text:
    N. Commandeur v. City of Carrolton.
    An Attorncy-at-law is entitled to commissions on a judgmont obtained by him, although he bo superseded by an appointment of another attorney, and the amount of the judgment collected by his successor.
    APPEAL from the District Court of the Parish of Jefferson, Burthe, J.
    J. B. Cotton, for plaintiff and appellant.

      W. T. Scott, for defendant.
   Land, J.

The opinion and decree of the District Judge are as follows :

“ This suit is brought by plaintiff to recover from the town of Carrollton the amount of commissions alleged to be due him for the collection of taxes, and amounting to $491 19.

“ The evidence shows that in April, 1857, plaintiff was elected by the Council of the town of Carrollton to serve during one year as attorney of said corporation. That in addition to a fixed salary of $-, the attorney of the corporation was entitled to a commission of five per cent, on the amount of taxes collected by him. That in September, 1857, his office was declared vacant by the Council, and another appointed in his place.

“ That in January, 1858, and before the end of the year for which he had been elected, he obtained judgment against the town of Carrollton for the balance of his fixed salary, and recovered the same. In this first suit, plaintiff reserved the right to claim, in due course of time, such commissions as might then be due him, and we must now examine what rights his election and removal have given him.

He has already obtained some relief from this court, and has recovered the fixed salary attached to his office. As to the commissions claimed, he can only recover his commissions upon the amount recovered in the cases where he has acted as counsel, and prosecuted the claims of the town of Carrollton. 12 An. 485 ; 11 An. 30.

“ Of the sum of $49119 claimed by plaintiff, a trifling proportion only, viz, four dollars eighty-seven and a-half cents is shown by the record to be that which he could claim as having brought suit, and obtained judgment against the parties. The whole balance was placed in the hands of his successor, and collected by Mm. The plaintiff has evidently no right to commissions upon the sums thus collected by his successor. The sum to which he is entitled is so insignificant, that we think it would be an act of injustice to compel the defendant to pay the costs of this suit. Reserving therefore to the plaintiff his right to claim from defendant the sum of $4 81k, it is ordered that plaintiff’s demand be dismissed with costs, and that there be judgment against said plaintiff as in case of nonsuit.” There is in this judgment no error. The plaintiff was only entitled to recover the amount of his fixed salary for the year, and the amount of commissions due Mm for services rendered, at the time of Ms removal. The plaintiff’s real demand in this case, that is to say, the debt due him, was not within the' jurisdiction of the District Court.

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


source: Caselaw Access Project

author: Voorhies, J.

license: Public Domain

text:
    A. Miltenberger v. W. L. Burgess.
    Where no attempt lias been made by the vendee to sell or dispose of the property purchased without paying his vendor, or to conceal or cover the same, so as to defeat the latter’s recourse thereon, the case does not fall within the purview of the 10th section of the Act of 1840.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      H. N. Hennen, for plaintiff and appellant.

      V. F. & J. B. Cotton, for defendant.
   Voorhies, J.

The fact of the defendant’s indebtedness to the plaintiff is not denied ; but the latter contends that the judgment rendered below in his favor should have decreed the former’s incarceration under the provisions of the Act of 1840, “ abolishing imprisonment for debt.” Sess. Acts 1840, p. 131.

The 10th section declares that, If a debtor shall purchase property for cash, the delivery whereof shall be made to him, and then shall sell or dispose of the same without paying his vendor, or shall remove the same beyond the reach of such vendor, or shall conceal or cover the same in any manner, so that his vendor cannot render the same liable......any of such facts shall be held presumptive evidence of fraud, liable, however, like all other presumptions, to be disproved.” The following sections provide for the incarceration of the debtor, in order to compel him to pay the debt contracted under such circumstances.

As we concur with the District Judge in the appreciation of the facts it becomes unnecessary to decide whether the Act of 1840, “ abolishing imprisonment for debt,” be repealed by the Acts of 1855, “ relative to forced and voluntary surrenders.” The evidence does not show on the part of the defendant, any attempt to sell, or dispose of the property purchased, without paying his vendor, or to conceal or cover the same to defeat the latter’s recourse. Had it not been for the loss of double the amount of the plaintiff’s claim, — which loss was occasioned by the depreciation in the goods, the order given by the defendant to Miltenberger to pay himself out of the very proceeds, would have settled at once this controversy.

The defendant certainly did not comply with the obligations which he had honestly contracted; but he did not commit a fraud in the sense of the statute.

Judgment affirmed.


author: Buchanan, J.

text:
    Victor Burthe, Administrator, v. P. Fortier.
    The sale of property bounded by an avonuo, in a plan of a town, which is referred to in the act of sale, as designating the position of the property sold, is a dedication of the avenue to public use., and the vendee, together with the public generally, have the right to use the whole width of the avenue.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Durant & Hornor, for plaintiff and appellant.

      Randall Runt, for defendant.
   Buchanan, J.

Two appeals in two suits of the same title, are included in this transcript, and have been submitted to us for decision together.

The first, being No. 11,889 of the docket of the Fifth District Court of New Orleans, is an injunction sued out by plaintiff to restrain defendant from demolishing, removing, or in any wise injuring the fences of the Burthe plantation on Tehoupitoulas street, and on the Carrollton railroad. Although thus general in its terms, the controversy between these parties relates in reality only to fences erected by plaintiff across Henry Clay Avenue, a street upon the plan of Burtheville, made by Hédin, a surveyor or civil engineer, in 1857 ; which plan was referred to in a sale, under private signature, from plaintiff to defendant, of land having the said avenue for one of its boundaries.

On the part of the defendant, it is contended that the fences erected by plaintiff across this avenue, obstructed the defendant’s use of the avenue, and are a direct violation of his (defendant’s) right of passage upon the same; a right derived not only from the dedication to public use, implied, as he contends, from the sale of land with reference to the plan, but which is, moreover, specially guaranteed to the defendant by his contract of purchase from plaintiff.

This controversy has been very much simplified, by an emphatic and unqualified admission of counsel of plaintiff in his argument in this court, that defendant has a right to the uninterrupted use of Henry Clay Avenue ; and by the further admission of plaintiff in argument, that if defendant can make use of his railroad in no other way than by removing the fences erected by plaintiff, in that case, plaintiff is bound to submit to the removal of those fences.

In order to understand this last admission, it must be observed, that the contract between these parties, includes not only a sale of land fronting on Henry Clay Avenue from the river to Levee street, but also a sale of the exclusive use of a space of twenty-five feet wide, in the centre of Henry Clay Avenue, for the construction of a railroad by defendant from the river Mississippi to the Carroll-ton Railroad; which said right of use constitutes, by the terms of the contract, a servitude upon the Henry Clay Avenue, in favor of the property sold to defendant.

These admissions reduce this part of the case to a question of fact, to wit, was the demolition of the fences across Henry Clay Avenue necessary to defendant’s use and enjoyment of the said avenue ?

As we understand the evidence, the plantation which plaintiff and his co-heirs inherited from their father, although divided into squares and lots, with intersecting streets, upon paper, still remained, at the time of plaintiff’s sale to defendant, in the same state in which it was during the lifetime of plaintiff’s father, that is to say, enclosed with fences runuiug in an unbroken line from the upper to the lower boundary of the plantation, upon the public road in front, and upon the Carrollton Railroad in the rear. The soil of Henry Olay Avenue was part of an extensive field, with nothing to distinguish it to the eye from the rest of the field. The fences which enclosed the field entirely barred the passage at either end of the avenue.

It is evident, then, that the removal of those barriers was indispensible to defendant’s use of the avenue. Defendant notified plaintiff to remove them, which he neglected to do; and plaintiff, about one month after such notice given, removed the fences at each end of the avenue, for a space of sixty feet, being somewhat less than the width of the avenue, according to the plan.

After the barriers of the Henry Olay Avenue had been thus removed by defendant, plaintiff proposed, by letter, to place a gate in Ms fence, at each end of the avenue. Defendant refused to accept this proposition, alleging that, by the contract, he had a right to the unobstructed use of the whole width of the avenue.

Upon this, plaintiff sued out the present injunction ; and immediately upon the same being granted, rebuilt his fences across the Henry Olay Avenue, without leaving any opening or any gate in the same, thus shutting out the defendant from all access to the avenue. We agree with the District Judge, that this injunction should be dissolved. The plaintiff now admits, as we have seen, the defendant’s right to an unobstructed use of the avenue.

This admission seems hardly consistent with the allegations of the petition for injunction. But plaintiff’s counsel argues, that a gate at each end of the avenue, is all that defendant can in reason require ; for that such gates would afford defendant free ingress and egress to and from the avenue.

Granting this to be true, for the sake of argument, where are the gates ? Plaintiff has made no gates, and defendant cannot make any without disobeying the injunction. It is nothing to the purpose, that defendant refused to authorize plaintiff to make the gates. Defendant had a perfect right to stand upon his contract, and to decline any proposed modification of that contract. But such refusal, however unreasonable and unneighborly it may have appeared to plaintiff, did not justify him in a plain and palpable violation of Ms contract. If ho believed, in good faith, that gates in his fences upon the line of Henry Olay Avenue, satisfied the requirements of his contract with defendant, it was his duty to have made those gates, notwithstanding defendant’s refusal, formally to sanction that proceeding. And this is all-important upon the question of damages ; for with gates open to ingress and egress of the avenue, defendant could not have pretended that the passage of the avenue was absolutely barred to him, although he might still have urged, that the passage was not such a one as he was legally entitled to. The correspondence of plaintiff with defendant, viewed in connection with his subsequent acts, amount to nothing more than this, that uuless defendant will consent, in writing, to accept a passage of Henry Olay Avenue through two gates, he shall have no passage upon that avenue at all.

We have here an example of one of the most common of errors, that of exaggerating one’s own rights, to the point of losing sight altogether of’ those of one’s adversary.

Upon the question of right, under the contract between the parties, we also agree with the District Judge, that the law is in favor of the defendant. The sale of property bounded by Henry Olay Avenue, in a plan of Burthevillc, which is referred to in the sale, as designating the position of the property sold, is a dedication of the avenue to public use. The defendant has, therefore, iu common with the rest of the community, the use of the whole width of Henry Olay Avenue, on either side of the reservation hereafter noticed, unobstructed by fences or gates; and he has, by the terms of his contract, the exclusive use or servitude of passage, as proprietor of the brick yard on the batture of Burtheville, of a space of twenty-five feet in width, in the centre of Henry Olay Avenue, from the river to the Carrollton Railroad, which space is reserved, in defendant’s favor, from public use.

The sketch made by D’Himicourt, annexed to the authentic act of sale before Magner, of the 1st of June, 1851, and the amended plan of Hédin, referred to in the sous seing privé, also annexed to that authentic act, are proof between these parties, of the situation and dimensions of Henry Olay Avenue.

In a supplemental petition, plaintiff alleges that there was error on his part in the sale to defendant, in this : that plaintiff supposed the public road in front of the Burthe plantation to be identical with Levee Street on the plan by which the land was sold to defendant; but that it was subsequently ascertained that the Levee Street of the plan was to the westward of the public road, by means whereof, the soil of the said public road between Bloomingdale and the Henry Olay Avenue fell within the boundary lines of the land purchased by defendant; and that defendant has taken advantage of this error to appropriate and destroy the fence between the Burthe plantation and the public road within the said limits. The petition claims that said fence did not pass to defendant under the sale, by reason of the error, and that defendant owes plaintiff the value of the fence, stated at six hundred dollars, for which he asks judgment.

Plaintiff also claims of defendant, in the same amended petition, the value of that portion of the fence of the plantation on the public road, which is above the Henry Olay Avenue (stated at six hundred dollars), on the ground that defendant has illegally and violently destroyed the said fence, although not on the land sold to him, Fortier, at all.

Defendant answers this supplemental petition, alleging that the fences therein mentioned belonged to himself; and denying the error alleged by plaintiff.

The sale of the land to defendant included all the buildings and improvements on the land. It is admitted that the boundary (westward) of the land given by the title (Levee Street on Hidin’s plan of Burtheville) is west of the public road. The sale conveyed, therefore, the fence adjoining' the road, as well as the soil of the road, within the limits, north and south, of the title. No attempt appears to have been made to prove the error of fact alleged in the supplemental petition.

As to the fence of the plantation on the public road above Henry Olay Avenue, it seems to be included in the general term “ constructions généralement quelconques,” of the second clause of the description of things sold, in the deed of sale. The word “ constructions ” in this connection, is used by the parties contracting, in a figurative sense, to signify “ ch-oses construites,” a signification which the French Dictionary of the Academy (Paris, quarto edition, 1825,) does not give to the word, but which we know to be frequently given to it in popular parlance. It is our duty to give effect to the contract, according to the intention of the parties, as expressed intelligibly, although perhaps inaccurately. 0. 0.1941.

Is a fence then an object that is embraced in the category of “ dioses construites,” (things constructed) ? It seems to us that it is. Vie conclude, therefore, that the fences, within the limits described in the second clause of this contract, were conveyed by the same; and that defendant had the right to remove them.

The defendant, pleading in reconvention, claims of plaintiff damages for having obstructed Henry Clay Avenue. The proof in support of this claim relates principally to the additional expense incurred by defendant for the transportation of his bricks to market, beyond what such transportation would cost him per railroad.

¥e have seen that the plaintiff sold to defendant the exclusive use of twenty-five feet wide in the centre of Henry Olay Avenue from the river to the Carroll-ton Railroad, for the construction of a branch railroad connecting defendant’s brick-yard with ithe Carrollton Railroad. It is proved that the defendant had commenced making his railroad, and that the same might have been finished in one month, when his operations were suspended by this injunction.

It is proved that defendant makes at his brick-yard 10,000 bricks per day. The cost of transporting bricks from defendant’s brick-yard to buildings in town by cart is $3 25 per thousand. The cost of transporting them by the Carrollton Railroad would be $1 25 per thousand, making a difference of two dollars per thousand, or twenty dollars a day, in favor of the latter mode. This would amount to six thousand dollars in a year, counting three hundred working days in the year. Now, it is very true, that defendant has been prevented by the acts of plaintiff from completing his branch railroad, and thereby shut out from communication with the Carrollton Railroad by the Henry Olay Avenue; but it is in evidence, that plaintiff offered to defendant, by letter dated the 10th of June, 1857, (several months before this injunction), the use of an old railroad from the brick-yard to the Carrollton Railroad, made by plaintiff’s father, until the completion of defendant’s branch railroad in Henry Olay Avenue. The defendant was, therefore, not compelled to send his bricks to town by cart, as pretended ; and the claim for damages on this score must be rejected.

Another cause of damage alleged by defendant is the injury done to his embankments in Henry Clay Avenue, by the cattle of plaintiff. The evidence of the amount of pecuniary damages arising from this cause is too vague to enable us to decide it satisfactorily.

The second of the appeals now before us for decision, is taken by plaintiff from the judgment in suit No. 12,174 of the docket of the Fifth District Court of New Orleans.

This is a suit to compel the defendant to remove certain buildings comprised in the two acts of sale of the 14th of April and 1st of June, 1857, mentioned above.

The clauses of the contract between the parties which are the subject of this suit, are as follows :

“ 2o. Toutes les batisses et constructions généralement quelconques, qui se trouvent actuellement sur cette portion de la dite habitation comprise entre la Rue de la Levée, 1’Avenue Henry Clay, la limite de la dite ierre Foucher, et le fleuve. Bien entendu, que le dit Fortier aura le droit, s’il le juge á-propos, d’occuper ces batisses et constructions, et d’en jouir, sur les lieux-m&mes oú elles setrouvent, tant que le fonds continuera d’appartenir aux parties de premiere part, et a leurs eohéritiers. Au cas de vente, par ces derniers, du fonds, ils devront en donner avis, au moms soixante jours d’avance, au dit Fortier, pour lui donner le temps d’enlever les batisses.
“ 3o. La jouissance detonte cette partió de l’habitation D. F. Burlhe, comprise entre la Rue de la Levée, 1’Avenue Henry Olay, la limite de la terre Foucher, et le fleuve, tant que les parties de premiere part et leurs cohéritiers seront propriétaires de cette portion de la dite habitation, ou ne la loueront pas, et ce, moyennant le paiemont des taxes pour cette partie de l’habitation et l’entretien du chemin public par le dit Fortier."

The petition alleges that plaintiffs (Victor Burthe and Léonce Burthe) have leased the ground described in the 3d clause above copied, to a third person, and that they have given the notice of sixty days to defendant, required by the second clause; and concludes by praying for the removal of defendant’s buildings.

The answer is a general denial, and a special plea that defendant has the right to retain his buildings on the ground in question, so long as plaintiffs remain proprietors of the soil upon which those buildings stand. No evidence of the lease seems to have been offered : but taking it for granted that the ground has been leased, as alleged, such letting does not justify the present action. The two clauses of the contract are perfectly distinct, and perfectly consistent. No lease of the land by plaintiffs can prejudice the defendant’s right of possession and enjoyment of his buildings upon the land.

It is, therefore, adjudged and decreed, upon the appeal in suit No. 11,889 of the docket of the Fifth District Court of New Orleans, that the judgment of the said court in said suit be affirmed in all respects, except as regards the reconventional claim for damages; that the judgment awarding damages to defendant be reversed and annulled, and that there be judgment of nonsuit against defendant upon said reconventional demand for damages.

And it is further adjudged and decreed, upon the appeal in suit No. 12,174 of the docket of the Fifth District Court of New Orleans, that the judgment of the District Court be affirmed.

And it is further decreed, that the costs of these two appeals, included in one transcript in this court, be borne, one-half by Victor Burthe, administrator, and by Léonce Burthe, appellants; and one-half by Potycarpe Fortier, appellee; that the costs of the suits Nos. 12,174 and 11,889 in the District Court be borne by the appellants and plaintiffs; that the costs of the reconventional demand of defendant in the suit No. 11,889, claiming damages of plaintiff, be borne by defendant ; and that the other costs of the District Court in said suit be paid by plaintiff and appellant.


text:
    E. J. Hart & Co. v. F. A. Gottwald—Jacob Zoelly, Garnishee, appellant.
    "Whore the wife of an absconding debtor gives property in payment of a debt due by her husband, the law presumes that the property so given belongs to the community, and the act of the wife in giv ing the property in payment is a nullity, and the property attempted thus to be alienated by her is liable to attachment by the creditors of her husband.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      II. J. Leovtj, for plaintiffs.

      It. II. Marr, for defendant. M. M. Reynolds, for garnishee and appellant.
   Buchanan, J.

Plaintiffs commenced suit by attachment against defendant, an absconding debtor.

In answer to interrogatories propounded to Zoelly, as garnishee, the latter declared that he had received, on account of a debt due him by defendant, before any attachment was served on him, a mule, for which defendant has been credited with two hundred dollars, also, one hundred second hand empty casks, for which defendant has been credited with two hundred dollars. He denied the possession of any property of defendant.

Plaintiff traversed these answers. The evidence shows that the giving in payment of the mule and casks was subsequent to defendant’s flight, and that the said giving was the act, not of defendant, but of defendant’s wife. The law presumes that the property so given in payment, belonged to the matrimonial community.

The husband is the head of the community, and has, by law, the right to administer the common property ; and the wife has not the right to alienate such property, even for a common debt. The act of the wife of defendant, in giving the mule and barrels to garnishee, was, therefore, a nullity ; and the property thus attempted to be alienated, was liable to plaintiff’s attachment.

Judgment affirmed, with costs.


author: Land, J.

text:
    J. W. Fisher v. Robert Geddes et al.
    Where it is the custom of common carriers to allow tile baggage of passengers to be taken in charge by servants in their employ, to bo delivered by them at a certain place and in a certain manner, they will be liable for the loss of baggage arising from the neglect of their employees to mako the delivery according to custom.
    PPEAL from the Fourth District Court of New Orleans, Price, J.

      Semines <6 Labatt, for plaintiff' and appellant.

      Clarke <& Bayne, for defendants.
   Land, J.

The defendants are sued as common carriers, for the value of a trunk and its contents, alleged to have been lost on a trip of the steamer California from Mobile to New Orleaus. The value is alleged to have been $386 80.

The evidence satisfies us, that the plaintiff and his family came as passengers from Mobile to New Orleans, and that the trunk in question, was delivered to defendants, on board their boat, at the former place. It also satisfies us, that the servants in the employment of the owners of the boat, were in the habit of receiving the baggage of passengers at Mobile, and of delivering the same, after the arrival of the boat, on the cars of the Ponchartrain Railroad, by obtaining checks from the baggage master, and handing the same to the passengers. And it further satisfies us, that the plaintiff’s trunk was not delivered to him with his other baggage on the railroad cars, after the arrival of the boat.

The number of checks which the plaintiff had for his baggage, corresponded with the number of his trunks or packages — but one of the checks colled for a trunk which did not belong to the plaintiff. We think the defendants are bound by the habit, or custom which they permit on their boat, of allowing their servants to receive the baggage of passengers, at Mobile, and to deliver the same at the lake terminus, on the railroad ears, and are consequently liable for the fault or negligence of their servants, in making a delivery of the baggage in pursuance of the custom.

Tliei-e is nothing to show that the mode of delivery was departed from in respect to the plaintiff’s baggage, and the only conclusion upon the facts of the case is, that the plaintiff’s trunk was either lost on the trip of the steamer before her arrival, or afterwards, through the negligence of the servants of the defendants, in checking the same on the railroad cars. In either event, the liability of the defendants to the plaintiff attached. C. C., Arts. 2725, 2299.

The evidence, however, as to the contents of the trunk, is insufficient to authorize a judgment for the amount claimed. In cases of this kind, weak evidence will entitle a plaintiff to recover, when no shade of suspicion is cast upon his demand, for the reason, that proof in such cases is extremely difficult to be obtained, but some evidence is necessary on which to found a judgment, beyond the mere claim of the party. The plaintiff has sought to prove the coutents of the trunk by a witness; and in giving to the evidence the greatest weight to which it is entitled, even in a case of this kind, it does not show that the value of the trunk and its contents exceed the sum of $180.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed; and it is now ordered, adjudged and decreed, that the plaintiff do have and recover of the defendants in solido, the sum of one hundred and eighty dollars, with interest at the rate of five per cent, per annum from judicial demand, with costs in both courts.


text:
    Mrs. Emily Woolfolk v. Eli Fonbene.
    “When, in an assessment of a lot of ground, neither the number of the square, nor tho number of tho lot, nor the name of the street on which the lot fronted is given, such assessmont is wanting in particulars essential to the identification and description required by the 26th section of the Revenue Act of 1847, which requires tho tract or lot of land to bo designated at least by its boundaries.
    When the assessment is not made in the manner required by law, a sale of the property assessed for taxes by the Collector, will bo null and void.
    An illegality in the assessment of property sold for taxes is a radical defect, and not a mere informality which may be cured by the lapse of five years from the date of the tax sale.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Mott & Fraser, for plaintiff.
    0. Dufour, for defendant and appellant.
   Land, J.

This is a petitory action for the recovery of two lots of ground situate in the First District of this city. The defendant claims title by virtue of a tax sale made by the State Tax Collector on the 14th day of November, 1848. The lots in controversy were described, in the assessment by virtue of which they were adjudicated to the defendant, in the manner declared in the following extract from the notice or advertisement of sale, by the Auditor of Public Accounts.

The following lots in square bounded by New Levee, St. James, Market and Tchoupitoulas Streets, and assessed in the following names, viz, Mrs. A. Wool-folk, 1 lot, 32 by 128, amount of taxes $4 80 ; 1 lot, owner unknown, 32 by 128, amount of taxes $4 80.”

In this assessment, neither the number of the square, nor the number of the lot, is given, nor the name of the street on which the lots fronted, or were situated. The assessment is wanting in the particulars essential to a description and identification of the property assessed for taxes due the State, as required by the 26fcli section of the Revenue Act of 1847, p. 130, which requires the tract or lot of land assessed to be designated at least by its boundaries. In the assessment of the lots in question, their boundaries are not given at all. The boundaries of the square in which they arc situated are not the boundaries of the lots. The description in the assessment would apply to any lot in the square bounded by the streets named, as well as to the lots in question. As the assessment was not made in the manner required by law, it was null and void, as authority on the part of the Tax Collector to sell, and cannot, therefore, form a basis of title in favor of the defendant. An illegality in the assessment of property for taxes, is a radical defect, and not a mere informality which may be cured by the lapse of five years from the date of the tax sale; and the prescription pleaded by the defendant is, therefore, not applicable to this case.

It is shown that the use of the property was worth five dollars per month, and the fruits received by the defendant reimbursed him the amount of taxes paid, and also compensated him for the cost of enclosures, admitting his right to compensation, on which we express no opinion.

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


text:
    J. L. Carter v. Tufts & Hobart.
    Damages will not be allowed against a party for asserting a right in a court of justice by the compulsory process allowed by law, beyond the damages actually sustained, unless the circumstances of the case disclosed a want of probable cause for the action and malice in the resort to compulsory process.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Durant & Hornor, for plaintiff and appellant.

      A. N. Ogden <& Stansbury, and Benjamin, Bradford <& Finney, for defendants.
   Buchanan, J.

The defendants libelled the steamboat Ohio belonging to plaintiff, in admiralty, in the District Court of the United States, in New Orleans, for non delivery of merchandize shipped on board the said steamboat for transportation for him. The answer to the libel, filed by plaintiff, admitted the shipment and non delivery of the merchandize, but plead that the vessel was not liable as a common carrier, under the bill of lading, inasmuch as the merchandize was lost by a peril of navigation. Of this opinion was the admiralty court; and the libel was accordingly dismissed, and the steamboat released from seizure after a detention of one month and twenty-six days.

The plaintiff brings the present action for seven thousand dollars damages, alleged to have been suffered by him in consequence of the seizure and detention of his steamboat, as aforesaid. The particulars of damage set forth in the petition are all prospective and conjectural, with the exception of a charge (indefinite in amount from being mixed with other charges in one item), for expenses of discharging cargo which was on board at the time of the seizure of the vessel. And of this charge it may be observed, that its amount is not ascertained by any proof.

The District Court gave judgment for defendants, on the ground that there is neither allegation nor proof that the seizure of the plaintiff’s steamboat was made maliciously, or without probable cause. The learned Judge has reviewed the decisions of this court upon this point, by which it appears to be now settled, that damages will not be allowed in Louisiana, against a party, for asserting a right in our courts, by the compulsory processes allowed by our laws, beyond tho damages actually sustained, unless the circumstances of the case disclose a want of probable cause for the action instituted by such party, and malice in the resort to compulsory process.

But in the present case, these elements are wanting. In the words of the District Judge, “ the defendants had an apparent cause for what they did. They acted upon a state of things produced by the plaintiff himself — his non compliance with his contract to bring merchandize to the defendants.” Moore v. Whittenbury, 13 An. 22.

Judgment affirmed, with costs.


text:
    G. D. Gordon v. J. W. Zacharie.
    The Act. of the Legislature of the Otli March, 1852, which allows legal interest on all debts from the time Ihoy become due, unless otherwise stipulated, does not apply to debts due before its passage.
    An agent for tho collection of monoy is only liable for interest on tho monoy collected from judicial demand, unless it be shown that he employed the money for his own use, or that he was put in do-fault prior to the institution of tho suit.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      6. A. Breaux, for plaintiff and appellant.

      A. N. Ogden & Stansbury, for defendant.
   Land, J.

The defendant was the assignee of one A. C. Bredall, of certain claims against the Government of the United States, on which he received the sum of ten thousand dollars on the Wth day of May, 1851. These claims were originally against the Mexican Government, but were, in certain treaty stipulations, assumed by the Government of the United States. Under the contract of assignment the defendant was entitled to one-half of all he might receive from the Government, as a compensation for his trouble and expenses in prosecuting the claims.

The plaitiff, as universal legatee, and executor of the last will and testament of one A. C. Bredall, deceased, sues the defendant to recover from him the ten thousand dollars received from the Government, less the amount of compensation to which he is entitled.

There was judgment in favor of the plaintiff for the sum of five thousand dollars, with legal interest from the llth day of May, 1851, from which the defendant has appealed.

Various questions have been argued by counsel in the elaborate briefs filed in this case, but we only find it necessary to consider three of them.

The first is a question of identity, that is, whether the assignor of the defendant, and the testator of tho plaintiff, was one and the same person. In the assignment, the assignor is described by the name of Asmus C. Bredall; and in the body of the will, the testator is described by the name of Amos C. Bredall. On this question of fact, the District Judge says : “ the evidence satisfies me that the plaintiff is the legal representative and universal legatee of the A. C. Bredall, with whom defendant contracted, and on whose behalf the Mexican indemnity was obtained. This is distinctly acknowledged by the defendant in his letter of the 10th of August, 1850.” In this view of the evidence, taken by the District Judge, on the question of identity, wo entirely concur.

The second question is, whether the defendant is entitled, under the contract of assignment, to one-half of the net proceeds of the claims, or only to one-half of the gross amount. The agreement is in these words :

“ In consideration of your undertaking the prosecution of my claim for indemnity against the Mexican Government, for their arbitrary false imprisonment at Vera Cruz, in 1843 and 1844,1 hereby agree to give you one-half of all you may receive for the same, as a compensation for your trouble and expense.”

The District Judge did not err. The defendant was only entitled, under the agreement, to one-half of the gross amount received by him.

The third question is, whether the plaintiff is entitled to recover legal interest from the 17th day of May, 1851, or only from judicial demand.

Article 1932 of the Civil Code provides, that in contracts which do not stipulate for the payment of interest, it is due from the time the debtor is put in default for the payment of the principal, and is to be calculated on whatever sum shall be found by the judgment to have been due at the time of the default. The claims against the Government were collected, and one-half of the same was due to the deceased, or his representatives, prior to the passage of the Act of the 9th of March, 1852, p. 95j which allows legal interest on all debts from the time they become due, unless otherwise stipulated. In the contract between the defendant and the deceased, there was no stipulation for the payment of interest, and it has been held that the Act of 1852, above mentioned, does not apply to debts due before its passage; and as the debt in question was due on the 17th of May, 1851, it follows, that if the defendant be considered as an ordinary debtor, interest can only be allowed from judicial demand, or from the time the defendant was put in default. Article 2984 provides, that the attorney is answerable for the interest of any sum of money he has employed to his own use, from the time ho has so employed it; and for that of any sum remaining in his hand, from the day ho becomes a defaulter by delaying to pay it over. It is not alleged in the petition, nor shown by the evidence, that the defendant appropriated the money due to the deceased, to his own use; nor does it appear from the evidence, that the defendant was put in default prior to the institution of this suit. Whether the defendant, therefore, be considered in the character of debtor, or agent of the deceased, he is only legally bound to pay interest from judicial demand, Marr v. Hyde, 8 R. 13.

Citation was served on the defendant on the 11th day of February, 1857.

It is, therefore, ordered, adjudged and decreed, that the judgment be amended, and that, instead of interest from the 17th day of May, 1851, the plaintiff recover legal interest on the amount of the judgment from the 11th day of February, 1857; and that the judgment thus amended bo affirmed, with costs of the lower court, and that plaintiff and appellee pay the costs of this appeal.


text:
    James Jeffries v. Belleville Iron Works Company.
    Whore a creditor seeks to have annulled, as alleged, an order of court accepting a surrender of property by an insolvent, the proper method is to proceed by direct action m the same court which roudered the order contradictorily with the ceding debtor, and also with the creditors, by notice to the syndic elected by them.
    A corporation created under the act for the organization of corporations for works of public improvements and utility, approved March 14th, 1855, cannot avail itself of the provisions of the act rola» tivo to the voluntary surrender of property, approved March 15th, 1855.
    APPEAL from the Fourth District Court of New Orleans, Trice, J.

      IV. J. Vason, for plaintiff and appellant.

      Benjamin, Bradford c6 Finney, for defendants.
   Buchanan, J.

The plaintiff brought suit in the Fourth District Court of New Orleans, on the 10th of December, 1858, against the defendants, a private corporation established under the Act of 1855, p. 182, upon a promissory note of the defendants, for §3,202 44, signed by their President, payable to the order of, and endorsed in blank by, their Secretary, of which note plaintiff alleged himself to be holder and owner.

On the 29th of December, 1858, defendants made a voluntary surrender of their property in the Fourth District Court of New Orleans ; the Judge of which court accepted the cession, and ordered a stay of proceedings and a meeting of their creditors, to take place on the 7th of February, 1859.

In the schedule filed with this petition, is found the name of “ J. Jeffries & Son,” a firm of which plaintiff is admitted, in argument, to be a partner, inscribed as creditors of the Belleville Iron Works Company, by bills payable, for the sum of §9,788 59.

On the 18th of January, 1859, plaintiff instituted another suit in the same court against the defendants, as holder and owner of another promissory note, similarly made and endorsed, for §3,262 86, due December 31st, 1856.

In his petition in this latter suit, plaintiff charges “that he is advised, that on the 29th day of December last past, an ex parte order was granted by the Judge of this court, upon the petition of the defendant, praying to be allowed to make a voluntary cession of its assets to its creditors, staying all proceedings against Hie property of the said company. Petitioner respectfully insists that said order is illegal, and 'was improvidently granted by the Judge of this court, and should, therefore, be annulled and vacated for this ; that corporations, such as the defendant in this case, have no right, under the laws of this State, to make a voluntary surrender of their property to their creditors, and receive the benefit of the insolvent laws of this State. And he prayed, that the order in question might be annulled, and for judgment upon the note.

On motion of plaintiff’s attorney, R. Wells, the syndic elected at the meeting of creditors of defendants, was made a party to both of these suits. He, pleading the order of the 29th December, 1858, as an exception, prayed that these suits be cumulated with the insolvent proceedings of defendants. After hearing, the exception was sustained, the suits ordered to be cumulated, and, from this judgment, plaintiff appeals.

By consent of parties, the two cases have been brought up, and are to be decided in one appeal.

The question presented by this appeal is, whether a corporation created under the act for the organization of corporations for works of public improvement and utility, approved March 14th, 1855, can avail itself of the provisions of the Act relative to the voluntary surrender of property, approved March 15th, 1855.

On the part of the appellees, it is objected that this question has been collaterally raised, and cannot be examined in this form ; that it must be the subject of a proceeding in the suit of the Belleville Iron Works Company v. Its Creditors. This objection appears unfounded. The issue of the illegality of the order accepting the surrender of property, is made by a direct action in the same court which rendered that order, and contradictorily with the corporation, by citation served upon its President, as well as with the creditors of the corporation, by notice to the syndic elected by them. Of the two precedents cited in argument, in one, (Gottschalk v. Her Creditors, 7 La. 436,) an appeal was taken by two creditors from the order accepting the surrender ; and the other, (Foucher v. Creditors, 7 La. 425,) a motion was made to set aside that order, in a distinct suit, instituted by sundry creditors, for a sequestration of the absconding debtor’s property. If there be any difference, the present would seem to be rather more formal than either of those cases.

Proceeding, then, to the consideration of the question above stated, we understand the counsel of appellees to maintain the right of a corporation to the benefit of the voluntary surrender of property Act, on tho ground, that by the first section of that Act, it is said : “ Any person may make a cession of his property to his creditors.” And the counsel argues, that corporations constitute a class of persons in the Civil Code of Louisiana. He directs our attention particularly to Article 431 of the Code, in which corporations are designated intellectual persons.

We are of opinion, that the term persons in the first section of this Act of the Legislature, refers to natural persons alone ; and that it was not tho intention of the lawgiver to include under that denomination, the artificial or legal person, which is the subject of the tenth title of the first book of the Civil Code. The Act relative to the voluntary surrender of property and mode of proceeding, approved 15th of March, 1855, is copied substantially, and in many of its sections, word for word, from the Act relative to the voluntary surrender of property and to the mode of proceeding, as well as for the direction and for the disposal of debtor’s estates, and for other purposes,” approved February 20th, 1817, as amended by the Act of 29th of March, 1826, by that of March 13th, 1837, and by that of 28th of March, 1840. Bullard & Curry’s Digest, pages 487, 495, 498 and 474.

Indeed there is scarcely any thing in the Act of 1855, which is not to be found in one or the other of tho above mentioned Acts, except some provisions relative to syndics and their commissions. Yet, in the case of the Commissioners of the Exchange Bank v. Mudge, 6th Rob. 398, this court said : that no law existed previously to the year 1842, which defined the insolvency of a corporation, or provided for either its voluntary or forced liquidation.

It is manifest from this language, that our predecessors did not consider that a corporation was entitled to make a cession of property, under the insolvent laws then in force; and which, as we have seen, were substantially the same with that under which the defendants made the application to the Fourth District Court, and obtained its order staying proceedings against them.

The first section of the Act of 1817, uses the word “ individual.” This word, in the first section of the Act of 1855, has been changed into “ person.” But we have no reason to believe that, by this change, the Legislature intended to enlarge the object of the law to corporations. Nothing of that kind is intimated in Mr. Phillips’ Report to the Legislature upon the Revision of the Statutes of the State.

The first section of the Act of 1817, reads, in entire, as follows :

“ Every individual, who shall not yet have been imprisoned for debt, but who shall find himself unable to meet his engagements, may avoid imprisonment and all further proceedings against his person, for said debt, by surrendering all his estate to his creditors, provided the said surrender be made bona fide and without fraud, and agreeably to the formalities prescribed by this Act.”

The corresponding section in the Act of 1855, reads :

“ Any person may make a cession of his property to his creditors ; provided, the surrender be made bona fide, without fraud, and agreeably to tlie formalities prescribed hereafter.”

This change of phraseology seems to have been rendered necessary, by tlie abolition, in the year 1840, of the writ of capias ail satisfaciendum, which, at the time of the passage of i.he earlier statute, was a mode of executing all money judgments, after the return of the fieri facias, “ no property found.”

To have preserved the identical words of the Act of 1817, in the Revised Statutes of 1855, would thus have been clearly inconsistent with the existing state of our legislation. The omission of a portion of the section of the original Act became, consequently, necessary ; and, in what remained, the substitution of the word person for that of individual, if not the result of accident, had evidently no other or further design than a fancied euphony or conciseness ; for the formalities required, by the same section, to be observed, and which are detailed in the subsequent sections of the revised, as well as the original statute, such as the taking and signing of an oath, are evidently such as could only be performed by natural persons.

Again : if we look into the Act under which the defendants are organized as a corporation, (Session Acts of 1855, page 182,) we find, in its sixth section, a peculiar kind of evidence required for the ascertainment of the fact of insolvency of corporations organized under that Act; and, also, a peculiar form of liquidation prescribed in case of such insolvency. The section declares :

That they shall forfeit their charter for insolvency, evidenced by a return of no property found on execution ; and, in such case, it shall be the duty of the District Court, at the instance of any creditor, to decree such forfeiture, and to appoint a Commissioner for effecting the liquidation, whose duty it shall be, to convert all the assets of the company, including any unpaid balances due by stockholders on their shares, into cash, and to distribute the same, under the direction of the court, amongst the parties entitled thereto, in the same manner, as near as may be, as is done in cases of insolvency of individuals.”

It may be observed, en passant, that the concluding words of this section seem to negative the idea of the Act for the voluntary surrender of property being-applicable to corporations, and being the language of a statute passed by the same Legislature, and almost on the same day with the Act which we examined in tlie first part of this opinion, has very much the appearance of a contemporaneous legislative interpretation of that Act, confirmatory of the views we have expressed.

Be that as it may, the section is the only one in ilie Act which treats of the insolvency of corporations. It is highly important in this case, in two aspects : 1st. As a rule of evidence. 2d. As a rule of procedure.

Upon the first of these points, we feel bound to say, that the insolvency of the Belleville Iron Works Company, has not been legally shown.

Upon the second, that when the insolvency shall bo evidenced according to law, the legal form of proceeding for the liquidation of their affairs in court, is different from that which has been adopted in this case.

In the form of procedure prescribed by the statute, the corporation would be defendant, instead of being, as we find them, in the form of proceeding which they have pursued., the plaintiff.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed ; that the exception filed by Richard Wells, in the capacity of syndic of tlie creditors of the defendants, be overruled ; and that these two causes, consolidated for the purposes of this appeal, be remanded to the court below, to be proceeded in according to law ; and that the appellees pay costs of appeal.


text:
    Thomas Owens et als. v. William P. Davis.
    In the absence of an express stipulation to the contrary, the owners of a steamboat employed in carrying persons aiul merchandize for hire, bring the í¿se only, and not thproperty of the boat, into the partnership — they hold as tenants in common.
    In case of proceedings for the distribution, of the proceeds of a steamer, the suit of the attaching creditor is uot stayed by order of the Judge, nor by operation of law ; nor is he actually or virtually enjoined from proceeding to judgment against his debtor, and acquiring a right of privilege on the proceeds of the property attached ; nor from proceeding to execution and sale of the property itself for the satisfaction of his debt. In all such cases, the property is not vested in the creditors, but remains in the debtor subject to seizure, attachment and execution.
    Where a Sheriff has not been authorized as the legal agent of the seizing creditors, to insure property in his custody, ho has no authority under the law to effect such insurance, and his claim for the return of the premium paid cannot be allowed as costs of suit.

    Where judgment has been rendered in favor of partnership creditors against all the part-owners of a steamer, whether they were creditors by privilege, or not, for their respective claims against the boat, they become privilege creditors of each of the part-owners for the amount of costs recovered, and these costs form a privilege debt upon the proceeds of the steamer superior to that of the individual attaching creditors.
    Our law grants no privilege for money advanced to the master of a steamboat.
    The right of creditors to privileges on property within our jurisdiction, must be determined by the lex fori and not by the lex loci contractus.

    APPEAL from the Fourth District Court of New Orleans, Price, .T.

      Benjamin, Bradford & Finney, for plaintiffs and appellants.

      Hart <& Marlin, for defendant.
   Land, J.

The plaintiffs, individual creditors of the defendant, part-owner of the steamer David Tatum, have appealed from the judgment distributing the proceeds of the boat among the partnership creditors of the owners, to the exclusion of the individual creditors; and present for our decision the following questions of law :

First. Whether, in the absence of an express stipulation to the contrary, the owners of a steamboat, who employ it in carrying persons and merchandize for hire, bring the use of the boat only, or the property of the boat, into the partnership.

The distinction between part-ownership, and partnership, in ships or oilier vessels, is clear and well defined. The general rule is, that part-owners are tenants in common, and not partners. A ship, or other vessel, may be held by part-owners in partnership, but when so held, it is by virtue of some positive stipulation, and forms an exception to the general rule. Mr. Chancellor Kent says : “ The oases recognize the clear and settled distinction between part-owners and partners. Part-ownership is but a tenancy in common, and a person who has only a part-interest in a ship, is generally a part-owner, and not a joint tenant or partner. As part-owner, he has only a disposing power over his own interest in the ship, and he can convey no greater title. But there may be a partnership, as well as a co-tenancy, in a vesseland in that case, one part-owner, in the character of partner, may sell the whole vessel, and he has such an implied authority over the whole partnership effects. The vendee, in a case free from fraud, will have an indefeasible title to the whole ship. When a person is to be considered as a part-owner, or as a partner, in a ship, depends upon circumstances. The former is the general relation between ship owners, and the latter the exception, and requires to be specially shown.” 3 Kent, 154.

This doctrine has been applied by this court to the case of part-owners of steamboats employed in carrying persons and property for hire; and it has been held, in the absence of an express stipulation to the contrary, that the use of the boat only is brought into the partnership, and not the property or ownership of the boat, which remains in the part-owners, as tenants in common, subject, however, to the privileges which the law grants, in certain cases, to the creditors of the partnership. Byrne v. Harper, 2 R. 229; Violett v. Fairchild, 6 An. 193; Whipple v. Hill, 14 An. 437. In this case, Jackson & McGill, creditors of the partnership, contend that it is specially shown, that the steamer was partnership property, and held by the part-owners as such. The evidence on which they rely is a mandate or power of attorney, from three of the part-owners to the defendant, ■who was the fourth, granting to him authority to sell the boat. The mandate declares the powers conferred upon the defendant, in these words : “We have constituted and appointed the said W. P. Davis, our true and lawful attorney, for us and in our name and behalf, to sell, or run the said steamer, as to him shall seem fit and proper; and in the event of a sale of said steamer, to make and execute a bill or bills of sale in our name and for our interest.”

This power of attorney, as evidence, is against the pretensions of these creditors. It is an admission that the steamer was held in co-tenancy, and that defendant, as partner, had no authority to sell; for, if the boat was held in partnership, the defendant, as partner, had a right to sell the whole interest, without any power of attorney from his co-partners, and it was, therefore, a useless instrument. Lamb v. Durant, 12 Mass. 54. The mandate did not authorize the defendant to sell the steamer as partnership property, nor on partnership account, but to sell in the name and for the interest of the individual part-owners granting the power. It is, therefore, what it purports to be, a simple mandate, and not a contract of partnership, nor a contract constituting the steamer partnership property as between the owners.

Secondly. Whether the plaintiffs are entitled to be paid by preference to the ordinary creditors of the partnership, out of the proceeds of the share of the defendant in the steamer, by virtue of their attachment. They were the first attaching creditors, and obtained judgment with privilege on the one-fourth interest, or share of the defendant, in the boat, subject to the distribution of the proceeds of the sale.

The ordinary creditors of the partnership are those who have no privilege on the boat; and they stand in the position of partnership creditors seeking to be paid out of the proceeds of the individual property of the partners, in concurrence with their individual creditors, as they have a right to do, unless the individual creditors are entitled to be paid, by preference to them, in virtue of privileges or liens allowed by law. Flower v. His Creditors, 3 An. 189; C. C. 3150. The privilege recognized by the judgment in favor of plaintiffs, must have its effect, unless prohibited by some provision of law, or unless its enforcement contravenes the policy of the law. There is no express provision of law making the acquisition of a right of privilege, in cases of this kind, an exception to the general rule, by which an attaching creditor acquires a right to be paid by preference out of the proceeds of the property attached; and although the property of the debtor is declared to be the common pledge of his creditors, yet the law in many instances destroys the equality of distribution, by granting privileges or mortgages to creditors, or by permitting them, by suits or contracts, to acquire a right to be paid by priority, or preference, out of the proceeds of a part, or of the whole of the debtors property. A suit by attachment is one of the actions at law, by which a creditor is allowed to acquire a privilege on the property of his debtor ; and, on general principles, the right of the plaintiffs to be paid by preference, by virtue of their attachment, is beyond question. But in the case of a forced or voluntary surrender, under our insolvent laws, an attaching creditor is not entitled to a privilege on the proceeds of the property attached, unless his right of privilege is perfected by the rendition of judgment prior to the surrender of the insolvent. And as proceedings for the distribution of the proceeds of a steamer among the partnership and individual creditors of the owners arc in the nature of insolvent proceedings, it may not be immaterial to consider whether the attaching creditor in the former class of cases, loses his right of privilege, if it is not perfected by judgment prior to the intervention and claim of other creditors..

In the case of a surrender, all suits against the person and the property of the debtor are stayed, and his property is vested in his creditors, so far as to be no longer liable to seizure, attachment, or execution, and the attaching creditor is consequently inhibited from proceeding in his suit, to judgment against the debt- or, and from perfecting his inchoate right of privilege by a decree, and in the concurso, is ranked only as an ordinary creditor. The legal grounds on which a privilege has been denied to the attaching creditor, in such cases, are clear and well settled. At the time of the .surrender, the creditor had no privilege, his suit against the debtor was stayed, and he was thereby virtually enjoined from proceeding to judgment, and acquiring a privilege on the proceeds of his debtor’s property, and Ms rank, of course, was that of an ordinary creditor in the concurso.

In the case of proceedings for the distribution of the proceeds of a steamer, the law is entirely difeerent. The suit of the attaching creditor is not stayed by order of the Judge, nor by operation of law; nor is he actually or virtually enjoined from proceeding to judgment against his debtor, and acquiring a right of privilege on the proceeds of the. property attached; nor from proceeding to execution and sale of the property itself for the satisfaction of his debt. In all such cases, the property is not vested in the creditors, but remains in the debtor, subjoct to seizure, attachment, and execution. The provisions of law, therefore, which prevent the right of privilege from attaching in the case of a surrender, do not exist, nor apply in a case of distribution. ]

Where a privilege has been fairly acquired in course of legal proceedings, and has been recognized by judgment in favor of the creditor, or granted by operation of law, on the property of the debtor, it must have its legal effect, which is, a right to be paid by preference, to the ordinary creditors of the debtor, out of the proceeds of the property seized or attached. This doctrine was recognized in the case of Violett v. Fairchild, 6 An. 193, and seems to be a necessary consequence of the provisions of law granting privileges to creditors, on the property of their debtors. The plaintiffs having acquired a privilege on the individual property of the defendant in due course of legal proceedings, are entitled to the benefit of the same, over the ordinary creditors of the partnership.

Thirdly. Whether the Sheriff is entitled to be paid out of the proceeds of the steamer, the premium advanced by him for insurance on the boat, during tlie period she was under seizure, in this port.

The Sheriff was not authorized by the seizing creditors, as their legal agent, to effect the insurance on the boat, and the solution of the question depends entirely upon the extent of his official powers and duties as Sheriff, resulting from the seizure under the writs of attachment.

In cases of attachment, the duties of the Sheriff are declared as follows : The Sheriff must take charge, and keep possession of all the goods and effects which he may have attached, with the exception of such sums which may be due by the garnishee; and he shall make, in the presence of two witnesses, an exact and minute inventory of the same, which he shall be bound to deliver or send, annexed to his return, to the office of the Clerk of the court, whose mandate he has executed. C. P. Art. 257.

In cases of sequestration, his powers and duties are declared in the following words: The Sheriff, while he retains possession of sequestered property, is bound to take proper care of the same, and to administer the same, if it be of such nature as to admit of it, as a prudent father of a family administers Ms own affairs. He may confide them to the care of guardians or overseers, for whose acts he remains responsible, and he will be entitled to receive a just compensation for his administration, to be determined by the court, to be paid to him out of the proceeds of the property sequestered, if judgment be given in favor of the plaintiff. C. P. 283. And in cases of judicial sequestration or deposit? when the Sheriff acts as judicial guardian, his powers and duties are declared as follows : The appointment of a judicial guardian produces, between the person seizing and the guardian, reciprocal obligations. The guardian must use, for the preservation of the effects seized, the care of a prudent father of a family; he must produce them, either for the discharge of the person who has seized them for sale, or to the person against whom the execution was levied, in case the seizure be raised.

The obligation of the party that has seized the property, consists in paying the guardian his legal fees. O. C. 2949.

Prom these provisions of the law, it appears that the whole duty of the Sheriff is, to take proper care of the property seized, or attached, and to administer the same while in Ms possession, as a prudent father of a family administers Ms own affairs; and that his whole power is to confide the property to the care of guardians, or overseers, for whose acts he remains responsible. The object of the law, is the preservation of the property itself, free from damage or waste, during the pendency of the suit in which the seizure was made. A careful keeping, with a prudent administration of the property, while in his possession, is the Ml extent of the Sheriff’s official duty, under the law, and if the property should perish, or be destroyed, without any fault or negligence on his part, or on that of his agents, he would not be responsible for the loss, either to the seizing creditors, or owners. But, if it were otherwise, and the law imposed on him the obligation to insure property in his possession under a seizure, then, taking proper care of the property, and administering the same as a prudent father of a family administers his own affairs, would not free him from liability, in the event of a loss by any cause or peril against which an insurance could have been effected by him.

It was not the intention of the Legislature to impose on the Sheriffs of the State the duty of insuring perishable property in their possession under a seizure; and a contrary interpretation would greatly increase the responsibility of Sheriffs, as well as the costs of litigation, and lead to general inconvenience throughout the State.

As the Sheriff was not authorized as the legal agent of the seizing creditors, nor invested by law with authority to effect insurance on the steamer, his claim for a return of the premium paid cannot he allowed as costs of suit. The relations which exist between the Sheriff and seizing creditors, are created by express law, and not by custom or usage. The Sheriff may be authorized to act as the agent of the creditors, in effecting insurance on the property seized — but then, he acts as mandatary, and not in his official capacity.

Fourthly. Whether the fee of the curator ad hoc appointed by the court to represent the absent part-owners, is a legal charge against the whole proceeds of the steamer, or only against the portions of the part-owners, by him represented.

And, Fifthly. Whether the Sheriff’s costs in the suits instituted by the partnership creditors are legal charges against the whole proceeds of the boat, and are 'superior in rank to the privileged claim of the plaintiffs, by virtue of their attachment.

These two questions may be considered together, as the fee of the curator ad hoc is now made by statute a part of the costs of suit, and as such has to be taxed. Acts of 1857, p. 84, No. 108.

In the suits instituted by the partnership creditors, they obtained judgment against the defendant, as well as the other part-owners of the steamer; and whether they were creditors by privilege or not, for their respective claims, against the boat,«they became creditors by privilege, of each of the part-owners, for the amount of costs recovered, in their respective suits, and these costs formed a privileged debt upon the proceeds of the steamer superior to that of the plaintiffs, as attaching creditors. O. C. 3204, 3162, 3163.

Jaclcson S McGill claim to be creditors of the partnership by privilege, for money advanced to the master, for the use of the boat. Our law grants no privilege for money advanced to the master of a steamboat. Hyde v. Culver, 4 An. 9. These creditors also claim a privilege for the money advanced, under a law of Missouri, where the debt was contracted. It is now well settled, that the right of creditors to privileges on property within our jurisdiction, must be determined by the law of the forum, and not by the lex loci contractus. And as the privilege claimed by these creditors is not allowed by our laws, it must be rejected.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and that the cause be remanded with instructions to the District Judge to reform the tableau of distribution of the proceeds of the steamer David Tatum, in accordance with the principles herein declared, and that the appellees pay the costs of this appeal.


author: Buchanan, J. Merrick, O. J.,

text:
    Succession of Frederick Gorrisson.
    A judgment appointing a tutor to a minor, rendered "by a court of competent jurisdiction, cannot be attacked collaterly by a debtor of the minor ; so long as the judgment stands unreversed, it constitutes a full warrant for the demand and collection of the debts due the minor, by the person named theroin as tutor.
    Such a judgment cannot bo attacked, directly or collaterly, before any other court, than the one by which it was rendered.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Elmore & King, for appellant.

      T. Gilmore, for appellee.
   Buchanan, J.

F. A. A. Heisen, tutor of the minor, Catharine Bollenhagen, under the appointment of the District Court of the Parish of Caldwell, took a rule upon the executor of Frederick Gorrisson, whose succession is opened in the parish of Orleans, (the said minor being a legatee and creditor of said Gorrisson,) for an account of administration, and for payment of the legacy bequeathed by Gorrisson’s will to the said minor.

The executor defends the rale on the ground, that the District Court of Caldwell was without jurisdiction to appoint a tutor to the minor, Bollenhagen, rations persona, the domicil of said minor not being in the said parish ; and that the appointment of the mover in the rule, as tutor of the said minor, was null and void, by reason of such want of jurisdiction.

On trial, the rule was modified by consent of parties, as follows :

“ It is understood that that part of the rule which calls for an account, is not insisted on, as the succession is not in a condition to enable the executor to file an account at present, and that five hundred dollars would be sufficient at this time to pay the bills due for the education and expenses of the minor; which said amount is insisted on being paid by the executor to meet the wants of the minor.”

It was admitted that the plaintiff in rule was appointed tutor, as alleged in the rule; that Catharine Bollenhagen is without means for her support, and is in need of some of the money due from the estate of Gorrisson, to pay for her maintenance ; that the estate of Gorrisson is indebted to her in the sum of three thousand eight hundred dollars, as well as can be ascertained at this time, as tutor of the minor, Catharine Bollenhagen ; and that also, by the last will of said Gorrisson, he bequeathed to her the sum of five hundred dollars, the family pictures and jewelry.

There is a bill of exceptions taken by the plaintiff in rule, to the admission by the court, of evidence offered by the defendant, to prove that the appointment of the plaintiff, Heisen, as tutor to the minor, Catharine Bollenhagen, was null and void for want of jurisdiction, and did not authorize proceedings herein against the. executor.

The court erred in admitting this proof. The appointment of a tutor to this minor, was a judgment of a court of competent jurisdiction ratione materia, which could not thus be collaterally drawn into question by a debtor of the minor. So long as that judgment stands unreversed, it constitutes a full warrant for the demand and collection by the person therein named as tutor, of debts due to the minor, Bollenhagen-.

The Second District Court of New Orleans is without jurisdiction, to decree w the nullity of a judgment rendered by the District Court of the Eleventh District, holding sessions in the parish of Caldwell, in a direct action ; still less can it do so collaterally. 1 Hennen’s Digest, 811; 3 Robinson 305; 14 An. Rep. 625.

It is, therefore, adjudged and decreed, that the judgment appealed from be reversed, and that plaintiff in rule and appellant, have judgment against defendant and appellee, in his capacity of executor, for five hundred dollars, with costs in both courts.

Lard, J., concurring. It is true that the domicil of the tutor, so long as he continues to act as such, is the domicil of the minor. It is also true, under the decisions of this court, that the Judge of the parish of the tutor’s domicil, has jurisdiction as to all matters touching the administration of the minor’s property, or affecting his interest during the continuance of the tutorship. But these principals of law are not necessarily decisive of the question now before the court and which is, in my understanding of the cases, still an unsettled and open question.

There is no express law which makes the tutor’s domicil, the minor’s domicil, after the death of the tutor. But there is an express law which makes the last place of domicil of the father and mother, the domicil of the minor, for the purpose of the appointment of a tutor to the minor, and that is the domicil of the minor mentioned and intended in Article 289 of the Civil Opde, as clearly shown by Article 945 of the Code of Practice.

If the domicil of the minor continues by operation, or presumption of law, to be that of the last place of residence of his deceased tutor, until another be appointed, then the enactment of Article 945 of the Code of Practice, was entirely unnecessary, because the last plaee of domicil of the deceased father and mother continued by operation of law, to be that of their minor children, without any express legislation on the subject.

The Legislature, however, seems to have rejected such presumption, and to have acted on the principle, that the minor has no place of domicil after the death of his tutor, and before the the appointment of another iu his stead, and consequently, has provided for such a case, by declaring that the last place of domicil of the deceased father and mother in the State, shall be the minor’s domicil for the purpose of the appointment of a tutor.

For these reasons, I concur in the decree in this case.

Note. — The case of the Succession of Winn, 3 Rob., was properly decided under Article 944 of the Oode of Practice, because the parish of Carrol was the domicil of the surviving mother.

Merrick, O. J.,

dissenting. This case presents a question of law resulting from the admissions of record, which I think of much importance.

It is admitted that the mother of the minor, Catharine Bollenhagen, died in the parish of Caldwell, in this State ; that her succession was opened in said parish, and Frederick Gorrisson, the maternal uncle, was appointed tutor on the 15th day of March, 1851; that in the following year, said Gorisson carried said minor to Germany for her education, where she has been ever since ; that at the date of the appointment of said Gorrisson as tutor, his domicil was in this parish, the parish of Orleans, where it continued till his death.

F. A. A. Heisen was appointed tutor by the Clerk of the parish of Caldwell, in January, 1859, after the death of F. Gorrisson.

The question is, therefore, presented, whether the court of Caldwell had jurisdiction. If it had, the appointment cannot be questioned collaterally; if it had not, the appointment is absolutely null and void, and must be so considered everywhere.

The question would, I think, be without difficulty on legal principles, were it not for the argumentum ab inconveniente For it might happen that a succession should be settled, or the affairs of a minor be administered, in good faith, by a court erroneously believing itself to have jurisdiction ; and to hold that the acts of such court were absolutely null 'and void, might work great hardship to innocent persons. The argument, however, may be met by others of equal potency the other way.

But in the present case, the only inconvenience resulting from the irregular appointment of Heisen, is the want of money which the minor may experience during this controversy, and which any friend might safely furnish.

It is shown that the minor was in Europe at the time of her appointment, and that her domicil (being that of the tutor) was in New Orleans.

Hence, the appointment by the Clerk of Caldwell can only take effect, by showing that the court of that parish had jurisdiction (as assumed by the majority of this court) ratione materia, in other words, by reason ol' the subject-matter. This question can only be decided by an appeal to the law ; for it cannot for a moment be admitted, that a court other than that at the domicil of the parties, can, in the absence of positive law, take jurisdiction ex parte and affect the rights and estates of any one without notice.

Now, the law on this subject is found in Art. 289 of the Civil Code, which declares that:

The appointment or confirmation of tutors must be made by the Judge of the parish where the minor has his domicil, if he has a domicil in the State, or if he has no domicil in the State, by the Judge of the parish where the principal estate of the minor is situated, saving to the parties the right of an appeal within thirty days from the judgment decreeing the nomination or confirmation, after which no appeal shall be permitted.” See also O. P. 944, 945, 956 and 948.

The domicil of the minor is that of the tutor, as expressly declared by Art. 48 C. 0. Hence the domicil of this minor is New Orleans, and the Oode of Practice confers upon the competent Judge alone the power to appoint tutors O. P. 948.

It is, therefore, clear that the Judge of the Second District Court of New Orleans alone, has jurisdiction over this question, and we are called upon to reverse his judgment, wherein he has refused to send the estate of the minor under his jurisdiction out of the same, or to place it in the keeping of a person appointed by the Clerk of a court having no jurisdiction conferred by law.

In the case of the State v. Bermudez, it was held, that the Judge who made the appointment of a minor, lost jurisdiction over him, if his domicil were in another parish, and that the Judge of the domicil of the tutor was the proper Judge to appoint the under-tutor. 14 La. 484. If so, he is the proper Judge to appoint the tutor. C. C. 300.

In 2 Rob. 160, against the same Judge, it was hold, that the domicil of the tutor is that of the minor ; and that the Court of Probates where the minor has his domicil, is the proper tribunal to order a family meeting, to determine questions affecting the interest of minors.

In the case of the State against the same Judge, 2 Rob. 418, it was held, that it was the Judge of the domicil of the tutor, who had jurisdiction to receive the resignation and make appointment of the under-tutor.

In the case of the Succession of Winn, it was expressly decided, that it was the Judge of the domicil of the mother and tutrix, who had the right to make the appointment of his successor.

As this case is directly in point, I will briefly state the facts as they appear by the reports.

Richard Winn died in the parish of Rapides, where his succession was opened in 1840, leaving three minor children. His widow, their mother, was confirmed natural tutrix in 1841, by the probate Judge of Rapides. While on a visit to Tennessee, the tutrix married J. N. P. Richardson, who resided at that time in the parish of Caeboll, in this State. The marriage, without the advice of a family meeting, having deprived the tutrix of her office, she and her husband applied to the Judge of Probates of the parish of Carroll, the new domicil, to be appointed dative tutors. With the advice of a family meeting, they were so appointed. The same month in which they were appointed in the parish of Carroll, the grandfather of the minors applied to the Probate Court of Rapides, for the convocation of a family meeting, and, notwithstanding the opposition of Richardson and wife, was appointed tutor. Richardson and wife appealed.

The point was expressly made by the counsel of the grandfather, the tutor appointed in Rapides, that the Probate Court of the parish of Carroll had no jurisdiction.

It also appears from the appellant’s points, that the regularity of the probate proceedings of Carroll was questioned. On the first point, this court said:

“ By the 48th Article of the Civil Code, it is enacted that a married woman has no other domicil than that of her husband; and the domicil of minors is that of their father, mother or tutor ; therefore, when the opponent, the widow of R. Winn, deceased, became the wife of Richardson, she acquired immediately, by fact of marriage, the domicil of her second husband, which was in the parish of Carroll; and her minor children, whose domicil is that of the mother, acquired also their domicil in the same parish. The fact which, perhaps, deprived her of the natural tutorship, had the immediate effect of transferring the domicil of the mother and children from the parish of Rapides to that of Carroll. Now the law is positive in all cases concerning minors, the Judge referred to in our legislation, is the Judge of the parish within whose jurisdiction the minors reside. Bullard & Curry’s Dig. p. 580, No. 8 ; C. C. Art. 289.
“ The Code of Practice,” the court proceeds, “ says that the appointment of a tutor or curator to a minor, belongs to the Judge of Probates of the place of domicil or usual residence of the father and mother of such minor, if they or either of them be living. This point is, in our opinion, so clear, that it does not require any further comment, particularly as it seems to have been settled in our jurisprudence by several decisions of this court. See 14 La. 484, and the case of the State v. The Judge of the Court of Probates of New Orleans, 2 Rob. 160, 418.”

Now, here it has been expressly decided, that the domicil of the minor followed that of the tutor ; that the Judge who made the first appointment lost his jurisdiction by the removal of the tutrix and mother of the minors to another parish, and that the Judge of that other parish became seized of the jurisdiction.

It is supposed, that this decision does not apply to the case where both the father and mother of the minors are dead, and a second tutor is to be appointed, and that in that event, under Article 945 O. P., the last place of residence of the survivor is the perpetual jurisdiction for the successive appointment of all tutors. Now, in the case just cited, this court affirms the contrary doctrine as settled law, and refers to 14 La. 484, and 2 Rob. 160, 418, in support of the same.

Moreover, the Article in question must be construed with reference to the other provisions of the Code, and particularly Articles 48 and 289, and in such connection, it is quite evident, it only applies to the first appointment of tutor. It cannot be supposed that the Legislature, after having declared that the domicil of the tutor is that of the minor, intended that he should lose all his rights of citizenship in that parish, and be referred to the ancient domicil by the death of his tutor.

Again : in the case of the Succession of Bronson, we held, that an appointment of a tutor by the District Court of the parish of Jefferson, was null, the domicil of the minor being the parish of Plaquemines, where the Clerk had exercised jurisdiction. 11 An. 24.

We have also held, that we will not regard the appointment of a tutor made in .a sister State, the domicil of the minor being here. See also the case of The State ex rel. Boissac v. A. Petit, Recorder, 14 An.; Opinion Book, 241, 242.

It, therefore, cannot be affirmed, that any statute or provision of the Code, has given the Clerk of the parish of Caldwell, or the Judge of the Eleventh District, continued jurisdiction of the appointment of tutors to said minor. No statute, therefore, has given such Clerk or Judge jurisdiction ratione materia, or by reason of the subject-matter.

But if it be supposed, that inasmuch as the District Courts are courts of general jurisdiction, and, therefore, the courts of other districts than those of the domicil may appoint tutors, the supposition embraces a falacy, for the jurisdiction of District Courts is limited by the boundaries of the parish, and there are only two modes in which any court, how extensive soever its powers may be, can take jurisdiction, viz, by reason of the person or property which it can reach by its process. See 5 N. S. 45.

The court of Caldwell has no jurisdiction of property, because that appears to be within the jurisdiction of the Second District Court, and if it were not, the laws regulating the appointment of the tutor, is a personal statute, and governs the correlative rights of the minor and tutor throughout the world. 8 La. 84; 8 Saugry, sec. 380, 0.

Yattel says : “ It belongs to the domestic Judge to nominate tutors and guardians for minors and idiots. The law of nations which has an eye to common advantage and the good harmony of nations, requires, therefore, that such nomination of tutor or guardian, be valid and acknowledged in all countries, where the pupil may have any concerns.” Yattel’s Law of Nations, p. 227, book 2, ch. 7, sec. 85 ; Story’s Conflict of Laws, secs. 495-7 ; see also Statute of April 1,1843.

The'statute being personal, the court of Caldwell was without jurisdiction, because both the minor and her domicil were beyond the limits of that district. It is thus shown that the Clerk of Caldwell and District Court had no jurisdiction in this case, and it is well settled that the decrees of a court without jurisdiction, are absolutely null and void, and have no validity whatever. 1 N. S. 9 ; 2 Rob. 512 ; 11 How. 460.

In the case of Winn the court said, that the appointment by the Judge of Rapides was void for want of jurisdiction. See 3 Bouvier Inst, section 2901, page 248.

In the case cited from 14 An. 623, the court had jurisdiction.

In the case of Broughton v. King, this court said : “ Laws authorising judgments in personam to be rendered against absentees, without citation, notice or appearance, in direct actions nominally instituted against them, are subversive of all ideas of justice and common right.” 2 An. 571.

What is here said of an attachment suit, will apply with still greater force to a case where a minor and her estates are sought to be withdrawn by an ex parte order of a remote tribunal, from the jurisdiction to which they have been confided by law. If the Clerk of Caldwell can make such appointment in the absence of the minor and her property, then every other Clerk has the same power, and nothing prevents the appointment of as many tutors as there are parishes in the State. Nay more, as many as there are probate jurisdictions in the Union, for judgments have the same force, under the Constitution, in every other State which they have at home.

But it is said that this court has decided, 3 Rob. 305, Succession of Winn, that the judgment of the Probate Court appointing a tutor, cannot be questioned collaterally.

I have already had occasion to cite this opinion to show, that it was only the court of the domicil of the tutor which could appoint his successor. The court, after having demonstrated that the parish of Carroll had jurisdiction to make the appointment, decided that the appointment made hy such court could not be attacked collaterally. Why ? I add, because the court had jurisdiction, and the same can be said of all the other cases cited by appellant.

In the case of Brownson, we held, in fact, that where the court had no jurisdiction, the appointment could not be regarded. 11 An. 25.

A court of general jurisdiction within one parish, cannot, therefore, be said to have jurisdiction ratione materice of property and persons beyond its limits, and wholly within the jurisdiction of another tribunal, because the property and person cannot be reached without invading such other jurisdiction.

I see nothing in Article 945 O. P., which induces me to think that the Legislature wished to sanction the doctrine, that the minor has no place of domicil after the death of his tutor. They have not said so, and it is not only against anology but, as I think, against the express letter of Articles 48 and 289 0. 0. See also Art. 43.

There is no difficulty in construing the different Articles of the Civil Code and Code of Practice, so that they shall harmonize. It has already been done by our predecessors, who, I had supposed, had settled this question long since.

I think, the judgment of the lower court ought to be affirmed.


author: Büohanan, J.

text:
    Harriet Phelps v. Elizabeth A. Rightor et al.
    In a contest between a wife separated in property from her husband, and a judgment creditor of her husband, seizing property which she claims as belonging to her separate estate, when the creditor specially denies that the property soizod was purchased with the separate funds of tho wife, and alleges fraud and collusion between the spouses in obtaining the judgment of separation — Tldd: That in such case, the burden of proof is thrown on the wife to establish the validity of her judgment, and to show how she acquired the property in question.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Benjamin, Bradford <& Finney, for plaintiff.

      Whittaker <$> Fellows, for defendants and appellants.
   Büohanan, J.

The plaintiff, a married woman, separated of property from her husband, by judgment of court of the 14th May, 1847, subsequently purchased in her own name real estate by six distinct conveyances, for an aggregate amount exceeding $12,000.

Plaintiff’s husband was largely indebted by judgment to defendants, at the time of his marriage, and of the judgment of separation of property between him and plaintiff. Under a ft. fa. issued in execution of the judgment of defendant against the husband of plaintiff, tho Sheriff has seized the real estate purchased by plaintiff in her own name since her judgment of separation of property, as aforesaid.

This suit is instituted to enjoin the sale by the Sheriff under his levy.

The allegations upon which plaintiff obtained her judgment of separation were, that she had brought into her marriage as a dowry a sum of seven thousand four hundred and ninety-six dollars, composed of the following items :

Bills Receivable of sundry persons................................ $6546

Cash......................................................... 700

Sundry movable effects valued at................'................. 250

Total $7496

That all of plaintiff’s said dotal property was received by her said husband who has administered the same ever since the marriage, and no part thereof ever came into the hands of plaintiff; that her husband’s affairs were disordered; that there were large judgments unsatisfied against him. Plaintiff’s husband admitted by his answer in the suit for separation of property, that he had received from his wife the notes, cash, and personal effects alleged by her, and had collected all of the said notes from the makers thereof — which he has retained ever since.

Judgment was rendered, decreeing a separation of property, and that plaintiff recover of her husband the exact amount of her alleged dowry, $7496.

Two fi. fas. issued in execution of said judgment, produced nothing, as appears from the Sheriff’s returns. It thus appears, from evidence adduced by plaintiff, that the means which she possessed at the time of her marriage had been entirely dissipated and lost previous to the decree of separation of property; in virtue of which decree alone she now claims that purchases of property made in her own name enure to her separate benefit. There has been no attempt on the part of plaintiff to show how she has acquired the means to make payments for the property so purchased by her. She does not appear to have exercised any trade or industry, which might have furnished her with such means. The District Judge was of opinion, that it was not necessary for plaintiff' to make such proof. But the authorities referred to in the judgment appealed from and in the argument of plaintiff’s counsel in this court, do not sustain that doctrine.

In the case of Mock v. Kennedy, 11 An. 526, the court said : “ The evidence fully establishes the plaintiff’s right of property to the goods seized. The stock of merchandize appears to have been purchased originally with funds borrowed upon her credit, and lent to her individually.”

Again, in the case of Campbell v. Bell — “ Neither is it shown, that after the dissolution of the community, she ever made, or could have made by her industry, the money with which this property was purchased.”

The answer of defendants denies specially that the purchases in question were made with the separate funds of Mrs. Phelps; and alleges fraud and collusion between her and her husband, as well in the judgment of separation as in the subsequent proceedings.

Under these pleadings, the burden of proof to establish the validity of her judgment, was cn plaintiff; and in this we think she has failed.

Judgment reversed ; and it is adjudged and decreed, that the injunction herein issued be dissolved, and that defendants and appellants recover of Harriet Phelps and W. P. Sunderland, the principal and surety in the injunction bond, in solido, one thousand dollars damages, with costs in both courts.


author: Merrick, O. J.

text:
    States v. Judge of the Fifth District Court of New Orleans.
    When a Constable has seized property under a writ emanating from a Justice of the Peace, bis posses • sion is that of tho law ; ho may protect his possession of tho property seized by calling to his aid the judicial power, when needed ; and when, by an order of a District Court, an attempt is made to deprive him of his possession, he is entitled to appeal from such an order, if tho case be au appeal-able one.
    When an appeal in such a case is refused him, his remedy is not by a writ of certiorari.

    ON application for a writ of certiorari, to the Judge of the Fifth District Court of New Orleans.

      T. H. Howard, for relator.
   Merrick, O. J.

J. B. Houghton has presented a petition to this court, praying for a writ of certiorari, under Art. 857 of the Oode of Practice.

He alleges, that he is Constable of the First Justice’s Court of this city; that by virtue of twenty-six different writs of provisional seizure, he seized on the 9 th inst., and took into possession the steamboat Ashland, within the jurisdiction of said Justice; that on the 14th inst. a rule was served upon him from the 5th District Court of New Orleans, in the case of W. W. Knowles v. Captain and Owners of the Steamer Ashland, requiring him to show cause why he should not surrender the said steamboat to the Sheriff, who had levied an attachment upon the same, or in default thereof, be fined and imprisoned for contempt of the authority of the court; that he appeared and answered said rule, and showed good reasons why the same should not be made absolute, nevertheless, the rule was made absolute; that Knowles’ demand is over three hundred dollars; that he moved for an appeal from the order against him, but his appeal was denied him. He avers, that said order is void, within the meaning of Art. 857 0. P.; that petitioner is only amenable to the jurisdiction of said First Justice's Oourt, and that the Fifth District Oourt has no control over him, nor power to revise the orders or judicial proceedings of such Justice, or to interfere with the execution of the same; that he is not bound to obey the order of the Fifth District Oourt; that said court was not competent to make such order, and had no authority to fine and imprison petitioner; that petitioner refused to deliver said steamboat to the Sheriff, nevertheless the Sheriff took out of petitioner’s possession the said boat on the 19th inst.

He prays that the District Judge may be ordered to send a certified copy of said proceedings to this court, to the end that the validity of said order may be inquired into aud ascertained, and that said Judge be enjoined from further proceedings until judgment shall have been pronounced thereon, and for general relief.

When a Constable has seized property under a writ emanating from a Justice of the Peace, his possession is that of the law. 14 An. 503. He acquires such a qualified interest in the property, as to be able to protect his possession by calling to his aid the judicial power, when needed. Phillips’ Digest, p. 105-106, secs. 4, 7,11; 6 R. 102 ; Sew'ell on Sheriffs, 429.

It would seem then to follow, that where an attempt is made to deprive him of his possession by an order of court, that ho is entitled to appeal from such order if the case be an appealable case. 8 An. 43.

We think the petitioner, under his showing, was entitled to an appeal from the order requiring him to surrender the steamboat to the Sheriff, Being entitled to an appeal, the present form of proceeding is inadmissible. O. P. 858.

It is, therefore, ordered, that the petition for a writ of certiorari be dismissed, at the costs of petitioner.