text:
    Diggs, McKeever & Co. v. S. G. Staples.
    A party who seeks to make another liable for the debt of a third person, must prove such liability with reasonable certainty, or he cannot recover.
    APPEALS from the Fifth District Court of New Orleans, Buchanan, J.

      Kelly, and Spring and Halsey, for plaintiffs.

      Elmore and King, for defendant.
   By the court:

Dunbar, J.

This suit is brought to recover the amountof a bill for groceries, sold by plaintiffs to T. B. Staples, defendant’s brother, the articles being furnished for a sawmill situated on Wolfe River, near the Bayou of St. Louis, in the State of Mississippi.

The defendant, Solomon O. Staples, is sought to be made liable, on the ground of an implied promise on his part, to pay for the goods sold.'

The district judge thought the evidence sufficient, and gave a judgment for the plaintiff for the sum demanded, from which the defendant has appealed.

The only witness to sustain this implied promise of the defendant, is the clerk of the plaintiff, who says: “ The goods were sold to T. B Staples; he gave the order for the goods ; he told me he would pay for the goods by an order on Tillerton; he gave me the mark for the goods, ‘ T. B. Staples.’ T. B. Staples bought on the first occasion for cash, and on the second bill witness refused to sell to him, as he had not paid for the first. T. B. Staples then said he would give him an order on Tillerton, who owed him.” The witness further says, “ that he' would not have given him the second bill of goods, unless he had given the order on Tillerton, or some other security equally as good. The order on Tillerton was to have been the consideration of the sale that was made on the 23d of January, 1850.”

The bill of this date is for $515 27, being the principal part of the account Bued on, the whole amount being $672 57, exclusive of interest. The same witness testifies, “that the defendant had been in the habit of purchasing supplies from plaintiffs, for his sawmill; that he came to the store of plaintiffs, and said, that he had sold out the mill to his brothers, and told the plaintiffs ‘ to let them' have what they wanted.’ Defendant did not make a direct promise to pay the debt of his brothers; but witness considered the defendant’s introduction, ‘to let his brothers have what they wanted,’ was an obligation on his part to pay, Witness would not have delivered the goods, had not defendant introduced his brother to him.”

There appears to be a manifest discrepancy in this testimony. The Witness tells us first, that he would not have let T. B. Staples, the brother of the defendant, have the second bill of goods, for $515 27, but for the promised order on Tillerton, or some surety equally as good; and, afterwards, he tells us that he would not have sold them to him, but for the request of the defendant to let his brothers have what they wanted.

This evidence seems to us too uncertain to raise an implied promise on the part of the defendant, to pay for the goods sold to his brothers. There is no pretence to say, that there was an express promise to pay. Had the plaintiff or bis clerk required it, it is very probable the defendant would have assumed payment for the goods without hesitation; if so, the goods being sold at his special instance and request, there would have/ been a sufficient consideration for an express promise. It is impossible, with any certainty, to tell what may have been the inducement of the plaintiff. In the case of Boyd v. Sappington, Watts’ Reports, 4th vol., p. 247, the Supreme Courtof Pennsylvania decided, “ that a request, by a father, to a physician, to attend his son, then of full age, and sick at the father’s house, raises no implied promise on the part of the father to pay for the services rendered.”

A party who seeks to make another liable for the debt of a third person, must prove such liability with reasonable certainty, or he cannot recover. This principle has been repeatedly recognized by this court.

Taking this view of the case, we do not consider it material to examine into the question, whether there are any corroborating circumstances to support the testimony of this single witness, as required by the 2257 article of the Civil Code, where the matter in dispute exceeds five hundred dollars.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be reversed, and that there be judgment for the defendant, as in case of nonsuit, with costs in both courts.


source: Caselaw Access Project

author: S udell, J.

license: Public Domain

text:
    Blanchard v. Davidson.
    Where tlie claim for rent is based upon the mere occupancy of the defendant, without proof that this occupancy was as lessee, or sub-lessee, a provisional seizure cannot be sustained.
    from the District Court of the Parish of Jefferson, Clarke, J.

      Michel, for plaintiff.

      Oainnie and Haynes, for defendant.
   By the court:

S udell, J.

The petition, which is vague and obscure, does not allege a relation of lessor and lessee between the plaintiff and the defendant, nor any such state of facts as would create the lessor’s privilege upon the movables belonging to Davidson, and existing on the property described in the petition. See Fisk v. Morris, 11 R. R. 280.

In the absence of a privilege there was no foundation for the writ of provisional seizure.

If the plaintiff was not entitled to a provisional seizure, his claim to sue Davidson, in this action in the parish of Jefferson also fails, the defendant being a resi-, dent of New Orleans.

It is to be observed, that our remarks are confined to the claim presented in the petition, which is merely for a personal judgment for a sum of money, with the privilege of lessor, without any distinct, intelligible averments, showing that Davidson occupied the premises’as lessee or sub-lessee during the time for which rent is claimed.

From the evidence taken at the trial, it seems that the claim for compensation for the use of the premises, is based upon the defendant’s mere occupancy of the premises. See the case of Fisk v. Morris, above cited. We are therefore of opinion, that the defendant’s exception and motion to set aside the provisional seizure, should have been sustained. See C. C. 2675, 2676, 2639, 2640. C. P. 287.

It is therefore decreed, that the judgment of the district court be reversed, the provisional seizure be set aside, and the petition be dismissed, as in case of nonsuit, the plaintiff to pay costs in both courts.


author: Rost, J.

text:
    Adam Frederick v. Etienne Brulard,
    A surveyor ordered to trace a line under a former survey, is bound to follow it, without regard to the title papers, or the variations of the compass.
    APPEAL from the District Court of the parish of Plaquemine, Rosseau, J.

      Lombard, for plaintiff.

      Foulhouse, for defendant.
   By the court :

Rost, J.

This was originally an action of bornage. This court determined, that the true boundary between the land of the plaintiff and that of the defendant, was the division line represented on a plat of-survey of those lands made by Barthelemy Lafon, on the 15th April, 1806; and, as it did not appear from the evidence, that the marks showing the position and course of that line were still visible, the case was remanded for the purpose of having that line traced, and of putting the parties in possession under it.

When the case returned to the district court, the surveyor general, on the motion of the plaintiff’s counsel, was ordered to establish said line in conformity with the-decree of this court. In obedience to this order, the boundary line was established by the deputy surveyor, Harrison, as running N. 18 deg. E. at the time; and he returned theplatofsurvey into court, together with the proces verbal of his field operations. The plaintiff then took the following rule : “ On motion of Lewis Lombard, Esq., of counsel for plaintiff, and on giving the court to understand and be informed that M. Plarrison, deputy surveyor of Lewis Bringier, Surveyor General of the State of Louisiana, had, on the 22d of January, 1852, filed a plat of survey and a proces verbal of his operation in establishing the line of division between Brulard and Frederick’s estates ; that on said plat, he represents the line North, sixteen degrees East, in 1851, in red, and the line North, eighteen degrees East, in 1851, by a'black line, and represents said line to be the line in dispute, and reports it to be such.

It is ordered by the court, that Etienne Brulard, the defendant, do show cause, on Saturday, the 31st day of January, 1852, why the red line above described, should not be established as the one described by Barthelemy Lafon, in the plat of the 15th April, 1806, as dividing the estates of Etienne Brulard and Adam Frederick.

The answer to this rule was, that it assigns no error in the survey, and sets forth no grounds or reasons for setting aside or altering the report of the surveyor. It contains also a prayer, that the report be homologated and the parties putin possession under it.

The defendant prevailed, and the plaintiff has appealed.

A great many objections have been raised in argument, which, it is manifest under the pleadings we cannot notice. The rule taken by the plaintiff, assumes the capacity of the deputy surveyor, and that the survey was regularly made and returned into court; and merely suggests that the red, and not the black line on the plat, is the true line of division. No evidence whatever has been adduced in support of that position, but the plaintiff’s counsel has attempted to prove it by astronomical calculations. And it may be conceded, that he has shown, that the surveyor did not remain on the spot a sufficient time to ascertain the exact variation of the compass there, on the day he went. This, however, is of very little consequence. He states, that he proceeded in the survey with the assistance of A. D. Hémécourt, another practical surveyor; that after careful search, they discovered the bornes planted by Lafon, on the division line, in 1806 ; and that he conformed to them in making the survey.

There is nothing in the record to disprove the declaration of the surveyor, that the landmarks found by him were those of Lafon’s survey; and the fact is not even put at issue. It must, therefore, be assumed to be true. And it is clear, that, the old division line having been found, the surveyor was bound to follow it without regard to the title papers, or the variation of the compass. Zéringue v. Harang, 17 L. R. 349.

Whether the surveyor gave satisfactory reasons for the difference between the present bearing of the line, and that indicated by the plan of Lafon, is quite immaterial. The guidance of the stars is not resorted to, when the path to be followed is visible on the earth.

Judgment affirmed, with costs.


author: Siideli,, J.

text:
    Stillman v. Waterman.
    The admission in the answer, that services were rendered, is not an admission of their value

    APPEAL from the Third District Court of New Orleans. Kennedy, J.

      Stocton and Steele, for plaintiff.

      E. H. Durell, for defendant.

      Plaintiff, in effect, requested the court to instruct the jury, that as the plaintiff alleged the services to be worth S500, and as it was not denied, it must be considered as admitted that the services were worth that sum. The court refused; and instructed the jury, that “ the defendant admitted the services, but not their value." R.

   By the court:

Siideli,, J.

We think the district judge did not err in telling the jury, that the defendant’s answer admitted the rendition of the services alleged in the petition, but not their value.

The only remaining question in the case is, whether the amount paid by the defendant is a sufficient compensation for the services rendered to him by the plaintiff. The sum awarded by the jury seems to us low; but we are not prepared to say, that the verdict is so manifestly erroneous, as to authorize a reversal.

Judgment affirmed, with costs.


text:
    F. Pillot, wife of J. Barisiem, v. T. M. Cooper, Curator.
    A person whose property has been sold without his consent, may appeal from a decision affecting the property, although no party to the suit, under art. O. P. 571.
    APPEAL from the Third District Court of the Parish of Jefferson, Clarice, J.

      Charles Fitz, for C. Fraisse, appellant.

      J. J. Michel, for plaintiff.
   By the court:

Rost, J.

The defendant, as curator of the succession of Yoriclc Privat, is in the possession of the steamer Daniel Boon, which was the joint property of Privat and Ccesar Fraisse. The plaintiff claimed the boat from him under a sale to her, by Privat acting for himself and as agent of Fraisse.

The answer contains a general denial, and an averment that the sale alleged is a forgery, or was otherwise obtained by fraud.

The signature of Privat, to the act of sale,! was proved, by a comparison of handwriting with a signature in a notarial act, which is not in the record, and upon that evidence there was judgment in favor of the plaintiff, for the steamer.

Fraisse took a suspensive appeal, on the ground that he is aggrieved by the judgment; and alleges, as errors, that under the defence, the signature of Privat is not sufficiently proved; that there is no evidence of the authority of Privat to sell his half interest in the boat; that he never gave such authority, and that the judgment, if executed, would work him an irreparable injury.

The appellant lives in Vicksburg. There is nothing to show that he had notice of this suit; and it is true, as he alleges, that the record contains no evidence of the authority of Privat to sell.

It would seem, on the contrary, that Privat continued to have the control of the boat, after the alleged sale.

We think this a proper case for the application of article 571 of the Code of Practice, and that the ends of justice will be promoted by reversing the judgment, so far as appealed from, and remanding the case, to be tried between the appellant and the plaintiff.

It is ordered that the judgment, so far as appealed from, be reversed, and the case remanded for further proceedings between the appellant and the plaintiff, who is adjudged to pay the costs of the appeal.


author: Dunbar, J.

text:
    Joseph A. Wilder v. Elias Brush.
    An arrest will lie for damages for any injury sustained by the plaintiff, either in his person or property.
    APPEAL from the Fourth District Court of New Orleans, Slrawbridge, J.

      Marr and Roberts, for plaintiff.

      L. E. Simonds, for defendant.
   By the court:

Dunbar, J.

This is a suit brought against the defendant, a citizen of this State, to recover damages for false imprisonment. The plaintiff in this case commenced his action by an arrest of the defendant, who took a rule upon him to set aside the arrest, upon the ground that the demand of the plaintiff is ex delicto or for damages for an injury to his person and reputation; and that the law does not permitan arrest in such an action for damages.

The district judge made the rule absolute, and discharged the defendant from arrest; from which judgment the plaintiff has appealed.

The Code of Practice, article 214, provides, that “ such arrest may be ordered in all demands brought for a debt, whether liquidated or not, when the term of payment has expired, and even for damages for any injury sustained by the plaintiff, either in his person or property.”

It is true that it has been often held by this court, that there could not be an attachment for such a cause of action ; but there is a manifest difference in the above article of the Code of Practice and article 242 of the same Code, which declares, that “ the property of a debtor may be attached in the hands of third persons, by his creditors, in order to secure the payment of a debt, whatever may be its nature, whether the amount be liquidated or not, provided the term of payment has arrived.” The latter is limited to debts, and by the interpretation of this court, is extended only to all actions arising ex contractu, but no further ; the former, article 213, extends even to any damages for any injuries sustained by the plaintiff, either in his person or property.

Why our Legislature should have thought proper thus to guard more securely the rights of property than of person, it is not for us to determine. We find the law thus written, and have no power to change it. “ When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit. Civil Code, art. 13. The distinction between odious laws and laws entitled to favor, with a view of narrowing or extending their construction, cannot be made by those whose duty it is to interpret them.” Civil Code, art. 20.

It is therefore ordered, that the judgment of the district court be reversed, and the rule to set aside the arrest discharged, and this case remanded for further proceedings according to law. The costs of this appeal to be paid by the defendant.


author: Slidell, J.

text:
    John Blaffer v. P. Herman.
    Where the conduct of the first endorser of a note, was calculated and intended to induce the notary’s clerk to make no further attempt to find the maker, and present the note for pay. ment, and where he undertakes himself to have the money forthcoming, in an action against him, he cannot relieve himself from liability, on the ground that no presentment for payment was made on the maker.
    from the Fifth District Court of New Orleans. Buchanan, J.

      C. Roselius, for plaintiff.

      F. Haynes, for defendant.
   By the court:

Slidell, J.

The defendant is sued as the endorser of a promissory note, made by Helwig. He resists the claim on the ground, that no demand was made of the maker. The note is dated in New Orleans ; butthe maker resided in the adjoining town, Lafayette. No demand of payment was made of the maker. The protest, which was made by a New Orleans notary, at the request of the bank in which the plaintiff had lodged it for collection, states, that he made diligent inquiry for the drawer on the note, in order to demand payment thereof, particularly of the first endorser, who informed him, that the maker resided in the adjoining parish of Jefferson; the said endorser promising, that said note would be paid the next morning.

The notary’s clerk was examined at the trial, and_testified, that he exhibited the note to the endorser, in the afternoon of the day of its maturity, who told him the maker lived in the parish of Jefferson, and also told him not to protest the note, and that he would go and see the maker, and settle the note the next morning. The testimony of the notary’s clerk is corroborated by another witness, who said, that two or three days after the note fell due, the defendant told him that the notary had called upon him with the note, and that he told the notary, he would go and see the maker, and get him to pay it; and that he did go to the maker for that purpose, and was very much surprised to find that he had not the money to pay the note.

It is obvious, that this course of conduct on the part of the endorser, was calculated, and was intended to induce the notary's clerk to make no further attemptsfind the maker, and present the note for payment. And in this connection, we may observe, that there is little weight in the argument drawn, from the fact, that the notary’s official sphere of action was limited to the parish of Orleans ; for he or his clerk, in their individual capacities, were competent to make a presentment out of the parish. This could have been accomplished in a half hour’s walk to the neighboring town ; or, upon notifying the bank, it could have sent a messenger there in season. Although it is usual to employ notaries to protest notes, it is not necessary to do so.

The general rule of the commercial law is undisputed. The endorser is liable, after due diligence by the holder, to obtain payment of the maker, and I notice that payment has not been made. These being conditions implied in the contract of endorsement, his liability depends upon their fulfillment. But, although such is the general rule, it is equally clear that he may waive, or modify privileges, which the law implies for his benefit. And when he so acts, as to manifest his willingness to waive them, and the holder may be fairly considered as having regulated his conduct accordingly, and as having abstained from doing what otherwise he might have done for his own protection, it would operate as a fraud upon the holder, if the endorser were afterwards permitted to avail himself of the omission.

In the present case, the defendant must be considered as having invited the holder to desist from further search for the maker, and to have undertaken to see the maker himself, and have the money forthcoming. Quoties per eum, cujus interest conditionem non impleri, fiat quominus implea ur, perinde haieri ac si conditio impleta faissct. Leg. 161, ff. de regulis juris. Civil Code, 2035. Lincoln and Kennebeck Bank v. Page, 9 Mass. 157. Barker v. Parker, 6 Pick. 82. Boyd v. Cleveland, 4 Pick, 524. Story on notes, §271.

The notarial'fees of protest which the plaintiff claims, cannot be allowed. The notary may have thought it proper to spread upon his notarial record what had been done, in order to preserve for his employer authentic and permanent evidence under the statute. But to charge the defendant with the expense of doing so, would be in violation of the understanding between him and the notary.

It is therefore decreed, that the judgment of the district court be reversed; and that the plaintiff receive from the defendant the sum of $550, with interest at the rate of eight per cent per annum, from the 26th March, 1851, until paid, and costs in both courts; but without costs of protest. 'J


author: Preston, J.

text:
    Widow Dufresne v. M. Haydel.
    The husband of the plaintiff, having 155 80-lOOth acres in his front tract, paid into the hands of the receiver of public monies, $145 75, for a certificate of the entry of 119 acres of the lands in his rear. Nicholas Haydel, under whom the defendant holds, owned a front tract, containing 249 54-100th acres, and paid into the hands of the receiver of public monies, the price of 248 acres, for his entry of the back lands. The whole quantity of land in the rear, subject to their entries, was 322 48-10Qth acres. Of this quantity, a surveyor of the United States allotted to Haydel 243 20-100th acres, and Dufresne 79 28-lOOtli. His survey was approved, March, 1831, by the surveyor of public lands, and a patent was issued to Haydel for 243 20-100th acres of the land, in 1845. The plaintiff claimed that the land should have been divided, proportionably to the quantity in the front tracts, and brought suit to obtain thatdivision. Her action was sustained. Held: The authority given, by the act of Congress, to the surveyor, to make an equitable division of the land between the claimants, is in affirmance of the act authorizing each [front proprietor] to purchase an equitable proportion of the land, [in his rear,] aud neither adds any thing to, nor takes any thing from, the rights of the parties ; he is a ministerial officer, bound to perform this duty, not as he may choose, but equitably; and if he does not, the injured party may resort to a court of justice, or there would be a right without a. remedy, in derogation of the first article of our Code of Practice.
    The act of Congress expressly entitles the plaintiff to an equitable division of the back lands with the only proprietor whose claim came in conflict with hers.
    In the sale of the public lands, the government andlts purchasers must be governed by the same principles which apply to individual vendors and^V'endees.
    When a patent issues, it irrevocably divests the government of title, in favor of the patentee; but if the land already belongs to an individual, either by sale" or legal confirmation, the subsequent issue of a patent to another person, inures to the benefit of the true owner.
    APPEAL from the District Court of the Parish of St. Jéan Babtiste, Duffel, J.

      St. Paul, for plaintiff..

      Louis Janin, for i&fendant.
   By the court: (Eustis, C. J., absent.)

Preston, J.

The plaintiff, and defendant are respectively proprietors of tracts of land, fronting the Mississippi river, immediately above and below a point on the river, or convex bend, which were confirmed to them.

Congress, by the 5th section of an Act, approved the 15th of February, 1811, provided, “ That every person who, either by virtue of a French or Spanish grant, recognized by the laws of the United States, or under a claim confirmed by the commissioners appointed for the purpose of ascertaining the rights of persons claiming lands in the Territory of Orleans, owns a tract bordering on any river, creek, bayou, or water course, in the said Territory, and not exceeding in depth forty arpents, French measure, shall be entitled to a preference in becoming the purchaser of any vacant tract of land adjacent to and back of his own tract, at the same price and on the same terms and conditions as is or may be provided by law for the public lands in said Territory. And the principal deputy surveyor of each district, respectively, shall be and he is hereby authorized, under the superintendence of the surveyor of the public lands south of the State ofTennessee, to cause to be surveyed the tracts claimed by virtue of this section. And in all cases where, by reason of bends in the river, lake, creek, bayou, or water course, bordering on the tract, and of adjacent claims of a similar nature, each claimant cannot obtain a tract equal in quantity to the adjacent tract already owned by him, to divide the vacant land applicable to that object between the several claimants, in such a manner as to him may appear most equitable.” 1 Land Laws, 588.

This provision of law was revived and reSnacled by the 7th section of an Act, approved the 11th of May, 1820. 1 Land Laws, 779.

Those, under whom the plaintiff and defendant hold their lands respectively, availed themselves of the preemption accorded by this law. The husband of the plaintiff, having 155 80-100th acres in his front tract, paid into the hands of the receiver of public monies $148 75, for a certificate of the entry of 119 acres of the lands in his rear. Nicholas Haydel, under whom the defendant holds, owned a front tract containing 249 54-100th acres, and paid into the hands of th 3 receiver of public monies, the price of 248 acres, for his entry of the back lands under the law.

The whole quantity of land in the rear subject to their entries was 322 48-100th acres, as to which there was no conflict between them and any other proprietors. Of this quantity, a surveyor of the United 'States allotted to Haydel 243 24-100th acres, and to Dufresne 78 28-100ths. His survey was approved, in March, 1831, by the surveyor of public lands south ofTennessee river, and a patent was issued to Haydel for 243 20-100th acres-of the land, in 1845.

If the land subject to the entries had been divided between the claimants proportionably to the quantity contained respectively in their front tracts, Haydel would have received 201 acres, and Dufresne 121 acres. Mrs. Dufresne claims that the land should have been divided proportionably to the quantity in the front tracts, and brings this suit to obtain that division.

The Act of Congress was the foundation of the title to the lands, and fixed an exact rule by which the quantities to be sold to the respective parties was to be ascertained. An equitable division, in case of deficiency in quantity for each, is a ratable division in proportion to the quantities in the front tracts, unless something prevents it. The original instructions of Mr. Gallatin, the Secretary of the Treasury, for the execution of the Act of 1811, indicated this rule to the surveyor and the commissioners of the general land office, by a letter of the 14th of July, 1845, laid it down as an arithmetical rule to govern such cases.

The surveyor was to measure the land for each purchaser, and run the line of division between them.

It was a ministerial duty There could, in this case, be but one equitable line: that which would give the plaintiff 121 acres and to the defendant 201 acres. A fixed rule was given to ascertain the quantity of each, and any deviaafion from it, was in violation of the Act of Congress, and gave no rights to the defendant, and could take away none from the plaintiff.

The Act of Congress thus expressly entitled the plaintiff to an equitable division of the back lands, with the only proprietor whose claim came in conflict with hers. An extraordinary position of the tracts might possibly render a proportional division inequitable. But, in this case, there is no pretence, much less reason, offered for not having made a proportionable division. By the bare inspection of the map, it will be seen that the surveyor might, by extending the side lines of each proprietor’s front tract, have given each about his proportion of the back lands. That this should have been done, when possible, we have no doubt, was the intention of Congress.

By an inspection of the map, it is palpable that not an equitable, or even discretionary, division of the land, was made between the two claimants. The surveyor simply took from one party forty acres of land, which he had purchased from the government, and for which he had paid, and for which he had the best possible title, by an Act of Congress, and gave it to another man who had no title whatever to it but the will of the surveyor. This was a most inequitable proceeding, directly in conflict with the Act of Congress, and cannot be recognized by a court of justice.

It is said, however, that the disposition of the public lands is in the power of Congress under the direction of their officers, and that they have given a patent to the defendant for the lands in controversy, which is a complete divestiture of the title of the United States in favor of the defendant.

In the sale of the public lands, the government and its purchasers must be governed by the same principles which apply to individual vendors and vendees. 9 Peters, 760.. Vattel’s Law of Nations, book 1, ch. 17, § 199 ; ch. 23, § 295; book 2, ch. 7, § 83; ch. 1, § 14.

Now the government, by the entry of the register of the land office, and the receipt of the purchase money by the receiver of public monies, sold a tract of land to the vendee, containing 119 acres, if such quantity could be obtained, in the rear of his front, without infringing upon the rights of another person purchasing a tract in his rear under the same law, and upon the same terms and conditions. There were two acres more than that quantity, without, in any manner, conflicting with the rights of the other vendee.

Could an ordinary vendor, having made such a sale, afterwards take forty acres of the land, so sold, and give it to his other vendee? His deed to that effect would have no effect. So neither can the patent issued by the United States, under similar circumstances, have that effect.

As vendors of land, perhaps, the government could not, for their own exclusive interest, succeed in annulling a patent, unless in those cases of error, or fraud, for which an ordinary vendor could annul his deed. But latterly it has been held by the Supreme Court of the United States, that they would disregard patents obtained contrary to law, in cases where individuals had previously acquired under the government an adverse title. In the case of the United States v. Hughes, that tribunal, at its last term, disregarded and annulled a patent, the United States suing for an individual, to whom they had first legally sold the land. So in the case of Marsh v. Brooks, and Menard v. Massey, 8 Howard, 233 and 293.

We have examined the case of Pepper et als. v. Dunlop, 9 R. R. 287, cited by the defendant’s counsel, and find nothing decided in it adverse to these principles; nor in the opinion of the Attorney General Butler, 2 vol. Laws and Opinions, &c., relating to public lands, p. 213. The case of Bagnell et als. v. Broderick, principally relied upon by the counsel, was decided upon the technical distinction between law and equity, and between ajegal and equitable title, which does not exist in this State. And, even .in that case, the dissenting opinion of Justice McLean appears to us conclusive against the correctness of the decision, in which the majority of the court were unable to give relief against the grossest possible fraud, and that palpable on the face of the record.

The true principle is this: that the government is, in reality, the owner of the land. When the patent issues, it irrevocably divests the government of title, in favor of the patentee; but if the land already belongs to an individual, either by sale or legal confirmation, the subsequent issue of a patent to another person, inures to the benefit of the true-óWBer.

In this case the Act of Congress was the authority to the register and receiver to sell the land in controversy to the plaintiff, by preemption, in consideration of his being the proprietor of the front tract. His entry of the quantity to which he was entitled under the Act, and payment of, the price, was the purchase from the government. This sale divested the title of the United States, and vested it in the plaintiff. Of the quantity, which he was entitled by the Act to purchase, he never can be divested by the government, which cannot sell a second time, nor retake that which has. been lawfully sold ; nor by an adverse claimant by virtue of a concurrent or subsequent purchase.

The authority given by the Act' of Congress to the surveyor, to make an equitable division of the land between the claimants, is in affirmance of the Act authorizing each to purchase an equitable proportion of the land, and neither adds any thing to, nor takes any thing from, the r^hts of the parties. He is a ministerial officer, bound to perform this duty, not as he may choose, but equitably ; and if he does not, the injured party may resort to a court for justice, or there would be a right without a remedy, in derogation of the first article of our Code of practice.

It is true,’Congress has confided much to the judgment of the surveyor, by directing him to divide the land in such manner as to him may appear equitable. And, if we had reason to believe that he really exercised his best judgment, or bad even performed the duty in the presence of the parties, or having notified them to be present, so as to have afforded the injured party an opportunity of seeking redress from the higher officers of the government, we should be induced only by a palpable violation of equity to reverse the discretion confided to him. But in the present case it does not appear that the parties, interested in the survey, were present, or notified of the time it was to take place; and it is manifest that the surveyor did not attempt to make an equitable division between them. Such being the case, it was at least incumbent on the defendant to suggest or show some reason for his taking the forty acres of the plaintiff’s land,- and in default of his so doing, a court is bound to presume thnt the surveyor acted ex parte, and under the unjust influence of him who claims more than his share of the land, without reason, or even pretext, to justify it.

Both patents and surveys are so constantly made ex parte, and often without sufficient information by the ministerial officers of the general government, that they cannot be conclusive upon adverse claimants, and must nepessarily be subject to judicial investigation and decision, when manifestly made in violation of Acts of Congress and private right.

The prescriptions of ten, twenty and thirty years, are plead. It is not clearly established by the evidence, that the plaintiff cannot obtain the quantity of land to which he is actually entitled, without taking any part of that which is actually possessed by the defendant, or by others for him. Even if it be absolutely necessary to do so, this is strictly and in good faith an action to settle boundaries which are imprescriptible. Code, art. 821.

For these reasons, the judgment of the district courtis reversed; and it is adjudged and decreed, that a line be run by a surveyor, appointed by the district court, so as to give the plaintiff the quantity of one hundred and nineteen acres of the lands in the rear of his front tract; and that the defendant be condemned to pay the costs of the appeal; the costs of the disirict court, and the expense of the survey, to be borne equally by the parties ; and the case is remanded to the district court, to direct the survey and make the division.

SniDEtn, J., dissenting.


author: Preston, J. Rost, J.

text:
    W. C. Goodrich v. Asa Pattingill et al.
    The plaintiff obtained an attachment against the defendant, bat the sheriff did not take actual possession of the property under the writ, and no act of possession by him or his successors is shown, for five years after its return. About five years after that time, the attaching creditor had a curator ad hoc appointed to defendant, obtained judgment, and seized the lots under an execution. In the meantime, and within two years from the date of the attachment, defendant sold the property, and it passed iuto the hands of purchasers who were ignorant of the attachment. Held: The law required that the sheriff should have seized and detained the property; that he and his successors should have taken charge and kept possession of it; and for the failure of Goodrich, the attaching creditor, to have seen this done, and to have prosecuted his suit with diligence, innocent purchasers of the property should not suffer.
    Sheriffs must seize actually, and not fictitiously, where the law requires; and third persons must not suffer by their neglect to do so.

      APPEAL from the Third District Court of the Parish of Jefferson, Clarke, J.

      Dunlap and Clarke, for plaintiff.

      Ogden and Duncan, for defendants.
   By the court:

Preston, J.

The evidence satisfies ns that the sheriff did not, on the 6th of December, 1836, take actual possession of the lots in controversy, by virtue of Goodrich’s attachment. He had seized, and was about to sell them on that day, in the suit of Kohn v. Pettingale. He returned the writ of attachment on the same day that he had seized the lots under it. No act of possession by him or his successors in office is shown, for five years afterwards. No steps were even taken in Goodrich’s suit during that period. About five years after the return of the writ, he had a curator ad hoc appointed to Pettingale, obtained judgment, and seized the lots under an execution.

The seizure under the writ of attachment, was a paper seizure, and could be found only among the papers of a dormant suit, in the parish court of the parish of Jefferson. ' The law required that the sheriff should have seized and detained the property, that he and his successors should have taken charge of, and kept possession of it. And for the failure of Goodrich to have seen this done, and to have prosecuted his suit with tdiligence, innocent purchasers of the property should not suffer.

Now, it appears that Pettingale sold the lots to D. McMillen, in 1837, and he to Bach, shortly afterwards; that the latter fenced them in, and publicly sold or disposed of some of them, and the owners are made defendants in this case. If the sheriff and his successors in office had actually seized, detained, taken charge of, and kept possession of the lots, and Goodrich had prosecuted his attachment suit with diligence, all this would npt have occurred. It occurred because it was a paper attachment, apparently abandoned, for years; and should not, therefore, affectthird persons. It should not be patched up by an amended return, made fifteen years afterwards, by a person no longer sheriff, and long after a tai’dy final judgment had been rendered in the case. Nor should parol evidence, to bolster it up, be admitted, to the prejudice of the titles of purchasers of the property not knowing of the attachment.

Sheriffs must seize and hold actually, not fictitiously, where the law requires it; and third persons must not suffer by their neglect to do so.

It is next contended, that the validity of the attachment has become the thing adjudged in this very suit. Admitting that Goodrich may avail himself of this defence, without pleading it in the district court, he has not clearly established the plea.

The judgment of the Supreme Court, reported in 9 R. R. 393, supports the plea of res judicata more strongly than any other decree in the case. Thefacts leading to that decision must therefore be examined.

Goodrich seized the lots under his execution, in 1842. Bach enjoined the sale for himself and his vendees. The Parish Court of Jefferson dissolved the injunction. The First District Court, on appeal, reversed that decision, and made the injunction perpetual, on the ground, that the lots held by Bach, and now seized, were not identified with those attached by Goodrich. The Supreme Court affirmed the judgment of the district court, perpetuating the injunction. The decree is, therefore, in favor of Bach, and yet is urged as adjudging a matter against him — that Bach’s lot had been attached in 1836. And yet, this is a matter which could not be adjudged at all, until the lots, about to be sold in 1842, were identified with lots supposed to have been attached in 1836; and for the very want of this identification, the injunction was made perpetual.

But, there was a reservation in the decree, in favor of Goodrich, authorizing him to prosecute the sale of the lots, on proving their identity with those attached by him. This assumes, that the lots about to be sold were attached, if identified with those attached; but it is not a decree to that effect; nor could any decree to that effect be made until the identification.

In the opinion, the court nowhere state it as a matter of judgment by them, that the attachment had been legally executed. It is merely stated, that “it is urged that the lots in question, having been attached in 1836, in the suit brought by Goodrich against Pettingale, they could not be sold to his prejudice.” “If this were clearly made to appear,” the court continues to say, “the validity of the subsequent sale might well be questioned, as a debtor, whose property is attached, cannot divest himself of it so as to defeat the rights of the attaching creditor.”

These, which are the strongest expressions in support of the validity of the attachment, in any part of the opinion, amount to neither a decision for nor against its validity.

The expressions in the opinion are stronger in favor of Bach; for, the court say, “ having shown title in his assignees, it was incumbent on the defendant to show clearly, that the conveyance to McMillen was made in fraud of his vested rights under his attachment, and was consequently null and void as to them.” In this long protracted litigation Goodrich has never shown that. To do so, it was incumbent on him clearly to have shown vested rights, that is, in this case, a valid and continued attachment, or, at least, known to Bach, if only a paper attachment, at the time of his purchase. These things, alone, could render the purchase illegal as to the vested rights.

Even if the original attachment had been actual, and valid, it would raise a serious question, whether it would continue as to third persons, the sheriff notoriously having noi possession, and the plaintiff failing to prosecute his suit with diligence, when they acquired the property.

The decretal part of the opinion is explicit, that Bach's injunction should be perpetuated. The reservation in favor of Goodrich was not put in the form of a decree, and amounts to nothing more than that he should not be prejudiced by the decree. As the Supreme Court, therefore, in neither its opinion nor decree, declared the attachment valid, and, as the district court had not passed upon its validity at all, we cannot consider the validity of the attachment a matter adjudged. If we even should consider the decree in favor of Bach with the reservations, as a nonsuit against him, it would amount only to a judgment that the parties should “ fight their battle o’er again.” And so the parties considered it, for, in the present suit, the main contest was as to the validity of the attachment, which Goodrich bolstered up with wonderful skill, by amendments to the sheriff’s return, and parol testimony; and Bach resisted, as incurably defective.

Believing that the matter in controversy has never been adjudged between the parties, and that the attachment was invalid, because the lots in controversy were never taken into the possession of the sheriff, or, at least, that he did not retain them in his possession, so that they were purchased, possessed, and sold by the appellee, without a knowledge, so far as proved, of the attachment.

It is affirmed, with costs.

Rost, J.

The record in this case was first given to me, and I had come to the conclusion that all the questions raised, except that of the identity of the lots, were closed by the decisions in 9 R. R., and 4 Ann.; but, as two of my brethren are of opinion, that the plea of res judicata is not made out, I must yield my opinion, so far as to agree with Mr. Justice Slidell, that the question is doubtful; and, if doubtful, that the plea cannot be sustained. I agree in the opinion of the majority of the court, as to all other questions on the case,

Application for re-bearing refused.


author: Eüstis, C. J.

text:
    Celeste Josephine Beale v. Samuel Ricker, Jr.
    In all questions of lesion, the value of the property sold, at the time of the sale, is the rule by which the lesion is to be ascertained. Code 1805. If the-value is not fixed within a certain range, by the evidence, the lesion is a matter of conjecture, and must be considered as not proved.
    from the District Court of the Parish of Jefferson, Clarke, J.

      Schmidt, for plaintiff.

      Ogden and Duncan, for appellant and defendant.
   By the court: (Preston, J., declined sitting.)

Eüstis, C. J.

This action is brought to rescind the sale of the undivided fifth of the undivided half of a tract of land, in the parish of Jefferson, about a league and a half above the city of New Orleans, on the left bank of the river, measuring about eight arpents front, and converging to a point at about one hundred arpents in the rear, together with an equal proportion of all the improvements, rights and privileges thereunto belonging. The sale was made by the plaintiff, to the defendant, for the price of three thousand dollars, for which the defendant gave his bond to the plaintiff’s order, payable on or before the 15th of March, 1856, the interest at eight per cent being payable semi-annually. The sale was made in the city of New Orleans, and bears date the 17th March, 1846.

The several grounds on which the sale is sought to be rescinded are : 1st. The failure of the defendant to pay the price. 2d. Deception and fraud on his part, by which he obtained the land for a much less price than its value; and 3d, lesion beyond moiety in the price.

The case was submitted to a jury, who found a verdict for the plaintiff on the ground of lesion, and not fraud, fixing the value of the land, on the day of the sale, at $6250.

The only proof of any default on the part of the defendant to pay the interest, is a demand made on the 6th of June, 1849, for two years of arrears, two hundred and eighty dollars, followed by a protest for non-payment. The suit was filed on the 18th of June of that year.

On this verdict the court rendered a judgment in favor of the plaintiff, rescinding the sale of the properly described in the petition, but fixing the value, at the day of sale, at $6250, and allowing the defendant ninety days from the date of the final decree to pay the supplement of the price and retain the property; the defendant to pay costs. From this judgment both parties have appealed.

Had this action been one to rescind the sale solely on the ground of the nonpayment of the price, it might have been necessary to consider this ground; but we are of opinion that the joining of the two other causes of action, to wit, fraud and lesion, in this action, supercede the necessity of examining its validity.

In relation to the charge of fraud, we do not think it is proved. Such probably was the opinion of the jury, which we infer from the verdict, and we do not feel ourselves authorized to rescind the sale on the ground of fraud.

The lesion found by the jury consists in the price being less than half of the value of the property sold, by the sum of one hundred and twenty-five dollars. The value, according to the finding, was $6260, and the price given was $3000, on the basis of cash.

The greater part of the testimony relied upon by the plaintiff, as supporting the charge of lesion, was taken nearly five years after the sale. The lesion exceeds one-half the value, by five per cent only, on the price. In examining the testimony we do not discover any means of fixing the value of the property, at the time of the sale, with the precision indicated in the verdict. We find it, on the contrary, quite a matter of uncertainty. We think it is necessarily so. The sale was not of a distinct parcel of land, but of an undivided interest of a fifth of a half of a tract of land, measuring about eight arpents, fronting the river, &e., the value of which depended almost entirely upon speculation, and liable to fluctuate accordingly. We do not find in the evidence any standard by which the value, at the time of sale, can be tested, which would authorize a court or jury in rescinding the sale on account of lesion beyond moiety. It is in proof, that this whole tract had been in litigation, and the joint ownership, with the litigants, was of itself an obstacle to its sale, by shares, at even its full value. The expense of a partition, to the purchaser, might exceed this sum of $125. In all questions of lesion the value of the property sold, at the time of the sale, is the rule by which the leison is to be ascertained. Code 1805. If the value is not fixed within a certain range, by the evidence, the leison is a matter of conjecture, and must be considered as not proved. Vide Code, 1805. Pothier Contrat de Vente, 343 et seq. Merlin’s Rep. verbo leison. Code Napoleon, 1677 et seq.

The judgment of the district court is therefore reversed, and judgment rendered for the defendant, with costs in both courts.

Application for re-hearing refused.


text:
      G. Kendall v. Wm. H. Brown.
    Defenndant may appear by counsel, or otherwise, to obtain the release of property attached, for any irregularities in issuing the attachment, or because the property was not liable to attachment, and, if released for such causes, the defendant would no longer be in court, by bis property, or person.
    But, when a defendant in attachment appears by an agent, and bonds the property attached* the agent will be considered as representing bis principal, so as to bind him to comply with the conditions of the bond, the essential condition of which is to defend the suit, or abide by the judgment that may he rendered. And it is not necessary, in such cases, to appoint an attorney to represent the absent defendant.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Hoffman and Ogden, for plaintiff.

      J. and J. Henderson, for defendant and appellant.
   By the court :

Rost, J.

The defendant is sued, as drawer of a promissory note. Being a non-resident, an attachment was duly issued. A lot, and a quantity of lumber, was attached. The copies of citation, and writs of attachment, were posted at the church and courthouse doors, as required by law.

Mandell appeared as the agent of the defendant, and released the property from the attachment on giving bond and security, conditioned that the defendant would satisfy such judgment as might be rendered against him.

An attorney appeared on behalf of the defendant, and applied to set aside the attachment, on the ground, that the surety on the bond was insolvent, anda nonresident.

After hearing the counsel and evidence, the application was dismissed, the plaintiff having justified the sufficiency of the security.

It is true, thatfor irregularities in issuing the attachment, or, if the defendant’s property was not liable to be attached, he might by counsel or otherwise, appear to release it; and, if released for such causes, he would be no longer in court, by his property, or personally.

But, in this case, the defendant, through an agent, had his property released, by giving bond, conditioned expressly, to satisfy any judgment that might be rendered against him in the case. He therefore substituted his bond for the property, and appeared, by an agent, in court, to take steps in the suit. The appearance by an agent, to release the property by bond, bound him to defend the suit, if he had a'defence, or to satisfy any judgment that might be rendered.

The plaintiff then served a citation on Mandell, as agent of the defendant, took a judgment by default, and had it confirmed. The defendant has appealed.

His counsel contends, that if the suit be an ordinary suit, no citation was served upon the defendant, and, therefore, that the judgment rendered against him is illegal and void.

And second, that, as an attachment suit, the judgment is invalid, because the defendant was not legally brought into, and represented in court.

The suit was not an ordinary, but an attachment suit; and, therefore, it is necessary to examine only the last ground offered for a reversal of the judgment.

The attachment having been regularly levied, and property of the defendant taken into the possession of the sheriff, it represented the defendant in court.

An appearance to bond the property must be construed as an appearance with power to comply with the conditions of the bond ; the essential of which were to defend the suit, or abide by any judgment that might be rendered in the case. It was then his interest and duty to defend his own suit. It was not the business of the court, to appoint an attorney to represent him, since he had appeared and bound himself to defend his own suit, or to pay such judgment as might be rendered against him. This is the necessary inference from art. 259 of the code, and the court could not exercise the authority, given by art. 260, to appoint an attorney to represent him, when he had appeared by his agent to bond personally, and, therefore, to defend the suit personally.

The judgment is affirmed, with costs.

Re-hearing refused.


text:
    W. E. Thompson v. R. R. Barrow.
    Defendant pointed out to the sheriff, for seizure under two executions, property which, he stated at the time, was far more than sufficient to satisfy them. The sheriff seized it under those executions, and under that of plaintiff at the same time. Held: We are not prepared to say, that, under the circumstances, the defendant was entitled to notice of seizure.
    APPEAL from the District Court of Terrebonne, Randall. J.

      J. H. Ilsley and J. D. Cole, for plaintiff.

      J. C. and A. Beatty, for defendant.
   By the court: (Slidell,!., absent.)

Rost, J.

There is no error in the judgment in this case. The defendant had pointed out to the sheriff for seizure, under two other executions, property which, he stated at the time, was far more than sufficient to satisfy them. The sheriff seized it under those executions, and under that of Thompson, at the same time. We are not prepared to say that, under those circumstances, the defendant was entitled to notice of seizure. Hewitt v. Stephens, 5 Ann. 640. But if he was, he had left his residence, under circumstances which authorized the appointment of a curator ad hoc, to represent him, and the service made upon the curator ad hoc, appointed by the court, is valid.

The words, “ acres or arpents,” used in the advertisement of the property, when the word “ acres,” should alone have been inserted, refer only to a considerable portion of the land seized, and the word “arpents,” taken in connection with the entire advertisement,- is mere surplusage. The advertisement, after describing this and other sections of land, the contents of which are given in acres, sums up the whole as follows : “containing, together, 1696 acres and-23-100ths.” They clearly showing, that the contents of section No. 40, were also measured in acres.

There was no pretext for enjoining the sale, and damages were properly allowed.

Thejudgmeñt is affirmed, with costs.


text:
    H. Stackhouse v. R. B. Kendall.

    In an action to recover the price of a slave, on the ground that he was unsound at the date of the sale, the plaintiff cannot recover where no post mortem examination was made, and the proof of the nature and duration of the disease rested exclusively upon the conjectural and conflicting opinion of physicians.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Hoffman and Ogden, for plaintiff.

      Howard, for defendant.

      This case is in the list of cases not reported by my predecessor. I have inserted it because Judge Emtis refers to it as authority in the case of Hooper v. Owens, p. 206. R.

   By the court:

Rost, J.

The plaintiff seeks to recover the price of a slave, purchased by him of the defendant, on the ground that at the time of the sale the slave had the consumption, of which disease he has since died. The defendant pleaded the general issue, and cited his vendor in warranty. Two antecedent vendors were successively called in warranty, and they all joined in the defence.

The plaintiff’s petition was dismissed as in case of nonsuit, and he appealed. The defendant asks that the judgment be amended so as to be final in his favor.

No post mortem examination of the slave was made, and the proof of the nature and duration of the disease rests exclusively upon the conjectural and conflicting opinions of physicians. According to the opinion of Dr. Stillette, the disease is not proved. On the other hand, the family physician of the plaintiff testifies, that the impression which the boy made on him, when he first saw him, was that he could not live; that his chest was uncommonly small and out of proportion with his height, and that in persons similarly constructed the lungs are not long enough to meet the secretions of blood with the body. He further states it as his opinion, that the slave died of consumption, and that the disease was the consequence of his constitutional conformation. If it be true that persons of small and narrow chests are invariably consumptive, this peculiar conformation is a visible defect, and the purchaser who buys a slave thus formed, might, perhaps, be considered as taking on himself the risk of consumption. But, be this as it may, the evidence of the existence of the disease, at the time of the sale, is such as we have repeatedly held we could not act upon. Executors of Dupre v. Prescott, 5 Ann., 592.

The physician who last saw the slave states, that the day before he died he was suffering from diarrhea and hectic fever, but that he showed no sign of approaching dissolution. It is proved that the cholera was among the plaintiff’s slaves at that time, and the rapidity and manner of the death point to that disease as the cause. The evidence induces us to believe that the fever was the result of debility, which followed the diarrhea; that the diarrhea may have been, as it usually is, caused by a change of food and water on a subject lately come to Louisiana; that it was aggravated by the damp and impure atmosphere of the pork warehouse in which the slave was employed, and that it terminated in cholera.

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

It is therefore ordered, adjudged and decreed, that the judgment in this case be amended, and that a final judgment be entered in favor of the defendant, and against the plaintiff, with costs in both courts.


text:
    Payne and Harrison v. The Independent Towboat Company.
    Privilege against a steamboat, for cord wood furnished by contract, allowed, under the act of the Legislature of the 15th March, 1842.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      C. Redmond, for plaintiffs.

      Z. Latour, for defendants.
   By the court:

Slidell, J.

We think with the district judge, thatthe 3d section of the Act of March 15, 1842, p. 282, conferred a privilege upon the appellee, whose claim was for cord wood, furnished to the steamboat by contract, and not taken against the will of the owner of the wood.

Judgment affirmed, with costs.

Application for re-hearing refused.

      The following is the section of the Act cited: Sec. 3. Be it further enacted, SfC., That the claim against steamboat owners for cord wood shall be of the first privilege against steamboats, for and during the term of eight months from the time that such claim accrues, as regards all boats running beyond the limits of the State, and three months for boats running within the limits of the State.


author: Rost, J. Rost, J.

text:
    Henry Boyce v. J. and H. Cage.—N. C. Wade, Warrantor.
    To constitute a sale per aversionem, there must be either a distinct or separate object described, such as the manor of dale, an island, an enclosed field; a sale is also considered as made per aversionem when it is for a total sum, and assigns to the land sold existing and visible boundaries, such as rivers, highways, fences, pieces of stone, iron or wood, showing the starting point and direction of the dividing line with the adjoining tenements. These last sales are held to be per aversionem on the presumption, that the parties to them have their attention fixed, rather upon the boundaries than upon the enumeration of quantity.
    APPEAL from the District Court of the Parish of Terrebonne, Randall, J.

      J. C. and A. Beatty, for plaintiff.

      E. A. Johnson, for defendants.

      John Ker and Connolly Mereier, for warrantor.
   By the court:

Rost, J.

This is an action of boundary between two parties, claiming under the same original grant. The title of the plaintiff is the oldest in date, and as there is no evidence of adverse possession by the defendant, to sustain the plea of prescription, the district court properly allowed the plaintiff the superficial quantity of land which his title calls for; and the only questions in the case, presenting any difficulty, are those which arise on the claim of warranty of the defendants.

The district court found the extent of the conflict between the adjoining tracts of land to be one hundred and fifty-four arpents 95-100. This being taken from the defendants, judgment was rendered in their favor, against the immediate warrantor, Tobias Gibson, for the price he had received. A like judgment was rendered in favor of Gilson against his vendor, Nathaniel C. Wade, but the court refused to give judgment in favor of Wade against the widow and heirs of Samuel Tanner, his vendor, and discharged them from the warranty. Wade alone has appealed.

He first contends, and we agree with him, that he is entitled to the same judgment against his vendors which will be rendered against him, and that there are no admissions in his answer, and that of Gilson, to the call in warranty, which can increase their liability as vendors.

But he further contends, that no judgment should have been rendered against the other warrantors, because the true boundary between the two adjoining tracts of land, of the plaintiff and defendant, must be ascertained by first fixing the boundary of another tract, called the Walker tract, adjoining that of the defendant above, and forming part of the same grant. That the quantity of land purchased by the defendants, in those two tracts, was 1800 superficial arpents; and that as no other location is given in the acts, except a front on the Bayou Caillon, the defendants have no claim beyond the quantity purchased. And as the boundary, established by the district court, leaves them 1846 arpents, they have suffered no eviction, and have no action in warranty.

The defendants, on the contrary, maintain that the sales under which they hold the two tracts of land, are sales per aversionem, and that, although in consequence of a bend in the bayou, the land contains more superficial arpents than is mentioned in the acts, they have a good title to all the land included within the boundaries, mentioned in the acts, and should be indemnified for the portion adjudged to the plaintiff.

There is no doubt that the boundary must be established by first locating the Walker tract; and the nature of the sale under which the defendants hold that tract, must determine the case. It is a sale from Turner to Cage, of a tract of land previously sold by him to Robert G■ Walker, containing about twenty-five arpents front on Bayou Caillon, by forty in depth, and having one thousand arpents in superficies, to begin above at a point distant twenty-five arpents from the upper line of the grant, of which it forms a part, and to run down the bayou for quantity.

To constitute a saleyier aversionem. there must be either a distinct or separate object described, such as the manor of dale, an island, an enclosed field. A sale is also considered ns made per aversionem when it is for a total sum, and assigns to the land sold, existing and visible boundaries, such as rivers, highways, fences, pieces of stone, iron or wood, showing the starting point and direction of the dividing line with the adjoining tenements. These last sales are held to be per aversionem, on the presumption that the parties to them have their attention fixed, rather upon the boundaries, than the enumeration of quality. Risk v. Fleming, Syndic.

In the sale of the Walker tract there was no fixed and visible boundary. If it were conceded that the upper boundary of the tract was given with sufficient certainty, because its-position might have been ascertained by a survey, no lower boundary at all is mentioned, the act merely stating, that the land is to have about twenty-five arpents front, and to contain one thousand superficial arpents. The attention of the purchaser could not, therefore, have been fixed upon the boundaries, and he must have relied upon the numeration of quantity ; that quantity alone the defendants could claim from their vendor. It is in evidence, that at the institution of this suit, they were in possession of eleven hundred and twenty-two arpents 95-100 under that title.

The tracts which they purchased from Gibson, and on which the conflict occurs, was sold as' containing seven and a half arpents front by forty deep, adjoining the land above mentioned ; and as the only boundary assigned had never been determined, this sale was not per aversionem, and only transferred to the defendants three hundred superficial arpents of land. It is admitted that at the institution of this suit, the defendants had taken possession, under it, of three hundred and ten superficial arpents.

The tract of twelve and a half arpents front, sold by Gibson to the defendants, being above the fixed boundary of the Walker tract, cannot be reached by the present action, and the excess in the contents of it, over the quantity sold, if any, may be left out of view. The defendants have, under their purchase of the two other tracts, an excess of one hundred and thirty-two arpents 95-100 over what was sold to them, and to that extent they have no claim in warranty; deducting this from one hundred and fifty-four 96-100, the admitted extent of the conflict between the plaintiffs and defendants, there remains twenty-two arpents and 100th, which, at the rate of $7 50 per arpent, there must be judgment against the appellant in favor of Gibson, and in his favor against Mrs. Tanner and the heirs of Lemuel Tanner. Tobias Gibson not having appealed, the judgment rendered against him, in favor of the defendants, remains undisturbed.

It is ordered, that the judgment in this case be reversed. It is further ordered, that Tobias Gibson recover from Nathaniel C. Wade the sum of $165 07¿ and costs in the district court. It is further ordered, that Nathaniel C. Wade have a judgment for the like sum against Mrs. Ellis Tanner, personally, or her assumption to pay the debts of Lemuel Tanner ; and also for their virile share against Joseph W. Tanner, Esther Tanner, Mary Tanner, Elizabeth Tanner, B. T. Tanner, Robert R. Tanner, all of age; and Washington Tanner, Bridget Tanner and Louisa Tanner, represented by Celeste Tanner, their mother and tutrix. It is further ordered, that one-half of the costs of appeal be paid by Tobias Gibson, and the .other half by Lemuel Tanner.

When two pieces of ground have been sold by one and the same contract, with the expression of the measure of each, and there be found a less quantity in one and a larger quantity in the other, the deficiency of the one is supplied by the overplus of the other, as far as it goes. C. C. 2475.

Same Case — On a Re-hearing.

By the court:

Rost, J.

In the original argument in this case, we were not referred to article 2475 of the Code, and we overlooked, on the decision, the singular disposition it contains.

On general principles, it is clear that the excess in the tract, above the fixed boundary, where the survey begins, could not have been brought in to supply a deficiency below; but the article quoted provides, in general terms, that when two pieces of ground have been sold by one and the same contract, as was the case here, with the expression of the measure for each, and there be found a less quantity in one, and a larger one in the other, the deficiency of the one is supplied by the overplus of the other, as far as it goes. Taking the two tracts together, the land remaining, after allowing the plaintiff his quantity, is more than the defendant purchased. The judgment must, therefore, be for the appellant, Wade, and the heirs of Tanner.

It is therefore ordered, adjudged and decreed, that the judgment heretofore rendered in this case, be set aside. It is further ordered, that the judgment of the district court, so far as it is against Nathaniel C. Wade, and in favor of Tobias Gibson, in warranty, be reversed, and that there be judgment in his favor against the said Gibson, with costs in both courts. It is further ordered, that the judgment discharging the widow and heirs of Tanner from the warranty, be affirmed.


text:
    Samuel H. Gilman v. Bonner and Smith, and Stillman, Allen & Co.
    The plaintilF was employed by agents, who disclosed their principals, with whom he corresponded directly, and to whom alone he rendered services. Held: That the agents were not bound.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Thomas Hunton, for plaintiff,

      Goold and Howard, for defendants.
   By the court;

Preston, J.

The plaintiff is an engineer. Stillman, Allen Sf Co. are the proprietors of the Novelty Iron Works of New York, and Bonner and Smith’ their agents in New Orleans. The suit is for a large amount, for services rendered by the plaintiff to the defendants.

The plaintiff alleges, that he was employed by Bonner and Smith, to go into the country parishes, to solicit and make contracts on behalf of Stillman, Allen Co., for the supply of engines and machinery for sugar mills, sawmills, and other purposes; that Stillman, Allen Co., executed same contracts, made by him on their behalf, corresponded directly with him in reference to those contracts, and that he was recognized as agent, for those purposes, by them, and by Bonner trad. Smith.

He alleges, that he traveled through the country, occupied much time, and incurred great expense in performing these services, and made contracts for engines and machinery, to the amount of $148,148; that some of these contracts were executed by Stillman, Allen Sf Co., and the machinery furnished, but that they, wrongfully and in bad faith, refused to execute other similar contracts. Lastly, he alledges, that, for his services and labor, he was entitled to receive from the defendants, pay and commissions, at the rate of 2¿ per cent on the cost of the machinery for which he might procure contracts ; and that, in all cases in which he personally superintended the erection of the machinery furnished by Stillman, Allen 8f Co, he was to receive an additional compensation of four per cent on the cost of the same.

Bonner and Smith excepted, that the allegations of the plaintiff’s petition did not show that they were personally liable for his claim ; so the court decided, and he has appealed.

The plaintiff’s petition clearly shows, that Bonner and Smith were agents of Stillman, Allen Sf Co.; that the names of these principals were disclosed to the plaintiff in employing him, and that he rendered his services to the principals, and not to the agents. He and the principal corresponded directly in relation to those services.

There is an allegation, that the defendants were to pay 2£ per cent commission on the value of the machinery for which he made contracts. But this evidently means, the defendants to whom he rendered the services, and 2¿per cent on the value of their machinery, not the defendants,Bonner and Smith, to whom he rendered no services, and who had nothing to do with the machinery, except as agents.

As agents merely, they are not liable at all; and liability cannot be presumed against them, without an agreement express or implied. It is certainly not to be presumed in this case, where the agents disclosed their principals, where the plaintiff corresponded directly with them, and rendered all his services to them alone.

Our code declares, “That the mandatary who has communicated his authority to a person with whom he contracts in that capacity, is not answerable to the latter for anything done beyond it,” and, a fortiori, for nothing done within the mandate. The mandatary is responsible to those with whom he contracts, only when he has bound himself personally. Code, arts. 2981, 2982. There is a decision to the same effect, 13 L. It., 20.

The plaintiff contends, that he was to share commissions of five per cent, with the agents, Bonner and Smith. He does not so state in his petition, but that he was to receive 2s per cent commission for his own compensation.

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


author: Rost, J. Host, J.

text:
    John Harrington v. Nichols et al.
    The plaintiff leased his steamboat by public act, in which, as additional security for the performance of the stipulations of the lessees, the parties annexed and made a part of the act, a bond, signed by the lessees, with B* and M. as securities. The condition of the bond bound the obligors to some, but not to all of the obligations of the lessees, resulting from the lease. The owner of the boat sought to bind the securities on the bond for a noncompliance with the stipulations of the lease, some of which formed no part of the obligations resulting from the bond. Held; It is true that the lease and the bond were executed at the same time; but, as the same parties did not sign both, they cannot be viewed as one contract in relation to the sureties, who only signed the bond. The declaration of the lessees, in the contract of lease, cannot prejudice their sureties, who can only be held bound as they agreed to bind themselves.
    APPEAL from the Fourth District Court of New Orleans, Slrawbridge, J.

      Molt and Ogden, for plaintiff.

      Roselius and Emerson, for defendants.
   By the court:

Rost, J.

The plaintiff leased the steamer Nathan Hale, for six months, to Peter Nickolls, J. H. Miller and J. R. Harizock, at the rate of $450 per month, payable in advance. The lessees bound themselves to deliver the boat to the lessor at the wharf, in this city, at the expiration of the lease, in the same good order in which they took her, the ordinary wear and tear excepted, and as clear of debt as they received her. The act of lease contains the following clause : “ The contracting parties, the better to secure the execution of the present contract, and the payment of the six installments afore-mentiond, have requested the undersigned notary to annex to the present deed, to be considered as a part thereof, a certain bond, for the sum of $3000, bearing date the 19th inst., signed by Messrs. Peter Nicholls, James H. Miller, and J. R. Harizock, as principals: and C. C. Burr and J, F. Mayer, as security; which bond has been signed by me, the notary, to identify it herewith, and receive, when necessaiy, its full execution.” <

The condition of the bond referred to is simply, that, if at the expiration of the lease, the lessees shall deliver the steamer to the plaintiff, or his agent, at the wharf, in the city of New Orleans, in the same good order in which they take her, the ordinary wear and tear of the boat excepted, and as clear of debt as they receive her, and, in case of loss, shall pay the sum of $3000, the insurance which they engage to effect upon said steamer, the obligation is to be null and void, otherwise to remain in full force.

The lessees failed to deliver the boat in New Orleans at the expiration of the lease. The plaintiff found her at St. Louis, where she had been attached for privileged debts, contracted by them, and was compelled to pay those debts before he could take possession of her. He claims, in this suit, from the lessees and from their sureties, in solido, the amount thus paid by him ; also the amount of a bill for servant hire and groceries sold to the lessees, and a balance due on the two last installments of the lease.

The answer sets up many grounds of defence, but the only two relied on in this court, by Mayer, the only appellant, are the following: that the sureties are not bound for the arrears due on the two last installments of the lease; and furthez’, that the amounts which the plaintiff pretends to have received on account of said installments, should be imputed to the debts, for which the sureties agreed to become liable. Mayer, one of the sureties, has appealed from the judgment allowing the entire claim of the plaintiff, and the latter has joined in the appeal, praying that the judgment be amended in his favor.

It is true, that the lease and the bond were executed at the same time. But, as the same parties did not sign both, they cannot be viewed as one contract in relation to the sureties, who only signed the bond. The declaration of the lessees, in the contract of lease, cannot prejudice them, and they can only be held bound as they agreed to bind themselves. It may have been the intention of all the parties, that the contract of suretyship should extend to the installments of the lease. But, we cannot go behind the acts to ascertain that intention; and if they even leave the liability of the sureties doubtful, the doubt must inure to their benefit.

The imputation which the defendant and appellant now attempts to make, is not authorized by the facts of the case. Some of the payments were expressly on account of the lease, and all were made long before his liability on the bond accrued, in consequence of the payment, by the plaintiff, of the debts of the boat in St. Louis. At the date of those payments, it is not shown that anything was due by the lessees, except the unpaid installments of the lease, and the amount of the plaintiff’s bill for groceries and servant hire. His consent that the payments not expressly made on account of the lease, be first applied to the payment of this bill, and that the balance remaining be imputed on the lease, does full justice to the appellant.

It is admitted, that the plaintiff had to pay $718 46, in St. Louis, for privileged debts existing on the boat. For this sum, with legal interest from judicial demand, the appellant is clearly liable. We will further allow fifty dollars damages for the non-delivery of the boat in New Orleans, clear of debt.

It is therefore ordered, that the judgment, so far as appealed from, be reversed. It is further ordered, that the plaintiff recover from the defendant, J. F, Mayer, $768 46, with legal interest from the 10th of August, 1847, till paid, with the costs of the district court; those of this appeal to be paid by the plaintiff and appellee.

Same Case — On a Re-hearing.

By the court:

Host, J.

In this case, the court having overlooked an agreement, in the record, by which the defendant, Maria F. Burr, administratrix of the succession of C. C. Burr, was authorized to prosecute her appeal without giving bond, a re-hearing was granted as to her.

The argument in support of her application has failed to convince us, that there was error in the judgment, to the prejudice of her co-defendant. The same judgment must, therefore, be entered against her.

It is ordered, that the judgment of the court below, rendered against Maria F. Burr, administratrix of C. C, Burr, be reversed. It is further ordered, that the plaintiff recover from the defendant, Maria F. Burr, in her said capacity, $768 66, with legal interest from the 10th of August, 1847, till paid, and the costs of the district court; those of this appeal to be paid by the plaintiff and appellee


text:
    Capt. Harris Stackpole et al. v. Oswald Wickham.
    The defendant’s commission had been out eighty-two days, and no excuse for the delay was shown, and the district judge was of opinion that due diligence had not been used. Held; That defendant was properly ruled to trial.
    A vessel had made a safe voyage from Turk’s Island to New Orleans. Held ; That it was notnecessary for the plaintiff to show, affirmatively, that she was seaworthy, and provided with men and provisions, and every other requisite for such a voyage.
    The verdict was written on the back of a document attached to a petition, instead of being written on the back of the petition itself. This circumstance was not urged as a ground ibr a new trial. Held: The ground of nullity, set up for the first time in the Supreme Court, is too frivolous to deserve further notice. The document was annexed to the petition, and may fairly he viewed as a part of it.
    APPEAL from the Fourth District Court of New Orleans. This case was tried by a jury before Strawbridge, J.

      J. L. Halsey, for plaintiff.

      Wolfe and Singleton, for defendant.
   By the court: (Preston, J., absent.)

Rost, J.

Our attention has been called to the several bills of exception which the record contains.

On the day of trial, the defendant moved for a continuance, on the ground that a commission sent to New York to take the testimony of certain witnesses, had not been returned. The commission had then been out eighty-two days. The defendant showed no excuse for the delay, and the district judge being of opinion that he had not used proper diligence, ruled him to trial.

We are unable to say that this was not a proper exercise of the discretion vested in the district judge.

After the cause was called for trial, the defendant moved that the exception contained in his answer, “ that the petition discloses no cause of action,” be first taken up and tried.

Under a rule of court, which prohibits counsel from making any motion when a cause is called for trial, if such motion could with propriety have been made previous to that time, the court refused to entertain the motion, but reserved to the defendant his right to the benefit of the exception on the trial.

The defendant was bound to know the rules of court and to conform to them ; and if the district judge had considex'ed his going to trial, on the mei’its, as a waiver of the exception, we should not have disagreed with him. It was tried, however, with the main issue, and clearly overruled by the judgment rendered on the verdict. We think it was properly overruled.

The plaintiff having found no salt at Grand Turk, brought his vessel, in ballast, to New Orleans. The defendant contends, that under his charter-party and the custom of trade, he should have gone to Salt Key and ascertain whether he could not get a cargo there. The chartei'-party is for a cargo of salt to be taken in at Turk’s Island ; and the judge, in his charge, told the jury that the alleged custom of trade which bound the plaintiff to go to Salt Key under such a charter-party, in case he found no salt at Grand Turk, was not proved. The defendant excepted to the charge on the ground, that the judge is prohibited from charging the jury on questions of fact. Had the evidence in relation to this custom of trade been such as would have authorized a verdict against the plaintiff, the charge of the judge might have made it necessary to remand the case; but as we are satisfied that no such verdict could be rendered, under the evidence, we would be doing a vain thing if we made that disposition of it.

We think with the district judge, that as the vessel had made a safe voyage from Turk’s Island to New Orleans, it was not necessary for the plaintiff to show, affirmatively, that she was seaworthy and provided with men and provisions, and every other requisite for such a voyage. The fact that the verdict was written on the back of a document attached to the petition, instead of being written on the back of the petition itself, was not one of the grounds taken in the application for a new trial. This case differs in that respect from that of Dubertrand v. Laville, 8 L. R. 275. In that case the verdict had been written in French, and was radically defective. Here there is a valid verdict, and the ground of nullity, setup for the first time in this court, is too frivolous to deserve further notice. The document was annexed to the petition, and may fairly be viewed as a part of it.

On the merits, the amount allowed by the jury was considered proper by the district judge, and is fully sustained by the evidence.

The judgment is affirmed, with costs.


text:
    The State of Louisiana v. The Orleans Navigation Company.
    It was decided in this case, that the Orleans Navigation Company had forfeited its charter, by violating the conditions of the act of incorporation; but held, “The charter requires the company tokeep, ordinarily, three feet of water [in the canal] at low tides; yet the fact ofless water being found occasionally, in consequence of extreme low stages of the lake, should notbe attended with a forfeiture of the charter.”
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Isaac Johnson, Attorney General, and Roselius and Burihe, for the State.
    A. 1Temen, and Benjamin and Micou, for the defendant.
   By the court:

Preston, J.

The Bayou St. John was a navigable stream previous to the cession of Louisiana to the United States. The Spanish Governor, the Baron Carondelet, excavated the basin and canal to connect the navigation of the bayou with the rear of the city. Both were of smaller dimensions than at present, yet they were used by the small schooners on the lakes.

On the 3d of July, 1805, the Governor and Legislative Council of the Territory of Orleans, incorporated The Orleans Navigation Company.” By the 9th section of the charter it was provided, that, “ As soon as the company shall have improved the navigation of the Bayou St. John, so as to admit, at low tides, vessels drawing three feet water, from Lake Ponehartrain to the bridge at the settlement of the bayou, then the president and dii'ectors shall be entitled to ask, have, and receive, from every vessel passing in or out of the bayou, a sum not exceeding one dollar for every ton of the admeasured burden of the vessel, and so in proportion for every vessel of a burden less than one ton. And when further improvements shall permit vessels drawing three feet water to pass from the bayou by the Canal Carondelet to the basin, terminating the same at the city ditch, the president and directors shall be entitled to receive an .additional toll, not exceeding a dollar per ton.”

As early as 1820, great complaints were made by citizens of this State and others, interested in the navigation of Lake Ponehartrain, against the company, 0f a violation of their charter, and of their failure to keep the Bayou St. J ohn and Canal Carondelet in navigable order. And the Legislature, by a resolution of °f February, 1821, directed a suit to be instituted by the attorney general against the company, for the forfeiture of its charter, for malfeasance and nonfeasance. The case was decided against the State. 11 M. R. 309.

In 1832, the complaints having been renewed, the State incorporated the New Orleans Canal and Banking Company; and, as bonus, exacted the construction of a basin, and a canal from the city to the lake, capable of admitting vessels drawing six feet of water, and at a reduced rate of toll of 37£ cents a tou. This canal has long since been completed, and compelled the defendants to reduce their tolls to a still lower rate. They then borrowed a large amount of money but do not appear to have expended it with success, as their affairs have declined constantly since; and the district court came to the conclusion, on the evidence, that they were totally insolvent.

Again, in 1835, the Legislature directed proceedings to be taken against the company, for failing to keep the navigation in the situation required by the charter; but, for some reason, no effectual proceedings were taken.

The evidence, in this case, fully supports the conclusion of the court, that the defendants are insolvent. Their own witness believes that, without aid from other sources than the stockholders, the company will never be able to pay its debts. All its property, except its rights upon the basin, canal, and Bayou St. John, has been sold. The revenues from them have been under seizure by the sheriff for -years, and do not pay the interest on their debts. Those revenues are daily diminishing, while their debts are increasing, and their stock of one hundred dollars a share has been sold for fifty cents.

If the navigation is not in the situation required by the charter, the company have no resources to improve it; indeed, none to keep the works from constant dilapidation, and the basin, canal, and bayou, from depreciation in value.

A single witness represents, that he is authorized by a party, whom he refuses to disclose, to take a lease of the property of the company for twenty years, and put the navigation into a situation which will respond to the provisions of the charter. As he is not authorized to disclose the party for whom he acts, he afforded the district court no means of judging of the ability of the party to accomplish the objects of the charter. The same objects being those of the State, this court has delayed its decision some time, the Legislature being in session, to see if the party would openly disclose his means, and make some arrangement satisfactory to the State. It has not been done.

For the same reason that the evidence produced no impression on the district court, it has afforded no satisfaction to this court. There is not that openness and publicity on the part of the secret party and his proposals, which properly belong to all matters of public concern, and without which, confidence cannot be inspired.

The evidence in this case satisfies us, that the company have not kept the navigation of the canal and bayou in the situation required by the charter; but, on the contrary, have, for a length of time, violated their charter, by not keeping the depth of water required, either in the bayou or canal, and, indeed, almost abandoning both.

It is contended, that the charter requires the company to keep, ordinarily, three feet of water at low tides, but that the fact of less water being found occasionally, in consequence of extreme low stages of the lake, should not be attended with a forfeiture of the charter. We concur in that opinion, but are satisfied by the evidence, that there is not ordinarily, at low tides, three feet of water throughout the extent of the navigation.

Captain Vidal says, that jn the winter time, at low tides, there is only two and a half feet water on the bar.

Captain Sarazin has found the water several times but two and a half feet deep on the bar.

Mr. Blanc testifies, that there is not more than two and a half feet water at the mouth of the canal. We understand this to be the ordinary state of the low water stage, because, he says that, in low water, the bayou, at its junction with the Canal Carondelet, has not more than two feet four or five inches in depth.

He further proves, that the average depth of water at the bar, during the last-ten years, at low tide, has not been more than two feet, four, five or six inches, and this, with a width or channel hardly sufficient for a small vessel to pass.

Captain Dumas sounded the bar at the mouth of the bayou, at low tide, and found but two and a half feet water, and could not get out with his schooner, light, having only that.draft.

Captain Palpa sounded the bar at the mouth of the bayou, and found but the same depth of water, at low tide; and, shortly before the trial, had to pay five dollars for lightening his vessel, drawing but three feet water.

Mr. Ciarle, proves the same thing. And Mr. Buisson, who probably sounded the bayou for the purpose of giving the court exact information as to its depth at low tide, gives a still more unfavorable account of the want of the depth of water required by the charter.

Other witnesses prove, and the books of the company show,1 that vessels drawing four or five feet of water, have entered and gone out. The prevalence of southern and easterly winds fills tho lake from the sea, and produces, generally, sufficient water for the navigation. But the evidence preponderates in showing, that the ordinary stage of low water, both at the mouth of the canal and mouth of the bayou, and, perhaps, at intermediate stages, opposite the draining machines, is less than the three feet required by the charter of the company.

In fact, Mr. Fagan, who has been superintendent of the works of the company for ftear twenty years, says, “ he believes it to be his duty to keep a record of the depth of the water on the bar, and did so for several years, until of late years the water got so very bad, and the trade also, that he did not think it necqgsary to keep a record.”

A dredging machine, which the company had for the purpose of deeping the bayou, was sunk two or three years ago, and they have not replaced it, nor even raised it; so that it has become, itself, a dangerous obstruction to the navigation. To use the expression of one witness, the navigation has become most horrible; and, of another, detestable. The canal and bayou are filling up every year. The harbor is dangerous, and the works of the company, generally, are rotting down, dilapidating, and seem to be abandoned.

The navigation, which, by the improvements of near half a century, should have attained all the perfection of which it is susceptible, is obstructed so as to cause great expense and delay to navigators, by lightening; is dangerous, so as often to subject the vessels and commerce to much loss, for which there is no recourse, except against an insolvent corporation. In fact, we doubt if the bar, at least, which affects the whole navigation, is in a better situation, than in the time of the Baron Carondelet. So that the whole object of the act of incorporation has failed.

Proceeding, therefore, to render such judgment as it appears to us should bave been rendered in the district court,

Jt jg ordered, adjudged, and decreed, that the corporation of the Orleans jq-avjgatjon Company has forfeited its charter; that it be dissolved, and henceforth extinct, for the violation of the conditions of the act of incorporation.