text:
    Alfred B. Woodruff v. J. M. Dodd et als.
    Where a party to a suit, in answering an interrogatory on facts and articles, states some other facts besides those concerning which inquiry has been made, if such facts bo matter of deronco and closely linked to tho facts on which the party was interrogated, the answer is admissible.
    Where the District Judge struck out such an answer, and, a bill of exception being taken, tho Supremo Court admitted it in evidence — Held: That tho case should be remanded in order to give the opposite party an opportunity to contradict it.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      T. Gilmore, for plaintiff.

      Collins <& Wooldridge, for defendants and appellants.
   Voorhies, J.

The plaintiff, as holder of a promissory note, sues the maker. The defence is that this indebtedness is compensated in part by another note, which the defendants hold against the payee. It is contended that the plaintiff became the holder of the note sued upon, since its maturity at a time subsequent to the transfer, to the defendants, of the note opposed as a set-off.

Interrogatories on facts and articles were propounded to one of the defendants. The question was asked : “ At what date did you or your late partner Horman acquire the acceptance of Baker Collins from Wm. H. Letchford & Co., pleaded in compensation herein ? ”

The answer was:

“ I acquired it myself from Letchford <& Co. on the 3d of September, 1859; at the same time Baker & Collins held the note sued on.”

The plaintiff moved that the latter part of the defendant’s answer be striken off; and the court sustained the motion, on the ground that the defendant had no right to add to his answer to the interrogatory, matters not inquired of, and not pertinent to the interrogatory, and irrelevant. ” The defendant took a bill of exceptions.'

A party whose conscience is probed, has the right to “ state some other facts tending to his defence, provided they be closely linked to the fact, on which he has been questioned. ” The test is whether it be a matter of defence, and whether there be any connection between the facts sought and the additional matter elicited.

The object of the plaintiff was to show, by the defendant’s answer, that the latter had purchased the note, set up in compensation, at a time subsequent to the former’s possession as holder of the other note.

That part of the answer to the interrogatory, which was striken off, proved the very reverse, to-wit: that the defendants’ title was anterior to the divestiture of the payee’s title. This was a matter of defence, closely linked to the fact on which an appeal had been made to the conscience of the party interrogated. The bill of exception was consequently well taken.

The balance due to the plaintiff, allowing the compensation set up by the defendants, amounts to seventy-five dollars. But as the latter have deposited this amount in court, and paid the costs that had accrued up to the time, the subsequent costs must be borne by the former.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed ; and that there be judgment in favor of the plaintiff against the defendants J. W. Dodd & Co. for the sum of seventy-five dollars, which amount was deposited in the lower Court.

And, it is further ordered and decreed, that the plaintiff pay all the costs of court incurred since the date of the tender.

Same Case — Ok a Re-hearing.

The plaintiff, on a motion for a re-hearing, prays that this case be remanded for the purpose of enabling him to contradict the defendant’s answers to interrogatories on facts and articles.

Inasmuch as the District Judge had striken off the answer, which was objected to by the plaintiff on the trial below, and we came to a different conclusion, it is but proper to give to this party an opportunity of rebutting the answer of his adversary.

It is, therefore, ordered and decreed, that the judgment of this court be set aside; and that the judgment of the inferior court be avoided and reversed, and the case be remanded for further proceedings according to law as laid down in the opinion of this court in the premises.

It is further ordered, that the plaintiff pay the costs of this appeal.


source: Caselaw Access Project

author: Duffel, J.

license: Public Domain

text:
    Elam Bowman v. McElroy & Bradford.
    A mortgage granted by the maker of a note, to one who endorses the note for the maker’s accommodation, to secure him against liability, is not an accessory to the principal obligation, blit simply a personal indemnity depending on the payment of the note by the endorser.
    The endorser, in such a case, would have no cause of action, until he had paid money on his endorsement ; and the holder of the note, after judgment against the endorser, could claim no better right under the mortgage than the endorser possessed.
    APPEAL from the District Court of the Parish of Tensas, Farrar, J.

      George Sawyer, for plaintiff.

      F. H. Farrar and P. P. Farrar, for opponent and appellant.
   Duffel, J.

On the 18th of December, 1855, James R. Bisland sold to James M. Motlow all his property, consisting of fifty-eight slaves; and on the 27th of March, 1856, the said Motlow transferred the same to Elam Bowman. Certain mortgage creditors of James R. Bisland having attacked the validity of said conveyances, the District Judge rescinded the same, on the ground of simulation, and this court affirmed that portion of the judgment of the lower court, and ordered the sale of the slaves thus conveyed by Bisland, to satisfy the claims of the complainants, according to the rank assigned to each. See 14 An., pp. 587 to 595.

Wills é Rawlins, who were not parties to the above proceedings, now come in, by way of third opposition, and claim to share in the proceeds of the sale of the above mentioned slaves, as mortgage creditors, and set out in their petition all the above transfers, and the decree of this court declaring their simulation.

We have just decided, in the third opposition of D. S. & T. A. Bisland, in the same suit, their right to plead all such matters without resorting to a direct action en simulation.

The third opponents rest their claim on the following facts :

That they became the holders of one of the drafts or bills of exchange described in the mortgage granted by James R. Bisland in favor of Cartwright & Doniphan on the 30th of May, 1854, to secure them for their liability as accommodation endorsers. See 14 An. p. 587 et seq.

It appears from the evidence, that the third opponents came in possession of said bill of exchange on the 16th of November, 1854; that the same was, at maturity, 26th February, 1855, presented for payment to the acceptors, McRae, Coffman & Co., aud duly protested; that judgment was rendered in May, 1856, by the Judge of the First Judicial District of the State of Mississippi, in the county of Adams, against J. R. Bisland, Cartwright & Doniphan, and in favor of the third opponents, for the amount, principal and interest of said bill of exchange, say $4,244 68, with five per cent, interest from the date of the judgment, and the costs of suit, and that a return of nulla bona was made on the writ issued on said judgment.

The third opponents contend, that they are, by the laws of Mississippi, (which, we think, must control the decision of the case',) subrogated to the above recited mortgage, which was solely granted to indemnify Cartwright & Doniphan.

The mortgage, or deed of trust, granted in this case, is not an accessory to the principal obligation, but simply a personal indemnity depending on the payment, by the accomodation endorsers, of the bills of exchange described in the deed. C. C. 3257, 3259, 2016.

The right of action remained in suspense until a loss was suffered, and to the extent of such actual loss only. C. C. 2023, 2038.

The endorsers did not subrogate the holders to their mortgage, nor was that mortgage granted to secure the payment of the bills of exchange.

It is therefore clear, that until the endorsers paid some money on their endorsement, they had no cause of action; and such being the case, we cannot well see how the holders can pretend to a better right. Besides, we have not been able to find in the voluminous record before us, the inability of the acceptors to pay their acceptances. Salaun v. Relf, 4 An. 576 ; Kirkland v. His Creditors, 7 N. S. 130 ; Collier v. His Creditors, 12 Rob. 398.

In 1he case of McLean v. Bagsdale, 31 Mississippi Rep , p. 703, the court remarked : “ Had the plaintiff filed his bill to foreclose immediately after the maturity of the note, it is plain that he could not have recovered, without showing that he had paid the money, because he might thereby collect money under a contract of indemnity where he had suffered no loss, and might never sustain any.”

The property of a debtor remains the pledge of his creditors; and should he dispose of the same, with intent'to prejudice them, they have the undoubted right to complain ; but they certainly cannot-claim a preference which was never intended, to the exclusion of other creditors. C. C. 1750, 2032 ; C. P. Art. 1.

The judgment of the lower court was one of nonsuit, and the appellees have asked an absolute judgment in their favor. We will decree accordingly.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, and that ours be against the third opponents, Wills <& Rawlins et al., rejecting their demand, at their costs in both courts.


author: Ddjtel, J.

text:
    C. & E. Rolling v. F. de Bordenave & Co.
    A general and special powor of attorney given by a wife to her husband, from whom she is separated in property, is not sufficient to authorize him to bind her as a member of a commercial partnership, where it does not appear that she was over a public merchant, or interested in any commercial house, nor that she ever took any part whatever in the concern for whose liabilities it is sought to make her responsible.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      C. Dufour, for plaintiff. Budd & Lambert, for defendants and appellants.
   Ddjtel, J.

One of the defendants, Louise Decuers, who is separated in property from her husband, Louis Decuers, has appealed from the judgment rendered in this cause against her, as one of the parties composing the commercial firm of F. de Bordenave & Co., on the ground that she is not, in fact, a member of said firm.

It appears that the defendant, who resides in the parish of St. Janies, gave, on the 12th of October, 1858, a general and special power of attorney to her husband, and that the latter, by virtue of said power, entered, oil the 11th of January, 1859, into a commercial partnership with the other defendants, to carry on the business of factors and grocers in the city of New Orleans. It further appears, that shortly after, the 14th of February of the same year, a card, bearing the names of all the partners, was published in’ the Courier newspaper of this city, announcing the dissolution of the partnership.

The power of attorney does not contemplate, expressly or by implication, the formation of a commercial association ; for it does not appear that the appellant was ever a public merchant, or interested in any commercial house; nor is it in evidence that she ever signed the card above mentioned, or took any part whatever in the concern.

From the foregoing facts of the case, we are constrained to say that the agent exceeded his powers, and that his principal is not responsible. C. C. 2966, 2965 ; Reynolds et al. v. Rowley el al., 4 An. 396 ; Grove v. Harvey, 12 Rob. 221; Miller v. The New Orleans Canal and Banking Company, 8 Rob. 236.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be, as to the appellant, Louise Lecuers, reversed, and that ours be in her favor, with costs in both courts.


author: V oorhies, J.

text:
    State of Louisiana v. Widow H. Walters.
    In criminal cases the verdict of the jury may be given orally, but whether returned orally, or in wri ting it must bo recorded on the minutes in the English language.
    The court cannot after the jury are discharged order the translation into English, of the record of their verdict, which was made in French.
    APPEAL from the District Court of the Parish of St John the Baptist,

      Lawes, J. Jervais Leche, for the State.

      E. Fillieul, for defendant and pellant.
   V oorhies, J.

The defendant filed, in the lower court, a motion in arrest of judgment, assigning as an irregularity that the verdict was spread in the French language on the minutes of the court.

The jury rendered their verdict, which was recorded as follows : “ Coupable, recommandée á la clémence de la cour.”

Under Article 100 of the Constitution, the entry should have been made in the English language. In its present form, it is an absolute nullity. 8 L. R. 275, Dubertrand v. Laville.

There is a difference in the mode of returning a verdict in civil and in criminal causes. In the former there must be a written verdict signed by the foreman; whilst, in the latter, the jury may and generally do give their verdict orally in open court. Whether the verdict be returned orally or in writing, it is necessary that it be recorded on the minutes in the English language.

In the case at bar the court, after discharging the jury and overruling the motion in arrest of judgment, ordered a correction of the minutes by inserting a translation of the verdict. Courts of justice have the undoubted right to correct the minutes of their proceedings so as to make them conform to the truth. But a translation of the minutes cannot properly be classed as an amendment or correction.

It is, therefore, ordered and decreed, that the .judgment of the District Court be avoided and reversed, and that this cause be remanded for a new trial.


author: Duffel, J. Mebeick, O. J., Duffel, J.

text:
    Succession of John Rice.
    Before the passage of the Act of the LogislaUu'c approved April SOth, 1853, there was no term of prescription in the law applicable to domestic judgments.
    Domestic judgments rendered anterior to the passage of the Act of the Legislature of 1853, cannot bo barred, under that statute, before tlio lapse of ten years from its promulgation.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Janin & Griffin, for opponent.

      T. Gilmore and Hyams & Jonas, for appellant.
   Duffel, J.

The Bank of Orleans obtained, against John Rice, in the Commercial Court of New Orleans, judgment on the 11th December, 1840, for $2,802, with five per cent, interest from the 13th of May, 1840, four dollars costs of protest, and the costs of suit.

A writ of fi. fa. issued on the 28 th of December, 1840, and an alias on the 14th of November, 1842 ; the return on each was “no property found after legal demand from the parties.”

The pbove judgment was based on a protested note of James M. G. Cuddy, endorsed by Dr. John Rice, the payee, for $2,802, and the note was withdrawn, as also the protest, on the 3d September, 184T, by C. A. Morin, commissioner. A. Morin, W. C. C. Claiborne and M. Caruthers, commissioners of the Bank of Orleans, presented a petition to the Parish Court of New Orleans, stating “that they have some outstanding claims which they are desirous of selling from time to time, as they may deem most advantageous, and they pray your Honor that they may be authorized to do so.”

The following' order was made on this petition “ Let the commissioners be authorized to sell the outstanding claims, as within prayed for. — New Orleans, April 15th, 1846. — (Signed) Charles Maurian, Judge.”

It appears that under this order, Christy Cenas, auctioneers, formed lots of said outstanding claims, and sold the same on the 9th' of May, 1846. Lot No. 3 amounted to $8,929 93, and included “ a note of J. M. G. Cuddy, endorsed J. Rice, protested in 1840, for $2,802.” — “ Sold to A. A. Baudouin, agent, for $35.” On the 25th of May, 1846, W. C. C. Claiborne and C. A. Morin, commissioners, did, by virtue of the above adjudication, and for value received, transfer to A. A. Baudouin, agent, the above judgment, with subrogation “ to all the right, title and interest which the said commissioners had in the above judgment, No. 3040, at the time of the adjudication, and nothing more.”

Hr. John Rice died in New Orleans on the 26th of November, 1856, and his succession has been under administration since the loth of December, 1856. His real estate was appraised, in 1856, at $35,866. And according to the final account of the curator, filed 23d May, 1859, he has on hand $26,422 86.

It is admitted, that the real estate described in the inventory was in the possession of John Rice in 1836, and remained so up to his death, and that his titles to the same were of record in the Office of Oonveyances of this city. It also appears, that the books of the bank were burnt in July, 1857, by an order of the Third District Oourt; and it is not in evidence that John Rice was ever notified of the above transfer, or that any attempt was made to execute the judgment since 1842, excepting the opposition now filed to the curator’s account by Celeste Jmcíc Morin, wife of A. A. Baudouin, separated in property from her husband, demanding to be classed as a mortgage creditor of John Rice for the amount of the above judgment.

The curator and heirs of John Rice oppose the prescription of ten years to the right of action, and the prescription of 10, 20 and 30 years, to the judgment itself.

The claim was admitted by the District Judge.

Apart from the presumption of the extinguishment of the judgment before its adjudication to A. A. Baudouin, which may reasonably be inferred from the ability of Rice to pay the same, and the insignificancy of the price of adjudication ; this being a personal action, under the decision in the case of Kemp v. The Heirs of Diana Cornelius, 14 An. 301, is prescribed by the lapse of ten years.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Dis ■ trict Oourt be reversed, and that the opposition of Mrs. A. A. Baudouin be rejected, with costs in both courts.

Mebeick, O. J.,

concurring. I think the facts of this case authorize the conclusion, that the debt has been paid. I prefer to rest my concurrence in the decree on this ground, as I am not satisfied that prescription has been acquired.

Same .Case — On a Re-heabins.

Duffel, J.

A re-hearing was granted in this case, from a conviction that the prescription of ten years, consecrated in the suit of Kemp v. Heirs of Cornelius, 14 An. 301, was erroneously applied in this cause, inasmuch as the same was not acquired at the inception of this action, May 31st, 1859, John Rice having only died November 26th, 1856.

The statute of limitation approved April 30th, 1853, (see Revised Statutes, p. 82, sec. 32,) provides that, “ hereafter all judgments for money, whether rendered within or without the State, shall be prescribed by the lapse of ten years from the rendition of such judgments.”

The appellants, assuming that before the passage of this statute, judgments were prescribed by thirty years, contend that the judgment against John Rice, which was rendered December 11th, 1840, is barred, by computing the time which preceded that change, according to the time then required, and adding it to the time which has elapsed since, according to the principle recognized by this court in the case of Goddard’s Heirs v. Urquhart, 6 La. 659.

We must bear in mind, that the Code does not provide specially for the prescription of judgments, and that our jurisprudence has studiously refrained from recognizing the application of even the longest prescription to domestic judgments. Louisiana State Bank v. Barrow et al., 2 An. 405 ; Deal & Co. v. Patterson, 12 An. 728, and the cases therein cited.

With these facts before us, we are satisfied that the Legislature did not intend that judgments should, in any case, be barred, under the statute, before the lapse of ten years from its promulgation.

As to the merits, we think that justice demands that the case be remanded for further evidence, and more particularly, to afford to the plaintiff the opportunity of showing, as her counsel asserts in the application for a re-hoaring, that the claims of Herman (Wrn. Debuys), of Montgomery, and of Fisk, which are all included in the tableau herein opposed, are evidenced by judgments of old standing.

It is, therefore, adjudged and decreed, that the judgment heretofore rendered by us be set aside, as also the judgment of the District Court, and that the cause be remanded for a new trial, and proceedings according to law; the appellee to pay the costs of the appeal.


author: Voorhies, J.

text:
    F. W. Williams & Co. v. Cresent Mutual Insurance Company.
    An American Consul at a forign port is without authority to make an authenticated copy of a draft drawn here by the owner of a ship, upon the consignees of such ship at such foreign port.
    The interest of a consignee, who has accepted a draft drawn against the freight, whether insured or not, is an insurable interest and a distinct matter from the interest of the captain and ship owners. The latter may, bo wo ver, afterwards benefit by an insurance effected by the former, by assenting to the contract and making himsolf liable for the premium ; but this is tho result of a contract on his part.
    Where the'consignor of a vessel effected an insurance on the freight, with the warranty, “no other insurance ” and the consignee, who had accoptod a draft against such freight, without instructions from the cónsignor, effected another insurance on tho freight at the place of destination — Held: That this last insurance could not be considered a violation of tho warranty contained in the for-
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Whittaker d Fellowes, for plaintiffs.

      M. M. Cohen, for defendant and appellant.
   Voorhies, J.

The only question presented, on the merits of this cause, is, whether the plaintiff’s policy of insurance on the freight of the ship Lorena, has not been vitiated by the violation of the warranty that no other insurance should be effected on this property.

This clause is as follows : “ freight valued at freight list, on condition no other insurance.”

After the execution of the policy by the defendants, Captain Urquhart, part owner of the ship Lorena, drew a draft for 7,800 francs, to the order of Charles Cavaroc, upon Gibert & Dalleas, the consignees of the ship at Bordeaux. The latter, having accepted this draft, had the freight insured for their own interest in an insurance company at Bordeaux.

The evidence in the record shows that this second insurance was not obtained through the instructions of the plaintiff, express or implied : but that the consignees had the same effected for their own interest, and without instructions from any party whatsoever. They acted of their own accord; and, although they charge the premium to the plaintiffs, it is upon the supposition that, according to the custom of merchants, the ship should be made liable for this amount.

The defendants contend that the insurance, at Bordeaux, was, in point of fact, made for the benefit of the ship ; and that, in this connection, the District Judge committed an error in striking from the deposition of Gibert & Dalléas, the certified copy of the draft in question.

At the close of these depositions wo find a copy of the draft, with the words in the margin : Please have the same insured and charged to the ship. ” And then follows a certificate by the consul that: “ the above is a true copy of the original bill presented for examination by Messrs. Gibert & Dalléas, merchants in Bordeaux, said bill in their possession. ”

The production of this draft was not called for, either in the interrogatories in chief or in the cross-interrogatories, although the evidence of the witnesses related to its contents. At all events the consul had no authority to make an authenticated copy of this document; and, if the defendants wished to avail themselves of its contents, including the marginal note, the proper mode was to offer in evidence the original, and make due proof of its execution.

Gibert & Dalléas, as consignees and acceptors, had an insurable interest in the freight of the Lorena; nor did it lie in the power of the plaintiffs to prevent these parties from effecting the insurance in Bordeaux. The interest of a consignee, who has accepted a draft drawn against the freight, whether insured or not, is a distinct matter from the interest of the captain and ship owner. It is true the latter may afterwards benefit by the operation by assenting to the contract and making themselves liable for the premium ; (4 R. R. 234, 5 R. R. 423); but this is the result of a contract on their part. So the plaintiffs in this cause, by thus making themselves parties to the insurance effected at Bordeaux by their consignees, would have reaped the consequent advantages, at the same time that they would have had to support its burden. But they have been entirely passive in this matter; and the question is then presented whether an insurance, not effected by themselves nor by persons acting as their agents, can be considered as a violation of their warranty of “ no other insurance. ”

The doctrine is that a warranty must be literally complied with, otherwise it is fatal to the contract; but surely this cannot mean that a party, who has agreed not to insure his property for a second time, shall be responsible for the acts of those who, far from acting as his agent, act in a different capacity and for their own individual interests. The plaintiffs did not procure a second insurance ; they had not stipulated that other parties, having distinct insurable interests, should not exercise this right. Consequently, the acts of the latter cannot be charged to the former. To hold the plaintiffs responsible for these acts, would be a departure as well from the letter as from the spirit of their contract, and, therefore, a perversion of the rule that the warranty in such cases must be literally observed.

Judgment affirmed.


text:
    P. F. Nouvet, Syndic, v. Louise A. Vitry, f. w. c.
    In an action by the creditors to annul a simulated sale of their debtor’s property, such creditors enjoy privileges which would be denied to the debtor. v . .
    But in a suit to make out title for their debtor, the rights and privileges of the creditors are precisely , the same as those of the debtor himself.
    APPEAL from the Third District Court of JN ew Orleans, Duvigneaud, J.

    P. SbuU, for plaintiff and appellant.
    C. Dufour, for defendant.
   Voorhies, J.

The defendant filed a peremptory exception to the plaintiff’s action, averring : 1st, that the petition does not disclose a ground of action; and 2dly, that this demand has already been decided in the case of Achille B. Courcelle v. Louise A. Vitry, f. w. c., and that the judgment rendered on that occasion is a bar to the present action.

Por a proper understanding of the pleas, it is necessary to state the facts as they appear from the pleadings and from the evidence introduced on the trial of the exception.

Courcelle and the defendant had been, for the period of nineteen years, living together in concubinage. Upon breaking up this illicit connection, the former instituted against the latter a suit for the purpose of recovering a large amount of real estate and slaves, which, he averred, had been purchased by himself with his own funds, but the title to which had been made in the name of the defendant. He further averred, that he had invested large amounts for improvements placed upon this real estate. Then followed the statement that, in point of fact, he was and had ever been the real owner of this whole property, and that the title executed in the name of the defendant was, in this respect, a mere simulation; but that, if it was decreed that this was an intended donation by himself to his concubine, then the same was a nullity, it being against the policy of the law for a donor thus to divest himself of his whole property.

Vitry joined issue upon these allegations, and, the case being tried, obtained a judgment rejecting the plaintiff’s pretensions.

Subsequently, Courcelle made a surrender of his property to his creditors, and, thereupon, Nouvet was appointed syndic of this insolvent estate. The latter then instituted this suit, which has for its object precisely the same demand set up in the former action.

It has been contended by the plaintiff, during.the argument of this cause, that this is not an action in revocation of a fraudulent contract, but one “ en declaration de simulation.” His counsel argues, and correctly too, that, were this a revocatory action, his client would be defeated, from the fact that the debts of the insolvent are posterior in date to the execution of the sales attacked. He contends, however, that such is not the purport of his petition, and. that the sole object of the present suit is to have the property in question decreed still to belong to the insolvent, notwithstanding the fact that the titles are in the name of the defendant, Vitry.

This action has none of the attributes of one in revocation of fraudulent contracts ; nor is it, properly speaking, one to set aside and annul a simulated deed. The plaintiff does not pretend that the sales made to Louise A. Vitry are simulated and fraudulent; for that would defeat his own pretensions. The charge is, that although the purchases were made in her name, yet Courcelle was in reality the purchaser. The object of the syndic is, not to defeat the purchases, but to make them enure to the benefit of the insolvent estate ; and, to succeed in this object, it is necessary to make out title in the name of Courcelle, who has himself already failed in that attempt.

It is not necessary that we should decide whether such an action might be maintained by Courcelle; for the judgment rendered against him is res judicata as to himself, and to his creditors, whose rights are precisely the same. The case, however, might be different in actions in revocation or “ en declaration de simulation," for there the creditors litigate adversely to the debtor and simulated or fraudulent obligee.

In an action to annul a simulated sale, the creditor would enjoy privileges denied to the debtor, — such, for instance, as that of introducing parol evidence; and the former might maintain his action, whilst the policy of the law would deny an action to the latter. C. C. 2236 ; 19 La. 409, Delahoussaye v. Davis.

But in a suit to make out title for the debtor, it is evident that the creditor could not claim the benefit of such a discrimination. C. C. 2255.

It is, therefore, ordered and decreed, that the judgment of the District Court be affirmed, with costs.


author: Land, J.

text:
    Thomas R. Hill v. William A. Hanney & Co. et al.
    The transfer of a draft, m order to be binding as regards third persons, must be made by delivery of such draft to the transfcrree, and notice, to the debtor, of the transfer.
    The sale of personal property is void as to creditors, unless possession is given before they acquire rights on the same ; and if personal property be transferred by contract, but not delivered, it is liable in the hands of the obligor, to seizure and attachment in behalf of his creditors. This rule of law extends to the sale of a promissory note or bill of exchange.
    Where the holder of a draft, having placed it in the hands of an agent for collection, transferred the receipt of such agent to a third person, and after such third person had notified the agent of the transfer, but before the delivery of the draft, or notice of transfer had been given to the debtor, the creditors of the holder brought a suit by attachment against the agents, and by process of garnishment caused the draft to be seized*~-j2eZfZ .* That the attachment must be maintained and the rights of the creditors, to an anlount sufficient to satisfy their claim against the transferror, recognized as against the transferree.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Bonford, Singleton & Clack, for plaintiff.

      O. L. Bright, for Hanney <& Co-appellants.

      Emerson <& Huntington, for C. Yale, Jr. & Co.

   Land, J.

The purpose of this suit is to determine the adverse claims of the plaintiff and the defendants, W. A. Hanney & Co., to the proceeds of a draft in the hands of W. L. Allen & Co.

The facts of the case are these : H. H. Beck a resident of the State of Texas, and a member of the firm of J. Cherry & Co. domiciled out of this State, placed in the hands of W. L. Allen & Co. for collection a draft for the sum of eight hundred and fifty dollars, payable to the order of Beck, and drawn by Andrew’s & Co. on H. M. Summers & Co. of this city. After leaving the draft with Allen & Co. for collection, Beck returned to the State of Texas, and there transferred to the plaintiff, Thomas R. Hill, the receipt for the draft, which he had taken from his agents in this city. Thereupon the plaintiff gave notice to Allen & Co. by letter, of the transfer of the draft, and that he-was the owner and holder of the same. After the date of the transfer to the plaintiff, the defendants W. A. Hanney & Co. instituted suit by attachment against J. Cherry & Co. and by process of garnishment caused the draft to be seized or attached in the hands of W. L. Allen & Co. Since the commencement of the attachment suit, the draft has been collected by the garnishees, and the question .-to be determined upon the foregoing statement of facts, is whether the plaintiff is entitled to the proceeds by virtue of the transfer above mentioned, or whether the defendants are entitled to the same, or an amount thereof sufficient to satisfy, their debt against J. Cherry & Co. of. which firm Beck the payee of the draft is a member.

It is to be noted that W. L. Allen & Co. were the agents of Beck for the collection of the draft, and that their possession was Beck’s possession, and that the draft was attached in the hands of the garnishees, before its delivery to the plaintiff the transferree, and before any notice of the transfer had been given to Andrews & Co. the debtors of the draft. The want of delivery to the transferree, and the want of notice of transfer to the debtors of the draft, are fatal to the plaintiff’s pretentions. In the transfer of debts, rights or claims to a third person, the delivery takes place between the transferror and the transferree by the giving of the title, that is by delivering to him the evidence of the debt. But as regards third persons the delivery of the title is insufficient to invest the transferree with possession, and thereby perfect his right to the debt. The transferree is only possessed, as it regards third persons, after notice has been given to the debtor of the transfer having taken place. C. C. Arts. 2612, 2613, 2457.

The law declares that the sale of personal property is void as to creditors, unless possession is given before they acquire rights on the same, and expressly declares, that if personal property be transferred -by contract, but not delivered, it is liable, in the hands of the obligor, to seizure and attachment in behalf of his creditors. C. C. Arts. 1917, 2243. This rule of law governing the sale of personal effects has been held to extend to the sale of a promissory note not transferred by endorsement and delivery in the usual mercantile mode, but by a collateral agreement, as was done in this case. Sec Lassiter v. Russy, 14 An. 699. No distinction can be made between the sale of a promissory note and a bill of exchange, and as the draft in question was attached before its delivery to the plaintiff and notice to the debtor, the attachment of W. A. Hanney & Co. must be maintained, and their right to an amount of the proceeds, sufficient to satisfy their debt against J. Cherry & Co., recognized as against the plaintiff. It does not appear from the record before us, that W. A. Hanney & Co. have as yet obtained judgment against J. Cherry & Co., and we can only order that the proceeds of the draft remain in the hands of W. L. Allen & Co., garnishees, subject to the decree that may be rendered in said suit.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed ; and it is now ordered, adjudged and decreed, that W. L. Allen & Co., garnishees in the suit of W. A. Hanney & Co. v. J. Cherry & Co., retain the proceeds of the draft attached, subject to the decree that may be rendered in said suit. It is further decreed, that the plaintiff and appellee pay the costs of this appeal.


author: Merrick, C. J.

text:
    Edward M. Quirk v. John Haskins & Co.
    A party to a suit, interrogated on facts and articles, may state, iu addition to such matters as arc intended to bo elicited by the interrogatories, an}7 other matters, by way of defence, provided they are closely allied to those facts sought to be drawn from the party by the interrogatories.
    An employer is the sole judge of the competency of those whom lie chooses to employ ; and so long as the employee is on trial, the omployer has the right to determine for himself whether he possesses the proper qualifications and habits for his business.
    APPEAL from the Second District Court of New Orleans, J.

      J. Q. Bradford and Fouto & Clinch, for plaintiff and appellant.

      Hays & Adams, for defendants.
   Merrick, C. J.

This suit is to recover a salary of $1000 per annum, alleged to be due the plaintiff, who, having been engaged by the defendants as a shipping clerk at their cotton press, was discharged before the expiration of the second month.

In order to prove the contract, the plaintiff propounded interrogatories to the defendant, G. W. Parker.

The answers to the interrogatories, and much testimony on the competency of the plaintiff to perform the duties of shipping clerk, make the present case, which has been decided by the lower court in favor of the defendants.

The interrogatories propounded are the following, viz :

“Arc you not a member of the firm of John Haskins & Co.? Did you not engage the plaintiff, E. M. Quirk, to serve you in the capacity set forth in the original petition, at a salary of one thousand dollars per annum ? Under said contract, at what time did said plaintiff enter into the employ of said defendants ? Was it not on or about the 1st of October, 1858, or thereabouts ? Was not the agreement between you, that he should stay one month on probation ? How long did he remain until discharged by you ? Was it not until December 3,1858 ? ”

To these questions Parker answered :

“ I am a member of the firm of John Haskins & Co., defendants herein. As a member of said firm, I engaged the plaintiff, E. M. Quirk, to serve as a shipping clerk in the Factor’s cotton press. The understanding and agreement with the said Quirk was, that if he, upon trial, gave satisfaction, he was to be engaged for one year, or until the end of our business year, say until the 1st of September next thereafter, at a salary of one thousand dollars per year.”
“ Under said contract and agreement, the plaintiff entered into the employment of defendants, on or about the 1st day of October, 1858.”
“ It was agreed that he, plaintiff, should stay one month on probation, and before the termination of the month of his probation, he was found to be utterly disqualified for the position for which he was employed, and was so informed repeatedly by affiant. Plaintiff requested to be allowed to remain longer, that he might try and become qualified for the position, and agreed that if he did not qualify himself, he would leave whenever desired to do so. At his own solicitation, plaintiff continued with defendants, but was very soon found utterly incompetent to attend to the duties of shipping clerk, and another person was employed to take liis place. Plaintiff continued with defendants after his place had been supplied, until about the 1st of December, 1858, when he was informed that he was not able to attend to tlieir business, that they had no further use for his services, and that he would be settled with by calling on their clerk, which he did, and was settled with.”

We see no objection to the answers to the interrogatories. Those matters stated by way of defence are closely allied t'o the matters sought to be drawn from the defendant by the interrogatories.

An attempt has been made to invalidate the answers, by showing, by witnesses, that the plaintiff was competent as a clerk.

The view, however, which we take of the case, renders it unnecessary to consider this evidence; for the defendant was not under an obligation to employ the plaintiff because other people deemed him competent. Parker and his partners were the sole judges of the competency of those whom they chose to employ; aDd so long as the plaintiff was on trial, the defendants had the right to determine for themselves whether he possessed the proper qualifications and habits for their business.

Tho answers to the interrogatories show that tile plaintiff never was absolutely engaged for the year ; and as there is no adverse proof in regal’d to the contract, the case is with the defendants.

Judgment affirmed.


author: Buchanan, J.

text:
    A. & F. Remy v. Municipality No. Two, City of New Orleans.
    The city of New Orleans lias by law the administration of the batture, and had, until the passage of tho Act of 1853, the exclusive right of determining when atid to' what extent the riparian proprietors might occupy the batture or alluvion, within the limits of tho corporation.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Durant & Hornor and G. LeGardcur, for plaintiff and appellant.

      J. J. Michel, for defendant.
   Buchanan, J.

Plaintiffs having recovered of defendant, by judgment of this court rendered in June, 1857, reported in 11th An. 148, a portion of ground on the batture in front of the city, instituted in March, 1858, the present suit, for interest of the estimated value of said portion of land-from 1820 to 1856, as fruits, on the ground that the city was a possessor in bad faith of this land during all that time. The evidence shows, that during nearly all the time mentioned, the land in question was a part of the public landing or bank of the river not enclosed nor appropriated to any private use. It is recognized by many decisions, that the city has by law the administration of the batture, and (until the Act of 1853) the exclusive right of determining when and to what extent the riparian proprietor might occupy the batture or alluvion, within the limits of the corporation. The position, that the occupation of the batture by the city was a possession in bad faith, is untenable. The very judgment of this court in 11th Annual, under which plaintiffs claim, reserves the right of the city to the administration of the batture.

Judgment affirmed, with costs.


text:
    E. Boulin v. W. J. Maynard.
    In «a redhibitory action, where the judgment of the District Court awarded the plaintiff the price ho had paid for the thing affected with the redhibitory vice, but did not rescind the sale’, and the defendant appealed — Held: That the plaintiff, the appellee, could not throw upon the defendant the costs of the appeal by a prayer to amend the judgment by rescinding the sale, even if the judgment be modified in no other respect.
    The fact, that the purchaser of a slave allowed him to hire his own time, and even permitted him to sleep away from home, is not a forfeiture of the action of redhibition on account of the vice of running away. The question is, was the slave at the time of the sale in the habit of running away, and not, has he acquired the habit since?
    Where the vendor of a slavo was aware at the time of the sale, that he was in the habit of running away, and did not communicate the same to the vendee — Held: That the latter was not bound for the use of more than ordinary care in guarding the slave against running away, and that he was entitled to reimbursement for the expenses incurred m recapturing the slave.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      L. Castora, for plaintiff.

      J. W. Dirrhammer, for defendant and appellant.
   Merrick, C. J.

This is an action of redhibition to rescind the sale of a slave on account of the vice of running away.

The defendant bought the slave without warranty, and sold him with full warranty to the plaintiff.

The habit of running away is sufficiently proved; but it is shown, that at the time the slave absconded, he was permitted to hire his own time, and was not required even to sleep at the residence or place of business of his- owner.

The plaintiff did not tender the slave to the vendor; but, in a conversation between the plaintiff and defendant, the former informed the latter that he wished to' cancel the sale, and be reimbursed the amount he had paid; and the defendant replied that he was ready to pay him when the negro was produced, but he was not willing to do so until then, as the negro might have been drowned or killed. Defendant also in his answer consents to rescind the sale, provided the slave be returned to him.

: The judgment of the lower court awarded the plaintiff the price he had paid and certain expenses, but did not rescind the sale.

Defendant appeals.

In this court, the appellee has prayed the court to amend the judgment by rescinding the sale of the slave. We are of the opinion, that the appellee cannot throw upon the appellant the costs of the appeal, by such prayer for an amendment in favor of his adversary, even if the judgment be modified in no other respect. He might have rendered this justice to the appellant by a written abandonment of the slave, or release in favor of the defendant, previous to the appeal.

■ We are not prepared to say that the mere hiring of his time to the slave, or even permitting him to sleep away from the residence of his owner in this city, is a forfeiture of the action of redhibition. The question is, was the slave at the time of the sale in the habit of running away, and not, has he acquired the habit since ?

The slave was present at the trial, and defendant’s objections to the payment of the price are removed.

The defendant, as already said, was aware that the slave was in the habit of running away. This knowledge was not communicated to the plaintiff. The defendant, therefore, has no reason to complain that the plaintiff did not use more than ordinary care in guarding against facilities of running away, and we see no sufficient reason to release him from the expenses incurred in the recapturing of the slave.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; and we do now order, adjudge and decree, that said sale of said negro John be rescinded, and said slave be restored to the defendant ; and it is further ordered, adjudged and decreed, that the plaintiff do recover and have judgment against the defendant for the price paid for said slave, viz, said sum of seven hundred dollars, and legal interest thereon from the judicial demand, and these further sums, viz : $6 50 costs of the act of sale, $6 for advertising said slave as a runaway, and $25 paid for lodging him in jail. And it is further ordered, that the. defendant pay the costs of the lower court, and the plaintiff the costs of the appeal.


text:
    John Wheeler v. Joseph Maillot & Co.
    No appeal lies from an order of tbe District Judge granting a new trial before his judgment has be - come final, such an order is within the discretion of the District Judge, is interlocutory, and does not work an irreparable injury.
    APPEAL from Sixth District Court of New Orleans, Howell, J.

      Hyams, Labatt & Jonas for plaintiff.

      Race & Foster, for defendants and appellants.
   Land, J.

On the trial of this case in the lower court, the Judge rendered a. judgment of non-suit on the motion of plaintiff’s counsel. Within three judicial days thereafter, and before the judgment of non-suit had been signed by the Judge, the plaintiff’s counsel took a rule on the defendants to show cause why a new trial should not be granted. The rule was made absolute, and the defendants have appealed from the order of the Judge, granting the new trial.

The plaintiff’s counsel have filed a motion to dismiss the appeal on the grounds that no appeal lies from an order granting a new trial — -that such an order is within the discretion of the District Judge, is interlocutory, and does not work an irreparable injury. These grounds are well taken, and are sufficient to dismiss the appeal. In the cases of Gilbert et al. v. Nephler & Boyle, 15 L. 59, and of Noland & Morancy v. Bemiss, 14 An. 49, relied on by appellant’s counsel the-judgment had become final, and the lower court was without jurisdiction, at the time that the respective orders were granted therein. These cases therefore cannot be invoked as authority in the case now before us for the purpose of maintaining the appeal. Eor the reason stated, it is ordered, adjudged and decreed, that the appeal taken in this case be dismissed at the costs of appellant, and that this cause be remanded to the lower court for further -proceedings according to law.


text:
    State, on relation of Rutherford, v. Third Justice of the Peace of New Orleans.
    The Act of 1855, “ relative to landlords and tenants,” gives jurisdiction of the actions therein speefied to Justices of the Peace, whenever the monthly rent of the premises leased does not exceed ono hundred dollars.
    Where two parties entered into an agreement by which one of them leased to the other a certain lot of ground, upon which were two houses, atarentofone hundred and twenty-five dollars per month, and, upon the death of the lessor, the two houses becoming the property of two distinct persons, ono of them sought to eject the lessee by suit beforo a Justice of the Peace — Reid: That such a lease could not be divided for tho purpose of giving jurisdiction to the Justice’s Court.
    APPEAL from the Third District Oourt of New Orleans, Duvigneaud, J.

      Mott & Fraser, for plaintiff and appellant.

      Martin Blache, for defendant.
   Buchanan, J.

Edmund Freret leased to Oliver B. Chapin a lot of ground iu Baronne Street, in this city, on which were two houses, for one year, commencing the 1st of October, 1858, at the rent of fifteen hundred dollars, payable in monthly installments of one hundred and twenty-five dollars each. And it was stipulated in the act of lease, that “ in case the leased property should not be sold, at the expiration of the term of the lease, the lessee should have the privilege of holding the said premises for a further term of two years, on the same conditions.” Chapin transferred his rights under this lease to one Maynard in February, 1859. Relator is in the rights of Maynard.

The lessor having died, a partition of the leased proper was made among his heirs by licitation; and the same was adjudicated in two parcels, viz : one of the houses to George A. Freret for the sum of $6,700, and the other to J. Poindexter for $8,100. It was expressed in the proces-verbal of adjudication, that the purchasers should divide the rent accruing under the aforementioned lease between themselves pro rata.

George A. Freret, one of these purchasers, instituted proceedings in ejectment of the tenant from the house which he (Freret) had purchased, before a Justice of the Peace, under the Act of 1855, No. 284, on the 3d October, 1859. The tenant pleaded as an exception to said action, that the Justice of the Peace was without jurisdiction ratione materia.

The exception ivas overruled, and the defendant thereupon pleaded the general issue.

The Justice gave judgment, decreeing that defendant deliver possession of the premises to plaintiff.

The tenant has sued out a writ of prohibition from the Third District Oourt of New Orleans, to prevent the execution of the judgment of the Justice of the Peace.

The Act of 1855, No. 284, relative to landlords-and tenants,” gives jurisdiction of the actions therein specified to Justices of the Peace, whenever the monthly rent of the promises leased does not exceed one hundred dollars.

It is contended on the part of the appellee, that by the division of the rent under the licitation, the appellee, George A. Freret, only receives fifty-six dollars and sixty cents a month rent from appellant, being the proportion which the price of adjudication to appellee bears to the whole amount of sale of the premises leased. But we think that the lease cannot thus bo divided for the purpose of giving jurisdiction of the action of ejectment to the Justice of the Peace.

The amount of monthly rent paid is found in the contract of lease, upon which that action is based. That amount is one hundred and twenty-five dollars a month. The premises leased comprise, it is true, two distinct tenements adjoining each other, and which have become the ^property of two distinct persons. But the right of occupation of the tenant extends to both these tenements alike, and cannot be divided without his consent. We must suppose that he had some reason for leasing both these tenements together ': it is possible that one of them would have been valueless to him without the other.

It appears to us that the Justice’s Court was without jurisdiction of the subject-matter.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed ; and that the cause be remanded with directions to the court below to grant the prohibition, as prayed for, at costs of George A. Freret in both courts.


author: Merrick, O. J. Duffel, J.

text:
    Succession of H. A. Renneberg.
    ' Where the principal matter in dispute is the title to property shown by affidavit to be worth over $300, an appeal will lie to the Supreme Court, although the money demand and judgment in the case be for a less sum than $300.
    The validity of a title claimed adversoly to a succession administered by a curator cannot be inquired into in the form of a rule taken by the curator against such adverse claimant, to show cause why a sale of the property provoked by tho curator should not be confirmed ; a direct action is necessary.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      G. P. McPheeters, for plaintiff in rule.
    C. E. Schmidt, for I-Iandlin, defendant and appellant.

      G. L. Bright, for Gernon, appellant.

      W. H. Hunt, ior Sheriff.
   On motion to dismiss the appeal:

Merrick, O. J.

There is a motion in this case to dismiss the appeal. The case was commenced by a rule taken on the Sheriff to. pay over to the curator $200, the proceeds of a lot sold by the Sheriff to Michael Gernon. Gernon, in answer to the rule, demands the return of the money, on the ground that the lot had been previously sold to Handlin. Handlin also excepts to the rule, and for answer sets up title in himself, alleging that he had bought the lot at a Constable’s sale. Handlin annexes an affidavit stating the property to be over three hundred dollars in value, and both Gernon and Handlin appeal from a judgment making the rule absolute against them.

The judgment on the rule has the effect of the thing adjudged against Handlin's right to the property. And it is shown by the affidavit, (which is admissible in this court,) that the property is worth over $300. The appeal of Handlin is, therefore, well taken.

But if Handlin recovers, he takes from Gernon the same property, worth the same sum. The principal matter in dispute, viz, the title to the property, is, therefore, within the jurisdiction of this court, and it would seem that the appeal should bring up. the whole case with all its issues and incidents, otherwise the defendant, Gernon, may be condemned to pay the price and lose the property, or be driven to an action in warranty. 13 An. 592.

At all events, as the principal matter in dispute is before us, it will be time to consider what decree shall be rendered when the case shall have been argued on its merits.

It is ordered, that the rule be discharged.

Land, J., absent.

On the merits :

Duffel, J.

The curator of the succession of II. A. Renneberg took, on the 16th of February, 1860, a rule on the Sheriff of the parish of Orleans, to show cause why he should not pay to the curator the price of a lot of ground, $200, sold by him as depending on the said succession.

The rule was enlarged on the 24th of February, by making W. II. Handlin and Michael Gernon parties to the same.

Gernon answered, stating that he had, at the succession sale, become the purchaser of the property in question, but that Handlin had a prior title to the same property, and therefore, he asks that the $200 paid by him to the Sheriff be returned to him, unless his title be declared to be superior to the one claimed by Handlin.

Handlin also appeared, and excepted, on the grounds: 1st, that the allegations of the rule are too vague and indefinite ; 2d, that he cannot be proceeded against in this summary way; and he adds, that should the foregoing exceptions be overruled, then, reserving the same, he claims title to the property by a prior Constable’s sale, made to pay the taxes due by S'. A. Renneberg; he re-asserts his exceptions, by averring “ that the validity of his said title cannot be inquired into in the present form of proceedings, and that the plaintiff in rule must resort to a direct action.” '

It appears from the minutes, that the rule taken on the 24th of February against Handlin and Gernon came up for trial on the 29th of the same month, and was taken under advisement; and that, on the 9th of March following, the rule taken on the 16th of February against the Sheriff was made absolute, and the Sheriff ordered to pay over to the curator the $200, at the costs of the defendants.

Handlin and Gernon appealed.

It is in evidence for the purposes of this appeal, that the lot of ground in controversy is worth more than $300.

The transcript before us is properly certified, yet it does not appear that any evidence was introduced by either party, and we are, consequently, at a loss to comprehend how it can be asserted, without any evidence to that effect, that the appellants having joined on the trial of the rule on its merits, without requiring the prior action of the court on the exceptions, that they are precluded from now urging the same. Non constat that the rule taken on the 24th of February was tried and submitted on its merits; the reverse would be naturally inferred, as the same was, in fact, submitted on the pleadings.

In our opinion, the District Judge should not only have made the rule of the 16th of February absolute as to the Sheriff, (the other parties having no interest in the distribution of that fund,) but should also have sustained the exceptions of Handlin, and dismissed Gernon.

It is, therefore, ordered, adjudged and decreed, that the rule made by the lower court on the 24th February, 1860, enlarging the prior rule of the 16th February, 1860, be discharged as to the appellants, at the costs of the succession of H. A. Renneberg, in both courts; and that the rights of the appellants, if any, remain unaffected by the judgment of the lower court, which, as to them, is hereby reversed.


text:
    Elam Bowman v. McElroy & Bradford.
    The right to intervene by way of third opposition is a privilege granted by law which the court cannot refuse when the right is logally exercised.
    Where a judgment has been rendered, declaring tho sale made by a debtor of his property to be simulated, the record and judgment will be receivod as full and conclusive proof of simulation.
    In an opposition by a third party, to regulate the effect of a seizure in what relates to himself, he is bound to assert all his pretensions at tho same time ; and the judgment of the court in such proceeding, determining tho rights of the creditors growing out of the seizure, cannot afterwards be disturbed on a new claim set up by such third opponent.
    Where one of tho parties to a suit has more moans of knowledge concerning a matter to be proved than the other, the onus is on him.
    APPEAL from the District Court of the Parish of Tensas, Farrar, J.

      Julius Aroni, for opponents and appellants.

      F. H. Farrar, and O. S. Sawyer, for defendant.
   Duffel, J.

On the 18th of December, 1855, James R. Bisland, sold to one

James M. Motlow, fifty'eight slaves, who then constituted the whole property of the vendor; and the said Motlow conveyed those slaves to one Elam Bowman, on the 27th of March, 1856.

The above sales and conveyances were, at the suit of certain mortgage creditors of James R. Bisland, declared, by a judgment of this court, reported in 14 An. p. 587 et seq., to be simulated, null, void and without effect, as to said mortgage creditors, whose claims were recognized in the judgment. This judgment also ordered the seizure and sale of said slaves, and fixed the rank of the creditors. The third opponents, D. S. & T. A. Bisland, pleaded all the above matters and proceedings, made all the parties to the original suit-, as also the Sheriff, defendants herein, and asked to be, contradictorily with them, recognized as mortgage creditors of James R. Bisland on fourteen of the above slaves, and to share in the proceeds of their sale.

The claims of these third opponents are resisted on various grounds, some of which relate to the form of action, and others to the substance, or nature of the debt.

The judgment of the lower court was one of non-suit, and the appellees ask for an absolute judgment against the third opponents.

We think in the first place that one, at least, of the opponents, T. A. Bisland, had a right to intervene as he did, by way of third opposition : it is a privilege granted by law and which cannot be refused when legally exercised. C. P. 395 & 401; Manuel Vidal v. The Ocean Insurance Company, 5 R. 68; Nancy B. Fulton v. Joel C. Fulton, 7 R. 73.

The third opponents do not, and could not, after the final judgment of this court, pretend to disturb the rank assigned to the creditors by that judgment, their ranks, as between them, is finally determined. The cqse is however very different with regard to the other third opponent, D. S. Bisland, for we see that he was a party to the first proceedings; he was therefore bound to assert all his pretentions at the same time, and besides he is excluded, in express terms, by the Article C. P. 395.

We think in the next place, that when there is a solemn judgment, declaring a transfer simulated, that the property thus fictitiously conveyed, remains, to all intents and proposes, the common pledge of the defrauded creditors ; and therefore our courts will not impose on such creditors, the trouble, expense, and delay of a formal action en declaration de simulation, but will when, as in this case, all the parties in interest are brought in court, and when such matters are pleaded, receive, as full and conclusive proof of simulation, the record and judgment decreeing the nullity, or non-existence, of the sale.

It appears that on the 12 th day of March, 1853, James R. Bisland, B. S. Bisland and Thomas A. Bisland, gave to Curry & Person, a special mortgage on certain landed property and slaves in Louisiana to secure the payment of twelve thousand dollars, “ for money advanced and to be advanced, supplies furnished and to be furnished, and acceptances made and to be made,” during the current year or in a reasonable period thereafter. On the same day, the said James R. Bisland gave to the said D. S. & T. A. Bisland, a mortgage on fhis Languedoc plantation, in the State of Mississippi and fifteen slaves, to secure them against any liability under the above mortgage granted as aforesaid to Curry & Person.

On the 4th of January, 1854, the said James R. Bisland sold to the said B. S. Bisland, his Languedoc plantation for ten thousand dollars cash.

A consent judgment was rendered on the 29th of December, 1855, by the Yice Chancery Court of the State of Mississippi, ordering' the said James R. Bisland to pay to the said D. S. & T. A. Bisland, as a full indemnity under the above mortgage acts, $5044 82, with 8 per cent, interest from 27th December, 1855, and costs, and ordering the sale of the fifteen slaves mortgaged as aforesaid to satisfy the judgment.

The third opponents rest their claim on the above judgment. These opponents were, under the pleadings, bound to show, by other evidence than the admissions of James R. Bisland, the reality of their claim ; this requisite would have been enjoined had such a judgment been rendered by one of our State courts, and we see no good reason to give more credence to a foreign judgment. It was within the power of the opponents to adduce proof, by the testimony of Curry S Person and the production of receipts &c., and as they had more means of knowledge, the onus was on them. Union Bank of Louisiana v. Marin, 3 An. 34; Serapurn v. Lacroix, 1 L. 379, 8 L. 197 ; Adams v. His creditors, 14 L. 455 ; Greenleaf on evidence, Vol. 1, §79.

When we add to the above reasons, the facts that it is not stated that the property mortgaged to Curry & Person has been exhausted on their mortgage, that one of the opponents acquired the Languedoc plantation for cash, and that he did not assert his claim when he well knew that other parties were endeavoring to enforce their mortgages on those very slaves, we feel no hesitancy in holding that the third opponents are entitled to no share in the proceeds of the sale of the above mentioned slaves, and our judgment will therefore be in accordance with the prayer of the appellees.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, and that ours be against the third opponents, Douglass S. Bisland and Thomas A. Bisland, rejecting their demand at their costs in both courts.


text:
    William Scarborough v. Joseph Stinson and Maunsel White, Jr.
    A special mortgage, with tho pact de non alienando, granted on a plantation does not preclude the mortgagor from employing an overseer..
    In case of a forced alionation of a plantation, the overseer is not bound to pursue his privilege on the proceeds of the salo in the hands of the Sheriff. No sale can destroy the privilege which the law creates in favor of overseers, as loug as the crop hangs by the roots, or the proceeds, when gathered are not beyond the reach of the overseer.
    In case of a forced alienation of a plantation with the crop in the ground, the overseer has not a privilege on such crop, for his whole year’s salary, but simply for the proportion of the year elapsed at tho date of such sale.
    Article 2720 C. C. accords to the laborer the whole salary contracted for, when he js discharged by his employer without sufficient cause, before the expiration of his time of service ; but this is, as to the unexpired time, by way of penalty or damages. The privilege granted by Article 3184 is for a specific object, in tho words of the Article, for 11 the appointment of salaries of the overseer for the year last past, and so much as is due of the current year.”
    APPEAL from the District Court of the Parish of Plaquemine, Foulhouze, J.
    /. M. Bonner, for plaintiff and appellant.

      G. LeGardeur, for defendants.
   Duffel, J.

This cause presents three points for our solution.

1st. Whether a special mortgage, with the pact de non alienando, granted on a large sugar estate, precludes the mortgagor from employing an overseer, as such a contract might give rise to the exercise of the superior privilege granted by the Code, Article 3184, $ 1.

2nd. Whether, in case of a forced alienation of the plantation the overseer is hound to pursue his privilege on the proceeds of the sale in the hands of the Sheriff.

3rd. Whether, in case of a forced alienation of the plantation with the crop in the ground, the overseer has a privilege on such crop, for his whole year’s salary, or simply for the proportion of the year elapsed at the date of such sale.

We answer the two first points negatively. The employment of overseers on large estates, is a necessary expense on which, in many cases, depends the productiveness of such estate; and no sale can destroy the privilege which the law creates in favor of overseers, as long as the crop hangs hy the roots, or the proceeds, when gathered, are not beyond the reach of the overseer.

The Article 2720, it is true, accords to the laborer the whole salary contracted for, when he is discharged by his employer without sufficient cause, before the expiration of his time of service, but this is, as to the unexpired time, by way of penalty or damages. The privilege granted by the Article 3184,$1, is for a specific object, and in the words of the Article for the appointment of salaries of the overseer, for the year last past and so much as is due of the current year.”

The question therefore which suggests itself is: what was the salary earned by the plaintiff, and secured by privilege on the crop in the ground, when the plantation was forcibly taken from his employer and sold by executory process to J. Y. De Fgaña, the vendor of the defendant, While; Jr.i The District Judge has, by computation of time, fixed the sum at $458 34, and we are satisfied that he has awarded to the plaintiff the whole amount of his privilege.

Judgment affirmed, with costs.


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    Virginia Harper v. Albert Pierce.
    Wlicro the evidence shows that an act of sale was intended as an act of donation, and it is clothed with the formalities requirod by law for the validity of donations into' vivos, effect will be given to it as a donation.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Mott & Fraser, for plaintiff

      T. J. <& A. G. Semmes, for defendant and appellant.
   Land, J.

The plaintiff, the natural tutrix of Sidney Prieur Harper, a minor, instituted this suit for the recovery of a slave, which had been sold to said minor, by notarial act passed on the 19th of June, 1849.

It appears that David Kinney, the vendor of the minor, afterwards, to-wit, on the 9th of May, 1850, sold the same slave to Thos. J. Frisby, by act under private signature, for the price of six hundred dollars; and that in June, 1853, Frisby sold the slave to the defendant for the price of one thousand dollars. That judgment was rendered in favor of the plaintiff for the slave, but on appeal by the defendant to this court, the judgment was reversed and the cause remanded for a new trial, with instructions to the Judge to receive testimony to prove that the price of the sale from David Kinney to the minor, Sidney Prieur Harper, was not in fact paid. See 13 An., p. 341.

The case is again before this court, on the appeal of the defendant from a judgment in favor of the plaintiff for the recovery of the slave. The testimony to prove that no price was paid by the minor in the sale to him, was introduced by the defendant on the second trial of the case in the court below ; but this testimony is a two-edged sword, for whilst it proves that no price was paid, it establishes that the act of sale itself was intended by David Kinney, as an act of donation of the slave to the minor.

The sale, considered as a donation, is clothed with the formalities required by law for the validity of donations inter vivos; it was passed before a Notary Public and two witnesses, and was accepted by the father of the minor. The law declares, that a donation duly accepted is perfect by the mere consent of the parties; and the property of the objects given is transferred to the donee, without the necessity of any other delivery. C. C. Art. 1537.

The plaintiff is entitled to the benefit of the testimony which the defendant offered, showing the real nature of the transfer of the slave to the minor. As the transfer divested David Kinney of title, he had none to convey to Thos. J. Frisby, under whom Albert Pierce, the defendant, claims to be the owner of the slave. Sémère v. Sémère, 12 An. 681.

This view of the case renders it unnecessary to consider the bill of exceptions taken by the defendant to the introduction of testimony by the plaintiff on the second trial of the case in the court below.

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


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    E. D. White v. City of New Orleans.
    Tho City Surveyor is without authority to make a contract for city work, which will bo binding on tho city, without pursuing tho formalities required by law. But, if in tho specification of a proposed contract, submitted to public adjudication by publications in the newspapers, something has boen inadvertently omitted which was absolutely necessary to the useful and proper completion of the work, tho Surveyor’s duty would bo to require tho contractor to perform such uocessary incident of a good job, before delivering a certificate.
    A party should not suffer by an omission from the specifications of a contract, when those specifications were drawn up by the opposite contracting party.-
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      J. J. Lugenbühl, for plaintiff and appellant.

      J. J. Michel, for defendant.
   Buchanan, J.

Plaintiff contracted with the defendant to make brick sidewalks, faced with curbstones and wooden- gutters, in a certain district of the city, for the price of one dollar and fifty cents the running foot.

The following are extracts from the contract:

“ Hewed and dressed curbstones shall line the sidewalks, of North River blue stones, level, dressed on the top. to answer the slope of the sides, from three to six feet long, and 18 to 20 inches deep. They must be well set in good joints, and in a workmanlike manner, and to end with apertures, where desired, for draining lots, by means of gutters passing through the curbstones,” &c.
“ The brick pavements of the sidewalks shall be laid with lake bricks of the best quality, laid in herring bone, on a bed of lake sand, or other sand of equally good quality, &c.”
“ The said party of the second part hereby binds and obligates himself to furnish all the necessary materials for, and completely finish the sidewalks, to the entire satisfaction of the City Surveyor, and in strict accordance with the following specifications.”

The lots being, in many places, lower than the sidewalks, narrow wooden gutters, running across the sidewalk, are used, to drain the lots into tho street.

The specifications of this contract do not, in terms, require the contractor to furnish these draining gutters, although there is,'as above seen, a provision made for apertures in the curbstones, to correspond with the draining gutters. When the work came to be executed, a dispute arose between the contractor and the City Surveyor; the latter refusing to accept and certify the work, unless the wooden draining gutters were furnished by the contractor, as he insisted that they were a part of the contract.

Examined as a witness, the Surveyor testifies that the draining gutters were absolutely necessary, and that it had been the practice of former contractors to make them without being particularly specified; that since this difficulty, he has taken the precaution to have them specified in similar contracts. Mr. Filié also testifies, that he told plaintiff, that if this should be decided to be extra work, he (plaintiff) might reserve his recourse against the city. With this reservation, plaintiff made the draining gutters, as he was.required to do by the Surveyor, to the number of 281; for which he'now claims, by this suit, compensation, at the rate of three dollars per gutter, as extra work.

This claim is resisted, on the ground urged in argument by the City Attorney, that the reservation of the claim was a modification of the contract by the City Surveyor, which he had no light to make, and which is contrary to the Act of 1850, to the City Charter (1856), and to two decisions of this court, Fox v. Sloo and Fox v. New Orleans, 10 An., p. 11, and 12 An., id. 154.

The statutes and decisions quoted sanction the principle, that all contracts for city work must be adjudged at public auction to the lowest bidder, after publications made in the newspapers. That course appears to have been followed in the present instance. It admits of no controversy, that the Surveyor is without legal authority to make a contract, without pursuing those formalities, which would be binding on the city. But, if in the specifications of a proposed contract submitted to public adjudication by publication in the newspapers, something has been inadvertently omitted, which was absolutely necessary to the useful and proper completion of the work, the Surveyor would seem to have done his duty in requiring the contractor to perform such necessary incident of a good job, before delivering a certificate. We do not find that the Surveyor has done anything more in the present instance. He has not undertaken to promise plaintiff any compensation in the name of the city, over and above the contract price of one dollar and a-half the running foot of pavement, for making the draining gutters in question. On the other hand, the plaintiff has executed the work under protest, which left the question of extra compensation open. The words which we have italicised in the extracts from the contract, copied above, show that the Surveyor was the proper person to whom such protest should have been addressed ; for it was upon his certificate that the city treasury was to make ali disbursements under this contract.

The questions to be decided are, then : 1st, was the work in question necessary, and was it extra work ? 2d, should the plaintiff lose by its omission from the specifications, when those specifications were drawn up by the opposite contracting party ?

The first of these questions we answer in the affirmative; the second, in the negative.

The price charged for the draining gutters is proved to be reasonable.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; and that plaintiff recover of defendant eight hundred and forty-three dollars, with legal interest from judicial demand, and costs in both courts.


author: Herrick, O. J.

text:
    Samuel S. Richie et al. v. Joseph H. Bass.
    Where a paper was offered in evidence, purporting to contain a dispatch received at a telegraph office, and no proof was made that it was in the handwriting of any person employed in the telegraph office at the time the dispatch purported to have been received, and no other proof of its authenticity was given — Held: That it was inadmissible as evidenco.
    Where a contract is entered into by one assuming to act as agent of another, without having been authorized to make the contract, such pretended agent is by law responsible personally in the precise terms of the contract.
    APPEAL from the Sixth District Court of New Orleans, Iiowell, J.

      C. Eoselius and W. H. Hunt, for plaintiff.

      J. Magne and B. S. Tappan, for defendant and appellant.
   Herrick, O. J.

This suit is brought against the defendant to recover the sum of §3000, the penalty stipulated in a charter party. The defendant having signed the charter-party as agent, is now sought to be held personally responsible for want of authority in those he represented as principals. In the instrument he calls them James Abercrombie <& others.

The testimony shows, that there was a firm at the time of the contract (September, 1855,) residing at Pensacola, Florida, of the name of Raiford & Abercrombie, composed of James Abercrombie, Sr., James Abercrombie, Jr., John G. Abercrombie. and P. U. Raiford.

Two of these partners testify that they did not authorize the contract, and that they repudiated the same as soon as they were advised of it. It has been made a question by the appellee, whether the plaintiff has sufficiently shown a want of authority by this proof, and it is contended that the other partners ought to have been called as witnesses; for, non constat, he says, that the other partners may not have given the authority. Conceding that the burden of proof is upon the plaintiff to show a want of authority in the agent, with whom he has contracted as such, we think it is sufficiently shown that there was no authority by the testimony of two of the members of the firm, who were testifying with reference to the charter-party, which purported to be executed on their behalf.

It is next contended by the defendant, that he has shown affirmatively, by the proof which he has adduced, authority to 'make the contract.

It seems that, shortly before this contract was entered into, James Abercrombie, Sr., sent from the telegraph office in Columbus, Ga., to the defendant, in Philadelphia, a dispatch composed of more than fifty words. What were the contents of the dispatch was not shown by the operators at Columbus, (although it is made probable it had reference to the chartering of vessels,) and it was proved that files of the office at that period were destroyed. With this introductory proof the defendant offered a paper purporting to contain a dispatch received at the Telegraph Office in Philadelphia, from Columbus, Ga., from Abercrombie, Sr., authorizing a contract, but on less favorable terms to the plaintiffs than the contract entered into by Bass. No proof was made that the paper produced was in the handwriting of any person employed in the, Philadelphia office at the time it purports to have been received, neither is its authenticity established in any other manner.

Plaintiffs excepted to the paper, on the ground that there was no proof of its genuineness or authenticity. The exception was well taken, and the instrument ought to have been excluded. At least, the paper should have been shown to have been in the handwriting of some person employed in the Philadelphia Telegraph Office at that time.

The proof being rejected, the next question raised is, whether the damages stipulated can be recovered of the agent. He contends that he is, if at all, only responsible for actual damages. The actual damages proved amount to a sum as large as the damages claimed as a penalty.

On the other side, it is contended in substance, that this estimate, which the supposed agent had formed on behalf of his pretended principals, as to the damages, will furnish a safe rule as to himself, who is obliged by law to occupy their place.

Our law on the subject is in these words :

“ The mandatary is responsible to those with whom he contracts, only when he has bound himself personally, or when he has exceeded his' authority, without hav ing exhibited his powers." C. C. 2982. We add, much move then is he bound •where he has no powers.

So Article.2979 : “ The attorney cannot go beyond the limits of his procuration ; whatever he does in exceeding his power is null and void with regard to the principal, unless ratified by the latter, and the attorney alone is bound in his individual capacity.”

So also Art. 2593 : “ The adjudication can only be made to a bidder present, or properly represented. The person who bids in the name of another, without sufficient authority to bind him, is considered as having bought on his own account, and is answerable for all the consequences of the adjudication. See also Story on Agency, sec. 264; 6 La. 720.

Under our law, therefore, the pretended agent is, it seems, responsible in the precise terms of the contract. But if the law of Pennsylvania and Florida be different from our own on this subject, still the proof will warrant judgment to the amount of the penalty stipulated. See 2 Parsons on Contracts, 433 et seq.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and it is now ordered, adjudged and decreed, that the plaintiffs do have and recover judgment against the defendant, in the sum of three thousand dollars, with five per cent, interest thereon from the judicial demand, and that the defendant pay the costs of both courts.


author: Yoobhies, J.

text:
    Widow A. Ruhlman, Administratrix, v. Wm. Smith and Wife.
    Evidence is inadmissible to establish payment or compensation oC a debt, unless specially set up as a defence lo tlie action.
    APPEAL from the District Court of the Parish of Jefferson, Burthe, J.

      J. C. David, for plaintiff.

      R. King Cutler and R. Beauvais, Jr., for defendants and
   Yoobhies, J.

The plaintiff, as administratrix of the succession of her son, Andrew Ruhlman deceased, claims of the defendants, husband and wife, the sum of $709 00, for money due the deceased, and the value of certain movables, of which the petition charges the defendants to have illegally taken possession.

The defendants plead the general denial, averring that upon a fair settlement of accounts, they are the creditors of the deceased, and they reserve their right of recourse for the surplus in a separate action.

Mrs. Smith averred, besides, that she was a married woman, not separated from her husband, and that, consequently, she could not be made responsible in the present action.

Judgment was rendered in favor of the plaintiff against Wm. Smith, for the sum of $350, the court dismissing the demand as regards Mrs. Smith.

Wm. Smith appealed; and, in this court, the plaintiff filed an answer, praying for judgment for the whole amount of her demand.

The record contains a bill of exceptions, taken by the plaintiff to a ruling of the District Judge. The defendant offered to prove that a sum of $100 had been placed by him in the hands of the deceased, and that the latter had not accounted for it. The objection to the reception of this evidence, was that compensation or payment, had not been pleaded.

This objection was well taken : this matter is not set up in defence, either as a payment or by way of compensation.

That portion of the evidence being disregarded, the result, however, is the same; for on the facts, as regards the merits of the present controversy, wo think the judgment below is correct.

It is, therefore, ordered and decreed, that the judgment of the District Court, be affirmed with costs.


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    J. W. Carroll et al. v. S. A. Gayarré.
    Ono partner.can interrupt prescription as to all the other partners wlio arc hound in solido, oven after the dissolution of the partnership.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Singleton & Clack, for plaintiffs.

      O. LeOardeur, for defendant and appellant.
   Duffel, J.

. The commercial firm of Buchanan, Carroll é Co., composed of Henry Buchanan, for seven-sixteenths, Joseph W. -Carroll for seven-sixteenths, and Joseph Hoy for two-sixteenths, (the two last named being the plaintiffs herein,j accepted a draft, or bill of exchange, drawn on the 15 th of'March, 1851, by Crutcher <& McRaven, in favor of James Saunders, for $2,991 48, payable at eight months. The plaintiffs were sued on said bill .of exchange, by Saunders, who obtained, on the 6th of May, 1857, judgment in solido against the present plaintiffs, for the amount of said bill, with legal interest from judicial demand.

The plaintiffs having satisfied said judgment, amounting, in principal, interest and costs, to $3,207 40, instituted the present action to recover the seven-sixteenths thereof, say $1,403 23, from the defendant, who has succeeded to the entire estate of her deceased husband, Henry Buchanan, as heir of their only child.

The defence is, that the draft was prescribed when suit was instituted thereon, by James Saunders; and the defendant’s counsel contends in his brief:

1st. That an individual partner cannot, after the dissolution of a commercial partnership, make any acknowledgement binding on the other partners, oven when the object may be to suspend prescription not yet acquired.

2d. That the acknowledgment made by the plaintiffs was conditional, and not binding, as the same was refused.

3d. That the plaintiffs, in the suit instituted against them by Saunders, having, in answer to interrogatories propounded to them, sworn “ that the draft has been extinguished since the maturity thereof,” such answer amounts to a judicial confession which is conclusive herein against them. .

The bill of exchange was, on its face, prescribed, when James Saunders commenced his action against the present plaintiffs.

I. It is now well settled, that any one partner can interrupt prescription as to all the other partners who are bound in solido, even after the dissolution of the partnership. Davis v. Houren et al., 6 Rob. 256 ; Parker et al., Ex’s, v. Moore et al., 2 An. 1017.

II. On the 10th of October, 1856, J. W. Carroll, foi’ Buchanan, Carroll & Co., wrote to A. Glenn, as the agent of James Saunders, “ that in regard to the second acceptance for $2,991 48, (moaning the one above described,) due 15-18 November, 1851,1 beg to say that, if presented before the 18th November, 1856, will be paid by said firm in full.” And on the same day they further wrote : “ In regard to the interest on the acceptances which Dr. Saunders claims to own, we beg leave to say, that as our firm has been ready to pay them at any moment since due, we cannot think of paying interest.”

It is difficult to imagine a more absolute acknowledgment of a debt and promise to pay. The subsequent acts of the plaintiffs, from which a forced condition is sought to be inferred, cannot affect an acknowledgment and promise so plain and unqualified.

III. The plaintiffs, in their answer to the petition of James Saunders, pleaded the prescription of five years; and they, no doubt, had in view such prescription, when they declared on oath that the draft had been extinguished. And, if notwithstanding their plea of prescription and oath, they nevertheless were condemned to pay the debt, wo do not see how the defendant, (who, it is in evidence, has shared the very amount placed by the drawers of the bill of exchange in the hands of the acceptors to meet its payment,) can escape the payment of her just proportion of the debt, without at least averring and proving that the plaintiffs had good grounds of defence which they neglected to urge.

It is, therefore, ordered and decreed, that the judgment of the District Court be affirmed, with costs.


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    D. Glascock v. Charles C. Bridges.
    In an action for damages for a malicious prosecution, where the evidence shows that the defendant acted from motives of private interest and without probable cause to support the prosecution, his action under the advice of counsel will not exempt him from liability.
    APPEAL from the Sixth District Court of New Orleans, Howell. J.

      Hunton & Miller, for plaintiff.

      A. Philips and Bonford, Singleton <& Clack, for defendant and appellant.
   Land, J.

This is an action to recover damages for a malicious prosecution. The plaintiff was in possession and command as master, of the steamboat Bayou Belle, by virtue of a contract made with one of the part-owners who was himself, at the time, in command of the boat. The defendant for the purpose of obtaining possession of the boat, caused the plaintiff to be arrested, on the pretext that he had violated the Act of 1858 relative to the protection of crews and owners of steamboats. It is very evident that the only object of the defendant, was to to obtain possession of the boat, and that he acted without probable cause in the matter of the arrest. Under such circumstances, the advice of counsel, as contended, will not exempt the defendant from liability for damages to the plaintiff, who has been aggrieved by his act.

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