trigg, 6 Ibid. G41. Bank of Columbus v. Thompson, 7 Ibid. 443. Roben v. Benton Manchester Co. 7 Ibid. 724. The debtor who desires to avail himself of the act, must do so in the mode pointed out by it. The act does not enjoin it upon the debtor to plead in abatement. It gives him a right, which he may exercise, or which he may waive. He may avoid the transfer of the claim against him, or he may ratily it, at his option. His ratification may be either expressed or implied — any act by which the transferred is recognised as the creditor, amounts to a ratification. In this case Stark, it is averred, novated his debt, in favor of the transferee. The novation was made on longer credit, and different terms of payment. There could be no more effectual ratification of the transfer. It was a ratification for a good and valuable consideration. The original notes were discharged and extinguished by novation, and there was a good and sufficient consideration for the new notes. The action of the plaintiff' on the new notes, comes neither within the letter nor spirit of the statute.
    Finally, the defendant insists that the judgment is erroneous, because the notes were payable in the notes of the Bank of the United States; whereas the judgment is rendered for money or notes of the Bank of the United States.. In support of this objection he has referred to various authorities, to show what remedy could be had on such notes in the State of Mississippi. It is believed that there can be no question as to the proper meaning of the contract between the parties in this case. The obligation was for money, payable in the notes of the Bank of the United States. It was an alternative obligation, which the debtor might discharge in specie, or in notes, at his option. Rdrtfcin V. Saunders, 6 Howard, 52. Brooks v. Hubbard, 3 Cowen, 58. Oleasen v. Pinncy, 5 Wendali, 393. Sedgwick on Damages, 242, 281, 282. It cannot be doubted, that a tender of either specie or notes, at the maturity of the notes, would have been a good tender. In the default of the debtor, perhaps the only remedy of the creditor, in the State of Mississippi, would be an action for damages to be determined, and the value of the bank notes in specie, at the maturity of the notes. Certainly no such judgment as the one rendered in this case could have been obtained in the courts of law. But file form and character of the remedy which the creditor may have, is determined by the law of the forum. The judgment in this case, whatever might be thought of it in Mississippi, is one which is entirely competent to the courts' of Louisiana to render. It pursues the contract, and adjudges the debtor to the specific performance of it. It requires the defendant to do exactly what he agreed to do. He is ordered to pay his debt in money, with the privilege however of discharging it in notes, according to his contract.

      Moise and W. M. Randolph, for the appellant.
    1st. The assignment of the original notes to Roberts, was null and void. He took nothing by the transfer, and never could have maintained an action for the amount. Stat. of Mississippi of 21st February, 1840, s. 7. The constitutionality of this act is settled. See Hyde v. Planters’ Bank, 5 Rob. 416. Williams v. Planters’ Bank, 12 Rob. 125. Marsh all v. Grand Gulf Railroad Co., 11 Rob. 190. Greeny, Baldwin, 11 Smedes and Marshall, 661. The legislature of Mississippi, by declaring that “it shall not be lawful for the banks to assign their notes, bills receivable, &e., meant to attach nullity to the act of transfer itself. Roberts took nothing by the assignment of Stark’s notes, and could not have maintained an action on them. No action can be maintained on a contract mad® in fraud of the law. Law v. Hodson, 11 East, 300. Bravo v. Turner, 7 Term Rep. 630. Wheeler v. Russell, 17 Mass. 280. Cotton v. Brien, 6 Rob. 115. Booth v. Hodgson, 6 Term Rep. 409. Mitchell v. Smith. See also, 1 Binney, 117. 6 Binney, 329. 3 Merivale, 471. 5 Mass. 239. 2nd. The notes given in renewal are subject to the same defences which might have been made to the original notes. 8 Mart. 422. 5 Mart. N. S, 157. 5 Rob. 498. 6 Rob. 115-, Davis v. Holbrook, 1 Ann. Rep. 176. Armstrongy. Toler, 11 Wheaton, 258. 3d. The judgment rendered is erroneous, because the notes are on their face “ payable in notes of the Bank of the United States,” and the judgment is for money or notes of the United States Bank; whereas the true criterion of indebtedness was the value of the notes of the United States Bank at the maturity of the obligation sued on, and there is no allegation or proof of such value. Suppose the defendant does not pay in the notes of the United States Bank —suppose those notes are not to be had at this time — is the execution good for the same amount of specie ? Clearly not. If the United States Bank’s notes, were below par, an alternative judgment that Stark should pay in those notes or in funds at par value, would be to impose a penalty. Now, the true indebtedness of Stark is, the value of United States Bank paper at the maturity of the obligation sued on. A. promised to pay B, $800 in such bank notes as are received in deposit in the “Hopkinsville Branch Bank. By the court: evidence of tlie specie value of such paper ought to be admitted, and that value is the criterion of damages. Litfell’s Rep. vol. 3, 245. Anderson v. Ewing. See JBurnalane 4' Co. v. Gentrys, 7 Munroe, 354. A. sue'd B. m an action of debt, to recover a certain amount payable in Philadelphia funds. But the court held that “ debt” was not the proper action. “ The legal acceptation of “ debt” is, “ a sum of money due by certain and express agreement, where the quantity is fixed and specific, and does not depend on any subsequent valuation to settle it” — citing 3 Blackstohe p. 153. By the court: The thing contracted for is not specifically recoverable. The plaintiffmight, in an appropriate action, recover the value of Philadelphia funds, in damages, aud a jury in their discretion might, in addition to that value, give them interest on that value ; but they cannot, in any form of action known to law, recover Philadelphia funds specifically.” January v. Henry, 2 Munroe’s Rep. 58. Directly in point is the case of Gordon v. Parker. The case was this: “ $5,00U. Due George S. Smith, or bearer, five thousand dollars, payable in Brandon money. Jackson, Januaiy 26th, 1839.” By the court: “The contract was, to pay in a certain species of bank notes, and their value at the time of the date of the due bill, should have been ascertained by the assessment of the jury as the measure of damages.” The court reasserted the principle which it had previously decided in Bonel v. Covington that, “ the verdict,” on a note payable in current notes, “ must be for the value of the current notes in specie, at the time payment should have been made.” 2 Siliedes and Marshall’s Rep. 495 The Supreme Court of this State, in the case of Hunter v. Spurcock, in delivering judgment on a note payable in cotton, held that it was proper to set out the note and the breach of the contract, to enable the plaintiff to recover the value of the note in damages, 3 La. 97.
   The judgment of the court was pronounced by

Eüsíis, C. J.

This is ah action brought on three promissory motes drawn by the defendants in favor of the plaintiff or ol-der. They are the first of a series of twelve notes which, it is alleged, were given to the plaintiff in renewal of certain notes on which Stark, the only defendant before Us, and another, Were indebted to the Agricultural and to the Planters’ banks in Mississippi. The banks assigned these notes to the plaintiff for the benefit Of the assignees of the late United States Bank of Pennsylvania, to whom they were indebted. It is alleged that the transfer of those notes to the plaintiff was in violation of a statute of the State of Mississippi, and was consequently null and void, and gave no right of action to the plaintiff; and that the notes noW sued on, being given in renewal of the original notes held by the banks, were not only without any good or sufficient consideration, but that the consideration was unlawful and against the public policy, and in direct Violation of the statute, of Mississippi, where the whole transaction originated and was completed, and under whose laws tbe lights of the parties litigant must be determined. There was judgment for the plaintiff, and Stark, one of the defendants, has appealed. The case has been argued at bar on the grounds thus presented, and we proceed to consider them without any reference to any question Which might arise as to the facts of the case, as authorising such a defence in this action.

The question which we are called upon to decide is, whether, with the consent of the debtor, the notes for which the notes sued on were given could be transferred by the bank which held them to the plaintiff, so as to create a legal obligation on the part of the debtor to discharge them, when thus transferred, in the hands of the assignee. The section of the act of the legislature of Mississippi which, it is said, destroys absolutely any right of transfer on the part of the bank, is in these words :

And he itfurther enacted, Sfc., That it shall not be lawful for any bank in this State to transfer by endorsement or otherwise any note, biil receivable, or other evidence of debt; and, if it shall appearin evidence upon the trial of any action upon any such note, bilk receivable, or other evidence of debt, that the same was so transferred, the same shall abate upon the plea of the defendant.”

In the case of Haslip v. Leggett, 6 Smedes and Marshall’s Rep. 327, it was held by the High Court of Errors and Appeals of Mississippi that, in an action against the maker of- a note payable to a hank* by the endorsee of the bank, the defence which this statute affords to the debtor could not be made under the plea of the general issue, butonly be reached by a plea in abatement. The case of the Planters' Bank v. Sharp is referred to in the opinion of the court, and in that case Chief Justice Sharkey, in reference to this section of the statute, makes use of this language: “The language of the statute is very broad, it is true, but still we must look at its spirit and meaning. If the object of the legislature be apparent, it should be so construed as to accomplish that object, and there it should end.” “ I regard this provision not as a punishment on the bank, by compelling a forfeiture of its right of action, but as intended solely and exclusively for the benefit of bank debtors. Bank paper was then very much depreciated and the country was full of this depreciated currenoy, and it-was designed to-secure to debtors the right to pay the banks in their own notes. By allowing, them to transfer tlieir notes, debtors would have been compelled to pay the endorsees in the constitutional currency.” 4 Ibid. 17. And in the case of the Commercial Bank v. Thompson, 7 Ibid. 448, the Chief Justice, in delivering the opinion of the court, says : “ The act prohibiting the assignment of notes was intended for tlie benefit of the makers of the notes, and they may waive their right to insist upon it, if they will.”

We think that the exposition of the policy of the State, and the construction thus given to the statute is not impugned by the opinion of the court delivered by the same judge in the case of Robson and Allen v. The Benton and Manchester Railroad and Banking Co. decided at the same term* Nov. 1846, 7 Ibid. 725.

The decisions appear to- us to be conclusive on this point. The policy of the State is declared by its courts of- the last resort, to hav-e been the security of the right of debtors to pay their debts to the banks in their several notes, and to prevent a violation of that right,- and the statute vests in the debtor the option of waiving or insisting on the privilege which- it conferred, which was created for his benefit in furtherance of the public policy. The transfer of these notes does not place the party claiming under it,, in the position- of one to- whom courts can give no assistance in- enforcing his contract, as in cases of a plaintiff seeking to enforce an immoral- or unlawful- contract. The- consideration of 1 the notes sued ou we, therefore, hold to be lawful and- adequate. The notes sued on are in the'form of promissory notes, with a reservation of a right to discharge them in* the notes of the Bank of the United States. The judgment is in conformity therewith* and, as we conceive, in accordance with the true intent and import of tne notes.

Judgment affirmed.

       Sudell, J., having been of counsel, did not sit on the trial of this caso.

        Prentiss and Finney, prayed for a re-hearing in this case. The judgment of the court below is erroneous ill this : That it' is a judgment for so much money, with the privilege of discharging the same in the notes of the Bank of the United States. Defendant contends that his contract did not authorise such a judgment, and that tho only legal judgment which was warranted was a judgment for damages, which damages should havo been tho ascertained value of tho United States Bank notes at the time of the breach of the contract, to wit, the-time when the notes respectively fell due. Tho contracts sued on are not obligations for.the payment of money,-either absolutely or in the alternative. They are simple obligations for the delivery, at certain periods, of a certain amount of United States Bank-notes. Upon a breach of these.contracts, nothing but damages can be recovered, and the only legal criterion of damages is the value of the bank notes at the time of the.breach. The obligations do not fix the value of‘.the article to be delivered, and therefore it was incumbent on the plaintiff to prove their value at the trial, before he was entitled.to a judgment at all.
      First. The contracts sued on are to be construed, as torfheir meaning, extent, force, and obligation, by the laws of (Mississippi, in which State they were executed and made payable.
      Second. Construed by the laws of Mississippi, the contracts sued on are not obligations for the payment of money, either absolutely or in the alternative, but simple obligations for the payment or delivery of a certain enumerated amount of United States Bank notes ; they are not alternative obligations at all. This point is well settled by the following authorities: The first case in whieh.the question is raised, is Bonel v. Covington, 7 Howard, 322, which was a suit on a promissory note “ for .$573, payable in the current notes of either of the banks of Natchez or.of the Union Bank.” Upon .this point the court says, p.327: “ In determining that the plaintiff is entitled to the notes.of the banks mentioned, that were current on the day the note sued on (became due, .we do not decide that he was entitled to claim the amount in specie. If -there was any difference between the current notes of those banks, if there were any such, and ¡specie, it may be estimated by the jury, and the defendants allowed the benefit of such difference. Then-verdict must be for the value of the current notes in specie at the time payment should have been made.” The next ease in which the matter is discussed is in Saunders v. Richardson, 2 Smedes and Marshall, 90. In that case.the defendant had given his note for so much money, absolutely. There was, however, a separate agreement contained in a deed between the parties,that this .note might be paid in bank notes of tho different Mississippi banks. It was urged in argument that this case was similar to that of a note payable upon its face in bank notes, and therefore it -was argued that .the .plaintiff could only recover the value of the bank paper at the time of the maturity of the note. Thq court, however, held that the cases were not similar; that the one before them was a contract to pay money, subjeGt, however, to a defeasance, and that if the defendant did not take advantage of the defeasance by tendering.the bank paper at the maturity,of his note, then his contract to pay money-became absolute. In -explaining-the difference between the case before the court, and a case of a note .payable on its faoe in bank notes, Chief Justice Sharkey says, p. 105 : “ Taking for the present the law toibe as stated, we shall endeavor to draw the distinction,between this contract and those .which have given rise to the decisions cited. In cases of the description mentioned, -the essence of the agreement was the thing to be paid. .By common consent, bank nctes have been substituted as currency. They are necessarily liable to great fluctuation in value, and a note payable in such currency bears a striking analogy,to an agreement .to pay any other specific article. The extent of the obligation is the thing agreed to be .paid; such contracts cannot be interpreted so as,to enlarge the obligation. A failure to.perform entitles the plaintiff to recover the value only, as equivalent to what he would have received on voluntary payment. The .extent of the liability or undertaking is limited by the terms of the obligation. But this.is not a note for so much payable in a.certain description of currency,” &e.
      This view of the Mississippi court is conclusive as to the true construction of a note payable on its face in bank paper. These are notes “ for so much .payable in a certain description of currency.” “ The extent of -the obligation is the thing agreed to be paid.” The obligee can only call for that thing; “ a failure to perform entitles the plaintiff to recover the value only.” Now, what is the thing agreed here to be paid? They are “notes for so much payable in a certain description of currency, viz: United States Banknotes! What does the failure .to perform entitle the plaintiff to recover ? “The value only,” says Chief Justice Sharkey. But the court below, in the present case says, if the defendant will not perform his obligation to pay United States Bank notes, the plaintiff.shall be entitled to recover, not the valuó only, but the same amount, in good money. What right had the court ¡below to attach to the breach of the contract a greater penalty than the law attaches to it ? But we will cite an additional case to show that this question is no longer a mattar-of argument in Mississippi. In the case of Gordon v. Parker, 2 Smedes and Marshall, 485, suit was instituted on the following note:
      “ $5,000. Due George ,S. Smith or bearer, five thousand dollars, payable in Brandon money. Jackson, January 26, 1839. N. C. Gordon.”
      This obligation is in all respects similar to those under consideration. There is no difference whatever in tho -construction or force of the two contracts. This court then would (according to the opinion implied in its affirmance of the judgment below) construe the contract above eited as an alternative obligation, and say that a judgment for ,$5,000 in constitutional eurroncy, with the .privilege of discharging it by the payment of $5,000 in Brandon money, would be a valid judgment, and in accordance wiili the terms of the contract. But such is not the construction put upon it by the laws of Mississippi. Aftor a very elaborate argument at bar, the court construe the obligation thus, p. 495, of the volume cited: “The declaration contained an averment that the term Brandon money meant the notes of the Mississippi and Alabama Railroad Company, at Brandon, Mississippi. The defendant below requested the court to charge the jury that the measure of damagos in the case was, the specie value of the Brandon Bank paper at the maturity of the due bill, with interest, &e. The contract was to pay in a certain species of bank notes, and their value at the time of the date of the due bill should have been ascertained by the assessment of the jury, with interest. This was so decided by this court in tho case of Bond v. Covington.” Now the Supreme Court of Mississippi say. “ the contract was to pay in a certain speeies of bank notes ; in other words, that it was a simple and single obligation to pay a certain thing, at a certain time, and that tho only penalty of non-payment is the value of the thing at that time. This court says that a similar obligation is an alternative one, and that tho penalty for not paying the United States Bank notes is, not their real specie value, but their full nominal amount in good money. Even should this court believe its'own construction correct, yet it is respectfully urged that the law of Mississippi, not that of Louisiana, must govern the interpretation of this contract.
      According to the present judgment it is truo the defendant has still the privilege of paying in United States Bank notes, but what we complain of is that the judgment inflicts upon him, in ease of non-payment, the penalty of the full nominal amount in good money. Now we have attempted to show that, by law, the only penalty of non-payment of the bank notes, is their value in specie at the time they should have been paid according to the terms of the contract. But there is another mode of testing the correctness of this judgment; if it be a valid judgment and in accordance with tho true meaning of the contract, then it is equally binding upon the plaintiff as the defendant. The facts of this case, upon which we resist the judgment, are, that United States Bank notes at tho maturity of the obligations sued on were worth only forty or fifty cents in the dollar. This is the true criterion of damages suffered by non-payment. At present these notes have appreciated to eighty or eighty-five cents in the dollar. But suppose, on the other hand, the notes had depreciated and were worth now only five cents in the dollar, would the plaintiff be bound to take them, when at the maturity of the obligation they were worth fifty cents in the dollar? It seems clear he would not. He would have been entitled, in damages, to the value at that time, and could not be compelled to take them in present satisfaction. This has been directly decided in Mississippi in the case of Lanier v. Trigg, 6 Smedes and Marshall, 64X. The note sued on in that case had belonged to the Hernando Bank, and under the law of Mississippi was payable, even in the hands of an assignee, in the notes ofthat bank. The defendant pleaded a tender of Hernando Bank bills, made long after the maturity of the notes, but the court decided that the tender was not good, and gave the following reasons, p. 645: “ The plaintiffs were entitled to the Hernando Bank bills, taking the plea to be true, on the dayjhe obligation became payable. The same nominal amount, six months afterwards, in such bills, might be of much less value. In an action of covenant of this kind the measure of damages must be the yalue of the article at the time of the breach, not its -value six months afterwards. The rights of the parties became fixed on that day.” Blaintiff’s counsel has suggested in his brief that this judgment, though it would not be good in Mississippi, is still good in Louisiana under our practice. Wo admit that tho remedy is local, but this is not a question of remedy. It is a question as to the meaning and construction of a Mississippi contract; to solve this question we must appeal to Mississippi Jaw, lie-hearing refused.


author: Etjstis, C. J.

text:
    Smith v. Ward et al.
    A shipment of specie made,by a factor to bis principal, without any letter of advice or other notice of the consignment, cannot be viewed as made with proper cave, and with that attention .to the interests of the principal which the factor is bound to bestow; and if lost or stolen before reaching the principal, the loss, as between the principal and factor, must be borne by the latter.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Mount, for the appellant,
    cited 5 Smedes and Marshall, 268. 7 Wendell, 320. 5 Cowen, 379. 2 Starkie on Evid. 594. 3 Mass. 249. Metcalf & Perkins Dig. 333, 6 Leigh 82. 8 Cowen 200. 2 Term R. 70.

      Prentiss and Finney,
      for the defendants.
   The judgment of the court was pronounced by

Etjstis, C. J.

The defendants were the factors of the plaintiff, who resides at Marion, a village on the Yazoo river, in the State of Mississippi. They are sued for the balance of their account, the amount of which is not contested, but it is alleged by them that it was remitted by them, in obedience to the plaintiff’s instructions, and in accordance with the custom of merchants, with an observance of all proper precautions on their part. There was judgment for the defendants, and the plaintiff has appealed.

The plaintiff directed the amount in the hands of the defendants to be sent to him in sovereigns. Sixty-two and a half sovereigns were put in a sealed package, directed to Marion, Mississippi, and sent to the plaintiff. It was delivered to the clerk of the steamer Gazelle, which was advertised for the Yazoo river; no receipt or bill of lading was taken, but the clerk was told, at the time of the delivery, that it was money. Although the testimony is notas definite as it might have been, we conclude that the address of the package was in conformity with its destination, and that proper notice was given of its contents. We find no evidence of any letter of advice being sent by this conveyance, or any other, to the plaintiff, notifying him of the money being sent by the steamer Gazelle.

It is contended for the defence, that it is customary when remittances are directed to be made of sums like this, to give the money in a sealed package, bag, or box, in charge of the clerk of a river steamer going to the plaee where it is to be sent, for which it is not usual to take a bill of lading. If a bill of lading is required freight is charged, which is one-fourth per cent for gold; otherwise the money is carried gratuitously. This is said to be the usual mode followed by the commission merchants of this city in remitting money, 'and the defendants having acted in conformity with this usage in remitting the money to the plaintiff, it is contended, have no further responsibility in relation to it. On this point the case has been argued, but the want of proof of any letter of advice would prevent the defendants from having the benefit of any sueh usage, supposing it to have been sufficiently proved and the facts to have brought their case within it, and admitting it to be one which the court would be bound to recognise.

There is no evidence that the plaintiff ever received the money sent to him, and the naked question is before us as to which of the parties shall bear the loss.

Concerning the duties of factors the law is too well settled to admit of any question. They are bound not only to obey the orders of their principals, but to consult their advantage in all matters referred to their own discretion; to be early in their intelligence, distinct in their accounts, and punctual in their correspondence, and to. exercise in the business confided to them a reasonable and proper care, skill and judgment; and the enquiry in relation to the responsibility of the factor in any particular case is, whether other persons exercising the same calling or employment, and being experienced and skilled therein, would or not have acted as he has done. 1 Livermore on" Agency, 68. Russell on Factors, 36. Chapman v. Walton, 10 Bingham, 57. This class of agents should likewise be punctual in giving notice to their principals of all those facts and circumstances connected with the business which they have been retained to transact, by which the rights or interests of their principals may be affected. Russell on Factors, 44.

In .ordinary shipments, the bill .of lading is dispatched to the consignee, in .order to enable him to demand and receive the goods from the master of the vessel in which they are transported; with the bill of lading, letters of advice al'e transmitted, unless the notice of the shipment to the consignee is communicated in some other mode. Where there is no bill of lading there is so much the more necessity for the letter of advice, and a remittance without either one or the other we cannot consider as made with due diligence, and is not consistent with that attention to the intere'sts of the principal which the factor is bound to bestow.

The present case furnishes a striking instance of the necessity of the observance of this rule. The plaintiff thus explains his position in his letter to the defendants, under date of June 26,1845.

“ The steamboat Gazelle has just now come up. I understand from the clerk he has had several packages of money stolen last night; to whom they were directed he cannot inform me, but they think there was one package from your house for this river.: he has a man prisoner on board upon suspicion of committing .the act, &c.”

This letter is relied upon by the counsel for the defendants as showing, among other things, that the plaintiff evidently expected the remittance by this boat, and hence authorised it; but it shows the helpless condition in which the plaintiff was placed by the neglect of the defendants to inform him of the remittance having been made. He was left .in.a state of ignorance, which put it out of his power to claim what the defendants insist was his own. We consider that the .defence has not bean established.

The judgment of the District Court is therefore reversed; and it is decreed that the plaintiff recover from the defendants jointly and severally, the sum of three .hundred and five dollars .and fourteen cents, with five per cent interest from the 25th November, 1846, and costs of suit in both courts.

        Prentiss and Finney, for re-hearing, urged: 1. That there is no established rule of law, that required the defendants, in the transmission of the money to the plaintiff, to fiend any other letter of advice than the envelope. That the rule which requires it is unsupported by authority, and contrary to authority.
      2. That the rule is not founded in custom ; and, even if it be so founded, that there is no proof of the custom, and the oourt cannot ex officio take potice thereof.
      3. That unless some rule .of law or custom proved in the record required another letter of advice than the envelope to be sent, defendants were not bound to prove that such a letter was sent
      4. That if a single letter accompanying the package is sufficient, the mere envolopo, properly sealed and directed, is sufficient.
      5. That the suit, being in the nature of an action of debt on ap account stated, the court cannot condemn defendants iu damages .for the mere failure to write a letter.
      C. That if liable iu this action for the neglect to write a letter, defendants are only liable for the actual loss caused by their neglect and to the extent of that loss, and that no loss whatever was sustained in consequence of such neglect.
      7. That the defendants, in tho transmission of the money, did exercise reasonable skill and ordinary diligencio. ’ Re-hearing refused.


text:
    Oliver v. Lake.
    Where the,owner of property has lost his control over it, and cannot change its destination, his creditors.cannot attach; hat whenever the owner can sell and deliver, the creditors may seize. ’
    Whore, by a-con.tro.ct entered into in the State of Mississippi between the agent of a factor residing in this State and a party living in the former, the agent binds his principal toapply the proceeds of cotton, delivered to him in that State to he sold here, to the payment of certain debts due to third persons, the rights of the parties must he determined according to the law of Mississippi; and, hy that law the debtor is considered as having stripped himself of all authority as owner, the legal title to the property being vested, for the purposes of the agreement, iu the factor, and an equitable title in the creditors for whose benefit the stipulations were made ; no previous assent of the latter being necessary to prevent other creditors from acquiring an adverse lien by execution or attachment, the stipulations being beneficial to them, and their acceptance therefore presumed. The trust thus created in favor of the creditors could not be destroyed either by the debtor, or the factor to whom the property was delivered. And where in such a case the property is attached by a creditor of the original owner, the attachment will be sustained only upon proof that the parties for whose benefit the stipulations were made had notice thereof, and decline to avail themselves of them.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J. The facts of this ease are fully stated in the opinion of the court infra.

      H. A. Bullard and Robinson, for the appellant.
    There is no evidence that the Mechanics’ and Traders’ Bank ever assented to the agreement made by. Martin, Pleasants 4* Co., for their benefit, or accepted the stipulation made in their favor.
    Nor does it appear that James B. Bake became a party to the agreement before the levy of the attachment. He afterwards intervened in the case, and claimed to be paid out of the fund in preference to the plaintiff'.
    The cotton was shipped for account of IV. A. Lake, and consequently was at the risk of the shippers, until received by the consignees. It was shipped by Bruner, Morgan Sf Markham, the agents of the garnishees.
    It is conceded on ail hands that, while in transitu, the cotton was at the risk of W. A. Lake. As soon as it reached the hands of Martin, Pleasants 4* Co., the agreement took effect. But to what extent? We eontend that, without the consent of James B. Lake and the Mechanics’ and Traders’ Bank, the owner mightretract, except as it relates to Martin, Pleasants 4’ Co.; the agreement on his part amounting only to an indication of payment, the bank and his brother James being only propositi solutionis gratia. And if W. A. Lake at any time before such assent was given could control the fund and revoke his order,, the fund was liable to attachment by his creditors, according to the well settled rule that, while the owner retains the control of his property his creditors may attach. Wilson v. Lizardi, 15 La., p. 255. Bank of Alabama v. Kraft, 18 La. 565.
    If we regard the agreement of Martin, Pleasants 4* Co., to pay over any balance in their hands, after satisfying their own demand, to the bank and J. B. Lake,, as a stipulation pour autrui, it is clear it might be revoked at any time before-acceptance by those for whose benefit it was intended. Merlin, Qu. de Droit, verbo Stip. pour Autrui. Civil Code art. 1896. Graviev v. Gravier, 3-Mart. N. S. 207. The fund itself belonged to W. A. Lake. He had directed-it to be paid to his brother and the bank; but they had not assented to the arrangement. Invito benefieium non datum. Suppose, after selling the cotton,. Marlin, Pleasants 4* Co., had failed ? On whom would the loss have fallen! Certainly the fund would not in the meantime be at the risk ef the bank and J. B. Lake, who never assented to the arrangement and never constituted that, house their agents, and were not bound by their agreement. Until MartinT Pleasants 4' Co. had paid to the third persons, or until they had accepted the-stipulation in their favor, Lake might have withdrawn the fund, and Martinr Pleasants Sf Co. would not have incurred any liability to said third persons.
    But the judge of the District Court was of opinion that the case was to be decided by tbe common law prevailing in Mississippi, and not by the law of Louisiana; that the contract was made there and the cotton delivered ; and that the contract of pledge was completed with its conditions. By reference to the contract it will be seen that it purports on its face to be a contract of pledge ; and it appears clear that it was to be performed in Louisiana. It recites that Lake is now shipping cotton to Martin, Pleasant 4* Co., which he says he pledges to them for the payment of certain debts as before mentioned,. There was then no delivery in Mississippi, so as to make the contract of pledge complete in that S-Sate. On the contrary it pre-supposes that, while on board,. the property is still at the risk of the shipper. He then says that the proceeds are to be applied to the payment, first of his debt to the consignees, next to J. B. Lake, and lastly to the bank. This is a pledge only in name. It is in reality nothing but a mandate or agency. The cotton was not to remain in the hands of the pretended pledgee, merely as a security to be sold, if the debts be not paid, under judicial authority, but was to be disposed of at once and the proceeds to be applied as directed. Art. 3132 of the Civil Code forbids the pledgee to dispose of the pledge, and an-agreement to the contrary is null. It is therefore of the essence of a pledge that it should remain undisposed of, until a judicial order is obtained to sell it on failure to pay the principal debtor. But as it relates to J. B. Lake and the bank, there was clearly no pledge— without their express consent they could not be subjected to the obligations of pledgees. The contract of pledge is consensual. The pledgee is bound to a certain degree of diligence. Civjl Code, art. 3134.
    There was no delegation in this case, but simply an indication of payment. The delegation requires the consent of three persons, at least. 2 Poth. on Obligations, no. 565 et seq. For indication of payment, see same work, no. 569. Bat the judge says lie adopts the doctrine in 4 Mason 217, 17 Mass. 551, and 11 Wheaton, 78 and 96. Those cases relate to assignments of property to trustees for the benefit of creditors, and have no analogy to this case. In cases of assignment at common law, the transfer of the property is absolute. There was no trust in the common law sense of the word. The cotton shipped was clearly at the risk of Lake, until it came into the possession of Martin, Pleasants ¿y Co. ; it was shipped by Lake. The agreement to receive and sell the cotton for account of Lake, amounts neither to a pledge, nor to an assignment to trustees for the benefit of creditors. The transaction is an ordinary commercial one.

      Prentiss and Finney, for the defendant.
    The only question presented in this cause is, whether the plaintiff or the intervenor is entitled to the fund attached. They are both bona fide creditors to the amounts claimed by them respectively. The intervenor claims a preference on the fund attached, and the defendant and garnishees insist that at the time of the service of the attachment on the latter, there was nothing in their hands belonging to the defendant liable to attachment; that the fund out of which the plaintiff claims to be paid, resulted from a sale of cotton, which, before the attachment, had been assigned and conveyed in trust by the defendant to the garnishees, and delivery thereof made accordingly, in the State of Mississippi, to pay certain debts of the defendant specified in the deed of assignment, and that the said deed of assignment and delivery of possession of the said cotton in the State of Mississippi, by the laws of that State vested a clear legal and perfect title in the garnishees for the purposes of the trust, and an equitable titie in the creditors for whose benefit it was made. The contract was made and executed in the State of Mississippi; the delivery of the cotton to the garnishees was complete in that State; through their agents they received it there, just as though they had been present acting for themselves.
    The counsel for the plaintiff’contend that this instrument is inform a contract of pledge, and that the contract of pledge is a consensual contract, and that no consent on the part of the beneficiaries is shown. It is time that in the instrument the word pledge is inaptly used — it is evident the contract is not a pledge, for then the property would have been handed over to the creditors directly. There would have been no intervention of a trustee between the debtor and creditor. But bad English should not destroy the effect of an instrument; the inapt use of the word pledge should not and cannot alter the legal effect of this. It is in fair construction and intendment an assignment in trust for the benefit of certain creditors, and by the common law, which prevails in Mississippi, vested a legal title to the cotton in Martin, Pleasants 8>- Co., for the purposes of the trust, and an equitable interest in the creditors named, according to the extent of the provisions in their favor, and that without any assent whatever on the part of the creditors, cesluis que trust. The practical good sense of the common law presumes the consent of a creditor to a conveyance in trust, to pay him his money. To this point the authorities are abundant. 7 Rob, 1. 11 Wheaton, 78. 7 Peters, 608. 4 Mason, 217. 11 Wendall, 241. 4 John. Chan. 522. The case of Layton v. Rowan, 7 Rob. 1, shows that our courts have recognized and protected such rights as the trustee and cestuis que trust claim by virtue of the assignment in question.
   Tlie judgment of the court was pronounced by

Slidell, J.

The question presented in this case is, Whether the plaintiff as an attaching creditor is entitled to be paid out of the fund in the hands of the garnishees, Martin, Pleasants Sf Co., in preference to two other creditors, to wit: James B. Lake and the Mechanics’ and Traders’ Bank. The fund in the hands of Martin, Pleasants Sf Co. originated from two sources: first, a shipment of fifty two bales of cotton, made in September, 1846, by the defendant to the garnishees; and secondly, shipments of one hundred and four-» teen bales of cotton, which were delivered under an agreement which will be presently noticed, by the defendant to the agents of the garnishees in Mississippi, and were by them forwarded to their principals. The first shipment of fifty-two bales was not covered by the agreement in question. Its proceeds, therefore, being $1,915 53, after paying the advances of $1,000 made upon it by the garnishees, and $20 20, being a former balance, must be considered as a fund unappropriated for the benefit of other parties, and therefore subject to the attachment. It is to be observed that the only other claim of the garnishees besides the sum of $1,020 20 above mentioned, was an amount of $2,000 for an advance to which other property was by the agreement of the parties specially appropriated. The contest then is reduced to so much of the fund in the hands of the garnishees as originated from the proceeds of the cotton delivered in Mississippi to the agents of Martin, Pleasants Sf Co.

Some weeks after the shipment made directly by the defendant to the garnishees a written agreement was made in Mississippi, between the defendant and the garnishees represented by their agents, Bruner, Morgan and Markham, by which, after reciting that Lake is shipping cotton to Martin, Pleasants Sf Co., he declares that he pledges it, first, to the payment of an accommodation acceptance of Martins,- Pleasants Sf Co. for $2,000 then soon to be matured, “ and then to apply the proceeds of cotton as they receive it to the payment of the sum of $1,600 to James B. Lake, of Maryland, and after the payment to James B. Lake then the nett proceeds shall be applied to the payment of $1,400 to the Mechanics’ and Traders’ Bank of New Orleans. Now the said Lake does by this instrument distinctly pledge the cotton hereafter shipped of this crop to the payment of the debts above enumerated,- and the said party of the second part do promise and oblige themselves that, to the extent of the cotton delivered to their agents in Vicksburg, Mississippi, Bruner, Morgan Sf Markham, they will apply and pay the said debts in the order that they are mentioned by the said Lake." One hundred and fourteen bales were delivered to the agents of the garnishees under this agreement, and shipped by them, to Martin, Pleasants Sf Co., who received it prior to the attachment, and have paid the draft of $2,000 mentioned in the agreement. Their right to reimbursement is not disputed.

James B. Lake intervened soon after the attachment was levied, and claimed payment under the written agreement. The Mechanics’ and Traders’ Bank has not intervened. It does not appear that the Bank has ever signified its acceptance of the stipulations of the agreement, nor is it satisfactorily shown that it had notice of them. Lake did not signify his acceptance before the attachment, nor does he appear to have been informed of the agreement until after the garnishment. It is proper also to remark that no fraud is shown in this case, nor is it even proved that the defendant was insolvent.

Although in the instrument above mentioned the term pledge is used inaptly, it is not according to its fair construction and legal intendment a contract of pledge, but an assignment of property out of the proceeds of which the assignee is first to pay himself, and is bound next to pay the other debts mentioned in the assignment.

■ It has become a well settled rule' in the law of attachment that, when the owner of the property-has lost his power over it and cannot change its destination, his creditor cannot attach; the converse of {he rule being that, whenever the proprietor may sell and deliver, the creditor can seize. See Armor v. Cockburn, 4 Mart. N. S. 669. It is necessary therefore to consider the effect of the agreement upon the rights of W. A. Lake, and what duties it imposed upon Martin, Pleasants <§• Co. The two enquiries in a great degree involve each other, tend to the same conclusion, and may be concurrently treated. By this agreement it was clearly understood between the contracting parties that Martin, Pleasants 8f Co', should receive possession of the property, sell it, and apply the money, first, to their own reimbursement for the advance of $2,000, and then to the payment of the two creditors named in the agreement. There was no express reserve by W. A. Lake, of any future control over the property. Upon the face of the agreement, which he- presently executed by delivering possession, he stripped himself of the authority of owner. But it is said that, under the agreement, Martin,Pleasants 8c Co-, were his mere agents, their agency being however coupled, as regards themselves, with an interest for the reimbursement of their advances ; and that at any time, on reimbursing or settling for the advances, he could liavre- withdrawn the property or its proceeds from their control. To test the truth of this proposition it is necessary to enquire what duties and obligations towards others were imposed upon Martin, Pleasants 8f Co.. Such duties and obligations, if they existed, formed part of the contract as between them and. Lake, and he could not be permitted to violate them.

If the question be tested By the laws of Mississippi, where the agreement was made, it appears to us free from difficulty. We understand the rule there to be well settled that, in. such case, the legal title would be vested in Martin, Pleasants Co. for the purposes of the agreement, and an equitable title in the creditors for whose benefit Lake stipulated; qnd that, to prevent other creditors from acquiring an adverse lien by, execution, or attachment, a previous assent of the creditors was not necessary to be shown, the stipulation being purely beneficial to them, and therefore its acceptance presumed. See Brookes v. Marbury, 2 Wheaton, 79. 4 John. Cha. 529. 6 Ves. 662. 4 Mason, 214. The opposite doctrine has been held in repeated decisions in Massachusetts ; but those decisions spring from the defects of the local law. The-courts there domot possess equity powers ; and-the policy of the law providing for attachments, and not providing any remedy in equity against the trustees, was considered as prohibiting the establishment- of a trust estate by an insolvent debtor for the benefit of. creditors not parties to it. It is plain, therefore, that if rights were thus created in favor of the creditors, which the law would recognize ands preserve for them, even before their acceptance, there was created, at the same time, by the agreement, a correspondent duty on the partof Marlin, Pleasants 8f Co. to hold the property, and- apply it to the purposes so stipulated. This duty, created by the- agreement Lake was bound to respect, and as he could not violate it, his attaching creditor can exercise no greater right.

This case was decided by the district judge upon the authority of some of the cases just cited,- and- in applying the law of Mississippi to this contract it seems to us he did not err. The one hundred and fourteen bales • of- cotton were received under the agreement, by the agents of Martin, Pleasants <ij- Co. in Mississippi. A receipt there by the agents was a receipt by themselves in that State; and the moment the property came into their hands in that State, under an agreement made there, it seems just.to consider'the law of that State as operating upon the subject matter, and dlothing the property .thus delivered with a trust in favor of the beneficiaries, which neither Lake, nor Martin, Pleas-ants <!p Co. could destroy without their assent.

In this connection it is proper to -notice the argument of the plaintiff’s counsel with regard to the ownership of this property, as tested by the maxim Res <perit domino. It is very true that,* if the cotton had been lost on its voyage to New Orleans, or been destroyed by fire here, .or if Marlin, Pleasants 'Sf Co. after selling it and receiving the proceeds, had failed, the loss would have fallen on ,W. A. Lake. But there is no inconsistency in the concurrent existence of a qualified ownership in one party, and a control and dominion over it for certain purposes, in another party. Thus, when property is given in pledge, the pledgor parts with the possession and control of the thing pledged ; but if it perishes without the fault of the pledgee the loss is the pledgor’s, and the debt remains unsatisfied. The payee of a bill of exchange has an order upon the fund in the hands of the acceptor; but if .the acceptor fails, the drawer, if there has been due diligence on the part of-the holder, bears the loss. So a consignee who has made advances is deemed,a qualified owner of the property consigned; but there is also a qualified ownership in the ¡consignor, and its destruction is his loss.

While however, we recognize the equitable -interest creatediby the agreement of the parties in favor of ¡the two creditors, ¡and presume -their acceptance, we have no right to compel their participation in the fund, or withhold it indefinitely from the attaching creditor. James B. Lake has intervened, and claims payment. He is clearly entitled to that relief, although he proves no actual acceptance before the attachment-was levied. But the Mechanics' and Traders’ Bank have not intervened, andithe case, as to them, stands merely upon the implied acceptance. We have said that there is no-satisfactory proof that they have had notice of the provision for their benefit. We think it equitable that they should have notice; but, on the other hand,-if they do not elect, within a reasonable time, to participate in the fund, whether because they have been provided for elsewhere, or from any other cause, ¡it is just that the attaching creditor should take the benefit of their refusal. The judgment of the court below, directed unconditionally that the .funds be applied to the payment of the Mechanics’ and Traders’ Bank. In this respect, we think the judgment should be modified, so that notice be given to the Bank, and a reasonable time allowed for the signification of its acceptance, and for .intervening in the cause ; in default of which this plaintiff should have judgment to be paid after James B. Lake.

It is therefore decreed that the judgment of the court below rendered upon the intervention, be reversed; that the proceeds of sale of fifty-two bales of cotton, shipped by the defendant to Martin, Pleasants Co., to wit: $1915 53, be applied first, to the payment to Martin, Pleasants <$• Co., of $1020 20 ; next to the payment of the costs occasioned by the attachment; and lastly towards the payment of the judgment obtained by said plaintiff against the said defendant; and it is further decreed that the proceeds of one hundred and fourteen bales of cotton, delivered by tlie defendant in Mississippi to the agents of Mar-ti», Pleasants Sf Co., to wit: the sum of $3992 36, be applied, first, to the payment of said Martin, Pleasants Sf Co., of the sum of 552050 00; secondly, to the payment of the costs occasioned by the intervention and of this appeal; thirdly, to the payment of J. B. Lake, of the sum of 551600. And as to the surplus of the proceeds of sale of said one hundred and fourteen hales, it is decreed that this cause be remanded for further proceedings according to law; that a copy of this decree be served upon the Mechanics’ & Traders’ Bank, and if, within ten days after service, said corporation shall appear .and claim the benefit of said fund, and it shall appear upon due proceedings that the said corporation is still the creditor of said defendant, and entitled to the benefit of said surplus, said surplus shall be applied to the payment of said Mechanics’ & Traders’ Bank; otherwise the said surplus shall be applied to the payment .of the judgment in favor of the plaintiff against the defendant.


author: Rost, J.

text:
    Duncan, Executor v. Armant.
    Where a purchaser of property sold at a succession sale refuses to take it and pay tho price, no new order of court is necessary to authorize the executor to resell it a sa folie enchcre Per Curiam: Tho authority to sell having been once obtained, it was his duty to complete the sale, the coercive measures established by law for enforcing payment of the price being left to his discretion.
    Where one to whom property had been adjudicated at a judicial sale, fails to pay the price at the time required, according to a fair construction of art. 2589 of .the Civil Code, the second sale need not he advertized during more than ten days, provided that the customary notice he given within that time. The term of ten days fixed by the Code, refers exclusively to the duration of the advertizement, and not to the period at which it is to commence; and in such a case the fact that the advertizements were published during a longer period than ten days, cannot affect the validity of the sale, the law meaning ten days or more.
    from the Third District Court of New Orleans, Kennedy, J.

      Blache, for the appellant,
    contended that there should be judgment for the plaintiff, citing Civil Code, 2589, 2595. Stat. 10 March, 1834, s. 1. (Bui. & C’s. Dig, p. 8). Stat. 5 March, 1842, s. 3. (Sess. Acts. p. 212.)

      Bodin, for the defendant.
    1. The omission of the plaintiff to obtain the previous authorization of the judge for the second sale, renders it iny.alid. 4 Rob. 132. 2. The period is limited within which a vendor can exercise against the purchaser the remedy of sale a la folic enchcre; the proceedings must be commenced before the end of ten days. 3. The sale should have been advertized during thirty days (Ciy. Code, art. 1159), and the advertizement published three times during that period. Stat. of 1842, Sess. Acts, p. 212. In this case the advertizements were published on the 10th and 27th of May, and on the 10th and 11th of June, the sale taking place on the 12th of June. There were four notices, instead of tho three required; but there were only two publications during thirty days from the 10th of May, the date of the first publication. The plaintiff has failed to comply with the law as to the advertisements, and tlj.e omission is fatal. 14 La. 586,
   The judgment of tlie court was pronounced by

Rost, J.

The plaiutiff claims from the defendant, as damages, the difference between the price at which two slaves belonging to the succession of Lan na were adjudged to him, and the price which they brought at a sale a la folie enchére, after he refused to comply with the terms of the sale, and was duly put in default. The defendant resists the demand upon three grounds: 1st. That no order of the Probate Court was obtained for the resale of the slaves, which being succession property, could not be sold, unless the executor was expressly authorized by the court. 2d. That the proceeding a la folie enchére cannot be pursued within an unlimited or an arbitrary undetermined period, but should be begun within ten days. 3d. That the second sale did not take place after the customary legal advertizements. The District Court sustained the last ground of defence, and the plaintiff has appealed from the judgment rendered against him.

The answer of the plaintiff to the first ground appears to us conclusive. The authorization to sell having once been obtained, it was his duty, as executor, to go through all the proceedings necessary to the completion of the sale, and the coercive measures established by law for enforcing the payment of the price are left to his discretion. If he errs, he is liable in damages; but the legislature did not intend that, in every case .of this kind, the expensive formalities which preceed the sale of succession property should be renewed; and the rule contended for cannot be fairly deduced from the decision in the case of Landry v. Connelly, 4 Rob. 132, cited at bar. The court in.determining on the rule taken in that case that the Court of Probates was competent to order the resale, was not called upon to determine whether the order was necessary. We do not think it is. The resale of succession property is properly made under the first order. But if the heirs are minor's it cannot bo made below the price of appraisement.

The case of Stewart v. Paulding, 7 La. 506, appears to us decisive as to the other questions raised. Under a fair intendment of art. 2589 of the Civil Code, we consider, as the court appear to have done in that case, that the second sale need not be advertized during more than ten days, provided that the customary notices be given .during that .time. This term of ten days, fixed by the Code, refers exclusively to the duration of the advertizement, and not to the period at which it is to commence. If some delay occurred in this case between the first and the second sale, no negligence can be charged to the plaintiff. A few days after the sale, he took a rule upon the defendant to show cause why he should not comply with the terms and conditions of the sale, and why a writ of distringas should not issue to compel him thereto. On the trial of the rule, the defendant showed no .cause, the rule was made absolute, and a writ of distringas was issued. When the writ was returned no property found, the plaintiff advertized the slaves to be sold at .the risk of the defendant, It is true they were advertized for thirty-two days, when they might have been sold .at the expiration of ten days; but this is not a cause of nullity. The law clearly means ten days or mor.e. The sale was made in good faith. The advertizements were sufficient, and no injury is shown to have resulted to the defendant from the delay.

The plaintiff is entitled to recover $480. The costs claimed by him cannot be allowed in the present action.

It is ordered that the judgment be reversed, and that there be judgment in favor of the succession of Jean Lcmna against the .defendant for $480, with costs in both courts.


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    Pontalba et al. v. Copland et al.
    Where a tract of landiis inventoried .and appraised in the mortuary proceedings as having a certain depth, and it is subsequently adjudicated to one of the appraisers, without any mention of its depth in the procis-verial of adjudication, the omission cannot be taken advantage of to extend ¡the title beyond the limit assigned to it in the moriuaria. The legal presumption is that the officers entrusted with the sale did their duty, and sold according to the inventory, and appraisement'. In sach a case parties claiming under the original purchaser by whom the tractwas appraised, will .be estopped from claiming any greater depth than he appraised.
    No title passed under an inchoate Spanish grant. The title remained in the sovereign until a complete grant w.as issued.
    from the Parish Court of New Orleans, Maurian, J.

      L. Janin, for the’plaintiffs.

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

Rost, J.

This .controversy rose from the conflicting,claims of the parties ¡to lands in the rear of the city of New Orleans, the position of which is shown by the plans in the record. There is no controversy as to the respective claims of title, ,and we may proceed at once to examine the original grants of the parties and ¡the .action of .the government .of the United States upon them.

We will first notice the .title of the defendants. They claim under two grants, one made by the french government to Le Breton, on the 6th October, 1757, and .the other by .the Spanish government to B. Macarty, on the 22d of December, 1795.. At the time Le Breton obtained the first .of those grants, he was the owner of a ¡large tract .of land fronting an the Mississippi river, with a depth of forty arpents only, and also of another tract of land in the rear of this, ■on the Metairie road. The object of liis application was to obtain the unappropriated lands between .the two tracts. It was granted, and he was authorized to extend the sidelines of the river tract. In the mortuary proceedings toad after his death, ¡the river tract was inventoried and appraised as having a depth of sixty arpents, ¡thus .adding to the original .concession a depth of twenty .arpents, taken from the .-concession of 1757. The heirs of Le Breton being minors, a judicial sale of this plantation took place, and it was adjudicated to B. Macarty^, without mention being made of the depth in the procés-verbal of adjudication. In»,the chain .of conveyances by which the defendants claim under Macarty., (the depth .of the plantation is no where found. But these omissions cannot extend the .title beyond the limit assigned to it in the moriuaria. The .legal presumption is .that the officers entrusted with the sale did their .duty, and sold .according ,to the inventory and appraisement; apart from this .consideration Macarty himself was one of the appraisers, and the defendants are stopped from claiming .a greater depth than he appraised. It is notmaterial .to enquire whether .the remainder of the concession of 1757 was appended to the Metairie road tract. Macarty did not acquire it.; and, as the extension of the side lines of the river plantation, to the depth .of sixty arpents does not conflict with the plaintiffs’ title, the concession of Le Brefoalias no bearing on this .controversy.

The defendants next contend that the grant of 1795 to Macarly is a complete grant of all the back lands extending to canal Carondelet, and embracing the plaintiffs’ claim. It does not purport, on the face of it, to be a title in form. The requite expresses the hope that Macarty’s application to have the direction of his side lines changed, and to extend them to canal Carondelet, will be favorably received: and, if it should be, the prayer is that the survey of his lands be ordered to be proceeded in and completed in conformity therewith, and that a general plan be made of them, “donándome el dicho canal por termino de mis tierras, y formando un plan general de ellas para hacer constar mis propriedades y obtener títulos mas en forma.”

The prayer is granted, provided no legitimate opposition be made within six months. What is it that is granted on that condition ? Nothing more, clearly, than the prayer of the requite, the order for the survey which was to precede the titulo en forma. This title is nothing more than a conditional order of survey, unattended with actual possession and never executed. It presents one of the weakest of all equitable claims to land resting on written evidence, rendered still weaker by the facts that two oppositions were made within six months from its date, that the governor caused it to be returned to him, and kept it in his possession without ever deciding upon the oppositions. This claim stood much better upon the testimony of Pintado, given in the case of Fleytas v. The Mayor et al., 1 Mart. N. S. 430. The grant is not, as stated by the court in that case, as complete an order of survey as could be made.

The title of the plaintiffs is also an incomplete grant, containing suspensive and resolutory conditions, none of which appear to have been performed ; and had it been rejected, or not acted upon by the government of the United States, the ground taken by the defendants that, after having remained dormant so long a time it should be presumed to have been abandoned, would’ have received our serious consideration.

It is an historical fact that, during the colonial existence of Louisiana-, grants' of land were frequently relinquished by the grantees for the purpose of avoiding the charges which they imposed, and that the lands thus granted were1 reunited to the national domain. Bossier v. Métoyer, 5 Mart. 698. When-titles have remained in the land office during a Ibng space of time, without the heirs of the grantee having set up any claim to the land they cover, the presumption is strong that they were abandoned; particularly when the same land was subsequently granted to other persons. This claim, however, is differently situated. Acts of ownership under the french and Spanish governments are shown; and, in 1806, it was presented to the board of commissioners for confirmation, and confirmed. We may here state that, on the same occasion, Macarty’s claim under the grant of 1735 was rejected. The commissioners saying “that, if the land had been surveyed for him by order of the Baron de I Carondelet, (which was not the case,) it must have been on the condition that-it was vacant; but that it clearly appears that the whole of this land is covered by grants long antecedent to the period when the land is stated to have bee» surveyed for the claimant.” After the death of Macarty, the application for confirmation was renewed, and the claim was finally confirmed, by an act of Congress, of February 28th, 1823.

The original grant of the plaintiffs was at least equal in dignity to- that of the defendants. It is anterior in date, and was the first confirmed by the United States. After this confirmation, we have no authority to say Chat the claim had been abandoned; and whether we adopt the rule established by the late Supreme Court in the case of Calvit v. Innis, 10 Mart. 288, and in the case of Fleylas, already referred to, or that recognized by the Supreme Court of the United States in the case of Choteau v. Fkhart, 2 How. 344, the judgment in favor of the plaintiff must be affirmed.

The Supreme Court of Louisiana were of opinion that the title passed under an inchoate grant. The Supreme Court of the United States hold that it remained in the sovereign until a complete grant issued; and it is undeniable that the legislation of Congress for the adjustment of land titles in Louisiana assumes that construction. We cannot differ from that high tribunal on questions involving the alienation of the public domain, and the interpretation of treaties and acts of Congress. We acquiesce the more readily in the rule they have adopted, on account of the beneficial influence it is calculated to have in the speedy settlement of land titles and the security of property.

The defendants have shown no possession under which the plea of prescription could be sustained ; aDd it is very doubtful whether, before the confirmation by the United States, their title could have formed the basis of the prescription of ten and twenty years. Judgment affirmed.

         Smdeul, J., did not sit on account of relationship to one of tho defendants.


author: SiiDEiiL, J.

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    Bent et al. v. Lauve et al.
    The owners of a steamer are bound to pay for supplies furnished to their agents for the use of the boat, and proved to have inured to their benefit.
    By the mercantile law part owners of a vessel are liable in solido for repairs, and necessary expenses {or its use.
    The liability of the parties to a contract, made in another State by an agent of the owners of a steamer residing here, for supplies for the use of the boat, the payment for which was to be made here, must be governed, in whatever relates to the construction and the nature aud validity of the engagement, by the law of the piada where the contract was made. The stipulation as to the place of payment concerns the performance of the contract, which must be according to the law of the place where it is to take place. And where, in such a case, there is no stipulation as to the rate of interest in ease of non-performance, the law of the places of payment must govern in allowing interest ex mora from judicial demand.
    Where anote was payable at a bank, proof that no funds had been placed there to pay the note, either at maturity or since down to the time oí trial, will excuse the omission to apply there foi; payment.
    from the Commercial Court of New Orleans, Watts, J.

      C. A. Jones, for the plaintiffs.

      Sigur and Eonford, for the appellants.
   The judgment of the court was pronounced by

SiiDEiiL, J.

The petition alleges that the defendants, part owners of the steamer Creole, are in solido indebted to the plaintiffs in the sum of $315 79, with iuterest, for this: that the steamer Belle Creole, being at the port of Louisville, in Kentucky, the plaintiffs, at the request of Dimitry and Plaisent, part owners of the boat, and also officers of the boat and agents of all the owners, furnished certain supplies of that value, upon the delivery and acceptance of which Dimitry and Plaisent, as officers and agents of the boat, gave a promissory note to the plaintiffs’ order, dated at Louisville, and payable in New Orleans, for the amount above stated. The defendants answered by a general denial. The answers to interrogatories prove the ownership of the boat by the defendants at the time of the contract, and the agency and part ownership of Dimitry and Plaisent. It is also proved that the supplies were furnished. There is no express evidence that, at the date of the contract, the boat was employed in the conveyance o-f freight and passengers for hire.

As the action of the plaintiils is not simply upon the note, but upon the contract for supplies, we deem the question, whether Dimitry and Plaisent were authorized to bind their co-proprietors in the form of a promissory note, immaterial. The supplies to the boat are proved to have been made; having inured to the benefit of the owners, they must pay for them. Under the evidence the plaintiffs cannot be considered as having given the credit solely to Dimitry and Plaisent, and discharged the other owners. The language of the note repels this idea. See also Higgins v. Packard, 2 Hall, 547.

The supplies were furnished to the steamer in Kentucky, in which State, as is conceded by the defendants’ counsel, the mercantile law is in force. If the liability of the defendants is to be controlled by the law of the place of the contract, there is no doubt of their liability in solido. The rule of the mercantile law is, that part owners are liable in solido for repairs and necessary expenses for the vessel. See 3 Kent, 156. Story on Partnership, § 419-456. Smith’s Mercantile Law, 155. Wright v. Hunter, 1 East. 40.

If, on the other hand, their liability is'to be tested by the law of Louisiana, where the owners live, it is contended by the defendants that they are not liable in solido. They argue that owne'rs of a steamer are', by article 2796 of the Civil Code, to be treated as commercial partners, if the occupation of the boat or object of the partnership is the “carrying of personal property for hire.” As the fact of such occupation or object is not shown by the evidence, they say that the solidary obligation is not established, and that solidarity in such a case is not to be presumed.

We think the law of Kentucky may be properly applied. It was so expressly held in Ferguson v. Flower, 4 Mart. N. S. 312. That case originated before the adoption of our present Code. The owners of the sleamer are citizens and residents of Louisiana; and, if the contract for supplies had been made in this State, the court, under the decision in Carroll v. Waters, 9 Mart. 500, would have declared the defendants not liable in solido. But as the contract was made in Kentucky, they applied the law of that State as controlling the liability. There seems to be much justice in this doctrine. If the owners of a vessel choose to send, or build, her abroad, and supplies become necessary for her preservation or proper employment, or for her construction, why should the foreigner be expected to inform himself of the law of the place of the owner’s domicil ? It might be difficult, perhaps impossible, for him to ascertain at the time the foreign law, and it is reasonable and in accordance with well settled authority to consider the parties as contemplating, and consequently bound by, the laws of the place where the supplies are furnished, as the test of the liability of the owners.

We have not overlooked the fact that, although the contract for the supplies was made, and the supplies were actually furnished, in Kentucky, New Orleans was the placed agreed upon for the payment of the money. But this stipulation concerned the performance of the contract, and not the construction, nature and validity of the contract. The rule was settled in Depau v. Humphreys, 8 Mart. N. S. 34 (affirming the cases of Morris v. Eves, 11 Mart. 730, and Vidal v. Thompson, 11 Mart. 23), “ that contracts are governed by the law of the country in which they were made in every thing which relates to the mode of constructing them, the meaning to be attached to the expressions by which the parties bound themselves, and the nature and validity of the engagement. But that wherever the obligation be contracted, the performance must be according to the law of the place where it is to take place.” We therefore conclude that, the liability of the owners is to be held solidary, according to the Kentucky law; but as there was no stipulation as to a rate of' interest, in case of non-performance, the judge of the Commercial Court properly took the law of Louisiana as his guide, in allowing interest ex mora from judicial demand according to our law. See Lapice v. Smith, 13 La. Rep. 92.

Lastly, we observe that although the note was made payable at the Bank of Louisiana, the plaintiffs have sufficiently explained the omission to apply there, by proof that no funds had been provided there to pay the note, either at its maturity or at any time down to the trial of the cause. See Wallace v. McConnell, 13 Johns 136, in which the subject was very elaborately considered, and the authorities there cited. • Judgment affirmed.