text:
    No. 1605.
    Succession of Jesse W. Wilder.
    Tlie surviving partner of a commercial firm, in bis capacity of liquidating partner, Laying received Confederate treasury notes in payment ol tlie debts due the firm, became personally responsible to tlie heirs of the deceased iiiutner for the amount shown to be due them on a settlement of the partnership.
    from the Second District Court, of Now Orleans. Thomas, J.

      Frank Haynes, Hace, Foster <£• FI. T. Merrick and Buchanan d; Gilmore, for opponents and appellants. T. A. Bartlette, for appellee.
   Wyly, J.

In January, 1862, Jesse W. Wilder died,-and his surviving partner, Henry C. Petty, was appointed by the court liquidator of the partnership business.

In 1866 he filed his account showing that during the years 1862 and 1863 he had collected a large amount in settlement of the claims of the firm, and showing a large balance due the succession, which he asked to be relieved from paying over because he had collected the same in ■Confederate treasury notes.

Harriet A. Jourden, the widow of the deceased, as natural tutrix of her minor children, and George Wilder, the son of the deceased by a former marriage, opposed the homologation of the account and prayed that the liquidator be compelled to pay over to the succession in legal currency of the United States the full amount due.

The liquidator was required by the court to file an amended account, which he did, showing a balance in his hands of $12,939 46 in Confederate notes, which he had collected in payment of the claims of the partnership — one half of which he alleged, belonged to the succession.

The tutrix again opposed the account alleging that the succession cannot be charged with the loss of the Confederate notes ; that they were not a legal tender and should not. have been received by the liquidator; that if he received them, as alleged, he did so at his peril. That she was during the time tutrix of her children, and the liquidator made no settlement with her but detained the Confederate notes in his hands till they had become worthless.

- From a judgment dismissing the opposition and approving and lomologating the account, the tutrix and George Wilder have appealed.

The main question involved in this case is, did the liquidating partner become liable to the estate by collecting its assets in Confederate notes ? Can the succession be charged with the loss of the Confederate notes received by the liquidator in settlement of the claims in his hands for collection?

The liquidator contends that at the time he received the Confederate notes they were used as the only currency; that if he had not received them in payment of the claims they would have been barred by prescription; and that, inasmuch as the Confederate notes had no value, he received nothing; having received nothing, he is liable for nothing.

We do not so understand the law regarding the liability of a liquidator. I-Iis powers over the assets confided to him by the court are not unlimited. Like all fiduciaries he is bound to faithfully perform his duties. lie cannot waste the estate by voluntarily remitting the debts that are due to it. He cannot give up its assets and receive nothing in return. He cannot receive in settlement of the credits in his hands for collection the notes of an illegal organization and charge the succession with the loss incurred thereby. It was his duty to collect the claims due the succession in lawful money; he had no authority to receive therefor Confederate notes.

The succession in our opinion should not be charged with the loss occasioned by the illegal act of the liquidator.

It is therefore ordered that the judgment appealed from be avoided and annulled, and it is now ordered that the opposition herein be maintained so as to place Harriet A. Jourden in her capacity of tutrix of her minor children and George Wilder, one of the heirs of the deceased, as creditors on the account rendered by the liquidator, Henry C. Potty, and filed on twenty-third April, 1867, in the sum of six thousand four hundred and sixty-nine dollars and seventy-three cents, subject to a credit of three hundred and fifty-five dollars and forty-three cents; and, thus amended, that the account be approved and homologated. It is further ordered that H. C. Petty pay the costs of this opposition in both courts.

Rehearing refused.


source: Caselaw Access Project

author: Howe, J.

license: Public Domain

text:
    No. 2046.
    John V. Sevier v. The Succession of James G. Gordon.
    The acknowledgment, written on the bach of a promissory note by the administrator or executor, amounts to an interruption of prescription, which begins to run again from that date.
    The administrator or executor is without the power to renounce or waive prescription after it has been acquired iu iavor of tho estate he represents.
    from tlie Thirteenth Judicial District Court, parish of Ten-sas. Farrar, J.

      Farrar & Beeves and A. FT. & II. N. Ogden, for plaintiff and appellant. Julius Ardni and Thomas P. Clinton, for defendant and appellee.
   Howe, J.

A rehearing was granted in this case upon the motion to dismiss ; and, it appearing by the record that the plaintiff’s attorneys accepted service of the petition of appeal on tho twenty-third April, 1SG3, a fact which escaped our attention in our first examination, the motion to dismiss must he overruled and the cause decided on its merits.

The appeal is taken from a judgment by which these promissory notes, made by James G. Gordon and held by plaintiff, were ranked as acknowledged debts of the succession,' and ordered to be paid in the due course of administration.

The plea of prescription of five years is filed in this court by George W. Sargent, dative testamentary executor, the appellant.

The notes matured as follows, respectively : June 24, 1854, December 15, 1854, and January 4, 1855. In tho early part of the year 1855 they were presented to John Routh, then executor of Gordon, deceased, and were indorsed by him as follows :

“Presented and allowed, and will be paid On tho settlement of the estate. ■ “ JOHN ROUTH,

Executor estate of J. G. Gordon.”

On the thirtieth October, 1863, tho following'indorsement was made on each of the notes:

“ I hereby waive prescription on the witMn notes. Lake St. Joseph, October 30, I860. “JOHN ROUTH,

“Executor estate of J.JG. Gordon.”

On the twenty-sixth June, 1867, tho plaintiff filed his petition in this case, with tho notes and tlicir indorsements, and on the same day the judgment was rendered, from which tho present executor, Sargent, has appealed.

We think it clear that on tho thirtieth October, 1866, prescription had been acquired upon the notes. We aro’mnablo to perceive how the acknowledgment by the former executor in 1855 could have greater effect than a similar act by the maker in his lifetime; and it is unnecessary to consider what woidd have been'the legal result if this acknowledgment had been followed by an application at that time to the judge to have the claims ranked among the acknowledged debts of tlie succession, and the taking of such succeeding steps as are provided by law. C. P. 985, et scq.

The acknowledgments in 1855 amounted to an interruption, and nothing more; and prescription began to run from that date. Succession of Dubreuil, 12 Rob. 507, 511.

It is urged by plaintiff that the dative executor has no right, under the circumstances of this case, to plead prescription; but we do not find, either in precedent or reason, any authority for this proposition. As dative executor it is his duty to defend the succession against the enforcement of claims that have been prescribed, and which are therefore presumed to have been paid. Having this right, the only question remaining in the case is whether the waiver by the former executor, on the thirtieth October, 18G6, was, as to the succession, a valid renunciation of an acquired prescription.

In Lafon’s heirs v. his executors, 3 N. S. 716, it was held that executors cannot, even by a payment, if unauthorized by the court, deprive creditors, legatees and heirs of the protection of an acquired proscription.

In Whittakam v. Swain, 9 Ann. 123, it was held that, inasmuch as the power to renounce prescription could only exist in one haying a capacity to alienate, a tutor could not renounce a prescription liberancli causa acquired by his ward. Following the principles thus settled, and applying them as they would seem to be properly applicable to the facts in the case at bar, we must conclude that the executor, Routh, had no power in I860 to renounce the prescription which had been acquired on these debts, and thus deprive the succession of a vested right.

Upon the face of the record the notes are prescribed, and the judgment appealed from must be reversed.

The appellee having asked that the cause should be remanded in case this conclusion should be reached, it is ordered and adjudged that the judgment of this court heretofore rendered dismissing the appeal be annulled. It is further ordered that the judgment appealed from be avoided and reversed, and the cause remanded to be proceeded with according to law, and that the appellee pay the costs of the appeal.


author: TaliafeRRO, J.

text:
    No. 2143.
    D. R. Carroll & Co. v. B. D. Doughty, Tutor.
    The holder of an obligation signed by tlio tutor cannot recover against the minor, unless lie shows authority in the tutor to make it.
    An obligation signed by the tutor for supplies to carry on the plantation of his ward will not bind the minor, unless it is shown that he is authorized to carry it on for and on acount of the minor, or that the advances made inured to his benefit.
    from the Fifth Judicial District Court, parish of East Fe-liciana. Posey, J.

      MeVea & Hunter, for plaintiffs and appellees. Gross & Hardee and Pace, Poster & P. T. Merrick, for defendant and appellant.
   TaliafeRRO, J.

The defendant is sued in his capacity of tutor on the following obligation:

“ $600.

“ CliNtojt, La.., June 29, 1867,

“ On or before tlio first day of December next, I promise to pay to D.

E. Carroll & Co. or order, six hundred dollars, drawing eight per cent, interest from date till paid, for value received, with two and one-half per cent, commission for advancing, being cash advances for the purpose of supplies to mate a crop the present year. I hereby obligate myself to ship to D. R. Carroll &> Co. my entire crop of cotton I may make this year; in default thereof to pay said D. R. Carroll & Co. two and one-lialf per cent, commission on the amount of any of my cottons otherwise disposed of.

“ 13. D. DOUGHTY, Tutor.”

Judgment was rendered in favor of plaintiff after default taken, there being no defense made. The defendant appealed.

Wo see no evidence whatever to authorize the plaintiff to recover upon the obligation sued on.

It is not shown that the plantation furnished belongs to the minors, nor if it does, that the tutor was authorized to carry it on for and on account of the minors; nor that the supplies advanced inured in any manner to their benefit. No authority is shown in the tutor to execute the obligation, and without it he could not bind the minors. Civil Code articles 340, 34S; 4 An. 258 and 543; 11 An. 667.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed; and it is further ordered that judgment be rendered in the defendant’s favor, the plaintiff and appellee paying costs in both courts.


author: Wyly, J.

text:
    No. 1439.
    J. Randall Terry v. J. Q. A. Fellows and others.
    An action of slander will not Ho for anything said by a witness in answer to questions pro* 21 375 pounded by either party in a judicial investigation.
    A newspaper is not Hablo in damages for libel in publishing the testimony of witnesses given before an investigating committee of the Congress of the -United States. In giving publicity to such evidonce through the nowspapers the privilege of the press is not abused.
    from Fifth District Court of New Orleans. Beaumont, J.

      B. B. Forman, for plaintiff and appellant, Alexander Walker, W. B. Mills and B. M. Bay, for defendants and appellees.
   Wyly, J.

Plaintiff appeals from a judgment dismissing his suit on the peremptory exception that his petition discloses no cause of action. He claims $50,000 for damages sustained by him on account of a slander and libel uttered and published by ithe defendants.

The petition alleges that the defendant, Follows, in giving evidence before a committee of Congress, which was. appointed to investigate the causes of the unhappy disturbance in this city on the thirtieth July, 1866, did falsely and maliciously declare that plaintiff, J. Randall Terry, took part in the late rebellion against the United States, and in March, 1862, when General Loveli was reviewing the rebel forces in this city to show their strength, he did carry the black flag whereon was a skull and cross-bones, which meant no quarter to the enemy in the fight.”

Plaintiff avers that the defendants, W. H. C. King & Co., owners and proprietors of the Now Orleans Times, did knowingly and maliciously publish the false statements of said witness.

He alleges that said declarations are false and slanderous, have damaged his reputation for loyalty, injured him in public esteem, laid him liable to prosecution for treason and perjury (he having taken the oath kown as the test oath), and have deprived him of a lucrative office under the United States, which otherwise he would have obtained.

The statements, alleged to be slanderous, were made by the witness, Fellows, in answer to the interrogatories propounded to him by the committee of Congress.

The peremptory exception upon which the case was tried raises the question, whether a witness can be hold liable in a civil action for declarations made by him in delivering his testimony.

Plaintiff contends that he can bemado liable for the injury occasioned by his false statements under the broad doctrine laid down in article 2294 of the Civil Codo which declares that, “Every act whatever of man, that causes damage to another, obliges him by whose fault it happened to repair it.”

The defendants on the other hand, contend that this comprehensive rule of law does not embrace a case like this, that public policy necessarily excepts witnesses and others in discharge of public duty, from the application of this rule.

The words complained of were uttered by the defendant, Fellows, in response to interrogatories propounded to him as a witness.

He claims immunity from damages, not on account of the subject matter of his testimony, but from the occasion and the capacity in which he delivered it.

As a witness, he was compelled to answer the questions propounded to him by the committee, and, in our opinion, he should not be held responsible in an action for damages.

The administration of justice requires the testimony of witnesses to be unrestrained by liability to vexatious litigation. The words they utter are protected by the occasion, and can not be the foundation of an action for slander.

Witnesses, like jurors, appear in court in obedience to the authority of the law, and therefore may be considered as well as jurors to be acting in the discharge of a public duty, and though convenience requires that they should be liable to a prosecution for perjury committed in the course of their evidence, or for conspiracy in case of a combination of two or more to give false evidence, they are not responsible in a civil action for any. reflections thrown ont in delivering their testimony.” Starkio on Slander, page 242.

The same author, after discussing numerous authorities, arrives at the conclusion that an action of slander docs not lie for anything said or published in the course of a judicial proceeding. Starkie on Slander, 254.

For the reasons assigned we are of opinion .that the petition discloses no cause of action against the defendant, J. Q. A. Fellows.

We arc also of the opinion that the publication of his testimony by the defendants, W. II. C. King & Co., proprietors of the New Orleans Times, gave the plaintiff no legal cause of action against them. The privilege of the press has not been abused. They have simply published without comment the evidence taken ’by an investigating committee of Congress, which we deem to be in every respect lawful.

It is therefore ordered and adjudged that the judgment appealed from be af&rmcd with costs.


author: Taliaferro, J.

text:
    No. 1444.
    Alanson Marsh v. Jedediah Waterman.
    Evidence is not admissible to establish a special defense under the general issuo.
    A simple waiver of protest does not, as a general rule, dispense with demand and notice ; but where a draft is made payable at a particular date, iudorsed 'in blank by a commercial firm, and one of the firm writes on the back of it on the day of maturity, and only three or four hours before the usual time for protesting, “ protest waived,’’’lie'will be bound on the draft without further notice of its dishonor. Carmena v. Mix, 15 La. 165.
    from the Fourth District Court of'New Orleans. Thcard; J.

      Randolph, Singleton & Brown, for plaintiff and appellee. Semines é Mott, for defendant and appellant.
   Taliaferro, J.

The defendant, sued as indorser of a bill of exchange drawn upon F. B. Ernest bjrD. S. Jlcii, filed the pica of Us pendens, which being overruled he answered by a general denial. The plaintiff avers that tlie defendant waived protest of the bill by a written instrument, which is in these words:

“ New Orleans-, February 19,1862.

“ We waive protest on defendants — on D. S. Rea, on T. B. Ernest. (Signed) “ J. WATERMAN & BROTHER,

In liquidation.”

On the trial of the case the defendant was introduced to prove by his own testimony that he was induced to sign the waiver by the declaration of plaintiff that he would, before three - o’clock of that day, procure a similar waiver from the other parties to tho bill, or failing in that, cause the bill to be regularly protested. To the admission of this testimony the plaintiff objected on the following grounds :

First — That it was an attempt to vary, alter and contradict a written agreement by parol.

Second — That it was a special defense, evidence in regard to which could not be introduced under the general issue.;

The objections were sustained, and the testimony excluded, to which ruling of the court the defendant, by his counsel, reserved a bill of exceptions. Judgment was rendered in favor of the plaintiff, and the defendant has appealed.

We think that under the general issue the defendant was clearly precluded from introducing evidence to show that the waiver of protest was made under conditions which the plaintiff failed tc comply with. The general denial of the defendant only put at issue the allegation of the plaintiff, that a waiver of protest was made by the defendant. He could go no further than to traverse the fact whether a waiver of protest was or was not made. See 9 Annual, p. 119, and cases there cited. We think,' therefore, the exception was properly sustained.

It has been settled by the general current of our decisions, that a simple waiver of protest does not dispense with demand and notice. If the waiver in this case is to be considered as a waiver also of demand and notice, that consideration must arise from a state of facts and attendant circumstances surrounding it, which are materially different from those under which waivers are generally made. Ordinarily, they are made at a considerable length of time before the maturity of the bill or note; at all events, in most instances, prior to the day on which they fall due. The words used, it may be said, must have the same meaning whether used on the day of the maturity or previously. Yet, it is not easy to avoid a freer construction of the terms employed in reference to an act, when they are used almost at the time the act itself is to be performed, than when used at a time more remote. It was doubtless under these impressions that this court, in the case of Cammena v. Mix, 15 Louisiana Reports, p. 166, where the indorser of a note wrote upon it the very day it became due. I hereby waive the formality of protest, and hold myself equally bound,” announced its opinion that the indorser was not entitled to any further notice of the dishonor of the note, and rendered judgment accordingly. In the case before us, the words “we waive protest” were written op. the day the note fell due, and within less than four hours of the usual time of day for making protests. Considering the circumstances attending the act, the inference naturally and fairly presents itself that the waiver was made upon agreement personally with the holder of the bill, or an authorized agent who had made a presentment and demand of payment; and that it was made with the knowledge of the indorser that the drawee had failed to pay the bill, and on the condition that no protest should be made. If so, the defendant could not have expected a protest to be made; and consequently, if he acted in good faith, he cannot be presumed to have reserved the right to be served with notice of protest.

. Standing as we view it, on a different state of facts from those connected with the frequent decisions rendered subsequently, we do not regard the case referred to in fifteenth Louisiana Reports as being overruled by the later casos; and we conclude that the one now under consideration being identical with that in fifteenth Louisiana, should be decided in the same manner.

It is therefore ordered, adjudged and deereed that the judgment of ' the District Court be aifirmed, with costs in both courts.


text:
    No. 1607.
    The Cincinnati Insurance Company v. William C. Harrison and George D. Hite.
    A brought suit against Bona promissory noto for $590 before the trial. A filed a supplemental petition, alleging a statement of account between A and B, which he makes a part of the supplemental petition, and alleges that C, a third paity, binds himself as surety of B on the indebtedness, as shown by the statement. The agreement was offered in evidence on the trial by A, and showed an indebtedness of $171, for which G became security. Held — That C was only bound as security for the amount shown to be due by the statement, and A having alleged that the agreement more fully shows the state of the case at the time the supplemental petition was filed, and having offered it in evidence on the trial, he was not entitled to recover more than the agreement showed to be due from B.
    from the Sixth District Court of New Orleans. Duplantier, J.

      llornor & Benedict, for plaintiff and appellee. L. Madison Bay, for defendants and appellants.
   Howe, J.

The original petition in this case, filed February 23, 1866, demanded from the defendant, Harrison, the amount of $500 62, with interest, upon a promissory note, of which he Avas maker.

A supplemental petition, died October 16, 1867, alleged that after the institution of the suit the defendant, Harrison, in consideration of an extension, promised to pay the claim in full, and the defendant Hite took cognizance of this agreement, and bound himself in solido, with Harrison for its faithful performance j that on the fourteenth September, 1866, in consideration of the sum of $19 01 paid by Hite, a further extension of six months was granted, which had expired, “ all of which,” the plaintiff continues, “ will more fully and at large appear by reference to the said contract and agreement, which is hereto annexed as part hereof, and marked A,” and judgment ivas claimed in solido against both defendants for the amount of the note, less the sum of $19 01 paid on account by Hite. -

The defendants excepted to these petitions on the ground that there was no such corporation as the Cincinnati Insurance Company; hut the case having been tried upon the merits, without the court having passed, or having been asked to pass on the . exceptions, they must be considered to have been abandoned.

Upon the trial the plaintiff put in evidence'the note sued on, and the “agreement and contract marked A,” and the court having given judgment in solido against the defendants for $590 62, with interest, etc., as claimed, subject to a credit of $19 01, the defendants appealed.

We have not been favored with any brief or argument by appellants, but an examination of the record constrains us to the conclusion that the judgment must be reduced in amount.

The agreement marked A,” which is made part of the supplemental petition, and is therein stated to more fully show the state of the case at the time the supplemental petition was filed, October 16, 1867, consists in part of a statement by Harrison of his indebtedness to several insurance companies, and among others the following :

“Sixth — To Cincinnati Insurance Company, Cincinnati, as per bill P, $371 55. Interest at six per cent, from twentieth May, 1861, till paid.”

Harrison then agrees to pay this claim and the others in full, at the termination of the extension. Hite then binds himself as surety for the faithful performance of this agreement, and lastly follows the further extension signed by the plaintiff’s attorneys.

It is perfectly clear that Hite was bound as.to this plaintiff only for $371 55, with six per cent, interest from May 20, 1861; and inasmuch as the agreement was pleaded by the plaintiff, produced from its possession, declared to represent the state of affairs between the plaintiff and the defendants, a few days before the trial, and by the plaintiff put in evidence on the trial, we do not think that even as against Harrison the' judgment should bo for any larger sum.

It is' therefore ordered and adjudged that the judgment appealed from be amended by reducing the same to the sum of three hundred and seventy-one and fifty-five one-hundredtlis dollars, with interest at six per cent, per annum from May 20, 1861, till paid; that as thus amended it be affirmed, and that the appellee pay the costs of this appeal.


text:
    No. 2164.
    Citizens’ Bank of Louisiana v. Payne & Gilman. J. T. Michel, Sheriff, Garnishee.
    A garnishee must stand aloof from tho litigating parties, and not lend himself to tho advantage of either party.
    An ex parte order of court directing tho payment of money does not hind a party entitled to the proceeds of the sale of property sold under execution ; nor will it protect the sheriff.
    The sheriff cannot pay out funds in his hands derived from tho sale of property under execution which is subject to conflicting claims on his own authority.
    ■Where it is shown that the sheriff had knowledge of the superior mortgage claims to the funds in his hands arising from tho sale of property under execution, and ho pays over tho funds , to another claimant of inferior grade, he becomes personally and officially liable to the creditor of superior rank for tho amount thus illegally paid.
    from the Second. Judicial District Court, parish of Jefferson. Pardee, J.

      J3. 0. Elliott and A. Pitot, for plaintiff and appellant. A. Gazabat and IF. S. Scott, for defendants and appellees.
   Taliaferro, J.

This is an action brought against the sheriff of the parish of Jefferson, to render him liable to the plaintiff for an alleged misapplication of certain moneys which came into Ms hands as sheriff, and to which tho plaintiff lays claim. Judgment was rendered in the court below in favor of tho sheriff, and the plaintiff appeals.

■ Delachaise, as vendor to Thompson of two lots of ground in the parish of Jefferson, to enforce payment of the price, sued out execu-tory process under bis mortgage, having thopact de non alienando, and caused the property to be seized in, possession of Payne, the vendee of Thompson. Alter the usual proceedings wore taken the two lots were sold for cash, and after paying off the vendor and first mortgagee there remained in the sheriff’s hands $1GG3 79 subject to subsequent mortgages, of which the judicial mortgage in favor of the Citizens’ Bank took precedence, the vendor’s mortgage being extinguished by payment.

The attorney of the bank, who was also attorney for G-ettzinger, a judgment creditor, filed a rule in the District Court on the twentieth of July, 13G7, and an order followed directing the sheriff to show cause why he should not distribute the money remaining in his custody, first to the Citizens’ Bank one thousand dollars, with interest and costs, in right of their judgment against Payne and the resulting general mortgage. Secondly, to Joseph Gettzinger seven hundred and sixty-one dollars and thirty-one cents, with interest and costs to discharge his judgment and judicial mortgage.

On the twenty-ninth of November following this rule, upon the motion of the attorney of the bank, was withdrawn. As it is important to notice the circumstances under which the rule was withdrawn, and iu connection therewith the events which immediately succeeded, it will be proper to recur to such parts of the testimony as throw light upon this branch of the subject. The testimony of the bank’s attorney, who withdrew the rule, was taken under commission. He deposed as follows:

On the trial of a rule taken by the Citizens’ Bank of Louisiana in the suit of Delachaise v. Thompson, on the sheriff, to show cause why he should not pay to said bank the amount oí its judgment against Payne, out of the funds in his hands, I was convinced by the argument of my adversary that the most proper course was to take a fi. fa. on the judgment in favor of the bank, and spize the money in the sheriff’s hands. I then informed the court in presence of Mr. Michel, the sheriff, that 1 would discontinue my rule in the case of Delaeliaise, and that I would immediately take a fi. fa. in the case of the Citizens’ Bank v. Payne & Gilman, and I then called the attention of said sheriff in open court, in the presence of the judge on his bench and the clerk at his desk, to the notice which 1 then gave him. I then took a fi. fa. in the case of the Citizens’ Bank v. Payne & Gilman, and drew a petition with interrogations addressed to Mr. Michel. I discontinued my former-motion, and hauded the petition and interrogations to Mr. Michel at his desk in court, requesting him to accept service thereof in order to save costs. Mr. Michel received the papers, took his pen in hand, and began to write the acceptance of service on the back of the petition, lie had already written a word or two when lie was called out from the corridor opening on the court room. I am not sure I recognized the person. lie left the papers on his desk, telling me, ‘ my lawyer calls me, let me go and see him.’ . He left the room. I waited, and then I went out to look for him. I put the papers in the hands of the coroner. with request to search for him, and at nearly three o’clock P. M., upon being informed that he had left Carrollton long ago, I came back to New Orleans, after having left directions to go and serve him at his domicile.”

It is elsewhere in the record shown by the evidence that immediately after the rule was withdrawn the sheriff was called upon in open court, and soon after called outside by the attorney of Payne, and required to pay over the balance of the funds for Payne. This the witness states was done before the opposite counsel took any steps whatever for the bank. The money was paid over to Payne’s attorney and a receipt taken. It is shown that on the back of the petition referred to by the testimony of the bank’s attorney, the words service accepted this 29-” appear, and it is proved that they are in the handwriting of the sheriff. In answer to the rule taken upon him by the Citizens’ Bank (the rule which was withdrawn), the sheriff says: “Respondent denies any knowledge of John Payne’s interest in the funds remaining in Ms hands from the sale effected in the above entitled suit (Delachaise v. Thompson), and requires strict proof of the same; says that he holds the balance of the funds, in his official capacity, subject to the order of the defendant or to the order of the honorable court.” The sheriff, in his own testimony, states that ho knew of the Citizens’ Bank mortgage by the certificate of mortgage, and he acknowledged that the words “ service accepted this 29-,” written on the petition and interrogations, to be in his handwriting.

The sheriff, we think, was clearly at fault. He knew of the bank’s judicial mortgage and also of that of Gettzinger. He knew that both these creditors were entitled to be paid from the money in his hands, the proceeds of the mortgaged property, before the residue, if any, could go to Payne. He had ignored, in his answer to the rule, the pretensions of Payne to an interest in the funds remaining in his custody, and declared that he held them subject to the order of the defendant, Thompson, or of the court. He was the legal custodian of the funds subject to the claims of creditors having mortgage rights, a mere stake holder, and under the state of facts existing, unauthorized to pay out these funds without an order of court. He is not shielded in making the payment to Payne by the withdrawal of the rule taken upon him by the bank, because he knew that it was no abandonment by the bank of its rights; on the contrary, he knew that the withdrawal was made for the purpose of directly and immediately pursuing their claims in the form of execution and garnishment, and he was in the act of waiving service of the substituted process when he was called off by his lawyer. In answer to a question as a witness, propounded, as it seems, by the attorney of Payne, he said: “ No service whatever was served on me before I paid you; but I heard Mr. Pitot say he was not done with the case.”

We think lie has made himself liable to the plaintiff from the course he has pursued. The business of a garnishee is to stand aloof from the litigatory parties, and to bind himself to the separate interest and advantage of neither. He was entirely without right, under the circumstances of the case, to give the funds in his hands any other destination than that intended by iaw, and to be directed by order of court.

It was held by this court in the caso- of Dellassic o. Cenas and others, 4 N. S. 509, that an ex parte order of court .directing the payment of money, does not bind a party entitled to the proceeds of sale of property sold under execution, nor protect the sheriff. A fortiori the sheriff cannot pay out funds subject to conflicting claims on his own authority.

Numerous authorities are to the same effect in regard to the distribution of the proceeds of mortgaged property. 5 Rob. 272; 7 R. 73 and 393; 7 An. 123; 8 An. 464 j 14 *An. G54-.

We are not satisfied from the evidence in this case, that the money was actually paid over by the sheriff. We think the plaintiff entitled to a reversal of the judgment.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that the plaintiff, the Citizens’ Bank of Louisiana, have and recover from John T. Michel, the garnishee in this case, in his individual capacity and in his official capacity of sheriff, the sum of one thousand dollars, with interest thereon from the nineteenth of January, A. D. 1861, until paid, at the rate of five per cent, per annum, and that the defendant and appellee pay costs in both courts.

Rehearing refused.


text:
    No. 1514.
    James Coulson v. J. Madison Wells, Jacob Haber, called in warranty.
    In a judicial sale of real estate, the petition, judgment, notice of judgment, seizure, and notice to appoint an appraiser, together with the Sheriff’s deed were shown in a suit to annul the sale. Held — That the title was sufficiently made out without showing the fi, fa. and the Sheriff’s return.
    Where community property has been sold and the proceeds applied to the payment of community debts for which it was mortgaged, the minors cannot claim restitution in integrum without showing injury from the sale, and paying or tendering the amount which has inured to their benefit.
    from the Second Judicial District Court, parish of Jefferson. Casábat, J.

      N. Commandeur, for plaintiff and appellant, D. O. Lábatt and Marr & Foutb for defendants and appellees.
   Taliaferro, J.

The plaintiff brings this suit to annul a sheriff’s sale of three lots of ground with buildings' and improvements upon them situated in the town of Carrollton, and which were purchased by the defendant, Wells. Ho avers that the property so sold was community property of the community between himself and wife, who it seems was not living at the time of the sale which he seeks to set aside. He alleges that the property was sold for loss than one-third of its value. He institutes the action in his own right and in right of his minor children, whom he represents as their natural tutor. The defendant, Wells, called in warranty, Jacob Haber, the seizing creditor, and made a general denial of the plaintiff’s allegations. He alleges that he has expended in valuable improvements made by him on the property sued for the sum of $3435, for which sum if he be evicted, ho claims to be reimbursed by the plaintiff in his own right and as natural tutor to his minor children. That he paid $1240, the price at which the property was adjudicated to him, and in the event of eviction, he claims to be reimbursed that amount by the plaintiff Coulson, the seized debtor, and Jacob Haber, the seizing creditor, and these amounts he pleads in reconvention to the demand made against him.

Haber, called in warranty, put in a general denial. He avers that his judgment against Coulson was founded on a debt owing to him by the community between the plaintiff and his deceased wife — denies that Coulson can either in his own right or as natural tutor of his minor children recover the property sued for without reimbursing the community debts, for which it was sold, and for which the proceeds were applied. He denies the right of the defendant Wells to recourse upon him before first exhausting the property of the judgment debtor.

Judgment was rendered for the defendant and the plaintiff has appealed.

We ascertain from the record that the plaintiff’s wife died in March, 1862, that in May following he applied to the proper court to be recognized as natural tutor to his minor children and to have an inventory made.

He was confirmed as natural tutor, and an under tutor was appointed on the fourteenth of May, 1862. No further proceedings regarding the succession were taken until September, 1865, when an inventory was made. During the same month the plaintiff in a petition addressed to the Judge of the Second Judicial District, set forth a large amount of indebtedness of the community that existed between himself and his deceased wife, and prayed for a sale of property to provide means for the payment of the debts. He prayed the convocation of a family meeting to deliberate upon and fix the terms of sale. A meeting of the family was convened and it advised certain specific property to be sold, and presented the terms. We do not find that any further action wag taken in the matter.

The warrantor, in May, 1863, brought suit against the plaintiff in this case and obtained judgment against him on the twenty-ninth day of that month. Under this judgment the property the plaintiff is seeking to recover was sold on tlio twentieth .of August of the following year, 180-1.

Tho only illegality in tho sheriff’s sale alleged by plaintiff is that tho property was sold for less than ■ one third of its value. The evidence seems to be that the property was appraised to one thousand dollars, and that it sold for twelve hundred dollars. Tho proceedings in the judicial sale appear to have beep .regularly conducted. Tho execution and sheriff’s return arc not shown among the evidence. Schaffer, the then sheriff of the parish of Jeffe.rson, sworn as a witness, testified that tho execution was not to bo found after diligent search for it in his office. Tho petition, judgment, notices of judgment, seizure, and notice to appoint an appraiser, together with the sheriff’s deed, are all shown. We consider the title to be sufficiently made out. 17 La. 40.

This judicial sale wo do not feel authorized to regard as a mere nullity. The original debt for which the judgment was rendered, it is clearly shown, was a community .debt, and that the proceeds were applied to the payment of that debt and another community debt bearing mortgage on tho property sold. This application therefore inured to the benefit of 1-lie minors, and they "ought not to claim restitution in integrum without showing injury from the sale and repaying or tendering the amount which has in;ircd to their benefit. 3 La. 544; 9 La. 305 ; 13 An. 213; 8 L. 177; ibidem, page 440.

The case was dismissed in the lower court as of non-suit, and we think the ruling correct.

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


author: Lukeling, C. J.

text:
    No. 1619.
    John Glenn v. Thomas Ferguson.
    To onable a party to recover damages for a broach of contract of sale, ho must show that a sale was actually made.
    A. lease for hire of a pair of horses and buggy, at a stipulated price per day, is not a sale.
    from the Fifth District Court of tho city of New Orleans. héavmont, J.

      F. G. Chamberlain, for-plaintiff and appellee, Breaux & Fenner, for defendant and appellant.
   Lukeling, C. J.

The plaintiff sued tho defendant for $1572, ono thousand thereof being for damages resulting from a breach of his contract, and five hundred and seventy-two dollars being the amount alleged to have been paid by Mm to tho defendant on account of the purchase. Ho alleges that Thomas ForguSon sold him a carriage and horses for the price of $1800, payable in installments of not less than eight dollars per day; and that he was deprived of the property unlawfully by Ferguson forcibly faking and.keeping possession of the same.

Tlie answer contains a general denial and tiic further allegation that the carriage and horses were hired to plaintiff on the terms and conditions set forth in a written agreement annexed.

There was judgment in favor of tlio plaintiff for $1572, with interest and costs.

The plaintiff denied, under oath, his signature to the agreement annexed to tlie answer. After a careful comparison of the signature to the original contract with the acknowledged signatures of Glonn, which are in the record, wo are satisfied it is genuine; and are supported in this conclusion by other evidence in the record.

Glenn has failed to prove a sale of the carriage and horses. It is true, several witnesses testify to having heard Ferguson say that he liad sold the carriage and horses to Glenn ; but these declarations are more than rebutted by the facts that the property alleged to have been bought by Glenn remained in the possession of Ferguson, and that when they disagreed Glenn went off, leaving the carriage and horses in Ferguson’s possession. He made no effort to get possession of the property. Another significant fact is that in his account Glenn charges Ferguson fourteen dollars paid by him for repairs of the carriage and harness, after the time when he alleges ho had bought them. Why should Ferguson pay for repairs made on Glenn’s carriage and harness ? Aside from this, the evidence preponderates in favor of the defendant. Glenn alleges there was a written act of sale, but ho failed to produce it, or to account for its non-production. Ferguson swears that the only agreement between the plaintiff and himself is evidenced by the document annexed to his answer. The statements of Ferguson are corroborated by the hostler who was present when an agreement l'or hire was made between the plaintiff and defendant.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and that there be judgment of non-suit against the plaintiff. It is further ordered that he pay the costs of both courts.

Rehearing refused.


text:
    No. 1634.
    Widow Anna Piper v. The Succession of James A. Pickens.
    Wliero the appellant foils to appear and prosecute the appeal, and the rocord discloses no grounds of appeal, damages will be awarded the appellee as for frivolous appeal.
    from the Second Judicial District Court, parish of Jefferson. Dugué, J.

      W. S. Scott for plaintiff and appellee, Fellows & Mills, for defendant and appellant.
   Taliaferro, J.

This is an appeal from an order of seizure and sale granted on the petition of the plaintiff, and founded upon a promissory note for the sum of $1300, executed by James A. Pickens, since deceased, in favor of plaintiff, that being an unpaid portion of the price of certain real estate in tlie parish of Jefferson, sold by the plaintiff in July, 1806, to the decedent. The payment of the note is secured by mortgage, imparting confession of judgment.

This case was submitted without oral argument by the counsel on both sides. We have no brief or written argument on the part of the defendant. On the part of the plaintiff it is alleged that the appeal was taken merely for delay, and we are asked to award five hundred dollars as damages for a frivolous appeal. The proceeding via executiva seems to be regular, and no reasons-or grounds are stated for taking the appeal.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed. It is further ordered that the plaintiff recover from the defendant the sum of one hundred dollars as damages lor a frivolous appeal. The defendant and appellant paying costs in both courts.


text:
    No. 1632.
    Henry Heuchert v. Jacques Barrere.
    A lumber dealer cannot recover from the proprietor, who is having a building erected undor contract, the price of lumber which he has furnished to the builder, unless he shows that the proprietor is indebted to the builder.
    .ZX PPEAL from the Second Judicial District Court, parish of Jefferson. Dugné, J.

      V. II. Ivy and N. Commandeur, for plaintiff and ap-pellee, C. Dufou-r and J. Duvigneaud,-for defendant and appellant.
   Taliaferro, J.

This is an action brought by a furnisher of building material against the proprietor to compel him to pay the value of lumber and other articles furnished the architect to erect a building. The plaintiff had judgment in his favor, and the defendant has appealed.

Barrére, the defendant and proprietor, entered into a contract with Maurel, the undertaker, to build a stable of certain specified dimensions, and the contract was entered into’before a notary and duly recorded. The plaintiff furnished under contract with Maurel, material to the value of $853 92, to he used in the construction of the building. Barrére was to pay tbe undertaker $1750 for tbe work, and did pay him half the amount in advance, the other half to he paid when he finished the job. Maurel violated the contract by commencing to construct a much larger building than the one intended by the contract. He discontinued the work before completing it, and the plaintiff put him in delay by a written notice to comply with his agreement. Maurel in entering into the contract gave sureties for the performance of his part of it. It does not seem that the defendant ever took any further measures to recover damages from Maurel. The latter gave the plaintiff an 'Order on the defendant for $600, which ho refused to pay, and on several occasions lie declared tliat lie owed $-, which he would pay when the work was completed according to contract.

The furnisher of material in this instance contracted with the builder or undertaker. The undertaker violated his contract with the owner. He had received one-half the price of the -work before he commenced it. We cannot from the evidence in the case conclude that the owner owes the builder anything, and therefore that the plaintiff has no recourse upon the owner to enforce against him the payment of the builder’s debt to the plaintiff.

It is therefore ordered, adjudged and decreed that the judgment of the District Court bo annulled, avoided and reversed. It is further ordered that this case be dismissed as of non-suit, the plaintiff and appellee paying costs in both courts.


text:
    No. 172.
    D. B. Harris v. Cuddy, Brown & Co.
    A settlement made by tlie agent before the revocation of the power of attorney is binding on the i»rincipal.
    Where an agent holds a power of attorney by public act, the presumption is that the parties ' with whom he acts for and in behalf of his iirincipals, have knowledge of his authority to represent them.
    from the Fifth District Court of New Orleans. Eggleston, J.

      Simonds & Eenner, for plaintiff and appellee. Alexander T. Steele and J. E. Mayer, for defendants and appellants.
   Wyly, J.

In February, 1856, the plaintiff, as surviving partner of John L. Harris, deceased, shipped, after the death of the latter, from their plantation in Bolivar county, Mississippi, three hundred and ninety-nine hales of cotton consigned to the defendants for sale at this place.

On sixteenth March, 1856, the defendants remitted to plaintiff $8619 41, one-half of the net proceeds of said consignment. The plaintiff has instituted this suit to recover the other half of the proceeds.

The answer admits the receipt of the cotton and the amount of proceeds thereof as alleged, hut avers that under the direction of William H. Harris, the brother of the plaintiff, acting under a full power of attorney from him, the defendants paid to plaintiff one-half of the amount in their checks on Duncan, Sherman & Co., of New York, and they paid over the balance of the proceeds of said cotton to the said William H. Harris, as agent of plaintiff. A copy of the power of attorney is annexed to the answer.

From a judgment against them in the lower court, the defendants have appealed.

It appears from the evidence that the defendants credited the account of William H. Harris, who was owing them, with one-half the amount of the proceeds of tlie cotton and remitted tlie other half to the plaintiff ; that on twenty-third of February, 1856, the plaintiff by authentic act passed before a notary public of this city, appointed the said William II. Harris his attorney in fact, with full .powers to receive for him, by suit or otherwise, all sums due him, to buy, sell and perform all acts that he might see proper for his principal in the State of Virginia and other States.

This power of attorney was revoked on twenty-fifth March, 1856, but it docs not appear that defendants were notified thereof. It does appear, however, that the settlement' with the agent, William II. Harris, was made on the eighth March, 1856, and prior to the revocation of the power of attorney.

Plaintiff made one of the defendants, Shepherd Brown, his witness, who appears from his evidence to have been informed of the existence of the power of attorney from the time it -was given. The transaction, however, between William H. Harris and the defendants was had with Mr. Cuddy, the active partner of the firm, who died in a short time afterwards.

The power of attorney was given by public act, and we are bound to presume in the absence of proof to the contrary that the defendants made the settlement with William H. Harris with a knowledge of his authority to represent the plaintiff. Having paid over the proceeds to a party authorized to receive them by plaintiff’s power of attorney, wé think the defendants should not be held liable. Plaintiff must pursue his unfaithful agent.

It is therefore ordered that the judgment appealed from be avoided and annulled; and it is now ordered that there be judgment in favor of defendants, and that plaintiff pay costs in both courts.

Rehearing refused.


text:
    No. 1046.
    J. D. O’Leary v. Martin, Cobb & Co.
    A waiver of protest and notice by an indorser, made at the place of payment, at the moment of maturity, will dispense with proof of other demand.
    Where a promissory note is indorsed in blank by a firm name, and a waiver of protest and notice is signed by the same firm, but in(>a different hand-writing from that of the original indorsement, and the note, indorsement and waiver are all offered and received in evidence without objection, the presumption is that the waiver was written by another member of the firm from that of the indorsement, and the signature will be considered proved.
    Where the name of the holder of a promissory note appears as first indorser he will be presumed to be a surety with the maker. This presumption may however be rebutted by
    from the Fourth District Court of New Orleans. Théard, J.

      Jlynes, Gordon & llemtss, for plaintiff and appellee. Sani-son di Hunion, for defendants and appellants.
   Howe, J.

The plaintiff sues as owner and holder of two promissory potes made and indorsed as follows :

“ Vicksbtjkg, Miss., January 28, 1861.

“ $1137 39.

“ Nine months after dato, I promise to pay to the order of Messrs. Cobh, Manloye & Co., at the office of Messrs. Martin, Cobb & Co., New Orleans, eleven hundred and thirty-seven dollars and thirty-nine cents, for value received, with interest at the rate of eight per cent, per annum after maturity until paid.

“JAMES P. PORTER.”

[Indorsed]

“JAMES D. O’LEARY.

“ COBB, MANLOVE & CO.

“ MARTIN, COBB & CO.

“We waive protest and notice of same on this October 31, 1861.

MARTIN, COBB & CO.”

“ Richmond, Madison Pakisi-i, La., October 17,1861.

“$4521 94.

“ Sixty days after dato I promise to pay to the order of Martin, Cobb & Co., at their counting room in Neto Orleans, Louisiana, forty-five hundred and twenty-one dollars and ninety-four cents, for value received, with interest at the rate of eight per cent, per annum after maturity until paid.

“ D. M. DANCY.”

[Indorsed]

“JAMES D. O’LEARY.”

“New Orleans, December 19,1861.

“We waive protest and notice of protest as indorsers.

“ MARTIN, COBB & CO.”

The plaintiff seeks to hold the defendants, Martin, Cobb & Co., liable as indorsers.

It will be observed that the notes are payable at the counting room of these indorsers, and on the day of maturity of each respectively, protest and notice of protest were waived by these indorsers.

It will be xiresumed that these acts of waiver by the firm were done at their counting room. It would seem to result as a logical sequence that the notes must have been presented there at maturity and payment demanded, and, there being no funds of the makers, the waivers were accordingly' made. The case is even stronger than Carmena v. Mix, 15 La. 165, and Marsh v. Waterman, lately decided, 21 An. p. 377. We must conclude therefore that these waivers, made at the place of payment, at the moment of maturity, by the firm whose counting room was the place of payment, dispensed with proof of other demand. Notice is especially waived.

It is contended by defendants that inasmuch as it is admitted on argument before this court that the waiver written over the indorsement on the second note is in a different handwriting from the signature, the waiver remains unproved. The waiver is made part of the petition — it was offered in evidence without objection — the defendants do not allege error or fraud; and after it was in evidence a witness proved that the notes were presented to one of the defendants’ firm who admitted the genuineness of the indorsements. Under such circumstances wo think it rational to conclude that the waiver was written by one of the partners over the signature by another which had previously been placed on the note.

A more serious question is presented by the fact that the plaintiff’s name appears first on the list of indorsers on this paper. So appearing, above the payees, he would bo presumed to bo a surety with the maker, and to have no right of action except against the maker. The force of this presumption is considerably Aveakened, however, by the testimony on the part of plaintiff, that his agent presented the notes before suit to one of the defendants’ firm, and that negotiations for a settlement were entered upon although never completed.

Under such circumstances justice requires tliat the case should be remanded that the position of plaintiff’s indorsement may be explained.

It is therefore ordered and adjudged that the judgment appealed from be avoided and reArersod, and tliat the case be remanded to bo proceeded with according to Iuav, and tliat the ajipelleo pay costs of appeal.


author: TaliaveRUo, J.

text:
    No. 1497.
    Succession of Jean Journe, on a rule taken on the Tutrix and Under Tutor.
    The good will of a stall or stand in tbe public market places of tbe city of New Orleans is something independent of tbe stand itself and belongs to the party who leases tbe stall or stand.
    If a lessee of a market stall or stand dies, tbe property in tbe good will of tbe stand falls into his succossion.
    from the Second District Court of Now Orleans. Thomas, J.

      Build & Murphy, for appellee. Saucier d; Michinard, for appellant.
   TaliaveRUo, J.

In this case a paternal, uncle offered the account and tableau of the tutrix of his deceased brother’s minor children on the ground that, to the minor’s" injury the tutrix had failed to place upon her inventory and account an item of'$1700, money which, in part, she should have accounted for as belonging to the minor. This claim of the opponent set up in the .interest of the minor is founded on the folloAA'ing state of facts. Jean Joúrné, husband of the tutrix and father of the minor, was by occupation a butcher, and occupied for some time previous to his death, which happened in the’ latter part of Augusts 1866, a stand or stall in one of the markets of the city for vending butcher’s meat. During his last illness and after his decease the stall was occupied by a man in attendan.ee, and the charges or dues were paid by Bernard Delord, a brother of tbe tutrix, also a butcher occupying a stall of his own in the same market. About three month’s afterward Delord sold out the privileges and -use of the stall to Yictor Bowras for $1700 and appropriated the money to his OAvn use. The opponent contends that the proceeds of this sale rightfully belong to tbe community that existed between tlie tutrix and Jean Journé. It does not appear that tbe tutrix ever claimed anything on this account, or that she ever received any of the money arising from the sale made by Delord. It is held in defense that the succession can bold no right whatever to the use or the privileges of the stall occupied by Journó in his lifetime; that the obligation was one strictly personal as to him and not heritable; that at his decease the right of the city, through its agents, to rent the stall to any applicant instantly arose; that Delord obtained the use and privileges of the stall from one of the farmers, as they are termed, of the market stalls, and that he is in no manner affected by any pretended right claimed for the succession.

It seems that there exists a custom or common usage in dealing in these matters, of transferring, by consent generally of the fanner, the use of market stalls, and with that transfer of soiling the “good will” also of the stand, by which is understood the run of custom which the transferrer had attained by the patronage of his friends resorting to Ms stand to purchase, and generally from the reputation his stand had acquired as one at which good and wholesome meats were sold, and where customers wore accommodated and fairly dealt with. When Jean Journó obtained the stand he gave $1350 for the “good will,” and Delord sold the “good will” for $1700. The good will is a thing strictly belonging to the party leasing from the city, and with which neither the city nor its farmers or agents have anything to do.

On the trial of the case in the lower court the judge gave judgment in favor of the opponent, ordering the tutrix to place the sum of $1700 upon the inventory of the succession, the value of the stall, this sum belonging to the community, one-half to the tutrix in her own right and the other to her minor children. After an unsuccessful effort to obtain a new trial the tutrix took an appeal.

If the lease terminated at the death of Journó, and his widow and heirs had no right to continue and use the stall, what is called the “good will” was something they were entitled to, if it could not bo made available, and we are not sure that it could not have been. This equitable right did not cease to exist because it was not practicable to derive benefit from it. But what rights did Delord acquire subsequent to the decease of Journó ? Ilis whole course in relation to the matter after the decease of Journó seems not to have been of that clear and straightforward character which would have rendered his intentions manifest. Journé’s partner in the purchase of beeves, etc., for the market, engaged a man to attend the stall during the last illness of Journó to avoid a forfeiture of the lease which, by a city ordinance, would have terminated had threo days passed without an attendant at the stall. During this period Delord paid the required dues to the farmer as they became exigible, and did this for Journó. After Journe’s death, Delord continued to pay the dues, in whose right does not seem entirely clear. Negalona, an agent or representative of the farmer, testifies that ho gave orders to his collector to give possession of the stall to Delord, and that Delord paid dues for Mmself and not for the succession. He says also that he paid the dues hut did not take possession, that a young man named Paul occupied the stall, that he did not know for whom he occupied it. He said that according to the custom, of the market the stall belonged to the farmer when the occupant died,-and afterward when interrogated as to how he know such to be the custom ho replied that he know nothing of customs that he claimed under the ordinances. This is the most important witness on the part of the defense, and we can not but think his testimony vague and unsatisfactory. He gives no clue as to the time when he authorized Delord to take possession of the stall, and leaves us .equally in the dark as to when he ceased to pay dues on account of others, and when he began "to pay them for himself— an important fact in the case. On the other hand it is sufficiently clear that his manner was such as to induce others to suppose that ho was paying these dues for the benefit of the estate of his brother-in-law. Paul was in attendance at the stall, but neither Negalona, who says ho authorized Delord to take possession of it, nor, as far as shown, any other person knew for whom Paul was occupying. Bowras, who bought from Dclord, was induced to believe that Delord Aras acting in behalf of the widow of Journé, for Bowras proposed going to see the widow in relation to the transfer, but was told by Delord that it was not necessary, leaving the impression that he was authorized to act, but he did not tell him - that he was the owner. Bowras, in his testimony in the case, sa'ys that Delord never occupied the stall for himself. It is well established that Delord never had possession of the stall personally, He never complied with one of the important requirements of the city ordinances, that of posting up his name over the stall. In getting this dubious control of the stall he gave nothing to anybody for “good will,”'but after the period of about three months he suddenly transferred the stall to Bowras, and sold him the good will ” for $1700.

Now, what good will did he sell ? It T^as not that of his own stall in the same market where he continued to pursue his occupation. During his quasi management of the stall, formerly Journé’s, for the brief period of three months without having posted his name over the stall, as required by the city ordinance, and never occupying it himself in person, he could not have acquired on his own account any appreciable amount of additional patronage or good will .for, that stall. But it is said that upon the death of Journé the good will that appertained to his stall ceased, and that nothing of the kind could have.gone to his heirs. This position is not tenable. It is not • exclusively to the person that what is termed the “good will” is attaclied, but it is chiefly to the place. The patronage and custom bestowed upon this stall was estimated to be worth $1350 when Journé got it, and he paid the $1350 for the good will. This belonged to him at. his death, and upon principles of equity at least it should, if practicable, be mad'e available for his minor children, at all events their half of it. If the mother and tutrix thought proper to waive and decline her own rights in the premises, she certainly was not justifiable in sacrificing those of tho minors.

. From these considerations we conclude that the judgment appealed from was properly rendered.

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


author: Tamxverko, J.

text:
    No. 2128.
    Succession of E. M. Young, on Opposition to Appointment of Executor.
    A tutor residing in a foreign, country or in another State of tbe Union can not receive letters of tutorship from the courts of Louisiana, nor ho recognized as testamentary executor without first giving bond and security under such conditions as are required by law from datiyo testamentary executors. Acts of 1842, sec. 5, page 302.
    from the parish of St. Helena, Sixth Judicial District. George, Parish Judge, presiding.

      Me Vea <& Hunter and J. F.r Wilson, for appellant, T. & J. Ellis, for executor, appellee.
   Tamxverko, J.

The appellee moves the dismissal of this appeal on the following grounds, viz:

First — There is no final judgment appealed from, but a mere motion only upon which there was no citation, no service nor delay, no con-testatio listis. That the motion'concludes nothing.

Second — If the appeal would lie, the appeal bond is defective, being-in favor of the Clerk of the Parish Court of the parish of St. Helena, there being legally no such officer.

Third — The certificate is not signed by the judge but by a person styling himself Cleric of the Parish Court, there being constitutionally no such officer.

An examination of tho record shows us that the motion of the appellant in the lower court to be appointed dative testamentary executor of the succession of E. M.‘Young, on the ground that Huston, the foreign, executor, had not complied with the law by entering into bond, was opposed by Huston, who introduced rebutting evidence, and thus accepted the issue tendered him. He thereby waived the formality of being proceeded against by petition and citation. This ground for dismissal is therefore insufficient. The objection to the bond and certificate we thiDk without weight,- the clerks of district‘courts are by law required in certain cases to perform the duties of clerks in the parish courts. The motion to dismiss is therefore overruled.

On the merits there is only the simple question, whether a foreign tutor is required by the law of Louisiana to furnish security ¶ The act of the Legislature of 1842 is express on this subject: “Whenever the testamentary executor named in the will shall be present in tho State, but domiciled out of it, the judge shall only grant him the letters on the execution of his bond with a good and solvent security for such stun and under such conditions as are required by law from dative testamentary executors.” We think the judge a quo erred in recognizing Huston as executor without requiring from him bond and security in conformity with the act just recited j and that in consequence thereof the appointment is void. A case is presented in which the judge is required to appoint a dative testamentary executor according to the fifth section of the act of 1842, page 302.

It is therefore ordered, adjudged and decreed that the judgment of the lower court dismissing the application of John L. Young to he appointed dative testamentary executor of the estate of E. M. Young, deceased, he annulled, avoided and reversed. It is further ordered that the judge a quo proceed to the appointment of a dative testamentary executor in pursuance of the fifth section of the act of the Legislature, approved sixteenth of March, 1842, entitled “An act explanatory of the nine hundred and twenty-fourth article of the Code of Practice for the administration of the succession of strangers dying possessed of property within the State of Louisiana, and for other purposes. The defendant and appellee paying costs in both cases.

Eehearing refused.


text:
    No. 2133.
    A. S. Mansfield, E. E. Norton, Assignee, v. Mrs. M. L. Doherty et. als., Citizens’ Bank et. als., Intervenors.
    Prescription must be pleaded expressly and specially in order that the party against whom it is urged may have full notice to meet it. C. 0. 3426, 3127.
    from the Seventh Judicial District Court, parish of West Feliciana. Oooley, J.

      W. D. Winter, for plaintiff and appellant, Gollins & healce, for defendants, Wielcliffe & Fisher, for intervenors.
   Howe, J.

The plaintiff sued the defendants, Mrs. M. L. Doherty, widow of Patrick Doherty, and Mrs. M. Eoss and Miss Mary Doherty, issue of Patrick and Margaret L. Doherty, for a balance due on a mortgage note of five thousand dollars, 'with recognition of mortgage on certain property described in an act executed by defendants on the thirty-first December, 1866. The Citizens’ Bank and others intervened, representing themselves to be creditors of Patrick Doherty, and entitled to be paid from, the property of his succession in preference to the individual creditor of the heirs. The defendants pleaded the general issue, and specially averred that the property mortgaged belonged to the estate of Doherty, deceased, and that they were not authorized to mortgage it to the prejudice of the creditors of the succession. The plaintiff in response.to the intervention pleaded the general issue, and specially denied'the leading averments of the intervenors, and furthermore, “that the action of intervenors to make said property hable for the debts of the succession, if any they ever had, is barred by prescription.”

Judgment was rendered in favor of plaintiff for a portion of his claim witli interest and with recognition of mortgage on the land proved to be the paraphernal iiroperty of Mrs. Doherty, and in favor of intervenors against plaintiff, rejecting his claim of mortgage on the remainder of the property comprised in the act of mortgage, but proved to belong to the succession, and the plaintiff appealed.

The only question that seems to be presented on this appeal is whether the action of the intervenors should be declared to be prescribed. It is claimed by plaintiff in his brief that he pleaded the prescription of three months as to an action of separation of patrimony. To this the intervenors and the defendants reply that the plea above quoted is so vague and indefinite that it amounts to no plea at all, that they are at a loss to conjecture which of the manifold prescriptions is intended to be pleaded, and that it was properly disregarded by the court below.

We can not supply the plea of prescription. It should be pleaded, if at all, expressly and specially before the final judgment. C. C. 3426,3427. The party against whom it is urged should have full notice to meet it, for it may be met in various ways. And in a case of this nature it ought to be entirely explicit. 15 La. 550.

We are of opinion that the court a qua did not err in considering the plea as not made in this case, and it is therefore ordered that the judgment appealed from be affirmed with costs.


text:
    No. 2113.
    City National Bank v. Eliza E. Barrow and Husband, A. Miltenberger & Co., Intervenors.
    The signature of the husband to a note and mortgage to secure its payment, executed by the vriie, is a sufficient authorization by the husband for the endorsement of the note by the wile.
    Where'an act of mortgago declares the object mortgaged to be the entire interest in a certain parish named, giving the number of acres, and mentioning the river on and near which it lies, and by which it is bounded, with a reference to certain titles of the mortgager to be found in the office of the Recorder of Mortgages for the parish, the description of the property is sufficient. 2 An. 253, 371.
    ii. PPEAL from tlio Sovcutli Judicial District Court, parish of West Feliciana. Cooley, J.

      Race, Foster & JE. T. Merrielc and 8. J. Foxcell, for plaintiff, Campbell, Spofford & Campbell and Collins & Lealce, for defendants.
   Howe, J.

This action was brought to recover the amount of throe promissory notes, in all the sum of $10,000, drawn by Eliza E. Barrow, to the order of herself and by her indorsed in blank, dated November 25,1865, and secured by mortgage on the following described property.

“ Her entire landed interest in the aforesaid parish of West Feliciana, situated on and adjacent to the- Mississippi river, and composed oi thirty-eight hundred acres of land more or less, as per acts of sale to he found at my (the parish recorder’s) office in the town of St. Eran-cisville, parish aforesaid,”

The plaintiff aslced also that its mortgage, he recognized and enforced upon eight tracts of land specifically described in the petition and alleged to compose the property embraced in the very general description quoted above.

It appears that Mrs. Barrow was separated in property from her husband by judgment of February 25, 1853. The notes and mortgage are signed by her husband, apparently for the purpose of authorizing her execution of them,

A. Miltenberger & Co. intervened, setting up a general mortgage on these lands in virtue of a judgment against Mrs. Barrow, recorded June 16, 1866, and averring the insolvency of Mrs. Barrow, and the nullity of the notes on which the plaintiff’s action was brought. They alleged that no consideration was paid for them to Mrs. Barrow, or to any one for her separate benefit, that she was not authorized to indorse them; that the mortgage does not comply with the provisions of the law of 1855, authorizing married women to contract debts and mortgage their property, and that the mortgage does not state the precise nature and situation of each of the immovables on which said mortgage is granted.

They prayed that the notes might be canceled and annulled.

The plaintiffs filed the plea of prescription of one year to this intervention, it having been filed December 23, 1867, but this plea the court properly overruled. The plaintiff sues to enforce a mortgage claimed to be prior to that of intervenors. The latter claim that it is no mortgage, by reason of sundry alleged nullities, and they further urge, as will be seen hereafter, that it can, at any rate, only affect a portion of the lands of Mrs. Barrow which the bank aims to make subject to its grasp. The action of the intervenors seems to be something more than the action of nullity mentioned in the Civil Code in articles 1965 to 1989 inclusive.

There was judgment in favor of plaintiffs for the amount of one of the notes, §3333 33, with interest as claimed, and with recognition of mortgage as claimed on the eight tracts of land described in the petition, and in favor of defendants and against the plaintiff as in case of nonsuit as to the other notes, .and the claim of intervenors was dismissed.

The intervenors only have appealed.

So far as the question of consideration is concerned the judgment as to amount appears to be fully sustained.

As to the authorization of the husband for the indorsement in blank by the wife, wre think the requirements of law were met by the signa-, time of the husband to the note and mortgage. It can hardly be necessary to require the husband after authorizing the execution by his wife of a note and its accessary obligation to also give a separate authority lor her indorsement in blank which in no manner increases her liability, but only carried iuto practical effect tbe obligation recognized and secured by tbe mortgage.

As to tbe law of 1855, invoked by intervenors, it will be observed that its object is explained in its title, wbicb declares it to be “an act to enable married women to contract debts and bind their paraphernal or dotal property.” Act of 1855, page 254.

Its effect is to dispense tbe creditor, by an observance of its formalities from tbe obligation wbicb would otherwise exist, and exists in this case, to prove that the money advanced by him was actually applied for tbe benefit of tbe wife. See § 3.

But it does not seem to invalidate an obligation contracted, as in this case, by a married woman, separated in property, and authorized by her husband, where tbe creditor proves that tbe money advanced was actually received by tbe debtor for tbe advantage of her separate property.

Tbe last point made by tbe intervenors is that tbe description of tbe property mortgaged is insufficient. We do not think tbe point tenable. Tbe description is inartificial, but it can hardly be said to be insufficient. In tbe first place it declares the object mortgaged to be “her entire landed interest in tbe parish of West Feliciana in tbe second place it is stated to comprise three thousand eight hundred aeres more or less; in tbe third place it is stated to be on and adjacent to tbe Mississippi river; and finally it refers to certain titles of tbe mortgager to be found in tbe office of the recorder, and to which we will again allude.

In Ells v. Sims, 2 Ann. 253, tbe property was described as follows: “my land situate on the Mississippi river in said parish of Concordia, bounded by lands of E. P. King, above and below, and back by lands of tbe United States,” and this was held sufficient in tbe following language:

“ A distinction may be fairly made between urban and rural estates, and greater minuteness and accuracy of detail might properly be required in tbe former than in tbe latter case. Tbe question is whether any one contracting with Sims, or in any wise trusting him, or interested as a creditor, would have been misled or kept in tbe dark by tbe omission to state tbe township, range, section, and ike quantity of acres in Sims’ tract. We think not, and are of opinion that in this case there lias been a fair compliance with the requisition of law that tbe mortgage and its registry shall state precisely tbe nature and situation of tbe property.”

In Baker v. Bank of Louisiana, 2 Ann. 371, the court reiterated the reason of tbe rule, and held tbe following description sufficient:

“A certain tract, or a parcel of ground, with the improvements thereon, situate, lying and being in said parish, on the Bayou Tunica, being tbe land and plantation purchased by the said Samuel Wimbesb, at the probate sale of Samuel Davis, deceased, containing five hundred and eight acres.”

In the. case at bar the description, poor as it is, is in one respect bettor than the one lastly quoted, for it declares the property to be all the mortgager has in the parish, and if we apply the test of notice, it will appear simply impossible that the intervenors could have been misled or prejudiced by what they allege to bqan insufficiency of description. The debt due them was contracted in 1861. The plaintiff’s mortgage was executed in 1865. The intervenors’ judicial mortgage resulted from a confession of judgment in 1866:

It is however urged by intervenors that if this description be held sufficient the extent of the property is limited by the phrase as per acts of sale to be found in my office in the town of, St. Francisville,” and can embrace only such lands as were included in the four acts of sale there recorded, and. that four patents embracing twelve hundred and sixty-nine and sixty-six one hundredths acres of the land in controversy were not recorded until June 30, 1866, after the judicial mortgage had attached. We think this position untenable.

The mortgager hypothecated her entire landed interest in the parish, and at that time she owned the lands embraced in the four patents. She described it as embracing about' three thousand eight hundred acres, and the amount of the eight tracts corresponds with that portion of the description. We regard the reference, “as per acts of sale” etc., not as limiting the previous portion of the description but as merely explaining it pro tanto.

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


author: Howeel, J.

text:
    No. 2123.
    A. Miltenberger v. N. K. Knox et al., H. M. Favrot, Attorney for Absent Heirs, Intervenor.
    The opouing of a succession and the appointment of an administrator in a parish, where the deceased never has resided, nor owns property therein at the time of the death, are absolute nullities ; and any and all proceedings há'd, and all judgments rendered against the succession are void. C. C. 929; 3 An. 2G1.
    A .A. PPEAL from tbe Fifth District Court, parish of East Baton Rouge. Posey, J.

      Cooley & Phillips and Barrow & Pope, for plaintiff and appellant. II. M. Favrot, for absent heirs, appellant. Herron, Fuqua & Calichan, for defendants and appellees.
   Howeel, J.

On the seventh July, 1866, the defendant, Knox, obtained a judgment in tbe parish of East Baton Rouge on a note made by Charles Pipes on seventh June, 1856; due first January, 1861, against Henry Jones, as administrator of tho successions of Charles and Winnifred Pipes, deceased, recognizing a mortgage to secure the samp and ordering the mortgaged property situated in the parish of West Baton Eouge to be sold to satisfy the debt. In September, 18(37, he caused a fi. fa. to issue on said judgdment and the property to be seized, whereupon the plaintiff, A. Miltenberger, as holder of two notes executed on second February, I860, due at thirteen and fourteen months for $10,000 each, by the said Winnifred Pipes and her son, Stephen Pipes, and secured by mortgage on the same property, instituted this suit to enjoin the sale and prayed to annul the judgment in favor of Knox and the appointment of Henry Jones as administrator of the successions of Charles and Winnifred Pipes on the grounds, among many others :

Mrst — That the succession of Charles Pipes had been accepted and settled by the heirs years before it was opened by the said Jones in the parish of East Baton Eouge.

Second — That at the time of her death, Mrs. Winnifred Pipes neither resided, died nor owned property in the parish of Hast Baton Eouge, where her succession was opened, but had her domicile and owned property in the parisli of West Baton Eouge, and died in the parish of East Feliciana. Her succession should have been opened either in the one or the other of these parishes.

The defendants, Knox and Jones, filed answors to the petitions of the plaintiff. II. M. Favrot, as attorney for the absent heirs of Charles Pipes, Winnifred Pipes and Stephen Pipes intervened, adopting the allegations and prayer of the plaintiff as against the defendants, Knox and Jones, and setting up a defense to the demand of plaintiff.

As to the first of the above grounds, it is shown that Charles Pipes died in East Baton Eouge in 1858 and his succession was accepted purely and simply by his heirs, and aH Ms property in said parish was sold in 1859 to one A. E. Brady, and that situated in West Baton Eouge to Stephen Pipes. There was therefore no succession to open, and the rights of any creditors of said Charles Pipes were against his heirs or the mortgaged property in the hands of the possessor. C. C. 1370, 1409; 19 A. 60.

The recorder of the parish, appointed in Juno, 1866, to make an inventory of the property in East Baton Eouge, returned that no property was found in said parish belonging to the succession of Charles Pipes, and the return of the recorder of the parish of West Baton Eouge, appointed at the same time, contains only property that had been accepted and' sold, long before, by the heirs of Charles Pipes.

As to the succession of Mrs. Winnifred Pipes, widow of said Charles Pipes, it is shown that she resided after the death of' her husband with Stephen Pipes, in West Baton Eouge, until 1862, when she removed to East Feliciana, where she died in 1863, and she is not shown to have had any property in East Baton Eouge.

The appointment therefore of Jones as administrator of both successions in said parish of East Baton Rouge, was a nullity, (C. C. 929 ; 3 A. 261) and there was no one in court against whom Knox could obtain a judgment in the suit instituted by him. All the proceedings had in the attempt to open the said successions and recover judgment against them, having no legal foundation, were .and arc absolute nullities, and any creditor or party interested may oppose any process of court resulting from them , which may affect their interests.

We need not inquire into the right of the plaintiff and the attorney of absent heirs tp set up any other grounds which appear in the record. If Knox has no judgment, he is not entitled to an execution, or to proceed, as he is attempting, against the property in question. Both lie and the plaintiff must be' left to pursue the legal course to collect or enforce any claims they may have against the deceased debtors.

It is therefore ordered that the judgment appealed from be reversed, and that the appointment of Henry Jones as administrator of the successions of diarios Pipes, deceased, and Winnfried Pipes, deceased, by the District Court in the parish of East Baton Rouge, and all the proceedings in said two successions, be declared null and void; that the judgment in the suit of N. K. Knox v. H. Jones, administrator, No. 940 on the docket of said court, and all the proceedings thereunder bo declared null and the seizure set aside. The defendant, Knox, to pay costs of this suit in both courts.


author: Howell, J.

text:
    No. 1641.
    State of Louisiana ex rel. E. Durrive v. Recorder of Mortgages.
    The right to have a mortgage canceled can not be tested before the courts unless all those having an interest be made parties.
    The sale of the property of a bankrupt by the assignee does not operate a release-of the mortgages and attach them to the proceeds.
    from the Fifth District Court of New Orleans. Beaumont, J.

      JE. J3ermud.es, for plaintiff and appellee, llornor & Benedict, for Recorder, appellant.
   Howell, J.

Edward Durrive, alleging that he has been discharged under the bankrupt act of second March, 1867, by the United States District Court, District of Louisiana, from all debts and claims, which by said act are made provable against his estate, and which existed on the twentieth July, 1867, prayed for a mandamus directing the Recorder of Mortgages for the city and parish of Orleans to erase the inscriptions of two judgments rendered against the relator, one on the fourth of April, 1863, in favor of N. -Lecanu, James Plaisant subro-gated, and the other on the fifth of May, 1863, in favor of Léon & André, and duly recorded, both the said creditors having been made parties to the proceedings in bankruptcy.

Tlie Recorder of Mortgages filed several exceptions, of which we will notice the following, although we can see no interest which the relator has in the matter, because the proper parties in interest have not been made parties to these proceedings.

It is well settled that the right to have a mortgage canceled can not be tested, unless those having a real or pretended interest be made parties. 5 L. 329; 6 R. 299; 8 R. 97; 11 R. 177; 2 A. 114. But in the case of Erwin v. Bank of Kentucky, 5 A. p. 4, it was held that when tbc evidence shows that the debt secured by the mortgage has been paid, the original mortgagee has no interest and need not be made a party to the proceeding for the erasure of the mortgage. In this ease, however, the1 record does not show that the judgments in question have been paid; and by the bankrupt act there are certain debts from which and certain contingencies in which the bankrupt shall not be discharged, (sections 29 and 33); and under section fourteen of said act “the as-signee shall have authority, under the order and direction of the court, to redeem' or discharge any mortgage or conditional contract or pledge or deposit, or lien upon any property, real or personal, whenever payable, and to tender due performance of the condition thereof or to sell the same, subject to such mortgage, lien or other incumbrances.” There is no allegation in plaintiff’s petition that these judgments have been paid, and it may be that the property has been sold subject to the judicial mortgages. The bankrupt act does not provide that the sale of the proimrty shall operate a release of the mortgages and attach them to the proceeds. On tire contrary, it seems from the above clause that the assignee has authority under the direction of the court only to redeem or discharge the mortgage, or sell the property subject to the same. Section fifteen confirms this view, as.it directs that' “he shall sell all such unincumbered estate, real or personal, which comes into his hands, on such terms as he thinks most for the interest of the creditors.” It is manifest that the exception was well taken.

It is therefore ordered that the judgment appealed from be reversed; that the exception of the defendant be maintained, and the proceedings herein be dismissed at the costs of relator in both courts.


author: Wtlt, J.

text:
    No. 1525.
    Powers & Co. v. Sixty Tons on Marble.
    Where a carrier of freight for hire stores the property or goods in a warehouse at the port of destination, the charges of the warehouse hooper for storage forms a privilege on the goods superior in' rank to that of the carrier for the freight.
    from the Fifth District Court of New Orleans. Leaumont, J.

      MeOag & Lunenburg, for plaintiffs and appellees. Gurley & Flower, for appellant. F. Hunt, curator ad hoc.

   Wtlt, J.

This is a proceeding in rent to recover the amount of storage due the plaintiffs, keepers of a warehouse, on sixty tons of marble, and to enforce their privilege thereon.

The marble was shipped from Boston in December, 1860, by unknown parties, and consigned to Cavanaugh and Cully, at this place, who refused to pay the freight and accept the consignment. Thereupon the same was hauled by the plaintiffs to their warehouse and stored at the request of the captains or consignees of the vessels which transported it.

The owners appear to have abandoned the property, never' having offered to pay the freight and storage and to take possession of the same.

On ninth February, 1867, plaintiffs sued to 'recover the amount due them and to enforce their privilege and pledge on the marble which still remained stored in their warehouse, the court appointing a curator ad hoe to represent the absent owners:

George W. Hynson & Co. as ship agents and consignees intervened and claimed the amount due for freight, primage and average on said marble, with a privilege, as they allege, superior to that of plaintiffs.

On the trial the court rendered judgment in favor of plaintiffs for the amount claimed by them, to be paid by privilege and preference out of the proceeds of the sale of the marble, .and in favor of the intervenors for the amount claimed by them without privilege.

The intervenors have appealed.

The claims of these creditors are fully established. The owners of the marble owe the full amount of freight due the intervenors, and they also owe the full amount claimed by plaintiffs for storage..

The only question to determine is, which one of these creditors has the superior privilege on the marble or its proceeds “l

The intervenors contend that under article' 3213 Civil Code they have a privilege on the goods for the freight, the same not having been delivered to the consignees, nor passed into third hands. That having stored it, the marble, in effect, remained in their hands.

They contend the court erred in allowing the plaintiffs a privilege; that a privilege for storage is no where allowed by our laws.

Plaintiffs’ claim is for the preservation of the thing. Under articles 3191, 3192 and 3193 of the Civil Code a party is entitled to recover the expenses incurred for the preservation of the- property which he has in his possession, “ whether in deposit, loan or otherwise j” and he lias a right of pledge by which he may, until reimbursed,, retain the property.

•The evidence in this case establishes that the charges of plaintiffs, are reasonable for taking care of and preserving the property which had been placed in their hands for storage.

In Hyams v. Smith, 6 A. 362, it was held by this court that the-necessary expenses for boarding and attendance upon slaves seized in a suit and held pending the litigation, constitute a privilege claim or the slaves.! < -

In Andrews v. Crandell, sheriff et al., 16 A. 208, the hill of a livery stable keeper was held to be a privilege claim on the proceeds of the sale of horses .by the sheriff.

Tho privilege in these. cases is based upon the principle that the charges were necessary expenses for the preservation of the thing.

In our opinion the court did not err in giving plaintiffs preference tobe paid out of the proceeds of tho thing preserved by them. The intervenors had the first privilege on the marble for the freight had they seen fit to keep it in their own custody till they were paid. But after permitting it to remain in storage with the plaintiffs for so many years where they placed it, they cannot complain if their privilege must yield to the superior rights of those who have preserved the tiling for so long a period.

We think the court erred in not recognizing the privilege of the intervenors on the property in contest, but that their privilege is inferior to that of plaintiffs. C. C. 3229.

It is therefore ordered that the judgment appealed from be amended by allowing the intervenors a privilege next in rank to the plaintiffs to be paid out of the proceeds of the sale of the marble, and as thus amended that the judgment be affirmed.

It .is ordered that plaintiffs pay costs of this appeal.