text:
    No. 2422.
    Ober, Nanson & Co. v. William Matthews—George R. Robinson, Intervenor.
    In an attachment suit, additional interrogatories may bo propounded to tlie garnishee, after tlie first interrogatories have been answered, without going through the formalities of traversing the answers to the first interrogatories.
    The burden falls upon the intervenor in an attachment suit, who asserts ownership of the chattel attached, of showing a complete title in himself before the attachment.
    -An order given on the holder of a hill of exchange by the owner or agent to deliver it to a third person, -will not enable such third person to defeat the rights of an attaching creditor, who has levied an attachment on the bill as the property of his debtor.
    -A bill of exchange or promissory note found in the State of Louisiana, may ho attached by the creditor of its owner, although tlie contract out of which it originated was made in the State of Missouri between parties residing there at the time.
    APPEAL from tlie Sixth District Court, parish of Orleans. Cooley, J.

      JR. d¿ If. Marr, for plaintiffs and appellees. J. N. J3rielcell, for intervenor and appellant. ■
   Ludeling, C. J.

The plaintiffs brought suit by attachment against William Matthews, on the thirteenth of February, 1867, to recover a balance of $50,000, due on account, and on the same day Garrard & Craig were cited to answer interrogatories as garnishees. On the twenty-third day of February a supplemental petition was filed, and the Southern Bank was garnisheed.

On the second of March, 1867, tlie Southern Bank answered that it held for collection, for account of the Exchange Bank of St. Louis, a bill of exchange, drawn by Matthews on Garrard & Craig, and accepted by them, dated fourth February, 1807, at sixty days, for $13,000. On •the day on which the answers of the Southern Bank were made, the plaintiffs filed a supplemental petition, alleging substantially that the bank had inadvertently fallen into án error in saying that the bill was •held for account of tlie. Exchange Bank of St. Louis, and wishing to .give the bank an opportunity to correct the error, rather than to •formally traverse the answers (reserving, however, the right to do so should it "become necessary), and they propounded additional interrogatories to said bank. On the ninth of March, 1867, the Southern Bank answered again, saying that since the first answers were made, the bank had received letters from the Exchange Bank, which showed that said bank had no further interest in the bill. The letters are made part of the answers, and they are as follows:

“St. Louis, February 22, 1867.
Thomas Layton, Esq., President:
Bear Sir — On the twentieth instant I gave Mr. Matthews an order for Garrard & Craig’s acceptance, $13,000, due eighth April, but omitted to request the erasure of our indorsement. Please have it erased, and oblige.
Yours, very respectfully, H. H. VERUSE, Cashier.”
“ St. Louis, February 27,1867.
* ■* * I am in receipt of your telegram of twenty-sixth, giving notice of attachment of Matthews’ drafts.
Messrs. Ober, Atwater & Co. have been to-day ordered to release all but one, ($13,000) thirteen thousand dollars, maturing April 8, and I presume they will have done so ere this reaches you. That draft, I presume, is under attachment; at all events this bank has no interest in it, we having received payment of it on the twentieth instant, and given an order for it.
Yours, truly, ROBERT E. CARR, President.”

On the first of May, 1867, George R. Robinson intervened in the suit, claiming to be the owner of the bill of exchange.

There was judgment in favor of the plaintiffs, and the intervenor has appealed.

The facts disclosed by the record are that William Matthews drew the bill in question to his own order, and indorsed it in blank, on fourth February, 1867. On the same day the Exchange Bank discounted the bill and gave Matthews the proceeds. The Exchange-Bank indorsed it to T. Layton, who was the president of the Southern Bank, and remitted it to the said bank for collection. On the twentieth of February, 1867, an arrangement was made between Matthews and the Exchange Bank, by which Matthews became the owner of the bill, and he obtained an order on the Southern Bank to deliver the bill to his order. On the twenty-third day of February, Matthews applied to the Excbango Bank to discount the bill a second time, which the bank refused to do. Matthews then induced the bank to give him another order, in lieu of the one first given, on the Southern Bank for the bill. This second order differed from the first in leaving a blank for the name of the person to whom the Southern Bank was to deliver the bill, and in being signed by the president instead of the cashier. After this, and on the same day, the negotiations which had been going on between Matthews and Robinson about the bill were closed, and Matthews gave him the order of the Exchange Bank on the Southern Bank for the delivery of the bill.

The intervenor insists that the attachment in the hands of the bank, made on the twenty-third day of February, fell, inasmuch as the bank, in its answers to interrogatories, negatived the idea that it held any property belonging to the defendant on the day the interrogatories were served, and the plaintiffs had not traversed the answers, and that the plaintiffs could not amend their proceedings by propounding more searching questions and drawing out information which had subsequently reached the garnishee. The additional interrogatories propounded to the bank were, in effect, a mode of traversing the first answers, made in ignorance of the real facts.

Whether or not the plaintiffs attached any property of the defendant, must depend upon the fact whether the bank had or had not property belonging to him at the date of the service of the interrogatories. And we can conceive of no good reason why the inaccuracies and errors in the answers of the garnishee may not be shown by additional interrogatories put to himself, as well as by the testimony of other witnesses or by written evidence. C. P. 262; 17 An. 258, Relf & Co. v. Boro.

The intervenor contends also that the attachment must be sot aside, ds the evidence shows that on the twenty-third of February, the day on which the attachment was levied, he had acquired the rights of Mr. Matthews in and to the bill of exchange, and the evidence does not show that the attachment was levied before the transfer to him. We think the onus of proof is on the intervenor, who asserts his ownership. It is not sufficient for him to show that Mr. Matthews transferred to him the bill, but he must show that his ownership was complete before the attachment. This he has not done, even if it be conceded that the agreement between himself and Matthews, and the delivery of the order for the bill in Missouri, where they both resided, divested the title of Matthews, as to creditors of Matthews. But the agreement between Matthews and Robinson, and the delivery of the order for the bill, which was in the possession of the Southern Bank in Louisiana, did not divest the title of Matthews to said bill, as to the creditors of Matthews.

By our laws the sale of personal property is perfected by the mere consent of the parties, as between themselves, but it is not perfected as to third parties until delivery. C. C., art. 1922, 1923. And it has been held by this court that “a promissory note, not transferred by indorsement and delivery in the usual mercantile mode, but by a collateral agreement, is subject to the same rule.” Lassiter v. Bussey, 14 An. 699, and Hill, v. Hanney & Co., 15 An. 654. An order for a note is not a delivery thereof, and the creditor of the transferrer may attach the thing sold before delivery. 4 M. 20, Norris v. Mumford; 3 M. 222, Durnford v. Brooks’ Syndics.

But it is contended that the effect of the contract between Matthews and Robinson, made in Missouri, where both parties resided, must be controlled by the laws of Missouri, as personal property has no situs, except that of the owner. As to the attaching creditors, the contrary seems to be the well settled jurisprudence of this State, as well as of the Supreme Court of the United States. 2 N. S. 93, Olivier v. Townes ; 7 M. 318, Thuret et al. v. Jenkins ; 17 La. 589, Burne v. Patton ; 8 R. 262 ; United States v. U. S. Bank ; 5 Wallace 510 ; 7 Wal. 145.

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


source: Caselaw Access Project

author: Wxly, J.

license: Public Domain

text:
    No. 3668.
    F. G. Offut v. A. J. Acheverra, President of the Board of School Directors, parish of Assumption.
    A board of scliool directors of a parish can not be compelled by judicial proceedings to make a different disposition of the funds entrusted to their care than that provided by law. Where, therefore, the law has made provision for the settlement of outstanding claims against the school fund, which bear dato prior to the appointment of the school board, a suit can not bo entertained against tlio president or board of directors to compel its payment out of the school funds in their hands, the disposition of which has been regulated by law.
    from the Fifteenth Judicial District Court, parish of Assumption. JBeatie, J.

      JNiclwls <& JNólse, for plaintiff and appellee. JHJiram JHJ. Carver, for defendants and appellants.
   Wxly, J.

The defendant appeals from the judgment recovered by the plaintiff against him for $952 78 on a warrant drawn by the school directors of the eighteenth public school district, parish of Assumption, on the parish treasurer, dated thirty-first December, 1865.

We do not see any cause of action against the defendant. He never employed the plaintiff to teach the public school he claims to have taught in the parish of Assumption in the years 1862, 1863 and 1864, for which the warrant was given, and the corporation of which ho is president was not then in existence. Nor is it the successor of the school board which existed in that parish prior to the Constitution of 1868. It is we^. settled that the powers of corporations of this character extend no further than the provisions of the act creating them. Act No. 6, approved sixteenth of March, 1870, and act No. 8, approved twenty-fifth of February, 1871, which created the present public school system, will be searched in vain to find any authority conferred on the defendant to settle claims of the kind declared on by the plaintiff. It is made no part of his duty to pay the outstanding liabilities of former school directors, or any claims held by teachers prior to the acts of 1870 and 1871. On the contrary, the law in express terms provides that all such claims shall be examined by the State Board of Public Education and referred by them to the next General Assembly." Section 31, Act No. 6 of extra session of 1870.

We can find in the record nothing to authorize judgment against the defendant, the president of the board of school directors of the parish of Assumption. Because the plaintiff ought to have a legal remedy to the legal obligation which he claims to exist in his behalf, is no-reason why he should enforce it against the defendant, a stranger thereto, and who is no more liable than other persons in the parish of Assumption. The school board ought not to be compelled to apply the money confided to it to any other purpose than that directed by law, and this court will not require it to be done.

Let the judgment appealed from be annulled, and let the plaintiff’s demand be rejected, with costs of both courts.


author: Howell, J.

text:
    No. 2459.
    P. Halpin and J. A. Moran v. T. L. Maxwell, Sheriff, et al.
    Tlio appeal will be dismissed if tlie amount claimed, in tlie court below does not exceed five hundred dollars.
    ■Where a discrepancy occurs between the amount demanded in the petition, and the amount as shown to be claimed by documents filed with and made a part of the petition, the latter will govern as to the sum demanded. If, therefore, the amount claimed by the documents filed be less than five hundred dollars, the appeal will be dismissed, although the amount claimed in the polifcion be above that sum.
    Appeal from the Fifth District Court, parish of Orleans. Beaumont, J.

      T. A. Bartlette, for plaintiffs and appellees. Clarice, Bayne & Benshcno and Breaux és Fenner, for defendants and appellants.
   Howell, J.

We are unable, under the plain terms of the Constitution, to take jurisdiction of this case, although we have already refused a motion to dismiss. The gravamen of the action is that, by the unlawful acts of the sheriff and Carl Kohn, defendants, the plaintiffs have been deprived of tlie use of their premises, corner of Julia and Basin streets, from the first of September, 1868, to the first of December, 1868, the value of the use of which is $125 a month, which, it is stated in the petition, makes a total of $500, and judgment is asked for this sum, with interest from first of December, 1868. It is evident, however, that this was an error of calculation or a fictitious amount, and in either case wo are without jurisdiction. It is probable that in making the calculation the month of December was unwittingly included, and the amount fixed for four instead of three months. Every allegation descriptive of the claim and its origin, and every date connected with it, clearly and unmistakably limit it to the period from the first of September to the first of December, same year, a term of only three months, at the price of $125 per month. The two advertisements of the sale of the property in the premises are copied at length in the petition, and are referred to as showing the time during which plaintiffs were deprived of their property, and they show that time to be September, October and November, 1868. There is in another part of the long petition an allegation that they were deprived of their premises for “a term of four months,” but it is followed by the words, “as appears by the annexed advertisement,” which is then copied in the petition, and, in connection with the first advertisement, previously written out in full in the petition, shows the time to be a term of three instead of four months. It is well settled that when documents are annexed to and make part of a petition, they control if there is a discrepancy in dates and amounts. We find nothing in the record tending in the least to show that any greater amount than $375 was or is claimed as the amount really due, except those manifest errors, which may or should be considered merely clerical and unintentional, it being apparent from the whole petition and record that plaintiffs did not really pretend to claim anything more than the rent for three months, at $325 per month, of the premises in question.

It is therefore ordered that the appeal herein be dismissed.


author: Wyly J.

text:
    No. 3642.
    David Urquhart v. Mrs. Octavie Bringier Thomas et al.
    In a suit against a married ■woman, the plaintiff must show affirmatively, before be can recover, that the debt inured to the separate advantage of the wife. This must be shown whether the wife bo separate in property from hor husband or not.
    If it bo shown that a running account exists between the drawer of a draft and hor commission merchant, then and in such case the drawer is entitled to notice of the dishonor and non-payment by the drawee, and if such notice bo not given, then the drawer is not bound to the payee or holder of the bill, although it should bo shown that the drawer had no funds in the hands of the drawee at the time it was drawn.
    Appeal from the Fourth Judicial District Court, parish of Ascension.. Beauvais, J.

      Samuel B. & O. L. Wallcer, for plaintiff and appellant. Trist & Oliver, for defendant and appellee.
   Wyly J.

The plaintiff appeals from the judgment rejecting his demand against the defendant, Mrs. Thomas, a married woman, on two drafts for $1000 each. There are several defenses urged, but we deem it necessary only to consider two of them, to wit:

First — The debt did not inure to tbe benefit of the defendant, Mrs. Thomas, who is a married woman and separate in property from her husband.

Second — There was no notice of the dishonor of the bills, nor anything equivalent thereto.

It is well settled that in a suit against a married woman, whether separate in property or not, the plaintiff, in order to recover, must ■show affirmatively that the debt inured to lief separate benefit or advantage. This material fact has not been shown in this case. 5 An. 173; 7 An. 144; 3 L. 74; 5 An. 495; 1 An. 428; 7 N. S. 64.

The obligation of the drawer may become unconditional by showing that due notice of dishonor was given, or by showing that the drawer, having no funds or business transactions with the drawee, had no right to expect the bill to be paid. 11R. 215; 19 L. 370, and authorities cited.

In this case, although the defendant, Mrs. Thomas, had no funds in the hands of the drawee, it is shown that she had a running account with him as her commission merchant. We think she had a right to expect her drafts to be paid, and therefore ought to have had notice of dishonor, which was not given.

Let the judgment heroin be affirmed, with costs.


author: Taliaferro, J.

text:
    No. 3376.
    In the Matter of the Succession of Jean Cerise.
    Tlie widow oí’-her deceased husband, or her heirs, if left in necessitous circumstances, are entitled to recover one thousand dollars from his succession. In such a case, if it be shown that there are not sufficient funds in the estate, unencumbered by mortgage, to pay it, then the mortgages must contribute the balance.
    Appeal from the Second District Court, parish of Orleans. JDavigneaud, J.
    F. Bermudas, for appellant. J. JDuvigneaucl, for appellee.
   Taliaferro, J.

A creditor' of Jean Cerisó having a mortgage on his debtor’s tract of land, proceeded to have it sold via exeeutiva. The succession of Cerisó was small, consisting only of the tract of land sold after his decease by the creditor, and a few personal effects amounting by appraisement to $115. .The land brought $2480, which was reduced to the net amount of $1796, after deducting the expenses of salo and taxes against the land. The decedent left at his death a widow and minor children in necessitous circumstances. The widow, on behalf of her minor children, claims from tlie proceeds of the land $1000 for their use and benefit, under what is termed the Homestead Law (Revised Statutes, section 1693). The creditor resists this claim on the ground that the widow and minors have in kind the personal effects of the succession and that they have had the use and enjoyment of the real estate, the rent of which was worth $500.

We think the case was properly disposed of in the lower court, in which there was judgment rendered in favor of the minors for $1000, less the sum of $115, the appraised value of the personal property.

The creditor appealed. It is shown that the widow and minors are in necessitous circumstances and that there are no other means out of which the amount accorded to them can be paid.

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

Rehearinsr refused.


author: Howe, J.

text:
    No. 2182.
    Udolpho Wolfe v. Barnett & Lion.
    Tlie loading principle of tlie law of trade marks is, that tlie manufacturer or merchant wlio has produced or brought into market an article of use or consumption that has found. favor with the public, and who, by affixing to it some name, device or symbol which serves to distinguish it as his, and to distinguish it from all others has furnished his individual guaranty of its value, shall receive tlie reward of his skill, and shall not be deprived thereof by infringement or imitation.
    The words which compose a trade mark neod not each be now. If the combination thereof bo new and be descriptive of the origin of the goods and their ownership by the manufacturer who devises the mark, it will be unlawful for any other person to filch the combination or any important part thereof.
    It is unlawful to put up imitation goods under the name of the real manufacturer, and the excuse that such an act was authorized by a person of the same name as that manufacturer, is absurd.
    ’The fact that a trade mark labol is copy-righted, but the date of entry is not given as required by the act of Congress, is of no importance in a suit in a State court for damages for imitation of a trade mark.
    Appeal from the Fourth District Court, parish of Orleans. Théard, J.

      Henry J. Leovy and Semmes & Mott, for plaintiff and appellant. Hymns & Jonas, for defendants and appellees.
   This case was tried by a jury in the court below.

Howe, J.

Tlie principal point involved in this case is one relating to the law of trade marks.

The plaintiff enjoined the defendants from preparing and selling or offering to sell any imitation of plaintiff’s gin, or any article with or under the name or title of “ Wolfe’s Aromatic Schiedam Schnapps,” or “ Aromatic Schiedam Schnapps,” or “ Schiedam Schnapps,” or from using any imitation of said name; and claimed damages for an alléged infringement by defendants of his rights as the manufacturer of this kind of gin and as the originator of the trade mark.

The defendants answered by general and various special denials.

The cause was tried by a jury, who rendered a verdict, the effect of which, as confirmed by the judgment of the lower court, was to restrain the defendants only from tlio nse of the word “ Wolfe,” and to throw upon the plaintiff the costs of the suit, his claim for damages being rejected. The plaintiff has appealed.

It appears from testimony uncontradieted and unimpeaclied that the plaintiff manufactures his gin in Holland and puts it up in bottles with uniform and peculiar marks and labels; that he has been engaged in business of this kind since 1851; that the name “Wolfe’s Schiedam Aromatic Schnapps,” impressed on the bottles and forming part of the labels, was devised by him to denote his goods thus made and sold; that in the trade this name was fully recognized as his trade mark; that the phrase “Schiedam Schnapps” was fully recognized as his peculiar property, in that it expressed the origin and ownership of Ms goods, and suggested to the general public, who had occasion to buy gin, the liquor made, imported and bottled by Mm; that the liquor thus put up was really gin; that it had certain medicinal qualities; supposed by some to inhere in that kind of distilled spirits ; and that it had been extensively advertised and sold by plaintiff. It appears, also, that the defendants had for some time been putting up and selling a gin adulterated with water in bottles similar in appearance to those of plaintiff, with labels which were merely colorable imitations of the name, mark, devices and symbols of plaintiff, being headed “ Wolfe's Aromatic Schiedam Schnapps” and signed at the foot “Wolfe,” instead of the “ Udolpho Wolfe” of the genuine label, and with words blown on the sides of the bottles well calculated to mislead a purchaser who did not make an unusually careful scrutiny. It also appears, without any objection, that the defendants had imitated the goods of another manufacturer in a similar way and only desisted upon being threatened with suit.

It is not deemed necessary to review the numerous cases which have been cited in the able briefs of counsel. Some are conflicting. Some depends on technical differences between proceedings at law and in equity. In others the plaintiff’s case was not nrade out by as full evidence as has been produced here. It is sufficient to say that in view of the facts above recited we think the plaintiff entitled to a perpetuation of the injunction originally issued and to damages, and not merely to the very limited relief accorded by the verdict.

It is urged by defendants that the plaintiffs’s claim is prescribed by the prescription of ten years, during which time, prior to the suit, they claim that they have been engaged in the business complained of. The prescription of one year, which is also pleaded, cuts off plaintiff from any claim for damages for any period longer than twelve months prior to citation, (Eev. C. C. 3536,) but we do not think there is any force in the plea of ten years, or in the further point “that the defendants have acquired as to all the world by uninterrupted possession for ten years a fqll and complete title to the trade mark.”

It is further urged that the plaintiff is neither the discoverer nor first manufacturer of the article for which he claims the mark. We do not understand the current of authority to be in favor of this proposition that this is necessary to his case. In the passage cited by defendants from Upton on Trade Marks, page 21, that writer says :

“.It seems to be the established doctrine that property in trade marks, so far at least as they consist in the proper name of the thing designated, or by long use have become known by that name, can exist only in those who have the exclusive right to manufacture or to sell the specific article, and so far as they consist in anything other than the proper name of the thing which is susceptible of becoming a legitimate trade mark, can exist only in the manufacturer or in those entitled to represent the manufacturer.”

Assuming this statement to be accurate, it simply means that if the plaintiff’s trade mark had. consisted merely of the words “Holland Gin,” it would bo necessary lor him to show an exclusive right to manufacture; but if the trade mark consists of something else, as the plaintiff’s own name combined, with a sonorous appellation well calculated to expi ess origin and ownership as well as to attract the attention and impress the memory of buyers, it is only necessary that he should manufacture, without exclusive right, or represent a manufac- • turer. And we think the true rule, as applicable to this case, is correctly stated in the following passage from the same writer, page 97, to be this:

“That the honest, skillful and industrious manufacturer or enterprising merchant who has produced or brought into the market an article of use or consumption, that has found favor with the public, and who, by affixing to it some name, mark, device, or symbol, which serves to distinguish it as Ms, and to distinguish it from all others, has furnished his individual guaranty and assurance of the quality and integrity of the manufacture, shall receive the first reward of his honesty, skill, industry or enterprise; and shall in no manner and to no extent be deprived of the same by another, who to that end appropriates and applies to his productions the same or a colorable imitation of the same name, marie, device or symbol, so that the public are, or may be, deceived or misled into the purchase of the productions of the one, supposing them to bo those of the other.’’'1

And see Stokes v. Landgroff, 17 Barbour 608 ; Howard v. Henriques, 3 Sandford 725 ; Brooklyn White Load Company v. Massuy, 25 Barbour 416 ; Williams v. Johnson, 2 Bosworth 1.

It is in vain for defendants to urge that the several words which compose the name given by plaintiff to his goods are not new. His combination of these words is proved to have been new, and it is proved to indicate the origin and ownership of the liquor, and the defendants have no right to filch this combination, or any important part of it, in such way as to mislead the purchaser as to real origin and ownership. Upon this branch of the case the decision in Gout v. Alesslogn, 6 Beavan 69, is in point, where the defendants were restrained from using not merely the name of plaintiff, upon watches, but also any of the Turkish words and other devices first used by plaintiff to describe the merits of his watches. And see Clark v. Clark, 25 Barb. 76.

Still less can the defendants escape under the absurd excuse given in this testimony that they were putting up and selling the “imitation goods” under a written permit from a Mr. Wolfe, the father-in-law of one of them. It appears that this person died about four years before this action was begun, but, if he had lived, the use of his n.amc under this permit -would only have made the defendants’ attempt to deceive seem more deliberate and studied. Croft v. Day, 7 Beavan 84; Rodgers v. Nowill, 5 Man. Gr. and Scott 109. hi or is there any merit in the point that the plaintiff can not recover because his label, which contains the statement that it is copy-righted, does not also show the date at which the entry was made; nor in the point that he had no right, in any event to copy-right a label. This is not a suit to enjoin the •infringement of a copy-right, the courts of tho United States alone having jurisdiction of such cases. Conkliug, 112. We presume the proof to show that in 1851 the plaintiff copy-righted Iris label in New York, was merely intended to show that he devised the label as early as that year.

We fix the damages in this case at $1500.

It is therefore ordered that the judgment appealed from be reversed and tho verdict sot aside; that the plaintiff have judgment against defendants, in solido, for the sum of fifteen hundred dollars; and that the preliminary injunction issued herein bo perpetuated, with costs in both courts.


text:
    No. 2392.
    D. Kelham & Co. v. Steamship Kensington, Master and Owners.
    In tills case the vessel cleared at the port of Roston for the port of New Orleans, with a cargo for the latter place. While on her voyage she encountered a storm at sea, by which a portion of hor cargo was damagod. Tho consignee at New Orleans brought suit against tho vessel for the damage dono to a lot of furniture on hoard. Hold — That it being shown by the bill of lading that any damage dono to tho cargo, or any portion thereof, from accident of machinery, boilers, or dangers of the seas of airy kind, wero excepted, and tho damage in this case was caused by a storm at sea, that it was therefore incumbent on tho plaintiffs to show affirmatively, to enable them to recover, that tho damage was caused by the fault or negligence of tho carriers.
    Appeal from the Sixth District Court, parish of Orleans. Oooley, J.

      O. IS. Schmidt and A. & 1L Voorhics, for plaintiffs and appellees. Randolph, Singleton <& Browne, for defendants and appellants.
   Howell, J.

This is an action to recover $703, alleged to be the amount of damage to certain articles of furniture shipped, as per two bills of lading, on the steamship Kensington from Boston to New Orleans, in April, 1866. The plaintiffs asked for a writ of sequestration against said vessel; that tho master and owners thereof he cited, and judgment against them in solido, with interest, costs and privilege, be rendered.

The defense is, first, a general denial; second, an allegation that the damage, if any, was produced bj*- causes for which they were not responsible; and, third, a peremptory exception that the contract sued on is an admiralty one, and the action a proceeding in rem, of which the State courts have no jurisdiction.

From a verdict and judgment in favor of plaintiffs for $500, defendants have appealed. Plaintiffs ask an amendment of the judgment for the full amount claimed.

Citation, addressed “to the steamship Kensington, master and owners,” was served personally on M. S. Hedge, master; defendants came into court and answered the petition, and proof was admitted without objection that “the Merchants’ Boston and New Orleans Steamship Company,” an incorporated joint stock company, were the owners.

Under these pleadings and facts, and the authority of the case of Southern Dry Dock Company v. Steamboat J. D. Perry, Captain A. Baird and owners, 23 An. 39, the personal action against the master and owners is maintained, but not the enforcement of the privilege, as it is a maritime line, which, it is now well established, can not bo created by a State.

From the evidence we are satisfied that the damage to plaintiffs’ property was caused directly by the escape of steam into the hold of the vessel, through a pipe constructed and used to extinguish fire, and the question is whether this was one of the dangers excepted, and if so, were the defendants in fault?

The two bills of lading, taken together (as wo must do under the pleadings and evidence in this case), exempted the defendants from all damage from accidents of machinery, boilers, steam or dangers of the seas of any kind. It is shown that the vessel, when she left Boston on the trip in question, was seaworthy; that on the second or third day out she encountered heavy weather, during which a portion of the machinery got out of order, and while it was being- repaired, the engines being at the time stopped, the storm increased in violence, and the rolling of the vessel caused one of the timbers to spring and press upon the wheel connected with the valve of the pipe used to conduct steam into the hold of the vessel, thus opening the valve and letting the steam through into the part of the vessel where jdaintiffs’ goods were stowed, and were thereby damaged. The witnesses most familiar with this arrangement of the vessel, testify that the said valve and pipe wore placed in this ship in the usual manner, and that prior to this accident they would not have objected to its position, nor anticipated the effects produced in this instance. Since the accident they suggest, very naturally, how it may not again occur from the-same cause. But we infer from all the evidence that no negligence is justly imputable to the defendants in the putting of the pipe and valve in the position in which they were, in the accident to the feed-pump during the storm which necessitated the stopping of the engine, or in the rolling and straining of the vessel during the greatest violence of the storm, by which the valve of the steam pipe was opened and the steam admitted to the hold of the vessel, which caused the damage complained of.

It being shown that the damage resulted from causes within the ■exceptions, it was incumbent on plaintiffs to show that the negligence of defendants contributed to the loss, which has not been done. 10 W. 376; 12 How. 272, 352; 17 An. 9; 23 An. 58-1.

This view of the case renders an examination of the hills of exception taken by defendants unnecessary.

It is therefore ordered that the judgment appealed from he reversed, ■and that there ho judgment in favor of defendants, with costs in both courts.

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 2838.
    The City of New Orleans v. C. Moseal et al.
    In 1868 the city of New Orleans leased Hie Dryades Market to defendant for one year. In 1809, before the year liad expired, the city annulled tlie contract and took possession of tk o market. Afterward tlio city brought suit on the notes given by the lessee for the market for one year. Held — That the city having annulled the contract before the expiration of the term of the lease, and having again taken possession of the. market, slie could not recover on the notes given by ilie lesseo.
    Appeal from the Seventh District Court, parish of Orleans. Col-lens, J.

      George 8. Lacey, City Attorney, for appellant. J2. T. <£- Ü?. J. Fellowes, for defendant and appellee.
   Ludeling, C. J.

This is an action to recover the amount of a promissory note executed by C. Moseal, and indorsed by John Gaudin. The defense is failure of consideration.

It appears from the record that on the thirty-first of December, 1868, the defendant, Moseal, entered into a contract with the city of New Orleans, whereby he leased the Dryades Market for the term of one year, and the note sued on is one of a series given for monthly installments as the consideration for said lease. On the sixth of April, 1869, before the maturity of this noto, and before the expiration of the term •of the lease, the Mayor officially notified the defendant, Moseal, that in consequence of his failure to promptly pay one of his notes, the contract had been annulled; that Mr. Baptiste Matharon had been •commissioned to collect the revenues of the market, and the agent of Moseal was turned out and said Matharon was put in possession of the market by a police force. After this the revenues of the market were collected and paid into the city treasury by Matharon. To permit the ■city to recover in this suit would do violence to equity and good •conscience.

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


author: Ludering, C. J.

text:
    No. 2456.
    Dean, Adams & Gaff (W. C. Swanson, Intervenor), v. Martin & Case.
    A party vilo lias contracted vitli another on an immoral basis, or lias made a contract which is reprobated by law, can not, after it lias beon executed, obtain relief from its effects through tlio action of the courts.
    One who has induced others to buy a lot of cotton from a third person,-by representing that such third person was the owner thereof, is thereafter estopped from setting up any claim thereto on his own account.
    Appeal from the Fourth. District Court, parish of Orleans. TMard, J.

      F. Wooldridge, for plaintiffs and appellants. Breaux <£ Fenner, for intervenor. M. & II. JHarr, for defendants and appellees.
   Ludering, C. J.

Tlio plaintiffs are holders and owners of a draft or order drawn by Brummel, dated May 7, 1866, directing the defendants to pay plaintiffs or order the proceeds of twenty bales of cotton then held by defendants for account of Brummel. When this order was presented for payment the defendants wrote the following acknowledgment on the back of the order:

“We have a hill of sale of twenty hales made to A. T. Hawthorn, for the benefit of A. O. Brummel, providing that the net proceeds of twenty hales average cotton ho paid to the said A. O. Brummel when sold, less sixty dollars. New Orleans, May 7, 1866.”

The twenty hales of cotton were sold by the defendants, and realized the net sum of §1080. The defendants refused to pay plaintiffs, on the ground that they had been ordered by Swanson not to pay the same. In their answer they admit they hold the proceeds of the sale of the cotton, but they aver that, inasmuch as Swanson and others claim them, they call upon all the other parties to interplead, and they pray that the court may say to whom the money shall be paid. Swanson alone filed an intervention. He avers that he was the owner of 141 hales of cotton; that the cotton was seized by A. O. Brummel, who represented himself as an agent of the Treasury Department of the United States; that Brummel had a file of soldiers with him, and that he was prevented from shipping his cotton until he entered into the following agreement:

“ Bowis County, Texas, March 23, 1866.
Know all men by these presents that I have this day bargained and sold to A. T. Hawthorn twenty hales of cotton, to he averaged out of one hundred and forty-one bales shipped on steamer Carrie Poole. The net proceeds of said twenty bales average to be paid by said Hawthorn to A. O. Brummel, provided there is no seizure or detention of said one hundred and forty-one hales cotton by the Government of the United States or its agents, or, in the event of seizure or detention as aforesaid, the proceeds of said twenty bales to be paid to said Brummel, provided said one hundred and forty-one bales are released and permitted to be sold without any additional expense.
(Signed) W. C. SWANSON.”

And the cotton was released from seizure and shipped to the defendants, A. T. Hawthorn being at the time one of the firm of which-defendants are the successors.

Some time after this one Oliver asked Swanson if the sale of the twenty; bales of cotton to Brummel would be all right. “He said he guessed it would; that it was a swindling transaction all round, and that he thought he had got off cheap enough anyhow. This was before-I bought of Brummel. I got Brummel to give the order to Dean,. Adams & Gaff.” He further says: “They advanced me $1200 on the-order.”

W© think Swanson is estopped from, denying the sal© to Brummel,. for by his declarations to Oliver he induced innocent parties to part-with their money for the cotton under the impression that it belonged to Brummel.

We are also of opinion that the contract between Swanson and Brummel was an executed contract, and courts of justice will not give their aid to afford relief from the consequences of the immoral contract entered into by' the parties.

It is therefore ordered and adjudged that the judgment of the district court be annulled, and that there be judgment in favor of the plaintiff and against the defendants for the sum of $1080, with five per cent, interest thereon from the first day of April, 1868, till paid, and for costs of both courts against the defendants and intervenor.

Rehearing refused.


text:
    No. 1901.
    E. L. Bodechtel, etc., v. R. Frelinghuysen, Widow and Executrix.
    Plaintiff, a forced heir, brought suit to reduce a donation to her stepmother, made in the last will of her deceased father, which gave to her stepmother the personal property of his estate in fee simple, and the usufruct of his real estate during her widowhood. The stepmother obtained a final judgment dismissing the opposition to her account as executrix, and approving the donation. Held — That the stepmother might plead this judgment as res judicata against the claim of the heirs, although it had been rendered on opposition to her account as executrix.
    Appeal from the Second District Court, parish of Orleans. Duvigneaud, J.

      T. A. Bartlette, for appellant. J&obert J. Kerr, for appellee.
   Howell, J.

This is an action by a forced heir to reduce the donation mortis causa made to the defendant by the will of the deceased father. The defense is the plea of res judicata, which was overruled, and the defendant appealed.

The will gave to the widow, the stepmother of plaintiff, all the movable property and' the usufruct, during widowhood, of all the immovable property of the testator’s estate. The defendant, as executrix, filed an account, to which the plaintiff made opposition, on which the following judgment, which is the basis of the above plea, was rendered:

“It is ordered, adjudged and decreed that the opposition of Emma Louisa Bodechtel, wife of Leidenheimer, be dismissed, and that the-executrix be declared to bo entitled to the usufruct of the entire estate,. which usufruct will cease only at her death or in the event of her entering into a second marriage; and it -is further ordered that the account be approved and homologated.”

From this judgment no appeal was taken. It was rendered in a proceeding between the same parties now before us, and settled distinctly the right of the defendant to the usufruct of the whole estate-left by the deceased, which is to continue until death or a second marriage. This must be held to conclude the right of plaintiff to reduce the estate thus decreed to the defendant, as she is seeking to do in-this action. Her position that the plea is not good because tiie question involved could only be tried and determined by the direct action,, and not in an opposition to an account, can not avail. The authority-in 10 An. 28, cited by her, may probably have justified an exception, to the question being raised in an opposition to an account, but can not warrant us in treating the judgment thereon as a nullity.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendant, with costs in both, courts.

Rehearing refused.


text:
    No. 3527.
    Succession of J. B. Navarro.
    If an auctioneer lias made a sale of property at the request of a curator of a vacant estate,, and it turns out that the estate was not vacant, and the sale is afterward declared to he void for want of legal authority to sell, then and in such case the auctioneer has no claim against the estate for the payment'of liis foes as auctioneer in making the sale, hut lie must look to the curator or person who employed him for the payment of his fees.
    Appeal from the Second District Court, parish of Orleans. Dwoigneaud, J.

      Oharvet c6 Duplantier and M. li. lAvaudais, for appellees. A. L. Tissot, for appellants.
   Howe, J.

This succession was originally opened as a vacant one, and A. Bonzone appointed curator. On the fourteenth March, 1870, by judgment of the lower court, Mrs. Massuco was recognized as. widow in community, and Augustin D. Navarro as a legitimate son and heir of the deceased, and entitled to a certain portion of the-succession.

In April, 1870, Mrs. Anselmi, a sister of deceased, took a suspensive, appeal from this judgment, hut the curator did not appeal.

In June, 1870, the curator obtained an order to sell the real estate of the succession on the ground simply that the estate was vacant, and as such had been under administration more than a year. Rev. ■C. C. 1169.

Mrs. Massuco, represented by A. L. Tissot, Esq., attorney in fact’ made opposition on the ground that the -succession was no longer vacant, and there were no debts, and the sale was unnecessary and illegal. The curator seems to have been impressed with the correctness of these views, for he assented to the rescission of the order of sale, and it was accordingly annulled by the judge..

In November, 1870, for some reason that we can not divine, the •curator applied for another sale under the same article, 1169 Rev. C. C., .and the sale was made by De Feriet, auctioneer. The order was obtained ex parte, and whether the recognized widow and heir were -aware of its existence we .are unable to say.

The parties to whom the adjudication was made refused to take the property on the ground that the order of sale was illegal, and the sale null and void, the estate not being vacant; and on a rule being taken by the curator, and this defense being pleaded, the court sustained their views, dismissed the rule, and declared the adjudication null and void. No appeal was taken from this judgment by any one.

In March, 1871, the curator filed a provisional account, which was opposed by Mrs. Massuco, on the grounds:

Mrst — That the active mass of the estate was not correctly set forth, .Bonzone having heen attorney in fact of Navarro for some time before Ms death.

Upon this branch of the opposition we do not find sufficient sustaining- evidence. Bonzone was undoubtedly agent of Ncvarro before his ■death, but it does not appear that he has wrongfully retained in his hands anything collected by virtue of his agency.

Second — That the item of $704 30, bill of De Feriet, auctioneer, for ■making the illegal sale was improperly chai’ged to the' succession.

We think there is more force in this point. The curator had no right to apply for the sale. The succession was not vacant, as to Mm at least, for the widow and heir had appeared in this parish, and had been recognized by the court. That Mrs. Anselmi appealed from this .judgment, cannot avail the curator or any one claiming in virtue of an employment by him. He had acquiesced in the judgment by not appealing, and we think that the auctioneer whom he employed must •look to him individually for compensation.

It is therefore ordered that the judgment appealed from be reversed; that the opposition of A. L. Tissot, agent, be sustained as to the item of $704 30, auctioneer’s fees; that in other respects the opposition bo •dismissed, and that A. Bonzone pay costs of appeal.


author: Ludelixg, J. C.

text:
    No. 2907.

    A. C. Schaffer & Co. v. John C. Forbes and Waddy Thompson—George Baker, Garnishee; and Waddy Thompson v. John C. Forbes—George Baker, Garnishee.
    A person who has acted with other parties in an illicit enterprise, tho object of which is to procuro a false bill of lading for a cargo of cotton, and to destroy tho vessel on which tho cotton is to bo shipped, for which such person has received a sum of money from the other parties, can not, when tho other parties have absconded and an attachment has been taken out against them, and such person is made garnishee in attachment, set up that ho received the amount of money from the conspirators in tho fraud as a compensation for his services in enabling the creditors to ferret out tho fraud, and thereby hold tho same for his own benefit. To allow him to hold tho amount thus received for his own benefit, would be to allow him to make a dishonest appropriation of the money of the debtor to tho injury of tho creditor.
    Appeal from the Fourth District Court, parish of Orleans. TMard, J.

      William S. Sunt and Semines & Mott, for plaintiffs and appellees. -A. <£ JIT. Voorhies, for garnishee, appellant.
   Ludelixg, J. C.

Schaffer & Co. instituted suit against John C. Forbes, an absconding debtor, and Waddy Thompson, in solido, for :$12,525 26, and George Baker was sued as garnishee.

There was judgment in fayor of the plaintiffs, _ Schaffer & Co., against Forbes for $11,262 55, with xu'ivilege on the XH'operty attached. Subsequently it was agreed by the counsel of the plaintiffs in both of the above entitled suits and of George Baker that the two cases should be tried together as to the rights of the plaintiffs in the causes and the liability of George Baker. And on the twentieth May, 1870, there was judgment in favor of A. C. Schaffer & Co. against George Baker, garnishee, for the sum of four thousand dollars, with legal interest from judicial demand, the money, when collected by the sheriff, to be kex?t by him, subject to the order of the court 'a qua, until the rights of Waddy Tliomx>son to the fund be decided in the case of Thompson v. Forbes and Baker, garnishee. From this judgment Baker alone has •appealed.

The garnishee’s answer to the interrogatories xuoxiounded is as follows : “ That he owes nothing to Waddy Thompson or to J. C. Forbes; that lie has nothing for them or either of them in his jiosscssion or under his control; that tho four thousand dollars deposited by deponent is not tho property of said Forbes or Thomx>son, or of either of them; and that said sum was paid over to Mm by Forbes as Ms (deponent’s) share in an illicit enterprise contemplating .the destruction of the shii) C. C. Colson ; that deponent did not implicate himself by any act or deed in this nefarious scheme, but acted all the time under the advice of several gentlemen with the view of ferreting out the fraudulent and criminal transaction, and was instrumental in exposing the whole matter to light and preventing the departure of the brig Colson. Further deponent saith not.” The xdaintiffs, Schaffer & Co., traversed tlie answers of the garnishee, and they offered in evidence the published statement of George Baker relative to said-transaction, in which he says-:

“About this time Forbes said to mo, ‘We understand each other now; that the vessel would he loaded with bogus freight; that bills of lading would be signed for more freight than would be put on her f that she would leave for Liverpool, where she would never arrive.’ I replied evasively that there would be no trouble about 'that. Forbes said, ‘I will give you $5000, $2500 on sailing and $2500 when you return. Go on and do this, and you shall never want for anything.’ I then left and went to a friend, a merchant of high standing, and disclosed to him the whole plot. Before the papers arrived I was told to-go to Waddy Thompson’s office, and went there with him (Forbes). Mr. Thompson requested me to sign bills of lading for two hundred’ and fifty bales of cotton, saying he would give me a guarantee, .which, he stated, was customary. I replied that I had signed bills of lading-for small lots when satisfied; that they had been received, though I had not seen them, and that the signing would depend upon the guarantee. Thompson then turned to a clerk and ordered him to write out a guaran ice for two hundred and fifty bales of cotton, which the clerk, a young man of about sixteen or seventeen years, did, signing the same, ‘ Waddy Thompson, per pro.’ himself (I do not remember his name). It struck mo as peculiar that Mr. Thompson did not sign it himself, and I left the office without signing. On returning in about half an hour, I told Thompson that it was impossible for me-to sign the bills of lading until the bill of sale of the brig should arrive and she be properly turned over, as I would be making myself liable and subjecting my property to seizure.
“Just before the brig was cleared, however, Forbes took me into a private room in the Hancock Club and gave me four $1000 notes, saying that ho was short and that he would give me the other $1000 some other time, and that he had' just gotten the money from Waddy Thompson. He liad previously told me that Thompson was one of the head men in the concern and that he (Forbes) was a bankrupt; all the proceeds of the cotton, etc., had to pass through Thompson’s hands. I accepted the $4000, not wishing to appear anxious, as I had predetermined to turn it over to whoever might have the best claim upon it. Early the next morning I deposited the $4000 in the Bank of America in my name and reported the deposit to the underwriters. The plan as revealed by Forbes to me was, that I should take the Col-son out and destroy her. He did not wish to hear from mo for sixty or ninety days, in order to have plenty of time- to make money arrangements. In conclusion, I would state that what I have done has been done solely with a view to bring to justice, if possible, a number of men who have combined to perpetrate the grossest and most diabolical fraud, and whose acts are calculated to work injury to all classes of the mercantile community. I have the approval of my own conscience for the course I have pursued, and the testimony of the underwriters and iny friends will sustain my statements, which were made as soon •after I possessed the facts as possible.
(Signed) GEORGE BAKER.”

And yet George Baker now claims the §4000 as his, and contends that he has earned it by giving his valuable time to ferret out the fraud contemplated by Forbes and Thompson. The pretext is too flimsy to require argument to show its unsoundness. If he received the money with the intention of appropriating it to himself, it was a fraud upon the parties negotiating with him for his services and a dishonest approiwiation of the property of the debtor to the injury of the creditors, which the law will not allow.

We think the judgment against Baker correct.

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

Rehearing refused.


author: Wyly, J.

text:
    No. 3677.
    John S. Woodward v. Gross & Payan.

      .An overseer of a sugar plantation who has contracted with the planter to oversee the place for so much on each hogshead of sugar made on the place during the year as his wages or salary, and who has been turned off before his term of service expired, must wait until the year is out, or until it can bo ascertained with legal certainty the number of hogsheads of sugar that was made during the year. In case judgment has been given before the year is out for the portion of the time wliich the overseer served, on a calculation made as to the quantity of hogsheads assumed to be made in the year, and an appeal is taken therefrom, then and in such case the cause will be remanded to the court a qua, with instructions to ascertain the number of hogsheads made, and give judgment for so much per hogshead on the quantity actually made.
    Appeal from the Fifteenth Judicial District Court, parish of Assumption. Beattie, J.

      Carver c6 Sims, for plaintiff and appellee. Nicholls & Folse, for defendants and appellants.
   Wyly, J.

The i>laintiff claims of the defendants two hundred dollars on a contract for taking off the sugar crop of 1870, two hundred and five dollars on account, and two thousand dollars on a contract for his services as overseer on the plantation of the defendants, in the parish of Assumption for the year 1871, alleging that as he was unjustifiably discharged by the defendants on the thirteenth May, 1871, his whole year’s salary became thereby due aud exigible.

The defense is the general issue, a plea of payment of the claim lor taking off the crop of 1870, and an averment that the defendants were justified in discharging the plaintiff in May, 1871; also a reconveutional demand is set up in the answer for two hundred and fifty dollars damages for loss of molasses shipped to New Orleans, and the further sum of three hundred and seventy-nine dollars for moneys expended, by them for plaintiff’s use and benefit.

The court came to the conclusion that the defendants were justified' in discharging the plaintiff, but that he was entitled to $450 for his-salary under the contract, from the first of January, 1871, to the date-of his discharge, and also found the other claims set up by him to be correct; and finding also the defendant’s reconventional demands to he correct, the court deducting the same from the aggregate amount of the plaintiff’s claims thus ascertained, finally gave judgment for the i'laintiff for the balance of two hundred and twenty-six dollars. From tills judgment defendants appeal.

The main controversy is as to the correctness of the claim for salary for the year 1871, the court fixiDg the value thereof at four hundred and fifty dollars from first January to the thirteenth May, the date at which the plaintiff was discharged.

In the contract under which the plaintiff was employed and upon which this claim is based, we find the following clause: As a compensation of his services Mr. J. S. Woodward is to have an interest of eight dollars per every hogshead made on the said plantation.”

This suit was filed on the tenth July 187.1, and judgment rendersi on the third day of November following. At this time it was impossible’ to fix, with legal certainty, the number of hogsheads raised on the plantation that year; and without this, the salary could not he estimated, either for a part, or tire whole year, because the compensation was to ho eight dollars per hogshead. The plaintiff claimed that with proper cultivation the cane on the place ought to yield two hundred and fifty hogsheads, which, at eight dollars per hogshead, would make his salary amount to two thousand dollars; the court, however, fixed the probable amount of the crop at one hundred and fifty hogsheads, and upon that calculated that the plaintiff ought to recover four hundred and fifty dollars for his services up to the time he was discharged. We think the yield of the crop could not he legally established until it was actually raised and taken off. And, therefore, there was no certain basis upon which the court could act in determining the sum due the plaintiff on account thereof.

As the fact can now he shown, we believe that justice requires this case to be remanded for new trial.

It is therefore ordered that the judgment herein he annulled, and that this cause he remanded for now trial, appellee paying costs of appeal.


text:
    No. 2489.
    Sophia Peters, Administratrix and Tutrix v. George Spitzfaden et al.
    A judgment declaring a sale of property under execution a nullity, is not res judicata as to the purchaser who was not a party to the suit. The purchaser is therefore legally entitled to the rents of such property until his title is declared, null and void by judicial proceedings to which he is a party.
    Appeals from the Seventh District Court, parish of Orleans. Oollens, J.

      Hyman, Wallace dt Handlin, for plaintiff ancl appellant. Henry O. Miller, for defendants and appellees.
   Ludeling, C. J.

The plaintiff sues Spitzfaden and the sheriff, Bienvenue, and his sureties for the rents of certain property, possessed and occupied by Spitzfaden from 1865 to 1869, alleging that the property belongs to the succession of A. Peters and her minor-children.

Prom the record, it appears, that on the twenty-eighth day of October, 1865, George Spitzfaden bought at sheriff’s sale made under an execution against Sophia Peters, the right, title and interest of Sophia Peters in and to a certain lot, situated at the corner of Eighth and Annunciation streets, in the city of New Orleans. That, on the twentieth of June, 1869, this sale was decreed to he a nullity, in a suit between Sophia Peters, tutrix, v. Catherine Frelinghouse, Peter Bunger and the sheriff.

It is admitted in evidence that the lot in question had been acquired, by A. Peters, the husband of Sophia Peters, during the existence of the community, and that A. Peters died in 1861.

Prom these facts /e deduce the following conclusions: that the judgment rendered in the suit between Sopbia Peters, tutrix, v. Catherine Frelinghouse, Peter Bunger, and the sheriff, is not res judicata as to George Spitzfaden, the purchaser of the property, who was not a party to that suit, and that George Spitzfaden had the right to collect the half of the rents of the property until his title to the undivided half interest in and to said property shall have been declared null, in a contest in which he is a party. There is no evidence in this record to authorize us to declare the nullity of his title, nor is the nullity prayed for in this suit. Spitzfaden bought the interest of the widow-in community in and to certain community property under an execu tion issued ou a judgment against her.

There is nothing in the record before us to show that there was any other community property, or any community debts.

It is therefore ordered and adjudged, that the judgment of the district court be set aside, and that there be judgment against the plaintiff as in case of nonsuit, with costs in both courts.

Rehearing refused.


author: Taliaferro, J. Howell, J.,

text:
    No. 2677.
    The Merchants’ Mutual Insurance Company v. O. C. Blandin, State Tax Collector of the Third District, and The Germania Insurance Company v. O. C. Blandin, State Tax Collector, Third District. (Consolidated.)
    Ad insurance company can not be compelled to pay more than on© license for permission to carry on their business, although they may have established more than one office or place of business. The license imposed on insurance companies is a tax on tho occupation, and not on the business establishment, and must, therefore, bo uniform on all such companies.
    Appeal from the Seventh District Court, parish of Orleans. Collens, J.

      Albert Voorhies and C. JS. Schmidt, for plaintiffs and appellants. Simeon JBelden, Attorney General, and Hornor <fi Benedict, •for defendants and appellees.
   Taliaferro, J.

In each of those cases the State tax collector for the Third District of New Orleans having made a seizure of property to satisfy the debts and costs claimed to be due by the defendants, injunctions were taken out by them on the grbund that having paid the license tax due by them for the year 1869, viz, tbe sum of $1000 fixed by law, no other or further sum can legally be required from them for license for the same year. Judgment was rendered against the insurance companies, and they have appealed.

It appears from the evidence that each of the companies has, besides its main placo of business where policies of insurance are issued and payments and adjustments are made, an office elsewhere within the .limits of the city for the accommodation of people residing in places remote from its principal place of business. It seems that the tax collector demanded tho payment of license for these subordinate or auxiliary offices, and that in default of payment, he made seizures.

The Constitution of the State, article 118, provides that “The General Assembly may levy an income, tax upon all persons pursuing any trade, occupation or calling, and all such persons shall obtain a license .as provided by law.” It has been frequently determined that the license tax is simply an amount levied upon a pursuit, business, trade, occupation or calling, and is wholly different in its nature from a tax -on property. To be constitutional it must be equal and uniform on all persons pursuing or following tbe same business, occupation or calling. ■In the case .before us, the insurance companies have each a stated .known place of business, where their officers meet and transact the business peculiar to the occupation they are engaged in, the place known to the community at large where contracts relating to insurance are entered into, and settlements and payments growing out of such contracts aro made. For the carrying on of this business tbe company pays the license. Tbe fact that they have mere agencies elsewhere; •merely subsidiary to tho exercise of their calling or occupation, does not violate the provisions of the revenue act of 1869, making “every person having more than one store or other establishment or place of business pay the license upon each separately.-”

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed, and that the injunction be perpetuated. It is further ordered that there be judgment in favor of the plaintiffs, the defendant and appellee paying -costs in both courts.

Howell, J.,

concurring. In my view the plaintiffs may properly be relieved, because there is no provision of the law fixing a State license 'tax on agencies of insurance companies incorporated under the laws of this State, as there is in regard to hanking agencies; hut I am not prepared to say they should be relieved on the principle upon which •the majority of the court have placed their action.


text:
    No. 2480.
    Mrs. A. M. Winter v. William H. Reynolds.
    A person who lias erected a wall on tho lino of Ms lots or premises, which is afterward used by the adjoining proprietor as a wall in common, can recover from such person one-half the cost of tho construction of such wall. In such a caso tho later proprietor is bound for one-balf tbe cost, although he has purchased the property from another, who, previous to the sale, used the wall as one in common.
    Appeal from the Fifth District Court, parish of Orleans. Beaumont, J.

      Randolph, Singleton & Broione, for plaintiff and appellee. B. JSgan, for defendant and appellant.
   Howe, J.

This litigation concerns a party wall, the plaintiff claiming, in this court, half the cost of ilie portion used by defendant, under articles 675, 685 Revised Civil Code.

The defendant contends that the shed on his premises, resting- on plaintiff’s wall, was built bj' a previous owner, his vendor; that he bought without knowledge of the claim; and that the claim is a personal one against his vendor alone. In support of this position counsel cite Harrison v. Falk, 2 La. 92, which we do not perceive to he in point.

The defendant uses the party wall, and neither he nor any one else has paid plaintiff the half of its cost. It would seem that he is liable. 14 Au. 338; 20 Am 553; 22 An. 114.

It is conceded, however, that the judgment should be reduced to half the cost of the portion of the wall actually used, tlia-t is to the sum of $233 57.

It is therefore ordered that the judgment appealed from he reduced, in amount, as to defendant, to the sum of two hundred and thirty-three dollars and fifty-seven cents, and as thus amended it be affirmed, plaintiff and appellee paying costs of appeal.


text:
    No. 2444.
    Successions of Andrew and Marie Durnford, Pierre Maspero and George Olivier v. George Urquhart and James Reid, etc.
    An action by creditors to enforce a claim against a succession, can not bo maintained «'liter tlie succession has been closed and the heirs have boon legally put in possession of tlio estate.
    Appeal from the Parish and Probate Court, parish of Plaquemines. William M. Prescott, Parish Judge.

      Sambola c& Pileros, forintervenors and appellants. James Foulhouae, for the administrator, appellee.
   Ludeling, C. J.

Andrew Durniord died on the thirteenth of July, 1859. On the twenty-eighth of April, 1866, his widow was appointed dative testamentary executrix of his will. On the tenth of June, 1866* she died; on the twenty-third of July, William Erskin was appointed executor of the will of A. Durnford and administrator of the succession of Mrs. Durnford, amp. on or about the thirty-first of December, William Erskin died, and no one was appointed executor of the will of A. Durnford or administrator of the succession of Mrs. Durnford after Erskin’s death.

On tlio twenty-fourth of January, 1867, the heirs of Mr. and Mrs. Durnford applied to be recognized as the heirs of their father and mother, and to be put in possession oí their estate. The order was rendered, putting the heirs in full possession of all tlio property belonging to the successions, according to law, “ vponpayment of the debts, if my there are.” The heirs, who were all of age or emancipated, wore put in possession of the property, and they continued to control the property as owners without any one questioning their right until about the twenty-second of July, 1869, when Pierre Maspero and George Olivier filed an application in the probate court praying that George Urquha,rt and James Reid be cited to show cause why they should not pay their debts, and why the plantation belonging to the successions-of A. and M. C. Durnford should not he sold to pay their debts.

After the death of William Erskin, George Urquhart and James Reid were confirmed as the executors of the testament of William Erskin, and they had undertaken to render an account of his administration of the successions of Durnford, over which the heirs and the creditors had contested, and there was a judgment homologating the account, so far as the claims of Maspero and Olivier were concerned. At the time the account rendered by Urquhart and Reid was filed, the first of June-, 1867, the heirs had been put in possession of the property* and there was no succession. Under this state of the ease, we think the plaintiff had no right to proceed against the succession. C. P. 995, 996; 21 An. 365; 1 An. 181; 4 An. 224; 22 An. 23; 23 An. 97.

Wliat effect tlio judgment on tlie account rendered by the executors of Erskin of Ms administration (to which, the heirs and creditors of Mr. and Mrs. Durnford wore parties) had or may have against the heirs personally, we do not feel authoiized to say in this suit, which was instituted in tho probate court. We think tho heirs and intervenors are entitled to a judgment in their favor rejecting the plantiffs? demands in this suit.

It is therefore ordered and adjudged that the judgment of the court-a qua be reversed, and that there be judgment in favor of the inter-, veiiors rejecting the plaintiffs’ demands, with costs.in both courts.


text:
    No. 3542.
    State ex rel. D. C. Byerly, Clerk of the Third District Court, v. John S. Walton, Administrator of Finance.
    A clerk of one of the district courts of tho parish of Orleans has not such interest, cither as-clerk of the court or as a citizen and taxpayer, as will authorize him to invoke the writ of mandamns to regulate the jurisdiction of the soveral courts of the parish. Tho clerk of a court can not-, therefore, obtain a mandamus against tho Administrator of Enanco,, compelling him to bring suits in his court against delinquent taxpayers, although tho. court of which he is clerk alone has jurisdiction of such suits when brought. Tho question as to whether suit is to ho brought, is loft to tho discretion of the officers having control of the finances of the city.
    Appeal from the Eighth District Court, parish of Orleans. Dibble; J.

      Semmes & Mott, for plaintiff. George S. Lacey, City Attorney,,
    for defendant and ajipellant.
   Wyly, J.

The relator alleges that he is the clerk of the Third District Court; that said court is tho only court of competent jurisdiction to entertain suits for the recovery of taxes duo the city of New Orleans, where the amount is one hundred dollars or less; that in such cases none of the other district courts of the parish of Orleans have jurisdiction; that John S. Walton, the Administrator of Finance, has declared his intention to publish, and lias published in the official journal, the list of taxpayers who have failed to pay the taxes for the year 1871, exigible on tho thirty-first July, 1871, and that it is his intention to filo all tax hills or claims for taxes of that year in the Fourth and Eighth District Courts, whether the same exceeds or is less than one hundred dollars in amount, claiming the right to do so under the provision of the ninth section of tho act approved thirteenth March, 1871.

The relator farther avers that said section gives no such right to tho administrator, and was not intended to give him authority to select courts for the filing of tax bills or claims in any court but the court having jurisdiction to try the same; that the relator has called on the Administrator of Finance and demanded that all suits for the collection of taxes, where the amount claimed is one hundred dollars and under, shall be filed in tho Third District Court, parish of Orleans, which demand has positively been refused; that the amount allowed by law for such suits greatly exceeds ñve hundred dollars, and that the relator is injured at least one thousand dollars by the refusal of the Administrator of Finance as aforesaid.

The prayer of the petition is that the writ of mandamus issue, commanding the said Administrator of Finance to publish the list of tax bills or claims in the official journal, and if said tax bills or claims are not paid within tho legal delay, after said.publication, to file suit on the same in tho Third District Court, where the claims amount severally to one hundred dollars or less.

The clerks of the Fourth and Eighth District Courts intervened on the grounds stated in their petition. The answer of tho Administrator of Finance discloses several grounds of defense. The most important is that the relator has no interest to appear, and seek to regulate the jurisdiction of the several courts; the only interest which he avers being that of prospective fees, which is not such as is deemed in law an interest, authorizing him to appear in the capacity of relator herein; that if it be true that the respondent can be made to institute suits in disregard to the statute cited and relied on by him, and contrary to the direction of the City Council, the writ of mandamus would not lie to compel him to institute tax suits of the amount of one hundred dollars or less in the Third District Court, because the justices of the peace have concurrent jurisdiction, and the respondent would have discretion in the selection. The court dismissed the intervention and rendered the mandamus peremptory as prayed for by the relator. From this judgment the Administrator of Finance and the city of New Orleans have appealed.

We think the judgment of the court below is erroneous. The relator discloses no interest to justify this litigation. Until he earns fees the city of New Orleans owes Mm nothing. Where does he got the right, either as clerk or as a citizen, to exercise supervisory control over the city of Now Orleans or its Administrators? We do not see what right he has to demand of the Administrator of Finance that he shall publish the list of delinquent tax payers in the official journal; and also demand of him that certain suits shall be instituted by the city in the Third District Court, of which he happens to be clerk. To make such demands is certainly not one of the prerogatives of his office. If the city should sue one of its delinquent tax payers in the wrong court, it might be the interest of the latter to complain; or if ho chose to make no objection the judgment would be without effect, because the decree of a court without jurisdiction ratione material is an absolute nullity. But, say the counsel, suits of this kind will involve the city in debt, such cost bills being an unnecessary and idle expenditure of money; and as tax payer the relator has an interest in suing to prevent tlio ovil. It will be time enough for the relator to complain, as a tax payer, when he is called upon to pajr an illegal or improper tax.

The city government can not bo administered if its operations are to be embarrassed with the supervision of every tax payer, or if each tax payer has the right, by suit, to prevent it from incurring such debts as he may fancy to bo illegal, improper or unwise.

We entirely agree with the respondent, that the clerk of the Third District Court has no interest to apply for the remedy of mandamus, in order to regulate the jurisdiction of the several courts of the parish of Orleans. As to him, we think, this is purely a speculative question, which this court will not undertake to solve, because he has no interest, as far as the record shows, to demand the solution thereof.

Let the judgment appealed from bo annulled, let the mandamus he disallowed and the petition he dismissed at the costs of the relator.

Rehearing roinsed.


text:
    No. 2439.
    J. B. Michoud v. Charles Nolan.
    A claim for damages winch is made in a suit to enjoin tlio salo of property on tlio ground that tlio seizure was illegal, unsupported "by evidence on tlio trial, will not he considered in estimating tlio amount necessary to give tlio appellate court jurisdiction of the appeal.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      JE. Quillet, for plaintiff and appellant. Sambola ds Ducros for defendant and appellee.
   Taliaferro, J.

The defendant, Nolan, having obtained judgment in the year 18G9, in the Seventh District Court, of the parisli of Orleans, against the plaintiff and others ior costs iu a certain suit then pending in that court, issued execution, aud the sheriff seized several lots of ground belonging to the defendant in that suit. The defendant, who is plaintiff in this case, obtained from the Sixth District Court, of the parish of Orleans, a writ of injunction to restrain the sheriff from selling the property seized, alleging informalities in the proceeeding, and claimiug one thousand dollars damages. The defendant in this injunction suit filed an exception to the injunction of the Sixth District Court, and also took a rule on tlio same ground against the plaintiff to dissolve the injunction. A judgment was rendered both' on the rule and on the exception, making the former absolute and sustaining tho latter, giving the defendant judgment dissolving the injunction with five per cent, damages in solido against the plaintiff and his surety on the injunction bond. From each judgment the plaintiff appeals.

We are unable to find anything in the record which authorizes this court to take jurisdiction of this case. The amount for which execu'tion issued is one hundred and sixty-one dollars and sixty cents, •clerk’s costs, a,nd for sheriffs costs besides, tho amount not being ■specified.

We consider the claim of the plaintiff in injunction for one thousand dollars damages as unfounded, and made with the view of obtaining an appeal to this court. No effort was made to prove that damages had been sustained by the issuing of injunction.

It is therefor© ordered, that the appeals taken in this case bo dismissed.

Rehearing refused.


text:
    No. 3732.
    D. Blum, Stern & Co. v. George H. Sallis.
    .'A. third lioltlor of a promissory note, indorsed in blank, is not entitled to recover thereon without proving tho signature of tho indorsor. In such a caso if tho records show that tho indorsement on tho noto was not proved m tho court below tbo causo wTill bo remanded.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      Ji. A. Hunter, for plaintiffs and appellees. If. 8. fjosee, for defendant and appellant.
   Taliaferro, J.

There is a motion to dismiss in this case on the .ground that the only matter in controversy between the parties is a ••sum less than five hundred dollars. The amount sued for determines rtiie jurisdiction, and tho amount sued for largely exceeds five hundred .dollars. The motion is overruled.

This is an action on a promissory note. Citation was served at the ■defendant’s domicile by delivering copies of the petition and citation ■to a free person above the age of fourteen living in defendant’s house, ho being absent. No answer was filed. A default was taken and afterwards confirmed and judgment rendered for the amount claimed. The defendant appealed. The defense is that judgment was rendered upon insufficient evidence. The note of evidence is brief, merely ¡reciting that “John Weil, s worn, says he knows the signature to the mote shown him, and that he knows the note was signed by Mr. ■Sallis.”

Tho petition alleges that plaintiffs acquired the note sued on by the ándorsment to them of B. Weil & Brother, the payees. No evidence .is introduced to prove the indorsment, C. P. article 312; 20 An. 100 .■and 547; 12 Rob. 518. We think the defense should prevail.

It is therefore ordered, adjudged and decreed that the judgment of ■the district court be annulled, avoided and reversed. It is further ■ordered that tins case be remanded for further proceedings according to law, the plaintiffs and appellees paying costs of this appeal.


author: Taliaferro, J. JOHN T. LUDELING, C. J. .Howe, J.,

text:
    No. 3869.
    State of Louisiana ex rel. W. Van Orden v. C. S. Sauvinet, Civil Sheriff, etc.
    IMie Supreme Court is vested with power to issue the writ oí habeas corpus in a case where a party to a suit before a district court has boon imprisoned by the judge for a contempt oí court, if the amount in dispute in tlio main action is sufficient to give it jurisdiction of the appeal, provided the contempt is connected with or grows out of the main action.
    A contempt of court is au offense against the State, and not an offense against the judge personally, and therefore the order of the judge inflicting punishment for sucli contempt comes within the range of the pardoning prerogatives vested by the constitution in the Executive.

      A IMPLICATION for a Writ of Habeas Corpus. Cooley, J.

      Georye 8. JLil Lacey and Chas. 8. Lice, for relator. C. T. Lea-mis, for respondent.
   Taliaferro, Justice, delivered the opinion of a majority of the judges sitting at chambers to hear the habeas corpus granted in this cause.

Taliaferro, J.

The relator complains that he is under illegal .surest and hold in custody by the civil sheriff of the parish of Orleans in obedience to an order rendered by the judge of the Sixth District Court-of the parish of Orleans, on the sixth of March, 1872, sentencing him to arrest and to be held in custody by the sheriff for the term of ten days for an alleged contempt of the orders of the said court. He alleges that for the offense charged against him, and for which he was sentenced as aforesaid, and tinder pretense of which he is now under arrest and deprived of his liberty, he has applied to and obtained from the .Governor of the State of Louisiana a full pardon and remission of said offense, and that he has presented the same to the sheriff and demanded his release, but notwithstanding the sheriff refuses to discharge him unless under an order of tlio court which authorized the arrest and detention of the relator. He therefore applies for a writ of habeas corpus directed to the said sheriff commanding him to bring the relator before the Supreme Court of Louisiana or any of the judges thereof, and show cause why he thus keeps the relator imprisoned and deprived of his liberty, and why he should not be released and discharged. He prays for relief, etc.

The facts seem to be that in the month of February of tlio present .year suit was brought agaiust Van Orden, thé relator, by J. B. Louis to recover -from him a cash box'and its contents, alleged to contain the .amount of thirty-five thousand dollars in money and public securities, which box and its alleged contents had been deposited with the relator for safe keeping. A writ of sequestration was issued to take the box cut of the hands of the relator, and upon his refusal to deliver it he was sentenced to be arrested by the sheriff and to be held in custody by him for the period of ten days as for a contempt of court. Application was-then made to the Governor of the State for a pardon which was granted. The sheriff, conceiving it to be his duty to hold the party in custody until otherwise ordered by the court, declined to. release the prisoner upon the presentation of the pardon granted by the Executive; and at this stage of the proceedings the application was made to this court or to any of the judges thereof for a writ of habeas, corpus which was issued accordingly.

The questions for determination are—

Mrst — Is this court or any of the judges composing it vested with, power to issue the writ of habeas corpus prayed for in this case, and1 to maintain jurisdiction of the matters presented by the petition of the relator?

Second — Has the Governor of the State the power to grant a pardon' to a party sentenced to imprisonment by a court for a contempt of its-authority ?

■ Article 792 of the Code of Practice provides that “The Supreme Court and each of the judges thereof shall have power to issue writs of habeas corpus at the instance of persons in actual custody, in cases, when they may have appellate jurisdiction,” etc. We regard the order-under which the party in' this case was arrested, and is held in custody by the sheriff, as constituting a part of the proceedings in the-suit of Lewis v. Van Orden. The order of sequestration was rendered' by tlie judge in the exercise of his judicial functions in determining-the issues presented by the parties. The order of imprisonment consequent upon the relator’s alleged contempt, forms part of the proceedings in the action pending. It grew out of and constituted an important part of those proceedings. It is not easy to disconnect it from them. We do not view it in the light of a separate, independent, isolated action or proceeding detached from the main action, and wholly unconnected with it. If we entertained a doubt ou this point we should feel it to be our duty, in a case involving a question of personal liberty to assume jurisdiction. The matter in controversy between the parties to the suit is clearly within the jurisdiction of this court. Besides, the relator presents himself as occupying also another ground. If the order of imprisonment were considered a decree- or judgment entirely distinct from the suit, in the prosecution of which it originated, that decree or judgment of tho court is one from which the relator would have the right of appeal. Ho alleges umjler oath that that decree, by depriving him. of bis liberty, detention from, his family and suspension from his business, injures him. to-an. amount exceeding five hundred dollars.

The next inquiry is, has the Governor the prerogative of pardon in. cases of conviction and punishment for contempt of the authority of a court. The investigation which we have been able to make of this-question, does not satisfy us that the chief Executive- officer of tlieState is without power to extend pardon, to- a party convicted and* punished for contempt of court. We find nothing in the constitution of the State which makes an exception in such cases. That the President of the United States is clothed with the power to grant pardons in cases where judges of the United States courts punish for contempts is clearly settled. 4 Opinions of Attorneys General, p. 458; 5 ditto, p. 579; Blatchford’s Circuit Court Reports, vol. 7, p. 24, and cases there cited.

The analogy between the exercise of such a power by the President in all the States, in cases of the sort arising in the courts of the United States, and the exercise of that power in a single State by its Governor, in the same class of cases arising in the courts of a State, seems to be strong and well defined. There being no exception found in our State Constitution precluding in such cases the exercise of the pardoning-prerogative by the Governor of the State, we feel no hesitancy in recognizing its existence. That the offense arising from a contempt of the authority of a court is one which, from its nature,-should be summarily punished, to the end that an efficient and wholesome exercise of judicial powers may be had, no one will question. But the opinion entertained to some extent, that punishments decreed for such offenses must necessarily be inflicted at the stern arbitrament of the judge, without remission or abatement by the pardoning power, we do not find to rest upon any firm basis of principle or authority. A contempt of court is an offense against the State and not an offense against the judge personally. In such a case the State is the offended party, and it belongs to the State, acting through another department of its government, to pardon or not to pardon, at its discretion, the offender.

That this is a delicate power and should bo used only in cases manifestly proper, we are at liberty in our private judgments to believe; while on the other hand we have no question that abuses in the exercise of the power of punishing for contempts may arise, although instances of the kind are rare. We can scarcely think it compatible with the genius of liberal government and free institutions, that there shoidd he no shield to protect an individual against a tyrannical exercise by a judge of his power to punish for contempt, and therefore conclude that, upon the principle of checks and balances upon which our American governments are founded, it was not intended by the framers of them that the pardoning power should not roach a party unduly deprived of his liberty, by, it might be, a hasty and petulant fiat of a judge. That the power of pardoning in such cases is withheld from the executive departments of our State governments, the counsel representing the plaintiff in sequestration in the case before us, has not satisfied us by the authorities referred to in his brief. These seem to us to rest upon hypothesis and implications only, and indicate no positive constitutional provision withholding- the power in '•question. We do not see the force of the reasoning- used to support •the deductions made. They seem to be little better than plausible conjecture.

But we are not without authority on the question of the power of the Governor of a State to grant pardons in cases of contempts. In 1844, Walter Hickey, of Vicksburg, Mississippi, was sentenced to fine and imprisonment for contempt of the Circuit Court of Mississippi. He was pardoned by Governor A. G. Brown, and released by the sheriff, but was immediately rearrested by order of the court. Upon application to Mr. Justice Thatcher of the High Court of Errors and Appeals of Mississippi (at that time presided over by Chief Justice Sharkey), a writ of habeas corpus was issued and Hickey was brought before'him. The case being heard, the prisoner was discharged. Judge Thatcher in rendering his decree said : “The whole doctrine of contempts 'goes to the point that the offense is a wrong to the public, not to the person of the functionary to whom it is offered, considered merely as an individual. It follows then that the contempts of court are either crimes or misdemeanors in proportion to the aggravation of the offense, and as such are included within the pardoning power of •this State.” Smedes & Marshal R. vol.4, 75i. See also Blacks tone, vol. 4, 231.

It is proper to add, that Lewis, the plaintiff in sequestration, lias no interest or right of property in the punishment inflicted. It is no concern of his, but concerns the State alone; and the rule therefore, that when a private person (as an informer for example) has acquired a right of property in a penalty, the executive can not pardon, can have no application to this case.

It is not for us to deal with this subject on the basis of inquiry into the motives of the Executive in granting the pardon to the prisoner in •this case, nor to pronounce the act discreet or otherwise. In the case here presented, it is not denied that the offense was committed. Neither is it pretended that the punishment meted out for the offense was wrongfully inflicted. The party under duress pleads the pardon and remission of the offense, and claims in virtue of that pardon to be •released and set at large. Entertaining the views we have expressed, we think him entitled to the relief prayed for.

It is therefore ordered, that the writ be made peremptory and the •prisoner discharged.

JOHN T. LUDELING, C. J.

I concur in the opinion of Mr. Justice Taliaferro.

.Howe, J.,

concurring. I am not prepared to say that the pardon of t-lie Executive could legally release a party committed by a judge for purposes of coercion merely, and to enforce a private right; as a contumacious witness, a defendant in injunction under article 308, C. P., or a respondent in mandamus under article 843, C. P. It is highly probable that the element of private interest in the coercive process would prevent the State of Louisiana, through its Executive, from releasing the prisoner. 4 Blackstone, 285.

But there is no such element in this case. The relator has been merely convicted in a summary way of an offense, and imprisoned for a specific period. Ho had been declared an offender, and the State alone is interested in his punishment as a satisfaction to her injured dignity, and an example to other citizens.

But if the State, through her judiciary, and simply in her own interest, imprison a citizen, it is plain that the State acting through her Executive can remit the penalty. 4 Smedes & Marshall 751; 4 Wallace 380. It is the State of Louisiana alone who acts in both instances, and not the individual who happens to be judge or governor.

I therefore concur in the decree.

Justices Howell and Wyly, were not present at the hearing of this cause.