text:
    No. 9953.
    Michael Herber vs. Robert Abbott.

      A. judgment that bus been rendered iu an attachment suit against an absentee, represented by a curator a,d hoa} is one in Tam, and not in personam. Tt affects the property attached
    In sucli case the jurisdiction of tbo comt is derived from the seizure of the property, and its judgment has no validity except against the thing thus subjected to its control.

      The registry of suck a judgment does not result in a judicial mortgage, and a subsequent lease of the property is unaffected thereby.
    APPEAL from the Civil District Court, for the Parish of Orleans. Houston, J.

      Hrauglm, Bucle, IJinlcelspiel & Hart, for Plaintiff and Appellant.

      Howe & Prentiss and John H. Kennard, for the Garnishee, Appellee.
   The opinion of the Court was delivered by .

Watkins, J.

This is a garnishment proceeding, in which' Thomas E. Herndon is sought to be made liable, upon a traverse of his answers as untruthful, for the amount of a judgment of $2600 against Abbott, an absentee. The garnishee denied the possession of any property of, or the existence of any indebtedness to Abbott.

The plaintiff’s reliance is upon the following state of facts, viz :

That on the 9th of April, 1883, in attachment suit, he obtained a judgment against Abbott, with recognition of his attachment of the Planters’ Cotton Press, in this city, said absentee being therein represented by a curator ad hoe.

This judgment was recorded in the Mortgage Office on the 15th of May following. Thereafter a ft. fa. was issued, the property attached was seized and offered for sale, but no sale was effected, mainly because there was no bid for an amount sufficient to discharge prior special mortgages; and the writ was returned without a copy having been retained, and the seizure lapsed and became relinquished.

That at the time of the attachment of the cotton press it was under lease to the garnishee, and this lease expired on the 1st of September, 1884.

That subsequent to the registry of plaintiff’s judgment, this property was again leased to the garnishee for a term of three years. In this attitude of affairs these proceedings were commenced on the 30th of November, 1886.

His contention is that Herndon’s lease in 1884, subsequent to recordation of his said judgment, resulting in a judicial mortgage on the properly, became subject to said mortgage.

That he was entitled to, and did seize the cotton press, and its rents and revenues that had arisen into existence since the registry of said judgment, under an alias writ of fi. fa.

He does not rest his garnishment upon the attachment, or the lien resulting therefrom; and he does not claim that the rents sought to be-seized thereby were then in existence.

To the proceedings the garnishee excepted on the following g'ounds, viz:

1st. That the district court was without jurisdiction.

2d. That plaintiff’s judgment against Abbott, an absentee, in a proceeding wherein he was not cited personally, and was only personated by a curator ail hoe, can be executed only against the property attached (if any), and no other seizure or garnishment can be made under said judgment.

3d. That no property was ever attached in his hands.

Hence .we have the following propositions for discussion and solution, viz :

1st. Does the registry in the book of mortgages of a judgment obtained against an absentee, in an attachment suit, who is represented by a curator ail hoe, operate a judicial mortgage against his property 1

2d. Under an alias writ of fi. fa., issued under such recorded judgment, can the lease of said absentee — whose contract of lease is subsequent in date and registry to the judgment — become compelled, by garnishment, to pay his rents to the attaching creditor, notwithstanding he has issued negotiable promissory notes therefor, payable at future dates ■?

I.

The plaintiff relies on the authority of Summers & Brannon vs Clark, S. L. Boyd, garnishee, 36 Ann. 436, in which it was held that a lease of real estate, made in good faith, and duly recorded, could not be affected by a seizure of the leased property on the part of the lessor’s creditors, unless they had a prior mortgage, duly recorded. In that case the plaintiffs had a judgment in personam against Clark, and the lease of Boyd had not been recorded when the seizure was effected. The plaihtiffs seized the property of Clark and its revenues and hold them. In the suit of plaintiff against Abbott his judgment was one in rem.

In an attachment suit against an absentee, represented by a curator ad hoe, the judgment rendered is in rem, and only affects the property attached. An action is not personal, though founded on a personal obligation, accompanied by an attachment of property, unless it is based on a personal citation to the debtor. In such case the judgment bears exclusively on the property attached.

In 4 Ann. 586, Forest vs. Piane, it was held: “ There is a manifest distinction between the case of a court which has acquired personal jurisdiction and that of a court whose jurisdiction being exercised only in rem, rests solely upon the property attached. In the latter’s case the power of a court seems to us to ho limited, to its territorial limits. It acts upon the thing, not upon the person of its owners. Its jurisdiction is derived from the seizure of the property, and its judgment has 110 vitality except against the thing thus subjected to its control.11

In George vs. LeGrand, 3 Ann. 632, it was most distinctly held that a judicial mortgage does not result from the registry of a judgment in rem. 3 Ann. 301, Jobson vs. McRae; 6 Ann. 549, Page vs. Generes.

Indeed, we do not see how such a judgment could operate as a judicial mortgage — affecting the present and future property of an absentee, not personally cited at its rendition — without impeaching our own jurisprudence and that of the Supreme Court. 2 Ann. 663, 916, 569, 1010; 95 U. S. 714, Pennoyer vs. Neff.

This being the case, the first proposition must be decided in the negative.

II.

Inasmuch as the effect of a, judicial mortgage cannot be given to the registration of a judgment i» rem, and as it bears upon the property attached alone, it is of no consequence when the contract of lease is entered into, or recorded.

Question has beeu made aud argued by the garnishee’s counsel whether the original attachment could be extended to rents accruing subsequently; hutas wo understand from the printed and oral arguments of plaintiff’s counsel, no such claim is made, and lienee the question need not be decided.

Having reached the conclusion that the contention of the plaintiff is not well grounded iu law, it is needless to discuss others that have been argued.

Judgment affirmed.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    City of Lafayette v. Male Orphan Asylum.
    A statute exempting the property of an institution “from all taxation, either by the State parish, or city,” will not exempt it from liability to contribute to the expense of paving sida Walks in front of property belonging to it, ordered to be paved by an ordinance of a city corporation, made in the legal exercise of its authority. The charge imposed by the ordinance is not a tax.
    A statute exempting an institution from liability to taxation, being in derogation of common right, must be construed strictly. It cannot be extended beyond its clear import.
    Appeal from tlie District Court of Jefferson, Clarke, J.
    P. B. Conrad and Michel^ for the piaintiffs.

      G. B. Duncan, for tlie appellants.
   The judgment of the court {King, J. absent,) was pronounced by (

Slidell, J.

By an act of the legislature, of 12 March, 1836, it Was declared that, from and after its passage, all the property, real and personal, belonging to the asylum should be exempt from all taxation, either by the State, parish, or city in which it is situated.

The municipal corporation of Lafayette, in the legal exercise of its authority, passed an ordinance in 1844, requiring the owners of town lots, under certain circumstances, to cause the side walks fronting their lots to be paved with brick or flag-stones within a certain time; and, in case of default by the owners, that the work should be done by the corporation, and the owners should be liable for two-thirds of the cost of such work iu front of their property. It was also ordained that owners of lots who chose to have the work done by themselves, would be reimbursed one-third of the cost by the- corporation.

The municipal authority of Lafayette had the side walks fronting the lots of the asylum paved by a contractor employed by it; and instituted this suit, for the benefitof the contractor, against the defendants, for two-thirds of the cost of the work. That the work has been done, and that the' price is reasonable, is conceded by the defendants. It is proved that the paving has given an enhanced value to the property equivalent to, and even greater than, the amount sued for. The defendants re3t their defence'upon-the assumption that the charge imposed by the ordinance is a tax; and is illegal, because, by the statute; the asylum is exempt from taxation.

It may be assumed- as a rule of common right that no one should be exempted from taxes- who possesses property, and is protected by the State in the-enjoyment of that property. Absolute freedom from taxes in any individual-so situated is, in the absence of some countervailing motive of public policy, an-injustice towards the rest of community, who are burdened with them. Hence, therefore, it follows that, in case of legislative exemption from taxation, as in any other legislation in-derogation of common right, the statute must be-strictly construed. It must not be extended beyond its express words or clear import- See Coolidge v. Williams, 4 Mass. 144. Gibson v. Jenny, 15 Mass 206. Sprague v. Bridsall, 2 Cowen, 420. “Si la disposition-est contraire au droit common, elle ne doitrecevoir d’extension ni d’un cas it un autre, ni d’unepersonne á une autre,- ni d’une chose á un autre.” Merlin, Rep. verbo Interp.

A number of individuals thought: proper to associate themselves for a most; praiseworthy object, and obtained a charter of incorporation from the State-The object of the association tended to advance the public welfare, by rescuing-an unprotected class of human beings from destitution and vice, and preparing them to be worthy members of society. In consideration of its expected usefulness the legislature thought proper, in derogation- of the general law, to exempt it from the burden of taxation. The plaintiffs concede the power of the legislature to grant this immunity; but in our opinion reasonably argue that, the immunity must be restricted to taxes in the usual and proper sense- of that term; and that the liberality which they now desire to enforce does not fall within the terms or fair import of the statutory exemption.

Taxes-have been by some defined to be that portion-of the property of individuals which each has to contribute to the public treasury to defray the public expenses. In the Matter of the Mayor of New York, 11 John. 80, the court said : “Taxes” mean burdens, charges, or impositions, put or set upon persons or property for public uses. Thus interpreting the term, they held that a statute of New York, which declared “that no church or place of public worship, nor any school house should be taxed by any law of this State” did not exempt a church from the liability to pay for the opening of a street in a ratio to the benefit or advantage derived from it. The language was considered as referring to the general and public taxes for the benefit of the town, county, or State at large.

In the present case the same language substantially was used by the legislature, and with the like'import. There would be no propriety in applyiug the exemption to-a liability for a share of an expenditure which, though it contributed to promote the public comfort and convenience, contributed also to the comfort and convenience of the inmates of the asylum, and directly enhanced the value of its proporty, If the defendants should think proper to-morrow to sell the land and choose a sight elsewhere, would they not derive a direct benefit from this improvement? And why should ‘they not .pay for it? Qui sentit eommodum, senlire debet et onus.

Judgment affirmed.


text:
    Byrne v. Riddell et al.
    The surety in a bond given for an appeal taken after the lapse of ten days from the notification of judgment, will be hound, in ease the appellant he east, only for costs, though the bond was for an amount large enough for a suspensive appeal, and the surety hound himself, in case the appellant should he oast and fail to satisfy the judgment, “to satisfy -whatever judgment may he rendered against him." C. P. 578. Per Curiam: The bond mast he construed w-ith reference to the articles of the Code of Practice applicable to the subject matter.
    ‘The “ costs” for which the surety on a bond given for a devolutive appeal is hound, are the costs both of the lower court and those of the appeal.
    from the Third District Court of New Orleans, Kennedy, J.

      Collens, for the plaintiff.

      Bartlette, for the appellant.
   The judgment of the court {King, J. absent,) was pronounced.by

Slidell, J.

A judgment was rendered in favor of the plaintiff against ■Banks by default, for the sum of $362 50 and costs. ■ This judgment was duly notified to Banks, in December, 1845. In May, 1846, Banks presented a petition,,in which he prayed for a suspensive appeal from the judgment. Upon .this petition the court granted the following order : “Let an appeal .be allowed in this case, returnable in the .Supreme Court on the third monday of June, 1846, on the appellant’s giving bond in the sum of $600, with J. L. Riddell as cecurity, conditioned as the law directs.”'• On .the same day an appeal bond was filed, drawn in the usual form, for the sum of $600. The Supreme Court having rendered a judgment dismissing the appeal, a fieri facias was issued :and returned ‘■‘nulla bona.” A rule was then taken by the plaintiff upon Rid-dell, as surety in the appeal bond, to show cause why he should not be adjudged !to pay the amount of the judgment and costs. To this rule Riddell answered that, the appeal of Banks was devolutive, and that his liability was only for the costs of the appeal. The court condemned the surely to pay the amount of the judgment-and costs; and he has appealed.

Our first inquiry is, was the appeal suspensive or devolutive ? If an appeal be taken within ten days after notification of judgment it shall stay execution, says the Code of Practice, provided the appellant give his bond, with a proper surety, for a sum exceeding by one-half the amount of the judgment, &c. But if the appeal have been taken after the ten days have expired, “ the appeal shall not slay the execution of the judgment.” Such is the imperative language of art. 578. It will be observed that the order granted by the judge does not, in terms, say, a suspensive appeal was allowed. But suppose it had said so : It would have been in direct violation of the law, and being rondered ex parte, could not affect the plaintiff’s right to execution, which was acquired by the expiration of the legal delay. It is therefore clear, that, the plaintiff could have executed the judgment after the appeal was granted. The appeal was merely •devolutive. But the plaintiff contends, that she silently submitted to the order, as ene granting a suspensive appeal; that she did not attempt to execute the judgment pending tjie appeal; and that Banks thus had the benefit of a suspensive appeal. But her construction could not change the legal effect of the order; aud tins too as against a surety, whose obligation is not to be extended. The question is, not what she supposed her lights to be, but wliat they really were. If she had issued a fieri facias, after this order of appeal was granted, could Banks have been permitted to .enjoin upo'n-the ground, that execution had been suspended 1 We think not.

Considering the appeal devolutive, our next inquiry is, what is the extent of the surety’s liability ? It is true that the amount of the bond was §600, an amount which more than covers the judgment and probably costs. It is also true, the condition of the bond was, “ that the above bound Bftnks shall prosecute his appeal, and shall satisfy whatever judgment may be rendered against him, or that the same shall be satisfied by the proceeds of the sale of his estate, real or personal, if he be cast in the appeal; otherwise that the said Riddell, surety, ahall be liable in his place.” But the language and intention of the bond, must be construed with reference to the articles of the Code of Practice applicable to the subject matter. When the appeal is deyolutive, the extent to which security is to be required is such a sum as the pourt may deem sufficient for the payment pf costs. Costs are the measure of the indemnity to be provided for the appellee, and consequently of the surety’s liability. C, P. 578.

The appellant contends that by “posts,” is meant costs of the appeal. The language of the .engiish text is ambiguous ; but this ambiguity may be aided by reference to the french text,-which is .clear—“pour sureté du paiement des frais, tant en premiere instance qu’en cas d’appel.”

Judgment reversed ; and judgment is rendered in favor of plaintiff against J, L. Riddell, for the amount of the costs incurred in the prosecution of the suit of the plaintiff agaip.st Banks, in the District and in the Supreme Court, and the costs of the motion against the surety in the court below; for the ascertainment pf which costs the pause is remanded. The plaintiff to pay tbh posts of this appeal, ,


text:
    Matter of Exchange Alley.
    A report made by commissioners appointed, op an application to open a street, under tho provisions of thestat. of 3 April, 1832, was recommitted with directions to make anew report within ascertain delay, but no report was made within the time. Subsequently, after arule had been taken by a party interested to show cause why the proceedings should not be dismissed, buf before its trial, an amended report was filed, which, on a compromise between the plaintiff in the mle and the petitioners for opening the street, was confirmed and homologated. There was no evidence that the appellant, who was a party, had appeared, or had any knowledge of the proceedings after the recommitment of the report. Iield, that no order oi extension having been made when the period within which the report was to be returned was about to expire, the appellant cannot be bound by the expartB homologation.
    The stat. of 3 April, 1832, authorizing a municipal corporation to take the property of a cifci. zen for public use, to be paid for by others supposed to be benefited thereby, being in derogation of the rights of property, must be strictly construed.
    from the Third District Court of New Orleans, Kennedy, J.
    Breaux, for the Municipality.
    Micou, for the
   The judgment of the court {King, J. absent,) was pronounced by

Slidell, J.

This proceeding has been conducted in an extremely dilatory and unsatisfactory manner; and the result has been a judgment affecting the rights of the appellant Dussuau without his presence, and, so far as we can judge by the' record, without a proper opportunity afforded to him of being heard.

A report had been filed by the commissioners, which was opposed ; and, on the 24th April, 1846, a judgment was signed referring back the report to the commissioners, twenty days being allowed to them to make a new report. No report was filed within the delay. On the 22d June, 1846, two of the parties interested, Blanchard and Kain Sy Stroud, moved to dismiss the proceedings, for want of compliance with this order. This motion was granted, with a qualification. The proceedings were dismissed with leave to the municipality to move to set aside the judgment within five days from the service thereof on the mayor, upon cause shown. A motion to reinstate was made within the delay fixed, and the cause was reinstated. Ten days was allowed the commissioners to file a new report. Within the ten days, on motion of the municipality, the delay for reporting was extended" to two months. The commissioners again neglected to report within the delay, and no application was made to extend the time. In December, 1846, Duncan and Blanchard, as parties interested, obtained a rule on the municipality to show cause why the proceedings should not be dismissed. Before it was heard, the commissioners filed an amended report; Duncan and Blanchard. opposed; the case was continued from time to time, and at length the opponents having made a compromise with the municipality, the report amended in pursuance of the compromise was confirmed and homologated.

There is no evidence in the record that Dussuau either appeared, or had any knowledge of these proceedings, after the order, in April, 1846, to send the case back to the commissioners. We áre not prepared to say that a new notice by publication is necessary upon the' filing of a new report. The case in 19 Wendell, 682, upon the similar statute of New York decides the reverse. If, from time to time, as the delay granted was about to expire, orders of extension had been made, it might perhaps be just to say that the appellant, having been once properly brought into court, should be held to implied notice of such extension. But where there were such repeated defaults on the part of the commissioners, unexcused by timely orders of continuance or extension, to hold the appellant to the ex parte judgment which has been rendered against him, would be to say, that he was bound to perpetual vigilance, in watching day by day the minutes of the court, while the municipality remained inactive, and the commissioners disregarded and disobeyed the orders of the court.

The power to expropriate the citizen against his will for purposes of public utility, is a power the exercise of which should be strictly construed'; and in our opinion we should open the door to dangerous abuse, if we were to hold the appellant under proceedings so irregular as are presented by this record. See the case of the Application of the Mayor, &c., 4 Rob. 358.

It is, therefore, decreed, that the judgment of the court below be reversed, and that this cause be remanded for further proceedings according to law ; the appellee paying the costs of this appeal. '


author: Eustis, C. J.

text:
    Cochrane v. Murphy.
    Where a verdict allows no interest, the court, in rendering judgment on the verdict, can allow none. If the interest be omitted through inadvertence, the error may be corrected before the verdict is closed; if the jury refuse to allow interest when duo, the remedy is by an application to set aside the verdict and for a new trial.
    Where tho verdict of a jury allows no interest in a ease in which it was due, and the plaintiff prays for a new trial on the general ground of the verdict being contrary to law and evidence, and on certain special grounds, but no relief is asked against the error in the omission to allow interest, the judgment will not be altered so as to subject the appellee to the costs of the appeal, where the amount of interest is but small.
    from the Second District Court of New Orleans, Canon, J.

      JDurell and Greiner, for the appellant.

      W. E. for the defendant.
   The judgment of the court {King, J. absent,) was pronounced by

Eustis, C. J.

This suit is brought to recover the sum of $2,158 50, the alleged balance due on the price of a cargo of coals. The substance of the defence is, that the defendant sold the coals on commission. He admits that the balance due the plaintiff on the sale of the coals is $628 50, accorditig to an account which he has exhibited. The plaintiff prayed for a trial by a special jury of merchants, which was had, and the jury found a verdict for the sum admitted to be due by the defendant. After an unsuccessful attempt to obtain a new trial, the plaintiff has appealed from the judgment rendered in accordance with the verdict.

There are several bills of exceptions taken by the counsel for the plaintiff, but we think none of them tenable. The decision of the district judge on the points raised is so obviously correct, that no further notice of them is deemed necessary.

In relation to the facts of the case we have to observe that, the evidence, as it appears nakedly on paper, does not satisfactorily account for the quantity of coals which it would appear the defendant received. As the testimony is at variance as to the quality of the coals, that is, as to the proportion of dust coal in the lot, and as it remained for more than a month, during the sales, on the levée, we presume the jury were satisfied that the defendant accounted for all for which he was responsible, and that the quantities of dust coal for which the defendant charged himself in the account was all that remained undisposed of. A special jury having passed upon a fact of this kind, we do not feel ourselves called upon to interfere with their verdict.

The verdict gave the plaintiff no interest, and the judgment followed the verdict. The plaintiff asks that the judgment be changed in that respect. This change, if allowed, would throw the costs of the appeal on the appellee.

The Code of Practice, art. 522, makes it the province of the jury to decide claims for interest on sums of money in litigation ; and where the verdict allows no interest, we believe the rule is settled, that the court in rendering judgment on the verdict can allow none. If the interest is omitted by inadvertence on the part of the jury, the error can be easily corrected before the verdict is closed; and if the jury refuse to allow interest before it is due, the remedy of the party is by an application for setting aside the verdict and a new trial. Bedford v. Jacobs, 5 Martin N. S. 448. Commandeur v. Russell, Ibid. 461. Dale v. Downs, 7 Martin N. S. 225. Chain v. Kelso, Ibid. 263.

The plaintiff made his application on the general grounds of the verdict being contrary to law and evidence, and on the special ground of error on the part of the judge in his charg'e to the jury, and in Ms admitting evidence which was excepted to, but no relief was asked against this error in the allowance of interest. Had the application been made, non constat that it would not have been granted, or the application acquiesced in by the defendant. In such a case we are not at liberty to subject the appellee to the costs of the appeal by altering the judgment appealed from. Grailhe v. Hown, 1 An. R. 440.

Judgment affirmed.


author: Siudeii,, J.

text:
    Matter of Claiborne Street.
    Under the statute of 3 April, 1832,-regulating the opening and'improving of stre'ets and pulk lie places' in the city of New Orleans and its suburbs, the court before which the proceedings have been instituted can, in no case, amend an assessment made by the commission., ers. The report must be approved, or rejected, in toto; and in the latter case, the court is bound either to appoint new commissioners, Or to refer the whole matter back to the same.
    frontf the Fifth District Court of New Orleans, Buchanan, J.

      Bufour and Bodin, for the appellants.
    contri!.
   The judgment of the court {King, J. absent,) was pronounced by

Siudeii,, J.

This case has been presented to us by agreement of the parties upon a very imperfect record. Whetherthe appellants have a right to treat the proceedings as void for alleged' informalities in their inceptions, we refrain from now deciding. The question is important, and one Which ought not to be decided without the knowledge by this court of the pleadings and proceedings in the court below.

But whatever the previous pleadings and proceedings may have been, it is obvious that the final judgment of the court below cannot be maintained. An opposition to the report of the' commissioners was sustained by the court, an amendment decreed, and'the report so amended homologated. In the case of the Application of the Mayor, &c., 4 Rob. 357, it was held that, the court cannot amend an assessment; that the report must either be approved, or referred to the same (or new) commissioners. That opinion is in accordance with the terms of the statute, and' with the opinion of the Supreme Court of New York. 20 Wendell, 620.

It is, therefore, decreed' that the judgment of the court below be reversed, and that this cause be remanded for further proceedings according to law; the' appellee paying the costs of this appeal.

      A similar decision was rendered, at the same time, on another opposition, made by Duhart, to the same report.


author: B.ost, J.

text:
    Jones et al. v. Crocker.
    $he pendeíitíy of an action in which one of the joint proprietors of a lot of ground claims from his co-proprietor a sum for improvements, with a privilege upon the lot, cannot prevent the latter from obtaining a partition of the property until the claim is settled. Per Curiam: Such a claim is to be' taken into account in malting the partition, but cannot prevent it. C. C. 1272.
    It is no objection to a judicial partition that the experts selected to form the lots under article 1289 of the Code1, had acted Us appraisers when the property was inventoried.
    A notary is not bound, under art. 1290 of the Civil Code, when contestations aviste in the" course of a partition, to prepare, in all cases, a procés-verbal of the objections and declarations of the parties, and to suspend his proceedings and refer the parties to the judge having cognizance of the partition for his decision thereon. He must exercise a sound discretion in ascertaining When they are serious, and, when satisfied that they are not, should disregard them.
    Where a partition, made by 8 notary, provides that a party Who had drawn one of the lots’ into which the property was divided, should pay a certain sum to his co-proprietor on account of the greater value of the lot drawn by the former, judgment should he rendered in favor of the latter for the amount, at the time of homologating the report. The party should not be compelled to institute a separate action for the amount.
    from the Third District Court of New Orleans,- Kennedy, L

      Micou. for the plainttffs.

      A. Hcnnen, for the appellant.
   The judgment of the court {King, J. absent,) was pronounced by

B.ost, J.

By the decree of this court, reported in 1 An. p. 442, the plain-, tiffs were decreed owners, and recovered of the defendant, an undivided half of a town lot in this city. The object of this suit is' the judicial partition of the property, and the defendant has appealed from the judgment homologating the partition which has been made.

The defendant first excepted to the action, on the ground that there was-already a suit pending, in which he claimed of the plaintiffs sums of money for improvements, etc., with privilege upon the lot, and that no partition could take place until that account was' settled1. The District Court properly overruled-this exception. Claims of that description are to' be taken into- account irr making the partition, but cannot prevent it. C. C. 1272.

After the exception had been overruled, two partitions were successively made',- and, on the opposition of the defendant, s'et aside, on account of informalities. The parties were a third time referred to the notary, who proceeded to appoint' and swear experts to form the lots, under art. 1829 of the Civil Code. The defendant then claimed the right to choose and nominate one of the experts. He nominated Mark Walton, and requested an adjournment of one hour,for the purpose of producing him. This Request having been acceded to by the plaintiffs and the notary, after the expiration of an hour and a half the defendant did not return, and his counsel stated that he could not find Mark' Walton; whereupon the notary having directed the experts originally appointed to proceed, the said counsel of the defendant objected that the experts named were the same persons who had previously acted as appraisers in the inventory of the property, and that they were incompetent on that ground. He asked that the competency of the experts might be referred to the judge of the partition, and the proceedings therein suspended, until his opinion was had. But the notary being of opinion that this objection was unibunced in iaw, and being moreover required by the plaintiffs to proceed,’ refused to suspend the proceedings, and went on to complete the partition.

The defendant’s counsel assigns this refusal of the notary as an error which vitiates the partition. He contends that, under art. 1290 of the Civil Code, when contestations arise in the course of a partition, it is the duty of a notary in ail cases to make a •proces-verbal of the objections and declarations of the parties, to suspend his proceedings, and to refer the said parties to the judge of the partition for his decision on them.

This interpretation would put it in the power of a tenant in common to defeat at pleasure the action of partition. Whenever contestations arise, it is the duty of the notary to exercise a sound discretion in ascertaining whether they are serious, and when he is satisfied they are not, he is to disregard them. That discretion was correctly exercised in' .this case. The circumstance that the experts selected had on a former occasion appraised the property, could not disqualify them.

The grounds of the opposition made by the defendant to the homologation of the partition, and the bills of exception taken by him in the course of the proceedings, are of too frivolous a nature to require special notice.

The plaintiffs, in taking the rule for the homologation of the partition, ask a judgment against the defendant for §500, this being tbe sum which, under the partition, he is to return to them, on account of the greater value of the lot drawn by him.

The District Court refused to give the judgment. It simply homologáted the partition, and decreed to each of the parties to it the lots respectively assigned to thorn therein, leaving the plaintiffs to institute a separate action for that sum. We think the judgment should be amended so as to insure to the plaintiffs the possession of the return in money, as well as that of the town lot assigned to them. •

It is, therefore, ordered that the judgment in this case be amended, so that the defendant be decreed the separate owner of the town lot assigned to him in the partition, and that he pay the said plaintiffs the sum of §500, with interest from this date and costs. It is further ordered that the judgment as amended be affirmed, with costs.


text:
    Hyde et al. v. Culver et al.
    Advances made to the captain and owners of a steamer in the home port, to enable him to pay for stores and provisions fot* the boat, arrears of wages due the crew, and for expenses due to third persons upon merchandize shipped on the steamer, confer no privilege; the party by whom the advances are made is not legally subrogated to the privileges of the furnishers of provisions and crew. The word supplies in the 8th paragraph of art. 3204 C. C. applies to materials sold or furnished to the vessel, and not to advances of money.
    The 7th paragraph of art. 3204 applies to sums lent the captain, afcaportnot the home port, in the absence of the owner, and for the necessities of the vessel, that she may be enabled to complete her voyage.
    Advances made to the captain and owner of a steamer in a home port, to enable him to pay charges due to other parties on merchandize, in order to procure it as freight for his steamer, arc not such advances as are contemplated by paragraph 8 of art. 3204 of the Civil Code.

      from the Fifth District Court of New Orleans, Buchanan, J.

      Reynolds, for the plaintiffs.

      Van Balsón and Micou-, for the
   The judgment of the court (King, J.-absent,) was pronounced by

Slidell, J.

The question presented in this cause is whether the plaintiffs are entitled to a privilege upon the steamer Yazoo. The claim is resisted by Hunt & McDonogh, subsequent purchasers.

The material facts are as follows : Morrison & Co., of whom John Eaton was a partner, sold the steamer at New Orleans, in May, 1847, to Culver, then a resident of New Orleans, where the boat was enrolled inhis name. On. the 2d August, 1847, the plaintiffs advanced at New Orleans, to- Culver, then the captain and owner of the boat, the sum of $12,000 ; and took Culver's draft upon, himself at St. Louis, at three days sight, for that amount, which Culver accepted at St. Louis', on the 14th August. The petition alleges, and the evidence shows, that this sum was-advanced by plaintiffs to Culver, for the purpose of enabling him to pay for stores and provisions for the boat, arrears to the crew for wages, and freight and charges due other parties upon goods shipped by the Yazoo at New Orleans, for St. Louis. We understand by the latter item, that the Yazoo had obtained the carriage of these goods to St. Louis, upon condition of advancing to the New Orleans consignees the freight and charges previously incurred in bringing, them to New Orleans from> other ports. On the 17th August, 1847, Culver sold the steamer to Eaton, and,, on the 14th September, 1847, Eaton sold her to>Hunt 8f McBonogh of St. Louis, who upon the levy of the sequestration issued in this'cause claimed the boat. The vessel was-dully enrolled in St. Louis in the names of Eaton and Hunt Sf McBonogh respectively. She arrived here, in October, 1847-, and was seized on the 15th, of that month.

As there is no sufficient ground to dispute the ownership of Hwnt Sf McBonogh, the case rests upon a question of privilege.

The advance was made to the owner, at the vessel’s home port; and under the authority of repeated decisions of our predecessors, conferred' no privilege. In-the- case of Grant v. Fiol, 17 La. 158, the intervenors, Sloo & Byrne, claimed a privilege for a sum of money which, they alleged, was loaned by them to-the owner bf the vessel, and was applied to the payment of the ship-carpenter,, sail-maker, and crew of the vessel, in order to enable her, by the payment of those claims, to prosecute her intended voyage. It was then held that the expression- supplies, (fournitures), used in the 8th paragraph of art. 3204 of the Civil Code, applied to materials sold- or furnished to the vessel,, not to money or funds advanced. It was also held that the subsequent application of the money by the ship-owner to the payment of carpenters, sail-maker, and crew, privileged, creditors, did not operate to the lender’s benefit; that there was no legal subrogation, and no conventional subrogation was pretended; "that privileges were stricti juris, and not to be extended by implication or analogy. The doctrine laid down-in Grant v. Fiol, was reiterated in the cases of the Agricultural Bank v. The Barque Jane, 19 La. p. 1, and Hill v. The Phœnix Tow Boat Co., 2 Rob. 36.

The case of Grant v. Fiol is in accordance with the french authorities. The 8th paragraph of the article 3204 is taken almost verbatim from the french Code de Commerce. The same meaning is attributed there to the expression “fournitures.” See Boulay Paty, vol. I, p. 599. It is also the doctrine there, that those who have lent the owner money to pay workmen, &c., have no privilege, unless they have .taken a subrogation. “ On ne peut, par aucune raison d’analogia, étendre ee privilege ft ceux qui.auraient i'onrni des somnes d’argent, quoique pour les mémes objets. Ces préteurs ont dft, suivant ce que nous avous dit no. 219, se faire subroger aux droits de ceux que'Ieur argent servait ft payer, s’ils voulaient étre substitués ft leur privilege: ou bien, ils devaient préter ft la grosse.” Pardessus, Dreit Commercial, part. 4, tit. 8, ch. 1, no. 954. See also Deville & Massé, verbo Navire, § 5, no. 74.

But the district judge considered this case as falling under the .7th paragraph of article 3204. We do not concur in this opinion, and a brief notice of the paragraph is proper. Its language is : “Sums lent to the captain, for the necessities of the ship during the last voyage, and the reimbursement of the price of merchandize sold by him for the same purpose.” It is taken without change from the french Code of Commerce, art. 191, no. 7.

The paragraph undoubtedly applies to sums of money lent -to the captain at a port not a home port, in the absence of the owner, and for the necessities of the vessel, that she may be enabled to complete her voyage. This is obvious from the expression “ duringr’the last voyage: “ pendant le dernier voyage.” The intention of the law-giver may also be ascertained by looking at the adjoining words, according to the familiar rule, noscitur a sociis. The paragraph associates with “sums lent to the .captain for the necessities of the ship during the last voyage,” “ the reimbursement of the price of merchandize sold by him for the same .purpose.” The only case in which the extraordinary power can be exercised by the captain, of selling a part of the merchandize laden on board his vessel, is where he is compelled by imperious necessity to do -so, in order to enable him to carry on the residue. The two classes of claims are therefore properly associated, and they take rank over the claims enumerated in the following paragraphs (nos. 8 (fee.) although the latter are precedent in point of time, upon the reasonable, and just principle that it is to be .presumed, if the necessary expenditures, to meet which the loans were -obtained or the cargo was sold, had not been made, the vessel would not have been able to return.; sine quibus navis salva provenire non poterat. The french ■commentators are concurrent in this interpretation, and its correctness seems to us unquestionable. See Rogron, Code de Commerce, ¡notes to art. 191. Delvincourt, vol. 11, notes to page 185. Pardessus, Droit Com. no. 954. Le Nouveau Valin, tit. 1, p. 7, et seq. Or-d. of Wisbuy, no. 45.

We have not deemed it necessary to enlarge upon the peculiar character of the object for which the advance was in part obtained, to wit: to pay charges to other parties for anterior freight, and thus to get freight forthe steamer. We do not wish however to be considered as recognizing such an object as falling within the purview of the 8th paragraph of art. 3204.

It is, therefore, decreed, that the judgment of the court below appealed from, be reversed,and that there be judgment in favor of the claimants, Daniel B. Hunt and William McDonogh, with costs in both courts.


text:
    Devron v. First Municipality.
    An injunction will not lie to restrain a muuicipal corporation from instituting suits before a justice of the peace, against a party for infractions of an ordinance of the municipality, where an appeal will lie from the decisions of the justice to the Supreme Court. The jurisdiction of the justice cannot be thus interfered with.
    from the First District Court of New Orleans, McHenry, J.

      Redmond, for the appellant.

      Preaux and Morell, for the defendants.
   The judgment of the court (King, J. absent,) was pronounced by

Eustis, C. J.

This is an appeal taken by the plaintiff from a decree of the First District Court of New Orleans, dissolving an injunction which had been granted by the judge against the municipality., prohibiting the institution of suits against the plaintiff for contraventions of a certain ordinance of the municipality prohibiting the sale of groceries in the vegetable market, &c. This injunction had been granted in a suit instituted by the plaintiff against the municipality for the purpose of testing the validity of said ordinance, and to recover the sum of $500 damages, by reason of the interference of said mu'nicipality with the business of the plaintiff as a grocer in said-market.

The plaintiff can test the legality of the ordinance by a direct appeal from the decision of the justices of the peace to this court, and the jurisdiction of the justices of the peace, we think, ought not have been interfered with by prohibiting the institution of suits, on the showing of the plaintiff made out in his petition. As we think the injunction ought not to have issued, we do not find the court erred in dissolving it. Judgment affirmed.


text:
    Walker v. Caldwell.
    Where, after a third person had been made a party to an action in place of the original plaintiff and recognized as such, defendant excepts to his right to sue as plaintiff, praying that the action may be dismissed, and the exception is sustained and the motion to make him a party to the proceeding is refused, no appeal will lie from the judgment of refusal. IJer Cwicwi: The judgment ought to have been in conformity with the conclusion of the exception that the suit be dismissed; and from such a judgment an appeal might have been sustained.
    from the Fourth District Court of New Orleans, Slrawbridge, J.

      Reynolds, appellant, pro se.

      Larue, for the defendant.
   The judgment of the court {King, J. absent,) was pronounced by

Eustis, C. J.

This suit was instituted by Alexander Walker, as liquidator of the Atchafalaya Banking Company, against the defendant, as a stockholder, for the recovery of a certain sum alleged to be due the bank by way of contribution on his stock. Before issue joined, M. M. Reynolds, the appellant, on suggesting his appointment as the successor of Walker, was made a party to the suit, and recognized as such. The defendant, among other exceptions to the right of the appellant to sue as plaintiff, objected to the validity of the act of the legislature, under which he was appointed, as being in conflict with the 119th article of the constitution, and of this opinion was the district judge, who decreed that the exception above recited “be sustained, and the motion to make M. M. Reynolds a party to this proceeding be refused, with costs.” From this decree the appeal is taken.

The appellant had been for months previously the party plaintiff in the suit, and the exceptions were made to his right to stand in judgment as such.

The effect of the decision of the district judge undoubtedly was to put the appellant out of court; and such would have been the decree had it been asked for at the trial. There was no motion pending to be decided. The decision was made on the issue tendered by the exception, and it ought to have been in conformity with the conclusions of the defendant, viz. that the suit be dismissed. From such a decree the appeal could have been sustained. But our Impression is that the decree of the district judge is not of that character irom which an appeal can be taken, and that the present appeal is premature. The matter appears to have been an oversight, which can be easily remedied by the district judge decreeing that the exception of the defendant be sustained, and that the said Reynolds, as plaintiff, be hence dismissed.

Appeal dismissed.


text:
    Penn v. The First Municipality.
    An appeal taken from a decision of a justice of the peace will be dismissed, where it is impossible to examine the question as to the legality of a city ordinance imposing a penalty, ■without exceeding the jurisdiction of the court by deciding other matters presented in the case, of which it has do jurisdiction. The jurisdiction of the Supreme Court on appeals, involving the constitutionality or legality of fines, forfeitures and penalties, under $300 in amount, imposed by municipal corporations, is confined to the questions of the constitutionality or legality of such fines, forfeitures and penalties. Const, art. 63.
    from a decision of a Justice of the Peace in New Orleans.

      Beauregard, for the plaintiff.

      Preaux and Morel, for the
   The judgment of the court (King, J. absent,) was pronounced by

Eustis, C. J.

This is an appeal from a judgment rendered by the Fifth Justice of the Peace for the parish of Orleans, in a suit in which the plaintiff seeks to recover the sum of 5510, the amount of a fine imposed on her by a judgment of the recorder of the first municipality for a violation of a certain .ordinance of said municipality, which fine was paid by her in order to avoid imprisonment in the work-house, according to the judgment of the said recorder.

The justice of the peace gave judgment against the municipality for the amount of the fine and costs, on the ground that the proceedings before the recorder were coram non judice, he being entirely without jurisdiction of the suit which forms the basis of the plaintiff’s demand; and decided that the money, being illegally obtained, must be restored to the plaintiff, with costs. The municipality has appealed, and the argument addressed by counsel to the court relates to the legality of the ordinance under which the fine was imposed. The justice who decided the case did not decide this point, but confined himself exclusively to the jurisdiction of the recorder; and it is obvious that there are other matters of a grave character involved in this suit, some of which have been noticed by counsel, besides that which involves the legality of the ordinance. It follows, therefore, that there are other points which this court are called upon to decide, over which it has no jurisdiction, in order to reach the ¡matter of which it has jurisdiction.

This caso presents the same difficulties as that of The Third Municipality v. Blanc. 1 Annual Rep. 385. We there held, that the 63d article of the constitution gave this court jurisdiction in all cases where the constitutionality or legality of any line, forfeiture, or penalty imposed by a municipal corporation was involved; but that our power was confined to an examination of those questions, and that this clause gave us no jurisdiction over matters to which it did not extend by virtue of the said 63d article.

The legality of municipal ordinances can'be brought before this court by direct appeal, and the court having no jurisdiction over the amount in dispute between those parties, and it not being possible to examine the question of the legality of this ordinance without exceeding our jurisdiction in passing on other matters presented in this case, we consider that no appeal lies to this court from the judgment against the defendants. Appeal dismissed.


text:
    Gibson v. White et al.
    Where a plaintiff claims a fourth-interest in a slave, and certain persons intervene in the action claiming the other tbree-fourths, she may appeal from a judgment dismissing the action without making the intervenors parties to the appeal. They might choose to submit to the decree, and she had a right to have her claim considered.
    Where a plaintiff, who had bonded a slave seized under a sequestration, was ordered to produce him at the trial for the purpose of identifying him, but, on failing to produce him, “ offered to admit any fact which the defendant will state that he could prove by the presence of the slave, and which could not be proved in his absence," the defendant cannot, under such circumstances, be injured by bringing the cause to a hearing on the merits.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Fraser, for the appellant.

      Loclcett, Goold and Naulré, for the defendants.
   The judgment of the court {King, J. absent,) was pronounced by

Slidell, J.

This suit was originally instituted by Frances Gibson, who claimed in her own right to be sole owner of a slave which forms the subject of the present controversy. Afterwards Rebecca and Rachel Gibson, and Frances Gibson, as tutrix of the minor James Gibson, intervened, and claimed the slave as the property of Rebecca, Rachel, James and Frances Gibson. From a judgment dismissing the suit, Frances Gibson alone appealed. Several months after the defendant had filed a brief sustaining the correctness of the judgment rendered by the court below, and urging its affirmance, one of the persons called in warranty asked the dismissal of the appeal upon the ground that Rebecca, Rachel, and other intervenors had not joined Frances Gibson in the appeal, and had not been made parties to the appeal.

Upon the pleadings we consider Frances Gibson as asserting title to an un. divided interest of one-fourth in the slave; and if she chose to appeal alone, we do not think she was bound to bring her co-claimants before us. They had a right, if they chose, to submit to the decree ; and she has a right to have her claim to the undivided fourth considered. Our decree of course only affects her intei’est in the controversy. We may further remark that it is doubtful, whether the motion to dismiss was made in time.

The only point which remains to be considered is, whether the judgment of the court below dismissing the suit so far as concerns the appellant Frances Gibson, is correct. The plaintiff, Frances Gibson, had bonded the slave after sequestration; and had been ordered, on motion of a defendant, to produce the slave in court at the trial of the cause, “for the purpose of identifying him.” The .slave was not produced; and upon suggestion by the plaintiff that there had not been sufficient time to produce him, the cause was continued, with an order to plaintiff to produce him on the next trial day. When the day of trial arrived, the slave was not produced; whereupon the plaintiff “ offered to admit any thing the defendants would state they could prove by the presence of the slave, which could not be proved in his absence; which offer to admit being rejected by defendant’s counsel,” the court dismissed the suit.

We think the court erred. The appellant, under the circumstances, is prohibited by the 139th article of the Code of Practice, which says : “ Courts may likewise, at the request of either of the parties, order that the other shall bring into court the object in dispute of which he is- in possession, if it be' a slave or such moveable property as can be produced, in order that it may be shown by testimony that it is in reality the object claimed; and if the party refuse to comply with the order, the refusal shall be considered- as full proof of the identity of the object.” It is also to be observed, that the plaintiff’s offer to admit was very comprehensive; and we have been unable to see1 how the defendants could have been injured by bringing, the cause to a hearing on the merits, under such circumstances.

Any consideration of the legal consequences of the alleged violation of the bond by taking the slave out of the State, seems to us premature.

It is, therefore,- decreed, that the judgment of the court below dismissing the suit, so far only as it affects Frances Gibson individually, be reversed, and that this cause be remanded for further proceedings according to law; the defendant Charles White, paying the costs of this appeal.


text:
    Millaudon v. New Orleans Insurance Company.
    Where sugar and molasses contained in a sugar-house', and covered by an ordinary fire policy# are destroyed by an explosion of the steam boilers used in manufacturing sugar, the damage having been, produced by the explosion, and not by fire, the insurers will not be responsible. Per Curiam: The chances of loss from explosion, are not the same as those from fire.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Carter and Grymes, for the appellant.

      Benjamin and Micou, for the defendants.
   The judgment of the court (King, J, absent,) was pronounced by

Eustis, C. J.

This is an action to recover from- the defendants the value of a quantity of sugar and molasses, destroyed in the sugar house of the plaintiff, by the explosion of the steam- boiler which was used in the manufacturing of sugar, the loss being alleged to have been caused by fire. The sugar and' molasses was covered by an ordinary fire policy, and the value of the articles destroyed is proved to be $6,500. The district judge being of opinion that the loss was not within the policy, gave judgment for the defendants, and the plaintiff has appealed.

The damage done by the accident is confined exclusively to that produced by the explosion, none having been clone by tire. The district judge was of opin» ion that there is a material difference between the risk of explosion of a steam boiler and that of fire, and that this difference is' established by the popular and ordinary meaning attached to each; and, if in a policy on articles in a manufactory worked by steam power it was intended to cover a loss by explosion, when there was no conflagration, an additional premium would be asked by the insurers. We concur in this opinion, and it is supported by the obvious fact that the chances of loss by explosion are not the same as those from fire, the former being dependant on the condition of the machinery, the mode in which it operates, and the care and attention with which its operation is overlooked.

Steam has been for years the motive power in manufactories in England and parts of the United States, and accidents by explosion have often occurred. Aa has been observed by the district judge, it is remarkable that no case has been found in which a recovery has been had on a fire policy for a loss by explosion. It is but fair to infer that the risks are considered as different.

The counsel for the plaintiff has referred to the case of the steamer Lioness, reported in 11 Peters, 213. The insurance was on the Lioness, which was destroyed in Red river, by the explosion of gunpowder, with which she was partly loaded, which explosion was charged to have been occasioned by the carlessness and neglect of her officers and crew, in carrying a lighted candle or lamp in the hold. The steamer was insured against fire, and the court was opinion that, as the explosion, as stated in the pleas, was caused by fire, the latter was the proximate cause of the loss. We do not think that there was any thing decided in that case which is applicable to the facts of this. So far as relates to the insurance, we are unable to distinguish a loss occasioned by the explosion of the boiler, from that caused by the breaking or derangement of any other part of the machinery.

Judgment affirmed.


author: Sudeed, J.

text:
    Taylor et al. v. Burke et al.
    Decision in Hewitt v. Waterman, 3 An. 716, affirmed.
    from the Fourth District Court of New Orleans, Slrawbridge, L

      T. R. Wolfe, for the plaintiffs.

      Grymes, Kendall and Howard, for the appellants.
   The judgment of the court {King, J. absent,) was pronounced by

Sudeed, J.

This case involves the same question of law and fact as that of Hewitt et al. v. Waterman et al., recently decided, 3 An. 716. The verdict of the jury is fully sustained by the evidence.

Judgment affirmed.


author: Kino, J.

text:
    Tillman, Trustee, &c. v. Drake.
    1'he only effect of a deed of trust or common law mortgage in the countries where they aro used, is to establish a lien upon property. A deed of trust has none of the essential requisites of a sale; it convoys no property, is not made in consideration of a price, or of a merely nominal price only, is not necessarily accompanied by a change of possession, and Is intended only as a security for the payment df si debt. Under our laws it cannot be held to confer any higher right than that of a mortgage.
    Where slaves conveyed to a trustee by a deed of trust executed in ahother State, are subsequently brought into this State, the deed must be recorded here to give it effect as a mortgage against third persons; and where, in such a ease, the deed has not been recorded here, and the grantor sells the slaves to a third person ignorantof the deed, the lien will be lost; nor can it be revived against the property in the hands of a vendee of such third person, though he purchased with knowledge of the deed. íhe last purchaser is protected by the good faith of his vendor.
    from the Parish Court of New Orleans, Maurian, J.

      I. W. Smith, for the plaintiff.

      Carter, for Cowand, appellant.
   The judgment of the court was prohouneed by

Kino, J.

In order to secure the estate of Samuel Escue, against the consequences of his suretyship upon an administrator’s bond, Leonard C. Temple executed a deed of trust, in the State of Tennessee, in 1838, in favor of the plaintiff, to operate upon several slaves who were then in the State of Mississippi. The deed was recorded in the State of Mississippi, where the slaves remained in the possession of Temple until 1840, when he brought them to this city, and sold two of them to Cowand, who, in March, 1843, conveyed one of them, to wit, the slave Hannah, to the defendant. This slave, and her child since born, are claimed by the plaintiff, in the present action. A judgment was rendered in his favor in the court below, and the defendant has appealed.

It is shown by the evidence that a deed of trust, by the laws of the State of Mississippi, conveys the legal title to the trustee, and that no alienation of the property by any other person than the trustee would convey title to the purchaser. Also, that a deed of trust is a mode of securing debts in that State, and more usually resorted to than a mortgage, as it confers upon the trustee the right of selling without a previous decree, of court.- The testimony in relation to the character and operation of instruments of this kind is substantially the same as that given in the case of Hopkins v. Lacouture, 4 La. p. 64. In that case ir was said, that the only effect of either a deed of trust or a common law mortgage, in the countries where they are used, is to give a lien upon property, A deed of trust wants the essential requisites of a sale. It conveys no property, is made in consideration of no price, or at most of a price merely nominal, is not accompanied necessarily by a change of possession, and is intended only as a secui'ity for the payment of a debt. Although differing in form from a mortgage it is designed to accomplish the same end, and under our laws can be held to confer no higher rights. In order to produce effect as a mortgage against third persons, notice is indispensable. The deed under which the plaintiff claims was never recorded in this State. To supply the absence of notice by registry, the plaintiff had endavored to establish, by parol, a knowledge of the encumbrance by both the defendant and her vendor, Cowand, at the dates of their respective purchases. The testimony on this point has been carefully considered. It is unsatisfactory; and, in our opinion, does not establish that Cowand was informed of the existence of the lien at the time he purchased. It is not material to the result to enquire whether the defendant, Drake, was notified of the encumbrance prior to the sale of the slave to her. For, conceding that she was notified, her title would be unaffected by the knowledge. The lien was lost by the sale to Coiuand, in ignorance of the right, and could not revive against the property in the hands of his vendee. The defendant is protected by the good faith of her vendor, Cowand, who was a purchaser without notice, and who, being called in warranty, is the real defendant *n i^'3 case> Story’s Eq. Jur. § 1503, 381, 434.

It is, therefore, ordered, that the judgment of the District Court be reversed, and that there be judgment for the defendant; the plaintiff paying the costs of both courts.


author: King, J.

text:
    Castaing v. Stone et al.
    A party intending t'o appeal, in a ease in which the testimony was not taken in writing, must require the adverse party, or his counsel, to draw jointly with him-a statement of the facts proved in the case; audit is only after the refusal of the adversary to join iir making the statement, or on the failure of the parties to agree as to the manner of drawing it up, that the judge can he called on for a statement, and this-, though the party desiring to appeal was not present at the trial, either in person or by counsel. C. P. 603, 603.
    from the Fourth-District Court of New Orleans, Slrawbrid'ge, L

      Durant, for the plaintiff.

      Durell and Greiner, for the appellants.
   The judgment of the court was pronounced by

King, J.

In this case a judgment by default was taken, which was made ■ final against the defendants for the amount claimed in'the plaintiff’s petition. A part of the testimony adduced before the district judge appears not to have been reduced to- writing. After the rendition of the final judgment, the- defendants, suggesting an intention to appeal, took a rule on the plaintiff to show cause why the district judge should not make a statement of the facts proved on the trial, to be used in the appellate'court. The .rule was dismissed, on the ground that the defendants had not previously called on the plaintiff,or his counsel, to prepare the statement jointly with him. The'record has therefore been brought up with only that part of the testimony which was taken in writing under eommistions,- and the clerk so certifies the1 transcript. On this certificate the plaintiff has moved to dismiss the appeal.

The judge did not, in our opinion, err in dismissing the rule. When the depositions1 pf witnesses have not been taken in writing in the inferior court, art. 602 of the Code of Practice directs, that the party intending to appeal shall require the adverse party, or his counsel, to draw jointly with him a statement of the facts proved in the cause. It is only upon the refusal of his adversary to join in making the statement, or upon the failure of the parties to agree as to the manner of drawing it up, that the judge can be called on for a statement. C. P. 603.

The defendant contends that this rule can have no application to cases in which the party desiring to appeal was not present at the trial, either in person or by counsel, and could not consequently join in making the statement. That a- call upon his adversary, under such circumstances, would have been a vain and empty form. In this view we can Dot concur. It is not to be presumed that an application to his adversary would have been unsuccessful, nor that a statement made by his counsel would have been unfaithful or unsatisfactory. An attorney is the sworn officer of the court, and his statements made under such circumstances must be considered as having been made under the obligations of his professional honor. Every presumption would be in favor of its truthfulness and accuracy, as far as his recollection of the facts would enable him to render it so. Although the party desiring to appeal may not have been present at the trial, and may consequently be ignorant of the testimony of the witnesses, it does not follow that he would be dissatisfied with the statement furnished by his adversary. That statement might disclose all the facts -upon which he wishes to rely on the appeal.

But, in addition to these considerations, the judge'himself may well desire the previous statement of counsel ‘before undertaking to prepare one. The attorney whose attention has'been specially directed to the- testimony in the preparation of the cause, who was present, at the trial,-and examined the wit. nesses, is generally better -prepared to present -an accurate statement of the facts proved than the judge, who may have heard the testimony for the first time on the trial, and must rely upon his memory, and upon imperfect notes, to retain the facts of .that, and .probably of a number of other causes heard on the same day. Although the statement of the-adverse counsel may not be strictly .correct, and may be rejected by the party requiring it, the judge would, in most instances, derive important aid from it in preparing his own statement, when that duty devolved upon him. We think that both the judge and the appellee have the right to insist on the strict observance of the r.tíle prescribed by the Code of Practice.

In consequence of the neglect of the appellant to comply with this rule, an imperfect record has been brought up, .containing only a part of the evidence adduced on the trial. The record contains no bill of exceptions, and the as, signmentof errors was filed after the expiration of the delay allowed by law.

The motion -to dismiss must .consequently prevail.

Appeal dismissed.


author: Slidell, L

text:
    Walker v. Cassaway.
    Where-the master-of a steamer, by false representations, induces an agent of a-third person to ship merchandize on his boat at a certain freight, and the bill of lading states that the merchandize is taken “ with the privilege of re shipping,” and the freight is re-shipped on another boat and brought to the port of destination, the owner of the merchandize cannot require its delivery before paying -the freight due to the boat on which it was so re-shipped, -the contract by the master of the second boat having been made in good faith, at a reasonable rate, with a party who held a possession apparently fair, under abill oflading authorizing a re-shipment. The bad faith of the master -of the first hoat should not deprive the owners of the second boat of the remuneration due for their labour.
    Where an agent with whom merchandize had been deposited, disobeys .the private instructions of his principal, 'by ¿hipping it contrary to the orders of the latter, a third person who acted in good faith and in confidence in a contract made as to the merchandize, and possession ■transferred by the agent, will not be permitted to suffer. Where one of two innocent persons must suffer, he ought to do so who .has placed bis property in the hands of a careless agent, rather than one who acts in good faith and on bis confidence in what the agent has done.
    Where a bill of lading stipulates for the privilege of re-sbipment, a second carrier to whom the merchandize is transferred will have a lien on the property for bis freight. He is not the mere agent of the first carrier.
    from llie Fourth District Court of New Orleans, Slrawlridge, J.

      Elmore and F-F. W> King, for the appellant,
    contended that the second carrier was the mere agent of the first, citing 19 Wend. 329, 534. 25 Wend. 660.

      C. M. Randall, for the defendant.
   The judgment of the court was pronounced by

Slidell, L

The evidence in this case shows that the plaintiff had a quantity of oats at Brandenburg, a town on the Ohio below Louisville. They were in charge of Gallagher, a merchant of that place, who was authorized to ship the oats to New Orleans, when a written order to that effect from Davenport, the plaintiff’s agent at Louisville, should be presented to him. The river was low at the time, and freights were unusually high. The captain of the steamer Western was at Louisville, and heard of a sudden rise in the river through travellers who had come down the river. He knew this would reduce the price of freights. He arrived at Brandenburg before the intelligence of the rise in the river had been received ; and induced Gallagher to ship the oats on his vessel, by untruly representing that the plaintiff’s agent at Louisville had verbally authorized him to get the oats at the freight of fifty cents per sack to New Orleans. A bill of lading was given by the Western, contracting to carry and deliver the oats at New Orleans to the plaintiff. In the body of the bill of lading was inserted the clause, “with the privilege of re-shipping.” The Western not making the trip to New Orleans, but proceeding to St. Louis, re. shipped the oats at the mouth of the Ohio, on board the steamer New World, of which the defendant was master. This second bill of Jading was to deliver the oats at New Orleans, at a freight of twenty-two cents per sack, to one Fleming, then the clerk of the Western, and who came to New Orleans in the New World. The only reason for this arragement was that the captain of the New World was unable to advance the Western’s share of the freight.

When the oats arrived at New Orleans, the plaintiff demanded them of the master of the New World, who refused to deliver them without the payment of freight. The plaintiff then brought the present action to recover them. The defendant reconvened and demanded the amount of his freight. Tho judgment of the lower court was against the plaintiff, and in favor of the defendant for $382 86, the amount of his freight at twenty-two cents per sack. The plaintiff appealed.

As the contract for the transportation of the oats from Cairo to New Orleans was made by the defendant in good faith, at a reasonable rate, within the limit of the total freight originally stipulated, and with a party who held a possession apparently fair, under a bill of lading authorizing a re-shipment, we think the defendant should not be deprived of a remuneration for his labor, by reason of the bad faith of the Western’s captain.

Gallagher had been entrusted with the possession of the oats by Walker. He was the agent to ship themtoNewOrleans; and although he disobeyed in. structions, a third person who has acted in good faith upon the confidence of a contract made and a possession transferred by him, must not be permitted to suffer. We see no reason for distinguishing this case in principle from the case where a factor sells goods for a less price than his commission directs. In such cases the factor acts without authority, yet the sale nevertheless binds his principal. The buyer is not affected by the private order or direction with which he is unacquainted. The owner must take care whom he employs. Where ene of two innocent persons is to suffer, he ought to suffer who has placed his property in the hands of a careless agent, rather than those who act in good faith upon the confidence of what the agent has done. If the public are to be affected by undisclosed breaches of duty of this sort, or secret equi« lies existing against a party holding a possession apparently fair, and in the usual course of business, commerce would be seriously injured.

It may be conceded for the purposes of our present inquiry, that the Western's owner would be entitled to no freight at all. But the shipper gave up the possession under a contract which contemplated the employment of a new carrier, and thus the captain of the Western was clothed, as regards third persons, with authority, to do what he has done.

It is said that the second carrier was the mere agent of the first. The authorities relied on are cases where the owner sought to make the first carrier liable for goods which, under his contract, he undertook to deliver at a certain point, though in reality only performing a part of the transportation himself. See 19 Wendell, 329, 534. 25 Wendell. 660. But we find nothing in those cases establishing the principles that in case of a contract, made as this was, with privilege of re-shipment, the second catrier would not have a lien for his remuneration.

It must be observed that the freight from Cairo claimed by the defendant fell within the amount stipulated for the whole route. See the authorities quoted in Russell on Factors, p. 78. Story on Agency, 443, 388.

The plaintiff complains that the judgment did not in terms give him a judgment for the oats. The judgment may be properly interpreted with reference to the pleadings and proceedings in the cause. The plaintiff had the oats sequestered, and his prayer was that they be delivered to him. The defendant in his .answer pleaded that he had a privilege upon the oats for his freight at twenty-two cents a sack, and that the plaintiff was bound to pay him the amount before he could recover them. Upon the filing of this answer, the plaintiff, •“ on suggesting to the court that the defendant claims but 35382 26, as a lien upon the oats sequestered in this case, and upon it appearing that the defendant has not applied to bond the same.” had an order to bond the oats, upon giving security in the sum of 35500. In obedience to this order, the sheriff delivered the oats to the plaintiff, taking from him a bond for 35500, conditioned that the plaintiff should not send the property out of the jurisdiction of the court, and that he would faithfully present the same in case he should be decreed to restore the same to the -sheriff or defendant, and would satisfy such judgment as should be rendered in the suit.

A judgment ought, if .possible, to put at rest the issues between the parties, :and close the door to further litigation. Although the judgment might have been expressed in more formal terms, we consider it, viewed as a whole and with reference to the pleadings and proceedings in the cause, as substantially closing the contest between the prrties; leaving the plaintiff in possession of the oats, but decreeing him to pay the defendant his freight, for which payment the bond stands as security. Upon making that payment the rights of the defendant will be satisfied, and the plaintiff exposed to no further responsibility or litigation. Judgment affirmed.


text:
    O’Reilly v. Oakey.
    decision in O’Reilly v. McLeod, 2 An. 146, affirmed.
    ííne who sues theowners of a tract of land for compensation for work dono onalevoo, which proves to haye been of no use whatever to the proprietor, mü,st establish that the work was done by virtue of and in accordance with the law, and the regulations of the police jury. The word levée has a technical meaning fixed by the stat. of 7 February, 1829, and one claiming remuneration for .constructing a lev.ee, where there has been no adjudication to him, nor acceptance of the work by the inspector-, and it is shown that the proprietor has not benefited by it, mast show that the work was a levée within the meaning of that statute.
    from the Fifth District Court of N.ew Orleans, Buchanan, J.

      Preston, for the plaintiff.

      Clarice, Micou and Van Dalson, for the appellant.
   The judgment of the court was pronounced by

Rost, J. The plaintiff claims $1,685 for work done and materials furnished in making a levée, a road, ditches and bridges, on a tract of land belonging to the defendant. The defence is a general denial. The District Court sustained the claim, and the defendant appealed.

On the trial of the cause, the plaintiff offered in evidence a paper purporting to be an account of day’s work laid out upon the defendant’s levée. He also offered in evidence various written depositions to show the value of the work done, and .of the materials furnished by him; to the admission of all of which the defendant objected, because the plaintiff had declared upon an adjudication by the inspector of roads and Ievées, and could not give evidence of the value of the work and materials. The court admitted the evidence, and the defendant took a bill of exceptions. The allegations of the petition are in the alternative, and the judge did not err in admitting the evidence. It comes properly under, the allegation that the work was required by the police regulations and indispensable to the preservation of the land of the defendant.

In the case against McLeod, 2 An. 147, we reaffirmed the doctrine estab- , fished-in the case of Police Jury v. Hampton, 5 Mart. N. S. 392. We held that a party who has made a levée on another man’s land may recover, even without a contract, if his work was necessary, and has been beneficial to the owner of the land.

We adhere to these decisions ; hut this case presents a different state of facts. Here the inspector refused to accept the levée made by the plaintiff. A s soon as the water rose after its completion, it passed over it; it broke in many places, and was of no use or benefit whatever to the defendant. Under these circumstances, before the plaintiff can recover, he must make good the allegation of his petition, that the work was done in pursuance and by virtue of, and in accordance with, the law, and the rules and regulations of the police jury. It is proved that he had to make a new levée on all the front of the land but eight arpents. He must show affirmatively either that the dimensions and direction of the levé© he made, were given to him by the inspector, or that he complied in making it with the act of 1829 concerning roads and ievées. He must make the same proof in relation to the roads, ditches and bridges. The record contains no evidence in relation to these facts; but, on the contrary, the inspector declares that the work was done contrary to his orders, and not in conformity with law. It is evident that if the requsitions of the act of 1829 had been followed, the levee, when finished, would have been one foot higher than the highest water previously known, and that the rise which destroyed it could not have gone over it, it having been only a few inches higher than fhe water of the previous years. It is also in evidence that logs were left in the foundation of the levée, and this is assigned as one of the reasons why it did not stand.

The District Court considers it proved that the defendant promised to pay the plaintiff his bill for the work, if he would make sobm deduction', an'd views this as a recognition of an obligation to pay something. The evidence of this fact was taken under commission, and is not satisfactory to us. The witness says, in his direct examination, that he heard the defendant say,in 'í'hibodeauxville, that he would settle with the plaintiff.and pay him for making the levée, if he would make some deduction. On the cross-examination he states that he was alone with the defendant when that declaration waff made ; that the plain-* tiff was not there ; that no account was exhibited, and that he did not know the amount claimed; he assigns no motive for that declaration to him, but repeats that the defendant said he would pay, if the plaintiff made a liberal deduction. This witness has no knowledge of th©' account of"w-hich h‘e speaks,- and' his testimony on other facts satisfies us that he is not worthy of credit. The plaintiff had originally claimed in this suit $5,000 damages, alleged to have been 'sustained by him,- in consequence of the breaking of the plaintiff’s levées. On this part of the case, which has since been abandoned, the same witness swore that the damages-sustained by the plaintiff, exceeded $5,000. But when made to state those damages in detail he said that, but .for the crevasse, the plaintiff would have made 2,000 barrels of corn, worth $1,500, and specified other damages amounting to a few hundred dollars more; thus-reducing the loss te one-third of the amount originally sworn to. But this is not all. It is proved that the plaintiff had but a small quantity of cleared land,- that the only portion he cultivated was his garden, and that he could not have made a crop of corn that year, because he had no enclosure in the month of April, when his land was overflowed.

There is no doubt that the defendant was guilty of negligence in not repair-* i-ng his levées; this omission may have subjected him to damages; but it cannot dispense the plaintiff from making out a clear case before he can recover. . Th© word levée has a technical meaning fixed by the act of 1829,- and the parly claiming remuneration for constructing a levée,- where there is no adjudication, where the acceptance of the inspector is not produced, and where it is shown that the work has not benefited the owner of- the land, must show that this work was a levée, within the intent and meaning of that act. The plaintiff having failed to do so, must be non-suited.

It is, therefore, ordered that the judgment in this case be reversed, and that there be judgment against the plaintiff as in cases of non-suit, with costs in-both courts-


text:
    Henderson et al. v. Blanchard.
    Where the term of payment of the price of land is uncertain and dependent upon the will and acts of the vendor, the debtor is not in default until notice is given him of the expiration of the term; and interest ex mm-a can only be recoveredfrom the date ol such notice.
    from the Fifth District Court of New Orleans, Buchanan, J„-
    one of the
    on the same side.

      Du-for the appellant.
   The judgment of the court was-pronounced by

Slidell, J.

This suit was brought in June, 1847, upon the defendant’s written promise to pay the sum of $400’, being a part of the price of a tract of land at Pass Christian, sold by ileirne, acting as the agent of Edward Living ston. By the written agreement the defendant declared that he had paid only a portion of the purchase taoney, to wit, $200 ; and that he was ready and willing to pay the remainder, to wit, $400, “as soon as the said sale will be approved by said Livingston, and the title to said property, which is now called in question, shall be found good and valid.”

Livingston, who then lived in New York, upon being informed by Heirne of the sale, wrote a letter to him approving it, in 1836. The title to the land was affirmed by act of Congress in 1842, in favor of the grantee Pellerin, under whom Livingston held; and a patent was issued in 1843 in favor of the heirs and assigns of Pellerin.

The district judge gave judgment in favor of the plaintiffs, with interest from 1842. From this judgment the defendant has appealed; and the only particular in which he complains of the judgment, is the allowance of interest from that date. He contends that notice should have been given that the conditions had been complied with, and that interest could only run from the day of such notice. No notice appears to have been given to the defendant of Livingston's ratification, anterior to the institution of this suit.

By the contract the defendant’s promise was conditional. He was not to pay until Livingston approved the act of his agent. A term of payment was, therefore, given, the duration of which was uncertain, and was dependent upon the will and act of the vendor. When a term of payment is given, the interest can only begin to run from the end of that time. Civil Code, 2532. The general rule is that, upon the expiration of that term the debtor must be put in mora. Ib. 1932. But this general rule is subject to exception. “ When the sum is due for property yielding a revenue (qui prodnisent des fruits ou revenus) interest is due from the time the principal is payable, without demand.” Ib. 1933, 2531. Such being the general rule, and such the exception, can the present case be considered as fairly falling within the exception 1

Exceptions, as they derogate from the general law, should be strictly construed. Where the term is certain, the debtor is guilty of neglect if he does not pay at the expiration of the term. He knows the term, and it is his own fault if he does not pay. But when the term is uncertain, and depends upon the will and act of the creditor, there is no neglect upon the debtor’s part until notice be given to him.

It is, therefore, decreed,that the judgment of the District Court be so amended as that the interest run only from the 9th June, 1847 [the day of judicial demand] ; and that so amended it be affirmed, the plaintiffs paying the costs of this appeal.


author: Rost, J.

text:
    Marchesseau v. Chaffee et al.
    'i'o entitle a purchaser of a boat load of coal to recover damages of his vendor for a breach of contract, where it is shown that the latter had subsequently sold and delivered the coal to a third person for immediate use, proof of tender of the price is not required; such a tender would have been a vain thing.
    In actions for damages for breaches of contract, the market value at the time of the breach, where there is a market value, is the measure of damages; the party being entitled to recover advances made and expenses incurred by him under, or on account of, tho contract, and, in certain cases, interest.

      In an action for the breach of a contract of sale for a cargo oí coal, sold for a certain price, to be delivered to the purchaser at a certain place, at the expense and risk of the vendor, but resold the next day by the vendor to a third person for the same price, which was shown to have been the market price, the latter agreeing to take the cargo at the place at which it was lying at the time of the first and second sales, the first purchaser can only recover as damages the expense of transporting the coal from the place at which it was sold to the place at which it was to have been delivered to him, and the value of the risk incurrediir its transportation.
    from the Fifth District Court.of New-'Orleans, Buchanan, J«

      Buisson, for the appellant.
    Greiner.and Dwell, for the defendants.
   The judgment of the court was pronounced by

Rost, J.

This is an action of damages for the breach of a contract for the sale of a boat-load of coal, measuring about two thousand barrels. The defendants filed a general denial,and averred that they had not been putin default. There was judgment in their favor, and the plaintiff appealed.

■ We are of opinion that the contract alleged in the petition is proved by competent evidence, and that, after the defendants had sold and delivered the coal to another person, who bought it for immediate use, the plaintiff' would have done a vain thing in tendering the price. Garcia v. Champomier, 8 La. 519.

The only inquiry which this case presents is, the amount of damages sustained. The plaintiff had purchased the coal at fifty cents per barrel; the boat was then lying some distance above this city, and was to be landed the ■ next day, in front of St. Louis street, at the expense and risk of the vendors. . On the day following this sale, the defendants sold at the same price to Oxnard, who took the boat where it was, and had it towed down to the wharf of his refinery, at his expense and risk. This was the day of the breach of the contract.

In actions of damages for breach of contract, we have adopted the rule that the market value at the time of the breach, when there is a market value, is the measure of damages: the party claiming damages being farther entitled to recover the advances made and expense incurred by him under, or on account of, the contract, and in certain cases interest. Porter v. Barrow, 3d An. 140.

In this case the coal was sold for the price the plaintiff had agreed to give the day before, and we are satisfied that the price obtained was the market value. The only gain made by the defendants in the second sale consisted in delivering the boat where it lay, instead of incurring the expense and risk of landing it opposite St. Louis street. For the amount of that expense, and the value of that risk, the plaintiff would be entitled to a-judgment, if he had proved them; but, as he has failed to do so, he can only recover nominal damages.

It is, therefore, ordered that the judgment in this case be reversed, and that the plaintiff recover of the defendants one dollar damages, with costs in both courts.


text:
    Succession of McKinney.
    The widow, who is tutrix of the minor heirs, is entitled to the administration of the succession of her husband, in preference to a person not shown to have been a creditor, though the application of the former was not made until more than ten days had elapsed from the advertizement of the first application. C. C. 1035, 1037. Arts. 1111 of the Civil Code, and 370 of the Codo of Practice, requiring oppositions to applications for letters of administra* tion to he filed within ton days after the publication of notice, relate to the appointment of curators of vacant successions; and cannot be considered as controlling the order of preference established- for the appointment of administrators.
    from the District Court of Jefferson, Clarke, J.

      Marks, for the appellant.

      Mott, for Erwin.

      Miaou, for the administratrix.
   The judgment of the court was pronounced by

King, J.

Mayer applied, on the-29th of February, 184-8,-for the administration of the succession of James McKinney, deceased, averring that he was a creditor, and notice of his application was published in a newspaper, on the 4th of March following. Erwin and Rlclgely also claimed the administration, on the ground that they were creditors of the succession. On the 18th of March, more than ten days after the advertizement of Mayer's application, Mrs-. McKinney, the widow of the deceased, and tutrix of his children, filed an- opposition, and claimed the administration for herself, asserting her superior right as widow and tutrix. Her claim-was sustained,'and Mayer has appealed.

The district judge did not, in our opinion, err. Mayer has not shown that he was a creditor, and rests his claim exclusively upon the priority of his application, and upon the neglect of Mrs. McKinney to present her opposition within the delay of ten days-.

The Code designates the persons who are to be preferred in- the appointment of administrators of beneficiary successions. Preference is to be given* to the beneficiary heir, if he be present and of age, over any other person. If the beneficiary heirs be minors, the preference is to be given to their tutors. Civil Code, arts. 1035, 1037. This preference may be claimed-as long as the appointment has not been confirmed on an earlier applicant. Articles 1111 of the Civil- Code, and 970 of the Code of Practice, relied on by the appellant, and which require oppositions to applications for letters of administration-to be-filed within ten days after the publication of notice, are- found in-the chapters of those Codes which relate more particularly to the appointment of curators of vacant successions. 1-6 is true that those articles have been held to apply to the appointment of administrators, so far as to require the publication of notice. But they cannot be considered as controling the order of preference established in appointing administrators, nor as limiting absolutely the time within-which the preference may be claimed. In the case of Hook v. Richardson, 4 La. 570, it was held, that “ the heirs present have a preference in the administration of the estate over any other person; and if a curator be unadvisedly appointed, his powers cease when- they present themselves and demand it.” It is contended by the appellee, and we think with reason, that if the legal preference could be enforced after the appointment of an administrator, a fortiori must it be recognized before such an appointment has been made.

Judgment affirmed.


text:
    The State v. Summers.
    A verdict will not beset aside, on fcbe ground tbafc the jury, while deliberating, conversed with a deputy sheriff who sat at the same table with them at supper, where they were kept together during the adjournment of the court, and the conversation does not relate to the trial, and could not have produced any effect on their decision. Where jurors have not been permitted to separate, their verdict will not be set aside unless the tendency of the irregularity complained of has been to influence their deliberations. The mere presence of au officer could have no influence on them.
    A jury, kept together during the adjournment ol the court, are entitled to necessaiy refreshments, if furnished at their own expense.
    Where, at the instance of the counsel for the accused, the judge, in his charge to the jury, states his opinion as to the credibility of a witness, and, on the return of the jury into court for further instructions, repeats what he originally stated .respecting the witness, the accused cannot object to it.
    A prisoner is entitled to the assistance of his counsel in exercising ids right of challenge. A verdict cannot be sustained where this right is refused.
    from the First District Court of New Orleans, McHenry, J.

      Elmore, Attorney General, for the State.

      J. M. Wolfe and Holland, for the appellant.
   The judgment of the court was pronounced by

King, J.

The accused was convicted of'robbery, and moved for a new trial on various grounds. The motion was overruled, and he has appealed.

The irregularities which it is contended vitiate the verdict are: 1st. That the jury, while deliberating, conversed with the deputy sheriff, who sat at the same table with them during the supper hour.

2d. That -the juiy, during their retirement, conversed with Lugenbull, .another deputy.

Sd. When the jury returned into court for further instructions, the judge •expressed to them his opinion that the testimony of the witness Fitzwilliams, was worthy of credit.

4th. That the prisoner was denied the aid of his counsel, in exercising his right of peremptory challenge.

1.It appears that the jury were at first -unable to • agree, and the hour being late, the court, about eight o’clock in the evening, adjourned over to the following morning. The jury were committed to the charge of a deputy sheriff, and were provided with refreshments under the directions of the sheriff. The deputy sat at the table with them, and partook of the meal, but held no conversation with them. The only .conversation which he is shown to have held with any of the jurors at any time, related to the opening of a door in order to establish a communication with an adjoining gallery. When jurors have not been permitted to separate, their verdict will not be set aside, unless the tendency of the irregularity complained of has been to influence their deliberations. Wharton’s C. L. 644. 8 Rob. 590. The jury were entitled to necessary refreshments, if furnished at their own expense; and it is not perceived how their verdict could have been influenced by the mere presence of the officer during their meal.

It has been urged in argument, as a further irregularity, that the jury were furnished with wine at supper. This was not one of the grounds presented for a new trial in the court below, and, even if it were entitled to weight under the loose evidence in the record, could not be considered here.

II.The second ground is not supported by the evidence. The testimony of Lugenbull leaves it doubtful whether the question which he answered, was asked by the juror while the latter was sitting on the trial of this case. But, if the fact had been established, it would not affect the result. The question and answer had no relation to the trial, were unimportant in themselves, and could not have influenced the verdict.

III.The judge was requested by the prisoner’s counsel, while delivering his charge to the jury, to state his opinion in relation to the credibility of the witness Filzivilliams, and complied with the request. When the jury, after having deliberated for some time, returned into court for further instructions, the judge repeated what he had originally stated respecting the testimony of this witness. Of this the accused cannot complain.

IV. In relation to the last ground, it has not been shown that the accused was denied the assistance of his counsel in exercising his right of challenge. On the contrary, the judge, in assigning his reasons for overruling the notice for a new trial, states that the practice of his .court accords this right to parties accused. We may add that the prisoner has an undoubted right to this aid, and that no verdict could be sustained in a case where it was refused.

The motion for .a n.ew .trial was, in our opinion, properly overruled.

Judgment affirmed.