author: Slidell,. J„

text:
    Nisbett et al. v. Galbraith et al.
    Where a bill purports on its face tb be drawn on a letter of credit, the possession of the letter by a third person, the holder of the bill, with an endorsement on it made by the drawer of the bill, showing that it was drawn under the letter of credit, is prima facie evidence that the bill was taken on the faith of the letter.
    Where a letter of credit addressed by one person to another, authorizes the latter to draw on the former to a certain amount, in sums to suit the convenience of the parly to whom it is given, and the letter was evidently intended to be‘exhibited to thirdpersons to induce them to take the bills so drawn, the promise which the letter contains is a promise to any one taking a bill on the faith of the letter; and any advance made on its faith is a sufficient consideration to entitle the holder, in the absence of any evidence that the letter had been revoked or the amount of the credit previously exhausted, to recover against the writer of the letter; damage to the party taking the bill being as good a consideration, as benefit to the writer of the letter. '
    APPEAL from the Fifth District Court of New Orleans, Slrawbridge, J.

      Micou, for the appellants,
    relied on Russell v. Wiggin, 2 Story 214.

      A. Walker, for the defendants.
    In FonPltulv. Sloan, 2Rob. 145, the bill is drawn instrictconformity to tbedirections, and contained the memorandum that it “ was drawn as authorized by E. C. Sloan’s, (the defendant’s) letter of credit of 12th of same month.” But tlie Supreme Court said that to make parties liable under such collateral acceptances, it is required'that the promise or undertaking should point to the specific bill or bills. “ To supply the-place of a written acceptance on a bill, the promise to accept must describe the bill in such a way, that the promise can apply to no other bill.” Otherwise, there would be no limit to the liability of the maker of a letter of credit'. In the case of Fon Phul et al. v. Sloan et al., the court also notices the distinction between an action on the bill for an implied acceptance, and an action for damages. A party might be liable on a letter of credit under the latter form of action, when he would not be under the former. But this suit is brought for the non-acceptance of a bill in the usual form. It is nota suit for damages, on an alleged breach of promise.
    ■ The leading case on this subject cited by the judge below, is that of Coolidge V-. Payson, 2 'Wheaton 75, where it was settled, that a letter written within a reasonable time before or after the date of a bill of exchange, describing it in terms not to be mistaken, and promising to accept it, is, if shown to the person who afterwards takes the bill on the credit of the letter, a virtual acceptance binding'the person who makes the promise.” Subsequently this rule was confirmed by the decisions of cases before the Supreme Court of the U. S. Sclímmelpenneck el al'. v. Bayard et'al. 1 Peters, 294. Boyce Iienry v. Edward, 4‘ Peters, 118. Our own-Supreme Court, in Carrollton Bank v. Tayleur et al., 16-La. 499, after elaborate and able argument, fully adopted the principle established by the Supreme Court of the U. S.
   The judgment of the court was pronounced-by

Slidell,. J„

The plaintiffs claim from the defendants, Galbraith Greenfield, the amount of a bill of exchange, which they allege they discounted for the drawer on the faith of a letter of credit, signed by the defendants and presented to them by the drawer. The bill of exchange is in these words :

“Exchange for $2,000. Sf.Louis, M., July 14, 1847.

“ Twenty days after date of this first of exchange (second unpaid), pay to the order of Messrs. W. Nisbett Sf Co. two thousand dollars, value received, aná charge the same to account. Your obd’t. serv't.

“ Drawn against your letter of creditof the 8th May, 1847,

W. A. Whitaker.”

“ To Gailraith & Greenfield, New Orleans, La.”

The letter of credit, which was filed with the petition, was in these words:

“New Orleans, May 8th. 1847.

"TV. A. Whitaker, Esq..

“ St. Louis, M.

“ Sir: You are hereby authorized to value upon us to the amount of five thousand dollars, in your bills upon us at from twenty days to four months date, in sums to suit your convenience, and the same will be accepted by us and paid at maturity.

“ Your obedient servants,

“ Galbraith & Greekfie-lb.'”

Upon the letter appears the following endorsements:

“St. Louis, May 29, 1847. Drawn on the within letter-of credit, bill dated May 29, at twenty days date, favor of Win. Nisbeit ¿j- Co., for $1500.

“ W. A. Whitaker.”

“ St. Louis, July 14th, 1847. I have this day valued on Galbraith 8f Greenfield, on the within letter of credit, in favor of W. Nisbett 8f Co., and negotiated the same with .them at twenty days date, for the sum of two thousand dollars.

W. A. Whitaker.”

The bill and letter are annexed to the petition. The defendants answered by a general denial of all the allegations of the petition. They-also pleaded specially previous acceptances and payments of drafts on the faith of the letter, to the full amouut of $5000 ; and that the plaintiff had been guilty of laches in not ascertaining the amount of drafts already drawn. The district judge gave judgment as in case of non-suit. He puts his judgment on two grounds.: first, that there was no,, proof that the letter of credit was exhibited to the plaintiffs, nor that they took 'the bill on the faith of it; and secondly, that the letter of credit does not describe the bill, citing the case of Coolidge v. Payson.

Considering the fact that .the bill, on its face, purports expressly to be drawn upon the letter of credit, the possession of the letter by the plaintiffs at the time of bringing suit, and the endorsements upon the letters above stated, we think the plaintiffs have made out a prima facie case .that, they took the bill upon the faith of the letter.

The remaining question is, are the defendants liable under this letter to the plaintiffs, who acted upon the faith of it? To determine this, the first enquiry to be made should-be, what did Galbraith 8f Greenfield mean by this .letter ? We will not for the present surmise what answer a lawyer would make to this question; but what answer a merchant would make ; and if this point of view had always been taken, we imagine there would have been much less diversity of opinion in the courts. Now, we think nine merchants out of ten. if this .letter had been shown .to .them, and the question put, would have said : “ The object of this letter is to give Whitaker credit, and induce .the public to take his bills by their promise to honour them; and, if I take his bill on Galbraith <!$• Greenfield, I have the security of their names, unless Whitaker has overdrawn.” If some one should suggest a doubt whether the letter was not merely a private arrangement between Whitaker and Galbraith Sf Greehfield, the merchant would probably answer, with equal promptness- “That.cannot be, for if it were meant as a memorandum of the intended course of'business between the partios, it would have provided for many matters about which this letter is entirely silent.”

Now if this be the fair practical intendment of the letter, what legal obligation should fall upon the writer of it? Common sense would say that, if it have inspired confidence and induced third persons to trust Whitaker, Galbraith Sf Greenfield., should be bound to protect them ; and that any other interpretation would make the letter of credit an instrument of deception. How is it then ■that a matter which, to the contemplation of the ordinary mind seems so plain, should become, when subjected to a legal standard, difficult and uncertain— sometimes decided one way, sometimes another? It'wiil be found, we think, that the difficulty has arisen from the false application of a technical rule. The argument was thus: “ The letter is addressed to Whitaker. The contract is between him and Galbraith Sf Greenfield. As between the plaintiffs and defendants there is no privity of contract, or consideration moving between them. The fallacy of the position is fully exposed by Justice Story, in Russell v. Wiggins, 2 Story, 219, where the subject is discussed at length. If the letter be, as we feel satisfied it is, a document intended to be exhibited to third parties, and to induce them to take Whitaker's bills, then the promise which the letter .contains is, by intendment of lav/, a promise to any body taking a bill on the faith of the letter; and the advance of his money, which the party makes on the inducement and faith of the letter, is a sufficient consideration; damages to the promisee constituting as good a consideration as benefit to the promissor.

Looking at this matter either in a mercantile light, or as a mere question of .equity, it seems strange that the question should have been a disputed one. The doctrine which would refuse relief to a person advancing his money upon ■the faith of such a letter, would practically amount to .this, that a man should be permitted deliberately and knowingly to putin the hands of another the means ,of producing a false impression upon an innocent third person, and of thus .drawing h.im into a contract upon the faith of that impression, and of .afterwards saying to the injured party': •* Y.ou have been deceived by what I said and .did ; but I never addressed you, and am not bound to you.”

It would be unnecessary to enter into an examination of the numerous cases which directly involve, or have a bearing upon, the question before us. The subject has been very ably considered, and the .authorities very fully cited, in the .case of Russell v. Wiggins, already referred to, 'We .consider that case as .conclusive .of the present.

It will .be obseryed that there is no evidence that the defendants have ever paid a doljar upon bills of Whitaker; so that there is no question here as to an infraction ,of the limits prescribed by the authorization to draw. Nor .is it even pretended that the letter had .been revoked.

The petition asks for damages at the rate alleged to be due by the laws of Missouri on returned bills; bu.t we have no evidence of that law, nor eyen that any damages have .been incurred by the plaintiffs. It would seem questionable from the back of the bill whether .they ever .ceased to be holders of it. It is .unnecessary, therefore, .to enquire whether the liability of a person giving .a letter of credit extends beyond the face of the bill and interest.

It is, .therefore, .decreed that, the judgment appealed from b.e reversed, .and that the plain,tiffs Wm. Nisbett,8f Co. recover from the defendants, Galbraith <$• Greenfield, and Robert W. Galbraith .and Thompson Greenfield, in solido, the sum of $2,000, with interest from 25th August, 1847, until paid, and costs in both courts.

      Tho judgment in this case was pronounced on the 24th of April, 1848 ; a re hearing was granted, and, after argumont, the case was held under advisemont until the 11th of llocemfior, when the judgment originally pronounced jvas ordered te remain undisturbed.


source: Caselaw Access Project

author: Slid el i,, J.

license: Public Domain

text:
    Ex parte Travers.
    The jurisdiction of the Supreme .Court as to fines under $300 in amount, imposed by municipal corporations, is limited to .cases jn which the constitutionality or legality of the fine is contested.
    EULE to show cause why a mandamus should not be issued to a justice of the peace jn New Orleans.

      J. M. Wolfe, for ¡the plaintiff in the rule.
   The judgment of the court was pronounced by

Slid el i,, J.

This court having jurisdiction as to the constitutionality or legality only of fines imposed by municipal corporations, and it not appearing that such questions are proposed to be, ,or could b.e .examined upon appeal in this case, (see Third Municipality v. Blanc, 1 An. 385,) it is therfore ordered that the application for a writ of mandamus j.n this case be dismissed, with costs to be paid by the applicant.

      A similar rule taken by one Grow, was.dismissed at tlio samo time, and for thosamo reasons. If.


author: Etjstis, C. J,

text:
    Kilgore et al. v. The Planters Bank of Mississippi.
    An order of seizure and sale, issued prior to the stat.of 1 June, 1816, on a judgment rendered in another State, cannot be proceeded with since the promulgation of that statute. A rule taken subsequently to the statute on a garnishee to show cause why certain notes should not be deliveredlo the sheriff .to be subjected to plaintiff's execution, must, consequently, be discharged.
    APPEAL from the Fifth District Cojiut of New Orleans. Buchanan, J,

      Stockton and Steel, for the appellants.

      R. N., and O. N. Ogden, garnishees, pro se.

   The judgment of the court was pronounced by

Etjstis, C. J,

This appeal was taken by the plaintiffs from an order of the district judge, discharging a rule taken by them against the garnishe.es for the delivery of certain notes to the sheriff, to be subjected to the plaintiffs’ execution. The plaintiffs suit was by executory process on a judgment rendered in another State, under articles 746 and 747 of the Code, and the judge considered the effect of the repeal of those articles by the act of June, 1846, upon .the process which the plaintiffs endeavored to carry on after the repeal of those articles, and inclined to the opinion that there was no validity in the subsequent proceedings. The judge did not make his decision on this point.

We have since had the subject before us, .and w.e came to the conclusion that, after the repealing act, no further proceedings were authorized in execution of a judgment rendered out of the State. Scott v. Duke, ante, p. 253.

Judgment affirmed.


author: Slidem,, J.

text:
    Fassett et al. v. Ruark et al.
    Where a hill of lading is executed for certain cases of domestics, with particular marks and numbers, the words “ contents unlcnown” being written above the signature to the bill of lading, and one of the cases is not delivered, the shipper, on proving that the lost case contained silk goods and not domestics, may recover the -value .of its .contents from the owners of the vessel, where .the misdescription was not intended to impose on the carrier, and it is not pretended that a higher freight would have been charged had its contents been known, nor that a knowledge of the real contents of the case would have induced greater watchfullness on the part of the-carrier. -It would be otherwise, had the misdescription injuriously affected the rights of the carrier.; in sneh a case, -the -consequences should fall upon the party molting it, though innocently.
    APPEAL from the Fourth District Court .of New Orleans, 'Strawbridge, J.

    Conklin, for the plaintiffs.

      J., and H. H. Strawbridge, for-the appellants.
    A bill-of lading cannot be contradicted by parol evidence. 2 Phiil. on Ev. 432, 435, 441 (ed. of 181C). 3 Starkie, part 4, p. 998 to 1012. 11 Mass. 27, 32. 8 Mart. 20G. C. C. 225G. Code Nap. 281, 283. Pardessus, part 4,.tit. 4, no. 724. Boulay Paty, v. 2, p. 300, 30G-7, 408, 411. Delaporte’s Comm, on the Code de Commerce, book 2, tit. 7, p. 19; lib. 6, v. 3, see. 14, p. 507 ; v. 1, ch. 1, sec. 6 (old ed.) p. 17. Merlin, verbo Connaissement. Jacobsen’s Sea Laws, b. 3, p. 172. Ord. of Bilbao, 24, 45, 47. Marcadé, v. 4, b.3, p. 420 (ed. 1846). Code de-Comm., tit. Assurances, art. 348. Boudousquie„ Assurance, nos. 101 to 117. Kent’s Comm. v. 3, part 5, sec. 48, p. 282. Pardessus, v. 3, part 3, tit. 5, ch. 1, sec. 2, no. 812. Domat, b. 1, tit. 7, ss. 2, 3. Story on Bailments, s. 75 to 79, 554, 565, 566, and notes. Casaregis, Disc. 10, nos. 56, 57. 1 Term R. 28. Bell’s Comm, on Mere, and Scet. Law, v. 1, p. 1, p. 544. Leporte, “ Le Nouveau Valin,” tit. 7, p. 207 (ed. 1809.)
   The judgment of the court was pronounced by

Slidem,, J.

The plaintiffs claim the value of a case of silk handkerchiefs, shipped in the defendants’ vessel, and which were not delivered to the consignees. The material facts are as follows:

Fisher, Miller Sf Co. sold to the plaintiffs a quantity of merchandize, which they shipped at Baltimore .on the Leda, -consigned to Fardow at New Orleans, the plaintiffs’ .agent. The bill of lading was for, “ thirty-three bales and twelve cases domestics,” marked and numbered.as in the margin, &c. Four hundred and eighty-four feet is specified as the measurement iu the bill of lading, and freight is stipulated at eighty cents per cubic foot. At the foot of the bill of lading, over the signature of th.e master’s agent, are the words, “contents unknown.” All the packages were duly delivered to the consignee except one. It is in evidence, and -this fact is not contested, that the case not delivered, instead of containing domestics, contained silk handkerchiefs of the description termed wax pongee and bandanna. There is no evidence to show that the rate of freight would have been higher for this class of goods than for domestics; and the misdescription in the bill of lading does not appear to be attributable to any thing but an innocent mistake -on the part of the shipper. At the trial of the case, the defendant took a bill of exceptions to the admission of testimony, to show that the particular case contained silk handkerchiefs and not domestics.

The argument here has been addressed to the question, whether the defendants .can-be hold liable for the value of goods, not answering the description contained in the bill of lading? We think the descriptive terms used in this bill of lading are not conclusive upon the parties. The object of the instrument was to embody the written acknowledgment of the receipt of a certain number of packages of merchandize, and the agreement to transport and deliver them to the party named. It was not essential that the contents of the packages should be stated; and the'master must be considered as expressly declining to be bound as to the contents, by inserting at the foot of the bill of lading, “ contents unknown.” The packages were not opened, so that he could examine them ; and his undertaking was to deliver so many packages of certain marks and numbers.

Having failed to do this, he must answer for the’ value of the missing package, according to its actual contents. The rights of the parties should in this respect be reciprocal. Suppose the captain had been able to prove that the missing case contained articles of much less value, than those denominated “ domestics;” it is very clear, that having signed “ contents unknown,” he would have been allowed to offer such proof, and, on establishing tho fact, could not have been held as for the value of a case of domestics.

It must be observed that,, in the present case, there is nothing to induce the the belief, either that the shippers intended to impose upon the carrier, or that the carrier’s conduct was affected fry the description. It is not pretended that a higher freight would have been charged, nor is there reason for believing that a knowledge of the real contents would have induced a greater watchfullness on the part of the carrier. Indeed, what the value of “ domestics” is, and whether it might not equal that of the goods- in-question, the evidence does not inform us.

We wish our views with regard to the effect of the language of a bill of lading, to be considered as confined to the' case before us. In cases such as those suggested in argument by the defendants’ counsel, a description might have a material effect upon the rights of the parties. Thus, where a jettison is made of goods erroneously described in a bill of lading as of a paltry description, while in realily of a valuable kind1, it might be questioned whether the general average should be assessed, according to the true character of the goods, because the misdiscriptien might have led the captain to select them for the jettison. Where the misdescription has injuriously affected the rights of others, it would seem just that its consequences should fall upon the party who had made it, even innocently. See C’ommeñtair’e sur L’Ordonnance d'e-la Marine, par Valin, avec des notes par Becane, liv. 3, tit. 2, § 2. Delvi'ncourt, lusts, de Droit Commercial, vol. 2, p. 219'. Gouget et Morget, Die. d'u Droit, &c., verbo Connaissement. De Villenenve & Masse, Die. du Cont. Commercial, verbo Connaissement. Abbott on- Shipping, Am. ed. 1846.

Judgment affirmed.


author: SiiiDEi-L, J.

text:
    Segura v. Reed et al.
    $'hc contract of the owners of a vessel employed in carrying freight is, to deliver the goods to the consignee, and the responsibility continues until there is an actual delivery, or something equivalent to, or a substitute for, it. Even assuming the general rule to be that, putting the goods on the wharf discharges tho Y.esseí where there has been a notice to the consignee of the time and place of the delivery, it cannot he construed with such rigor against the • consignee as to put the goods unqualifiedly at his risk from the very instant of landing them, whore he has made repeated calls for them during the day, and they were not put on the wharf until an advanced hour of the day, and no care or attention was afterwards given to the property by the officers or crew of the vessel. In such a case, if the goods bo lost, the owners of the vessel will be answerable for their value, with interest from the time of the loss.
    Appeal from the Third District Court of New Orleans, Kennedy, J.

      Sigur and Bonford, for the appellant,
    cited Kohn v, Packard, 3 La. 225. 3 Kent's Com. 215. Chickering v. Fowler, 4 Pick.'^73.

      L. Janin, for the defendants,
    cited 3 La. 225. 1 Ann. R. 154. 1 Story’s Rep. 603.
   The judgment of the court was pronounced by

SiiiDEi-L, J.

The¡ claim of the plaintiffis for the value of ten bales of cotton. The plaintiff, a planter, shipped twenty-one bales to Darby Sf Tremoulet, his factors, at New Orleans, by the steamer Aid. Eleven bales only of this shipment came to hand. The defendants pleaded the general denial; also thas the ten bales were delivered on the levée ; that due notice thereof was given ; and that, if this cotton was thereafter lost or stolen, the defendants were not responsible.

It appears that the steamer arrived at New Orleans on a friday night. The next morning the clerk of the steamer went to the various consignees, to deliver to them their bills of lading. That for Darby 4* Tremoulet, was delivered to Mr. Darby, at their cottnting-house, between 12 and 1 o’clock on Saturday. Darby went himself to the steamer, and afterwards sent his clerk, at 3 o’clock, to receive the cotton, but he found it was not yet landed ; and it does not appear that he was informed that the discharge of the vessel would be finished on that day. On the following monday he went again at 9 o’clock, when it was found that ten bales of the twenty-one Were missing. “ Witness saw the captain during the day, who told him he supposed the missing bales were at the lower cotton press, and he could send for them. The next day the captain told witness the cotton could not be found at any of the presses, and that he thought he' knew who had stolen them. Witness since saw the captain several times on different occasions, and he always promised to call at the office and settle this affair.” Darby deposesto similar declarations of the captain. A witness who had been formerly clerk of the boat deposes, that Dutil, the clerk of the boat, Was inexperienced in the business, and that he aided him in discharging the boat; that the boat’s cargo was all put out on the levée by 4 p, m. on Saturday, and this portion of it Was not called for until monday. There is a good deal of testimony upon the subject of an alleged usage of delivering to the draymen or agents of the cotton press, on behalf of the consigness. The district judge considered this usage as not very satisfactorily shown; and, at all events, that it was not proved that Darby 8f Tremoulet, employed any particular press. Without canvassingthe correctness of the judge’s opinion on this point, we may observe that it results from the evidence of the witnesses on both sides, that it is usual to take a receipt either from the cotton presses or the draymen, upon which-the freight is collected afterwards. There is, in the present case, no evidence to show that the clerk, or other agent of the boat, took a receipt from any body, for any portion of the cargo; nor that the least care or attention was exercised with regard to this property, by the officers or crew of the boat, after the moment when it was put out upon the levée; nor that the plaintiff’s cotton was separated from the rest, which amounted to four hundred bales.

The contract of the vessel is to deliver the goods to the consignee, and the responsibility continues until there is an actual delivery, or some act which is equivalent to, or a substitute for, it. EveD assuniing the general rule to be that, putting the goods on the Wharf discharges the vessel, where there has been a ' notice to the consignees of the time and place of the delivery, it soems to us that this rule is not to be applied with such rigor against the consignee as to put the goods unqualifiedly at his risk from the very instant of landing them, when he has made repeated calls for them during the day, and the discharge is not made until an advanced hour of the day. We do not see with what propriety, under the circumstances stated, the captain and owners of the steamer could be released from all responsibility for the cargo, thus put on the levée at so late au hour of the day, promiscuously, and without any vigilance exercised over it, or over the draymen or other persons who took it away. If there was any certain and well ascertained usage to the contrary, it ought to have been shown. And we may add that, we should receive with great caution, to say the least, evidence of any usage, dispensing a carrier from the exercise of that prudent diligence and method, which are so desirable in all commercial transactions, and without the observance of which they must degenerate into a looseness and uncertainty highly detrimental to commerce.

It is, therefore, decreed thatlhe judgment of the court below be reversed; and that Marcelite Viator, administratrix of the succession of Antoine Segura, recover from the defendants, T, M. Reed and Alexander Gordon, and each of them, the sum of.$302, with interest thereon from the 2d June, 1845, until paid; and costs in both courts.


author: King, J.

text:
    Forgay v. Hamlin.
    An agreement to pay interest mast be established by written evidence. C. C. 2895. FaroS evidence is inadmissible for snoh a purpose.
    APPEAL from the Fifth District Court'of New Orleans, Buchanan, J.

      T. H. Howard, for the appellant.

      Lockett aud Goold, for the defendant.
   The judgment of the court was pronounced by

King, J.

The plaintiff instituted this suit on an open account for services rendered, on the amount of which interest was charged for several years at eight per cent. On the trial he offered a witness to prove that the defendant had admitted the account, including the interest charged, to be correct, and promised to pay it. The testimony in relation to the promise to pay interest was rejected by the district judge, and a biil of -exceptions taken to his opinion. A judgment was rendered for the value of the services stated in the account, deducting a credit, with legal interest from judicial demand, and the plaintiff has appealed.

The judge did not, in our opinion, err. The promise to pay interest, attempted to be proved by'parol testimony, was merely verbal. The Code is express that, a stipulation to pay interest can only be established by evidence in writing. C, C. art. 2895. 7 La. 105, ’ Judgment affirmed.


author: Rost, J.

text:
    Coleman v. Dewees, Sheriff.
    Where a plaintiff in execution receives from a sheriff .the proceeds of property sold by him under a fufa, without making any objection or reservation of any kind, he will be held to have ratified the sale, and cannot afterwards complain of the manner in which it was made.
    APPEAL from the District Court of Jefferson, Clarke, J.

      McMillin and T. H. Lends, for the appellant.

      F. B. Conrad and Fugué, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff alleges that he is the owner of a judgment against Laurenline Miller ? that, under said judgment, an execution issued directed to the defendant, who is sheriff of the parish of Jefferson; that the defendant seized property sufficient to satisfy the judgment, but subsequently released the greater part of it, without any legal opposition having been made to the seizure; that the defendant committed other illegal acts in the sale of the property not released; by reason of all of which, the plaintiff claims from him the amount remaining unpaid on the judgment.

The defendant, among other grounds of defence, avers that all his acts were correct and legal, and done with the full knowledge and acquiescence of the plaintiff; that said plaintiff subsequently received from him, from time to time, the proceeds of that portion of the property seized which was sold; that proof having been made to his satisfaction, that a portion of the property seized belonged to another person, he required before selling it an indemnifying bond, which the plaintiff refused to give. The action was dismissed in the court below, and the plaintiff appealed.

The allegations of the defendant are fully sustained. He had satisfactory evidence that part of the property seized did not belong to the defendant in the suit, and was justified in refusing to sell it. The property not claimed was sold by him, and the plaintiff, having received the proceeds of it without objection or reservation of any kind, must be held to have ratified the sale, and cannot now complain of it. Judgment affirmed.


author: Edstis, C. J.

text:
    Commercial Bank of Natchez v. Markham.
    Decision- in Scott v. Duke, ante p. 253, affirmed.
    The stat. of 1 June, 1846, whiGh declares :• “ That so much of articles 746 and- 747 of the Cods . of Practice as authorizes a creditor having obtained a judgment in another State of the 'Union or in a foreign country, to proceed by executory process on said judgment, he, and the same is hereby, repealed,” does not violate art. 119 of the constitution, which provides that, “ no law shall be revised or amended by reference to its title; but in such case the act revised, or section amended, shall be re-enacted and-puhlished at length.” Per Curiam : Art. 119 does not include, by its terms, the repeal of laws, or portions of them, and can only be thus extended by an implication of doubtful propriety.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Stockton and Steele, for the appellants.

      Grymes and Prentiss and Finney,
      for the defendant and garnishee.
   The judgment of the court was pronounced , by

Edstis, C. J.

The plaintiffs have appealed from a decree of the Fourth District Court of New Orleans, quashing certain proceedings in garnishment. These proceedings were had by virtue of an order rendering certain judgments, ohtained in the State of Mississippi, executory, under article 746 of the Code of Practice.

In the case of Scott v. Duke, ante p. 253, we held that the law authorizing executory process on judgments obtained in another State of the Union, or in a foreign country, was repealed by the act of 1846. The process 'was considered as a matter of remedy, and as such within the control of the legislature. [See also Kilgore v. Planters Bank, ante p. 693. R.] That case was determined on a full examination of the effect of the repeal upon causes pending, and we held that, after the repeal, there was no warrant for any further proceedings in executory process issued on judgments of that class. There was nothing decided in that case as to rights acquired by virtue of proceedings previous to the repeal, that matter not being before us. There is nothing in this case which distinguishes it from that of Scott v. Duke.

It has been contended in argument that, though the-legislature may have intended to repeal parts of articles 746 and 747 of the Code of Practice by the law of 1846, yet the law itself does not meet the requisition of the 119th article of the constitution, and is consequently a nullity. That article provides, that no law shall be revised or amended by reference to its title; but, in such case, the act revised or section amended, shall be re-enacted and published at length. We cannot declare that an act repealing certain defined portions of an article of one of our Codes is in conflict with this article. By its terms it does notin. elude the repeal of laws or portions of them, and can only be thus extended by an implication of doubtful propriety. This is not a case in which a court is permitted to exercise the power of declaring an act of the legislature to be unconstitutional. Judgment affirmed*


text:
    Bonnabel v. The First Municipality.
    A purchaser who has paid the price can not demand a restitution of the price nor security, even during the pendency of an action to evict; a fortiori, he cannot do either before he is disturbed by the true owner. The right of a purchaser to have a sale rescinded under art. 2427, must be limited to those cases in whice the price has not been paid.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Schmidt, for the appellant.
    The jurisprudence of Rome held, that it was not the duty of the vendor to make the purchaser owner of the thing sold, but simply to put him in possession, and afterwards to protect him against eviction. Dig. 18, 1, 28, De contrk. em.pt. Sfc. This doctrine was generally followed in France, until the Napoléon Code, which adopted another princple, vizi that the true object of every sale was to render the purchaser owner of the thing sold, and not simply to put him in possession of it. Tropbng, Vente, no. 230, &c. Duranton, vol. 16, no. 176. “ L’acheteur,” says Duranton, “d’un immeuble, qui peut démontrer que son vendeur luí a vendu la chose d’autrui, á le droit de demander l’anniflation du contrat &c”. The principle for which the plaintiff contends has been distinctly recognized in the case of Kemp v. Kemp, 2 La. 242. Pontcharirain Rail Road Company y. Durel, S La. 484.
      Moreau v. Chauvin, 8 Rob. 157. Peppers. Dunlap, 9 Rob. 282. Campbell v. Nichols, 11 Rob. 16.

      Morel and Preaux, for the appellants,
    contended that, a restitution of ths price could only be claimed in ease of actual eviction. C. C. 2481. 2 Mart. N. S. 619, 466. 6 La. 543. 7 La. 46. 12 La. 30. 13 La. 257. 14 La. 559. 17 La. 303. 19 La. 235, 224. 1 Rob. 239. 3 Rob. 134, 400.
   The judgment of the court was pronounced by

Rost, J.

In 1838, the plaintiff and one Cordova bought of the defendants a town lot, for the price of 383,500. The plaintiff subsequently acquired the share of Cordova, and paid the whole amount of the purchase money. His petition alleges that he has since discovered that the lot purchased by him, did not, at the time of the sale, belong to the First Municipality. He prays for a recision of the sale on that ground, and that the price be refunded to him. There was judgment in favor of the defendants, and the plaintiff has appealed.

The plaintiff relies on art. 2427 of the Civil Code, which ordains that the sale of a thing belonging to another is null; and has shown from commentaries on a similar article of the Napoléon Code, that the purchaser who can prove that his vendor has sold him a thing belonging to another, has the right to ask the recision of the contract, even before he is disturbed in his possession by the true ■owner.

Such mny be the law of France; but art. 2427 of our Code must be reconciled with the provisions of art. 2538,which are not found in the Code of France. These provisions are, that the purchaser who has paid the price, can neither demand .a restitution of it, nor security even, during the pendency of the suit brought to evict him ; and he cannot, a fortiori, do so, before any disturbance has taken place. For the purpose of giving effect to this article the right of the purchaser to have the sale rescinded under art. 2427, must be limited to .those cases in which the price has not been paid.

Judgment affirmed.

        Schmidt, for a re-hearing. Art. 2427 of the Code of this State being a literal transcript of the 1599th art. of the Napoléon Code, the inference is irresistible, that it was intended to have the same effect in Louisiana, which it has in France. This article was inserted in the Code Nap. for the express purpose of changing the roman law, in conformity to the spirit of the age, and the wants of a more advanced state of civilization, so as to require the vendor to transfer the property of the thing sold, and make the purchaser absolute owner and master; and for this purpose it declared mill the sale of a thing not belonging to the vendor. Vide, Motifs et Discours ciu Code Civil, vol. pp. 593, 608. The theory of the roman law, as we have seen, did not require that the vendor shonld render the purchaser owner of the thing sold: ho was only bound to deliver and maintain him in possession of the object sold. Africanus says, “Hactenus tenotur (venditor) ut rem ■emptori habere liceat, non etiam ut ejus fací at.” Dig. de act. empt. vend. 1.30, § 1. Vico and other writers had observed the singularity of this provision, and have pointed out the strange anomaly between the contract of exchange and of sale, the former being null if ■the-partios did not respectively render each other owners of the things exchanged, while' •the latter only required delivery and defence in case of eviction. The reason of this difference, as Troplong very properly observes, cannot be explained logically; but historically .it appears that the .contract of salo was, what in the roman law is called contractus nominatus, and stamped with the arbitrary form of its remote origin, while the contract of ■exchange was contractus innominatus, and governed exclusively by the broad rules of natural law and plain common sense. Troplong, Vente, no. 4. The roman law recognized another contract., in which the vendor was bound to make his vendee owner of the .tbnig sold, whieh was an innominate contract, aud gave rise to the action oh rem daii, re non secuta, (Dig. de Condict, causa data 1.16); but this was not strictly speaking, a contract ■of sale. The roman law of sale with all its consequences had been adopted in France, and Dumoulia and Pothier 'both lay down the doctrine, that the vendor, after delivering ■the thing, is only bound to guaranty the purchaser against eviction. It was this doctrine, which art. 1599 of the Code Nap. was intended to change.
      . What are the obligations of the vendor by the laws of this State? Art. 2414 of the (Civil Codo defines the contract of sale to be, “an .agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.” On comparing this with the 1582d article of the french Code, which defines the contract of sale, the two articles will be found to differ very materially. The french Code says, “La vente est une convention par laquelie 1’un s’oblige & livrer une chose et l’autre á la payer.” Our Code declares, that the price is paid to have tho thing itself; the french Code only requires the delivery of the thing sold. It will be readily admitted that, in order to have the thing itself, one must be owner of it, and that, while the law of France leaves it doubtful, whether the possession of the thing sold was the only thing contemplated, our law shows it was the ownership which the purchaser expected to acquire. Art. 1914 of our Code declares, “the rule that the obligation to deliver a determinate object is perfect by the mere eonseut of the partios, and that tho obliges is the owner from the time of such contract, is without exception as respects immovables, &c.”
      Art. 1963, provides that “ contracts considered with respect to their operation on property, either purport to transfer, or to give some determinate right upon it. Asale or exchange, is an example of the first; a pledge or mortgage of the second of these species of contracts.”
      Here we have: 1st. Art. 2414, which says, that the purchaser pays the price to have the thing itself. 2d. Art. 1914, which declares that the obligee becomes the owner of the immovable, when he has consented to its delivery. 3d. Art. 1963, which provides that the purport of a salo is to transfer the property.
      From the foregoing propositions in connection with the provisions of the 2413th art. of the Civil Code, which enacts that the contract of sale, as to all matters not specially provided for in tit. 7, b. 3 of the Civil Code, is subject “to the general rules established for conventional obligations, we infer: 1st. That if the parties contemplated the sale and trausfer of ownership of the lot bought by BonnabeL and if he is not in reality made the owner, because said lot belongs to a different person than his vendor, then there is a failure of the cause or consideration of the contract, which can have no effect. C. C. art. 1887. That the motive of Bonnabel in buying was to become owner, cannot be doubted; but if his expectations in this respect havo not been realizod, there is no contract. Art. 1890. 2d. That the quality of the greatest value to the pnrchasor of real estate is unquestionably the ownership, and, if that was not acquired, he was laboring under an error which renders the contract void. C. C. arts. 1835, 1838, 3839, 1818, 1819, 1321. 3d. If ownership be of the essence of the contract, as we think it is, then this waut of an essential condition to the fulfilment of the sale, vitiates and avoids it. C. C. art. 1758, § 6. 4th. All courts are bound, in the interpretation of agreements, to give effect to the intentions of the parties, (C. C. art. 1949, § 2J; and if such intent is not carried into effect, the contract ceases to subsist.
      Thus it appears from the general rules applicable to all conventional obligations, in which categoxy the contract of sale is included, that the want of ownership is: 1st. A want of consideration of the contract: 2d. That it effects the essence of the contract: 3d. Violates the intentions of the vendee: oach of which defects authorizes the plaintiff to claim the nullity of the contract. There are also other provisions of our Code, which authorize the same inference. Thus art. 2283 says, “that which has been paid by virtue of a void title, is also considered as not due,” and, a fortiori, that which was paid without any title.
      To permit, under sueh circumstances, the 2538th article to control and change the spirit and obvious intention of so many and,such important enactments of the Code seems to he to carry the doctrine of the implied revocation of laws much too far, especially when, as in this instance, it is practicable to reconcile the provisions of arts. 2427 and 2538. Art. 2538 is found in that part of the Code, which treats of the obligations of the buyer, and reads as follows: “If tho purchaser has paid before the disturbance of his possession, he can neither demand a restitution of the price, nor security during the suit.” This art. must be construed in reference to the subject matter of which it treats. Arts. 2535, 2536, and 2537 which precede the one we are considering, show tho rights of the buyer, when he is either disquieted in his possession by a mortgage creditor, &e., or has just reason to fear he will bo disquieted, and Ibeyprovide, that he is not bound to pay the price unless he bo quieted in his possession, or the vendor give security, except in cases where .the buyer was apprised before the sale of the danger of the eviction.* They further provide that the vendor may compel the vendee to deposit the price, when he is unable to give security, and that the vendee may make such deposit of his own accord to relieve himself from the payment of interest; then follows art. 2538, which declares that neither restitution nor security can be required of the vendor who has received the price, during tho pendency -of the suit.
      The stale of facts to which art. 2538 applies, appears very different from that contemplated by article 242.7. The latter intended, when the purchaser was able to show affirmatively that tho vendor had sold him the property of another, to enable him to annul .the sale, and take back the price. The former declares that, when the vendee is disturbed in his possession b)5* a suit claiming a mortgage or some other right, he cannot •compel his vendor, during the pendency of such suit, either to restore the price or give security. As the vendee, in such suit would necessarily call his vendor in warranty, and .the decision of .the cause would determine whether he had sold what did not belong to him, and the vendor in such event would be decreed to restore the price, this disposition does not appear unreasonable.
      Judge Porter, in the case of Kemp v. Kemp, 3 La. p. 242, thinks it questionable Mother, after payment of the price, the purchaser can maintain an action of nullity. His reasoning is exactly similar to that of the court in this case. He, however, does nothing more than intimate a doubt, because the decision of the point was not necessary to the cause, and his opinion is a mere obiter dictum.

      In the case of the Pontchartrain Rail Road Company v. Durel, 6 La. 484, Judge Martin says, that the Code declares the sale of another person’s property null, and that in such event the party “need not wait for eviction or suit.” In the ease of Moreau v. Chauvin, 8 Rob. 157, the court carry the principle still further, and decide that the purchaser may rescind the sale of a slave when the vendor fails to release an encumbrance existing on the property. In that case the court put the right of recision on the ground that “the contract is a synallagamatic one, in which the resolutory condition is always implied in case either of the parties fails to comply with his engagements,” p. 160. So in this case if the vendee be not owner, the vendor has not complied with his engagement, and we are entitled to a recision of the sale. In the case of Pepper v. Dunlap, 9 Rob. 282, it was held by the court that, where vendors of real estate are shown to have had no title, a regular eviction by judicial authority is not required, to entitle the purchaser, who has paid part of the price, to relief. Ibid. p. 289, in fine. In the ease of Beaumon v. Thomas, 1 An. p. 284, this court has sanctioned the principle of 2427, La. Code, that the sale of the thing of another is null. So in the case of Trudeau v. McVicar, 1 An. p. 428, this court held, that where a bond was given for property of which the purchaser was in undisputed possession, it was null, as being without consideration, if the title to the property was not conveyed, and that no disturbance was necessary.

        Rehearing refused.


text:
    Green v. Garcia, Sheriff.
    Where an attachment is set aside, the costs must be paid by the plaintiff. The sheriff has no right to retain the property, until his costs are paid ; and when he refuses to deliver it to the defendant under such a pretext, he will be answerable for any injury the latter may sustain thereby.
    The allowance of interest on damages ex delicto from the date of the act complained of, is unauthorized by law.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      ITiestand and Preston, for the plaintiff.
    Where an attachment is set aside the plaintiff in the attachment is alone bound for- the costs. O. P. 549, 650. 7 Rob. 77. 10 Rob. 148. 1 Pickering, 57. Interest may be allowed under a prayer for general relief.

      C. M. Conrad, for the appellant.
    The sheriff had a right to retain the property attached until reimbursed all the necessary expenses incurred in its safe keeping. C. C. 3191, 3192. No interest should have been allowed : first, because the action was one for unliquidated damages (7 La. 134, 599. 13 La. 2/1. C. P. 554); secondly, because there is no prayer for interest. C. P. 553. 8 Mart. N. S. 622.
   The judgment of the court was pronounced by

Rost, J.

This is an action for damages against a sheriff, for refusing to restore to the plaintiff property which had been attached, after the dissolution of the attachment, in consequence of which refusal it is alleged that the property was lost. The answer denies the allegations of the petition; avers that the property was unsound when levied upon ; that it was in part disposed of by the plaintiff, after the attachment; and that the plaintiff, having taken upon himself the care of it, has no recourse against others. This case was tried three times in the first instance. On the first trial, the plaintiff obtained a verdict for $1,500, which, on application of the defendant, was set aside, and a new trial granted. On the second trial, the jury did not agree; and, on the third, the plaintiff obtained a verdict and judgment for $1,388, with interest on those damages, from June, 1841, till paid. The defendant has appealed.

On the facts of this case, as disclosed by the evidence, the only question before us is, in relation to the amount of damages to which the plaintiff is entitled. The defendant, when asked to restore the property, did not allege that he had no legal notice of the dissolution of the attachment, but insisted upon retaining it until his costs were paid. This he had no right to do; the attachment having been set aside, the costs were to be paid by the attaching creditor. See the case of Fink et al. v. Marlin et al., 10 Rob. p. 147. 7 Rob. p. 77. C. P. 549, 550.

In overruling the motion of the defendant for a new trial, after the last verdict, the district judge observed, that he was very far from thinking that justice had been done by the verdict; but that, in order to prevent farther delays, he preferred sending the case before a tribunal who could pass finally upon it. We believe with our learned brother, that justice has not been done. The amount allowed is excessive, and the interest unauthorized by law. It is clearly proved that the potatoes attached had begun to decay before the attachment; that, during its continuance, the plaintiff remained on board with his hands, 'selecting the sound ones, selling them as opportunities offered, and throwing overboard those which were rotten. Witnesses state that not more than one, fourth were sound, and that even those were of inferior quality. Riehardson, who purchased 50 barrels before the boat was attached, at $1 25 per barrel says that the potatoes were then unsound ; and that, had he known the quality he would not have given 50 cents a barrel for them. . Other witnesses testify that when the boat was sunk, there only remained a few hundred barrels of potatoes, the remainder having either been sold or thrown overboard, and the other articles attached having been disposed of by the plaintiff himself.

It is true that this testimony conflicts with that of the men who had navigated the boat and of some other witnesses. But much of this testimony bears evident marks of partiality and exaggeration. We are satisfied that $500 will fully cover the damages sustained by the plaintiff, in consequence of the wrongful act of the defendant.

It is, therefore, ordered that, the judgment in this case be reversed ; and it is further ordered that the plaintiff recover of the defendant the sum of $500, with the costs of the court below, those of this appeal to be born by the said plaintiff and appellee.


author: Eustis, C. J.

text:
    Jacobs v. Augustin, Sheriff, et al.
    Where a judgment rendered in favor of the defendants, in an action to set aside an adjudication made at a sheriff’s sale, aiid dissolving an injunction restraining the sheriff from putting the purchaser in possession, is affirmed on appeal; and the purchaser afterwards, before taking out a writ of possession, takes a rule on a third person, who is alleged to detain the property unlawfully, to show cause why a writ of possession should not issue, and the rule is made absolute on the failure to answer, the defendant in the rule cannot be relieved by appealing from a judgment refusing him a re-hearing of the rule, which was asked for on the ground of the pendency of an action between himself and the purchaser for the property. There can be no objection to the issuing of the writ, but if it be attempted to be executed adversely to the right of the appellant, he must resort to his re. , medy, as in ordinary cases.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Roselius, for the appellant.

      Augustin, contrá.
   The judgment of the court was pronounced by

Eustis, C. J.

This appeal is taken by Paul Martin, from an order of the District Court directinga writ of possession to issue, commanding the sheriff to put J. A. Romer, Jr. in possession of certain lots, purchased by him at a sheriff’s sale. The plaintiff had instituted a suit for the purpose of setting aside the adjudication made to Romer, and obtained an injunction restraining the sheriff from putting Romer in possession. A judgment was rendered in favor of the defendants, and the injunction was dissolved, with damages. This judgment was affirmed on the appeal. It would seem to follow from this judgment that, the adjudication was to stand, and the purchaser be put in possession, and that the court was bound so to execute the judgment.

But the purchaser, Romer, before taking his writ of possession, took a rule upon the appellant, who is alleged unlawfully to detain the property, to show cause why the writ should not issue. Martin, the appellant, did not answer to the rule, which was made absolute. He afterward applied for a re-hearing of the rule, on the ground that a suit was pending and at issue between him and Romer for the property, and that no writ of possession could issue under the judgment.

We see no objection in the record of this suit, to the issuing of the writ under the judgment on which it has issued. If it is executed, or attempted to he, adversely to the rights of Paul Martin, the appellant, he has his remedy as in ordinary cases; but the order directing the writ cannot be reversed on this appeal. Judgment affirmed.


author: Slidell, J.

text:
    Hoey v. Hews.
    Decision in Garrettson v. Bis Creditors, 1 Rob. 445, as to the privilege of a lessor, affirmed.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Livingston, for the plaintiff.
    No counsel appeared for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

The appellant has not presented any argument in support of his appeal. The cause has been submitted upon the ex parte argument of the plaintiff. The nature of the landlord’s rights and privileges were considered in Garrettson v. His Creditors, 1 Rob. 445. The principles there announced, and the articles of the Code there cited appears to us to sustain the judgment of the court below. Judgment affirmed.


author: Kino, J.

text:
    Succession of Fisk.
    Where a testator leaves two wills, provisions in the first contrary to or incompatible with those of the last are considered as having been revoked, and for the purpose of ascertaining any such change of intention, the two wills are to be considered as distinct and as executed at different dates ; but the other dispositions must be considered as forming parts of one will.
    Art. 1679 of the Code, which provides that "a testamentary executor to whom the testator has bequeathed anylegacies, orother gifts by his will, shall not be entitled to any commission unless the testator has formally expressed the intention that he should have the legacies over and above the commissions,” applies where the legacy was made by one will and the appointment of the executor by another, as well as to those cases in which the legacy and appointment were by the same testament.
    One to whom a testator bequeaths the residue of his estate after.the payment of a particular legacy, is entitled, as universal legatee, to the possession of the estate of the deceased, where there are no heirs to whom any portion of the testator's property is reserved by law, O. C. 1600, 1602. The only condition which the executor, from whom the seizin is claimed, canimpose on the heir is, that the latter shall advance a sum sufficient to pay the moveable legacies. Creditors may claim security for their demands from the heir, previously to his taking possession (stat. 25 March, 1S2S, s. 15); but the executor cannot require that such security be given.
    APPEAL from the Second District Court, of New Orleans, Canon, L

      Prentiss and Finney', for the appellants.

      Micoii, for the executor, Watt»,

   The judgment of the court was pronounced by

Kino, J.

Abijali Fis/c left two wills. In the first he named Charjes Watts' and ¿>. W. Fisk as his executors, and made a bequest to Charles Walts of $5000, In the second, Charles 'Watts and Alvarez Fisk were named as the joint and several executors, and Alvarez Fisk was constituted his residuary legatee. After several years of administration Alvarez Fisk instituted the present proceeding to be put in possession of the whole estate of the deceased, as instituted heir and universal legatee, and to that end called on his co-executor to presentan account of his administration. In compliance with this demand the co-executor, Walts, presented an account, exhibiting the entire assets and debts of the succession, and accompanied it with an answer, in which he avers that the succession has not been fully administered, and that large debts still remain unpaid, all of which are enumerated. He further denies that Alvarez Fisk is' entitled to be put in possession as heir or legatee, until he shall have paid the debts of the deceased.

Among the debts stated in the account to be due are the following, viz ; 1st»' $10,000 to C. Watts, being the amount of his commissions as executor. 2d» $5000 to C. Watts, the amount of a legacy by the will. 3d. $242 76 commissions of executor upon the revenues derived from the property of the sucoes-. sion since the death of the testator. 4th. $100,000 due to the minor children of Sereno Fisk, in reference to which he asks the interposition of the court for the protection of the minors, and the security of their demand before giving, possession to the plaintiff,

These items of the account were opposed by A. Fisk. The oppositions to the three first wore sustained, on the ground that, the executor, Walts, as a legatee of the deceased, was entitled to no commissions, and 'that the snm of §85000, which he admitted that he had received, was a discharge of the legacy. The opposition to the fourth was overruled, and .4. Fisk was required to give security for the debt due to the children of Sereno Fisk, before entering into possession as heir. From this judgment he has appealed.

The appellee asks that the judgment be amended, by allowing him both his commissions and his legacy under the will. He contends that the article of our Code which excludes executors, who are legatees, from receiving commissions, applies only to executors appointed by the particular will in which the legacy is given; that the appointment of executors in the .second will of Abijah Fisk, revoked the appointment in the first; and that the claims for commissions and for the legacy rest upon different and distinct wills, in consequence of which there is no legal incompatibility in the demands. He further contends that he hasvthe right to relinquish the legacy and lake the commissions, if he be not legally entitled to both.

It is true that when the testator leaves two wills, the clauses of the first which are contrary to or incompatible with those of the last, are considered as having been revoked ; and, for the purpose of ascertaining any such changes of intention, the two are to be considered as distinct, and as having been executed at different dates. But when the intentions of the testator have been ascertained by setting aside these clauses, which, under the application of this rule are to be annulled, the remaing dispositions are to be considered as forming parts of one will, which it becomes the duty of the executors to execute as such. But if this position admit of doubt, and the wills are to be considered as separate and distinct, we still think that, under the dispositions of the Code, the executor’s demand cannot be sustained.

The 1679th article of the Code is as follows : “ The testamentary executors, to whom the testator has bequeathed any legacies or other gifts by his will, shall not be entitled to any commission, unless the testator has formally expressed the intention that they should have the legacies over and above their commissions.” This article cannot be considered as applying exclusively to the case of a single will, in which both the legacy and the executorship are given. Such an interpretation appears to us to conflict with its plain and obvious intendment. The language ofthearticle is general, including within its terms all executors,whether they be legatees under one and the same will, or under different wills. Any legacy, in the words of the law, given by the testator to his executor, will exclude the latter from commissions, unléss a contrary intention be expressed.

Executors are regarded strictly as mandatories, and, in the absence of express legislation, would be entitled to no remuneration for their services. Merlin, Rep. verbo Executeur testamentaire, § 2. Toullier, vol. 5, nos. 600, 602. The french Code makes no provision for the compensation of executors; consequently, under that system, the duties of the trust are gratuitously performed, unless the testator otherwise direct. Our law, differing from the french in this respect, has fixed the compensation of executors only in the event of the testator’s silence. The testator must be presumed to know the law, and to be aware of this rule. If he make a bequest to his executor, this must be considered inlaw equivalent to a declaration of his intention that the legacy shall stand in lieu of commissions. It is the compensation which he fixes for the services to be rendered by his executor, which can neither be increased nor diminished. The executor is not compelled to accept the trust; but, if he act, no option is left to him ; he can receive no other compensation than that fixed by the testator himself. No intention having been declared'by the testator that the legacy should be exclusive of commissions, the district judge did not, in our opinion, err, in rejecting the claim, and in holding that the sum of $5000, received by the defendant, was a payment of the legacy.

The next question presented, relates to the right of Alvarez Fisk to be placed i n possession without furnishing security, while debts of the deceased remain unpaid. It is denied that he is the instituted heir or universal legatee of the deceased. He is, however, as we have seen, the residuary legatee. It is not necessary to determine whether any difference exists between the rights of universal and residuary legatees. Those differences can have no application to a contest like the present, relating exclusively to the right of possession. Toullier, vol. 5, no. 506- states, that the right of the legatee to the universality of the testator’s effects, gives to the bequest the character of a universal legacy. Tho same author says, if the testator first give a particular legacy, and then bequeath the surplus or residue of his estate to another, the latter will be an universal legacy. Vol. 5, no. 513. This is what occurred in the will now under consideration. The terms, to a certain extent at least, are convertible. See alse 12 Rob. 66.

As universal legatee the plaintiff is entitled to the possession of the estateof the deceased, there being no heirs to whom a proportion of the testator’s property is reserved by law. C. C. arts. 1600, 1602. The only condition which the executor, from whom the seizin is claimed, can impose on the heir is, that the latter shall advance a sum sufficient to pay the moveable legacies, and none such appear in the present instance to remain unpaid. Creditors, it is true, may claim security for their demands from the heir, previous to his taking possession; but none have appeared and insisted on the right. Acts of 1828, p. 156, § 15.

The children of Sereno Fisk are not the legatees of Abijali Fisk, but merely the creditors of his succession. It is assumed in the arguments submitted that they are legally represented, yet they have not intervened in this litigation, nor asked security from the plaintiff. No authority is conferred on the executor to claim a complete administration before surrendering possession to the heir or legatee, nor to interfere in behalf of the creditors.

A case has not, in our opinion, been presented, which authorizes the courtto interfere, ex officio, for the protection of these creditors, particularly as no question has been raised as to the solvency of the plaintiff, and no fact disclosed which justifies the conclusion that the debt would be unsafe in his hands without security. It is rather to be presumed that the creditors confide in the ability and disposition of the plaintiff to pay the debts of the succession, and for that reason have abstained from asking security.

The district judge directed the creditors of the succession to be paid in accordance with the account presented, as amended by his decree. This order was, in our opinion, notauthorized by the nature of the proceeding, which had not for its object the settlement and liquidation of the affairs of the succession. Two of the creditors appear to have become parties without objection, and no opposition is made to the affirmance of the judgment, as far as relates to them. As regards the remaining creditors, who were not parties to the litigation, we think the judgment was erroneous.

It is, therefore, ordered that the judgment of the court below be affirmed, so ■far as it rejects the claim of the defendant, Charles Watts, for commissions, and decrees the sum of $5000 received by him to be a discharge of the legacy, and so fur as relates to the oppositions of the Commercial Bank, and the mayor, aldermen, and inhabitants of New Orleans, creditors who have become parties to this proceeding. In other respects the judgment is reversed; and it is ordered that the plaintiff, Alvarez Fisk, as universal legatee of Abijah Fisk deceased, be put in possession of the succession of the deceased without furnishing security for the payment of the claims of the children of Sereno Fisk. or other creditors; the succession of Abijah Fisk to pay the costs of both courts.


text:
    Bradley v. The Nashville Insurance Company.
    Where a vessel insured '* at and from N. to H.., from thence to B. and back to N.” is lost while, in the port of H., the loss is covered by the policy. The insurance is the same as if the policy had been '• at and from N. to B. with liberty to stop at the intermediate port H. Tho words “ thence" and "from" when applied to intermediate ports have not the same exclusive sense as when used with regard to the commencement of a voyage ; they are merely descriptive of the course of the voyage. Under policies "from” a port, instead of " at and from," the risk attaches only from the time of sailing; but though "at." is used when it is intended to include the insurance in port at the commencement of the v(oyage, it is not usual to insert it in relation to intermediate ports, to cover the risk while there.
    Where an insurance company was bound in good faith to furnish a policy in the usual form and with the usual clauses, they will not be allowed to release themselves from any liability to the insured from their neglect to do so.
    In tho construction of policies of insurance the intent is to be regarded, rather than the grammatical construction.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Lockett and Goold. for the plaintiff,
    cited 1 Dueron Ins. p. 160-1. Palmer ■v. Warren Insurance Company ,1 Story, 368. JDowv. Hope Insurance Company, 1 Hall S. C. R. 174. Yeaton v. Fry, 5 Cranch, 342. 1 Burr. 348. 10 John. 120. Patrick v. Com. Ins. Co. 11 Johns., 9. Sea lns\ Co. v. Gavin, 2 Dow and Clarke, 129. Bell v. Marine Ins. Co., 5 Serg. & Rawle, 122. Merchants' Ins. Co. v. Clapp, 11 Pick. 64. 2 Duer on Ins. 706. Palmer v. Flemming, 9 Bing. 460. Mount v. Larkin, 8 Bing. 108. Palmer v. Marshall, 6lb. 79. Oliver v. Maryland Ins. Co. 7 Cranch, 490. 1 Phill. on Ins. p. 462.

      Bradford, on the same side.

      Hunlon, for the appellants,
    as to the question of deviation cited, Hammond v. Reid, 4 R. & A. 72. Williams v. Shee, 3 Camp. 469. 1 Phillips on Ins. 233, 507, 532. 1 Marshall on In. 185-6. On a careful examination of the policy it will be found that, none of the cases cited are in point, for the expressions and stipulations in this policy differ materially from the expressions in those policies describing the voyage, as well as tho clause relating to the beginning, continuance and end of the risk. They differ in these imporfantclauses: in some of the cases cited, the several parts are merely mentioned; in'the others, the words “ to” and “thence” are used in reference to the intermediate ports, but in no one of them is file word “from” used ■ in reference to the intermediate port. In this connexion, the word “from” is pregnant with •meaning; it suspends or excludes the risk whilst in the port. The terms “ at and from” are most significant terms, whether used with reference to the port of departure or an intermediate port. If it were the intention of the parties that the vessel should be insured at Havana, it ought to have been in some manner so expressly declared, or at least that significant preposition “from” ought not to have been inserted ; “ at and from thence” has a meaning and signification which differs from the word “ thence.” I have examined a great number of reported cases, and fiud that generally, though not always, the word “ at” is inserted in reference to intermediate ports. It is too significant to be implied when it might so easily be expressed ; and when it is inserted in reference to one of the ports and omitted jn reference to the other, tho inference is, that it was intentionally omitted.
   The judgment of the court, which was pronounced on a re-hearing, was delivered by

Eustis, C. J.

This case was before us at the last June term, and we held that the underwriters were not responsible under the policy for the loss for which this action was instituted. An application was made for a re-hearing, which was granted. The case was not fully argued at the first hearing, and a more thorough examination of the subject during the interval has not enabled us to concur in the views we first expressed.

The suit is brought to recover SI,700, the amount of a policy of insurance on the schooner Planet, at and from New Orleans to Havana, from thence to Burita and back to Neio Orleans, as is described in the first part of the policy. The description of the voyage in the written application for insurance, and in another part of the policy, does not materially vary from the first description. There was judgment in the court below for the plaintiff, and the defendants have appealed.

The vessel having been lost aftep her safe arrival in the port of Havana, it is contended by the defendants that they are not liable for the loss, inasmuch as, while in that port, the vessel was not covered by the insurance,according to the terms of the policy. Burita is a small village on the Rio Grande, below Matamoros. The risks to which the vessels were subjected in port were not merely the ordinary risks in time of peace. War at the time existed between the United States and Mexico, and the vessel was exposed to delay in the port of the Havana and to war risks at Burita, which was then occupied by a portion of our forces. No authorily. having been referred to as to any particular meaning being given in insurance to the word thence, we took it, as in its ordinary sense, to mean from that place — from the Havana; and, under the construction attached to the words at and from in the law of insurance, we thought the loss of the vessel in port was pot insured against by the description used in the policy.

It is laid down by writers on insurance that, under policies from a port, instead of at and from, the risk attaches at the time of the sailing of the vessel, that is, at the time of weighing anchor and breaking ground for the voyage with all the preparations completely made. The word from, used alone, is held to exclude the risks while lying in port before sailing. An examination of the cases from which this rule is deduced has satisfied us, that the use of the word from in this exclusive sense is confined to the commencement of the voyage insured, and that those cases, which depend upon the meaning of the words at, at arfd from, and to, relate to the beginning and end of risks, and are not applicable, in that, exclusive sense, to ports at which the vessel may stop during a voyage described in the policy. Wo find the word thence frequently used in reference to the intermediate ports of a voyage, and never recognized by courts as a term of exclusion, and we are satisfied that insurance to a port, thence to another, and thence to a third, is the same as from the first to the last with liberty to stop at the intermediate ports. We have not met with any case in which, when applied to an intermediate port, the words thence or from have been held to have the same exclusive sense as when used with regard to the commencement of a voyage. '

On an insurance at and from New Orleans to the Havana, thence to Burita, and back to New Orleans, the word thence is not a term of exclusion or of limitation of risks, but descriptive of the course of the yoyage ; and although the word at is used to include the insurance in port at the commencement of the voyage,yet it is not usual to insert it in relation to intermediate ports of the voyage, nor is it considered necessary in order to cover the risks while there; and such we now believe is the general understanding of merchants and underwriters.

The subject is not susceptible of much illustration by way of argument. It is supported by concurrent authority. The construction given by courts to policies which cover risks in port which are not included by express words, but implied by the description .of the voyage, appears to us to be conclusive against Ihe underwriters in this case. Brown v. Vigne, 12 East. 383. Cockey v. Atkinson, 2 Barnwell & A., 460. Ellery v. N. E. Ins. Co., 8 Pickering, 14. Bell v. Marine Ins. Co., 8 Sargeant .& Rawle, 98. Parsons v. Mass. Ins. Co., 6 Mass. 179. De Longuemére v. N. Y. F. Ins. Co., 10 Johnson, 120. Patrick v. Con. Ins. Co., 11 Johnson, 9.

It is important to add that the construction which we give to the description of the risk in this policy, is in conformity with the opinions of Judge Phillips of Massachusetts, and Mr. Duer of New York, the distinguished authors of the treatises referred to in argument.

But it is urged that the cases upon which this construction is founded, differ from the present, inihis: that in all of them there was the clause declaring distinctly that the adventure should continue and endure till the arrival of the vessel at the last port. That such a clause is usual in all policies in the United States, we believe to be the fact'; it certainly is in the New Orleans policies. It is not easy to perceive how the underwriters can be benefited by the absence of this clause, as restricting the insurance to risks at sea, when we .consider the manner in which this insurance was effected.

On the application made by the plaintiff’s agent for insurance on the hull of the schooner Planet from this to Havana, and from thence .to Burita, and from thence back to New Orleans, for $1,700, we find the rate marked seven per cent. A separate policy for this insurance was required by the agent in his application. Can it be questioned that, according to the course of business, the company was bound in good faith to furnish the party a policy in the usual form and with the usual clauses 1 A large portion of insurance is transacted without the policy being looked at by the insured, and we think no court would hesitate to reform a policy .under such circumstance, and give the insured the indemnity for which his premium has been paid. In the present case the defendants filled up a blank policy on merchandize, thus increasing the difficulties with which this most informal of legal instruments is attended. But there hap-ens to be in this policy, immediately following the description .of the voyage: “ Beginning the adventure upon said goods and merchandize, from and immediately following the loading thereof on board the said vessel as aforesaid, and so shall continue and endure until the said goods and merchandize shall be safely landed as aforesaid.” What, it may be asked, is to continue and endure ? The adventure. And what is the adventure, but the risk ?

If this clause mean any thing, it means that the risk shall continue without interruption till the end of the voyage. Mutatis mutandis, substituting the subject insured — the vessel — for that for which the form was printed, that the insurance was to continue up to the termination of the voyage seems to be beyond all question.

The intention of the parties, as collected from the terms employed in the contract according to the usage of insurance, was, we think with the district judge who decided this cause, to insure the vessel back to New Orleans. The voyage was entire, the risk was not interrupted or suspended by any stipulation to that effect, the premium was entire, and we think the insurance was uninterrupted and entire. Policies of insurance are rarely subjected to any critical construction, and the intent is regarded rather than any grammatical accuracy in the use of language. Palmer v. Warren Ins. Co., 1 Story’s Rep. 365. 1 Duer on Ins. 161.

Our attention has been called to the point raised in the defence, that the delay of the Planet in the Havana amounted to a deviation from the voyage. It is in evidence that the schooner was detained fora few days for the purpose of getting the news from Mexico by the steamer, and that on her arrival the schooner was got ready to take in her cargo. In the case of Hagedorn v. The St. Louis Perpetual Insurance Company, 2 An. p. 1005, we considered this subject. We thought that, under the evidence and the state of war which existed between this country and Mexico, and considering the .condition and situation of Burita, which was then under the control of our army on the Rio Grande, the delay was in the furtherance of the object of the voyage, and not such as to terminate the insurance.

The delay, under these circumstances, we do not,think constitutes a deviation, according to the authorities cited by the counsel for the defendant.

Judgment affirmed.


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    Dorsett et al. v. Lambeth, Executor.
    A testator directed that a certain sum of money should he invested in stock, and the interest paid to a legatee during her life, the amount after her death to revert to his estate. The amount'was not invested, but one of the executors retained it, and paid the interest to the legatee until her death. The residuary legatee bequeated this legacy to plaintiffs, who sued the succession of the residuary legatee for the amount of the legacy: Held, that the legacy not having been paid to the succession of the residuary legatee, it cannot be made liable for the amount; but that plaintiffs’ remedy is' against the party by whom the legacy was retained, and who still holds it.
    APPEAL from the Court of Probates of New Orleans, Bermudez, J.

      Upton, for the plaintiffs.

      Moise and Randolph, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This appeal is taken from a judgment rendered in the late court of Probates of New Orleans, against the defendant, as dative executor of Phillip Taylor, by which the estate of Phillip Taylor is charged with the payment of the amount of a legacy of $5000 in favor of the plaintiffs- The only question to be examined is, as to the correctness of this judgment- It is not whether the legacy is due to them, nor who is bound to pay it to them, but whether the succession of the deceased, under the administration of the executor, is liable for it.

The clause in the will of the decased, on which the judgment is based, is in these words: “ I desire that the legacy of $5000, left by my late brother A. R. Taylor to Miss Ann Lowry, a young lady raised in my father’s family, which is to revert to my brother’s estate after her death, be equally divided between the children of my two friends” áte. The legacy of the testator A. R. Taylor is to the effect that, an investment of $5000 be made in some safe stock, the interest of which was to be paid to Miss Lowry during her life time; and after her death, the sum to revert to the testator’s estate, of which Phillip Taylor was the residuary legatee.

The investment was not made by the executors of A. R. Taylor, but the amount of $5000 was retained by them; and subsequently one of the executors, Lambeth, who is also the dqtive executor of Phillip Taylor, gave a bond, with surely to the administrators of his succession in Missouri, to pay the amount according to the provisions of the will of Phillip Taylor, in the event of the death of Miss Lowry. Miss Lowry having died, and the amount never having gone into the estate of Phillip Taylor, it is obvious that the judgment against the succession cannot be sustained. The legacy ofPhillip Taylor was of the legacy of his brother. That legacy is in the hands of Lambeth; and the remedy of the parties must be sought against him, and not against the succession of Phillip Taylor.

This being our view of the case, it is not material to examine the objections to the validity of the legacy of A. R. Taylor in favor of Miss Lowry, as involving a substitution.

The judgment appealed from is, therefore, reversed; and the suit of the plaintiffs’ dismissed, with costs in both courts.


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    Davis v. Janin et al.
    Whore in an action on anote for the price of a slave, defendant alleges that the slave was mu. sound at the time of the sale, and has since died of the disease with which he was then affected, the burthen is on defendant to show that he took such care of the slave as a prudent father of a family would have done, and that a physician was employed by him to attend . to the slave during his sickness.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge,

      Moise and W. M. Randolph, for the appellant.

      M. Taylor, for the defendants.
   The judgment of the court was pronounced by

Rost, J.

This is an action instituted to recover the amount of a note given for the price of a slave sold to the defendants. They resist the claim on the grounds that, at the time of and before the date of the sale, the slave was addicted to running away — that he was unsound, and has died of the diseases with which he was then afflicted. This defence prevailed in the court below, and the plaintiff has appealed.

The plaintiff denies the redhibitory vices and maladies alleged; but avers that if they had existed, they could not, under the facts of the case, avail the defendants : that the said defendants were bound to take such care of the slave, which they intended to return, as a prudent father of a family would have take» of him; and that they have failed to show that a physician had been called during bis last illness, which endured six weeks. The plaintiff’s counsel has referred us to the case of Kiper v. Nuttall, 1 Rob. 46, in which a similar omission, on the part of the delendant, was held to be fatal. The defendant’s argument on this branch of the case is that, the allegation that, they did not employ a physician goes to charge them -with a culpable omission or breach of duty, and that the plaintiff was bound to prove it, even if the proof had involved a negative. They rely, in support of their position, on the case of Hicks v. Marlin, 9 Martin, 47, and the authorities there cited.

In the case of Back v. Barrett, 2 An. p. 955, we thought the burthen of proof, in such cases, on the defendant; and nothing has been shown to induce us to change our opinion. The rule on which Hicks’ case was decided has reference to duties of a different claks from those imposed by charity or humanity.

It is ordered that the judgment in this case be reversed ; and that there be judgment in favor of the plaintiff for the sum of $525, with legal interest from the 4th day of February, 1848, till paid, aud costs in both courts, including $>3 for costs of protest,


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    Armstrong v. Steeber, Curator, et al.
    To entitle a surviving wife to claim from tlie succession of hor husband the marital fourth an* der art. 2359 of the Civil Code, she must prove that-hor husband died rich, and that she was loft by his death in necessitous circumstances. Awifewhohad abandoned her husband for several years before his death to live in concubinage with another, cannot he said to have been left by him in necessitous circumstances within the meaning of that article.
    APPEAL from the Second District Court of New Orleans, Canon, J.

      Collins and Sever, for the appellant.

      Molloy,' Watts and Spring, for the defendants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff claims the marital portion from her husband’s succession, under art. 2359 of the Civil Code. Her claim is resisted on the following grounds: 1st. That she is not in necessitous circumstances, but has ample means of living.

2d. That she abandoned her husband several years before his death, and has been living ever since in open concubinage with other persons. Thore was judgment against her and she has appealed.

The marital'portion was first allowed by the 53d and 117th Novels of Justinian, and forms the subject of law 7th, title 13th, of the Gth Partida : “ It was established, says Gregorio Lopez, in honorem prceterili matrimonii, and iu order that the widow might bene et honeste vivere.”

Under the facts disclosed by the record, the present case surely does not come within the reason and spirit of the law, nor do we think the letter of it more favorable to the plaintiff’s pretensions. Before she can recover, she must show affirmatively that her husband died rich, and that she was left, by his demise, in necessitous circumstances. The evidence of the first of these facts is not satisfactory, and the second is disproved. She had left her husband several yoars before his death, to abandon herself to the life of profligacy congenial to her. She did not go near him in his last illness, and suffered him to die, uncared for and alone. Her situation was no more affecte'd by his death than that of other abandoned women in this ciLy. He did not, therefore, leave hor its necessitous circumstances within the meaning of the article of the Code on which she relies, and she has no claim against his succession.

Judgment affirmed.


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    Succession of Linderman.
    Tho prescription of debts is neither interrupted, nor suspended by the death of the debtor. C. C. 3487, 3492. To preserve his rights, the creditor must cause the succession to be represented in time to present his claim.
    Where a debt is extinguished by prescription, a mortgage giveu to secure its payment, being a mere accessory, is extinguished with it.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Se-ver, for the appellant.

      Hiestand, cont-rá.
   The judgment of the court was pronounced by

Rost, J.

This is an opposition to a tableau of distribution filed by the executrix of Linderman, who died insolvent, on the 2Mi December, 1844. The opposition was filed’on the 2'4th January, 1848-, and is based upon a promissory note of the deceased, secured by mortgage, bearing date the 26th June, 1841, and held by the opponent. The plea of prescription filed by the executrix, under art. 3505 of the' Civil1 Code, was sustained in the court below, and the opponent appealed.

There is no error in the judgment. The prescription of debts is neither interrupted nor suspended by the death of the debtor. C. C. arts. 3487, 3492. Succession of Dubreuil, 12 Rob. 507. The mortgage- is a mere accessory to the debt, and is extinguished with it. The opponent should have caused the succession to be represented in time to file his claim.

Judgment affirmed.


author: King-, J.-

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    The State v. Hogan et al.
    Where several'persons-have entered into the same criminal design, the acts or declarations of one of them, in furtherance of the general object, are admissible iirevidence against all the confederates ; but where an information is filed against two persons, who are tried together for the same offence, without any evidence to establish a previous combination, the confessions of one prisoner are inadmissibie in evidence against the other; they will, not be allowed to affect any one but the person who made them..
    Appeal from the Third District Court of New Orleans,- McHenry,- J.

      Elmore, Attorney General, for the State.
    J, M. Wolfe, for the appellant.
   The judgment of the court was pronounced by

King-, J.-

The defendants were tried together upon a charge of larceny, alleged to-have been committed by stealing several bank notes. They were both conv-icted, and- have appealed.

Upon the trial a witness on behalf of the State deposed, that he was the officer who arrested Chapman: that Chapman inquired ‘what he was arrested for, and tho witness answered that he was arrested for stealing the lioosier’s money; and that Chapman replied that, “ Hogan, the other party accused, had the money, and gave him $2 out of it.” To this testimony the counsel for the accused objected, on the ground that the confessions of an accomplice could not be given in evidence against his co-defendant. The objection was overruled, and a bill of exceptians taken to the opinion of the judge.

Where several persons have entered into the samecriminal design, the acts or declarations of one of them, in furtherance of the general object, are admissible in evidence against all of the confederates. Starkie on Ev, vol. 2, part 4, p 47. 1 Greenleaf on Ev. ■§ 233. But neither the bill of exceptions, nor any other part of the record, informs us whether such a combination had been previously established by the evidence, and we are not to presume that it was. The question is, therefore, nakedly presented, whether the admissions of one prisoner are to be received in evidence to affect another, on his trial for the same offence. The rule on this subject is clearly and concisely stated in Phillips and Amos on Evidence, p. 435. Those authors say: “ Where a confession by one prisoner implicates other prisoners by name, the confession must be proved according to the manner in which it was made, and the names of the prisoners implicated must be mentioned. On such occasions it is the duty of the judge to inform the jury that, the confession ought not to affect any one but the person who made it.” The confession of Chapmnn went to the jury without this caution, which Hogan had the right to claim ; and without the qualification, it was well calculated to produce an impression on the minds.-of the jury unfavorable to that prisoner. It is not perceived, however, with what reason Chapman can complain of the ruling of the district judge. As against himself his confessions were clearly admissible in evidence.

The judgment of the District Courtis, therefore, reversed, so far as relates to George Hogan, and the cause remanded for a new trial according to law. As regards James Chapman, the judgment is affirmed, with costs.


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    The State v. Ritchie.
    One accused of crime can plead a former trial in bar of a prosecution for the same offence, only when it resulted in a verdict either of acquittal or conviction, under such circumstances as would enable him to sustain the plea of auterfoits acquit or aulerfoits convict. Where a verdict is so imperfect and uncertain that no judgment can be rendered on it, the accused must be tried again, either upon the same indietmentor onamew bill.
    APPEAL from the First Distrit Court of New Orleans, Wolfe, J.

      Elmore, Attorney General, for the State.

      J. M. Wolfe and E. M. Carter, for the ■appellant. •
   The judgment of the court was pronounced by

King, J.

This is the second appeal brought before us by the accused from judgments against him after convictions upon the same indictment. Upon the first we considered the special verdict of the jury insufficient to sustain a sen. tence, and reversed the judgment of the inferior court, and remanded the cause fora new trial. Ante p. 511. On the second trial the accused objected to the introduction of any evidence whatever on the part of the State, on the ground that he could not be twice tried for the same offence upon the same indictment. The objection was overruled, and a bill of exceptions taken to the opinion of the judge. • ■

Several errors have been assigned ; but the only ground seriously urged in argument is, that presented by the bill of exceptions. We do not consider the question an open one. Tho accused can only oppose a former trial in bar of a prosecution for the same offence, when it has resulted in a verdict either of acquital or conviction, under such circumstances as would enable him to sustain the plea of auterfoils acquit or auterfoits convict. The first, verdict was neither one of acquital, nor of conviction. We held it to be insufficient to sustain a sentence, and when this occurs the accused must again be put on his trial, as though no previous trial had taken place. The effect of the new trial is merely to grant a reexamination before another jury. The authority of courts of the first instance to grant new trials in criminal cases, and of the appellate court to order them, is beyond question. Wiien ordered, the law officer of the State may proceed either upon tho same indictment, or he may prefer a new bill. State v. Brown, 8 Rob. 566, and the authorities there cited. State v. Hornsby, Ibid 584. Wharton’s Crim. Law, pp. 618, and 625 to 635.

We have examined the remaining grounds stated in the assignment of errors, as far as the imperfect record brought up by the appellant ha3 enabled us todo so, and consider none of them tenable. As they have not been insisted upon in argument, we do not consider ourselves called upon to assign our reasons at length for overruling them.

Judgment affirmed-


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    Ex parte Bujol.
    Decision in Succession rf M&earty, S An. 979, affirmed. .
    APPLICATION for a mandamus to the judge of the District Court of Iberville, Burle, J.

      Duffel, for the applicant.
   The judgment of the court was pronounced by

Slidell, J.

It is ordered that tho application for a mandamus be dismissed, at the costs of the applicant. See the case of the Succession of Macarty, 2 An. 979.