text:
    Robert Howes v. Steamer Red Chief, Captain and Owners.
    Tho maxim, qiti fac'd per alium, fácil per se, applies with equal force to owners of steamboats, who are liable to third, persons in civil suits for tho frauds, deceits, concealments, misrepresentations, torts, negligences and other malfeasances or misfeasances, and omissions of duty of their agents in tho course of their employment, even if they forbade tho acts or disapproved of them. In all such cases the rule, respondeat superior applies.
    Tho rule, that the master is not responsible to one agent, for the injury he has sustained through the negligence or omission of duty of another agent, does not apply to the case of hired slaves. And where a slave was hired, as deck-hand, toa steamboat and drowned through want of care on tho part of the mate — Held: That the captain and owners were responsible.
    The 9th section of the Act entitled “An Act relative to steamboats,” approved March 15th, 1855, embraces all cases of loss or damage arising from oarolessness, neglect or want of skill in the direction or management of any steamboat and cannot be restricted to cases of collision. Nor is it under the act necessary to swear as to tho names of tho owners in order to proceed by provisional seizure.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Whittaker & Fellows, for plaintiff and appellant.

      Lea & Marr, for defendants.
   Duffel, J.

Tlie present action, which has for its object the recovery of the value of a hired slave, who was drowned in the employ of the defendants, commenced by a provisional seizure of the steamer Red Chief, under the provisions of the act, entitled “An Act relative to steamboats,” approved March 15th, 1855, p. 468. The provisional seizure was set aside by the District Judge, on the ground that the act had reference to loss by collisions only. The plaintiff then applied for, and obtained, the defendants being non-residents, a writ of attachment, under which the boat was attached by the Sheriff. The District Judge set aside this attachment, being of opinion that the writ did not lie in cases of torts, and a judgment of nonsuit followed.

The plaintiff being dissatisfied, appealed from the above rulings and judgment of the lower court. Tho two appeals were, by consent, consolidated.

We will assume, for the purposes of this case, as the point was not contested, that the presumption of law, arising from the non-delivery of the object in cases of bailment, has no application to slaves; and that the onus probandi of the loss of a slave, through the fault of the hirer, lies on the plaintiff. Downey v. Stacey et al. 1 An. 426. It is, we think, conceded, and the evidence is ample on this point, that the slave Tom, the property of the plaintiff, was drowned while under the employ and charge of the defendants. The value of the slave is also proved, the same being fifteen hundred dollars.

The evidence, which is contradictory on some material points, may be summed up as follows : The steamers Red Ohief and Judah Touro were, on the 5th of June, 1858, lying, side by side, ai the foot of Oanal street, the Touro occupying the outside position ; the distance between the two boats was from three to four feet, and there was a large quantity of produce to be transferred from the Judah Touro to the Red Chief. To facilitate the transfer of the freight a stage was made, consisting of two planks, of about six feet long, placed about two feet apart from each other ; the planks were not made fast; they rested across the chock of the Judah Touro where there was nothing to hold them, the other ends rested on the Red Chief where there was nothing to prevent them from slipping. The guards of the Touro wore from six to eighteen inches higher than those of the Reel Chief. The boats wore not so moored to the wharf as to be steady, being disturbed and moving up and down, whenever other boats passed up and down the river ; the wind was blowing at the time and showers of rain falling occasionally ; it was slippery. The Touro had unfastened her head line, and worked her engines occasionally, there was no lino to hold the two boats together at first, and the one which was afterwards used was not made tight enough for the purpose. One of the planks above described had, about fifteen minutes before the drowniug of the slave, slipped off, whereby a barrel of flour went overboard. The above facts are taken from the testimony ol Greegor, late mate of the Judah Touro, Richardson, acting mate of the same boat, and her engineer Ritter ,• they were on the spot, had all the means of judging; and the two first, being men of experience in such matters say, without hesitation, that the stage was insufficient, insecure and unsafe ; such also is the opinion of Captain Ure, from his description of a proper stage. The testimony and opinion of the other witnesses are not of a nature to weaken the other testimony or to throw doubts on our minds. It further appears that the slave Tom, who was at the time engaged in carrying sacks of corn from the Touro to the Chief, was first seen in the river, between the two boats, with one of the planks of the stage and a sack of corn floating alongside of him. Ho was not seen by any of the witnesses in the very act of falling, but we are satisfied from the evidence that he was precipitated into the river while crossing the staging with a sack of corn, and in consequence of the sudden fall of the plank ; any other conclusion, would be a forced one. After a careful consideration of all the facts and circumstances of the case, apart from the individual opinion of the witnesses, we conclude that the stage made, by the mate of the Red Chief, was apparently defective, insecure and dangerous, and indicated-a want of ordinary care, attention and foresight in its construction. We also conclude that the slave Tom was the unfortunate victim of such want of ordinary care, attention and foresight.

The maxim, quifacit per alium,facit per se, applies with equal force to ownevs of steamboats, who are liable to third persons in civil suits for the frauds,-deceits, concealments, misrepresentations, torts, negligences, and other malfeasances, or misfeasances and omissions of duty, of their agents in the course of their employment, even if they forbade the acts or disapproved of them. In all such cases the rule, respondeat superior, applies ; and it is founded upon public policy and convenience. Story on Agency, Nos. 451, 452.

But it is contended that the same rule does not apply to cases of different agents, employed by the same principal, where one, by his negligence, or omission of duty, causes an injury to the other. As a general proposition, we admit that this is one of the exceptions to the general rule, and the reason assigned is “ that the mere relation of master and servant, or principal and agent, creates no contract, and therefore no duty, on the part of the principal, that the servant or agent shall suffer no injury, from the negligence of others, employed by him in the same business or service ; and that, in such cases, the servant or agent takes upon himself the hazards of any such injury, which may arise in the course of such business or employment; and his remedy for any such injury, by the misconduct or negligence of a fellow-servant or agent, lies solely against the wrong-doer himself/’ Story on Agency, No. 453. In the case of Priestley v. Fowler, 3 Mees. & Welsh 1, Lord Abinger said, “ But in truth, the mere relation of the master and the servant never can imply an obligation, on the part of the master, to take more care of the servant than he may reasonably be expected to do of himself. He is, no doubt, bound to provide for the safety of his servant, in the course of his employment, to the best of his judgment, information and belief. The servant is not bound to risk his safety in the service of Ms master, and may, if he thinks fit, decline any service, in -which ho reasonably apprehends injury to himself; and in most of the cases, in which danger may be incurred, if not in all, he is just as likely to be acquainted with the probability and extent of it as the master,” and in the case of Farwell v. the Boston and Worcester Railroad Corporation, 4 Metc. R. 49, Mr. Chief Justice Shaw said : “Where several persons are employed in the conduct of one common enterprise or undertaking, and the safety of each depends much on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others, can give notice of any misconduct, incapacity, or neglect of duty, and leave the service, if the common employer will not take such precautions, and employ such agents, as the safety of the whole may require.” And again, “ In considering the rights and obligations arising out of particular relations, it is competent for courts of justice to regard considerations of policy and general convenience, and to draw from them such rules as will, in their practical application, best promote the safety and security of all parties concerned.” Elizabeth Hubgh v. N. O. and Carrollton R. R. Co. 6 An. 496. What was the contract between the plaintiff and the defendants ? The former hired his slave as a fireman, or deck hand, for a given time, and for a fixed price. O. 0. 2639, 2662 ; the latter undertook, from the very nature of the contract, to enjoy the thing leased as a good administrator, to feed, maintain, protect and defend the slave, to exercise full control over him, and to render an account of his stewardship. O. C. 2680. We have under our State jurisprudence two species of contracts of letting and hiring, to-wit: 1st. The letting out of things ; 2d. the letting out of labor or industry. G. 0. 2643. The letting out of labor or industry is a contract by which a free person hires his own time and services. 0. 0. 2716. “Labor may bo let out in three ways : 1st. Laborors may hire their services to another person ; 2d. carriers and watermen hire out their services for the conveyance either of persons or of goods and merchandise; 3d. workmen hire out their labor or industry to make buildings or other works.” To let a thing out is a contract by which one of the parties binds himself to grant to the other the enjoyment of a tiling during a certain time, for a certain stipulated rent or hire which the other binds himself'to pay. C. 0. 2644'; and of this nature is the hire of slaves, 0. C. 2695.

We will not discuss the status of a slave; he is responsible to the State for his crimes, but in all other respects he is a passive being, an immovable by the operation of law — 0. 0. 461; he is entirely subject to the will of his master, who may correct and chastise him — 0. 0.173 ; he is incapable of making any kind of a contract — 0. 0. 174; “ In all relations, and in all matters, except as to crimes, a slave is regarded by our law as property.” Forsyth v. Perry, 5 Florida, 337. “And in a contract of hire, constituting a bailment of the property, the hirer is bound to take ordinary cave of the slave, and is liable for ordinary negligence.’’ Same case. As there could not, from the nature of the case, exist a privity of contract between the slave of the plaintiff and the defendants, it follows that the relations of the slave Tom and the free servants, towards the defendants, and vice versa, were not the same, and must, by the force of the case, be governed by different rules, for it is apparant, that the reasons of the exception made in favor of the master against the action of his servants, can not here be invoked, in as much as the slave is bound to risk his safety in the service of his master, cannot decline any service, still less leave the service, but is wholly, absolutely and unreservedly under the absolute control, nay caprice of his master. Again, how could a free servant hold the owner of a slave responsible for an injury occasioned by the want of skill of a slave in the performance of a duty peremptorily required of him by his superior, under the rule that the reparation is due by the wrong-doer and not by the common master ? We can readily comprehend that the plaintiff, in his contract, took upon himself the ordinary risks of the dangers of navigation, but we cannot give our assent to the proposition that he has no recourse against the defendants for the loss of his properly occasioned by the fault of their agents. The usual carelessness of steamboat-men, and unfortunately the too little value which is often set on human life, should not be a means of defence, but rather a forcible reason, in the interest of the community at large, not to enlarge the exceptions to the general rule whicii fixes the liability of the master for the acts of his agents. As the slave Tom was not the agent of the defendants, as the plaintiff did not occupy that relation, and as the property of the plaintiff, committed to the charge of the defendants, might have been preserved with ordinary prudence on the part of the mate, who was the agent of the defendants, it follows that the latter must indemnify the plaintiff.

The liability of the defendants being thus fixed, it becomes necessary to determine if the provisional seizure and attachment of the steamer Red Ohief were properly discharged and released. The two writs were applied for, and obtained, under the 9th section of the Act entitled “ An Act relative to steamboats,” approved March 15th, 1855, p. 468, which provides “ That in all cases where any loss or damage has been caused to the person or property of any individual by any carelessness, neglect, or want of skill, in the direction or management of any steamboat, barge, flatboat, water-craft, or raft, the party injured shall have a privilege, etc., upon such steamboat, etc., for the amount of the loss or damage sustained, and may proceed by attachment, or in rem, to recover the same. Before so proceeding, he, or if he be absent, his agent, or attorney, shall swear to the amount of the loss or damage sustained, and file a bond with good and sufficient security in favor of the owners of the steamboat, etc., whomsoever they may be, whether their names be known or not, for a sum exceeding by one-half the amount of that which is claimed as a security for the payment of such damages as the owners may recover against him, etc.”

This section is full and comprehensive, embracing all cases of loss or damage, resulting from carelessness, neglect or want of skill in the direction or management of any steamboat, and cannot be restricted to cases of collisions, nor was it, under the Act, necessary to swear as to the names of the owners, in order to proceed by provisional seizure, or in the wox'ds of the Act, “ in rem." The wox’d “ collision ” is not to be found in the original Act, Acts of 1853, p. 159, and the marginal xxote of section 9, which marginal note does not constitute a portion of the Act, is as follows : Privilege for damages caused by collision, etc.,” thus repelling the restriction placed by the District Judge. •

The doctrine that no attachment can issue in actions of tort, is too firmly settled to atteinpt to disturb it. 12 R. 565, 2 An. 943, 3 An. 376, 4 An. 63,12 An. 110, but we are of opinion that the very object of the Act of 15th March, 1855, was to authorize the issuing of the process for damages, in all the enumerated cases of the statute. The very language of the Act indicates it, were it otherwise, its object would, in most instances, completely fail.

It is, therefore, ordered, adjudged and decreed, that the judgments of the District Court be reversed; and it is now further ordered, adjudged and decreed, that the writs of provisional seizure and attachment, and the provisional seizure and attachment of the steamer Red Chief under the same, bo reinstated : It is further ordered, adjudged and decreed that the plaintiff have judgment against the defendants for the sum of fifteen hundred dollars, with legal interest thereon from the 5th of June, 1858, till paid, and the costs of both courts, and with privilege on the said steamer Rod Chief, her tackle, apparel, furniture, fixtures, etc. And that this judgment be satisfied by the sale for cash, and according to law, of the property provisionally seized and attached, to-wit: the steamer Red Chief, her tackle, fixtures, etc., etc.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    John C. Stewart v. John C. Christy and the City of New Orleans.
    Whore a party contracted to do work for the city, and the materials were furnished by a third person —Held: That the notification of the contractor’s order upon the Comptroller for a warrant in favor of the furnisher of materials, for a portion of what might bo found coming to him, (the contractor,) when his account should be audited, had not the effect of making the city the debtor, m the place of the contractor.
    By the Mechanics’ Lien Law of 1855, p. 327, it is required that the attestod account of materials furniched should be left in the hands of the owuor, in all cases, by the workman or material man, m order to bind the former.
    APPEAL from the Fifth District Court of Now Orleans, Eggleston, J.

      M. M. Reynolds and S. Livingston, for plaintiff.

      J. J. Michel, A. J. Villeré and /. C. Bolling, for defendants and appellants.
   Buchanan, J.

Defendant, Christie, had a contract with the city for building a wall around the Lafayette Cemetery, for the price of $4300. He did the work according to contract, which was accepted by the City Surveyor.

Plaintiff furnished bricks and sand to Christie for making said wall; and Christie gave plaintiff an order upon the City Comptroller for a warrant in favor of plaintiff, for the amount of his bill, say $2256 35, on account of the amount that would be due him, Christie, on the completion of his contract.

The Comptroller’s clerk registered this order on his books, but did not give plaintiff a warrant.

Plaintiff now sues the city and Christie, and has judgment of the District Court against them in solido, from which the city appeals.

To support this judgment, it is incumbent upon plaintiff- to show, either that the city has bound itself to him directly, or that it is bound to him in law, for the payment of the materials furnished by plaintiff to Christie for the execution of the contract of the latter with the city.

The record furnishes no evidence of a conventional obligation on the part of the city towards plaintiff.

The notification of Christie’s order upon the Comptroller for a warrant in favor of plaintiff, for a portion of what might be found coming to Christie, when his account should be audited, had not the effect of making the city the debtor of plaintiff in the place of Christie. It is proved by Mr. Hitzelberger, the Deputy Comptroller, to whom this notification was made, that he requested plaintiff to leave this order with him, as he could not do anything for him unless he did so ; and unless he did so, he would have to give Christie his warrant in full. Yet, the plaintiff preferred to take away this vouchor, and retain it in his own possession.

At the time this order was presented at the Comptroller’s office, that officer was not authorized, as it seems from the evidence, to give a warrant as required. The mode of doing business of this kind, in the. city administration, is proved to be as follows:

Claims for work done for the city under contract, are audited and approved, in the first place, by the Committee on Streets and Landings, after a certificate of the City Surveyor, that the work has been done according to contract.

The claim thus approved is next laid before the Committee of Finance; and if found correct by them, the two chairmen of those committees authorize the Comptroller to draw a warrant upon the Treasurer for the amount.

In this case, the City Surveyor, examined as a witness, declares that he certified the work to have been done by Christie according to his contract; and that he knows that the claim of Christie has been approved by the Streets and Landings Committee; but ho does not know whether it was approved by the Chairman of the Finance Committee.

Neither can the city be held under the Mechanics’ Lien Law of 1855, p, 32'7. Plaintiff has not brought himself within the provisions of that Act by delivering to the city of New Orleans an attested account of the materials furnished to Christie, as required by that Act. It is clear, from the phraseology of the first and second sections of thpt statute, that the attested account is to be left in the hands of the owner by the workman or material man, in order to bind the former.

In this case, it is argued that as Christie did not dispute the amount due by him to plaintiff for materials, that an attested account of those materials would not be necessary under the Mechanics’ Lien Act; but this does not appear to be the law. Such an account is required in all cases to bind the owner; and the reason seems very obvious. It is a mode of preventing collusions to the prejudice of other creditors of the contractor.

On the whole, we conclude that the plaintiff has failed to make out a case, as against the city.

It is, therefore, adjudged and decreed, that the judgment of the District Court as regards the city of New Orleans, appellant, be reversed ; and that there be judgment in favor of said appellant, and against the plaintiff and appellee, as in case of nonsuit, with costs in both courts.


text:
    R. A. Hutchinson v. S. C Mitchell & Co. et al.
    In the absence of special notice brought home to the holder of a hill of exchange, as to the objects for which a credit or authority to draw is given, it is no defence to an action on a bill drawn under an unconditional authority, that the authority was intondod to have been used in a particular form.
    APPEAL from the Fourth District Court of New Orleans, Price, J.
    /. Ad Rosier, for plaintiff and appellant.

      Lea é Marr and T. S. McCay, for defendants.
   Buchanan, J.

This is a suit upon a draft or bill of exchange for $1000, drawn by tho defendant, Fuqua, on the defendants, Mitchell & Co., and protested for non-acceptance and non-payment.

The petition alleges, that plaintiff had taken this draft on the faith of letters of credit given by the drawees to the drawer, which authorized the latter to draw upon tho former, and promised to protect bills so drawn.

The defence of Miiichell & Co. is, that the letters of credit referred to in plaintiff’s petition had been exhausted previously to the drawing of this bill. Those defendants also denied in their answer, that the draft sued on was drawn or taken in the usual course of business, upon tho faith of the credits of 11th December, 1856 ; and that defendants, Mitchell <$s Co., were under any obligation to accept or pay said draft.

Upon the first ground of defence, the fac tappears to us to be otherwise than stated in the answer. The amount of the two letters of credit of the 11th December, 1856, (ten thousand dollars) had not been exhausted at the time of drawing the bill in question. The previous bills drawn against those letters of credit only amounted to eight thousand seven hundred dollars.

Upon the second ground of defence, it appears that the bill in question was negotiated by the Branch of the Southern Bank of Kentucky, at Ilickman, within a few days after its date, in reference to the letters of credit of Mitchell & Co. of the lltli December, 1856, which were deposited with that bank.

It is alleged in tho answer of Mitchell & Co., that the letters of credit in question were given to Fuqua to be used by him in purchasing produce to be shipped to Mitchell & Co., in New Orleans, and for this purpose only; and that plaintiff was fully advised of this when he took the draft; and that the bank which negotiated and discounted said draft well knew the same fact. And it is charged, that the draft sued upon was not given for, or used in the purchase of produce to be shipped to the drawees.

The defendants have failed to prove the allegations of their answer in reference to the purpose for which the credits were intended to be used, and the knowledge of such purpose on the part of plaintiff and of the bank.

No witness has been called by defendants; and the only witness who was examined for plaintiff, the book-keeper of the bank at Hickman, being asked, on his cross-examination by defendants, if the credits were not intended to enable Fuqua to discount at the bank, bills drawn on defendants by him for tho purposes of tlicir business, — answers, that he does not know, for what purpose the money (proceeds of drafts discounted) was to be used.

The fact is, that the proceeds of discount of tho draft in question wore applied by the bank to the settlement of a judgment hold by the bank at Ilickman against Fuqua, the drawer, as principal, and the plaintiff as surety. But in tho absence at least of special notice brought home to the holder, the objects for ■which a credit, or authority to draw, is given, it is no defence to an action on a bill drawn under an unconditional authority, that tho authority was intended to have been used in a particular form. Davidson v. Keyes, 2 Rob. 254.

It is, therefore, adjudged and decreed, that the judgment of tho District Court as to the appellees, Mitchell & Co., be reversed ; and it is further decreed, that the plaintiff and appellant, Robert A. Hutchinson, recover of defendants and appellees, Stephen C. Mitchell & Co., ten hundred and seventy-seven dollars and seventy-two cents, with legal interest from judicial demand (April 26th, 1859.) until paid, and costs in both courts.

Duffel, J., absent.


author: Land, J.

text:
    Julius Witkowski and Wife v. Louis Selby.
    Powor is vcstftd by tho Code of Practice in the Clerks of District Courts, to grant orders of injunction in the absence of tho Judge from the parish, or when lie is interested in the cause ; but they are in all cases required to talco bond and security from tho party at whose suit tho order of injunction is granted.
    Where a party obtained an injunction to arrest tho execution of an order of seizure and sale, without giving bond and security, as required by Articles? 739 and 740 of the Code of Practice — Held: That, the injunction being dissolved, the party against whom it was wrongfully obtained is entitled to recover from the party obtaining it five por cent, damages on the amount of tlie judgment enjoined.
    APPEAL from the District Court of the Parish of Carroll, Farrar, J.

      Sparrow <fi Montgomery, for plaintiifs. Louis Selby, in pro. per., defendant and appellant. .
   Land, J.

The plaintiffs obtained an order of injunction, without giving bond and security, under Articles 739 and 740 of the Code of Practice, to arrest the execution of an order of seizure and sale obtained by the defendant on certain mortgage notes which had been executed by the plaintiffs in his favor.

Tho defendant filed a motion to dissolve the injunction, on certain specified grounds, and prayed for damages against the plaintiffs, under the statute, for illegally suing’ out the writ.

The injunction was dissolved; bat- the District Judge refused to allow damages to the defendant, and he has appealed, and assigns for error the refusal of the District Judge to award him damages, under the statute, as prayed for in his motion to dissolve the injunction.

The order of injunction was granted by the District Clerk, and the only question for our decision is, whether District Clerks have power to grant orders of injunction without requiring bond aud security.

Since the Code of Practice went into effect, power has been vested in the Clerks of District Courts to grant orders of injunction in the absence of the Judge from the parish, or when he is interested in the cause; but they are, in all cases, required to take bond and security from the party at whose suit the order of injunction is granted. Acts of 1855, p. 50.

The District Clerk, therefore, acted illegally in granting tho order of injunction without requiring bond and security, and his omission of official duty cannot inure to the benefit of tho plaintiffs, who wrongfully obtained the order and sued out the writ of injunction.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be reversed, so far as it rejects tho defendant’s claim for damages under the statute; and it is now ordered, adjudged and decreed, that the defendant recover of tho plaintiffs in solido the sum of five hundred dollars damages, the same being five per cent, on the amount of the judgment enjoined; and that the judgment of the lower court, thus amended, be affirmed, with costs in both courts.


author: Duffel, J.

text:
    Martin Crane v. William Beatty.
    Tbe Act of the 20th of Mircli, 1856. entitled “An Act relative to tbe rate of interest ” had in view tbe sale of notes and other written obligations, their discount or sale for the purpose of raising money, and nothing more. The wórds interest or discount, m.the sense in which they are taken m the Act, are synonimous, meaning the per centage deducted on the sum expressed in tho note or bond, &o. The provisions of tho Act cannot be so extended as to authorize and legalizo all transactions between debtors and creditors wherein usurious interest is added to tho sum really due, as a consideration for an extension of time, or for the indulgence of tho creditor.
    The penalty attached by tbe Act of 1855 to tho charging of usurious interest, is a forfeiture of the entire interest contracted for.
    APPEAL from tho Sixth District Oourt of New Orleans, Ilowell, J.

      Michel & Koontz, for plaintiff.

      E. Iliestand, for defendant and appellant.
   Duffel, J.

The defence set up in this case is usurious interest. It appears from the evidence, that the origin of this claim was a note of $795, dated 18th June, 1857. This note was renewed on the 14th of December, 1857, by another note of $900, which was, on the 16th of April, 1858, renewed for $1,062 ; and the two notes sued on, and forming in the aggregate the sum of $1,062, were, on the 19th of October, 1858, given in lieu of the last one, and were made payable at four and six months. Tho above notes were all drawn by the defendant to the order of the plaintiff. By calculating interest at eight per cent, from the 18th of June, 1857, and adding the interest to tho principal, at each renewal, it will be seen that at least $127 of usurious interest were charged. But the plaintiff contends that the plea of usury cannot prevail, because the notes do not boar on their face any interest, and we are referred to tho Act approved March 20th, 1856, p. 130, entitled “An Act relative to the rate of interest.” The Act says : “ That the owner or discounter of any note, or bond, or obligation, or other written evidence of debt, for the payment of money, payable to order or bearer, or by assignment, shall have tbe right to claim and recover the full amount of such note, bond or obligation, or other written evidence of debt, and all interest not beyond eight per cent, per annum that may accrue thereon, notwithstanding that the rate of interest or discount at which the same may be or may have been discounted has been beyond the rate of eight per cent, per annum interest or discount, any law to the contrary notwithstanding, &c.”

After mature consideration, the majority of this court came to the conclusion, that the above Act of the Legislature does not affect, in the case at bar, tho Act approved March 15th, 1855, p. 352, entitled “ An Act to regulate the rates of interest,” which latter Act must control the decision of the present action. The Act of March, 20th, 1856, had in view the sale of notes and other written obligations. their discount or sale, for the purpose of raising money, and nothing more. The words interest or discount are, in tho sense in which they are taken in the Act, synonimous, meaning the per centage deducted on the sum expressed in the note, bond, &c. The provision of the Act cannot be extended so as to authorize and legalize all transactions between debtors and creditors, wherein usurious interest is added to the sum really due, as a consideration for an extension of time, or for the indulgence of the creditor; and such appears to be the character of the obligations which are sought to bo enforced in 'this case. Tho notes sued on were never discounted by the payee, but were taken in renewal of other notes, with the addition of usurious interest therein.

The penalty of the Act of 1855 is a forfeiture of the entire interest contracted for.

It is, therefore, ordered, that the judgment of the District Court, which allowed the whole claim, be avoided and reversed; and it is now ordered, adjudged and decreed, that the plaintiff have judgment against the defendant, for the sum of seven hundred and ninety-five dollars, with legal interest from judicial demand, aud the costs of the lower court, the plaintiff paying the costs of the appeal.

Land, J., absent.


author: Merrick, O. J.

text:
    Timothy Shanghnessy v. Casper M. Fogg—A. T. Steele, Garnishee.
    A party having issued an execution agaiust his judgment debtor, may propound interrogatories to a garnishee, where the object of the proceeding is to ascertain whether he has money or other funds in his hands belonging to the debtor *, under such circumstances, it is not necessary that the plaintiff should resort to the revocatory action.
    Where interrogatories were addr'rssod to an attorney, to ascertain who was his client, when that relationship commenced and ended, and what money had been received, and what paid over, and to whom paid — Held: That none of these matters aro privileged communications within the meaning of Article 2262 of the Civil Code.
    An attorney may be asked through whoso agency, or in what manner, or at what time, he was retained.
    An attorney should bo excused from answering interrogatories, when he declares on oath that he cannot answer the same, without disclosing matters confided to him by his client, or advice given by him to his client concerning business about which he was retained.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Simonds & Fenner, for plaintiff and appellant.

      A. T. Steele, for defendant.
   Merrick, O. J.

The plaintiff having issued an execution against his judgment debtor, propounded twenty-one interrogatories, under the Act of 1839, to the garnishee, A. T. Steele, Esq., an attorney and counsellor at law, in order to ascertain whether he has funds in his hands belonging to the defendant.

A. T. Steele answered the first three, and declined to answer the remaining interrogatories except partially, on the ground that he was called upon to disclose privileged communications received from his clients, and that the facts sought can only be proved in a revocatory action, and not in a proceeding by garnishment.

The garnishee was relieved from answering by the court, and plaintiff appeals.

With the exception of the 19th and 21st interrogatories, the facts sought to be elicited tend to show the date of the party’s retainer, who is his client, the sums of money he has received, the persons from whom received, the payments made, and the persons to whom, and the date of the correspondence.

The 19th interrogatory calls for letters from Fogg; the 20th assumes that he has received one, and requires the garnishee to look for it; and the 21st demands a copy of his letter acknowledging, the receipt of the notes, or his letter to Fogg in reply.

We are of the opinion, that the questions cannot be objected to on the ground of the form of the proceeding. It is evident, that the object of the proceeding is to ascertain whether the garnishee has money or other funds in his hands belonging to the defendant. We cannot, therefore, perceive any good reason why the party should be compelled to resort to the revocatory action.

It is next contended, that the questions are objectionable because the garnishee is called upon to disclose matters communicated to him, as an attorney-at-law, by his client.

Our law does not differ materially from the common law on the subject. Article 2262 O. 0. declares that, “No attorney or counsellor-at-law shall give evidence of anything that has been confided to him by his client, without the consent of such client; but his being employed as a counsellor or attorney does not disqualify him from being a witness in the cause in which he is employed.

It is thus evident that the attorney cannot be permitted to disclose anything that has been confided to him by his client. But to bring the matter within the privilege which exempts the communication from disclosure, it must appear who is the client, in order to know whose communications are to be excluded. Again, it must be something confided by the client to the attorney.

Now, with the exception of the 19th and 21st interrogatories,, the object is simply to ascertain who is the client who entrusted the notes to Mr. Steele for collection ; when that relationship commenced and ended, and what money has .been received, and what paid over, and to whom paid. None of these matters appear to us to be privileged communications; and, if án attorney-at-law were not permitted to disclose who was his client, and what sums of money he had received or disbursed on his account, it would give rise to great frauds. If the attorney may be interrogated as to who is his client, he may also be asked through whose agency, or in what manner, and at what time, he was retained. See 1 Greenleaf, Evidence, sec. 245 ; 2 Starkie, on Evidence, 398 ; 6 N. S. 284; 4 La., 500 ; 11 Wheaton, 280 ; 3 Rob. 204; 3 Rob. 230.

We think the District Judge ought to have compelled the garnishee to answer all the interrogatories, except the 19th, 20th and 21st, and that the garnishee should be excused from answering these, only on answering under oath to each, that he cannot answer the. same without disclosing matters confided to him by his client, or advice given by Mm to Ms client, concerning the business about which he was retained.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; that the exceptions of the garnishee to the interrogatories be overruled, and that this case be remanded to the lower court for further proceedings according to law ; the garnishee paying the costs of the appeal.

Land, J., absent.


text:
    Succession of Louise Montamat, Widow Ives LeBlanc, Mrs. E. LeBlanc, Curatrix of Eugene LeBlanc, v. Duncan Kennedy, Administrator, et al.
    Necessary expenses paid by the parent for one of tlie children, or by the administrator after the parent’s death, should be deducted from the share of that child, upon the partition of the succession. Tlie party who pleads prescription is bound to prove the facts necessary to sustain the pica.
    APPEAL from tlie Second District Court of New Orleans, Morgan, J.

      A. Robert, for plaintiffs and appellants.

      G. LeGardeur and P. E. Théanl, for defendants.
   Buchanan, J.

This is an action for partition. Plaintiff represents her husband, an interdicted person, lieir, for one-fifth, of his mother; of whoso estate tlie defendant, Duncan Kennedy, is administrator, and the other four defendants are heirs.

Plaintiff calls upon the administrator and the co-heirs for a division of the proceeds of the succession sold, and also of sums received for rent alleged to amount in the aggregate to #17,060.

The administrator files an account showing the net proceeds of the succession property, after deducting charges and claims, to be #9,120 37, of which one-fifth or #1,824 07 belongs to each heir.

lie also files his account with the heir whom the plaintiff represents, crediting him with #1,824 07, his share of his mother’s succession, as aforesaid; and charging him with sundry expenditures amounting to #3,642 74. — Balance to debit of plaintiff, #1,818 67,

The judgment of the District Court amended these accounts by allowing hire of two slaves, at twelve dollars a month each, as a credit to the succession, and approving, in other respects, the administrator’s accounts.

Plaintiff appeals, and has filed in this court a plea of prescription of three and ten years against the allowance, as a charge against the succession, in favor of one of the defendants, Stephanie LeBlanc, of #1,907, her share in the succession of her father, Ives LeBlanc, received by her mother, the decedent.

Appellant complains of the judgment of the court below, on three grounds.

1st. Because it did not allow for rent of house received by the administrator.

2d. Because it allowed #2,130 for necessary expenses of plaintiff’s husband, Eugene LeBlanc, paid by his mother; also items paid for the same by the administrator.

3d. Because it allowed #1907 to Stephanie LeBlanc, as creditor by mortgage of the succession.

I. The omission of house rent as a credit to the succession, in the judgment, seems to have been the effect of inadvertence, and which would probably have been corrected by the District Court, had the same been brought to its attention. But it is remarkable that, although a new trial was applied for by the appellant, yet this was not made a ground for the application.

The administrator (who is also the attorney in fact of three out of the five heirs,) has filed a separate statement of the amount collected by him for house rent, being eleveu mouths and seventeen days, at $165 per month, or $1,908 50. Against this amount, he has charged tho sums paid by him for doctor’s bills, fuucral expenses, duo bill of Widow LeBlanc, and insurances, taxes and repairs to the property, and his own commissions as administrator on the amount of rent collected — total $866 98, leaving a balance in the administrator’s hands of $1,041 52, by which amount, as a credit to the succession, the judgment is to be amended.

II, The court did not err in making the allowances which are the object of this ground of complaint by appellant.

The plea of prescription against the claim of Miss Stephanie LeBlanc upon her mother’s succession, for her share in the succession of her father, is not sustained by proof. It is admitted of record, that a special mortgage was executed by Mrs. Ives LeBlanc on the house corner of St. Peter.and Royal streets, in favor of her minor children, for the security of their rights in their father’s estate ; and that the rights of each child amounted to $1,901. In this admission we find no date, as a starting point for prescription. The party who pleads prescription is bound to prove the facts necessary to sustain the plea. Andrews v. Rhodes, 10 Rob. 52.

It is, therefore, adjudged and decreed, that the judgment of 1he District Court be amended, - by crediting the succession of Mrs Ives LeBlanc, and debiting tho administrator with the sum of ten hundred and forty-one dollars and fifty-two cents, as balance in his hands of rents of house collected ; that in other respects the said judgment be affirmed; and that the costs of this appeal bo borne by tho succession.

Land, J., absent.


text:
    Henry Keenan v. Wm. B. Whitehead.
    TTherea judgment on a debt, arising ex contractu, decrees interest, but is indefinite as to the time when it commences to run, tho interest decreed must bo considorcd as commencing on the day that the suit was instituted.
    Until a party has executed his bond in such sum as is ordered by the Judge granting an appeal, llis appeal is not perfect, either as a suspensive, or a devolutive appeal. But where the appellant lias complied with the Judge’s order, and given bond in the sum fixed, if the bond is insufficient for a suspensive appeal, still it is good for a devolutive appeal.
    APPEAL from the District Court of the Parish of St. John the Baptist,

      Laiocs, J. Handlin & St. Paul, for plaintiff

      Berault & Legendre, for defendant and appellant.
   Merrick, O. J.

There is a motion in this case to dismiss the appeal.

The prayer of the petition is for the sum of $1,500, and general relief. The judgment, which was rendered in March last, is for $1,500, “ with interest from the 15th day of December, at the rate of five per cent, per annum,” &c., the year being omitted.

The defendant was allowed a suspensive appeal, upon giving his bond with good and solvent security according to law. He executed a bond on the 22d of March, ] 860, in the sum of $2,250, the proper amount for a suspensive appeal from a judgment for $1,5C0 without interest, but insufficient if interest be added. The defendant contends that, as the judgment is indefinite as to the date from which interest is to run, and as plaintiff has not demanded interest in the petition, the bond is sufficient. That if it is not good for a suspensive appeal, it is good for a devolutive appeal.

The suit was instituted on the 15th day of December, 1859, and as all debts (at least arising ex contractu) boar interest, the interest decreed must be considered as commencing on that day. This interest ought to have been covered by the bond. The condition upon which a party is permitted to appeal, is, that he execute his bond in such sum as ordered by the Judge' granting the appeal. Until he has complied with this order, his appeal is not perfect in this court, either as a suspensive, or a devolutive appeal. C. P. 573, 574, 575. It is otherwise where the appellant has complied with the Judge’s order, and given bond in the sum fixed. In such case, we hold, that if the bond is insufficient for a suspensive appeal, still it is good as a devolutive appeal, because it is the amount fixed by the Judge. See 2 La. 87, G An. 562, and 5 La. 129. See also 2 An. 462, 4 An. 534, 5 An. 360,12 An. 175,10 An. 110, 5 Rob. 63, 9 Rob. 167.

It is, therefore, ordered, adjudged and decreed by the court, that the appeal in this case be dismissed, at the cost of the appellant.

Land, J., absent.


text:
    Selina F. Savage v. John Holmes, Recorder of Mortgages, et als.
    On an application for a mandamus to compel the Recorder of Mortgages to erase an inscription, all that is minired is, that the parties in interest should have notice of the application, in order that their rights, where they have such, may bo protected.
    A mandamus is the proper remedy to compel a ministerial officer to perform a purely ministerial Act In an action for a mandamus — Held: That the order to show cause, on a certain day fixed by the court, the summary hearing of the grounds of objection and evidence, and the judgment decreeing a peremptory mandamus to issue, are in conformity to Articles S41,842,843 of the Code of Practice.
    APPEAL from the 5th District Court of New Orleans, Eggleston, J.

      T. Gilmore, for plaintiff.

      Durant & Hornor, George S. Lacey and T. Drout, for defendants and appellants.
   Buchanan, J.

On the 29th of January, 1859, the plaintiff entered into a written contract, before II. B. Cenas, Notary Public, with one Joseph Morehouse, a builder, for the erection of a double two-story dwelling house on two lots of ground, on Palmyra Street, in this city. The price was payable in six several instalments as the work progressed, viz :

1. "When the foundation -was laid, $500; 2. When the building was raised, $500; 3. When tho weatherboarding and slating was done, $1000; 4. When the floors were laid, $300 ; 5. When the plastering was finished, $400 ; 6. When the building was completed and possession delivered, $2000.

The building to be completed and possession delivered on or before the 30th day of April, 1859.

After the work had progressed as far as the slating and weather-boarding, and after tho contractor had received the three first payments, amounting in all to §2000, the last of the 24th of March, 1859, he abandoned the work, alleging his inability, for want of means to complete it.

The plaintiff thereupon put Morehouse in default, by a formal demand to complete the work he had undertaken, or that she would employ others to complete it at his expense.

Morehouse replied to this demand, but persisted in his abandonment of the work, and shortly afterwards left the State, to which he has not since returned.

The plaintiff was, consequently, obliged to employ other contractors, which she did after the lapse of nearly a month — after the time had expired within which Morehouse had bound himself to deliver the building, and after she had invited a number of estimates from other builders.

The cost of completion absorbed the amount in the hands of the proprietor, and required an additional outlay of §71116.

Being without cash means to pay off the additional liability thus incurred, the plaintiff applied to the Recorder of Mortgages to cancel and erase the inscription of the building contract, to enable her to effect a loan by mortgage of the property. This the Recorder having refused to do, the plaintiff filed the present application, in which she prays that the court, after due notice to those having an' interest, real or pretended, may order the defendant, the Recorder of Mortgages, to cancel the inscription.

Full proof of all these facts having been laid before the court, a judgment was rendered in conformity with the prayer of the petition, ordering the erasure of the inscription.

This judgment has been acquiesced in by the Recorder of Mortgages, by More-house, and by all the parties, except the appellants, who seek its reversal upon the grounds stated in the assignment of error on file.

1. They were not brought into court by petition and citation.

2. That the case was taken up for trial, and finally decided, at a time when, by law, no definitive judgment could be rendered by the District Court.

3. That the District Court proceeded to overrule their exceptions, and decide the case on its merits, in the absence of judgment by default, or of an answer to the merits:

I. As to the first ground. The Article 3342 of the Civil Code provides for the erasure of a mortgage which has been satisfied, and where the mortgagee has absented himself, by a proceeding- at the instance of the mortgagor.

Numerous cases in this court, as well as the daily practice of the District Courts, might be referred to in support of the summary remedy by rule or mandamus, to compel the Recorder of Mortgages to erase inscriptions. All that the courts require in such cases is, that the parties in interest should have noHce of the application, in order that their rights, where they have rights, may be protected.

The plaintiff by her petition, asks for nothing but the erasure of the inscription of the contract. Her remedy is against the Recorder of Mortgages, to compel that officer to perform a purely ministerial duty. True, she gives notice of the application to all those who have, or pretend to have, an adverse interest, but she makes no demand of them, and asks for no judgment against them.

Mandamus is the proper remedy to compel a -ministerial officer to perform a purely ministerial act. O. P., Art. 834, 6 Rob. 299, 8 Rob. 97, 6 An. 68.

The form of proceeding in the present case — the order to show cause, on a certain day fixed by the court, — the summary hearing of the grounds of objection and evidence, and the judgment decreeing a peremptory mandamus to issue. — are in conformity to Articles 841, 842 and 843 of the Code of Practice.

II. The second ground of error assigned docs not appear to have been urged in the court below. It cannot, therefore, be considered by us.

III. The third ground of error assigned confounds the summary proceeding by mandamus with an ordinary action. On the return day of the writ, the exceptions and defences of law urged by the appellants were heard and disposed of, evidence introduced by both parties upon the facts, and a final judgment rendered. The appellants made no application for a continuance, to procure further evidence, or to rebut that of the relator.

On the merits, the judgment of the court below appears to be justified by the evidence.

The relator was not indebted to Morehouse when she was served with the attested account of appellants, nor has she become indebted to him, in any amount, since; neither did she make him any payment by anticipation of the terms expressed in the contract. The appellants, therefore, should hold under and not beyond Morehouse. Hale v. Wills, 3 An. 505.

Judgment affirmed, with costs.

Land, J., absent.


text:
    State, on relation of Wm. T. Chapman, praying for a prohibition to the Judge of the Fifth District Court of New Orleans.
    No appeal will lie from an interlocutory judgment refusing the removal of a case, on the application of dofondant, from a State to a Federal Court. The only remedy the defendant has in the Supremo Court is by appeal from the final judgmont which may bo rendered against him in the cause. Upon such appeal, he may assign as error the refusal of the District Court to remove the cause.
    On an application for a writ of prohibition to the Judge of the Fifth District Court of New Orleans.

      Simonds & Fenner, for relator.
   Buchanan, J.

The petition of relator alleges, that he is an alien, and a subject of the Queen of Great Britain; that having been sued by one Thomas II. Parish, in the Fifth District Court of New Orleans, relator applied to said court, by petition, for leave to remove the cause into the Circuit Court of the United States for this district, and gave bond for costs, as required by the Act of Congress ; but that the Judge of the court refused leave to remove the cause, as prayed for.

Relator represents that, under the Act of Congress, of September 24th, 1789, and the decisions of the Supreme Court of the United States, the State court is without jurisdiction to proceed further in a cause in which an application has been properly made for removal to the Federal court.

And relator prays for a writ of prohibition directing- the Judge of the Fifth District Court of New Orleans not to proceed further in said cause.

It has been decided in several cases, that no appeal will lie from an interlocutory judgment refusing the removal of a cause, on the application, of defendant, from a State to a Federal court. The only remedy of the relator, in this court, is, by appeal from the final judgment which may be rendered against him in the cause. Upon such appeal, he may assign as error the refusal of the District Court to remove the cause. Ralph v. Claiborne, 2 Martin 176; Higgins v. McMicken, 6 N. S. 112; Baron v. Kigsland, 5 La. 318.

It is, therefore, adjudged and decreed, that the petition of relator be dismissed, at his costs.


author: Duffel, J. Buchanan, J.,

text:
    Jacob Burkett v. Dominique Lanata.
    The Act, approved March 15th, 1855, entitled “An Act supplemental to an Act relative to crimes and offences, is not restricted in its application to hank officers, hut embraces all classes of persons.
    In an action for malicious prosecution the specific allegation of want of probable cause is not essential or sacramental. 'Where the allegations of the petition amply indicate a want of probable cause, they contain all the necessary elements to prosecute the action.
    The question of probable cause is composed of law and fact — it being the province of the jury to determine whether the circumstances alleged are true, and of the court to determine whether they amount to probable cause.
    The allegation and proof that a party was arrested on an affidavit made by another, that he was discharged by the examining magistrate proprio motu, but clearly with the knowledge and silent acquiescence of the prosecutor, that the prosecution is at an end, and that the prosecutor acted without probable cause, and in legal intendment maliciously, gives the right to an action for damages.
    If no evidence is given of particular damages, the jury are not thereforo bound to find nominal damages only.
    Exemplary damages should be commensurate to the nature of the offence, having due regard to the standing of the parties, and when extravagant damages are allowed, they will be reduced to their proper standard.
    APPEAL from tbe Second District Court of New Orleans, Morgan, J.

      Singleton <& Clack and J. T. Wheat, for plaintiff.
    C. Dufour and C. Roselius, for defendant and appellant.
   Duffel, J.

This is an action for a malicious arrest and imprisonment. The plaintiff claimed $10,000 damages, and the defendant is appellant from a judgment of $1000, rendered on a verdict of the jury who were impanneled to try the cause.

The principal facts of the case, as disclosed by the evidence, are: that the plaintiff is a merchant in the city of New Orleans, carrying on the business of a family grocery; that he has a wife and two or four children ; that he was in the habit of supplying his store by purchases on short credits made from the commercial house of Lanata Brothers; that being indebted to said house in the sum of $290 05, ho was finally induced by the clerk or collector of Lanata Brothers to give, on the 3d of December, 1851, his check for said amount on the Orescent Oity Bank, payable to the order of Lanata Bros, and dated ahead, 8th December, 1851; that it was well understood, at the time, that he had no funds in bank, but expected to be able to deposit the amount in time ; that the check was given with that understanding, and at the solicitation of said collector to save him the trouble of calling again; that early in the morning of the 8th of December, 1851, the plaintiff sent his clerk out to collect a sufficient sum to meet the payment of the check, but being unsuccessful, he desired his clerk to call on some friends to borrow the money, and that failing in this, he then, between the hours of 8 and 9 o’clock, A. M., sent his clerk to Lanata Bros, to ask them to hold the check for two days, when it would be paid ; the answer to this message was that the check had been used the day before ; that the check having been refused by the bank, Lanata Bros, redeemed it; that on the following day the plaintiff did again sen'd his clerk to Lanata Bros, to ask them to keep the check until the next day, that he would then pay it, but a brother of the defendant answered that it was too late, that the defendant had gone out to make an affidavit against the plaintiff'; that the plaintiff was arrested on the same day on the affidavit of the defendant, Charging him with having drawn a check on a bank having no money deposited therein at the time, with intent to commit fraudthat the plaintiff was searched by a police officer, and locked up in a cell for a space of an hour and a half, his store left opened in charge of a small negro ; that the plaintiff was released on giving bond to appear the next day before the examining magistrate ; that the check was paid on the following day, at the suggestion of the magistrate, the plaintiff protesting all the while against the arrest, and the charge was thereupon dismissed. The Recorder says, “ I told Mr. Lanata, you will have your money and I will dismiss the case. I do not recollect that he made any objection to this, but I was not consulting Mr. Lanata. The charge was never withdrawn, it was dismissed on condition that it would be made good at the bank. The check was made good and the amount came into my hands, and was paid over to Lanata Bros. Dominique Lanata did not appear to prosecute the charge made under the affidavit, the case was never fixed for trial.” The brother of the defendant testifies, “ That Mr. D. Lanata made the affidavit. He made it for the purpose of compelling payment of this check. My brother is a gentleman of wealth. Money was very tight in the fall of 1857 and money scarce. All the free banks suspended, so did the Citizens’ Bank.” It appears also that the plaintiff made, from the 3d to the 8th of December, 1857, deposits in the Crescent City Bank to the amount of $11'74 77, and that he only had to his credit on the evening of the latter day, $52 28, thus showing that he had, between those dates, drawn for $1122 49. The plaintiff contends that the Act approved March 15th, 1855, p. 398, entitled “ An Act supplemental to an Act relative to crimes and offences,” under which the affidavit was made for his arrest, applies only to bank officers. This is an error, its provisions are sweeping' and embrace all classes of persons. The Act after enumerating the officers of banks, adds “ As also any person who shall, with a view to defraud any such banker or banking company, knowingly draw or pay a check or checks, without funds in the said company drawn upon, etc.”

The defendant filed a peremptory exception to the plaintiff’s petition, to the effect that the petition does not contain any cause of action. The petition sets forth at length, the circumstances under which the check was drawn, his exertions to induce the defendant, and his co-partners, to withhold the check from the bank for two days, the affidavit, his arrest, his discharge and the motives which actuated the defendant; and he charges specially, “ That throughout the whole of these proceedings, connected with the arrest and confinement of your petitioner, the said Dominique Lanata has acted most wrongfully, illegally and maliciously.” It is true, that the petition does not contain the specific allegation of the want of probable cause ; but we do not understand that those words are essential or sacramental. We look, in civil actions, to the substance in order to be able to determine the sufficiency of the cause of action ; and if, in the case at bar, the allegations of the petition are true, and they must be so considered to test the validity of the exception, then we are forced to acknowledge that the allegations of the petition amply indicate an utter want of probable cause, and contain all the necessary elements to prosecute the action. Parish v. Municipality, 8 An. 145. The question of probable cause is composed of law and fact; it being the province of the jury to determine whether the circumstances alleged are true or not; and of the court to determine whether they amount to probable cause.” Greenleaf vol. 2, § 454. The exception was therefore properly overruled.

On the merits of the cause it appears to us clear, from the evidence, that the animus furandi did not exist, for it is apparent that the plaintiff never entertained the idea of defrauding the bank, and this too to the perfect knowledge of the defendant. And had the complaint been made by any third innocent person, the plaintiff would have been, at once,'discharged on the disclosure of the facts known by the defendant. The plaintiff may have acted dishonestly towards the defendant, but such conduct would not authorize a prosecution under the statute. A stronger case of want of probable cause, within the knowledge of the informer, could hardly be supposed; and it is-not even alleged that the defendant acted under legal advice. It is alleged and proved that the plaintiff' was arrested on an affidavit made by the defendant, that he was discharged by the examining magistrate, propria motu, it is true, but clearly with the knowledge and silent acquiescence of the satisfied creditor, that the prosecution is now at an end, and that the defendant acted without probable cause, and, in legal intendment, maliciously.

Express malice is proved, the defendant made the affidavit for the sole purpose of compelling payment of the check ; and the want of probable cause is established by direct evidence within the knowledge of the defendant. Greenleaf vol. 2, § 449, 454 and 455. Grant v. Deuel, 3 R. 18; Driggs v. Morgan, 10 R. 120; Hall v. Acklin, 9 An. 220; Talbert v. Stone, 10 An. 537; McCormick v. Conway, 13 An. 53.

The plaintiff having substantiated the averments of Ms petition, is entitled to indemnity for the peril occasioned to him in regard to his liberty, for the injury to his reputation, his feelings, and his person, and for all the expenses to which he necessarily has been subjected. And if no evidence is given of particular damages, yet the jury are not, therefore, obliged to find nominal damages only. Greenleaf vol. 2, § 456 ; O. C. 2294.

Exemplary damages should, nevertheless, be commensurate to the nature of the offence, having due regard to the standing of the parties ; and when extravagant damages are allowed, they will be reduced to their proper standard. Fitzgerald v. Boulat, Opinion Book No. 29, p. 136; McGary v. The City of Lafayette, 4 An. 440. It appears to us, when we take all the surrounding circumstances of the case into consideration, and the imprudence, if not the want of good faith, of the plaintiff in withdrawing from the bank his funds, when he was aware of his outstanding check, that one thousand dollars would have been a sufficient atonement, and we will so decree.

It is, therefore, ordered, that the judgment of the lower court be reversed. And it is now further ordered, adjudged and decreed, that the defendant be condemned to pay to the plaintiff the sum of one thousand dollars, with legal interest from judicial demand, and the costs of court a qua, those of the appeal to be paid by the plaintiff.

Buchanan, J.,

dissenting. I feel constrained to dissent from the judgment in this case, for two reasons :

I. It is a rule of practice in this sort of action, established by many decisions, that plaintiff must allege, and prove, want of probable cause for the prosecution of which he complains.

Now, granting that the detail of the facts preceding the prosecution, in plaintiff’s petition set forth, stands in lieu of a precise averment of want of probable cause, as the opinion of the majority of the Court implies ; yet I find one of the most material of the facts thus detailed, directly contradicted by the evidence.

The petition avers, “ That the reason of said check being dated on the 8th day of December, instead of the 3d, the day on which it was drawn, is, (as was stated by petitioner to defendant’s clerk before drawing the same,) that at that time petitioner did not have the money in bank to meet the said check, but would endeavor to make collections, and deposit money enough to meet the said check, when it should be presented fof payment at the bank ; ” that he gave his said check with the most confident expectation of being able to make collections, and deposit money enough in time to meet the said check when it should be presented at said bank for payment; ” “ that on the morning of the day of the date of said chock, viz : the 8th day of December, 1857, not' having been able to malee collections of money sufficient to deposit in bank to meet the said check, he sent a message,” etc. But the bank-book of plaintiff shows the following state of facts :

1857 Dec. 3 Note Discounted, Net Proceeds........ ...© 212 00

“ “ “ Cash Deposited......................... 208 01

“ “ 4 “ 372 54

“ “ 5 “ 143 50

“ “ 7 “ 180 00

“ “ 8 “ 204 12

Total..............................©1380 77

It is thus proved, contrary to the allegations of the petition, that plaintiff was able to make deposits, and did make deposits, in the bank in which this check was payable, between the time at which it was drawn, and the time at which it was dated and presentable, more than four times sufficient to have met this check. And a statement from the books of the bank, also in evidence, shows that the money thus deposited, had been withdrawn, upon other'checks of plaintiff, before the check given to defendant was presented, which was on the day that it was presentable. This, if not fraud, as charged in defendant’s affidavit before the Recorder, has certainly so much the appearance of fraud, as to require explanation, which the plaintiff has not thought proper to give. At all events, there is here a material variance between the allegata and the probata, which in my opinion is fatal to plaintiff’s case. Plaintiff puts his case before us, distinctly, upon the ground, that plaintiff’s check of ©290 25 was given to defendant upon the express understanding that plaintiff had no money in bank at the time it was so given, but would deposit money to meet it, by the time it was dated and presentable ; that circumstances beyond the control of plaintiff, to-wit: the impossibility of.making collections, prevented him from making deposits in conformity to the understanding between the parties. And the case, as disclosed by the evidence on trial, is, that it is not true that plaintiff could not make deposits to meet his checks when presentable, for that he actually did make sufficient deposits in the interval between the making of the check and its date, and that, if there was not money in the bank to meet the check, it was by the act of plaintiff himself having withdrawn the money from bank.

It seems to be considered, that defendant could not honestly and with probable cause make the affidavit, that defendant had attempted to defraud him : because he was informed when he took the check, that plaintiff had no money in bank. But we are to notice, that the state of plaintiff’s bank account on the 3d December, was not the question ; but that the check called for money on the 8th December, five days ahead ; and that defendant’s clerk, on receiving the check, receipted the bill of defendant against plaintiff, as for cash received in payment of the same.

II. The second reason for which I think this action ought to fail, is, that there is no proof that plaintiff has been discharged in due course of law, from the criminal prosecution of which he complains as malicious.

An affidavit was made by defendant against plaintiff, under-a penal statute, which inflicts imprisonment at hard labor in case of conviction. Upon this affidavit a warrant was issued by the Recorder of the Second District of New Orleans, and plaintiff was arrested. Being brought before the Recorder, bond ivas taken, with security, for his further appearance, and several persons having made to the Recorder representations of the fair character of plaintiff, that officer informed the counsel of plaintiff, Mr. Field, that the prosecution should be quashed and plaintiff discharged, provided he made good his check in bank. This was one or two days after the affidavit was made. On the same day, the Recorder repeated to the plaintiff the conversation lie had with Mr. Field. Plaintiff wont to the bank and made his check good ; and the Recorder dismissed the case. In this arrangement, defendant was not consulted. These facts are proved by the testimony of the Recorder himself.

According to the authorities, this is not a discharge from a criminal prosecution; upon which to base an action for damages against the prosecutor. Starkie says, “ The proofs in an action for a malicious prosecution are, 1st. a prosecution by the defendant, from which plaintiff has been discharged. It must appear that the plaintiff was acquitted of the charge; it is not sufficient to prove that the proceeding was stayed by the nolle prosequi of the attorney-general; otherwise if he had pleaded not guilty, and the attorney-general had confessed it; and it is sufficient that the party had been acquitted upon a defect in the indictment.” Met-calf’s Starkie on evidence, part 4, verbo malicious prosecution.

And Mr. Greenleaf, vol. 2, page 449, says, “ So, if it was a criminal prosecution, the like evidence must be given of its termination. And it must appear, that the plaintiff was acquitted of the chargeit is not enough, that the indictment was ended by the entry of á nolle prosequi; though if the party had pleaded not guilty, and the attorney-general confessed the plea, this would suffice. So, if he was acquitted because of a defect in the indictment, it is sufficient. If the party has been arrested and bound over, on a criminal charge, but the grand jury did not find a bill against him, proof of this fact is not enough, without also showing, that he has been regularly discharged by order of court; for the court may have power to detain him, for good cause, until a further charge is preferred for the same offence. But in other cases, the return of ignoramus on a bill, by the grand jury, has been deemed sufficient.”

From these authorities, it is plain, that a party who desires to hold another liable to him in damages for having prosecuted him criminally, must present himself armed with a verdict of a petty jury, empannelled to try him for the offence with which he has been charged ; or at least with a discharge by the court seized of jurisdiction to hear the cause upon the consent of the attorney-general, or a return of a grand jury. The least that is required by any of the adjudged cases, is a return of an indictment “ not found ” by the grand jury. How different these are, from a compromise by an examining magistrate, acquiesced in by the accused under advice of counsel, needs no comment. Why did not plaintiff meet the charge before the only tribunal, legally competent to dispose of it?

I think the judgment of the court below upon the verdict of the jury, ought to be reversed ; and that this suit should be dismissed.

Land, J., absent.


text:
    Succession of Jean Michel Minvielle—R. Domec v. L. Barjac, Executor, and Cora Lalande, f. w. c.
    A marriage celebrated between a free white person and a free person of color, in violation of Art. 05 of the Civil Code, is an absolute nullity. 3STo suit is needed to declare the nullity of such a union.
    [ Either party may disregard it and neither can pretend to derive from it any of the consequences of a lawful marriage. Such a marriage maybe attacked collaterally and in every form of action in which it is set up against either of the parties.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      0. Schmidt, for plaintiff and appellant.

      A. & A. Pitot and Julien Seghers, for defendants.
   Merrick, O. J.

The defendant Cora Lalande, f. w. c., obtained judgment against the succession of Jean Michel Minvielle deceased, for a sum of money.

Afterwards the plaintiff R. Domec, took a rule upon the executor L. Barjac to show cause why he should not pay the money thus recovered to him as the husband of the said Cora Lalande, and head of the matrimonial community to which he alleges said sum of money belongs..

The executor in answer to the rule stated that he was a mere stake holder, and required that Cora Lalande, the judgment creditor, should be made a party, which was accordingly done.

Cora Lalande, in answer to the rule, denied that she was the wife of Domec, because said Domec is a while man and sheds a colored' woman, and such a marriage is prohibited by Article 95 -of the Code. She alleges, further, that said Domec and respondent have for a long time ceased to live together and that he has publicly and positively denied that she was his wife.

On the trial of the rule the plaintiff offered in evidence the certificate of the marriage, showing that he was married to said Cora Lalande on the 24th of March, 1847, by the Rev. J. P. Morrmot, Curate of Annunciation Church, by virtue of a license from Mr. Canon, Justice of the Peace.

The defendant offered to prove that plaintiff was a white person, and Cora Lalande, a free person of color. The testimony ivas objected to by plaintiff on the ground that the defendant could not prove the nullity of the marriage in this form, but must resort to a direct action for that purpose. The court admitted the proof and plaintiff excepted.

The admissibility of the testimony depends upon the effect to be given to the forms of marriage between white persons and free persons of color. If the forms of marriage between a white man and a free Degress or mulatress are absolutely null and void, such pretended marriage may be attacked collaterally and in every form in which it is set up against either of the parties, and the testimony was admissible. The law on the subject is contained in Article 95 of the Civil Code, which is as follows : “ Free persons and slaves are incapable of contracting marriage together. The celebration of such marriages is forbidden and the marriage is void. There is the same incapacity, and the same nullity, with respect to marriages by free white persons with free people of color.”

The prohibition contained in this article is one eminently affecting the public order. Hence the nullity declared by the same is absolute, and cannot be cured by ratification. The law is of that rigorous nature that it will not permit a marriage to exist between persons of the two different races for a moment. No suit is needed to declare the nullity of such an union. Either party may disregard it, and neither can pretend to derive from it any of the consequences of a lawful marriage. Hence, the defendant was at liberty to show tho absolute nullity of the pretended marriage whenever it was opposed to her, without tho necessity of having previously brought an action to annul that which our law declares can have no existence. C. C. 11, 12, 182 ; 3 An. 329; 10 An. 411: 1 Bouvier’s Inst. p. 113, sec. 273; Croke Eliz. 858, Riddelsden v. Wogan.

On the merits plaintiff denies, 1st. that it is proved that he is a white man, 2d. that it is proved that the defendant is a person of color.

The proof that plaintiff is white, results from the certificate of marriage ; the bringing of this suit as a white person, a publication in the Bee, and the statement of one witness, who says he is a white person, and another who says ho is a Frenchman, a Gascon.

The proof that defendant is a person of color is made by one witness, who says that “ Cora Lalande is a woman of color ; what is generally called a mulatress,” and by the same statement, signed by Domec and published in the Bee, wherein he gives his discovery of her birth, as a reason of their separation, and says she has no right to the name of Madam Domec, and that she ought never to have borne it.

There is, therefore, no reason to disturb the judgment of the lower court.

Judgment affirmed.


text:
    Henry J. Ranney v. Leonce Burthe et al.
    Tho mortgage and privilege given by the Act of 1835, entitled “An Act to provide for tho draining and clearing of tho marshy grounds and cypress swamps situated betwoon the city of Now Orleans, its incorporated suburbs, and Lake Ponchartrain,” does not create a mortgage or privilege with a potestative condition on tho part of tho property holders; the potestative condition was in favor of the Draining Company, and tho Act of the Legislature by its terms declares, that “such privilege and first mortgage” shall take precedence over all other mortgages whatsoever, and shall attach to the property.

    ■\Yhoro a party purchased certain lots of ground, in 1847 and 1850, situated within the Second Draining Section, and, after the drainage had bocn completed, the tax assessed, tho tableau confirmed by a final judgment, and an order of seizure and sale issued upon the mortgage and privilege given by the Act of 1835 against the property, he paid the tax and brought suit against his vendor to recover tho amount — Held: That, in the absence of a special warranty against the mortgage and privilege of tlio Draining Company, the action canaot he maintained.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Geo.'L. Bright, for plaintiff.

      Janin <& Griffon, for defendants and appellants.
   Merrick, O. J.

The facts of this case are correctly stated in appellant’s brief, from which we copy with some slight variations.

“ This case originates out of the claims of the present proprietor of real estate situated within the Second Draining section, to recover from his vendor the amount of the Draining Tax assessed upon his property and paid by him to the New Orleans Draining Company.

“ The vendor of plaintiff, to whose rights of warranty the latter is subrogated, acquired from D. F. Burthe, the defendant’s ancestor, on the 28th of May, 1847, a certain number of lots within the Second Draining Section, upon which'a tax of $655 52 was afterwards assessed ; and on the 13th of May, 1850, the plaintiff acquired of D. F. Burthe aud the estate of Hiligsberg certain other lots, upon which a tax of $118 56 was afterwards assessed, making in all the sum of $774 08, the amount due on plaintiff’s property as fixed by the final judgment oí this court in the case of the New Orleans Draining Company, praying for the confirmation of a tableau, &c., and reported in 11 An. 338. For this amount, with ten per cent, interest from 20th January, 1851, an order of seizure and sale of property was obtained by the Receiver of the Draining Company from the Third District Court, in September, 1856. The plaintiff thereupon paid the amount of the assessment, and now seeks to recover it of the defendant.”

The Act authorizing the draining of the lots in question, was approved March 19th, 1835. See 11 An. 342.

Under this Act, a judgment was rendered in 1845, decreeing them subject to a first mortgage and privilege, to take precedence over all others in favor of said Draining Company.

The judgment of the lower court was in favor of the plaintiff in this case, and defendants appeal.

The appellants rely upon three grounds for a reversal of the judgment, viz :

1. That the mortgage was prescribed, and as defendant did not call in his warrantors to protect him, he has no recourse against them.

2. That at the date of the sale to plaintiff’s vendor, Hoey, 28th of May, 1847, the Draining Company had no claim on the property sold, such as would be included in the general warranty given both by the act of sale and by the law, to the vendee; that the right of the Draining Company did not exist before the sale.

3. That Hoey was a purchaser with notice, as the Acts of the Legislature are presumed to be known by every one.

4. That the judgment is in solido and Burthe’s heirs are made to pay the tax due by Hiligsberg’s estate.

It is not necessary to consider these questions in their order.

The mortgage and privilege given by the Act of 1835, does not appear to us to create a mortgage or privilege with a potestative condition on the part of the property holders, the debtors, in which event alone the mortgage would date from the happening of the condition.

The potestative condition was in favor of the creditor, the Draining Company, and the Act of the Legislature by its terms declares that “ said privilege and first mortgage ” shall take precedence over all other mortgages whatsoever and shall attach to the property.

This law was in force at the time when Hoey and the plaintiff acquired from defendant’s ancestor, and they are presumed to have known the law.

It is also well known, that it is only the completion of the works for the draining of property which adds the main value to the same. The ditches and the. works are comparatively valueless until they are connected and made available by the proper machinery and steam power. 11 An. 375.

Hence, the Act of the Legislature provides that the account against the property holders is to be made out so soon as the draining of said section is completed, and not before.

■When, therefore, Hoey and the plaintiff bought, they were bound to know that a contract had been entered into between the State and the Draining Company, by which the latter had contracted to drain, and thus improve, the property in question, at the expense of the property holders.

We have just seen that the mortgage and privilege in favor of the company attached to the property. Now, Hoey and the plaintiff (who was the engineer who conducted the works,) bought the lots with the knowledge of a contract in favor of the property, by which it was to be improved at the charge of the lots, or in other words, at the charge of the owners, at the completion of the works for draining the same.

Equity, therefore, requires that the party who has been benefited by the work should pay for its cost. Qui sentit commodum; sentiré debet et onus.

The case may be illustrated by an example. A, the owner of building lots worth $10,000, has stipulated with a contractor, that the latter shall build a dwelling house and out buildings upon the property, at a cost of §15,000, and he mortgaged the lots to the contractor as a further security. After the contractor has bought the materials, but before the work has been actually commenced, A sells the lots to B for §10,000, and transfers the property with his contract for building the house. After the work is completed, the contractor compels B to pay by foreclosing the mortgage. B will call upon A in vain to indemnify him, although the mortgage rested upon the property at the time of the sale, because B was aware of the mortgage when he bought, and he knew that the house was to be built for his advantage and benefit. C. O. 2477, 2535.

Take another case. In 1845, A owned a square, which was almost a marsh, in the district to be drained. Immediately after the decree, in 1845, condemning the district to be drained, he sold the square to B for a small sum.- The property is drained in B’s hands, and has become valuable and fit for buildings and habitations. With what justice can B claim a reimbursement for an amount which has been expended for the purpose of enhancing the value of his own property ? Yet the principle which would enable the plaintiff to recover, would sustain B’s action also.

In the absence of a special warranty against the mortgage and privilege of the Draining Company, and in view of the fact that it was the completion of the work which produced whatever, there was of substantial benefit to property of plaintiff, we conclude that the action cannot be maintained.

The question is not a new one. In the case of Municipality No. One v. Leroy, 15 La. 147, it was considered to be quite clear, that the vendee would have no claim on the vendor for the amount he would be obliged to pay the company for the enhanced value of the property — the result of the work. See also the case of the same plaintiff against Cordeviolle, 19 La.- 235.

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, that there be judgment in favor of the defendants, and against the demand of the plaintiff, and that the plaintiff pay the costs of both courts.

Buoi-ianan, J., took no part in this decision.

Land, J., absent.


text:
    Scott, Williams & Co. v. Samuel H. Turner.
    Where a noto is secured by an act of hypothecation, which imports confession of judgment, the suit may bo brought in the parish where the property is situated.
    Where a note, payable to order, and secured by mortgage, is transferred by endorsements, and sued on by the holder, it is unnecessary to allege the transfer of the mortgage m the petition, as the transfor of the note, which is an evidence of the debt, includes a transfer of the mortgage, which is the accessory of the debt.
    Where a mortgage to secure a note is made in favor of the payee, or any holder of the note, a formal subrogation-is unnecessary to enable the endorsee to enforce the mortgage.
    APPEAL from the District Court of the Parish of St. Helena, Wilson, J.

      A. Addison, for plaintiffs.

      G. W. Watterston, for defendant and appellant.
   Buchanan, J.

The petition of plaintiffs alleges, that they are holders and owners of a note, annexed to the petition, made by defendant, a resident of New ■ Orleans, payable to the order of John M. Bach, and by him endorsed in blank ; which note is secured by special mortgage upon land in the parish of St. Helena, (whore the suit is instituted,) in favor of John M. Bach, the payee, or of any lawful holder of the note. The act of mortgage is also annexed to the petition.

Petitioners pray for citation to defendant, and for judgment for the amount of the note and interest, and that the property mortgaged he seized and sold in execution of said judgment.

Defendant pleads want of jurisdiction in the District Court of St. Helena, by reason of his residence being in Orleans; and also, that the plaintiffs do not allege a transfer to them of the mortgage.

Judgment having been rendered in conformity to the prayer of the petition, defendant appeals.

Plaintiffs have answered the appeal, and pray for ten per cent, damages, as for a frivolous appeal.

The suit was well brought in the parish where the mortgaged property is situated, inasmuch as the act 'of hypothecation imports confession of judgment, and the petition contains a prayer for the seizure and sale of the mortgaged property. O. P. 163 ; 11 Rob. 387.

The plea of want of an allegation of the transfer of the mortgage is untenable. The petition alleges a transfer of the note, by endorsement of the payee; and the transfer of the note, which is an evidence of a debt, includes a transfer of the mortgage, which is the accessory of the debt. C. 0. 2615.

The note and the act of mortgage are annexed to the petition, as part of the same. The mortgage is in favor of the payee, or of any holder of the note. The right, therefore, of the plaintiffs to enforce the mortgage, without a formal subrogation, is undoubted. 11 An. 4; ibid 34.

Judgment affirmed, with costs.

Duffel, J., took no part in this decision.


author: Voorhi-es, J.

text:
    State of Louisiana, on relation of Cook et al., v. Keeper of Parish Prison.
    Proceedings under the Act of 1859 entitled u An Act relative to free persons of color coming into the State from other States or foreign countries,” are of a criminal nature.
    In criminal prosecutions, the Supreme Court is without jurisdiction, unless the offence charged he punishable with death, or imprisonment in the penitentiary, or a flue exceeding three hundred dollars has been actually imposed. And then there must bo a final judgment before an appeal can be taken.
    In matters of habeas coijms, the jurisdiction of the Supreme Court is original, and not appellate. The original power to bail precludes the idea of the exercise of an appellate jurisdiction m relation to the same subject.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      T. J. Earhart, for appellants.
   Voorhi-es, J.

The plaintiffs, John Cook and George Logan, free men of color, being incarcerated, as they allege, under the provisions of the Act of 1859, entitled “ An Act relative to free persons of color coming into the State from other States or foreign countries,” applied to the Sixth District Oourt for the writ of habeas corpus. The rule, upon being tried, was dismissed, and the applicants remanded into custody.

There is, in the record, a bill of exception to the ruling of the District Judge, that the statute in question is not unconstitutional; and the judgment is sought to be reversed on that ground.

The case, however, cannot be decided on the merits, because we have no jurisdiction in the premises. .The proceedings which gave rise to the present contro ■ versy having been originated under the provisions of the statute of March 15th, 1859, are of a criminal nature. What steps have been taken to carry out these provisions, the record does not inform us. The petition states that the plaintiffs, although they have committed no crime or offence, have been illegally arrested and imprisoned, but that the arrest was made under the Act of March 15th, 1859.

It is well settled that, in a criminal prosecution, this court is without jurisdiction, unless the offence charged be punishable by death, or imprisonment in the penitentiary, or a fine exceeding three hundred dollars has been actually imposed. And then there must be a final judgment, before an appeal can be taken.

But it must be observed that, in matters of habeas corpus, our jurisdiction is original, and not appellate. Const., Art. 69. In the case of ex parte Mitchell we held, that in no sense could a judgment rendered on an application for a habeas corpus be considered as a final judgment; and that the grant, to the Supreme Court, of original power to bail, precluded the idea of the exercise of an appellate jurisdiction in relation to the same subject. Const., Art. 69 ; 1 An. 413.

The application for a habeas corpus was not made to the Judge of the First District Oourt, in whom exclusive criminal jurisdiction is vested, in the parish of Orleans ; and an appeal bond was furnished by the applicants, upon being remanded to jail. They evidently conceived that the proceedings in question were of a civil nature; but such is not the case.

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

Land, J., absent.


author: Merrick, C. J.

text:
    David M. C. Hughes v. The Succession of Albert G. Carey, dec’d.
    Whore a party had given his noto, payable to hearer, and secured by mortgage, and upon suit being instituted upon it by a third party, had set up as a defence the want of consideration, and for the purpose of throwing the burden of proving the consideration upon the plaintiff, offered in evidence a notarial act passed between himself and the original holder of the note, wherein the receipt of the money was acknowledged, the loss of the note recited, reference made to the newspaper in which the loss was published, and the Recorder was authorized to erase the mortgage — Held: That such an act was resinter alios acta as to plaintiff, and the recital therein contained could not be established by the instrument.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      A. Lathrop, for plaintiff and appellant.

      Durant & Hornor, for defendant.
   Merrick, C. J.

The plaintiff sues upon a promissory note bearing date the 26th of August, 1854, drawn by the intestate, Albert G. Carey, for $1,500, payable to his own order five years after date, with interest, and endorsed by him.

The defence to the action is the want of consideration, and an allegation, that the note was lost, and that plaintiff came into possession of it out of the course of trade and for an insufficient, or no consideration, and under circumstances which debar him from a recovery.

At the time the note was given, the intestate gave a mortgage to secure its payment. In the notarial act, he acknowledged himself to be indebted to John B. Willis, the mortgagee, in the full sum of $1,500, being the amount of a loan advanced to the said Carey in the lawful money of the United States. There is no testimony in conflict with this authentic admission. There is no proof of the manner in which plaintiff obtained possession of the note.

The defendant, in order to establish the allegations in the answer, so as to change the burden of proof, and to make it incumbent on the plaintiff to prove the consideration given by him for said note, offered to read in evidence a notarial act dated 21^1 September, 1855, passed between the mortgagee, John B. Willis, and Carey, wherein the receipt of the money was acknowledged, the loss of the note recited, reference made to the newspaper in which the loss was published, and the Recorder was authorized to erase the mortgage.

Plaintiff objected to the introduction of the act in evidence, and the same being received, he excepted.

The plaintiff complains of the admission of the act in evidence as error, and the defendant contends that the document was properly received, and has had the effect to throw the burden of proof upon the plaintiff to show that he acquired the note fairly.

We are of the opinion, that the notarial act releasing the mortgage was inadmissible for the purposes offered. The act was res inter alios acta as to plaintiff, and the recitals therein contained that the note had been lost, that publication had been made in the Courier of such loss, and that Willis had received payment, he being the holder, could not be established by the instrument.

These were all matters which ought to have been established by legal proof, and not by the declarations of the defendant and a third party where the plaintiff would be deprived of the benefit of a cross-examination. The note was payable to bearer, and plaintiff might have been its holder in the clue course of business before the pretended release of the mortgage, which was itself made between three and four years previous to the maturity of the note.

The testimony being inadmissible for the purposes offered, it is needless to inquire whether it might not have been made_ available if connected with other proof, and offered for another purpose.

The testimony being excluded, leaves the defendant without reply to plaintiff’s demand.

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 plaintiff do recover and have judgment against Wm. Holmes, as curator of the succession of Albert G. Carey, deceased, (to be paid in the due course of administration,) for the said sum of fifteen hundred dollars, with eight per cent, interest thereon per annum, from the 26th day of August, 1854, until paid, and the further sum of one hundred and fifty dollars attorney’s fees for prosecuting this suit; and it is further ordered, that the mortgage upon the property described in plaintiff’s petition be recognized ; and it is further ordered, that the defendant pay the costs of both courts, also in due course of administration.