text:
    Barelli et al. v. Lytle et al.
    Where a commission to take testimony in another State is addressed to “ any judge or justice of the peace,” at the place where the evidence is to be taken, without naming any one in the commission, the party offering the commission must show directly, or by circumstances authorizing a legal inference, that the person by whom the commission was executed, was, at the date of its execution, a justice of the peace of the State into which the commission was sent. A certificate of the Governor of the State, dated subsequently to the execution of the commission, stating merely that the person by whom the commission was executed, " is a duly authorized justice of the peace and that full faith and credit are due to his official acts,” not written on the same paper as the depositions, and there being no internal evidence in the papers that the justice’s certificate was ever seen by the Governor, is insufficient to establish that the justice was qualified to act at the date of the execution of the commission.
    from tbe Fifth District Court of New Orleans, Buchanan, J.

      Josephs, for the plaintiffs.

      W. D. IJennen, for for appellant,
    cited Baine ■v. Wilson, 18 La. 64. Edmonson v. Mississippi and Alabama Railroad Company, 13 La. 285. Starkie on Evidence, vol. 3, p. 1252.
   The judgment ,of the court {King, J. absent,) was pronounced by

Slidell, J.

At the trial of this cause the plaintiff offered in evidence the return of a commission to take testimony, addressed to any judge or justice of the peace at Port Lawrence in the State of Texas. The defendant objected to the introduction of this evidence upon the ground, among others, that the certificate of the Governor of Texas, dated June 29th 1848, shows that J. R. Baker was a justice of the peace on that day, but does not show that said Baker was a justice of the peace on the 5th June, 1848, at which time the commission was executed.

The certificate is in these words :

“ Austin, June 29 1848.

“ The undersigned, Governor of the State of Texas, hereby certifies that John R. Baker is a duly authorized justice of the peace in and for the county of Calhoun in said State, and that full faith and credit are due his official acts.”

It is not written upon the same paper as the depositions, but upon a'distinct sheet; the papers exhibit no internal evidence that the justice’s certificate was ever seen by the Governor.

The justice not being named in the commission, it was necessary to show either directly or by circumstances authorizing a legal inference, that Baker was, at the date of the execution of the commission, a justice of the peace in the State of Texas. It may be, id - some cases, that when the existence of a subject matter or relationhas been established, its continuance may be presumed. But here we are called upon to presume, from the fact that a person was qualified to act as a justice at a particular date, that he was qualified so to act at a period anterior to that date. Such a presumption is not supported either by reason or authority.

Excluding the testimony thus taken, we axe of opinion that tho remaining evidence is insufficient to establish the liability of Huntington. The testimony of Mansoni would have been insufficient alone to impose upon the appellant a liability for the debt, which exceeds $500. We do not find in the facts stated by the other witnesses a corroboration of the alleged liability. They do not point to the transaction which forms the subject of this suit; and are as consistent with the hypothesis that Huntington was not a silent partner of Lytle Rucller, in the goods purchased of the plaintiff, as with the opposite hypothesis. Besides, it does not distinctly appear from the testimony of Mansoni whether the interest of Huntington in the adventure arose, after the dealings j between Barelli and Lytle Rudler, who were charged on Barelli’s books, or existed at the time. Non constat that Huntington may not have bought an interest subsequently, and thus have been the debtor of Lytle Rudler only. See Young v. Hunter, 4 Taunton, 582. Story on Part. p. —, § 146 et seq.

As the district judge admitted the testimony under the Texan Commissions, and the plaintiff, under the circumstances, may have thought it unnecessary to adduce further evidence, we think the most proper course is to remand the cause.

It is therefore decreed, that the judgment of the district court be reversed, and that this cause be remanded for a new trial and for further proceedings according to law; the plaintiffs paying the costs of this appeal.


source: Caselaw Access Project

author: Fustis, C. J.

license: Public Domain

text:
    Labranche v. Trepagnier et al.
    Where a surviving spouse, who had qualified as the natural tutrix of her minor children, causes herself to be appointed, under art. 1037 O. C., administrator of her husband’s succession, there being an heir of age at the opening of the succession, and creditors, and on the day of her appointment executes a bond, with surety, for her faithful administration, in a sum fixed by the judge in virtue of the discretion reposed in him by art. 1037, binding herself faithfully to account over to the heirs, or to any other person having a right to receive the amounts of the succession.” The amount of the bond being less than half the amount required in case of an appointment under art. 1041 C. C., the bond must be considered as executed only with a view to protect the interests of the creditors who had made themselves known, and of the heirs of age, who may have been satisfied with the security which a bond of that amount offered. The surety in such a bond cannot be made liable to the minor heirs for any amount due to them from their father’s succession, received and not accounted for by their mother. Per Cwr: A surviving parent, who is the tutor of his child, is not bound to give security for the administration of his estate, the tacit mortgage on the property of the tutor affording, in the eye of the law, a sufficient guaranty for the protection of the interests of the minor. The creditors of the succession, and the heirs of age, being the only persons who could require security from the mother, it results that the security given was exclusively for their benefit.
    from the District Court of St. Charles, Nicholls, J.

      Si. Paul, for the plaintiff.

      Rozier and Hubert, for the appellants.
   The of the court ( King, J. absent,) was pronounced by

Fustis, C. J.

Leonee, Numa and Amedée Trepagnier, the parties defendant on the record, are appellants from a judgment of the Court of the Fourth District, sitting in the parish of St. Challes, in a suit in which Similien Labranche, the appellee, is the plaintiff. The judgment was rendered in favor of the appellee, on a reconventional demand, set up against him by the appellants, but in their favor severally, against their mother and natural tutrix, for the sum of $3,754, with interest. The matter in dispute between the parties is the responsibility of the appellee for these sums, being the amount of the judgment they have obtained against their mother, for their respective shares of their father’s succession, on an account rendered by her as administratrix of said succession.

The district judge, whose opinion has been prepared with great care, considered that the heirs of the late Pierre Trepagnier, among whom are the appellants, had no legal interest in the bond given by the plaintiff and appellee, upon which he is sought to be made liable. This question is first to be examined, and, if the conclusions of the judge are concurred in by this court, no other inquiry becomes necessary.

The bond is' in these words:

“Know all men by these presents, that I, Celeste Delhommer, widow of Pierre Trepagnier, as principal,' do bind myself unto the Hon. J. S. Labranche, Judge of the Court of Probates, in, and for the parish of St. Charles, State of Louisiana, and unto his successors in office, in the just and full sum of $46,000. And I Similien Labranche, of the parish of St. John the Baptiste, as security, do bind myself unto the said Judge, and unto his successors in office, for the said sum of $46,000. The condition of the present obligation is such that, if the above bounden widow Pierre Trepagnier shall’ truly and faithfully administer the estate of the late Pierre Trepagnier, and faithfully account over to the heirs, or to any other person or persons having right to receive the amounts of the succession, of said late Pierre Trepagnier, and otherwise fulfil all the obligations of her charge, then the above bond shall be null and void, otherwise to remain in its full force and virtue.

“ In witness whereof, we hereunto set our hands, and affixed our seals, in the presence of Messrs. Francois Chaix, and Hypolite Trepagnier, witnesses of the parish of St. Charles, this 21st day of January, in the year of our Lord 1839, being the 63rd year of fire Independence of the U. S. of America.

(Signed) Trepagnier nee Delhommer,

Similien Labranche.

F. Chaix, H. Trepagnier, witnesses.”

The appellants were minors at the time of the- execution of this bond, and their mother was their natural tutrix. She took the oath, and obtained letters; of tutorship, of all the minor heirs of her deceased husband, and caused an under tutor to be appointed to them. Two days before the bond bears date, Mme. Trepagnier, as tutrix of her minor children, applied by petition to the Court of Probates, to be appointed administrator of the succession of her husband, and the court rendered a decree on the day the bond bears date, by which she was appointed, and directing letters of administration to issue, on her taking the oath and giving the bond for the security of her faithful administration.

The appellants assume that the appointment of their mother was regularly made, and the bond given to secure the faithful administration on her part; that, by the conduct of the administratrix, the condition of the bond has been broken, and the surety is, consequently, liable to malte good to them the amount of the proceeds of their father’s succession still retained by their mother, for which they have judgment against her.

It is to be observed that, under the pleadings, the cause of action is confined to the responsibility of the surety for the retention of those proceeds, no other act being understood as assigned as a ground of action against the appellee in this court, or supported by evidence in the court below. The judgment of that court was for the precise sum admitted to be due by Mme. Trepagnier in her answer, and no application has been make to increase the amount of that judgment, in this court. .Nor do the appellants represent any other interest than their own; the heir of age at the time of the decease of Trepagnier, is no party to this suit,' and the creditors we are authorized in considering as satisfied, or having no interest in the suit.

The appointment oí-Mme. Trepagnier as administratrix appears to have been made under ait. 1037 of the code, which provides that, if nil the beneficiary heirs be minors, their tutors and curators can claim the preference for the admin-’ istration, and it should be given them under the charge of their being personally responsible for their acts of administration, and giving security as before required, though those tutors should be the fathers or mothers of the minors. The security “before required,” is mentioned in the proceeding article, 1034, which provides that good and sufficient security be given for the fidelity of the administration, without fixing the amount of the suretyship, or the standard by which it is to be regulated. Article 1041, on the contrary, requires that the security to be given by administrators appointed under it, shall be one fourth beyond the estimated value of the moveables and immoveables, and of the creditors com-prized in the inventory, deducting the bad debts.

It seems obvious that the amount of the suretyship to be furnished by the surviving parent, appointed to administer a succession of a deceased parent, inherited in part by minor children under art. 1037, depends upon the condition of the succession, or upon the interest the person appointed may have in it, and is a matter to be determined by tlie judge according to the exigencies of each case. We are satisfied that the bond in question was given and required under this article, and that the judge, in fixing the amount, had only in view the protection of the interest of the creditors who had made themselves known, and who, with the heir of age, may have been satisfied with the security which a bond of that sum offered. Had the bond been given under art. 1041, the amount would have been nearly $110,000, whereas it is only to $46,000. It was not unusual at the time' of these proceedings, in some of the parishes of the State, to super-add tlie administration of a regularly appointed administrator to that of tutor, although the administration by the tutorship would have been legal and adequate of itself for all purposes.

But we consider the law as settled that, the natural tutor or tutrix has a right to administer the succession of the deceased spouse by virtue of the tutorship, unless the heirs of age or creditors require the appointment of an administrator. Bryan v. Atchinson 2 An. 463, and The Succession of Story, 3 An. 502. The surviving parent, who is the tutor of his child, is not bound to give security for the administration of his estate, the tacit mortgage on the property of the tutor affording, in the eye of the' law, a sufficient guaranty for the protection of the interests of tho minors. The creditors of the succession and the- heirs of age being the only persons who could require security from the mother, we think it results that the security given was exclusively for their benefit, and that such is the legal internment of the suretyship.

The counsel for the appellants has brought to our notice the case of Ball v. Hodge, 11 Rob. 390, in which it was conceded that a bond given by a mother, who was administratrix, inured to the benefit of heirs. It does not appear by . the result of that case that, the questions presented in this case were raised therein; they certainly were not decided by the court; nor does there seem to be any matter of law decided which is applicable to the present case. The report gives no statement of the amount of the bond in that case, nor the circumstances under which it was given. ■ Judgment affirmed.


author: Slidell, J.

text:
    Fretz et al. v. Carlile et al.
    Decisions in Gardere v Murray j 5 Mart. N. S. 244, that, if a judgment be signed before’the proper time, the party against whom it is rendered may move for a new trial as though the judgmenthadnot been signed, but if, instead of doing so, he appeals, that he will be thereby precluded from urging that the appeal was not final—affirmed.
    An appellant, who had been allowed by the judgment appealed from but a dividend- on his claim out of the funds for distribution, who contends that the judgment was rendered without evidence, in his absence, and by consent of the other parties, cannot require an amendment of the judgment so as to allow him the whole amount of his claim out of the fund for distribution, on the ground that the other parties, by allowing him a dividend on his claim, recognized its ambunt. Per Our: The appellant has no right to divide the consent of the other litigants, which was intended by them to facilitate the disposition of the fund in court, and made in a spirit of compromise.
    from the Fourth District Court of New Orleans, J.

      Elmore and King, for the plaintiff.

      Mott, for the appellants Baker, Lusk Sf Co.

      Hunton, for Lawrence -et al.

   The judgment of the court (King, J. absent,) was pronounced by

Slidell, J.

The objection raised aá to the premature signing of the judgment is sufficiently answered by a reference 'to the case of Gardere v. Murray, 5 Mart. N. S. 244.

The appellants Baker, Lusk 8f Co. do not pray that the cause be remanded for a new trial; hut simply that the judgment be so amended as to allow them out of the fund in court for distribution $498 62, the whole amount of their claim, instead of $166 21, which was awarded them by the decision of the court below. Can we' give them this relief, upon their own hypothesis that the judgment was rendered without any testimony being adduced? We think not. If there be no testimony before this court, it is the intervenor’s own fault. He was an actor, and should have sustained his claim by evidence. He cannot ask us to render a judgment in his favor, for a claim which he has not proved. Whether, under the circumstances, the appellants could have had the cause remanded it is unnecessary to say; as the point is not made, nor is that relief asked.

But while the appellants contend that 'the judgment of the court below was rendered without evidence and by consent of the other parties, the appellants not having appeared at the trial of the cause, they insist that they are entitled to their whole claim, because the written consent in agreeing that they should have judgment for a dividend of 33 per cent on their claim of $498 62, thereby, recognized that as the amount of their claim. But, in our opinion, the appellants have not a right thus to divide the consent of the other litigants, which was intended by them to facilitate the disposition of the fund in court, and which was made in a spirit of compromise. Judgment affirmed.


author: Kino, J.

text:
    Fisk v. Proctor.
    Compensation for injuries sustained by a purchaser in consequence of defects in the thing sold, can only be recovered in a redhibitory action, or in an action quanti minoris; and in either action the plaintiff must allege and prove a tender of the thing sold.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Bartlette, for the appellant.

      L. Peirce, for the defendant.
   The judgment of the court (Rost, J. absent,) was pronounced by

Kino, J.

The plaintiff claims in this action damages, on the ground that a slave sold to him by the defendant was an habitual runaway. There is no allegation or proof of a tendor of the slave previous to* the commencement of the suit, and on this ground a judgment, as in case of non-suit, was rendered in the lower court, from which the plaintiff has appealed'.

He contends that this, being a suit for damages, it is not subject to the rules which govern redhibitory actions. In the case of Richardson v. Johnson, 2 An. Rep. 389, we hold that compensation for injuries sustained by the- purchaser, in consequence of defects in the thing sold, can only be recovered in a redhibitory action, or an action quanti minoris, and that the forms of those actions must in such cases be complied with. Those forms have not been observed in the present instance. Judgment affirmed.


text:
    Hill v. Chatfield et al.
    Decision in Prewitt v. Carmichael, 2 An. 943, that an attachment will not lie in action for damages ex delicto', affirmed.
    from the Second District Court of New Orleans, Canon, J,

      Dwell, for the plaintiff.

      Eggleston, for the appellant.
   The judgment

of the court (Rost, absent,) was

Slidell, J.

We see no sufficient reason for disturbing so much of the judgment of the court below as condemns Chatfield and Mills personally.

But as the action of the plaintiff was founded upon tort, the attachment should have been set aside. See Prewitt v. Carmichael, 2 Annual 943; Greiner v. Prendergrast, 3 Ann. 377; Swagar v. Peirce, 3 Ann. 436.

It is therefore decreed that, so much only of the judgment of the court below as condemns the said Chatfield Mills personally, be affirmed. It is further decreed that, in other respects, the said judgment be reversed, and that the attachment obtained by the plaintiff be dissolved, the costs of the attachment and of the appeal to be paid by the plaintiffs.


author: Eustis, C. J.

text:
    Rathbone et al. v. Neal et al.
    Where a vessel, in consequence of un'seaworthiness existing at tlie commencement of the voyage, and not from any perils of the sea or accident, is compelled to put into an intermediate port for repairs, where she is kept a much longer time than necessary to prepare her for the completion of her voyage, the owners will be responsible to the freighters for any damage resulting from the delay in the delivery of freight, occasioned by her unseaworthiness and unnecessary detention.
    Where a vessel is compelled to put into an intermediate port for repairs, it is the duty of the master to cause the repairs to be made without any unnecessary delay, in order to prosecute his voyage to tho -port of destination. If he wait for orders from the owners of the vessel, the latter will be responsible to the freighters for any damage resulting from the delay.
    Whatever care and diligence may have been shown in preparing a vessel for her voyage, and in rendering her staunch and strong, yet if, in fact, she was not so, the owners will be responsible for any damage resulting therefrom to the owners of freight, when not shown to have "been caused by stress of weather or accident.
    Where a vessel is compelled to put into an intermediate port for repairs, the burden of proving seaworthiness at the commencement of the voyage is on the owners of the vessel.
    The value of merchandize at the port of destination is the .basis of valuation in contracts of affreightment.
    A earner is bound not only to transport goods entrusted to him safely, but to do so witbin a reasonable time; and he is bound to account for their value such as it may be at the expiration of that time. Neither the acceptance of the goods, nor the subsequent disposal of them, by private sale, by the owner, will he a bar to the action. The ascertaining of the damage sustained by the owner is a matter resting on the ordinary rules of evidence.
    A court lias no authority to make any allowance as a fee to an expert, to be taxed among the costs of the suit. Const, art. 71.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Benjamin and Micou, for the plaintiffs.

      Josephs, for the appellants.
   The judgment of the court (Rost, J. absent,) was pronounced by

Eustis, C. J.

The plaintiffs shipped on board the ship London, for New Orleans, fifteen cases of merchandize, consisting chiefly of calicoes and prints. The bills of lading are in the usual form, and bear date the 7th of February, 1846. The ship sailed on her voyage on the 14th of that month at eleven o’clock, a.m., and arrived in New Orleans on the 22d of August, where she discharged her cargo. The cases were received by the plaintiffs, who instituted the present action against the owners of the ship for the unnecessary detention and delay in the delivery of their merchandize. They recovered judgment for the sum of $3622 74, with interest from the date of the judgment, and the defendants have appealed.

By the log-book, at nine o’clock p.m. on the 15th February, the day after the ship sailed, she is described as leaking badly. No mention is made of her leaking, in the next day’s register; but the day following the same entry is made, and is continued until the 27th. On that day the crew exhausted^ by the fatigue of pumping, insisted on making a por-t, as the leak continued to increase. The ship put into Nassau, on the 1st of Max-ch; her cargo was discharged and put in stores; she remained in that port until the 14th of July, when she sailed for New Oi'leans.

The grouuds on which the plaintiffs rely, and on which the case has been ■argued before us are: 1st. That the ship was anseaworthy when she left Bosion, and that her putting into an intermediate port was only a consequence of her unseaworthiness. 2d. That she was detained at Nassau a much longer time than was required to make the repair's necessary for the completion of her voyage. These grounds appear- to have been fairly put at issue in the petition and answer; and the defendants adduced evidence in order to establish the sound condition of the ship at the time of her sailing from Boston, and to explain and justify the apparently extraordinaiy delay which occurred at Nassau. The district judge, before whom the case was tried, was of opinion that the ship was not seaworthy at the commencement of the voyage, and decided it for the plaintiffs on that ground.

The ship had received extensive repairs before the present voyage. She was at the time nineteen yeax-s qld, having been built in Medfoi’d in 1827. She was rated by the inspector of insurance offices of Boston as A no. 3. We infer from the testimony that the repairs were adequate and thorough, in the judgment of the ship-wrights'and of the inspector. The district judge came to the conclusion, from an examination of the log-book, that there was no weather sufficiently bad to account for the leak, which was discovered the day after the ship left her port, or its gradual increase, which did not indicate any sudden injury. Called upon to review this opinion, as a matter of fact, we concur with .the district judge, considering that the weather was not at all unusual for the season of the year in those latitudes, and not sufficient to account for the condition of the ship as it is represented to be on her arrival at Nassau. And we think this conclusion is supported by other facts which appear in the case. When testifying under a commission, to the repairs of the ship previous to her voyage, at East Boston, Snelling, the master slpp-wright and caulker, says, after giving the details: “She was repaired thoroughly, and I do not know where or how they could have spent any more money on her in the repair's, or how they could have been better done.” Again, “I do not know to what cause to attribute her leaking unless tq the i-ough weather, because she was repaired well; there was nothing that could strain that I know of.” The testimony of the inspector is to the same effect.

Now the defendants in their answer charge that the damage to the ship from continued gales and storms was such as to require her to be thoroughly repaired at Nassau, and two of the witnesses examined at Nassau, state that she could not have continued her voyage to New Orleans, with safety to the cai-go, without the repairs which were put upon her. At Nassau her bottom was overhauled and refastened where required, recaulked from keel to gunwail; sheathed ■with felt and wood, and the sheathing caulked and coated. And the defendants also allege that, after regular survey and legal examination at Nassau, it was found necessary that the ship should be thoroughly repaired &c. in order to enable her to continue her voyage. No survey, nor any thing in the shape of a legal examination, has been offered in evidence, no local or definite injury to the ship is mentioned, nor is her condition explained except by the testimony, in general terms, that she arrived in distress in a very leaky condition, and that the repairs put upon her were necessary; and the necessity of the repairs the defendants assume, and found upon it the excuse for the long delay. But as we have seen, there is no adequate cause which is made apparent which accounts for the condition of the ship which required her to be thoroughy repaired at Nassau, after having been, in less than two months previously, thoroughly repaired in Boston. Nor is the season of the year- unimportant in considering this subject. In the latter part of spring and the beginning of summer the weather is mild, and in the voyage from Nassau to New Orleans there is little risk of meeting with storms.

A circumstance which is worthy of noto is the sheathing with felt and wood, which was put on in Nassau. Her bottom appears to have been carefully examined in Boston, and there was not a worm hole to be seen in it. She had been stripped of her old sheathing and copper, but was neither resheathed or coppered again. She went to sea on what is called a single' bottom, without sheathing of wood or copper. Still we find at Nassau, she could not pursue her voyage to this port in safety to the cargo without being sheathed as before described, for which no reason has been assigned in the evidence; and the necessity, if any existed, for the sheathing, must therefore rest upon the condition of the ship as before stated.

The defendants, as they were bound to do, have taken upon themselves to justify the delay in the port of Nassau, and we think have not been successful in establishing any cause for it, which, under the law, released them from the responsibility attached to carriers of goods for hire. The testimony of one of the witnesses, Mr. Meadows, which is especially relied upon by the defendants, is in such strict concurrence with what appears to us to be the obvious truth of the case, that without going into details on these questions of fact, we give the summary which the witness himself makes at the close of his examination:

“ Considering the season, the age of the ship, and the nature and value* of the cargo,” the witness was of opinion, that the whole of the repairs put upon-the ship were necessary to render her perfectly seaworthy, and to ensure the safety of her cargo. Had they been with promptitude begun and energetically performed, six weeks would have been ample time for their completion ; but they were not commenced until orders were received from the owners of the ship, and the awaiting the arrival of orders consumed the greater part of the time during which the ship lay in this port.” The commencement of the repairs had been deferred by the captain, until he had communicated with the owners on the subject, who eventually sent out a vessel with supplies of materials, and orders to proceed.

Upon the hypothesis assumed by the defence, it was the duty of the captain to have caused the repairs to have been made, without any unnecessary delay, in order to have prosecuted his voyage to the port of destination, and his powers were ample to that effect. It is not pretended that there was any lack of means to meet the expenses of the repairs ; and, if money could not be raised on the credit of the captain and owners, as the ship was in a foreign port, the master had authority to hypothecate her for that purpose. Why then did he put off making the repairs until hereceived orders from his owners, in relation to a matter of duty, upon which he was bound to act ppon his own responsibility ; and what valid exeus.e was there for this delay ?

We find also in evidence a document, bearing the signature of Joseph Batch, President of the Merchant’s Insurance Company, and of three other Presidents of Insurance Companies, which reads thus :

“ We the undersigned interested in the cargo of the ship London of Salem, J. E. Lorett master, as underwriters, or as owner or owners of any part of the same or otherwise, do hereby give our full assent to said ship being repaired at Nassau, New Providence, where she put in from stress of weather, in such manner as in the discretion of the master may be deemed proper, and then again take her cargo on board and proceed on her voyage to New Orleans. And we do hereby release him and the owners of said ship from any responsibility which might in such case arise from this course being taken as to her repairs, without this their especial consent.” Dated Boston, April 7, 1846.

In reference to these circumstances which we have just stated we deem it sufficient to state that they are not explained, and that it is incumbent on the defendants to explain them, and that we think they all point to the conclusion, that the putting into the port of Nassau, and the delay there, were not caused by the perils of the sea, but by the condition of the ship, for whi'ch we have an obvious and adequate cause, to wit, her age and the recent necessity for her repairs at Boston. In such a case it is not denied that the defendants would be liable. Whatever care and diligence may have been shown in preparing the vessel for the voyage and in rendering her staunch and strong, yet if, in point of fact, she was not so, they are still responsible, and when it satisfactorily appears that no stress of weather or accident can have happened to have occasioned the injury, it is, but a reasonable inference that the ship was defective at the commencement of the voyage and not seaworthy. Phillips on Insurance, p. 116.

In the case of Snethen v. Memphis Insurance Company, 3 Annual Reports, p. 474, which was an action on a policy of insurance on merchandize shipped on board a barge from St. Louis to New Orleans, the authorities cited by counsel were examined, and we came to the conclusion that the presumption of unseaworthiness in such cases necessarily arose; and though not conclusive, and liable to be rebutted by evidence, it threw the burthen of proof on the insured to establish the fact of seaworthiness. In that case, as well as in the case of Talbot v. Commercial Insurance Company, 2 Johnson, 129, the court considered the question as turning upon the age of the vessel, there being no other cause to which the injury could be justly attributed.

For these reasons, independently of the mere delay in Nassau, which, as we have stated, we do not think satisfactorily accounted for on the opposite hypothesis assumed by the defence, we concur in opinion with the district judge, on the point of seaworthiness of the ship at the commencement of the voyage.

With regard to the amount of damages the district judge based his judgment on a report of exports. Their calculations were founded upon the value of the goods at the port of destination, in which profits to the extent of fifteen per cent on the invoices were included.

It is contended that as there' was neither bad faith nor fraud on the part of the defendants, their obligations were not affected by the fluctuations of the market, and that they are only liable for such damages as entered into the contemplation of the parties at the time of the contract.

We consider the rule as settled which makes the value of merchandize at the port of destination the basis of valuation in contracts of affreightment. In the present case the operation of this rule is most just. In every port of the United States the seasons of business in this vast mart are perfectly well known, and that the close of Summer and the beginning of Autumn are unfavorable times for the sale of goods here, no ship master can be ignorant. The carrier undertakes to transport the goods not only in good safety but within a reasonable time, and he is bound to account for the value at the expiration of that time. It is as much a part of his contract as to deliver them in good condition; and in commercial adventures time is one of the elements upon which they are undertaken and controls their result. Nor do we think Are plaintiffs have lost their rights to recover from the defendants for the delay in the delivery of the goods in consequence of having received them and disposed of a portion of them at private sale. These facts may be considered in mitigation of damages to a certain extent, but the cause of action having accrued by the delay, the carrier is obliged to make good the loss resulting from his neglect, and the acceptance of the goods, it is well settled, is no bar to the action. The ascertainment of the loss is a matter resting upon the ordinary rules of evidence. Bowman v. Teal, 23 Wendell’s Reports, 306. We find no reason for diminishing the amount of damages allowed by the judgment.

The district judge referred the invoices, account-sales, &c., with the testimony which was pertinent, to an expert to examine and report on the several items, and ordered the sum of one hundred dollars to be taxed in the costs of the suit as a fee to the person appointed. This allowance is in contravention of the article 71 of the Constitution, which prohibits any allowance by a court, by way of fee or compensation, in any suit or proceeeings, except for the payment of such fees for ministerial officers as may be established by law. The party to whom the allowance has been made is not within the exception; the allowance is consequently within the prohibition.

The judgment of the district court is therefore affirmed, with the exception of $100 to the expert, which is annulled, reserving the rights of said expert to claim his compensation for services by him rendered; the appellees paying the costs of this appeal.


text:
    Catalogne v. Bauries.
    A third person, in actual possession of movables, under a bona fide purchase' from the owner, before the issuing- of a sequestration against the property at a suit of a creditor of the vendor, is entitled to hold possession, under bond, until the final hearing of the case. And where the purchaser was not made a party to tho action against his vendor, he will not be precluded, under the stat. of 5 March, 1842, from bonding in preference to the plaintiff; on the ground of his having permitted ten judicial days to elapse after the serving of the sequestration without exercising the light of bonding.
    The fact that an injunction bond was not signed by the surety in the presence of the clerk of the court, is immaterial, where the genuineness of his signature and his sufficiency are satifactorily proved. The clerk’s approval of the bond must be presumed from his having issued the injunction.
    from the Second District Court of New Orleans, Canon, J.

      Biron, for the appellant.

      Collens, for the defendant and intervenor.
   The judgment of the court (Rost, J. absent,) was pronounced by

Slidell, J.

The petitioner alleged that, at various times, from 1845 to 1849, he had advanced $1,205 to Bauries, who had applied it to the establishment of a dairy, with horses, carts, &c„ for its use; and that, to secure the advances, Bauries executed a sale of the establishment in his favor. That, in 1849, the defendant being in possession of the dairy, sold and delivered it to Tisnet, partly for cash, and partly to the amount of $2,000, on credit; to which sale the petitioner assented, provided that he should be paid his claim, out of the price. That Bauries has failed to pay him, and Tisnet has not fulfilled the conditions. He prayed for a sequestration of the cows, horses, &c., and for judgment against Bauiies for the amount of his claim; but did not make Tisnet a party to the suit. The property was seized under this suit on the 7th February; but the business of the diary seems not to have been interrupted, the sheriff having appointed a keeper who carried it on. On the 24 February, the plaintiff obtained an ex parte order for leave to bond the property, upon the ground that the defendant had permitted ten judicial days to elapse without exercising the right of bonding. On the same day, before this order was executed by the sheriff, Tisnet filed a petition of intervention; in which he alleges that he had become the Iona fide purchaser of the property from Bauries, and had received possession before the institution of the suit; and that he was therefore entitled to bond it. He prayed also for the citation of the plaintiff and the defendant, and for judgment quieting him in his title and possession. In a supplemental petition, filed a few days afterwards, he reiterates his former allegations, charges that the deprivation of the possession of the property will do him serious injury, and asked an injunction. An injunction issued accordingly.

The respective rights of the plaintiff and intervenor to bond, and the right of the latter to the writ of injunction, were presented to the court below on rule. The judgment of the court below sustained the injunction, and gave the intervenor leave to bond. The cause has not been tried on its merits, and the only question now pending is, the correctness of the interlocutory decree.

At the trial of the rules, after much testimony had been taken pro and con, the investigation was arrested by an admission on the plaintiff’s part, for the purposes of the rule, that all the allegations of Tisnel's petition were true.

We think there is no error in the interlocutory decree. Tisnet, for the purposes of the present inquiry, whatever may be the result of the investigation upon the merits, stands before us as a third person holding actual possession, under a bona fide purchase from Bauries, before the sequestration issued; and was therefore entitled to hold possession under bond until the final hearing of the cause, and to enjoin. Nor was the right lost by the expiration of the ten judicial days after the levy of the writ. He had not been made a party defendant, and consequently was not estopped by the lapse of time, under the statute of 1842, p.- 204.

The fact that the’ injunction was not signed by the surety in the presence of the clerk, seems to us immaterial. The genuineness of the surely’s signature and his sufficiency 'were satifactorily proved; and the clerk’s approval of the bond must be presumed from his issuing the writ, the order of the judge being that an injunction should issue upon a bond with a surety being given.

The affidavit for the injunction Was formal and sufficient.

Judgment affirmed.

        The vacheries consisted of cattle, horses, carts, and the necessary utensils for carrying it on. There was no land or house sold with it. R.


text:
    Walker et al. v. Duverger, Administratrix.
    The rights of the spouses are governed by the law of the place in which it was their intention at the time of their marriage to establish their domicil, and which they subsequently adopted within a reasonable time.
    A tacit mortgage attaches in favor of the wife, on the property of the husband, for the price of paraphernal property sold by the latter, from the date of the receipt of the price by the latter; but no such mortgage exists in favor of the wife’s hens for the price of paraphernal property alienated by the husband after her death. C. C. 2367, 2380.
    from the Second District Court of New Orleans, Canon, J.

      Rozier and for the

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

Slidell, J.

Franklin Wharton, deceased* intermarried with Amanda J. Walker, then widow of Sandifer Hoggatt, in May 1835, in Natchez, Mississippi. At the time of the Celebration of the marriage, Wharton was a citizen of this State, residing in New Orleans, and engaged in the practice of the law. Mrs. Hoggatt Was on a visit to her relatives at Natchez, and was a resident of Tennessee. The intention of the parties was to live in N. Orleans, the husband’s domicil. They accordingly, after a summer excursion to the north, repaired in the fall to New Orleans, where they resided until their deaths. She died intestate, in 1839, and Wharton in 1847.

At the time of her marriage she owned several slaves, some of whom were in the State of Tennessee, and others were hired on board of steamboats navigating the Mississippi river. Wharton, after the marriage, had the possession of the slaves in Louisiana, received their hire, disposed of one of them during his wife’s life, and of some others after her death,

Amanda Walker’s heirs are the plaintiffs in this suit. In a former action they obtained judgment for the unsold slaves. In the present, they demand from the succession of Wharton, the value of the slaves sold by Wharton, and the hire of all the slaves from the date of his wife’s death.

We have no hesitation in holding that, under the facts above stated, the rights of Mr. and Mrs. Wharton, with reference to the slaves, were controlled by the law of Louisiana, the matrimonial domicil which they contemplated at the time of the marriage, and which they actually adopted within a reasonable time. Ford’s Curator v. Ford, 2 Martin, N. S. 576; Routh v. Her Husband, 9 Rob. 224; Fisher v. Fisher, 2 An. 775; Hayden v. Nutt, ante p. 67.

As the slaves were the paraphernal property of the wife, the succession of Wharton, is bound to pay to the heirs of the wife, the price at which he and his wife sold a portion of the slaves during his wife’s life-time, and the reasonable value of those which he sold after his wife’s death. The succession of Wharton is also liable for the reasonable wages of the slaves, which, after his wife’s death, he treated as his own and hired out to various persons. In estimating the claim for wages, we have made a reasonable allowance in favor of Wharton, for the expense of the clothing and medical attendance of the slaves, the occasional loss of time, and the expense and trouble of collecting their wages.

It was pleaded in the answer that, the slaves were disposed of by Wharton, with the full knowledge and consent of the plaintiffs. The evidence on this point is not sufficient to establish an abandonment of their rights by the plaintiffs; and it is proper to add, not only that there was a probable ignorance on the part of the plaintiffs (residents of another State,) of their rights, which depended upon a question of conflict of laws, but that several of the plaintiffs are either minors, incapable of making an abandonment, or married women whose acts would require the sanction of their husbands.

We consider that a tacit mortgage attached in favor of the wife, for the price of the slave Jenny, sold by Wharton during her lifetime, at the date of the receipt of that price by him, namely, May 6 1836. Fisher v. Fisher, 2 An. 776; Foster v. Her Husband, 6 La. 27. The right having so attached and become vested in the wife, passed at her death, to her heirs.

Whether a tacit mortgage exists in favor of the wife’s heirs for the price of the paraphernal property alienated by him after her death, is a very different question, and one upon which we have notbeen.favored with argument by either party. Our conclusion upon this point is that, the wife’s heirs have not a tacit mortgage in such a case.

Tacit mortgages and preferences are in derogation of common right. They are to be strictly construed, and restrained to those cases where they are clearly granted by the lawgiver. “ No legal mortgage shall exist except in the cases determined by the present Code.” C. C. 3280. Article 2367 grants a legal mortgage in favor of the wife, “ where the husband has received the amount of the paraphernal property thus alienated by his wife, or otherwise disposed of the same to his individual use.” But the language of the article does not fairly comprise the heirs of the wife, so as to give them a legal mortgage for the price of the paraphernal property sold and appropriated by the husband after her death. Nor was there the same reason for their protection, as the lawgiver contemplated in the case of the wife herself. Subjected as the wife is, to the moral control and influence of her husband, there was a reason for interposing in her favor the safeguard of a legal fiction. No such reason exists in favor of the wife’s heirs.

It is therefore decreed that the judgment of the district court be reversed. It is further decreed that the plaintiffs recover of the defendant, as administratrix of the succession of Franklin Wharton deceased, to be paid in due course of distribution of said estate, the sums following, to wit: the sum of $1,000, the price at which the slave Jenny was sold, for which price the plaintiffs are also decreed to have a legal mortgage, dating from the 6th May 1836 ; the further sum of $500, the value of the slave Spencer ;■ the further sum of $400, the value of the slave John Hoggatt; the further sum of $550, the value of the slave Priscilla; the further sum of $2,520, for wages of slaves after said Mrs. Wharton’s death: the sums aforesaid to bear interest from the judicial demand,. March 31 1848. It is further decreed that the costs of this suit in both courts be paid by the said succession.


author: Rost, J.

text:
    Succession of Dupuy.
    Where the legatees named in a testament die before the testator, and there are no debts' to pay, the appointment of an executor becomes inoperative. The appointment of an* executor is a mandate, which, under our law, is limited to the execution of the legacies contained in the will, and to the payment of the debts, and the powers which it gives are to he strictly construed.
    The appointment of an executor with the origin of the succession, is not a substantial testamentary disposition, independent of any other.
    The seizin of an executor is a fiction of law, which does not interfere with the legal possession of the heir.
    The admission of a will to probate, and the order given for its execution, are mere preliminary proceedings, necessary to the administration of the succession; hut they do not amount to a judgment binding on those not parties thereto.
    from the First District Court of New Orleans, M’Henry, J.

      Buisson, for the appellant.

      Grddhe, contrit.
   The judgment of the count was pronounced by

Rost, J.

The late George Dupuy died in France, sometime in December 1848. During his previous residence in this city, he made an act of last will containing but one disposition, a universal bequest in favor of his brother Joseph Dupuy. He appointed Antoine Michoud his executor. On the next day he made a codicil, ordering his executor to emancipate his slave Betty.

Soon after being informed of the death of the testator, the executor named probated the will and the codicil, and took out letters testamentaiy. He caused an inventory and appraisement of the property of the succession to be made, when a suit was instituted against him by the .appellee, one of the legal heirs of the deceased, praying for the rescisión of all these proceedings, and for the setting aside of the will and codicil, on the ground that the legatee therein named had both departed this life before the death of the testator, and that there was no longer any will to execute. In the petition presented by him to that effect he contends that, the succession of the deceased ought to be administered as a succession db intestato, and prays to be appointed curator to the absent heirs.

The executor answered that the appointment of a testamentaiy executor with the seizin is, per se, a testamentaiy disposition which confers upon the executor the right of administering the succession, and of receiving a commission at the end of his administration; that, as long'as the seizin is not taken from him by .the heirs in the mode pointed out by law, no part of the succession can be considered as vacant; and finally, that the appointment of a curator to the absent heirs could not divest the executor of his trust, nor of his right to administer the succession.

The district judge gave judgment in favor of the appellee, annulling the order confirming Michoud as executor and setting aside the letters testamentaiy. A suspensive appeal was taken from that judgment. Sometime after the court appointed the plaintiff curator to the absent heirs, as prayed for by him. Another appeal was .taken from the decree making that appointment.

The appointment of an executor with the seizin is not, as alleged, a substantive testamentaiy disposition, independent of any other. 'The functions of a testamentary executor are a mandate, differing from other mandates in this only, that it begins at the death of the principal when all other mandates end. That mandate, .under our laws, where it is not enlarged by the will, is limited to the execution of the legacies contained in the will and to the payment of the debts, .and the powers which it gives are to be strictly construed. Delisle, Commentary on Art. 1024 Nap. Code.

There being no testamentary dispositions to execute, and no debts to pay, in Shis case, the appointment of the defendant as executor has become inoperative.

It is well settled that the seizin of the executor is a fiction of law, which does not interfere with the legal possession of the heir; and also that, the admission of a will to probate and the order given for its execution are only preliminary proceedings necessary for the administration of the estate, and do not amount to a judgment binding on those who are not parties thereto. Pothier, Dispositions Testamentaires, art. 2, ch. 5, p. 360. Succession of Duplessis, 10 Rob. 194. We are of opinion that there is no error in the judgments appealed from.

Judgment affirmed.


text:
    M’Kenzie et al. v. Ward.
    Where the endorser of a bill payable in this State is not shown to have had, when the bill was presented for acceptance and payment, a permanent residence here, but to have been doing business here during the winter and returning to the north in the summer, a notice of protest addressed to him at the north, during his absence from the State, to the care of a person, to who/se care a witness testified that the endorser had requested him to direct his letters, accompanied by proof that he had received a prívate letter directed tp the same address, informing him of the protest, will be sufficient.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Hornor for the plaintiffs.

      Benjamin and Micpu, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

This is an action upon a bill of exchange, to the order of and endorsed by the defendant. The defence is want of notice of protest; and also equities against the bill in the hands of the original holder, which it is alleged were known to the plaintiffs when they took the bill. The defendant has appealed from the judgment rendered agreeably to the prayer of the petition.

There being no evidence in the record to show want of good faith, or knowledge of the equities alleged in the plaintiffs, the only ground of defence necessary to be examined is that of want of notice of prptest.

It is not shown that, when the bill was presented for acceptance and for payment, the defendant had a permanent resid.ence in Louisiana. He was doing business in New Orleans during the winter months, and returned in the north early in summer. Lonsdale, one of the witnesses, states that he went with the defendant to the north a few weeks before the protest of the bill, and that he was requested by the said defendant to write to him at New York, to the care of A. Casselli. Hawthorn, another witness, testified that he was in the plaintiff’s employ, and told the clerk of the notary who protested the bill, that the notice of protest addressed to the defendant, to the care of A. Casselli, New York, would reach him. The witness wrote to him under the same direction to inform him of the protest, and he since admitted that he had received the letter.

The notary certifies that he served the notice of protest by directing them to the defendant, care of A. Casselli, New York. It appears to us that no greater diligence could have been used, and that the notices thps given were sufficient in law,, under a fair extension of the rule recognized in the case of Carmena v. Bank of Louisiana, 1 An. 369. Judgment affirmed.


text:
    Saloy v. Pepin.
    ’Where, by the .terms of a building contract, the price is payable in seven instalments, and the proprietor accepts an order drawn upon him by the undertaker in these words: “ accepted) payable according to agreement with the builder, on the last payment I have to make to himaccording to contract,” and, the undertaker afterreceivingthe firstrnstalment, and a second payment in advance, abandons the work, the person in whose favor the order was made cannot reoover its amount from the proprietor, who had nothing more to pay to the undertaker.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Buisson, for the appellant.

      Pepin, defendant, pro se.

      Be Gardeur, appeared on .the same side.
   The judgment of the court was pronounced by

Rost, J.

This suit is brought upon a conditional acceptance of the defendant. A small portion of the claim only having been allowed by the district court, the plaintiff has appealed, and the defendant asked that the judgment be amended .and rendered in his favor.

£>. T. Glenn having entered into a building contract with the defendant, gave an order upon hijn to the plaintiff for the sum ol $476, to be deducted from the last payment on the building contract. The acceptance of the defendant is as follows : “This order is accepted, payable according to agreement with Mr. Glenn, on the last'payment I have to make to him, according to contract.”

It is alleged in the petition, and in argument, that the order was given for materials furnished by the plaintiff, and used by Glenn in the buildings of the defendant. But there is no evidence of that fact, and we cannot notice it. There is nothing in the record to change or vary the import of the written acceptance. It is free from ambiguity; and clearly subjected the right of the plaintiff to recover, to the eventualties of the building contract. This contract was for the sum of $4,739, payable in seven instalments, the last instalment being for the sum of $982, payable by a note at six months, when the buildings, cisterns, paving, and all other appurtenances thereto ■ were completely finished, and the keys delivered.”

Glenn received the first payment of $500, and a second payment of $1000, .after which he abandoned the contract. He was notified by the defendant to proceed with the execution of it; and, having failed to do so, the defendant completed the buildings himself, and spent in so doing a larger sum than he was to pay Glenn.

At the time the contract was broken, the defendant was in advance to Glenn, and the last instalment had not matured; after that time, he could have nothing more to pay under it.

The district judge was of opinion that, as the defendant had assumed the payment of materials, and owed nothing to Glenn when he paid him the sum of $1000, that payment must have been made in anticipation of subsequent instalments, and should be considered as not made, so far as the plaintiff was concerned. Deducting this sum from the credits of the defendant upon the building contract, the judge found a balance of $61, which he allowed the plaintiff.

Ve are unable to concur in this opinion, [fit were admitted that the rule of Jaw invoked by the judge is applicable to a case like this, there remained four payments to be made when Glenn abandoned the contract. It was not stipulated that the advance of $1000 should be deducted from the last payment; and, in default of any stipulations, this advance would have been compensated and extinguished by an equal amount of the first instalments due.

It is urged that the defendant had not shown that he« had informed the plaintiff of the default of Glenn. It is proved that the plaintiff was apprized of it, and that he furnished materials to the defendant after Glenn had abandoned the buildings.

If that evidence was not in the record, we would hold that the plaintiff was bound to show affirmatively the execution of the contract out of the consideration of which he is to be paid.

As the case is placed before us, the judgment must be for the defendant. It is therefore ordered that the judgment in this case be amended, and entered in favor of the defendant, with costs in both .courts.


author: Slidell, L

text:
    Lewis v. Wilder.
    In an action liere on a judgment obtained in another State, the testimony of a witness on •the part of the plaintiff to shew that the person in whose favor the foreign judgment was rendered was the mere agent of the party in whose name the action on it was commenced in this State, cannot be excluded on the grounds that such proof could only be made contradictorily with the person in whose favor the judgment was obtained, and that the transcript of the foreign proceedings, introduced by the plaintiff, could not be contradicted by testimonial proof. The testimony does not contradict the record, but shows a matter not apparent on it and not inconsistent with it; nor is it necessary to make the plaintiff in the foreign proceedings a party, in order to establish that the person who sues here is the real owner of the judgment.
    In an action in this State on a judgment obtained in another State, the foreign judgment, in the absence of any evidence impeaching the judgment, must be considered conclusive of matters properly investigated in the original action, as of the right of the plaintiff to sue, &c.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Stockton and Steele, for the appellant.

      Culbertson and Ardry, for the defendant.
   The judgment of the court was pronounced by

Slidell, L

This is an action upon a judgment rendered in Mississippi, after personal citation and issue joined, in an action entitled “ Edward W. Jones, survivor of Jones Sf Ballard, use of Edward G. Wood v. William R. Wilder,” whereby it was adjudged “ that the plaintiff, survivor, use as aforesaid, recover of the said defendant the sum of $304 13 and costs,” &c. The plaintiff alleges that Wood was, in that proceeding, the mere agent of him, the plaintiff, the real owner of the judgment. There was a judgment of non-suit in the court below, from which the plaintiff appealed, and has argued the cause here ex-parte, no argument having been presented by the appellee. We shall direct our attention to the bill of exceptions taken by the defendant, and to the evidence offered at the trial.

The testimony of a witness for the plaintiff was taken by commission, and comes up in the transcript. By this testimony it is shown that, a judgment obtained in Mississippi by A. for the use of B., is, by the law of that State, the property of B. It was farther shown that the witness was the Attorney for the plaintiff, in the action in Mississippi; that Wood was, in that action, the mere agent for Lewis ; and that the name of Wood was used in the prosecution of the suit merely to save the necessity of giving security for costs, Wood being a resident of that State, and Lewis of Kentucky. To the admission of this testimony the defendant objected, “ because such proof could only be made contradictorily with Wood, or his heirs, and also because the proof made by the record which plaintiff had introduced, could not be contradicted by the testimony.” The court sustained these objections, and the plaintiff took his Bill of exceptions.

We think the court erred. Such testimony does not contradict the record; but shows a matter not apparent on the record, nor inconsistent with it. The apparent interest may be in one man, the equitable interest in another. If the defendant had an equitable defence against Wood, it would be a reason for so far disregarding the real interest of Lewis, as to let in such equitable defence against him ; but it is not pretended that any such equity existed.

As to the other ground presented by the bill, to wit, that such proof could only be made contradictorily with Wood, it is also untenable. The question is one of fact. Is Lewis the real owner of the judgment, or is he not ? If he is, he is entitled to recover in this action, and without making Wood a party. We may also observe that the plaintiff alleged that Wood was merely his agent in obtaining the judgment, and the defendant, without excepting, joined issue specially upon that allegation.

As to the right of Jones, as survivor of Jones and Ballard, to sue for the use of Wood, and transfer the claim to him, that was a matter proper to be investigated in the original' action, and the judgment of the court of Mississippi must be taken as concluding that point, in the absence of any evidence impeaching the judgment.

As to the matters pleaded in compensation, there is a conflict in the testimony of the defendant’s own witnesses ; and' the defence on that score fails.

We cannot allow interest at eight per cent according to the alleged law of Mississippi, it not being proved.

It is therefore decreed that the judgment of the district court be reversed, and that the plaintiff recover of the defendant the'sum of $338 63, with interest from judicial demand, to wit, 4th January 1'84'7, and costs in both courts.


author: Edstis, C. J.

text:
    Salaun v. Relf et al.
    Where a' purchaser executes a mortgage on the property purchased,- in favor of his- vendor, to secure the payment of a bill drawn by them on a third person, in favor of their vendor, for the price, the actrecitingthat a special mortgage is retained on the property in favor of the vendor or any other holder of the bill, but not stipulating that the acceptor of the bill should have the benefit of the mortgage, on paying the draft without having been put in funds by the drawers and without being bound as to them to pay it, if tlio bill he paid by the acceptor at maturity without any subrogation from the creditors at the time of payment, the debt will be extinguished as to third persons and the mortgage cease to operate adversely to other mortgage creditors. Per Cur: The debt, as recited in the act of mortgage, was the debt of the acceptor; the draft maltes him the principal debtor; and, on paying it, he paid his own debt, which the mortgage was given to secure. The creditor was paid; and as no other object was disclosed in the act of mortgage, and as there is no- reseiy vation or qualification contained in it,-the mortgage cannot be kept alive for any other ulterior object, or for the benefit of any other person/unless it result from the tenor of the draft itself.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      A. Denis, for the plaintiff and appellant.

      J. 8f JET. H. Strawbridge, contra.

   The judgment of the court was pronounced by

Edstis, C. J.

The plaintiff took out an execution on a judgment he had obtained against the defendants, by virtue of which the sheriff seized upon certain slaves. The object of his demand in the present case is; to remove the encumbrance on the slaves resulting from a certain mortgage of which Christoval Toledano claims the benefit, and who is the antagonist party insisting on his right of mortgage. After hearing the evidence and argument, the district judge discharged the rule taken by the plaintiff for the purpose of having the mortgage cancelled, on the ground of the validity of Toledano’i right therein; and from this judgment the plaintiff has appealed.

The act of mortgage bears date the I4th of February 1848. It is executed by the defendant and John Arnold Weysham, to secure the payment of a certain draft drawn by them on Christoval Toledano, and accepted by him, for $6,700, dated on the day of the act and payable on the 1st of June 1849. The draft was in favor of Bell Sf Stebbins, or order, who had by the same act sold several slaves to Relf Sf Weysham, of which slaves those seized formed a part, and for which the draft had been given and received in payment. The act recited that the special mortgage is retained on the slaves, to secure the payment of the draft, in favor of the vendors, on the person or persons who may afterwards hold said draft.

The draft was paid at its maturity by Toledano, without any subrogation from the creditors at the time of payment, and the question presented is whether, by this payment of his acceptance, the debt, as to third persons, was extinguished, or whether it still remained as a subsisting obligation between the drawers of the bill and the acceptor, and whether the mortgage continued operative adversely to other mortgage creditors.

The debt, as the act of mortgage recited it, was the debt of Toledano ; the draft itself makes Toledano the principal debtor; and, in paying his draft, he paid his own debt, which the mortgage was given to secure. The purpose of the mortgage was accomplished, the creditor was paid, and as no other object is disclosed in the act of mortgage, and as there is no reservation or qualification contained in it, it seems to us clear that the mortgage cannot be kept alive for any other ulterior object, or for the benefit of any other person,' unless it results from the tenor of the draft itself. The form of the obligation which is recorded, and is the basis of the mortgage is, we think, under an hypothecary system of necessity, obligations on the parties, as it is all the information the public have to look to. They are strangers to the secret equities subsisting between the parties, and only act upon the record as it stands. If it was intended that Toledano should have the benefit of this mortgage on paying the draft, without being put in funds by the drawers, or bound as to them to pay it, it ought to have been stipulated in the act. Flamisher v. Bikland, 5 Rob. 208. If this view of the subject be correct, and we are satisfied that it is, it becomes unnecessary to consider the attempts to revive or restore the mortgage subsequent to the payment of the debt by the principal debtor.

We have not overlooked the fact that a sale made on the 3rd October 1848, by Weysham to Relf, of Weysham's univided half of the slaves, was recorded in the mortgage office on the 11th October 1848. This recording preserved from the last named date the vendor’s privilege arising from that sale. But before Weysham sold, to wit, on the 28th September 1848, the judgment of Mrs. Salaun against Weysham was recorded in the mortgage office. It therefore is clear that the vendor’s privilege in favor of Relf upon the individual half arising from the sale by him to Weysham and the recording thereof, is secondary to the judicial mortgage against Weysham in favor of Mrs. Salaun.

It is ordered that the judgment of the court below be reversed, and that the mortgage of the 14th February 1848, in favor of Bellf 8f Stebbins, and the subrogation to said mortgage in favor of C. Toledano, dated 7th February 1849, be postponed after plaintiff’s judicial mortgage against Relf, as far as they bear upon the slaves Henry, Randall and Sarah and child; and that the plaintiff be paid in preference to said mortgage and subrogation out of the proceeds of said slaves; the costs of both courts to be paid by the appellees.


text:
    Succession of Perry.
    Where one, who had opposed the homologation of a final tablean of distribution presented by an executor, on which a judgment was rendered approving the payments made by the executor and allowing all the claims against the succession except one set up by the opponent, to whom the usufruct of the succession had been bequeathed, against the universal legatee after the expiration of the usufruct, and ordering another account to be rendered settling the respective rights of the opponent and the universal legatee, appeals as against the universal legatee, from the judgment, without making the executor a party, the appeal must be dismissed.
    from the District Court of Jefferson, Clarice, J.

      Le Gardeur, for the

      contra.

   The of the court was nounced by

Rost, J.

The executor having filed his final tableau of distribution, in this case, it was opposed by Michel Perry, the husband of the deceased, who has, under the will, the usufruct of his wife’s property, and who claims different sums of money from the succession of his wife, and from the community which existed between them.

The tableau was also opposed on various grounds by Mrs. Justine Lefebvre, who is the universal legattee of the testatrix .at the expiration of the usufruct created in favor of Michel Perry, and who claims alimony from him, under an alleged condition in the will. She also claims to be a creditor of the succession.

The judgment of the court was that the payments made by the executor be approved, and that the claims against the succession and community, as exhibited on the tableau, be allowed, except the claim of Michel Perry, which must be settled by compensation. The judgment then continues as follows : “ And considering that the opposition and conflicting claims of Mrs. Lefebvre and Michel Perry, as to the disposition to be made of the balance remaining in the hands of the executor after making the payments herein ordered, will be more properly settled in another and final account. It is further ordered that said executor do file another and final account, exhibiting clearly the respective rights of Michel Perry and Mrs. Lefebvre to such balance as shall remain in jjjs ilan(jSi aftel. making the payments herein ordered, reserving to said parties to oppose said tableau when presented.”

Michel Perry has appealed from this judgment, against Mrs. Lefebvre alone. The executor, not having been made a party to the appeal, the decree remains in full force ; and, so long as it stands unreversed, it is binding upon the opponents. Appeal dismissed.


author: King, J.

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    Succession of Lee.
    A sale of tlie moveables of a succession made by an administrator, under an order of court for the payment of debts, though far less than their appraised value, will not render the administrator liable ior the difference between that value and the price at which they were adjudicated, where the evidence shows that they were sold for their full value, and that the succession sustained no injury thereby.
    Decision in the case of Macariy’s Succession, 3 An. 517, as to the fees of counsel and the character of the evidence by which courts should be governed in deciding on such claims, —affirmed.
    Where an administration instead of being beneficial, has been injurious, to a succession, the administrator will not be allowed commissions.
    An administrator who renders an account is bound to prove the items of his account by evidence, and may be held to strict proof of them by the parties interested, without a formal opposition on their part.
    A PPEAL from the District Court of Plaquemines, Rousseau, J.
    Frost, for the appellant.

      Lombard, contra.

   The judgment of the court was pronounced by

King, J.

Lee died in February, 1847, leaving a succession, consisting chiefly of a tract of land on the Mississippi river and of about twenty slaves. At the time of his death he was engaged in clearing the land for the purpose of cultivation, and in selling the wood for fuel. Shortly after his death, Ronquillo caused himself to be appointed administrator of the succession. An inventory was made, and, by the advice of a family meeting, a sale of the whole properly was ordered; but, failing to produce the price of appraisement at the first exposure, no adjudication was made. A re-appraisement was advised and ordered, but appears never to have been made. During the interval between the inventory and the sales which were subsequently made, the management of the property was confided to an overseer, employed by the administrator. In the month of September, the administrator applied for a sale of the moveables for cash, alleging their perishable nature, their exposure to deterioration and loss, and the indebtedness of the succession. A sale for cash was ordered by the judge. Under the denomination of moveables, were sold the horses, cattle, and plantation tools generally. There was also sold a large quantity of cord-wood, far below its appraised value. The remaining articles produced, in the aggregate, their appraisement.

Immediately after this sale a tableau of distribution of the fund thus produced was filed by the administrator; and, some time after the sale of the remaining property, which occurred in February, 1848, a second tableau was filed. Both were opposed by Mrs. Ml Comas, the grand-mother of the minor children of the deceased.

The opponent claims: 1st. That the administrator be held liable for the loss, sustained on the sale of the moveables, 'which, it is alleged, were illegally adjudicated below their appraised value, and at a great sacrifice. 2d. That the administrator be charged with the hire of the slaves while they were in his possession as administrator, on the ground that, through his negligence and mismanagement, they were not profitably employed during that time, but, on the contrary, were a source of heavy expense to the succession. She also opposed the following claims : 1st. That of L. Lombard, Esq., for $700, for professional services as an attorney, on the ground that the demand is excessive and disproportioned to the services rendered. 2d. The claim of Le Riche, for his wages as overseer or manager for eleven months. 3d. The commissions of the administrator. Other items were opposed, to which it is unnecessary to advert, as the oppositions were sustained, and the judgment in those respects, has been acquiesced in.

The district judge reduced the claims of Lombard, and Le Riche, and allowed the administrator his full commissions. The opponent is dissatisfied with the judgment, and has appealed.

I. Under the evidence, we think, that the administrator cannot be held answerable for the difference between the appraised value and the price produced by the artices sold as moveables. The succession was, at the time, indebted, and there appears to have been a necessity for a sale of at least a part of it’s effects. A family meeting had previously advised the sale of the whole property, which, as we have seen, was not made in consequence of the high appraisement, and a re-appraisement was ordered. The agricultural season was passed, and the implements of husbandry were no longer needed. The cord-wood was decaying, and daily deteriorating in value. All of the articles sold were perishable, and the moment selected for the sale is not shown to have been unpropitious. It is further to be observed that, the sale was made under the order of the judge, and was not opposed. The loss sustained was upon the wood, of which there were about 1,700 cords, appraised at $4,317. It brought at the sale but $545. But the reason of this discrepancy in price is satisfactorily shown. It was, in the first instance, appraised too high, and at the time of the sale had so much deteriorated in value by decay, that a large portion of it was abandoned by the purchasers as being unfit for use. The evidence, we think, shows that the articles sold as moveables brought their full value, and although the adjudication below the appraisement may not have been strictly legal, it appears to have resulted in no loss to the succession, for which the administrator can be held liable.

We think however, that the administrator acted unwisely in causing to be sold the tools, carts, and teams, necessary for carting and hauling wood, which should have been reserved for use until the sale of the land and slaves. But this enquiry more properly belongs to the suit instituted to remove him from his trust.

II. The second ground is not sustained by evidence. It is true that the property was so mismanaged by the administrator, as to remain wholly unproductive while under his care. But there is no evidence in the record which enables us to determine what loss resulted from this mal-administration.

III. With regard to the fees of counsel, and the character of the evidence by which courts should be governed in determining upon such claims, our opinion - has been so fully expressed in the case of Macarty’s Succession, 3d An. Rep. 517, in which we embodied and adopted the opinions of our pi’edecessors in the of Dorsey (5 Mart. N. S. 401), and Stein v. Bowman, (9 La. 284), that we deem additional remark unnecessary, further than to observe, that the reasoning and the principles established in those cases are strictly applicable to the facts of the present.

The services which the counsel in the present instance was called on to perform were of the simplest kind, requiring neither labor nor research. After a careful examination of the record, we think that $150 is an ample compensation for the services rendered to the succession, and we reduce the claim to that sum.

IV. The claim of Le Riche, we are of opinion should be further reduced.

It is shewn that he was a young man without experience either as a planter or as an overseer, who had never before had the management of a plantation or slaves. A short time prior to being employed by the administrator, he had offered his services as an overseer to a planter of the neighbourhood, at $300 a year, saying that he was without experience, and desired to become acquainted with the business. The administrator employed him at $2 50 per day. ' The highest rate fixed by the evidence, for the services of a competent and good manager, is from $400 to $500 a year. The incompetency of Le Riche is conclusively shown. We think that $275 would be a full compensation for his services in tailing care of the property, which is at the rate that he himself desired to engage in similar service a short time previously.

V. For the reasons stated in the case of M‘Comas v. Ronquillo, we are of opinion that the administration of the defendant so far from having been beneficial has been injurious to the succession, and that the administrator is entitled to no commissions.

On the trial, the counsel for the opponent required proof of certain claims placed on the tableau. The judge however dispensed with proof, and ordered the claims to be paid, on the ground that they had not been specially objected to, and a bill of exceptions was taken to his opinion.

We think that the judge ei’red. An administrator is bound to substantiate the items of his account by evidence, and may be held to a strict proof of them by the parties in interest, without a formal opposition. For the purpose of enabling the administrator to establish those claims, it. becomes necessaiy to remand that part of the case.

It is therefore ordered that, so much of the judgment of the district court as decrees the payment of five hundred dollars to L. Lombard, of six hundred and sixty dollars to Le Riche, of commissions to the administrator, and the claims numbered 3, 8, 9, 5 0, 17, and 22, on the first tableau filed, be reversed. It is further ordered that the credit for the paymant of the claim of L. Lombard be reduced to one hundred and fifty dollars ; that the credit for the payment of Le Riche be reduced to two hundred and seventy-five dollars; and that the commissions of the administrator be disallowed. It is further ordered that the cause be remanded, for the purpose of enabling M. Ronquillo to adduce proofs in support of the claims numbered 3, 8, 9, 10, 17, and 22, of the first tableau filed. In other respects the judgment appealed from is affirmed, and Manuel Ronquillo decreed to pay over to the tutor of the minor children of James Lee, deceased, the balance remaining in his hands, after retaining a sum sufficient to meet the claims numbered 3, 8, 9, 10, 17, and 22, on the first tableau, in the event of his being hereafter decreed to pay the same. The costs of this appeal to be borne by the succession.


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    Vason v. Clarke.
    Where a garnishee is interrogated by a plaintiff as to the time when a note, which had been in the garnishee’s possession, was delivered to a third person, and the fact is important to the plaintiff, inasmuch as the note, if in possession of the garnishee at the time of service of the interrogatories upon him, would be subject to plaintiff’s seizure, a failure of the garnishee to state iu his answers the date of the delivery will be considered as a confession that he had the note in his possession when the process was served upon
    PPEAL from the Fifth District Court of New Orleans, Buchanan J.

      Vason, plaintiff, pro se.

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

King, J.

The plaintiffs having issued an execution upon a judgment previously obtained against Clarke, made Reigart a garnishee, and propounded interrogatories to him. The judge considered the neglect of the garnishee to answer a part of the second interrogatory as a confession that he had in his hands funds of the debtor at the date of the - service, and condemned him to pay the amount of the judgment. Reigart has appealed.

The second interrogatory propounded to the garnishee, after enquiring whether he had in his possession property, rights, or credits of the defendant, and their amount, concluded as follows: “ "What have you done with the same? If you have transferred or delivered the same to any person, say when, and to whom was the same delivered, and why was transfer or delivery made?”

The answer to this, as well as to a preceedinginterrogatory, is as follows: “I did have recently in my possession a note drawn by P. F. Kendall, dated April 3, 1847, for three thousand dollars, payable to the order of Hr. Maddox, and by him endorsed in blank, and also endorsed by Thos. Clarke in blank, which note was put in my hands by Thos. Clarke for collection, he representing to me at the time that it was the property of ,his wife, and that he was acting as her agent. I received said note about the middle of February last. Maddox resides on Red River, and was at that time expected in Mew Orleans. Maddox did come to town. I saw him, but was unable to effect any arrangements with him. I returned said note subsequently to Mrs. Clarke, wife of Thos. Clarke, and received from her the acknowledgment which I had given to her individually.”

It will be perceived that it is not stated when the note was returned, and this it was importantto ascertain, as the note became subject to the plaintiff’s seizure, if it was in the possession of the garnishee at the date of the service of the interrogatories upon the latter. Acts of 1839, p. 166, sec. 13. The plaintiff thereupon took a rule on the garnishee, to show cause why a judgment should not be rendered against him, in consequence of his neglect to answer the enquiry, “ when he delivered the note, of which he once had possession, to the defendant Clarke.”

Although an opportunity was thus afforded of amending his answers, the garnideclined to avail himself of it. and filed no answer to the rule. His refusal to answer the interrogatory creates the presumption that the answer, if given, would have been favorable to the plaintiff; and the district judge did not, in our opinion, err in considering it as a confession that the garnishee had the note in liis possession at the date of the service of the process upon him. C. P. arts. 262, 263.

There is no proof in the record that the note belonged to Mrs. Clarice. She is not shown to be separated in property from her husband; and the note being in the possession of Clarice, must be presumed to be his.

Judgment affirmed.


author: Slideil, J.

text:
    Cuddy et al. v. Belleville Iron Works Company.
    Where an actual citation is necessary, and its omission is attributable to the fault of the appellant, the appellee, upon a motion seasonably made, has a right to require the dismissal of the appeal.
    Where a judgment was rendered and signed by a district court, for the city of New Orleans, during the month of June, an order of appeal granted upon motion in open court, ' in the month of July following, will not, under the Statute of 22d March, 1843, relieve the appellant from the necessity of citing the appellee; such citation being dispensed with only where the motion has been made within the same calendar month in which the judgment was signed. The Statute of 1843 is applicable to the present district' courts of New Orleans, not having been repealed by the Statute of 30th April, 1846, organizing those tribunals.
    The terms of the district court of New Orleans must be considered, for the purpose of appeal under the Statute of 22d March, 1843, as monthly, although, in fact, those courts sit continuously from November to July.
    from tlie Fourth District Court of New Orleans, Strawbridge, L

      A. Denis, for the plaintiffs.

      E. A. Bradford, for the appellant.
   The judgment of the court was pronounced by

Slideil, J.

There is a motion in this case for the dismissal of the appeal, upon the ground that the appellee has not been cited, and that the absence of citation is attributable to the fault of the appellant, and not of the clerk or sheriff.

It is conceded that there has been no actual citation;' and we deem the point to be well settled that, where an actual citation is necessary and its absence is attributable to the fault of the appellant, the appellee upon a motion seasonably made has a right to require the' dismissal of the appeal.

It is therefore indispensable to inquire whether in this case actual citation was necessary. And this question depends upon the solution of the point, whether, when a judgment is rendered and signed in the month of June by a district court of New Orleans, and an order of appeal is granted upon motion in the month of July following, the appellant is dispensed, under the Statute of 1843, from the necessity of having the appellee cited.

The statute of 1843, amendatory of the Code of Practice, is in these words : “The party intending to appeal may do so either by petitions, or by motion in open court, at the same term at which the judgment was rendered ; in which last case the judge shall fix the amount of the security, and cause the same, with the order granting tbe appeal, to be entered upon the minutes of the court; and where an appeal has been granted on motion in open court, no citation of appeal, or other notice to appellee, shall be necessary.”

In the case of St. Avid v. Pychot (3 An. 6,) it was held that the late First Judicial District Court of Louisiana, whose sittings, like those of the present District Courts of New Orleans, were held exclusively in New Orleans, had monthly terms, under the Statute of February 10th, 1813. They extended from and embraced respectively the months of November, December, January, Februaiy, Mai’eh, April, May, June, and July. The fair inference from that opinion is, that, where an appeal was taken by motion in the month in which the judgment was rendered, such motion would fall under the Act of 1843, and would involve a dispensation of actual citation.

It is also a matter within the knowledge of the court, deduced from its own records, and of which it is proper for the court to take notice, that the pi'actice was very frequent not only in the late district court, but also in the late commercial and parish courts of New Orleans, to take appeals by motion ; and we are not aware that the right to do so during the month in which the judgment was rendered, and a consequent dispensation of actual citation, were ever questioned by the profession or by this court. It is also a fact familiar to the profession and to this court, that the late first judicial district couit, the late palish court of New Orleans, and the late commercial court, for many years held their sessions continually duilng many months without adjournment.

When the adoption of the Constitution of 1845, imposed upon the Legislature the duty of organizing anew the eourts of the State, we find this duty fulfilled with regard to New Orleans, by the Act of April 30, 1846 (Acts, p. 32), to which statute the counsel on both sides refer us. By this statute it was enacted that, there shall be five district courts in the parish and city of New Orleans, and that said courts shall be opened from the first week in November, to the fourth day of July ; provided that for criminal and probate causes, and for granting interlocutory orders, they shall remain open all the year. Secs. 1 and 3. For the district courts in most of the other parishes, four terms respectively in each year are established, to commence on certain specified days ; and with regard to those courts it is obvious that no difficulty could arise upon the point, what constitutes the term.

Under this organization of the district courts of New Orleans, it seems to have been generally assumed by the profession and by the judges of those courts, that the Act of 1843, was still in force with regard to those courts. This interpretation by the px-ofession and by the district judges, is entitled to very great respect. Contemporánea expositio est optima et fortissima in lege. It commends itself also by considerations of convenience by a recollection of the evils which produced the Statutes of 1839 and 1843, and the liberal spirit of those enactments. If the Statute of 1843 has been virtually repealed by the legislation of 1846, so far as regards the courts of New Orleans, in which a very large portion of .the litigation of this State is carried on, the inconvenience and evils which preceded and produced the Statute of 1843 will spring up anew, involving an increased expense to litigants and the frequent fustration or delay of justice. To such a conclusion this court ought not to come unless the recent legislation be so inconsistent with the Act of 1843 as to compel the deduction that the lawgiver intended to depi'ive the New Orleans litigant of a cheap and convenient remedy, which undoubtedly is still open to litigants elsewhere.

The only difficulty in this matter arises from the question, what is the term of a district court in New Orleans, to which we are to apply the provision of the Statute of 1843 ? The Act of 1846 above cited does not designate the terms of the district coui'ts of New Orleans eo nomine. If we should say that, for the purposes of appeal, we are to consider the prolonged session of those courts from the first week of November to the fourth day of July as one term, such an interpretation would involve practical results which certainly could not have been contemPlate(l by the act of 1843. There was no hardship in the fiction of law involved in that statute, which considered a party as in court during a term which in the country parishes rarely was prolonged beyond two ox- three weeks, and in the district court of the first judicial distx'ict covered one month. But to consider a litigant as being constructively present in court after judgment, during a period of nine months, and bound day by day thereafter to watch the minutes of the court, aixd take notice of an order of appeal, would be extremely onerous, and a statute made to further justice, might become an instrument of injustice. Considering the evils which the statute of 1843 was intended to remedy, the unreasonableness of inferring from subsequent legislation any intention.to depi'ive litigants at New Orleans of the benefit of that statute, the absence in the statute of 1846 of an express designation of a term eo nomine, and the inconsistency of any other interpretation than that which wo now adopt, with the true spirit and intention of the act of 1843, we conclude that the intention of the law-giver will be fulfilled by considering the act of 1843 as still applying to the district courts of New Orleans; and this to the same extent and in like manner as the same was understood and practised, with the concurrence of the bench and bar, dux-ing the existence in New Orleans of the various courts to which under the new Constitution and the act of 1846, the present courts have succeeded. This practice we understand to have been, to consider the terms as monthly for the purposes of appeal under the act of 1843, although in point of fact the former courts, like the present, sat continuously from November to July.

As the month in which the judgment in question was rend'ered and signed, had expired before the motion for appeal was made, we are of opinion that it cannot be considered as being within the act of 1843, so as to dispense the necessity of citing the appellee. And as the absence of citation is attributable to the fault of the appellant, it follows that the appeal must be dismissed, which is now ordered accordingly; the costs of the appeal to be paid by the appellant.