text:
    Ira Carpenter v. Charles W. and A. Allen.
    The vendor, the production of whose authorization was promised, without being in default, docs an act equivalent to such production of the original act of authorization, when he produces a ratification of the salo in due form.
    A party’s right does not depend upon the registry of the act of ratification.
    Whenever one of two innocent persons must suffer, the law throws the loss upon him by whoso negligence or fault the damage is occasioned.
    A mortgage is a real right, a jus in re, which, in general, so far as third persons are concerned, can only be created by an observance of the forms of law. Like the sales of real estate, it is necessary that it should be properly recorded. Third persons, without actual notice, are not bound to look beyond the registry', and they may in good faith lawfully acquire from tbe holder of such right, all his interest which appears on the books of the office.
    Appeal from tbe District Court of Point Conpee, Mo Vea, J.

      T. J. cO Won. H. Gooley, for plaintiff.. A. Provosty, for defendants and appellants.
   Merrick, C. J.

A. F. McMurtry, on the 7th of December, 1853, as agent for three others, and guardian for two minors, sold an undivided one-third of four slaves to O. L. Ross, on a credit of twelve months. The price was §1,100, and a note, paraphed by the notary, was given payable to the order of A. F. McMurtry, with a special mortgage on two of the slaves.

The act of sale contained this clause: “The vendor, A. F. McMurtry, appears in this sale as mandatory of Jane C. Moss, Sarah A. Laycoek, and of Emma McMurtry, and as guardian of the minors John McMurtry and Mary Helen McMurtry, and by these presents binds himself to furnish the vendee with his written authorization to make this act within sixty days from its date. ”

The note was transferred before maturity to the plaintiff. Ross subsequently sold the property to the defendants, Charles W. and A. Allen, who are sued in the hypothecary action as third possessors. ~

Neither Ross nor his vendors have been disturbed by any outstanding-title, but McMurtry, instead of producing the written “authorization” to make the act within sixty days, procured (as alleged in the petition) the written ratifications of Jane C. Moss, Emma McMurtry, and Sarah A. Layeock and her husband Dryden Laycock, bearing date in April, 1854. The petition and supplemental petition allege the death of the minors John and Mary Helen McMurtry, and that the parties ratifying are their heirs.

The defendants excepted to the petition on the ground that it did not show that A. F. McMurtry ever complied with the stipulated condition to furnish his written authorization to act as mandatory.

The exception was overruled, and judgment rendered against the defendants on the merits. They appeal.

In regard to the covenant on the part of McMurtry to produce the authorization of his principals in sixty days, it will be observed that it is unaccompanied with either a penalty or condition, and it is not pretended that McMurtry or his principals were put in default. Ross sold the property, and was no longer in a condition himself to tender the same to the vendors, and demand a rescission of his contract; moreover, he executed his note in a negotiable form, and by delivery put the same in circulation. The vendors, the production of whose authorization was promised, without being in default, do an act equivalent to such production of the original act of authorization, when they produce a ratification of the sale in due form. Omnis ratihabitio retrotrahitur et mandato priori acquipiaratur. C. C. 2979, 2252; 2 An. 28; Lex 12, ?¿ 4, Dig. Lib. 46, T. 3. The exception was, therefore, properly overruled.

Some proof has been introduced to show, and it is insisted on here, that Ross was the owner of the slaves when he purchased the one-third interest of the heirs by prescription. It is also contended that the note is due to the heirs of Mrs. McMurtry, and that the plaintiff must have known that it did not belong to McMurtry.

The heirs, we reply, have not complained of McMurtry’s acts. On the contrary, they have ratified them. We perceive nothing in the record impeaching the plaintiff’s good faith in obtaining the note.

The act of mortgage was recorded. Plaintiff’s right does not depend upon the registry of the acts of ratification.

Without deciding the question as to the title of Ross, we shall consider whether the plaintiff can be affected by the supposed equities between Ross and his vendors.

It may be assumed that O. L. Ross, whether he could have pleaded prescription against his co-heirs or not, had the right to grant the mortgage which he did grant, and that neither he nor his vendees have been disturbed, or even threatened by any superior outstanding title.

Had the transferee of the note examined the mortgage, as doubtless he did, he would not have discovered anything which would give rise to a suspicion that the mortgage had not been given in good faith.

The case, therefore, is unlike the case of Schmidt v. Frey, 8 Rob. 435, where the agent who executed the act of sale had no authority to stipulate a mortgage for his own benefit, and where the holder of the note would have been aware of the fact if he had examined the act.

It is also unlike the case of Bowman v. McElroy & Bradford, where a simulated sale, and the notes given as the pretended price, were not permitted to prejudice prior mortgage creditors. 14 An. 587.

In the above cases, the right of the mortgagor to create the incumbrance to the prejudice of other and anterior rights was denied, and, at most, those cases only affirm the doctrine that a mortgage executed by one having no right to make the same, does not acquire any additional force from the fact -that it is transferred to an innocent third person. It rests upon the well settled principle, that one cannot create any valid right upon the thing of another.

Buff the case at bar presents this question, viz., whether a person, who finds a mortgage duly recorded, which has been executed by one having lawful autliority to make the same, may acquire, for a full price ancl in good faitli, such mortgage, notwithstanding secret equities may exist between the original parties to the instrument. We think the question ought to be answered in the affirmative, for two reasons, viz:

1. Whenever one of two innocent persons must suffer, the law throws the loss upon him by whose negligence or fault the damage is occasioned; and it is manifest that if Boss had not executed the mortgage, the plaintiff would not have parted with his money on the faith of that security.

2. A mortgage is a real right, a jus in re, which, in general, so far as third persons are concerned, 'can only be created by an observance of the forms of law. Like, the sales of real estate, it is necessary that it should be properly recorded. The registry of mortgages then becomes, so far as third persons are concerned, the evidence of the mortgage; and as such registry is for their protection, third persons, without actual notice, are not bound to look beyond the registry; and they may in good faith lawfully acquire from the holder of such right all his interest which appears upon the books of the. office. This may be illustrated by reference to the doctrine of sales. A. makes a fraudulent or simulated sale of his property to B., and the, sale is recorded, and a counter letter, unrecorded, is also reserved. C., observing upon the registry an apparently valid title in B., purchases the property in good faith, and for a fair price. Neither A. nor B. nor their creditors, can disturb C. in his possession. Why? Because C., in examining the records, used all the diligence required by the law; and having acquired a legal title (that is, a title acquired according to the prescribed forms of law) cannot be deprived of his property by any secret equity existing between A. and B., inasmuch as his equity is at least equal to that of B., and he is fortified also by the legal title.

Now, a mortgage, which is a right upon real estate and slaves, created by observing the forms of law, stands in the same situation as the title to the same property, except that the forms prescribed for its transfer are different. But, as already said, in order to ascertain its validity, the registry of mortgages is to be examined. A party, then, who wishes to acquire a mortgage, examines the registry, and he finds that the mortgage is in form regular and legal, and made by one having power to create the incumbrance. Why should he not be permitted to purchase it in good faith, as he might have done the right of property in the example just given? If he may, then he can lawfully acquire it in any of the forms of law; by notarial act, by private act, by indorsement,, or simple delivery of the note which carries with it the accessory obligation. C. C. 2436, 2616.

When he has 'thus acquired a mortgage executed by the owner in the forms prescribed by law, by a transfer also made in one of the modes prescribed by law, he becomes invested with a legal right, and precisely the same question is presented a§ in the other case, viz., Shall a secret equity, existing between other parties, defeat this legal title? Aside from the force our law gives to the legal right, we may borrow a reply from another system of laws, viz., the equities between the parties being equal, the legal title must prevail.

It is therefore ordered, adjudged and decreed by the Court, that the judgment of the lower court be affirmed, with costs.


source: Caselaw Access Project

author: Mebeiok, C. J.

license: Public Domain

text:
    Samuel Templeton v. D. L. Morgan, Collector.
    Sworn public officers not charged with, fraud must be supposed, until the contrary be shown by cogent proof, that they have properly exercised the discretion vested in them by law.
    Where a levee is erected for the benefit of and by the plaintiff himself, and of no peculiar benefit to the general plan by which the whole district was to be protected — Held: That there is nog round for a recovery against the Board of Levee Commissioners in the shape of compensation. Casualties arising from the partial failure of the levees at any point, cannot have the eifectof releasing the land owner ‘from the payment of the levee tax.
    A collector of levee tax is a public officer whom the District Judge is bound to know the identity of, and his signature. He acts as such without any pecuniary interest to disqua’ify him from the trust.
    In the absence of any special provision of law as to the maimer in which the levee-tax Collector should make the sales of the property of delinquent tax payors, recourse must be had to other laws in pari molería.

    Appeal from the District Court of the Parish of Carroll, Mirrar, J.

      W. &. Wyley é G. A. DeM-cmee, for plaintiff. Hugh Short, for defendant.
   Mebeiok, C. J.

This suit was commenced in the Parish of Carroll by injunction. It was brought to restrain the collector of the leyee tax from selling the land of the plaintiff to pay the sum of $1550 77, and eight per cent, interest thereon from the 22d day of October, 1859, assessed by the Board of Levee Commissioners for the district of levees composed of the parishes of Madison and Carroll.

The defendant was proceeding as tax collector under an order of seizure and sale, signed by the judge of the tenth judicial district, dated January 28th, 1860, when arrested by the injunction. On the trial of the injunction the same was dissolved and the plaintiff appeals.

The plaintiff contends in this Court for the following grounds of reversal of the judgment of the lower court, viz:

1st. That the plaintiff is entitled to compensate the assessment by the debt of $2000, which the Levee Commissioners owe him for work done by him in 1858 upon the Bayou Ma<jon levees; necessity of said work being-occasioned by the neglect of the Board of Levee Commissioners.

2d. That said Board of Levee Commissioners, if not bound to indemnify the plaintiff for money expended to supply their neglect and save the levees from being washed away, and thereby causing immense injury to himself and all the Bayou Macjon country, should not be permitted to collect taxes from the owners of lands thus exposed to innundation on said bayou.

3d. That the order of seizure and sale issued improperly, there being-no authentic evidence of the assessment, of the demand, of the return and of the identity of the applicant as the collector.

4th. That said order of seizure and sale is a nullity on its face, because directed to David L. Morgan who is nothing but the agent of one of the parties interested.

5th. That the order of seizure and sale was a judicial decree and slioidd have been filed in the clerk’s office, where all the judicial records are kept; and it cotdd not be enforced unless attested with the signature of the clerk and the seal of the court.

As the defendant prays for judgment in reconvention in the event the injunction is sustained, it will be proper to consider the questions thus presented in tlieir order.

I. On the first ground, it is admitted that the Board of Levee Commissioners built the levees in 1853 upon Bayou Maijon to protect the neighborhood of the plaintiff from overflows of said bayou by the waters from Arkansas, and that since that time the Board has not appointed inspectors of levees or done any repairing to the levees in said section. It is further admitted that during the year 1858 the plaintiff did work upon the levees on Bayou Matron and a cross levee, to the amount in cost of $2000; but this work was not done by a call of injectors or under a contract made by the Board.

The law has vested the Board of Levee Commissioners with the power to lay off a system of levees for the district submitted to their jurisdiction.

These officers are sworn as public officers for the discharge of their duties. They are not charged by plaintiff with fraud, and it must be supposed, until the contrary be shown by cogent proof, that they have properly exercised the discretion vested in them by law. As they did not appoint a levee inspector for Bayou Ma<¿on, and did not authorize the plaintiff to do the work for which he seeks to charge them, it must be presumed that the levee on Bayou Ma^on was excluded from'the system of levees adopted by them; and that the work done by the plaintiff was for his own temporarybenefit, and of no peculiar advantage to the general plan by which the whole district was to be protected. Hence there is no ground for a recovery against the Board of Levee Commissioners; and as a consquence, for the plea of compensation set up in the petition for the injunction. See the case of West Baton Rouge v. Bozman, 11 An. 95. See Act of the Legislature of 1852, p. 236, sec. 16, 17, 18, 19 and 20. Also same Act, p. 335, sec. 8. Act of 1853, p. 45, sec. 12.

H. Casualties arising from the partial failure of the levees at any point in the district, cannot have the effect of releasing the land owner from the payment of the levee tax. There is then the greater necessity for its payment in order that the levees may be made more secure for the future.

III. When the District Judge granted the order of seizure and sale he appears to have had before him a copy of the ordinance of the Board of Levee Commissioners determining the rate of assessment, an extract from the levee tax as extended by the recorder, and the return of the tax collector showing a demand made upon the plaintiff and that the tax had not been paid. This is all that the law requires; and upon this showing, the judge had before him the “authentic ” evidence prescribed by the Act of 1859. See p. 30, section 3; also, see the case of Board, of Levee Commissioners v. Henry Marks, decided last year.

The District Judge was bound to know tiie identity of the person, and signature of the levee tax collector, he being an officer appointed by law. See same case.

TV. David L. Morgan was the lawfully appointed collector of the levee tax. He was therefore acting as a public officer without any pecuniary .interest to disqualify him from the trust assumed by him. It is true that he is the agent of the Board of Levee Commissioners; but they form a political corporation established for public purposes, and it could with equal propriety be objected against the Sheriff or other public tax collector when collecting the State tax, that he was the agent of the State, an interested party. It cannot require a serious argument to prove that such agency does not disqualify the collector.

V. The fifth ground seems to be well taken. The petition and order of seizure and sale ought to have been filed in the clerk’s office of the parish.

The District Judge is provided by law -with a clerk to register and preserve the decrees of his court. As a general rule this officer is the proper custodian of all documents and papers referring to any judicial proceeding pending or brought before the District Judge. If any interlocutory or summary order be .obtained from the District Judge, it is upon the supposition that it will be immediately filed with the clerk in order that it may have its effect. This being the general rule, it is to be seen if the order of seizure and sale, in relation to the levee tax, can be considered as an exception to the same. We are cited by defendant’s counsel to the ease of the Union Tow Boat Co. v. Bordelon, 7 An. 192, to show that the process for the collection of taxes should be summary and that this principle applies with great force to the collection of taxes intended for the protection of the inhabitants from annual overflows by high water.

Doubtless the Legislature might have made this proceeding an exception to the general rule, that judicial proceedings in the District Court must be filed with the clerk, had it seen fit so to declare. But we have not been pointed to any express provision on the subject. On the contrary, we find that the Act of 1859 provides in general terms: that the District Judge shall (in the given case) “grant an order of- seizure and “ sale against the property specified in the assessment roll.” What is an order of seizure and sale, is not left to conjecture, but is defined by the Code of Practice.

Again, the Act of 1858, p. 129, sec. 3, on the same subject matter, and to which the Act of 1859 is an amendment, is still more explicit — it says: the tax imposed shall bo a first lien and privilege upon the land subject to the same, and that it shall be the duty of the collector of the levee tax to sue out an order of seimre and sale, as in case of mortgage, in all eases where the levee tax has not been paid.” The proceedings in an order of seizure and sale in case of a mortgage are to be filed with the clerk. C. P. 176, 734, 736; Board of Levee Commissioners v. Henry Marks, Opinion Book 33, p. 14. Daniel L. Morgan, the collector of the levee tax, was not therefore the proper custodian of the petition for the order of seizure and sale and of the documents annexed, together with the judge’s decree thereon, and the proceeding was irregular.

VI. The point is also made in plaintiff’s brief, that the proceeding of the tax collector was also illegal in this, that he had advertised plaintiff’s land for sale, to take place at the office of the Board of Levee Oommis-sioners at the town of Providence, and not at the court house; and that said sale was advertised for a day not usual in forced alienations.

On the other side it is shown that the court house is on the west side of the bayou Ma§on hills, and out of the levee district subject to the jurisdiction of the Board of Levee Oommissioners.

In the absence'of any special provision of law as to the manner in which the levee tax collector should make the sales of the property of delinquent tax payers, we must have recourse to other laws in pari materia. The Act of 1855, section 55, makes it the duty of the collector of the State taxes, to seize the goods, personal property, rights and credits of delinquent tax payers, and expose the same at public auction after due notice given, “ as in case of Sheriff’s sales.” Phillips’ Dig. 471.

The Sheriff’s sales are to be made at the court house of the parish, or some other place in the vicinity of the cotrrt house, saving the defendant’s right to have his plantation and slaves, or either, offered for sale at his domicil, upon his giving notice to the proper officers within three days after notice of seizure. Phillips’ Dig. 528.

It therefore seems that the sale ought to have been advertised to take place at the court house. As the tax collector is charged by law with the execution of the decree for the sale of the land, there can be no doubt that he has the right to go to the place appointed for such sale in his parish, although beyond the district of levees within which the lands are subject to the levee tax, in order to make such sale; and we think the sale should be advertised for the first Saturday of the month, as in ease of Sheriff’s sales.

This brings us to the consideration of the reoonventional demand. Were the Act of 10th of March, 1859, authorizing the Board of Levee Oom-missioners to borrow money upon their bonds, unconstitutional, as contended by plaintiff, it would not benefit his case, because there would still exist the same debts in other forms to be provided against by taxation. But this act does not appear to us to confer banking privileges ubon the Board of Levee Oommissioners, and we see nothing’in it in conflict with articles 118, 119 and 123 of the Constitution, cited by appellant.

The evidence shows that the Board of Levee Oommissioners is entitled to judgment for the sum claimed in reconvention. Indeed the plaintiff’s plea in compensation virtually admits the same.

It is therefore ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and it is now here ordered, adjudged and decreed, that the defendant, Daniel L. Morgan, collector of the levee tax, be perpetually enjoined from selling the said lands, seized under said order of seizure and sale, at the office of the Board of Levee Commissioners at said town of Providence in said parish of Carroll; and it is further ordered, adjudged and decreed by the Court, that said Board of Levee Commissioners, the defendant herein, do have and recover judgment upon its reoonventional demand against the plaintiff, Samuel Templeton, for the sum of thirteen hundred and thirty-three 44-100 dollars for the general levee tax for the year 1859, and for the further sum of two hundred and thirteen 33-100 dollars special loan tax, with interest on each of said sums at the rate of eight per cent, per annum, from the 22d day of October, 1859, until paid; and it is further ordered, adjudged and decreed by the Court, that said debts and interest operate as a first lien and privilege upon all the lands of said plaintiff within said levee district in the Parish of Carroll from said 22d day of October, 1859; .andit.is further ordered, adjudged and decree d by the Court, that it be r,pf e¡rred to the said Daniel L. Morgan, collector of the levee tax, or his ^'succe^sor-n^office, to sell said lands, or so much thereof as may bo needed to p£& said cT-febts, interest and costs hereafter mentioned, without the .benfeftt of ^appraisement, and according to the third section of the Act of March.l2Üi,jA. D. 1859 entitled “An Act to amend an Act entitled, an Act to amend an Act forming a district composed of the parishes of Car^roll, Madison, Catahoula, for the better protection of the same from in-nundation, approved the eighteenth of March, eighteen hundred and fifty-eight, ” and also in other respects according to law;' and it is further ordered, adjudged and decreed by the Court, that the defendant, the Board of Levee Commissioners, pay the costs of the incidental demand of injunction, and the costs of this appeal; and that the other costs of the lower court be borne by the plaintiff, and paid out of the proceeds of the lands to be sold.

Land, J.; absent.


author: Buchanan, J.

text:
    Joseph Xavier Cantrelle v. Poman Catholic Congregation of St. James.
    The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same ; the demand must be founded on the same cause of action ; the demand must be between the same parties and formed by them against each other in the same quality.
    There may be different kinds of rights to estates : 1st, a full and entire property ; 2d, a right to the mere use and enjoyment; 3d, a right to certain services due upon the estate.
    Appeal from the Dist. Court of the Parish of St. James, MoVea, J.

    . JH. Legendre, for plaintiff and appellant. J. II. llsley, for defendant.
   Buchanan, J.

Plaintiff claimed in a former suit against the same defendant “to be declared and recognized as the lawful owner of two pews” in the church of St. James. The title set up' by him in said suit, was a resolution of the Church Wardens, dated the 2d September, 1819. By judgment of tlie District Court, affirmed on appeal to this Court, the said suit was dismissed.

Subsequently to said judgment of dismissal, plaintiff brought the present action; in which he claims “to be declared and recognized as entitled during his natural life to the use of said two pews, and that said President and Wardens be condemned to restore petitioner to the free and undisturbed usé of said two pews. ”

The title pleaded in the petition is a resolution of the Church Wardens, of the 11th April 1843.

Defendants plead the exception of res judicata founded upon the judgment in the former action.

We think that the exception is not well taken. The thing demanded in the two actions is not the same. C. C. 2265. The ownership of the pews is claimed in the onp case: the use only of those pews is claimed in the other case. These are two distinct rights or estates, as classified and defined in our Code, Arts. 479, 480, and 621. And if, as required by 'the counsel of defendants, we look into the record to ascertain what’’was1, the real object of the demand, without regard to the name which tlie plaintiff has chosen to give it, we find that the plaintiff has not referyed-to the same source of title in the two cases; but to two distinct actspdiffering'ih terms, and separated by a long interval of time. .....

It is therefore adjudged and decreed, that the judgment of'the District Court be reversed, and the exception of res judicata is hereby'.overruled'. It is further decreed that the cause be remanded to the District" Cototb.to-'' be proceeded in according to law; and that defendant and appellee pay costs of this appeal.


text:
    John Perkins v. Samuel Bard and George G. Wilson.
    Iii order to bind tlio surety on an appeal bond, it is nccessaey to require the creditor to point out property on the neglect or refusal of the debtor to do so. The demand on both parties is essential.
    The loss of the obligation sued upon must be proven before secondary evidence can be received of its import.
    Appeal from the District Court of the Parish of Carroll. Farrar, J.

      W. G-. TTryley and O. G. Briscoe, for plaintiff. J. W. Montgomery and Louis Selby, for defendants and appellants.
   Buchanan, J.

This is a rule against a surety on an appeal bond, to render him liable for the amount of the judgment against his principal.

The following is the return of the Sheriff upon the fi. fa. against the principal in the bond:

“ Beceived this fi. fa. on the 25th June 1860, and on the 26th of the same month and year, I demanded the amount of debt, interest and costs as herein specified from the defendant Samuel Bard in person, at his residence in the parish of Ouachita, Louisiana, when he refused to pay the same; and I hereby certify that Samuel Bard has no property real or personal, nor rights or credits to my knowledge'within this parish, by which I could cause to be made the debt and interest and costs as within specified, or any part thereof, as by the within writ commanded; — that I applied to the said Samuel Bard, who pointed out no property} — wherefore I return this writ. ”

This return is not sufficient to fix the liability of the surety on the appeal bond. Article 727 of the Code of Practice requires that the Sheriff demand of the judgment creditor, — to point out property, on the neglect or refusal of the debtor to do so. The demand of both parties has been held essential to fix the surety on the appeal bond, by this court, in the cases of Lynch v. Burr, 10th Rob. 136, and Gayoso v. Hickey, 4 La. 301. See also Gray v. Andrews, 8th An., p. 141.

The original appeal bond has probably been lost, although no proof of that fact is in the record. On the trial of the rule, a copy of the bond, taken from the transcript in this court, was given in evidence. To this evidence the surety objected, on the ground that it was but the copy of a cojiy, and that the original should have been produced. This objection being overruled, the surety reserved his bill of exceptions.

This bill of exceptions was well taken. The loss of the bond should have been proved before giving secondary evidence of the obligation sued upon.

It is therefore adjudged and decreed, that the judgment of the Court below be reversed; and that there be judgment upon the rule in favor of the appellant Wilson, as in case of nonsuit; plaintiff and appellee to pay costs.

Land, J., absent.


author: Voorhies, J.

text:
    The State v. Hermogene Perry.
    The threats of a third person must not he allowed to militate against a prisoner, and when they do not constitute part of the res gestee are inadmissible in evidence to criminate the prisoner, and more especially in cases of murder, to prove on his part premeditated malice.
    A conspirator is not a third person, and vice versa.

    Appeal from the First District Court of New Orleans, Hunt, J.

      T>. Augustin and Graille, for defendant and appellant. T. J. Semines,

    Attorney General, for the State.
   Voorhies, J.

The prisoner was sentenced to death upon the unqualified verdict of murder, returned by the jury. He asks a reversal of this judgment upon grounds set forth in his bill of exceptions taken during the progress of the trial to rulings of the District Judge.

The burden of the complaint is, that threats of a third person were allowed, on the trial below, to militate against the accused. It is obvious, and upon this point the authorities are clear, that such’threats, when they do not constitute part of the res gestee,- are inadmissible in evidence to criminate the prisoner, and more especially, in a case of murder, to prove on his part premeditated malice. Such a conclusion would naturally follow, had the threats proceeded from the prisoner himself; but assuredly no such inference could be drawn from similar conduct on the part of another person not indicted as a partíeeps criminis, nor mentioned as such anywhere in the record. State v. Hogan, 3 An. 714; Greenleaf Evidence, vol. I, § 111.

It matters not whether the declarations oí other persons are elicited by the prisoner’s cross-interrogatories. These declarations, once in evidence, are entitled to no more effect than such as is recognized by law; and cannot be allowed to show malice on the part of the prisoner. They may militate against the latter only in case both he and such other persons were participators in the guilty enterprise, and when such declarations were in furtherance of the illegal combination. The rule applies to conspirators; and it is pointless as regards the acts and declarations of third persons. A conspirator is not a third person, and vice versa: hence the difference in applying the rule.

MacNally says: “The existence of a conspiracy being proved, the act of any one man engaged in such conspiracy, though not on his trial, is evidence to criminate those with whom he co-operated. But the declarations of a person unconnected with the defendant on trial, except as he may at particular occasions be in his company, cannot in any case be received in evidence.” Chap. 22, Rule 2d, on Evid.

It is therefore ordered and decreed, that the judgment of the District Court on the verdict of the jury be set aside and annulled; and that this cause be remanded for a new trial according to law.

Mebbiok, C, J., took no part in this decision.


author: Mebbiok, C. J. . Voorhies, J. Merrick, C. J.

text:
    William E. Kennedy v. Joseph S. Bossiere,—and Joseph Bossiere and Wife v. Kennedy and the Sheriff.
    A witness must not be interested, either directly or indirectly, in the cause.
    Tho presumption of law established by Art. 2372 0. 0. is, that every debt contracted during the existence of the marriage is a debt of the community.
    When a debt is created during the existence of the community or marriage by tho joint action of the husband and wife, purporting to be on her account, it must be presumed to be either a debt of her separate estate, or a debt of the husband and the community.
    If the contract is not that of the wife, it is that of the husband. The burden of proof is on the plaintiff to show that it is that of the wife.
    A plea of coverture is personal to the wife, and does not relieve the surety, who, in this respect, may be bound beyond his principal.
    The surety is discharged, when, by the act of the creditor, the subrogation to his rights, mortgages, and privileges, can no longer be operated in favor of the surety.

      On a re-hearing: — Where husband and wife were separate in property — Held: That a contract made by tho former cannot be charged to him as due by the community; nor can he bo bound individually, unless he has made it his own debt, or unless it was, in point of fact, his own contract.
    The burden of proof falls upon the husband, when he pleads want or failure of consideration against his own contracts ; but this rule has no application when the contract of his wife, separate in property, is opposed to him.
    Appeal from the District Court of St. Tammany, Wilson, J.

      Kennedy & Miles and A. N. Ogden, for plaintiff and appellant. Simonds <& Fenner, for defendant.
   Mebbiok, C. J. .

On the 29th of April, 1853, Frances Ann Thompson, tlie wife of Joseph S. Bossiere, separate in property from her husband, by judgment, made a promissory note in her individual name, payable to the order of 'William Christy, five years after date, for $7,862 46, with eight per cent, interest thereon from date.

The husband authorized her to sign the note. On the same clay the wife, authorized by her husband, executed a mortgage on certain property owned by her, in favor of the payee of the note, to secure the payment thereof. In the act of mortgage, the consideration of the notéis acknowledged by a recital, that whereas the said William Christy, of the city of New Orleans, had advanced to her, the said appearer, sums of money to enable her to erect a saw-mill in the said Parish of St. Tammany, to repair another mill and for other purposes, amounting in all to that date, with interest at the rate of eight per cent, per annum, to the sum of seven thousand eight hundred and sixty-two 46-100, for which sum she had given him, said Christy, her promissory note, drawn, &c.

In the same act, Joseph S. Bossiere, the husband, intervened, and as a further security for the payment of flio note and interest, mortgaged certain lands acquired in his name from the Government of the United States.

The note was put in circulation by William Christy, and acquired by the present holder before maturity, for value. He holds it now for the benefit and use of Mrs. J. M. Kennedy and. the succession of H. B. Cenas, deceased.

Christy released a portion of the property mortgaged by the wife.

The note not having been paid at maturity, the holder took a notarial subrogation from Christy, and obtained an order of seizure and sale of the property of the husband, Joseph S. Bossiere; not of that belonging to the wife.

Bossiere and wife sued out an injunction, and subsequently the whole proceedings were changed into the via ordinaria, the original petition for an injunction standing as an answer, by the consolidation of the proceedings.

The defendants deny that any consideration was given for said promissory note, except the sum of five hundred dollars and interest, and deny that the same inured to the benefit of said Prances Ann Bossiere for any further sum.. They aver that the note was acquired by the payee through fraud, and under the false representation that he wanted the saíne for the use and benefit of Mrs. Bossiere, and to raise money for her to be applied to a debt due Snow, Gliddon & Co. The defendant Bossiere alleges that as surety for his wife for any amount due upon the note, he has been discharged from all liability by the release of the mortgage by Christy on the ■wife’s property, and the consequent inability of the holder of the note to subrogate him to the said mortgage.

T. O. Starke, a junior mortgage creditor, intervenes and contests the validity of plaintiff’s mortgage.

The executrix of H. B. Cenas has made herself a party, and claims an interest in the note on account of the estate of said Cenas.

Bossiere, the defendant, having died during the pendency of the suit, his widow, Mrs. Bossiere, has also made herself a party, in the capacity of administratrix of his succession.

The District Judge, notwithstanding the confession of the defendants in the pleadings, of the indebtedness in the sum of five hundred dollars on the note, perpetuated the injunction, and condemned the plaintiff to pay the costs. The plaintiff, and the two parties for whose use the suit is brought, appeal.

' T. O. Starke, without appealing, prays for an amendment of the judgment in this Court in his favor.

William Christy was examined on his voir dire as a witness. He stated that he claimed whatever sum over a certain amount was realized oh the note. His testimony was, on the trial, received in favor of the plaintiff, and a bill of exception was reserved by defendant, but subsequently, in making up the decree, the testimony was properly disregarded on account of his interest in the matter in controversy. C. C. 2260.

The defendants rely, in substance, on the following propositions (which they affirm) for the maintenance of the decreé of the lower court:

I. The note was given by a married woman and the burden of proof rested upon the plaintiff to show that the consideration inured to the benefit of her separate estate.'

II. The husband was only surety for the wife, and therefore could not be bound for any sum for which she was not bound.

These two propositions may be considered together.

The reason of the rule of our law, which throws the burden of proof on the party holding the obligation of a married woman to show that the consideration is a benefit to her separate estate, lies in the jealousy of the law to the marital power, which it supposes may be used to the detriment of the wife’s estate and the advancement of the community or the interests of the husband.

The presumption of law, established by Art. 2872 C. C., is that every debt contracted during the existence of the marriage is a debt of the community. Now, as th.e husband is the head and master of the community, and as the wife is supposed to be under the influence_ of the husband, the reason of the rule lias force where the estate of the wife is sought to be made responsible, but it ceases when the attempt is to hold the community responsible. When, therefore, a debt is contracted during the existence of the community or marriage, by the joint action of the husband and wife, purporting to be on her account, it must be presumed to be either a debt of her separate estate or a debt of the husband and the community. If it is a debt of her separate estate, she is bound by the terms of her contract. If it be not such debt, then the husband, who is the head and master of the community, having power to bind it, has assented to the contract by authorizing it to be made, and he is "bound when sued upon the same, (the wife’s liability having been denied by him) to show that there was no consideration for the contract. Having given currency to the obligation by his authorization, which turns out to be no debt of tbe wife, be is estopped from denying that it is a debt of the community; and if he put at issue the consideration of such obligation, which is repudiated by the wife, he must prove such defence.

He is not, as remarked by Toullier, in the position of a tutor, who administering for the benefit of the minor, has acknowledged a debt, for' such tutor is in no situation to derive advantage from the - consent which has been given. But with the husband, if the contract which he has authorized his wife to make, does’not turn out to be for the benefit of her estate, its advantages will belong of necessity to the husband or the community which he administers. How then can his simple denial of a nominal debt of the wife, which he has guaranteed by the hypothecation of-his property, put the creditor upon proof of the consideration? If it be not a contract of the wife, it is his own contract. See Adams v. Cuny, 15 An. 485. Moreover, the plea of coverture set up by the defendant is personal to the wife, and does not relieve the surety, who in this respect may be bound beyond his principal. C. C. 3005, 2982, 3029.

As it respects the release of the mortgage on certain portion of the property of the wife, we think the relationship of the defendant, Bossiere, to the debt, and his denial of his wife’s liability, will prevent his admin-istratrix from claiming a discharge joro tanto on account of inability to subrogate the estate of the husband to the mortgage against all the property of the wife mentioned therein. As 'the case now stands the debt, except for $500 and interest, appears to be rather a debt of the husband than the wife, and consequently his estate cannot be prejudiced for want of a subrogation. C.- C. 3030.

The intervention of T. O. Stark ought to be dismissed.

It is therefore ordered, adjudged and decreed by the Court, that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed by the Court, that the mortgaged property belonging to the succession of Joseph S. Bossiere, deceased, described in the plaintiff’s petition, be seized and sold according to law, to pay to the plaintiff, Kennedy, for the use aforesaid, the said promissory note for the sum of seven thousand eight hundred and sixty-two dollars and fifty-five cents, with eight peí cent, interest thereon, from the 29th day of April, A. D. 1853, until paid, and costs of copies and costs of suit; and it is further ordered, that the demand of said T. O. Stark, contained in his intervention, be dismissed at his costs; and it is further ordered, that the injunction be dissolved- and the demand of said Frances Ann Bossiere, for the cancellation of said mortgage, be dismissed as in case of non-suit, it being understood that the claim of the plaintiff against her individually, for the use aforesaid, if any such they have, is not in controversy in this suit; and it is further ordered, that said succession of said Joseph S. Bossiere and said Frances Ann Bossiere pay the costs of both courts.

Same Case — ON a Re-hearing.

Voorhies, J.

Upon a careful reconsideration of this case, we have concluded to set aside our former decree, and reverse the judgment of the District Court.

The plaintiff sues on a note signed by Mrs. Bossiere as debtor, with her husband’s authorization, and secured by mortgage on property belonging to both spouses.

The husband, upon the face of the papers, is neither a principal debtor, nor the_ surety of his wife.

As between the creditor and the wife, it is obvious that it behooves the former to prove the consideration of the note. This he has failed to do; but on the other hand, the wife admits,. in her pleadings, that for the sum of $500 there is a sufficient consideration.

As regards the husband, it must be premised that it is not his contract, and that, at its date, he and his wife were separate in property. As a consequence, the debt cannot be charged to him as due by the community. C. C. 2372, 2404. Nor can he be bound individually, unless he has made it his own debt, or unless it was, in point of fact, his own contract. But either hypothesis is repelled by the facts before us. Not only did the wife contract in her own name, but the act of mortgage specifies in what respects the debt will enure to her benefit.

The burden of proof falls upon the husband, when he pleads want or failure of consideration against his own contracts; but this rule has no application when the contract of his wife, separate in property, is opposed to him.

It is, therefore, ordered and adjudged, that our • former decree be set aside; that the judgment of the District Court be avoided and reversed; that the plaintiff do have judgment against Mrs. Frances Ann Bossiere for the sum of five hundred dollars, with eight per cent, per annum interest thereon, from the 29th day of April, A. D. 1853, till paid; that the property mortgaged by her, and also the property mortgaged by her (since deceased) husband be sold according to law to pay said amount, with costs; and that, in other respects, there be judgment in favor of the estate of Joseph S. Bossiere, deceased.

It is further ordered and decreed, that the appellees pay the costs of appeal.

Merrick, C. J.

concurring. Although I have some doubts on the question of law in this case, I do not wish to dissent. There is great equity in the case as presented by the defendant.

Land, J., absent.


author: Land, J.

text:
    John L. Ludeling v. Nathan Vester, Administrator.
    The location of an Internal Improvement warrant, under the Act of Congress of the 4th September, 1841, on Jand to which a valid pre-emption right existed, is void and cannot be rendered valid by a subsequent approval of the land to the State. Priority of right gives priority of, title, in contests oí this kind.
    Appeal from tlie District Court of Morehouse, Richardson, J.

      Ludelmg and Slade, for plaintiff. S. G. Parson, for defendant.
   Land, J.

This is a petitory action for the recovery of a tract of land situate within the Bastrop grant, in the Parish of Morehouse. The plaintiff claims title by virtue of the location of an Internal Improvement warrant by his vendor, Dareas Dinkgrave; by the selection of the land for the State under the Act of Congress of the United States, of the 4th of September, 1841, donating lands to Louisiana and other States for purposes of Internal Improvement; by virtue of the approval of the selection by the Secretary of the Interior of the United States ; and finally by virtue of a patent issued by the Governor of the State to him as assignee of Dareas Dinkgrave. The defendant claims title as administrator and heir of Wiley J. Vester, deceased, under the Act of Congress of the United States of the 2d of March, 1851, granting preemption rights to bom fide settlers and house-keepers within the Bastrop grant; and by virtue of a patent issued by the United States Government to the heirs of Wiley J. Vester, the preemptor, on the 7th day of December, 1849.

The location of the warrant; the selection under the Act of Congress by the State; the approval of the selection by the Secretary of the Interior, and the patent by the Governor of the State, were all prior m date to the final decision on the preemption claim of Wiley J. Vester, and to the issue of the intent to his heirs by the United States Government.

The priority of title exhibited by the plaintiff, gives rise to the principal question in the case for our decision. The plaintiff contends that the approval of the selection of the land was equivalent to a patent, and not only divested the United States of title, but of all jurisdiction over the question of title; and that the decision of the Secretary of the Interior, after such approval, rejecting the location made by Dareas Dinkgrave, and confirming the preemption claim of Wiley J. Vester, was without authority, contrary to law, null and void.

The facts bearing upon this question are as follows: On the 9th of October, 1855, Vester filed his declaratory notice, that is to say, a declaration in writing of his intention to avail himself of the preemption right granted by the Act of Congress on the 2d of March, 1851. This declaratory notice was filed in the Land Office at Monroe. On the 16th of May, 1856, Dareas Dinkgrave, located an Internal Improvement warrant on the land claimed by Vester, and contested his right to a preemption under the Act of Congress, before the Begister and Beceiver of the Land Office. These officers were unable to agree in opinion as to the right of Vester to a preemption; the Begister decided against the claim, and the Beceiver in favor of it. On a reference to the Commissioner of the General Land Office, he decided on the 12th of September, 1857, the contest against Vester, and rejected his claim. On the 24th of May, 1858, the selection of the land by the State was approved by the Secretary of the Interior, and the fact was communicated to the Begister and Beceiver of the Land Office at Monroe, and also to the Governor of the State, who, on the 13th of August, 1858, caused a patent to be issued to the plaintiff as assignee of Darcas Dinkgrave. On the 7th of July, 1858, prior to the issue of the patent by the Governor, the attorney of Vester applied for and obtained an appeal from the decision of the Commissioner of -the General Land Office, to the Secretary of the Interior, who, on the 25th of August, 1858, reversed the decision, and ordered a reinvestigation of the claim by the Begister and Beceiver at Monroe. On the reinvestigation of the claim, the Begister concurred with the Beceiver in the opinion, that on the evidence before them, Vester was entitled to a preemption right under the Act of Congress of the 2d of March, 1851; and again reported the claim to the Commissioner of the General Land Office, who, adhering to his first opinion, referred the case to the Secretary of the Interior for a final decision. On the 31st of March, 1859, the Secretary confirmed the preemption claim of Vester under the Act of Congress of the 2d of March, 1851; and on the 7th day of December, 1859, a patent was issued to his heirs by the President of the United States.

In addition to these facts, two others of prominent importance must be stated, and considered in passing upon the conflicting titles of the parties. The first is, that the land in dispute, in common with other lands embraced in a descriptive list of selections reported to the Secretary, was approved by him to the State, subject to all the legal rights of third persons existing at the date of the appeal; and the second fact is, that the appeal itself was made to the State, in ignorance of the existence of the preemption claim of Vester.

On the facts above stated, the question is presented, whether the Secretary of the Interior could rightfully entertain jurisdiction, after his. approval of the selections by the State, of the claim of Vester, and award the land to him, on the appeal from the decision of the Commissioner of the General Land Office.

The approval was not only made in error, as to the claim of Vester, but was made subject to all valid legal existing claims to each and every tract of land embraced in the descriptive list, whether such legal claim was evidenced by a prior patent or not. It was made subject to existing preemption claims, although inchoate and dependent on the action of the Laald Department for their perfection; and, in this form, was accepted; and thereby determined the rights of the State. And it is evident that under the approval thus made, the State acquired no title whatever to any of the lands embraced in the list, to which there existed at the time a valid right of preemption, and to which the préemptor afterwards asserted his right in pursuance of law; for in all such cases, by the very terms of the approval, the legal title was withheld from the State. Now, how can it be said, that the approval was a natent to the State, for the land in dispute, when by the terras of the approval, the legal title was withheld, for the benefit of the préemptor, Wiley J. Vester ? A patent is an .instrument by which the legal title, or fee simple, is passed from the Government; and when in a given case, the legal title is withheld, there is no patent, or anything equivalent to it. Under the terms of the approval,-thfe-'iegal title to the land to which the preemption claim of Vestér attac1Í£d," réfiiained in the United States Government, subject to th(S.j,U$isdiction /yestfe'd in the Secretary of the Interior, for the disposal of sucm.clfjams in the-last resort.

y'TJie questiónvpf jurisdiction came before the Secretary of the Interior, on á'iirb't,est,filed bjy the plaintiff against any proceedings on the appeal fallen fromWe chjcision of the Commissioner of the General Land Office against'the'preemption claim of Vester. The Secretary decided the question against the plaintiff, and held that he had jurisdiction of the claim on the appeal. lie also held that the location of an Internal Improvement warrant, under the Act of Congress of the 4th September 1841, of land to which a valid ’ preemption right existed, was void, and could not be rendered valid by a subsequent approval of the land to the State. In this ojmiion we concur; for it is entirely in harmony with the doctrine of the case of Ellis v. Old, recently decided by us; in which we held, that priority of right gives priority of title, in contests of this kind.

The plaintiff contends in the second place, that Vester had lost his right of appeal; first, by his acquiescence in the decision of the Commissioner; secondly, by his abandonment of his claim to the land; and thirdly, by reason of the decision having become res ad/judicata before the appeal was taken. As the right of Vester to an appeal was granted by law; and as there was no limitation as to time imposed upon the exercise of the right, the decision of the Secretary of the Interior on the point is final, and cannot be reviewed by us.

The plaintiff contends in the third and last place, that Vester was not entitled to a preemption right, upon the evidence adduced before the Register and Receiver of the Land Office at Monroe, and on which the decision of the Secretary of the Interior is founded. As these officers had authority to pass upon the preemption claim of Vester; and as there is no allegation of error, charge of fraud, or other ill practice against him in the proceedings before the Land Department, the decision of the Secretary of the Interior is final between the parties, and cannot be disturbed on the evidence which was before him.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed, that there be judgment in favor of the defendant, the administrator of the succession of Wiley J. Vester, deceased, with costs in both courts. And it is further ordered and decreed, that certified copies of the opinion and decree in this case be forwarded by the clerk of this court to the parties or their attorneys; and that each party have a delay of thirty days from the date of said service, to file his application for a re-hearing in this case.


author: .Hyman, C J..

text:
    Margaret Haughery v. John M. Lee.
    The law requires the proof of sale of immovable property to be 'in writing; 'but when actual delivery has been made, a verbal sale or other disposition of such property may be proved by interrogatories propounded to either vendor or vendee, 'the reply to whioh would be a confession of title. No other •kind of questions are permitted. •- ' • " '
    Answers to interrogatories are not require^ to bo mado in any peculiar set phraseB,.so that they are responsive.
    APPEAL from tíre Fiftli District 'Court. of • New Orleans, Howell, (acting) J. • ’ • . ....

      Durant &.IIornor, for Plaintiff. Whitaker., ■Fellows■ c& Mills, for defendant and appellant.
   .Hyman, C J..

This is'a petitory action, instituted by plaintiff,■ to' recover of defendant- certain immovable property in the city of New Orleans.

.Defendant, in his answer, admitted possession of the property, and that the title thereof was in the name - of tho -plaintiff ;• but alleged- that-it was bought and paid for by .liian. .. - ■ - . • ...

He asked for judgment, decreeing him to be the owner, and that plaintiff be ordered to answer, under oath, certain interrogatories, on - facts and articles, annexed to his answers.

The lower court rendered judgment, decreeing "and ordering defendant to deliver the property to plaintiff, and .to pay costs of suit.

From this judgment defendant has appealed.

Defendant contends that the following interrogatories, propounded by him to plaintiff, and answered by plaintiff, under oath, by order of the court, should be taken as confessed by plaintiff — the answers not being responsive to the questions :

1st. “ Was not the property described in the act of the 14th May, 1860, before M. Gernon, bought by defendant; John M. Lee, for his sole use and benefit ? ”

Answer. — “It was bought for my benefit.”

2d. “Did you not permit the use of your name, in said act, for that purpose ? ” . •

Reply. — “ It was for my benefit.”

These answers are not evasiye, but responsive to the questions.

If the plaintiff’s name was used for her benefit, in the purchase of the property, and it was bought for her benefit, it is impossible that the property could have been bought for the sole use and benefit of defendant or that her name used in the purchase, could have been for his benefit.

The law does not require the answers to interrogatories to be made in any peculiar set phrases.

After plaintiff had answered the interrogatories annexed to defendant’s answer, defendant propounded other interrogatories to plaintiff.

Plaintiff objected to answering these interrogatories, because they were in conflict 'with the article 2255 of the Civil Code ; and because the plaintiff having been interrogated, as to the verbal agreement, for the transfer of the real estate in question, had denied the existence of any such agreement, which denial was conclusive.

The court sustained plaintiff’s objection, and refused to order- the interrogatories to be answered. To this ruling of the court defendant objected, and filed a bill of exceptions.

The law requires the proof of sale of immovable ‘property to be in writing; but when actual delivery has been, made, a verbal sale or other,, disposition of immovable property, may be proved by interrogatories propounded to either vendor or vendee, the reply to which would be a' con-' fessión of title. See Civil Code, Art. 2255. -

No other kind of questions js permitted by this article.

The reply to the questions : Whether she (plaintiff)’ had paid anything for the property in dispute ? Whose money paid for it ? Whether, she had not told others that, the property belonged- to defendant, andthat she would make him a title to the property when he desired it ? (which were the questions asked) would, not bé.a confession of title, but an acknowledgment of what she had, not done, what others had done,, and-what she had said. .

The replies to the questions'might possibly establish title'in defendant, not by confession of title', when interrogated on oath, as required by the article cited, but by acknowledgment of a verbal' statement, formerly made by her.

Judgment affirmed, with costs.

Judge Howbi*, having tried this causé in thé lówéi1 court, took fio pari jn this decision, - .


author: Idsdey, J.

text:
    John Creen, Master, et. al., v. E. Francisco Croce, et. al., E. A. Croce, Master of Orozimbo, v. Towboat Vanderbilt, et al. (Consolidated Cases.)
    "Where a witness is.merely a nominal party to the suit, and disclaims any personal interest therein, Tie is competent.
    A towboat’s private book of rules and regulations oannot be received in evidence even when accompanied by oral testimony.
    Any aceident, except such asimpossible to be foreseen or avoided, that may happen to any steamboat from running into or afoul of another boat; or, whenever an accident happens from the boat being overloaded, the owner of the boat causing such aooident shall be responsible for all losa and damage as a common earner, and also snbjeot to fine and imprisonment.
    il. PPEAL from the Fourth District Court of New Orleans, Allen, J.

      M Raíale, for plaintiffs. Gilmore, for Hyde & Mackie, appellants. William D. Semen, for Ship, ei als.

      Ramie for plaintiff.

    The captain of the Vanderbilt was wrong in attempting to execute a manoeuvre which was improper and dangerous. The Thames, 5 Hob. Ad. 345. ' The Shannon, 2 Haggard, 173.
    It is for the owners of the steamer to prove that the collision could have been avoided. Beloso v. U. Á Mail Go., 9 An. 268.,. Martino v. Boggs, 1 An. 75. Sparks v. Salladin, 6 Ann. 764.
    This is an aggravated case, and there should have been no appeal. Damages may be justly given, as prayed for. -

      Gilmore for Syde t& Mackie.

    The master of the Digby sues the owners of the Orozimbo, and Hyde & Mackie, whom he alleges to be the owners of the Vanderbilt, for damages suffered by the collision.
    The owners of the Orozimbo also sue the Vanderbilt for damage alleged to have been suffered by that ship. Both suits have been tried together.
    As against the Vanderbilt, it is, of course, alleged that the collision was occasioned by negligence and want of proper skill on the part of the officers and crew of that vessel.
    This is the gist of the action, and it is incumbent on the plaintiffs to establish it.
    If the collision was not occasioned by the fault or negligence of the officers and crew of the Vanderbilt, or if it was the result of accident, whioh ordinary diligence could not prevent, or of mutual fault, or if by proper care and management on the part of one, or both of the colliding ships it could have been avoided, then the appellants are not liable.
    Lord Tenderden, in two cases, at Nisi Prius, has laid down the doctrine ef the eommon law applicable to cases of damage by a collision of vessels, where the damage has been in consequence of mutual negli-genee. . -
    In Vanderplanek v. Miller, which was a “running down” case, that learned judge, in summing up tp the jury, said : — “ If there was want of ease on both sides, the plaintiffs cannot maintain their action ; to enable them to do so, the accident must be attributable entirely to the fault of the crew of the defendants.” On another occasion, at Nisi Prius, in an aetion for the negligence of defendant’s servant in managing his barge, whereby the.plaintiff’s barge was run down and sunk. Lord Tenderden said ; “The plaintiff, in this case, complains of an injury to his barge through the negligence of the defendant’s servants. 'If the accident happened from the state of the tide, or from any other circumstances which persons of competent skill could not guard, against, the plaintiff is not entitled to recover; and so if the plaintiff’s men had put this barge -in such a place that persons using ordinary care would run against it, the defendant will not be liable. Nor'will he be. liable if the accident could have been avoided, but for the negligence of the plaintiff’s men .in’not being on board his barge at the time when it was lying in a dangerous placo. The only case in which the defendant is answerable is, if the accident arose from the negligence or want of skill in his own men.” In an action in the Exchequer, for running down a vessel, Bay-ley, B., said : “ Tlie rule is, that the plaintiff could not recover if the ship were in any degree in fault, in not endeavoring to prevent the collision. Here the plaintiff had a right to presume that the defendant’s' ship would do that which she ought to do. I quite agree that if the mischief be the restilt of the combined negligence of the two, they must both remain in stetiu quo, and neither party citn recover against the other.” Angelí on Carriers, ? 635. •
    Lord Tenderden,- in his Treatise on Shipping, says : “ Two things must concur to support this action : a collision by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.”
    •Abbott on'Shipping, Boston edition of 1846; p. 312.
    This is the settled doctrine of the American courts,' and, as such, has been recognized and affirmed by our own Supremo Court in a series of decisions.

      Carlisle v. Holion, 3 An. 48 and cases cited.

      Murphy v. Diamond, 3-An. 441.

      Myers v. Perry, 1 Ah. 382.

      Edgellv. Bárrataria <& Lafourche Canal Co., 6 An. 425.
    Professor Parsons says: “We take a common carrier to be one who offers t'o carry gdods for any person between certain termini or on a certain route ; and he 'is bound to carry for all who tender to him .goods and the price of carriage, and insures those goods against all loss but that 'arisingfrom the act of God or the public enemy ; and has a lien on the goods for the price of carriage. These are essentials ; and though all or any of them may be modified, and, as we think, may be-controlled, by express agreement, yet, if either of these elements is wanting from the relation of the-parties, without any such agreement, then we say the carrier is not a common carrier, either by land' or water. ” Maritime Law, p. 1ÍÍ, vol. 1.
    In .Catón v. Rumney, 13 Wendell,' 387,-and in Alexander v. Greene, 3 Hill 1, it was expressly decided that steam towboats are not common carriers. See Smith v. Pierce, 15 La.; Davis v. Housen, 259, 6 Bob.
    So in Wells v. Steam Hav. Co., 2 Comst. 204.

      Leonard v. Henderson, 18 Penn. 40.
    See, also, Story on Bailments, 496.
    Angelí on Carriers, § 86.
    Those who, as a public employment, undertake the carriage of inanimate objects, either by land or water have the object bailed exclusively in their own possession, and under their own power and control — out of the view and custody of its owner — therefore, it is but reasonable that they should be held to strict care and strict accountability. Lord Holt, in the celebrated case of Goggs v. Bernard, says: “The law charges this person, thus entrusted to carry goods, against all events, but the acts of 'God and of the enemies of the king. For, though the force be never so great as if an irresistible multitude of people should rob him, never! theless he is chargeable. And this is a politic establishment, contrived by the policy of the law for the safety of all persons, the necessity of whose affairs obliges them to trust to these sort of persons, that they may be safe in their dealings. For, else, these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point.” Story on Bailments, $ 490.
    The carrier is a bailee for hire, and it is of the essence of the contract of bailment that the object bailed should be delivered. Sto^y on Bailments, § 2.

      llennen for Ship et als.

    The obligations of the owners of towboats to shipowners, are those of common carriers. Smith et als v. Pierce et als. 1. L. 354-5.
    The Court says: “By the contract for towing, he is bound to carry them safely to their destination, unless prevented by uncontbodijAbhe accidents, or such as are not within the oontbod oe human eobesight OB POWER.”
    The undertaking is to tow the vessel in safety, and he has a right to assume all tjie authority necessary to effect that purpose. The command and care of the vessel towed should either be subject to his command whilst she is carried by his boat, or her rudder should be placed in -the hands of one of his own men. We consider a vessel thus towed as property carried for hire, in which her crew should not be viewed as having any lawful agency.
    They had, as common carriers, the entire control over the Orozimbo ; that if there was any misconduct or neglect on her (which is denied and disproved by the evidence), it is the act of the common carrier. See Smith v. Pierce, 1 L. 357.
   Idsdey, J.

These two cases were tried together in the lower court, almost on the same evidence adduced in each.

The facts are correctly stated by-the Judge of the Fourth District Court of New Orleans, and are as follows :

On the 6th of- January, 1859, whilst'the ship Digby was attempting to cross the bar, at the South West Pass, under sail, she grounded on the bar, and whilst so aground, the towboat O. Yanderbilt, having in tow astern the ship Orozimbo, attempted to pass the Digby, which was lying' across the channel, and in so doing the Orozimbo was brought into collision with the Digby, whereby both the Digby and Orozimbo were seriously damaged. The owners of the Digby claim, that the collision was occasioned by the fault and neglect on the part of the officers and crews in-' charge of both of the Orozimbo and the towboat Yanderbilt, whilst the owners of the Orozimbo claim that the collision was attributable to the fault of the Digby and the Yanderbilt, thus presenting (as the Judge appropriately observes) a species of triangular crimination.

Two separate judgments were rendered in the lower court; one in the suit of John Creen, Master, &c., v. E. Francisco Croce, et al., and the owners of the Digby against Hyde & Mackie, owners of the Yanderbilt, in solido, for the sum of $613, with interest and costs, and in the same suit in favor of E. Francisco Croce, master and owners of the ship Orozimbo, also defendants therein, discharging them from liability, and the other judgment in the suit of E. F. Croce, Master, el al. v. The Vanderbilt et als., in favor of the plaintiffs for $955, with interest and costs,

Hyde S Maclcie took a suspensive appeal from both judgments, and it was agreed that one transcript should serve both appeals, and that the case as between Creen S Croce, the Digby and the Orozimbo, should be examined and decided apart by this court without a formal appeal on the part of the former, and in the same manner as if an appeal had been regularly taken.

Before proceeding to an examination on the merits of these consolidated cases, we will dispose of two bills of exception, taken by Hyde S Mackie to the reception and rejection of certain evidence on the trial of these cases.

The first was to the overruling of the objection made by them to the evidence of John Creen, on the ground that he was the party-plaintiff to the record in his suit against them, and as such liable for the costs of suit.

As a general rule, the objection would have certainly been a valid one ; but as the witness was merely a nominal party to the suit, and disclaimed any personal interest therein, we do not think such an objection could deprive the real parties in interest of the benefit of his testimony, and the Judge of the lower court did not err in receiving it.

The second bill of exceptions was, to the refusal of the court to receive in evidence a certain private book, made a part of the bill, in connection with the testimony of Captain Smith, that the same contained the rules and regulations of the several towboat companies, with regard to their charges and responsibilities, and also to prove that said books were exten--sively circulated and were well known to the commercial community, particularly to those engaged in the Shipping business. For the reasons stated in the bill, and in accordance with the ruling of Mr. Justice Story, in the case of the schooner Reeside, 2 Sumner 567, the said book and explanatory evidence was properly rejected.

On the merits, the evidence in these cases, as is usual in kindred cases, is conflicting; but, after a very careful examination of the whole evidence in the record, it is, we think, satisfactorily shown, that the collision between the Digby and the Orozimbo was not occasioned by force majeure, but by the fault, negligence, carelessness, unskilful management and obstinacy of the master of the Yanderbilt, who, regardless of the peril of attempting to pass the Digby, with a ship in tow astern, which was held by a hawser of some forty fathoms long, nevertheless, in spite of repeated warnings and remonstrances from persons on the Digby and the Orozim-bo, persisted in making the attempt, as appears by the combined testimony of Creen, Patterson, Ferris, Herns and Jackson. Had the master of the Vanderbilt let go the hawser which held the Orozimbo to his vessel, as he was requested and urged to do by the pilots of both boats, or stopped when only at the distance of one hundred and fifty yards, the accident would not have happened. See evidence of Jackson.

The danger of an imminent collision should have been manifest to an experienced navigator. The channel was very narrow, and the sheer taken by the Orozimbo in the eddy, naturally resulting from the Digby’s position in the channel, was the natural result of the reckless attempt made by the Vanderbilt. Had the master of the Vanderbilt, even when the danger of collision became imminent, displayed ordinary skill as a navigator, the collision might still have been averted. He controlled the situation, and had he cast off the hawser, or anchored in time, no collision would have taken place.

Heither the Digby nor the Orozimbo were to blame for the collision ; for, as the Judge of the lower court properly observed, the Digby had the right to come on to the bar with either sail or steam, at her option, and no law or regulation exists to control her in this respect. She being aground was her misfortune ; but as she was in that condition and entirely helpless, it was the bounden duty of all other vessels to do her no harm. See Sauvé v. Beckwith, 9 La. 430; Story on Bailments 386.

As to the Orozimbo, she was merely a passive agent, with no present motive power save that received from the Vanderbilt, and made repeated attempts to be cut loose from her.

The case of Bestoso v. U. S. Mail Co., 9 Ann. 268, establishes the prim ciple by which a ease like this should be governed.

If the accident was an unavoidable one, with due precautionary measures, it was incumbent on the defendants, Hyde & Mackie, to show this exculpatory fact; but, on the contrary, the record is full of proof that the whole damage inflicted on the Digby and Orozimbo, was occasioned by the wilful obstinacy, fault and negligence of the master of the Vanderbilt. Saurie v. Tourne & Beckarts, 9 La. 428.

The cases are fully made out, and the defendants, Hyde & Mackie, who are proved to have been the owners of the Vanderbilt when the collision occurred, are responsible, as common carriers, to each vessel for the damage sustained by it. See Art. 2294, C. C.; Smith et al. v. Pierce et al., 1 La. 350; Davis v. Housen, 6 Rob. 256; Millaudon v. Martin, 6 Rob. 541; Burges v. Beebe, 3 An. 668. See Acts of State Legislature, 1855, B. S., sec. 1, p. 537.

The master and owners of the Orozimbo were properly exonerated from all liability to the Digby, as they were in no way to blame for the collision with that vessel.

It is therefore ordered, adjudged and decreed, that the judgments rendered in the suit, John Creen, Master, &c., v. E. Francisco Croce, and in that of E. A. Croce, Master, &c., v. Towboat Vanderbilt, consolidated, be, and the same are hereby affirmed, the costs- of appeal to be paid by Hyde & Mackie, in solido.

Jones, J., absentj


author: Hyman, C. J.

text:
    Wallace Lithgow & Co. v. Charles Byrne.
    A* niandate must be express in oi’dei* to sue out a writ of sequestration.
    from the Sixth District Court of New Orleans, Howell, J",

      Whitaker, Fellows & Mills, for plaintiffs and appellants. A. Lolhrop, for defendant.

      Whitaker, Fallows & Mills, for appellants.

    The question resolves itself into this : What evidence of agency is required under Art. 276 C. P., to authorize a writ of sequestration based on the agent’s affidavit ? It will be noticed that Art. 276 does not declare that any evidence as to the fact of agency beyond the affidavit itself is necessary; and it is respectfully submitted that such affidavit is sufficient. It is a well settled rule, applicable to conservatory process, that the affidavit is prima facie evidence of the facts authorizing the writ. This principle is fully recognized as late as the case of fane W Johnston v. Geo'. W. Johnston, 13 An. 581.
    The defendant offered no evidence to rebut or contradict this prima faene proof, which it was necessary, as stated by the court in the above' ease, for him to do.
    The error of the learned District Judge, it is respectfully submitted, arose from the fact that he viewed the additional and subsequent approval of the agent’s acts, by the plaintiffs, as the only evidence of agency, not considering that since prooí was intended only as corroborative of the prima facie proof — the affidavit — and not as substantive proof.
   Hyman, C. J.

Plaintiff appealed from the judgment of the lower court, - setting aside, on motion of defendant, a writ of sequestration issued in this case.

■ One of the grounds of the motion is, that the affidavit for sequestration • is informal and insufficient.

William Pyne, who is no party to this suit, made the affidavit; but in no part thereof does he state that he had authority from plaintiff to make such an oath.

. There is no allegation in the petition stating such agency; nor any evidence whatever thereof.

Such agency must be special (see Civil Code 2966), and there must be evidence thereof produced to the court, by affidavit or otherwise, before a writ of sequestration can be sued out by an agent.

Judgment affirmed, with costs.

Howell, J., recused.

Jones, J., absent.


text:
    Tertullian Villa v. L. F. Jonte, et al.
    Commercial partners are bound !n wU<lo, and where sucha partnership existed, oral testimony will he received to establish it.
    from the Second District Court of New Orleans, Morgan, J.

      Budd <0 Lambert for plaintiff. Reynolds & Davidson for defendants.
   Hyman, C. J.

Tlie plaintiff sued the defendants, L. F. Jonte and Abraham Parker, as partners of the late commercial firm of L. F. Jonte & Co., for tho sum of six hundred and-sixty-three dollars and nineteen cents, balance due on open account.

The defendants filed separate answers ; both denied the indebtedness, and tlie partnership as alleged.

The lower court gave judgment in favor of plaintiff against defendants, in solido, for the amount sued for, with legal interest from the 6th day of May, 1859, the date of judicial demand.!

Prom this judgment the defendant, Parker, has appealed.

We have examined carefully, the evidence. It establishes that such a partnership existed, as alleged by plaintiff, that defendants were members of that partnership, and that as such, they are indebted, in solido, to the plaintiff in the sum claimed by him.

There is no error in the judgment rendered by the lower court. Judgment affirmed, .with costs.

Jones, J., absent.


author: Jones, J.

text:
    W. H. Letchford, et als. v. Ship Golden Eagle, et als.
    In a contract of affreightment, where tho defendants expressly allege and clearly prove that the dam age to goods was caused by stress of weather and dangers of the sea, beyond their contol, they will not be held liable.
    from the Second District Court of New Orleans, Morgan, J.

      F. W. Huntington for plaintiffs. Benjamin, Bradfoi'd <& Finney for defendants.
   Jones, J.

The defendants sue tho plaintiffs, as common carriers, for damages dono to tlioir goods shipped from Havre to the port of New Orleans. Tlie proof shows that the vessel on which the goods were shipped was seaworthy and with a sufficient crew.

It is also shown that the goods were well stowed, but the damage occurred to the goods on the voyage. The contract of affreightment rendered defendants prima facie liable, and throws the burden upon them to allege aiid provo that they are within some exception of law that exonerates them from liability.

Their answer expressly alleges that if any damages occurred to plaintiff’s goods during the voyage, it was from stress of weather and the dangers of the seas, for which these defendants are not responsible.

We think that defendants have by clear proof established that whatever injuries were suffered by plaintiffs, occurred by stress of weather and dangers of tlie sea, without any fault attributable to defendants,

Judgment affirmed.

Labadvg and Howell, J. J., absent.


text:
    Adam Beatty, v. Schwartz, Kauffman & Co., et als.
    Damages will be allowed for a frivolous appeal, when prayed for by appellee in his answer.
    11 PPEAL from the Fourth District Court of New Orleans, Price, J.

      G. Schmidt for plaintiff. Whitaker, Fellows <6 Mills for defendants and appellants.
   Jones, J.

This is a suit by the holder of a draft against the acceptors. The defence and call in warranty have failed for want of proof. This is evidently an appeal for delay, and as the appellee has, in his answer, prayed damages for frivolous appeal, the same must be allowed.

Judgment affirmed, with costs of appeal, and the sum of one hundred and sixty-eight dollars for frivolous appeal.

Labaove and Hoayeed, J. J., absent.


text:
    James Billen v. J. R. White.
    Where there is positive evidence of the loss of an instrument in writing parol testimony will bo received proving its contents,
    from the Sixth District Court of New Orleans, Howell, J.

      Whitaker & Fellows for plaintiff and appellant. Johnson & Denis for defendant.
   Hyman, C. J.

Plaintiff sued defendant to recover the sum of $1,400 with interest,- the price paid for the purchase of an unsound slave.

Defendant answered by general denial, but admitted the sale of the slave to plaintiff.

The District Judge rendered judgment in favor of plaintiff for.amount claimed, with interest.

Defendant has appealed.

Defendant, in the lower court, objected to the admission of the testimony of George W. West, proving the contents of a written instrument.

The ground of the objection was that the loss of the instrument -was not sufficiently proved.

There is positive evidence that the instrument of writing was destroyed. The evidence was properly admitted.

There is no reason to reverse the judgment of the lower court.

It is affirmed, with costs.

Howedd, J. recused.

Jones, J, absent.


author: Labauve, J.

text:
    W. R. Bell v. Wm. Black, et. al.
    A co-defendant cannot be made a witness against the plaintiff
    A plaintiff must make out a clear caso before a coui'b of justice.
    from the Fifth District Court of New Orleans, Eggleston, J.

      0. Roselius <£ Alfred Phillips for plaintiff. Robert Moll for defendants and appellants.
   Labauve, J.

The plaintiff, a livery stable keeper, hired a horse and buggy to the defendants in July, 1857, for a drive on the shell road ; the horse suddenly died in the buggy on the way. The plaintiff alleges, in substance, that the death of the horse was owing to the careless and negligent management, and by wilful and reckless driving, said Black and O’Leary injured said horse, so that he died from' the effects and results of said driving. He claims $100 for the value of the horse, and $9 for the hire of the horse and buggy, one shaft broken, and bringing the buggy home ; in all $109. The court below, after hearing the testimony, gave judgment for plaintiff for the amount claimed, with interest; from this judgment defendants appealed. The defendants answered separately : Black admits the hiring, and says that his co-defendant had nothing to do with the hiring; that O’Leary was his invited companion to ride with him to the Lake. O’Leary denies the allegations in the petition, &c. On the trial below, Black offered his co-defendant, O’Leary, as a witness, on the ground that there was no testimony going to charge O’Leary in any way in the case. The court rejected the witness, on the ground that he was a party in the suit. We think the court did not err. Wo have carefully examined the testimony in the record, and wo have not found that plaintiff has proved his allegations charging the defendants with careless and negligent management, and wilful and reckless driving of the horse. It is true that the horse died suddenly on the way, but there is no testimony showing that it was owing to the neglect and fault of the defendants.

It is a well settled rule of law, that a plaintiff must make out a clear case to support his action before a court of justice. Wo are of opinion that plaintiff has faffed to bring his case within that rule.

It is, therefore, adjudged and decreed that the judgment of the District Court be reversed. That plaintiff’s demand be dismissed, and that he pay costs in both courts.

Jones, J., absent,


author: Labatjve, J.

text:
    Bowker & Edmonds v. James Connolly & Co.
    Where a firm makes advances on consignments, they cannot bo required to forward them to third persons subsequently, and thus be deprived of their privilege.
    from the Fourth District Court oí New Orleans, Price, J.

      Bon/ord, Singleton & Glaelc for plaintiffs and appellants. Roselius■ & Phillips for defendants.
   Labatjve, J.

The plaintiffs state in their petition that, in the year 1858' and before, they were in commercial business with Powell & Co., of St. Louis, who were large shippers of flour and Western produce, to New Orleans and to Eastern market. That the course of business was, for the house of Powell & Co. to make shipments to the consignments of petitioners at Boston, by way of New Orleans, transmitting to them the river bills of lading and drawing drafts against the shipments. That, as the voyage from St. Louis to Boston was performed partly in steamboats, on the Mississippi river, to New Orleans, and partly in sea-going vessels, from New Orleans to Boston, the defendants wore constituted agents for transmission, and that among the shipments so made were 721 barrels of flour, shipped on the steamer T- L. McGill, on the 9th of September, 1858, and also 123 barrels of flour, branded “Laclide Mills,” shipped on the steamer Stephen Decatur ; both of said shipmentshaving been made in the course of business between Powell & Co. and xDetitioners, to the order of said Connolly & Co. That said Connolly and Co. received said two shipments, but refused to forward the same to petitioners. That they have accepted drafts drawn by said Powell & Co. against said shipments, and that there is a large balance due them for advances ; that said shipments were worth $8,000, and that they have sustained damages in the sum of $1,000, by the neglect of said Connolly & Co.

They pray that the said Connolly and Co. be decreed to deliver the said lots of flour so shipped by the steamers T. L. McGill and Stephen Decatur, or to pay $8,000, together with the $1,000 damages.

The defendants answered by a general denial, but admitted that, during the year 1858 and before, Powell & Co. of St. Louis made shipments of flour and other articles of Western produce to them, to be sold by respondents on account of said Powell & Co., and that upon the faith of said shipments, respondents made advances to and accepted for said Powell & Co. That when they received the lot of 721 barrels of flour, as well as the bill of lading therefor, there were no advices to forward the same to plaintiffs, but that the same was regularly consigned to respondents, to be sold on account of said Powell & Co. Defendants advanced and accepted for said Powell & Co., on the faith of said lot. That the lot of 123 barrels, per Stephen Decatur, was not received by them before the 1st November, 1858, when the same became subject to the order of the cotirt, in garnishment process served previously, about 30th October, 1858, on respondents, in the suits of Osborne & Tolle v. Powell & Co., No. 12819 on the docket of Fifth District Court of New Orleans. That said Powell & Oo. are largely indebted to respondents for advances and acceptances, made on the faith of said shipments, and that they have a privilege on said flour over all others. In a supplemental answer, they say that, of the 721 barrels, 53 were sold, netting $221 08, placed to the credit of said Powell & Co. That in November and October, 1858, the remaining 668 barrels were attached, in the suits of Osborne & Tolle v. Powell & Co., and Clark, Brothers & Co. v. Powell & Co.

The testimony and admission in the case show that said Powell & Co. wrote a letter, dated St. Louis, September 9,1858, addressed to plaintiffs, in which they say, among other things: “We have now to hand your four barrels, lading per T. L. McGill, of 721 barrels of flour. This is shipped to you through the usual channel in New Orleans. The certificate of insurance on the shipment wo will hand you when we next write, noting our draft on you of this date, at sixty days, for $4,000.” On the 10th September, 1858, said Powell & Oo. insured 1,021 barrrelsof flour, shipped per steamer T. L. McGill, loss, if any, payable to Messrs. Bowker & Edmonds, Boston, Massachusetts.

It is admitted this letter and the certificate of insurance were received by plaintiffs in due course of mail, and that the draft mentioned in this letterwas duly accepted and paid. On the 20th October, 1858, said Powell & Oo. insured 123 barrels of flora, to be shipped by steamer Stephen Decatur from St. Louis, loss, if any, payable to Messrs. Bowker & Edmonds, Boston, Massachusetts. It is admitted that this certificate of insurance was received by the plaintiffs in due course of mail.

The evidence shows that in the year 1858, there was a large business done in Western produce between the said Powell & Oo., shippers, and the defendants, as consignees, who sold the same on account of the shippers ; that said Powell & Oo. wTere in the habit of drawing against the same on said defendants, -who were also in the habit of accepting and paying the drafts of said drawers ; that said Powell & Oo., who occasionally made shipments, by way of New Orleans, to said plaintiffs, to the consignment of said defendants, who reshipped by sea-vessels to the plaintiffs. In regard to the shipments made by said Powell & Oo., the correspondence was direct between said Powell & Oo., shippers, and said plaintiffs, who received through mail the bills of lading and certificates of insurance from said Powell & Go., and that the defendants were mere transmitting agents. Whenever shipments were intended for the plaintiffs, said Powell & Oo. were to give particular instructions to said defendants to that effect. In a letter dated St. Louis, 17th April, 1858, addressed by said Pow'ell & Oo. to the defendants, they say :

“We are awaiting further advices from you, which will note, we presume, sale of ora shipment per the ‘Illinois,’ and in this connection we would say, that whenever we intend a shipment to go forward to New York or Boston, we make a minute to that effect with instructions at foot of bill of lading, so that there may arise no delay in shipment, and by this you maybe governed hereafter.”

The bill of lading, dated St» Louis, 9th September, 1858, for the seven hundred and twenty-one barrels of flour, shipped per steamer T. L. McGill, by said Powell & Oo,, consigned, to said defendants, who introduced it in evidence, contains no instruction to forward said lot of flora? to the plaintiffs. This lot of flour, per the steamer T. L. McGill, is the one in dispute. Another bill of lading, dated 10th September, 1858, for another lot of flour of three hundred barrels, shipped per same steamer, by Powell & Co., to said defendants, who introduced said bill of lading' in evidence, contains at the foot instructions to forward to the plaintiffs, to-wit:

“Please receive the above and forward same for orir account to Messrs. Bowker & Edmonds, Boston, by some small vessel having quick dispatch. Should you be able to sell it in New Orleans, however, at 7@7}{ per barrel, on arrival, you are authorized to accept that figure, in which event please remit proceeds to Boston. Tours, truly, “PowELn & Co.”

Here the understanding between these parties is carried out for one lot as to instructions, and we presumo it has been complied with, as there is no dispute about this lot. It is in evidence that two said bills of lading and two lots of flour were received by the defendants about 21st September, 1858, one with and the other without instructions. What could be, then, the action of the defendants in regard to the disposition of the flour ? It follows, as a matter of course, that they forwarded accordingly the lot of three hundred barrels, or proceeds, to destination, and the other lot of seven hundred and twenty-one barrels they considered as consigned to themselves, to be disposed of in New Orleans, for account of said Powell & Oo., and upon the faith and credit of which they accepted, as proven, two drafts of said Powell & Oo., one for $1,000, on the 21st September, 1858, and the other for $3,000, on 24th September, 1858. Besides these drafts, the said Powell & Oo. were indebted to ,tlie defendants, by cash balance above, $7,000 on the 21st September, 1858, it being the time of the receipt of the flour by the steamer McGill. The bill of lading, dated St. Louis, 19th October, 1858, for the one hundred and twenty-three barrels of flour shipped per steamer Stephen Decatur, by the said Powell & Oo. to the defendants, contains no instruction to forward the same to plaintiffs.

Upon the whole, we think the Judge below decided the case correctly. We have not been favored with briefs of counsel on either side; the plaintiffs and appellants have made no appearance in this court.

It is, therefore, adjudged and decreed that the judgment of the District Oourt be affirmed, with costs.