author: Preston, J. Slidell, J.,

text:
    John Brown v. Robinson and Hassam.
    Ship carpenters are not commercial partners, and consequently are not liable in solido, even for a note given for lumber purchased for carrying on their business.
    The art. 2080, C. C., ifliterally construed, would sanction such palpable injustice as to render it absurd. Where a joint obligor wishes to avail himself of the defence, that the other joint obligors are not sued, he should do so by way of exception; stating the useful purpose of including the others, and that it could be done. Otherwise, the plaintiff may takejudg- • ment against the one before the court, for his virile share.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Hite and Gaither, for plaintiff.

      Durant and Hornor, for defendants.
   The judgment of the court was pronounced by

Preston, J.

This suit is brought upon'two promissory notes against Robinson and Hassam. It is sufficiently proved that they were ship carpenters, and the notes given for lumber for their business. They are therefore liable jointly, and not insólido for the debt. Brown v. Hughes et al., 2d Ann. 623. 15 L. R. 139. The demand of the plaintiff, therefore, to amend the judgment, so as to render Robinson liable for the whole amount of the debt, on the ground that the defendants were commercial partners, is clearly untenable; and the fact that the notes were given for timber used in the business of the firm, affords sufficient evidence that Robinson was authorized to sign them for the firm.

The petition was served upon Robinson, and not upon Hassam. Robinson plead that they were ship carpenters, and that the consideration for the notes had partially failed. Judgment, however, was rendered against both defendants, each for his half of the debt. An application was made for a new trial, by the plaintiff. It was not granted to him; but was granted in favor of Hassam, because he had not been cited. Robinson has appealed. His counsel contends that judgment could not be rendered against him on the joint obligation, without making Hassam a party; and relies upon art. 2080 of the Civil Code.

This article has often produced great inconvenience and delay in the administration of justice; and, if literally construed, would sanction such palpable injustice, as to render it absurd. Thus, the article declares, “that in every suit on a joint contract, all the obligors must be made defendants, and no judgment can be obtained against any, unless it be proved that all joined in the obligation, or are, by law, presumed to have done so.” Literally, therefore, if one signed the contract for many, he would not be bound, if he was not authorized to do so, because all did not join in the contract. This would be absurd, and the contrary has often been decided.

Laws must be construed with a view to their object, in their application to controversies. The first object of making Hassam a party to the suit is to render him liable for his half of the debt. That is for the benefit of the plaintiff; and the defendant cannot take advantage of the failure to cite him, on that account. He has been condemned to pay but his half of the debt, and cannot therefore complain.

A second object of the law is to enable each defendant to avail himself of any payments made by either; the acquittances being, perhaps, in the possession of the one not cited. No payments were plead, or pretended, by Robinson. On the contrary, he plead a partial failure of consideration. This, therefore, was within his knowledge and competency to establish without the aid of Hassam.

A third object is, that the coobligor may show that the obligation was not executed. Robinson did not pretend that; on the contrary, he, no doubt, signed the notes himself, and would be liable for the whole debt, if they were not given for the business of the firm, or if he had not authority from Hassam to execute them.

There were, probably, other objects for inserting this article in the New Code it not being found in the Old Code. When suit is brought upon a joint obligation, we think it but a reasonable interpretation of the article, that the defendants should be required to avail themselves of its benefits by a formal exception. And, therefore, if but a part are sued, or if all are sued and but a part cited, that those served with process should show by their pleadings that all were not made parties; that it could be done; and the useful purpose of doing it, so far as they were concerned. If the plaintiff is content with judgment against those cited for their share of the debt, and there is no ground to believe that those not cited could make defences to the action, not within the power of those before the court, we see no reason why the defendants cited should not be rendered liable for their shares of the debt, and discharged from all claim for the shares of others.

This court, in the case of Byrne v. Riddle, 3d Ann. 670, manifested their disapprobation of applying this technical and inconvenient rule of the code to cases which were not clearly embraced within it. And in the case of Bugeroll v. Allard et al, the late Supreme Court clearly intimated the opinion, that the failure to include all the coObligors in the suit should be opposed by an exception. 6 R. R. 353.

The earlier decisions of the court concur, however, in giving a strict and rigorous construction to the article. We should, therefore, exercise a just, but perhaps too great a discretion, in affirming the judgment of the district court; but we are by no means compelled to non-suit the plaintiff, and would do injustice in so doing. Justice requires that the case should be remanded, to make Hassam a party, or cause him to be properly represented.

It is decreed, that the judgment of the district court be reversed, and that the case be remanded for proceedings according to law; and that the appellees pay the costs of the appeal.

Slidell, J.,

dissenting. I think, under the evidence, the defendants are chargeable as commercial partners; being in the habit of buying and selling lumber. I understand this debt to have been contracted in the purchase of lumber.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Edgell, Mulford & Co. v. Barataria and Lafourche Canal Company.
    Where a collision of vessels has occurred without the fault or negligence of the defendants, or where the plaintiffs were as much in fault as the defendants, no damages can he recovered.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Wolfe and Singleton, for plaintiffs.

      Lavergne, for defandants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs claim the value of a flatboat loaded with coal, which they allege was sunk through the negligence, imprudence, and wunt of skill of the officers and servants of the defendants.

The district judge was of opinion that the sinking of the boat was the result of unavoidable accident; and gave judgment for the defendants. The plaintiffs appealed.

The case turns upon questions of fact; and the decision of the district judge ought to prevail, unless it is clearly erroneous. The evidence in the record is not of such a character as to lead the mind to that conclusion.

It is proved, that the dredging machine of the defendants, which came in collision with the boat, was at work on the morning of the day when the accident occurred, and that the hands employed on it were in the act of swinging her around to get her into the mouth of the canal, when a squall struck her and the fastenings gave way. She then drifted to the opposite shore, and there came in collision with the boat of the defendants, which was moored outside of two others, and in a strong current.

We do not think that the pulling of the dredging machine towards the shore, by means of a line attached to a skiff, which was manned by two hands of the company, is satisfactorily shown to have been the immediate cause of the collision. The object of the men in the skiff was to get near enough to the shore to fasten the line of the dredging machine to other coal boats lying a few hundred yards above those of the plaintiffs ; and if they had been permitted to do so, the collison would in all probability have been avoided. But a man on those boats seized an axe and threatened to split their heads open if they did not desist. This refusal rendered the collision inevitable.

The dredging machine stood on a solid raft of timber eighty feet long by sixteen or seventeen feet wide; and two men pulling in a skiff against a high wind and a rough sea could not have changed materially the direction which the wind and current gave it. Under those circumstances, no want of skill is attributable to the defendants’ servants, and their imprudence or negligence are of the slightest kind, — surely not greater than those of the plaintiffs who suffered their boat to remain in the third tier, in the strongest current of the river, when it is shown that a raft had struck another coal boat at that place a short time before; and their own witnesses testify that three boats are never suffered to lay abreast of each other in that bend when it can be avoided ; and that at the time of the collision, a safer place for the sunken boat could have been obtained, by dropping two or three lengths below.

The plaintiffs being at least as much in fault as the defendants, their action cannot be maintained.

Judgment affirmed, with costs.


text:
    Henry Holland v. John Toole.
    The plaintiff sold the defendant a quantity of salt, -which at the time was afloat and to arrive at a future day. When the salt arrived, the defendant received it without objection, and then refused to pay the price, on the ground that the salt was damaged. The damage consisted in the sacks having been blackened by stowage with coal or other black substance. Held: That as the injury was apparent, and the purchaser had received the salt without there having been any fraud or concealment on the part of the seller, he was bound to pay the price
    APPEAL from the Fourth District Court of New Orleans, Slrawhidge, J.

      Winthrop, for plaintiff.'

      JS. L. Goold, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff sues for the value of eight hundred and fifty seven sacks of salt, sold to the defendant at one dollar and ten cents per sack. The defence is simply a general denial.

On the 12th January, the salt was sold afloat, and to arrive — the ship which contained it being consigned to the defendant. Before her arrival the price of salt rose in the market, and the salt expected was re-sold to Pynchon at an advance of twenty-seven cents per sack.

On the 12th of February following, the defendant’s broker first notified the plaintiff, that the salt, which had then arrived, was in bad condition, and that a deduction would be claimed. The plaintiff immediately sent his brother to make an examination, when the latter found that the greater part of the salt had already been removed from the levee. Theonly damage exhibited by that whichremained consisted in the black and soiled appearance of the sacks, which looked as if they had been stowed among coal.

The district judge considered, that the defect complained of was apparent; and that the buyer, after receiving the thing and soiling it to another, could not refuse to pay the price.

The counsel for the defendant and appellant does not contest the correctness of the rule under which the case was decided ; but insists that nothing prevents parties from making such an agreement as involves a waiver of the application of it; that a vendor may agree that the vendee shall receive the property and do what he pleases with it without prejudice. This is, no doubt, true; but we think, with the district judge, that no such agreement has been shown in this case. Holland was not informed of Toole's objection, that the salt was unmerchantable, until after he (Toole) had taken possession of it, and sold and delivered it to Pynchon. There is nothing in the record from which we can with certainty infer that Holland consented to waive the rights which the delivery gave him, and to submit the matter to arbitration, as if no delivery had been made.

This case does not differ from that of Décuir v. Packwood, cited by the district judge. The contract was executed by the defendant with the full knowledge of the quality of the salt, and of the condition in which it was landed. Whether it proved afterwards not so saleable as he thought, on account of the sacks beingsoiled, is not a subject for judicial inquiry. As was held in Décuir's case, where there is no concealment or fraud, the law gives no remedy against a want of discernment in judging the quality of things. 5 M. R. 306.

The judgment is affirmed, with costs.


author: Preston, J.

text:
    Succession of Salvador Christy.
    The act of 13th March, 1837, requiring syndics, executors, curators, &c., to deposit funds iu their hands iu one of the hanks allowing interest on deposits, is not unconstitutional; and such fiduciaries are not excused from the penalty imposed by the law, upon the ground that there were no banks whichpaid interest on deposits.
    APPEAL from the First District Court of New Orleans, Larue, J.

      W. Ii. Hunt, for appellees.

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

Preston, J.

Salvador Christy departed this life iu the city of New Orleans on the 2d of February, 1850, and Manuel Morenatti was appointed.curator of his vacant succession. On the 18th oí' March, 1850, ho rendered a provisional tableau, and asked authority to pay all debts presented against the succession. It was homologated on the 10th of April, 1850, and he was authorized to pay the debts. There was abalauco of eight hundred and forty-eight dollars and twenty-two cents iu his hands after payment of the debts. There were two lots bolonging to the succession, which he caused to be sold ; and on the 13th of December, 1850, rendered his final account, showing a balance of $948 40, belonging to the succession. About this time the heirs of the deceased appeared, by their attorney in fact, wore recognized as such by judgment of the court, and made opposition to many of the items in the final account. It was homologated as far as not opposed, and the heirs took a rule on the curator to show cause why he should not pay over to them the balance admitted to be in his hands, with twenty per cent interest from the date of the homologation of his accounts, in pursuance of the third section of the act approved the 13th of March, 1837, relative to the settlement of successions. Thereupon the curator deposited the balance in his hands with the clerk of the court. After exceptions and answer to the rule and evidence, the court made it absolute, and the curator has appealed.

To the rule, the curator answered that the law of 1837, on which the heirs rely, is unconstitutional and cannot be enforced against him, because the Legislature could not direct that property belonging to absent persons should be put in jeopardy, by placing the same in institutions which became bankrupt only a few months after the passing of the law; which is a matter of public notoriety. The objection seems to be rather to the expediency than to the constitutionalty of the law. At the time of its passage, deposits in the banks were considered perfectly safe, and notwithstanding their subsequent embarrassments, the Legislature has never repealed the law; and at the present time there are chartered banks in our city, in which deposits may be made with perfect safety.

The Legislature deemed, and still consider, as they have not repealed .the law, that money belonging to estates should be deposited in our chartered banks for the security of the heirs and creditors; and the legislative will must prevail until changed. It is not for executors, administrators and others acting in a fiduciary capacity to complain, as they are not obliged to accept those trusts, and at all events would be exonerated from personal responsibility by complying with the requisitions of law. One object of the law was to prevent the eagerness and litigiousness with which those trusts were sought; another to insure prompt settlements with heirs and creditors, which were protracted by interminable litigation, while the fiduciary had the temptation of using the money as his own. The law has had a most salutary effect, in these respects, and commands the favor rather than the reluctant aid of the court in carrying it into effect. And we do not consider twenty per cent interest on the amount in his hands a severe or rigorous penalty upon an administrator for the violation of the oath he takes in accepting his trust.

It is urged, that the curator is not liable for the interest, because the statute requires the deposit in a bank paying interest on deposits, since it has not been shown in this case that there is such a bank in the city. The object of the Legislature in this requisition was to enable the estate to realize interest, if possible ; and if there be no such bank, the curator would be exempt from special damage on account of the loss of the interest. But the great object was to insure the safety of the funds by their deposit in a bank. That is the essenlial requirement of the law. The deposit in an interest paying bank, is but an incidental requisition of the law.

It is urged, and possibly there is a small error in the time for which the interest on about a hundred dollars is calculated, but the curator has not made it clear to this court, and no doubt might have had it corrected by pointing out the error clearly to the district court, if it exists.

There is no law authorizing the deposit of the funds of the estate in the hands of the clerk of the court, but it was done in violation of law.

The heirs claim damages for a vexatious appeal; we cannot say the appellant did not expect some change in the judgment.

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


author: Preston, J. Rost, J. Preston, J.

text:
    Louis Favrot v. Alzire Allain et al.
    The Union Bank held a mortgage and pledge upon a plantation and the crops, to secure the amount due on a loan on a pledge of stock, which was also secured by a mortgage on the plantation. A judgment creditor caused the sale of the plantation, and became the purchaser, retaining in her hands the amount due to the Union Bank. Another creditor, on a judicial mortgage, claimed the proceeds retained by the purchaserfor the Union Bank. It appearingfrom the evidence that the Union Bank bad received a portion of the crops pledged to it, Held: that the bank was bound to apply the proceeds to the debt; and the amount thus received was to be deducted from the amount retained, and applied to the payment of the judicial mortgage, further, that the stock of the bank should be sold, and the proceeds also applied to the payment of the debt due to the bank; and that the surplus thus left in the hands of the purchaser should be applied to the judicial mortgage.
    APPEAL from the District Court of West Baton Rouge. Burle, J.

      J. M. Elam, for plaintiff.

      A Pilot, for defendants.
   The judgment of the court, (Eustis, C. J», recusing himself on account of relationship,) was pronounced by

Preston, J.

On the 10th of October, 1846, Mrs. Duhroca obtained a judgment, before the District Court of the parish of West Baton Rouge, of separation of property from her husband, Valentine Duhroca, and for $29,800, with interest ; being the amount of her dotal and paraphernal property received by him during their marriage. A legal mortgage was also decreed in her favor, on all her husband’s property, from the date of their marriage, which took place in the parish of West Baton Rouge, on the 10th of April, 1826.

On the 26th of October, 1846, she placed in the hands of the sheriff of the parish, an execution, by virtue of which, on the 4th of November, he seized the plantation of the defendant, with the buildings and improvements thereon ; also, fifty-seven slaves, with all the stock and agricultural implements; and, also, his household and kitchen furniture ; and advertised and sold the whole in block, on the 5th of December, 1846. The property was appraised in block, at $46,925, and was sold to Mrs. Duhroca for $51,619.

The sheriff credited the defendant with the amount of the sale, $51,619 ; and debited it with the plaintiff’s judgment and interest, $29,911 75 ; also, with a special mortgage in favor of A. Doussan, with interest to the 5th of December, 1846, the day of sale, $12,577 50 ; also, with the amount, with interest, of a special mortgage and pledge in favor of the Union Bank, $8,780; and the costs, $350. The amount of the sale, $51,619.

Louis Favrot had obtained judgment against the defendant for $7087 50, with interest, at 8 per cent, from the 21st of June, 1844 ; had duly recorded it in 1845 ; issued execution before Mrs. Duhroca, and seized and advertised for sale the same property, at the same time. His execution was enjoined, on the ground that it had been issued in the English language alone, the French being his mother tongue.

He contends that the proceeds of the sale under Mrs. Duhroca’s execution, having been left in her hands to satisfy her claim and other-mortgages, he is entitled to the satisfaction of his judgment and judicial mortgage out of the same. He alleges, that Mrs. Duhrocca obtained judgment against her husband, for $7000 more than was due to her, and that this sum should be paid over to him. She offered in this suit, oral and documentary evidence in support of the reality of her claims, and has established satisfactorily, that there was due to her the amount for which she obtained judgment against her husband.

The plaintiff next contends, that he is entitled to be paid in preference to the Union Bank ; for which institution the sum of $8780 ofthe price of the adjudication to Mrs. Duhroca, was left in her hands. He shows that by a notarial act of pledge and mortgage, made on the 6th of October, 1846, Duhroca and wife, in pursuance of the 4th section of an act to facilitate the liquidation of the property banks chartered in this State, approved the 5th fo April, 1843, granted in favor of the Union Bank a privilege and mortgage on the future crops, revenues and resources of the property and slaves by them mortgaged to secure their stock loans, to an amount sufficient to extinguish their indebtedness : the interest and installments to be paid annually, according to the charter of the bank. He contends that Mrs. Duhroca, having purchased the property, holds it subject to these annual payments out of the crops, according to her contract. It is a sufficient answer to say, that the property was not sold upon these terms, but for cash.

But it appears by the sheriff’s return, that the crop of 1846 was neither seized, appraised nor sold by the sheriff, under Mrs. Duhroca’s execution. And it further appears, by the testimony of the cashier of the bank, that the indebtedness of Duhroca on his stock loan, at the date of the sale, was $7843 70; that there was paid on the 10th day of December, 1846, five days after the sale, the arrearages of installments and interest, $1181 20; leaving due, $6662 50.

We have no, doubt that the payment was made, as it should have been, out of the crop of 1846, which was neither seized nor sold by the sheriff. The privilege given to the Union Bank by the pledge imposed on that corporation, the obligation to pay itself out of the thing pledged; and if it neglected to secure the payment out of the crops, it could not be taken out of the land and negroes, to the prejudice of a creditor having a legal mortgage upon them. Although the produce of but a part of the plantation and slaves was pledged to the bank, there is no doubt the proportion pledged exceeded the above payment. The difference between the sum reserved for the Union Bank, $8780, and the balance due to the bank, $6662 50, amounting to $2117 50, should be paid over with 8 per cent interest, from the 5th of December, 1846, to the plaintiff.

It is not necessary, as contended, to make the Union Bank a party in order to decree to the plaintiff any part of the sum retained for the bank; as it further appears by the testimony of the cashier, that the $8780 was not in point of fact paid to the bank, but remained in the hands of Mrs. Dubroca; five or six thousand dollars being still due in 1849, when he gave his testimony. She cannot retain for the bank that which it clearly appears was paid from another source than the adjudication to her. So the Union Bank stock which was pledged to the bank, should have been sold with the land and slaves to pay the debt for which it was pledged, and thereby would have increased the proceeds of the sale to the amount of its value, which increase would have gone to the plaintiff. We doubt whether the land and slaves mortgaged to secure the stock could, under the charter of the bank, be sold under execution, separate from the stock. But whether or not, equity will not allow the defendants to make that separation to the prejudice of another judgment creditor. “ Sic utere iuo ul non Icedas alienum,’’ is an immemorial maxim of equity. This equity would have compelled the Union Bank, in the exercise of legal measures, to realize the proceeds of the bank stock, and appropriate it to the payment of their debt, and so far have enabled Favrot to realize his judgment nut of the lands and slaves subject to his judicial mortgage, to the extent of those proceeds. Mrs. Dubroca, having sold the land and slaves subject to the claims of the bank, and undertaken to pay the bank out of the price for which it was adjudicated to her, cannot do that which the bank could not do, because injurious to Favrot, without benefittingthe bank. She cannot pay the bank out of the proceeds of property subject to Favrot’s judicial mortgage, while the bank has in its possession 205 shares of its stock pledged by an act in which she joined to secure the bank debt. If she had paid the bank, shp would have been subrogated to its pledge ; but as she has not, as appears by the evidence of the cashier, no other'creditor of Dubroca can sell the stock to the prejudice of the pledge. And yet, as it is now valuable, neither she nor the bank have the right to prevent its sale to the prejudice of Favrot.

The cause should be remanded, to ascertain the value of the stock on the day of the sheriff’s sale, and to reduce the amount to be retained for the Union Bank by the amount of that value ; and if need be, to make the Union Bank a party, and to cause the stock to be sold ; ample security to be given according to the charter of the bank, and the proceeds to be applied to the debt due the bank ; and so far to increase the amount to be received out of the proceeds of the sheriff’s sale by the plaintiff.

The judgment of the district court is therefore reversed ; and it is decreed, that the defendant, Alzire Dubroca, do pay to the plaintiff the sum of two thousand one hundred and seventeen dollars, fifty cents, with eight per cent interest, from the 5th of December, 1846, with costs, in both courts. And it is further ordered, that the case be remanded for further proceedings with the regard to the two hundred and five shares of Union Bank stock, according to the views herein expressed.

Rost, J.

dissenting. The Union Bank stock was not sold with the plantation and slaves upon which it rests: and so far as the record informs us, it is still the property of Dubroca, and the common pledge of his creditors, after satisfying the debt for which it is specially pledged.

I do. not perceive how any action of the court, in this case, can give the plaintiff a preference on that stock adversely to the other creditors of Dubroca. It appears to me that his only remedy is to pay the debt of the defendant to the Union Bank : he would thereby be subrogated to the rights of the bank in the stock, and entitled, under his judicial mortgage, to recover the sum retained by the defendant to pay that institution.

I think that the judgment of the district court, in relation to the stock, should be affirmed.

Same Case — On a Re-hearing.

THE judgment of the court, on a re-hearing, was pronounced by

Preston, J.

It having been stated in argument, and not denied that the two hundred and five shares of Union Bank stock has been sold, and that the plaintiff became the purchaser, it is unnecessary to remand the cause, for the purpose of causing it to be sold.

The judgment of the district court is therefore reversed; and the court proceeding to render such judgment as in th’eir opinion ought to have been rendered, decrees that the sheriff’s sale to Madam Dubroca, of the plantation and slaves, be maintained ; that the amount retained for the Union Bank, by her, be reduced from eight thousand seven hundred and seventy dollars, to six thousand six hundred and sixty-two dollars, fifty cents; and that the defendant, Alzire Dubroca, do pay to the plaintiff the sum of two thousand one hundred and seventeen dollars fifty cents, with 8 per cent interest, from 5th day of December, 1846, until paid. And, further, that FamoL recover, by preference,'the proceeds of the sale of the two hundred and five shares of Union Bank stock, with 8 per cent interest, from the day of the sale of said stock, only in case the plaintiff was obliged to pay the money; and the defendant is condemned to pay the costs in both courts.


text:
    J. L. Riddell v. Jesse Smith.
    Where a tutor of a minor employs an attorney at law whose services were rendered prim cipally for the tutor himself, he has no right to charge the same to the minor. If the services so rendered were in part chargeable to the minor, but for a less amount than three hundred dollars, the tutor cannot give jurisdiction to the Supreme Court by mixing up that claim with a claim for a reimbursement of the sum paid for the services rendered to himself.

      APPEAL from the Second District Court of New Orleans, Lea, J.

      T. A. Bartlette, for plaintiff.

      E. Briggs, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff claims three hundred dollars and costs, this being the amount of a judgment rendered against him in favor of T. Ef. Howard, Esq., for professional services as attorney at law, on the ground that those services were rendered for the benefit of the defendant, whose tutor the plaintiff then was.

The defendant alleges, and it was held by the district court, that the services of Mr. Howard, were rendered to the plaintiff himself, and that he alone was liable for them. He has appealed.

Mr. Bartlette was the regular counsel who attended to the minor’s interest, and he received for it a fee of $500, which is a very ample compensation for any services he is shown to have rendered.

In one instance, Mr. Howard signed a petition in behalf of the minor jointly with Mr. Bartlette, and in another they took a rule together against his former tutor. But no further steps appear to have been taken either on the petition or the rule; and all the other services for which Mr. Howard has obtained compensation were rendered to the plaintiff personally.

We are not satisfied of the necessity or propriety of subjecting the minor to the expense of two counsels in proceedings simple in themselves, and which do not appear to have led to any result; but if we should be in error in this, the value of the services rendered is not shown, and must be a sum far below our jurisdiction. The plaintiff cannot be permitted to evade the constitutional provision which limits that jurisdiction, by mixing up claims against himself with those he may have against the defendant.

The appeal is therefore dismissed, with costs.


author: Slideix, J.

text:
    T. B. Graham v. General Mutual Insurance Company.
    This case was submitted to a jury without argument of counsel. Upon the jury returning and requesting argument, it was agreed the case should be argued on the following morning. On that morning, one of the counsel of record for the plaintiff fell sick. Another counsel for the plaintiff was present, who moved the postponement of the trial on account of the absence of his associate counsel. It being the last day of the jury term, the court refused the postponement and the case was left with the jury. Held: There was no error in the refusal of the court to postpone the trial on account of the absence of one counsel, when another, on the same side, was present.
    Where a party effecting an insurance upon a vessel had heard a rumor that the vessel was lost, he is bound to communicate the rumor to the insurance office, although he may have had doubts as to the truth of the report.
    APPEAL from the Fourth District Court of New Orleans, Slrawbridge, J.

      Winthrop, for plaintiff.

      E. Briggs, for defendants.
   The judgment of the court was pronounced by

Slideix, J.

This action is upon a policy of insurance for $4300 on merchandise per fiatboat, Williams, master, from Smithland to Natchez. The defendants pleaded the general issue, misrepresentation and concealment. The cause was tided before a jury, who rendered a verdict in favor of the defendant. The plaintiff moved for a new trial, which was refused by the district judge, and the plaintiff appealed.

The counsel for the plaintiff has not entered into argument here upon the evidence in the cause, but has rested upon the alleged right to have the cause remanded upon two of the grounds urged in the court below for a new trial, to wit: “ That evidence was allowed to go to the jury which had been rejected by the court; that the cause was improperly allowed to go to the jury without argument, when the jury having returned into court after the cause had been submitted, requested argument, and when the counsel had agreed to argue the cause under the direction of the court on the following morning, the counsel for plaintiff having been in the mean time taken sick and confined to his house, and the court having refused to allow the argument to be postponed, when application was duly made for that purpose.”

The counsel for the defendants assert, that the whole of the testimony was submitted, subject to the objections taken by plaintiff as to that part of it which was hearsay; and that the want of form as to the execution of the commission was waived on both sides, upon the defendants agreeing to admit in evidence an unsworn written statement of Shelmire, the deceased agent of the plaintiff.

It is to be regretted that counsel differ so materially in their recollection, and if there was an agreement, that it had not been reduced to writing. In the absence of any written agreement, we must look to the transcript alone to ascertain what evidence was before the jury.

It appears, from the statement of evidence made by the clerk at the trial, that the defendants introduced in evidence the return of a commission which contained, among other testimony, that of Gaw, Sparks and Baldwin. In overruling the application for a new trial, the district judge gave a written opinion. In this he states as follows : “ It is proper also to mention that the testimony of three witnesses, to wit, Gaw, Sparks and Baldwin, taken under a commission, and which have been rejected by the court, on the ground that their names had not been inserted in the commission, was allowed to go to the jury without any instructions from the court; [ in this the court had no agency, and had rejected their depositions; ] and that the hearsay testimony of other witnesses rejected by the court had also been allowed to go to the jury under similar circumstances. The court directed the jury that the hearsay testimony must be disregarded by them — all the papers in the cause having been indiscriminately bundled together by the clerk and placed in the hands of the foreman.” It will be observed, that the judge says the depositions wer-e allowed to go to the jury; and as he disclaims any responsibility upon that score, it may be inferred from the language used, that the plaintiff was aware of what took place, and made no objection to it. If we infer, from all the circumstances, that the plaintiff, after his objection to the admission of the testimony of the three witnesses had been sustained, subsequently waived it, the statement of evidence made by the clerk, whose duty it was to make it, and the statement of the judge will harmonize. Such probably was the real course of the trial.

The refusal of the court to keep the jury together, when the last day of the jury term had arrived, and order their attendance to hear argument at a future day, when he thought he would not be able to collect them again, was not erroneous. The parties had previously submitted the cause without argument. When the jury returned into court, one of the plaintiff’s counsel of record was present, and might have argued the case. The other counsel had been present with his associate during the trial, and was taken sick after the submission of the cause to the jury. Even on an application for a continuance before trial, a refusal of the judge below to postpone a trial on account of the absence of one counsel, where other counsel was present, would not be disturbed by this court.

The court had directed the jurors to disregard such portions of the depositions as were hearsay; and it is evident that the district judge was satisfied that the jury understood and followed his instructions. The only juror who was examined on the hearing of the motion for anew trial states, that his verdict was based upon the testimony of the two brothers Falls, to which there was no legal objection; that great weight was given to it by the other jurors; that he, himself, considered that no weight should be given to hearsay testimony, but was txnable to say whether his fellow-jurors so acted or not.

Looking therefore at the mere question of alleged irregularity, we would not be disposed to say that a case is presented which would authorize us to disregard the opinion of the district judge, and grant a new trial, which he refused.

But without putting the matter upon this ground, there is another and broader ground upon which the x'efusal of a new trial should be approved by this court. It is, that if the testiixxony of the three witnesses, which was said to have gone before the jury irregularly, and all the testimony objectionable as hearsay be stricken from the cause, the remaining evidence is abundantly sufficient to sustain the verdict, and satisfy the mind, beyond question, that the plaintiffs claim has no foundation in justice. We are inclined to think that, even in a court of common law, a new trial would not have been granted under such circumstances, if the whole testimony was in writing, and could be fully reviewed on the motion for a new trial. But we have no hesitation'in saying that it ought to be refused here, considering our system of practice and the jurisdiction of this court. As was observed in Flower v. Jones, 7 N. S. 148, we sit not merely as a court for the correction of errors in law, but with the power to revise the conclusion drawn by the inferior tribunal from the facts. Here the whole of the evidence comes up, and is spread before us for our judgment. We have the means of judging whether any misdirection or irregularity on the trial of a cause could have embarrassed the jury in their search for the truth; and whether or not substantial justice has clearly been done. We have even the power to set aside a verdict, and give such judgment as in our opinion should have been given in the court below. We, therefore, will briefly consider that portion of the evidence which is entirely untouched by the above mentioned objections, laying the residue out of view.

The following facts are established beyond dispute: Two flatboats laden with merchandise belonging to the plaintiff, one of which was commanded by Captain Williams, left port in Indiana in company 0n the 5th February, 1846. On the 16th February, the one commanded by Williams struck on a snag in the Mississippi river, near Island 13, and was wrecked. A portion of the cargo was saved. Some of it was sold in a damaged condition along the river by the plaintiff’s agent; and a portion, by various conveyances, reached New Orleans, and was received on the 16th March by the plaintiff’s factors, Shelmire S¡- Co. On the 10th March, Shelmire (the plaintiffhinxselfbeingalsoin New Orleans) applied at one or two New Orleans offices to obtain insurances on the cargoes of the flatboats. The offices had demanded twenty or twenty-five per cent premium. Graham directed Shelmire not to give any such premium. He then applied to Adams, the agent of another insurance company.. Adams made inquiries of Shelmire, and from the representations made to him rejected the xlsk, and told him that he did not think he could obtain insurance at any office in the city ixpon like communications. On the same day, being the 10th of March, Shelmire obtained the policy from the defendants at a premium of two and a half per cent. The other flatboat, whose cargo was insured at the same time in the same office, , , __ . „ , , , reached Natchez m safety on the 10th March.

The following is a summary of the testimony of Cregier, Wilson, Teaford and Earhart, the plaidtiff’s own witnesses. They were examined by him under commission; and their testimony was offered by himself at the trial. In the early part of March, 1846, the plaintiff came to Natchez. He was there not less than six or more than ten days. His object was to await there the arrival of his ilatboats. On the second day after his arrival, he expressed anxiety to one of those persons, Earhart, about the detention of his boats, and said he thought they had time to reach Natchez. Earhart asked him if he was insured; he said he was not, and had not been in the habit of insuring his boats; that he had confidence in the men, and did not apprehend any danger, unless they had encountered bad weather. That he had never lost a boat. In that, or a subsequent conversation, the witness advised him to insure ; upon which he inquired where the insurance office at Natchez was to be found and about the rates.

Wilson testified that on the Saturday previous to Graham’s departure for New Orleans, (which took place on Monday, the 9th March, at 2 A. M.) he had a conversation with the plaintiff, at the Natchez landing, relative to his flatboats which he said he had been expecting at Natchez, and thought they had been out much longer than they ought to have been. He expressed an anxiety to get the boats insured, and asked the witness if he would go with him to the insurance office at Natchez on the following Monday; which the witness said he would do.

Teaford testified that the plaintiff left Natchez in the steamer Jamestown, at 2 A. M. on Monday, the 9th March, 1846, and that some few days before his departure he appeared, from his conversation, to consider his boats behind their time. The witness heard at Natchez of the loss of the flatboat, on the morning of Monday, the 9th of March, between the hours of seven and ten.

Cregier testified that he heard the plaintiff sa.y in conversation at Natchez, a day or two before his departure for New Orleans, that he felt some uneasiness about his boats, which he thought had been out an unreasonable length of time.

A. Falls, a witness for the defendants, testified that on or about the 8th of March, and as he thinks on Sunday, he met the plaintiff on the wharf at Natchez, who said he had heard there was a flatboat lost on the river. Witness told him he had heard of it, and that it was supposed to be Graham’s boat; that it was stove at some place near Island 13, on the Mississippi. The witness told Graham that he had his information from one Brown, who was steersman of a boat from Illinois, and suggested to Graham to go to the witness’ boat then at the Natchez landing, and see the witness’ brother, who could probably give him better information.

J. M. Falls, also a witness for defendants, testified that the plaintiff came on board of a flatboat owned by himself and his brother, at Natchez, on or about the 8th March, 1846, and inquired of the witness if he had heard of the loss of a boat, and whose it was. The witness told him he had heard from Brown, the steersman of a boat from Illinois, that there was a boat from Washington, Indiana, at Island No. 13; and that Brown, upon being asked by him if it was Graham and Hyatt’s boat, said it was Graham’s boat. Graham said that Hyatt had a boat on the river that was loaded with pork and wheat, and he did not think that the wrecked boat was his, but entertained a hope that it was not his.

There is other testimony of like tendency, but which we deem it unnecessary 1° notice in detail.

We consider the evidence as establishing conclusively not only the belief of Graham that the boat was out of time, but that he had reasonable ground to believe that it was wrecked, when he came to New Orleans and directed his agent to effect insurance.

There is in the transcript a written statement, not under oath, prepared by Shelmire, which he handed to plaintiff’s counsel for his guidance, and as the testimony which he would give at the trial. Its effect must have been gravely impaired by the opposing testimony of another witness, the agent of the defendants. Shelmire, in his statement, says that he informed this agent that the boats had been out since the 13th of February from Smithland. The agent of the underwriters testifies that that fact was not disclosed, and that from the statements of Shelmire, he believed the boat was not out of time. The fact that the defendants took the risk at a premium of two and a half per cent, is a very strong circumstances in corroboration of the agent’s testimony.

But, at any rate, Shelmire does not say that the plaintiff had told him the rumour of the boat’s loss, and that he communicated that fact to the underwriter.

From the above evidence it is clear, that there was, on the part of the plaintiff, a concealment of material facts; and consequently the policy must be declared void. See DeCosta v. Scandret, 2 P. Williams, 170. 2 Emerigon, 124. Lynch v. Durnsford, 14 East, 494. 2 Duer, 391, 410. 3 Kent, 285. Watson v. Delafield, 2 Caines, 224. 1 Arnould, 537. McClanahan v. Universal Insurance Company, 1 Peters, 170.

But even if the plaintiff really entertained doubts whether the wreck reported was that of his own boat, it was still his duty to disclose the rumor to his agent, and direct him to communicate it to the underwriter. Marine insurance is a contract uberrima fides. “ It abhors deceit, dissimulation, evasion. It condemns alike the suppression of truth, and the assertion of falsehood.” Hence it is well settled that the assured is bound to disclose all the intelligence which he has received that relates to facts which are material to the risk, and which would reasonably influence the judgment of the underwriter, although the intelligence may be of a doubtful character.

Judgment affirmed, with costs.


text:
    Thomas L. Huff v. Euclid Borland.
    Property purchased by the husband in Louisiana before a married couple came here to live, is not community property, although it was the intention of the parties to remove to Louisiana. O. C. 2370.
    Property acquired by the husband after the death of his wife, does not belong to the community.
    APPEAL from the District Court of Plaquemine, Rousseau, J. J. Q.

      Bradford, for plaintiff.

      Benjamin <$• Micou, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The defendant being a married man, came to this State, from the State of Mississippi, in November, 1846, and purchased a tract of land. He purchased two other tracts; one ou the 26th of January, and one on the 25th of March, 1850.

His wife died on the 15th of January, 1850, leaving as her heirs, two minor children, of whom the plaintiff is the under-tutor, and the defendant the father and tutor.

The defendant, in making the inventory of the succession of his wife, represented the lands purchased as above mentioned as his separate property. The under-tutor of his children contends, and has brought this suit to establish that these lands belong to the community of acquets, which existed between the defendant and liis late wife.

The two last mentioned tracts were purchased after her death ; and it is clear, therefore, that the district judge decided correctly that they do not belong to the communily, having been acquired after it ceased to exist.

In purchasing the first tract in November, 1846, the defendant described himself as a resident of Holly Springs, Marshall county, State of Mississippi. And, although it is admitted in argument that he purchased with the intention of removing to Louisiana, yet, in point of fact, he did not remove with his wife and family to this State until January, 1847.

Now the words of article 2370, of the code are very explicit, that, “ A marriage contracted out of this State between persons who afterwards come here to live, is also subjected to the community of acquets, with respect to such property as is acquired after their arrival. These terms exclude property which was acquired before the arrival of either husband or wife for the purpose of residence in this State.

The reasoning of the court in the case of Saul v. His Creditors, is greatly relied upon, to show that the property first purchased belongs to the community of acquets. The facts in that case occurred before the introduction of the above quoted article into our jurisprudence; still, on examining the facts in that case, and the decision of the court, there is nothing in either which conflicts with our interpretation of this article of the code. It conflicts, perhaps, with the reasoning of the court in that case, which, it is proper to observe, has not so generally commanded the approbation of the bar and the bench as the decision itself.

Be that as it may, the letter of the present code forbids us to consider property purchased before the arrival of the spouses in the State, as community property. And we think good policy requires the restriction of community property within the very letter of the law. In this very case the defendant might find it greatly for the advantage of himself and children, to dispose of the property in controversy, and yet be greatly embarrassed in doing so, if it belonged to a community of acquets, instead of belonging to him separately.

We are of opinion that the judgment of the district court should be reversed; and it is reversed, and decreed, that the property described in the petition be decreed to be the separate property of the defendant, and that the succession of the deceased wife of the defendant pay the costs in both courts.


author: Eustis, C. J.

text:
    R. F. Nichols & Co. v. George A. Botts et al.
    Where the seller remains in possession of slaves sold, and a creditor attacks the sale upon the ground of simulation, the burthen of proof to show the reality and good faith of the sale is thrown upon the purchaser.

      APPEAL from the Fifth District Court of New Orleans, Buchanan, J. M.

      M. Cohen and Labatt and J. R. Grymes, for appellants.

      Roselius and Goold, for appellees.
   The judgment of the court was pronounced by

Eustis, C. J.

Certain slaves were seized under a writ of attachment against JohnS. Caldwell, an absconding debtor, issued at the instance of one of his creditors, the present defendant. They were claimed by the plaintiffs, as their property, by virtue of an act of sale from Caldwell to them. On this issue there was judgment in the court of the first instance for the defendant; and the plaintiff has appealed.

The act of sale, under which the plaintiffs claim to own the slaves, was passed before a notary public in New Orleans, on the 21st of November, 1849, and was recorded in the office of the register of conveyances, on the 15th of December of that year. It purports to convey the slaves to the plaintiffs for the sum of $3500 to him, the said Caldwell, in hand well and truly paid by the said Nichols and his copartner: the receipt of which is thereby acknowledged, as is also the delivery and possession of said slaves. The slaves were seized on the 1st of June, 1850, at the Phoenix House on St. Charles street, a public house kept by Caldwell. Turnbull, a witness for the plaintiffs, who was in the employment of Caldwell, his head bar-keeper, and who had, during two occasions of Caldwell’s absence to the North, been left in charge of his business, states that he never knew of the sale of the slaves to Nichols 8f Co., and that they remained in Caldwell’s possession up to the time of the attachment; that he never heard a word of Caldwell’s having the slaves of Nichols until Caldwell was going away. Caldwell then told him to give Nichols $100 a month for the use of the slaves : this was in Lafayette square, about half an hour before Caldwell left.

The evidence of the tax collector is to the effect, that, in February or March, 1850, he applied to Caldwell for payment of his tax on slaves. Caldwell said that tile slaves in his house were hired from Nichols : he presented the bill corrected to Nichols, who paid it. Turnbull also states, that he had access to the books of Caldwell, and had he (Caldwell) been in the habit of paying hire for the negroes, the witness would have known it.

We think that the district judge was fully justified by the evidence, in considering that Caldwell remained in the possession of the slaves after the sale. The possession was public and uninterrupted. The single fact to the contrary, we think, is by itself insufficient to impair it.

The code says : “ In all cases, where the thingsold remains in the possession of the seller because he has reserved to himself the usufruct, or retains possession by a precarious title, there is reason to presumo that the sale is simulated; and with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale.” Art. 2456.

The answer of the defendant to the plaintiffs’ petition asserting the right of property in the slaves, expressly and formally pleaded that the act of sale under which he claimed was simulated and fraudulent, and without consideration ; and charged that the slaves had never been delivered by the vender to the plaintiffs.

The plaintiffs rely upon the act of sale alone, and the testimony which we have noted. Even the fact of hiring the slaves by Caldwell is not proved. No price for the hire was ever agreed upon, or any amount ever paid for their services. The declaration of the debtor at the time of his absconding, indefinite as it is, is of no aid to the plaintiffs’ case. The burthen of proof the law imposed on them to establish was, the precarious title under which Caldwell retained the slaves, their own and Caldwell’s good faith, and the reality of the sale.

After a full trial on these issues, we do not think it a propel' case for the allowance of a non-suit in this court. The party has had ample opportunity to prove his title in the coprt of the first instance, and we find no reason to question the correctness of its judgment.

The judgment of the district courtis therefore affirmed, with costs.


text:
    J. B. Rathbone & Co. v. Ship London and Owners.
    Where the property of an absent defendant has been attached, and the defendant appears and bonds the property, giving security to pay whatever judgment may be rendered against him, the defendant thereby becomes liable to have a personal judgment rendered against him, although he may have never been cited.
    The words irith privilege upon the property attached, commonly used in judgments in suits by attachment, do not have the effect oí limiting the judgment to one m rem, where the judgment in other respects is personal.
    Suits to annul sales on account of fraudulent preferences of one creditor over others must be brought within twelve months from the date of the sale.
    Where a defendant holds money which is claimed by other persons than the plaintiff, his proper course is to pay the money into court; and not to enjoin the plaintiff; and thereby delay the payment oí the money. If he does so, he will be liable to the plaintiff for damages in case the injunction be dissolved.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Benjamin and Micou, for plaintiffs.

      A. if. Josephs, for defendants.
    22. L. Goold, for intervenors.
   The judgment of the court was pronounced by

Eustis, C. J.

On the 14th of September, 1846, J. B. Rathbone Sf Co., of New Orleans, brought suit against the captain and owners of the ship London for damages on account of the detention of merchandise on a voyage between Boston and this port. The suit was commenced by attachment, and the ship was taken possession of under the process of the court, and afterwards released on the bond given by the captain in behalf of himself and the owners, with Green and Brother, of New Orleans, as their sureties. On the 6th of November ensuing, A. K. Josephs, Esq., was appointed by the court to represent the absent defendants. An answer was filed by Jlir. Josephs, for the Messrs. Neal, the owners, and Lovett, the captain of the London. It is styled, the answer of the defendants; and it is signed, Josephs, for defendants. The suit was very much contested, and judgment was not rendered until January, 1849. It was in favor of the plaintiffs, and was affirmed with a slight modification in this court at the November term, then next ensuing. Yide Rathbone Sf Co. v. Neal et al. 4th Ann. 5C3. Pendente lite, the debt of Rathbone Co. was transferred to Read and Chadwick, of Boston. An order of the court of the first instance was made, subrogating them to Rathbone 8f Co.'s right, and authorizing the suit to be prosecuted for their benefit.

An execution was issued on this judgment, and the ship Columbia, then in port, belonging to two of the defendants, was seized under it. They obtained an injunction against the proceedings under the execution; and the purport of their suit may be stated to be, to relieve and exempt the ship Columbia from seizure, and to obtain protection against certain claims of certain judgment creditors of the original plaintiffs, Rathbone Sf Co., which had been made upon the debt due by them by way of seizure, &c. The injunction was granted after notice by the judge of the Fourth District Court of New Orleans, before whom all the proceedings had been conducted. The case was determined by a judgment of the court dissolving the injunction and condemning the plaintiffs in injunction, and Geo. Green and Brother, as their sureties, in solido, to pay to the defendants, Read and Chadwick, three per cent additional interest on the amount of their judgment, to wit, $3262, with ten per cent damages on said sum, and costs; the claims of the judgment creditors of Rathbone Sf Co., who were also parties to the suit, were dismissed with costs. From this judgment the plaintiffs in injunction and the creditors have appealed.

The first question to be considered is, whether the ship Columbia was liable to seizure, under the execution issued on the judgment in the original suit.

It was held by the district judge, that the judgment was personal against all the defendants in solido, and not in ran exclusively, or limited to the object attached. The antagonist proposition of the counsel of the appellees is, that his clients were only in court by the attachment of the London, no citation having been served on them, and they being absentees and not within the jurisdiction of the court.

By the judgment, the plaintiffs, Rathbone 8f Co., recovered, for the use of Read and Chadwick, from the defendants, Nathan W. Neal, David A. Neal, William H, Neal and J. Lovett, in solido, the sum of $3622 74, with interest from date, and costs, with the privilege of attaching creditors upon the property attached in the suit, &c. A remittitur was entered for $360 by the plaintiff, and the judgment affirmed afterwards by this court. This judgment, by its terms, is personal. Lovelt was the master of the ship London, and signed the bond of the ship himself. The last part of the judgment, according the privilege, does not at all exclude or impair the personality of the judgment. It is the usual formula of judgments in cases of attachment, and is probably used for more strongly connecting the judgment with the recourse on the attachment bond.

The defendants bonded the ship and released her from the attachment, under the 259th article of the Code of Practice, which provides that the defendant, if he appear either in person or by his atrorney, may, moreover, in every stage of the suit, have the attachment set aside by delivering to the sheriff his obligation for the sum, exceeding by one-half that which is demanded, with the surety of a good and solvent person that he will satisfy such judgment as may be rendered against him in the suit pending.

The condition on which the property attached is released and delivered to the 'defendant is, that he should appear in pet son or by attorney; thus rendering him*sel;'íiablé to a judgment on his default to answer; and that he should give security judicdlutn solví. We do not understand that the constitutionality of this article is 'drawn'in question, or the power of the Legislature to enact it. It seems to us beymjd all question, that the purpose of the law was to give, in the case provided, to! the creditor a personal judgment against the debtor, which he was required to give security to abide by and perform. The words of the article are •free1 from any qualification or ambiguity, and leave room for no other interpretation.

The defendants in the present case fulfilled the conditions on which their property was released from attachment; they appeared by their attorney and pleaded to the merits of plaintiffs’ action without any exception or reservation. The authority of the attorney has not been questioned; on the contrary, it is asserted by himself, and the question has turned in argument on the effect of the judgment under our laws.

The case of Broughton v. King, 2d Ann. 571, has been relied upon in argumenü by the counsel of the appellants, to show that, under the decisions of this court in cases of attachment, no other property than that attached can be seized on execution, and that the judgments rendered in attachments are not personal, but in ran. This is true in cases in which the proceedings have been confined to the property attached exclusively : judgment is then rendered accordingly, and is in ran. In Broughton v. King there was no appearance by the defendant; no bonding of the property attached; judgment was rendered by default against King, the absentee. In cases where the parties stood as in the present ease, we believe the practice has been uniforn in this State in holding the judgments to be personal. The opinions expressed by way of argument and illustration, by Chief Justice Parsons, in the case of Bissel v. Briggs, 9th Mass. Rep. 469, have also been urged by counsel in support of his view ns to the effect of this judgment. In that case, there was an appearance and plea to the action by the judgment debtor. The question before us did not occur, and whatever deference we may have for the opinions expressed by that distinguished judge, they are not available to ns on the present occasion, and are addressed rather to the policy than the effect of the provisions of our code. Among the cases referred to by counsel, that of Paroling v. Bird’s Executors, 13 Johnson’s Rep. 192, is by far the strongest in favor of his doctrine. It turned upon the effect of a judgment under the attachment laws of Connecticut, on which an action was brought in New York. After a very thorough consideration of all the cases we have had an opportunity to examine, we do not find ourselves aided in the construction we are called upon to give to the articles of our code relating to attachments. If the party defendant elects to appear, give his bond judicatum, solvi, and defends the action without reservation, we think he becomes bound by á judgment rendered against him in personam.

For these reasons, we think the district judge did not err in holding the seizure of the ship Columbia, under the execution issued by the defendants in injunction, to be legal and valid, and in dissolving the injunction, so far as that execution is concerned.

The next question to be considered is, whether the injunction was rightfully dissolved, so far as it relates to the other subject of complaint set forth in the plaintiff’s petition, to wit, the seizures of the amount of the judgment at the instance of two of the creditors of Rathbone & Co., who are appellants, to wit, Parsons and Lawrence, and P. H. Fandervoort, of New York. These persons^ were made parties to the plaintiff’s suit in injunction, and in their jflSwera. asserted their right to the judgment debt, under seizures on executicmi^.fes exclusion of Read and Chadwick, the validity of whose assignment is contested on the ground of fraud, in giving an undue preference to the assignees fj'jYAi'AV other creditors of Rathbone Sf Co. We think this latter cause of actioli is prescribed by lapse of time, more than one year having elapsed since thettrarwfij-JJ'JJ, to Read and Chadwick, in 1847. It does not appear, that any attempt waStomde to defeat it for this cause until the answers of the appellants to the petition^ injunction, filed in February, 1850. The. inquiry is, then, limited to the rights of the creditors to this judgment debt, by virtue of their seizures, in opposition to those of Read and Chadwick under their assignment. The claim of Fandervoort we will proceed to examine; and our conclusions in relation to it will control that of the other appellants, Parsons and Lawrence, their seizure being long subsequent to that attempted to be made by Fandenoort. The transfer to Read and Chadwick bears date the 5th of February, 1847; and on the minutes of the court an order is entered on that day, subrogating Read and Chadwick to the rights of Ralhbone Co. as plaintiffs. The seizure at the instance of Vandervoort is not shown to have been made previous to this date. One of the defendants, interrogated as to tho time when he received a notice of the transfer to Read and Chadwick, and the seizures, states, that he received notice of the former before April, 1847. to the best of his recollection, and previous to the time he received the notice of the seizure. It appears to us, that as far as it was possible to make a delivery under the transfer, it was effected in this case by the subrogation in the records, and the notice to the debtor. Code, art. 2C12. Read and Chadwick were, as well as Vandervoort, creditors of Rathbone 8f Co.; and the assignment was for a valuable consideration. The time has elapsed during which its validity could bo contested on the ground of its giving a preference over other creditors. We therefore consider it as valid, and, by its priority in point of time, giving a superior right to the debt assigned over the seizing creditors. We have not scrutinized the validity of these seizures, on the various points raised in argument, because of the priority of the transfer to Read and Chadwick in point of time, which we consider conclusive against the seizing creditors.

It is a fact not altogether unworthy of remark, that the seizing creditors were entirely dormant, until aroused by the vigilance of the plaintiffs to an assertion of their rights. They permitted Read and Chadwick to prosecute their suit to judgment at their own trouble and expense, without any disturbance from their conflicting claims during the years of litigation through which it has been protracted.

The district judge has amerced the plaintiffs in damages, on account of the wrongful suing out of the injunction; and we do not think there is any sufficient reason for us to reduce them. The amount of the judgment ought to have been paid into court, if the plaintiffs were really in doubt as to whom the money rightfully belonged. They did not plead the pendency of the seizures in their suit, nor give an opportunity to their antagonists to relieve them from the seizures. We think they had no right thus to make use of the process of the court to delay and embarrass the satisfaction of the judgment, and to subject the defendants in the injunction to unnecessary expenses.

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


author: Ereston, J.

text:
    George Foster & Co. v. H. J. Baer et al.
    The payment of a sound price entitles the purchaser to a sound article.
    Where pork was purchased in New Orleans to he shipped to Boston, which on its arrival at the latter port was found damaged, and sold at aloss, it appearing from the evidence that it was damaged when sold in New Orleans, the purchaser is entitled to a deduction of tho price, the amount of which is to be ascertained by the difference between the price for which it was sold, and the market price of the article in New Orleans at the date of the original sale.
    To render inspectors of pork liable as warrantors, the purchaser ought to require a certificate from the inspectors of an inspection recently made. The usage of trade to regard a mere receipt of the inspector’s from their warehouse as equivalent to a certificate of inspection, is not sufficiently established to bind the inspectors as warrantors upon such a receipt.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, S.

      M. M- Cohen, for plaintiffs.

      J. Livingston and M. M. Reynolds, for defendants.
   The judgment of the court was pronounced by

Ereston, J.

On the lOtli of June, 1850, the plaintiffs purchased from the defendants five hundred barrels of pork. They paid a sound price, and were entitled to a sound article. One hundred and eighty barrels of the pork were received from the inspection store of Bozant Sy Co., on the 30th of June, and shipped to Boston, on 10th of July, 1850, consigned to Harrod Barling Sy Co. It arrived without accident, on 20th of August. Within two or three days after landing, the lot was partially examined, and found to be sour, rusty and bad.

The plaintiff's thereupon tendered it back to the defendants; and notified them, that in case of refusal to accept the tender, they would cause a careful and legal survey of the pork, and dispose of it to the best advantage of all concerned. The tender of the pork was not accepted, and they caused it to be inspected : it was found to be unsound, and they sold it at auction. There was a loss of upwards of two dollars a barrel; for which the plaintiff's bring suit.

A deputy of the Inspector General of Massachusetts, and who had been employed 'as an inspector twenty-five or thirty years, inspected the pork, and testifies that it was sour; which he attributes to the pickle, either by putting it in new pickle, or that which was not properly made; and that the damage must have occurred while it was at New Orleans.

Farrell, a dealer in the article in Boston, ■ examined about forty barrels indiscriminately, and found them in an unmerchantable and unsound state. He proves that the value of sound mess pork at the time was about eleven dollars; while this unsound lot sold at auction, under very favorable circumstances, for a little over nine.

Timing, also a dealer in'pork, examined the lot and found it sour and tainted : certainly not worth within two dollars a barrel of the value of a sound article. The contents of all the barrels were more or less sour and unsound; and it must have occurred before shipment, as it seemed uniform in all the barrels. He attributed the injury to the pickle, or else because the pork was not well packed.

The testimony of these witnesses, who saw and examined the pork, and were capable of judging of its quality, was the best testimony the nature of the case admitted, and admissable though excepted to on the ground that the Inspector General of Massachusetts should have been examined, who probably never saw the pork, nor was more capable of judging its quality than the witnesses examined.

The pork was not damaged or injured in taking it from the inspection house to the vessel, as proved by the shipping clerk. The vessel had a favorable voyage ; and the other cargo was of a character to forbid the idea that the injury occurred on shipboard. This uncontradicted testimony satisfies us that the pork was unsound when purchased, especially as no counteracting testimony has been offered by the defendants, except the slight presumption arising from the fact that no complaint was heard as to other pork sold to them at the same time, and subsequently disposed of by them.

The proceedings of the plaintiffs, under these circumstances, were fair and honorable; and the rate of loss on the pork was properly ascertained by the favorable sale of the unsound article. But this rate should be applied to the market price of sound pork in New Orleans, at the time of the sale to the defendants.

It is urged that they violated the laws of Louisiana, in shipping the pork without having caused it to be inspected within thirty days before the shipment. But the 1st section of the act of the 11th of March, 1848, to render inspection voluntary, was overlooked; which authorizes the owner of produce to ship it without inspection, any law to the contrary notwithstanding.

The defendants had a right to call their vendors in warranty, (Code of Practice, art. 379,) and did so ; but did not cause the suit to be put at issue between them by judgment by default or otherwise obtaining an answer, so that no judgment can be rendered against them. The cause must be remanded for further proceedings as to them.

The defendants also called the inspectors in warranty; and the facts of the case are so analogous to those in the case of Tardos against the same inspectors, 1 Ann. 199 and 200, that if the case could be finally disposed of, we should be inclined to render judgment against them.

But the defendants did not cause the pork to be inspected; and have no action against the inspectors, especially since inspections have been rendered voluntary by law. They can only recover from the inspectors, through their warrantors, Martin, Owen Sf Co., who had the pork inspected, but moi’e than two months before they sold it to the defendants.

In the case of Tardos, the plaintiff, in purchasing the pork, took a certificate of inspection. The only testimony in this case, is the inspectors’ receipt for the pork from their warehouse; which Mr. Wheeler, the broker, testifies, by the usages of trade, is proof of a good article, and that he paid the price of inspected pork on behalf of the defendants.

To charge the inspectors as warrantors, this usage and understanding should be more distinctly established. They might, if called upon for a certificate which would clearly render them liable as warrantors, have re-inspected the article, especially if inspected by them about four months before, as in this case ; or if the article was about to be exported, might have refused the certificate until the pork was re-inspected.

It is decreed that the judgment of the district court be reversed; and that the case be remanded for further proceedings, according to the views herein expressed; and that the appellee pay the costs of the appeal.


text:
    James Beck & Co. v. Thomas Brady et al.
    An attachment of property does not create such a privilege as authorizes the issuance of a writ of sequestration.
    In the article 724 of the Code of Practice, the expressions provisional seizure are erroneous ; they should have been ailach/ments.

    APPEAL from the Second District Court of New Orleans, Lea, J.

      Benjamin and Micou, for plaintiffs.

      C. Roselius, for defendants

   The judgment of the court was pronounced by

Preston, J.

The plaintiffs allege that they are creditors of Thomas Brady to a large amount; that he was lately in possession of an extensive and valuable stock of dry goods; that on the 31st of January last, he made a sale of his whole stock to H. E. Brown, for the purpose of defrauding them; and that Brady resides permanently out of the State. They, therefore, brought suit to revoke the sale from Brady to Brown, issued an attachment against the stock of goods, and also the notes given by Broum for it; and alleging further that they feared Brown would dispose of the stock of goods, during the pendency of the suit, to their prejudice, they obtained, on making affidavit to the truth of their allegations and giving bond, a writ of sequestration and seized the stock of goods.

The defendant, Brown, moved to dissolve the sequestration for the reason, that neither the petition nor the affidavit set forth any legal ground for a sequestration. After a bearing it was dissolved, and the plaintiffs have appealed.

It has been held by our courts, that the stringent process of sequestration is a remedy stricti juris, and can only be resorted to in cases authorized by the very letter of our law. The only clauses of the law authorizing it, which can possibly apply to this case, are in the 275lh article of the Code of Practice, and the acts of 1839, and the act of 1826 amending it.

The Code of Practice, as amended by the act of 1839, declares, “that when one sues for the possession of movable property, and fears that the party having possession of it, will conceal, part with or dispose of, or send the movable out of the jurisdiction of the court during the pendency of the suit,” it may be sequestered. But in this case the plaintiff must claim the property as owner. The plaintiffs in the present case do not pretend to sue as owners of the stock of goods sequestered.

The act of 1826 authorizes a sequestration in all cases where the plaintiff has a lien or privilege upon the property. The counsel of the plaintiffs admit, that they obtained the sequestration under this clause of the law alone; and contend that they acquired a lien and privilege upon the property sequestered by the attachment, and that this lien and privilege entitles them to the writ of sequestration.

The liens and privileges referred to by the acts of 1826, as the basis of a sequestration, are those given by the code and statutes, and enumerated under the title of privileges, or specially established by the laws. An attachment enables the creditor to obtain payment out of the property attached, in preference to others, not on the ground that he has acquired a lien upon it, but because he has first used the process of the court, to seize and put it into the possession of the sheriff for the purpose of obtaining his payment. The law and the courts will not, therefore, allow other ordinary creditors or other process to interfere with him. If, however, other creditors had a lien or privilege, they would take the proceeds of the property in preference to the attaching creditor, because the latter had no lien or privilege. So in case of insolvency, the attaching creditor who has not obtained judgment, is paid concurrently with other ordinary creditors, because he has no lien or privilege. The article 724 is express to that effect; the terms provisional seizure, in the article, being an erroneous translation and intended for attachment. It was so also expressly decided in the case of Fisher v. Vose, 3 R. R. 457, although a different view was entertained in a previous case. And so payment to the prejudice of an attachment or seizure is invalid, not because the seizing creditor has a lien, but because it interferes with the process of the court, and the legal proceedings of the creditor to enforce the payment of his claim. .Code, art. 2145.

The Code of Practice gives the same remedy of sequestration against real property under substantially the same circumstances which authorize the sequestration of movables. And yet the late Supreme Court held, in the case of Talamon et al. v. Olasse et als, under a state of facts similar to those in the present case, that a writ of sequestration could not issue. The plaintiffs brought a revocatory action, to subject property apparently sold by their debtor to the payment of their claims; made affidavit that they feared the defendant would, during the pendency of the suit, dispose of the property by mortgage or otherwise, and sequestered it. The court decided that the case did not come within any of the provisions of the Code of Practice. 4 R. R. 462. See also Shropshire v. Russell, 2d Ann. 962.

If the property was properly attached, the process is ample to secure the plaintiffs; if not, they do not pretend that the sequestration can be maintained.

The district judge observed, what is too true, that the creditor cannot prevent his debtor from squandering his property; Brady might squander it himself or place it in the possession of Brown for the same purpose, to the certain loss of the creditor who has no redress while it belongs to Brady; and, if sold to Brown, it is admitted, it can neither be attacked nor sequestered.

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


author: Slidell, J. Peeston, J.,

text:
    George W. Nichols v. Warren A. Grice.
    An order of seizure and sale on notos secured by mortgage should not be issued for the costs of protest, when there was no evidence that the notes had been protested.
    APPEAL from the District Court of Concordia, Farrar, J.

      Bullard and Frost, for plaintiff'.

      Stacy and Sparrow, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

There being no evidence of protest and costs of protests, they were improperly allowed. See Cummings v. Archinard, 1 Ann. 280.

It is therefore decreed, that the decree of seizure and sale be amended so as to exclude therefrom ten dollars costs of protest; and that so amended, said decree be affirmed; the costs of this appeal to be paid by the appellee.

Peeston, J.,

dissenting. In 18-10, Nancy Neale Jones donated to her daughter, Sarah A. Morris, the upper half of a cotton plantation situated on the river, in the parish of Concordia, and fifty slaves. In 1844, G. W. Nichols married her daughter, she being then the widow of a Mr. Grice. In 1845, she died without issue of the marriage, leaving a will, by which she gave the land and slaves to the plaintiff', her surviving husband. Mrs. Jones contested his right to the property on various grounds, which it is unnecessary to enumerate, for, on the 21st of August, 1846, they entered into a compromise, by which Nichols agreed to re-convey the property to her for twenty-three thousand dollars, payable in installments from the 1st of January, 1847, to the 1st of January, 1853; and to secure the same with the interest that might accrue, she gave a special mortgage upon the whole plantation, and not only upon the slaves re-conveyed, but upon others, amounting in the aggregate to eighty-seven. There was a. clause in this act of compromise to the effect, that the delay granted to Mrs. Jones for the payment of the twenty-three thousand dollars, was granted for her sole accommodation, but not for the benefit of her heirs; and, therefore, it was expressly agreed between the parties, that in case of the death of Jk?rs. Jones, at any time previous to the expiration of the delays for the payment of the $23,000, in that case, the amount which might remain unpaid should be considered as due and demandable in cash, with the benefit of the hypothecary rights and actions resulting from the mortgage, although the notes for the sums remaining unpaid, might not then have matured, according to their face.

Mrs. Jones did die in 1849, and before the maturity of the three last notes. She left a paper purporting to be her last will, but which was not made according to the forms required by law. Nevertheless, it was admitted to probate by the clerk of the parish of Concordia, and Warren A. Grice was qualified as testamentary executor, and letters testamentary were delivered to him. The unpaid notes were presented to him, and he endorsed upon them that he had no objection to their payment.

Nichols soon afterwards applied for and obtained an order of seizure and sale of the plantation and slaves for their payment. He annexed a certified copy of the act of mortgage, the notes duly identified with it, and the letters of executorship delivered to Grice. The writ of seizure and sale was issued and notice served upon the executor.

Martha Ann Pearson applied for and obtained an appeal from the order of seizure and sale. She alleges that she is the sole heir of Nancy N. Jones, and entitled, by inheritance, to the legal ownership of all the property belonging to her succession ; that the pretended will under which Grice claims to be executor is null and void on its face ; and that there is error on the face of the record in which the order of seizure and sale was obtained ; by which she will suffer irreparable injury, should it be carried into effect. And she specially complains that she had no notice of the executory proceeding, although she had an agent residing in the State.

The paper purporting to be the will of Nancy N. Jones, having been duly admitted to probate, and the executor appointed and qualified, neither it nor the appointment can be treated as a nullity until they are annulled by the judgment of a competent court. In the meantime, the executor is in the possession of and represents the estate. The creditor secured by a special mortgage had a right to look to him for his debt, and to carry on executory proceedings against the mortgaged property in his possession, contradictorily with him to enforce its payment. It was so decided in the case of Bougille, Administrator, v. Faille, 1st Ann. 205, in which the injunction of an order of seizure and sale against property in the possession of an administrator, on the ground that it was in the course of administration, was dissolved; the court being of opinion that the mortgaged property in the hands of the administrator was liable to seizure and sale, even although the heirs had accepted the succession only with -the benefit of inventory. The objection to executory proceedings is far less plausible in the present case, in which the succession is perfectly solvent. Those proceedings cannot therefore be set aside, merely because they were not notified to the heir, and are not carried on contradictorily with her.

Several reasons have been-urged in argument for setting aside the order of seizure and sale. It is urged, that the act of mortgage annexed to the pelition does not import a confession of judgment. The act, as required by the 733d article of the Code of Practice, was passed before a notary public and two witnesses, and the debtor acknowledged the debt for which she gave the mortgage. It was not necessary expressly to confess judgment in the act. An obligation contracted before a notary was declared, in the ordinances of Governor O’Rielly, when executory proceedings were first introduced into the country, to import a confession of judgment, and has been so understood by the bench and the bar from that day until the present time.

What has been heretofore said, disposes of the objection, that he should only have obtained an order of sale of the property for the payment of his debt, under articles 990, 991 and 992 of the Code of Practice. These articles apply partieularly to ordinary creditors; although undoubtedly an hypothecary creditor might proceed under them if he thought proper, but is not obliged to adopt that course.

It is said the notes were not due on their face; that their maturity depended upon a condition, the death of the maker, and thatthere is no authentic evidence that the condition has happened. The letters of executorship granted by the proper officer are authentic evidence of the death of the testator. It surely cannot be expected, that the order of seizure and sale should be arrested, on the ground that it does not appear that the mortgagor is dead, on the application of the appellant who urges it as heir.

It is next stated, that no interest is stipulated in the act of mortgage. This is an error; the mortgage is given in express terms to secure the debt and eventual interest, and the interest is due from the death of the mortgagor, because, by express agreement in the authentic act of compromise and mortgage, the payment of the debt was not to be postponed beyond that event. Interest was moreover due by law as well as by contract: the 989th article of the Code of Practice expressly declaring that interest shall be allowed on the debts of a succession from the death of the debtor, if they are due at that time.

It is pressed, as a reason for annulling the order of seizure and sale, that it includes ten dollars for the costs of protesting the notes, although it does not appear that they were protested. There is no pretence that the executor is not able to indemnify the heirs for this small sum: if not being due, he suffers it to be collected.

It is probable, too, that the protests were made, as it was a proper means of insuring interest on the notes, and of facilitating the proof of the right to that interest by authentic evidence, which would have been filed, if required. If they were not protested, the defendant or appellant could have enjoined the execution to the extent of the ten dollars, at the costs of the plaintiff. These suggestions are made to show the unreasonableness of the appeal on this ground.

Be that as it may, it has long been settled that the title claimed to be one importing a confession of judgment, and the order of seizure and sale upon it are together a judgment from which an appeal may be taken. Yet appeals taken from such proceedings, must be subject to the same rules which govern all other appeals from final orders or judgments, because our laws have made no distinction between them.

Appeals should be maintained only to redress some injury, and not to enable parties to delay and annoy their adversaries in the pursuit of their undoubted rights; in a word, to do justice, and not to aid injustice. One principle well settled as to appeals is, that what ought easily have been remedied in the district court, will not generally be redressed in this court, if no effort was made to obtain redress in the district court; another, that the Supreme Court will not reverse judgments for small and unimportant errors.

The appellant, as well as the defendant, had ten days to apply to the judge to amend the order of seizure and sale, by striking out the claim for ten dollars for the protest of the notes; and which, no doubt, would have been done on mere application. No doubt, moreover, the plaintiff would have remitted it on mere suggestion, if he had not the authentic acts of protest in his hands, ready to file if required. Being a title to costs alone, which would be the subject matter of taxation afterwards, like all other costs, he probably having the protests, did not deem it necessary to file them.

Instead of adopting this plain and simple mode of protecting herself against the payment of the ten dollars, not because they were not due, but because of the mode in which payment was sought, the appellant has caused the expense and vexation of an appeal to herself or her adversary; has occupied a good deal of the time of this court and other officers of justice, which might have been devoted to the redress of real injuries; and has delayed the payment for more than a year, of a large debt of upwards of thirteen thousand dollars, secured by mortgage upon the property of a distant relation, whom she never knew, and from whom she inherited it subject to this incumbrance; the payment of which she has prevented, in violation of the first duty of heirs to pay the debts of the successions they inherit, which are evidenced by authentic acts.

She even urges that the judgment should be reversed; because the order of seizure and sale, by a minute calculation, which may or may not be correct, was issued for a cent and a fraction more than was due : but to this it certainly may be answered, De minimis non curat lex.

I am of opinion that the judgment of the district court should be affirmed, with costs.


text:
    The State v. Thomas Powell.
    The presumption of slavery arising from color, may be rebutted upon slight testimony.
    In indictments of free persons of color, the law does not require that they should be described as such in the form used by notaries, auctioneers, &c.
    APPEAL from the District Court of Lafourche, Randall, J.

      Isaac Johnson, Attorney General, for the State.

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

Preston, J.

The defendant having been tried and convicted of larceny, moved for a new trial, on the ground that the verdict was contrary to law and evidence, in this, that it was proved on' the trial that he was a negro of unmixed blood, from which the presumption arose that he was a slave ; and no evidence was given to rebut that presumption. Consequently, it is said the court had no jurisdiction to try the case.

In the bill of exceptions taken by the counsel of the defendant, it was admitted that he was a negro of unmixed blood. In civil suits, that fact raises a presumption of slavery, which must be rebutted by testimony to establish freedom, or to admit the negro as a witness. But slight testimony, however, is required to rebut the presumption as that the negro was in the actual enjoyment of his liberty.

The bare fact of the prosecution of the accused as a free man, without plea to the jurisdiction of the court, on the ground that he was a slave, without a question being raised on the subject on the trial, by himself or any one for him, was sufficient to rebut the presumption in the present case.

It is true, he was not described in the indictment as a free man of color. This is required from notaries and other public officers, in passing acts with regard to free persons of color; and also from auctioneers and printers, in publishing advertisements of the sale of their property. It is not expressly required of prosecuting, or other officers, so to describe them in criminal proceedings, though it is usual to do so, and to be recommended in all cases. This omission is not a« error for which the judgment can be reversed.

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