author: Wyly, J.

text:
    No. 2867.
    Timothy McCarty, for the use of A. A. Greely, v. The Louisiana Mutual Insurance Company of New Orleans.
    Whore the plaintiff, claiming for the nse of A, judicially admitted that the insurance on a house was effected by him on behalf and for tlie benefit of said A;
    Held — That the court agwo. erred in not i>ermilting defendant to show that A had set the house on fire, and further erred, under the circumstances of the case, in not allowing defendant to prove plaintiff’s declaration, after the fire, that the premises were not his and that he had never possessed any insprable interest therein, notwithstanding his title had been received in evidence.
    from the Fifth District Court, Parish of Orleans. Iiecmmont, J.

      O. J3. Singleton and J. Ifisk, for plaintiff and appellee.

      Hace, Éoster & Merrick, for defendant and appellant.
   Wyly, J.

The plaintiff sues ior $800, the amount of an insurance on a frame cottage, which was burned on the night of June 7, 1869„ and he prays that “judgment be rendered in favor of petitioner for the use of Albert A. Greely, for whose use and benefit said policy was effected.”

The defendant admits the issuance of the policy, but alleges “that the same is null, and that no risk was taken under the same, for reason of fraud and misrepresentation of petitioner, McCarty, in making his application for the same; that he then represented and held himself out as the owner of the property sought to be insured, and the policy issued to him personally and not as agent for any person or for the use and benefit of any other person, and said McCarty had no ownership or interest in said property and no insurable interest in it, and nothing was therefore insured, nor was any risk taken under said policy; that so soon as the true facts were learned, and the fraud of McCarty made apparent, respondent offered to refund all the moneys received as pi emiums, notifying McCarty that there was no legal policy and no iisk assumed; that A. A. Greely has no interest in said policy, as the same was not issued in his behalf, nor for his interest; that the property was set on fire by the owner himself, as respondents are informed, and if the policy had been good and legal, and not null and void because of fraud, in no event could respondent be held liable thereon.”

The court gave judgment for the amount claimed, and the defendant appeals. We think the court erred in not permitting the defendant to prove that the house was set on fire by Albert A. Greely, for whose use and benefit the plaintiff judicially admits the insurance was effected.

We think the court also erred in not receiving the testimony of defendant’s witness to prove that “ a few days after the fire in question Timothy McCarty went to the office of the defendant, spoke of the fire, did not pretend to claim the amount of the insurance, said the premises insured were not his, and that he never had any insurable interest therein, and only asked as a favor that defendant would pay the three bills (for the funeral expenses of Mrs. Greely), amounting in all to $92 50; he would return the policy of insurance on their payment; that the money paid for premiums both times belonged to said Greely.” It was certainly competent to prove McCarty’s statement that the money paid for premiums belonged to Greely. In view of the allegation of fraud and misrepresentation of McCarty when effecting the insurance as to the ownership of the property insured, and considering the fact that the possession of the property still remained in Greely, notwithstanding the deed to McCarty, we are of the opinion that the defendant had the right to prove the admissions of McCarty after the fire occurred, to wit: that he did not claim the amount of the insurance, that the premises were not his, and that he never had an insurable interest therein. We think this evidence was admissible, notwithstanding McCarty’s title had been received in evidence, and the bills of exceptions were well taken.

In view of the erroneous ruling of the court concerning the introduction of evidence, it becomes necessary to remand this case.

It is, therefore, ordered that the judgment herein be annulled, and that this cause be remanded for new trial, according to law and the views herein expressed; appellee paying costs of appeal.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 4455.
    The State ex rel. St. Charles Railroad Company v. John Cockrem, Administrator, and als.
    Tlie civil government of tlie city of New Orleans can not be permitted to deny the rights derived by the relators in this case from their contract with said city on the ground that it was under military authority at the time, when, after the cessation of that military authority, those rights have been, in part, frequently recognized and ratified by its ordinances. That contract was an entirety. The city had no right to sever its obligations, so as to ratify one part of the contract and reject another.
    The city, having for a number of years received without objection the consideration of the contract, should not be heard when disputing the contract itself.
    The plea that the parties had forfeited the right of way by voluntarily abandoning the construction of railroads in certain streets, and by failing to construct said roads within the time limited by the contract, is not made out, when proved that they were prohibited to do the work by an injunction from a third party; and because the injunction taken in September, 1866, was not dissolved before June, 1872, it is not to be inferred that it was kept so long in force by the wish and connivance of the relators, when the city was a party to the injunction suit, and having the same right to push the case that the relators had, did not do so.
    The city surveyor was bound, when called upon, to furnish the requisite lines and levels for the building of the road — a ministerial duty which was imposed upon him by the sixth section of the original ordinance authorizing the construction of the road.
    APPEAL from the Eighth District Court, parish of Orleans. Dibble, J.

      Breaux, Fenner & Sail, for relators and appellees. Geo. 8. Laeey, City Attorney, and Uranic S. Butler, for defendants and appellants.
   Taliaferro, J.

The relators set forth that they obtained by contract with Nicholson & Co. all the rights and privileges the latter were entitled to under a contract with the City of New Orleans, entered into in December, 1865, to construct a railroad to connect the depot of the Pontehartrain Railroad with that of the New Orleans, Jackson and Great Northern Railroad; that under that contract, to all the rights of which the relators are subrogated, it is provided that the City Surveyor shall furnish the lines and levels for the road and give, in his specifications, full directions how the work is to be done, the kind of material to be used, etc; that Nicholson & Co. completed tliat portion of the railroad above Canal street, and which relators have had constantly in operation, paying to the city the stipulated bonus; that relators were proceeding according to contract to complete the portion of the road lying below Canal street when they were arrested by a writ of injunction, issued by tbe Fourth District Court at the instance of Romanzo W. Montgomery, to which the City of New Orleans was a party; that said injunction remained in force until June, 1872, when it was dissolved; that thereupon the relators called upon the City Surveyor to furnish them with the lines and levels required in order that they might commence the work, and were refused on the ground that he could only act under an order from the Administrator of Public Improvements ¡ that relators then applied to John Coekrem, Administrator of Public Improvements, for the same purpose, and were likewise refused by him. The relators then filed a petition in the Eighth District Court, praying that a mandamus issue against Coekrem, the Administrator of Public Improvements, and Bell, the City Surveyor, to compel them to furnish the lines and levels required. To this proceeding the city of New Orleans and C. E. G-irardey and others, to whom the citv iu November, 1871, had granted the privilege of constructing the unfinished portion of the railroad, were made parties. A rule nisi was granted. To this Coekrem and Bell responded, denying all right-in the relators to be furnished with the lines and levels they demanded. They deny that the relators derived any right from the assignment t'o-them from Nicholson & Co., who derived no right from the alleged, contract they made with the city in 1865 and 1866, the same having, been entered into in contravention of a prohibitory order rendered by the military authority then paramount in the State. That the relatorsconnived at the injunction proceeding- of Montgomery, which was, illegally and wrongfully kept in existence for several years in order that the relators might obtain an undue advantage; that the city of New Orleans, considering the invalidity of the pretended grants, privileges and franchises asserted by the relators and the waiver, nonuser, negligence and abandonment of the same on the part of the relators, conveyed the right of way and the consequent right to lines and levels to the streets in controversy to other parties with whom the relators can not legally interfere. Respondents object that the law does not authorize the issuing the writ of mandamus in the case at bar. Girardey & Co. adopted all the defenses set up by the City Surveyor and the Administrator of Public Improvements. The rule was made absolute and the court ordered that John Coekrem, Administrator of Public Improvements, furnish to the relators the lines and levels required to enable them to construct the road according to the specifications in the original contract.

From this judgment the respondents appealed.

On tlie part of the defendants it is contended that the city, having-repudiated the contracts with Nicholson & Co., and the pretended rights of their subrogees the St. Charles street Railroad Company, in so far as these contracts accorded the right of way for a railroad on Royal and Bourbon streets; and moreover the city authorities having entered into contracts with Girardey and others for the construction of a railroad on those streets, no city officer had any right to disregard such action of-the municipal authorities, and consequently no authority to furnish the relators with the lines and levels they required. That under the existing state of facts the furnishing to the relators the facilities they demand, so far from being a mere ministerial du»y which the proper officer might by mandamus be compelled to perform, would be a violation of his duty and a setting at naught the will of the corporate authorities. That the relators can not, therefore, in this case, proceed by mandamus.

In defense it is set up, that, by a military order rendered by General Canby, on the ninth of February, 1866, the several bureaus of the municipal government of the city of New Orleans, created by and acting under military authority, were injoined and prohibited from granting any franchise or right to corporations, for a term extending beyond such period as the civil government of the city may be reorganized and re-established under and in conformity to the constitution and laws of the State; and that no grant of that character should extend beyond the time when tue questions relative to those rights may be determined by competent authority.

To this it is answered that the ordinances of the city authorities authorizing the building of this railroad and the contract entered into in conformity therewith, between the city and Nicholson & Co., for the building of the same, took place before the military order of General Canby was rendered, and that nothing in that order justifies the conclusion that it intended to annul that or any other contract of the kind entered into prior to its promulgation ; and that the order of General Canby of February 9, 1866, was so understood, for the city by ordinance of sixteenth of December, 1867, after the transfer of the contract by Nicholson & Co. to the St. Charles Street Railroad Company expressly substituted the latter to all the rights, privileges and obligations of Nicholson & Co. in their contract. And later still, on the twenty-sixth of July, 1870, the city, by an ordinance to that effect, allowed the St. Charles Street Railroad Company to make certain alterations the company desired to make in the track of the road. Besides, it is shown that the city, by ordinance of eleventh May, 1869, reduced the bonus to be paid on a certain consideration. It is further shown that the St. Charles Street Railroad Company have been constantly operating that part of the said road lying above Canal street ever since they acquired it under the contract with Nicholson & Co., and that the city has regularly received the stipulated bonus on passengers carried without objection. It seems, then, as contended by the relators, that the civil government of the city since the termina tion of the military authority, has frequently recognized and ratified by its ordinances the rights of the relators under the Nicholson contract. That contract was an entirety, embracing as well the line of the road below Canal street as that portion above it. The city, it would seem, lias no right to sever its obligations, to ratify one portion of its contract and reject another. The right of way was not given to Nicholson & Co., but was sold to them, and the consideration was not only that they should incur the expense of building the railroad, but also that they should pay to the city a certain bonus or percentage upon the fare of each passenger carried. This bonus it appears has been regularly paid by Nicholson & Co. and their subrogees, and been received by the city as the consideration of the contract between the •city and Nicholson & Co. The city having for a number of years received without objection the consideration of its contract should not now be heard to dispute the contract itself.

On the part of the city it is held, that the relators, if they ever had the right of way for a road below Canal street, along Bourbon and Boyal streets, have forfeited it by virtually abandoning the construction of the road along those streets, and have failed to construct the road within the time required by the contract. It is in proof, that Montgomery, a property holder on Boyal street, obtained an injunction, in September, 1866, prohibiting the building of the contemplated road on that street, and that this injunction was not dissolved until June, 1872. We are unable to find in the evidence anything making good the charge of the defendants, that the injunction was kept in force so long by the wishes and by the connivance of the relators. The city was a party to this injunction suit, and had the same right to push the •case to trial that the relator had, but did not do so.

We conclude that the city was without authority to enter into the •contract with Girardey and others, granting to them the right of way to construct below Canal street the road projected originally by the •contract of the city with Nicholson & Co., which contract was afterward extended and entered into with the relators. The contract made with the relators being valid and binding, their rights under it cannot be affected by the subsequent agreement between the city and Girardey <& Co. The latter party, when cited, came forward, and, without •exception, answered to the merits of the case. The city surveyor was bound, when called upon, to furnish the requisite lines and levels for the building of the road, a ministerial duty, which was imposed upon him by the sixth section of the original ordinance authorizing the •construction of the road. The proceeding in this case by mandamus seems not to be irregular.

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


author: Taliaferro, J. Morgan, J. Wyly, J.,

text:
    No. 3581.
    James Hugh v. Joseph Hernandez and al.
    Tlie action against the sureties of a sheriff for money collected by him and not accounted for to the party entitled to it, is barred by the prescription of two years. Revised Statutes of 1870, section 2816.
    The law has nob given the summary remedy by rule against sureties on a sheriff’s bond, and where the rule was made absolute, and in a subsequent action of nullity, said judgment, was set aside on the ground that no citation had been served on the parties, the prescription of two years was not interrupted by the instituting of such a proceeding against the parties
    APPEAL from the Eighth District Court, parish of Orleans. Dibble, J.

      J. A Bartlette, for plaintiff and appellant. Oharvet & Duplantier, J. Duvigneaud and _£?. Bermudez, for defendants and appellees.
   Taliaferro, J.

This is an action against the sureties of a sheriff, to compel them to pay a sum of money alleged to have been received by him acting in his official capacity, and which he neglected to pay over to the plaintiff, who claims that he is entitled to receive it.

’The defense is placed on several grounds, one of which, and the one we deem most important, is prescription. The plea of prescription of two years was sustained by the court below, and the suit dismissed-The plaintiff has appealed.

The facts are as follow: In 1866, Bienvenu, sheriff of the parish of Orleans, sold certain stocks, seized under execution, from the sale of which he realized the sum of $6232 50. The sale was made on the-twenty-sixth of March, 1866, and on the next day a rule was taken on the sheriff to show cause why he should not pay over the money so-received to Joseph Lalande, a party setting up a claim to it. On trial of the rule, on the sixteenth May, 1866, it was dismissed, but the-sheriff was ordered to pay over the money to Ingraham, the judgment creditor, at whose instance the seizure and sale of the stocks were-made, and who transferred the judgment and all his rights under it to the plaintiff. On the third of July, 1867, the sheriff having failed to pay, a rule was taken on his sureties, to show cause why they should not be condemned in solido with him. On the third of December, 1867', this rule was made absolute, and the sureties were accordingly condemned in solido with the sheriff, to pay the money. Subsequently an action of nullity was brought to set aside this judgment, on the ground that no citation had been served upon the sureties. The judgment was annulled on that ground, on the twelfth January, 1869, and the decree of the Fifth District Court annulling it, was confirmed on appeal to this court. See 22 An. 245. On the twelfth of May, 1870,. the present suit was brought.

The defendants, therefore, say that between the twenty-seventh of March, 1866, or the sixteenth of May, 1866, or the third of July, 1867- and the twelfth of May, 1870, more than two years have elapsed, and that the sureties are discharged under the law invoked by them. Ray’s Revised Statutes, section 3546. “The sheriff and their securities shall be able to prescribe against their acts of misfeasance, nonfeasance, costs, offenses, and quasi offenses after the lapse of two years from-the day of omission or commission of the acts complained of.”

But the plaintiff contends that his suit is not fox damages arising from negligence nor for misfeasance or nonfeasance; neither is it for offenses or quasi offenses, nor for any act mentioned in the law prescribed by two years — but that it is simply lor money the sheriff has received while acting as mandatary, or depositary, or sequestrator. That in executing the writ under which he received the money he acted as the judicial agent of the plaintiff, and refers to 2 L. R. 280 and to the case of Spalding & Rogers v. John P. Walden et al., 23 An. 474.

The plaintiff holds further that if the prescription of two years were applicable to a case like this it was interrupted by the rule taken on the sheriff and his sureties on the third of July, 1867, which was served on the sheriff and all the sureties. On the first ground we think the authorities cited are not in point. The facts of the case in-23 An. differ materially from those presented in the case before us. In that case the suit was for money received by the sheriff during the late war and put in bank for the owners, who were absentees; the sheriff, by reason of military orders then in force, was unable to withdraw the deposit to settle the claim. The act of the sheriff was held-to be neither an act of misfeasance or nonfeasance, nor was the suit placed on that ground. In the case under consideration the petition of the plaintiff charges: “ That the said Bienvenu, sheriff, failing to-pay over the proceeds of the sale on demand being made for that purpose, a rule was taken upon him by petitioner and notice thereof given to said sureties, and on the third of December, 1867, judgment was rendered on said rule against the said sheriff for $3343 18, with interest, etc., in favor of petitioner; that on said judgment execution issued and was returned, no property found,” etc. The sheriff had sold, certain stocks seized under the execution issued upon the judgment of the plaintiff’s transferrer, received a large sum of money in cash, and after an order of court to pay it over to the party entitled to it he declined and failed to.comply with the order, and an execution issued against him was returned nulla Iona.

On the second ground, that the service of the rule interrupted prescription. In the action to annul the judgment rendered on the third of July, 1867, it was decided that the law has not given the summary remedy by rule against sureties on a sheriff’s bond. That the want of' citation of the sureties was fatal since they did not answer or otherwise waive citation. There having been no citation there was no interruption of prescription. 6 Rob. 142, 2 An. 927.

We think the judgment of the court below was correctly rendered..

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed with costs. Tfoliler v. Walden, 23 An^^f

On Rehearing.

Morgan, J.

Another and a careful examination of the opinion heretofore pronounced by us in this case, has only satisfied us that the ■conclusions to which we came originally are correct.

It is therefore ordered, adjudged and decreed that our former judgment remain undisturbed.

Wyly, J.,

dissenting. In this case the question is, Is the action against the sheriff and his securities to compel him to pay over the money he has collected barred by the prescription of two years?

“The sheriffs and their securities shall be able to prescribe against their acts of misfeasance, nonfeasance, costs, offenses and quasi offenses, after the lapse of two years from the day of the omission or commission of the acts complained of.” Revised Statutes of 1870, section 5816.

Now, the cause of the obligation sought to be enforced against the sheriff and his securities is not an act of omission or commission of some wrong on the part of the sheriff. Nor did the obligation sought to be enforced spring from an offense or quasi offense. It had its ■origin in a quasi contract. The moment the money fell into the hands •of the sheriff, he incurred a legal obligation to preserve it, and to restore it to the owner at the end of the suit. In getting the money the sheriff certainly committed no act of misfeasance nor nonfeasance, nor an offense nor a quasi offense. Yet the very getting of it created the obligation now sought to be enforced. The plaintiff is now asking the sheriff to perform the obligation that he then incurred.

The difficulty in this case only arises from mistaking the reason for the suit for the cause of the obligation. The cause of the obligation is one thing, and the reason for the suit is another. The sheriff failed or refused to pay over the money; this was the reason for the suit, but not the cause of the obligation. The obligation existed long before there was any failure or refusal to pay over the money.

Hence the obligation, which the defendants insist is discharged by prescription, is not an obligation arising from the refusal or failure of the sheriff to pay over money. It existed from the moment the sheriff received the money, and this suit is to compel the performance of that obligation.

Now, because the law allows the sheriff and his securities to prescribe against his acts of omission and commission, shall we extend that prescription to obligations arising from a quasi contract? I think not. Laws of prescription are stricti juris, and are never extended by implication.

I adhere to the opinion of this court on this question in Spalding & Rogers v. Walden, 23 An. 474; and I believe upon that authority.and ¡upon principle that the judgment of the majority ot the court is wrong. I therefore dissent.


author: Ludeling, C. J.

text:
    No. 4657.
    Merchants’ Mutual Insurance Company v. Samuel Jamison.
    Where the evidence shows that A owed the Merchants’ Mutual Insurance Company ten thousand dollars* that he executed in favor of said company a mortgage of fifteen thousand dollars to secure the payment of two promissory notes, one for $10,000 and the other for $5000, to the order of the maker and indorsed in blank; that he tried to have the company to discount these notes and pay itself out of the proceeds; that the company took the ten thousand dollar note, but returned the five thousand dollar note to the maker; and that B became the owner of it in good faith and i or a valuable consideration $
    Held — That on the Merchants’ Mutual Insurance Company foreclosing the mortgage for the ten thousand dollar note and becoming the purchaser of the property at sheriff’s sale, it had no right to curtail that mortgage to its advantage; that there was no extinguishment thereof by confusion, and that B had a right to one-tliird of the net proceeds of the sale.
    APPEAL from the Sixth District Court, parish of Orleans, Saucier, J.

      Albert Voorhies, for plaintiff and appellee. Semmes & Mott, for John A. Turnell, holder of concurrent mortgage, appellant.
   Ludeling, C. J.

Samuel Jamison executed a mortgage to secure two promissory notes, one for ten thousaud dollars, and the other for five thousand dollars, payable to the order of the maker, and by him indorsed in blank. The mortgage was in favor of the Merchants’ Mutual Insurance Company.

The evidence shows that Jamison owed the Insurance Company ten ■thousand dollars, that he executed this mortgage for fifteen thousand •dollars and tried to get the company to discount the notes and pay itself out of the proceeds. The Company took the ten thousand dollar note, but refused to discount the paper, and returned the five thousand dollar note to the maker, who disposed of it, and John A. 'Turnell became the owner of it in good faith before maturity and for a valuable consideration.

The Merchants’ Mutual Insurance Company foreclosed the mortgage, to enforce the payment of the ten thousand dollar note and became the purchaser of the property at sheriff’s sale for the price of ten. ¡thousand dollars.

The company then took a rule on John A. Turnell, the holder of the other note, to show cause why the mortgage should not be canceled, on the ground that the plaintiff had been the holder of both of the notes, and that one of the notes had been returned by them to the maker, and was thus extinguished by confusion, and having been, re-issued by the debtor, was but an ordinary debt in the hands of the holder. To this Turnell answered that he had purchased the note in good faith, before maturity and for a valuable consideration, and claimed his pro rata of the proceeds of the sale, as the holder of one of the notes secured by the mortgage.

The error of the plaintiff is in supposing the Merchants’ Mutual Insurance Company was ever the holder or owner of the five thousand dollar note, or that the note was ever returned to the maker, after it was issued. It was offered to the company for discount, but they refused it. But this refusal to discount this note did not prevent the maker from selling it .elsewhere as a note secured by the mortgage. The mortgage was for fifteen thousand dollars; by refusing to discount the five thousand dollar note, the Merchants’ Mutual Insurance Company could not curtail that mortgage to its advantage and the disadvantage of the mortgageor.

The judgment of the lower court, practically decreeing that the note held by John A. Turnell was not secured by said mortgage, is erroneous.

It is therefore ordered and adjudged that the judgment of the court a qua be set aside, and that there be judgment in favor of defendant against the plaintiff for one-third of the net proceeds of the sale of the mortgaged property, to wit, for the sum of three thousand one hundred and thirty-six dollars and forty-four cents, and costs of both courts.

Rehearing refused.


text:
    No. 4700.
    John E. Breaux v. J. B. Lejeune.
    This is a controversy for the office of sheriff of the parish of Pointe Coupee. The suit is-brought in plaintiff’s own name. He mistook his remedy. The proceeding should have beenunderthe “Intrusion Act.” It was not authorized by act Ho. 41, of the acts of 1873.
    from the Seventh Judicial District Court, parish of Pointe Coupee. Mewes, J.

      WieJcliffe & Fisher, Farrar & Montgomery, for plaintiff and appellee.

      F¡. Phillips and A. F>. M. Haralson, for defendant and appellant.
   Wyly, J.

This is a controversy for the office of sheriff of the parish of Pointe Coupee, and from the judgment decreeing the plaintiff to be the legal sheriff, the defendant appeals.

The suit is brought in plaintiff’s own name. We think he has mistaken his remedy. The proceeding should have been under the “Intrusion Act.” Hays v. Thompson, 21 An. 655; State v. Delassize, 21 An. 710; State v. Dranguet, 23 An. 784.

The suit was not authorized by act No. 41 of the acts of 1873, as ■claimed by the plaintiff.

It is, therefore, ordered that the judgment herein be annulled; and it is now ordered that the injunction be dissolved, and this suit be dismissed, at plaintiff’s costs in both courts.


author: Kennard, J. Ludeling, C. J.

text:
    No. 3930.
    Charles Hodges v. Graham, Hodges & Co., in Liquidation. E. J. Hart, Garnishee.
    Tlie garnishee is a stakeholder, and on his answers the judgment should be for or against him. He has no interest in the contest between tlie creditor and debtor. But where the object'of a motion to strike out part of the answers of the garnishee and of the traverse of the answers, is to attack the settlement made between the garnishee and the judgment debtor, the garnishee must be permitted to explain that he holds the thing attempted to be seized, by virtue of a title acquired by a settlement between himself and his debtor.
    The plaintiff can not be allowed to change his garnishment process into a revocatory action. His remedy is by a direct action.
    'The garnishee can not be divested of his possession and alleged ownership through any process which would deprive him of explanations and defenses allowable in a direct action by the judgment debtor to recover liis property.
    from the Fifth District Court, parish of Orleans. Zeaumont, J.

      Henry H. Kelly; Walter H. liogers and W. W. Howe for plaintiff and appellant. Semines & Mott ior garnishees. H. 1Í. Schmidt curator ad hoe.

   Kennard, J.

The plaintiff, Charles Hodges, having obtained pu the nineteenth of June, 1871, a judgment against Graham, Hodges & Co., in liquidation, and the several members of the firm, Augustus C. Graham, Charles E. Goodwyn and William R. Hodges, for the sum of fifteen thousand eight hundred and forty-three dollars and ninety-five cents, issued &fi. fa., and garnisheed E. J. Hart & Co., a commercial firm, domiciled in New Orleans, addressing to them twelve original and nine supplemental interrogatories of a most comprehensive character.

The garnishees made answers to the twelve original interrogatories, and under the ninth and twelfth answers set up the following special explanations as defenses, to wit:

First — We accounted for said consignments by settlements made with Charles E. Goodwyn on the fifteenth March, 1865, after the dissolution of the firm of Graham, Hodges & Co., which had taken place first of June, 1864; this settlement made by said Goodwyn was acquiesced iu by all the members of the firm, and it was made under-the following circumstances: Charles E. Goodwyn at the time was-largely a creditor of his firm on settlement with his copartners. Graham’s account was balanced and there was nothing to his credit, and W. R. I-Iodges was in no better condition, while Goodwyn was largely a creditor as above. We were not only creditors of Graham, Hodges- & Co., but also creditors of Goodwyn individually. Graham, Hodges & Co. were indebted to us on several accounts, viz: for advances on brandy consigned on joint account; for advances on whisky, on general merchandise account and for loans. The brandy account has been-closed by a compromise made with Charles Hodges, the plaintiff in-this suit, with the assent of W. R. Hodges, as appears by a copy of said compromise “of suit No. 5198 in the United States Circuit Court in the District of Louisiana, hereto annexed, marked ' C.’ ”

Second — That “the indebtedness to them on general account and loans, as appears by their own books, amounts to a very large sum of money, greatly exceeding the value of the whisky, after deducting the special advances.”

Third — “That said settlement cannot be attacked by garnishee process, and that the only mode in which its validity can be questioned, is by direct action.”

Fourth — That Charles Hodges, having at the time it was made, full knowledge of said settlement when made, or shortly afterward, is estopped from attacking it.

Fifth — That Charles Hodges, plaintiff, is not now, and was not at the time he instituted suit in this court, and has not been since twenty-seventh September, 1864, a creditor of Graham, Hodges & Co.; that on the contrary, on the twenty-seventh September, 1864, he was a debtor to Graham, Hodges & Co. in a sum exceeding $15,000, on a general balance of accounts.

Sixth — That this judgment was obtained by the fraud and collusion-of W. R. Hodges with the plaintiff, Charles Hodges, his brother.

Seventh — That W. R. Hodges had, on his own petition, November ill, 1868, been adjudicated a bankrupt, in New Yosk; that on his schedule then filed, his brother, Charles Hodges, was not recognizedas a creditor, nor did he place this alleged claim against these garnishees as an asset on his schedule; that Win. R. Hodges was a witness in this-suit, made no defense, swore to the loss of the firm’s books by fire.

The answer to the above twelve interrogatories, except those to the-second, third, fourth and fifth, were traversed, and nine supplemental, interrogatories filed. .

A motion was then made by plaintiff’s attorney that the garnishees show cause why “so much of their answers as set up pleas or defenses for the original defendants, and attacks the judgment under which E. J. Hart & Co. have been garnisheed, should not be stricken out as-irrelevant and inadmissible.” Also to show cause why they should not make full and prompt answers to all interrogatories, original and supplemental, under penalty of having them taken for confessed. This rule was made absolute, so far as to compel the garnishees to answer,, had the court a qua refused the prayer to strike out, reserving the right to determine whether the answers are relevant or irrelevant.

A motion for a new trial was made upon this order compelling prompt and more explicit answers, which prevailed, and on the twenty-ninth February, 1872, the original rule of twentieth December,. 1871, taken by plaintiff to compel answers was dismissed.

Prom the judgment dismissing this rule this appeal is taken.

The plaintiff invokes the well settled principle of law that garnishees are mere stakeholders, bound to disclose the truth. As to them the question is, are they indebted and can they safely pay ? They are not, as garnishees, permitted to interfere between plaintiff and defendant.. This doctrine is too well settled to need repetition.

The indebtedness being acknowledged, the garnishee can not be heard to urge any plea to protect the judgment debtor, but where the question of his (the garnishee’s) indebtedness is an open one, he cannot be deprived of any substantial defense by reason of the form of action selected by the judgment creditor.

In answer to the first interrogatory the garnishees deny any and all. indebtedness to the judgment debtors, Graham, Hodges & Co.

In answer to the ninth, they explain how their accounts were closed,, allege a settlement acquiesced in by the firm and afterwards a compromise.

To enforce the strict rule invoked by plaintiffs against the garnishees, would deprive them of whatever force there may be in these explanations.

The third person can not be divested of his possession and alleged ownership by the plaintiff, though any process which would deprive-him of explanations and defenses allowable in a direct action by the-judgment debtor to recover his property.

Judgment affirmed.

Rehearing granted.

On Rehearing.

Ludeling, C. J.

In our former opinion we said : “Theindebtedness being acknowledged, the garnishee can not be heard to urge any plea to protect the judgment debtor, but where the question of his (the garnishee’s) indebtedness is an open one, he can not be deprived of any substantial defense by reason of the form of action selected by the judgment creditor.” After reconsidering this ease, we doubt the-accuracy of that statement.

The garnishee is a stakeholder, and on his answers the judgment ■•should be for or against him. He has no interest in the contest between the creditor and the debtor. Of course, the falsity of his answers may be shown if he has answered untruly. But, in this case, the object of the motion to strike out part of the answers of the garnishees and of the traverse of the answers is to attack the settlement made between the garnishees and the judgment debtor. The plaintiff •^‘denies the truth of any and all the matters therein set forth by way of plea or defense of the original defendants, or as grounds of attack upon the judgment under which they have been garnished; avers that at the time of service of interrogatories upon them, and now, E. J. Hart & Co., were and are indebted, to Graham, Hodges & Co., in liquidation, in an amount sufficient to satisfy the judgment in this case; denies that there is or was any balance of account due E. J. Hart & Co., by the defendants, and avers that the amounts actually received by E. J. Hart & Co., as proceeds of the whiskies inquired of, were in ■excess of the special advances spoken of to an amount sufficient, after deducting all lawful commissions and charges, to satisfy the judgment in this case; denies that defendants are or were indebted to E. J. Hart & Co., in any sum on general balance of account, and avers that E. J. Hart & Co. were and are indebted to defendants over and above all debts or liabilities of defendants to them, to an amount sufficient to satisfy the judgment in this case; denies that E. J. Hart & Co. ever accounted to Graham, Hodges & Co. for the proceeds of the whisky inquired of, and avers that the pretended settlement with Charles E. Goodwyn, on the fifteenth of March, 1865, was a fraud on the firm of Graham, Hodges & Co., then in liquidation, and upon the creditors of ■ said firm, and is an absolute nullity of no validity, force or effect in law for any purpose whatever; denies that said pretended settlement 'was ever acquiesced in by the other members of the firm, or either of ■them; denies that at the time of said pretended settlement the said 'Goodwyn was a creditor of his firm in any amount whatever, and avers that W. R. Hodges was a creditor to a considerable amount, while Graham’s account was not balanced, though there was nothing to his credit; avers that the consignment of brandies referred to in the answers, as having been settled for by compromise, had been consigned to E. J. Hart & Co. by Graham, Hodges & Co., as agents of Charles Hodges, and that the proceeds actually received therefor by E. J. 'Hart & Co. were in excess of the special advances thereon to a very large amount; denies the truth of all other statements in said answer not hereinbefore specially admitted, except that it is true as stated in -said answers, that it was agreed between Goodwyn and E. J. Hart & Co. that the proceeds of the consignments of whiskies, as well as of ■the brandies referred to in said answers, and the whiskies and brandies remaining on hand on the fifteenth of March, 1865, at a valuation should be credited to the individual indebtedness of Goodwyn to E. J. Hart & Co., instead of being accounted for to his firm ; avers that it is not true that the pretended settlement with Goodwyn was bona fide, on a fair adjustment of accounts, but that it was at prices very much less than those actually received by E. J. Hart & Co. for the whiskies sold, and at a valuation for tlie whiskies taken to account much less than the market price at the time; and that this pretended settlement, in addition to its other fraudulent features, was fraudulent also in this, that a large quantity of the whisky is not accounted for at all, as either having been sold or as remaining on band; denies .the truth of all the allegations relative to the compromise of the suit No. 5108 of the United States Circuit Court, except what appears on the face of the paper, it being admitted that the signatures thereto are genuine.”

The garnishment process is the mode for making seizures of intangible property. The garnishees say they hold the thing, attempted to be seized, by virtue of a title acquired by a settlement between themselves and their debtor. Suppose the whiskies and brandies, etc., bad been actually seized in the possession of the garnishees, and they had shown a title for the whiskies, etc., could that title be attacked collaterally ? The seizing creditor can not disregard the title and possession of the garnishees and treat it as a nullity.

The difficulty in this case arises from the attempt of the plaintiff to change his garnishment process into a revocatory action.

This can not he done. 19 An. 16. The grounds on which the plaintiff claims to set aside the transfer or settlement made in 1865, is that the partnership assets were given in payment of an individual debt of one of the partners; that is, au unlawful preference given to tbe individual creditor over tlie partnership creditor.

His remedy, we think, is by a direct action.

It is therefore ordered that the decree heretofore rendered remain uu disturbed.


text:
    No. 3958.
    State of Louisiana v. William H. Hardin.
    Whore a "bill of exceptions was taken to the ruling of the judge a quo. refusing to permit evidence to he offered, on the trial of a motion in arrest of judgment, to prove that one of tlie jurors was an unnaturalized alien ;
    Held — That said ruling was correct. Sucli motions must be based on errors patent on tbe face of tbe record. Besides, tbe juror having been accepted, tbe defendant could not, after conviction, complain of .tbe want of qualification in tbe juror.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Levisee, J. Criminal case.

      James 8. Ashton, District Attorney, for the State. Leonard & Seott, for defendant.
   Ludeling, C. J.

This is an appeal from a judgment sentencing thedefondant to imprisonment at hard labor in the penitentiary for the-term of one year.

There is only one bill of exceptions in the record. It is taken to the-ruling of the judge, refusing to permit evidence to be offered, on the trial of a motion in arrest of judgment, to prove that one of the jurors was an unnaturalized alien. The ruling ,was correct. Such motions-must be based on errors patent on the face of the record. Besides, the juror having been accepted, the defendant could not, after conviction,, complain of the want of qualification in the juror.

Judgment affirmed.


text:
    No. 4375.
    Succession of Manette Dubreuil.
    In 1860, Manette Dubreuil died. Her estate consisted of flic undivided balf of a certain real! estate, standing in the name of Charles Beebe, deceased. Manette Dubreuil had no legaL heirs. Luke Beebe was her natural son, duly acknowledged and recognized as such by a. judgment of the Second District Court of the parish of Orleans. In 1870, said Luke Beebe got judgment in his favor against the executor of Charles Beebe, to recover one-half of said property. In 1871, the children of a predeceased natural child of Manette* Dubreuil, caused her will to be probated. These grandchildren and Luke Beebe were by said will made universal legatees; and the testatrix further declared that she acknowledged owing her son Luke acertain sum of money he had advanced to her for her benefit,, and which she wished to be paid to him, with a certain rate of interest. The grandchildren and universal legatees, who are the contestants in this case against Luke, maintained that the passage of the testament above referred to was only the acknowledgment of a debt and not a legacy, and pleaded prescription;
    Held — That it constituted a remunerative legacy; that the succession of Manette Dubreuil! was an irregular succession; that representation is not admitted in such successions,, except in the case of the succession for a natural child; that until the will of Manette* Dubreuil was probated, Luke Beebe was the sole heir of the deceased; that, as such, he had no right to sue the estate, or to make a demand for payment of a debt due to him, as> such debts are extinguished by confusion; that when the will was produced and probated, Luke B.eebe ceased to be the sole heir; that his right as creditor became exigible, and that until then prescription did not begin to run.
    APPEAL from the Second District Court, parish of Orleans. Duvigneaud, J.

      Lea, Finney <& Miller, for appellant. Gharvet, Duplantiev and P. JDuvigneaud, for appellees.
   Ludeling, C. J.

This suit is to effect a partition and settlement of the succession of Manette Dubreuil. An order for the partition was-made, referring the parties to a notary, who adjusted the accounts.

He allowed Luke Beebe the following items, to wit: Eight hundred! dollars, with eight per cent, per annum interest, from the fifteenth of June, 1871, being the amount mentioned in the will of Manette Dubreuil, in favor of Luke Beebe; one hundred and eighty-six dollars- and one hundred and nineteen dollars; debts of the deceased paid by Luke Beebe at her request, sui dry sums, expenses of the last illness- and of the funeral of the deceased, amounting to seven hundred and. ninety-two dollars and fifty cents, with eight per cent, interest during several years.

On the trial of the rule to homologate this account, the lower court rejected these items, holding that they were prescribed. From this judgment Luke Beebe appealed.

Manette Dubreuil died in 1860. Her estate consisted of an undivided half of certain real estate standing in the name of Charles Beebe, deceased. The property was inventoried as the property of Charles Beebe, and was claimed by his executor and heir.

The only evidence of the right of Manette Dubreuil to any part of the property was parol. Manette Dubreuil had no legal heirs. Luke Beebe is her natural son, duly acknowledged and recognized as such by a judgment of the Second District Court of New Orleans. He instituted suit against the executor of Charles Beebe to recover one-half of the property inventoried as Charles Beebe’s, and in 1870 he succeeded in getting a judgment in his favor. The property thus secured is the subject of the present suit.

On the third of June, 1871, the children of a predeceased natural child of Manette Dubreuil caused her will to be probated.

By this will she instituted her two children, Luke and Elizabeth, and the grandchildren of her deceased son, John Dubreuil, to wit: John, Oneseine and Marie Dubreuil, her universal legatees, and she further declared in her will:

“Je recomíais devoir á mon dit fils Luke Beebe la somme de huit cents piastres, pour avances qu’il m’a faites en diverses fois pour me mettre h méme de payer, mes banquettes, les taxes sur mes propriétés, mon médecin et les reparations que j’ai eu a faire a mes maisons.
“ J’entends et je veux que cette somme lui soit remboursée et payée de suite aprés mon décés, avec un intérét sur le pied de huit pour cent par an á partir de ce jour, quinze juin, mil huit cent cinquante-sept, jusqu’au paiement intégral de la ditte somme.”

Elizabeth Beebe died before the testatrix, and the children of John Dubreuil are the contestants with Luke Beebe. They have pleaded prescription against the claims of Luke, contending that the passage of the testament above quoted is only an acknowledgment of a debt and not a legacy.

We think it constituted a remunerative legacy. 2 R. 292 ; 4 R. 397; 13 An. 87; 8 An. 362.

In order to appreciate correctly the question raised by the plea of prescription against the debts due Luke Beebe, it is necessary to understand the status of Luke Beebe and of the children of John Dubreuil.

The succession of Manette Dubreuil was an irregular succession. To such successions the law calls the surviving husband or wife; secondly, the natural children; and lastly, the State. C. C. art. 917.

Representation is not admitted in such successions, except in the ■case of the succession of a natural child. C. C. 923. So that until the will of Manette Dubreuil was probated, Luke Beebe was the sole heir of the deceased. As such he had no right to sue the estate or to make a demand for payment of a debt due him. Such debts would be extinguished by confusion. When the will was produced and probated, Luke Beebe ceased to be the sole heir, and his right as creditor became exigible. Until then prescription did not begin to run. 11 Rob. 402; 2 La. 451; 13 An. 161; C. C., art. 3537.

It is therefore ordered and adjudged that the judgment of the lower court be so amended as to allow the appellant, in addition to the amounts allowed him by that judgment, the amount of the following items of the statement of accounts in this succession made by J. P. Coffey, notary, dated twenty-ninth of December, 1871, to wit: Item No. 3, $201; item No. 4, $150; item No. 5, $180; item No. 6, $102 50 ; item No. 7, $75 ; item No. 8, $30 ; item No. 9, $50 ; item No. 15, $186 and $119, one-half thereof, $152; item No. 12, $800 — with interest at the rate of eight per cent, per annum on this last item, in accordance with the terms of the will,-and five per cent, per annum interest on the other items, from the date of the probate of the will; and that the same be paid out of the property belonging to the succession of Manette Dubreuil, in due course of partition; and that as thus amended the judgment of the lower court be affirmed. It is further ordered that the appellees pay costs of appeal.


author: Taliafeeuo, J.

text:
    No. 4654.
    State of Louisiana v. John F. C. Wells.
    "Where the exception was to the ruling of the court permitting an indictment to be amended by inserting the value of the mule alleged to have been stolen;
    Held — That it was not necessary that the value of the animal should have been set forth in the iudictment. The amendment added nothing to the validity of the instrument, nor did it in any manner vitiate it. Vtile per inutile non vitiatur.

    APPEAL from the Eleventh Judicial District Court, parish of Red River. Trimble, J. Criminal case.

      Iiobert J. Vaughn, District Attorney, for the State. J. PI. Paxton, J. C. Proion, L. W. Connolly, for defendant.
   Taliafeeuo, J.

The defendant was indicted for stealing a mule. He was found guilty and sentenced to the penitentiary for three j'ears. He has appealed.

The case is presented by a bill of exceptions to the ruling of the court permitting the indictment to be amended by inserting the value of the mule alleged to have been stolen. The stealing a horse, ass or mule is a. statutory offense. Revised Statutes, section 814.

“Indictments for statutory offenses must describe the offense in tbe words of tbe statute, or words certain and equivalent.” 5 An. 324.

It was not necessary that tbe value of the animal should have been set forth in the indictment. The amendment added nothing to the validity of the instrument, nor did it in any manner vitiate it. Utile per inutile non vitiatur.

Judgment affirmed.


author: Morgan, J. Morgan, J.

text:
    No. 2776.
    John Halliday v. A. Lanata.
    Where the judge of the District Court was of opinion that the verdict of the jury was indirect and flagrant violation of law and evidence, and in utter disregard of his charge,, he should have set the verdict aside and granted a new trial, as asked for.
    It is impossible to sanction the practice, become too common, that an inferior judge should sign a judgment which he believes and avers to be wrong, in the hope that this court will set it aside.
    Where counsel for appellee complained that, before this court should have set aside the verdict of the jury and remanded the case, it should have decided that their finding was erroneous;
    Held — That there was force in this criticism of the decree, and that a rehearing should be granted as prayed for.
    APPEAL from the Sixth District Court, parish of Orleans. Oooleyr J. Trial by jury.

      Fellows and Mills, for plaintiff and appellee.

      Poselms and Philips, for defendant and appellant.
   Morgan, J.

In the record we find the following extract from the minutes of the lower court:

“Alfred Philips, Esq., of counsel for defendant, moved the court that said defendant be allowed the following order, to wit:
“ On motion of C. Roselius and Alfred Philips, of counsel for defendant, it is ordered, that plaintiff do show cause, on-- next, the--instant, at ten A. M., why a new trial should not be granted herein, on the grounds filed.
“Whereupon, the court, for oral reasons assigned, considering the verdict of the jury to be in violation of law and the evidence, and in direct and flagrant violation of the charge of the court to the jury, and for the purpose of expediting justice by appeal to the Supreme Court;
“Ordered, that said motion be overruled, and the new trial asked for be refused.”

If the judge of the district court was of the opinion that the verdict of the jury was, as he says it is, in direct and flagrant violation of law and the evidence, and in utter disregard of his charge, he should have set the verdict aside, and granted a new trial. A different jury might render a verdict in accordance with law and equity, and which may be satisfactory to both parties. It is as much the province of the district courts to set aside the verdict of a jury when contrary to law, as it is ours; and we can not sanction the practice, become too common, that an inferior judge should sign a judgment which he believes, and avers, to be wrong, in the hope that we will set it aside. It'is as much bis duty to see justice done between the parties litigating their rights before him, as it is ours. Why ho should render a judgment which he knows to be wrong, any more than we should, we are at a loss to imagine.

It is, therefore, ordered, adjudged and decreed, that the verdict of the jury herein rendered, beset aside; that the judgment of the lower court be avoided and reversed, and that the case be remanded to the lower court, to be proceeded in according to law; appellee to pay costs of appeal.

On Rehearing.

Morgan, J.

When this case was submitted to us some time ago we remanded it, upon the gronnd that the judge a quo, although he signed the judgment, declared the verdict of the jury upon which it was rendered in direct violation of the law, and against his charge. Counsel for appellee complained that before we set aside the verdict of the jury, we should have declared that their finding was erroneous. We thought there was force in this criticism upon our decree, and granted the rehearing prayed for. We now embark upon the labor which it is our duty to perform, and shall proceed to dispose of the case upon its merits.

Plaintiff alleges that in July, 1869, Lanata, under an order of attachment, seized upon his marble and granite works, situated at the corner of Glirod and St. Charles streets, taking corporeal possession of the same, and of all the stocks, implements and chattels therein contained; that this order of attachment was procured by Lanata’s making oath that petitioner was about to convert his property into money, so as to place it beyond his reach, and that he was his creditor for $604 15, adding that “he had been credibly informed and verily believed that Holliday had, since the maturity of the note sued on, declared that it was his intention to sell out his establishment and leave the country.” He avers that at the time of making these charges, Lanata was well aware that they were utterly devoid of foundation, and that on the contrary plaintiff was on the eve of extending his business, by opening a most valuable quarry of marble in the State of Alabama, the product of which, when once known in this market, would almost completely supersede that imported from Italy, inasmuch as the same quality of native marble could be sold at a profit for half the price of the foreign; that he had, without the slightest reserve, communicated his project to Lanata, and had even submitted to him samples of the •several qualities of marble produced by the quarry which lie proposed •to exploit, and that it was not for the purpose of securing the claim ■against petitioner which caused Lanata to take out his writ of attachment, but that it was obtained in order to preserve and maintain his valuable monopoly of the importation of Italian marble by crushing the rival enterprise of the petitioner; that upon a rule to set aside the ••attachment, the malice and bad faith of Lanata were made fully apparent, and the order was accordingly rescinded; that by the false .and calumnious charges made under the sanction of his oath, and at the peril of pecuniary responsibility, Lanata has so far succeeded in ■shaking the credit of petitioner as to compel him to suspend his business, dismiss his workmen, and has involved him in the greatest •embarrassment for the fulfillment of his various contracts; that the •direct and immediate damage to him, so far as he had ascehained when he filed his petition, was $7000, and he avers that as iuderanity to his credit and standing, eventual loss of profits and of time, annoyance and expenses of litigation, the further sum of $15,000. He asks for a judgment for $22,000.

The defendant filed a general denial.

There was a verdict and judgment for the plaintiff for seven thousand dollars ; and the defendant has appealed. The plaintiff has not asked that it be amended in his favor.

There is no doubt that Ilalliday owed Lanata $607 35. To the petition filed against him, in which this sum was claimed, he made no ■answer, and judgment by default thereon was rendered and confirmed against him, and there is no evidence in the record that this judgment •has ever been paid. But the record does contain the sheriff’s return •upon the fi. fa. issued thereon, which is in the following words: “Received, December 4, 1869. Nothing realized after due demand made of defendant, who answered, no money, no property.”

Lanata’s suit was filed on the thirtieth of July, 1869. The writ of attachment was issued on the same day, and on the second of August the contents of the marble yard, corner of St. Charles and Delord streets, were seized by the sheriff; on the twelfth of August they were released, •defendant having given bond ; and on the twenty-first of August the attachment was set aside by the court from which it issued.

The note upon which the suit was brought was dated the eleventh of March, 1869, payable thirty days after date. The petition was filed on the thirtieth of July.

The plaintiff has been living in this city twenty-three years, and, at the time the attachment was sued out was engaged in working marble, granite and stone of all description. The attachment of his property, he says, completely broke him up in business, and caused him immediate damage in the sum of eight thousand dollars, loss of profit, ■which he would have made on several pieces of work which he had on hand, and which he was unable to complete.

He was the owner, as he says, of four hundred acres of land in Taledega county, Alabama, upon which there is a marble bed, elevated out of the valley about two hundred and seventy feet, a solid mass of marble, extending down the valley one mile, “ and is about half a mile wide before it pitches in the mountain on the other side.” He considers it a much finer quality of marble than the Italian, as it is, according to Professor Tournay, of Alabama, pure carbonate of lime, which-constitutes the finest quality of marble ; it contains only one trace of silica, while there are several traces of silica in the Italian marble. There are several kinds of marble in the bed ; blue, black, green and white. The black is fully equal to the Irish marble, and the green is equal to the marble called verd-antique, and takes as fine a polish. There is also a quarry of common flag stones in the same tract. His intention was to supply the city with marble and building material, and to aid in this purpose he was (when testifying in this suit, twenty-eighth of January, 1870) having a tow-boat and barges prepared to fetch the marble here. His chief depot was to be at the New Basin. He was to-have, besides, a depot in New York, and one in St. Louis. The marble, he says, could be sold for thirty per cent, less than the Italian marble-. Flags, coming from New York, would cost about $3 50 a yard, while-those from his quarry would cost about fifty cents a yard. He was offered, he says, $70,000 by capitalists in New York, for a half interest in his quarry, or, rather, they offered to put in that amount to work the quarry,-but whether or not he accepted this proposition does not appear. It is probable, however, that he did not accept so low a price for his property, as, estimating what quantity of marble might be produced from it, he says: “I believe the marble business in Vermont amounts to $3,000,000 per annum; and these quarries are more extensive and more easily worked, because it is a surface quarry, and the others have to go down seven hundred feet to get the marble, and to mine underneath the earth.”' He would not have been apt to have sold-the half ol so large a property for so insignificant a sum as $70,000-.

Now, Lanata was also in the marble business. He knew of the-plaintiff’s quarry; he was informed of his intentions regarding it; and, according to the plaintiff, it was to get rid of so formidable a rival, that he instituted these attachment proceedings against him, which, as he says, completely broke him up.

If this be true; if Lanata caused him this great damage; if the attachment of his property was made without just cause and without the authority of law, Lanata was wrong, and the damage he has caused he must repair.

We can not agree with the plaintiff as to the damages he alleges he has sustained. He claims that when the attachment issued he had contracts on hand which would have netted him $8000. The contracts he has positively sworn to are, first, one with Willoz to build a tomb for $5200; second, one with the Ladies’ Benevolent Association for $3200. He says he had others for mantels, etc., for various parties inflas city, and some work for persons living in Mississippi, bnt with the exception of the partner of a Mr. Salter, lie gives neither names nor amounts of his contracts, and he does not say how much this party was to pay him. The contracts which he has established amount to $8400. To enable him to earn $8000 on them they would have been almost all profit. The contract with Willoz was in the winter of 1868', and was to be finished in three or four months. He purchased the material in New York, on a letter of credit ,from Davidson — except about $800 — who was his associate in the matter, and when the materials were shipped they drew drafts for the price thereof on Davidson. Portions of the work were to be paid for as the work progressed. Being asked how much he has received on account of this work,, he says he does not recollect; being asked how much is due on account of the .work he says he does not recollect; says he does not know whether he will be paid anything or not; that he is entirely at his mercy, as the contract has expired. Being asked when it expired, he says he does not recollect; says he thinks the work was to be completed by All Saints’ Day,” but being pressed with the question, “the contract had expired, then, previous to August, 1869?” he answers “yes.” Now, as Lanata’s attachtachment was only levied on the second August, it necessarily follows that he did not lose anything on that contract by reason of Lanata’s. attachment. Besides, he testifies that the work was going on under his direction when the suit was being tried. With regard to the contract with the Ladies’ Benevolent Association, he says he should have made a profit of $1500. The total he was to have received for the entire work was $300.0 or $3290. Being asked how much he had received on account of this work, he answers, “ $500 is all I received.”' But he says that he gave Davidson orders for money on this contract. Being asked how much Davidson received, he says he does not know, but he thinks he received something like $2000. If the contract, then, was for $3290, $900 remained due on it.

Then he had a flight of steps to make for a lady who lives somewhere in the neighborhood of Carrollton. But where she lived exactly he could not tell; neither did he know her name, nor whether she was married or single; nor does he say what he was to receive for the work, nor that it was ever commenced. Being asked what became of the steps, he says the stone is “laying around the yard; laying out in the burying ground.” Being asked what the material was doing in. the burying ground, he says part of it was attached to some of the other material to build a tomb with, from which it had to be split off; that it was never hauled away; and that he never did any work on the steps. It is difficult for us to see how Lanata’s attachment could have interfered with the profits which he expected to realize from this work.

It seems that he had another contract with, one Roberts for $1650. But this contract was entered into in 1868. The work is not finished. At first he does not recollect when he commenced it; thinks it was commenced about eighteenth June, 1868; some of it was done while he was in x^artnership with Robertson. He continued to work “ until all the stuff he had on hand was used up.” Then, he says, he could not continue the work because he could not get means to pay the hands. Being asked how much money he had received on this contract, he ■doesn’t recollect; nor does he recollect when the first payment was made. We do not see that Lanata’s attachment caused the damage he •complains of here, if he was damaged at all. Neither do we see how he could have suffered the damage he claims by reason of the taking possession by the sheriff of the j>roperty which he claims he was deprived of. He says all his property in the yard was attached. Being-asked what that property consisted of, he says: “Blocks of marble, ■and one thing or another.” But he can not tell how many, or what ■they were worth. Being asked how much property of his own was .attached, he says he doesn’t recollect. Asked whether it was worth :$I00, he says he can not tell without going into a measurement.

But his main cause of complaint is that the attachment prevented ■him from raising any money to carry on his business. We find another reason for it; it is that he did not pay his debts. If he liad paid Lanata what he owed him, his credit would not have been impaired. It was the suit, not the attachment, which was a mere accessory to it. which injured him. Besides, he testifies that he kept the knowledge ■of the attachment from the men in his yard, and that they were not .prevented from working by it. If his work went on, without regard ■to the attachment, we do not see how the attachment injured him.

All these facts we have taken from the testimony of the plaintiff, •and we do not see from his own story of his wrongs that Lanata has caused him any damage, and we agree with the district judge that the verdict which gave him seven thousand dollars, was neither sanctioned by the evidence or authorized by the law.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided, annulled and reversed; and it is further ordered that there be judgment in favor of defendant with costs in .both courts.


author: Howell, J.

text:
    No. 2930.
    Daniel Phelan et als. v. Charles Ax.
    "Whore the plaintiffs claimed one-half of a certain lot of ground as heirs to their deceased mother, who had an undivided community of interest in said lot, now in possession of defendant ;
    Held — That plaintiffs had no cause of action, inasmuch as it was not shown that the community between the plaintiffs’ lather and mother had been settled, nor that anything remained after paying the debts thereof, nor that plaintiffs had been put in possession of their mother’s estate.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      Breaux & Fenner, for plaintiffs and appellants. F. J. Wenelc, for defendant and appellee. T. A. Bartlette, L. Oastera and O. Hunt, for warrantors.
   Howell, J.

The plaintiffs, children of William Phelan, claim as heirs of their mother the undivided half of a lot of ground in the possession of defendant, who holds under title by mesne conveyances from their father. The several vendors are called in warranty.

It appears that William Phelan first acquired the property in May 1852. In March 1858, he sold it for cash to one T. Lafon, with the right of redemption lor one year. In April 1859, Lafon resold to Phelan for a small cash payment, and the balance in a note for $1500 at one year with eight per cent, interest, and secured by mortgage and vendor’s privilege. In September 1859 Mrs. Phelan died, and in March 18G1 her succession was ojiened by the surviving husband, the inventory showing no property except that now in controversy, which was appraised at $3500. In April following, William Phelan surrendered his property to his creditors, his schedule showing debts exceeding $5500 and assets consisting of this property valued at $3500 and a few hundred dollars of personal rights. The interest of his minor children in the said lot was suggested. T. Lafon was appointed syndic; but the property was not sold until May, 1865, when P. Halpin purchased it at sheriff’s sale for $2440, and in December following he sold it to the defendant.

In March, 1861, William Phelan filed a petition in the Second District Court, setting out community debts to about $3000, alleging the necessity of selling said property to pay them, and praying for a family ■meeting to fix the terms of sale; and in February, 1862, upon the advice of a family meeting, he was authorized by the said court as tutor to sue for a partition of said property, and suit was instituted for the purpose against the syndic, but not prosecuted.

The defendant and the warrantors excepted that the petition shows no cause of action, in that it is not shown that the community between plaintiffs’ father and mother has been settled, nor that any thing remained after paying the debts thereof, nor that plaintiffs have been put fin possession of their mother’s estate. Answers were filed, setting up general and special defenses, and the exceptions were referred to the trial on the merits. After hearing evidence the court a gwcunaintained. the exception that plaintiffs have no cause of action, because they have-not shown that the community between their father and mother has been settled.

This, as a defense, seems to be sustained by the authority of Lawson v. Ripley, 17 La. 247, where it was held that the representatives of a• deceased wife, although their distinct interest to the community attaches at the dissolution of the marriage, subject to their right to-renounce and to be exonerated from the payment of the community debts, have nothing to claim out of the acquets and gains, until such debts are paid or liquidated. See also 1 R. 3?8; 7 R. 404; 2 An. 30..

We do not think the authorities relied on by the plaintiffs establish®, different doctrine or maintain their right of action under the circumstances of this case.

Judgment affirmed.


text:
    No. 3019.
    H. C. Millaudon v. Mrs. Widow Carson.
    Wliero a suit was brought against a wife after her husband’s death, on a promissory note-made by said wife and her husband m solido, and secured by a mortgage on property standing in the name of the wife, but purchased during the existence of the community; Held — l’hat she could not bind herself with her husband by borrowing money to pay for-said community property.
    APPEAL from the Seventh District Court, parish of Orleans. Gollens, J. Trial by jury.

      John S. Tulhj, for plaintiff and appellee.

      James Graha/m and W. B. Hyman, for defendant and appellant.
   Ludeling, C. J.

This is a suit on a promissory note made by the-defendant and her husband in solido, and secured by a mortgage on property standing in the name of the wife, but purchased during the existence of the community.

The husband had died when this suit was instituted; the wife alone-was sued, and there was judgment against her personally for the amount of the note and recognizing the mortgage. This note was a. community debt. It was proved that the amount for which judgment was rendered against her had been used in paying the price due on the-purchase of the property aforesaid, and it is therefore contended that the debt inured to her separate benefit. This is not correct.

The property purchased during the marriage was community, and she could not bind herself with her husband by borrowing money to pay for it.

It is therefore ordered and adjudged that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of.' the defendant with costs in both courts.


text:
    No. 4681.
    State ex rel. Jose M. Caballero v. Judge of the Second District Court, Parish of Orleans.
    A writ of prohibition will only be issued in aid of the appellate jurisdiction of this court. It is not necessary, where, on the judgment being rendered in the court below, the case can be brought before this court for review, and the question of jurisdiction he decided.
    APPLICATION for a writ of prohibition, to be issued to A. L. Tissot, judge of the Second District Court, parish of Orleans.

      George L. .Bright, for the application on behalf of Mrs. Conte.
   Ludeling, C. J.

This is au application lor a writ of prohibition .against the judge of tlie Second District Court of the parish of Orleans, on the ground that the court is without jurisdiction to try the ■ case. We have heretofore frequently said, that this writ will only be issued in aid of our appellate jurisdiction. The writ is not necessary in this case. When the judgment shall have been rendered in the ■case, it can be brought before this court for review, and the question ■of jurisdiction can then be decided.

It is therefore ordered that the application for the writ be refused, with costs against the relator.


author: Morgan, 4-

text:
    No. 4344.
    State of Louisiana v. Edward Kelly, alias Jack Toby.
    'The statute of Louisiana authorizing prosecutions by the District Attorney on information is not in conflict with the fifth amendment to the constitution of the United States, which declares “ that no person shall he held to answer for a capital or other infamous crime, unless on a presentment or indictment by a grand jury.” The restriction by this amendment has no application to State courts.
    Where the accused, on his being brought to the bar in the custody of the sheriff, is ready for his trial, it is to bo presumed that if he has no counsel and does not ask the court to assign him one, he chooses to ho hoard in his own defense.
    ‘.The fact that, on his application lor a new trial, he stated that he was without counsel and was thus unable to dofend himself, is no reason why this oonrt should reverse the judgment which was based upon the verdict of a jury.
    "When the oifenso with which the prisoner was charged consisted in his having entered a vessel in the day time with intent to steal, it was not necessary that the information should have recited and described the precise article which he intended to steal. It is sufficient if the indictment is drawn up in accordance with the statute on this subject. D. S. section 854.
    APPEAL from the Eirst District Court, parish of Orleans. Abell, J. Criminal case.

      .Edward Kelly, in propria persona, appellant. Simeon Belden, Attorney G-eneral, for the State.
   Morgan, 4-

The defendant has appealed from the judgment of the district court, which sentences him to three years’ imprisonment at' hard labor in the penitentiary, he having been found guilty of entering . a vessel, in tlie day time, with intent to steal. The proceedings against .him were by information of the district attorney. The counsel appointed by this court, at his request, assigns for error to appellant’s-prejudice, and apparent upon the record:

Mrst — That the constitution of the United States (fifth amendment)provides that no person shall be held to answer for a capital or other infamous crime, unless on a presentment or indictment by a grand jury, and he contends that inasmuch as he has been convicted of an infamous crime, under the sixth act of the State constitution, which-provides that prosecutions shall be by indictment or information, and the 977th article of the Revised Statutes, which provides that prosecutions for offenses not capital may be by information, with the consent-of the court first obtained, the proceeding was in violation of the third article of the constitution of the United States above referred to, and,, consequently, that his conviction was unlawful.

This objection has been settled by former adjudications of this court'.. In the case of the State v. Jackson et al. we held that the statute of the State of Louisiana authorizing prosecutions by the district attorney-on information is not in conflict with the fifth amendment to the constitution of the United States, which declares “ that no person shall-be held to answer for a capital or other infamous crime, unless on a presentment or indictment by a grand jury.” The restriction by this-amendment to the constitution of the United States has no application to State courts. 21 An. 574.

Second — The second error he assigns is that when the appellant was-arraigned and plead not guilty, he was, not asked by the court whether-he was provided with counsel, and although notified of the fact, in the motion for a new trial, that he was unable to make his defense by coimsel learned in the law, the court even then assigned him no counsel to undertake his defense.

The sixth article of the constitution of the State secures to every person charged with crime the right of being heard by himself or counsel. But we do not understand that counsel can be forced upon him. He has the right to be heard by himself, and inasmuch as when brought to the bar in the custody of the sheriff, as appears from the record, he was ready for his trial, we must presume that if he had no-counsel, and did not ask the court to assign him one, he chose to be heard in his own defense. The fact that in his application for a new trial he stated that he was without counsel, and was thus unable to defend himself, is no reason why this court should reverse the judgment which was based upon the verdict of a jury.

Third — The third error assigned is that the information does not-recite when, where or what the accused intended to steal; and that, as the act charged against him is criminal only from the intent, the-intention should have been stated in the information specifically, as-essential to and involving the very existence of the crime.

Tlie offense consists in the prisoner having entered a vessel in the daytime with intent to steal, and the indictment is drawn up in accordance with the statute upon this subject. R. S., sec. 854. The law does not say that the precise article which he intended to steal shall be described. Indeed, this would be impossible. The punishment is for the commission of the offense. This is a question of fact, and whether orno the evidence justifies the finding of the jury'we are precluded from considering.

Judgment affirmed.


text:
    No. 2914.
    Olympe de La Grange v. Southwestern Telegraph Company.
    Where the action is to make a telegraph company responsible for loss on goods, resulting-from error in a telegraphic message, the prescription of one year does not apply. Thi^ action arises ex contractu, and not ex delicto.

    Where it is contended that the defendants are not the first carrier or contractor, and that it is not proved that the error in the transmission occurred on defendants’ line, on whose printed blanks there is express provision for non-liability for the default of other companies;
    Held — That, whether first carrier, or not, it was peculiarly within their power, and was their duty, to make tho proof here suggested, if necessary.
    Defendants were engaged in the business of transmitting messages to and from various-points in the country, and found it to their interest, if not a necessity, to effect such mutual arrangements with other companies, without any consultation with the parties who might use tho telegraph. It was in their power to show that the message delivered by them to plaintiff was precisely the same one received by them from another line, and thus throw the responsibility upon the other company, in case it should be held tobe a correct legal principle, that one of two or more connecting companies may thus be relieved from liability.
    The proposition that tho defendants are liable, if at all, only in case the message is repeated as contained in the printed conditions, can be invoked only against tho sender of the-message, if against any. The receiver can be guided or informed solely by what is-delivered to him, and has no opportunity to agree upon any such condition before delivery.
    APPEAL from the Fifth District Court, parish of Orleans. Leamnontr J.

      W. H. Sunt, for plaintiff and appellee. Semmes <& Mott, for defendants and appellants.
   Howell, J.

This is an action to make the Southwestern Telegraph Company responsible for loss on goods, resulting from error in a. telegraphic message.

The material facts are, that a Mrs. Tayloe, at Demopolis, Alabama, telegraphed to plaintiff, in New Orleans, to send to her immediately, by express, to Macon Station, Alabama, certain valuable goods, which were needed on a particular day. The dispatch delivered by defendants directed the goods to be sent to Marion Station, Alabama, and in consequence were never received by Mrs. Tayloe, but after some months they were returned by the express company and tendered to plaintiff, at whose instance they were examined by experts, and the damage fixed at 11250, for which she obtained judgment, and the defendants appealed. It appears that a different and distinct company transmitted the message from Demopolis, Alabama, to Meridian, Mississippi, whence the defendant company forwarded it to New Orleans, and delivered it to the plaintiff.

The first question is as to the prescription of one year, interposed by defendants.

The action, in our opinion, arises ex contractu and not ex delioto. The defendants hold themselves out to the public as being ready to transmit for hire messages for individuals and to deliver faithfully to others such messages as are intrusted to them. They make themselves the agents of both the sender and receiver, and their failure in their assumed duties creates an obligation in favor of the one who may be thereby injured. See 35 Penn. R. 298. It may and often does occur that the party to whom the message is addressed is the only one whose interests are involved, and who is to pay__theJee. In such case he is -the one in reality with whom the contract is made.

The prescription of one year does not apply.

It is next contended that the plaintiff by her negligence has contributed to the injui’y complained of and can not recover.

The evidence does not sustain this defense. The plaintiff sent the goods in accordance with the instructions received by her, and there was nothing to suggest to her any error or to impose on her the obligation to provide against the mistake or negligence of the defendants. The goods passed from her control, and before they were put within her reach, the damage was incurred without her fault or agency.

It is contended further, that the defendant is not the first carrier or •contractor, and it is not proved that the error in the transmission occurred on defendants’ line from Meridian to New Orleans, and being delivered on their printed blanks, there is express provision for non-liability for the default of other companies.

It seems clear to us that whether first carrier or not, it was peculiarly within the power, and was the duty of the defendants to make the proof here suggested, if necessary. They were engaged in the business of transmitting messages to and from various points in the .country, and found it to their interest, if not a necessity, to effect such mutual arrangements with other companies as would enable them to successfully conduct such business, and this without any consultation with the parties who might use the telegraph. It was in their power to show that the message delivered by them to plaintiff was precisely the one received by them at Meridian, and thus throw the responsibility upon the other company, if it be a correct legal principle, that one of two ■or more connecting companies may thus be relieved from liability, a •question which it is unnecessary now to decide.

The proposition that the defendants are liable, if at all, only in case ¡ the message is repeated as contained in the printed conditions, can be invoked only against the sender of the méssage, if against any ; for it is his message, his language that is to be transmitted, and it is only known to the receiver when delivered and as delivered. He is to be guided or informed by what is delivered to him, and he has no opportunity to agree upon any such condition before delivery.

The plaintiff sent her goods according to the directions contained in the telegram delivered to her by the defendants, and by their fault, or that of those for whom and with whom they were bound, she lost the sale of them, and a loss by depreciation in value was the consequence. For this we think the defendants are directly responsible.

Judgment affirmed.

Rehearing refused.


text:
    No. 4668.
    O. L. Blanchard v. Maximilian Kenison.
    Where the claim of plaintiff was fbr about §478, principal and interest, at the institution of the suit, and was alleged to be the hire paid in advance, under a charter party, for a steamboat, which was lost; and where the defendant reconvened, claiming §10,200; the value of the boat;
    Held — That the motion to dismiss the appeal for want of jurisdiction, must prevail. The real matter in dispute is less than §500. The char er party is nob the matter in dispute. The demand, it is true, grows out of the charter party, but it is simply to recover back a certain sum paid under the provisions of the charter party; and the right to recover hack, as alleged, springs from a canse outside of the charter party, and the existence, or validity, or the enforcement, of the charter party, is not involved in plaintiff’s demand.
    Besides, no appeal has been taken in relation to the reeonventional demand.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      Bentinclc LSgan, for plaintiff and appellee. Randolph, Singleton & Browne, for defendant and appellant.
   Howell, J.

A motion is made to dismiss this appeal, for want of jurisdiction.

The claim of plaintiff and appellee is for about $478, principal and interest, at the institution of suit, and is alleged to be the hire, paid in advance, under a charter party, for a steamboat, which was lost. The defendant reconvened, claiming $10,200, the value of the boat. Judgment was rendered iu favor of plaintiff, for the sum claimed, and dismissing the demand in reconvention. The defendant was allowed a suspensive appeal from said judgment, upon giving bond, as required by law. He gave boud for $850.

The motion mnst prevail. The matter in dispute on the principal demand is less than $500, and we have no jurisdiction of it. The appellant errs in saying the charter party is the matter in dispute. The demand, it is true, grows out of the charter party, but it is simply to recover back a certain sum paid under the provisions of the charter party; and the right to recover back, as alleged, springs from a cause outside of the charter party; and the existence or validity, or the-enforcement of the charter party is not involved in plaintiff’s demand.

Nor can we maintain the appeal as to the reconventional demand, as no appeal seems to have been taken therefrom.

It is therefore ordered that the appeal be dismissed, with costs.

Rehearing refused.


author: Morgan, J.

text:
    No. 3452.
    Jean Antoine Escott et als. v. City of New Orleans.
    All the questions in this suit were passed upon and settled in the case of the heirs of Escott a. Municipality No. 3.
    APPEAL from the Fourth District Court, parish of Orleans. Theard, J.

      Lacerj, Butler <& Lavisson, for plaintiffs and appellants. H. JD: Ogden, for defendant and appellee. JRandell Hunt, for the heirs of Livingston, called in warranty.
   Morgan, J.

We agree with the judge of the district oourt, that all the questions in this controversy have been passed upon, and are settled by the decision of this court in the case of the heirs of Escott v. Municipality No. 2.

The judgment of the district court is, therefore, affirmed, with costs. Rehearing refused.


text:
    No. 4331.
    The State v. Henry Petrie.
    Until the jury box is exhausted the jury may be drawn therefrom, even though fifteen* months have elapsed since the list of jurors was furnished by the sheriff.
    The form of indictment is sufficient where it fully apprises the accused of the crime with which he is charged.
    APPEAL from the First District Court, parish of Orleans. Abell, J. Criminal case.

      O. H. Luzenberg, District Attorney, for the State.

      Jamies O. Walker, for appellant.
   Wyly, J.

The defendant appeals from the judgment under which, he was sentenced to the penitentiary during the term of his natural life, said judgment being on an indictment for breaking and entering a dwelling house in the night time with intent to steal, and committing an actual assault upon a person lawfully in such house.

Until the box is exhausted the jury may be drawn therefrom, even, though fifteen months have elapsed since the list of jurors was furnished by the sheriff. The challenge to the array was therefore properly overruled.

The form of the indictment was sufficient. It fully apprised the accused of the crime of which lie was charged. Revised Statutes, section 850.

There are other objections in the assignment of errors; but they are not of a serious character. The appeal seems to have been taken for delay.

Judgment affirmed.

Rehearing refused.