author: Ilslet, J.

text:
    No. 1052.
    Philip Devot & Co. v. E. Marx.
    The prescription of one year, under Article 3501 of the O. 0., does not apply in an action against a n-gotiorum gestor to enforce a quasi contract.
    A new trial will not be granted on the ground of newly discovered evidence, when the alleged newly discovered evidence, if offerred, would be inadmissible under the pleadings.
    "Where the Oourt below has exei*cised a sound, legal discretion in overruling a motion for a new trial the Supreme Oourt will not interfeie.
    A contract made in 1862, between French subjects residing in France, on the one side, and persons residing within the rebel lines, and within the limits of the insurrectionary States of the United States, on the other, was not a traffic between enemies forbidden by the law of nations, the President’s pi’oclamation or the acts of Congress.
    The proclamation of the President of the United States, and the acts of Congress,approved July 13th, 1861, only interdicted and prohibited commercial intercourse as unlawful, between the inhabitants of the eleven States named on the one side, and the citizens of the rest of the United States, on the other side. 12 U. S. Statutes at Large, 1862.
    A PPEAL from the Fourth District Court of New Orleans, Tkéard, J.

      Buchanan c& Gilmore, for plaintiffs and appellees.

      E. W. Huntington and W 11. Hunt, for defendant and appellant.
   Ilslet, J.

The plaintiffs, residents of Havre, France, purchased through their agent, John Gauche, of New Orleans, at Woodville, Miss., from E. Marx& Co., 59 bales of cotton, and from M. Simon & Co., 10 bales.

These purchases were made in the latter part of March, 1862, and the invoices in evidence are dated the 1st April, 1862.

The weight of the 69 bales, thus purchased, was 30,027 pounds, and the cotton was paid for.

Marx & Co. stored this cotton in the warehouse of Jacob Shlessinger,at Woodville, on the 1st April, 1862, and Marx & Co., by a letter dated 2d April, 1862, advised Gauche thereof.

Invoices of the 69 bales of cotton, thus stood in Woodville for the 'account of the plaintiffs, with proof of ownership annexed, were deposited in the archives of the French Consulate in New Orleans, on the 6th "of April, 1862, and the French Consul certified the same to be French property.

This cotton remained stored in Schlessinger’s warehouse until some time ■in the year 1863, when the defendants, acting as the self-constituted agents 'of the owners, removed the cotton from the warehouse to a plantation some three miles distant, belonging to one Netterville, where they remained for a period of time, which the evidence does not determine.

' By a letter dated 26th July, 1864, the defendants informed Gauche that they still had control of the cotton at the place to which it had been ¥é’moved, and Marx therein tells Gauche that he has an offer for the cotton of twenty-five cents a pound, in Louisiana State Bank notes, and 'advises Gauche to authorize him to accept the offer, as “ I see no prospect of removing it.”

The letter concludes by requesting Gauche to instruct the writer what he shall do.

:: Gauche gave no authority to sell the cotton, and heard no more of it till informed by one Leob, that Marx had sold the cotton.

In December, 1865, the defendant had an interview with Gauche in New Orleans, and informed him that he had sold the cotton in question, but did not say to whom, or the price he had received for it.

Marx, the defendant, was brought into Oourt by personal service of citation, on the 20th January, 1866.

The plaintiffs claim their cotion, 30,027 pounds, or its value, stated and proved to be worth fifty cents per pound, its value when the suit was brought.

The defence set up is, 1st: a general denial; 2d, a denial that plaintiffs were the owners of the cotton; and 3d, plaintiff could not legally acquire property within the rebel lines, on the 1st April, 1862, and upon these issues the ease was tried in the Court below. After the cause had been submitted for decision, the defendant filed a plea of prescription of one ■year in bar of the action, which was x>roperly overruled by the Court below, as the action is evidently against a negoiiorwm. gestor in a quasi contract, and is governed by Article 3508, and not by Article 3501, C. C.

The District Court, having rendered judgment in favor of the plaintiffs for the value of the cotton as prayed for by them in the alternative, the defendant made an apx>lication for a new trial upon the ground of newly discovered evidence, which he based upon an affidavit extant upon the record.

This affidavit declares that defendant can prove by two witnesses, Loeb and Stewart, that the cotton sued for by the plaintiff was in part destroyed while being hauled from Woodville to Netterville’s, and that the only part of the same saved was thirteen bales, weighing 5,962 pounds, which was all that came into the possession of the defendant, and for which he can be held resxmnsible. No such defence as this was pleaded in the defendants’ answer; and a new trial will not be granted to prove what has not been pleaded. Landry v. Banquin, 17 La. 84. Cox v. Bethaney, 10 La. 156.

Another ground was urged in support of the application for a new trial, to wit: that the judgment does not conform to the prayer of the plaintiffs’ petition. It was proved on the trial, that the sixty-nine bales which the defendants had taken possession of, had been sold by him, and gone out of his hands. A judgment for the delivery of the cotton would, therefore., have been nugatory.

This Court will not interfere when, as in the present case, the Court below has exercised a sound, legal discretion, in overruling an application for a new trial. 6 An. 753. 2 An. 265. 10 Bob. 57.

The plaintiffs’ title to and ownership of the cotton, its value when the suit was brought, and the defendants’ liability to the plaintiffs for that value, are clearly established, unless when the plaintiffs purchased the cotton they were not in a condition legally to acquire property within the rebel lines. The argument of the plaintiffs on this plea, set up by the defendant, meets the concurrence of this Court. They say, “the plaintiffs, French subjects, residents in France, bought on the 1st of April, 1862, through their agent, John Gauche, a resident of New Orleans, from Marx & Co., and Simon & Co., residents of Woodville, Miss., sixty-nine bales of cotton, then being in Woodville.

Both Woodville and New Orleans were, on the 1st April, 1862, within the rebel lines. New Orleans was captured and occupied by the Federal forces on the 25th of April, 1862, and Woodville not until the end of the war, in March or April, 1865.

At the date of the purchase a state of war existed, but both buyer and seller were on the same side of the hostile lines. It was not a traffic between enemies forbidden by the law of nations, nor by the President’s proclamations and the acts of Congress. There is no principle of the law of nations better settled, than that no traffic or commercial contract can lawfully subsist between the inhabitants of one or two belligerent States and those of the other [belligerent State. Kent’s Commentaries, vol, 1, pp. 74, 77.

The doctrine, respecting the illegality of any commercial intercourse between two nations at war, was extensively received and settled in the leading case of Griswold v. Waddington, 15 and 16 Johnson’s New York Beports. See also Scholefield v. Eichelberger, 7 Peters, 586. But this doctrine is not applicable to the contracts for the purchase of cotton involved in the present controversy. The proclamation . of the President of the United States of the 16th of August, 1861, is the authentic and official guide for the ascertainment of the geographical lines which separated the hostile parties during the late civil war and rebellion.

In that proclamation, President Lincoln declares, in pursuance of the 5th section of an act of Congress, approved July 13th, 1861, (12th U. S. Statutes at Large) that the inhabitants of eleven States named, (including Mississippi and Louisiana) are in a state of insurrection against the United States, and that all commercial intercourse between those States and their inhabitants, on the one side, and the citizens of other States, and other parts of the United States, on the other side, is unlawful, and will remain unlawful until such insurrection shall cease, or has been suppressed. 12th U. S. Stat. at Large, 1262.

The words of the act of Congress, referred to in this proclamation, are as follows:

“ And thereupon” (the proclamation of the President) all commercial intercourse between the same (the proclaimed States) and the citizens of the rest of the United Slates shall cease, and be unlawful, so long as such condition of hostility shall continue. ” The difference of expression between the act of Congress and the President’s proclamation, is not material. Commercial intercourse between the citizens of Louisiana or resident citizens of France, on the one side, and citizens of Mississippi on the other, in the month of April, 1862, was, therefore, clearly not unlawful.

For the reasons by the District Court, and those now by us assigned, it is ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby affirmed, at the costs of the appellant.

Rehearing refused.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    Nos. 904 & 905.
    Succession of J. C. P. Wederstrandt.
    J. O. P. Wedersfcrandfc'owned a plantation in the parish of Plaquemines, La., which he left in charge of Pierre Oazenave, his agent and factor, and went to New York in 1863, where he died in the month of February, 1864. Previous to his death he made a will, wherein he appointed Pierre Oazenave (his agent) testamentary executor of his succession, who qualified as such on the 19th of March, 1864; prior to the time the executor qualified, a crop was planted, and in a growing condition under his direction as agent; the agent, on becoming the executor, continued the working of the crop through the season, with the full knowledge of the creditors and legatees: - Held—That whatever the executor has necessarily paid out in carrying on the plantation should be allowed in the settlement of his accounts.
    The fact that he did not call a meeting of the creditors under Article 1160, C. O., cannot throw upon him all the expenses incurred in good faith, and make him at the same time pay over the proceeds of the crop.
    Where the executor of an estate has filed an account of his administration, and all the credits are admitted, and ali the debits are denied, and the account appears to be fair and reasonable, the presumption is in favor of the executor, who is an officer of the Court, and positive and direct proof of every item is not required.
    A PPEAL from the Second District Court of New Orleans, Thomas, J.

      G. Roselius, and Budd <& Lambert, for executor.

      Buchanan & Gilmore, and G. W. Morse, for Mrs. Isaac E. Morse.

      J. Ad. Rozier, for Mrs. Johnson, Mrs. Smith, and Miss E. Boyce.
   Howell, J.

On the 18th of March, 1865, Pierre Oazenave, testamentary executor, filed a provisional account, to which various oppositions were made, and from a judgment disposing thereof an appeal has been taken by all the opponents except one, who asks its affirmance. Only such grounds of opposition will be examined as have been urged before us, according to the rules of this Court.

I. The accounts of disbursements and expenses in carrying on a large plantation, in the parish of Plaquemines, are opposed on the grounds that the executor was without legal warrant to work the said plantation, but he should have sold or rented the property.

The testator, it seems, left here in the spring of 1863, leaving Oazenave, his agent and factor, and died in New York 9th February, 1864, having made a will, appointing said Oazenave his executor.

The evidence does not show that the plantation could have been advantageously leased after the death of the owner. An application to rent it was made prior to that event, but Cazenave, the agent, being without authority, declined, and the applicant refused to wait until the authority could be obtained. The executor qualified on 19th March, 1864, at which time the plantation was under cultivation in accordance with the previous instructions and wishes of the owner, and with every prospect of realizing a large revenue.

It appeared then to be to the interest of the creditors and legatees that a crop should be made, and no objection seems to have been suggested until after the crop was materially damaged in the summer and fall. The parties now opposing had their remedy, but they chose to remain silent, and to acquiesce in the course pursued by the executor. The fact that he did not call a meeting of the creditors under Article 1160, O. C., cannot throw upon him all the expenses incurred in good faith, and make him at the same time pay over the proceeds of the crop. Whatever he has necessarily paid out in carrying on the'plantation should be allowed. It is urged, however, that these disbursements have not been satisfactorily proven. All credits in the accounts are admitted, and all the debits denied. Under such a general objection, we think, that where the account appears to be fair and reasonable, the presumption is in favor of the executor, who is an officer of the Court, and that the positive and direct proof of every item is not required. The clerk of the executor testifies positively to the correctness of the accounts, in this instance, and we find in the record several orders of Courts, authorizing purchases and payments, and many vouchers sustaining various items, which, together are sufficient, in our opinion, to sustain said accounts, in the absence of specific oppositions. The items, $1,807 88 and $1,460 60, are properly allowed. The item of $27,817 55, opposed in the same manner, is the total indebtedness of the deceased to his factor, Cazenave, “as per account current rendered,"’ up to 1st March, 1864, and interest to date of filing the tableau, and is reduced by credits to $7,381 56, balance due. In a letter written by the deceased on 18th November, 1863, he states his indebtedness to Cazenave, on 1st May preceding, to be about $21,000, which, with other evidence, including memoranda of instructions and letters from deceased to Cazenave, and the rule relating to the “ stated accounts ” of commission merchants, will authorize the allowance of this balance. No special objection is made to any item in this account current, which is in evidence, and to the correctness of all the items of which the clerk testifies from personal knowledge.

II. The item of $1,109 78, “due by Mr. and Mrs. Morse,” was stricken out on the opposition of the said Mrs. Morse, based on the ground that she is a creditor instead of a debtor to the estate, and entitle to the money received by the executor from J. Grassin for rent, under the written consent of the deceased.

The item is composed of $600, for two months’ rent of house 157 Camp street; $175 rent received from J. Grassin, and $334 78, sundries furnished Mr. Morse and family.

The other opponents also object to this item, on the ground that it should be charged to the executor.

The ■written consent referred to, and dated in March, 1863, is to the effect that Mrs. Morse should occupy the residence of the deceased, and the rent of $100 a month be considered an equivalent for the interest on his note for $15,000 held by her. The interest is credited on the note up to 1st January, 1864, and Mrs. Morse, the holder,, is credited in the .tableau for the interest thereon from said date to filing the tableau in 1865. The rent claimed is for ten months, ending on 30th November, 1864, at $60 per month; that is, for the period intervening between the death of the deceased and the sale of the said house.

The agreement, therefore, if of any binding effect, does not apply, and getting credit for the interest, there is no good reason why she should not pay the rent, which is claimed for a much less amount than stipulated in the written consent or agreement. As to the rent received from Grassin for store, the consent of the decedent was conditioned, that Mrs. Morse should credit the amount received on the said note held by her, which is not done, and she must, consequently, account for the same, the amount of which is not disputed.

We think, therefore, the probate Judge erred in striking these two sums from the account; but we agree with him as to the third item. The .value of the articles furnished to Mr. and Mrs. Morse was compensated by the services rendered by Mr. Morse on the plantation.. No objection was made to the proof of such services as an equivalent to the charge.

. III. Opposition is made to a note for $17,000, in favor of Bank of Louisiana, secured by mortgage on the residence in New Orleans, and held by Mrs. Morse, on the ground that she purchased the note for one-third of its amount, and being a universal legatee must be deemed a negoiiorum gestor in the purchase, and not be permitted to benefit herself to the prejudice of her co-legatees. To this it is successfully replied, that without proof of an intention to act in such character, Mrs. Morse, although a legatee in a succession insolvent ah initio, must be viewed as any other purchaser of the note, and as much entitled to its payment as if the bank had given it to her. She obtained a valid title to it, and its appearance in the tableau is correct. The succession is credited with the price of the mortgaged property, and charged with the amount of this note, to be paid to Mrs. Morse, and the surplus of the price, thus balancing the entry, and showing the destination of the proceeds or price.

. It is therefore ordered, that the judgment appealed from, be set aside, so far as it sustains the opposition of Mrs. Isaac E. Morse, and it is now ordered that her said opposition be so far maintained only as to strike from the “ item due by Mr. and Mrs. Morse,” the sum of $334 78, “amount of bill of sundries delivered to them from Harlom plantation, ” and that as thus amended, the judgment be affirmed.

Costs of appeal to be paid by Mrs. I. E. Morse, appellee.


author: InsnEY, J.

text:
    No. 892.
    Meekins, Kelly & Co. v. Their Creditors.
    'j he exercise by Congress of the constitutional power, vested in them to establish a uniform system of bankruptcy, repeals the insolvent laws of each particular State.
    The United States bankrupt law does not, however, divest the State Courts of the jurisdiction necessary to the final administration of the estate of an insolvent who had made a surrender previous to its passage
    A PPEAL from the Third District Court of New Orleans, Fellowes, J.

      Buchanan & Gilmore, for plaintiffs and appellees.

      Whilaher & Fellows, for appellants.
   InsnEY, J.

This case presents the first application by this tribunal of the act of Congress, approved 2d March, 1867, entitled ‘‘ an act to establish a uniform system of bankruptcy throughout the United States.”

By the 50 th section of that act, it is in force for certain purposes from the date of its approval.

The legal effect of this exercise by Congress of a power vested by the Constitution of the United States, is to repeal the insolvent laws of each particular State. Sturges v. Crowninshield, 4 Wheat. 122; Clarke v. Rosemba, 5 Rob. 27; Beach v. Miller, 15 An. 602. Story on the Constitution, l 1114.

And this well-settled doctrine received a legislative sanction in Louisiana by the act of the 27th March, 1843, to revive the insolvent laws of Louisiana, an act passed immediately after the repeal by Congress of the United States Bankrupt Act of 1841.

Has this Court jurisdiction to decree, as it is asked to do by the appellant, that this cause be remanded to be proceeded with as a cessio bonorum, notwithstanding the repeal of the State insolvent laws ?

The proceeding in the lower Court commenced by an application on the part of the plaintiffs, Meekins, Kelly & Co. for a respite, and the present appeal is taken by an opposing creditor from a judgment of the District Court, rendered in January, 1866, granting the respite.

Aa examination of the vote given at-the meeting of creditors, and a comparison of that vote and the schedule filed, have failed to satisfy us that there has been a legal majority in favor of the respite, and the proceedings resolved themselves instantaneously into a cessio bonorum, which was accepted; and the acceptance of the cession vested all the property of the debtors in their creditors, and proceedings continue as if the cession had been offered in the first instance. Art. 3065, La. Code. Arcenaux v. His Creditors, 3 La., p. 38.

In the case of West v. His Creditors, 5 Rob. 261, the doctrine is clearly announced, that the State tribunals were not deprived by the United States Bankrupt Law of any portion of their jurisdiction, necessary to the final administration of the estate of insolvents who had made a surrender previous to its passage, and we consider this the settled jurisprudence of the State. 8 Rob. 123. 4 An. 490. 15 An. 602. And that it is as applicable to the United States’ Bankrupt Act of 1867 as to that of 1841, to which last act of Congress the decisions refer.

It is therefore, for the reasons assigned, ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed ; it is further ordered, that the case be remanded, and that proceedings therein continue as if the cession had been offered in the first instance by the plaintiffs, costs in both courts to be paid by the insolvent estate.

Rehearing refused.


author: Hyman, C. J.

text:
    No. 1311.
    Stephen Windham v. David Cerf.
    Courts of justice will not lend assistance to enforce or annul contracts when the consideration is illegal and reprobated by law.
    A
    PPEAL from the District Court, Parish of East Feliciana, Posey, J.

      J. McVea and J. II. Muse, for plaintiff.

      Breaux & Fenner, and W. F. Kernan, for defendant.
   Hyman, C. J.

Plaintiff sued to have the sale of a tract of land, made by him to defendant, in 1865, annulled, on the ground of lesion.

Defendant raised several grounds of objection to the suit, which we do not notice, as the plaintiff, in his petition, made an averment that deprives him of the aid of the Court in his attempt to set aside the sale. The averment is, that he received from the defendant as the consideration of the sale, the sum of ten thousand dollars in Confederate money, then greatly depreciated.

The plaintiff, by so contracting, gave confidence and credit to written obligations isssued and used by rebels in carrying on war against the government.

The fact that he did not receive a sufficient consideration for the land sold by him to defendant, does not make the contract of sale any the less illegal.

This Court will not lend assistance, either to enforce or annul such contracts.

Let the judgment of the District Court be reversed, and the suit be dismissed at plaintiff’s costs.


author: .Hyman, C. J.

text:
    No. 1443½.
    Albert A. Pray v. Frank Herber & H. Blaese.
    Where a written obligation for money expresses a condition precedent to its payment, and the party on whom, the condition is imposed, seeks to avoid payment on the ground of its failui*e, he must state that the failure was not through his fault or negligence.
    A PPEAL from the Sixth District Court of New Orleans, Howell, J.

      F. W. Huntington, for plaintiff and appellee.

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

This is a suit against defendants on a promissory note, drawn by Herber to the order of and endorsed by Biaese, payable on condition that Herber should be able to renew a lease of the “Wood House,” in New Orleans, for two years. The defence is, the failure to obtain a renewal of the lease. The evidence shows that Herber could have obtained from the owner of the house a renewal of the lease for two years, for the price at which it had been rented. He chose not to do so, but required a reduction of the price.

Defendants have appealed from a judgment, condemning them to pay the amount of the note, interest thereon, and the cost of suit.

Let the judgment be affirmed, at the costs of defendants.

Howelxj, J., recused.


author: Labauve, J.

text:
    No. 909.
    Succession of W. G. Stephens.
    The jurisdiction of the Second District Court of New Orleans, over the persons and property of minors, whose parents had died within its limits, and to whom it had appointed a tutor, who has since died, is not divested by the removal of the minors to another btate.
    Where minors have removed to another State, after the death of their tutor in this State, and guardians have been appointed thereto by competent judicial authority, such appointments will not be recognized by the Probate Court of this State having jurisdiction of the minor’s property. They must qualify as tutors to the minors, according to the laws of this State, before they can sue for or obtain possession of the property of the minors.
    A PPEAL from the Second District Court of New Orleans, Thomas, J.

      Durant & Hornor, for appellant.
   Labauve, J.

This is an appeal taken from a judgment of the lower Court, refusing to recognize the petitioners as guardians, respectively, of Geo. W. Stephens, aged about nineteen years, and Catherine Stephens, a girl aged about twelve years. This is an ex parte application, which was passed upon by the Judge on the face of the petition and letters of guardianship issued out of this State.

The jietition reads thus:

“ The petition of Meloin Stephens, who resides in the State of New York, and of Susan M. Hawley, a single woman, who resides in Tecumseth, in the State of Michigan, respectfully shows that William G. Stephens, a resident of this city, died on the 25th of November, 1861, and his succession was opened on the 10th of December, 1861, under No. 18,595 of the docket; that Gideon Stephens was appointed and qualified administrator thereof, and the proceedings still pending, and the succession unliquidated and unsettled; that at the time of his death, Wm. G. Stephens was a widower, having- been twice married, first to Oatherine Hawley, of the State of New York, and recently to---of the city of New Orleans, and by his first marriage, the said Stephens had two children, a boy named Geo. W. Stephens, now aged about nineteen years, and a girl named Catherine' Stephens, now aged about twelve years; that these minors were, upon consultation with and consent of the relations of the deceased, and for the advantage and benefit of the said minors, taken from the city of New Orleans; and the boy, George, domiciled in the family of Nathan Stephens, in New York, where he still is, and the girl, Catherine Stephens, domiciliated inTecumseth, Michigan, where she still is:

“ The said Nathan Stephens, being the brother of the deceased, and the said Susan M. Hawley, the sister of the first wife, and maternal aunt of Catherine, her ward; and that this removal of the minors was effected in the month of June, 1862; that these minors are the sole heirs of the deceased, the issue of the first marriage, and there was no issue of the second marriage; that on the 25th of April, 1864, Gideon Stephens, administrator, and the father of the deceased, convoked a meeting of the family, under whose recommendation the Court appointed by virtue of the fourth section of the act of 15th March, 1855, M. H. Flanagan, tutor, and Thomas H. Burke, under-tutor, who were both regularly qualified; that subsequently, to wit: on the---- 1864, the said Flanagan died, and these minors have been left without a tutor ever since that date in Louisiana.

’“-Petitioners show that to obviate these embarrassments in the settlement of Jjhis succession, one of them, to wit: Melven Stephens has obtained letters of guardianship for the minor, George W. Stephens,'from the Surrogate of'King’s county, New York, under date of the 26 th December, 1865, and petitioner, Susan M. Hawley, obtained letters of guardianship for the minor, Catherine, from the Probate Court for the county of Jackson, both of which are made part hereof, from which it appears that both petitioners have been duly appointed and qualified according to the laws of .the State where the appointments were made, and where the minors reside.

.. “Wherefore, petitioners pray that they be recognized as guardians of the said minors, and as such, entitled to sue for and recover anyproperty, rights or credits belonging to the said minors in this State, and relieved from the necessity of qualifying as tutors of said minors, according to the laws of this State, and they pray for general relief.”

■At the foot of the petition, all the facts and allegations contained in said petition, are sworn to by one of the petitioners.

The letters of guardianship are found in the record, and show the appointments of tutors as made, respectively, in the States of New York and Michigan.

The Court below rendered judgment that the prayer of the petition be not granted.

The petitioners appealed.

■ This case involves a question of jurisdiction, which must be tested by fixing the domicile of the minors.

, It is well settled that the domicile of the tutor is that of the minor. Civil Code, Art. 48. 2 R. 160. 14 A. 565. W. G. Stephens, the father of the minors, was a resident of and died in the city of New Orleans, on the 25th November, 1861, and his succession opened on the 10th December, 1861; he left at his death the said minors, to whom M. H. Flanagan was duly appointed and qualified as tutor, and he subsequently died in 1864, and the minors remained without a tutor. The petitioners subsequently caused themselves to be respectively appointed in the States of New York and Michigan.

These minors were removed from this State by their relations in June, 1864.

It is clear that the domicile of their father and of their deceased tutor, Flanagan, was in this city, where they were left unprovided with tutor, by the death of Flanagan. Their domicile was then here, and the question is: did their removal from this State, change and remove also their domicile, and divest the Court of New Orleans .of its jurisdiction over their persons and property? We think not: the tutorship was opened and vacated here, where their tutor resided at the time of his death, and. no Courts, even in this State, had jurisdiction to fill the vacancy, except the probate Court of New Orleans. 13 A. 265. C. C., Art. 289. The appointments of petitioners are nullities.

It is therefore ordered and decreed, that the judgment appealed from be affirmed, with costs.


text:
    No. 1433.
    The State, ex rel., Kearny, Blois & Co., v. The Judge of the Second District Court of New Orleans, et al.
    This case involves only a question of fact.
    A . PPEAL from the Second District Court of New Orleans, Thomas, J.

      G. L. Bright, for Kearny, Blois & Co.
   Reporter.—The facts are stated in the opinion of the Court.

Howell, J.

This is an application for a writ of prohibition against thé Judge of the Second District Court of New Orleans, and the plaintiff, in the suit of Alfred Penn v. Kearny, Blois & Co., in which a suspensive appeal was granted to the defendants, on furnishing a bond with good and solvent security, in the sum of $13,000.

On a rule taken by the plaintiff to set aside the appeal, on the ground of the insufficiency of the sureties, the appeal was declared to be devolutive only, and to correct this alleged error of the District Judge, and prevent the issuing of an execution on the judgment, this proceeding is had.

The question presented to us is one of fact only, which is: Does the evidence show the sureties to be sufficient and solvent ?

The first surety, James O. Nixon, states, that after paying all his debts there would be a sufficient amount of his property left to pay the amount of this bond. He estimates his debts at about $130,000, and his assets at $295,000; and yet the District Judge considered him to be an insufficient surety for $13,000. Where such disparity exists, there must be grave reasons for doubting the surety.

The estimate of his property, as witness on the 8th June, 1867, is made as follows: He supposes that a certain piece of real estate, on Canal street, purchased by him for $575, would bring $10,000, on which there is a mortgage for $5,300; the materials of the Crescent office cost about $70,000; the “goodwill” of said office would sell for $75,000; the State owes him about $80,000; nearly all of which is in warrants, the most of which are pledged; and book accounts due him to about $60,000, making in all the said sum of $295,000, being $165,000 more than his debts. Counsel for Penn contends that these estimates are palpably exaggerated and absurd, and refers to the suit of J. O. Nixon v. His Creditors, as rebutting evidence, in which his assets on 22d August, 1865, are placed in the schedule at $282,981 29, and his liabilities at $88,193 56, showing an excess in favor of the insolvent of $194,787 73.

We are to determine whether or not the surety has property now sufficient to answer for the amount of the obligation. He says that he owes $130,000, which must be considered good against him; that there is owing to him $140,000; and besides this, he has the materials of the Crescent office, which cost him about $70,000, and which we must presume he acquired since his surrender, in 1865. These sums, without including the “good will ” of the Crescent office, $75,000, and the real estate, $10,000, make $210,000 of assets to answer for $130,000 of debts, leaving a margin of $80,000.

We have nothing before us to show that the materials are not worth what they cost, nor that the debts due the witness may not be realized-We would be left to conjecture altogether in an attempt to fix any less value than that given by the witness, and we do not feel authorized to enter the fields of conjecture. It may be that his ideas of his own fortune are greater than the reality, but we are not furnished with the standard by which to measure the difference, the ideal and real fortune. We must be guided by the law and the evidence. It is true, the record of insolvency shows a very large excess of assets over liabilities, but an inspection of the schedule shows that said assets consist principally of accounts and notes for their full amount, the aggregate being over $80,000, and due in a period of time extending back several years prior to June, 1862, and two claims for damages amounting to $150,000, growing out of the alleged suppression and sale of the Crescent newspaper, at about the last mentioned date. The record of insolvency does not enable us to determine how much the witness exaggerates the value of his present property, if it is exaggerated, and being of a date prior to the making of the bond, cannot affect it.

There is no other rebutting evidence. If it be true, that J. O. Nixon is the State Printer, we do not see how that fact will protect him, as suggested, from the effect of his pledge of the State warrants, and which, if made available, will, to that extent, diminish his debts, for which they are pledged. There is no evidence as to the value of the said warrants.

Upon the whole, we are forced to the conclusion that the witness has shown that he has sufficient property, movable and immovable, after paying his debts, to satisfy the bond of $13,000, and that there is not sufficient evidence in this record to discredit him as to that fact.

We think also, that the second surety, John Murphy, has shown property worth at least $2,500 to answer, to that amount for said bond, and strengthen the security.

It is therefore ordered that the rule herein be made absolute, and that the Judge of the Second District Court of New Orleans, andAlfred Penn, be prohibited from proceeding further, in the case of Penn v. Kearny, Blois & Co., during the pendency of the suspensive appeal therein. The defendants herein to pay the costs of this proceeding.


author: Howeld, J.

text:
    No. 823.
    H. Bellocq v. A. Dhones and A. Penent.
    Plaintiff sues defendant for a settlement of the partnership account, and for damages against the managing partner. A third party intervenes, and claims a schooner as his own property, which he had purchased from the defendant, the managing partner, by notarial act, prior to the institution of the suit. Plaintiff resists his demand on the grounds, 1st: that the act of sale was not recorded, as required by acts of Congress; 2d, that it is not expressed on the face of the act of sale that he acted for himself and partners; 3d,that the price was not a good one, and the purchaser had notice of the claims of the other partners. The notarial act of sale, which informed the intervenor of the interest of plaintiffs, also informed him that the legal title was in defendant, and that the defendants have full authority to sell the vessel: Held—That, under the terms of this agreement and authority, the transfer of the schooner, by defendant to intervenor, of the legal title, carried with it the equitable title also.
    A PPEAL from the Sixth District Court of New Orleans, Buplantier, J.

      Q. Schmidt, for plaintiff.

      C. W. Hornor, for intervenor.

      Paul Morphy, for curator ad hoc.

   Howeld, J.

This is a suit to dissolve a partnership, sell and distribute the proceeds of a vessel belonging to the partnership, and to recover damages from the managing partner for negligence, unskillfulness, etc. One of the defendants, A. Penent, joins the plaintiff in his demand. The other is represented by a curator ad hoc.

The only question before us is raised on the intervention of Christoval Espinóla, who claims the vessel as owner, by purchase for a valuable consideration from the defendant, A. Dhones, as sole owner, and having the right to sell.

By a notarial act between the parties, Dhones, Bellocq and Penent, it is_ declared, that they are the joint owners of the schooner Glacier, bought and registered in the name of A. Dhones, who is appointed master, and vested with authority to sell, at his discretion, for “ a good price.” On the 9th of August, 1864, he sold to the intervenor, by act, acknowledged before J. M. Day, Notary, and on the next day this suit was filed, and the schooner sequestered. Plaintiff, who alone complains of the judgment, contends that the title of the intervenor is not good, because it was not recorded as required by act of Congress, July 29th, 1850, (Stat. at Large, vol. 9, p. 440;) because there was no delivery; because it is not expressed on the face of the act of sale, that Dhones acted for himself and his partners; because the price was not a good one; and because the purchaser had notice of the. claims of the other partners.

We consider it necessary to examine the third and last grounds only, which may be thus stated:

The intervenor, having knowledge through his agent, that Bellocq & Penent were partners, the act of sale to him by Dhones, in whom the legal title existed, should have expressed that he acted under his mandate in selling their interest.

The rule invoked by plaintiff is undoubtedly correct: “Nothing is better settled than the rule, that the purchaser with notice of a trust stands in no better situation than the seller, and it is equally settled that notice to the agent is notice to the principal. ”

But this rule, as quoted by plaintiff, appears in a dissenting opinion, and was not considered by a majority of the Supreme Court of-the United States, to apply to the case decided, which on this point is quite similar to the one now before us. See 2 Black., page 372. The notarial act which informed intervenor of the interest of Bellocq & Penent, also informed that the legal title was in Dhones, and that the latter had full authority to sell the vessel. Under the peculiar terms of this agreement and authority, the transfer by Dhones of the legal title carried with it, in our opinion, the equitable title. The proof adduced by plaintiff of knowledge in the intervenor of his rights, is also proof of his authorization to transfer those rights, which were carried in the name of the transferrer.

The evidence does not satisfy us, that the District Judge erred.

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

Rehearing refused.


text:
    No. 1041.
    Mary J. O’Gara v. Succession of J. L. Riddell, deceased.
    No greater alimony -will be granted a bastard child than is shown to be necessary for its support. Should a larger sum become necessary, it is within the province of the Probate Court to grant it.
    A . PPEAL from Second District Court New Orleans, Théard, acting J.

      F. Fillevl, for plaintiff and appellee.

      Garleion Hunt and R. Hunt, for appellant.
   Howell, J.

This is a suit for alimony on behalf of an adulterous bastard, in which the only question presented is the amount which should be allowed—the right to alimony being admitted.

After hearing evidence, the District Judge gave judgment, fixing the alimony at $40 per month, to be paid to plaintiff as tutrix of her child, until the further order of the Court; from which the representatives of the deceased have appealed. They contend that by law,, an adulterous bastard is entitled to mere alimony, and that a monthly allowance of $25 per month, as fixed by a written agreement between the deceased and plaintiff, is sufficient and liberal, considering the condition of the parties respectively.

It is shown that the plaintiff is a seamstress,' and very needy, and her child young and delicate; that the deceased left a widow and eight legitimate children, and an estate in this city worth over $130,000, and that about a month or two before his death, in October, 1865, he entered into a written agreement with plaintiff, who then had two children, aged, respectively, twenty-four and nine months, to pay twenty-five dollars per month for each, payable quarterly in advance, until they obtained the age of twenty-one years.

One witness says, that considering the condition in life of the defendant, fifty dollars per month would not be too much.

Another, who is the sister of the widow, says that twenty-five dollars a month is quite sufficient, and that it does not cost her fifty dollars per month to support her own three children.

By alimony is meant what is necessary for the nourishment, lodging and support of the person claiming it, and in the case of a minor, it includes education. It is to be granted in proportion to tbe wants of tbe person requiring it, and the oircumstances of those who are to pay it. C. 0., Arts. 246, 247.

. We think that the weight of evidence and the considerations of the law make the smaller amount the proper sum to be allowed. If the sister of the widow can support three children on fifty dollars per month, certainly this child can be supported on the monthly allowance of twenty-five dollars. Should a larger sum become necessary, it will be within the power of the parties and the province of the probate Court to grant it.

It is therefore ordered, that the judgment be so amended as to reduce the monthly alimony from forty to twenty-five dollars, and as thus amended it be affirmed, costs of appeal to be paid by plaintiff.


author: Ilsley, J.

text:
    No. 1049.
    Martha Emily Madden v. Edward N. Fielding.
    A judgment rendered without citation or appearance, and without any thing equivalent to citation or appearance, is utterly void, and imports such absolute nullity, that anyone having the least interest in opposing its effects may have such nullity pronounced.
    Where a Judge is to use his legal discretion.upon a certain state of facts, he can only execute that discretion after those facts are judicially made known to him; that is, by legal proof.
    In a suit for a divorce, an order giving alimony to plaintiff was granted ex pence, and without legal notice to the defendant, the husband of plaintiff, and without any proof of the facts, the judicial knowledge of which was essential to the exercise of a sound, legal discretion: J&eld—That the order would work an irreparable injury to the defendant.
    A PPEAL from Third District Court New Orleans, Duplanlier, acting J.

      Walter H. Rogers, for plaintiff and appellee,

      P. Hornor, for defendant and appellant.
   Ilsley, J.

This is an appeal from an interlocutory order, granted by the Court below, in the proceeding instituted therein, by the plaintiff, against the defendant, her husband, for a divorce, a vinculo matrimonii.

. The original petition was filed in the lower Court on the 30th April, 1866, and in this petition no citation seemed to have been issued, nor process thereof ever served upon the plaintiff.

■ On the 21st July, 1866, the plaintiff filed a supplemental petition, which, with a citation, but without any copy of' the original petition, was served on the defendant on the 23d July, 1866.

. In this supplemental petition the plaintiff alleges, that the clerk had neglected to include in the order granted upon her original petition certain things for which she had prayed, and which she again asks for, and upon this supplemental petition, unsupported by any proof, the Court rendered an ecc parte order, decreeing the plaintiff as the wife of the defendant, the care and custody of their minor children, and condemning the defendant to pay to the plaintiff a monthly alimony of one hundred dollars, commencing 1st April, 1866. This order was signed on the 21st July, 1866, and became an interlocutory judgment against the defendant.

It is contended by the defendant that the order appealed from, summarily separating his children from him, and condemning him to pay a large alimony, rendered ex parte, before he had judicial notice of the plaintiff’s proceedings, the original and most important of which he still remains judicially ignorant of, was illegal and improvident, and should be rescinded.

By the 5th section of an “act relative to divorce,” approved Marhh 14th, 1855, page 377, it is enacted: “That the action for divorce shall be accompanied with the same provisional proceedings to’ which a suit for separation of bed and board may give rise, and agreeably to the Arts. ■144, 145, 146, 147 and 148 of the Civil Code.” ’ ¡

Now, by Article 144 of the Civil Code, it is provided: “If there are" children of the marriage, whose provisional keeping is claimed by both husband and wife, the suit being yet pending and undecided, it shall be' granted'-to the husband, whéther plaintiff or defendant, unless there’ are strong • reasons to deprive him of it, either in whole or in part, the decision whereof is left to the discretion of the Judge.”

And by Article 146, C. C., it is provided: “ If the wife has not a sufficient income for her maintenance during the suit for separation, the Judge shall allow her a sum for her support, proportioned to the means of the husband.” So that, under these Articles of the Civil Code, 144 and 146, the. question arises, whether the husband, who has the first legal, right to claim the provisional keeping of his children whilst the suit lasts, unless there are strong reasons to deprive him of it, either in whole or hq part, and who is only bound to furnish alimony to his wife during the pendency of the suit for divorce, if his wife has not a sufficient income for her máintenance, and then only in proportion to his means, is to be affected by an exporte decree, and without any opportunity being granted him to assert his legal rights, and to make his defence on these important matters, and that, too, without any proof of the facts upon which the discretion of the Judge is to be exercised.

: ■■ To state this proposition, is to decide it. In Bernard v. Vignaud, 1 N. S: 9, this Court said: “ To condemn, without first hearing a defendant, or giving Turn an opportunity to be heard, is contrary to all principles oij équity and-law: '• Therefore, a judgment rendered against a person without citing him in the ordinary manner, without his appearing, or anything deemed equivalent to- citation, or appearance, is utterly void, and imports such absolute nullity, that any one the least interested in opposing its effects, may’have such nullity pronounced.” 6 L. 577, and 9 An. 496; and in Fletcher v. Henley, 13 An. 151, which was a case similar in one particular, as to alimony, to the one now under consideration—this doctrine was recognized and applied.

We hold-that in all cases where the Judge is to use his legal discretion, in deciding upon a certain state of facts, he can only exercise that discretion, and decide after those facts are judicially made known to him; that is, by legal proof.

As the interlocutory order in this case was granted entirely ex parte, and without legal notice of the proceeding to obtain it having been communicated, in any legal manner to the defendant, and without any proof of the facts, the judicial knowledge of which was essential to the exercise of a sound, legal discretion on the part of the Judge, and the order would work an irreparable injury to the defendant,

It is therefore ordered, adjudged and decreed, that the interlocutory order, signed by the Judge of the lower Court on the 21st July, 1866, be, and the same is hereby annulled and rescinded, at the costs of the' appellee^


text:
    No. 136.
    Francis L. Cook v. John Larkin.
    Where a party has acquired a negotiable note after its maturity, he will be protected asan innocent holder, if the immediate holder who transferred it to him took the note by endorsement bona'Jidc for value, before it was due.
    The holder of a promissory note in good faith succeeds to all the rights of the endorser under whom he holds.
    A PPEAL from the Fourth District Court of New Orleans, Price, J.

      C. E. Schmidt, for plaintiff and appellant.
    A. Lothrop, for defendant and appellee.
   Hyman, C. J.

Plaintiff sued defendant on his note of hand for'$500, dated February 16th, 1860, and payable five months after'date to the order of Daniel B. Tight, by whom it was endorsed in blank. , .

Defendant, in answer, denied that there was consideration for the .note, averring that it was obtained through fraud; denied that plaintiff was the owner thereof, and averred that if he was owner, he came into possession of it after maturity, out of the usual course- of trade for an insufficient or no consideration, and under circumstances which deha,r him from recovering.

'The case was tried by a jury, who rendered a verdict for defendant, and the Judge, in conformity with the verdict, gave judgment in favor of defendant, from which plaintiff has appealed. <

We cannot concur with the verdict of the jury.

The evidence shows that Jean Lenettre purchased the - note before itf) maturity, in good faith, and without notice of any equities'against it,-and that it belonged to him at its maturity. . .

Want of consideration could not have been effectually pleaded against Lenettre, neither can want of consideration be availably argued,.against plain.tiff, without evidence showing want of good faith .ohshis part.'. -.The evidence does not establish want of good faith in plaintiff. .. •

•Plaintiff, as the subsequent holder to Lenettre, was invested, with all Lenettre’s rights in the note. 12 An. 126, and authorities..'jd?er? cited, ..

It is decreed, that the judgment of the District Court,, be reversed'; it is further decreed, that the plaintiff recover of the defendant the sum of ñyé hundred dollars, with live per centum per annum interest thereon, from the 19th day of July, 1860, till paid, and the cost of suit.


text:
    No. 1415.
    Succession of Jane McCall.
    Where an order for a suspensive appeal, fixing the amount of the bond as the law direots, is granted from a judgment for twenty-nine hundred and fifteen dollars and ten cents, and the bond is given for five hundred dollars: JZeW—rhat neither a suspensive nor a devolutive appeal can be maintained.
    To maintain an appeal as either devolutive or suspensive, the bond must be for the sum fixed by the Judge or by the law.
    A PPEAL from the Second District Court of New Orleans, Thomas, J.

      Gastera and Hunt, for appellant.

      Boselius & Philips, for appellees;
   Howell, J.

A motion is made to dismiss the appeal in this ease, on the grounds, 1st, that the bond of appeal is not sufficient in amount; and 2d, that Francois Boisdoré, the appellant, is not a party to, and has no interest in, the judgment.

A judgment was rendered, homologating a final account filed by the heirs of P. Casenave, the deceased, administrator of the Succession of Jane 'McCall, by which the sum of $1,943 40 was shown to be due to the heirs of the said Jane McCall. From this judgment of homologation, one Francois Boisdoré, alleging that he was aggrieved and injured thereby, was allowed a suspensive appeal, “ on giving bond and security as the law directs.” He furnished a bond and security in the sum of five hundred dollars, and on a rule taken by the agent of the heirs of McCall, the appeal was set aside, and from this judgment on the rule, a suspensive appeal was granted, upon “ appellant’s giving bond and security as required by law.” He furnished another bond for five hundred dollars. It is this appeal which the appellees seek to dismiss.

The Judge, in granting a suspensive appeal, fixed the amount of the bond as the law fixed it, to wit: a sum exceeding by one-half the amount of the judgment, which is $2,915 10 instead of $500. The amount of the bond given is not sufficient. There is no order of the Judge stating $500 as the amount of the surety to be given by the defendant, and the appeal cannot be'maintained as a devolutive one. To maintain the appeal as either devolutive or suspensive, the bond must be for the sum fixed by the Judge or by the law. See case of Dewees v. Storshr, decision 29th April, 1867.

j It is therefore ordered that the rule be made absolute, and the appeal dismissed, with costs.


author: Hxman, C. J.

text:
      No. 89.
    Charles Carpenter, Curator, v. Featherston & Amis.
    During the existence Cf the community of acquets and gains, between T. L. King and his wife¿ he purchased immovable property, and put the same as stock into a partnership of which he became ft member. After the dissolution of the community, by the death of Mrs. King, the property was sold on execution for the debts of the partnership: and the heirs of Mrs. King bring suit for her oommumty interest therein: Held—That T. L. King, as the head and master of the community, had the right to put the acquets and gains as stock in the partnership; by so doing, it became the property of the partnership, and specially liable for its debts; and a forced sale thereof to pay them, divested whatever title the community had in said property.
    A PPEAL from tbe District Court, Parish of Madison, Farrar, J.

      A. B. Hynes and G. T. Bemis, for plaintiff.

      Sparrow <& Montgomery, and G. Boselius for defendants.
   Hxman, C. J.

This suit was brought by the curator of the Succession of Harriet King, deceased, to have a partition made between her succession and Richard Featherston, and Junius Amis, of certain immovable property in the parish of Madison, and to recover a part of the revenues thereof.

Plaintiff claimed that her succession was part owner of the property, and was entitled to a part of its revenues, because it was acquired by Thompson L. King, while a community of acquets and gains existed between him and the deceased, the result of their marriage.

■ After suit was brought, the heirs of the deceased Mrs. King were made parties, and the suit was also revived against Henrietta Amis, as widow in - community of Junius Amis, deceased, and as tutrix of his minor children, who called in warranty Samuel F. Butterworth.

Judgment was rendered on the 26th day of October, 1860, ordering that a partition of the property be made between plaintiff and defendants, decreeing that plaintiffs were part owners thereof, condemning defendants to pay part of its revenues to plaintiff, and rejecting the call in warranty against Butterworth.

From this judgment Mrs. Amis has appealed.

The evidence shows that Thompson L. King acquired, by purchase, during his marriage with Harriet King, an interest in the property in controversy, and that previous to the dissolution of the marriage he formed a contract of partnership with John E. Hunter, styled Hunter & King, put the property therein as stock of the partnership, and stipulated that the partnership should continue until the death of one of the partners.

After the dissolution of the marriage, by the death of Mrs. King, the partnership contracted debts, on which judgments were obtained against the partnership, and the property was sold to Collier, while the partnership existed, under executions issued to enforce the judgment.

Collier’s right in the property was sold under executions to Featherston and Amis, and before the institution of the suit Featherston had sold his right therein, and by various transfers Junius Amis acquired whatever right Collier had in it, by the sale to him above mentioned.

Plaintiffs contend, that as there existed a community of acquets and gains between Thompson L. King and Harriet King; during their marriage, and as the property was acquired by purchase by T. L. King during the marriage, it became property in common between him and her suc- ' cesión, on the dissolution of the marriage by her death.

. = This position would be correct if T. L. King had not, while the marriage lasted, imposed an encumbrance on the property.

T. >L. King was the head and master of the community of acquets and gains;''and had the right to put the acquets and gains as stock in the partnership. See Civil Code, Art. 2373.

By his so doing, it became partnership property, and specially liable for the debts of the partnership, and a forced sale thereof to pay partnership debts divested whatever title the partnership or community had in the same.

■ The plaintiffs inherited the property, subject to the encumbrance put' upon it by T. L. King.

It is ordered, adjudged and decreed, that the part of the judgment rejecting the call in warranty, be affirmed; it is further decreed, that the judgment of the District Court be, in every other respect, annulled, avoided and reversed; it is further decreed, that there be judgment in favor of the defendants, and against the plaintiffs. Plaintiffs to pay-costs.


author: Hxiian, C. J.

text:
    No. 6901.
    Polycarpe Fortier v. Leonce Burthe and V. Burthe et. als.
    Where a party sells a tract of land to another, with a stipulation in the act of sale, that the vendee is to have a right of way, and other servitudes belonging to the land, he cannot enforce the payment of the price until he has complied with that obligation. if
    Where a party, holding a mortgage importing a confession of judgment against the property of his debtor, resorts to the executory process to have the property seized and sold, he must bring himself within the strict requirements of the law. • ■ V
    Where the evidence shows that the party, in whose favor an order of seizure and sale has been rendered, is not entitled to the full amount for which it was granted, it will be set aside, and the injunction made perpetual.
    A PPEAL from the Fifth District Court of New Orleans, Eggleston, J. ;

      Randell Hunt and H. Dugué, for plaintiff and appellee,

      Durant &. Hornor, and V. Burthe, for defendants and appellants.
   Hxiian, C. J.

Defendants obtained an order of seizure and'sale. of certain lands in Burtheville, to enforce .the payment" of the unpaid part of the price, with interest thereon, for the sale of the land, and other , rights and privileges made by them to plaintiff.

The sale of the land, und.er the order of seizure and sale, was inhibited .by an injunction obtained by plaintiff, who averred, to procure it, ■ that he purchased the land from the defendants as urban property, in Burthe.ville, with a stipulation that a plan made by Hedin, surveyor, should be .amended by suppressing portions of certain streets running through it-." .That in and by the contract of sale he acquired a right of-way oyer the streets exhibited on the plan as agreed to be amended, and particularly Over Henry Clay Avenue and Levee street, by which the land .sold to him' was- bounded; that defendants had refused to allow him to exercise his right of way, and had kept the streets closed; that defendants had, by .keeping the streets closed, deprived him of the right of taking earth from-one of the squares or islets of ground exhibited on the plan, and- located-.between Levee and Nayades streets, they having. expressly stipulated in' the sale to- grant him that privilege, and that they had lost .the right- of enforcing payment until they complied with these obligations, stipulated in the sale. -

Defendants filed a general denial to plaintiff’s allegations, and prayed that the injunction might be dissolved, with damages.

The District Court decreed, that the injunction should be maintained at defendants’ costs; that the injunction should remain in force until defendants opened Henry Clay Avenue and Levee street, and allowed the plaintiff the enjoyment of servitixde on the avenue, and until they amended the plan of Burtheville, in conformity with the judgment in. case No. 11,889, and delivered to the plaintiff a plan of the land sold by them to him in Burtheville, according to the plan of Hedin, amended as agreed upon. It further decreed, that upon defendants’ complying with the above conditions, they might be authorized to enforce their claim, except the interest that had accrued, and that they should -be allowed interest only from the time of their compliance with the decree. From this judgment defendants have appealed.

The evidence shows that the plaintiff bought the land ordered to be seized and sold, a servitude of right of way on Henry Clay Avenue;, and other rights and privileges from defendants, and agreed to pay for them in mass a certain sum.

It also discloses, that the defendants did not permit to plaintiff the right of way on the avenue, but kept it closed by fences, and that when plaintiff attempted to use his right, they, by process of Court, prevented him from using it, and so prevented him when the order of seizure and sale was obtained, and the injunction procured.

We have only stated these few facts out of the many proved, as they alone are sufficient for our decision.

The order of seizure and sale is a harsh remedy, and when a creditor obtains such order against his debtor’s property, he should have so complied with his stipulations in the contract, on which he bases his claim, as to give him a right to pursue for the amount granted in the order.

It is apparent that the defendants are not entitled to the full amount, for which the order of seizure and sale was granted, until they permit the servitude of the right of way to be exercised by plaintiff, and comply with their other engagements in the contract of sale. The delivery of the land to plaintiff did not give them the right to claim the whole price, while the enjoyment of other property, which was one of the objects of the sale, and which formed a part of the price, is refused by them to him.

In 5th Annual, 578, where the facts were similar to those in this case, it was decided that a judgment arresting an order of seizure was not erroneous.

It is difficult to ascertain the reasons for that part of the decree of tlm lower Court, which deprives the defendants of all interest up to the time of their compliance with the preceding part of the decree.

The plaintiff, in his pleadings, has not asked that the defendants should be deprived of interest, and, until he does so, it will not be proper to' decide how much interest defendants shall be deprived of by their noncompliance in part with their contract of sale.

The defendants objected to the admission of the evidence of Surveyor Williams, that the obstructions of defendants to plaintiff’s enjoyment of some of the objects of the sale still existed.

Their objection was overruled by the Judge, and the evidence admitted.

They excepted to the ruling of the Judge, and filed their bill of exceptions.

Their objections to the admission of the evidence was, that the matters to which the evidence referred, had been settled between the parties in the decision in the case No. 11,889, which plaintiff may execute, and cannot abstain from so doing, and set up the same matters against the collection of their claim.

The decision in that suit was, that defendants should perform such of these obligations in the sale to plaintiff as they had not fulfilled.

We perceive no reason why plaintiff could not prove that defendants had not complied with their contract of sale, because a Court had ordered them to do what their contract bound them to do.

Let the judgment of the District Court be reversed, and let the injunction granted in this case be perpetuated; the cost of appeal to be borne by the plaintiff; those of the District Court, to be borne by defendants.

Rehearing refused.


text:
    No. 1067.
    W. C. Graham v. John O. Noble.
    In order that a creditor may maintain a writ of arrest against his debtor, the creditor must swear that the debt or damages which he claims is really due to him, and the amount thereof, and that the debtor is about to remove from the State without leaving sufficient property in the State to pay his debt. He must, besides, execute his bond in favor of the debtor, in a sufficient amount to cover the damages, which he might sustain from the wrongful issuance of the writ of arrest. O. P., Art 214, and amendments.
    The 3d section of the Act of the Legislature of 1855, (p. 42) placingresident and non-resident debtors on the same footing, as to the prerequisites for an arrest, is not repealed by the aot of 1860, (p. 80) amending and re-enacting Art. 214 of the Oode of Practice.
    The Act of 1856, only prescribes an additional condition for the arrest of both resident and non-resident debtors.
    A PPEAL from the Third District Court of New Orleans, Fellowes, J.

      Lacey & Maries, for plaintiff and appellant.

      Hays, Adams & Moise, for defendant and appellee.
   Howell, J.

The plaintiff has appealed from a judgment setting aside a writ of arrest, on a motion by defendant based on several grounds, only one of which we consider it necessary to examine, to wit: “ Because it is not averred in the affidavit or petition, that the defendant has absconded from his place of residence ” in another State. It is contended by counsel that the Act of 1856, (p. 80) amending and reenacting the 214th Art. C. P., repealed section 3 of Act 1855, (p. 42) requiring such fact -to be sworn to, and placed resident and non-resident debtors on the same footing as to the prerequisites for an arrest.

We think this conclusion is not sustained by the letter of the law, or the rules of construction.

The act of 1856, is entitled “an aot to amend and reenact article two hundred and fourteen of the Code of Practice,” and contains only one section with two clauses. The first clause gives, with an unimportant verbal change, the Article 214 as amended by the act of 1840, ($ 2, p. 131) and the second clause requires a bond, with certain conditions, to be furnished by the plaintiff. The only material change made in said article, is the requiring of a bond as a prerequisite, in addition to the affidavit. There is no repealing clause or section in the act, and its provisions are not in any correct sense inconsistent or in conflict with the third section of the Act of 1855, entitled ‘‘ An act relative to persons arrested and • imprisoned for debt,” but must be considered as prescribing an additional condition for the arrest of both resident and non-resident debtors, leaving the two affidavits still as conditions, respectively. The Act of 1855 expressly excepts, in its repealing section, what is contained in the Code of Practice on the same subject, which the Act of 1856 neither repeals nor conflicts with the provisions of the Code of Practice or the Act 1855, in this regard.

Judgment affirmed, with costs.


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    No. 907.
    Dobbin & Co. v. Joseph Hewett.—W. McLoon, Intervenor.
    A contra ct of mortgage that is valid by the law of the place where it is made, is valid everywhere.
    A mortgage executed in the State of Maine, in accordance with the laws, on a brig or vessel, must be . enforced in this State in accordance with the laws of the State of Maine.
    By the law of the State of Maine, brigs and other vessels are personal property, and may be mortgaged, ■ and the non-performance of the obligation for which the mortgage was given, operates an absolute transfer of the property mortgaged to the mortgagee.
    Where a brig or other vessel has been mortgaged in the State of Maine, and afterwards arrives at the porfcof New Orleans, where she is attached by an ordinary creditor, and the mortgage's intervenes, and claims the ownership of the vessel by virtue of hjs mortgage, the attachment will be set aside, and the suit dismissed, and the mortgagee will be declared the owner.
    A .PPEAL from the Fourth District Court of New Orleans, Théard, J.

      Charles B. Singleion, for intervenor and appellant.

      Semmes & Mott, for plaintiffs and appellees.

      Thomas Bunion, curator ad hoe, for defendant and appellee.
   Hyman, C. J.

Plaintiffs brought suit in December, 1860, to recover of defendant the amount of a draft drawn in their favor, and accepted by him, and they also, by writ of attachment, caused the brig Henry Leeds to be attached as his property. ,

William McLoon intervened in the suit, and claimed to be owner of the brig.

, Judgment was rendered in favor of plaintiffs for the amount claimed by them, with interest, sustaining the attachment of the brig, and decreeing that plaintiffs be paid, with privilege and preference from theproceeds of the sale thereof.

The judgment further decreed, that the intervenor recover $2,500, with interest, and that he be paid as mortgagee out of the remains of the proceeds of the brig.

The intervenor has appealed from the judgment.

. In November, 1859, the brig was mortgaged in the State of Maine by the defendant to the intervenor, to secure him against his acceptance of several drafts for the accommodation of the defendant.

The drafts were payable in three months from their date, and the intervenor paid them at their maturity.

By the laws of Maine, as proved by the testimony, brigs and other vessels are personal property, and may be mortgaged, and the consequence on the non-performance of an obligation for which a mortgage is given, is, that the property mortgaged becomes absolutely the property of the mortgagee without delivery, but liable to be redeemed within sixty days thereafter.

The obligation in the mortgage of the brig was for the defendant to hold the intervenor harmless from liability by the acceptance of the drafts, and it appears that the defendant has not complied with his obligation.

As it is not proved where the brig was when the mortgage was given, and as it is proved that she came to this State since the mortgage was contracted, the law of the place where the pontract of mortgage was - ‘ made, must, govern. See the case of P. R. Fell v. J. G. Davidson—Hicks & Co., Intervenors, 17 An. 237.

The intervenor’s title to the brig being perfect and complete by the laws of the State of Maine, before she was attached, the judgment of the District Court must be reversed.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court, so far as it affects in any respect the intervenor, be annulled, avoided and reversed; it is further decreed, that the attachment on the brig Henry Leeds be dissolved. Let William McLoon be deoreed owner of the brig Hepry Leeds, and the plaintiffs pay the costs of the intervention, in both courts.

Petition for Rehearing, by Semmes <S¡ Mott for plaintiffs and appellees,—The amount involved in this case is comparatively trifling, but the principles involved are of vast importance, and this consideration induces us. to respectfully solicit the Court to revise the judgment it has rendered. ..We do so the more readily, as the decisions of the Supreme Court of Louisiana have ever been regarded and quoted as high authority, on questions involving a conflict of laws, and for that reason every decision on such questions should be well considered, regardless of the amount in controversy.

We consider the decision in this case erroneous, on two grounds:

1st. A correct principle of law has been applied, without regard, in our opinion’, to the proper limitation of the principle.

2d. The Court has overlooked, as we respectfully suggest, an important point stated in the original brief, but not elaborated.

The Court uses the following language: “As it is not proved where the brig was when the mortgage was given, and as it is proved that she came’ to this State since the mortgage was contracted, the law of the place where the contract was made must govern. ”

We submit, with all due respect, that the lex loei contractus, in cases of mortgage, or any agreement creating liens, privileges or hypothecations, does not govern, so far as the,mortgage, lien, hypothecation or privilege is concerned, unless the thing affected by such mortgage, lien, hypothecation or privilege, is at the time of contract within the territorial jurisdiction of the oountry where the contract was made. In other words, the contract of mortgage must be made, and the thing mortgaged must be, at the time of contract, within the same territorial jurisdiction. The only exception to this rule, that we know of, is where the property affected by the contract is afloat at sea at the time of contract; that is to say, beyond the jurisdiction of any other sovereign, in which event the lex loci contractus governs, as was properly decided in 17 An. 237, the case referred to by the Court.

The general rule, as to movables is, that the lex loci contractus governs, unless the movable at the time of contract is within the jurisdiction of another sovereign, whose laws are different from those of the place of contract. This principle was settled in the cases of Olivier v. Townes, 2 N. S. 93; 5 Martin, 23. 77, 78. 7 Martin, 318-and 353, and is approved-by Story on Conflict of Laws, p. 384 and 391, 392.

The vessel in this case, having been attached, it was the duty of the intervenor to prove all the facts necessary to ■ the establishment of his adverse claim. He is plaintiff. Conceding the principle announced by the Court correct, coupled with the limitation we have suggested, the intervenor should have proved that the vessel at the date of the mortgage was within the jurisdiction of Maine or at sea This he failed to do. He has proved what the laws of Maine are, but those laws do not govern*unless the vessel at the time of the mortgage yas in Maine or at sea. Suppose at the time of this mortgage, she had been in Louisiana, and had remained there until the lapse of time required to convert the mortgage into an absolute transfer under the laws of Maine; it is clear, any. creditor of the mortgagor could have seized the vessel under attachment against the mortgagor, and could have successfullymaintained his seizure. Suppose, at the date of the mortgage, the vessel was in Baltimore, Philadelphia or New York; there being no proof of the laws governing mortgages in those States, the Court would presume they are similar to our own. A Baltimore, Philadelphia, or New York creditor could • have seized. If such creditor could have seized, why could not a Louisiana creditor do so, after she came here from Baltimore, New York, or Philadelphia; or why could not the Baltimore, New York or Philadelf phia creditor follow and attach here ? It.seems to us, therefore, that the, Court cannot adhere to its decision, unless it considers the burden-, of proof on us, to show that the vessel at the date of the mortgage was not in the State of Maine, a proposition we deem untenable, as the intervenor is plaintiff, so far as we are concerned, and must prove his case afflrma- ■ tively as well as all the facts necessary to a recovery.

2d. The Court has overlooked a point suggested in the original, brief. It is this:

Admit that the laws of Maine govern; that by those laws the title of the mortgagee and intervenor became absolute after the expiration of the. time limited in the mortgage; certainly, the mortgagee then stands in the relation of absolute vendee to the mortgagor, who becomes vendor. Now then, here is an absolute sale of personal property, not proved, to be at sea at the time of sale, where the vendee allows the vendor to remain in. possession for a year or more, without any effort to obtain possession.

Such possession by vendor in some States is conclusive evidence of. fraud, and in all is presumptive evidence until rebutted. The laws of Maine, on this point, have not been proved. It is presumed, therefore, they are similar to ours. This argument takes for granted the doctrine answered by the Court, that the mortgage by operation of the laws of Maine, and by the expiration of the time limited in the mortgage, became an absolute sale. But what are the laws of Maine, in case of an absolute sale of a movable not accompanied by delivery ? In point of fact we believe they are similar to our own; at all events there being no proof on that subject, the Court, on well-established principles, will assume them to be similar to our own. Now, in the case in 16 An. 284, Central Bank v. McCloskey, it was held, that mere consent vests the property in the obligee, yet this effect is strictly confined to the parties until actual delivery. The truth is, that is the law as to movables under every system of jurisprudence.

The Court recognized the validity of the mortgage under the laws of Maine, on the principle of lex loci; under our laws such an instrument would be a nullity, as between the parties even. We now say, concede the decision on that point to be correct, yet the validity of the transfer, as to third persons before delivery, cannot be maintained, because there is no proof that the laws of Maine are different from our own, and in fact they are not. At the Common Law, a sale of a ship at sea even, is not valid as to third persons, if the vendee unreasonably delays to take possession after arrival. 8 Mass. 286. 9 Pick. 4. 2 Mat. 350.

In this case the vendee (for the mortgagee by the laws of Maine became vendee after the expiration of the time limited in the mortgage) permits the vendor to remain in possession more than a year after his title became absolute, and enables him to roam from port to port in the United States, and contract debts as owner. Under the laws of the civilized world, such conduct is fraudulent as to third persons.

Rehearing refused.


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    No. 1074.
    Paul H. Mousseau v. Ed. Thebens and James Reynolds.
    A commercial partnership is nofcliable on the obligations contacted by one of tlie partners previous to the formation of the partnership, notwithstanding the fact that the partnership was to continue th,e same business in which the obligations were contracted; and that specified portions thereof were assumed by the individual members.
    A party who introduces evidence noc admissible under the pleadings, cannot object to testimony being offered by the opposite party to rebut it.
    A PPEAL from the Fifth District Court of New Orleans, Leaumont, J.
    • T. W. Gollens, for plaintiff and appellant.

      J. Q. A. Fellows, for defendants and. appellees.
   Labauve, J.

The petition alleges, in substance, that the defendants, commercial partners, are indebted to the plaintiff in the sum of $358 53; that petitioner, in the months of November, 1860, and January and March, 1861, did- sell and deliver to said Edward Thebens, then doing business on his own account, various articles of marble of the value of $358 53, as per account annexed, making part of the petition; that on the 6th of April, 1861,- the defendants formed a copartnership, and by the act of copartnership,.-their firm assumed all the liabilities due by said Thebens .upon the stock in trade.

He prays'for a judgment in solido against both defendants, with legal interest from the 2d of March, 1861.

James Reynolds, .in. his answer, pleaded the general issue. A final •judgment by default was rendered against Edward Thebens, and a contradictory one in .favor of James Reynolds. The plaintiff appealed,

..The correctness of.the account, as against Edward Thebens, is admitted. •• • . ' • ■

■ The ground of action, as against James Reynolds, is that the partnership assumed all-the liabilities of and due by Thebens. This question must be solved by the construction given to the following .clauses in the act of partnership:

“The said Edward Thebens brings in stock valued here at... $1,304 69 His liabilities are......................................... 800 00

Balance................................................ $ 504 69

And the said James Reynolds brings in stock here valued at $909 61; and he has no liabilities.

To equalize shares of the partners in the partnership, the said James Reynolds is to pay $395 08, due by said Thebins, making Reynolds’ interest in the partnership.....................................$1,304 69 And the said Thebens is to pay the balance of said $800, which is 404 92 Add the value of his stock, less amount of said $800, liabilities,

say...................................................... 504 69

And gives his notes, equal to cash, to said Reynolds, for....... 395 08

Making his interest in the partnership........................$1,304 69

We find nothing here showing that the partnership assumed the debts due by Edward Thebens, say $800.

On the contrary, James Reynolds assumes, in his own name, $395 05 thereof, and Thebens is to pay the balance, say $404 92.

James Reynolds is not sued upon his individual assumpsit, but he is sued as commercial partner, upon the alleged assumpsit by the partnership. Even, had that ground been taken against Reynolds, he has proved that he had paid the sum thus assumed; it is true, that the testimony offered to prove payment, was objected to on the ground that Reynolds had not pleaded payment. The Court properly admitted the evidence, on the ground that the act of partnership introduced in evidence, showed this individual assumpsit, which was not alleged as a ground of action against Reynolds. Plaintiff, having opened the door to testimony upon that ground not alleged by him, he could not object to defendant’s proof to diminish or destroy it by showing payment. Thompson v. Brothers, 5 L. 279.

A party, who introduces evidence not admissible under the pleadings, cannot complain if the other party offer testimony to rebut it.

Judgment affirmed, with costs.


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    1024.
    John H. Russell v. Dr. Ed. Kunemann.
    T he sale of a horse, by a person employed by the owner as groom for his stable, is an absolute nullity, and the owner can recover back his property or the value thereof, with damages from the purchaser.
    A PPEAL from the Fourth District Court of New Orleans, Théard, J.

      Marr & Foute, for plaintiff and appellant.

      Lambert & Murphy ', for defendant and appellee.
   Hyman, C. J.

Plaintiff, intending to leave New Orleans on a visit to Washington City, left his horses, about ten in number, at the stable of A. W. Beatty, and authorized him as well as a Mr. Ainsley to sell them.

Learning plaintiff’s absence from New Orleans, Edward Harrison sold one of the horses to the defendant, and plaintiff has brought suit against defendant to recover the horse sold by Harrison, or its value, alleged and proved to be worth $300, and damages for its abuse and detention by defendant.

Plaintiff had the horse sequestered, and defendant bonded him.

Defendant, in answer, claimed to have bought the horse, not from its owner but from Harrison, who represented the owner.

No authority was given by plaintiff to Harrison to sell the horse, and defendant’s position is, that as he is an innocent purchaser, and as the conduct of plaintiff caused him to believe that Harrison had a right to dispose of the horse, plaintiff must bear the loss.

If plaintiff’s conduct was such, he has no right to recover; but the evidence does not disclose such conduct on the part of the plaintiff.

It appears that plaintiff had employed Harrison, as a groom for his horses. When he left for Washington he did not intrust them to the groom, but placed them in charge of Beatty and Ainsley, experienced and responsible men, established in business. Ainsley retained Harrison in Beatty’s stable, to clean, feed, and exercise the horses, and to keep the stable clean. No imprudence or want of circumspection can be imputed to plaintiff, whereby defendant could have been induced to believe that he had placed the right in Harrison to dispose of his horse; nor do we perceive, in the evidence, such imprudence in his agents as would justify’ defendant in supposing that Harrison was invested with any control over the horses but that of a groom.

The defendant visited the stable of Beatty while the horses were there, and before he purchased from Harrison, for the purpose of buying á horse, yet he neither informed Beatty, the owner of the stable, nor Ainsley, that he intended to buy a horse from the groom, though he certainly must have known that it was not the business of the groom to sell the horses in the stable.

We think that defendant was not sufficiently circumspect in buying the horse.

The evidence adduced is not satisfactory as to the amount of damages sustained by plaintiff.

It is suggested that the Court has not appellate jurisdiction of this case. The amount in dispute certainly exceeds three hundred dollars, and when so, the Court has jurisdiction. See Constitution of 1864, Art. 70.

The judgment of the District Court was in favor of defendant; it must be reversed.

It is decreed that the judgment of the District Court be reversed; and it is further decreed, that plaintiff be recognized owner of the horse in controversy, and that defendant deliver the horse to plaintiff, or pay plaintiff three hundred dollars, the value thereof, reserving to plaintiff the right to claim damages by another suit; it is further decreed, that the defendant pay the costs of this suit.


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    No. 1071.
    Robt. J. Halley v. Michael Hoeffner.
    The doctrine in the case of Wainwriglit v. Bridges, (ante page 234) reaffirmed.
    A PPEAL from the Fifth District Court of New Orleans, Leaumont,- J.

      J. M. Dirrhammer, for plaintiff and appellant.

      Race, Foster & E. T. Merriclc, for defendant and appellee.

      Brief of Race, Foster & F. T. Merrick, for defendant and appellee.
    —On the 6th day of June, 1861, the plaintiff sold a negro woman, Phillis, and her three children to defendant for the sum of $1,800, payable $800 in cash and balance at twelve months, for note of defendant secured by mortgage on the property conveyed. See act of sale, pages 12 and 13.
    This suit is brought by the vendor of the once four slaves, against the purchaser on that mortgage note of $1,000, to enforce its payment. See petition, answer p. 7, el seq., the note, p. 3, and act of mortgage p. 12.
    The defence is, the want and failure of the consideration of the note, by reason of the emancipation of all slaves, etc. Answer, p. 7, et seq.

    The case was submitted to a jury, with a strong charge from his honor, the Judge presiding, in favor of the plaintiff’s right to recover, etc., and notwithstanding this, a verdict was rendered in favor of defendant, on which judgment was rendered in his favor, from which' plaintiff has taken this appeal.
    This verdict was rendered on the 25th day of May, 1866, and is believed to have been the first in this State, invalidating notes given for slave property.
    After the numerous decisions of this question by this Honorable Court, adversely to the pretensions of the plaintiff and appellant, counsel will content themselves by referring to the case of Wainwrighl, Administrator, v. Alice F. Bridges, et als., decided in May last, and to the subsequent cases.
   Howell, J.

This is a suit on a promissory note, which, it is alleged and shown in the defence, was given in part payment of the price of slaves, and is governed by the doctrine settled in the case of Wainwright v. Bridges, and for the reasons therein assigned the judgment is affirmed, with costs.

Justices Ilsley and Labatjve dissenting.


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    No. 1069.
    S. H. Kennedy & Co. v. Charles Roman et al.—Owners of Steamboat Ruby.
    Where a steamboat or other vessel arrives at a port with freight consigned to different parties residing there, a delivery of the goods on the wharf to the agent of the consignee, or some person authorized to receive them, or some act must be done which is equivalent to delivery, in order to relieve the owners of vessels from responsibility.
    To constitute a delivery, there must be a notice given to the consignee, and a reasonable time given him to make the necessary preparations to receive the goods.
    A PPEAL from the Sixth District Court of New Orleans, Duplanlier. J.

      Randolph, Singleton & Hardie, and Lacey, Maries & Butler, for plaintiffs and appellants.

      Trist & Olivier, for defendants and appellees.
   Labauve, J.

This suit is brought against the defendants for the value of three bales of cotton, shipped on board steamer Ruby, and not delivered. The plaintiffs claim $739 88.

The answer contains a general denial, and an allegation that Charles Olivier, one of the defendants, was not owner or part owner of said steamer; it admits the shipment of the three bales of cotton, but states that upon the arrival of the steamboat Ruby at the port of New Orleans, on the 16th November, 1865, notice of the consignment- of said cotton was duly given to plaintiffs, but they neglected for more than two days to send for it; "that the two successive nights, said cotton was guarded-by a watchman employed at respondents’ expense; that said cotton was stolen more than forty-eight hours after being landed on the levee, and after its landing was known to plaintiffs.

They claim in reconvention six dollars for freight of said three bales of' cotton.

The Court below rejected plaintiffs’ demand, and gave judgment for defendants in reconvention for six dollars. The plaintiffs appealed.

The shipment being admitted, it is incumbent on the defendants to show that they have complied with their obligation, by carrying the cotton to it's place of destination, and delivering the same to the consignees, or show good cause why they have not done so.

By the bill of lading, they undertook to' carry without delay to the port • of New Orleans, and to deliver unto the plaintiffs the said three bales of cotton.

The boat arrived at New -Orleans November 16th, at noon, and discharged her freight shortly afterwards; that from Thursday evening, day of her arrival, to Saturday following, the cotton remained on the levee ; that between the hours of one and three o ’clock of that day, it was stolen; no actual delivery of the cotton was made to plaintiffs.

On trial of the case below, the witness, Andre, having stated that he called at the office of S. H. Kennedy & Co. on Monday morning preceding the arrival of the Ruby, and asked a person in said office, who appeared to belong to the house of plaintiffs, if the plaintiffs had not received the bill of lading for the three bales of cotton, and was answered that they had, but the plaintiffs objected to the evidence, on the ground that it was hearsay, and that the evidence of the person who made,the answer, was the best, and. that it did not appear who the person asked was, or if he had anything to do with the bill of lading. The Court rejected the evidence after sustaing the objections. We are of opinion the Court did not err; the defendants should have shown with certainty, that this person was one of the firm.

In the ease of Slade et al v. Payne & Harrison, 14 A. 453, it was decided, 1st. That in order to relieve the owners of vessels from responsibility, there must be a delivery on the wharf to some person authorized to receive the goods, or some act done which is an equivalent to a delivery; 2d. That in order to constitute a delivery, there must be a notice given to the consignee, and a reasonable time given him to make the usual and necessary preparations to receive the goods; 3d. That the manner of delivering the goods, and consequently the period 'at which the responsibility of the master and owners will cease, depend upon the custom of particular places, and the usages 'of the particular trades. ■

This case turns upon a question of delivery, or something equivalent.

Newspapers were introduced in evidence, in which the list of freight, with the consignees’ names inserted, but nothing shows that knowledge of it was brought home to the plaintiffs. 3 L. 227. 6 A. 579. Mahoney pretended to be the dragan of plaintiffs; was requested to take the cotton away, and lie promised to do so, but nothing shows that he was the agent of plaintiffs, and authorized to receive freight.--' .. • • •

It appears that the plaintiffs received the bill of lading sent to them by the shippers, but we are not satisfied that, when they re'cpived it, they were aware that the boat had arrived. We will not pass, finally; upon the responsibility of the defendants, as the cáse must be remanded for further evidence. .

We find nothing in the record showing the value of the cotton, so as to enable us to give judgment for- plaintiffs. . . '

It is therefore ordered and decreed, that the judgment be reversed, and that the case be remanded to be tried according to law, and-both parties allowed to adduce further evidence, the appellee to pay the costs of this appeal. . • ■