author: Labauve, J.

text:
    No. 1038.
    Succession of G. C. W. Vogel—Felix Grima, Testamentary Executor v. Mrs. W. Vogel and Charles Fitz.
    A testamentary executor derives liis authority from the judgment ordering the registry and execution of the will, and appointing and confirming the executor.
    Letters testamentary are merely the evidence establishing the fact, that the executor has been duly qualified.
    Where the will names the executor, and the judgment of the Court confirms the party named in the will as testamentary executor, the judgment must have effect until reversed on appeal, or in an action of nullity.
    A testamentary executor, after he was duly qualified, and had charge of the estate, by refusing to take the oath of allegiance required by the Government of the United States, and going beyond the jurisdiction of the proper authorities, became fundus oficio, and lost all right to administer the property of the succession any further, and all claims to commissions, except on sums recov* ered by him prior to the abandonment of his trust. Succession of Poindexter, 19 A. p. 22.
    APPEAL from the Second District Court of New Orleans, Thomas, J.

      F. Grima, for plaintiff and appellant.

      C. Roseli-us, for defendants and appellees.
   Labauve, J.

The plaintiff claims of the defendants, in solido, the sum of $7,717 49, as a balance due him as commission, by said succession, on the inventory made 12th June, 1862, and amounting to $335,711 11.

The District Court, after a hearing, allowed the plaintiff one-half of the legal commission, and he took this appeal.

The petition alleges, in substance, that on the 4th of June, 1862, the olographic will of said Vogel was duly probated, and petitioner appointed, confirmed and qualified, by taking the oath as executor of said will, with the seizure of the entire estate; that on the twelfth of same month, the property was duly inventoried and appraised, amounting to $335,711 11, after deducting the liabilities; that in his said capacity, petitioner proceeded to a settlement of said estate, hut on the 10th of August, 1864, he was compelled to leave the city temporarily, and that in order to protect the interest of said estate he appointed as executor aforesaid, T. Krattsschnitt of this city, his attorney, to represent him in such capacity; that when petitioner left the city he was duly qualified as testamentary executor aforesaid, and had acted as such, and was entitled to the commission granted by law; that on the 14th February, 1865, Charles Fitz presented a petition, alleging that the said estate, being in the course of administration, the petitioner, Grima, was no longer qualified to perform his functions, he, having not taken the oath of allegiance, was ordered out of the Department of the Gulf; that he was absent, and that it was necessary to appoint a dative testamentary executor to administer said estate; and that on the 27th of the same month, said Fitz was appointed dative testamentary executor; that said Fitz on the 4th May, 1865, presented a pretended account of his administration, in which he took no notice of petitioner’s claim for commission, and having accounted to Mrs. Yogel for the assets of the estate, he obtained his discharge and remained, and is still the agent of said Widow Yogel, still holding in his hands all the assets of said estate; that all the proceedings of said Fitz in said succession are null and void.

The plaintiff annexes to his petition an account of his administration, showing a balance due him for commission of $7,717 49, which he claims in solido against the said Widow Vogel and Fitz.

The petition concludes by praying that all the proceedings of said Fitz, from the 14th February, 1865, to the 20th May of same year, the order appointing him, his pretended account, the decree homologating the same, and discharging him from any further liability, be annnlled and avoided; that petitioner be recognized as the executor of said deceased, and that the defendants be ordered to return to petitioner all the assets; that his account be homologated, and should the Court be of opinion that the proceedings of Said Fitz are regular, then he prays for judgment in solido against the defendants for $7,717 49,balance of his commission, and for his discharge from any further responsibility as executor, and for general relief, etc.

The answer contains a general denial, alleges specially that plaintiff never was executor of the will of Vogel; that a few days after the probating of the will, General Butler ordered all persons exercising functions, private or public, to take an oath of allegiance to the United States, and those refusing, were forbidden and disqualified from performing any civil functions; that both said plaintiff and the then Judge refused to take the oath; that afterwards General Butler issued another order requiring all persons to take the oath or register themselves enemies of the United States; that plaintiff refused to take the oath, and he registered himself as an enemy, and he was expelled from the Department of the Gulf; and that by these acts, he voluntarily incapacitated himself to act as executor, and letters testamentary were never issued to him, and that the estate remained without representation for several years; that even if said plaintiff was ever executor, he had long since ceased to be so when Fitz was appointed, by lapse of time.

The defendants oppose the account, and every item thereof to the credit of plaintiff, and specially the commission. At all events, commission should not be allowed on bad debts and worthless stocks.

They pray that the petition and account be dismissed, and for all other relief, etc.

The first question presented is, whether or not the plaintiff was ever fully qualified to act as executor of the last will and testament of G. C.W. Vogel.

It is admitted that the will, in which plaintiff was appointed, was duly probated, and the plaintiff confirmed and sworn as exeoutor, but that letters testamentary never were issued; hence, it is contended on the part of the defendants, that such letters must be viewed in the light of commission, authorizing the appointee to exercise his functions, and that until such issuance, he is without legal authority.

We are of opinion that an executor derives his authority from the judgment ordering the registry and execution of the will, and appointing or confirming the executor, and that the letters testamentary are merely the evidence establishing that the executor has been duly qualified to act, by judgment, by taking the oath, and by giving bond, if one was required under the law. The production of such letters dispenses the party from showing that the prerequisites of the law have been complied with; but, in the absence of letters he may show the judgment, the oath of office, and the bond; in this case no bond was necessary, as the plaintiff was appointed by the will. The judgment confirming him as executor must have its effect, until it be reversed by appeal or in an action of nullity. 18 L. 352. 9B. 189.

In Hoover v. Sellers, 5 A. 181, our predecessors seem to have considered that the order appointing a tutor, his bond and oath of office, were sufficient to show the qualification of the tutor without letters of tutorship.

We are of opinion that plaintiff was duly qualified as executor, without the issuance of letters testamentary.

It appears that the plaintiff, immediately after being qualified as executor, took possession of the whole estate, and continued to administer the same personally, until the 10th of August, 1864, when he appointed as his agent to represent the estate John Kruttsehnitt, who took possession of the said estate, and retained the same until the appointment of Mr. Fitz, to whom it was delivered in the latter part of February, 1865. It appears further, that the plaintiff never took'the oath of allegiance, and was compelled to leave the city in the fall of 1864, having declared himself an enemy to the United States.

Under these circumstances, we are of opinion that the plaintiff, “by refusing to take the oath of allegiance, and going beyond the jurisdiction of the proper authority became functus officio, and lost all right to control or administer the property any further, and all claims to any commission, except on sums received or recovered by him prior to his abandonment of his trust.”

This is the language held by this Court in Succession of Thos. B. Poindexter, in regard to a curator. 19 A. p. 22.

Therefore, when Charles Fitz was appointed the office was vacant, and his appointment as dative testamentary executor was legal.

Upon, the whole, we are of opinion that the judgment appealed from has done justice between the parties, according to'law.

It is therefore ordered and decreed that the judgment be affirmed, and that the appellant pay costs of appeal.


source: Caselaw Access Project

author: Ho weed. J.

license: Public Domain

text:
    No. 1177.
    Theodore Stehn v. Fasnacht Brothers.
    The question of the liability of principal or agent to third partios must be determined by the circuid» alances of the trans-iciion and the conduct of the parlies.
    Whero a party, dealing with an agent, with a knowledge of the principal, gives the credit to the agent, he is bound by his choice. Story on Agoucy, No, 291.
    APPEAL from the Sixth District Court of New Orleans, Duplaniier, J.

      J. L. Tissoi, for plain1 iff and appellant.

      G. Schmidt, for defendants and appellees.
   Ho weed. J.

PLrY.fiff, a merchant in New York, claims, of defendants in New Orleans, the i ahuice of an account, being the difference between the price of a lot of coffee shipped to the latter, and the net proceeds of cotton received by him for their account. The defence is, that the defendants had no dealings with plaintiff, but with one J. H. Pain, their factor here, to whom plaintiff gave credit, and they claim in reconvention the value of the cotton as damages, for disobedience of instructions. Judg-ment was rendered dismissing plaintiff’s demand, and condemning him to pay to defendants the net proceeds of the cotton sold by him, from which he appealed, and defendants have joined in the appeal, claiming a larger sum. *

The first question presented is, to whom did plaintiff give credit in the coffee transaction?

Pain, the intermediary, says that the coffee was sent directly to defendants, but plaintiff charged it to him in his account current. "Witness was, at the same time in open account with defendants, and there was a balance in tlffeir favor. He says: “ Stehn held me responsible for these coffees, from the fact that he charged them in the account current.”

The course of dealing between the parties corroborates this testimony, and shows that plaintiff dealt with and gave credit to Pain, who, on his part, dealt with defendants.

The coffee was ordered, in a letter dated 7th February, 1863, from Pain to plaintiff, to be sent to defendants, accompanied with the statement that the order would be covered by a consignment of sugar or cotton. Prior to that date Pain had made shipments of merchandise to plaintiff for account of parties here, and among them were cotton and molasses for account of defendants, for which plaintiff accounted to Pain, although he knew defendants were the owners here, and when Pain ordered goods from New York for his friends here, they were charged to him and not to, his friends.

On one occasion defendants, having a particular lot of cotton, shipped a part through Pain to plaintiff, for which he accounted to Pain. The other portion was shipped to Havre, and thence reshipped to plaintiff for account, and it is this lot that plaintiff sold, and contends was intended to cover the order for the coffee. We think, however, the defendants did not so intend, as the shipment had been made in the fall of 1862, and a very few days after the order for the coffee was given to Pain, and some time prior to the shipment thereof, they countermanded the order of reshipment from Havre to New York, but not in time, and as soon as they heard it had arrived in New York, they ordered it to be turned over to another party. The inference from the statement in Pain's letter to plaintiff is, that he expected to consign cotton or sugar to cover the order for the coffee, and that he had no reference to defendants’ cotton in Havre, for in the same letter he informed plaintiff that defendants were not satisfied with the sale of the part sold by him.

In questions as to the liability of principal or agent to third persons, the great inquiry must be, to whom was credit knowingly given according to the understanding of the parties, and this is to be determined by the circumstances of the transaction and the conduct of the parties. Story on Agency, No. 288. And where a party, dealing with an agent, with a knowledge of the principal, gives the credit to the agent, he is bound by his choice* Id. No. 291.

Upon the reconventional demand, we think the District Judge did not err.

The witnesses for the defence did not seem to be familiar with1 the true condition of the cotton in question, and they do not give the price of such cotton; while several, on the part of plaintiff, show that it wdS falsely packed, inferior, and brought its full value at the time. There is ho evidence of its value at any other date. Defendants seem, to have been aware of its suspicious condition.

We think substantial justice has been done between the parties, under the evidence in the record.

Judgment affirmed.


author: Hvman, C. J.

text:
    No. 944.
    Sophia Peters et al. v. Catharina Fralinghouse et als.
    Where a party sets up by way of exception tbe plea of res judicata. the former judgment on which the' plea is founded, must be for the same cause of action and between tne same parties.
    A liPPEAL from the Third District Court of New Orleans, Handlin,. J.

      P. S. Biron, for petitioner and appellant.

      J. G. Colman, for defendants and appellees.
   Hvman, C. J.

In this suit Sophia Peters, in her capacity of tutrix of the minors, Henry Martin, Charles, Catharine, John and Baraba Peters, opposed the sale of a lot of ground in the city of New Orleans, seized on the 21st of September, 1865, as her property, by authority of executions on judgments in cases of T. Peter Burger v. Sophia Peters, and Maria C. Fralinghouse v. Sophia Peters, on the ground that the lots belonged to said minors.

She claimed that they derived it from the succession of Antoine Peters, their deceased ancestor.

She prayed that the lot might be released from seizure; that her apportion might be sustained, and that should the sheriff make a sale of the lot, the sale might be declared null and void. She further prayed for general relief.

The defendants filed the exception, res judicata.

The District Judge sustained the exception, and dismissed the suit.

Plaintiff has appealed.

The defendants introduced in evidence the record of the suit of Sophia Peters v. A. Shaw, Sheriff et al., to sustain the exception.

The record of this suit shows that the defendants, on their judgments, in the above cases against Sophia Peters, had executions issued in April, 1864, and caused the lot to be seized as her property, when she, as the administratrix of the succession of Antoine Peters, deceased, made opposition to its seizure on the ground that it belonged to the said succession, obtained a writ of injunction, prohibiting the defendants.from selling the lot, and asked that it be decreed to belong to said succession; that on the 28th day of May, 1864, the injunction was dissolved, on motion of defendants'; that subsequently to the dissolution of the injunction a judgment by default was taken against defendants, and that on the 11th day of January, 1865, a definitive judgment was regularly rendered against them, decreeing the lot to be the property of the estate of Antoine Peters, cjeceased.

No appeals were taken from these judgments.

The defendants rely on the judgment, dissolving the injunction as forming res judicata in relation to the property in controversy.

The injunction was a mere conservatory writ, obtained to prevent the sale of the lot during the pendency of the suit.

The dissolving of the same settled no question as to the right or title to the property in contestation.

The causing of the seizure of the lot by defendants on 2lst of September, 1865, under these executions, was, if the allegations of plaintiff are true, an indirect attempt by the process of a court to destroy the adjudged right to a thing in a former suit between the same parties, in the intendment of law, and founded in the same cause of action.

Lét the judgment of the District Court sustaining defendants’ exception and dismissing the suit, be annulled, avoided and reversed. Let the exception be overruled, and let the case be remanded to the lower Court, to be proceeded with according to law, defendants to pay the cost of this appeal.


author: Howedd, J.

text:
    No. 922.
    Succession of Widow Chas. Perret.
    “Whereit party appears in Court byway of opposition to the homologation of an administrator’s account, he thereby waives citation, and the Court is authorized to render judg neat against him in the capacity in which he appears as opponent.
    Where no opposition has been made to a particular item of an administrator’s account in the lower Court, it will not be noticed if made on appeal.
    APPEAL from the District Court, Parish of St. Charles, Beauvais, J.

      A: Lavisson, for appellees.

      A. Berbes, for appellant.

      B. King Cutler and John Henderson, for absent heirs.
   Howedd, J.

The administrator of the succession of Mad. Constance Perret, deceased, having filed a provisional account, showing that the proceeds of movables were insuffleieni to pay the privileged debts, prayed that the purchaser of the real estate, who was the mortgagee, be ordered to contribute the sum necessary to meet the deficiency. J. B. Pecoul, agent of the widow and heirs of Marius Jartoux, and the purchaser as such of the mortgaged property, filed a petition alleging his right to letain the price of adjudication, “subject to the payment of such legal and privileged claims, if any there are, as may be entitled to preference over his,” opposing most of the items in the account, and praying that after the proceeds of the movables be absorbed, he be ordered to pay the deficiency out of the price retained by him.

The District Judge struck out some items, reduced others, homologated the tableau as thus amended, and ordered “that the purchaser of the real estate, Franqois Jartoux, through his agent, pay to the administrator $817 58,” the sum necessary to pay the privileged debts allowed.

From this judgment Pecoul, .agent, has taken a devolutive appeal.

The first point presented by the appellant is the nullity of the judgment for want of citation, and because he is condemned as the agent of a deceased person.

The appearance made by him in his petition of opposition, and the prayer therein waived citation, and authorized the Court to render judgment against him, as agent of the parties whom he actually represented., The discrepancy in the name of the purchaser we must consider a mere clerical error, corrected by the judgment itself, which is against the purchaser of the real estate, whom the pleadings and evidence show to be J. B. Pecoul, agent of the widow and heirs of Marius Jartoux, otherwise Pecoul, as agent, would have no cause to complain of this part of the decree, for his name is not mentioned therein as the agent, and we could not examine the judgment in this respect, as Fran$ois Jartoux, of whose death there is no proof, has not appealed, nor was he before the lower Court.

The appellant has urged objections in this Court to these items only in the tableau, to wit: the administrator’s commissions, the fee of the attorney for the succession, and the fee for the attorney for absent heirs.

No opposition was made in the lower Court to the administrator’s commissions, and we cannot therefore inquire into their allowance. The sum of $638 45 was allowed to the attorney for the succession, being five per cent, on the amount of the inventory. This, we think, too much. The amount distributed in this tableau is something less than five thous- and dollars, and five per cent, thereon, would be a little less than two hundred and fifty dollars.

There was no litigation nor difficulty in the settlement so far of this succession, the proceedings in which were simple, requiring no special professional skill and labor.

We think the services will be justly compensated by a fee of $250.

The sum of $175, allowed to the attorney for absent heirs, is objected to as too large.

Nothing is coming to the absent heirs, out of which the allowance should be made, but the appellant asks us to regulate the fee by the valué of the services rendered as shown by the mortuary proceedings. We find that he attended the taking of the inventory, signed a notarial act of acceptance, with benefit of inventory, and filed an opposition to the tableau. The opposition was on its face unfounded, and the other acts were merely formal, for all which we think the sum of $75 ample compensation in this instance.

It is therefore ordered that the judgment appealed from be so amended as to reduce the fee of ihe attorney for the succession from $638 45 to $250; that of the attorney for absent heirs from $175 to $75; and to order the purchaser of the real estate of this succession, sold on 28th June, 1865, to contribute, out of the price retained, the sum of $359 08 instead of $847 53, and that as thus amended the judgment be affirmed, costs q| appeal to be paid by the appellees.


author: Hyman, C. J.

text:
    No. 1058.
    J. F. Pepin v. James E. Dunham, Sheriff, et al.
    *Where furniture of a hotel has been provisionally seized by the landlord in a suit for rent, and he consents that the sheriff allow it to be used by the defendant until the sale: Meld — That the defendant is not responsible for any portion of the furniture stolen between the date of such agreement and the sale.
    The sheriff is responsible for the loss which occurs through his fault or negligence, in enforcing the process of the Court; bub he is relieved of that responsibility, if the parties by agreement or orders, assume control and direction of the property seized.
    APPEAL from the Sixth District Court of New Orleans, Buplaniier, J. '

      O. M Schmidt, for plaintiff and appellee.

      L. Madison Bay, for defendants and appellants.
   Hyman, C. J.

Plaintiff, as owner and lessor of the Orleans Hotel, a large building in' the city of New Orleans, having rent claims against Catharine Lachenmeyer and her husband, August Lachenmeyer, brought suits against them in the Sixth District Court of New Orleans, for the amount of rent due him, and sued out two writs of provisional seizure, whereby the sheriff of the parish of Orleans, James E. Dunham, was commanded tq seize provisionally, and take into his possession and safely keep until further order of the Court, the furniture, effects, goods and property in the hotel, and on which plaintiff claimed the landlord’s privilege.

The sheriff on the 2-lth of November, 1862, made the seizure.

By written order of plaintiff the defendants, Mr. & Mrs. Lachenmeyer kept the hotel open, for boarding and lodging, and used the provisions therein, and by agreement between them and plaintiff, the sheriff sold at public auction on 2d February, 1863, the property seized in lump to plaintiff.

Many of the articles seized were purloined by the defendants or others, between the time of the seizure and the sale, and plaintiff has sued in this suit the sheriff and his securities, to recover of them the value of the stolen articles.

The sheriff is responsible for any loss or injury sustained through his fault or neglect in enforcing processes of courts, but when the parties restrain him by orders or agreement, so that he has not control over property which he has been ordered to seize and keep, and loss results from such orders or agreements, he is not responsible to the parties therefor. The plaintiff, by permitting the property seized to be used in the manner stated above, gave opportunity for persons to purloin the articles,'and he cannbt fix responsibility on the sheriff for consequences of his own acts. The sheriff and his securities are appellants, from a judgment against them. Let it be reversed, and let there be judgment against plaintiff for costs.

Petition for a Rehearing, by plaintiff and appellee. — The Court, in the opinion rendered in favor of the defendants, appears to have overlooked some material facts, the consideration of which the plaintiff believes will induce it to change the decree herein rendered.

By written orders, found atpages 110 and 111 of the record, Mrs. Lachenmeyer, the lessee, was allowed to use such wines, liquors and provisions as she might require for the use of the hotel. This permission was given on the 25th. November, 1862, the day after the provisional seizure had issued. The sheriff’s keeper informs us there were four or five boarders in the house. The inventory of the movables seized was made, it seems, on the said 25th November.

Tho Court says, that “ when parties restrain the sheriff by orders or agreements, so that he has no control over property which he has been ordered to seize and keep, and loss results from such orders or agreements, he is not responsible to the parties therefor, ” and that ‘ ‘ the plaintiff by-permitting the property seized to be used .in the manner stated above,” (i. e., keeping the house open as a hotel and using the provisions therein) “gave opportunity for persons to purloin the articles, and he cannot fix the responsibility on the.sheriff for consequences of his own acts.”

It will, we presume, be conceded, that under a writ of provisional seizure for rent, a landlord has no right to shut up the house leased, and prevent the tenant from occupying and using it. The sheriff, in executing the writ, may, however, remove the movables he seizes from the leased premises, or he may leave them therein, and hold possession thereof through guardians or keepers, whom he appoints to take care of, and watch over the same.

The sheriff could not conveniently have removed the furniture of a large hotel, without great expense, and great risk of damage and loss in transportation. Hence, the furniture seized was allowed to remain in the hotel.

Now the sheriff, at the instance of the plaintiff’s agent, on the very day on which the written order of plaintiff was given, authorizing the use by the tenant of the provisions for the boarders, viz: on the 25th November, made an inventory of all the property which he had seized.

Why was this done; if not for the very purpose of establishing beyond cavil, what property he had taken under his care, and would be responsible for? Did he, on that day the inventory was made by him, inform the plaintiff that he would not hold himself responsible for any of the property seized, because he considered that the written orders of the plaintiff impeded or obstructed him in the discharge of his duty as sheriff?

Did he, at any time after the seizure, give the plaintiff or his agent, the slightest intimation that any of the articles seized were disappearing, and that he could not prevent their being purloined, owing to the fact that the house was kept open as a hotel ?

No; for seventy-one days that he had his keepers on the premises, from the 24th November, 1862, to the 2d February, 1863, (the day of sale) nothing is said about there being any article missing. Two-thirds of the furniture in that large hotel was carried away, wardrobes, bedsteads, bureaux, furniture of the heaviest description. (See the list of twenty-three pages in the record.) And does anyone, at any time, apprise the plaintiff of the fact? No. How then, and when does he discover that all this large amount of movable property has disappeared? Why, when he comes to claim possession of the same as the purchaser under the sheriff’s sale!

Surely, whole sets of household furniture, filling some three dozen rooms iii a hotel, could not be removed without the kno “ lodge of the sheriff’s keepers, if they kept any watch over the property. A bedstead, an armoire or a bureau, are not articles that a boarder could have hidden under an overcoat, or removed without being both heard and seen.

' But be this as it may, the sheriff has not offered a tittle of evidence to show how those goods disappeared, and the testimony of his very keepers betrays the grossest negligence. For one of them states: “Iwas placed there as keeper two or three days after the seizure, and remained there as keeper until the sale. I was in company with another keeper, Mr. Lehmann, during the whole time. Lehmann was-the keeper during the day, and I during the night.” (R. p. 101.) And he adds: “I slept in the hotel at night.” (R. p. 102.) He evidently agreed with Dogberry’s watchman, that “tho duty of the watch is to sleep.”

The plaintiff is not only led to believe that all the property seized is in the leased premises, but the sheriff advertises the whole for sale as still in his possession, and in accordance with the inventory taken by himself. Nay, he reads the whole inventory at the sale, to inform bidders as to what he was offering for sale. The plaintiff thereupon bids $3,000 on the furniture, and it is adjudicated to him. When he goes to take possession Of the property sold, lo! and behold ! two-thirds of the furniture had vanished !

By the advertisement, the sheriff informed the public and the plaintiff, that he still had the goods in his possession. And when he comes to deliver them to the purchaser they are not found. At what time did they disappear, no one seems to know.

The plaintiff is now told that by allowing the hotel to be kept open and, provisions used, he so interfered with the sheriff’s keeping as to exonerate him from any liability.

Has the Court noticed the fact that the sheriff charged and was paid $284 for the keeping, say $4 per day from the 24th November, 1862, to the 2d February, 1863? (See R. p. 189.) What was he paid that sum for? To keep and guard the movable property'wkich had been seized. Can he now, after he has received that compensation which he was only authorized to claim for safely keeping the property, tell the plaintiff: “I am in no way responsible to you. It is true, I undertook to keep the furniture seized, but as you allowed the hotel to be kept open and provisions, used, although I did not object to it, and continued to keep the property, I was relieved from all responsibility, and was entitled to my pay, although every piece of furniture had been taken away, and I could give you no information as to the cause of its disappearance.”

Can such an answer meet with the approbation of the Court? No. The plaintiff cannot believe that the sheriff will be allowed to make him pay for an inventory which was to indicate what the sheriff had seized, and would have to account for, and to charge and receive a liberal compensation for the safe-keeping of the property seized, and then be allowed to escape liability for any portion of such property, on the excuse which he has set up in this case.

Rehearing refused.


author: InsLEY, J. Iuslev, J.

text:
    No. 1084.
    I. Szymanski v. S. Plassan.
    The principle of law is well settled, that where an agent disobeys the instructions of his pritío^pal, and loss occurs by his disobedience, the agent becomes personally liable for the damages.
    The principle of law is equally well settled, that whenever the agent has committed a breach of instruction*., and the principal with a full knowledge of all the consequences adopts his act*, he is bound by them, and the agentis discharged: and the principal’s acts will be liberally construed in favor of a ratification of the acts of the agent.
    APPEAL from the Sixth District Court of New Orleans, Duplantier, J.

      P. H. Morgan, for plaintiff and appellant.

      A. L. Tissot, for defendant and appellee.
   InsLEY, J.

Sometime in April, 1862, the plaintiff, intending to violate the blockade at the entrance of the river Mississippi, shipped on the-schooner Cora, at the port of New Orleans, a cargo of stores and cotton, consigned to Cahuzae Brothers, at Havana, where she arrived safely, and landed her cargo without accident.

Previous to the departure of the Cora from New Orleans, the defendant, who was the friend and correspondent of the consignees of the plaintiff’s cargo, undertook, at the special instance and request of the plaintiff, to act as the intermediary between him and that commercial house, to which he undertook to communicate the plaintiff’s instructions, as to the disposal of the cargo.

These instructions, which were verbal, were to sell at Havana all the cotton, except one hundred bales, if the Havana market proved as fair as the European one; to reship the one hundred excepted bales, which were of superior quality, to a port in England for sale there, and to transmit the proceeds of the cotton intended for sale in Havana, if sold there at all, to the banking house of Baring Brothers & Co., in London or Liverpool.

The defendant, instead of transmitting these precise instructions to Cahuzac Brothers, left it discretionary with them to sell the whole cargó at Havana, if it should prove equally as advantageous as a sale in a European port; and in the event of a sale there, the consignees were to transmit the proceeds to Europe in No. 1 exchange.

Cahuzac Brothers, under these discretionary powers, sold in Havana all the cotton shipped to them on the Cora by the plaintiff, and they transferred a part of the proceeds of sale to the captain of the Cora, which was duly received by the plaintiff.

The balance of the proceeds was transmitted by Cahuzac Brothers, in their own bill of exchange, drawn in three parts on Fred Hutt & Co. London, to Cahuzac Freres, at Paris, France, to be credited to the plaintiff, but subject to the order of the defendant. The defendant, having subsequently paid the amount of the bill of exchange to the order of the plaintiff, in the manner which will be hereinafter explained,, had the proceeds of the bill, the first and second of which had been sent to Europe and paid, transferred to his own credit on the books of Cahuzac Freres.

The third of the set of exchange, as was customary in Havana, was forwarded thence to New Orleans, in order to show that the remittance of the balance of the proceeds of the cargo had been made to Europe, but this third never reached the party to whom it was addressed, but fell into the hands of Maj. Gen. Butler, then in command of the Department of the Gulf, who, exonerating the defendant, from all blame in the transaction out of which the bill proceeded, compelled the plaintiff, whom he deemed the culpable party, to pay it — which he did, by an order on the defendant to that effect.

The amount of the bill of exchange thus paid for the plaintiff by the defendant was eleven thousand six hundred and ninety dollars, refunded him in the manner before stated, and it is to recover from the defendant this precise amount, as the balance of the proceeds of the consignment by the Cora, that the plaintiff, attributing the seizure of it by General Butler to the defendant’s non-observance of his instructions, that the present suit is instituted.

The shipment by the Cora for Havana, contemplated and actually involved a breach of the blockade, and if this violation was so illicit as to render void any contract growing out of it, the plaintiff would have no ¡standing in court.

By the law of nations, which we deem the test in such cases as this, a violation of a blockade is not deemed a personal offence. It only affects the vessel and cargo, and unless they are captured in delicto, the offence is purged. This is the doctrine now well settled by modern authority, English, Continental and American. 3 Wheat. 550. 2 Gallison, C. C. B.210. 1 Kent’s Commentaries, 6 ed. 151. 8 Pet. 495, 519. And it was recognized by the United States civil and military authorities, in the examination of cases of breaches of blockade during the late rebellion, one of which, to which we shall refer, was identical with the plaintiff’s case, as to the principal facts and principles involved.

We cannot, therefore, on that account, dismiss the plaintiff’s action.

The sale of all the plaintiff’s cotton in Havana, is not in itself his cause for complaint; for, had all the proceeds of that sale come safely into his hands, it is evident the present suit would never have been instituted.

It was the transmission hither of the third of exchange on Fred Hutt & Co., which, by furnishing General Butler a clew to what he deemed a breach of the blockade by the plaintiff, and thereby divesting the balance of the price of the Havana sale, represented by the bill of exchange, from the plaintiff’s control to that of the general’s, which occasioned the present suit.

The claim which the plaintiff is now pressing against the defendant, is for the balance of the proceeds of his cargo sold in Havana.

This proceeding, with full knowledge that that sale was made under the defendant’s instructions, ratified that sale with all its incidents, concurrent and sequent, and made that contract his own. Surgat v. Potter, 12 M. 368.

And the ratification, as between the plaintiff and defendant, dated back to the time of .the sale. 2 A. 24, 812.

This Court has held that “the agent, who disobeys instructions, renders himself responsible to his principal for the Consequence of his acts, but' has also held, under another principle of the law of agency, that whenever an agent has committed a breach of orders, and a principal with a full knowledge of all the consequences adopts his acts, even for a moment, he will be bound by them, and it is not necessary that such an assent should be express; it may be inferred from the conduct of the principal. Ward & Co. vs. Warfield, 3 A. 464. Flower vs. Downs, 6 A. 540.

And the principal’s acts will be liberally construed in favor of a ratification. Flower vs. Jones, 7 N. S. 143.

By this ratification, the plaintiff’s release, when he paid the amount of the bill by the plaintiff’s order to Gen. Butler, if conditional, became absolute.

But apart from the release, if by the diversion of the proceeds of the bill of exchange paid by the plaintiff’s order to Gen. Butler, he, the plaintiff, has suffered damage, he cannot on that account fasten or. the defendant a responsibility therefor, as the plaintiff had the means within his reach to avert any loss in consequence of the military interference. Had he availed himself promptly of the intervenient agency of tbe United States commissioner, specially delegated by the government for the investigation and adjustment at New Orleans of the class of cases in which his was embraced, he would have recovered every dollar of the money extorted from liim, as did the witness Kennedy, whose predicament was precisely that of his own.

Upon every principle of law and equity, we consider the defendant entitled to a judgment in his favor.

It is therefore ordered, adjudged and decreed that the judgment of the Districe Court be affirmed, at the costs of the appellant.

Petition for a Rehearing, by plaintiff and appellant. — Your Honors consider it established that Szymanski’s instructions to Plassan were not carried out. You say: “These instructions, which were verbal, were to sell at Havana all the cotton except one hundred bales, if thé Havanh, market proved as fair as the European one, to reship the one hundred excepted bales, which were of superior quality, to a port in England, fur sale there, and to transmit the proceeds of the cotton intended for sale, in Havana, if sold there at all, to the banking house of Baring Brothers & Co., in London or Liverpool.

“ The defendant, instead of transmitting these precisé instructioná to Cahuzac Brothers, left it discretionary with him to sell the whole cargo at Havana, if it should prove equally as advantageous as a sale in a European port, and in the event of a sale there, the consignees were to transmit the proceeds to Europe in No. 1 exchange.”

We submit that it is the duty of a factor to obey implicitly the instructions which he receives from his principal, and that if he disobeys them in any particular, he is responsible for any and aE damages which may grow out of his disobedience.

This proposition is elementary, and will not, we presume, be disputed.

If we are correct in this, then the judgment should have been in our favor.

Two propositions were submitted to the Court by the defendant.

The first was that the contract between the parties was an illicit one, and could not therefore be enforced. ,

The second was that the instructions given by plaintiff to defendant were complied with. ■ ' '

Your Honors decide that the contract was not an Elicit one; that the instructions were not compEed with.

_ And you render a judgment in favor of the defendant. Your judgment is based upon the acquiescence of the plaintiff, as to the disposition made of the cargo of the Cora, a point not made in the • pleadings, and not alluded to in the argument or in the defendant’s brief.

We respectfully submit that there is no evidence in the .record to show that we ever acquiesced in the acts of the defendant, with reference to the proceeds of our property after they came into his hands, or that we ever did anything which would authorize the construction that we intended so to do.

Our instructions to him were to cause our propertyto .be shipped to Liverpool, and there to be sold, provided the demand ,a,t that port was better than it was in Havana; to ship a certain quantity thereof to that port, under all circumstances, and to cause the proceeds thereof to be placed to our credit with the house of Baring, Bros. & Co., m England.

Instead of complying with these instructions, he directed the house to which the cotton was entrusted to use its own discretion, and in case of sale in Havana, to remit the proceeds to Europe in No. 1 exchange. Thus taking particular care not to have it placed to our credit in Europe; it was to be placed to his own.

Our property was sold, and a portion of the proceeds thereof (£2¡338 13) was sent to Europe for account of the defendant; it was received by him, and the record shows that it is now in his possession.

To show Plassan, as it is stated, that his instructions had been carried out, the consignees in Havana forwarded to him a third of exchange, drawn by the consignees on Ered Hutt & Co. of London, for the amount iibove stated, This third of exchange fell into the hands of Gen, Butler, •who forced the defendant to pay it; that is, he forced him to pay §11,690 in Citizens’ bank bills for it.

Your Honors will please bear in mind that the third of exchange in question was sent to, and drawn in favor of, the defendant; and that the plaintiff, upon its face, had no interest in it whatever; a fact which does not seem to have been so considered by the Court. You say;

“It was the transmission hither of the third of exchange on Ered. Hutt & Co., which, by furnishing Gen. Butler a clew to what he deemed a breach of the blockade by the xilaintiff, and thereby diverting the balance of the price of the Havana sale, rexiresented by the bill of exchange from the .plaintiff’s control to that of the general’s, which occasioned the present suit. The claim which the plaintiff is now pressing against the defendant is for the balance of the jiroeeeds of his cargo sold iu Havana.

“ This proceeding, with full knowledge that that sale was made under the defendant’s instructions ratified that sale, with all its incidents concurrent and sequent, and made that contract his own.”

We admit, that if the proceeding alluded to had been adopted, with full knowledge that the sale was made under the defendant’s instructions, we would have no case. We would then have ratified the defendant’s instructions, and made them our own. This, we submit, is the vice in the judgment. There is no evidence in the record that we ever, by word or deed, ratified his instructions. The ground which Your Honors seem to stand the ratification upon is, that plaintiff paid the third of exchange referred to, or that it was paid by plaintiff’s order. You say: “ By this ratification, the plaintiff’s release, when he paid the amount of the bill by the plaintiff’s order to Gen. Butler, if conditional, became absolute.”

Now the plaintiff never paid the third of exchange, or ordered it to be paid by the defendant. The circumstances of this payment, as they appear from the record, are as follows:

This third of exchange was drawn in favor of the defendant; it was of no value to any one but lie;, in the possession of anyone else, it was worthless; he alone could dispose of it. It came into the hands of General Butler, who demanded payment from the defendant, and who compelled him to pay it. This he could, and doubtless would, have done, with or without the x>laintiff’s consent. The plaintiff was an entire stranger in the transaction. He could have declined saying a word upon the subject, and have left the defendant to fight his own battle with the general;, and this he could have done most conscientiously, for up to the time of the payment of the bill, and up to the present day, there is nothing to show that this bill referred to the proceeds of the Oora’s cargo. But the defendant was in x>eril of imprisonment; he had either to pay the amount demanded of him or go to prison. In his distress he called upon the plaintiff, and told him that the bill belonged to him; that he .had no interest in it; that it was the proceeds of his cargo, and he urged him, no doubt with that eloquence which comes natural to any man who is praying to be kept out of prison, or entreating not to be made to pay money, to come to his relief. He does so. He says the bill belongs to him and that he will not have the defendant made to suffer on his account, and he agrees that he will make no claim upon the defendant on account of the draft. But at the same time that he shields the defendant from General Butler’s prison, he protects himself, for while he agrees to make no claim upon the defendant for tho bill, he says: “ The transaction has been done contrary to my orders, and I make no claim for the proceeds thereof, etc.” If the transaction was done contrary to his orders, then the release was without consideration and was void. The acceptance by the defendant of this condition was an acknowledgment on his p>art that the plaintiff’s instructions had been disobeyed. His letters show that he was the party who disobeyed them, and surely he must be responsible for his own acts. We submit, therefore, that there has been no ratification on the part of the plaintiff, and that there is error, in this regard, in the judgment.

The cases.to which the Court refers, 12 Martin, 368, 2 A. 24, 81.2, are all cases where the actions were brought after full knowledge of the facts on the part of the plaintiffs, and after their formal acquiescence. Admitting, however, that we acquiesced in the sale of the property made contrary to our instructions, we still have a right of action for the proceeds of the sale. Surely, because we do not complain of our property being sold contrary to our instructions, we are not barred from complaining that the proceeds of the sale have not been sent where we ordered them to be sent.

Your Honors are of the opinion that restitution of the sum paid would have been made if it had been demanded of the United States authorities. Doubtless. But who was to make the demand? The Court say the plaintiff. We submit that it should have been made by the defendant. The bill was in his name; it was seized as his property; it was paid by him. He was therefore the only person who could have claimed restitution. The record shows that he offered the plaintiff to demand its return, but this offer was coupled with the proviso that he, defendant, should be released from all obligation towards the plaintiff. He would have been placed in a nice box if he had accepted this proposition. First, the defendant would have been released because the plaintiff believed that he had carried out his instructions; secondly, he would have been released because he had applied for restitution. He would then have given up his hold on the correspondent in Havana and the shipper, and thus be without his property and without a remedy. The fact that he refused this proposition is the best evidence that he considered his release a conditional one.

We now beg to call Your Honors’ attention to another branch of the' case.

Assume that the £2,338 13, the proceeds of property placed in his hands for sale, belonged to Szymanski, and that they were in the possession of S. Plassan as his agent. Now assume that Plassan had to pay for account of Szymanski $11,690 in Citizens’ Bank notes. When he settles with Szymanski what is to be the basis of his settlement? Is he to pay the number of pounds sterling, dollar for dollar in a depreciated currency? or is he not bound to account to him for the value of the sterling?

It is established by the evidence that the money paid to General Butler wa3 paid in Citizens’ Bank notes. It is established by the testimony, that sterling was worth more than fifty per cent, premium over the notes in which the payment was made. And it is established that at the time of the trial of this cause that very sterling was in the possession of. the defendant. It must, therefore, be presumed to be there still. Now whose property is it? Szymanski’s. £2,338 are equal to $11,339 30, according to the currency law of the United States, considering each £ to be worth $1 85. According to the value of gold in the market at the time of the transaction, this sterling was worth over $18,000 in Citizens’ Bank notes. Plassan has ;paid $11,690 in these notes, and there remains then a balance of $6,318 in his hands. In other words, Plassan is enabled to make a clear profit of over $6,000 as the agent of a man whose-instructions he violated from the commencement. Even now, if, Your Honors were to order the defendant to place the plaintiff in possession ^ of £2,338 upon his paying him $11 690, Plassan would, lose nothing and Szymanski would recover the balance of his property, to-wit: $6,318. We think that he is bound to us for the whole amount we claim, but we respectfully submit that, under any view of the case, we are entitled to the last amount.

Your Honors are pleased to say that “ upon every principle of law and equity we consider the defendant entitled to a judgment in his favor. ” We respectfully submit that the equity in this case is entirely in our favor. We could have allowed the defendant to go to prison or pay the amount demanded of him, at his option; we did not do so because we believed that he was about being punished for no fault of his own, and we stood between him and punishment. What were the. facts? We ■Jiave shown that he disobeyed our instructions; that he caused our money to be placed to liis own credit instead of ours, thus talcing the chance of settling with us if we ever called upon Imn for a settlement, and if not of being in a position of having the whole amount to himself; we have shown that he has been enabled to get a title to our property which came into his hands as our agent, worth then, and now, over §18,000, by paying §11,690 for it, and that he must therefore now have over §6,000 of our money in his hands. There may be some inexorable rule of law, of which we are ignorant, which Tour Honors in obeying takes away our rights, but we respectfully submit that, if equity means fair dealing, the justice of the case is with us.

Iuslev, J.

The plaintiff’s claim for premium on exchange, set up in this Court for the first time on the rehearing, is not sustained satisfactorily by the evidence; and as we can perceive no error in the judgment first pronounced by us, the rehearing is therefore refused.


author: Howekd, J.

text:
    No. 1061.
    Phillip Drumm v. J. A. Sherman—T. White, Subrogated.
    A judgment debtor is not bound by the subrogation of plaintiff’s claim in favor of a third party, after judgment has been rendered, unless he has had special notice of such subrogation.
    PPEAL from the Third District Court of New Orleans, Fellowes, J.

      W. B. Iiooniz, for plaintiff and appellant.

      Hornor & Benedict, for St. Ceran.

      II. I). Ogden, J. Claiborne and Fellowes & Mills, for defendant.
   Howekd, J.

J. A. Sherman obtained judgment in the Third District Court of New Orleans, against Phillip Drumm, and transferred it with subrogation to Thos. White.

V. St. Ceran obtained judgment in the Sixth District Court of New Orleans against J. A. Sherman, and by garnishment process against Drumm, seized and collected from him the amount of the judgment in favor of Sherman.

Thos. White, subrogee, issued execution against the property of Drumm, who enjoined on the ground that the judgment against him was satisfied by payment in the garnishment process. The defence is that the transfer and subrogation of said judgment were made of record in the suit of Sherman v. Drumm, which operated a notice to Drumm, and that he had other notice thereof. Judgment was rendered dissolving the injunction and plaintiff appealed.

, Making the transfer and subrogation of record after judgment was rendered, was an ex parte proceeding, cf which the defendant in the suit was not bound to take notice. He was entitled to special notice. C. C. 2613. The authority in 1 R. 275, cited by defendant, does not apply.

There is in the record no evidence that notice of the transfer was given to Drumm, and the payment under the garnishment process to the creditor of the transferror, discharged the debtor of the debt. C. C. 2614.

This view of the case' renders it unnecessary to pass on other questions presented in the record and briefs.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of plaintiff perpetuating the injunction herein, with costs in both courts.


author: Ilsbey, J.

text:
    No. 1077.
    Succession of William Hubee.
    Tüe certificate oí nanrriagei» evidenoe of the particular faots which the law requires to be reco: in it, and of no others.
    A marriage is not null, because the laws relating to formó and ceremonies have not been observe* ana it may be proved by every species of evidence noc prohibited by law, which does not presuppose a higher species of evidence within the power of the party.
    Where a certain, species of evidence is conclusive on the y >int, the failure to produce it by the party on whom the burthen or proof devolves, carries wifcu 11 the presumption that it does not exist.
    APPEAL from Second District Court of New Orleans, Théard, Act. J.

      F. A. Bartlelte, for appellant.

      T. W. Collens and A. Canonge, for appellee.
   Ilsbey, J.

The tutor of the minor, John Charles William Hubee, seeks in this proceeding to have his ward judicially recognized as the legitimate son and heir of the late William Hubee, and issue of the lawful marriage between the said William Hubee and Wilhelmina Kestig, the minor’s mother.

He relies exclusively to sustain the complex fact of the minor’s legitimacy :

1. Upon the declaration' of the deceased, William Hubee, made in the certificate of birth, that the minor is the issue of his marriage with Wilhelmina Kestig; and

2. Upon the testimony of witnesses to prove that they were intimately acquainted with the parents of the minor, both deceased; that they lived as husband and wife, were so considered, and were visited and respected in the community as such.

This testimony was received by the Court below, under objections from the defendant, the grounds of which are set forth in the bills of exception, to which our attention is specially called.

The register of births was competent evidence to prove one of the elements of legitimacy — filiation, but not the legitimacy of filiation, even, although the declaration of the legitimacy of the child be made thereon by his father. 1 Green. Ev. Hen. Dig., v. 1. p. 493.

It is evidence of the particular facts which the law requires to be recorded in it, and of no others. Rev. Stat. p. 46, J 4.

Parol evidence to prove the marriage of William Hubee and Wilhelmina Kestig is objected to, because it is not the best evidence of which the case is, in its nature, susceptible. .

It has been repeatedly held that the law does not declare null, marriages, in which the laws relating to forms and ceremonies have not been observed; that marriage may be proved by any species of evidence not prohibited by law, which does not presuppose a higher speeies of evidence within the power of the party. 3 La. 33. 2 A. 944. 7 A. 253. 15 A. 253.

A registered act of marriage would be conclusive evidence of the fact of marriage, and if such an act were extant upon the public records, it would be difficult to impute to the party on whom the proof devolved a sinister motive for not producing it. The failure to produce evidence, which, would be so conclusive, carries rather with it the presumption that it does not exist.

And so of evidence higher in grade than that offered, for it will be observed that this is not the case of a spouse seeking to prove a marriage, in which he or she was a party, and who would be presumed to know all the facts and circumstances attending such marriage; but, of a minor child, who has not and cannot, in the absence of record proof, be supposed to have, in regard to the marriage of his deceased parents, the same means of information.

Every case necessarily depends somewhat on its own circumstances.

It is not essential to prove by record evidence, or by persons present at the celebration of a marriage, that the marriage actually occurred; but it is necessary that the facts and circumstances relied upon as the foundation of a presumption of marriage, should be consistent and. cogent. It was held in Philbrick v. Spangler, 15 An. 46. If the parties were married, the marriage must have taken place in New Orleans, and yet, although but few years have passed by since the event is said to have occurred, not one witness examined proved the fact of marriage.

Nor is the circumstantial evidence, as to cohabitation, general reputation and admissions of the parties to the alleged marriage, altogether consistent. Some of the witnesses do say that “Mr. and Mrs. Hubee ” were considered husband and wife, and were visited as married persons; whilst others, who were intimate with them, seem satisfied that they were never married.

To one witness, Hubee says that “ he was married to Wilhelmina Kestig neither by the court nor by the priest, but that he considered her his wife;” to another witness, over a social glass, that “he was married by a notary public,- he was not married by a priest, as he did not believe in them;” and to another, that he was not married to her. These statements were made to different persons by Hubee, and they seem to be consistent with voluntary statements made by Welhelmina Kestig, to one of her intimate female friends, who testified in this case. This witness says: “ Mrs. Hubee told me she was not married;” that was about a year ago; she told me “ she felt bad about it, and wished to be married.” I visited her very often. At that time, I lived across the street from her, and was very intimate with her.

She often, says this witness, told me “ she was not married to Hubee.” She was uneasy about it, as Hubee might die, and she would get nothing. She went by his name, as his wife. From the first time, she told me she was not married; she spoke of it because she had a child, the one now living, and wanted to be married.”

Yerbal statements and admissions, particularly of deceased persons, ought, it is true, to be received with great caution, but it must be borne in mind that the statements of both, William Hubee, were deliberately made to the plaintiff’s own witnesses,'and to the wife of one of them, and also to other witnesses; such évidence as that, to which no suspicion attaches, must be deemed satisfactory, and coupled with the fact that by some of the intimate friends of the parties, they were not considered as married, would seem to rebut the presumption — resting on common repute, that they were married. See the cases reported in 15 An. page 46, Hobdy v. Jones, 2 An. 944; and Cole v. Longley, 14 An. 770.

In the case of McConnell v. New Orleans, 15 An. 410, this Court, whenever the question of marriage was involved, said: “The plaintiff must make his case not only probable, but certain. He has failed to produce any evidence, written or oral, of an actual marriage, and the presumption to be drawn from the circumstantial proof adduced by him, are overcome by others more cogent. The party seeking to recover should establish the marriage as conclusively as any other fact.”

It is intimated for the plaintiff, that a box belonging to the deceased, containing his money and valuable papers, had mysteriously disappeared after Hubee’s death; and that some written evidence of the marriage had been surreptitiously concealed or destroyed by the defendant in this suit, but there is nothing in the evidence to sustain such a charge, nor to justify the remanding of the case to the lower Court on that account.

■ If such evidence can at any time hereafter be discovered, the plaintiff may avail himself of it, as the judgment of the Court below was one of nonsuit, which we shall affirm.

It is therefore ordered, adjudged and decreed that the judgment of tho District Court be, and the same is hereby affirmed, at the costs of the appellant.

Rehearing refused.


author: InsiiEx, J.

text:
    No. 1522.
    The State of Louisiana, ex rel., Jacob Westbrook, v. E. D. Farrar, Judge of the Thirteenth Judicial District.
    "Wbere a writ of mandamtts has issued against a District Judge, at the instance of the defendant in the case, ordering him to show cause why he should not be compelled to fix the amount of the bond for the release of property under soquestration, and the Judge shows for cause that the suit has been dismissed at the instance of the plaintiff, the application for a mandamus will bo dismissed.
    APPLICATION for a Mandamus.

      Aroni <& Collier, for Westbrook, petitioner for mandamus.

   InsiiEx, J.

This is an application for a mandamus to the Judge of the Thirteenth Judicial District of the State of Louisiana, to direct him to fix the amount of a release bond, and to grant an order for the release of certain property sequestered in the suit of “ Parmle v. Westbrook,” pending in the said District Court for the parish of Tensas, as required of him by Article 279 of the Code of Practice, or to show cause to the contrary.

The cause shown by the Judge is, that the suit of Parmle v. Westbrook, has been duly and legally discontinued by the plaintiff, and as the effect of this discontinuance is to put the defendant, at whose instance this proceeding is had, in possession of the property sequestered, no useful purpose could be subserved by this Court interposing its authority.

It is therefore ordered that the petitioner’s application be dismissed, at his costs,


author: Howell, J.

text:
    No. 1009.
    J. L. Pointer v. Merchants’ Mutual Insurance Co. and E. W. Rodd v. Louisiana Mutual Insurance Co.
    "Where a vessel at sea suddenly sinks, and no specific cause of the disaster is shown, the presumption of law is that the vessel is unseaworthy. This principle of law does not apply where the evidence shows that the loss of a vessel at sea by sinking was the direct result of afire which accidentally broke out in a part of the vessel, from the effects of which the vessel sinks; in such a case it must be held, that the sinking of the vessel is a peril insured against, and the insurers must bear the
    APPEAL from -the Sixth District Court of New Orleans, Duplantier, J.

      A. & M. Voorhies, for Merchants’ Mutual Insurance Co., appellant.

      Ed. Briggs, for Louisiana Mutual Insurance Co., appellant.

      Randolph, Singleton & Bardie, for plaintiffs and appellees.

      Brief of plaintiffs and appellees.

    * * * We shall proceed to show 'that’the steamer was lost by perils insured against:
    1. What were the perils insured against? The policies (pp. 7 and 27) bound tbe defendants to indemnify for losses and misfortunes which should come to the damage of said steamboat “ by rivers and fires. ” She was insured in the poTt of New Orleans, where the risk attached against the “Mutual” on the 25th of February, and against the “Merchants ” on the dth of March, 1865, to continue for six months. Each Company insured her from New Orleans to the Rio Grande, and each insured her while running between Matamoras and Bagdad, the trade she then contemplated.
    2. She was lost by the perils insured against. The steamer had run about two months on the Rio Grande, between Matamoras and Bagdad —the trade for which she was insured; was a popular boat and making money. Pp. 55, 85, 87, 110, 111, 140. On the 1st of July, at é o’clock, p. jl, she arrived at Matamoras with a cargo, and was not unloaded oh the same evening, because of the difficulty of procuring hands on Saturday eveni g, and the disinclination of the merchants to receive the goods late in •he evening. Pp. 86, 87. Besides this, it rained on Saturday and on the following day. P. 87. Nor was she discharged on the Sunday following, because labor is prohibited on Sunday by the authorities of Matamoras. Pp. 56, 87. The steamer Montezuma arrived in Mat"moras some hours before the Fanny Fisk, and she did not discharge her freight until the Monday following. P. B'G. On Monday morning early, the Fanny Fisk caught fire. After half an hour of great exertion by the officers and men, the flames were arrested, and in about half :an hour more they were extinguished. There was a second fire, occasioned by the upsetting of a lamp, but it was easily subdued. Scarcely had the boat’s crew retired to rest after their severe labor, when they were aroused by the alarming cry that the boat was sinking, and in a few moments she did sink: The defendants having given plaintiffs a policy purporting to be one of insurance, in which there is this clause: “Touching the perils which this Company is contented to bear and take upon themselves in the premises, they are of the Rivers, Fires, and all other perils,” etc., (pp. 9, 27,) we proceed with all confidence to show that the plaintiffs’ loss was incurred by both of the perils insured against.'
    1st. As to the fire.
    James McConnell, (p. 79.) proves that when the steamer was tied to the landing at Matamoras, she caught fire, between one and two o’clock Sunday night, the 3d of July, 1865. “ The fire broke out in a room by the side of the engine, and on the side nearest the shore, where the engineer kept oil, paints, packing, and tools.” The fire had so far advanced that when witness opened the door, “the blaze burst full in his face and burnt his beard and hair.” P.80. Closed the door, and although he did not see any one around or near the room when he discovered the fire, “in two or three minutes from the time the alarm was given most of the officers and men were at work with the pumps and the buckets.” “The fire spread with great rapidity, owing to the quantity of oil, oakum and the pine wood of which the room and boiler deck was made.” Pp. 80, 81.
    About half an hour elapsed before the fire was at all arrested, and it was an hour or more before it was extinguished. P. 81. Although* thb witness did not examine the hull after the fire, he saw the earpenterj engineer, and a Mexican deck-hand come out of it from an examination. There were on board at the time of the fire, the captain, the two engineers, Messrs. Bucholdz and Simons, Bodd and Maranaux, Jones, the steward andeook, the firemen and five hands, and all engaged in putting out the fire. And still further on the subject of the'fire and the efforts made to extinguish 'it, the witness speaks at page 89, on cross-examination.
    A.-P. Bucholdz, an engineer on board of the steamer, corroborates the foregoing statement in every respect and to the fullest extent. Pp. 103, 101, 108. He declares that the fire raged with great fury, and-that the flames seemed at one time to envelop the boat.
    J. P. Bodd testifies to the fire, the extent of it, and the injury to the boat, tbe duration of it and its fiual extinguishment, and corroborates the statement of McConnell and Bucholdz. Page. 53.
    After it was supposed that the fire had been entirely extinguished, the meu retired to rest, when there was a second alarm of fire; but it is' not necessary to dwell on it, for it was “quite slight” and speedily extinguished. Pp. 53 and 51. It was oaused by the upsetting of a lamp. Ib.
    2. As to the water.
    There cau be no doubt whatever, that immediately after the fires were extinguished the boat sunk, and was a total loss. “She went down in about two hours after.” Rodd, p.-51. She sunk in about an hour and a half after. McConnell, p. 82. “On returning, I saw her careening rapidly, and at the same time I heard the noise of the water as it rushed into her.” P. 82. He gave the alarm, crying out “ the F.mny Risk is sinking.” P.83. Bucholdz was preparing to go to bed when he heard the cry, and she sunk immediately. P. 106. “The cook and the first clerk came near being drowned; the cook had to jump overboard aft.” P. 106. Indeed, the suddenness with which the boat went down, the consternation it produced, and the extent of the danger to the officers and crew, are clearly and distinctly stated by the witnesses, who, in every essential point, corroborate one another. In conclusion, we refer to the “protest” made in the “heroic city of Matamoras,” immediately after the loss, for a full narration of the loss as it happened, both by fire and water.
    We might here rest the case, being satisfied that the testimony brings the loss within the terms of the policy. But before doing so, it may be well to consider the grounds on which resistance is made to the payment of insurance:
    1. The defendant admits the execution of the policy, and denies the allegations of the petition. So far, the enquiry is narrowed to a single question, and the proper answer to it. The policy being admitted, the enquiry is, were the defendants insured against the loss which occurred? An inspection of the policy establishes that the insurance was against loss by rivers and fires, and the testimony of the witnesses, Rodd, James McConnel and Bucholdz, before referred to, establishes the fire, and that the boat sunk in the river. They show that she was well commanded by a competent captain, and had her complement of hands and officers, and was “ well provided for.” Rodd’s testimony, pp, 52, 53. McConnell's pp. 77, 78. Captain Rault’s, pp. 93, 91. Bucholdz’s, p. 96.
    2. The defendant’s special defence is, that the steamer was unseaworthy. We cheerfully join issue with the learned counsel on this imaginary defence, and call upon the record to “vindicate the right.”
    The plaintiffs, with a sagacity which has almost proved to be prophetic, .when they determined to put the Fanny Fisk in condition to- enter into, the trade on the Bio Grande, repaired her under the auspices of Richard; Swain, “ a marine inspector for tlie underwriters of New Orleans,” who has been engaged in this business twenty-seven years — surely long enough to have gained experience, as he certainly had gained the confidence of the underwriters of New Orleans, who testify to the fact by retaining him for more than a quarter of a century in office. Page 137.
    The prophetic souls of the plaintiffs admonished them that there might be trouble, for they knew that it is sometimes as difficult to collect “ losses ” as it is easy to pay premiums; so they determined to make the Fanny Fisk seaworthy, under the inspection and direction of that marine institution, Richard Swain, whose “ipse dixit” is almost invariably accompanied by a corroborative judicial judgment. He states “the Fanny Fisk was repaired under my supervision.” “She was repaired between a month and six weeks.” “ There was as large a force employed working on her as could conveniently work. I was present every morning, pretty much, while these repairs were going on; I very seldom missed. I had a carle blanche to put the boat in order; I did so.” He refers to his certificate, corroborates and adopts it, (pp. 138, 140) and fixes the time at which the repairs were made. He adds: “ I was inspector at that time specially for the Crescent Louisiana Mutual Insurance Co., and the Merchants’ Mutual Insurance Co. P. 139. Two of the companies, defendants, in these suits.

      Brief of def endants and appellants.

    Under every aspect of the case, the plaintiffs are involved in difficulty.
    1. If the fire had been the.cause of the ultimate disaster, then the vessel was unseaworthy for want of a competent captain and crew; their negligence and carelessness must fall upon their principals. Whitney v. Ocean Ins. Co., 14 La. 485. Caldwell vs. La. Ins. Co., 19 La. 42. Dupoire v. Western Ins. Co., 2 R. 57. Lapene v. Sun Ins. Co., 8 An. 1.
    2. If the fire be not the cause (causa causans) of the subsequent wrecking, then no specific cause is suggested, and the law presumes unseaworthiness. The plaintiffs, having completely failed to prove that the vessel was then seaworthy, (although she might have been so six months previous) the legal presumption of unseaworthiness holds good.
    No legal appreciation can be made of the statements of witnesses, who, speaking of her at the time of the catastrophe, called the Fanny Fisk the favorite and popular packet of the Matamoras trade, and believe her to have been as good as any other steamer plying in those waters. It takes an acute mathematician to ascertain the relation between two unknown numbers, and the jurist who will establish the seaworthiness of one vessel by comparison with others, whose seaworthiness is itself a problem, will have a delicate operation to perform.
    One witness was proud of the Fanny Fisk, after seeing her ride successfully two hurricanes on sea, and coming out of these trials stauncher than before! As an employe on board, he had a fellow-feeling for her.
   Howell, J.

These suits, consolidated, are brought to recover of the defendants respectively the amounts of two policies of insurance effected in March, 1865, on the steamer Fanny Fisk, which was lost by sinking in the Rio Grande on the 3d July, 1865. The defence is, that the vessel was unseaworthy during the term of the policy, and was not lost by any of the perils insured against.

Judgments were. rendered in favor of plaintiffs, and defendants have appealed.

It is shown that the vessel was in good condition, seaworthy, and well officered and provisioned, at the date of the policies, and so continued until the morning of the 3d day of July, when about one or two o’clock a firewas discovered in a room on the main-deck, where oils, carpenter’s tools, etc., were stored; that in the course of an hour the fire was with great exertions extinguished, and that about an hour or an hour- and. a half thereafter the boat suddenly sank — those on board barely having time to escape. The description given by the witnesses of the fire, and its effects, satisfies us that the loss was the direct consequence of the fire, and, therefore, the principle of law invoked by the defendants, that no specific cause being shown for the disaster, the -presumption is, that at the time of the loss the vessel was unseaworthy, is not applicable. Under the evidence, no other cause can be assigned for the sinking than the damage caused by the fire.

We therefore conclude that the loss was the result of perils insured against.

Judgment affirmed, with costs.

Rehearing refused.


author: Howei/Ii, J. HowEnn, J.

text:
    No. 474.
    E. A. Patterson v. City of New Orleans.
    The Common Oounoil of the city oí Nbw Orleans is not vested with authority to guarantee that oon» tractors shall make money, under all circumstances, out of contracts with the corporation. Per Curiam: No such use of the public funds is contemplated.
    A judgment rendered by the lower Court, on issues not made by the pleadings, will be roversed on appeal.
    APPEAL from the Third District Court of New Orleans, Handlín, J.

      Fellows & Mills, for plaintiff.

      F. Filleul, for the City.
   Howei/Ii, J.

This suit is brought on a warrant drawn by the comptroller on the treasurer of the city, to the order of and endorsed by E. A. Patterson & Co., for $7,981 56, on 22d May, 1862, payable eighteen months thereafter, with six per cent, interest from date, and protested at maturity, November 22d-25th, 1863, for non-payment.

The city, besides the general denial, specially denies the existence of any ordinance authorizing the comptroller to draw the warrant sued on, or if there be such ordinance, that it was passed by a lawful majority of the Board of Common Council, or that any provision is made according to law to pay such warrant; denies further, the legality of the proceedings of the Common Council, and the acts of the Finance Committee, out of which said warrant originated, and asks judgment annulling the warrant, and against the plaintiff for $119,586 46, amount of his twenty-four promissory notes, given for the lease of the third section of the wharves, and improperly surrendered to him.

Judgment was rendered annulling the warrant sued on, declaring the said notes properly returned to plaintiff, and condemning him to return to the city the five warrants (including the one in suit) amounting to $31,926 23, given to plaintiff in settlement of the wharf contract, and in default thereof to pay said sum, with interests and costs, from which he appealed.

Since the appeal plaintiff has died, and his widow has been made

The ordinances or resolutions introduced, as authorizing the warrant, are No. ¡3(133, approved June 8th, 1861, No. 5978, approved March 20th, 1862, and No. 6085, approved May 14th, 1862.

By the first of these (5683) the contract of lease was so changed as to make the city guarantee to the lessee, the plaintiff, that his revenues for the year, 1861, cut off by the war and blockade, shall be the same as the average revenues of the two previous years (1859 and 1860) “deducting at the rate of $4,000 per anmtm, for less amount of repairs required and profit that might be realized,” and the deficit in said revenues to be deducted from the notes of the lessee falling due thereafter; and the mayor was authorized to sign a notarial act in accordance therewith, which was executed and signed on 26th June, 1861.

By the second (5978) the Finance Committee was instructed to make a settlement with the lessees of the city wharves, agreeably to resolution No. 5631, approved June 1st, 1S61, and which is similar to No. 5633, but refers to other lessees.

By the third (6035) the mayor is authorized to cancel all the leases of the wharves, with the consent of the lessees. The Finance Committees were authorized to settle with the said lessees, according to resolutions Nos. 5631 and 5633; and the Committees of Streets and Landings, and the surveyor authorized to take charge of the wharves and levees; in pursuance of which plaintiff executed a notarial act on 26th May, 1862, consenting to the canceling of the act of lease to him passed on 31st August, 1858, which was to continue until 30th June, 1863, and acknowledging the receipt from the Finance Committee of the sum of $31,926 24, in full of all claims which he had against the city of New Orleans arising from said lease; which payment it seems consisted of five warrants, two payable in six, and the others respectively in twelve, eighteen and twenty-four months from 22d May, 1862, the one at eighteen months is the one in suit.

It is proven that the settlement thus authorized and resulting in giving the said warrants, was made ou 21st May, 1862, between parlies from the comptroller’s office and some of the Finance Committee; that the city comptroller and the proprietor of the official journal of the city were partners of plaintiff in the lease of the wharves, and of-course in the fruits of the above settlement; and that they and two others were authorized by resolution of the Council to sign the act canceling tho lease, because of the absence of their copartner, the plaintiff.

The 21st section of the city charter (1S5G) prohibits any officer of" the corporation from being directly or indirectly interested in any work, business or contract, the expense, price or consideration of which is paid from the city treasury.

By the original contract the plaintiff paid $59,793 06 per annum, in monthly instalments, and made all necessary repairs to the wharves and landings for the privilege of collecting the revenues thereof in the third section, the average receipts of which in 1859 and 1860 were $113,091 90 per year, leaving $53,298 84 for cost of repairs, expenses and profits annually. By the second contract, plaintiff was allowed $4,000 annually for repairs and profits, and the guarantee that his receipts should be $113,091 90, the difference between which two sums should be deducted from, his notes falling due after the date of the contract, June 26th, 1861.

But by the settlement the amount of the said notes was deducted from said difference — not the difference from the notes — and the city obligated to pay plaintiff the remainder, which is clearly an obligation without a legal consideration, and one which the -Finance Committee were not authorized to assume or impose.

Admitting the right of the Common Council to make the change in the original contract, in the manner in which it was done, upon which it is unnecessary to express an opinion, we think, under no legal construction, can it be inferred that the city was to guarantee to the plaintiff any sum beyond the amount of Ms notes, less the $4,000 to be deducted.

The Common Council is not vested with authority to guarantee that contractors shall make money, under all circumstances, out of their contracts with the corporation.

No such use of the public funds is contemplated.

We think, however, the lower Court erred in rendering judgment for the return of the five warrants or the payment of their amount by plaintiff, as no such issue was made by the pleadings.

It is therefore ordered that the judgment of the lower Court be reversed, and it is now decreed that there be judgment against plaintiff and in favor of defendant, annulling the warrant or draft sued on, with costs in the lower Court, costs of appeal to be paid by defendant.

On Reheabito.

HowEnn, J.

In the argument for a rehearing, counsel for plaintiff contend that the consideration of the warrants in question was the surrender, by the plaintiff to the city, of the possession and enjoyment of the revenues of the wharves for the unexpired term of his lease. But the record shows that the amount, for which they were given, was the result of the settlement made betwe'en him and the Finance Committee, under ordinance No. 5633, which guaranteed to plaintiff that his revenues for the year 1861 should equal the average of the years 1859 and 1860, less the sum of $4000 for repairs, &e., and that the difference between his actual receipts and the said average should be credited on his notes falling due thereafter. And we hold that the Finance Committee did not make the settlement in accordance with the true construction and intention of said ordinance, which did not authorize the Finance Committee to bind the city to pay the lessee any sum beyond the amount of his notes; that, in our opinion the Common Council could not assure a contractor a profit on his contract at the public expense, and that the claim in this suit was of such a character, being a sum promised, besides giving up his rent notes. We are of this opinion still. ■

If the law would allow this claim we would readily award it, whatever may be the condition of the claimant. But, as we cannot convince ourselves of error in our first conclusions, we cannot grant a rehearing.

Rehearing refused.


text:
    No. 475.
    E. A. Patterson v. City of New Orleans.
    A XJL EPEAL from the Third District Court of New Orleans, Eandlin, J.

      Fellows S Mills, for plaintiff.

      F. Filleul, for the City.
   Howell, J.

In this suit plaintiff claims the value of a quantity of lumber taken and used by the defendant. Besides the general and a special defence to the claim, the city raises the questions growing out of the contract of lease of the wharves involved in the case between the same parties just decided, and asks that plaintiff’s demand be declared compensated by his indebtedness on that account.

Judgment was rendered in favor of plaintiff for the amount claimed, but ordering it to be credited on the judgment rendered in favor of the city in the former case.

As the lower Court held, the evidence sustains plaintiff’s demand, but there was error in requiring the amount to be credited on another judgment in a suit unconnected with this. The causes of action are different and distinct; and besides, we have found that no judgment should have been rendered in the former suit against plaintiff, upon which the credit should be made.

It is therefore ordered that the judgment appealed from be reversed, and it is now ordered that plaintiff recover of defendant the sum of $1,381 10, with legal interest from judicial demand, and costs in both courts.


author: Labales, J.

text:
    No. 669.
    John L. Gubernator v. The City of New Orleans.
    By the charter granted to the Oarondelet Canal and Navigation Company, by the Legislature in 1858, the power to lease is unlimited and unrestricted, without distinction as to whether it be for a part or the whole of the property.

      Per Curiam.: Where the lawmakes no distinction or discrimination, courts can make none; and to do. so would be a purely arbitrary exercise of power.
    Where the record discloses the faot that a judgment by default has been confirmed, without introducing the evidence on whioh it is founded, although it is on file in the case, the Judgment will be declared null and void on appeal, and the case will be remanded to be proceeded in according to law.
    PPEAL from the Sixth District Court of New Orleans, Buplantier, J.

      G. Bufour, for plaintiff.

      A. M. Buchanan, for the City.
   Labales, J.

The plaintiff, as lessee of the Oarondelet Canal and Navigation Company of New Orleans, claims of the city, the sum of $5,000, as damages suffered by him, and caused by the defendant in draining into the Bayou St. John.

The defendant excepted to the petition on the following grounds:

1. Because the same contains no cause of action.

2. Because plaintiff has no legal interest in the matter in controversy, his alleged lease being invalid, the Oarondelet Canal and Navigation Company of New Orleans having no authority in law to lease, or otherwise dispose of its entire corporate property and rights, and subrogate to all its corporate powers and privileges the plaintiff or other persons.”

The exception was overruled, and, the defendant failing to answer, a judgment by default was rendered, and made final, for $2,000. The city appealed.

By the first section of the act of incorporation, approved March 16, 1857, the said company can sue and be sued, purchase, hold, sell, convey, contract, lease, and release, grant, transfer, and receive, etc.

By the third section of an act relative to said company, approved March 10, 1858, it is enacted, “ That after the expiration of five years from the final passage of this act, the city corporation shall be prohibited from draining into Bayou St. John; and should said city continue to drain into said Bayou after the expiration of the term aforesaid, then, only upon due indemnity being made for any injury which shall be made to appear to result therefrom; said indemnity to be determined by three experts, to be appointed, one by the, city corporation, one by the company, and one by any of the District Judges of New Orleans,” etc.

By notarial act, passed on the 1th of March, 1861, the said company leased unto John' L. Gubernator and Michael Currin, (the latter subsequently transferred all his rights to the former,) who acknowledged possession: “The Canal Carondelet, the dredge-boats, shell-roads, and buildings thereto appertaining, the privilege of collecting tolls on the Canal, the Bayou St. John, and shell-road, and all other rights and privileges of the said company, under its charter and the amendments thereto. ” And, among other things, the right of claming indemnity which may be claimed from the City of New Orleans, during the period of the lease, under the third section of the act relative to the company, approved March 10, 1858, was specially transferred to the lessees in the act of lease, which was granted for twelve years from the date of the act.

It is insisted, in this Court, that the company had no power to make a valid lease of all its property, and surrender to an individual the exclusive control of its property, and the management of its affairs; and that the exception to the cause and right of action should have been sustained.

The power to lease, granted by the charter, is unlimitedand unrestricted; no distinction is made whether or not it be for the whole or a part of the property. How can we discriminate and distinguish, when the law does not? Ubi lex non distinguit, nec nos distinguere debemus. Were we to attempt to draw a line of restriction and limitation, where would we trace it? It would be an arbitrary exercise of power on our part, reprobated by law.

We are of opinion that our learned brother below, decided correctly in overruling the exception.

After the decision of the Court upon said exception, the defendant made no further appearance or defence.

This suit was filed on the 7th, and served on the defendant on the 8th of March, 1861; the three experts contemplated by the charter, were appointed and qualified, and they made their report on the 2d of March, 1865, assessing the damages at $2,000. The Judge, in making the judgment by default final, homologated the report of the experts, and gave judgment pursuant thereto, for $2,000. But the defendant complains in this Court, that the report of the experts was not offered in evidence, and that therefore there was no proof of damage. It is true, that the note of evidence makes no mention of the said report having been adduced on the trial; and we regret to say that, in the absence of that document from the evidence, the Court had no proof of damages in support of its judgment, as required by the third section of the amendment to the charter of the company. We are, therefore, of opinion that the judgment is erroneous, and that the case must be remanded.

The appellant has attempted, in the written brief, to raise issues not authorized by the pleadings below, and we have passed them unnoticed.

It is thefore ordered and decreed that the judgment appealed from be annulled and reversed, and that the case be remanded, to be proceeded in according to law, and that the plaintiff and appellant pay the costs of this appeal.


author: Ilsley, J. Hvmas, C. J.,

text:
    No. 1532.
    The State of Louisiana, ex rel., Daniel Hicky. v. The Judge of the Fourth District Court of New Orleans.
    Article 677 of the Code of Practice, only refers to judgments decreeing tlie delivery of real estate. It has no application where the judgment only recognizes the mere hiatus of the plaintiff as having an interest, or ownership in the property in dispute. C. O. 453.
    Where there is no standard specially fixed by law as to the amount of the appeal bond required to operate a supersedeas, pending the appeal, the Judge, a quo. should allow a suspensive appeal, on appellant’s giving bond in an amount sufficient to cover costs.
    PPLICATION for a Mandamus.

      P. H. Morgan, for D. Hicky, petitioner for mandamus.

   Ilsley, J.

This is an application to this Court for a mandamus to direct the Judge of the Fourth District Court of New Orleans, to grant a suspensive appeal in the suit in the said District Court pending, of Eliza W. Walsh, wife of Woodville Latham, v. Daniel Hicky, No.—, cn the relator’s (Daniel Hicky) furnishing an appeal bond for two hundred and fifty dollars.

The object of the plantiff’s action against the relator in the above-described suit, was to obtain the judgment which he did to annul a certain sale and transfer of all the right, title and interert, of the plantiff, Eliza W. Walsh, in the real and personal estate, appertaining and belonging to the successions of her deceased grandparents, Philip and Anna Hicky, with the revenues, etc., and from the said judgment of nullity, which ‘1 restored the plaintiff to the position she would have had and held, had such sale and transfer never been made.” The proceeding is now taken by the relator to obtain a suspensive appeal by furnishing the bond tendered by him.

The relator contends, in this Court, that the judgment of which he complains does not condemn him to pay any sum of money whatever, and that it does not decree the delivery of any real estate, and that he is entitled to a suspensive appeal on his furnishing an appeal bond for the amount above stated.

The Judge, in his answer to the order, states as a reason for requiring an appeal bond for fifteen thousand dollars, that the plaintiff’s succession rights, being by law an immovable, the standard for security to supercede proceedings pending the appeal prayed for, is that prescribed in article 577 of the Code of Practice; that neither of the articles 575 and 576, the only other ones in that Code, which treats of suspensive appeals, are applicable to the said appeal.

In this last position of the learned Judge, he is certainly correct; but we are unable to perceive how article 577 can be applied to the appeal in question. That article refers to judgments decreeing the delivery of real estate; and no delivery of real estate to the plaintiff is ordered by the decree; and if the decree, which requires the mere status of the plaintiff as heir of her grandparents, did contemplate the delivery to her, by the defendant, of her succession rights, of whioh nothing tangible therein is it shown ever came unto his possession. Still, article 577 has only reference to real estate; that is, to sensible, corporeal, immovable property, etc., (C. C. 453, §2; Bouvier’s Law Die. verbo Heal Property.,;) and not to mere incorporeal things; such as an inheritance, or rights of an heir in a succession. See Inst, de reb., corp. et ineorp., Domat, Prel. B., Tit. 3, Par. 3; and 462 C. C. La.

True, article 463, §3, classes among immovables from the objects to which they apply, an action for the recovery of an immovable estate, or an entire succession; and this may or not embrace, not only the action to recover an entire succession, but the right itself to a fractional part of a succession. But such an immovable, a mere indeterminate incorporeal right, a residuum, is not the fixed, specific real estate, of which article 577 makes mention, so as to determine the amount of an appeal bond to be furnished in the present case.

There being, then, no standard fixed specially by law, as to the amount of an appeal bond required to operate a supersedeas, in such a case as the one now presented, pending the appeal, we think the Judge should have allowed the suspensive appeal upon the bond for two hundred and fifty dollars tendered by the appellant, a sum amply sufficient to cover the costs of appeal. See 10 An. 345; 19 An. 505.

In Seddon v. Templeton, 7 An. 127, this Court said: The law often vests Judges with discretion, which, when legally and not arbitrarily exercised, appellate tribunals should not interfere with; but, when by abuse of such discretion, the right of a litigant to have his cause placed in such a condition as to enable him to have the benefit of the appellate jurisdiction which the Constitution has conferred upon him; and he may legally invoke the remedy which has been resorted to by him in this proceeding.

It is therefore ordered, adjudged and decreed, that a peremptory mandamus be issued from this Court, ordering the Judge of the Fourth District Court of New Orleans, to grant a suspensive appeal in the case of Eliza W. Walsh, wife of Woodville Latham, v. Daniel Hicky, No.—, pending in said Court, on the appellant’s filing in said Court, in the said suit, an appeal bond, with security conditioned as the law requires, in the sum of two hundred and fifty dollars.

Hvmas, C. J.,

dissenting. Inheritance made Eliza W. Walsh part owner and possessor of whatever property, real and personal, that her parents owned and possessed at their death. Civil Code, Arts. 867, 868, 869, 870, 936, 937, 938, 939. These rights she sold to Daniel Hieky, and the judgment annulling her sale to him of the same, was virtually a decree declaring her the owner of whatever real and personal property that belonged to her, before the sale, by inheritance from her parents, and requiring its delivery.

Both, article 576 and article 577 of the Code of Practice, required the Judge to fix the appeal bond and security for more than the cost of appeal, to produce the effect of a suspensive appeal, as the judgment was for the delivery of both real and personal property.

The law required the bond to be for a larger amount for a suspensive appeal than the cost of appeal, to secure her from whatever injury he might cause to the property while the enforcement of the judgment was stayed by a suspensive appeal.

If by Hickey’s giving bond with security in amount sufficent only to cover the cost of appeal, could operate as a suspensive appeal, all the real and personal property owned and possessed by her from her parents, would be liable to injury and waste by him, during the appeal, and for which she would have no remedy, except against him.

To decide that by an appellant’s giving an appeal bond, with security, in amount sufficient only to cover the cost of appeal, in favor of appellee, can operate as a suspensive appeal bond, and hinder the enforcement of a judgment which requires of "the appellant the delivery of real and personal property, is, in my opinion, erroneous; for such bond does not secure appellee against injuries that appellant may cause to the property while the enforcement of the judgment is suspended.

The bond given by Hicky, being insufficient for a suspensive appeal, his complaint should be dismissed.