author: IdsiiEY, J.

text:
    Richard Murphy v. Thomas Guiterez.
    In a redhibitory action the prescription of one year does not apply, except from the date of the discovery of the vice; and then notin the case of an absentee against whom no process could issue within that period. “ Contra non valentem agoré non currit tprescriptis.”

    XX PPEAL from the Sixth District Court of New Orleans, Leaumoni, J.

      G. Dufour for plaintiff. Geo. L. Bright, Curator ad hoe, for defendant and appellant.
   IdsiiEY, J.

This is a redhibitory action to rescind the sale of a slave and to recover the price, with damages.

It is alleged and shown, that the sale, with full legal warranty against all the maladies and defects prescribed by law, took place on the 20th February, 1860.

It is also proved that, immediately after the sale of the slave, the vendor broke up Ms domicil in this State and departed for Spain, his native country, whence he has never since returned.

The sale was a fraudulent one.

The action was originally instituted on 23d June, 1863; but as the defendant, one Avendano, against whom proceedings were commenced, as soon as it was ascertained that he was the agent of the defendant, excepted, on the ground that he was not authorized to appear in court, an attachment against the defendant’s property, then but recently discovered, was sued out.

The boy was diseased at the time of the sale, to the knowledge of the defendant, who fraudently concealed the fact from his vendee, and the slave died of the same disease, in the year 1863.

The prescription of one year is relied on to defeat the plaintiff’s claim. See Art. 2512 L. C.

This prescription is not applicable to the present case, as it falls within the exception in section 1 of that Article, which says:

“ This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser.”

In such a case, “ the action for redhibition may be commenced at any time, provided a year has not elapsed since the discovery of the vice. ” Art. 2524. •

But more than a year had elapsed between the discovery of the vice and the service of the petition.

If the defendant had continued to reside in the State, during the whole year after the discovery of the vice, the plaintiff’s action would have been barred; but he broke Tip his establishment and quit the State permanently, before the expiration of the delay, leaving in it neither domicil, nor known agent or property, so that the process could reach him within a year; nor, indeed, until the plaintiff ascertained that he had left an agent and property in the State, when proceedings against both were immediately commenced and process served. Till the plaintiff’s action was instituted, it was inrpossible for him to act.

He invokes the equitable rule, “ contra non, vcdentem ayerenon curritpre-soriptis,” and it must prevail.

See the cases of Morgan v. Robinson, 12 Mar. 76 (old series); Landry v. L’Eglise, 3 La. 221; Guilliet v. Erwin, 7 La. 581; Smith v. Taylor, 10 Rob. 133; Martin v. Jennings, 10 A. 553; Boyle v. Mann, 4 A. 170; Reynolds v. Batson, Same v. Brenford, 9 A. 729.

It is therefore ordered, adjudged and decreed, that the judgment of the District court be affirmed, with costs in this court, to be paid by the defendant and appellant.


source: Caselaw Access Project

author: Hyman, O. J.

license: Public Domain

text:
    A. F. Cochran & Hall v. Bark Cleopatra et als.
    Carriers are nob liablo for damages occasioned by accidental and uncontrollable events.
    from the Sixth District Court of New Orleans, Howell, J.

      G. Roselius and A. Philips for defendants.

      J. Ad. Rosier for plaintiffs and appellants.

    This is a suit to recover damages by reason of a breach of the contract of affreightment. Plaintiffs, on the 21st of December, 1859, shipped on board the Oleopatra, at Marseilles, for the port of New Orleans, a certain'quantity of walnuts, to bo delivered in the port of New Orleans.

      P. E. Gaillot deposes that, as a merchant at Marseilles, he shipped the walnuts in good order and condition. The shipment began on the 16th, and was completed on the 19th December, 1859. The vessel was first advertised to leave from the 5th to the 10th day of December. The vessel sailed on the 8th February, 1860. She was first advertised to sail on the 8th of November, 1859. In consequence of the captain delaying or refusing to depart, he made a protest. He was informed by the ship brokers that the Cleopatra would sail at Christmas, the farthest; the weather was not unfavorable; parcels of walnuts, proceeding from the same lot, purchased and shipped at the same time, among which twenty-five bales sent to New York, by the Ella Cooper, arrived in good condition.
    Carrier bound to deliver within reasonable time. Rathbone v. Neal, 4 An. 563. .
    1. The master of the vessel was in default; ho should have sailed on the day advertised. No custom, attempted to be proved, can exonerate him from the responsibility; he was bound to keep his promise, made in the advertisement. On the 5th day of December, a protest was made by the shippers, ■wherein it is established “ that he shipped goods on board of the Cleopatra, On the 1st day of December, on the promise made by the ship’s agents, that she would sail positively on the 5th day of Decern-ber; that, instead of sailing on that day, she remained in port till the beginning of February, 1860.
    There was a special promise made to the shipper, as to the time of departure, otherwise he would not have shipped them.
    The weather did not prevent the Cleopatra from sailing, as it will be seen by the testimony of Alby. The ships are named that sailed in December and January. See also Aicard, who deposes substantially to the same facts, and adds: “ The Cleopatra might have taken her cargo in twenty-five or thirty days; the weather was not the cause of the delay. ”
    The judge of the lower court errs in saying: “There was a delay, beyond the anticipated time, of about 18 or 20.... He forgot that the testimony of the witnesses, who swear that the special promise m'ade was the 5th of December! This is not contradicted. From the evidence it appears the Cleopatra was detained upwards of two months.
    2. Was there any excuse for this delay? The judge says, it is accounted for by wind, bad weather, difficulty in shipping a crew, and sickness of the captain, and in the further difficulty of immediately procuring a full miscellaneous cargo in the port of Marseilles.
    We think that the evidence shows a different state of facts. As to the weather, the fact of the departure of other vessels shows that there was no such cause. The difficulty in shipping a crew is hard to believe, in such a port as Marseilles. There is no evidence substantiating this in anything of a satisfactory manner; it is an after-thought. Sickness of the captain? How is this proved? The further difficulty in procuring a cargo ? But the vessel was advertised to start on a particular day, and it does lie in the mouth of the master to say, that he did not mean it. Our witnesses are the well known and respectable business men of Marseilles.
    The first witness of the defendant is the mate; and the bias of this man, in the employment of defendant, is apparent. He talks of the inclemency of the weather! forgets the departure of other vessels. He makes the statement that the walnuts arrived in New Orleans, in apparent good order; flatly contradicted by witnesses Gb-aus, Gazaire, Trinchará. Their next witness is Olivari; also Bartolomeo Olivari. What they say is exaggerated, as to the time it takes a vessel to load in Marseilles, and has no bearing on the point at issue here. The master undertook to sail on a day fixed. Their other witnesses are Gv.eralamo, Lavarelli and Bartholomo, sailors, like the others, and attribute the delay to stress of vreather.
    If this was the fact, how is it that the master did not prove it by witnesses of known respectability in Marseilles, instead of resorting to biased sea-faring men ? We have established a different state of facts by persons residing in Marseilles.
    8. Had the master departed at the time promised, the walnuts would have arrived here, sound, in the port of New Orleans. It was all the fault of the master; he is bound to repair the damage. The amount of damages sustained will appear by the testimony of Gb-aus, Gazaire, Trin-chará, Gi-egorio. The walnuts, when they arrived, were heated and rancid. They had no appearance of being damaged by salt water; they were full of worms. The sale was properly advertised.
   Hyman, O. J.

Plaintiffs shipped on 21st of December, 1859, in the port of Marseilles, on the bark Oleopatra, a number of bales of walnuts, to be delivered at New Orleans.

They sued to recover the loss resulting from the damaged condition of the walnuts.

The lower court gave judgment against plaintiffs, and they have appealed.

On the 9th February, 1860, the bark left Marseilles, and arrived in New Orleans about the 13th of June, 1860. The voyage is usually made in forty-five or fifty days; but the Oleopatra took four months to complete it. This is accounted for by a severe gale, on the 10th of February, which so disabled the bark that she had to make for the first port to be repaired. The time consumed in repairing her was about fifty days. She then continued on her voyage. It is not pretended that she was not sea-worthy when "she left Marseilles, or that the walnuts were not properly stored. The evidence satisfies us that the walnuts were damaged, being of a perishable nature,, by the length of time consumed in the voyage.

Plaintiffs contend that the damage was caused by unnecessary delay at the port of Marseilles.

It is in evidence that it takes much time in loading vessels at that port; sometimes three months or more. They have to be loaded by means of lighters.

The mate testified that the delay in taking in the cargo of the Cleopatra was caused by bad weather, and that she was loaded as speedily as possible.

There is no proof that the delay in the port of Marseilles was the cause of the damage.

The probability is that the vessel would have delivered the walnuts in good order but for the storm at sea.

Defendants are not liable for damage occasioned by accidental and uncontrollable events. O. C. 2725.

Judgment affirmed.

HowEBiij J., recusedl


author: Labadve, J.

text:
    Morris L. Duncan v. Christian Boye.
    No bailee is responsible for nob insuring goods under bis charge, unless he has instructions so to do.
    ii. PPEAL from the Sixth District Court oí New Orleans, Howell, J.

      Durant & Hornor for plaintiff and appellant

    Plaintiff sues defendant for goods sold and delivered, to tlie amount of §1,959, and files his invoices with his petition.
    The defence is lengthy : 1. The general issue. 2. A special denial that defendant ever ordered the goods, and a statement of the course of trade between him and plaintiff. 8. That the invoices of April, May and June, 1860, were lost by fire in August, 1860; and, consequently, defendant is not liable for them. 4. That a portion of the goods received since the fire are unsaleable, and he is willing to return them. 5. That he has sold the rest of the goods, and is willing to pay for them at wholesale Cincinnati prices. 6. The want of any amicable demand. The prayer of the answer is that this suit may be dismissed.
    The judgment of the lower court was for §764 20, and from it plaintiff has appealed suspensively. We propose discussing each item in this labored defence in its order, and will then recur to the judgment of the lower court.
    And, 1. As to the general denial, there is no doubt that all the goods charged in the invoices were received by Boyé. The general issue is waived by the special defence. 2. Boyé denies ever having ordered the goods from plaintiff, for which he claims payment. This is a grave error of fact. The course of trade between the parties was peculiar. . Duncan was a manufacturer; Boyé a seller. “Boyé would write for furniture, and Duncan would send it on his orders; and Duncan would send furniture without orders, often.” Boyé has received all the goods contained in the invoices. All the goods in the first three invoices were burned, nearly. All the other goods in the remaining invoices have been sold, except some bureaus. Admission in answer.
    Though the evidence leaves the j>oint in some obscurity as to the goods received after the fire, yet we think it is plain that, as to all the goods received before the fire, the relations of the plaintiff and defendant were those of vendor and vendee.
    “Proof that the goods have been delivered to the defendant, and that he has used them, is prima fade evidence of a contract, without proving any order.” 2 Starkie’s Ev. p. 837.
    It seems to us that defendant strives to change these legal relations, and introduce others for the purpose .of sustaining an unfair defence, after he has long acquiesced in plaintiff’s way of doing business.
    The bill sued upon gives credit for Boyé’s note, dated 28th November, 1860, at sixty days’ date, the note itself, introduced by defendant; the settlements were made semi-annually. And at the foot of the bill sued upon, are found these words: “Interest on the aboye bills four months after date.”
    It is, then, clear that, at the date of the note, and even at its maturity, 30th January, 1861, if “defendant’s theory” be correct, not a dollar was due by him to plaintiff. It is not usual for merchants, and specially such merchants as the defendant, to pay in advance. No such thing is alleged. Defendant owed at the date of the note what was due and payable, to wit: the goods contained in the first three invoices. It was a full admission that he owed for them, up to the amount of the note, on the day the note was dated. It was in accordance with his promise to pay for them, made to plaintiff in Cincinnati, as soon as he received his insurance. The note was on account of the shipments made in April, May and June. Goods shipped in the fall were settled for in the spring', and goods shipped in the spring were settled for in the fall.
    The other facts in this case entirely harmonize with this statement; and the whole is altogether inconsistent with the idea thrown out in defendant’s answer, that this was a payment on the invoices of September and October. Indeed, the statement in the answer itself is inconsistent. It alleges that the goods in these invoices were disposed of between the latter part of 1860 and the spring of 1862. Even Déjean does not substantiate defendant’s story. Eraus esl celare fraudem.

    A payment is, in its nature, though not in its essence, posterior to the debt. Thomas v. Elkins, 4 Martin, 378.
    None of the goods, so far as the evidence shows, were sold prior to the date of the note or its maturity. And no attempt has been made to prove that this payment was made, on the invoices of September or October. The whole course of business between the parties contradicts the assumption.
    The note is an admission for value received at its date; and the attempt to pervert its meaning can only reboimd upon its maker.
    Eeceiving the goods and paying for a portion, not in any way defined, makes the defendant the owner of the whole. He is, therefore, liable for the invoices of 13th April, 25th May and June 9th, amounting to §763.
    The lower judge, however, has entirely rejected this portion of our claim.
    We advance to the third point of the defence, viz: that the invoices of April, May and June, 1860, were lost by fire in August, 1860, and consequently, defendant is not liable for them. This was sustained by the judge below, probably upon two grounds : 1. That the course of dealing continued the ownership in Duncan till the goods were sold, and resperit domino. 2. That the evidence showed no new contract by which Boyé bound himself to pay the loss.
    This defence of vis major musty to be successful, be clearly made out. And, in the first place, your honors must be satisfied that defendant was not the owner of the goods; for, if he wore the owner at the time of the fire, the loss was his, undoubtedly. That ho was the owner, we think we have clearly shown.
    ' But, if he were not the owner, what was ho ? In what legal relation did he stand towards tho plaintiff ? It may have been that of agent and principal, bailor áncí btilóé; or 33'óyc might Miró then á mpi‘6 HiigüíiÓi'tim

      gestor. They were dealing together on some terms, and plaintiff had the right to call upon him for an account, as trustee, unless defendant was the owner.
    In this "view' of the case, when defendant is asked for payment, or for an account, he says the goods were all burned, “as well the goods belonging to the respondent as those belonging to the plaintiffand he proves the fact fully and satisfactorily. But there is always fault to be attributed to a person ’ who sets up fire as a defence. Some cases of vis major, such as inundation, earthquakes, hail, snow, storms and tempests, the acts of government, war, an attack by brigands, an abuse of force, excuse all idea of fault and imprudence; others do not; and to this class belongs fire. Larombiere on C. N. 1148 ; La. C. 1927, 2216.
    Defendant carefully keeps out of view that he was insured against fire. That he was insured, results from his promise to pay after he collected the insurance money. He was a trustee. He was bound to take the same care of his principal’s property as of his own. When he alleges a total loss of his own stock by fire, he alleges what is not true, when he collects a portion or the whole of its value from the insurance companies. Here, the whole matter rests within his own knowledge. He suppresses every detail of it. In such a case, every thing must be taken against him. Ralston v. Barclay, 6 Martin, 653; Berihoucl v. Gordon el al., 6 La. 583.
    We now come to the fourth ground of defence, that a portion of the goods received since the fire are unsaleable, and that he is willing to return them.
    These goods are still in the hands’of the defendant. We do not think, even if your honors decide that they are ours, that, after a lapse of thirty months, we should be non-suited on this portion of our claim. When Kelly asked defendant for a settlement, he did not refuse .payment, nor did he claim any deduction on account of goods having been burnt. Nor does it appear that he lias ever made any real tender followed by consignment. La. C. 2163, ot seq.; 12 An. 267. If the court considers them his property, he must be made to pay for them. If not, he should be ordered to deliver them, at his own expense, to the plaintiff, at any place in this city he may designate.

      G. E. Schmidt for defendant.

    I am at a loss to conceive upon what grounds the plaintiff bases his hope of a reversal of the judgment of the lower court. In the oral argument before that court, his counsel insisted that the plaintiff’s goods should have been insured by the defendant. This the latter had never been requested to do, and had never done, and Duncan was never charged any insurance premium. How could Duncan pretend not only to thrust his goods upon the defendant, nolens volens, use his store-rooms and warehouses, without paying storage, and moreover, expect the defendant to pay the insurance on his goods, although he had never instructed him to insure? That this pretence of the plaintiff is unfounded, either in law or in equity, is apparent from a reference to the following cases: Patterson v. Lealce, 5 An. 547; Tonge v. Kenneil, 10 A. 800; Gilly v. Bm-lin, 12 A. 723. Besides, how can the plaintiff shift his position from that of a party claiming the price of goods which he alleges to have sold, to that of a party suing- for loss occasioned by the neglect to insure those very goods?
   Labadve, J.

The plaintiff claims of the defendant the sum of $1,959, with interest, balance on an account for house furnitures.

The answer contains, first, a general denial; denies that respondent ever ordered any of the goods which were shipped, without any solicitation and against the desire of respondent; that the goods, being sent in that way, remained the property of plaintiff; that respondent was to sell such portions of them as he could, and only account to plaintiff at wholesale Oincinnati prices for such as he might dispose of; that, after the three first invoices, a fire occurcd, in August, 1860, which destroyed defendant’s and plaintiff’s goods; and that he is not responsible, etc. He prayed to be dismissed, at plaintiff’s cost.

The District judge, after hearing the testimony, gave judgment for plaintiff, for $764 20, with interest, and the plaintiff appealed.

The case turns entirely on matters of facts and upon the credibility of witnesses. There is, however, a bill of exceptions taken by plaintiff; but it is of no importance.

There is inconsistency between plaintiff's witnesses, who were examined under commissions in Cincinnati, and those of defendant, who testified in open court. The District judge seems to have given more credit to those who gave their testimony here in court. The plaintiff has attempted to make defendant responsible for his (plaintiff’s) goods, destroyed by fire, on the ground that said defendant should have insured them as he had done his own.

There is no testimony showing that defendant had ever insured plaintiff’s goods, nor that he had been instructed to do so. Defendant cannot be made liable. Patterson v. Leake, 5 A. 547; Tonge v. Kennett, 10 A. 800; Gilly v. Berlin, 12 A. 723.

We have carefully examined the testimony, and we think that the District judge came to a correct decision, and we adojnt his judgment.

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

Howell, J., recused.


author: Howem,, J.

text:
    Celestine Dejona, f. w. c. v. Steamboat Osceola, Captain and Owners.
    A defendant must be sued at the place of his domicil, in personam, unless he voluntarily submits to tlie jurisdiction oí the court where suit is brought against him.
    The words of a law are to be understood in their most known and usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words ; and, ■where its expressions are dubious, its true meaning is to be discovered by considering the reason and spirit of it, or the cause which induced the legislature to enact it.
    The capacity of the plaintiff to stand in judgment must be pleaded in limine litis.

    A writ of provisional seizure will lie against a boat running exclusively within the State, for services rendered on board.
    it PPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      B. King Cutler for plaintiff.

    The plaintiff claims $510 and interest, for services of her minor son, Constance, rendered to defendants. The judgment of the lower court is fully supported by the evidence and the law, and should be affirmed.
    As to defendant’s plea to the jurisdiction, see C. P. Art. 285, § 3, and Art. 289; 5 An. R. pp. 349 to 353.
    Plaintiff’s privilege : See C. C. 3204, par. 6, and Acts 1858, p. Ill, 81.
    As to the pretended abandonment by plaintiff’s son, see Acts 1858, pp. 142 and 143, 2, and R. p. 19. The steward permitted him to go and see his mother.

      B. <& 3. Mar r for defendants and appellants.

    Two things must concur to enable a sailor or other person employed on board a vessel to obtain the writ of provisional seizure. 1. He must have a privilege on the vessel. C: P. 284. 2. The vessel must trade within the State. C. P. 285, 289.
    1. Privileges on ships and other vessels are prescribed by the lapse of six months. Act of 1858, p. 111. Five of the eleven months wages claimed were, therefore, prescribed, had ceased to operate as a privilege, at the time the suit was brought. The payments made on account are more than sufficient to extinguish the claim for wages earned in the State of Louisiana; and we respectfully submit that the lien established by the law of Louisiana has no extra-territorial effect, and cannot be extended to services rendered beyond the limits of the State.
    2. But if there had existed a privilege in favor of plaintiff, the other indispensable requisite would still be wanting. This writ is the creature of the law', one of the harsh remedies, to be resorted to only in those cases in which it is expressly authorized, and which are determined, so far as ships and vessels are concerned, by Art. 289 of the Code of Practice. See Smith v. Smith, 2 A. 448; Boquest v. Steamer B. E. Clark, 12 A. 300.
    Art. 289 contemplates two classes of vessels, those trading within the State, and those trading out of the State. The first clause of the article authorises sailors and other persons employed on board vessels “ trading within the State,” to obtain this writ. The second clause authorizes the provisional seizure “ even of ships trading out of the State,” at the suit of those who have furnished materials or made repairs to such ships. Very clearly, therefore, those favored creditors, material men and those who have made repairs, may cause to be provisionally seized both classes vessels; while sailors and others employed on board can demand the provisional seizure of such vessels only as fall within tlie description of vessels ‘1 trading within the State. ”

    The legislature would not have provided a remedy against vessels which trade wholly without the State; for such vessels would not come within reach of the process of our courts, and could not be provisionally seized. The Article evidently intends to establish a distinction between two classes of vessels, both of which are subject to Louisiana process, and which must, therefore, come to ports in Louisiana. The first class is described as “trading out of the State,” and the second class as “ trading within the State.” The first class is subjected to the writ of provisional seizure at the suit of sailors and others employed on board; while the second class is expressly exempted from such seizure.
    It will not do to say that Art. 289 designed to exempt from provisional seizure, at the suit of the crow, merely such vessels as might accidentally bo compelled to deviate from their voyages, and be forced into a Louisiana port for repairs, while endeavoring- to prosecute their voyages in a trade wholly out of the State of Louisiana, and which did not require them to come within its limits. The object of the article is to authorize the seizure of a certain class of vessels, and to exempt another class from such seizure, at the suit of the crew. One of the requisites of every provisional seizure is, that the debt should be due and exigible. By the maritime law the sailor ships for the voyage; and he cannot claim wages, nor is anything due him for wages, until the voyage is completed.' Vessels which are obliged to put into an intermediate port for .repairs, have not completed their voyage; and are not liable to be sued by the crew. It would have been very idle, therefore, for the compilers of the Code to have established a distinction by which one class of vessels was subjected to the writ of provisional seizure at the suit of the crew, while another class was expressly exempted from such seizure, if this latter class comprised merely such vessels as accidentally might come into our ports for repairs, while prosecuting voyages wholly out of the State, both the termini of which were in other States, or in foreign countries. That no such idea entered into the minds of the compilers of the Code, or of the legislature, is sufficiently manifest, when we consider that they took care to allow the provisional seizure of such vessels as are subject to the jvrit, only for debts actually due; and that the wages of the crew of a vessel forced into an intermediate port for repairs, are not due. There could have been no motive for the express exemption of such vessels from seizure by the crew; because they are sufficiently exempted by the requirement that the debt for wages shall be due and exigible.
    The terms “within” and “out of” are used as antitheses in Art. 289. “"Within”, means not beyond, and “out of” means beyond, the limits of the State. The first clause, therefore, restricts the right of provisional seizure to vessels trading not beyond the limits of the State, while the second clause extends the right iu favor of two specified classes of creditors, even to vessels trading beyond the limits of the State,

      The one class of vessels has both the termini of its trade within the State, from one port in the State to another port in the State; and is, therefore, properly decribed as “trading within the State.” The trade of such vessels is not merely in the State, but within the State, not beyond the State, wholly domestic ; and such vessels only are embraced in the first clause of Art. 289.
    The other class must necessarily have one terminus of its trade in this State, in order to be subject to- Louisiana process. The other terminus is not in this State, but beyond its limits; and this class is properly described as “trading out of the State,” from a port in this State to a port beyond the limits of this State. This constitutes the distinguishing-feature of this class of vessels. They do not trade within the State, though they trade in the State; and this class alone is embraced in the second clause of Art. 289.
    The Osceola, therefore, was a vessel trading out of the State, within the meaning and intendment of Art. 289. The proof shows that when she left New Orleans, on the day this boy shipped, she was bound on a voyage to a place out of the State. She went out of the State; she was regularly trading out of the State; and she was not, at the time the service of the boy commenced, nor at the time the writ was issued, subject to provisional seizure at the suit of any person employed on board.
    The practical importance of this question must be our apology for discussing it at such length. It occurs almost daily in the inferior tribunals; and their decisions upon it are conflicting. This is the first instance in which it has been presented to this court, so far as we know; and we hope the court will now interpret Article 289 of the Code of Practice, and finally settle its meaning and extent.
   Howem,, J.

Plaintiff instituted this suit in the Fifth District Court of New Orleans, to recover the sum of ®510, alleged to be due for the wages of her minor son, as cook on the steamboat Osceola, at the rate of thirty dollars per month, for two months from the 5th February, 1859, and fifty dollars per month for nine months thereafter. Upon the usual affidavit, the boat was provisionally seized.

The defendant, McMillan, as master and sole owner, excepted to the jurisdiction of the court, alleging his domicil to be in the parish of Caddo, in this State, which plea was, by consent, tried with the ‘merits. He took a rule to set aside the provisional seizure, on the ground: 1. That the allegations in the petition and affidavit do not authorize the writ; and, 2. That the boat was, during the time for which wages are claimed, in a trade extending beyond the limits of this State, and, for the last nine months of said period, was not within the State. This rule was dismissed, and defendant filed an answer reserving his exception ; pleaded the general denial; admitted that, on the 10th February, 1859, such a boy shipped on his boat at thirty dollars per month ; set up, as a defence, the second ground of his rule ; alleged a reduction in the wages; several payments on account; a deduction for lost time, and forfeiture of wages for abandonment before the completion of the last month ; and denied the privilege.

Judgment 'wás rendered in the lowfer court, dismissing the exception, and condemning the defendant to pay $326 90, with interest, and privilege upon the boat; from which he appealed.

The first question presented is the plea to the jurisdiction. The defendant’s residence is proven to be in the parish of Caddo ; and, according to our jurisprudence and legislation, no personal judgment can be rendered against him, unless he voluntarily submit himself to the jurisdiction. Not having done so, the exception should be maintained, as to a judgment in personam. C. P. Art. 162 et seq. 5 A. 352.

He contends, in the second place, that his rule should be made absolute, because the character of the claim sued on does not authorize the writ of provisional seizure; and, consequently, no judgment can be rendered against the boat. In support of this position, and to take the case out of the ruling in Henning v. Steamer St. Helena, 5 A. 352, just quoted, he relies upon Article 289, C. P., in which, he says, a distinction is made between vessels trading “within the State” and those trading “out of the State.” The first clause of the article gives to employees on vessels, trading within the Slate, as well as persons who have furnished materials for, or made repairs to such vessels, the right, when they bring their action against the captain, owner or consignee, to provisionally seize said ■vessels, to secure the amount of their claims, upon taking the prescribed oath. The second clause declares that “ such seizure may be made even of vessels trading out of the Stale, at the suit of persons claiming payment for materials furnished for, or repairs made upon, such vessels. ” This clause gives to a class of creditors, embraced in the first clause, to wit: those who furnish materials or make repairs, a remedy against a description of vessels not included in the first, to wit: vessels trading out of the Stale. The first awards the writ to both classes of creditors against one description of vessels ; the second gives it to one of those classes against an additional description of vessels.

We can find no case in which this point has been raised; but we believe that it has been the uniform practice, up to the present time, to grant the writ to the employeés on all vessels where suits have been brought by them in the courts of the State for their wages ; and we are now called upon to give a judicial interpretation to this Article of the Code of Practice.

Article 3204 O. 0. establishes a privilege in favor of such creditors. Article 284 C. P. gives to them the right to provisionally seize vessels “navigating within the State;” and Article 289, same Code, points out the manner in which the writ may be obtained; and promises, further, that it may issue against vessels trading out of the State, at the suit of those who have furnished materials for or made repairs upon such vessels.

Had this not been added, we presume the question now before us would not bo raised; and the enquiry is, does this clause restrict the former and limit the writ, so far as emjoloyeés are concerned, to vessels which do not go beyond the borders of the State, and deny it in those cases where the vessels, though they may have their domicil hero, extend their voyages or trade beyond the State limits ?

It is is a rule of interpretation that “the words of a law are to be understood in their most known and usual signification, without attending eo much to the niceties of grammar rules as to tho general and popular use of tlie words (0. 0. Art. 14) ; and where its expressions are dubious, its true meaning is to be discovered by considering the reason and spirit of it, or the cause which induced the legislature to enact it.” 0. 0. Art. 18. Applying these rules to the article under consideration, we do not think it a forced construction to hold, that vessels, which have only one terminus of their voyage in the State, trade within the State, in the meaning- of the law, and that the second clause of the article was added to provide for vessels which trade wholly out of the State — fes batimens qui font le commerce exiérieur — such as may come here simply for repairs; cases not provided for in the first part of the article. We can discover nothing-in the reason or spirit of the law to justify the restricted meaning claimed for it by the appellant. By such a construction, our own citizens, trading entirely within the territorial limits of the State, might be placed in a less favorable position than those whose vessels trade beyond those limits, though it be but a few rods. The object of the legislature evidently was to give those who bring suit in our tribunals, for their wages, the right to seize, without having to furnish bond, the vessels on which they earned them; and the practice of years, without a doubt having heretofore been raised, has consecrated the meaning which we give to the terms of the law: a meaning which, we think, in no manner infringes the well settled doctrine, that this harsh remedy should be resorted to only in those cases in which it is expressly authorized.

In this view, then, we conclude that the rule was correctly dismissed; and that, under the decision in the case of Henning v. Steamboat St. Helena, this action was rightfully maintained as to the boat provisionally seized.

The capacity of the plaintiff was not excepted to in limine litis, and it is now too late to raise the objection. See authorities cited in 1 Hennen’s Digest (2d ed.), p. 1152, b. No. 1.

On the merits, however, we think the lower court erred in the amount allowed. The claim embraces a period of eleven months, the wages for the last of which were forfeited, under the second section of the act of 1858, page 148, by abandonment before the end of the month; and the privilege is limited, by the act of the same year (p. Ill, (j 1), to six months. The wages are shown to be thirty dollars per month, which, for six months, amount to $180; deduct, from this the wages of the last month, and the payments made on account during the six months, amounting to $103 10, and we have the sum of only $56 90, for which a privilege exists by law.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and proceeding to give such judgment as should have been rendered below, it is ordered, adjudged and decreed, that the exception herein be sustained, so far as to dismiss the action in personam against W. McMillan, captain and owner of the steamboat Osceola; and it is further ordered, that plaintiff have judg^ ment, with privilege, against the said steamboat Osceola, her tackle, apparel, etc., provisionally seized herein, for the sum of $56 90, with legal interest from 10th January, 1860, until paid, without prejudice to the right of action, if any exist, for the wages not herein allowed, with privilege ; the defendant to pay the costs of the lower court, and those of this court to be paid by the plaintiff and appellee.


author: HymaN, C. J.

text:
    The State, etc., on the relation of Charles E. Alter, praying for a Mandamus, v. The Judge of the Fourth District Court of New Orleans.
    "When a judge of an inferior court refuses to decide on the rights of litigants, this court cannot issue the mandate applied for so secure its appellate jurisdiction; nor when he decides adversely to the pretentions of a party. The reasons which he may give for his judgment cannot give this court original jurisdiction.
    Our jurisdiction is only appellate, and we cannot correct, except on appeal, the judgments of other courts. Oontstitution, Art. 70.
    The legislature has provided the manner by which an appeal may he taken. It is not by mandamus.

    from the Fourth District Court of Now Orleans, Theard, J.

      Elmore and King for relator.

    This application is based upon the refusal of the District judge to allow the plaintiff' to bond sequestered property, after the time allowed by law for the defendant to bond had expired.
    The history of the case is briefly as follows :
    A suit was instituted in the Fourth District court by Moore & Browder for the use of Gharles E. Alter v. J. B. Bres. On this suit, sixty-four bales of cotton were sequestered. A motion was made by Moore & Browder, the nominal parties, to dismiss the suit, so far as they were concerned, alleging that a certain advantageous arrangement had been made by them with one Waltman.
    Notice of this motion was given to Elmore & King, the counsel, who originally brought the suit and represented the interest of Alter. This motion was fixed for a hearing on Saturday, the 25th of November, 1865. On Friday, the 24th, the counsel for Alter moved the court for permission for Alter to bond the property sequestered. This order was granted, and Alter bonded the cotton.
    On the opening of the court, on Saturday morning, the defendant, upon various grounds, stated in the record of appeal,-in the case of Moore & Browder, for the use of Alter v. Bres, on file in the Supreme Court, moved the court to rescind the order of the day before granting to Alter the privilege of bonding the cotton.
    The trial of this motion was suspended until after the other business of the court for the day was disposed of. In the meantime, the motion made by Moore & Browder was taken up and tried, and taken by the court under advisement. The motion to rescind the order to bond was then taken up; and, aftor argument on the part of plaintiff, the court ordered the previous order to bond to be rescinded, and ordered the sheriff to repossess himself of the cotton; which he did. To which the counsel for Alter objected, and took a bill of exceptions.

      The court then proceeded to decide the motion made by Moore & Browder, and ordered the suit to be dismissed.
    Alter then applied for a suspensive appeal from both these decisions. The Judge granted a suspensive appeal from the order dismissing the suit, but refused it upon the order rescinding- the previous order to bond; stating for a reason, that he considered the appeal granted, as embracing both orders.
    After these proceedings, the counsel for Alter made a new application to bond, which was refused by the court, upon the ground that an appeal had been granted by tho court, and that the case was no longer within its Jurisdiction or control. To which ruling of the court, the counsel for Alter excepted and tendered a bill of exceptions, which was signed.
    In this ruling upon the last motion, we think the Judgment of the court was clearly erroneous. The right of the plaintiff to bond was a right altogether disconnected with and independent of the merits of the case. He possessed this right from his position as a party litigant, and was entitled to exercise it, even if it were morally certain that he would eventually bo cast in the suit. Suppose that, on the very day a suit was brought and property sequestered, the defendant, confident of his case, went to trial, and Judgment was rendered against him, from which he took a sus-pensive appeal; can anyone doubt that he might still exercise his privilege of bonding ?
    The detention of tho property necessarily caused by the appeal might, in such a case, 'be the very motive for bonding it.
    If, in the case supposed, tho defendant would have the right to bond, it is equally clear that the plaintiff would have the same right, after the lapse of ten days. There is no limit fixed by the law within which the application to bond must bo made. After the lapse of ten days tho right of the plaintiff to bond becomes absolute, and exists so long as tho suit lasts, if there bo a necessity for its exorcise.
    Tho right of a party in a sequestration to bond is strongly analogous to the similar right in cases of attachment.
    Tho defendant may, in every stage of the suit, have the attachment set aside, by giving bond as required by law. C. P. Art. 259.
    The plaintiff, in a sequestration case, has the same right, after the ten days have elapsed.
    The effect of the suspensive appeal, in this case, was to place parties in the .situation they were before tho Judgment was rendered. As the plaintiff had tho right to bond before tho judgment, he had the same right after the appeal.
    These positions are sustained by authority. In the case of Sigliers v. Ardheman, 1 N. S. p. 74, it was held that: “Pending an appeal from a judgment revoking the power of an attorney for absent heirs, his power is retained.” The court says : “The propriety of this revocation is now before us in another case; and, we are of opinion, cannot be examined in this, until a decision be given confirming the judgment of the court of tho first instance, the attorney stands here with till the powers originally Chfifoi-iod oil him,’’

      “Plaintiff in in junction is entitled to the protection of the court, so long as the matter in controversy is undetermined; and a suspensive appeal from a judgment, dissolving- the injunction with damages, has the effect of maintaing the case in the position it was in before such judgment.” Slate ex. rel. Walden v. Judge, 19 L. R. 1G7; City Bank v. Walden, 1 R. R. 181.
    “A creditor’s right to exercise any legal remedy for the recovery of his debt cannot be considered as suspended by an appeal on a matter purely incidental and not inconsistent with the remedy he seeks to enforce; so an appeal from the dissolution of an injunction against executory process for want of notice of seizure and proper advertisement will not prevent the creditor from returning the process and proceeding under an alias writ.” Wright v. Rousselle, 6 A. R>. 78.
    An appeal presents no obstacle to the determination of questions arising subsequent to such appeal. State v. Hamel, 6 A. R. 257.
    Upon these authorities we say that, as the right of the plaintiff to bond the property was independent of the merits of the case; and, as the sus-pensive appeal from the judgment dismissing the suit placed parties stalu quo, an application to bond, made after the appeal, could not be refused on account of that appeal. The very fact of the appeal and the length of time the property would be held by the sheriff made the plaintiff the more desirous of exercising his legal right. The right to bond was a conservatory act, rendered more necessary by the appeal. As we could not appeal from the refusal of the judge to allow us to bond; or, even if we could, the delay would destroy the value of the right to bond, no other relief was left to us but to apply for a mandamus.

      We consider the refusal of the judge to allow us to retain the property we had bonded under his order, and his subsequent rescinding that order and directing the sheriff to retake the property, as equally erroneoxrs and detrimental to the plaintiff’s rights. The judge considers that matter before the Suxoreme Court on the apiDeal. How could it be, when the record shows that he ordered the sheriff to take immediate possession of the property, and that the order was executed. After this, it was idle to tell us, he would grant a suspension appeal. A suspension appeal from what? What was suspended by the appeal?
    Not the order directing the sheriff to retake the property, for that order had already been executed. He grants us a suspension appeal from a judgment after that judgment had already been executed, somewhat analogous to the proceeding of granting a new trial after the convict had been hung. It is true the propriety of his orders may be inquired into on the appeal on the merits of the case; but this affords us no adequate relief for his refusal to allow us the exercise of a plain legal right, and delaying us until the right became worthless; especially when this is done upon groxxnds wholly illegal and erroneous.
    The reason assigned by the judge for rescinding the order to bond, Was that the order was granted during the pendency of the motion made by Moore & Browder, the nominal plaintiffs.
    That motion was not, as the judge erroneously supposed, a motion to dismiss the shit, but merely to dismiss it; so far as they were concerned, fnthout prejudice to Alter’s rights!

      Now, as the nominal plaintiff bad no concern or interest in the suit, the granting of their motion could not have affected the suit. Our objections to the motion were, that it seemed to imply a right on the part of the nominal plaintiffs to interfere with the prosecution of the suit, and the granting of it might have been supposed to have produced the necessity of changing tho title of the suit. This could not have been done without producing great confusion in the docket.
    In our answer to the motion, we denied the right of the nominal plaintiffs to make any such motion, or to interfere in any manner with the suit. But as it was apparent the nominal plaintiffs had no interest in the suit, we had no objection to an entry to that effect being made upon the minutes. We contend that the pendency of such a motion formed no barrier to the plaintiff’s exercising his legal right to bond. It certainly did not prevent the defendant from bonding. He was not even notified of the motion.
    If it be said that the defendant was deceived by the motion and lulled into a false security, thinking there was no necessity for his bonding; we reply that “ignorantia legis neminen exousat.” He is presumed to have known that the nominal plaintiff had no right to make the motion, or even if it had been granted in the very terms used, it would not have interfered with the rights of Alter, the real plaintiff. The nominal plaintiffs never had the right to bond the property sequestered for themselves. Their motion to dismiss the suit so far as they were concerned, could not bo considered, therefore, as a waiver of the right of Alter. There was nothing in the motion which, by any kind of implication, could impair Alter’s right to bond, or which interfered in any manner with the defendant’s exercising that right, if he had chosen so to do. It would be monstrous, if a party, who upon the face of the papers had no interest, or right to interfere with the suit, could upon his mere motion deprive the plaintiff of the exercise of his plain legal rights! It would be still more deplorable, if this mere nominal party was instigated and hired by the defendant to make the attempt thus to interfere in the suit, and to take advantage of his own wrong. Moore & Browder acknowledge in their motion, that they make it because Waltman, the owner of the cotton, had made an arrangement with them to dismiss the suit. We therefore conclude that the motion of Moore & Browder, the nominal parties, to dismiss the suit so far as they were concerned, without prejudice to the rights of Alter, the real plaintiff, form no bar to Alter’s bonding the property, and that the order of the court rescinding the previous order to bond was illegal and unauthorized.
    From this statement of the case, as it appears from the record, it is difficult to divine tho considerations that influenced the court. The solution will probably be found in his subsequent judgment dismissing the suit altogether.
    It will be seen that the judge did not confine himself to the motion made, which was to dismiss the suit so far only as Moore & Browder were concerned, “without prejudice to the right of O. E. Alter to prosecute his demand as he may deem fit,” but dismissed the suit altogether. No reason is assigned in the record by the judjje for this extraordinary decision. ■ He stated orally that he Considered Mbore & Broivder had the right to dismiss the suit. In this decision the authorities show ho was altogether mistaken. Suits for use, Sc.

      “ But courts of equity have long since totally disregarded this nicety. They accordingly give effect to assignments of trusts, and possibilities of trusts, and contingent interests, whether they are in real or in personal estate, as well as to assignments of choses in action.

    Every such assignment is considered in equity as in its nature amounting to a declaration of trust, and to an agreement to permit the assignee to make use of the name of the assignor in order to recover the debt or to reduce the property into possession.” 2 Story’s Eq. p. 305, sec. 1040. See also marginal references.
    The practice in courts of equity was derived from the civil law, and assimilates very nearly to our own.
    Our own courts have accordingly held similar and stronger doctrines in reference to such actions.
    “In a suit by A,.for the use of B, the latter is tho real plaintiff, of whom the court and the defendant are bound to take notice. ” Herman’s Digest, p. 1124, sec. 6. Also Davis ei al. v. Taylor, 4 N. 8. 135. The very language adopted in tho above principle is extracted from this decision.
    The case of McNair v. Thompson, 5 M. R. 561, was a suit by Eowler for the use of McNair, on a contract of affreightment made by Eowler with Thompson. The Supremo Court in deciding the cause say: “Thus, if McNair should come forward, without the assistance of Eowler, he would be without any right. But Eowler’s declaration that ho sues for tho use of McNair, amounts to a relinquishment and transfer of his own right in his favor, and is considered as sufficient to enable McNair to appear in this case as the real plaintiff.”

      7Heles el al. v. O’Connor, 5 M. R. 549. — If the nominal plaintiffs had an absolute right to compel payment, it is immaterial whether it is exerted in their own right and for their own use, or in their own right for the use of their transferree.

      Filliiol v. Jones el al, 8 M.S, 635. Tho court held: “Suit may be brought on a note not negotiable in the name of the payee for tiip use of the transferree.”

      Dayton v. Commercial Bank, 6 R. B. 17. “ In an action by one for the use of another, tho latter is tho real plaintiff.”

      Rawle, for Hie use of Russel, v. SleipworiU at re.e, TJL. H. 210. “The plaintiff, by bringing suit on the assignment aud claiming tho benefit oí if, has ratified and confirmed the condition on which it was made. ” *
    “The legal title is in Bawle, and ho may sue for tho use of whom ho pleases. ”
    In the suit before the court, the action was brought for tho use of Alter; judgment was asked for the use of Alter. The action was brought to enforce the specific performance of a contract between Moore & Browder and one Waltman. Prior to the filing the suit, this right of action existed in Moore & Browder. The filing of the suit for the use of Alter was a complete transfer and assignment to him of all tlio rights of Moore & Browder in tho contract and in the suit. Tho appearance of Alter in the suit was an acceptance and ratification of the transfer of all tho rights of Moore & Browctef. This transfer carried with it the right to proseetlft the suit as it then stood, and to continue the use of the name of the trails-ferrees, who became mere nominal parties. The moment the suit was filed, the rights of Moore & Browder ceased, and those of Alter took their place, just as la morí saisit le vif. This transfer, on the part of Moore & Browder, could not be revoked by them in any of its parts. The consent to use their name could not be recalled. Alter incurred expenses and responsibilities upon the faith of the transfer, and acquired rights of which he could not be divested by Moore & Browder.
    Where suits are transferred after the action has been brought, the suit is still prosecuted by the original title, although the nominal plaintiff, as a matter of record, has no interest in the suit. A change of title would involve the records of the court in inextricable confusion. It should never be allowed by the courts.
    The foregoing principles of law, governing actions by one for the use of another, have been so long recognized, and so often applied, that it is not without surprise that we are called upon, in this case, to make an argument to show that Alter is the real plaintiff, and as such had the solo right to exercise the rights of plaintiff. Now, if Alter was the plaintiff, his first motion to bond the property was the exercise of his undoubted right. .
    The order rescinding the previous order to bond was illegal and unauthorized. The delay caused by an appeal will destroy the value of this legal right to bond. Is the plaintiff to be denied the exercise of his legal right, because a judge will perversely insist that he is not tlie plaintiff, when the record shows that he is ? Are we to have forced upon us a party as plaintiff, when the record shows on its face that the party is not the plaintiff ? Are we to be told that a judge, by closing his eyes to all the lights of reason and of law, can make the fictitious control the true, the nominal the real, the shadow the substance, and thereby deprive a party of his unquestionable legal rights ; and that there is no remedy but one, which is so slow in its operation as to defeat and destroy the value of the right ?
    We humbly submit that this cannot be in a land where law and justice are administered.
    We think the party is entitled to a mandamus, compelling the-judge to allow him to exercise his right to bond, on either of his applications for that purpose. Let us inquire in what cases will a mandamus be granted.

      Mandamus. — •“ The object of this order is to prevent a denial of justice, * * and it should therefore be issued in all cases where the law has assigned no relief by the ordinary means, and where justice and reason require that some mode should exist of redressing a wrong or an abuse of whatever nature. ” C. P. Art. 830.
    “ This order may be issued at the discretion of the judge, even when a party has other means of relief; if the slowness of ordinary legal forms is likely to procure such a delay that the public good and the administration of justice will suffer from it.”
    A mandamus will be granted to compel a district judge to sign a bill of exceptions. C. P. Art. 900.

      Also to compel a probate judge to entertain an application to appoint an under tutor and convoke a family meeting. 14 L. B. 483. 7 A. B. 184,
    So to compel the judge to act when delay would produce injury and injustice. 4 B. B. 48.
    So even in matters of discretion, where there is a clear abuse of discretion, tending manifestly to thwart justice and frustrate the right of appeal. 7 A. B. 126,
    Also to compel a judge to try a cause. 4 B. B. 227.
    Also to compel a judge to grant an appeal. 3 M. B. 184.
    Also to compel the issuance of execution in certain cases. 11 L. B. 368.
    Also to comply with mandate of the Supreme Court. 6 B. B. 92.
    Also to prevent unreasonable delay. 13 A. B. 481.
    The right of a plaintiff to bond sequestered property, after ten days have elapsed, and the defendant has made no application to bond, is fully guaranteed by the law. B. S. p. 95, 113.
    The court has no discretion to refuse him this privilege, and might as well debar him from the right of appeal, or any other right secured to a party litigant.
    The plaintiff is denied the exercise of this clear legal right, over which the district judge has no discretion. '’The delay of an appeal is as fatal to him as the absolute denial of the right. This is precisely the case for a mandamus, pointed out by the articles of the Code of Practice, above quoted.
    The theory of the judge is, that Moore & Browder are the plaintiffs who have the control of the suit. That Alter has no rights as plaintiff, not even to bond the cotton. Upon this theory, Alter is compelled to abide the action of Moore & Browder, and can do nothing without them or contrary to their wishes. If the judge had carried out his theory, he should have refused the appeal he granted to Alter. Suppose ho had done so, could any one doubt that, on an application for a mandamus, the Supreme Court would have compelled him to have allowed an appeal to Alter ? The right of Alter, as plaintiff, to bond the cotton is equally as clear as his right to appeal in the supposed case; and he is as justly entitled to a mandamus.

      We ask for a mandamus upon both the grounds stated in this brief. 1. On his refusal to grant the last application to bond, which is, perhaps, the clearest one. 2. Upon his refusal to allow us to hold the property under the first order and the bond given.
    The mandamus, we think, may justly be awarded to us on either ground.
   HymaN, C. J.

The relator complains that the judge had, by an order, rescinded a prior order of his court, granting to him, relator, permission to bond the cotton sequestered in the case of Moore & Browder for the use of C. E. Alter v. J. B. Bres, and had moreover directed the sheriff to take possession of the cotton after he (relator) had bonded it; and that, subsequent thereto, the judge had refused, on a motion made by relator, permission for him to bond it.

The relator applies for a writ of mandamus to compel the judge to permit him to bond the cotton.

When a judge of an inferior court refuses to decide on the rights of litigants, this court cannot issue the mandate applied for to secure its appellate jurisdiction; nor when he decides adversely to the pretentions of a party. The reasons which he may give for his judgment cannot give this court original jurisdiction.

Our jurisdiction is only appellate, and we cannot correct, except on appeal, the judgments of other courts. Const. Art. 70.

The legislature has provided the manner by'which an appeal may be taken. It is not by mandamus.

Mandamus refused.


author: IiiSiiEV, J.

text:
    Widow Betat et al. v. E. E. Mougin.
    Legal presumption is tliat which is attached, by a special law, to certain acts or to certain facts; such as the weight which the law attaches to the confession of the party, or to his oath.
    from the Second District Court of New Orleans, Whiialcer, J.

      J. Magne for plaintiffs. G. Roselius for defendant and appellant.
   IiiSiiEV, J.

The late widow Betat (of whom the, plaintiffs are the legal representatives) and the defendant, E. E. Mougin, were co-partners.

The sum claimed in the petition, seven hundred and ninety-one dollars and seventy cents, is represented to be the balance by him the defendant due, in cash, in the settlement of the partnership; besides an amount of three thousand eight hundred and twenty-eight dollars and ninety-two cents, assets to be divided.

The defendant, by his answer, acknowledged himself indebted to the plaintiffs in the sum of six hundred and eighty-nine dollars and seventy-four cents; but he averred that one hundred and eighty-two dollars and forty-six cents were due to him, and he prayed that that sum should be •allowed him in compensation, or deduction.

The court below gave judgment in favor of the plaintiffs for six hun= dred and forty-two dollars and seventy-three cents, subject to a credit of 'sixty-eight dollars, allowed in compensation, and ordered the partition of the three thousand eight hundred and twenty-eight dollars and ninety-two cents; and from this judgment the defendant, Mougin, has ap= pealed.

The plaintiffs in this court pray that the judgment of the District Court be amended, by striking out the item of sixty-eight dollars, improperly allowed to the defendant and appellant; and that judgment be rendered by this court in accordance with their prayer.

By the answer of the defendant, it is admitted that he is indebted to the plaintiffs in the sum of six hundred and eighty-nine dollars and seventy-four cents; and this judicial confession is conclusive as regards that item. See Art. 226á Li G¡

"We no evidence whatever in the record to sustain the defendant’s plea fn compensation. He annexed an account of indebtedness on the part of the plaintiffs to him, but he totally failed to prove it.

The plaintiffs and appellees do not complain of the judgment allowing them only the sum of six hundred and forty-two dollars and seventy-three cents; but say that the sum of sixty-eight dollars was erroneously allowed to defendant, and they pray accordingly.

It is therefore ordered, adjudged and decreed, that the judgment of the District court be so amended as to strike out and disallow the sum of sixty-eight dollars, awarded by the said decree to the defendant by way of compensation; and that, so amended, the judgment be and is hereby affirmed, with costs in both courts, to be paid by the defendant and appellant, E. E. Mougin.


author: Labauve, J.

text:
    Medina & Clohecy v. John Hanson.
    Carriers or watermen may be liable for the loss or damage of the things intrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental or uncontrollable events.
    APPEAL from the Second Judicial District Court of the Parish of Jefferson, Cazdbat, J.

      W. Commandeur for defendant.

      R. King Cutler for plaintiffs and appellants.

    Plaintiffs claim four hundred and eleven dollars damages, caused by the carelessness and negligence of the defendant, as a common carrier, by taking into his charge and towing, with his steam job-boat Downs, a lot of skip timber from Battle Ground Flats, below the city, to Algiers. The defendant, after denying the allegations of plaintiffs’ petition, claims in reconvention the sum of five hundred dollars, for four days loss of time of his boat and crew, and the loss of rope, and the sustenance -of the crew. The judgment of the court a quo was in favor of defendant and against plaintiff, for thirty-four dollars, on the plea in reconvention.
    The first question presented by the facts of this ease is, whether the defendant was a common carrier. By reference to 1 La. Bep. p. 350, in the case of Smith v. Pearce, we find “that the owners of steam towboats are liable as common carries;” and that the court were unanimously of the opinion “that the situation of proprietors of towboats, and the business they undertake, cannot legally authorize a relaxation of the severity and rigor of the ^-ules applicable to common carriers. ” This opinion is confirmed in the case of Paris v. Eouren, in 6 Bob. Bep. p. 255; and again in the case of MiUaudon v. Martin, 0 Bob. p. 534. In fact, the elementary law is clear upon this question : for, it would seem, that the Only interpretation that could be given to Articles from 2722 to 2726 of the Civil Code, is, that owners of steam towboats are liable as common carriers. These authorities clearly establishing the liability of the owners of steam tow boats as common carriers, we will next consider their liability. By reference to Jones on Bailments, Appendix, pp. 17, 18, 19 and 20, we find : “ By the custom of the realm, a carrier is responsible for events which are independent of his contract, and is liable for losses, whether arising from accident, robbery, irresistible force, or any other means whatever, except they arise from the act of God or from the king’s enemies.” “A carrier is in the nature of an insurer, and is liable for every accident, except by the act of God or the king’s enemies. ” “The act of God means something in opposition to the act of man, for everything is the act of God that happens by his permission, everything by his knowledge.” “But to prevent litigation, collusion and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier, unless he shows it was done by the king’s enemies, or by such act as could not hapj>en by the intervention of man.” As to whom the burthen of proof rests upon, the same authority continues thus : “If a loss happens, the onus probandi lies on the carrier to exempt him from liability; and it is not enough for him to prove where the goods are carried by water, that the navigation is attended with so much danger that a loss may happen, notwithstanding the utmost endeavors of the watermen and crew to prevent it; that the person conducting the boat possesses competent skill and due diligence, and provided hands of sufficient strength and experience to assist him.” We find this doctrine laid down in the Civil Code, Arts. 2722 to 2726, inclusive, and sanctioned by this court in the case of Holland v. Gammeit, in 5 An. p. 705, as well as in numerous other decisions which we deem it unnecessary to refer to.
    The testimony of John McBride, that of T. R. Brady, Captain John H. Brown, Gaptain Jacob Joachim, as well, in fact, as the principal witnesses on the part of the defence, thoroughly and clearly proves and establishes the contract between the plaintiff and defendant; and that defendant was to carry, or tow, with his steam towboat Downs, the ship timber, mentioned in the plaintiffs’ petition, from the Battle Ground Flats, eight or ten miles below the city of New Orleans, to Algiers, the place of its destination; and further, that the defendant went with his tow boat Downs to the Battle Ground Flats, where the timber was situated, and there took possession of it, fastened it to his boat, commenced the carrying of it by loading a part of it into an empty flatboat, brought there for that purpose by the defendant,- with his towboat Downs. The same witnesses establish that the same evening on which they commenced the loading of the timber, more particularly about bedtime of that night, the weather was clear and calm, although it had been blowing quite hard a day or two previous, and did blow very hard a few days afterwards. That, during the night, a wind arose, and the steamboat, flatboat and timber, all got adrift in the Mississippi river; and the ship timber, staples, ropes, 'etc., mentioned in plaintiffs’ petition, were entirely lost. Further, the same testimony proves conclusively that John Hanson, the defendant, who was the owner of the boat, and who then acted as commander and captain, he having the entire control, was, and he is, a very incompetent boatman ; and, further, that the boats and timber were-improperly moored and fastened, they being tied to old drift logs on the shore, with old and unsound ropes, which leads us to the irresistible conclusion that there was no one on watch that night, and that the loss happened in consequence of the reckless carelessness, imprudence, want of skill and mismanagement on the part of the defendant, and that the loss cannot be attributed to an act of God. The testimony introduced by the defendant is an attempt, first, to discredit some of the witnesses of plain tiffs’; second, to establish that the river at the Battle Ground Flats was difficult of navigation; and, thirdly, that Captain Hanson did all he could to save the timber.
    According to the principles heretofore laid down, from Jones on Bail-ments and the decisions of this court, even if the defendant had succeeded in establishing his second and third grounds of defence, it could have availed him nothing as a defence to this suit; for we contend that it was incumbent on him, not to prove that he acted with due diligence and as a prudent master of a vessel would act under similar circumstances, but it was his imperative duty to show that the loss occurred from an overpowering act of God. The error fallen into by the learned judge below, was in considering his second ground of defence-a bar to this action; for, in his reasons for judgment, he says : “ That Captain John Hanson, the defendant, seems to have taken all the precaution for the safety of his towboat, as well as of plaintiffs’ timber and flatboat, and that the accident by which some of the timber was lost cannot be attributed to him;” which clearly shows that to him it was sufficient for the defendant to establish due diligence on his part, and that it was not necessary for the defendant to prove that the loss occurred from an act of God ; which opinion, as is apparent, conflicts with the law and settled jurisprudence of this State. Admitting the foregoing facts, all of which are fully presented by the testimony in the record, nothing can be more certain than that the defendant is legally liable to plaintiff for the value of his property lost on this occasion. The Civil Code alone fixes his liability. Article 2723 reads : “ They are answerable, not only for what they have actually received in their vessels, but also for what has been delivered to them at the port or place of deposit, to be placed in the vessel or carriage.” Again, Article 2725, reads : “Carriers and watermen may be liable for the loss or damage of the things intrusted to their care, unless they can prove that such loss or damage has been occasioned by accident and uncontrollable events.” These articles have been frequently considered by this court, and it may be correctly said that the question is no longer an open one, for the uniform jurisprudence of the State, as settled by this court, is “ that the common carrier, under the commercial law, is answerable for all losses that do not fall within the excepted cases of the act of God,” (perils of the seas.) Among other authorities on this subject, we refer your honors to the case of Thomas v. Ship Morning Glory, 13 An. p. 269; the case of Aojare v. The Ponlcharlrain Railroad Company, 11 Rob. p. 24; and to the case of Roehereau & Go. v. Barque Hansa, 14 An. p. 431.
   Labauve, J.

The plaintiffs and appellants claim of tho defendant the sum of $411, with interest. They allege, in substance, that in January, 1860, they had contracted to deliver to James Martin, at the Atlantic dry dock, at Algiers, a certain quantity of white oak (ship timber), from thirty-five to forty pieces ; of •which twenty-one pieces were then some eight miles below Algiers, lying in the Mississippi river; that said Hanson agreed to tow the said twenty-one pieces of timber from where they were to said dry dock, and proceeded down the river with his job-boat Downs, to where the timber was, bnt concluded that said timber could not be towed up then, in the condition it was then in; and petitioners purchased a flatboat, which they delivered to said Hanson to convey the said timber ; that said Hanson went back and commenced placing in said flatboat the said timber; and, having put in seven pieces, night came, and the labor was suspended until next morning; but, that said Hanson fastened the boat in so bad a manner that she broke loose in the night and floated down, with said flatboat and timber attached to her, and that the fourteen pieces, which had not been put in said flatboat, were lost; that this loss was caused by the carelessness and negligence of said Hanson, etc., and he prays accordingly.

The defendant answered by a general denial, but admitted the undertaking ; denied, at the same time, the neglect imputed to him; that the loss was caused by an unforeseen storm. He claims in reconvention $500, for which he prays judgment.

The District court dismissed plaintiffs’ demand, and gave judgment for defendant in reconvention, for $34 and costs.

We find in the record a bill of exceptions, taken by plain tiffs ; but, as a decision upon it would not change the conclusion we have come to, we have not thought necessary to pass upon it.

The testimony shows that the weather was fine in the commencement of the night; that the steamboat had two anchors out (one at each end), and a line ashore, tied to an old log; there was nothing else to tie it to. The flatboat was properly fastened. In the night a storm came on; everything got loose — steamboat, flatboat and timber. The timbers that were not put on the flatboat were lost.

It is true that steamboats are common carriers, and, as such, are hold to the most strict vigilance and responsibility. They must deliver what they have received, unless they prove that the loss has been occasioned by accidental and uncontrollable events. C. G. Art. 2725.

The loss of the timber is proven, as alleged; it was then incumbent on the defendant to show the accidental and uncontrollable event which had caused the loss. He has done so by proving a storm which put everything adrift in the river. But it is contended that he had been neglectful in not securing properly his steamboat, the flatboat andtlie timber. We have carefully examined the testimony, and we think, with the district judge, that the defendant is not responsible. We are of opinion that the judgment appealed from is erroneous in allowing the defendant thirty-four dollars in reconvention against the plaintiff. We believe that defendant has failed to make out his demand in reconvention.

It is therefore ordered and decreed, that the judgment of the District court be annulled and avoided ; it is further ordered and decreed, that there be judgment against plaintiff, and that there be also a judgment against the defendant on his rcconventional demand. It is further ordered and decreed, that plaintiff pay costs incurred in the District court, and that the defendant pay those of appeal.


author: HowebIj, J.

text:
    N. C. Briggs v. J. S. Simonds.
    The neglect or failure of one party to prove what is essential to his recovery, is not cured by the evh donee of the other, leaving the fact doubtful.

      A PPEAL from the Fourth District Court of New Orleans, Price, J.

      Hanlon á Miller for plaintiff. G. A. Breaux and JDirhammer for defendant and appellant.
   HowebIj, J.

This is an action to recover back the sum of $476 34, the amount of an execution against plaintiff and in favor of defendant, as having been paid in error.

A general denial was pleaded, and judgment rendered against defendant for $433 44, with interest, from which he appealed.

The facts are as follows:

In the year 1856 Simonds had a claim for $401, for repairs to the steamboat C. Hays, for which the plaintiff, as captain, gave his due bill on 29th December, 1859, endorsing on it, at the time, an acknowledgement or confession of judgment, in these words: “I hereby acknowledge the above bill or note to be correct, and also judgment on the same. Dec. 29, 1856. (Signed) N. C. Briggs, master steamboat 0. Hays.”

In the spring of 1857, Dr. Crockett transferred to Simonds a note of Goodall for about $350, endorsed by him, Crockett; on which Simonds brought suit on 28th May, 1857, took judgment, and, by his attorneys, received on 18th November, 1857, from Crockett, the endorser, $358 10, in full satisfaction thereof.

On 8th June, 1857, Simonds sued on the note or due bill given by Briggs for the repairs to the steamboat C. Hays, and on the same day, by virtue of the confession thereon, as above, took a personal judgment against Briggs; on which no proceedings were taken, until February, 1859, when execution was issued and levied on the steamboat Bluff City, the property of Briggs, as she was about leaving the port of New Orleans; and Kennett, Blood & Co., as the agents of Briggs, paid off said execution, amounting to $476 34, on 25th February, 1859, being the sum claimed in this suit.

The plaintiff alleged that Dr. Crockett was the owner of the steamboat C. Hays, and that the transfer by him of the Goodall note for $350 was in payment of the repairs, for which the plaintiff had given his due bill. The burden rests upon him to show that both payments were made on the same account, to wit: for the repairs of the boat. -

There is no proof in the record that Crockett was owner of, or in any way connected with the steamboat; and the only direct evidence, in relation to tho object of the transfer of the Goodall note to defendant, is the testimony of the witness Machison. But he appears to have derived his knowledge of this important fact from Crockett himself, a third person, not interested in the suit; which is clearly hearsay evidence, and not admissible. 8 N. S. 671. The fact that the latter was dead at the time of taking the testimony does not change its character. It was excepted to by the counsel for the defendant, and the exception must prevail.

Independent of this testimony, the record does not contain sufficient proof to support plaintiff’s demand. The neglect or failure of one party to prove what is essential to his recovery is not cured by the evidence of the other, leaving the fact doubtful. 8 N. S. 228.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; and it is further ordered, that judgment be rendered in favor of defendant, with costs in both courts.


author: HowsiiXi, J.

text:
    Catharine McGuire, Tutrix, v. Kearny, Blois & Co.
    The rule of law is caveat enipfor; and, where a party purchases an article, on inspection, he can not afterwards complain of the consequences of his own act.
    from the Third District Court of New Orleans, Sandlin, J.

      Jacob Barlcer for plaintiff.

      Geo. L. Bright for defendants and appellants.

    This is a suit to recover §1,160 20, the balance of the price of oakum sold by Philip McGuire to defendants.
    The defendants admit they made the purchase, but allege that, on a previous occasion, they purchased from McGuire a lot of oakum, and when McGuire sold them the oakum, the subject of this suit, he represented it to be of the same quality as that which had been previously bought from him by defendants. They contend that whether or not the representation of McGuire be proved, the law implies a promise or undertaking from him that all goods manufactured and sold by him for a specific purpose, and to be used in a particular way, are reasonably fit and proper for the purpose for which he professes to make them, and for which they are known to be required; and they allege that the oakum delivered by him was unmerchantable and unfit for use.
    The representations of McGuire are established by the witness, John Murphy. He says “he is the warehouseman of the defendants; he recollects a lot of oakum bought by defendants from Philip McGuire. It was sent to the warehouse without any person knowing anything about it.' It was sent to Kearny, Blois & Co. ’s warehouse. McGuire sent it there as being equal to a lot previously sold by him to Kearny, Blois & Co. The way I knew it, was a communication between the warehouseman, Wm* Clooney (now dead), and Philip McGuire, or his clerk; I can’t say which* The communication was in writing.”
    This evidence was received without objection from plaintiff. The loss of the written communication is established by the affidavit of Mr. Kearny, which was also admitted without objection.
    The facts established by Murphy are supported by the warehouseman’s receipt, offered in evidence by plaintiff. It is signed Kearny, Blois & Co., per William, i. e., William Clooney. Dyer, McGuire’s clerk and agent, says McGuire had sold better oakum to Kearny before ; that the oakum (the subject of this suit) was of a very poor quality; would not call it oakum, but oakum stock; does not recollect whether Kearny asked Mm whether it was the same kind of oakum as that which he had previously purchased.
    The court will remember that this is the person who made the sale to defendants, and he does not remember whether he made to them any representations at the time of sale. It appears by his evidence that the oakum was unfit for use, and if he made no representation, he must have concealed the true character of the oakum and deceived the defendants.
    By the civil law there is an implied warranty in every sale. If the seller knows of a defect in his goods, which the buyer does not know, and if he had known would not have bought the goods, and the seller is silent, his silence is, nevertheless, a moral and legal fraud, and ought to avoid the transaction.
    In the case of Hill v. Gray, 1 Stark. 434, a picture was sold, which the buyer believed had been the property of Sir Felix Agar, a circumstance which might have enhanced its value in his eyes. The seller knew that the purchaser was laboring under this delusion, but did not remove it, and it did not appear that he either induced or strengthened it. In an action for the price, Lord Ellenborough nonsuited the plaintiff, saying the picture was sold under a deception. See Parsons on Contracts, pp. 460, 461. At common law the rule of caveat emptor applies, and the party buys at his peril. 2 Kent, p. 478. With regard to the quality or goodness of the article sold, the seller is not bound to answer, except under special circumstances, unless ho expressly warranted the goods to be sound and good, or unless he hath made a fraudulent representation or used some fraudulent concealment concerning them, and which amounts to a warranty in law. 2 Kent, 478. But, in Louisiana, the rule of the civil law is different; and, as a general rule, a sale for a sound price is understood to imply a warranty of soundness against all faults and defects. 2 Kent, 480, 481; 1 Martin R. It
    In Hosmer v Bear <& Fox, 6 An, 36, the plaintiff argued the corn was sold as being damaged and of inferior quality, because it was sold for 68 cents per bushel, when prime corn was selling at 76 cents. The court said, this may show that the corn was not a prime lot, but the defendants were not to infer from the price paid that it was damaged.
    The general rule is, the rule of morality, that prohibits every concealment of facts that should be disclosed to the buyer, and every false representation. The exception made by Article 2497, C. 0., is not really an exception to the rule, and is unnecessary. That Article provides that “apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices,” for, if the defect is apparent, it is disclosed. It only means that where the article is susceptible of convenient examination, the purchaser is bound to make and abide it.
    In Bouzel v. McFarland, 8 Martin, 704, the plaintiff sold to defendant a boat. Shortly after, defendant loaded her and set off for Natchitoches, but on the way she was found to be very leaky; and, on examination, proved to be so rotten that one of the witnesses says he could run his finger into the timber in many places; Mr. McFarland’s defence was that the defects wore apparent, and that, in the hill of sale, Rouzel says that he has seen and visited the boat. The court said: but it was his duty to declare them; and that he knew them is proved by the evidence.
    In Williams v. Miller el al., 9 La. 134, the court said: The buyers, in the present instance, wore deceived by the representations of the quality of the articles sold by the vendor; and whether they were thus deceived by error or design on his part, cannot vary the right of the parties in foro leyes, because the defects were not discoverable immediately on inspection; and they were such that it must be supposed that the buyers would not have purchased had they known them. The articles sold were logs.
    In Melaneon v. Rohiehaux, 17 La. 98, it appears that the action was brought to annul the sale of a flatboat fitted up to be used as a ball room, on the ground that, at or before the time of sale, it had defects known to defendant, which he fraudulently concealed from the plaintiff. It appeared that, before purchasing, plaintiff examined the boat and expressed himself satisfied with its condition; and that, even after the sale, he appeared to consider his bargain a good one. The court says: “It is clear, from the whole evidence, that the flatboats leaked in such a manner as to make its use as a ball room so inconvenient and imperfect that the plaintiff would not have purchased had he known this defect to exist. We cannot doubt that the defendant knew this defect; but, even if he did not, yet he could be bound to restore the price.” See, also, 3 An. 4.
    The plaintiff argues that the defendants had full opportunity “to examine the whole, whether they examined it or not. If they had an opportunity of doing so, and neglected it, they are barred from all claims.” This is not law. If it were, commerce would lead to most dishonest practices. The rule would be, cheat if you can, whereas the law prescribes good faith and honesty in all transactions, and will not permit one man to enrich himself unjustly out of his neighbor. It implies, as we said in the opening of this argument, a promise or undertaking from him -who sells, that all goods manufactured and sold by him for a specific purpose, and to be used in a particular way, are reasonably fit and proper for the purpose for which he professes to make them, and for which they are known to be required. 1 Parsons on Contracts, p. 469. The rule careal vendidor governs. See notes to 2 Kent, 480.
    The oakum, in this case, was manufactured by the plaintiff. Dyer, plaintiff’s witness, agent and vendor in this case, says: “It was a very poor quality.” * * “We did not make good oakum at the factory. ” “I would call it oakum stock.” * * “ Oakum stock is the rope untwisted and picked without going through the gin. I have never seen oakum of such a low quality as that.” Murphy says: “It was not oakum at all. It was pieces of rope cut, not spun, only picked by hand; it was not oakum fit for use; it could not be sold.” Anderson, ship carpenter, says: “It would cost too much to pick it; it might be worth two or three cents; it was the sweepings of the place. ” Connor, ship carpenter, says: “It was not worth drayage. It is called shakings.” Larkey says: “It was not worth anything to him; it was part oakum, balance shakings, mostly dirt. It is called shakings, picked up; what was good fof nothing, the good oakum having been picked out of it.”

      The plaintiff endeavors to avoid tlie fraud practiced upon defendants, by asserting the defendants examined the oakum before making- the purchase. The only evidence on this point is that of plaintiff’s agent, Dyer; he says: “Mr. Kearny did not make much of an examination of the oakum; he pulled out a handful here and there, out of the bales. He did not open any bale. The bales were piled up eight or ten on top of each other, and it was impossible to make a thorough examination. ”
    In Harmony v. Wayer, New York Supreme Court, quoted in note to 2 Kent, 661, it was held that, as the defendant had not an opportunity to examine the bulk of the article sold, he was entitled to expect a merchantable article.
    In Mülaudon v. Price et at, 3 An. p. 1, the court said: “We do not consider that salt is an article which is susceptible of inspection or examination, as to its condition, without much trouble or inconvenience, and the vendor is bound to good faith; and, if he knows the article to be defective, he is bound to state the defects.
    In Richard <& A’fred v. Edward BurTce, 7 An. 242, the court said: “The Article of the Code relied upon relates to such defects as are ajsparent to the senses, without opening boxes, barrels or packages to discover them by examination, and not to those which are concealed without this examination.
   HowsiiXi, J.

This suit was brought to recover the balance due on the Sale of a lot of oakum, sold to defendants on 15th March, 1862.

The defence is that the article sold was represented to be similar to a lot previously bought by them from the same vendor, but that, on examination, it proved to be altogether inferior and wholly unmerchantable.

The evidence does not make out the defence.

It is shown that defendants saw the oakum several days before purchasing, and examined some of the bales or packages; and it is not proven that the interior was different from the exterior of the packages. At the time of the sale, it was known by defendants to be all of a “low quality.” One of them contended that it ought to be sold lower, “owing to its inferior quality.”

We see no reason for disagreeing with the judge who tried the cause in the lower court.

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


author: Hyman, C. J.

text:
    Bower & Garner v. F. Frindell and Wife.
    The acknowledgment of a debt by the wife, without liis express authority, will not bind the husband, unless she herself is a public merchant; nor can she bind herself for his debt by such an acknowledgment.

      _[%_ PPEML from the Third District Court of New Orleans, Fellowes, J.

      Geo. L. Bright for plaintiffs and appellants. G. Bufour for defendants,
   Hyman, C. J.

Plaintiffs sued defendants on an open account.

The defendants are husband and wife. There is no evidence to prove the account, but the acknowledgment of the wife. Fred Frindell was conducting business in his own name, and his wife assisted him. She signed for him some receipts in his name, but she did not carry on a separate trade from her husband ; nor did she do any acts in connection with his business in her own name. She was not a isublic merchant; and, without being so, she could not acknowledge a debt without the authority of her husband, neither could she bind herself for the debts of her husband, though contracted during marriage and while the community existed. There is no proof that she was authorized by her husband to acknowledge the debt for him. Such authority must be express and special. See Civil Code, 2966.

The judge of the district court rendered a judgment of nonsuit against plaintiffs. We see no cause to change it.

Judgment affirmed.


author: Ilsley, J.

text:
    C. A. Fassey v. The City of New Orleans.
    When, the law of the land, and that which the parties have made for themselves by their oontract, are silent, courts must apply those principles to determine what ought to be the incidents to a contract, which are required by equity.
    JjL PPEAL from the Sixth District Court of New Orleans, Dwplaniier, J.

      Durant & Eornor for plaintiff. Thos. II Heroes for defendant and appellant.
   Ilsley, J.

The plaintiff was one of the city assessors in the year 1862, under and in conformity with the amended city charter, approved by the Legislature on the 20th March, 1856.

The duties devolving on assessors are clearly defined by the charter, and the compensation was, by Article 87, to be fixed by the common council,

What compensation was so fixed by the council is not shown in the re-coi'd; but it is proved that, had all the services'which devolved on the plaintiff as assessor, been performed, or he was legally dispensed from completing them, the amount stated by him in his bill (two thousand six hundred and sixty-two dollars and thirty cents) would have been the correct sum, and that there would have been still due to him the balance claimed, of nine hundred and eighty-four dollars and sixty-eight cents.

The city pleaded the general issue, without setting up any special defence.

Judgment was rendered by the court below, in favor of plaintiff, for the whole amount claimed, and from this judgment the city has appealed.

By the said charter, the assessors were to act in three ways : 1. As assessors simply. See section 77. 2. As members of the board of assessors (§ 43); and, 3. As members of the board of supervisors of assessment. ? 25.

Each assessor acted separately and alone for his assessment district, until his assessment roll was completed, when it was to be submitted to the board of assessors, to adopt, alter or correct it. $¡ 75, 76.

On or before the 15th August of each year, it was the duty of the assessors to make fair copies of their assessment rolls, and leave them with the secretary of the board, and to give notice, in the official journal of the common council, of their having completed such assessment. | 77. By section 78, public notice, to the inhabitants or owners of property, was to be given, that the assessment rolls were deposited at a certain place for inspection, and that the assessors would meet at a certain day, at the expiration of the thirty days, and at a place to be specified in the notice, to receive assessments, on the application of any person conceiving himself aggrieved. By section 81, the assessment rolls were to be certified in the manner thereby required; and, by section 90, the board of supervisors of assessments were annually, on the first Monday of October, to meet for the purpose of examining the several assessment rolls transmitted to them, and equalize and correct the valuations made therein, in accordance with the said section ; and, by section 89, a forfeit of one thousand dollars was to be incurred by any supervisor of assessment who neglected, or for any cause omitted to perform his duties.

Whatever services were performed by the plaintiff, and they seem to have consisted of making his out-door assessment, and the preparing his tax roll, and his presumed attendance at the meetings of the board of assessors, which were held in July, 1862, the plaintiff was removed from his office by the military authorities, some time in August, 1862; and, although all the functions of his office for that year were not, necessarily, then fully performed, as his services wero needed as a member of the board of supervisors of assessments, which only commenced in October, the most arduous duty, to wit: the out-door assessment and his tax roll, had been then completed, awaiting only the action of the board of supervisors; which board, however, afterwards approved his assessment roll, and the taxes in his district were collected under it,

During the year 1862, the city being in the possession of the United States military authorities, and its municipal affairs under their exclusive. control, the plaintiff was removed by them from his office, and a new incumbent was put by them in his place, which was a measure provided for in case of a vacancy occurring by death, removal, resignation or otherwise, See section 86.

Conceding that the amount for the whole services be correctly stated at §2,662 30, the question is here presented, whether, under all the circumstances, he can lawfully demand a larger amount than that which has already been paid to him ? Whether the removal was properly made or not, is immaterial. It suffices that it was made by the military authorities, who recognized no other than military or martial law, and they controlled the situation, absolutely. An examination, therefore, of the plaintiff’s bill of exceptions becomes unnecessary. The removal of the plaintiff from his office was his misfortune ; and, if it entañed on him a loss, his, unfortunately, was not an exceptional case.

Such other duties remained to be performed by the plaintiff, were fulfilled by his successor, who was paid for Ms services ; but how much ho was paid therefor we are not informed.

If the wort, actually performed by the plaintiff, exceeded in value what he has received, the city would be, in equity, bound to pay him the surplus; but, what that excess would amount to, is not disclosed by the record.

Were it not fair to presume that the account rendered by him in 1863, and then paid to him, was the only one that would have been sanctioned at that time, we should have deemed his claiming then nothing more than liis own estimate of the value of his services, and that his present demand was an after-thought; but, as it is, we think the ruling of the court in the case of Lambert v. King, 12 A. 662, should prevail, and that he might well invoke Article 1960 of the Louisiana Code. We shall, therefore, only dismiss his motion, as in case of non-suit.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be avoided, annulled and reversed.

It is further ordered, adjudged and decreed, that the plaintiff’s action be dismissed, and that he pay the costs in both courts.