author:
Ogden, J. Spoefobd, J.,
      Slidell, 0. J.

text:
    Varillat v. New Orleans and Carrollton Railroad Company.
    Plaintiff sued for damages for an injury resulting from a collision of defendants’ car with another car. Hd&: The Judge correctly charged the jury, that if they believed there was gross neglect or carelessness, or want of skill on the part of the servants of the company, then it was for them to assess the damage, for such an amount as they might deem the circumstance of the case justified.
    The discretion left to a jury in assessing damages, is not arbitrary and unlimited, but is to be guided by sound legal principles applicable to the case before them; and it is the duty of the Judge to give them sugIi directions as will draw their thoughts to the proper points of inquiry, and exclude irrevelant considerations. Therefore, the Judge should have charged, as requested by defendant’s counsel, that if the jury believed from the evidence there was no wilful fault on the part of the company or its officers, they could not give damages with the view to punish defendant Gr to make an example, but must only consider and assess the damage sustained by plaintiff. Spqffordy J., dissenting.
    O. O. 192S. O. P. 516.
    THIS case was tried by a jury, before the Fourth District Court of New Orleans, Reynolds, J.

      Michel, for plaintiff.

      Benjamin & Micou, for defendant and appellant.
   Ogden, J.

The plaintiff brought this suit to recover damages for injuries sustained by her while a passenger on the defendant’s cars, resulting from a collision between the horse and steam cars of the company. She obtained a yerdiet and judgment for one thousand dollars, from which the defendants have appealed.

The Judge of the Court below, at the request of defendant’s counsel, charged the jury, that if they believed from the evidence there was no wilful fault on the part of the company or its officers, they could not give vindictive damages. He was then requested to charge the jury “ that, under such circumstances, the jury cannot give damages with the view to punish the defendant, or to make an example, but are only to consider and assess the damages sustained by the plaintiff; that charge the Judge refused to give, but charged the jury, that if they believed there was gross neglect or carelessness, or want of skill on the part of the servants of the company, then it was for them to assess the damages for such an amount, as they might deem the circumstances of the case justified. The defendants took a bill of exceptions.

We think the Judge did not err. The Louisiana Code, Art. 1928, provides, that in the assessment of damages in actions of this nature, much discretion must be left to the jury; and Article 616 of the Code of Practice declares, that the Judge in charging the jury, must limit himself to giving the jury a knowledge of the laws applicable to the cause submitted to them, and that he should abstain from saying anything about the facts, or even recapitulating them, so as to exercise any influence on their decision in that respect. However anomolous it may be to forbid the Judge to charge the jury on the facts when he has the power, and it is even his duty to set aside their verdict, if contrary to his opinion, yet such is the law. In the case recently decided of Black v. Carrollton Railroad Company, we have considered these articles as authorizing a judgment for vindictive damages in actions of this nature, when the circumstances of the case warrant it.

The next question relied on by the appellant is, that the damages assessed by the jury are excessive. This involves two considerations:

1st. The degree of culpability to be attached to the acts of the servants of the company which occasioned the injury.

2d. The nature and extent of the loss and suffering which it inflicted on the plaintiff.

It appears to us, that such an accident could not have happened, without the grossest negligence on the part of the employees of the company, on one or both of the cars which came in collision, and both cars belonging to the defendants. A witness introduced by the de'fendants, and who was on the same car with the plaintiff at the time of the accident, says: “ The horses were driven very fast to pass the switch before the arrival of the steam train, and he supposes that if the horse car had reached the switch a half a minute sooner, they might have escaped." He says, that at the point where the accident happened, there are but two tracks, and the horse car was on the track on which the steam car was running. The witness, considering his dangerous position, jumped off- the car before the collision. "We consider that the case is presented, without any testimony for the defence to explain or excuse the accident. The evidence shows utter recklessness of human life. When the safety of passengers is made to depend on minutes and half minutes in the accomplishment of speed requisite to prevent collisions, railroad companies ought not to complain when accidents happen, if the damages are assessed against them on the most liberal scale,

As (.Q nature an(j extent of the injury inflicted on the plaintiff, the testimony of the phj'sician who attended her shows, that her leg was swollen to twice its natural size; that the contusion was deep and long, and the muscles injured. She was confined to her bed six weeks. He paid her forty-two or forty-three visits; says he charged her only fifty dollars, on account of his intimate acquaintance with Mr. Varillat, but would have charged another, for the same services, $300. Although not appreciable in money, the jury had aright to allow damages for the bodily suffering occasioned-by the injury which must have been very great. The plaintiff was a music teacher, and was thrown out of employment for some time — the loss sustained in this respect ought not to be measured simply by estimating what she could have made during that time — it was proper to make a liberal allowance for it, because it is not easy to estimate the full extent of the injury a person may sustain under such circumstances, in the loss of patrons, and of favorable opportunities of securing friends and employment, which might not occur again.

In view of all the facts, we are not prepared to say that the amount of damages is excessive.

The judgment of the court below is therefore affimed, with costs.

Buchanan, J., and Vooehies, J., concurring.

Spoefobd, J.,

dissenting. I think the District Judge erred in refusing to charge the jury as requested by the defendant’s counsel, and in charging them as he did, on the third point.

That in an action for a private injury, damages may be given against a railroad company, with a view to punish the company or make an example, is a position to which I cannot assent.

But it seems to have been sanctioned by the District Judge, in what he charged, and what he refused to charge.

I It is true, the Judge cannot recapitulate the facts; this makes it the more necessary that he should lay clearly before the minds of the jury, those rules and principles of law which govern the class of cases in question. To tell a jury, in a case of this kind, that “ it is for them to assess damages for such an amount as they may deem the circumstances of the case may justify," is to give them either no guide or a fallacious one.

The discretion left to a jury in assessing damages is not arbitrary and unlimited, but is to be guided by sound legal principles applicable to the case before them; and it is the duty of the Judge to give them such directions as will draw their thoughts to the proper points of inquiry, and exclude irrelevant considerations.

L Had the Judge, in this case, instructed the jury, that if they found the plaintiff had been injured, as alleged in her petition, through the negligence and improper management of the agents of the defendants, then it was obligatory on the defendants to repair such injury; that, in assessing damages, they should consider the expenses, loss of time, loss of employment, and bodily suffering of the plaintiff, and having weighed the evidence upon these alleged grievances, should give such damages as, in their judgment, were commensurate with the injury; had such a charge been given, I would not deem it proper for this court to subject the verdict to a close mathematical analysis.

But as I think that an erroneous charge deprives the verdict of its weight, I am of opinion that the judgment should be revers.ed, and the cause remanded for a new trial.

Slidell, 0. J.

I coneur,with Mr. Justice Spofford in the opinion, that the District Judge erred in refusing to charge the jury as requested by the defendant, and in charging, as he did, upon the third point.

My views on the subject of damages, in cases of offences'and quasi-offences, were stated in Black v. Carrollton Railroad Company, to which I refer.

I think the judgment should be reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

author: Spojtoed, J.

license: Public Domain

text:
    Wright v. Ferrin et al.
    Defendanthad been in possession of the land in controversy since 1836, under a preemption claim. Plaintiff claimed the land under a deed from Millmidon, to whom he alleged plaintiff had assigned the preemption claim. The verity of the assignment formed the gist of the action. The jury found for defendant and the court refused to disturb the verdict, principally upon the ground of the undisturbed po session of the land by defendants since 1836; the exclusion of warranty in the sale from MiUaaidon to plaintiff; the denial of the pretended transfer; the suggestion of fraud; the substitution of a copy for the original assignment, which could not be produced, and in which no price is stated. Held: That these, and other circumstances, casta cloud upon the plaintiff’s title, and that as he made no effort to disturb the verdict of the jury in the court below, he could not be relieved on his record J on appeal.
    THIS case was tried by a jury in the District Court of the Parish of Pla-quemines, Rousseau, J.

      Foulhouse, for plaintiff and appellant.

      J. Q. Bradford, for defendant.
   Spojtoed, J.

The motion to dismiss the appeal in this case must prevail. It is needless to notice other irregularities, when we observe that neither of the records contain any judgment purporting to have been signed by the District Judge. C. P. 546.

Appeal dismissed.


author: ORD, J.

text:
    Same Case—On a Rehearing.
   ORD, J.

It appearing, by a supplemental transcript filed with the petition for a rehearing, that the judgment appealed from was duly signed, and that the defect in the former transcript was not owing to the fault of the appellant, it is ordered, that the judgment dismissing the appeal, heretofore rendered, be set aside. As briefs have been filed by both parties, we proceed to give our opinion upon the merits of the cause.

This is a petitory action for a tract of land, containing about two hundred acres, situated in the parish of Plaqumines. The plaintiff alleges that he purchased it of Laurent Millaudon, for the sum of five hundred dollars, by notarial act passed in New Orleans, on the 6th of October, 184f; that Millaudon, as assignee of Elizabeth Ferrin and Caroline Clements, acquired the same by patent from the United States, on the 8th of September, 1845 ; that the said Elizabeth Ferrin, wife of William Bridges, and ene Caroline, f. w. c., representing herself as the daughter of the said Caroline Clements, who is now dead, are in possession of the said land, claiming as owners, and refuse to give it up, notwithstanding amicable demand ; that they have caused the land to deteriorate by over cultivation, and by refusing to deliver possession, have occasioned to petitioner the loss of several valuable crops; he, therefore, sues the parties for the land, and one thousand dollars damages.

The defendants filed separate answers, but they both aver that the land in question wat settled more than thirty years ago, and that Elizabeth Ferrin, one of the defendants, and Caroline Clements, the vendor of the other, were the original preemptors, and acquired title by virtue of a purchase from the United States, and that they have never assigned their title to Laurent Millaudon, as alleged, and that if any act of transfer exists, it has been obtained through fraud; they further plead the preemption acts of May —, 1830, and June 19th, 1834, and aver that they have inade improvements in good faith to the value of $5,000; they plead the prescription of ten years, and ask for a trial by jury.

The jury found a verdict for the defendants, and there was judgment accordingly. The plaintiff, without asking for a new trial in the court below, has taken this appeal.-

In a case like this, turning upon the validity and good faith of a pretended transfer of title to land, the verdict of a jury of the vicinage, and the opinion of the District Judge presiding in the parish, where the land is situated, are entitled to great consideration. The plaintiff has filed no assignment of errors and suggested no misdirection of the Judge, or misconduct of the jury. By neglecting to ask for a new trial, he has deprived us of the benefit we often derive,, from knowing the reasons which controlled the action of the court of the'first instance.

Unless there is flagrant error in the verdict and judgment, they should not, therefore, be disturbed. Nettles v. Scott, 17 L. 336. Hogan v. Nicholson, 6 Rob. 362. Hughes v. Lee, 3 Rob. 430, Lambett v. Murray, 15 L. 466. Lepretre v. Miote, 1 N. S. 717. Carter v. Caldwell, 15 L. 491. Woolsey v. Paulding, 9 M. 286.

The defendants showed title by a certificate of purchase from the United States, issued from the proper land office, on the 10th of June, 1836. They have been in peaceable possession ever since, until the institution of this suit in 1850.

But it is pretended, that on the next day after making their entry, to wit, on the 11th June, 1836, the preemptors, Elizabeth Ferrin and Caroline Clements, sold and assigned their title thus acquired to Laurent Millaudon, in whose favor the patent issued in 1845 ; and a copy of an assignment on file in the General Land Office at Washington, is produced as the original basis of the plaintiff’s title. The verity and binding force of that instrument form the gist of the controversy.

It is an act sous seing privé in its form, and purports to have been signed by the grantors with their ordinary marks, attested by two witnesses; at the foot thereof is the following certificate: “ Acknowledged before nee, this 11th day of June, A. D. 1836, Elizabeth Ferrin and Can'oline Clements, not knowing how to write, making their marks. (Signed,) Jos. B. Wilkinson, Justice of the Peace.” The body of the instrument recites, that “for value received,” they assign, transfer, convey and set over, unto Laurent Millaudon, all their right, title, claim and demand, to a tract of land purchased by them on the 10th of June, 1836, as per the Receiver’s receipt, No. 878, describing the land in dispute, and another tract of 159 acres, and requesting that a patent may issue to said Millaudon, his heirs or assigns. '

The patent did issue to Millaudon, and he conveyed the land in dispute to the plaintiff as set forth in the petition. But the deed contains the following noteworthy clauses:

“ Which said tract was acquired from the government of the United States, by the said vendor, as assignee of Flieabeth Ferrin and Oa/t'oline Clements, by a patent retained by the vendor, as it covers other lands owned by him; it being well understood and agreed by and between the parties hereto, that this sale is made without any warranty whatsoever on the part of the said vendor, except against his own personal acts and deeds, and that, in case of eviction, he shall not be liable to a restitution of the price or the payment of any damages, the said purchaser simply taking'the place of the said vendor in relation to said land, and being subrogated to his rights,” &c.

It is proper to observe, that Millaudon himself was not in the parish of Plaquemine at the date of the purchase in his name. A person, acting as his agent, appears to have been engaged in land speculation there in 1836.

There is something singular in the state of things as presented by the pleadings and evidence. But, the continued and undisturbed possession, by the defendants, of the land it is alleged they sold in 1836 ; the exclusion of warranty against eviction in the act of sale from Millaudon to the plaintiff; the special denial of the pretended transfer, and the suggestion of fraud contained in the answers taken in connection with the facts that the original assignment could-not be produced, and that, although one of the witnesses thereto, as well as the Justice of the Peace before whom the same purported to have been acknowledged, were witnesses upon the trial, yet the plaintiff not only neglected to examine them as to the execution of the private act which forms the basis of his title, but actually objected to the answers of the justice elicited by the defendants, which went to show that such a transfer of the land sued for, was not in reality made. All these circumstances, added to the fact that no price is stated in the act of transfer, or proved aliunde so that it lacks a necessary ingredient of the contract of sale, throw such a cloud over the pretensions of the plaintiffj that the verdict of the jury cannot be considered as manifestly against the la.w and evidence.

As the plaintiff made no effort to disturb it in the coúrt below, he cannot, upon this record, be relieved here.

It is therefore ordered, adjudged and decreed, that the judgment heretofore rendered by this court, dismissing the appeal, be set aside; and it is further ordered, adjudged and decreed, that the judgment of the court below be affirmed, with costs.


author: Buciianan, J.

text:
    Yerkes, Guardian, v. Broom, Executor.
    A judgment of the probate court, ordering that “ letters of executorship be delivered to petitioner on his being sworn and complying with the requisites of law,” does not impose upon the heirs the necessity of prosecuting an appeal from such judgment or of rescinding it by action of nullity, before bringing a direct suit to remove the executor, on the ground that he has not complied with the legal requisites.
    Where the declaration of an intention to change his domicil is contradicted by the acts of the applicant, it shall not avail him to evade the law.
    PPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Bonford, and D. H. Hennen, for plaintiff.

      Durant & Horner, for defendant and appellant.
   Buciianan, J.

This is a suit brought by the representative of certain minor heirs of Samuel Broom, deceased, to remove from office George L. Broom, the executor of the last will of Samuel Broom, on the grounds :

1st. That said George L. Broom, being- a resident citizen of Pennsylvania, and as such, under the legal obligation, to give security before obtaining letters testamentary, has practised a gross deception and legal fraud upon the court in which the succession of Samuel Broom was opened, by representing himself, in his petition for letters, as a resident of New Orleans; by means whereof he has obtained said letters without giving any security.

2d. That said George L. Broom has not kept a bank account in his official capacity, nor the books required by law for his transactions as executor.

3d. That the affairs of this succession have been mingled with those of a commercial firm, in which the executor was a partner.

4th. That shortly after his appointment, the executor departed from the State permanently, leaving a full power of attorney with Duncan H. Hennen, under which the said Hennen has been for several years past exercising the functions of executor of Samuel Broom's estate, in violation of law.

Samuel Broom died in the city of Lafayette, on the 6th of October, 1849. The evidence shows conclusively that George L. Broom, at the time of the opening of this succession, was a resident citizen of Pennsylvania, and domiciled in Philadelphia. In the will of Samuel Broom, he is described as “ of the city of Philadelphia, in the State of Pennsylvania.” In a certain deed of trust from Christopher Broom to George L. Broom, made after the death of Samuel Broom, the £aid George is described as “ of the county of Philadelphia.” In a procuration from the heirs of Samuel Broom to George L. Broom, of date the 3d of January, 1850, the latter is described as “of the city of Philadelphia, sugar refiner.” And the parol evidence offered by plaintiff shows, that the defendant has only been in New Orleans once or twice, and for a few months at a timo, his last visit being several years back. The only evidence tending to show a change of domicil of defendant, is found in a written declaration signed by him, and filed in the Third District Court of New Orleans, on the same day that he presented his petition for letters testamentary to the District Court for the parish of Jefferson (26th of April, 1850). In this paper, the defendant, styling himself “ late of Philadelphia, in the State of Pennsylvania,” declares that “ he has taken a counting house 72 Magazine street, and is established in business in the city of New Orleans; that he has removed his domicil from Philadelphia aforesaid, and fixed the same in the city of New Orleans, State of Louisiana, where it is his intention to be a permanent resident.”

This declaration, contradicted as it is by all the acts of defendant, must be viewed as made for no other purpose than to evade the law of 1812, page 802, which prescribes that whenever the testamentary executor named in the will shall be present in the State, but be domiciled out of it, the Judge shall only grant him letters testamentary on the execution of his bond, with a good and solvent security, for such a sum and under such conditions as are required by law from dative testamentary executors. The terms of this law are perfectly plain and unambiguous; and the Supreme Court, in the case of McDonogh's Succession, 7 Ann. 473, has applied it even to the case when there were other executors residing in the State, and already qualified, besides the executors domiciled abroad, and who subsequently presented themselves, claiming a joint administration.

In the aspect in which we have regarded the declaration of domicil made by defendant in the Third District Court of New Orleans, it seems a work of supererogation, to examine what would have been the legal effect of that declaration, if sincere ; and in that connection, to decide upon the applicability of the Articles 42 and 44 of the Civil Code to the case of a party who has had no previous domicil or residence in this State.

Conscious of the weakness of his case upon the question of domicil or residence, the defendant has raised a preliminary objection in argument, in the nature of a declinatory exception, to the effect, that the order of the court granting him letters, is a judgment of a court of competent jurisdiction, which cannot be set aside, except by appeal or action of nullity. Upon this objection, it is to be observed, first, that the present plaintiff, as appears by the record, had originally urged these grounds for the removal of the executor, in an opposition to an account of administration filed by the defendant; but upon exception taken, that the removal of the executor was the subject of a direct action, and could not be mixed up with an opposition to an account, the District Court sustained said exception; and the plaintiff immediately thereupon instituted the present action in conformity to the judgment so rendered. 'The defendant is thus presented to us in the attitude of one who shifts his ground of defence, without regard to consistency, for the purpose of baffling an adversary. It might well be doubted, whether he is not estopped by his own acts from disputing the right of plaintiff to institute this action. But it is not necessary to put our decision upon such a ground.

Admitting the full force claimed for the order of court of the 26th of April, 1850, as a judgment of a court of competent jurisdiction, what is that order ?

“ It appearing from the will on file, duly probated, that petitioner is therein appointed a testamentary executor, and that, by the consent order of 10th of April, 1850, the dative executrix has been discharged, it is ordered, that letters of executorship be delivered to petitioner, on his being sworn and complying with the requisites of law.” The objection obviously begs the question of defendant’s having complied with the requisites of law. The argument of plaintiff is, that the giving of a bond with security was 'one of those requisites. It is certain that no bond was given; and if plaintiff’s premises be correct, his (conclusions have nothing inconsistent with the order of court of the 26th of April, 1850, bill must rather be viewed as the complement of that order, and the logical consequence of its non-fulfillment.

Upon the second ground of this action, that defendant has not kept proper books of account, the only evidence which we find in the record, is the answer of D. H. Hennen, Esq., attorney in fact of defendant, filed in June, 1852, to a rule taken upon him to produce the books and papers. Mr. Hennen states in substance, that it is impossible for him to do so, as he has sent all the books and papers relating to Broom's succession to Philadelphia, to be used by the heirs. This is certainly an extraordinary state of things. What the books and papers are, which have been sent out of the State — whether they are par-aphed, as required by Article 1142 of the Code — does not appear. That article, on its face, applies to curators, not to testamentary executors; and granting that its reason applies as much to one as to the other, yet the proof of delinquency, ifhder the article, does not seem to be complete. The Act of 1837, (Bullard & Curry, 498) requires a bank account to be kept by executors, under the penalty of deprivation of office. But that statute requires a particular mode of proceeding, which does not seem to have been followed in relation to this executor.

The evidence on the subject of the third ground of complaint, is too vague to be the basis of a judgment.

As to the allegation that the defendant left the State, permanently, shortly after his appointment as executor, which constitutes the fourth ground for his removal, we think it is established by sufficient evidence. The defendant’s counsel contends, that this ground of action is inconsistent with the allegation that the defendant never had a legal residence in Louisiana. We do not so consider it. This ground has a material bearing upon the validfiy of the power of attorney given by defendant to Hennen. We have held in the case of I)oWs Succession, 9 Ann., 354, that the provisions of the Act of 1847, p. 115, like those of Article 351 of the Civil Code, only contemplate temporary absences from the State, as giving the right to exorcise the trusts of executor, ,&c., by proxy. Such is, indeed, the language of the Act of 1847 — “testamentary executors who only wish to bo absent for a time,” &c. The power of attorney from defendant to Hennen, was given on the 8th of March, 1852. Broom must have left the State, according to the evidence, very soon afterwards. This suit was brought m January, 1854, and tried in April, 1854; and it is not proved that defendant had been in the State at all since the date of the power .of attorney. Had he been so, the fact could have been easily proved. The issue was directly tendered, and the absence of affirmative proof, is conclusive to our minds, that the defendant was not here during the two years that had intervened. The law assuredly has not contemplated this permanent delegation of the highly confidential and personal trust of testamentary executor.

It is, however, contended by the counsel of defendant, that he does not hold the estate as executor, but as agent of the heirs; and that the latter have been put in possession by an order of court. An inspection of the record shows this view of defendant’s position to be incorrect. On the 5th of April, 1850, Duncan H. Hennen, not George L. Broom, was recognized by order of court, as the agent and attorney in fact of the heirs of Samuel Broom ; and on the 10th of April, 1850, on motion of Hennen, the dative executrix was ordered to deliver to the heirs represented by him, all the effects of the success .sion; which, by a writing signed the 7th of May, 1850, he, the said Hennen, acknowledges to have been done. Sixteen days after the order putting Een-nen in possession for the heirs, the defendant made his declaration of domicil, and procured letters testamentary, as already mentioned. The object of the present inquiry is simply to ascertain whether, in the language of the order for his appointment, the defendant has “ complied with the requisites of the law,” in obtaining his letters. He cannot escape from the position of executor which he has voluntarily assumed, because another person has represented the plaintiff in treating with a previous executor. It is contended, that the heirs have admitted, since the letters granted to defendant, that they were in possession of the estate. Were this true, it would make no difference as to this action. But in fact the admission spoken of, is nothing more than a recital of the judgment or order of the 10th of April, 1850, in a petition presented by Duncan E Eennen, in the name of the heirs, on the 22d of June, 1850, to be allowed to withdraw, temporarily, from the records of the court, the will and codicil of Samuel Broom.

The judgment of the District Oourt is affirmed, at costs of appellant.


author: Ogdeít, J.

text:
    Braux, Administratrix v. LeBlanc.
    One who endorses a note as security for the purchaser of property at a public sale, is entitled to notice of non-payment by the maker, and is not to be considered as dispensing with -it from the circumstance that he signed the proces verbal of the sale.
    from the District Oourt of the parish of Assumption, Oole, J.

      MaiThot & Mills, for plaintiff and appellant.

      Barríante, for defendant.
   Ogdeít, J.

At the succession sale of Olivier leBlane, Adrian LeBlana became the purchaser of a slave for the price of $1,580, payable according to the terms of the sale in three equal annual instalments, in notes endorsed to the satisfaction of the administratrix. He complied with .these .terms by giving the three notes on which this suit is brought, endorsed-by the defendant.

The defendant pleads want of demand of payment from the maker and o¡f notice of non-payment to him as endorser.

The evidence shows a waiver of the protest and notice on one of the notes and for that amount the court below rendered judgment against the defendant.

The appellant contends that the defendant is liable for the amount of the other two notes, notwithstanding the failure to protest them,pr to give notice of their non-payment to the defendant, because he signed <the proces verbal of the adjudication as security for Adrian LeBlanc's purchase.

The object of signing the proees verbal, was to attest the fact of the slave having been adjudicated to Adrian LeBlane, and of the defendant having consented to become his security according to the terms of sale by endorsing the notes.

When the sale was afterwards completed by the administratrix and the notes of the purchaser endorsed by the defendant wore received in payment of the price, the contract of suretyship was put in the form which had been agreed upon, and the liability of the defendant was that of accommodation, endorser.

An accommodation endorser stands on the same footing with other endorsers, as to what is legally requisite to fix his liability.

The court below did not err in considering that the defendant after endorsing the notes was under no other liability than that resulting from his endorsement, and that he was discharged by the laches of the holder in failing to make the necessary demand of payment and give notice to the defendant as endorser.

The judgment of the court below is therefore affirmed with costs.


author: . Voordies, J.

text:
    Evans v. Hatcher.
    The Code of Practice, Art. 875, as amended by tlie statute of 1889, declares: “That where the plaintiff resides out of the State, the defendant may institute a demand in reconvention against him for any cause, although such demand be not necessarily connected with or incidental to the main cause of action/’
    from the Sixth District Court of New Orleans, Cotton, J.

      Ramner & Rays, for plaintiff.
    Steele, for defendant and appellant.
   . Voordies, J.

The defendant is appellant from a judgment rendered against him on his two promissory notes, one for $613 54, with 8 per cent, interest from the 1st Maj\ 1850, until paid, and the other for $51 30, dated 2Gth November, 1851, and payable on demand.

The defence is, that the note of $013 54 was given in settlement and liquidation of the accounts of a partnership which foimerly existed between the plaintiff and the defendant; that the debts due to said firm were placed in the hands of an attorney for collection, the proceeds of which were to be first applied to the satisfaction of said note, and the residue paid over to the respective parties f that it was agreed between the parties that said debts thus given as collateral security for collection should be first exhausted before the defendant should be called upon for the payment of said note; that the sum of $109 09, received by the plaintiff from the attorney charged with the collection of said claims, has not been credited on said note ; that in the year 1852, the defendant gave the plaintiff an order on said attorney for certain notes therein specified, amounting to $1,439 34, which he has either collected or suffered to be prescribed in his hands and should therefore be held liable to the defendant for one-half thereof, &c.

■ The alleged agreement is not established. The receipt of the attorney shows that the notes, claims, and accounts of the partnership in his hands, if collected, were to be accounted for one-half to the plaintiff and the residue, so far as the same was necessary, to the payment of the note in question, and the remaining balance to the defendant. The deposition of the attorney was taken under commission; he deposes that ho has no knowledge that the plaintiff agreed to wait until the payment of the notes and claims in his hands for collection before the note of $013 54 should become demandable. That on the defendant’s order in favor of the plaintiff, dated 8th November, 1851, he delivered to the latter claims on the,schedule from nine inclusive to seventeen; the last he had previously delivered to the plaintiff. Those claims, which amounted to $957 84, have never been returned. The witness further deposes that, he is unacquainted with the circumstances of the parties indebted on those claims, whether solvent or not: nor does ho know whether the plaintiff has received any portion of said claims. According to the account kept by the witness, he paid over to the plaintiff $109 09, the net proceeds collected by him ; the defendant never received anything from those claims. The date of the receipt of that sum does not appear.

The matters pleaded in reconvention by the defendant, were ruled out by the Judge a quo. In this, we think, the Judge erred. The Code of Practice, Article 375, as amended by the statute of 1839, declares, “ that when the plaintiff resides out of the State, the defendant may institute a demand in reconvenlion against him for any cause, although such demand be not necessarily connected with, or incidental to the main 'cause of action.” The plaintiff in this case resided out of the State. The defendant’s answer did n.ot put at issue the consideration of the notes sued upon, but only pleaded in compensation a distinct and separate demand, which did not, in any respect, involve the settlement of the partnership which formerly existed between the parties; on the contrary, the demand seems to have been founded on the assumption of the dissolution and settlement of that partnership, and the notes and accounts resulting therefrom placed in the hands of an attornej’- as the joint property of the parties, the defendant’s share to be first applied to the payment of the note in suit. That such appears to have been the understanding of the parties is clearly deducible from the receipt and deposition of the attorney. Has the defendant’s share been so applied ? The plaintiff has received not only all the money collected, but a large amount of the notes and accounts from the attorney. Whether he has received them in his own right, in pledge, or otherwise, he is no loss bound to account for one-half of them to the defendant; and is equally bound to the defendant for the one-half of such of them as may have been prescribed or lost in consequence of his laches.

It is therefore clear that the defendant was entitled, first, to the credits endorsed on the back of the note of $613 54; secondly, to one-half of $109 09, received by the plaintiff from the attorney ; and, thirdly, one-half of whatever amount was legally due to him out of the notes and claims thus received by the plaintiff. In remanding the case for the purpose of ascertaining the liability of the latter in this respect, we do not wish to be understood as having given a final judgment in relation to the credit of one-half of $109 09, which may be shown by the plaintiff as having already been included in some of the credits endorsed on the back of the note.

It is therefore ordered and decreed, that the judgment of the District Court be avoided and reversed, and that the case bo- remanded for further proceedings in accordance with the principles announced in this judgment, the plaintiff to pay the costs of appeal.


author: Buchanan, J.

text:
    Walton, Sanford & Co. v. Birch—Seward, Intervenor.
    Simulated Sale. — The case presents only questions of facts.
    PPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      J\. E. L. Gould, for plaintiff and appellant.

      L. Brewer, for defendant. T. 8. Me Gay, for intervenor.
   Buchanan, J.

Henry T. Seward claims, by third opposition, the contents of a retail grocery, seized by plaintiffs in a suit against defendant. The plaintiffs have answered the third opposition, by pleading the simulation of the sale, under which the opponent claims. The evidence shows that in the early part of January, 1850, the defendant purchased of plaintiffs, who are wholesale grocers, a large bill of groceries, representing himself to be fitting up a new store for the retailing of goods of that kind, and to be a man of means. He paid half the bill, or eight hundred dollars in cash, and gave his two notes dated the 8th January, 1850, one for four hundred dollars at sixty days, and one for thtee hundred ninety-nine dollars and twenty-one cents, at ninety days after date. A few days before the maturity of the first note, to wit: on the 27th February, I860, defendant sold to Henry T. Seward, by an instrument in writing, attested by two witnesses, the entire contents of the house occupied by him as a grocery, at the corner of Poyfarre and Magazine streets, according to an inventor)1', together with the lease of the premises, for the sum of twelve hundred dollars, of which two hundred in cash and the remainder in three notes of the vendee to his own order, for $334 33 each, payable at six, twelve, and eighteen months. The inventory annexed to the bill of sale, showed seven hundred and twenty-four 72-100 dollars worth of groceries, and four hundred and seventy-five 25-100 dollars worth of fixtures. The purchaser, Seward, had been since about the beginning of January, 1850, clerk of defendant, or from the commencement of defendant’s business as a grocer. Defendant had previously been employed on a steamboat. He began business with the goods bought of plaintiffs. The intervenor, previously to Birch's opening the store, had been employed as clerk at fifteen and twenty dollars a month, and was not known to possess any money. After the sale from Birch to Seward, the former continued to attend in the store. He occupied with his family, appartments which communicated with the store, When the Sheriff executed the writ of sequestration on the 12th March, 1850, Birch, is proved by one witness to have used the following expressions to Sanford, one of the plaintiffs: “now you have my goods, and I wont pay you a cent”; and also, that “ had he been present, instead of the young man that was there when the goods were seized, there would have been blood spilled before Sanford could have gone round his counter.” And, another witness, the Sheriff’s officer, testifies that when he made the seizure, Birch observed that “ he had the money in his pocket, but would spend it in a lawsuit before Mr. Sanford would accomplish his suit.” And, another sheriff’s officer proves that Birch had more to say than Seward, and when told that the Sheriff would not seize all the stock of goods under the writ, appeared very anxious to have the store shut up, in order to sue the Sheriff for damages. It is also in proof that three months after the pretended sale to Seward, Birch bought a hogshead of sugar for the store at the corner of Magazine and Poyfarre streets, stating said store to be his own, and paid for the sugar. We view these facts as inconsistent with the supposition of the sale being bona fide. We may add, that the cause was only submitted to the District Court three yeai’S after the date of that sale, when consequently all the notes given for the price were long past due; yet there is no proof of intervenor having paid them, or any of them, although the seizure did not cover all the goods sold, nor w.as the store closed by the Sheriff. And this fact is the more significant, as there was a lame attempt to show that the notes had been negotiated before maturity.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed, and that there be judgment in favor of plaintiffs and against the intervenor and third opponent, Henry T. Seward, with costs in both courts.


author: Ogden, J.

text:
    Tios v. Radovich.
    Where a seaman sets at defiance the lawful authority of the master, it justifies his immediate discharge, and destroys all rights which he might otherwise-have growing out of the relation of the parties.
    from the Fifth District Court of New Orleans, Augustin, J.

      J. J. Lugenbuhl, for plaintiff

      0. Dufour, for defendant.
   Ogden, J.

The plaintiff was second mate on board the brig Union, which was wrecked off the Mexican coast, in January, 1852, while under the command of the defendant who was captain and owner of the vessel.

This action is brought to recover damages from the captain, on the ground that without any just or sufficient cause he had discharged the plaintiff and left him on a barren beach, without provisions and the necessaries of life, and that he had been subjected to great loss, suffering and expense in getting back to New Orleans, to which port, by the shipping articles, the vessel was to return.

The defendant justifies his discharge of the plaintiff, on the ground that he with most of the crew had behaved in a most, undisciplined and provoking manner — had disobeyed his orders, refused to work, and fomented discord. He further avers, that his offers of assistance to the crew had been systematically declined with a view to a vexatious prosecution.

It appears from the evidence, that the 'vessel was cast away about a mile from the beach and at a distance of about twenty miles from Oozacualco, That by the labor of the crew with the assistance of some Mexicans' with a canoe, hired by the captain, a considerable part of the cargo, together with the ship’s stores, the rigging, sails and spars of the vessel were taken ashore, and tents were erected on the beach for the temporary accommodation of the crew. Up to that time it does not satisfactorily appear that the crew had refused to work, but the testimony conclusively establishes, that the captain having determined to go to Oozacualco in the canoe, in order to procure a boat or ship’s launch, to take what had been saved from the wreck to Oozacualco, sent his chief officer for four of the men to go with him — that the plaintiff and most of the crew refused to obey this order, unless the captain would consent to take the clothing of the crew first — that on receiving this answer to his message, the captain sent his chief the second time to say to his crew that he wanted the stores of the ship to be first carried, and that they answered the second time that they would not go unless their own clothing was taken first.

This conduct on the part of the plaintiff, can be viewed in no other light than that of insubordination. The command of the captain was a lawful one, and to have permitted the crew to dictate the conditions on which they would yield obedience to a lawful command, would have been the virtual surrender of his authority as captain and an abandonment of his own duty and obligations which could not have been discharged without maintaining the supremacy with which the law invested him.

In cases of shipment, it is part of the duty of a seaman to exert himself to save the cargo, and as long as he has any duty to perform, he is subject to the commands of the master of the ship.

The law on this subject is laid down in Abbot on Shipping, p. 173, to be, that even when the ship has gone to pieces, the seaman is not at liberty to depart from the shore where the mischance has been encountered. Quoting the language of a learned Judge in admiralty: “ He has a right to cling to the last plank, in satisfaction of his wages, and is bound to stand by and obey the master as long as there remains, in his judgment, a prospect of recovering any part of the ship or cargo.” See also, Abbot on Shipping, pp. 176, 177, and Kent’s Commentaries, section 46.

Disobedience to a lawful command of the master, may be committed under circumstances which would not amount to insubordination, when the disobedience is wilful,,it is a grave offence and would certainly justify the discharge by the master, but where it is not only wilful, but is persisted in, so as to set at defiance the lawful authority of the master, it amounts to insubordination, and not only justifies an immediate discharge of the seaman, but destroys all rights which he might otherwise have growing out of the relation between the parties.

The several Acts of Congress referred to by the appellant’s counsel, for regulating and securing the rights of seamen, was not designed to afford them protection in cases when by wilful disobedience, amounting' to insubordination, they have chosen to forfeit rights which it was the object of the humane laws of Congress to secure to them.

Under the circumstances of this case, we do not consider it material, that there was no formal discharge of the plaintiff, until after the captain had returned with the launch from Cozacualco. When the captain, for the second time, made a call for the men to go with him and they refused, as they were then on a foreign shore, their refusal to accompany the captain, was on their part virtually an abandonment of the captain and a denial of his authority over them.

There is no evidence to support the plaintiff’s claim for damages on the ground of defamation of character.

The judgment of the court below is therefore affirmed with costs.


author: Slidell, C. J.

text:
    Isnard v. Torres and F. Marquez.

      Ma/i'guez endorsed a note for Torres for $to0. The blanks being carelessly filled up, the note was afterwards interpolated, to create an obligation for §1,150. The alteration was so skilfully executed that a cautious person might have been deceived. Plaintiff purchased the note in good faith. Held,: That the endorser was bound for the note as altered. For it was a want of proper caution on the part of Marquez to endorse a note containing such a blank, and the rule is where one of two parties, neither of whom has acted dishonestly, must suffer, he shall suffer who by his own act occasioned the confidence and conseqent injury of the other.
    from the Second District Court of New Orleans, Lea, J.

      Dufour, for plaintiff.

      Eoselius, for defendant and appellant.
   Slidell, C. J.

Marquez is sued upon a promissory note made in the usual form by Torres, to the order of and endorsed by Marquez. On its face the note purports to be for $1,150. The defence is that at the time Marquez endorsed the note, it was for $150, but that after he endorsed it, and without his knowledge or consent, it was altered to $1,150.

The note which has been brought up in original for our inspection, presents the following form and in the same handwriting:

On the first line is written—
Nouvelle-Orléans le 29 avril 1854.
On the second line is written—
Dans soixante jours de cette date Je paierai
On the third line is written—
á l’ordre de Monsr. Eco. Marquez, Onze
On the fourth line is written— cent cinquante piastres, valcur Regu ce jour.
On the fifth line is written—
$1,150 Edo. Torres, Jr.

There was testimony of experienced persons to the effect that there was nothing in the appearance of this note, as it now stands, to excite the suspicion of a prudent discounter, and in this opinion our personal inspection suggests an entire concurrence. There is the testimony of two witnesses who saw the note, or what they think was the same note, in the hands of Marquez to whom the maker sent it to obtain his accommodation endorsement, to the effect that it was then a note for $150; and this testimony, coupled with the fact that Torres has absconded, after negotiating other notes similarly falsified, goes very far to justify a reasonable conviction that Marquez has been made the victim of a gross fraud by Torres, to whom he returned the note after endorsing it. There is also testimony of experienced persons to the effect that if at the time of endorsement, the word onze and the additional figure before the figures 150 were not there, the note would have exhibited blanks which at least with regard to the written part were unusual, and calculated to attract attention, and would have rendered the note unsaleable in the market. And in this opinion also, upon inspection of the note we fully concur.

Torres being a fugitive insolvent, a loss must fall either upon Isnard, a holder for value, whose bona tides is unimpeached, or upon Marquez. Upon which of them shall it fall, is the question we have to determine.

We think the solution of the question is readily found by a recurrence to the familiar principle, that where one of two parties, neither of whom has acted dishonestly, must suffer, he shall suffer who by his own act occasioned the confidence, and consequent injury of the others. There was a want of proper caution on the part of Marques in endorsing a note containing such a blank. This want of proper caution on his part enabled Torres to commit a fraud by filling up the blank, so as to increase the amount in a manner entirely free from suspicion; and surely the equity of Marques, whose case is certainly a very hard one, is inferior to that of Isnard, who has parted with his money on the faith of a state of things which the imprudence of Marquez enabled ■ Torres to create.

This conclusion which we base upon a principle of natural equity, is satisfactorily supported by precedents with respect to this class of instruments, which the law regards with great favor as to those who act upon them in good faith.

Thus in Young v. Grot, 4 Bing., 258, we find a case not distinguishable upon principle from the present. Young had left with his wife blank checks on his banker, signed by him and to be used in his absence. She desiring to pay a sum of fifty pounds, two shilling and three pence, delivered one to his clerk to 'be filled up with that amount. He did fill it up with that sum, and showed it to her; but when so filled up, it presented the following appearance : The third line contained the words fifty pounds and the figures 2s. 3d., but the word fifty commenced in the middle of that third line, and with a small letter, so that ample space in that line was left for the insertion of other words before the word fifty; and their was at the bottom of the draft the figures 50. 2. 3., but the figure 5 was at a sufficient distance from the letter £ to allow another figure to be inserted between it and the letter £. The Clerk then, after showing the draft to Mrs. Young in this state, without authority altered it to three hundred and fifty pounds two shillings and three pence, by introducing in the blank spaces new words and figures; and this alteration was made in such a manner that no person, using due and ordinary diligence, could have discovered the fact of fraudulent interpolation. The banker paid the check so altered, and debited the amount in account. The drawer objected to the debit, but unsuccessfully. The decision was put on the ground that the banker in parting with the money had been misled by want of proper caution on the part of his customer.

The authority of Pothier which was appositely cited in that case, is upon •principle equally applicable here. Si c’étoit par la faute du tireur que le ban-quier eút été induit en erreur, le tireur n’ayant pas eu le soin d’écrire sa lettre ,de maniére a prevenir les falsifications; puta, s’il avoit écrit en chiffres la .somme tirée par la lettre, et qu’on eút ajouté zéro; le tireur seroit en ce cas •tenu d’indemniser le banquicr de ce qu’il a souffert de la falsification de la lettre, á iaquelle le tireur par sa faute a donné lieu.

See also, Pagen v. Wylie, which was the case of an endorser sued upon an •altered bill, as stated in Ross’ Commercial Law, p. 140.

Judgment affirmed with costs.


author: Spofford, J.

text:
    Spaulding, Rogers & Van Arden v. Wallett & Cohen.
    The consent of a defendant in an action of attachment to the plaintiffs’ discontinuance, does not preclude the defendant from bringing a subsequent suit for damages for the wrongful attachment. A reconventional demand need not be put at issue by answer or judgment by default.
    from the_Second District Court of Now Orleans, Lea, J.

      Eunton, for plaintiffs.

      Livingston, for defendants.
   Spofford, J.

The consent of the plaintiffs to the dismissal of the action formerly brought against them by the defendant Wallett, does not bar them from claiming damages for the wrongful attachment.

The present suit has given the defendants an opportunity of showing that there was good ground for resorting to that harsh remedy, but, not having availed themselves of it, they were properly condemned in damages.

We do not understand that there is any controversy about the amount of damages.

It was not necessary that the reconventional demand should be put at issue by answer or judgment by default. There being no evidence to' support it, the claim was dismissed as in case of non-suit. There is no error in the judgment.

Judgment affirmed with costs.


text:
    Holmes & Co. v. Lacroix.
    Where a party to a cause takes a rule on his adversary to show cause why depositions should not be read in evidence, and the rule is served and regularly made absolute, it will be too late to object on the trial of the case to their introduction in evidence, on the ground of the incompetency of the officer who executed the commission.
    from the Sixth District Court of New Orleans, Cotton, J.

      Eoselius and Alf. Phillips, for plaintiffs.

      Purvis & Eugué, for defendant and appellant.
   Spofford, J.

The appellant contends that the answers of the plaintiffs to interrogatories propounded by him, and taken under commission in the State of Pennsylvania, were improperly received in evidence.

His objection is that they were taken by .a notary public, who was not a competent officer to administer oaths, or whose capacity was not shown.

Tho objection came too late. It was only made on tho trial of the cause, and the plaintiffs had availed themselves of tho privilege accorded by the líth section of the Act of March 20th, 1889, by taking a rule on the defendant to show cause, on a certain day, why the answers aforesaid should not be used as evidence in the cause; this rule was duly served on the defendant’s counsel, and on the return day was made absolute, the defendant taking no exceptions thereto. If- the notary was an improper person to take and certify the testimony, there was an “ irregularity in the execution of the commissionbut, as the defendant failed to urge this objection before the cause was called for trial on its merits, although ample opportunity was given by the rule, he was precluded by the statute from taking advantage of it afterwards.

It is further urged, that no evidence was given of the payee’s endorsement of the note sued on, and therefore no title in the plaintiffs is established.

But there is an admission in the record signed by the attorneys of both parties in those words: “ It is agreed that the note sued on in this case be considered as evidence.” The note when sued on had the. endorsements upon it and proof of their genuineness was waived by this agreement of counsel.

Judgment affirmed.


author: Slidell, O. J.

text:
    Nolan v. The City of New Orleans.
    (The Mayor and Recorders of the city of New Orleans hare the power to dismiss a policeman. Their dismissal for what they may deem sufficient cause is final, and thepoliceman has no appeal.
    from the Sixth District Court of Now Orleans, Ootton, J.

      John Henderson, Jr., for plaintiff.

      J. Livingston, for defendant.
   Slidell, O. J.

The plaintiff sues for eleven months wages as a policeman, alleging that he had been appointed for one year, and was discharged at tho end of the first month without good cause. The city pleaded in bar an order of discharge by the Police Board for alleged misconduct, a certified copy of which order is annexed to the answer, and was offered in evidence at the trial. There was judgment for defendant, and plaintiff has appealed. By the previous terms of the city charter, the Mayor was authorized to appoint policemen and discharge them at pleasure. By the amendment of 11th April, 1853, the appointing power was conferred on a Board of Police composed of the Mayor and Recorders, and said board was authorized to discharge them for cause, and to decide on all police matters pertaining to appointments, dismissals or grievances of, or against the police, finally and without appeal.”

The board having discharged IJolan for what it deemed sufficient cause, and its decision being final and without appeal, we cannot enquire into the sufficiency of the cause in this'aetion. Nor can the objection be entertained which the plaintiff makes to the form of the order. It is true, it does not appear on the face of the order of discharge what members of the board were present nor how they respectively voted, but in the absence of any irregularity patent on the face of the record or proved aliunde, it may be presumed that the board was duly convened and proceeded regularly. Whether if such irregularity appeared, its effect could be amenable by any other tribunal under the provisions of the statute, in a suit like the present, is a question we need not now decide.

Judgment affirmed with costs.


author: Slidell, Ov J. Ogden, J.,

text:
    Barriere & Co. v. Samory.
    This case presents a question of facts merely. The point being whether the endorser of a note Was not discharged in consequence of want of due diligence on the part of the holder to obtain payment from the maker. >
    from the Fifth District Court of New Orleans, Augustin, J.

      L. Janin and N. L. Johnson, for plaintiífs.

      G. Maurian, for defendant.
   Slidell, Ov J.

The District Judge was of.opinion that reasonable diligence had been used to find the maker, and we do not feel prepared to dissent from his conclusions. We refer to the opinion prepared by him, and also to the following portion of the evidence:

The note was received by the notary as usual after the closing of the bank. The notary’s clerk says: I went in the first place to Mr. Feste’s late store in Chartres street, and found it in the occupation of other parties. I enquired of the occupants of the store where Feste resided and gained no information. 1 then went to his late domicil in Rampart street, and made enquiry there for Mr. Feste, and I was informed by a lady that he had removed from that house some three months previously, and that she did not know where I could find him. I then made enquiry of a Mr. Loeg, who kept a carriage repository in the same street and near to Feste’s late domicil, and he told me that he believed Feste lived somewhere in the third municipality, but could not tell me where, and that he believed that Feste and his family were then out of the city and over the lake. I then wont to the store of Mr. Fetitpain, the first endorser, and showed him the note, told him the endeavors I had made to find Mr. Feste, and he told me to protest the note. I did not ask Mr. Fetitpain where Mr. Feste lived, but generally when I call upon a first endorser, I state the steps I have taken to find the drawer. I take it for granted that that is as much as if I had asked where the drawer resided. The call on Fetitpain, by which the notary’s deputy closed his enquiries, was about 8 o’clock in the evening. He says: I did not call on Samory, because I had labored for three or four hours to find the whereabouts of Feste, and that FeUPpain had told me to protest the note, .and it was then after 8 o’clock in the evening.

The protest was during the worst part of the epidemic of last year, and there was a considerable number of persons absent from the city with their families. There was a suspension of all ordinary business that was not of an urgent character.

A deputy Sheriff who had been employed to serve process on Feste, states various unsuccessful enquiries he had made and adds, “ It was more than a week from the time I was looking for Feste until I served the papers on him in the Sheriff’s office.”

Another witness says; In the beginning of June, I was book-keeper of Mr. Moreau, and had an account against Mr. Feste. I went to the late domicil of Mr. Feste, on Rampart street, and was informed by a servant that Feste had removed from there, but could not tell me where. I then applied at the livery stable next door from B. Milieux, Jr., he replied that he did not know where Feste resided, but he thought it was in the third district somewhere. I returned there some days after this, but could not ascertain his residence. I went into the third district, in St. Ferdinand street and adjoining streets, but could not ascertain the residence of Feste.

A Sheriff’s officer says? I served papers on Feste in the alley-way of the court-hous'e. They had been in the hands of an officer some days without being able to serve them.

It was admitted at the trial, that in the directory for the jmar 1853, the residence of Victor Feste' is put down as on Rampart street, between St. Louis and Toulouse streets, and that his store was at No. 22 Chartres street. Also, that in the directory published i'P January, 1854, his residence is given as being at the corner of Port and Casácalvo streets.

Judgment affirmed with costs.

Voobhies, J., Buchanan, J., and Spoefobd, J., concurring.

Ogden, J.,

dissenting. I find myself unable to concur, with my brother Judges in the conclusion to which they have arrived, that there was due diligence on the part of the holder of the note to find- the residence of the maker.

It has been always held that due diligence to obtain payment from the maker, is a condition precedent, on which the liability of the endorser depends. In the case of Magruder v. The Bank of Georgetown, 3 Peters’ R., the Supreme Court of the United States held that the endorser having become administrator of the drawer’s estate, who had died before the m'atufity of the note, did not relieve the holder from the obligation of demanding payment of the note in order to charge the endorser.

Scmory is sued as second endorser of Feste's note. The holders of the note,the maker and the endorser all reside in New Orleans. Feste, the maker, was a married man, a house-keeper, and had been for eighteen years well known among the store-keepers on Chartres street. At the time the note was protested, he was living in a rented house at the corner of Port and Casacalvo streets in the third district. There is no evidence that he was absent from the city at the time. The agent of the holders of the note were in the city at the time, and was called upon by the clerk of the notary who was charged with presenting the note and demanding payment for information as to Feste's residence. This agent was a witness on the trial and he states that he told the clerk that Peste resided somewhere in the third district — he says he thinks he told him he would endeavor to find out Mate’s residence and that the clerk replied he was going somewhere else to enquire, or that he was going to Petipain’s to enquire. The clerk did go to Petitpain’s, but he states in his testimony that he did not ask Petitpain where Peste lived. In the testimony of this witness given on a previous trial of a suit on the same note against Petitpain, the first endorser, he said that he did ask Mr. Petitpain where Peste resided, and that he answered him to protest the note. In giving his testimony on that trial of this case, he says in one part of his testimony, that he cannot recollect whether he made a demand of Petitpain for Peste's residence. He uses this language: “ generally when I call on a first endorser, I state the steps I have taken to find the drawer, I take it for granted, that that is as much as if I had asked where the drawer lived.” Petitpain was the father-in-law of Peste, and the defendant, Samory, was Petitpain's brother-in-law, and ha'd his store near that of Petitpain.

With the fact conceded that Peste had a residence in the city, and that the notary’s clerk called at his father-in-law’s store for information as to Peste’s residence, how is it to be accounted for that he went away without gaining that information or making any further attempt to find the residence. The only explanation of which it is susceptible, is that furnished by himself, that Mr. Petitpain told him to protest the note. In this correction, he says: “ that after having done every thing he had stated, and Mr. Petitpain telling him to protest the note, caused him to cease making any further enquiry for the drawer. This witness was examined several times and with great minuteness and particularity. The diligence used by him consists according to his statement in his enquiring at Pesie’s late store, at his former residence on Rampart street, and having made enquiries at a coach maker’s, and at a livery stable in the immediate vicinity of the former residence of Peste. At one of these places he was informed that Peste resided in the third municipality, and yet he did not go into the third municipality.

By the agent of the holder of the note, he was also informed that Peste’s residence was in the third municipality. To constitute due diligence which must always depend on the particular circumstances of the case, I think it was the duty of the agent of the' holders of the note on being applied to, for information as to Pesie’s residence, to have made some efforts to ascertain it, and that it was the duty of the notary’s clerk when he went to Petitpain, to have endeavored to find out from him where his son-in-law’s residence was, and to have gone into the third municipality where he had been informed Peste lived and there made enquiries for him at public places. The proposition of the appellant’s counsel, that with proper diligence and enquiry, the presentment and demand of payment could hate been made at Peste’s residence is, I think, fully sustained by the evidence. It is not only shown that he had a residence in the city, which must have been known to many persons living in the third municipality, but it is shown that process from the courts had been served on him, at that domicil. 1 cannot consider as of much weight the testimony of one of the officers of the court, that he had tried for some time to find Peste’s residence without succeeding, because this witness does not state the means used by him to find the residence, and it is therefore impossible to judge whether he used due diligence. The certificate of the notary after stating that he had made careful search and diligent enquiry for the drawer, and that he could not find him or his present domicil, goes on to say that it being also the wish of the first endorser that the same should be protested, he had accordingly protested the note. I am satisfied from this certificate and the evidence in connection -with it, that the notary’s clerk did not endeavor to ascertain from Petitpain where Peste resided, and did not go into the third municipality whore he knew Peste resided, because Petitpain, the first endorser, told him to protest the note, and although as to Petitpain, this was sufficient to relieve the notary from the necessity of making a demand of payment from the maker, it did not have this effect in regard to the defendant, Samory, who, I think, is released from liability as endorser, on account of the laehes imputable to the holders of the note.

The judgment of the court below ought in my opinion to be reversed and one rendered for the defendant.

       From, the allusion made by the Chief Justice to the opinion of the District Court, it has been thought proper to insert it. — Rep.
      The defendant being sued as endorser, has raised the technical objection that no demand had been made to the maker of the note at maturity, and therefore that he is discharged.
      It appears that the notary’s deputy, Barrí/, on the day of maturity after three o’clock, went in search of the maker of the note, Victor Feste, and following the indications in the directory for 1858, went first to Rampart street near Toulouse, and upon enquiry in the vicinity, was told that Feste had removed since the beginning of June. Then Barry went to No. 22 Chartres street, the former place of business of Feste, and there did not find him, then he went to the office of the holders of the note, and there was told that Feste had removed somewhere about the Lower Cotton Press. Then Barry applied to the first endorser, Fetitpain, who did not tell him where Feste resided, but told him to protest the note; Barry says that it was after (8) eight o’clock at night when he went to Fetitpain.

      The doctrine is well established that due diligence to find the maker of the note will excuse the want of presentation and demand.
      In this case the difficulty in finding the maker was creat id by his own act, the breaking up of his business and the late removal of his residence.
      The kind of diligence used by the notary, is not certainly of that character which would justify a return of non est wwentus from an officer who has whole days and weeks to institute his search and to make his return, but for the notary who is so limited in point of time, and who has employed four hours in the search of the maker of a note and made enquiries as proved in the evidence, the court must consider that the diligence of that notary, although unsuccessful, covers fully the legal ground, and excuses the want of demand.
      The evasive answer given by Fetitpain who is Feste's father-in-law, may have impressed the notary with the idea thati^iie was concealing himself from his creditors, considering the fruitless search which he had made for him during the afternoon.
      It is therefore adjudged and decreed, that plaintiff recover from 0. Samory four thousand dollars with costs of protest, interest from the day of protest ami costs of suit.


text:
    Baker v. New Orleans, Opelousas and Great Western Railroad Company et al.
    Plaintiff obtained a judgment m solido against A., B. and 0. A. appealed, and the judgment was reversed. But pending the appeal, plaintiff issued an execution against B., and garnisheed A., who answered that he had funds of B., butif the judgment already rendered against him in the suit should be maintained on appeal, then he would owe B. a balance, which would depend on the amount of interest and costs due on such judgment. Held: The garnishees were liable under their answers. Held, also: That the suspensive appeal did not prevent the plaintiff from exercising his right of garnishment against A., who had taken it.
    from the Sixth District Court of New Orleans, Cotton, J.

      Larue & Whittaker, for plaintiff

      M. M. Cohen, for defendants.
   Ogden, J.

The plaintiff obtained a judgment against the New Orleans and Opelousas Railroad Company, and several other defendants in solido, for the sum of $514 and interest. The company, by that judgment, were made liable for the amount of a draft which Kirkpatrick, one of the defendants, had drawn on ffiblis, another of the defendants, who was chief engineer of the railroad, and which it *was alleged the Secretary of the company had accepted on their behalf. The company took an appeal, which has just been decided in their favor. No appeal having been taken from the judgment by Kirkpatrick, the plaintiff caused an execution to issue on her judgment against him, and cited the company, as garnishees, to declare under oath, whether they had, in their hands, moneys belonging to Kirkpatn'ick, to a sufficient amount to satisfy the judgment. As garnishees, by their answering, the company admitted that that they had funds, but qualified the admisson by stating that if the judgment already rendered against them as defendants in the suit should be maintained on appeal, then they would owe Kirkpatrick a balance, which would depend on the amount of interest and costs due on such judgment.

On these answers, we think the Judge of the court below did not err in holding the garnishees liable. The admission that they had funds in their hands belonging to their co-defendant, could not bo affected by such a qualifition.

The objection to the plaintiff’s right to proceed against the company by process of garnishment, because they had taken a suspensive appeal from a judgment rendered against them as parties defendant in the same suit, does not appear well founded, and no reason for such an objection has been suggested.

The judgment of the court below reserves the question as to that portion of the fund which had been previously attached by other parties. We see no reason to disturb the judgment, and it is therefore affirmed with costs.


text:
    Levois v. Burguieres et al.
    The erasure of the name of plaintiff as payee of a note, and the insertion of another name, will not impose on the plaintiff the burthen of proving that the erasure and interlineation were made with the concurrence of the maker; when, from the circumstances, it may be inferred that the object of the insertion of another name was to furnish plaintiff with an endorser — especially where payee waived protest and promised to pay the note — and where plaintiff had possession of it, and where defendant had no equitable defence and his plea was evasive.
    from the Eifth District Court of New Orleans, Augustin, J.

      J. 0. & A. Beatty, for plaintiff.

      O. Belcher and W. M. Mercer, for defendants and appellants.
   Slidell, C. J.

The appeal is by the defendant, Burguieres, from a judg-

ment against him for the amount of a note which presents the following tenor and form:

$709 12 Terrebonne, 23 juin 1853.

Au vingt-cinq janvier prochain je promets payer á l’ordre de Mr. \J. Le-doís ] M. Verret, la somme de sept cent neuf piastres 12 cents, valeur rogue.

E. D. Burguieres.

J. Levois,

Rue Chartres, no. 15.

Endorsed, M. Verret.

I hereby waive protest of the within note, and notice thereof, and consent to be bound as if the-protest had been regularly made, and notice thereof duly given. Houma, Jan. 27, 1854. M. Verret.

The note was annexed as part of the petition. The plaintiff declares upon it as made by Burguieres, to the order of Verret, and by him endorsed. Bur-guieres pleads as follows : “ He denies each and every allegation of the petition, except that the name signed to the note, E. D. Burguieres, is the genuine signature of this deponent, but ho never affixed it to the said note as it now stands, but the said note has been, since his signature, altered in an essential particular, as appears by its face. Wherefore ho prays to be hence dismissed with his costs.”

The plea is equivocal and evasive. It does not suggest that the alteration was made after issuing the note or without his consent.

At the trial a witness testified, that the signatures of the maker and endorser were genuine, and that the erasure of Levois’ name, and interlineation of Verret's, appeared to be made with different ink and in a different handwriting from the body of the note. Then the plaintiff offered the note, and on its admission in evidence, the defendant objected, unless the alteration was first explained, and it was shown to have been made with the concurrence of the maker; but the court overruled the objection, and admitted the note in evidence, with leave to defendant to set up any equities he might have without delaying the cause. No equitable circumstances whatever, tending to show that the alteration could materially affect the maker, or that it had been made without his concurrence, were proved; and the court gave judgment for plaintiff.

Under all the circumstances, taken in connection with the equivocal character of the plea, we are not prepared to say that the court below erred. Lewis, who is now in possession of the instrument and sues upon it, was without dispute the person to whom Burguieres originally intended to pay the amount; Verret, whose name was afterwards interlined, consents, by his endorsement, that Levois shall be the recipient of the amount promised to be paid ; and it seems, therefore, wholly immaterial, in the absence of proof of any equitable circumstances which could possibly involve any disadvantage to Burguieres from a judgment ordering him to pay Lewis, whether Burguieres really consented to the interlineation of Verret’s name or not. If he did not, then he is now paying the party whom he promised to pay. If he did, then the substituted payee, Verret, consents, by the endorsement and delivery of the note to Lewis, that Lewis should receive the money. It will be observed, that there is neither suggestion of fraud, nor the slightest circumstance authorizing a suspicion of it. The circumstances fully harmonize with the hypothesis, that after the note was signed with Lewis as payee, he asked an endorser, and Verret's name was then put in.

As to proceeding to trial against the maker alone, it is sufficient to say that the endorser had died after suit brought, and we see no reason why the plaintiff in such case should be delayed in his pursuit of the co-defendant seperately liable.

Judgment affirmed, with costs.

      The name J. Levois has the mark of an intended erasure, and the word M. Verret inserted just aboye. — Rep.


text:
    Lepretre v. The City of New Orleans.
    from the Second District Court of New Orleans, Lea, J.

      Benjamin & Micou, for plaintiff.

      J. J2. Wolfe, for defendant.
   The plaintiff alleged that the crevasse occurred through the omissions and neglect of the defendant. We concur with the District Judge in the opinion, that under the Act of 3840, p. 127, the city, as proprietor of the lot in front of which the crevasse took place, was not bound, to keep the levees in repair, and that the duty rested elsewhere, and was the subject of ratable taxation. Sections 16, 17, &c.

Judgment affirmed, with costs.

      With the “ Police Jury of the parish of Orleans on the right bank of the river Mississippi.” — Rep.


author: Spopeorb, J.

text:
    Love & Brother v. Captain and Owners of Steamboat Montgomery.
    This was an action for damage to plaintiffs’ store, resulting from the defendants’steamer having drifted against and ruined it. IIeld: In cases of this kind, it is not usual for other courts than those of admiralty, to relieve either party where both have been guilty of a want of proper care.
    PPEAL from the Third District Court of New Orleans, Kennedy, J.

      Thomas, for plaintiffs.

      Wolfe & Singleton, for defendant.
   Spopeorb, J.

The steamboat Montgomery, in a season of high water, effected a landing at the town of New Carthage, in the parish of Madison. As the water was over the bank, she made fast to a flatboat, a short distance above a storehouse belonging to the plaintiffs. - There were trees close at hand, to which she might as easily have fastened her lino. There being a strong current, the steamboat and flat began to drift down stream and it was evident that the rope, by which the flat was tied to a tree, was about giving way. Some one on the flat then cast off the line of the steamboat, and she swung against the plaintiffs1 storehouse, with such force as to knock it from the pillars upon which it stood above the overflow, and convert it into a ruin.

The plaintiffs insist that the owners of the steamboat should indemnify them for the loss of their house, and the damage done to a lot of hardware, crockery, drugs and merchandise, stored therein.

There was a judgment for the defendants in the court below.

The appellants contend, that as the storehouse had no power of locomotion, the burden is on the defendants to prove beyond a reasonable doubt, that the collision was the result of inevitable accident. This would bo a correct view of the law in a case where the complainants acted with proper caution themselves or, at least, contributed nothing to occasion the loss complained of.

But hero the plaintiffs owned the flatboat. They moored her at the spot where the steamboat found her, about forty yards above their store, in a swift current, or between two cross currents. They moored her there expressly for a steamboat landing, and, no doubt, made the usual profits out of the investment. Moreover, a passenger, the only witness who gives any intelligible explanation of the catastrophe, and who was examined originally on behalf of the plaintiffs, but whose evidence was offered by the defendants, says that ho believes it was Mr. Love himself (one of the plaintiffs) who cast off the steamer’s line from the flat, to which it had been fastened. It does not appear that he remonstrated against her being thus fastened, or requested the officers of the boat to make fast to any other object. So the plaintiffs themselves are in fault. They should have moved their temporary landing further away from their house, or made it more secure, or, being present, should at least have warned the officers of the Montgomery of its insecurity.

It may be true that the defendants were also in fault.

But, in cases of this kind, it is not usual for oilier courts than those of admiralty jurisdiction, to relieve either party whore both have been guilty of a want of proper caro. Vanderplank v. Miller, 1 Moody & Malkin, 171. 3 Kent’s Com. p. 231. Myers v. Perry, 1 Ann. 374. Carlisle v. Holton, 3 Ann. 48.

The judgment is therefore affirmed, with costs.


author: Spoitokd, J.

text:
    Campbell v. Boute.
    An affidavit for an injunction that “ the allegations contained in the petition, and which render an injunction necessary, are true,” is defective.
    from the District Court of the parish of Jefferson, Burihe, J.

      Hiestand and Sundstrom, for plaintiff.

      Purvis & Dugui, for defendant.
   Spoitokd, J.

The injunction sued out in this case was dissolved on account of the insufficiency of the affidavit.

The plaintiff made oath that “ the allegations contained in the petition, and which render an injunction necessary, are true.”

This is precisely such an affidavit as was held to be defective in the case of Ricard's Heirs v. Hiriart, in 5 L. R. 244.

The affidavit for an injunction should be positive and unequivocal. See Rice v. Walsh, 4 Ann. 346. Hebert v. Joly, 5 L. R. 52. Canal Bank v. Carriel, 3 Ann. 225.

We see no reason for overruling these decisions.

Judgment affirmed, with costs.


author: Slidell, 0. J.

text:
    F. Riera Hermanos v Duvigneaud & Pauvert.

      Pauvert had invented a method of clarifying sugar, and had associated Pv/oigneamd with him in the enterprise of obtaining a patent for it in their joint names in Cuba, and selling the right of using it to planters in that island. Their expectation was to receive a remuneration from the planters, in the form of a certain charge upon each box of sugar clarified by the process, of which Pmigneavd was to have a per centage. Held: These social purposes and engagements constituted the parties ordinary and not commercial partners. C. C. 2796, 2843. Held, also : That Pwvigneamd was not bound on a bill drawn by Pawoert; but the money advanced on it having gone to their joint benefit, Pvmigneamd should be bound for one-half, as an ordinary partner.
    PPEAL from the Third District Court of New Orleans, Kennedy, J.

      C. Schmidt, for plaintiffs.

      Le Qcwdeur and Filleul, for defendants.
   Slidell, 0. J.

That Duvigneaud and Rauvert wore partners, is clearly proved. We are not satisfied, however, that they were liable as commercial partners, as is charged by the plaintiffs. The nature of their association was this: Pauvert had invented a method of clarifying sugars, and associated Duvigneaud with him in the enterprise of obtaining a patent for it in their joint names in Cuba, and selling the right of using it to planters in that island. Their idea was, to receive remuneration from the planters in the form of a certain charge upon each box of sugar clarified by the process, of which Duvig-necuud was to have a per centage. These social purposes and arrangements did not bring them within the catigory of commercial partners as defined by our Codo, and Duvigneaud therefore is not liable in solido. See 0. 0. 2790, 2843.

It appears that both partners went to Cuba, and were in direct communication with the plaintiffs, who from time to time attended to their affairs and made advances. On the 14th of June, 1852, Pauvert gave the plaintiffs, at Havana, his bill of exchange on a house in Now Orleans, at twenty days sight, for $2,855. This bill was protested for non-acceptance. Its amount, with interest and damages, is claimed from the defendants, and its consideration is stated to have been advances for the partnership of Dmigneaud & Pauvert.

Wo concur with the District Judge in the opinion, that without special authority, Pauvert had no right to bind his partner by bill of exchange; but as wo have observed, the action is not founded merely on the bill, and we think it satisfactorily proved that the advances in consideration of which it was given, were made for the partnership. Among other evidence tending to this conclusion, are a letter of Dmigneaud to the plaintiffs, and a letter of the plaintiffs to Twibill & Edwards, which was offered by Pauvert, and received without objection b}r Duvigneaud. In the former, dated 9th of June, 1852, Duvigneaud uses the following language : Comino vous nous avez considérablemcnt aide dans cotte operation et quo vous avez fait des débours qu’il faut que nous vous remboursions, j’espere, messieurs, qup vous voudrez bien avoir égard á la position malheureuse dans laquelle je me trouve en ce moment, et m’allouer jusqu’á I’automne pour vous remboursor les dépenses que vous avez faites. In the other letter, which was offered for the purpose of showing that the plaintiffs had retained possession of certain machinery delivered to them by defendants, or one of them, the advances of plaintiffs to Duvigneaud & Pauvert, are stated approximatively at $2,800. These letters, taken in connection with the other evidence in the cause, satisfy us that Dmigneaud should be held jointly liable for the amount of $2,855. He cannot, however, be held under the evidence, for damages on the protested bill.

Pauvert acquiesces in the solidary judgment rendered as to him by the court below.

The qualification as to the execution of the judgment, appears to us sanctioned by the equitable ruling in West v. McConnell, 5 La. 428.

It is therefore decreed, that the plaintiffs recover of the defendant, Louis Dmigneaud, the sum of $1,827 50, by reason of his indebtedness as a partner of the firm of Duvigneaud & Pauvert, and as his vorile share, with costs in both courts, the judgment against Pauvert remaining undisturbed; the right of execution against Dmignecmd being subjected to the same qualification as was imposed by the District Judge as to the execution against Pauvert.

         Judgment of District Court. — Pa/mert is liable beyond question. The case is not so clear against Dumgnemcd. He was undoubtedly a partner of Pamert; but the evidence does not show unequivocally that he was a commercial partner according to the definition of the code. If he was an ordinary partner only, there is no evidence that Pa/mert had a right to bind the firm by drawing bills of exchange. Story on Partnership, p. 1S9. Consequently the bill sued on is not evidence of the amount due by the firm; and there is no other evidence in the cause to supply the defect.
      It appears that property of Pa/mert, or of the partnership, has been “ embargado''' in Cuba, by the plaintiffs, lor the security of their claim. Prom the explanation of their counsel and the dictionary, I understand this word to be equivalent to sequestrated. Pwmert is consequently entitled to the relief extended to the defendant in the case of West, Syndic, v. MeConnell, 5 L. R. 424. Judgment of nonsuit against plaintiffs in favor of Dmigneaud, with costs; and judgment in their favor against Pa/mert, lor $2,055, with legal interest from the 21st of June, 1852, six dollars costs of protest and costs of suit, except those occasioned by making Dmignea/ud a party. It is further ordered, that no execution shall issue upon this judgment, until the plaintiffs shall file in this court, evidence that the proceedings against defendants or Pa/mert's properly in Cuba, have been legally dismissed, or until they enter as credit on this judgment, the net amount of the proceeds of the property “ embargado''' or sequestrated by them, should their said proceedings bo carried on to a sale.
      It is adjudged and decreed, that there bo a judgment of tc nonsuit” against the plaintiffs, in favor of Jj. Dmigneaud, with costs. It is further adjudged and decreed, that the said plaintiffs, Miera, hermanos, recover of the defendant Gaston Darnert, the sum of two thousand six hundred and fifty-live dollars, with five per cent interest from the 21st of June, 1852, until paid, six dollars costs of protest and costs of suit, except those occasioned by making Dmignea/ud a party. It is further ordered, that no execution shall issue upon this judgment, until the plaintiffs shall file in this court, evidence that the proceedings against deiendants or PawoerPs property in Cuba, have been legally dismissed, or until they enter as credit on this judgment, the net amount of the proceeds of the property utt/tibarya&o" or sequestrated by them, should then said proceedings be carried on to a sale.


text:
    Arthur & Co. et al v. Dickson.
    In a commutative contract, where the plaintiff tenders performance, if the defendant refuse to comply with his part of the obligation without a material modification, a formal putting in default is unnecessary.
    PPEAL from the Fourth District Court of New Orleans, Reynolds, J.
    11 Wolfe & Singleton, for plaintiffs.

      Olorice & Bayne, for defendant and appellant.
   Buchanan, J.

This is a claim for freight of cotton, engaged but not shipped. It is proved, that in May, 1853, the steamboat Post Boy, being on a voyage up Red River, the defendant, who is a planter, residing on the banks of said river, some milesbelow Fulton, in the State of Arkansas, made a bargain with the Captain of the Post Boy, to stop on his return trip, and take on board one hundred and fifty bales of defendant’s cotton, to be conveyed to New Orleans, at the rate of five dollars per bale freight; that the boat wont some distance further up the river, and was offered more freight than she would take, reserving the storage room for defendant’s cotton engaged as aforesaid ; that on her return down the river, the boat was landed at defendant’s landing, and the defendant was requested by the captain to furnish the freight according to agreement; which defendant refused to do, unless the captain would take less than the price agreed upon; whereupon the boat proceeded down the river to Now Orleans, when this suit was brought'by attachment in the month of June, 1852, for seven hundred and fifty dollars, being the amount of freight which would have been received, had the defendant shipped his cotton according to contract.

These facts are established by several witnesses offered by plaintiffs. No evidence whatever has been offered by defendant, who relies'altogether upon the want of a technical putting in default, to reverse the verdict of the jury and the judgment of the District Court.

We do not consider it necessary to go into the question of whether this case is to bo governed by the peculiar legislation of Louisiana, or by the general commercial law as recognized in Arkansas; inasmuch as the circumstances present more than a passive violation of a contract. The Post Boy, as we have seen, offered to take the freight, which was refused. The proof on this point is as follows: John M. Ooit, first clerk, says — ■“ As the boat returned, she stopped at John Dickson’s place to collect a freight bill, and to receive on board the cotton engaged as the boat ascendedand when witness asked for the cotton, John Dielcson replied, that he could not have it, unless ho took it for a price less, without mentioning any price. Witness refused to take the cotton for less than five dollars per bale.”

And William Shoemaker, pilot, testifies: “The said steamer, on her return trip, was landed at Dickson’s landing, and was landed there by order of the captain.”

In a commutative contract, where the plaintive tenders performance, if the defendant refuse to comply with his part of the obligation, without a material modification, a formal putting in default is unnecessary, New Orleans and Nashville Railroad Company v. Ganahel, 18 L. R. 510.

Judgment affirmed, with costs.