author: Rost, J.

text:
    J. F. E. Livaudais & J. S. David v. Municipality No. Two.
    Places of public worship as well as places of public amusement are, in this State,invariably private property •, and no dedication to the public can be predicated upou the designation of such places in the plans of division of towns. Livavdais v. Municipality No. Two, 16 L. B, 509, affirmed.
    A defendant will not be allowed the benefit of the presumption of a dedication of property to public use, from long possession and the perfection of the title by prescription, when such pretensions are inconsistent with the answer filed, and in direct violation of the admissions of that j>arty in the record.
    If courts are authorized in certain cases to relieve municipal corporations from the bad pleading or ill advised admissions of their counsel, the necessity for such interference must be apparent.
    APPEAL by defendants from the Fifth District Court of New Orleans. Buchanan, 3.

      P. Soulé, for apppellees,
    cited, upon subject of dedications of property to public uses, Mathews on Presumptive Evid. 333, 334. Drummer v. Jersey City, 1 Spencer, 8. 27ie Stoic v. Marble, 4 Iredill, 318. Green v. Chelsea, 24 Pick. 71.

      R. Hunt and C. Roselius, for appellant,
    cited, 3 Bing. 447. 18 L. R. 291-3 A. R. 284. 6 Peters, 435. 10 Peters, 662. 5 L. R. 142.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs claim a square of ground alleged to be situated in the centre of Annunciation Square, being No. 34 on the original plan of division, of Faubourg Annunciation, made by Barthelemy Lafon, in 1807; this square measuring two hundred and forty six feet on Race and Orange streets, and two hundred and ten feet on the sides fronting squares No. 26 and 42.

The intervenors in right of their mother, claim one undivided fourth of said square.

The defendants filed a general denial, and alleged in a supplemental answer that the' ground claimed is a public place, ultra commercium ; that the founder of the faubourg Annunciation laid off and dedicated the whole space of ground covered, by Place de l’Annonciation, without any exception or reservation of the centre, as a public square for the use and convenience of the public, in the original plan of the faubourg. That the dedication further results from the sales of the surrounding squares and lots in conformity and with reference to said plan. That it has been duly accepted, and that the public has been in undis-, turbed and quiet possession, under said dedication, for upwards of forty years, by which its right thereto has been perfected by prescription. There was judgment in favor of the plaintiffs, and the defendants appealed. This case is not distinguishable from that of Livaudais v. Municipality No. Two, 16 L. R. 509.

The plaintiff in that case claimed the square No. 63 on the same original plan of division of Faubourg-Annunciation. That square was colored and marked on the plan as the other squares, but instead of being divided into lots, the word colisée was written upon it. There was no evidence of the alleged dedication out of the plan, and none in the plan- out of the word colisée. The court was of opinion that places of amusement were private property, and that the designation of such places on a plan, could not be construed as a dedication to public use.

The square No. 34 is colored as the other squares in the plan. The spaces left open between squares No. 34 and 26 on the one side, and squares 34 and 42 on the other side, have the color of the streets, and the words Place de L’annonciation are written upon them.

On square No. 34 is depicted the ground plan of a building in the form of a Greek cross, having a cupola in the centre and fotir fronts corresponding to the four sides of the square. This building is marked on the plan Eglise de L’an-> nonciation, and occupies the whole of the square with the exception of the four corners.

It is too clear for argument, that this square did not pass under the dedication of the Place de 1’Annonciation, and that it was designated on the plan for the erection of a church, as square 63 had been for the erection of a coliseum.

As was held in the former case, places of public worship as well as places of public amusement are invariably with us private property, and no dedication to the public can be predicated upon the designation of such places on the plans of division of towns and faubourgs.

It was urged in argument, that a dedication must be presumed from the long silence of the plaintiffs, and from the fact that the square remained unenclosed and was used as a public place from 1807 to 1836, at which time the defendants enclosed it; and that they have been in actual possession of it ever since, in consequence of which possession their title has been perfected by prescription.

The objection to this defence is, that it is inconsistent with the answer, and in' direct violation of the admission of the defendants in the record; that they have no title to the property in dispute, unless the same was dedicated to the public when the suburbs- Lacourse and Annunciation were divided into lots.

If we feel authorized in certain cases to relieve municipal corporations from the bad pleading or ill-advised admissions of their counsel, the necessity for our interference must be apparent. It is not so in this case. The defence suggested is not tenable.

That the square claimed was not enclosed before 1836, proves nothing against the plaintiffs, it being shown that until that time, many squares and lots were unenclosed in that part of the faubourg. The first enclosure was not made by the defendants or under their authority. It was the act of Mr. Southmayd, a private individual, who owns property fronting on that square. In 1842 or 1843 the fence was removed and the present enclosure put up. But it does not appear at whose instance this was done,- or who paid for it. This evidence is too vague and unsatisfactory to prove either dedication or acceptance, nor would we Consider, under any state' of facts, the length of time which elapsed betweeh the erection of the enclosure and the institution of this suit, sufficient to show an abandonment on the part of the plaintiffs of the original dedication of the square to purposes of public worship, and a clear intention on their part to dedicate it to public use. Thej plea of prescription does not require to be noticed.

For the reasons assigned, it is ordered that the judgment in this case be affirmed with costs.

      Slidell, J. did not take part in the decision, considering, himselfinterested in the matter.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    John Walker v. Municipality No. One of New Orleans.
    Under the acts of the 14th of March, 1842, and 5th of April, 1843, the hanks of this State were obliged to receive their own notes in payment.
    Where a bank transferred a promissory note subsequent to maturity, the holder acquired no greater rights than the bank itself had, and could be compelled to receive in payment the notes of the bank.
    If a co-defendant paid the debt in specie, such co-defendant could not upon subrogation recover of the other specie, he having the right to pay the debt in depreciated bank bills.
    APPEAL by plaintiff from the Third District Court of New Orleans. Kennedy, J.

      T. A. Bartlett and T. W. Collins, for appellant

      Marsoudei and Morel, for appellee.
   The judgment of the court was pronounced by

Eustis, C. J.

On the 23st of June, 1845, the Improvement and Banking Company of New Orleans, recovered judgment fra solido against Walker, the present plaintiff, and the First Municipality and others, for the sum of $330, with interest from the 5th of February, 1842, at ten per cent, with $5 50 costs of protest, $3 for copy of an act and costs of suit. The judgment was rqndored on a promissory note of which Walker was the drawer, and which the municipality had endoi'sed. The note had been received as part price of a lot of land sold by the municipality to Walker, and was subsequently discounted by the Improvement Bank.

The judgment had been transferred by the commissioners of the Improvement Bank, on the 24th of June, 1845, to J. C. Thomas, who became the assignee of the judgment on the record. From this judgment Walker afterwards appealed, and the appeal was dismissed on the 8th of June, 1846. By an order of court the municipality, on the acknowledgment of Thomas that he had received the amount of the judgment with interest and costs, was subrogated to the rights of Thomas, in the judgment against the co-defendants.

The municipality took out execution against Walker, who obtained an injunction on the ground that he had tendered the amount due, in notes of the bank, with the amount of the costs in specie, to the commissioners of the bank, subsequently also, to Thomas when he held the judgment, and finally, to the sheriff on the execution enjoined.

The injunction was dissolved by the court of the third district, and the plaintiff has appealed.

The judgment which the- commissioners of the Improvement Bank obtained against the municipality and its co-defendant, Walker, was payable in the notes of that bank. Under the acts of 1842 and 1843, relative to the liquidation of banks, it was imperative on the commissioners to receive the notes of each bank in the payment of its debts. This measure was enacted for the purpose of absorbing the circulation of the banks, and quickening the liquidation of their concerns. Its legality has been sanctioned by repeated decisions of our courts. The Commissioners of the Exchange Banking Company v. Mudge, 6 Rob. 387. French v. Stanton, 1 Ann. 8.

Thomas bought this judgment from the Commissioners of the Improvement Bank on the 27th of June, 1845, at private sale. It was not sold at auction among the assetts of the bank, but was purchased by Thomas under a resolution of the board of directors. In this he was a volunteer, he paid in the depreciated notes of the bank, giving the face of the note in capital and interest, and paying the costs in specie. It is obvious that he could acquire no rights by such a purchase which the bank itself did not have, and the judgment, under the laws of 1842 and 1843, could still be paid in the notes of the bank. If the municipality paid, in specie, the amount of the judgment, which it was not bound to do, this gives the municipality no claim against its co-defendant, except for what it was. legally bound to pay. The right to subrogation puts the municipality in the place of the original plaintiffs, the Commissioners of the Improvement Bank; and the judgment, as it originally stood, can still be satisfied by the payment of notes of that bank.

The judgment of the district court is therefore reversed; and it is decreed, that on atender lawfully made to the sheriff or the Municipality No. One, of the amount of said judgment and interest in notes of the late Improvement and Banking Company, and the payment of the costs of protest and of suit in specie, by the plaintiff in injunction, John Walker, the said judgment be held to be satisfied and discharged; the municipality paying costs in both courts.


text:
    Edward Duncan v. J. H. Blood, and Valz, and De Rham.
    Where third persons permit an advance to he made to A. upon a consignment by him of their property, on his own account and risk exclusively; and the proceeds of the sale of the property have been applied by the consignees with the assent of A. to bis credit, on a previous debt, such third persons cannot recover from the consignees the proceeds of the sale, upon the ground that the properly in fact belonged to them.
    APPEAL by plaintiff from the Fourth District Court of New Orleans, Strawbridge, J.

      J. Dunlap and Harmon, for appellant.

      H. H. Strawbridge, for appellee.
   The judgment of the court was pronounced by

Eustis, C. J.

The defendants, Valz and De Rham, of New Orleans, were the agents of Coliman & Stalterfoht, of Liverpool, and were in the habit of making advances to Joseph H. Blood, the other defendant, on shipments of produce to the Liverpool house, in 1846 and 1847. The plaintiff Edward Duncan, with Joseph Nash, were employed by Blood as his brokers, in the purchase of produce in New Orleans, and they being anxious to make a shipment of flour, applied to Blood to procure from his friends an advance on the shipment. On application to Valz and De Rham, they refused to make an advance to either Duncan or Nash, but offered to advance on a shipment predicated on the responsibility of Blood alone. This was communicated to Nash, who then requested him to allow the shipment to go forward in his name, and under his responsibility. To which Blood consenting, Duncan and Nash bought two lots of flour, which were shipped to the Liverpool house on consignment. The plaintiff was not only conusant of this arrangement, but earned it into effect. The freight was engaged by Blood, the bills of lading were made out, shipped by J. H. Blood & Co., and consigned to Collman & Stalterfoht; invoices of these shipments, with others made by Blood at the same time, were prepared in the name of Blood, with advices that they be sold on his account and risk. On the delivery of the bills of lading and invoices to Valz and De Sham, the advance was made by them on account of the Liverpool house, which was immediately paid over to the parties by Blood-

The result of the,shipments made by Blood was, that he fell largely in debt at the close of the season to the Liverpool house. Blood bought out Nash’s interest in the adventure, and this suit is for Duncan’s share of the proceeds of the sales of the shipments, less the advance. The Liverpool house and their agents here insist on the right of retaining them, as they are carried to Blood’s credit in account.

The judgment of the district court was against Blood, but in favor of the other defendants, and the appeal has been taken by the plaintiff.

Waiving the question as to the liability of the defendants, Valz and De Sham,, for the retention of the funds by the Liverpool house, let us look for a moment at the contract between the parties. The appellees refused to deal with Duncan or Nash; they would advance to Blood alone on his responsibility. The consignment was to be made, and was made on his account and risk exclu-, sively. The accounts were to be rendered to him alone, and the proceeds subjected exclusively to his order. They have accordingly been applied to the payment of his debts resulting from his shipments — he assenting thereto, and ,the good faith of the Liverpool house being unquestioned. The plaintiff has thought proper to make this disposition of his property. He has his remedy .against Blood, but none against the other parties.

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


author: Slidell, J.

text:
    Citizens’ Bank v. F. Dugue and Louisiana State Bank.
    A release of the drawer of a note by the holder, without the consent of the endorser, destroys all recourse against the endorser.
    The endorser who pays a note in ignorance of the fact that the drawer had been released by the holder, and that he was consequently discharged from all liability, can recover back the money so paid.
    APPEAL by defendant from the District Court of Jefferson. Clarke, J.

      A. Pitot, for appellee.

      Hunton and Bradford, for appellant.

      C. Roselius, for Dugué.

   The judgment of the court was pronounced by

Slidell, J.

The plaintiffs s.ued the defendants on a note drawn by F. Dugué. to the order of and endorsed by Fr Dugué, jr. This note bears the endorsement of E. Soniat and of the Citizens’ Bank, by which it was transferred in pledge, before maturity, to the Louisiana State Bank. It was protested on the 15th March, 1843, at the request of the.last named bank, the then holder, who duly notified the endorsers. It remained in the hands of the same holder until September, 1846, when the Citizens’ Bank paid its amount to the Louisiana State Bank.

The defence turns upon the question, whether .the maker and endorser have been discharged by the acts of the Louisiana State Bank. When the discharge was pleaded, the plaintiffs made the Louisiana State Bank a party, and claimed judgment against that bank in the ev.ent of the defence being sustained. The result of the trial in the court below was a judgment in favor of the defendants, and a further judgment in favor of the plaintiffs, against the Louisiana State Bank. •

The material facts are as follows. In May, 1843, F. Dugué executed in favor of various creditors, among whom was the Louisiana State Bank and F. Dugué, jr., (the latter being the endorser of this and many other notes, and the maker of others,) a mortgage, by notarial act, upon a large amount, of lands and slaves. The act contains an agreement between the mortgagor and his creditors to the following effect. He was, within three months, to sell the mortgaged property either at public or private sale, on terms of one tenth cash, and the balance at a credit of one, two, three, and four years, secured by mortgaged notes with endorsers. The proceeds of the sale were to be applied to the payment of the creditors named in the act, their existing liens, however, being perserved and respected in the distribution. The defendants were not to be sued until the sale was fully effected, and the deficit uncovered by the proceeds of sale ascertained. The defendants were to remain liable for this deficit to the extent only, however, in which they were respectively drawers and endorsers. The president of the Union Bank, one of the creditors, was authorized to give releases of the mortgage in order to complete the sales as they should be effected; and the cash and notes received from them were to remain deposited with the notary until a distribution among the beneficiaries was made. After a number of the creditors had signed the act, it was found that the Louisiana State Bank declined to sign it, without an intervention of the Citizens’ Bank. A clause was accordingly added, in which that bank, through Hullin, its president, recites, that it intervenes for the reason that one of the notes held by the Louisiana State Bank, (the note in question in this cause,) had been transferred to the latter bank by the former, which still remained a guarantor of the note. It was further recited that the note was secured by a mortgage given in favor of Soniat, the first endorsee, by the maker, and as the Louisiana State Bank had refused its concurrence without the intervention of the Citizens’ Bank, that therefore, in order to obtain that concurrence for the Messrs. Dugué, the Citizens’ Bank consents to the act: mais cependant en réservant formellement á la Banque des Citoyens tous ses droits d’hypothéque ou de privilege qu’elle peut avoir pour le capital et les intéréts du sus-dit billet hypothécaire, sans y déroger en rien. Et de plus on reservant el la banque son recours plein et entiere contre l’endosseur du dit billet de deux mille quatre cent trente piastres, Mr. F. Dugué, jeme, sans qu’il puisse se prévaloir de cet acte pour réclamer aucun benefice de discussion ni aucun délsii, et avec sa stipulation que le dit endosseur restera personellement obligé comme si le present acte n’avait pas eu lieu. Le dit sieur F. Dugué, jeme, ici present consent formellement a cette clause etreeonnaitdemeurer obligé par son endossement comme si cet acte n’avait pas lieu. After this follows the officiid signatures of Hullin and that of Dugué, jr. It is proper here to observe, that the note of $2,430 above mentioned, was a note also held by the Louisiana State Bank, and described in the act. F. Dugué was the milker.

Following the signatures of Hullin and Dugué, jr., is a clause signed by the president of the Louisiana State Bank, in which he declares that the several claims of that bank are properly recited in the act, and that, inasmuch as the Citizens’ Bank remains guarantor towards the Louisiana State Bank, and the endorser remains bound, as previously expressed in the act, and that there is no change of the mortgage rights, he, in the name of the State Bank, consents to the act.

Before proceeding to state what subsequently occurred, it is proper to pause here, and ascertain the respective rights and obligations of the parties, as they existed immediately after the execution of this instrument.

Its legal effect was not to discharge the personal liability of the maker or endorsers of the note, but simply to estop a personal pursuit of those parties, until the contemplated sale of the mortgaged property should be effected, according to the stipulations of the act, and the deficit ascertained. For that deficit the personal liability remained unimpaired. For that deficit eventual the Citizens’ Bank also remained responsible.

It has been suggested in argument by the counsel of the Louisiana State Bank, that a discharge of the personal liability of Mr. Dugué, jr., upon this note is to be deduced by implication from this stipulation between him and the Citizens’ Bank, respecting the other note of $2,430. Nemo facile presumitur donare. Hullin expressly states that he had taken cognizance of the antecedent portion of the act. It was there expressly stipulated that the personal liabitit.y of the Dugués should remain. But it had also been stipulated that they should not be pursued personally for any of the debts enumerated in the act, until a sale was effected and the deficit ascertained. The Citizens’ Bank was endorser of the note of $2,430. It did not choose to assent, in favor of F. Dugué, jr., its prior endorser, to any delay whatever as to that note. It was willing, however, to assent to the arrangement for delay as regards the other note; although with a formal and cautious, but perhaps unnecessary, reservation of the then existing mortgage rights. To infer, from the partial refusal to accede to a delay with regard to one debt, an abandonment of the personal liability which the debtor himself, in the same instrument, had expressly stipulated as to another debt, would be a forced and unreasonable presumption, which we cannot recognize.

It remains then to consider the circumstances which occurred subsequent to the act of May 3, 1843, and their legal consequences.

In 1845 Mr. Dugué, the elder, addressed a new proposition, in writing, to his creditors. After stating his ineffectual efforts to effect sales of the mortgaged property within the prescribed term, he proposed to make, in their favor, a final abandonment both of the mortgaged property and of other property not embraced in the act of 1843, provided they would give him a full discharge, and also pay some small charges for taxes, &c. At the foot of this proposition a number of the creditors signed a conditional acceptance, and the document was then transmitted to the Louisiana State Bank. The result was a written agreement signed by the presidents of the Louisiana State Bank, the City Bank, the Bank of Louisiana, and the Carrollton Rail Road Company, agreeing that the mortgaged property and also the new property embraced in the proposition should be sold at public auction on certain terms. This agreement, under the circumstances, would probably have implied, per se, a consent to discharge Dugué upon his fulfillment of the terms proposed. But all doubt on this subject is dissipated by what subsequently occurred. All the property was exposed for sale, as had been agreed, in December, 1845. In February, 1846, the president of the Louisiana State Bank, under resolution of the Board, released the mortgage of 1843, in order to complete the title to purchasers. On the 2d December, 1846, the same bank and other creditors effected, by notarial act, a partition of the fund realized from the sale, acknowledged that Dugué had fully performed his contract, and granted, in his favor, a full release for all debts and liabilities which they held against him. Attached to this act was a statement of the debts due to the respective creditors. The Louisiana State Bank was classed in this distribution as a creditor for the other claims, which at the time of the mortgage it held against Dugué, exclusive of the note in question. The Citizens’ Bank was requested to receive the dividend on this note, but declined to do so or to sign the release. It further appears, that on the 6th September, „ , . . , , . 1846, after the new proposition by JJugue, its acceptance by the creditors, the sale of the property pursuant to the new agreement, and the other acts on the part of the Louisiana State Bank, above mentioned, the Citizens’ Bank paid the note in question to the Louisiana State Bank. There is nothing to show that the Citizens’ Bank, when it made this payment; had any notice of, or any participation in, any of these proceedings subsequent to the act of 1843.

From these facts it clearly results, that the Louisiana State Bank had, by its own acts, lost all personal recourse against the maker of the note, and was estopped from looking to anything but the proceeds of the property abandoned to the creditors. When, therefore, on the 6th September, 1846, it received payment of the note from the Citizens’ Bank, its endorser, it received what the Citizens’ Bank was not bound to pay, and paid in ignorance of its discharge from liability by the discharge of the debtor primarily liable. The money paid can, therefore, be recovered back. This is the doctrine of our code, of the commercial law, and of natural justice. “He who receives what is not due him, whether he receives it through error, or knowingly, obliges himself to restore it to him from whom he has unduly received it.” “He who has paid through mistake, believing himself a debtor, may reclaim what he has paid.” Civil Code, 2289, 2280. Chitty on Bills, [*458]. Oakey v. Bank of Louisiana, 17 L. R. 386. McCall v. Corning, 3 Ann. 413.

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


text:
    A. Carlisle, Jr. v. Steamer Eudora and Owners.
    A judgment of an inferior court upon a question of fact will not be reversed, unless clearly unsupported by tbe evidence.
    Although a contract be made with one in his own name, if it be afterwards discovered that he acted as agent for another, the principal will be held responsible.
    Where one of the part owners of a steamer contracted in his own name with a pilot, the other part owners will be liable to the pilot.
    APPEAL by defendants from the Fourth District Court of New Orleans, Strawbridge, J.
    C. W. Hornor, for appellee.

      Hunton and Price, for applants.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff was employed under written contract to act as pilot of a steamer for a certain number of months ; and, after acting for some time was dismissed without sufficient cause, although he tendered performance.

There is no question of the liability of Ealer, one of the defendants; and we consider the appeal on his part frivolous.

The argument of the counsel for the defence has been principally directed against so much of the judgment as condemns Houston.

It appears from the evidence that Ealer had acknowledged himself to be a part owner, and had been the person who usually represented the boat. This latter fact appears to have been known to Houston, and it is also fairly inferrible from the evidence that Houston was aware of the plaintiff’s employ-ment. It is true that some of the testimony was hearsay; but no objection was made to it in the court below. As the whole evidence satisfied the mind of the district judge, it is not proper to reverse his judgment upon these questions of fact, unless it be clearly unsupported by evidence, which cannot be pretended.

Although Ealer contracted in his own name, this is insufficient, per se, to restrict the liability to him. We understand the rule under our jurisprudence to be the same as is acted upon in courts of equity, which will seek out the principal, and enforce a contract against him ex cequo et bono, although he be not bound by the form of the contract. Ballister v. Hamilton, 3 Ann., 401. Besides, we have parol evidence here, which has been received without objection,-that the plaintiff, at the time of the contract, contemplated the liability of all the owners, and not merely of Ealer.

It is therefore decreed, that the judgment of the district court be affirmed with costs; and it is further decreed, that the said plaintiff recover from the said Henry A. Ealer, the further sum of $38, as damages for a frivolous appeal.


text:
    Arabella Florance and her Husband v. T. C. Twichell.
    A. executed an obligation payable to a married woman in person. Held by the court, that from the form of the obligation, the thorough knowledge which A. had of the husband’s affairs, and by the part he had taken in the attempt to conceal the community property, he was estopped from sotting up the defence that the obligation Was community property, and that he was entitled to off-set the same with debts due to him by the husband. And when he had credited the husband’s account with items which might have been chargable to the wife, he will not be allowed to cancel such credits, and charge them to the wife. Free'niafi V. Savage^ 2 Ann. 269 — affirmed.
    APPEAL by defendant from the Fourth District Court of New Orleans, Strawbridge, J.

      Cohen and Labatt, for appellee.

      Charles M. Emerson, for appellant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff is the holder of a written obligation of the defendant, which is in these words :

“ On demand, I promise to pay to Mrs. Arabella B. Floranee, on the return of this note by her in person, twenty-eight hundred dollars, for value received.
“ T. C. Twitchell.'’

She sues for $300 and interest, the balance alleged to be due thereon.

The defendant in his answer, admits the execution of the obligation,- but alleges that sin'ce its date he has paid to the plaintiff and' her husband,-through her order, more than the’ amount of the’ note. That the amount thus paid by him was either in money to tlie plaintiff or hei‘ husband,-or for necessaries of life furnished to the plaintiff’s family, which she is bound to pay; her husband being insolvent. The defendant has appealed from the judgment rendered against him on that issue. Iiis counsel first urges in his behalf, that there is no evidence that the note sued upon is the private property of the plaintiff, that it must therefore be presumed to belong to the community, and that he is entitled to compensate with it sums due him by the plaintiff’s husband.

The fact may be as stated by counsel, but the defendant has precluded himself from taking advantage of it.

By the peculiar form of the obligation he has contracted, and the partial execution of it at various times; by his irregular connexion in business with the plaintiffs husband, and his thorough knowledge of their affairs; by the part he has taken in their attempt to conceal the community property, and make it appear the property of the wife, if such an attempt has been made; and finally, by his answer he has created a state of facts which he cannot be permitted to contradict. See Freeman v. Savage et al., 2 Ann. 269.

On the merits, the advances to the husband were not made on the order of the wife, and we do not consider the evidence sufficient to charge her separate estate. There are some items in the defendant’s account for which she was originally bound, but in the usital course of dealing between the defendant and the plaintiffs’ husband, those items were charged to the account of the latter at a time when there was a large balance in his favor. The district judge considered that the plaintiff could not be affected by the transactions which subsequently brought the balance of the account against her husband, and that those items must be held to have been paid. We are unable to say that he erred.

The judgment is therefore affirmed,- with costs-.


text:
    Smith Bryan v. Oliver Dubois.
    A till of exceptions to the rejection of testimony, which does not set forth the grounds upon which the testimony was rejected, cannot he noticed by the court.
    A note bearing the same date,- and for the same amount as one mentioned in act of sale» is sufficient evidence to identify it with the act of sale as the consideration, unless it is shown that another note was given. *
    APPEAL by plaintiff from the Fourth District Court of New Orleans, Strawbridge, J.

      Hoffman and Ogden, for appellant.

      R. Mott, for appellee.
   The judgment of the court was pronounced'by

Rost, J.

The defendant refuses to pay the note on which he is sued, on the ground that it was given by him to the plaintiff for a slave, who was affected with redhibitory defects to the knowledge of the said plaintiff. There was judgment against him, and he appealed.

In the course of the trial, a bill of exceptions was taken by the defendant to the opinion of the court, sustaining the opposition of the jdaintiff to the introduction of certain parol evidence offered by him ; but as it sets forth none of the grounds upon which the evidence was rejected, it is not in our power to notice it. 13 L. R. 93.

On the merits, this case presents a mere question of fact, turning upon the faith to be given to testimony. We would not disturb the judgment unless it was manifestly contrary to evidence, but we are of opinion that it is in strict accordance with it, nothing shows the unsoundness of the slave at the time of the sale. The physicians who attended him when he was first taken sick, would have been the best witnesses to prove that the disease was of long standing. But the defendant has not availed himself of that testimony, and he has not accounted for the omission. His attempt to make out his case by the testimony of physicians who saw the slave only a short time before the trial, cannot be sustained.

It has been urged in argument, that there is nothing to identify the note sued upon with the note given for the slave. The written agreement in the record shows, that the defendant gave for the slave in controversy, a note bearing the same date and for the same amount, and as there is no evidence that any other was given by-the defendant, we must presume that the note sued upon was the consideration given for the slave.

Judgment is therefore, affirmed, with costs.


text:
    G. W. Denton v. J. Erwin, et al. — H. Johnson, Intervenor.
    Courts of justice are bound to vindicate and maintain the sanctity of their judicial proceedings before they consider the merits of cases.
    A party will not be- permitted to deny what he has solemnly acknowledged in a judicial proceeding, nor to shift his position at will to a contradictory one in relation to the subject matter of litigation in order to frustrate and defeat the action of the law upon it. Gridley and Whitehead v. Connor, 4 Ann. 416, and Freeman v. Savage, 2 Ann. 269 — affirmed.
    The surety for the plaintiff in an injunction is a party to the suit, and will not afterwards be permitted to make allegations inconsistent with his position as a party to that suit. And when it is subsequently ascertained that he was the real owner of the execution enjoined,' but which was prosecuted in the name of another person, for his benefit, the judgment will be declared extinguished, and property previously sold under the judgment restored to the original owner.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      W. C. Micou and. Prentiss and Finney, for plaintiff.

      C. Roselius and R. Mott, for intervenor and appellant.
   The opinion of the court was pronounced by

Eustis, C. J.

The object of the present suit is to obtain a decree ordering two certain judgments, obtained in the name of Frazier and Adams, receivers, against the plaintiff and others, in solido, and held by the trustees of the late Bank of the United States, to be cancelled, and to be without effect so far as concerns the said plaintiff.

The petition charges that the judgments were purchased from the holders, the trustees of the Bank of the United States, for the benefit of Willcox, who was a co-defendant with the plaintiff in said judgment; that for the debts for which the judgment was obtained the plaintiff was the surety of Willcox, who was bound to protect and indemnify him, the plaintiff, against said judgments ; and that consequently by the transfer of the judgments to the persons who held them for the benefit of Willcox, the said judgments became inoperative and of no effect in law, so far as relates to the property of the plaintiff. The petition further charges, that notwithstanding the premises, the said Willcox entered into a fraudulent combination with James Erwin, by which said judgments were placed under the control of said Erwin, in order to be made available out of the plaintiff’s property; and that said Erwin, in order to conceal his interest and agency from the petitioner, procured the said judgments to be transferred to William J- Vason, who caused execution to issue thereon, against the properly of the plaintiff, which was seized and advertised for sale ; that the execution of said judgments was enjoined at the suit of the plaintiff on grounds similar to those alleged in the petition, but that said Vason, by falsely pretending that the plaintiff had been a party to certain frauds between said Erwin and WiRcox against their creditors procured the said injunction to be finally discharged by the Supreme Court. That during all these proceedings, James Erwin pretended to be the friend and confidant of the plaintiff; that he intervened in the suit, and became his surety on the injunction bond given to stay the execution on said judgments, and, in order to cover and disguise his conduct, caused himself to be garnisheed in said suit, and answered interrogatories under oath; but that during this time, he, the said Erwin, was secretly and treacherously instigating the proceedings against the plaintiff, in the name of said Vason, while in fact, he,- said Vason, had no real interest in the subject, and while a written acknowledgment existed that said Vason held said judgments for collection, for the use and benefit of said Erwin ; that after said injunction had been dissolved, the said Erwin caused the said Vason to issue another execution, by which certain lots of great value, in the parish of Jefferson, belonging to the plaintiff, were sold at sheriff’s sale and purchased by said Vason, for the use and benefit of said Erwin ; that said James Erwin, though acting throughout in the premises for his own interest and purposes, caused the written acknowledgment aforesaid to be given to Andrew Erwin, his brother, whose agent he was and still is.

The petition concludes with a prayer, that James Erwin, Andrew Erwin, Jacob Willcox, and William J. Vason be cited, and that said judgments Nos. 5023 and 5069 of the records of the late Commercial Court of New Orleans, be decreed to be cancelled and extinguished; that the sale of the lots in the parish of Jefferson be annulled, and the property restored to him, &c.

Willcox appeal’s in proper person, and in his answer, which commences with a general denial of the allegations of the petition, expressly denies any fraudulent combination on his part to injure the plaintiff. He virtually concedes the fact of the real ownership of the judgments by Erwin, as charged in the petition, and concludes by asking that the judgments be entered satisfied as relates to him.

James Erwin appears in proper person; his answer is a general denial.

Andrew Erwin appears in proper person; his answer is a general denial. He also adds that Henry Johnson is the owner of the judgments mentioned, that whatever interest was at any time in the respondent, it has been transferred and assigned to said Johnson, whom he prays may be cited to defend the suit, and that he be hence dismissed, &c.

William J. Vason appears in proper person, and disclaims any interest in right or title to said judgments. He avers tnat previous to the institution of this suit, to wit, on the 8th December previous, he transferred and assigned said judgments to Henry Johnson; this defendant does not deny'the allegations of the plaintiff’s petition, but prays to be hence dismissed with his reasonable costs, in this behalf sustained, and for general relief.

Henry Johnson, by his attorneys, filed a petition of intervention. He alleges that previous to the institution of this suit, to wit, on the 8th December last, (the suit having been instituted on the 20th of that month, in the year 1847,) he purchased said judgments from Wm. J. Vason, for a valuable consideration in cash paid, and thereby became the owner thereof. He avers, that all the matters attempted to be set up and examined in this suit, have been fully examined and adjudicated upon in the case of G. W. Denton v. W. J. Vason and others; that the judgment in that case is res judicata in favor of Vason, and that he, ¿|16 intervenor, has all the rights of Vason in relation to these judgments; that Andrew Erwin and James Erwin have no property or right of property in said judgments, and whatever may have been their conduct, it cannot affect the rights of the intervenor; that Willcox is the agent and confederate of the plaintiff, and that his answer cannot be of avail to the plaintiff in the present suit. Wherefore he prays that the plaintiff’s suit be dismissed.

An answer was filed by the plaintiff to this petition of intervention, in which the consideration and lona jides of the transfer and assignment of the judgments set forth therein is put in issue; it is denied by the plaintiff that the issues in this case were the same as those in Denton v. Vason et al., or that the judgment which is pleaded by the intervening party is res judicata; and it is averred, that by reason of the fraudulent conduct of the defendants set forth in the plaintiff’s original petition, the judgment of the Supreme Court is null and void, and the plaintiff prays that it may be so decreed.

It appears that after these issues were made up, execution was taken out on the judgments, and the plaintiff, on the 18th March, 1848, obtained an injunction against further proceedings, on the grounds set forth in his original petition. The intervening party, Henry Johnson, alone appears to have answered the supplemental petition of the plaintiff on which the injunction was granted. This answer reiterates the plea of res judicata, denies specially that Willcox ever owed Denton any sum of money, and charges that any transfers, out of which the alleged debts originated, were and are simulated, and never had any real existence.. It prays that the injunction be dissolved, and the principal and surety in the injunction bond be condemned to pay damages, &c.

When the cause came on for trial, the plaintiff discontinued as to the defendant Willcox. The district judge rendered judgment in favor of the plaintiff, making the injunction perpetual, and decreeing the judgments to be extinguished, &c.

The plaintiff has appealed ; inasmuch as the district judge did not decree the restitution to the plaintiff of the property purchased by Vason at sheriff’s sale in the parish of Jefferson, and for this he asks relief in this court. Henry Johnson, the intervening party, has also appealed.

The purpose of the present suit is similar to that of the case of Denton v. Vason, which was decided by this court, in January, 1847, and is found reported in 2d Ann. 60. The action in thqt case was based upon a contract made in New York, in 1844, which was sought to be enforced under allegations of complete performance of its conditions on the part of the plaintiff, but the court was of opinion that the agreement was in furtherance of a combination for an illegal object, that it was immoral and fraudulent, and that no action for relief could be founded upon it, and the plaintiff’s petition was accordingly dismissed. This judgment is now pleaded as res judicata by the intervenor. The plea is not made by James Erwin. But as these parties, we are authorized from the record in assuming, represent but one interest, and that is antagonist to the plaintiff, we shall consider them both as defendants, having a common object and one identical interest.

The plaintiff, as one of his grounds of relief, urges that during the whole of the proceedings in the former suit, the judgments in point of fact belonged to James Erwin, though in the name of Wm. J. Vason; that he, James Erwin, was the real party in interest in that suit, that instead of coming into court and defending his claims he put forth Vason as the ostensible owner of the judgment, and became the confidant and adviser of the piaintiff in his proceedings to cancel his own judgments. That he was the surety of Denton in his injunction bond in that suit, in obedience to the order of the court granting the injunction, and naming him as the surety required to be given, that a motion was made by Mr. Vason to dissolve the injunction, on the ground, combined with other reasons assigned, “that the security, James Erwin, is not good and solvent,” demanding at the same time interest of ten per cent, and twenty per cent damages, on the amount of the judgments against the plaintiff in injunction and his surety, James Erwin, are matters of record.

The law provides that on the tidal of injunctions, the surety on the bond shall be considered as a party plaintiff in the suit, and in case the injunction shall be dissolved, the court in the same judgment shall condemn the plaintiff and surety jointly and severally to pay interest at the rate of ten per cent per annum, on the amount of the judgment, and not more than twenty per cent as damages, unless damages to a greater amount be proved, and the parties in such cases shall not be allowed the benefit of the plea of discussion. Act of 1831.

Accordingly, in the answer of Vason, filed by his attorney, the maximum of interest and damages were demanded, in the dissolution of the injunction against Denton and his surety. It is now urged in argument, that Ermn is estopped, by these matters of record, that he joined in the demand for the extinguishment of these judgments, in thus assisting Denton in obtaining his release from them, and cannot be permitted to enforce them against him. The evidence satisfied us that Erwin was the owner of the judgments, and that he directed all the proceedings adversely to the plaintiff, at the same time that he was acting as his adviser, surety,.and apparent friend. The effects of this position which he has thought fit to occupy in these judicial proceedings, it next remains for us to consider. It is obvious, that this question of estoppel is the first that presents itself on the record which this court can notice, and that until this is decided, there can be no investigation of the cause on its merits. And whether the judgment is in fact extinguished or not, is a matter not to be considered, until the first and preliminary question is disposed of. There is nothing in the pleadings which causes the right of the plaintiff to maintain his action, and obtain his relief by reason of any illegal or fraudulent doings on his part touching the subject matter of the suit, or which affords any explanation of the conduct of Erwin, or his position in the former suit. It may be true, that on the evidence, the court might come to the same conclusions which the evidence established in the previous case of Denton v. Vason, but that evidence we have not examined, being first bound to vindicate and maintain the sanctity of our judicial proceedings, before we look at the merits of the controversy between the litigants.

The granting of injunctions under the provisions of the Code of Practice, has been one of the most fruitful sources of abuse in the administration of justice. The district courts out of the parish of Orleans, having been formerly held but twice a year, the effect of an injunction against proceedings under execution, was to secure to the party obtaining a certain delay for the satisfaction of the judgment against him, besides the further delay incident to a litigated suit, so that the execution instead of being, as it ought to be, finis fructus et effectus legis, became a mere starting point in a new contest between the litigants. To prevent, in future, this evil, the statute of 1831 was passed, which subjected the enjoining the execution of a judgment to the very onerous penalties of interest and damages before recited, in the event of his failure to make good his allegations for relief, and of the dissolution of the injunction. The statute, in order to prevent the aid from being afforded to the party by sureties, in cases in which he is not entitled to the relief by injunction, as the surety must always be a solvent person, having sufficient property to respond to the amount of the suretyship, and domiciliated within the jurisdiction of the court in which it is to be given, in order to prevent persons of this class from co-operating with debtors, to delay and defeat the course of justice, for illegal purposes and inadequate causes, has made the party liable to the penalty inflicted as the debtor. It completely identifies the debtor and the surety, in awarding the penalty: the plaintiff in injunction and the surety shall be condemned in the same judgment jointly and severally; on the trial, the surety shall be considered a party plaintiff in the suit, and sureties in such cases shall not have the benefit of the plea of discussion. Thus, in the proceedings before us, under the statute under which the injunction was obtained, James Erwin not only vouched for the cause of the plaintiff Denton, by his suretyship, but stood in court as a plaintiff defending it, while through the instrumentality' of Vason he was taking measures on record to defeat his own suretyship, and obtain judgment for damages against himself in his own favor. Any commentary on these facts would weaken their effect, and it is necessary to examine what are the consequences which the law attaches to such an abuse of judicial proceedings.

A party may, by his own voluntary act, have placed himself in a situation as to some matter of fact, that he is precluded from denying it; and the rule by which he is so held to be bound, is founded on the obligation which every man is under, to speak and act according to the truth of the case and in the policy of the law to prevent the unavoidable mischief resulting from uncertainty, confusion, falsehood, and the want of confidence in the intercourse of men, if they were permitted to deny that which they have deliberately and solemnly asserted and received as true. Greenleaf on Evidence, § 22.

We accordingly held, that a man should not be permitted to deny what he had solemnly acknowledged in a judicial proceeding, nor to shift his position at will, to a contradictory one, in relation to the subject matter of litigation, in order to frustrate and defeat the action of the law upon it. Gridley and Whitehead v. Conner, 4th Ann. 416. The judges in that case were divided in opinion, but they were united in opinion in the principle of law therein laid down, and their dissent only related to its application of the facts of the case. See the cases there cited, and 4th Kent’s Com. 261 (last edition,) note by the author. 11th Wendell’s Rep. 117, Pelletreau v. Jackson. 13th Wendell 208, Jackson v. Waldron.

The case of Freeman v. Savage et al., reported in 2d Ann. 269, we had previously sanctioned the same principle. Theophilus Freeman had sold certain slaves on a credit, to the defendant Savage, and had taken an endorsed note for the price. The suit was brought by Freeman against the endorsers. A long time after the note had fallen due, a judgment creditor of Savage had seized the slaves as his property, and Freeman enjoined the proceedings, alleging under oath, that he was the owner of the slaves; and on the trial, Freeman exhibited as his title an instrument, purporting to be a sale of the slaves, for the exact amount of the note from’ Savage to him; but the injunction was dissolved, the reconveyance being considered a simulation, the object of which was to defeat the action of the law upon them. Notwithstanding the result the suit, the court held Freeman to the allegations and proofs he had made, and to his showing that the re-sale by him to Savage was an extinguishment of the note, and that as far as he was concerned, the instrument must be held to be, as the plaintiff Freeman was bound to treat it, genuine and true, and that its not being available against the judgment creditor was no reason that he should be permitted to question its truth. What he thus said and did in that suit the policy of the law would not permit him to gainsay or deny.

The features and character of this cjise bears a strong resemblance to that under consideration; the difference between the two was, that Freeman himself was the plaintiff in injunction, whereas Erwin is in this case the surety, but made a party to it by the statute under which the proceedings were instituted. He is not only a party in inter'est in preventing judgment being rendered against him, in solido with his principal, but the statute makes him a party plaintiff on the record.

In the case of a ship owner whose ship had been seized for breach of the revenue laws, and who had applied to the secretary of the treasury for a remission of the forfeiture, on the ground that it was incurred by the master ignorantly and without fraud, and upon his making oath to the application, the ship was restored. The court thought he was not permitted afterwards to gainsay it, and to prove the misconduct of the master, in an action of the latter against him for his wages on the same voyage, even by showing that the fraud had subsequently come to his knowledge. Freeman v. Walker 6. Greenleaf Report, 68.

These authorities concur in showing,, that the matters alleged for relief against those judgments in the first suit, under the oath of Denton, whose copláintiff and surely Erwin was, cannot be unheeded by this court, but left to their legal effect, they deprive him of the faculty of now treating them as false, by again attempting to make the amount of his judgments out of the property of the plaintiff; indeed, any other conclusion would encourage and sustain a scandal in the administration of justice.

The only means under our legislation, within the powers of courts to protect the integrity of their judicial proceedings, are the sanctity which is thrown around them, and the presumptions which the law has established in their favor. If all the restraints of justice and truth are lost sight of by litigants, and judicial procceedings are converted into mere machinations for fraud and oppression, the law itself meets the emergency by holding the offending parties to their allegations of record, and not permitting them to falsify what they have solemnly declared to be the truth.

Vason, as we have seen, has disclaimed all interest in the judgment. He has been made a party to this appeal, but has not appeared in this court. It only remains to affirm the judgment of the district court, with the modification asked by the plaintiff, annulling the sales of lots in the parish of Jefferson and restoring them to the plaintiff.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be affirmed ; and, upon the appeal of the plaintiff, Q. W. Denton, it is further ordered and decreed, that the sale made under execution in said suit No. 5023, on or about the 28th April, 1847, by the sheriff of the parish of Jefferson to William, J. Eason, of five certain lots of ground in Nun’s faubourg in the parish of Jefferson, in the square bounded by Felicity, St. Mary, Armand, and Beilegarde streets, designated by the numbers 6,7,13, 14 and 16, in square No. 8, and more particularly described in said act of sale in the record, be and the same is hereby annulled and rescinded, and the said property embraced therein restored to the plaintiff, G. W. Denton.

And it is further ordered and decreed, that the defendants pay the costs in both courts.


author: King, J.

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    The State v. Jourdan G. Fretwell.
    To support an assignment of errors, the errors assigned must appear of record.
    APPEAL from the First District Court of New Orleans. McHenry, J.

      W. A. Elmore, Attorney General, for the State.

      Wolfe and McHenry, for appellants.
   The judgment of the court was pronounced by

King, J.

The defendant relies exclusively on an assignment of errors. None of the alleged errors appear in the record.

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


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    The State v. Juan Romero.
    A bill of exceptions should be presented at the trial, or the point shohldbe then expressly reserved and noted, and after the trial embodied in a bill of exceptions, without unnecessary delay, while the facts are fresh in the memory of both the judge and counsel. A bill of exceptions to a proceeding during a trial which took place the 27th of June, hut which was not presented until the 28th of July following, cannot be considered.
    The assignment of counsel for the prisoner as soon as the court is informed that he is without counsel, is all that the law requires.
    The objection that the judge erred in refusing to postpone the trial, to enable the accused to confer with bis counsel to prepare for bis defence, will not be sustained when there was no motion or affidavit for continuance upon that ground. Nor will the absence of these be cured by the circumstance that the facts appear as one of the grounds in a motion for a new trial.
    APPEAL from the First District Court of New Orleans. McHenry, J.

      W. A. Elmore, Attorney General, for the State.

      Cyprian Dufour, for the appellant.
   The judgment of the court was pronounced by

King, J.

The bill of exceptions to which our attention has been called in this case cannot be considered. The trial of the case took place on the 27th of June, 1849; the bill of exceptions was not presented until the 28th of July following. It should have been presented at the trial, or the point should have been then expressly reserved and noted, and after the trial embodied in a bill of exceptions without unnecessary delay, while the facts were yet fresh in the memory of both the judge and counsel.

The next ground of complaint is, that counsel was not assigned to the accused until the moment of the trial. The judge states that he made the appointment as soon as he was informed that the accused was without counsel. This is all that the law requires. The words of the statute are that the judge “shall immediately upon his (the prisoner’s) request, assign to such person such counsel as such person shall desire.” Bul. & Cur. Digest, 248, sec. 35.

It is further contended, that the judge erred in refusing to postpone the trial, for the purpose of enabling the accused to confer with his counsel, and prepare for his defence. This alleged refusal no where appears upon the record, except in the application for a new trial, where it is stated as one of the grounds on which the motion is based. There is no motion or affidavit for a continuance on that gound, and no exception to such a ruling of the judge.

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


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    Isaac Kohn v. Schooner Renaisance.
    Courts do not notice the revenue laws of foreign countries, and contracts having for their object the violation of those laws may be enforced.
    Judgments of inferior courts will not be reversed for slight errors, when there has been no attempt made to correct them by motion for new trial or otherwise in the court of the first instance.
    APPEAL by defendant from the Fifth District Court of New Orleans. Buchanan, J.

      Upton, for appellee,
    cited Story’s Conflict of Laws, sec. 257.

      Benjamin and Micou, for appellant,
    cited C. C. 12. Story’s Conflict of Laws, sec. 354, 355, and note. Augusta Insurance Company v. Morion, 3 Ann. 417. M’JDowell v. Read, 3 Ann. 331. Richardson v. Leavitt, 1 Ann. 430..
   The judgment of the court (King, J., absent) was pronounced by

Eustis, C. J.

On the 3rd of October 1848, at Tampico, in the Republic of Mexico, the plaintiff, residing in New Orleans, shipped on board the Schooner Renaisance, six bags containing three thousand Mexican dollars, to be delivered in New Orleans, in consideration of two per cent freight. Bills of lading were signed to that effect by the captain. On the arrival of the vessel in this port the specie was demanded according to the contract, and was not delivered. The plaintiff has brought this suit for the amount, against the master and owners, and claims a privilege on the vessel under the section 11 of article 3204 of the code. He had judgment in the district court, and the defendants have appealed.

The question which has been argued before us by the counsel for the defendants, as constituting their defence to the plaintiff’s action, is presented by a bill of exceptions taken on the trial of the cause. The defendants offered to prove that the shipment of specie was made, “ in violation of the revenue laws of Mexico, and in pursuance of an agreement, illegal and corrupt under the revenue laws of that country, between the .shipper and the captain of the schooner, without the knowledge or consent of the consignee, who was regularly authorized to engage freight for said schooner.”

The district judge refused to receive this evidence, on the ground that our courts could not notice or enforce the revenue laws of a foreign country.

We think the rule to be well settled by the jurisprudence of the United States, of England, and of France, that courts do not notice the revenue laws 0f foreign nations in contracts of this kind, and that agreements, having for their object the violation of those laws, maybe enforced in our courts. We prefer to follow what may be considered the established jurisprudence of the leading commercial nations of Christendom, than to adopt the speculations of authors, however plausible and ingenious they may appear.

Pothier, who is the principal authority against this necessary and practical rule, appears to found his reasoning on a refined and rigid morality, rather than on an enlarged view of the state of commerce as it existed in his time, or of its necessary exigencies. There are nations who do not respect their own revenue laws; whose whole commerce is tainted with a violation of them; and the trade with these nations has formed a constituent part of the commerce of the world for more than a century. The subject has been often discussed in France by the most eminent jurists, whose opinions have generally concurred in the necessity of adhering to the established rule, which is one not of speculative morality, but of practical jurisprudence.

There is a show of defence on the ground that the specie was stolen from the schooner in the harbor of Tampico; but even the portion which the defendants themselves concedehas been recovered, some $800, they have not offered to restore to the plaintiff. The case is clearly with the plaintiff on the merits.

It is objected that there is an error in the judgment of the district court of $30, that sum being allowed for freight instead of $60 — two per cent on $3000 —due by the bill of lading. We think the attention of the district judge ought to have been called to this item on a motion for a new trial. We have moi’e than once refused to change judgments and throw the costs on the appellee, where the party had it in his power to have a small error of amount corrected by a proper application in the court of the first instance.

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


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    Widow Conant et al. v. L. Millaudon et al.
    The act; of April 1st; 1835, extending the powers* of the Carrollton Railroad Company and providing a new mode of electing directors, repealed the provisions of the act of 9th of February, 1833, upon the same subject; and the stockholders having voted to reduce the number of directors to eight, under the act of the 22d of August, 1842, that was the number to be elected.
    APPEAL by defendants from the Fifth District Court of New Orleans. Buchanan, J.

      Dennis and D. N. Hennen, for appellees.

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

Eustis, C. J.

The petitioners, who are stockholders of the New Orleans and CariTolIton Rail Road Company, allege that Laurent Millaudon and others, who are made defendants, without having any right or authority, have usurped the office of directors of said company, and taken upon themselves the management and administration of the affairs of said company. On a writ of quo warranto being issued, the defendants claim their right as directors of said company by virtue of an election held under an act of the Legislature of the 9th of February, 1833.

The district judge was of opinion, that the defendants were not legally constituted directors of said company by virtue of said election held under the said act of 1833; inasmuch as the provisions of that act concerning the election of directors had been repealed by the subsequent act of April the 1st, 1835, and gave judgment that they be prohibited from acting thenceforth as directors, and ordering a new election of directors. The defendants have appealed.

Under the act of 1833, which was the charter of the company for the purposes of a rail road, the number of directors was fixed at seven., each share having a vote. The act of 1835, which increased the capital of the company, and conferred on it extensive banking privileges, increased the number of directors to twelve, and changed the scale of voting by limiting the right of a stockholder to one hundred votes. In relation to the scale of voting and the number of directors we think the latter act repealed the former.

By the 11th section of the act of the 7th of March, 1842, it is provided that any bank which shall accept the act, to which this is a supplement, shall be permitted by a vote of its stockholders in all elections held after the passage of the act, to reduce the number of its directors to any number not less than eight.

At a meeting of the stockholders held on the 22d of August, 1842, the stockholders voted to reduce the number of directors to eight. The company having previously accepted the act to which the section just cited referred, to wit, the act to revive the charter of the several banks in the city of New Orleans, it follows that the number of directors established by the act of 1835 stands reduced to eight.

We concur with the district judge in the opinion, that the election for directors ought to have been held under the act of 1835, which affords the only authority to constitute a legal board, and that the election of seven directors as constituting the board of directors under -the act of 1833 was not authorized by law.

The question concerning the reduced number of directors does not appear to have been raised below, but an opinion is expressed at the request of both parties.

The objections taken by counsel to the right of the petitioners to maintain their present demand, we have considered. They are stockholders, having an interest in the proceedings of the corporation being legally conducted, their application does not appear to be vexatious or frivolous, and the present suit is rather in the interest, than to the detriment, of the corporation. It arrests further proceedings under the provisions of an act which long since have ceased to have any legal effect.

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


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    Succession of Margaretha Brinkman.
    The surviving husband has, under the act of 25th of March, 1844, the usufruct of the community property during his life, but this does not entitle him to the administration which belongs to the tutor of the minor ohildren. C. C. 1037, 1114.
    APPEAL by administrator from the Fifth District Court of New Orleans, Buchanan, J.

      Roselius, for appellee.

      Graihle, for appellant.
   The judgment of the court was pronounced by

King, J.

Mrs. Brinkman died leaving a succession consisting exclusively of her share of the community of acquets and gains, to the usufruct of which her surviving husband is entitled, during his life, under the act of 1844, 99, sec. 31. The surviving husband applied for letters of administration, and his application was opposed by the tutor of the minor heirs of the deceased. The opposition was dismissed, and the tutor has appealed.

We think that the district judge erred. The act of 1844, giving the usufruct for life of the community effects to the surviving spouse, has made no change in the previous laws regulating the order of preference, to be observed in the appointment of administrators, when an administration becomes necessary. That such necessity exists in the present instance, must be assumed, as it has been averred in both the application and the opposition. The heirs of the deceaséd, being all minors, are necessarily beneficiary heirs. The code is express, that “ the tutor of the beneficiary heir can claim the preference for the administration.” C. C. arts. 1037, 1114.

The judgment of the district court is therefore reversed; and it is ordered, that Nicholas Tinner be appointed the administrator of the succession of the late Margaretha Brinkman, deceased. The succession paying the costs of both courts.


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    Robert Farr v. John.R. Davis.
    A sequestration in a suit by vendee to recover slaves alleged to have been sold to him, will be set aside upon motion, where it appears from the face of the petition that the vendee has never paid the price, or put the vendor in default, and when the delivery had never been made to the vendee.
    APPEAL by plaintiff from the District Court of Jefferson. Clarke, J. A motion was made in this case in the court of the first instance to set aside a sequestration. The decision of that court was as follows : “The defendant moves to set aside the sequestration issued on several grounds. Among others, that the averments of the affidavit and petition are insufficient. Considering that the plaintiff sues as vendee to recover the possession of slaves sold to him by defendant, and that it appears on the face of his petition that the plaintiff and vendee has never paid the price, nor put the vendor in default; and consequently is not entitled to the possession, delivery having never been made. The court orders that the rule be made absolute, and the sequestration set aside.”

      Goold, for appellant. Larue, for appellee
   The judgment of the court (King, J. absent) was pronounced by

Slidell, J.

For the reasons assigned by the district judge, it is decreed that the judgment of the district court be affirmed, with costs.


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    Maunsel White v. H. H. Slatter.
    Where the seller states in an act for the sale of a slave, that she is and has heea, so far as known to him, in good health, and also her parents before her, and the purchaser agrees to run the risk of her health, and the slave dies of consumption, the seller is not bound to return the price, unless he knew atthetime of the sale of the existence of the disease.
    APPEAL by plaintiff from the Third District Court of New Orleans. Kennedy, J.

      Schmidt and Bradford, for appellant.

      I. T. Preston, for appellee.
   The judgment-of the court (Rost, J. having recused himself) was pronounced by

King, J.

The plaintiff claims in this action the price paid by him for a female slave, who, he alleges, was affected, at the time he purchased her, with a redhibitory disease, of which she subsequently died. The defendant denies that he was aware of the existence of any infirmity at the date of the sale, but that to avoid subsequent controversy upon this point he refused to warrant the slave's health. There was a judgment in favor of the defendant in the court below, and the plaintiff has appealed.

Both parties acted through their agents. The act of sale to the plaintiff, after warranting the title to the slave, proceeds thus: “ The girl is now and has been, so far as known to me, of good health, and also her parents before her; but the said While takes her and runs the risk of her health.”

A few days after the sale the slave sickened, lingered for some time, and finally died of pulmonary consumption — -a disease which the evidence leaves no doubt she laboured under when the plaintiff purchased her.

The plaintiff contends, that the clause in relation to the health of the slave is a warranty of her soundness at the time of the sale. That the qualifying expressions, “ so far as known to me,” relate exclusively to her past health, and to the health of her parents; but that the affirmance that she is now in good health, is positive and unqualified; and concludes that the purchaser took the risk of the future health of the slave, on the positive assurance that she was then in good health. This reading converts the clause into one of full warranty, leaving no risk to be run by the plaintiff other than the law would impose, in the absence of the stipulation, although he expressly assumed the entire risk of her health.

The reasoning of the plaintiff’s counsel, which is based mainly upon the gramatical construction of the sentence, has not satisfied us that this interpretation is in accordance with the intentions of the parties.

The extent to which the vendor intended to warrant, is stated in the first clause, in which he guarantees the title to the girl, and that she is a slave for life. The subsequent clause can only be understood as a declaration that the vendor was ignorant of the existence of any disease at that time, or that the health of the slave had been previously bad. The effect of the declaration is this : if it should be proved that the vendor knew that the slave was unsound, or had not previously enjoyed good health, then he would be bound, by reason of his misrepresentation; but otherwise, the risk would be on the purchaser, and there would be no warranty of soundness.

It 'is said by the plaintiff’s counsel, that “ the construction of the defendant’s agents, contemporaneous with the execution of the instrument, is certainly the best proof of the intention of the parties, and ought to be adopted in case of doubt.”

If we are to consider this as a waiver of his bills of exception, taken on the trial below, to the introduction'in evidence of the conversations of the parties pending the negotiation for the purchase, in order to construe the clause, that evidence accounts satisfactorily for its insertion in its present form ; and to our minds, shows conclusively that the defendant did not intend to warrant the slave’s health. We do not, however, deem it necessary to consider the -parol testimony in this connection. Our conclusions are derived from the instrument itself. It devolved then, upon the plaintiff to shew that the slave was diseased when sold, and that this was known to the defendant or his agent who failed to disclose it. That the defendant’s agent suspected the unsoundness of the slave, we think results from the testimony ; and it remains to enquire whether he communicated his suspicions to the plaintiff.

Much of the testimony taken on the trial of the cause details conversations between the parties prior to the sale, and was objected to on the ground that it went beyond what was contained in the written act, and violated the art. 2256 of the code. We have not considered it admissible under the pleadings in this case to aid in construing the clause relating to warranty; but it is admissible, under the article 2498, to prove the declarations made by the seller to the purchaser, before or at the time of the sale, in relation to latent defects. That testimony shows declarations of the vendors agent, which, when taken in connexion with other circumstances disclosed, must be considered as equivalent to,a notice of the suspicions which the-agent entertained in relation to the slave’s health.

It is shown that- the slave was extremely delicate in her appearance ; was small for her years ; and had at the time the plaintiff’s agent applied to purchase her, a bad cough, of which he was informed. The defendant offered the slave for six hundred dollars, without warranty; but, as she laboured under a bad cold, he asked $800, if required to warrant her health. This was certainly a notice to the plaintiff that although the vendor was ignorant of any fixed disease, and could declare no infirmity save a bad cold, still he considered her of frail constitution, and not of a description to be warranted in respect to health, without a large premium. The admonition was not lost upon Payne, the plaintiff’s agent. He required time to deliberate, took the slave away, avowedly for the purpose of causing her to be examined by a physician, and finally, after the expiration of three days, accepted a sale, with the clause already stated.

The evidence affords no ground for believing that the defendant possessed any information touching the slave’s health which was withheld. She had but recently arrived from Baltimore; had been in the possession of the agent but a few days, and had not been examined by a physician. The suspicions which the agent entertained arose from her appearance and from the cough under which' she labored; and these suspicions were, as we think, communicated by the circumstances to which we have adverted.

Judgment affirmed, with costs.


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    Charles Bouligny v. M. White & Co., and Dewees, Sheriff.
    The appellant is in time if he file the transcript within three days after the return day indicated in the order of appeal.
    In a devolutive appeal, where no inconvenience or injury to the appellee is alleged from the delay, an appeal will not be dismissed on account of the delay in giving the appeal bond, if the bond was filed before the expiration of the three days allowed for filing the record of appeal after the return day had expired.
    Where the sale of a slave seized on execution was enjoined by a third person who claimed the slave as his own, and the sum of one hundred and fifty dollars damages for the wrongful seizure, in determining whether the amount of the controversy is sufficient to give jurisdiction of the case, the value of the slave must be included, and the amount mentioned in the act of sale as the price is evidence of that value.
    Where the sale of property seized on execution is enjoined, the plaintiff in execution must be cited, or the suit will be dismissed.
    APPEAL by defendants from the District Court of Jefferson, Clarke, J.

      T. A. Wolf, for appellee.

      Mo'ise and Randolph, for appellants.
   The judgment of the court was pronounced by

Slidell, J.

The transcript in this case was filed on the 12th May, 1849, which was within three judicial days after the return day named in the order of appeal granted on the 1st May, 1849. On the 14lh May, the three judicial days having not yet expired, the appellee appeared and moved to dismiss the appeal on the following grounds : 1st. The appeal was returnable on the 1st Monday (the 7th) of May, and the appeal bond was only filed on the 10th of May. 2d. The amount in controversy is not sufficient to confer jurisdiction on this court. 3d. The certificate of the clerk is insufficient; the record is defective, not containing all the evidence adduced.

The grounds will be considered in the order in which they have been presented.

1st. It is well settled, that an appellant is in time if he file the transcript within three judicial days after the return day mentioned in the appeal. In a case of devolutive appeal, where the bond was filed only two days before the return day, we refused to dismiss the appeal. As the days of grace allowed to the appellant are practically an extension of the return day, and as the bond here was filed before the expiration of those days of grace, we are not disposed to dismiss the appeal on that ground. It must be observed, that we are now considering the case of a devolutive appeal, and that the ground for dismissal is the mere time of filing the bond, without the suggestion of any other circumstance tending to show either injury or inconvenience to the appellee. He has the right of executing his judgment; for the appeal is devolutive. He has the obligations of the appellants and their surety for the amount; which the court below prescribed in conformity to the requisitions of the law in cases of devolutive appeal; and it is not pretended that the legal effect of this obligation is impaired by the fact that it was not executed at an earlier day. He has, in legal contemplation, lost no time in bringing his cause to a hearing upon appeal; for the appellants had of right three judicial days after the return day for filing the transcript, until which filing this court could not hear the cause, nor even assign a day for its hearing. The appellee, then, presents a case where there is no loss, no delay, no inconvenience.

In concluding that the first ground for dismissal is untenable, we are not to be understood as saying that such a procrastination might not, in concurrence with other circumstances, constitute a legitimate ground for dismissal. A case might occur where, from the tardy filing of the' bond, the citation might be irregular, or wholly wanting, and such inequality or absence of citation might be attributable to the appellant’s own fault and not that of the clerk or sheriff. In such, and other cases that may arise, without now anticipating their decision, we may say that the propriety of sustaining the appeal would at least be very questionable. In the present, no other circumstances are suggested in. aid of the naked objections that the bond was filed after the return day; and to that objection alone our present opinion is directed.

2d. The question of jurisdiction is free from difficulty. The amount in dispute, as presented by the petition, is clearly above the sum of $300. The-plaintiff alleges himself to be the owner of a slave which he holds under a chain of title set forth in the petition. Certified copies of the various deeds of sale were annexed to and made part of the petition. He alleges that he paid the price stated in the deed under which he immediately holds. The price-stated in this deed is $900; and it appears from the other deeds that the slave' had been repeatedly sold at that date. His complaint is, that the slave being his property has been illegally seized upon an execution, against a third person, and that he has suffered damages to'the amount of $150. His prayer is fin-an injunction to restrain the plaintiff and the sheriff from proceeding to a sale of the property; for final judgment quieting him in his title and possession; and for $150 damages. The controversy therefore involved not merely the sum laid as damages, but the ownership and right of possession of a slave, which, for the purposes of the present question, may be fairly presumed to be worth more than $300.

3d. The clerk’s certificate states that the transcript contains all the evidence upon which the cause was tried, except the executions in White & Co. v. Rice, upon which the seizure of the slave was made. If this certificate stood alone it would be defective; but it is followed by a copy of the execution, duly certified by the same clerk as a copy of the writ offered in evidence, and annexed to the transcript. This makes the transcript complete.

Upon the merits, the only point which need be noticed is the objection, that the record shows no citation of Maunsel White & Co., the present appellants, against whom judgment by default was rendered and confirmed in the court below. No service of citation is exhibited by the record, nor was there any appearance by them, prior to their petition of appeal. The objection is fatal.

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


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    Celeste de Lalande v. Petek. L. Jore.
    Where the conduct of the plaintiff has been marked by continued exasperation and violence towards the defendant without any just cause of provocation, the plaintiff cannot obtain a decree of separation from bed and boai-d for defamatory language of the defendant.
    The evil complained of may cease with the reformation of the plaintiff.

      APPEAL by defendant from the District Court of Jefferson. Clarke, J.

      A. Marks, for appellee.

      C. Roselius, for appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action on the part of the wife for a separation from bed and board from her husband, on account of ill treatment and abuse, which, it is alleged, she has for a long time suffered from him. The plaintiff had judgment in the court below, and the defendant has appealed.

The act of the defendant, on which the district judge founded his judgment, and which is mainly relied upon in this court by counsel for its affirmance, is some language grossly defamatory of the wife made use of by the husband in a conversation with a witness, at which no one else was present, and which took place after the institution of the present action.

Conceding for the sake of argument, that this, of itself, would authorize the court in decreeing a ■ separation from' bed and board at the instance of the wife, we think the court erred in separating this fact from the other facts of the case. The conduct of the plaintiff has been unfortunately marked by continued exasperation, and, at times, by violence towards her husband ; for which, according to the evidence, his acts and deportment afforded no ground of provocation. Under such cases we take the jurisprudence of this State to be settled, that the party plaintiff cannot obtain a separation from bed and board. Durand v. Her Husband, 4 Martin, 174. Fleitus’ case, 9 L. R., 421. Tourne’s case, Id. 452. Cooper's case, 10 L. R., 251. See also in the English Ecclesiastical Reports, (Ingraham’s edition of 1831,) Brisco v. Brisco, vol. 2, 294. Waring v. Waring, vol. 4, 523.

If the conduct of the party complaining has been outrageous, the remedy must be first sought in a reformation of conduct and deportment. The evils complained of may cease with the behaviour which has produced them; if they do not, the interference of the law may be justly invoked. Waring v. Waring, 2 Phillmore’s Rep. 132.

A separation of property has also been claimed by the plaintiff; but we infer, from the petition, that it is sought rather as a consequence of the principal demand than as a distinct substantive remedy. The allegations on that branch of the case axe sufficient in the petition to authorize the action of the court upon it; but as the case does not appear to have been prepared with reference to it, except as an incident to the action for a separation from bed and board, or in a manner to enable us to close the whole case by a final judgment, we shall reserve the rights of the plaintiff in relation to a separation of property, without any expression of opinion for or against them.

The judgment of the district court is therefore reversed, and the plaintiff’s demand for a separation of bed and board dismissed, reserving the rights of the plaintiff to claim a separation of property; the plaintiff paying the costs in both courts.


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    John Kohlman v. B. F. Ludwig.
    The "holder of a promissory note received for value in good faith before maturity, cannot be affected by any pretended equities between the drawer and endorser.
    APPEAL by defendant from the District Court of Jefferson, Clarke, J.

      W. L. Stansbury, for appellee.

      T. A. Bartlett for appellant.
   The judgment of the court (Rost, J. absent) was pronounced by

Slidell, J.

The evidence shows that the plaintiff became the holder of the promissory note for value, before maturity, in good faith, and without notice of the pretended equities between the maker and prior endorser. Whether the alleged equities existed or not is, therefore, immaterial.

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


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    Municipality No. One v. George Kirk.
    An ordinance of tbe municipality, prescribing tbe place for landing masts, spars, &c., on the Canal Carondelet, is not upon its face in conflict with the Constitution, nor illegal; tbe power of regulating tbe public ways, and maintaining order and safety thereon, being in tbe municipality.
    APPEAL by the defendant from the Fourth Justice of the Peace of the parish of Orleans.

      Preaux and Morel, for appellee.

      T. W. Collens, for appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal from tlie judgment of the Fourth Justice of the Peace of New Orleans against the defendant for a fine of fifty dollars,for landing a mast on the north east side of the Canal Carondelet.

By an ordinance of the council of the municipality the south west side of the canal between Derbigny and Galvez streets was assigned for the landing of masts, spars, &c., anda penalty is imposed on pex’sons landing them elsewhere.

The defence principally rests upon the paramount right of the Orleans Navigation Company to control the landing along the canal, by virtue of their title to the property.

This right is not established by sufficient evidence. But, as the Navigation Company is not in court, it would not be proper to determine on their rights, except in a suit in which the title could be tested, and to which both corpoi'ations should be made parties.

The ordinance not being in conflict with the Constitution, nor illegal upon its face, the powers of regulating the public ways and maintaining order and safety thereon, being unquestionably in th© municipality,'we cannot disallow it, under the article of the Constitution giving the right of appeal to this court in cases of this kind. The other objections taken to the ordinance we consider not tenable.

The judgment of the justice’s court is therefore affirmed, with costs.


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    William Brown v. Lowe and Pattison.
    Where the defendants had garnisheed the plaintiff in a suit instituted by attachment against a third person, and in answer to the garnishment the plaintiff admitted an indebtedness ; and the defendants insisted upon a stay of judgment until the plaintiff had deposited in court the funds garnisheed in his hands: Held, by tlie court, that these circumstances did not authorize the clogging of the judgment against defendants with any such condition.
    APPEAL by defendants from the Fourth District Court of New Orleans, Strawbridge, J.
    Halsey, for appellee.

      A. N. Ogden, for appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff had judgment in the district court against the defendants for the balance of an account. The latter have appealed, and ask the judgment to be modified so as to protect their interests, which are involved in another suit which is still pending. This latter stxit is instituted by them against Bell & McLay, by attachment, in which the plaintiff in this suit is garnishee. In his answers under the garnishment he admits being indebted to Bell & McLay in the sum of $1,800 ; which exceeds the amount received by him of the defendants and appellants in the present suit.

We are asked to suspend the execution in the jxxdgment appealed from, until the litigation in which the present plaintiff is garnisheed be determined. We concur with the district judge in the opinion, that there was nothing before him which would authorize him to clog the judgment with such a condition. Nor can we require the plaintiff to deposit the fund attached in court, or give security for the amount; the case in which these alternative demands could only be considered not being before us.

The judgment appealed from is therefore affirmed, with costs.


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    Stephen R. Hosmer v. Baer and Fox.
    In a sale of corn for 68 cents per bushel, when prime corn was selling at 75 cents per bushel, the purchaser is not presumed to have inferred from the price paid that the corn was damaged. He paid a sound price for an article of secondary quality; but was entitled to a sound article.
    APPEAL by plaintiff from the Fifth District Court of New Oi'leans. Buchanan, J.

      L. C. Duncan, for appellant.

      J. and H. H. Slraidbridge, for appellees.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff claims the balance of the price of a lot of corn sold to the defendants by his factors, Leland & Mason.

The defendants admit the purchase as alleged, but aver that they purchased the corn as sound, and paid $1,000 on account of it; that after receiving a portion of it, they found the remainder damaged and unfit for use; in consequence of which they called upon Lelancl & Mason to take back the corn not disposed of, and to rescind the sale; and that, on the refusal of these parties to take back the corn, it was sold on their account at public auction. They allege that they sustained $500 damages, which they claim in reconvention. They further aver, that Leland Mason sold the corn as their own, withoxxt disclosing their principals or intimating that they had any. They pray that those parties may be cited, and for judgment against them and the plaintiff in solido.

Leland & Mason and the plaintiff filed a general denial in answer to the claim in reconvention. Leland & Mason further averred that they acted in the sale as the agents of the plaintiff, and sold the corn at a lower rate than the current market value of sound corn; and that the same was sold to the defendant as being damaged and of inferior quality.

The demand of the plaintiff was rejected, and the claim of the defendants in reconventioñ sustained against the plaintiff, alone, to the amount of $167 84. The plaintiff and the defendants have appealed.

The appeal of the defendants was taken by motion in open court. But as they have given no bond to Leland <$• Mason, these parties are not before us, and our enquiries must be confined to the respective claims of the original parties to the suit. So far as they are concerned, we are of opinion that there is no error in the judgment. The only fact adduced by the plaintiff, in support of his allegation that .the corn was sold to the defendants as being damaged and of inferior quality, is, .that he sold it for 68 cents per bushel when prime corn was selling at 75 cents. This may show that the corn was not a prime lot; but the defendants were not to infer from the price paid that it was damaged. They paid a so.und price for a secondary quality, and were entitled to a sound article.

The judgment is therefore affirmed, with costs.


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    Carrollton Railroad Company v. John Winthrop et al.
    Oar laws socave to the public the use of the banks of navigable rivers; and within the limits of incorporated towns, the municipal governments are authorized to regulate that use, and to cause obstructions to be removed; but they have no light to convert the batture formed in front of the property of individuals to private purposes, such as wood yards, saw mills, and the like.
    APPEAL by defendants from the Fifth District Court of New Orleans. Buchanan, J.

      Benjamin and Micou, for appellees.

      L. Peirce and Winthrop, for appellants.
   The judgment of the court (Slidell, J. recused himself, being a stockholder) was pronounced by

Rost, J.

The batture in front of the plaintiffs property within the limits of the town of Carrollton was originally leased by them to the defendants for a wood yard; the defendants after taking possession refused to pay rent; and, when sued, set up in defence that the town of Carrollton had imposed taxes upon their business and passed ordinances regulating it, which amounted to a disturbance, and liberated them from the payment of rent. On that issue there was against them for the rent a judgment to which they submitted. The lease has since been cancelled by mutual consent; but the defendants refuse to surrender the premises, on the ground that they are on a public place over which the plaintiffs have no claim, except that of naked ownership. They further allege that the town of Carrollton, in the exercise of the power vested in that corporation to regulate the use of the banks of the river within its limits, has designated this portion of the batture for wood yards, and has imposed and collected taxes upon their business ; whereby they have acquired the right to retain possession of the batture without any compensation being due to the plaintiffs for its use.

The plaintiffs demand that the defendants be expelled from the property, and compelled to pay the same rent which they paid under the lease.

The judgment of the district court was in conformity with the prayer of their petition, and the defendants appealed.

We have been referred by the counsel for the appellants to the case of Municipality No. Two v. Orleans Cotton Press, as decisive of this controversy. It appears to us that that case does not touch the question at issue. It was there held, that our laws secure to the public the use of the banks of navigable rivers, and that within the limits of incorporated towns, the municipal govern-meat is authorized to regulate that use, and to cause to be removed from it works and constructions which interfere with it. But the regulations they make must be in furtherance of the specific public use to which the banks of rivers are subjected. L. C. 446.

The conversion of a portion of the batture in front of the town of Cai'rollton into a wood yard, is not one of those uses. It is a private destination of property which, so long as it continues, must inure to the benefit of the owner of the soil. If the corporation had the right to establish wood yards, they would have an equal right to establish brick yards and saw mills ; and by refusing to advance the present line of the levee they could enjoy forever, as owners the property of the plaintiffs. The rule laid down in Dennistoun v. John S. Walton, 8 Rob. 211, completely covers this case. See also Nichols v. Byrne, 11 L. R., 172.

The judgment is affirmed, with costs.