author: Spoítobd, J.

text:
    State v. Richard Scott.
    Declarations are called “ dying declarations” when made under a consciousness of impending death.
    It is not necessary that the declarant should express in direct terms a sense of approaching dissolution ; his bodily condition, his appearance, conduct and language, as well as the statements made to him by physicians and other attendants, may be considered and a conclusion deduced therefrom, as to the state of his consciousness at the time.
    In a charge of murder, before the jury can convict thedefendant,they must believe from theevidence that the deceased died of the wounds inflicted by the accused and from no other cause. If he did, the facts that he had no surgeon, or an unskillful one, or a nurse whose ill appliances may have aggravated the original wound, cannot mitigate the crime of the person whose malice caused the death.
    To do that, it must plainly appear that the death was caused, not by the wound, but only by the misconduct, malpractice or ill treatment on the part of other persons than the accused.
    APPEAL from the Eirst District Court of New Orleans, Robertson, J.

      B. W. Mo'ise, Attorney General, for the State.

      A. P. Field, for defendant and appellant.
   Spoítobd, J.

The defendant has appealed from a judgment sentencing him to hard labor in the penitentiary for life, he having been again convicted of the crime of murder. See the former case reported in 11 An., p. 429.

Two bills of exceptions only are to be considered:

I. The witness Ma/nj O'Rowlce was admitted, against the objection of counsel, to prove the dying declarations of the victim of the homicide charged in the indictment. Declarations are called “ dying declarations” when made under a consciousness of impending death. In this case the Judge might well have inferred that the declarations of the deceased were made at a time when she knew death was imminent, from the state of facts conceded by the bill of exception. It is not necessary that the declarant should express in direct terms a sense of approaching dissolution; his bodily condition, his appearance, conduct and language, as well as the statements made to him by physicians and other attendants, may be considered and a conclusion deduced therefrom, as to the state of his consciousness at the time. We do not find that the Judge committed an error in inferring from the admitted facts, that the declarations in question were dying declarations, and admissible as such. See 1 Greenleaf Ev. § 158.

II. The other bill was taken both to the refusal of the Judge to give a certain instruction to the jury, and to some of the instructions actually given. The prisoner’s counsel desired the court to charge the jury, that “ if the wound inflicted was not necessarily mortal, but by ill treatment became so, they will find the defendant not guilty.” The refusal of the Judge to give this charge was not an error. He had just charged “that before the jury can convict the defendant, they must believe from the evidence that the deceased died of the wounds inflicted by the defendant, and from no other cause.” It is sometimes impossible to procure skillful surgical aid. If a person dies from a wound inflicted with a murderous intent, whose life might have been saved by the skill of a surgeon whom it was impossible to procure, the crime is none the less murder. The true point is, did the party die of the wounds inflicted by the accused ? If he did, the facts that he had no surgeon, or an unskillful one, or a nurse whose ill appliances may have aggravated the original hurt, cannot mitigate the crime of the person whose malice caused the death. To do that, it must plainly appear that the death was caused, not by the wound, but only by misconduct, mal-practice or ill treatment on the part of other persons than the accused.

We do not think the instructions given to the jury, all taken together, are inconsistent with this exposition of the law, which we regard as correct and supported by the best authorities. 1 Hall’s P. C.* 428 ; Wharton’s Law of Homicide, 241; 1 Russel, 505. The doctrine upon this subjected is thus digested by Greenleaf, (Evidence, vol. 3, § 139,) with his usual accuracy and clearness: “ If death ensues from a wound given in malice, hut not in its nature mortal, but which being neglected or mismanaged, the party died; this will not excuse the prisoner who gave it, but he will be held guilty of the murder, unless he can malee it dearly and certainly appear that the mal-treatment of the wound, or the medicines administered to the patient, or his own misconduct, and not the wound itself, was the sole cause of his death: for if the wound had not been given, the party had not died. So, if the deceased were ill of a disease apparently mortal, and his death were hastened by injuries maliciously inflicted by the prisoner, this proof will support an indictment against him for murder; for an offender shall not apportion his own wrong.'’

Judgment affirmed.


source: Caselaw Access Project

author: Voobiiies, J.

license: Public Domain

text:
    John Monticon v. W. G. Mullen, Executor, &c.
    The proper mode of seizing a debt existing in the form of a judgment, is a notification of seizure by the Sheriff to the judgment debtor.
    APPEAL from the District Court of Jefferson, Burihe, J.

      M. Grwot and Z. Latoar, for plaintiff and appellant.

      Me Gay and JEdtoarás and W. S. Scott, for defendants.
   Voobiiies, J.

The property of Antonia Rentaría was seized and advertised to be sold by the Sheriff' of the parish of Jefferson, under a writ o £ fieri faenas on a judgment in favor of Isaac Oollins against the plaintiff, John Monticon. The sale was injoined by Rentaría, and the execution made perpetual at the costs of Oollins. On the judgment thus rendered in favor of Renturia, an execution was issued for the costs, amounting to the sum of $17 -70. The Sheriff’s return states: “ Received July 28th, 1854, and same day seized all the right, title and interest of Isaac Oollins in and to a certain judgment rendered in the case of Isaac Collins v. Jean Monticon, No. 4263 of the docket of the Third Judicial District Court, and same day issued notice of seizure to said Isaac Oollins, notifying him of said seizure, and which was duly served on him by said defendant, and on the 19th day of August, same year, I advertised said judgment for sale at public auction for cash, in the English language, in the Carrollton Star, a newspaper published in the parish of Jefferson, announcing said sale to take place on Monday the 30th August, 1854, &o.” It also appears from the return, that Collins was notified to name an appraiser, but did not do so, nor was he present at the sale, when the judgment thus seized was adjudicated to José Antonio He la Rondo for the price of §55.

By an act under private signature, dated 27th September, 1856, He La Rondo declares that, shortly after the adjudication he transferred to Monticon, for a valuable consideration, his title to the judgment thus acquired by him. William C. Mullen, as executor of the last will of Isaac Collins, having caused an execution to issue on the judgment against Monticon, the latter enjoined the same, on the ground that said judgment was extinguished by confusion, as he had become the transferree thereof as above stated.

The defendant pleaded a general denial and specially, that the whole of the proceedings under which the pretended sale to He La Rondo was made were null and void; and prayed for the dissolution of the injunction with damages.

The plaintiff is appellant from a judgment dissolving the injunction and awarding damages against him in favor of the defendant.

The only question which we consider necessary to be examined, is whether the judgment in question was legally seized or not. Without a legal seizure, it is clear that the adjudication under it conferred no title on He La Rondo. We take it to be the rule as laid down in the case of Hanna v. Bry, 5 A. 656, that “the proper mode of seizing a debt existing in the form of a judgment, is a notification of seizure by the the Sheriff to the judgment debtor.” In the case at bar, it does not appear that such notice was given. See 9 A. 525.

Judgment affirmed.


author: Buchanan, J. Lea, J., Spoeeokd, J.,

text:
    Bullitt, Miller & Co. v. William Walker.—Robertson & McDougall and Oglesby & McCauley, Garnishees.
    The true owner of goods in a factor’s hands on consignment may require an account of the factor, although unknown to him. When the true owner has not presented himself to make any claims, and the factor, without having received any communication from him, and being under advances to the agent upon his drafts, passes the proceeds to the credit of the agent, by whom the goods were shipped, with instructions to that effect at the time of the shipment, he will be protected from liability to pay a second time.
    When the goods, under such circumstances, were undisposed of at the time of the service of the interrogatories on the garnishees, held: that they are liable to seizure for the debts of the owner. Held, also, that in this case the owner of the goods, and defendant in the suit, was not a competent witness for the plaintiffs, but that the agent was a competent witness for the garnishees.
    APPEAL from the Rourth District Court of New Orleans, Reynolds, J.

      Henry C. Miller, for plaintiffs and appellants.

      W. W. King, for defendant. Bengmnin, Bradford & Finney, for Robertson & McHougall.

      Mott & Frasee', for Oglesby & McCauley.

   Buchanan, J.

This suit was commenced by attachment, the defendant being an absentee. Two commercial firms of this city, Robertson & McHougall and Oglesby & MeGauley, were made garnishees, by service of interrogatories, on the 27th April, 1854. The answer of a curator ad hoc, appointed to represent the defendant, filed, under instructions from him, contained in a letter, which is in evidence, admits fully the plaintiffs’ claim, the correctness of which is also proved by other evidence. The judgment of the District Court was in favor of the defendant and the garnishees, upon the ground that no property of the defendant had been attached. Prom this judgment the plaintiffs have appealed.

The garnishees, commission merchants in New Orleans, were consignees of corn in sacks, shipped on board steamboats at. Evansville, Indiana, by John 8. Mitchell, for account of William Walker. Plaintiffs contend that the consignments of corn, or their proceeds, in the hands of the garnishees, belong to the defendant, and are liable to their attachment.

The garnishees, Robertson & McDougall, in their answers, which are uncontaidicted, aver that they received two shipments, per steamers Empress and James Robb, with directions from the shipper, Mitchell, to place the proceeds to the credit of Mitchell in account; that they sold both shipments of corn, and placed the net proceeds to the credit of Mitchell, as directed, on the 2d and 22d April, 1854, respectively.

They say: “Before the collection of the money for sales of this corn, we were under advance upon the drafts of John 8. Mitchell for more than it yielded by about $100, which he still owes. We were under advance for the whole amount of these sales before the service of attachment.”

An account current with Mitchell, annexed to the answers of these garnishees, corresponds with their statements, showing a balance in favor of Robertson & McDougall, on the 24th April, (after crediting Mitchell with the net proceeds of both shipments of corn) of $98 12.

A letter of advice accompanied the first shipment, in these words:

“I ship to you to-day, per Empress, a lot of corn, 700 sacks, marked A. & B., which please sell for the best price you can, and credit my account with proceeds. Make account of sales for account of William Walker.
“Yours, very respectfully,
“John S. Mitchell.”

The counsel for plaintiffs contend that these instructions gave no authority to the consignee to apply the proceeds of the corn in the manner directed. That the com was defendant’s property, and that the bills of lading (in evidence), and the letter of advice itself, gave Robertson & McDougall notice of this fact. That an agent, as Mitchell was, has no right to pay his own debts with the property of his principal. Consequently, that the payment of the proceeds to any one but Walker was a payment in consignee’s own wrong.

The evidence certainly shows that the corn belonged to Walker, having been purchased for him by Mitchell, and partially paid for by funds of Walker in Mitchell's hands., But it is also" proved that Mitchell was in advance to Walker on account of the price of the corn.

The mention of Walker’s name in the bills of lading, and in the letter of advice, must also be taken to have conveyed to Robertson & McDougall intelligence that William Walker had an interest in the corn. But Robertson & McDougall had no mission to protect Walker from a misappropriation of his funds by his agent, Mitchell. The true owner of goods in a factor’s hands on consignment may require an account of the factor, although unknown to him. See Story on Agency, section 420, and the case of Hays v. Wright, lately decided in this court.

But Walker did not present himself to make any claim. The garnishees state, under oath, and are uncontradicted in the statement, that they received no communication from Walker in regard to those shipments. There is, to be sure, evidence of an order of Walker upon them, in favor of the plaintiffs, for the proceeds of the 1830 sacks of corn, per Empress and James Robb, but this order was only presented after the institution of this suit and service of the attachment.

We perceive no sufficient legal reason for requiring Robertson & MaDougall to pay the proceeds of this corn a second time.

The other garnishees, Oglesby & McOcvuley, are in a somewhat different position. They had in their hands, undisposed of, 1352 sacks of corn, which had been shipped to them under the same circumstances, at the time of the service of the interrogatories, on the 27th April. This corn they sold, as they state, on the 29th April, and applied the proceeds to the credit of Mitchell's account, as directed by him. After giving this credit, Mitchell appears to be still indebted to them. The net proceeds of the 1352 sacks of corn was §1,235 18, for which amount Oglesby & McOcvuley are liable to plaintiffs qnder the garnishment, unless they have established a lien on the com in favor of Mitchell, which entitled him to its proceeds in preference to the owner of the corn, Walker.

In entering upon this enquiry, wo are met by two bills of exceptions: one taken by the garnishees to the admission of Walker, the defendant, as a witness for plaintiffs, the other by plaintiffs, to the admission of John 8. Mitchell, as a witness for garnishees. The objection to both witnesses is the same, namely, interest.

The interest of Walker is that of party to the suit, against whom judgment is asked, and it does not seem to admit of doubt that a judgment against the garnishees is contingent upon a judgment against defendant. When the defendant is put upon the stand as a witness by the plaintiff, at first blush it would seem that he is called to testify against his own interest; but when we consider that the answer in the cause, filed with the written authorization of defendant, is an acknowledgment of plaintiffs’ right to recover, it is apparent that defendant’s testimony is only required for the purpose of making the garnishees liable for the payment of defendant’s debt to plaintiffs, which purpose he is clearly interested to see accomplished. Neither does the so called release, which has been tendered, cure the objection, for it does not discharge defendant from the suit. It merely stipulates that plaintiffs will not seek to enforce any judgment they may obtain out of any other property of defendant than what may be decreed to be in the hands of the garnishee.

We consider Walken''s testimony should have been rejected.

As to Mitchell, we cannot see any incompetency. He is not directly interested in the result of the suit, neither does the rule of indirect interest, contained in the cases collected in Hennen’s Digest, verbo Evidence, page 546, at bottom, apply to him. The judgment in this case would not be evidence in a suit to be brought by Walhei' against Mitchell for settlement of accounts. Res ¡¡udAcata only holds where the thing demanded is the same.

Proceeding next to examine the state of the account between Mitchell and Walker, on the 27th April, 1854, the date of the service of attachment on the garnishees, we find Walker charged in Mitchell's account current, for advances and commissions to that date (not disputed).....................$6,969 15

Against which are credits to amount of......................... 4,562 00

Balance due Mitchell, April 27th, per his account................$2,407 15

This balance must be diminished, however, in the first place by the amount of two items which figure in Mitchell's account to Walker's credit, under date of the 29th April, but which the other evidence shows were passed to Mitchell's credit by the garnishees, on the 20th and the 22dof April — $982 33 + $1,004 49 =.......... 1,986 82

Reducing it to.............................................. $420 33

And, in the second place, the credit of $3,000 in Mitchell’s account, under date of May 16th, should bear date April 26th, when the ninety day draft of Walker on plaintiffs matured and was paid, say....... 3,000 00

Real balance, Api’il 27th, in Walker’s favor.....................$2,580 67

Eurther credits are, however, claimed for Mitchell, for items in his account current, on file, of a date posterior to the levying .of plaintiff’s attachment. They are as follows:

April 29th — To paid Evansville Insurance Company insurance on com shipped by Preston & Brothers.............. $214 34
May 8th — To five cents per bushel on 9,637 bushels of B. K. Moore, as per agreement............................... 481 85
“ “ To five cents per bushel on 33,000 bushels bought of W W Gray.................................. 1,650 00
“ 31st — To five cents per bushel on 39,391 bushels corn, bought of Preston & Brothers.......................... 1,969 55
“ “ To paid for telegraph dispatches..................... 2 50
“ “ To five cents per bushel on 7,000 bushels, bought of Kenner & Brothers............................. 350 00
Total..................................$4,668 24

A great deal of the argument has turned upon the correctness of these charges, as between Mitchell and Walker, particularly the charges of commissions on com bought. It appears to us, however, impertinent to the issues between the attaching creditors and the garnishees to pass upon the correctness of those items, which, indeed, would involve several questions not free from difficulty.

But the rights of plaintiffs under their attachment were fixed by the levy of the attachment and process of garnishment. It was out of the power of Mitchell to alter the condition of things to the prejudice of plaintiffs, by charges, correct or incorrect, of a date subsequent to the attachment. Even taking' for granted that Walker has approved all those charges, which he now so strenuously contests, (although the approval testified by Mitchell and Kill would rather seem to have a date fixed by Walker’s letter of the 6th of May, a date anterior to all the contested charges, except that for insurance) yet it was equally out of Walker’s power as out of Mitchell's to divert the fund attached by changing the balance of his account with Mitchell, after this attachment. Besides, such a proceeding on the part of Walker would have been in fraud of the assignment made by him, on the 24th of April, 1854, to plaintiffs, of his rights upon the shipments of com in the hands of those garnishees, which assignment was notified to the garnishees on the 1st of May, 1854, anterior to the date of the contested charges of Mitchell.

It is, therefore, adjudged and decreed, that the judgment of the District Court as to the garnishee, Robertson <& MoDougall, be affirmed; that the judgment as regards the defendant and the garnishees, Oglesby <& McOcmley, be reversed; that plaintiff's recover of the defendant, William Wallcm', sixteen hundred and seventy-three dollars, with interest horn March 26th, 1854, until paid, and costs of the District Court; that plaintiffs recover of Oglesby & McCauley, garnishees, twelve hundred and thirty-five dollars and eighty-one cents, and that the costs of appeal be borne one-half by plaintiffs and one-half by defendant and Oglesby & McCauley.

Lea, J.,

dissenting. I think that the judgment appealed from should be affirmed as it stands.

Spoeeokd, J.,

dissenting. I concur in the judgment relative to the claim of Robm'tson & MoDougall, but I incline to the opinion that the claim of Oglesby & McCa/aley should also prevail against the attaching creditors.

The testimony of Walleer being rejected, in the propriety of which ruling I also concur, I do not think the answers of the garnishees are contradicted; and the circumstances of the shipment to these garnishees were such, in my judgment, as to create a contract between themselves and Mitchell, which Walleer, and of consequence Walleer's creditors, are not in a position to defeat.


author: Buchanan, J.

text:
    Whann v. Hufty, Sheriff, et al.
    The right of a plaintiff in attachment to follow the property attached into the hands of third persons who have acquired rights from the owner after the attachment, depends on the reality of the Sheriff Ts possession under the attachment.
    The possession of the keeper appointed by the plaintiff is the possession of the Sheriff, but if the plaintiff in, the attachment is himself the keeper and suffers the property attached to be taken out of his possession and carried to a distant parish from his own residence, where it is sold without any steps having been taken to regain the possession, he cannot disturb the title of the purchaser.
    from the Second District Court of Now Orleans, Morgan, J.

      M. M. Cohen, for plaintiff and appellant.

      George L. Bright, for defendants.
   Buchanan, J.

Randall McGcmocle, one of the defendants, brought suit against James R. Christian, in the District Court of Iberville parish, by attachment, for money paid to and for the use of Christian's wife, who was the daughter of MaGamoole.

This suit was brought and the attachment levied on the 15th November, 1854, on a slave named Marry, as the property of the defendant Christian. The Sheriff’s return of the writ of attachment is “ Executed by seizing amd attaching," &c. It does not say, in so many words, that he had taken possession of this slave; but we may infer that he did so, because it is proved by a witness, introduced by Mo Gamocle, that the latter was in possession of the slave in November, 1854, as leeeper appointed by the Shm'iff. On the 2’Tth of April, 1855, judgment was entered up in the District Court of Iberville, (which was, however, only signed on the 14th February 1856,) in favor of MeCamoek against Christian, for the sum of .two hundred and seventy-five dollars and sixteen cents ; “ and that the slave attached be seized and sold to satisfy judgment and costs.” Some time in the interval between the rendition of the judgment and its signature, Mrs. Christian, daughter of defendant, MeCamoek, who was living at her father’s house, when the suit was instituted by him against her husband, came from thence to New Orleans to the house of Philo H. Coodwyn, accompanied by the slave Ma/i'y as a nurse. Philo H. Coodwyn was married to another daughter of defendont McCavoek. After staying some time with her sister, Mrs. Coodwyn, Mrs. Christian left to go to her husband, in the parish of Iberville, a reconciliation having taken place between herself and her husband, who, it should have been mentioned, was living in Tennessee when his father-in-law brought suit against him, but had returned to Louisiana pending that suit, in which he made a personal appearance and defence. The night before Mi's. Christian loft. Mr. Coodwyn!s house, the slave Mwry ran away, and told Coodwyn, when found, that she was willing to stay with any one who would purchase her in the city, but would not return to the country. Whereupon, at the instance of Coodwyn, negotiations were set on foot for the sale of the slave Mary, between Christian and the plaintiff, a resident of New Orleans, through Jamies M. Putnam, a merchant of New Orleans, and the holder of a mortgage upon the slave.

The slave Mwry was left in plaintiff’s possession, on trial, for a month previous to the day of sale. The proposed sale of the slave by Christian to plaintiff was a matter of notoriety in the family; and defendant MeCamoek was informed of it in a letter by Coodwyn. MeCamoek replied to this information, that he did not care what Christian did with the girl, but that, if he got judgment, he would seize her.

A power of attorney to sell the girl was sent at first by Christian to Coodwyn, but Coodwyn declined to act, knowing the difficulty that existed. Christian then made his special power of attorney to Putnam, of date the 26th July, 1855, under which the latter sold the slave Mary to plaintiff on the 30th July, 1855, for nine hundred dollars cash.

Putnam testifies that he was on the 30th July, the agent of defendant, MeCamoek, in this city; that up to the date of the sale, McCavoek did not inform him that he had a claim against this slave Ma/ry, which, as agent for Christian, the witness sold to Whann. Had witness known that there was a claim on the part of MeCamoek against Christian on the slave Ma/ry, he would not have passed the act. And Coodwyn states that Whann consulted him about the title before making the purchase; and admits that, although he knew of the attachment, he concealed if from Whann. After this sale Whcmn remained in possession of the slave Mary until the ?th March, 1856, when the Sheriff of the parish of Orleans seized her in his hands, under a fi. fa. directed to him from the District Court of Iberville, in the suit of McCavoek v. Christian, by the express written instructions of McCavoek. The plaintiff has injoined the sale.

Under the above state of facts, respecting which there is no contrariety of evidence whatever, the claim of MeCamoek to make the slave Mai'y liable in execution of his judgment, has as little foundation in law as in equity. There is no doubt that property claimed in a lawsuit cannot be alienated or incumbered pending the proceedings, to the prejudice of the plaintiff or claimant. See C. C. 2428, and the case of Gillespie v. Cammack, 3d Annual. But the right of plaintiff in attachment to follow the property attached into the hands of third persons, who have acquired rights from the owner after the attachment, depends upon the reality of the Sheriff’s pessossion under the attachment, see Goodrich v. Pattengill, 7 An. 664. And we take it also to be correct doctrine that the possession of the keeper appointed by the Sheriff is the possession of the Sheriff But when, as in the present case, that keeper is the plaintiff in attachment himself, who suffers the property attached to be taken out of his possession by the wife of the defendant into a parish distant from his own residence, and there to remain for months, while the defendant is openly, and to his perfect knowledge, offering it for sale, and finally sells it without the plaintiff in attachment interposing any obstruction or taking any steps to re-“ gain possession, as keeper, for the Sheriff, although he had ample opportunity to do so; the case is clearly within the rule of the Roman law quoted by Judge Story in paragraph 394 of his Commentaries on Equity Jurisprudence — “ creditor., qui permitUt rem venire, pignus dimittít.” See also paragraph 385 of the same work, and Marsh v. Smith, 5 Rob. 523.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; and that the injunction herein be perpetuated, the defendant and appellee, Randall McGamoch, to pay the costs of both courts.


author: Merrick, O. J.

text:
    Edward Conery v. Webb, Rawlings & Co.—Rawlings, Duncan & Co., Garnishees—W. H. Webb, Intervenor.
    When appeal is taken by motion in open court, one who is a party to the suit and who signed the appeal bond, although only as surety, will not be permitted to allege that he was not a party to the appeal.
    Under the terms “ et alii,” parties to the suit not expressly named, may be considered as included among the obligees in the bond.
    The garnishees had received from the defendants certain promissory notes, with instructions to place the proceeds to the credit of the intervenor-, to whom the defendants were indebted. IIeld: That the property in the notes could only enure to the benefit of the intervenor when he had been informed of what was done, and had assented thereto; until then the defendants might have changed the destination of the property. The rule is that, when the proprietor may sell and deliver, the creditor can seize.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      G B. Singleton, for plaintiff.

      II. C. Miller, for intervenor and appellant.
   Merrick, O. J.

The plaintiff obtained judgment against Webb, Handings •S Co. for $1700 77, and interest.

In aid of an execution issued upon this judgment, the plaintiff propounded to Messrs. Rawlings, Duncan & Co., of this city, interrogatories requiring them to answer under oath, as garnishees, whether they had not cotton, promissory notes and other effects belonging to the defendants. The garnishees answered that they had nothing belonging to the defendants, but had received from Webb & Randings, of Memphis, certain promissory notes, with instructions to place the proceeds to the credit of W. K Webb, to whom said Webb & Randings were largely indebted; and that the garnishees had, previous to the seizure in this case, informed Webb & Randings that they would place the proceeds to the credit of W. II. Webb. The firm of Webb & Rawlings was composed of the same members as the branch of the same house in New Orleans, styled Webb, Rawlings & Go., and being the defendants in the original suit. The firm of Rawlings, Duncan & Go. (the garnishees) is a distinct firm and not composed of the same partners as the other firms mentioned. The plaintiff traversed (successfully as was deemed by the District Court) the answers of the garnishees, and judgment was rendered against them and also against the right of W. II. Webb, who had intervened in the suit. Webb appealed by motion in open court, and Duncan <& Rawlings, of the firm of Rawlings, Duncan & Go., with G. W. Logan, Jr., signed the appeal bond as sureties, which was made payable to “ Edward Gonery et al.”

A motion has been made to dismiss the appeal, on the ground that proper parties to the appeal have not been made, and that the bond ought also to have been in fiivor of Webb, Ramlings & Go., Webb S Rawlings and Rawlings, Duncan <& Go.

The latter firm having signed the appeal bond as sureties, which is payable to “ Edward Gonery et al.,” could not be permitted to allege that they were not parties to the appeal. Webb & Rawlings are no parties to the proceedings, except so far as the firm of Webb, Rawlings & Go. is identical with it. Webb, Rawlings & Go. are parties to the suit and may be considered as included among the obligees in the bond under the term “ et alii.” See Baehus v. Moreau, 4 An. 314. The motion to dismiss the appeal is therefore overruled.

On the trial of the cause as to the garnishees and the intervenor Webb, the latter offered to read in evidence the deposition of J. J. Ramlings, one of the defendants in the original suit, and consequently a member of the firm of Webb & Rawlings, of Memphis. This testimony was objected to and excluded on the ground that J. J. Rawlings was a party to the suit and interested in the result of the present controversy. The intervenor excepted.

Without deciding the question raised by the bill of exception, we remark that if the intervenor be allowed the full benefit of this deposition, it will not make out his case. The testimony of this witness explains the transactions of the parties more in detail than do the answers of the garnishees Rawlings, Duncan & Go., but it adds nothing of force to those answers, and on- the answers and deposition together, we think the judgment of the lower court must be affirmed.

It appears that the firm of Webb & Rawlings was indebted to W. U. Webb, a planter of Tennessee, in the spring of 1855, in a balance of between nine and ten thousand dollars, for advances of cash and proceeds of cotton during the year 1854, previous to the dissolution of the two firms of Webb & Rawlings and Webb, Rawlings & Go., which took place in July and September of that year, each partner having power to use the partnership name of either firm in liquidation. In the spring of 1855, in a conversation with W. H. Webb, the witness J. J. Rawlings promised him that on the return of his partner S. M. Webb, who was then on a tour of collection, that if they (Webb & Ramlings) could not pay the money, they would give him such paper as the witness thought most available to him, it being understood, as the witness says, that it should be discretionary with him what paper to transfer. 8. M. Webb having returned with two notes on Jos. J. Scales, one dated May 81, 1855, for $3843 50 cents, and the other dated November 1st, 1855, for $394 50, and another note on W. A.- Thomas, for $170 02, dated May 26, 1855, all payable to Webb, Bamlings & Go., the New Orleans branch of the house, on the 22d of December, 1856; the name of Webb, Bamlings & Go. was indorsed upon the notes, and they were transmitted by Webb & Bamlings to Bowlings, Dunoon & Go., of New Orleans, to collect and place to the credit of W. B. Webb. Bamlings, Duncan & Go. notified Webb & Bamlings that they would obey the instructions.

It is fair to presume that the notes were assets of the New Orleans house, because they were payable to it, and because they were sent to this city for collection. W. B. Webb does not appear to have had any correspondence with Bamlings, Dunccm & Go., and his account with Webb <& Rawlings was not even debited with the notes so sent. The witness states that it (viz, the indorsement and sending of the notes to Bamlings, Duncan <& Go.) was intended as a payment to W. B. Webb, and that the notes would have been given to him (W,. B. Webb) in person, had it been known where he was. But before information had been communicated to him of what had been intended and done on his behalf by his debtors, viz, on the 29th December, 1855, the plaintiff had levied his execution and served his proceeding in garnishment on Bamlings, Dunccm & Go., the holders of the notes of Seales and Thomas.

W. B. Webb was not apprised of what had been done until the 26th day of January, 1856, and for the first time he testified his acquiescence on the 2d day of February, 1856, (more than a month after the garnishment,) by letters addressed to. Webb & Bowlings and to Scales, the maker of the principal notes.

It is clear that at the time the execution was levied and the proceeding against the garnishees was served, that the paper in the hands of Bamlings, Duncan & Go. was under the entire control of Webb, Rawlings & Go., or Webb & Bamlings, and that they might have countermanded the order to hold the proceeds for the benefit oí W. B. Webb, and could have directed' the proceeds to he paid to the plaintiff or any one else. The property in the notes could only enure to the benefit of Webb, when he had been informed of what was done and had assented thereto. Had the makers of the notes become insolvent, he would not have been hound to receive them, nor was he hound to recognize Bamlings, Duncan & Go. as his agents.

Before the information had been given him and he had assented to the arrangement, the notes were attached and the power given to Bamlings, Dunccm & Go. to appropriate the proceeds to the payment of W. B. Webb was revoked by the effect of the attachment.

The case falls within the rule laid down in the case of Armour v. Goelcbwrn, which has been affirmed by repeated decisions, “ That where the owner of the property has lpst all power over it and cannot change its destination, the creditors cannot attach; the converse of the rule being that whenever the proprietor may sell and deliver, the creditor can seize.” 4 N. S. 669; 3 An. 82. If it he considered that the delivery of the notes to Bawlings, Dunccm & Go. was accompanied with the stipulation pour autrui, (C. C. 1884, 1896,) the same was subject to revocation until accepted. Gravier v. Gravier, 3 N. S. 206. See cases of Wilsonv. Lizardi, 15 L. R. 255, and Goodhue v. McClarty, 3 An. 56.

Judgment affirmed.


author: Voorhies, J.

text:
    State of Louisiana v. Bythell Haynes.
    Under the Act of the Legislature of March 15th, 1855, the Governor has authority to appoint a-liquidator to take charge of and liquidate the affairs of any corporation, when its charter has been decreed to be forfeited and and there is no law existing at the time which provides for its liquida-
    from the District Court of East Feliciana, Bailiff, J.

      J. O. Fuqua, and Muse & Hourdee, for plaintiff.

      Moise & Bandolph, for defendant and appellant.
   Voorhies, J.

This is an appeal taken by the defendant from a judgment rendered by the court below, vacating his commission as liquidator of the “ Clinton and Port Hudson Railroad and Banking Company,” incorporated in 1833.

Having forfeited its charter, an Act was passed by the Legislature on the 4th of May, 1847, for the liquidation of the affairs of said company, under which the Governor was authorized to appoint a liquidator for the term of one year. By the Act of the 16th of March, 1848, the Governor was authorized to appoint the same or such other liquidator as to him might seem proper, for a term not exceeding two years. On the 21st of March, 1850, and 30th of April, 1853, the Legislature passed two Acts on the same subject, the former of which limited the term of the liquidator’s office to three years from the date of his appointment by the Governor, and the latter to two years from the same period. At the expiration of the term of the liquidator’s office, under the last mentioned Act, the affairs of the company being still unsettled, the defendant was reappointed by the Governor on the 18th of April, 1856.

In regard to the duties and powers of the liquidator, it suffices to refer to the Acts to which we have adverted in connection with the cases of The Gas Light Company v. Haynes, 7 An. 114, and Haynes v. Castor, 9 An. 266.

The record contains an admission of the insolvency of the company, and that its affairs are still unsettled.

It is contended by the relators, that the Governor had no right to make the appointment after the term of office had expired; and that the defendant was disqualified from holding the office, on the ground of his being a debtor of the company.

The purchase of property encumbered with mortgages in favor of the company, could not have the effect of making the purchaser a debtor of the company. Such we understand from the evidence to be the relation in which the defendants stands to the company.

It is evident that the defendant’s appointment as liquidator was not and could not have been made under the Act of 1853. That and the other Acts in relation to the liquidation of the affairs of this company, to which we have adverted, had expired by limitation prior to the appointment of the defendant in this case. But we think the authority for the appointment thus made is to be found in the 7th section of the Act entitled, “ An Act to regulate Corporations generally,” approved March 15th, 1855, which declares: “That whenever the charter of any corporation in this State shall be decreed forfeited by any competent court, the District Attorney of the district shall forthwith inform the Governor of the fact, who shall thereupon appoint a liquidator to take charge of and liquidate the affairs of the corporation, as in case of insolvency of individuals. * * * This section shall not apply to banking or other corporations whose liquidation is otherwise provided for by law.” (Session Acts of 1855, p. 486.) It appears to us clear that the company, whose charter had been decreed to be forfeited by a competent court, must be considered as falling within the operation of this enactment, unless excluded by the exception. As there was no law existing at the time which provided for its liquidation, we think it follows as a natural consequence that such an appointment became necessary, and that the Governor was fully authorized to make it under the provisions of this Act.

It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed, and that the application of the relators be rejected, at their costs in both courts.

Merrick, O. J., recuses himself in this case.


author: Merriok, C. J.

text:
    Succession of Whiting Valentine—On rule taken by the Widow and Heirs of W. G. Vincent.
    The deceased by his will, which was executed iu 1848, after a legacy to his wife of certain specified' property, declared as follows:
    “ AU'the balance of my property, I will to my six brothers and two sisters, to be equally divided be‘tween them, after all claims against me are paid. And, I hereby appoint, Jolm Valentine, my brother, to execute this will; and, in case of his death or absence, PaUtzen Belcher, my wife’s brother. I would recommend that this property be sold, for one-fourth cash, and the balance on six, twelve, eighteen and twenty-four months* time; and the notes secured by mortgage to secure payment.”
    “ I would recommend that the money be paid to them, so as to be of the greatest advantage to them, possible. There will be somewhere from two> to three thousand dollars for each of them, if it were so divided at the present time. IVhat my property is, and where situated, you will find by the copy of the titles in my bank-box. Although I have made several errors, yet I think the above will be easily understood X have one house on Circus Street; two on Gravier; two on Adele; one corner of Camp and St. Mary; and one vacant lot, corner of Plaquemines and Seventh streets.”

      Held: that this was a disposition of the property which the testator then had, and was not intended to cover his future acquisitions ; and that, consequently, property purchased by the testator in 1858, after the will was made, did not pass under it.
    u A disposition, the terms of which express no time, neither past nor future, refers to the time of making the will.” C. C. 1715.
    APPEAL from the Second District Court of New Orleans, Morgan J.

      Olarhe & Bmjne, for plaintiffs and appellants.

      B. E. Bonford, for defendant.
   Merriok, C. J.

The defendant in the rule in this case is the purchaser of property at a sale made in order to effect a partition among the universal legatees under the will of the deceased. He refuses to comply with the terms of the sale, because, as he alleges, all the parties interested in the property were not made parties to the proceedings in partition.

The question which he presents arise under the will. If the will conveyed conjointly to the legatees the present and future property of the testator, the purchaser has acquired a good title and must be compelled to comply with the terms of the sale. If, on the other hand, the legacy was not conjoint, or if it was only of the present property of the testator, in either case the purchaser has not acquired a good title, and ought to be discharged from the rule taken against him.

The will which was dated in 1848 is as follows :

“ New Orleans, December 12í¡7, 1848.
As my health is not good, and as I travel often, I think it my duty to write a will, in order that there may be • as little trouble about my estate as possible.
I, therefore, give to my wife, Lucy Belahe/>\ the two pieces of property, which are now in her name — one on St. Charles street, the other on Phillippa street —and, likewise, all the property where we now live, on Camp street, consisting of a frame house and three lots of ground, and all the furniture belonging thereto ; and, likewise, the first month’s rent that may fall due, after my death. This property, in all, is worth, I think, ten thousand dollars ; and is just about half of what we have gained since we were married.
All the balance of my property, I will to my six brothers and two sisters, to be equally divided between them, after all claims against me are paid. And I hereby appoint John Valentine, my brother, to execute this will; and, in case of his death or absence, Palitzen Belcher, my wife’s brother. I would recommend that this property be sold, for one-fourth cash, and the balance on six, twelve, eighteen and twenty-four months’ time ; and the notes secured by mortgage to secure payment.
I would recommend that the money be paid to them, so as to be of the greatest advantage to them possible. There will be somewhere from two to three thousand dollars for each of them, if it were so divided at the present time. What my property is, and where situated, you will find by the copy of the titles in my bank-box. Although I have made several errors, yet I think the above will be easily understood. I have one house on Circus street; two on Gravier; two on Adele; one, corner of Camp and St. Mary ; and one vacant lot, corner of Plaquemines and Seventh streets.
I have done this in my right mind, on the date above.
[Signed] Whitney Valentine.”

The property which was sold was acquired by the testator after the making of his will, viz: in February, 1853, it being one half of the lot sold, the other half being held by John Valentine and sold at the same time.

Piehmxl Valentine, one of the six brothers of the testator and one of the legatees in the will, died after the execution of the will, but before the testator, leaving three minor children, who were not represented in the partition. Thus, two questions arise under the will and these facts: Did the will convey the future property ? Was the disposition conjoint, and did the other brothers and sisters take the share of Pichard Valentine, by accretion ? If either of these questions, as already said, are decided in the negative, the rule must be discharged.

Under the peculiar phraseology of this will, we think it was a disposition of the property which he then had. It was not intended to cover his future acquisitions, and is, therefore, controlled by Article 1715 of the Code, which is in these words :

“A disposition, the terms of which express no time, neither past nor future, refers to the time of making the will.”
“Thus, when the testator expresses simply that he bequeathes his plate to such a one, the plate he possessed at the date of the will is only included.”

The minor heirs of Richard Valentine, therefore, appear prima facie to be interested in the property sold, and the purchaser cannot be compelled to complete the sale.

It is thus unnecessary to consider the second question with its surrounding difficulties.

It is, therefore, ordered, adjudged and decreed, that the judgment of thelower court be avoided and reversed, and that the rule be discharged at the cost of the plaintiff in the rule, the appellee paying the costs of the appeal.


author: Spofford, J.

text:
    State v. James Patton.
    As the jury in trying an indictment for murder have the power to find the prisoner guilty of manslaughter, it was pertinent and right for the Judge to instruct the jury in the law both of murder and manslaughter, notwithstanding his counsel chose to assert that the only issue for the jury to try was the sanity of the accused.
    The judge did not err in refusing to allow the tardy motion for an inquisition of lunacy, there being no pretence that the prisoner had become insane since the trial, and the" question of his sanity at that time having been fully considered and passed upon by the jury as a question of fact.
    APPEAL from the First District Court of New Orleans, Reynolds, Judge of the Fourth District Court, presiding.

      E. W. Mdise, Attorney General, for the State,

      A. P. Field and J. S. Whitaker, for the accused.
   Spofford, J.

The opinion we have formed upon the only questions presented by the record and cognizable by this court, render it unnecessary to consider the motion to dismiss the appeal.

Since the cause was remanded for the admission of evidence touching the asserted insanity of the accused, (10 An. 299,) there has been a new trial which resulted in a verdict of “ guilty without capital punishment.” The prisoner was sentenced to hard labor in the penitentiary for life.

There are but two bills of exceptions, neither of them appears to have been well taken.

The prisoner pleaded not guilty to an indictment for murder. Upon the issue thus joined, the jury had power to find the prisoner guilty of manslaughter. (Rev. Stat. 136, sec. 2.) It was, therefore, pertinent and right for the Judge to instruct the jury in the law both of murder and manslaughter, notwithstanding his counsel chose to assert that the only issue for the jury to try was the sanity of the accused.

Nor was there error in refusing to allow the tardy motion for an inquisition of lunacy, it appearing that there was no pretence that the prisoner had become insane since the trial, and the question of his sanity at that time having-been fully considered and passed upon by the jury as a question of fact. The 'verdict of the jury is conclusive upon us as to all matters of fact embraced by it, and as there are no errors of law assigned, and the bills of exceptions were not well taken, the judgment of the District Court is affimed, with costs.


author: Merrick, C. J. Spoctokd, J.

text:
    McGregor, Alloway & Co. v. Barker & Diffenderffer.—Planters’ Bank of Tennessee, Intervenors—Fellowes & Co. and Yeatman & Co., Attaching Creditors, Defendants in Rule.
    An appeal will not be dismissed on the ground that the judgment was not signed when the order of appeal was made, if it appears to have been signed at the time the appeal was made out.
    ■It is not necessary there should be as many copies of a record of appeal made out and filed as there may happen to be appellants with interests in any way conflicting. When the necessary parties are before the court, a transcript filed by any one of them, will authorize the court to adjudicate upon the merits of the whole cause.
    The right of priority of a creditor making the first attachment, will not be defeated in consequence of another creditor having discovered that there was a dormant partner interested in the property attached, and having attached his interest.
    When property is attached within the jurisdiction of our State courts, questions of privilege and priority among the attaching creditors, must be determined by the laws of Louisiana.
    A bill was drawn in Tennessee on a merohant in London, under an authorization to draw against shipments of tobacco to an agent of the London merchant at New Orleans. On the faith of such an authorization, the intervenors discounted the bill, which the drawer afterwards refused either to accept or pay. Held: That the intervenors acquired no privilege upon the tobacco, which they attached in New Orleans, in the hands of the agent of the drawee, because they had no actual possession or control of the tobacco by themselves or by their agents.
    Under such circumstances, in order to give the bill-holder such an interest in the tobacco as would defeat attaching creditors of the consignors, there should have been an agreement between the consignors and the consignee, that the tobacco should be held by the consignee for the benefit of the -bill-holder, so that the latter would look to the fund for payment, and not to the consignee^ personal credit.
    APPEAL from the Sixth District Court of New Orleans, Qotton, J.

      L. E. Simond, for plaintiffs and appellants.

      Mott & Fraser and Ifwnt & Denegro, for Fellowes & Go. and Yeatman & Go., appellants.

      O. B. Singleton, for the intervenor, appellee.
   The opinion of the court on the motion to dismiss the appeal was delivered by

Merrick, C. J.

A motion has been made in this case to dismiss the appeal. The grounds stated in the motion are:

1st. The order allowing the appeal was granted and citation of appeál served before the judgment appealed from was signed.

2d. The appeal bond filed purports to be given in a different cause.

3d. The condition of the bond is insufficient for a suspensive appeal.

We shall only notice the first point, the others being unsupported by the facts. The judgment was rendered on the 30th day of June, 1856, and the order of appeal was granted by the Judge and the appeal bond filed on the tenth of July, the judgment not having been signed until the 12th day of July, two days after the order allowing of the appeal.

It is contended that the appeal was prematurely taken and ought to be dismissed.

We have carefully examined the cases of Wright v. McNair, 7 L. R. 513; Cooley v. Seymour, 9 L. R. 275; Tissot v. Bowles, 18 L. R. 30; Whittemore v. Waits, 4 R. R. 47; Mechanics' Bank v. Walton, 7 R. 451, and 9 An. 42. These all appear to be cases in which the judgment appealed from had not been signed at the time the transcript of appeal was made out. The older oases were decided before the Act of 1839, curing certain defects, and the Act of 1843, allowing an appeal by motion in open court, were passed.

The question now presented is, whether, where an appeal is taken at the same term at which the judgment is signed, hut before the judgment is actually perfected by the signature of the judge, it is such a fault on the part of the appellant as to occasion the dismissal of the appeal.

The 19th section of the Act of the Legislature approved March 20th, 1889, provides that thereafter “ no appeal to the Supreme Court shall be dismissed on account of any defeat, error or irregularity in the petition or ordw of appeal., or in the certificate of the Clerk or Judge, or in the citation of appeal, or • service thereof, or because the appeal was not made returnable at the next term of the Supreme Court, whenever it shall not appear that such defect, error or irregularity is imputed to the appellant; but in all such cases, the court shall grant a reasonable time to correct such errors or irregularities, (in case they are not waived by the appellee,) and may impose on the appellant such terms and conditions as in their discretion they may deem necessary for the attainment of justice, and may also impose such fines on the officer who shall have caused such irregularities, as'they may deem proportioned to the offence.”

Now, the judgment is pronounced in court publicly and usually in the presence of the parties. But the judgment is not often signed in their presence, but usually in the Clerk’s office, or in the court room, at the pleasure of the Judge and when he has leisure at the close of the term, for that purpose.

By the 20th section of the Act just referred to, it is.made the duty of the Judge in the country parishes to sign all final judgments before the adjournment of the court, whether the three judicial days have or have not elapsed since they were rendered. Acts 1839, p. 164.

Under this statute, in some of the parishes, the custom has been to make the signing of the judgments the last thing to be done by the Judge before adjourning for the term, and in such cases, under the Act of 1843, p. 40, the motion to appeal has usually been made immediately after the motion for the new trial has been overruled, without waiting until the Judge has affixed his signature to the judgment, which would then be too late. It would be difficult to say that the suitor is in fault for waiting the pleasure of the Judge to sign in such case.

So too in the city courts, the signing of the judgment is more particularly within the knowledge of the Judge than the counsel, and we do not think the error in the present case is to be imputed to the appellant. It is true that he might have assured himself that the judgment was signed, by an inspection of the record upon the first opportunity; but as three judicial days had elapsed, and the term was closed at which the judgment was rendered, ho had a right to suppose that the Judge had done his duty and affixed his signature to the judgment, and that the Judge would not order the appeal without so doing.

The record containing the judgment properly signed is before us, and we see no reason to dismiss the appeal in this case on the objection made.

The motion to dismiss is, therefore, overruled.

On the merits:

Spoctokd, J.

The defendants, Ba/i'Tier & Diffenderffer, were merchants engaged in the tobacco trade in the State of Tennessee, Contemplating a shipment of tobacco to England, and wishing to raise funds by means thereof, they procured the following authority from the agent of a London and Liverpool house:

“ Cadiz, Term., 28th April, 1854
“Messrs. Barker & Diffenderffer, Clarksville, Term.
“Dear Sirs: I hereby authorize you to draw on my father, Mir. John H. Gilliot, of London and Liverpool, the sum of £21, say twenty-one pounds sterling on all good and fine strips forwarded to Mr. Walter G. Robinson, New Orleans, to be consigned to my father in Liverpool, and £16, say sixteen pounds sterling on all seconds or lugs ; the draft to be made on receipt of Mr. Robinson's acknowledgment of the arrival of the tobacco in New Orleans.
(Signed) “Jonsr S. Gilliot.”

Shipments were made to W. G. Robinson, of New Orleans, as agent of Gilliot, by Barker & Diffenderffer, and on being informed by Robinson that he had received the tobacco, the Planters’ Bank of Clarksville discounted, at successive dates, four several bills of exchange drawn by the shippers on J. K. Gilliot, of London, pursuant to the foregoing authorization, which was exhibited to the bank. But no assignment of the bills of lading was made to the bank.

One hundred and twenty-four hogsheads of this tobacco were attached in the hands of W. G. Robinson, in New Orleans, by the plaintiffs McGregor, Allowa/y & Go., on the 30th of June, 1854, under a claim of theirs against Barker & Diffenderffer, who, it would seem, had become insolvent. Afterwards, the same property was attached by Fellowes & Go. and then by R. Yeatman & Go., defendants in the rule, from the judgment whereon these appeals were taken.

J. K. Gilliot accepted and paid two of the four bills discounted by the Planters’ Bank of Clarksville, as above described. Having heard of the attachment in New Orleans, he refused to accept or pay the other two bills, and they were protested both for non-acceptance and non-payment; it does not appear that notice of protest was given to the drawers Barker & Diffenderffer.

The tobacco having been attached by three creditors of the shippers in different suits, McGregor, Alloioay & Go., whose attachment was first in date, took a rule on Fellowes & Go. and R. Yeatman & Go., to show cause why the proceeds of the tobacco should not be paid to them by preference.

The Planters’ Bank of Clarksville afterwards intervened and claimed, by way of third opposition, the first privilege upon the tobacco or its proceeds, as holders of the two protested bills of exchange which they had discounted on the faith of the shipment and of the letter of credit or authority to draw given by GilKot's agent to Barker & Diffenderffer, said bills amounting to the sum of $5098 62.

There was judgment awarding this sum to the bank by privilege and preference, and ordering the balance of the proceeds of the tobacco to be paid first to McGregor, Allowanj & Go., and then (if any should remain) to Fellowes & Go.

McGregor, Allowanj & Go. have appealed from the judgment in favor of the bank, and Fellowes & Go. and Yeatman & Go. have appealed both from that judgment and the judgment in favor of McGregor, Allowa/y & Go.

The first controversy is between all the attaching creditors and the Planters’ Bank of Clarksville, Tennessee. The property having been attached within the jurisdiction of our State courts, the question of privilege and priority must be determined by the laws of Louisiana. The Tennessee bank has no other lien upon the movable property attached than a citizen of Louisiana would have had, who had discounted bills drawn in this State under precisely similar circumstances. See Lee v. His Creditors, 2 An. 599. The bills under which the bank claims a privilege upon the tobacco attached, are of the following tenor:

“ Clarksville, Tenet., June 22d, 1854.
“Sixty days after sight of this first of exchange (second and third, ¡fee., unpaid,) pay to the order of ourselves, in London, three hundred and seventy-eight pounds sterling, value received, and place the same to account, as advised by your friends.
“(Signed) Barker & Diffenderffer.
“ To J. Z. Gilliot, Liverpool.”
[ Endorsed by the drawers.]
“Clarksville, Tenn., June'24th, 1854.
“Sixty days after sight of this first of exchange, (second and third, &c., unpaid,) pay to the order of ourselves, in London, five hundred and sixty-seveir pounds sterling, value received, a/nd place the same to account of shipment of strips, as advised by your friends.
“(Signed) Barker & Diffenderffer.
“ To J. Z. QilUot, Esq.,. Liverpool.”
[Endorsed by drawers.]

The question is not whether Gilliot acquired a pi-ivilege upon the tobacco to the amount of his actual acceptances, upon its reaching the hands of his agent, Robinson, in New Orleans. That he did so, is conceded by all partiesPor, by Consent of the attaching creditors (before the. intervention of the bank), the 124 hogsheads of tobacco were forwarded to Gilliot for sale, and he has retained without opposition, out of the proceeds, the amount of the two bills of Barker & Diffenderffer on himself, which he actually accepted'and paid, and has remitted the balance (deducting also charges) to W. G. Robinson, without making any claim for the other two bills which he refused' to pay, and' which went to protest and are now in the hands of the bank, the intervenor in this cause. Indeed Gilliot claims no interest in the fund'now in court which, therefore, belongs to Bmdcer & Diffenderffer, subject to such privileges as are established by law. " i

We think that, under the law as understood and administered in the courts of Louisiana, the bank acquired no privilege upon this tobacco, because it has never had any actual or constructive possession thereof by itself or bjr its agents. See Goodhue v. McClarty, 3 An. 56. And it seems doubtful whether, under the extremely liberal views entertained by courts of equity with regard to the law of lien, the bank in this case could succeed in defeating the attaching creditors. See the case of The Marine and Fire Insurance Bank of the State of Georgia v. Jamcey and others, 3 Sandford’s Sup. Court Rep. 257.

As already observed, the bank acquired no control whatever of the tobacco. It took no transfer of the bills of lading and was a stranger to them. These protested drafts do not on their face purport to assign the tobacco to the bank. One of them, indeed, makes no allusion to the shipment. It is plain that the authority from Gilliot to Barker & Diffenderffer to draw upon him, after the receipt of certain shipments by Robinson, was what the bank in the first instance looked to; in other words, to the credit of the drawee, and to the anticipation that he would accept the bills in strict pursuance of the engagement of his-son and agent towards the drawers. He has broken that engagement; whether he had a legal excuse for doing so, is a question not relevant here, for Gillio't is no party to these proceedings. But because he has so broken the engagement entered into on his behalf, it does not follow that' a privilege rises into being, in favor of the bank over merchandise which it never had, even constructively under its control and to which it laid no claim until long after the merchandise had been attached by creditors of those to whom it confessedly belong. The mere belief of the President of the bank that the bank had a lien, cannot affect the case unless he had legal grounds for the belief. And no such grounds are disclosed in the record.

There is no subrogation to a privilege inferrible from the evidence.

The case also differs, from those where a consignee has received a consignment with special instructions from the consignor to pay out of the proceeds a particular creditor of his, and the consignee has notified such creditor of the fact. Under such circumstances, it has been held that a contract springs up between the consignee and the named creditor of the consignor, which a subsequent attachment by other creditors of the consignor will not defeat. Cutters v. Baker, 2 An. 572; Williams v. Pierce & Co., 10 An. 277; Armor v. Cockburn, 4 N. S. 667.

But here there was no contract between Barker. & Diffenderfferr consignors, and J. K. Gilliot, consignee, that any particular creditor of the former should he paid by the latter out of the proceeds of this tobacco. The contract was personal between the consignors and the consignees. The bank was in no sense privy to it. There was even no stipulation pour amPrui, so that the case differs widely from that of Oliver v. Lake, 3 An. 78. Gilliot agreed to accept drafts to a certain limit so soon as his agent should receive certain tobacco. He knew he would become personally hound as soon as the drafts were accepted although the tobacco should perish, or never reach Liverpool. It was his acceptance, or the belief that he would accept, jjayable at all events, that induced the bank to buy the hills. In order to give the bill-holder such an interest in the tobacco as would defeat attaching creditors of the consignors, there should at least have been an agreement between the consignors and the consignees, that the tobacco should be held by the consignee for the benefit of the bill-holder, so that the latter would look to the fund for payment, and not to the consignee’s personal credit.

Here the President of the bank declares that he looked to Cilliot for payment on the strength of the letter of authority, that he still holds him liable, and that he had no confidence in the solvency of the drawers, hut all confidence in the drawees.

ffe conclude that the judgment awarding the Planters’ Bank of Clarksville, Tenn., a privilege upon the fund under attachment, must be reversed.

There is quite a different controversy between MeGregor, Allowmj & Co., the first attaching creditors, and Fellowes & Co. and R. Yeatmmi & Co., whose attachments were subsequent.

MeGregor, Alloway & Co. appealed only from the judgment in favor of the Bank of Clarksville. .

Fellowes & Go. and R. Yeatman & Co., as already stated, appealed both from the judgment in favor of the bank and the judgment giving MeGregor, Alloway & Co. priority over themselves. All these appeals were made returnable on the first Monday of November last. MeGregor, Allowmj & Co. procured from this court an extension of time to bring up the record, but on the same day one of the other appellants, it would seem, filed the present transcript. As McGregor, Allowmj <& Co. have never filed a transcript of the record, the other appellants contend that they must be considered as having abandoned their appeal against the Planters’ Bank of Clarksville, and that they will not, therefore, he entitled to benefit from a reversal of their judgment in favor of the hank.

We think such a rule of practice would be too rigorous and that it is not warranted by the precedents.

The record in this case is very voluminous; but one transcript was necessary, and we see no reason for adopting a construction of the law which would require as many copies of a record to he made out and filed, as there may happen to he appellants with interests in any way conflicting.

So far as the bank is concerned, McGregor, 'Alloway S Go. are appellants, and by the filing of this transcript we consider their appeal before us; as all the necessary parties are represented here, we can adjudicate upon the merits of the whole cause as fully as the District Court might have done.

The first attachments by these three sets of creditors were levied in suits against the commercial firm of Bandeen' & Diffenderffer, the plaintiffs, Me Gregor, Alloway & Go., alleging that the full names of the partners were unknown to them.

Some time afterwards Yeadman & Go. and Fellowes & Go. filed supplemental petitions, alleging that L. G. Williams was indebted to them in solido with Bandeen' & Diffenderffer, and attached his interest in the tobacco or its proceeds.

These parties now contend that the interest of Willianns is one-third of the entire shipment, and that they, as creditors of the partnership of Bandeer & Diffqnderffw' and Williams, are entitled to a payment out of the property be-..'^o^ginl' to that firm over McGregor, Alloway & Go., who are creditors only of Bgndct/t & Diffenderffer. The accounts first sued upon by Yeatmau <& Go. Fellowes & Go. make no allusion to Williams.

'The evidence shows that Willianns was insolvent, but that he became a dornpanjt partner with Bandeer & Diffenderffer in the tobacco transactions out of which the claims of all the attaching creditors have sprung; that Williams furnished no means to the partnership, but agreed to superintend the stemmery, which he never did; that all the money was raised by Bandeer & Diffenderffer by hills on McGregor, Alloway & Go. and others, and that the shipments were all made in the names of Bandcer & Diffendenff'er, who raised the funds. Under these circumstances McGregor, Alloway & Go. are as much entitled to be paid out of the property attached as those who discovered that Williams was a silent partner in the firm of Bandeer & Diffenderffer in their tobacco business, and attached his interest.

Finally the junior attaching- creditors complain that McGregor, Alloway & Go. do not allow sufficient credits on their original judgment against Bandeen' & Diffenderffer, for payment received through certain shipments made to them from Tennessee since the suit was instituted, and that their judgment should be still further reduced. Their judgment (4th May, 1855,) was for $20,905 91 and interest. They are willing- to credit it with the sum of $9,346 78, paid July 2d, 1855, under the following circumstances:

“On the 27th June, 1854, Ban-leer & Diffenderffer made an assignment of all their tobacco, in the stemmery at Cadiz, and at some other places in Tennessee, amounting to 160 hogsheads, (none of which was attached in these suits,) to McGregor, Alloway & Go. ond to one Wesley Gunn, to secure the sum of about thirty thousand dollars due the former on account of advances, and about $6,880 57, due the latter for services in purchasing, stemming and putting up tobacco, besides the sum of about $4,260, advanced by him to farmers from whom tobacco had been purchased for Barker & Diffendmffev. This assignment was made in Tennessee, and is not shown to have been in contravention of her laws. McGregor, Alloway & Go. and Gunn accepted the assignment there, it being stipulated that if there was not enough to secure them both, Gunn should have the first lien. Gunn had at least a constructive possession of the tobacco, it having been shipped to McGregor, Alloway & Go., in New Orleans, to be sold to pay, first, the amount stipulated as due himself, and the balance to be applied to the discharge of McGregor, Alloway & Go.’s claim on Ba/rker & Diffende/rffe/r.

McGregor, Alloway & Go. received the shipment, and faithfully carried out the contract, paying over to Gunn the sum of $10,590 57, and after deducting costs and charges, they consent to credit the balance of the proceeds of this tobacco ($9,346 78) on their judgment of the 4th May, 1855, against Ba/rker & Diffenderffer, thus reducing it to the sum of about $11,559 13 besides interest

The other attaching creditors contend that the sums paid over to Gunn by McGregor, Alloway & Go. should also be credited on the judgment of the latter, as having been paid to Gunn wrongfully and in fraud of their rights.

Under the evidence we find that McGregor, Alloway & Go. would have been guilty of a breach of faith if they had failed to pay the stipulated sum over to Gunn. It is proved that the sum was justly due him by Barker & Diffenderffer, pursuant to a contract made at an unsuspicious time, and that Me Grejwr^ Alloway & Go. were only able to procure this tobacco, which has reduced their original claim against Barker & Diffenderffer, by pledgii' selves, first, to pay Gunn. Gunn had a constructive possession of the j|>baceo. and could have enforced his contract against McGregor, Alloway & were his agents, for the purpose of paying his claim out of the proceeds of this shipment.

We see no ground for suspecting any fraud on the part of MeGregfli&Alloway & Go. in entering into and carrying out this agreement.

As to the charges for interest, &c., in their original account against Barker & Diffenderffer, we are of opinion that, under the pleadings and evidence, JR. Yeatman & Go. and Fellowes & Go. are not in a position to question them.

It is, therefore, ordered, that the judgment appealed from be reversed; it is further ordered, adjudged and decreed, that the intervention and third opposition of the Planters’ Bank of Clarksville, Tennessee, be dismissed, and that McGregor, Allowoy & Go. be recognized as having the right to be paid by preference and priority out of the property or funds attached in the hands of V. G. Robinson, garnishee, the sum of $11,559 13, besides interest, or such balance as is due on their judgment against Ba/rker & Diffenderffer, and costs; and if, after satisfying this judgment, there be any balance, that the right of Fellowes & Go. to be paid next in order be recognized, and lastly the right of R. Yeatman & Go; and it is further ordered, that the costs of this appeal be paid one-half by, the Planters’ Bank of Clarksville, Tennessee, and the other half by the appellants, Fellowes & Go. and R. Yeatman & Go.


author: Merrick, C. J.

text:
    Charles Richardson v. J. M. Bell, Syndic of Estate of J. M. Bell.
    It is the duty of the syndic in selling a slave at auction to declare the existence of any disease in , the slave known to him, and. which could not be discovered on simple inspection.
    Where he has failed to do so, the sale will be rescinded on the ground of such redhibitory vice.
    Where the existence of the disease before the sale to the knowledge of the vendor is clearly shown 9 a post mortem examination is not necessary.
    APPEAL from the District Court of West Feliciana, Bailiff, J. Tried by a Jury.

      Brewer & Gollins, for plaintiff.

      U. B. & J3. Phillips, for defendant and appellant.
   Merrick, C. J.

The plaintiff sues the defendant to rescind the sale of a slave sold to the plaintiff at the sale of the property belonging to the insolvent estate. The case was tried by a'jury who found in favor of the plaintiff, and after an unsuccessful attempt to obtain a new trial, the syndic has appealed.

It will be necessary to notice but a few of the questions raised in this case. The testimony abundantly established the fact, that the slave died of a redhibitory disease, which existed prior to the sale, to the knowledge of the defendant. Where the testimony clearly shows that the disease existed prior to the sale to the knowledge of the vendor as in this case, no post mortem examination is necessary. The plaintiff has done what was incumbent upon him, viz., he has made his case legally certain. If a physician was not called to treat the negro, it was because when examined by Dr. James Perhins, he discovered that the disease was one in which medicine could produce no favorable effect. This objection, moreover, has less effect, as the negro, after having been tender cd, had been hired to the defendant himself, who had been a physician, and he was in the defendant’s possession when he died. '

It is further urged that the action of- redhibition does not lie against a syndic on account of property sold at the syndic sale. The jury were instructed by the Judge trying the case, that such was the law in a case of simple restitution and that they must find for the defendant, unless they were of the opinion that there had been fraud in the conduct of the defendant. O. O. 259'T. The jury, therefore, if they regarded the instructions of the court must have concluded that the conduct of the defendant was such as to give rise to the action. The testimony of the syndic was taken, from which it appeared that he was aware of the disease of the negro and had caused him to be treated for it.

It was certainly a grave oversight in the syndic, who was present at the sale, in not declaring the existence of the discease, it being one which could not be discovered on simple inspection. Although he may not have thought it his duty as agent of the creditors to inform the auctioneer who was making the sale, or announce the fact to the bidders, jet the consequence of placing a diseased negro upon the stand as sound and suffering him to be adjudicated to all appearances as such, when he knew the contrary, was as injurious to the the plaintiff as would have been the case of fraudulent misrepresentations.

If, therefore, it bo conceded that the law was correctly stated to the jury by the District Judge, a point not necessary to decide, we are not prepared to say that the jury had not sufficient evidence before them to justify their inferences and support their verdict. O. O. 1841, No. 6 ; Ibid, 1842.

Judgment affirmed.


author: Lea, J.

text:
    Napoleon B. Riddle, Curator, v. Catharine Kreinbiehl, &c.
    When there has been no fraud on the part of the vendor, and no proof that he had any knowledge of the existence of a redhibitory vice in the slave sold, the redhibitory action is prescribed in one year from the sale.
    In an action to recover a part of the price unpaid, the vendor may set up the redhibitory vice as matter of defence, although more than a year has elapsed since the sale. He cannot, however, by a reconventional demand, after the lapse of one year, recover back the part of the price which has been paid.
    APPEAL from the District Court of West Feliciana, Waterston, Judge of the Eighth District, presiding. Tried by a Jury.

      Brewer & Collins and Powell, for plaintiff and appellant.

      H. C. Hudson, for defendant.
   Lea, J.

The plaintiff, in the capacity of curator of the estate of Rielwrd H. Cadle, sues for the unpaid balance due upon the price of a slave adjudicated to the defendant, Catharine Krienhiehl, at a public sale of the property belonging to the succession of Richcwd H. Cadle. The defendant resists payment on the ground that at the time of the sale the slave “was afflicted with a redhibitory malady of many years standing,” one not easily detected by a person not accustomed to deal in slaves and unskilled in medical science.

The defendant claims in reconvention the cancellation of the sale, the restitution of the money already paid as part of the price of the slave, and the reimbursement of expenses and losses incident to her sickness, such as loss of time, nursing, hoard, physicians’ bills, medicines, &c.

Against the reconventional demand the plaintiff has entered the plea of the prescription of one year. The sale of the slave was made on the 8th of February, 1854, and the suit was not instituted until the loth March, 1855. Nothing in the evidence establishes fraud in the vendor, or that the vendor had any knowledge of the existence of the alleged redhibitory vice, and neglected to apprise the purchaser of the fact.

The claim upon the reconventional demand, therefore, comes clearly within the application of Article 2512 of the Civil Code, so far as the defendant seeks to recover any part of the price already paid or damages incident to the sickness of the slave. The Article expressly provides that the redhibitory action must be instituted within a year at the farthest, commencing from the date of the sale. So far, however, as the defendant seeks to resist the payment of the unpaid balance due upon the price, she may invoke the doctrine “qum temporalia,” &c. Though the redhibitory action is barred by the lapse of time, yet she may invoke as matter of defence any facts which would sustain a redhibitory action.

Upon the question of fact, as put at issue, in the pleadings, although the testimony is not as conclusive as could be desired in a case of this kind, yet we are reluctant to disturb the verdict of a jury upon a question of fact sanctioned, as it apparently has been, by the concurring opinion of the District Judge.

It is ordered, that the judgment appealed from be reversed, and proceeding to render such judgment as in our opinion should have been rendered, it is ordered, that upon the plaintiff’s claim there be judgment for the defendant, and that upon the claim in reconvention, for the restitution of the money paid by the defendant as part of the price of the slave and for damages, as set forth in the answer and supplemental answer, it is ordered that there be judgment in favor of the plaintiff, K B. Biddle, curator; it is further ordered, that the plaintiff pay the costs in the District Court, and that the defendant pay the costs of this appeal.


text:
    G. W. Helme, Receiver, v. Joseph Littlejohn.
    What the parties might do by a power of attorney, the court may, when their interests require and the parties are properly before the court, order tobe done.
    A receiver may be appointed by the court, notwithstanding the death of one partner and the appointment of an executor to administer his estate.
    The decree of the court appointing the receiver to collect the partnership assets is itself sufficient authority to Irm to institute a suit against a debtor of the partnership. The transcript of the proceedings in the suit in which he received his appointment need not be produced.
    APPEAL from the Sixth District Court of New Orleans, Gotton, J.

      Glarhe S Bayne, for plaintiff and appellant.

      Benjamin, Bradford & Finney, for defendant.
   Merrick, O. J.

This suit is brought by the plaintiff in his capacity of receiver of the late firm of Joseph H. Palmer & Go. against the defendant. The defendant excepted to the capacity of the plaintiff to stand in judgment, on the ground that Joseph II. Palmer, one of the firm, is dead and represented by an executor, and that, under such circumstances, the court was without power to appoint a receiver. On the trial of the case to prove his capacity, the only evidence offered by the plaintiff was a certificate entitled, “ Second District Court of New Orleans, No. 8283,” wherein it was certified that, “ On the 24th day of May, 1856, judgment was entered in the .court in the matter of the Succession of J. H. Palmen' & Go., in the words and figures following,” viz: “In this case submitted to the court for adjudication, the evidence, the pleadings, and the law considered, it is ordered, adjudged and decreed, that George W. Selme be. appointed receiver to collect the partnership assets of J. H. Palmer & Go., to settle and liquidate the partnership affairs, upon giving bond in the sum of twenty thousand dollars, until the debts are paid.” 29th May, 1856.

[Signed] “P. H. Morgan, Judge.”

It is objected that this certificate does not show that the Judge had proper parties before him in order to appoint a receiver; that the plaintiff should have produced the whole of the record to show, not only that the Succession of J. H. Palmer was represented, but that the surviving partner was also a party to the proceeding.”

There is force in the objection under the ordinary rules of evidence. But we think that to require the receiver to produce in every suit he may be required to bring a transcript of all of the proceedings in the suit in which he has received his appointment would, in a great measure, deprive the parties of the benefit of his appointment, and unnecessarily increase the cost of every suit brought by the receiver. We think that the certified copy of the entry alone making the appointment ought to be deemed prima faaie proof that the court had the proper parties before it when the appointment was made, leaving the opposite party to rebut the presumption.

The receiver is hut the agent of the parties, having the legal right to sue. The executor of Joseph II. Pabnei•, deceased, and James U. Massey might have united in a power of attorney and appointed Helme their agent to institute the suit on their behalf in his own name. Eggleston v. Colfax, 4 N. S., 481; 5 N. S., 40; 4 Rob., 521; 5 Rob., 478.

What the parties might do by a power of attorney, the court may, when their interests require and the parties are properly before the court, order to be done. Such decree unappealed from acting upon the parties before the court, cannot have less binding force than the voluntary act of the parties themselves. The court exerts asimilar power in the appointment of a curator of an absentee. C. C. 50. The court then had power to appoint a receiver notwithstanding the death of J. H. Palmer, and the appointment of an executor, and such decree was a sufficient authority to the receiver to institute this action, and the judgment in favor of the receiver will be a sufficient protection to the defendant. 4 Rob. 521; 2 An. 90.

On the merits, no argument has been urged why judgment should not be' rendered in favor of the plaintiff, who appears to have made out his case.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that the said George W. Helme, in his said capacity of receiver, do have and recover judgment against the defendant, Joseph Littlejohn, for the sum of five hundred and ninety-three dollars and forty cents, with five per cent, interest thereon per annun from the 25th day of February, 1856, until paid, and that the defendant pay the costs in both courts.


text:
    James B. Smith v. A. R. Brown, Tutor.
    Novation will not be presumed. ‘‘It can only be established by an express declaration to that effect by the creditor or by acts which are tantamount to such a declaration.” C. C. 2188.
    When the tutor gave his individual notes for tha amount of an account rendered by an attorney-at-law for professional services in suits in which the interests of the minor were involved, held: that it was not a novation of the debt.
    APPEAL from the District Court of East Feliciana, Ratliff, 3.

      Fuqua & Xilbourn, for plaintiff.

      Bowman & Delee, for defendant and appellant.
   Lea, J.

The defendant is- appellant from a judgment rendered against him as tutor of his minor child, William R. Brown, upon a claim for professional services rendered by the plaintiff as an attorney-at-law in two suits in which the interests of the minor were involved. The basis of the suit is an open account in which the claim for services is set forth. The defence rests upon the pleas of novation and prescription.

We consider the plea of prescription untenable, as it is shown that the correctness of the demand has been acknowledged by the tutor -within the last two years, and the only proof of the alleged novation of the debt consists in the fact that the tutor gave his individual notes for the amount.

This would not amount in law to a novation. Novation will not bo presumed. “It can only be established by express declaration to that effect by the creditor, or by acts which are tantamount to such a declaration.” C. C. 2188. In the case at bar, had the note of a third party been given to the plaintiff we should not, under the circumstances of the case, have been justified in drawing the conclusion that a novation was intended.

We have considered this case as it has been presented in the pleadings and arguments of counsel, and do_ not wish to be considered as expressing any opinion with reference to the regularity of the proceedings in other respects.

Judgment affirmed.


text:
    E. H. Roquest & Co. v. Steamer B. E. Clarke et el.
    The writ of provisional seizure cannot be sued out without a bond being given by the plaintiifs except in the cases expressly enumerated in the Code of Practice.
    The furnishers of provisions to the boat’s crew are not furnishers of “materials ” in the sense of Art. 285, No. 8, of the Code of Practice.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Durant & Hornor, for plaintiffs and appellants.

      Charles B. Singleton, for defendants.
   Spofford, J.

The writ of provisional seizure which issues without a bond by the plaintiff who resorts to it is restricted to the cases enumerated in the Code of Practice under that head. Smith v. Smith, 2 An. 447.

The plaintiffs, who have furnished provisions to the boat’s crew, are not furnishers of “materials” in the sense of the Article 285, No. 8, of the Code of Practice.

The District Judge, therefore, did not err in setting aside the provisional seizure.

Nor do we think he erred, as contested by the appellants, in limiting the privilege claimed by the plaintiffs to the term of sixty days next preceding the seizure. It is true the term was established for the protection of third persons dealing with the owners of vessels, but if the privilege runs out in that time, as has been repeatedly held, the courts cannot extend the time. We see no practical benefit to result from holding that the privilege lasts and must be enforced until some third person pleads its peremption; if the owners are solvent the creditor can secure payment without a privilege; if not, some third person must be prejudiced by a prolongation of the term for which the privilege subsists.

The money demand of the plaintiffs is not prescribed, as urged by the defendants and appellees. The Judge properly inferred an interruption of prescription from the facts in evidence.

.Judgment affirmed.